TRESPASS TO LAND

Trespass

Trespass is an infraction of possessory rights or possession. Possessory right is a legal

right to use and occupy a land. The slightest possession in a Plaintiff entitles him to
maintain an action for trespass if his adverse party is unable to show a better title. See
Falomo v Onakanmi [2006] All FWLR (Pt. 298) 1242 CA @ p. 246. Trespass is
actionable per se and the slightest unlawful interference consummates the tort. See
Enilobo v Adegbesan [2001] 11 NWLR (Pt. 698) 611 at 621.

A person who is not in possession cannot sue for trespass because the tort of trespass is
rooted on exclusive possession. See Eneh v Ozor [2016] 16 NWLR (Pt. 1538) 219 at
240. Exclusive possession gives the possessor, right of undisturbed enjoyment against all
persons except a person with a better title. Even a person in adverse possession (a
trespasser) can maintain an action in trespass against any person or other trespassers other
than a person with a better title See Ogbimi v Niger Construction Company [2006] All
FWLR (Pt. 317) 390 at 411; Iseru v Catholic Bishop of Warri Diocese [1997] 3
NWLR (Pt. 495) 517. The tort of trespass only arises where there is interference with
possession of the Plaintiff which is not permitted, consented to or allowed by the person
in possession or entitled to possession.

Definition of Land & Trespass to Land

Land includes not only the soil itself, but things under it, any building that is fixed
to the surface and such airspace above as is required for the usage and enjoyment
of the land and the structures on it.

Trespass to land is defined as directly entering upon the land, or remaining upon
land, or placing or projecting any object upon land in the possession of the Plaintiff
without lawful justification. See Oyewusi v Olagbam [2018] 14 NWLR (Pt.
1639) 297. Trespass to land is an invasion by another person on the land in possession of
the Plaintiff. See Gbemisola v Bolarinwa [2014] 9 NWLR (Pt. 1411) 1 at p. 26. It is a
wrongful entry into the land in actual or constructive possession of another. In law, the
owner of a land is entitled to exclusive and peaceable possession without interference or
any adverse claim. In Olagunju v Yahaya [2005] All FWLR (Pt. 247) 1466, it was held
that trespass is a wrong committed against a person who is in exclusive possession of the
land trespassed unto.
In relation to trespass to land, for the plaintiff to succeed he must show that he is or was
in possession at the material time of the alleged trespass. Possession could either be
actual or constructive. It is actual possession where the Plaintiff is directly exercising or
performing acts of possession over and above the land and it is constructive where the
Plaintiff or the owner has legal authority over it and manifests intention to exert or
exercise dominion or control through an agent or a third party. See Chiadi v Aggo [2018]
2 NWLR (Pt. 1603) 175 at 219. Therefore, a claim in trespass to land is actionable only
at the instance of the person in possession at the time of the trespass and presupposes that
the Plaintiff is or was in possession at the time the trespass occurred. See Aromire v
Awoyemi [1972] NSCC 113

A person would be adjudged a trespasser to land if it is established that the Plaintiff has a
better title. See Ogundipe v Adenuga [2006] All FWLR (Pt. 336) at 266 at 279. A
trespasser in possession cannot sue one with a better title nor recover damages. His action
will fail. See Monkom v Odili [2010] 2 NWLR (Pt. 1179) 419; Kyari v Alkali [2001]
11 NWLR (Pt. 724) 412.

A person who is the owner of a land and in possession or has possessory rights can sue
for trespass against any one on the land without lawful justification or permission. See
Onagoruwa v Akinremi [2001] 13 NWLR (Pt. 729) 38. A trespasser does not by his
unlawful or adverse possession acquire lawful possession or title of the land. See Issac v
Imasuen [2016] 7 NWLR (Pt.1511) 250.

The nature and principles of trespass to land

Trespass is a violation or breach of possessory rights and trespass to land is an

infringement on exclusive possession. Trespass to land constitutes an unauthorized
and direct breach of the boundaries of another’s land. Any disturbance to the
possession of and by a person who cannot show a better right to possession
constitutes trespass in law. Intention is not required to consummate the tortious act
provided that the act constituting the trespass is violational and the consequent
trespass is direct and immediate. It is enough that the right of the owner is invaded.
See Fagunwa v Adibi [2004] 17 NWLR (Pt. 903) 544. Ignorance or mistaken
identity cannot be pleaded as a defence. The tort of trespass to land is
consummated upon the invasion of or intrusion on or interference with the right of
exclusive possession of the Plaintiff. See Anyanwu v Uzowuaka [2009] 3 NWLR
(Pt. 1159) 445.
Trespass is an unlawful entry into land in actual or constructive possession of
another. See Eneh v Ozor [2016] 16 NWLR (pt. 1538) 219. It is only a person in
possession of land that can sue for trespass. The corollary is that a person not in
possession of land cannot sue for trespass. See Akibu v Azeez [2003] 5 NWLR
(Pt. 814 643)

