Trespass

• Pages: 41-98

41

TRESPASS.

(21) ACTION FOR TRESPASS.

Basis of action in trespass and one of claim of possession of land and distinction between

both.

“A claim in an action for trespass to land presupposes that the plaintiff is in possession, actual or

constructive of the land in dispute at the time of the trespass and that the trespasser defendant

cannot by the mere fact of his entry unto the land secure lawful possession. On the other hand, a

claim for recovery of possession postulates that the plaintiff is not in possession at the time of the

action and that he was once in possession but is at the time of the action seeking to be restored to

possession of the land. SeeAromire v. Awoyemi(supra);Tijani v. Akinwunmi(1990) 1 N.W.L.R.

(Pt. 125) 237 at 247; Ernest Nzekwu & Ors v. Madam ChristianaNzekwu & Ors (1989)

2 N.W.L.R. (Pt. 104) 373 at 391. Thus where a plaintiff claims that he has title over the land in

dispute and which has always been in his possession, actual or constructive, he does not agree that

the defendant has any possession 41aterial41s in law. In such case his action lies in trespass,

damages for the trespass and injunction restraining the trespass. InJimoh Adebakin v. Sabitiyu

Odujebe(1972) 6 S.C. 208 at 216 this Court perCoker, J.S.C. highlighted and applied this

distinction. He said: “Thus it seems that the evidence accepted by the learned trial judge was that

the plaintiff was always in possession before the defendant entered on the land vi et armis. If that

is so, a claim for recovery of possession is inappropriate for a trespasser does not by the act of

trespass secure possession in law. If the plaintiff was always so in possession then the defendant

can only be liable for damages in trespass and to an order of injunction.”The above

pronouncement was cited by this Court with approval inBanjo & Anor v. Aiyekoti & Anor (1973)

N.S.C.C. 184 at 192-193. The Court perFatayi-Williams, J.S.C. (as he then was) at page 193

added: “The order for possession made by the learned trial judge is therefore irregular and is

accordingly set aside. However, if the defendants/appellants are, infact, still in possession of the

land in dispute and the buildings thereon, their possession being that of a trespasser, is unlawful

and is also inbreach of the order for an injunction herein confirmed.” In my consideration the

distinction between claims for damages, for trespass and claims for possession highlighted in the

case above applied with equal force in this case. Although the statement of claim is not in the

record, it is clear from the judgment of Fernandez J that the claim was founded in title evidenced

in the Deed of Conveyance exhibit “B” dated 13thof March, 1954. These two cases bring to the

fore the importance of the distinction between claims for damages for trespass and claims for

possession. In my view, the principle in the two cases is also applicable to the instant case. By the

judgment of the trial Court on the 13thof November, 1987, affirmed and confirmed by the Court

of Appeal and the Supreme Court, title over the land, subject matter of this appeal, has been finally

determined to vest in the plaintiffs/appellants. And because the law ascribes possession to the

person who has title, the plaintiffs/appellants are, in the eyes of the law, deemed to be in possession

actual or constructive. They alone are in lawful possession and the possession is exclusively since

the law does not recognise any concurrent possession by rival claimants. For the protection of the

plaintiffs/appellants’ title and possession of the land in dispute, there is in place a perpetual

injunction against the defendants/respondents who have been adjudged to be trespassers. Even if

they are in actual physical possession of the land in dispute, it is a possessionnot recognised by

law. Thus if the defendants/respondents are still found to be in possession, they are there in

continuation of the acts of trespass and for which prevention there subsists the perpetual injunction.

The plaintiffs/appellants no longer have any duty to initiate action for possession. In the face of

the foregoing considerations, it sounds to me preposterous to suggest the filing of another action

42

for possession. For the purpose of giving effect to the subsisting judgment over the land in dispute,

the plaintiffs/appellants were at liberty to approach the Court for issuance of a writ of possession.

The Court of Appeal was therefore wrong to hold thatby not setting aside the writ of possession

the learned trial judge was merely granting a relief not claimed. The learned trial judge Mumi

Fafiade, J. in dismissing the application held that the plaintiffs/appellants were entitled to

possession and were therefore at liberty to enforce the judgment. I endorse that opinion of the trial

Court in its entirety.” – Per Tabai, J.S.C., in Carrena v. Akinlase Suit No. S.C. 20/2002; (2008) 14

N.W.L.R. (Pt. 1107) 262 at 282 – 284.

Can an action for trespass be within the purview of section 251(1) © of the 1999 Constitution?

(1) “Trespass is not within the purview of section 251(1) © of the 1999 Constitution and I so hold.”

– Per Awala, J.C.A., in Adetona v. Zenith Int’l Bank Ltd. Suit No.CA/I/80/2003; (2009) 3

N.W.L.R. (Pt. 1129) 577 at 596.

(2) “I am unable to surmise how a matter that is rooted in trespass can, by a stretch of imagination,

fall within the operation of the Companies and Allied Matters Act (C.A.M.A.). Undoubtedly, same

is not within the purview of section 251(1) © of the 1999 Constitution. And parties should not

attempt to saturate the Federal High Court with such matters either by design or otherwise.” – Per

Fabiyi, J.C.A., in Adetona v. Zenith Int’l Bank Ltd. Suit No.CA/I/80/2003; (2009) 3 N.W.L.R. (Pt.

1129) 577 at 594 – 595.

Importance of possession in action for trespass.

