Trespass to Land

Land according to Sir Edward Coke comprehended in its legal significance refers to “any ground, soil or earth whatsoever..” Legally it also includes all castles, houses and other buildings.

Blackstone’s Commentaries on Laws of England says “Land comprehends all things of a permanent substantial nature being a word of extensive signification…(including houses and other buildings) yet in its original and proper and legal sense. It signifies any other thing that may be holding provided it be in permanent nature, whether it be substantial or insubstantial ideal kind.”

Land is defined in Nigeria in almost the same light to include the land itself and everything attached to itself. Note that in defining land in Nigeria, it excludes all resources by virtue of the 1999 Constitution which are vested in the federal government of Nigeria to be held in trust for the benefit of all Nigerian citizens.

Trespass to land, also called Trespass quare clausum fregit, is committed where the defendant, without lawful justification, enters upon land in the possession of the plaintiff, or remains upon such land, or directly places or projects any material object upon such land.

It is an injury to or interference with possessory right or interest in land. It comprises any intentional or unintentional act which directly interferes with the plaintiff’s exclusive possession of land. It is further defined as a wrong committed against a person who is in exclusive possession of the land trespassed on.

Trespass to land was originally conceived as a remedy against forcible and aggressive entry onto the land of other, but it was later extended to include any wrongful entry whether forcible or not, as well as merely remaining on the land unlawfully, or wrongfully placing a material object on it. Trespass to land is actionable per se without proof of damage.

As pointed out in the definition, trespass protects and is rooted in exclusive possession. The plaintiff in such a matter would not be required to prove that he has the right to or he is entitled to exclusive possession. Considering that this tort protects possession and not ownership, the owners of land may be found liable for trespass.

In Universal Vulcanizing V. Ijesha United Trading and Transport Company, it was held that when a land which was trespassed on or is in the lawful and exclusive possession of another person, a suit in trespass is not maintainable by the owner of the land who has no right to immediate possession as at the time of the trespass.

In the same vein, a person who is entitled to or ha a right of possession or is in actual possession of a particular parcel of land cannot be liable for trespass on same land. In Eze V. Obiefuna, the Supreme Court said that trespass to land consists of the slightest disturbance of the possession of land by a person who cannot show a better right to possession.

The right to acquire and own land or immovable property anywhere in Nigeria is a fundamental right guaranteed in the Nigerian constitution. As a result of the right, a person is entitled to have and enjoy quiet possession of his land, and any interference with land in the possession of another is a trespass to land.

Essentially, trespass to land involves;

1. Any direct interference
2. With land
3. In the possession of another person

As a general rule, trespass is usually a direct rather than a consequential interference with another person’s land. Any “indirect trespass” to a person’s land are often in the form of nuisance, especially private nuisance and the right of action is usually in the tort of nuisance. While any indirect interference which affects the general public is a public nuisance.

In the case of Entick V. Carrington, it was held that every invasion of private property, be it so minute is a trespass. Apart from entering into land, anything done that interferes with a person’s right to possession amounts to trespass. The lack of motive on the part of the trespasser will not vitiate an action for trespass, thus it will not be a defence that he was trespassing or that he honestly believed that the property/premises belonged to him or that he did not know that by entering into the land, he would be interfering with the rights of another person.

In Basely V. Clarkson, the defendant was mowing his lawn when he innocently and unintentionally entered into his adjoining neighbour’s land by mistake and he cut the grass thinking he was still on his land. He tendered some money in satisfaction of the interference. At the suit of the plaintiff for trespass and damages, the court held that the defendant had committed trespass to land and mistake was not a defence.

NB: When a person abuses the purpose for which he has been permitted to be on a land, he becomes a trespasser ab initio. Thus, where a right to enter is abused it may be a trespass in Harrison v. Duke of Rutland, the plaintiff entered the defendant’s land and interrupted a grouse shooting party. Its entry was held to be a trespass to land.

In Hickman v. Maisey, the defendant were making notes on a highway of the form of the race horses, being tried out on an adjoining land, held: that the writing of marks on the highway was an act of trespass since the proper use of a highway is for passing and re-passing.

NB: Once the plaintiff is able to establish that the defendant unlawfully entered into his land or that while on the land he did things which was outside that which was lawful for him to do, he would be entitled to damages even though he has suffered no loss or injury.