In an action for trespass to land, for the Plaintiff to succeed, he must establish three
facts or issues:

(a) That the subject matter of his claim is land

(b) That he was or is in actual or constructive possession of the land at the time
the trespass occurred.
(c) That the Defendant trespassed upon the land.

In itemized form, the tort of trespass is committed in the following circumstances:

i. Any unlawful entry on another’s land.

ii. Remaining on the land unlawfully.
iii. Unlawfully placing a material or projecting any object on the land.

Acts/Forms of Trespass

A. Direct Interference or Entry. This consists of entering upon the land

without permission or let. For instance, putting a foot into another’s land
unlawfully. An entry is unlawful where the Defendant enters the land or
premises of the Plaintiff without permission or procures another to do so.
The fact that the entry is harmless or did not occasion any injury to the
Plaintiff is immaterial because trespass in itself is actionable per se, that is,
without proof of damage. See Dabira v Adelaja [1973] 11 CCHCJ 97;
Ashby v White [1703] 87 ER 810. Every invasion of property is a trespass.
See Entick v Carrington [1765] 19 St. Tr. 1030. Where the Defendant’s
entry is deliberate or intentional he will be held liable in trespass and it is not
a defence that he mistook the land as his own or that he believed that he had
a right of entry or that he acted under a mistake of fact or that the land was a
public land. See Basely v Clarkson [1681] 82 ER 565; Hewlitt v
Bickerton [1947] CLC 10504.
The intent required here or the intentional act sufficient to consummate the tort
is NOT the intent to do harm or cause injury or commit trespass but the intent to
act in relation to the land. It therefore means that where the Defendant commits
trespass under a mistaken belief, he will still be liable. Furthermore, it is not
necessary for the Defendant to have a purpose or reason for trespassing or even
the intent to deliberately intrude on the Plaintiff’s land to consummate the tort
of trespass to land. It is enough if the Defendant intended the act itself that
constitutes the trespass. It therefore means that trespass to land can be
committed in ignorance. In Pegg v Gray [1954] 240 N.C. 548; 82 S. E. 2d 757
and 33 N.C.L. Rev. 134, the Defendant kept a pack of foxhounds and ran them
in fox hunts. Foxes frequently ran across the crop lands and grazing lands of the
Plaintiffs and damaged crops. The Defendant was held liable in trespass.

An intentional trespasser is liable for any damage caused by his trespass

whether such damage is done willfully or accidentally. The corollary is that if
entry is accidental or involuntary, that is, occurred independent of the exercise
of the freewill of the Defendant, the Defendant will not be held liable in
trespass but a case of negligence can be made out. In Nickles v Melbourne
Corporation [1938] 59 CLR 219, the Defendant while driving his car skidded
off the road and entered into the Plaintiff’s compound. He was not held liable in
trespass. In Smith v Stone [1647] 82 ER 533, the Defendant was maliciously
thrown onto the Plaintiff’s land by a third party and was not held liable in
trespass.

B. Trespass by remaining on land. Where a Defendant entered upon the

Plaintiff’s land with permission or license or for a specified period and same
is withdrawn or expires or the time elapses, and he is asked to leave the land
but he refuses and remains on the land, then it will amount to trespass. In
other words, a person who enters another’s land lawfully becomes a
trespasser after his right of entry expires or comes to an end either by
efluxion of time, or withdrawal of permission or license or upon a lawful or
justified request to leave and he refuses. For example a person who pays for
admission to a cinema and thus enters lawfully, will become a trespasser if
he fails to leave at the end of the show or his licence to be on the premises is
withdrawn on account of misconduct and he ignores or resists a demand to
get out or leave. See Wood v Leadbitter [1843] 60 All ER Rep. 190.
In Balogun v Alakija [1963] 2 All NLR 175, B was employed by A as a rent
collector. One night, A called at B’s house to demand an account of rent. B
allowed A entry but shortly after an argument ensued and B asked A to leave. A
became abusive, assaulted B and refused to leave until about 15 minutes after
the demand to leave was made. The court held A to be a trespasser having
failed to leave within a reasonable after the demand was made.

