The Absence of a Specific Relief for Declaration of Title is not Fatal to a Claim for Trespass to Land.

By O. Ogbom, Esq

In the realm of property law, disputes over land ownership and possession are commonplace. Two key claims often arise in such disputes: declaration of title and trespass to land. While these claims are distinct, they are intricately linked. This article explores the relationship between these claims, focusing on whether the absence of a specific relief for declaration of title is fatal to a claim for trespass to land.

A declaration of title is a legal remedy sought by a plaintiff to establish their ownership rights over a particular parcel of land. It is a judicial pronouncement that confirms the plaintiff’s title, providing clarity and certainty regarding their proprietary interests. Declaration of title to land is an equitable relief granted or denied subject to the discretion of the court. It is granted only in the circumstances in which the court is of the opinion that the party seeking it has, by the evidence he has successfully placed before the court, is entitled to an exercise of the court’s discretion in his favour. As was held in the case of Tukuru & Ors. V. Sabi & Ors. (2013) 10 NWLR (Pt. 1363) 442.

While Trespass to land, on the other hand, is a claim brought by a plaintiff alleging that the defendant has unlawfully entered or interfered with their possession of the land. The primary objective of this claim is to protect the plaintiff’s possessory rights and seek remedies such as damages or injunctions. It is the law that trespass to land constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. Possession is the foundation of any claim for trespass. As was held in the cases of JIAZA VS. BAMGBOSE (1999) 7 NWLR (PT. 610) 182; FASIKUN II VS. OLURONKE II (1999) 2 NWLR (PT. 589) 1; OSHO VS. FOREIGN FIN. CORP. (1991) 4 NWLR (PT. 184) 157; ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 9131) 137; ANYABUNSI VS. UGWUNZE (1995) 6 NWLR (PT. 401) 255; and OROK & ORS V. IKPEME & ORS (2017) LPELR-43493(CA) (PP. 10-12 PARAS. A-A).

ownership or possession rights over the land in question. A declaration of title can provide the necessary foundation for a trespass claim by establishing the plaintiff’s legal interest in the land. However, the converse is not necessarily true: a trespass claim does not inherently require a declaration of title to be valid.

It is settled law that trespass to land is rooted in actual possession of the land. Thus, a Claimant need not have a specific claim for a declaration of title to the land in his favour. The position of law is that if he can prove that he is in actual possession of the land at the time of the invasion of it by a trespasser, such an invasion by a trespasser is actionable at the instance of the Claimant who is in possession of the land. As was held in the old cases of Shell B. P. D. C. of Nigeria v. Abedi (1974) 1 SC 23 and Oluwi v. Eniola (1967) N. M. L. R. 339. Also in the latter case of Aromire & Ors V. Awoyemi (1972) 1 ALL NLR 101, the Supreme Court per Coker, JSC, restated the position thus:

“Claim in trespass presupposes that the plaintiff is in possession of the land at the time of the trespass.” Where a claimant provides sufficient evidence of actual possession of the land at the time of trespass, they are entitled to succeed in a claim for trespass and injunction, as possession is a fundamental determinant of their rights. This was restated succinctly by the Supreme Court in the case of Pius Amakor v. Bennedict Obiefuna (1974) 3 S. C. 67 at 126, per Fatayi-Williams, JSC (as he then was), to wit:

“It is trite that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title.”

A person in possession of land can sue anyone who disturbs their possession for trespass, except the true owner, and a claim of superior title by a third party is not a valid defense. This was the position in the following cases: Adeniji v. Ogunbiyi (1965) N.M.L.R. 395 at 397–398; Shell B. P. D. C. of Nigeria v. Abedi (1974) 1 SC 23; Oluwi v. Eniola (1967) N.M.L.R. 339; and Aniabor & Anor vs. Ezeabii (2014) LPELR-24151(CA) (Pp. 25-28 paras. E).

Notwithstanding the failure of a Claimant to seek a declaration of title to land in dispute, if evidence is adduced to prove title to land by the production of documents of title, by acts of ownership, and by acts of long possession and enjoyment of the land, it will be sufficient.

It is settled law that if a person adduces evidence that he or his agents or servants were cultivating a farmland, that would be evidence sufficient to establish that he was in possession of the land. Per MADARIKAN, J.S.C., in Mogaji & Ors vs. Cadbury Fry (Export) Ltd. (1972) LPELR-1892(SC) (Pp. 11-12 paras.

A claim for trespass to land primarily concerns possession rather than ownership. If a plaintiff can demonstrate that they were in possession of the land at the time of the alleged trespass, they may succeed in their claim, regardless of whether their title is formally declared. It is also important to mention that for a trespass claim to succeed without a declaration of title, the plaintiff must provide robust evidence of their possession or right to possession. This might include documents showing lawful occupation, witness testimony, or physical evidence of their use and control over the land.

The absence of a specific relief for declaration of title is not necessarily fatal to a claim for trespass to land. What is crucial is the plaintiff’s ability to prove possession or a right to possession of the land at the time of the alleged trespass. While a declaration of title can strengthen a trespass claim by affirming the plaintiff’s ownership rights, it is not an indispensable requirement for all trespass cases. While a declaration of title can complement a trespass claim, its absence does not automatically invalidate the latter. The success of a trespass claim hinges on proving possession or the right to possession.

O. Ogbom, Esq., (Ph.D. researcher), is a legal practitioner based in Port Harcourt, Rivers State.

He can be reached via ogbomg@lawfreightattorneys.com.ng or ogbomgoodluck@gmail.com

Source: Thenigerialawyer