INTRODUCTION

As with other Torts of trespass, the tort of trespass to land developed to protect a person's
possession, thus the courts place a premium on possession over and above ownership. What
then is possession? This paper is an exposition on the definition of possession and the rules
governing possession with regard to interferences thereto and the proof of possession drawing
on judicial decisions and dicta.

THE DEFINITION OF POSSESSION

Possession in ordinary parlance means physical control over an object or thing. In law, the
concept of possession has proven difficult to define as there is no precise definition. Indeed in
the words of Sir John Salmond, 'In the whole range of legal theory there is no conception
more difficult than that of possession.' 1 'Possession is a word of ambiguous meaning' 2 and
'there is, perhaps, no legal conception more open to a variety of meanings than "possession."3
In Ekpan v. Uyo4, however, Obaseki J.S.C defined possession thus: “Possession of a parcel
of land means the occupation or physical control of the land either personally or through an
agent or servant.”

Thus, a person is deemed to be in possession of a landed property where he has physical

possession or custody; or has some form of control over the land, through another person, for
example, a caretaker, tenant or other agent.

Though there are various kinds of possession including, Corporeal possession, Incorporeal
Possession, Mediate possession, Immediate possession, Constructive possession, Adverse
possession, De jure ( 'in law') possession and De facto ('in fact') possession, the kind of
possession which the law on trespass to land is concerned with is de facto or actual
possession.

INTERFERENCE WITH POSSESSION

The law of trespass is designed for the protection of possession rather than ownership. 5 The
effect being that the owner of a land who lets it to a tenant, and gives up possession to such

1 Salmond, Jurisprudence (10th ed., 1947) 285.

2 Per Erie C.]., in Bourne v. Fosbrooke (1865) 18 C.B. (N.S.) 515, 526; 144 E.R.
545, 549·
3 Per Fry L.J., in Lyell v. Kennedy (1887) 18 Q.B.D. 796, 813.
4 (1986) JELR 46553 S.C.
5 Okolo v. Uzoka (1978) 1 L.R.N 192.
tenant for the duration of the tenancy would be precluded from maintaining an action in
trespass during the duration of the tenancy unless he can show that the trespass has caused or
will cause permanent damage to the property, thus affecting his reversionary interest. On the
other hand, the tenant in possession would be allowed by the courts to maintain an action in
trespass against his landlord.6

The possession referred to in this context is actual (de facto) possession.7 Protection here,
thus, covers not only persons in lawful possession, including persons with statutory or
customary rights of occupancy or tenants/sub-tenants under valid leases/sub-leases, but
equally extends to persons in wrongful possession and who have no legal, equitable or
customary right to the land. Because possession is regarded as a form of ownership
conferring rights to the thing under possession, the law protects even wrongful possession
against all except one with the better title to it. In Owe v. Osinbanjo,8 Coker J.S.C. stated as
follows:
“Once the plaintiff can establish his possession, even if he be a trespasser, the defendant can
only justify his entry on the land by showing a better title”.

It then means that a plaintiff in de facto, exclusive possession who is himself a trespasser can
maintain an action in trespass against a defendant who afterwards enters the land, unless the
defendant can show that he has a better title or a better right to possession than the plaintiff.

In Oguche v. Illiyasu, where the defendant's counsel had raised the defence of the statutory
prohibition prevailing over and above the common law rule that the person de facto
occupying the land can maintain an action in trespass against all, but the true owner or
anyone acting under his authority. The court, per Jones S.P.J held the argument incorrect,
and reiterated that bare, de facto, physical possession or occupation entitles a person to bring
an action for trespass. The plaintiff thus had a good cause of action.

PROOF OF POSSESSION
The requirement to maintain an action for trespass to land is actual possession and the burden
of proof is on the plaintiff to show that he was in de facto possession of the Land at the

6 Dabira v. Adelaja (1973) 11 CCHCJ 97 at p. 99

7 Oguche v. Illiyasu (1971) N.N.L.R. 157 at p. 163
8 (1965) All NLR pg 72 at 76
material time. In Wuta-Ofiei v. Danquah9, the judicial committee of the Privy Council held
that in order to prove possession, it was not necessary for a claimant to have taken active
steps in relation to the land such as enclosing it or cultivating it. The court stated,"...the
slightest amount of possession would be sufficient to entitle the person who is so in
possession…to recover as against a mere trespasser."

Should the case be that both plaintiff and defendant claim to be in possession, the balance of
probability tilts more in favour of the one who can prove title (for instance a valid lease), and
thus the right to possess.10
In Jones v. Chapman11, Maule J. observed:

“If there are two persons in a field each asserting that the field is his, and each doing
something in assertion of the rights of possession, and if the question is, which of those two is
in actual possession, I answer, the person who has the title is in actual possession and the
other is a trespasser”.

Further, in Efana v. Adekunle, Idigbe J. stated:

“If there is a dispute as to which of two persons is in possession, the presumption of law is
that the person having title to the land is in possession”.

To reiterate, per Jones S.P.J. in Oguche v. Iliyasu, it is a defence to an action for trespass
that the defendant has a right to possession of the land, or acted under authority of the person
having such right (Jus tertii). However, jus tertii (merely showing that a third party has a
better right or title than the plaintiff in de facto possession) will not avail a defendant against
the plaintiff in such possession unless the defendant shows he entered under the authority or
as the agent of such third party (owner).12

CONCLUSION

9 (1961) 1 W.L.R 1238 at 1243

10 Efanah v. Adekunle (1962) 5 E.N.L.R 55 p. 57; Awoyoolu v. Aro (2006) 1 J.N.S.C 147 at 170; Yussuf v.
Abina (1968) 2 All N.L.R.
11 (1848) 154 E.R 777 at p.724,
12 Lajide v. Oyelaran (1973) 3. WSCA 93 at 95.
This paper has delved, in brief, into the definition of possession, with particular regard to the
trespass to land and the applicable rules. In conclusion, trespass to land is actionable at the
suit of the person in possession of the land whether he be the owner or otherwise, as
possession confers on him the right to undisturbed enjoyment from all but another who
establishes a better title or right to the land.