N/B A Licensee becomes a trespasser if he fails to leave within a reasonable

time after the expiration of the license or after the accomplishment of the
purpose of grant of the license whether or not the Licensor demands him to
leave or not. This position is different with respect to Landlord-Tenant
relationships or Tenancy Law. A tenant who holds over property or remains on
a property at the end or expiration of his tenancy does not automatically become
a trespasser on the property. Until the Landlord issues him with the requisite or
statutory notices and he refuses to deliver up possession and quit the premises,
he will not become a trespasser. See Hey v Moorhouse [1839] 133 ER 20 and
Ogbakumanwu v Chiabolo [1950] 19 NLR 107.

C. Trespass by placing things on land. Placing things or objects on the

Plaintiff’s land is another form of trespass. Where a Defendant places any
objects example rubbish on the Plaintiff’s land without permission, it is
trespass. In Jones v Stones [1999] 1 WLR 1739, placing flower pots and an
oil tank on a boundary wall amounted to trespass. In Pickering v Rudd
[1815] 171 ER 70 to fire a gun into the soil was held to be a trespass. In
Simpson v Weber [1925] 133 LT 46 it was held that to drive a nail into a
wall or place a ladder against a wall was a trespass. In McDonald v
Associated Fuels Ltd. [1954] 3 DLR 775 it was that to blow a noxious gas
into a house was a trespass.

It is essential that to consummate this kind of tort and thus attract liability that
the placing or projecting of the object on the Plaintiff’s land should be direct.
The corollary is that if it is indirect, there can be no liability in trespass but there
will be liability in nuisance wherein the Plaintiff must prove damage. In Smith
v Giddy [1904] 2 KB 488, the Defendant was not held liable in trespass for
allowing the roots of a tree on an adjacent land to spread to the Plaintiff’s land
but was held liable in nuisance. For example, to throw stones onto the
Plaintiff’s land is trespass but to allow a wall fence become ruinous and
collapse unto the Plaintiff’s land is only a nuisance.

In Onasanya v Emmanuel [1973] 4 CCHCJ 1477, a difference was made

between direct and indirect invasion. Here, the Plaintiff complained that the
Defendant in laying the foundations of a building had encroached by about 10
feet upon the land in the Plaintiff’s possession. He also complained that the
Defendant threw water and refuses onto his land, and had allowed excreta from
a septic onto his premises. It was held that the throwing of water and refuse
onto the Plaintiff’s land were direct acts and thus amounted to trespass but that
the escape of excreta was an indirect invasion and therefore not trespass but
nuisance.

Continuing Trespass

This is a form of trespass that connotes a permanent invasion or encroachment.

Continuing trespass refers to cases where the wrongful act remains unabated to
the detriment of the Defendant. It is trite law that in cases of continuing
trespass, successive actions can be maintained in relation to each continuous act
of trespass. See Dosumu v NNPC [2013] LPELR- 20655. Where a Defendant
enters the Plaintiff’s land and refuses to leave and remains thereon, or where he
places an object thereon and refuses to remove it, it would amount to continuing
trespass so long as he or the object remains on the land until the trespass abates
by the removal of the object or person.

In Asaboro v Ocean Oil Corp. Nig. Ltd. [2017] 7 NWLR (Pt. 1563) 42, the
Supreme Court held that it is a continuing tort of trespass for a person to remain
on another’s land without that other person’s authority or consent.

In Lajide v Oyelaran [1973] 3 WSCA 93, the Defendant entered the Plaintiff’s
land and laid the foundations of a building. He was held liable for a continuing
trespass by virtue of the presence of his building foundations which were and
are still on the Plaintiff’s land.