Where trespass may be committed

Trespass to land may be committed in so many ways;

1. Airspace above the land to extent reasonable for user
2. Earth surface or land surface; and
3. Beneath the earth surface, or underground such as by tunnelling or mining of mineral resources, etc.

Trespass to the airspace above land

As a general rule, entry below the surface of the land, or entry on the airspace, if it takes place within the area of ordinary use is trespass.

In Kelsen v. Imperial Tobacco Co. Ltd, an advertisement signboard fixed by the defendant company on an adjacent promises projected into the plaintiff’s airspace a few feet signboard into his airspace, the court held: that there was trespass. The invasion of the airspace by the advertising sign was a trespass. The plaintiff was entitled to an injunction for its reMoval, even though the act complained of resulted in no harm.

In Bernstein v. Skyviews and General Ltd, the defendant company was taking aerial photographs from about 650 feet, in the air crossing the plaintiff’s land in the air in order to do so. The plaintiff claimed damages for trespass to his airspace and for invasion of his privacy. Groffit J held that the defendants were not liable. An owner at common law had right above his land to such height in the sky as was reasonably necessary for the ordinary use and enjoyment of the land and structures on it. The plane in this case which flew at aheight of 630 feet did not interfere with reasonable use of the land. It was too high to be trespassing.

Key points

• Liability does not arise in respect of flights which are at a reasonable height in the air, and which comply with statutory requirements. However, liability in trespass or nuisance may arise from other wrongful activity carried on, by or from an aircraft, for instance, deliberate emission of smoke that pollutes the plaintiff’s land.
• Exclusive possession in trespass to land means actual or constructive possession. Mere physical presence/mere usage of control of land does not translate to possession, thus a servant in a house cannot sue for trespass neither can a visitor on a premises.
• A person cannot bring an action on the basis of de-factor possession. Thus, the plaintiff will not be able to bring on action for trespass that occurred before he got into possession of the land.
• However, a person who is entitled to some interest on the land will be able to sue for trespass or interference by the trespassers.
• For instance, a person who has a right or has been given a right to enjoy an easement or to take something from the land of another will be able to bring an action against trespassers who took to interfere with his interest on the land.
• It should be noted also that a person who has no title over land but who has been put in possession can bring an action against any trespass on the land as possession without a legal title is sufficient to sustain an action, however he will not be able to bring an action against the owner of the land or any person that shows a better title or stronger claim to the land. See the cases of Olaniyan v. Fatoki and Oladipo v. NGS B
• It will not be defence for the defendant to state that there is a person with a better title than the plaintiff who has mere possession and no title except he acts with the authority of such a person.
• Interference need not be substantial, it will be sufficient if it is a mere interference with the plaintiff’s right to possession. SeeUnakanba v. Eze.
• Whatever the form of interference, it must be direct and immediate. Intention is essential in determining whether there is a trespass. Where there is an intention to act, it is inconsequential whether the plaintiff was acting under a no nest mistake.

Examples of trespass to land

Any unauthorised entry on another person’s land is a trespass, in the absence of lawful justification. Trespass to land may take innumerable forms. Some of them include;

1. The slightest entry of land.
2. Learning on a fence of a land.
3. Refusing to leave and remaining on land after permission is revoked.
4. Putting anything on land or projecting anything above land.
5. Walking on or crossing another person’s land.
6. Sitting on another person’s wall.
7. Using a private landed property as a shortcut to get to another place.
8. Driving animals into another person’s land.
9. Throwing refuse or anything into another person’s land.
10. Projecting any object into the soil of another person’s land or immediate airspace.

The court in Entick v. Carrington said “Every invasion of private property, be it ever so minute is a trespass though there be no damage”. In McPhil v. Persons Names Unknown: Some persons, whose identity were unknown moved into the plaintiff’s property and started squatting there. The plaintiff brought an action for trespass to eject them. The court held that there was trespass.

The elements of trespass to land

The elements of trespass to land are;

1. That there is or was a direct entry on the land, remaining on, placing or projecting any object on or above the land.
2. That the plaintiff has possession or right to immediate possession of the land.
3. That the entry is without lawful justification.

