TORT 2.11 TRESPASS TO LAND

• Isochukwu
• 1
• Tort I

TRESPASS TO LAND

Implies the unlawful interference with the land in possession of the plaintiff. Such interference must be direct and physical. Trespass to land is actionable per se i.e. there is no need for physical injury/damage-SPDC Ltd v. Chief Ekwet.

Trespass to land in Nigeria usually arises as part of a claim to land and rarely tort.

Blackstone’s Commentaries of the Laws of England says; “Land …signifies everything that may be holden provided it be of a permanent nature”.

Section 3 of the Interpretation Act defines land to include the land itself and everything attached to the Earth.

Edward Coke defines land as; “Any ground, soil, or earth whatsoever… An indefinite extend upwards as well as downwards… no man may erect any building to overhang another’s land”.

These definitions may have some derogations in recent times with concepts like nuisance, strict liability, and so on limiting the coverage area of land. E.g. The Civil Aviation Act 1982 provides that; “No civilian plane shall be liable for trespass for flying over the claimant’s house at a reasonable distance. It shall only be liable for objects that fall from or if the plane descends too low so as to cause damage to the claimant’s property”. See also Arthur v. Anker.

:: Trespass to land is rooted in immediate and exclusive possession of land–Olagunju v. Yahaya, as such, a landlord can be liable for trespassing when the tenant is in immediate possession of the land. However, a clause can be imputed into the tenancy agreement to authorise the landlord to enter the property. Universal Vulcanising v. Ijesha Trading Co– only a person in immediate possession can sue for trespass. The owner not in immediate possession cannot. Amakor v. Obiefuna.

:: Trespass may be committed by directly and unlawfully – entering the land, – projecting and allowing things to hang over the land, placing things on the land (unconsented parking in someone’s land), remaining on the land, abusing right of entry, continuing trespass, trespass ab initio[1] and so on. See Entick v. Carrington

See Chic Fashions v. Jones

:: Continuing trespass occurs where the act of trespass is in a somewhat permanent nature.

DEFENCES TO TRESPASS TO LAND

• See Esso Petroleum Co. v. Southport Corporation.
• Lawful authority, Statutory or common-law right of entry.
• (Where a person acts on the authority of a third party that has a better title).

Remedies

The remedies available include;

• Damages
• Injunction
• A declarative judgment.
• Claim for a recovery of land.
• Distress damage feasant (the claimant can keep the object placed on land by the tort-feasor until he has paid for the damages caused).

 

[1] Trespass ab initio: where a person’s entry is permitted by statute or common-law and the person does a wrongful act while there, that act makes the original entry unlawful-Entick v. Carrington. See for example the Six Carpenters Case

In this case, six carpenters went into an inn, they ordered bread and wine and paid for it. They later ordered for more wine and refused to pay. It was held that refusal could retrospectively invalidate the earlier right they had to enter. They were however not held liable because, they had only committed an omission rather than an act.

Although, in my opinion, this decision seems ambiguous, the defendants were under a duty to act (pay for services rendered) The court interpreted the law on the face of it without discerning the purpose.