Trespass to Land is the unlawful and unjustified entry into a person’s property. It doesn’t matter that the entry is by mistake or under a mistaken belief, once the entry to another person’s land is unlawful or without his permission, it is actionable.
Trespass to property is actionable per se. This means that in an action for trespass to land, it doesn’t matter whether anything is damaged or taken away from the land, once it can be established that land is entered without permission or unlawfully, there is trespass.
PERSONS WHO CAN SUE FOR TRESPASS TO LAND INCLUDE:
- The owner of a landed property.
- A person claiming in trust for the owner such as a caretaker, agent, attorney, manager, trustee, servant, etc.
- A holder of reversionary interest.
- A sub-tenant under a valid sublease.
- A purchaser who has not yet taken possession.
- A trespasser or adverse possessor whose possession has matured into Ownership or title.
It should be understood that the most important factor in trespass to land is not ownership but possession. To this end, Possession of a parcel of land or premises means the occupation or physical control of land, either personally or through an agent or servant. This means that if a person (trespasser) is in possession of land without the consent of the owner, he can still sue anyone (except the owner) who enters the land unlawfully.
In the case of landlord and tenant, the position of the law is that the landlord can trespass on a land in the possession of the tenant. In a popular case of Balogun V. Alakija (1963) All N.L.R. 609), the caretaker of a house, under the authority of the landlord, visited a tenant to demand for rent. After some minutes of argument, the tenant ordered the caretaker to leave his room but the caretaker waited for another fifteen minutes. The court held that since the permission given to him to enter the house by the tenant had already expired, the caretaker was liable for trespass to land. He would have still been liable if he was the landlord. It is possession that determines trespass, not ownership. Since the tenant is in lawful possession, he can sue the landlord for trespass to land.
EXAMPLES OF ACTS OF POSSESSION
- Dwelling on the land.
- Carrying on business or other activities on the land.
- Fencing the land.
- Erecting a signboard on the land.
When a person is accused of trespassing, such a person can plead any of the following defenses:
- Possession of a better title.
- That he is acting under the authority of someone with a better title.
- Entry to abate a nuisance.
- Entry to retake a chattel.
- Entry by consent, license or permission of the occupier or Plaintiff.
- Adverse Possession.
- Acquisition of the land by the Government for public use.
Where Trespass to land has indeed been committed, an aggrieved party is entitled to any of the following remedies:
- Action for title(ownership) and recovery of land.
- Order for recovery of possession.
- Re-entry and defense of property.
- Claim of mense profit.
The above shows that a tenant may be entitled in law to sue anyone who trespasses on his property and this power further permits him to even bring an action against his landlord and his privies. However, where a person is arrested for Trespass to land, such a person can avail himself of the defenses above.
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