Various forms of trespass

1. Trespass by wrongful entry on land

Any wrongful entry into another person’s land is a trespass. Entry is by far the commonest form of trespass. The commit trespass in this matter, the slightest overstepping or entry into another person’s land without more is sufficient.

Lord Camoen CJ stated the rule in Entick v. Carrington, “Every invasion of property, be it ever so minute is a trespass.”

Therefore, when a person enters another person’s land, such as by walking, loitering, sitting, driving or by other means enter into it, he commits trespass to land, unless he has lawful justification. It is not a defence for a trespass to plead that he entered it, in the honest but mistaken belief that he was still within the boundary of his own land, or that he thought he had a right of entry on the land, or that the place was a public place or resort, or that he had acted under a mistake of fact or law. This is because the principle of law is that mistake is no excuse. However, where there is a trespass by mistake and no harm is caused to the property, the plaintiff would most likely only get an award of nominal damages.

In Basely v. Clarkson, the defendant was mowing the lawn of his land, crossed into the adjoining property honestly believing that he was still within in his own land. The court held that there was trespass and he was liable. Mistake is not a defence.

However, when an entry is accidental, such as where a motor vehicle skids into a land abutting a public highway, a claim for damages in trespass to land may not succeed, but a claim may succeed in negligence. Also, where entry is involuntary such as when a person is unwillingly pushed or carried into a premises, it is the 3rd party that did the pushing or the carrying that would be liable for the trespass to land.

NB: KODILINYE’S view however, is that an intentional trespasser is strictly liable for all damages caused by his presence on the land, whether such damage is done wilfully or accidentally. Thus, he will be liable not only for such deliberate act, but also for accidental damage.

2. Trespass by remaining on another person's land

A person is liable in trespass, if after entering a land lawfully, he remains in it after his purpose or right of entry has been rented, or come to an end.

Thus, for example, a person who pays for admission to a cinema, and refuses to leave at the end of the show, becomes a trespasser. To refuse or omit to leave the plaintiff’s land is as much as trespass as to enter originally without right.

In Balogun v. Alakija, the defendant had engaged the plaintiff to collect rents for him. One night, the defendant called at the plaintiff’s house for a statement of account of rents collected. An argument ensued, and the plaintiff requested the defendant to leave. The defendant did not leave until about 15 minutes later. The plaintiff sued for trespass.

DE LESTANG CJ delivering the judgment of the court, held that the defendant was liable in trespass because of his failure to leave when he was asked to.

In McPhil v. Persons Unknown, persons moved into the plaintiff’s property and started squatting on the premises. The plaintiff went to court for an order to eject them. The squatters contended that they were entitled to proper notices and due process of law before eviction. On appeal, the English Court of Appeal held that the squatters were trespassers and the plaintiff was entitled to an order for ejectment specifying a date within which they should vacate the land. In this case, LORD DENNING MR stated the law thus:

When a tenancy has come to an end, the land lord is not entitled to take possession except by an order of the court, and on making the order the court has the power to fix the date for possession. The date is a matter for the discretion of the court, but in the ordinary way, where the defendant has no statutory authority to remain, the usual order is from 4-6 weeks.

Generally, the legal position of a trespasser is not much. In Aboyeji v. Momoh, the Supreme Court re-affirmed that a trespasser in possession does not have a legal or equitable possession. However, such wrongful possession may mature into ownership, if possession continues for a period of 12 years and confer title on the trespasser.

3. Trespass by placing things on the land

It is trespass to place any material object on the land of another, or to bring any object into direct physical contact with another’s land without lawful justification. For example, to fire a gun into the soil to drive a nail into or place a ladder against a wall, to remove a door or window from a house, to encourage a dog to enter a premise, or to blow noxious gas into a house.

It is essential for liability in trespass that the placing or projecting of the object on to the plaintiff’s land should be direct. If it is indirect, there can be no liability on trespass, but only in nuisance, in which case the plaintiff must prove damages. Thus for instance, to plant a tree on the plaintiff’s land is a direct invasion and therefore, a trespass but to allow the roots of a tree to spread from adjacent land to that of the plaintiff is indirect and therefore a nuisance, to throw stones into neighbouring land in trespass, but to allow a stance to become rumous and to collapse on such land is only nuisance.

