"In my humble view, the claim of the Plaintiff/Respondent in the Lower Court is in the tort of Trespass to land and all that the plaintiff ought to show and prove at the hearing as can be gleaned from his pleadings and Reliefs claimed is that he was in exclusive possession of the land as at the time the Appellant???s trespassed upon the same. This is because Trespass as a tort is actionable at the instance of a person in exclusive possession. This position of the law had long been established by our Court in a plethora of cases of settled antiquity like Adio V. Fatukasi (1972) 2 U. I. L. R. 51; Adeshoye V. Shivonika (1952) 14 W. A. C. A. 86; Odebanji V. Okunola [1968] N. M. L. R. 221 (S.C) Renner V. Annan [1935] 2 W. A. C. A. 258 Will V. Will (1924) 5 N. L. R. 76; Akpiri V. West African Airways Corporation (1952) 14 WACA 195, and Oluwi V. Eniola [1967] N. M. L. R. 339 (S.C); where it was variously held that in a case of trespass, the Plaintiff must first establish that he is in possession of the land at the time of trespass complained of or who is deemed to have been in such possession at such time of the trespass the rationale being that trespass is an injury to possession rather that to title. Thus, an owner of land who is legally entitled to possession is ordinarily not competent to maintain an action in trespass before having possession.
It has therefore been held that possession is so important that a tenant or a licensee in possession can bring an action in trespass, his possession must be clear and exclusive, but the slightest amount of possession would suffice to entitle the person in possession to recover against a mere trespasser. Although an owner of land ordinarily ought not to bring an action in trespass, where as in this case, the trespasser by the construction of the mast shall cause permanent injury to the land which shall affect the value of their inheritance, they (owners) can bring an action for the injury to their interest. See Tongi V. kalil 14 WACA 331 followed in Eze V. Owusoh [1962] 1 ALL NLR 138. That all that a claimant in Trespass to land simpliciter ought to show is exclusive possession was amply demonstrated by Tobi, JSC in the celebrated case of Yekin Adedokun Oyadare V. Chief Olajire Keji & Anor (2005) LPELR - 2861 (SC.) (2005) 7 NWLR (Pt.925) 571, (2005) I. S. C (Pt.1) 19 where he held inter alia pages 21 ??? 22 paras G; C of the LPELR earlier cited thus:
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. The person can sue for trespass even if he is neither the owner nor privy of the owner. This is because exclusive possession of land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish better title. Therefore, anyone other than the true owner, who disturbs his possession of the land can be sued in trespass and in such an action, it is no answer for the Defendant to show that the title to land is in another person. To resist the Plaintiff’s claim, a Defendant must show either that he is the one in possession or that he has a right to possession” See further page 20 paras. A, B. where the Emeritus Law Lord earlier held that it is good law that a plaintiff who succeeds in proving acts of possession can obtain Judgment claiming trespass as acts of possession and enjoyment of land could be evidence of ownership or right of occupancy. See also per Ogbuagu, JSC in Mather Echere V. Christopher Ezerike & Ors. (2006) LPELR; 1000"
Per AGUBE, J.C.A. IN MTN NIGERIA COMMUNICATIONS LTD v. EMEGANO CITATION: (2016) LPELR-41090(CA)