Therefore as long as the trespass continues, a fresh cause of action accrues and
by this principle, an action for continuing trespass cannot be defeated by
limitation of time.
Trespass above and below the surface of the land

In law, land has an elastic meaning to include the soil, the air space above the
soil and the depth beneath the soil. This is expressed in the Latin maxim cujus
est solom, ejus est usque ad coelom et usque ad inferos which means “whoever
owns or possesses the surface of land also owns or possesses everything above
it to the heavens and everything below it to the center of the earth. See Corbett
v Hill [1870] L.R. 9 Eq. 671. Therefore and generally any invasion of the
airspace above, at however great a height will constitute trespass to the
possessor of the surface ditto any invasion below the surface of the soil at
however great the depth will constitute trespass to the possessor of the land.
This is in line with the principle of quicquid plantatur solo, solo cedit-
whatever is affixed to the soil belongs to the soil. Therefore title to the fixture is
part of the land and passes with title to the land. Consequently whoever owns
that piece of land will also own the things attached. In Kelsen v Imperial
Tobacco Co. Ltd. [1957] 2 QB 334 the Defendant fixed an advertisement
signboard on an adjacent land or premise which projected into the Plaintiff’s
airspace by a few feet above his shop. In a claim by the Plaintiff for trespass for
the protrusion of the signboard into his airspace, the court held that there was
trespass and granted an injunction for its removal. Similarly in Gilfford v Dent
[1926] WN 336, 71 SJ 83, the Defendant erected an advertisement sign at about
4 feet 8 inches over the Plaintiff’s forecourt and the Plaintiff who was a tenant
of the forecourt sued for trespass. The court held that there was trespass to the
Plaintiff’s airspace.

N/B The ownership right above the land does not extend ad infinitum. It means
there is a limit to which a Plaintiff can justifiably claim ownership above the
airspace. In Bernstein v Skyviews & General Ltd. [1977] 2 All ER 902;
[1978] QB 479 the Defendant company was taking aerial photos from a height
of 650 feet in the air crossing the Plaintiff’s land in order to do so. The Plaintiff
sued for damages and invasion of privacy. The Defendants were held not liable.
Where the act or conduct of the Defendant does not affect or likely to affect the
ordinary use and enjoyment of the Plaintiff’s land and structure on it, liability
may not inure.
In relation to trespass below the surface of the land, the same principle as
applicable in trespass above the land seems applicable, too. In Bulli Coal
Mining Co. v Osborne [1899] AC 351, the Defendant tunneled under land in
possession of the Plaintiff for the purpose of exploiting a coal-seam. He was
held liable in trespass. There may be limitations imposed by the owner of a land
in overriding public interest especially with respect to excavation or mining
activities.

Possession of Land

Possession of land is the physical presence or control a person exercises in

relation to land. The requirement of the law to evidence possession is some or
any physical sign which will indicate control. A person who lives on a land is
said to be in occupation and physical control; a person who erects or farms on a
land is also said to be in physical control; a person who carries any activity of
any sort on a land is also said to be in physical control. In Wuta-Ofei v
Danquah [1961] 1 WLR 1238; [1961] 3 AER 597 the Privy Council held that
an uncultivated bush land which was demarcated with pegs at its four corners
by the Defendant amounted to possession on her part against the Plaintiff who
had no title to the land. In Alatishe v Sanyaolu [1964] 1 ANLR 398, the
Supreme Court held that the surveying of land and demarcation of its
boundaries by stout pegs was sufficient to amount to possession.

It is trite that for a Plaintiff to maintain and succeed in an action for trespass to
land, he must be in exclusive possession at the time the trespass occurred. The
corollary is that a person who is not in possession cannot claim trespass to land.
See Syke Bank Plc. v Akinpelu [2010] 3 MJSC (Pt. 1) 165. The tort of
trespass to land seeks to afford a person in lawful possession of land the right of
unhindered and undisturbed occupation, enjoyment and usage of the land. The
law does not offer protection against a person in adverse possession in relation
to a person with a better title (the owner). Furthermore, a person in possession
adverse or not can maintain an action in trespass against anyone bar a person
with a better title. This applies even where he is not the owner of the land
except against the owner or otherwise a person with a better title. See Ozuzu v
Emewu [2019] 13 NWLR (Pt. 1688) 143. This is because possession is a
rebuttable presumption of ownership and long and undisturbed or unchallenged
 possession is one of the recognized ways of proof of ownership of land in
Nigeria. See Idundun v Okumagba [1976] 9 – 10 SC 229

N/B Where two persons make a simultaneous claim of possession over land the
dispute is resolved in favour of the person who can show a better title that is the
one who has the right to possession. See Efana v Adekunle [1961] 5 ENLR
55; Umeobi v Otukoya [1978] 1 LRN 172.