The distinction between direct and indirect invasion of land is illustrated by the case of Onasanya v. Emmanuel. In that case, the plaintiff complained that the defendant, in laying the foundation of a building had encroached by about 10 feet upon land in the plaintiff’s possession. He also complained that the defendant had thrown water and refuse on to his land, and had allowed excreta to escape from a slaga on his premises. OMDULU THOMAS J. held that the throwing of water and refuse on the plaintiff’s island were direct acts and thus, mounted to trespass, but the escape of excreta was indirect invasion and therefore not trespass but nuisance.

In Gregory v. Piper, the defendant placed a heap of garbage near the plaintiff’s land which dried up and rolled into the plaintiff’s land by means of natural forces. It was held that there was trespass by the defendant. The defendant ought to have known that this would happen.

Trespass ab initio

Trespass ab initio means trespass from the beginning. Under law, certain persons have the right to enter premises in the course of the lawful discharge of their duties. Examples include the police, a postman delivering letters, consumer goods inspector visiting manufacturing premises, electricity and telecoms personnel in the exercise of their lawful duties, firemen on inspection of safety gadgets on premises, etcetera.

The doctrine of trespass ab initio means that when a person enters the landed property of another person by authority of law, which is distinct from permission granted by a plaintiff, and the person subsequently misbehaves or abuses his right of entry by stealing, damaging, destroying, assaulting, breaching the peace etc.

The abuse relates back to his time of entry (i.e. from the beginning) and he becomes by operation of the law, a trespasser ab initio. In other words, he becomes a trespasser from the beginning, from the moment he entered. Under this doctrine, the defendant is treated as if he had been a trespasser from the moment he entered the land, so that damages will be assessed on the basis of his entire conduct and not merely his subsequent wrongful act was tortious.

Exceptions to trespass ab initio

Where the authority, licence, permission, or invitation to enter was made by the person on possession to a defendant or trespasser, the doctrine of trespass ab initio does not apply, because the defendant entered wrongfully as an invitee, license or upon an invitation to treat, etc.

In the Six Carpenters Case, the six defendants who were carpenters, entered a tavern, a public place by virtue of the nature of its business, and signboard outside which an institution to the public to treat. They ate and drank and paid for the first service. Upon a second service, they refuse to pay on request. The proprietor sued to recover damages. The court held that the carpenters entered the promises on an invitation extended by the proprietor to the public. They were not trespassers from the beginning. In this case, the cart explained the position of the law as follows:

When an entry, authority or license is given to anyone in law, and he abuses it, he shall be a trespasser ab initio” but not where the entry, authority or license is given by the party.

Furthermore, an omission cannot make a party a trespasser from the beginning. Therefore, the failure, inability or omission of the carpenters to pay their bill cannot make them trespassers from the beginning.

NB: Where a tenant ‘holds over’ or overstays in a premises he has life or otherwise remains in possession after his tenancy has ended, or he remains in possession after a proper notice to quit served on him has expired, he does not thereby become a trespasser, or a trespasser ab initio. His position is different in law.

The Residential and recovery of premises law of the various states protects a tenant who holds over the premises he has let under the law, the proper course of action open to a land lord or plaintiff after the expiration of the requisite notices under law, is to sue for recovery of possession, and obtain an order for ejection. In addition to the order for possession, the landlord or his agent may claim damages for any harm done to the property. He is also entitled to claim mesne profit, which is intermediate profit, money or compensation, ‘or rent’ payable by a tenant for use of his premises until the day he vacates, i.e. until the day he gives up on possession of such premises.

Continuing trespass

Remaining on a land, or leaving anything on a land after an initial trespass, is a continuing trespass, which act gives a cause of action and right to claim damages ‘de die in diem’ (from day to day) until the trespass is discontinued. Therefore, whenever a person wrongfully enters another’s land, without lawful exercise, he is liable for the initial entry, and additionally, for the neglect, failure and or refural to leave the land or remove his things from the land. So long as the trespasser, or his things remain on the land, there is a continuing trespass taking place which gives right to the plaintiff to sue from day to day, and claim damages from day to day until the trespass is abated by removal of the person or thing from the land. A trespass may therefore be brief and temporary or continue for some period of time.