“To be able to maintain a suit in trespass, all that a plaintiff needs to have is possession. A plaintiff

may not be the owner of the property. His possession gives him the right to maintain an action in

trespass against anyone who cannot show a better title. SeeOnyekaonwu v.Ekwubiri (1966) 1 All

N.L.R. 32;Aromire v. Awoyemi(1972) 2 S.C. 1;Amakor v.Obiefuna (1974) 3 S.C. 67.”– Per

Oguntade, J.C.A., in Zest News v. Waziri Suit No. CA/A/141/2001;(2004) 8 N.W.L.R. (Pt. 875)

267 at 278.

Nature of action in trespass coupled with a claim for injunction.

“Where an action in trespass is coupled with a claim for injunction, it automatically gives rise to

issue of title to land. SeeNnanyelugo Odukwe v. Mrs. Ethel Ogunbiyi(1998) 6 S.C.N.J. 102;

(1998) 8N.W.L.R. (Pt. 561) 339.” – Per Ogunwumiju, J.C.A., in Eleran v. Aderonpe Suit No.

CA/IL/43/2007; (2008) 11 N.W.L.R. (Pt. 1097) 50 at 74.

Proper order to make where claim in trespass succeeds.

“Where a claim in trespass succeeds or ought to succeed, an order for injunction must follow to

stop a perpetuation of the damage complained about. See Enang v. Adu(1981) 11-12 S.C. 25 at

48; Obanor v. Obanor (1976) 1 N.M.L.R. 39 at 43.” – Per Nwosu-Iheme, J.C.A., in Odibendi v.

Okolie Suit No. CA/B/226/2003; (2010) 13 N.W.L.R. (Pt. 1210) 45 at 64 – 65.

Standard of proof required to establish possession in action for trespass.

“Since the appellant has met the minimum standard of establishing the slightest possession as

required in a civil wrong of trespass. There was no need for proof beyond reasonable doubt as

expected in a criminal trial.” – PerIbiyeye, J.C.A., in Oluwole v. Abubakare Suit No. CA/I/173/99;

(2004) 10 N.W.L.R. (Pt. 882) 549 at 563.

43

What plaintiff need to establish in an action for trespass.

“In Delaney v. T.P. Smith Ltd.(1946) 2 All E.R. 23 Tucker L.J, held at page 24 where the plaintiff

founded his claim on a tenancy agreement which he pleaded as follows: “... It is no doubt true that

a plaintiff in an action of trespass to land need only in the first instance allege possession. This is

sufficient to support his action against a wrongdoer, but it is not sufficient as against the lawful

owner, and in an action against the freeholder the plaintiff must at some state of the pleadings set

up a title derived from the defendant...”– PerTur, J.C.A., in Kano v. Maikaji Suit No.

CA/K/359/04; (2011) 17 N.W.L.R. (Pt. 1275) 139 at 203.

Whether plaintiff in action for trespass need establish actual loss to recover damages.

“A plaintiff in a trespass action, is entitled to recover damages even though he has sustained no

actual loss. SeeYellowv.Morley(1910) 27 T.L.R. 20.” – PerOgbuagu, J.S.C., in Echere v. Ezirike

Suit No. SC. 350/2001; (2006) 12 N.W.L.R. (Pt. 994) 386 at 409.

Who can sue for trespass to land?

(1) “It is now trite law that in one action there may be two independent claims of title and damages

for trespass. A person may fail in his claim for title but may succeed in his claim for trespass, the

issues or the incidents are separate and independent. SeeOluwi v. Eniola (supra). A person who is

able to prove exclusive possession of a piece of land can maintain an action in trespass against any

person, unless such a person can prove a better title to the land. A person in possession even

without a valid title or with a defective title can sue in trespass. SeeUdo v. Obot (supra),where

this Court again pointed out that trespass to land and declaration of title toland are two distinct

and separate claims and these claims might arise from two distinct causes of action and that in a

claim for trespass one needs not necessarily be the owner of the land; what is required is that the

claimant proves his exclusive possession and not title. The plaintiff/respondent in the instant case

pleaded and gave evidence of exclusive possession and the Court below was justified in awarding

him damages for trespass and in granting him the injunctive relief based on his proof of exclusive

possession notwithstanding the fact that the Court of Appeal declared the conveyance to him to be

defective. As mentioned above, a person may be granted damages for trespass and an injunctive

relief even though there was no proof of ownership of the land, mere exclusive possession is

enough. SeeEzeokonkwo v. Okeke(2002) 11N.W.L.R. (Pt. 777) 26at

26, Olagbemiro v.Ajagungbade III(1990) 3N.W.L.R. (Pt. 136) 37, Adebanjo v. Brown(1990)

3 N.W.L.R. (Pt. 141) 66. In this circumstance, the answer to issue No. 1 as submitted by the

defendant/appellant must be in the affirmative. In that the Court of Appeal was right in finding in

favour of the plaintiff and awarding him damages for trespass and granting him an injunction

notwithstanding the fact that “he based his acts of possession on defective conveyance” and also

notwithstanding the fact that the Court of Appeal found that the plaintiff did not prove his

ownership of the land. InOluwi v. Eniola (supra),the plaintiff failed in his claim for declaration

of title to land but this Court perLewis, J.S.C. at page 340 observed as follows:-“The claim for

trespass, however, is not in our view, dependant on the declaration of title as the issues to be

determined on the claim for trespass were whether the plaintiff had established his actual

possession of the land and the defendant’s trespass on it, which are quite separate independent

issues to that on his claim for declaration of title.” See alsoAjukwara v.Izuoji (2002) Vol. 9

M.J.S.C. 128.” – PerMusdapher, J.S.C., in Owhonda v. EkpechiSuit No. S.C. 198/1999; (2003)

17 N.W.L.R. (Pt. 849) 326 at 345 – 346.