In itemized form, the following principles apply:

1. A Plaintiff in possession is presumed the owner and can maintain an action

in trespass against a trespasser.
2. An owner of land or premises can be liable in trespass if the trespass
occurred while the land was in the lawful possession of the Plaintiff.
3. A person not in exclusive possession cannot sue or maintain an action in
trespass because he has no right of possession.
4. A Defendant who shows a better title or a superior possessory right or right
to possession will not be liable in trespass to the Plaintiff.
5. A Defendant who commits trespass can escape liability if he shows that he
entered the land under the authority or as the agent of a third party who has a
better title or superior right to possession against the Plaintiff in de facto
possession.
6. A Defendant who enters a land will be liable for trespass even where he
shows without more that a third party has a better title or superior right of
possession than the Plaintiff in de facto possession.
7. A better or superior title prevails over adverse or non-adverse long
possession.

N/B Note that where a person or a Plaintiff in possession is forced out of

possession he still retains his right to possession against the Defendant in unlawful
or adverse possession and can recover his land and possession. His remedies are:

a. To enter the land and physically remove the Defendant and his belongings.
See Hemming v Stoke Poges Golf Club [1920] 1 KB 720. In Collins v
Renison, the Defendant found a trespasser up a ladder on his land. He said
 that he had reacted by gently shaking the ladder, which was a low one, and
‘gently’ overturned it and gently threw the Plaintiff from it upon the
ground’. This amount of force was found to be unreasonable. N/B Self-help
is not encouraged to avoid commission of criminal offences.

b. To bring an action in court for recovery of the land. This applies where he
can show that he has a better title than the person in actual possession or that
he has a right to immediate possession of the land.

Defences to Trespass

1. Possession of a better title. The right of possession of land by a person who

has physical possession can be defeated by any person with a better title who
is not in physical possession as held by the Supreme Court in Adewole v
Dada [2003] 1 SC (Pt. 111) 66.

2. The right to possession. It is a defence to an action for trespass that the

Defendant has a right to possession of the land or acted on the authority of
the person having such right. See Oguche v Iliyasu [1971] NNLR 157.
However, a Defendant sued for trespass to land cannot plead the jus tertii,
that is, he cannot justify his trespass to land by showing that a third party has
a better title or right to possession than the Plaintiff who is in de facto
possession, unless the Defendant entered the land under or with the authority
of the third party or as the agent of such a third party.

3. Jus Tertii or acting under the authority or as an agent of a person or

third party with a better title. Jus tertii arises where the Defendant who
has no title in the land or right of possession seeks to defeat the title or
action of the Plaintiff by alleging a defect in the Plaintiff’s title or that the
Plaintiff has no title at all. In other words, it is a defence that allows a person
to escape liability in trespass by establishing that a third party has a better
title than the Plaintiff in de facto possession. See Ryan v Simon George &
Sons Pty. Ltd. [2017] QSC 4. Tertii means “the right of a third party”. This
defence will avail against an action for trespass where the Defendant shows
that a third party has a better title than the Plaintiff in possession and that he
acted on behalf of the third party with a better title than the Plaintiff in de
facto possession. The onus is on the Defendant to establish this. See Toyota
 Finance Australia Ltd. v. Dennis [2002] 58 NSWLR 101. In Oguche v
Iliyasu [1971] NNLR 157. Jus tertii will fail or will not avail a Defendant in
three situations viz: (a) Where the Defendant did not act for or under a third
party who has a better title than the Plaintiff. (b) Where the third party has
no superior or better title to the land and (c) The Defendant is claiming
through a person under whom the Plaintiff is also claiming.

4. Entry to abate a nuisance. A person in possession of land is entitled to

peaceful and undisturbed enjoyment of it. Therefore, where someone else’s
improper use of his own land results in a disturbance of the usage or
enjoyment of another land, then the tort of nuisance has occurred.
Therefore, where the Plaintiff makes improper use of his land which ends up
causing a nuisance to the Defendant, the Defendant may enter the Plaintiff’s
land for the purpose of abating the nuisance which is interfering with the
lawful use and enjoyment of his land. See Cope v Sharpe [1912] 1 KB 496.
Nuisance is an injury to the right of a person’s possession of property to
undisturbed enjoyment of land and results from an improper usage of
anything including land by another individual. Nuisance relates to indirect
acts of interference to the enjoyment of land. In Ballard v Tomlinson
[1885] 20 Ch.D 115, 126, Lord Lindley stated that no man has a right to use
his own land in such a way as to be a nuisance to his neighbor.