In Lajide v. Oyelaran, the defendant laid the foundation of a building on the plaintiff’s land which he failed to remove. The High Court held that the defendant was liable for a continuing trespass on the plaintiff’s land and the fact that the defendant had stopped going to the land is not a defence to an action for continuing trespass.

In Korskier v. Goodman Ltd, the defendant building contractor had permission from the possessor of a building to leave rubble on the land while renovating the premises. He failed to remove the bubble after the permission was withdrawn. Action was brought by a tenant on the premises to make him abate the continuing trespass. It was held that the failure fo the contractor to remove the rubble after the expiration of the license to keep the rubble on the land was a trespass.

NB: However, the consequences of a trespass which has ended are not regarded as a continuing trespass. Therefore, where a defendant goes into a plaintiff’s land and makes a trench, as soon as he leaves the land, the act of trespass terminates, if he never comes back to the land again. In such circumstances, a trespasses will be liable only for that entry, but his failure to fill up the trench will be viewed as a nuisance but not as a continuing trespass.

Interference with possession

It is fundamental that the law of trespass is designed to protect possession of land rather than ownership. Thus, the owner of land who has let the land to a tenant, and thereby given up possession to the tenant for the duration of the tenancy cannot maintain an action in trespass during that period unless he can show that the trespass has caused or will cause permanent damage to the property and so affect the value of his reversionary interest.

Possession here means de facto i.e. actual possession. Thus, protection is extended not only to those who are lawfully in possession (such as owners on fee simple, holders of statutory or customary rights of occupancy or tenants or sub-tenants under valid leases or sub-leases) but also to persons whose possession is wrongful and who have no legal equitable or customary right to it. The principle was explained in Amakor v. Obiefuna by Fatoyi – Williams JSC thus:

It is trite law that trespass to land is actionable at the suit of the person in possession of the land. The person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because the exclusive possession of the land gives the person in such possession. The right to retain it to undisturbed enjoyment of it against all wrong doers except a person who could establishe a better title.

Therefore, anyone (other than the true owner) who disturbs his possession of the land, can be sued in trespass and in such action, it is no answer for the defendant to show that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession.

Accordingly, even a plaintiff who is himself a trespasser can, if in de facto possession, maintain an action in trespass against a defendant who subsequently enters the land, unless the latter can show that he had a better title or a better right to possession than the plaintiff.

An original trespasser… can, if he is in exclusive possession of the land, maintain an action in trespass against a later trespasser, whose possession, whether taken by force or not would be clearly adverse to that of the original trespasser.

Persons who may sue for trespass

Any person who has title or right to possession, whether temporary or long term, may sue to protect sum right to possession from interference by any trespasser. Ordinary, possession means physical control of land or landed property. Possession is often evidence of ownership. It includes physical occupation, or occupation through servants, agents, licenses, tenants etc.

Thus, the persons who may sue for trespass include;

1. An owner of landed property.
2. A person claiming in trust for the owner such as a caretaker, agent, attorney, manager, trustee, person in loco parentis, servant, etcetera.
3. Tenants.
4. A holder of reversionary interest.
5. A sub-tenant living under a valid sub lease.
6. A purchaser who has not yet taken possession.
7. A trespasser or adverse possessor whose trespass has matured into ownership.

Proof of possession

What is required to maintain an action for trespass to land, is actual possession. Possession in itself, is a sufficient right to maintain a claim for trespass to land.

In Ekpan v. Uyo, ObasekiJSC defined possession thus: “Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant.”

Therefore, a person is in possession of a landed property when he:

1. Has physical possession or custody; or
2. Has some form of control over the land, through another person, for instance a caretaker, tenant or other agent.

In an action for trespass, the onus is on the plaintiff to show that he was in de facto possession (i.e. possession in fact) of the land at the material time. In Wuta-Ofiei v. Danquah, the judicial committee of the Privy Council held that in order to establish possession, it was not necessary for a claimant to take some active steps in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacand and unenclosed land which indicates possession must vary with the type of land which can be done on the land to indicate possession moreover the slightest amount of possession would be sufficient to entitle the person who is so in possession to recover as against a mere trespasser.

