LEGAL PRINCIPLE: EQUITY AND TRUSTS – Acquiescence – No Duty to Protest Trespass Where No Reason to Believe Trespasser Mistakenly Claims Right
PRINCIPLE STATEMENT
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.
RATIO DECIDENDI (SOURCE)
Per Wali, JSC, in Kayode v. Odutola (2001) NLC-1451997(SC) at pp. 16–17; Paras A–B.
"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."
EXPLANATION / SCOPE
A landowner has no duty to protest trespass if they have no reason to believe the trespasser mistakenly thinks they are acting lawfully. Where the trespasser knows the land belongs to another, there is no misrepresentation, delusion, or inaction encouraging expenditure. The owner’s silence does not create acquiescence. The trespasser acts at their own risk. The defence of acquiescence requires proof that the owner’s conduct led the trespasser to reasonably believe they had rights. A knowing trespasser cannot claim encouragement from the owner’s silence. The principle protects owners from being penalised for not protesting against deliberate trespassers.