5. Entry to retake a chattel. In some situations, resort to self-help or self-

redress to recover a good or chattel or to protect a chattel is excused by the
law. Where goods have been unlawfully interfered with or taken or withheld
from the person entitled to their possession, the law allows a limited resort to
self- help to retake the goods or protect the goods. A Defendant will thus be
justified to enter the Plaintiff’s land to retake his goods that he is lawfully
entitled to or that he owns provided that such goods or chattel was placed on
the land by the Plaintiff or occupier or probably by a third party.

6. Entry by license or consent or permission of the Plaintiff. A Defendant

can rely on the defence of consent of the Plaintiff to justify his interference
with the Plaintiff’s land. Consent can be express or implied by conduct
(verbally/words or actions), however, it must be voluntary and genuine. See
 Lyttelton Times Co. Ltd. Warners Ltd. [1907] AC 476. The corollary is
that where consent was induced by fraud or coercion or threat or otherwise
in any way or manner unlawful, it is vitiated and it is deemed that no consent
was given ab initio. By necessary extension and implication, consent given
by a person incapable of giving consent under the law, for instance minors
or persons with unsound mind or lunatics or intoxicated persons is no
consent. The onus is on the Defendant to establish that he entered the land
with the Plaintiff’s consent or permission. See Plenty v Dillon [1991] 171
CLR 635, 647. In Adebajo v Brown [1990] 3 NWLR (Pt. 141) 661 SC, the
facts were that the parties were adjoining land owners. The Defendant
(Appellant) in building his house encroached on the Plaintiff’s (Respondent)
land. Initially, the encroachment was a trespass on the Plaintiff’s land.
However, the trespass was condoned by the Plaintiff who allowed the
Defendant to continue with the construction after an agreement was reached
between them for the surrender of that particular portion, plot or part
encroached upon. Subsequently, the Plaintiff demanded for the return of the
whole plot. The Supreme Court held that the Defendant was not liable for
trespass. According to the court, trespass is committed when the person in
possession withholds his consent to the entry into the land. The court posited
that if there was a mistaken entry and when the mistake is discovered, and
the person in possession is approached and he consents to the encroachment,
then the right to claim in trespass is lost, as his consent is retroactive and
relates back to the initial entry without permission.
Where there is entry by licence, it prevents the act for which consent is given
from being wrongful. See Hill v Topper [1863] 159 ER 51. Therefore, a
licence is a permission to enter land and may be express, implied or
contractual. For example, in land law, a licence is given by X to Y when X,
the occupier of land, gives Y the permission to perform an act which in other
circumstances would be a trespass. Where a licensee exceeds his licence
(begins to do an act different or beyond the scope for which licence is given)
or remains on the land after it has expired or revoked, he becomes a
trespasser. See Hillen v ICI (Alkali) Ltd. [1936] AC 65.

7. Acquiescence. It is an assent or condonation of an infringement of a right,

either expressly or impliedly by one’s conduct as a result of which one’s
 right to an equitable relief is lost. It is an informed acceptance of the
infringement of one’s right or a waiver of one’s right. Acquiescence is
consent to waive one’s right expressed by inactivity or silence or laxity or
indolence or unreasonable delay of the owner of a property to assert his right
which may enable a trespasser to come into adverse possession or a
trespasser to enter, remain and take over ownership of property in the view
of a conduct which ordinarily should elicit a response or reaction from a
rational or logical mind. See Amakor v Obiefuna [1974] All NLR 109;
Gbadamosi v Bello [1985] 1 NWLR (Pt. 2) 211; Jones v Stones [1999] 1
WLR 1739. Where acquiescence is expressed by silence it amounts to a tacit
agreement. It is expressed as Qui tacit consentire videtur si loqui debuisset
ac potuisset which means “he who keeps silent is held to consent if he must
and can speak”.
Acquiescence can be used as a defence of estoppel by conduct arising from
silence where a party has a duty to speak and an opportunity to speak but
keeps silent. Therefore, where a person by his conduct of silence or
inactivity induced or encouraged the commission of an act, he cannot be
heard to complain thereafter. See Bondy v Samules [1929] 16 N.E. 181,
186 III. N/B Mere delay simpliciter in complaining is not acquiescence.

