Trespass to land in Ghanaian jurisprudence

Tort law with regards to trespass to land in Ghana. After carefully reading my own article or write-up called “The Legal Effects of the Registration of Titles to Land in Ghana,” I thought of writing a trespass to land in Ghana.

The good people of Ghana ought to know their rights with regards to their interests and enjoyment as well. Trespass to land is the name given to that form of trespass that is constituted by unjustifiable interference with the possession of land.

Trespass to land is to protect the owner against any unlawful or unjustifiable interference with the person's possession of land. Trespass to the person is actionable per se, which means whether or not the person has suffered any damage. Added to that, there is no need for the plaintiff or claimant to prove that he or she has suffered any damage. Actionable per se is applicable to trespass to land in Ghana; the position of law in Ghana with regards to trespass to land is well established and is actionable without proof of damage.

Trespass to land in Ghana can be committed if and only the plaintiff can show a

direct and unjustifiable or unlawful interference with the plaintiff's possession of land. Trespass to land, in common with all forms of trespass, must be direct and immediate and is actionable without proof of damage. Therefore, actual damage is not necessary for trespass to land in Ghana.

The Nature of Trespass to Land:

Possession:

It is valid for the defendant to have unlawful interreference with regards to land before the claimant claims to have succeeded in trespassing on land. If Sarah owns land and she has exclusive possession of the land, Nbangba's unlawful entry upon Sarah’s land constitutes trespass. In the case of Appolo Cinemas Estates (GH) Ltd v Chief Registrar of Lands and Others, it was established by the court that, Since the plaintiff was the legal owner of the premises, it had

constructive possession of the premises.

Accordingly, the defendant’s acts in entering the premises and demolishing the building thereon at a time when he had no legal title to it constituted trespass. However, possession is one of the key essential elements to establish in order to succeed in trespassing on land in Ghana. In Bucknor v. Essien, it was held that any possession is legal possession against a wrongdoer, and in an action for trespass, a defendant may not set up an ius tertii.

He may set up title in himself or show that he acted upon the authority of the real owner, but where someone purporting to give him leave has no real authority to do so, a defendant, if he acts on this authority, is a trespasser. Hence, trespassing on land is understood to be a possessory action. Herein, for a person to succeed in an action with regards to trespassing on land, he/she must establish possession or title.

A person will not succeed in an action to trespass on land without first establishing possession or proving his/her title. In the case of Nicholls v. Ely Beet Sugar Factory, it was held that the claimant must have an interest in land in possession or at least exclusive possession to maintain an action for trespass.

In Nunekpeku and Others v. Ametepe, it was held that, in an action the true nature of which was damages for trespass to land, it was sufficient for the plaintiff to establish possession. It was only where there was specific or general denial of his title that the plaintiff could not succeed without proving his title. And an action for recovery of possession was a wrong against

possession, and therefore the main fact which a plaintiff must prove in order to succeed was possession.

But where, as in the instant case, the defendant pleaded possession, then it was

incumbent upon the plaintiff to prove that he was in possession at the time the defendant entered upon the land and wrongfully dispossessed him of it. Therefore, a mere licensee, such as a lodger or guest in a hotel, cannot sue for trespass.

Also, in the case of Odonkor and Others v. Amartei, it was clearly established by the Supreme Court that the trespass to land was committed by injury to or interference with one's possession. Accordingly, the cardinal principles in an action for trespass to land were that the plaintiff had to establish that he was in exclusive possession of the land at the time of the trespass and that the

trespass was without justification.

In view of the above legal authorities or the Ghanaian jurisdiction, it is important for the claimant or plaintiff to establish possession or prove title to the land in order to succeed in an action of trespass to land in Ghana. Herein, the onus of proof lay on the plaintiff to establish his/her title, as the principle established in the case of Otoo v. Biney and Another 8 applied.

Again, in Akakyie II v. Ediyie 9 , it was clear that the plaintiff's title was put in issue, but since he failed to prove his title to the land, the trial magistrate was right in giving judgment for the defendant. In the case of Mensah v. Peniana 10, it was held that proof of possession by a plaintiff is sufficient to maintain an action for trespass against a defendant who cannot prove a better title.

Hence, mere possession gives the possessor a right of action against all who disturb it without having some better right than his, since any possession is a legal possession against a wrongdoer. Trespass was actionable at the suit of the person in possession of land at the time the trespass was committed. The owner had no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession was not sufficient to support the action. Kumah and Another v. Himah 11 apply.

Interference

Generally, indirect interference would not amount to trespassing to land. If Sarah’s is my neighbor and trees on her land branches to encroach onto my land constitute indirect interference, I would not succeed in an action of trespass to land, but I can decide to sue Sarah’s for nuisance and not trespass to land. However, Sarah’s unlawful entry onto my land without my permission constitutes direct interference or Sarah’s refusal to leave when permission to be there

has been withdrawn. It has long been established that a person must enter another’s land voluntarily to be liable for trespass. In Smith v. Giddy, it was established that branches of a tree on my land project into or over your land, which is a nuisance.

Trespass ab initio:

The old rule of trespass ab initio states that a person who enters land lawfully but subsequently abuses that right of entry will be liable for the entire transaction, not merely that portion of it that follows the abuse. My entering the claimant's land with the authority of the claimant and abusing that right then made me a trespasser ab initio. In the Six Carpenters Case (1610), Co Rep 146A is when the six carpenters entered a public house, the Queen’s Head, Cripplegate, where they consumed a quart of wine worth 7d and bread worth 1d. They refused to pay. The issue was whether the refusal to pay made their entry into the public house tortious.

It was held that when a person has permission or authority to enter premises, he will be a trespasser ab initio if that purpose is abused. The courts deem that the entry was, in fact, for that unlawful purpose and therefore a trespass.

Damages:

The plaintiff is entitled to damages, or an injunction may be obtained for trespass if he/she successfully sues for trespass to land. In Appolo Cinemas Estates (GH) Ltd. v. Chief Registrar of Lands and Others supra, it was held that the defendant’s acts in entering the premises and demolishing the building thereon at a time when he had no legal title to it constituted trespass.

However, since the defendant did not establish the special damages pleaded, that claim would be refused. But general damages of ¢200 million would be a fair award for the damage to the building. Also, in the case of Mahama v. Issah and Another, it was established that since the plaintiffs admitted entering the plot in dispute to dig a foundation for a building, they committed trespass on the land for which they should pay some damages. They would therefore pay nominal damages assessed at ¢25,000 to the defendant for that trespass.

In Odonkor and Others v. Amartei supra, in actions for trespass to land, damages were at large. Accordingly, there was no need to plead or prove special damages. Accordingly, the ¢1 million damages awarded against the appellants, who were obdurate land speculators, would not be enough to compensate the respondent for the contumelious disregard of their rights in the land.

An award of exemplary or punitive damages would have served to warn other persons against encroachment on the property rights of others. There is no doubt that if the claimant succeeds in an action to trespass on land, he/she is entitled to damages. See, in the case of Hayfron v. Egyir, it was established that, given the nature of the trespass, namely the destruction of the appellant's corner pillars, bamboo fence, and vegetable garden, the entry on the land by the respondent, and the performance of rituals obviously designed to scare the appellant off the land, the ¢5,000 damages claimed by the appellant were entirely reasonable and would be granted.

Defences:

Consent

Licence

Necessity

Justification by law

Conclusion:

A simple definition is: a direct, physical, and unlawful interference with land that is in the possession of another person. Mere possession gives the possessor a right of action against all who disturb it without having some better right than his, and proof of possession by a plaintiff is sufficient to maintain an action for trespass against a defendant who cannot prove a better title.