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Questions people often ask on trespass to land

What is Trespass to Land?

There are two classes of trespass namely: criminal trespass and civil trespass. Civil trespass is our focus here. Trespass generally means to intrude, encroach or infringe on another person’s right. There are about three types of civil trespass; trespass to land, trespass to person and trespass to chattel. Our concern in this edition is trespass to land. Trespass to land therefore is an encroachment or intrusion on another person’s land without lawful justification. A good example of lawful justification is license by the owner/occupier or permission by any law for the time being in force in Nigeria. For example, if Alabanco enters into Barawo’s land (whether Alabanco does anything on the land or not) or remain on the land without Barawo’s consent or without any lawful justification, Alabanco commits trespass on Barawo’s land. (Land as used here include developed or undeveloped land, structure or building, block of flat, a room apartment, shop or any space of land belonging to another person whether it is in close proximity to the road or not).                                                                         

The Law does not permit trespass at all for the simple reason that the Property owner/occupier of the Land has an exclusive right of enjoyment of the land without any form of disturbance or interference at all from anybody. Consequently, whenever one enters into another person’s Land or land occupies by a tenant without the owner or occupier’s consent respectively, it is trespass and the property owner/occupier can maintain action of trespass against the trespasser. Nevertheless, if the gate of one’s house/land/compound is open and a visitor enters, the visitor’s entrance may not be trespass. This is because the fact that the gate is open suggests a rebuttable presupposition of license to a genuine visitor to enter. A visitor who enters another person’s compound on an express or implied invitation commits no trespass for he is on license and therefore a Licensee. A visitor (whether on license or not) will only commit trespass if he fails to leave the premises when the owner or occupier requests him to leave. The request to leave terminates any permission the owner/occupier may have given in the past. A visitor commits trespass if he continues to stay after the moment the owner/occupier requires him to leave the premises. It is not important that the owner/occupier originally invited the visitor.

The Law relating to trespass only protects the person in possession and not necessarily the property owner (if the property owner is not in possession). If the property owner rents or leases out his shop or house to a tenant, the property owner has no right to sue for trespass, because trespass can only be committed against the occupier/person in possession; in this case the tenant and not necessarily the property owner. Nonetheless, in exceptional situations the property owner can sue the trespasser (when a tenant is in occupation) if he reasonably finds out that permanent damage may occasion on the land. A person in wrongful possession of land can successfully sue another person (who afterward enters the same land) for trespass. For example, if Alabanco wrongfully enters Barawo’s land and remain there. Thereafter Ganja wrongfully enters the same land. Alabanco though in wrongful possession but can comfortably maintain action of trespass in court against Ganja even when Alabanco himself is in adverse possession. Alabanco’s right to sue Ganja anchors on actual possession notwithstanding that his possession may be illegal or wrongful. This suggests that possession is superior to ownership in trespass. A person in actual possession can sue another for trespass even if he is in adverse possession or he is not the property owner.                                                               

Trespass to land is actionable per se. This means that once a person commits trespass, the person in possession is entitle to damages without proving that the trespass causes any injury to him. Trespass to land generally is a civil wrong however; it can be criminal in some cases hence the offence of criminal trespass in our Criminal law jurisprudence. Consequently, the popular usage “trespasser will be prosecuted” may not be entirely wrong..

2. How can a person commit trespass to another person’s land?

A person commits trespass to land when;                                            

1. he wrongfully enters into another person’s land:

When a person (either by himself or through some other person he engages, for example a worker) wrongfully enters into another person’s land/premises, he commits trespass. Wrongful entry or trespass to another person’s land may take various ways which includes: (a) crossing the boundary into a neighbor’s land (no matter how small it is); (b) stepping one’s foot on another person’s land or use of another person’s land as a thoroughfare or road, (c) defecating on another person’s land. One may commit trespass if one puts one’s hand through another person’s door or window (it does not matter whether he steals anything from the room or not) or sits on the wall or fence of another person, throws water, or dumps refuge on another person’s land. Consequently, where a person walks, sits, rides, drives, pours water upon another person’s land without permission of the owner/occupier, the person who throws the water or dumps refuse shall be liable in trespass.

In action for trespass, the purpose or intent of the trespasser is not significant. This is to say that intention of a trespasser (no matter how good or glorious it is) mistake or ignorance cannot shelter a person from being liable in trespass.                                  

However, if a person drives his car, skids off the road into another person’s land or premises and destroys something in the land; it is not necessarily trespass but may be negligence. Where a person enters another person’s land through a third party example a workman and the workman destroys anything in the land, it is the workman that will be responsible not the man that employs him under Law of tort. Conversely, under Criminal Law the case may be different. A person who intentionally enters another person’s land without permit is fully responsible for any intentional or accidental damage done to the land, for example, where Musa without permit drives his car on Tata’s land and accidentally destroys something on the land; Musa will be liable for trespass and at the same time negligence. Accident should not be a defense. If a person having right, to immediate possession of a land enters the land in the exercise of that right, the law presumes that he has been in possession from the time his right of entry arose and can maintain action of trespass against an adverse possessor even when he is not in occupation. For example if A wins a case in court over a piece of land around May, but he enters the land around December, he can be successful in trespass to that land commits by someone even when he is not in possession because he has right to be in possession between May and December

1. he enters into someone’s land wrongfully or rightly but remains on the land when asked to leave.

It will not amount to trespass if a person enters into someone’s land on the permission or license of the Owner/Occupier; he commits no trespass as long as the owner/Occupier of the land did not terminate the permit or license. Termination of the license of a visitor may be oral, verbal or parole, in writing or by electronic means e.g. by SMS through cell phone, email or fax etc. What is important here is that the termination of the license by the Owner/Occupier comes to the knowledge of the visitor and not the means of the communication.  If the person fails to leave when the Owner/Occupier asks him to leave, the refusal or delay to leave (even if it is for few minutes) amounts to trespass.

Conversely, if a person without permit enters another person’s land/premises and the Owner/Occupier do not ask him to leave, the Owner/Occupier neglects his right and hence the entry may not be trespass because there will be rebuttable presumption of license by the Owner/Occupier. Nevertheless, if the Owner or Occupier demands that the person leaves the land/premises and the person fails to leave, that person commits trespass starting from the time the Owner/Occupier requires him to leave. The demand to leave terminates any implied or express permit and translates further stay after the demand to leave to trespass. A discussion with a friend whom you pay a visit in his house may turn sour and he demands that you leave his house; one-minute extra stays in his house after he makes the demand to leave amounts to trespass.

A tenant who continues to stay in the house or land after his tenancy expires commits no trespass unless he fails to pack out and give up possession after the property owner gives him all the legal notices.

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