8. Laches. This is a defence a trespasser can use to prevent a Plaintiff from

seeking an equitable remedy because of undue or unreasonable delay.
Laches is negligence or unreasonable delay in asserting or enforcing one’s
right which is lost after the time limited by law to enforce it has elapsed. For
this defence to apply, the Plaintiff’s delay must be unreasonable and
inexcusable under the law. For instance, where an adverse possessor moves
into possession of land and after the twelve years, the owner of the land will
lose his right to effect an eviction. This is the general rule is that after twelve
years, a trespasser’s adverse possession matures into ownership of the land
or acquisition of title to land. It is trite law that equity does not aide the
indolent but the vigilant. In Smith v Clay [1767] 27 ER 419, the court held
that equity has always refused to its aid to stale demands and a party who
has slept on his rights and acquiesced for a great length of time cannot call
the court into activity.
9. Peaceful entry by person entitled to possession. A Defendant who
peaceably or nonviolently enters into a property or land which he is entitled
to by virtue of a right of possession does not commit trespass by doing so.

10. Statutory right of Entry or entry by lawful authority Where an entry to

land is permitted by law or where there is a statutory right of entry or entry
by a lawful authority, it is a defence to an action for trespass. Under criminal
law, a Policeman with a search warrant to search a premises has a right of
entry to aid an investigation or recover a stolen item or to effect an arrest. A
search warrant is a legal document authorizing a Police officer to enter and
search a premises. Public health officials also have a statutory but specific
powers of entry in the lawful discharge of their duties. N/B Where a person
statutorily entitled to enter a premises enters and begins to execute a purpose
or conduct himself outside the scope of his duty or other than the purpose for
which lawful entry was gained, he becomes a trespasser.

11. Necessity. This applies in cases of urgency or emergency for the purpose of
protecting life or property. For this defence to apply, the Defendant must
show that there was an imminent danger to person or property and the
Defendant reasonably believed that it was necessary and compelling to act in
in order to preserve or protect a person or property and that the
circumstances dispensed with first obtaining the consent and permission of
the Plaintiff before the Defendant acted. In Rigby v Chief Constable of
Northamptonshire, the Defendant successfully pleaded necessity after
causing a fire by releasing CS gas into a shop in an attempt to eject a
dangerous psychopath. In Esso Petroleum Co. v Southport Corporation a
sea captain was forced to discharge oil which polluted the shoreline in order
to prevent his ship from breaking, sinking and thus endangering the crew.

12. Adverse possession. Adverse possession is a principle of law whereby

someone who possesses the land of another for an extended period of time
may acquire ownership of that land. It is a principle of law that allows a
trespasser to acquire title to land over and above the person who legally
owns it. A Defendant can plead adverse possession which was unchallenged
for an extended period time that allowed such possession to ripen into
 ownership. Therefore, where an owner of land allows an adverse possessor
to come into unchallenged possession and such possession remains
unchallenged beyond the limitation period, such adverse possession
becomes a defence to be relied on to claim ownership or right of possession.
Under Nigerian law, a person claiming title through adverse possession must
show that his possession is continuous, hostile, open, actual, exclusive and
uninterrupted for the statutory period. See the Limitation Act, LFN, 2005
and Section 16 Limitation Laws, Laws of Lagos State, 2003.

13. Statute of limitation. A statute of limitation removes the right of action, the
right of enforcement, the right to judicial relief and leaves the Plaintiff with
a bare or sterile cause of action which he cannot enforce. See Okoye v
Eduzor [2018] LPELR- 45102. Where a statute prescribes a timeframe
within which a right can be asserted under the law, such a right cannot be
asserted outside the prescribed timeframe and the attendant consequence is
that such a right has been waived. This is in line with the principle of “delay
defeats equity”, “equity aids the vigilant and not the indolent”. Limitation
law circumscribes the period within which a cause of action can be litigated
upon. Statute of limitation bars a right of action and the right to a judicial
relief which cannot be enforced where there is a failure to assert a
recognized right or remedy under the law within the time prescribed. See A.
G. Adamawa v A. G. Federation [2014] LPELR- 23221.