Where both the plaintiff and defendant claim to be in possession of land, the court will resolve the doubt in favour of the one who can prove title, that is the one who has “right to possess”.

As IDIGBE J stated in Efana v. Adekunle;

If there is a dispute as to which of two persons is in possession, the presumption of law is that the person having title to the land is in possession. In the well-known case of Jones v. Chapman, Mauce J, observed that… if there are two persons in a field each assessing that the field is his, and each doing something in assertion of the right of possession, and … if the question is, which of those two is in actual possession, the answer is that the persons who has the title is in possession and the other is a trespass.

Furthermore, a plaintiff in actual possession of land cannot maintain an action on trespass against one who can show that he has a better title or right to possession i.e. it is a defence to an action for trespass that the defendant has a right to possession of the land, or acted under authority of the person having such right.

However, it is a well-settled rule that a defendant who is sued for trespass to land cannot plead the jus tertii, i.e. he cannot justify his trespass by showing that a 3rd party has a better title or right to possession than the plaintiff who is in defacto possession, unless the defendant entered under the authority or as the agent of the 3rd party.

Trespass by relation

Under the doctrine of “trespass by relation”, a person having the right to immediate possession who enters the land in the exercise of that right, is deemed by legal fiction to have been in possession from the time his right of entry occurred, so that he can sue for any trespass committed during the period he was in fact out of possession. Thus, a lessor who is entitled to re-enter after the termination of the lease may, after re- entry, sue in respect of any trespass committed between the time the lease determined and his re-entry.

Trespass between co-owners

Since both joint tenants and tenants in common of land enjoy “unity of possession”, one joint tenant or tenant in common cannot maintain an action in trespass against his co- tenant except where the latter has excluded or ousted the plaintiff from the land of committed destruction waste of common property. The effect of unity of possession is that each co-owner is entitled to the possession of the whole property jointly or in common with his fellows, are each is entitled to his share of the vents and profits of the property. If any tenant takes more than his proper share of the profits, he does not commit any tort against his co-tenants and their only remedy is an action to an account.

Remedies for trespass to land

Where there is an act of trespass to land, several remedies are available to a plaintiff. A plaintiff may pursue the remedy that is most appropriate having regard to the circumstances, of the trespass. The remedies for trespass to land include:

1. Action for title and recovery of land.
2. Order for recovery of possession.
3. Damages.
4. Injunction.
5. Ejection of the trespasser and his properties by self-help.
6. Re-entry and dedence of property.
7. Distress or seizure of property in lien of payment of damages.
8. Claim of mes ne profit.
9. Putting up a noticed warning trespassers to keep off etc.

Action for title and recovery of land

This is an action by an owner to recover land from another person who is claiming title to the land.

Order for recovery of possession

This is an action for the ejection of a trespasser, or a tenant who has overstayed after his tenancy has been properly determined by relevant quit notices. Where one person for instance, wrongfully enters another person’s land erects any structure thereon, starts squatting there, takes unlawful possession, outs the plaintiff from possession, remains therein, refuses or fails to vacate the land, etc.

A plaintiff who is:

1. In actual possession or
2. Has an immediate right to possession of the land; or
3. Can show that the trespass is, or has caused damage to the land or that it will adversely affect the value of his reversionary interest, may bring an action against the trespasser for recovery of possession of the land by establishing that he is the one that has title, or that he has a better title, or right to possession than the defendant who is trespassing.

In McPhail v. Persons Unknown, the defendant brought an action for recovery of possession against trespassers whose names were unknown that were squatting on the land. The English Court of Appeal held that the plaintiff was entitled to an order for recovery of possession and ejection of the trespassers from the property.

In Adeyemi v. John, the plaintiff sued to enable hiom to take possession of land he had purchased from the defendant’s mortgage. The cart rejected the defendant’s contention that no action for recovery lay as the plaintiff had never previously been in possession. It was held that the plaintiff had a right to immediate possession and in order for possession would issue.

Damages

A plaintiff may claim damages from a defendant for harm done to his land as a result of trespass. Damages may be nominal, compensatory etc. A plaintiff is entitled to full restitution for his loss. Generally, the depreciation in the selling value of the property is an adequate measure for destruction, or damage done to land and buildings thereon, expecting fair wear and tear.

