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NO CONFLICT BETWEEN COMMON LAW “CONTINUING TRESPASS” & LIMITATION LAW

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Dictum

It has been argued that there is conflict between the common law principle and the provision of the limitation law. I respectfully disagree. One complements the other. They are not conflicting. It is not only in Nigeria that there are limitation laws. There is Limitation Act of 1980 which is a British Act of parliament applicable only to England and Wales. The British Act Limits actions in tort to 6 years. Section 2 of the Act reads: “Time limit for actions founded on tort: ‘An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
In spite of the above provision, it does not apply to continuing trespass. It is therefore in my respectful view an error to argue that the provision of the various Limitation Laws in Nigeria do not allow for the doctrine of continuing trespass.’”

Per Awotoye, JCA. Chikere & Ors. v Chevron Nigeria Ltd. (2018) LPELR-44123 (CA).

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TRESPASS TO LAND IS ROOTED ON EXCLUSIVE POSSESSION

Amakor v. Obiefuna (1974) 1 All N.L.R. (Part 1) at page 128 saying:- “Generally speaking, as a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.”

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TRESPASS TO LAND REPRESENT PAYMENT FOR TORT OF TRESPASS, NOT VALUE OF LAND

When general damages are sought on the basis of trespass to land, they would represent payment for the tort of trespass, not the value of the land; and the land remains at least under the possessory ownership or right of the plaintiff claimant.

— Uwaifo, JSC. Rockonoh v. NTP (2001) – SC.71/1995

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IN TRESPASS, TITLE SUPERCEDES EXCLUSIVE POSSESSION

Although generally speaking, a claim for trespass is rooted in exclusive possession or the right to such possession of the land in dispute, once a defendant claims to be the owner of the land in dispute, title to it is put in issue, and in order to succeed, the plaintiff must show a better title than that of the defendant: see Amakor v. Obiefuna (1974) 1 All NLR 119.

– Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)

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CLAIM FOR TRESPASS COUPLED WITH INJUNCTION PUTS TITLE OF PARTIES IN ISSUE

It is an elementary principle of law that whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3NWLR (Pt.180) 508 at 515; Abotche Kponuglov. Kodadja(1933)2W ACA24; Okorie v. Udom (1960) 5 FSC 162, (1960) SCNLR 326; The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (PU58) 514. The position is even much stronger where, as in the present action, the plaintiff claims a declaration that he is the person entitled, as against the defendant, to occupation and possession of the piece or parcel of land in dispute. The present action involves not only damages for trespass and perpetual injunction, but a declaration as to the plaintiff’s entitlement to the occupation and possession of the land in dispute. It cannot be doubted, in these circumstances, particularly having regard to the pleadings filed in the suit and the evidence of the parties, that the title of the parties to the land in dispute is what is primarily in issue in the case. This is simply because the law is well settled that when the issue is as to which of two claimants has a better right to the possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. See Aromire v. Awoyemi (1972) 1 All NLR (PU) 10 at 12 Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263 etc. In the same vein, where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit of that party who can show that title of the land is in him. See Awoonor Renner v. Daboh (1935) 2 WACA 258 at 259 and 263 Umeobi v. Otukoya (1978) 4 SC 33.

— Iguh, JSC. Olohunde v. Adeyoju (2000) – SC.15/1995

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SUBJECT TO LIMITATION LAW, AN OWNER MAY NOT WARN A TRESPASSER IN HIS LAND

There is no duty on a person having estate or interest in land or other property for that matter to raise protest against a trespass or encroachment on the property or invasion of his right on same if he has no reason to believe that such a trespasser, encroacher or invader mistakenly conceives himself to be acting lawfully because in such a situation there cannot be said to be any misrepresentation, delusion or inaction from the owner’s part, encouraging or fostering the trespasser in expending money by developing the property. There is nothing to stop the owner from asserting his right against the trespasser at any time however that may be, subject to any applicable statutory provision of limitation.

– Wali JSC. Kayode v. Odutola (2001)

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TRESPASS COULD BE PREVENTED WITH REASONABLE FORCE

I agree with the submission of the Chief Legal Officer that the proposition that extra-judicial measure cannot be used to recover possession of land is not an inflexible rule. I find to be particularly apposite the decisions in Umeobi v. Otukoya (supra), and Awojugbagbe v. Chinukwe (supra), which the learned counsel cited in buttress of his argument and which in principle do not rule out the use of reasonable force to protect and repel a clear act of trespass.

– Olagunju JCA. Ofodile v. COP (2000)

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