14. Acquisition of land by government for public use. Under Section 45 of

the 1999 Constitution and under the Land Use Act, 1978, land may be
acquired by the Government for overriding public interest. This acquisition
ordinarily interferes with possession and ownership and qualifies as trespass.
Overriding public interest means the acquisition of the land of a private
individual for the use of the Government or for the benefit of the State.
When acquisition is done following due process of law, it is not trespass and
the owners of such land are entitled to monetary compensation or
resettlement. The onus is on the Government to show that the acquisition is
for public use and not for the benefit of an individual or select group of
persons. In pursuance of this obligation, the Government is obliged to give a
personal notice to the landowner stating the purpose(s) for which the land is
 being acquired to enable the holder challenge the acquisition if need be. This
personal notice is aside the requirement of a publication in the national
gazette of lands sought to be acquired which constitutes a notice to the
whole world but is not and cannot be a substitute for the personal notice to
be given to the individual owner of the land. See Olatinji v Military
Governor, Oyo State. In A.G. Bendel State (now Edo and Delta States) v
Aideyan [1989] 4 NWLR (Pt. 188) 646 SC, the State Government
purportedly the Aideyan’s building and he sued. The Supreme Court held
the State Government liable in trespass and that Aideyan was entitled to his
building. The purported acquisition was not authorized by any law and was a
nullity. The court concluded that the wresting of possession of property from
anyone in possession or entitled to possession in any manner not provided
by the law is a trespass.

N/B Payment of compensation is an integral part of the process of compulsory

acquisition and a failure to pay the occupier compensation renders the
acquisition a nullity. In National University Commission v Oluwo, the Court
stated that the rights of an individual to acquire properties anywhere in Nigeria
is a constitutional right and carries with it the right to dispose such properties.
Therefore, any individual whose land the Government compulsorily acquires is
entitled to prompt payment of adequate compensation.

Remedies for Trespass

1. Damages. Damages are monetary award made for unlawful and

unauthorized entry to a land in the possession of another. A Plaintiff is not
required to prove actual damage in order to recover damages for trespass to
land because trespass is actionable per se. Damages is awarded as
compensation for either loss of market value, loss of use of the property, cost
of restoration, emotional distress, physical injury to the land or discomfort
and annoyance.
Damages could be in the following forms:
a. Compensatory damages. This applies where there is damage to the land.
The essence is to restore the individual to the position he was in prior to
the commission of the trespass. In other words, to put the injured person
in the same position he would have been had the trespass not occurred.
 See Livingstone v Rawyards Coal Co. [1880] Apps Cas 25. The
principle is expressed in Latin as restitution in integrum. The damages to
be recovered or awarded will be commensurate to the value of the
property damaged. See Law v Stirling Astaldi (Nig.) Ltd. [1977] 125 C.
53
b. Nominal damages. This damage awarded a person who has suffered a
legal injury without actual damage. In other words, where there has been
a breach of a legal right without an actual damage, the Plaintiff is entitled
to nominal damages on the ground that the tort of trespass is actionable
per se. See TCN Channel Nine Pty. Ltd. v Anning [2002] NSWCA 82.
c. Exemplary damages. This is also or otherwise known as punitive
damages. It is awarded against the Defendant to serve as a deterrent to
him and others from engaging in similar conduct. The punishment is not
for the damage done but against the conduct of the Defendant from which
the damage arose. This type of damage is usually awarded where the
Defendant showed a blatant disregard for the rights of the Plaintiff. See
Schumann v Abbot [1961] SARS 149. In Dosunmu v Lagos City
Council [1966] L.L.R. 63, the Plaintiff was the mother a senior
employee of the Defendant who lived with her son in quarters let to the
son by the Council. While the son was temporarily out of Nigeria, some
agents of the Defendant unlawfully entered the premises and evicted the
Plaintiff alongside her belongings and those of her son and dumped them
outside. The court awarded damages in the sum of 500 Pounds.

2. Injunction. It is an equitable remedy that operates in personam, that is,

against the person of the Defendant requiring him to do or refrain from the
doing of a particular thing. By necessary implication and extension, it may
be in the form of compelling the Defendant to do a particular thing or undo
where applicable, what he has already done. See Babatunde Adenuga v
Odunewu [2001] 2 NWLR (Pt. 690) 184. The essence of an injunction is to
terminate a wrongful state of things or affairs. An injunction could be either
an interim, interlocutory or perpetual injunction.

3. Re-entry. This is a right in law which justifies a person whose possession

has been disturbed or interfered with to use reasonable force to evict or eject
 the trespasser. This right avails a person in actual possession or one with a
right to immediate possession and it serves to restore or regain possession
after he has been unlawfully dispossessed of the land or where he
temporarily relinquished possession for a certain period and is entitled to get
it back after the expiration of the period by re-entry.

4. Action for mesne profit. This is a remedy awarded a person who was
wrongfully dispossessed of his land to compensate for the period of
dispossession. This is usually applicable in tenancy matters where a tenant
refused to deliver up possession of the demised premises after service of the
requisite statutory notices.