LEGAL PRINCIPLE: TORT LAW – Trespass – Exclusive Possession as Basis of Action Against a Disturber
PRINCIPLE STATEMENT
Trespass is essentially a tort against possession. Only a person in possession of land at all material times can maintain an action in damages for trespass. Possession alone is sufficient, but it must be clear and exclusive.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Ude v. Chimbo (1998) NLC-1291994(SC) at p. 21; Paras B–D.
"It is trite law that trespass is essentially a tort against possession and only a person in possession of a land in dispute at all material times can maintain an action in damages for trespass… Accordingly, possession alone is sufficient to maintain an action in trespass although for such possession to found an action in trespass, it must be clear and exclusive."
EXPLANATION / SCOPE
Possession is the foundation of trespass. The plaintiff must prove clear and exclusive possession. The principle applies to all trespass actions. The plaintiff need not prove title if possession is established. The defendant may defeat the claim by showing better title. The rule protects possessory rights. The court will examine the nature and extent of possession. The plaintiff may be in de jure possession without physical occupation. The principle is well-established in tort law.