The plaintiff may also recover such specific damages, for instance, loss of any item on the site, damage to structures thereon, business profits, cost of reinstatement, repairs, etc.

In DUNN v. LARGE, the defendant ejected the plaintiff from an inn, closed it down and sent the custom elsewhere; the plaintiff sued and got judgment for trespass to the premises but was refused an award for the loss of sales for that period because he did not specially plead it.

In BISNEY V. SWANSTON, the defendant put a trade on the plaintiff’s case ground, so as to interfere with the plaintiff’s business as much as possible. Damages were awarded for loss of business. Aggravated damages were also awarded against the defendant for intentionally interfering with the plaintiff’s land and business with malice and spite.

Injunction

A plaintiff may with a without claiming and proving damages pray to an order of injunction where trespass is established, to restrain further acts of trespass. However, in an appropriate case, a plaintiff may bring an action claiming per all three, remedies that is to say; a plaintiff may claim for recovery of possession, award of damages, injunction and all may be granted as the case may be.

Ejection by self help

Self help is the use of physical force by an owner of a property or thing to claim his property, title or right. It is an extrajudicial remedy. It is highly frowned at by the courts, for it is a case of taking the laws into one’s hands.

Defences for trespass to land

1. Possession of better title or title to the land. A defendant may show that he has title to the land or that he has a better title than the plaintiff who brought the action, and that he has a high right to immediate possession of the land.
2. Acting under the authority of a person who has title. This is known as just tertii, that is the better title of a 3rd party primarily, just tertii is to disallow persons who have no title from initiating action to take possession from a defendant who also has no title provided that the defendant is claiming for, on behalf or through such 3rd party who has better title. In Oguche v. Iliyasu, Jones SPJ explained the law thus: “It is a defence to an action for trespass that the defendant has a right to possession of the land, or acted under who authority of the person having such right”.
3. Entry to abate a nuisance. A defendant may enter a neighb0uring land to abate a nuisance which is interfering with the lawful use and enjoyment of his land. He may however no commit any wrong in the process of doing so, other than the abatement of the nuisance.
4. Entry to retake the chattel. A defendant may enter a plaintiff’s land to retake a property or chattel owned by the defendant, provided that such chattel was placed on the land by the plaintiff, or occupier of the land, or possibly by a 3rd party.
5. Entry by consent, licence, or permission of the occupier. Entry by the consent, licence or permission of the occupiers, express or implied may be pleaded. According to Pollock, a license is “that consent which, without passing interest in the property to which it relates, merely prevents the act for which consent is given from being wrongful.” Where a person gives consent to a trespasser to build a house on his land, then he was waived his right, are cannot turn would to sue for trespass later. In Adebajo v. Brown, the defendant appellant in building his house encroached on the plaintiff respondent’s land. Initially, the encroachment was a trespass on the respondent’s land. However, the trespass was condoned by the respondent who allowed the appellant to continue with the construction after an agreement was reached between the parties for the surrender of that particular plot to the appellant. The defence of consent by the defendant appellant succeeded.
6. Statutory right of entry. This is an entry justified by law. The category of persons who have lawful authority to enter a premises in discharge of their duties are several. The police have specific powers of entry under the criminal law, such as to make arrest or to search premises in the course of investigations. Therefore, a claim for trespass to land may not succeed and there may be no liability where it involves the police. Public health fire inspector also havespecific powers to enter certain premises in the lawful discharge of their duties. In Cope v. Sharpe, the defendant, wentonthe adjoining land of the plaintiff and made a firebreak by cutting a path through the gross, in order to prevent the spread of a burning fine on his own land. The plaintiff sued for trespass to his land. The court held that the defendant was not liable for trespass to land and that the defendant had acted reasonably in the circumstances by taking steps to abate the danger posed by spreading fire in the protection of his property.
7. Acquiesance and latches. Acquiescence and latches is negligence, inactivity, silence, indolence, laxity or unreasonable delay in asserting, or enforcing one’s right. As a general rule, after 12yrs a trespasser’s adverse possession mattires into ownership or title to the land. In SMITH V. CLAY, the court explained the position of the law times; “A court of equity has always refused its aid to state demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but convenience, good faith, and reasonable diligence.”