Facts
A person who was not allocated a plot of land sued a person who encroached upon it in trespass. The person who sued entered into possession unlawfully. The person who was sued believed that the plot was his so after demolishing the structure put up by the other party he proceeded to erect a cottage thereon. The Court considered whether trespass could be committed in the circumstances and if so whether there were any defences open to the tortfeasor.
Held: (i) Although in law neither of the two parties had a better title than the other, the foundation of an action for trespass to land is possession, and it is not necessary that the plaintiffs possession should be lawful.
(ii) since Omari had actual possession before the demolition and the subsequent construction by Jela, Omari's action was proper.
(iii)one of the defences against an action for trespass is a claim by the defendant that he had a right to the possession of the land at the time of the alleged trespass or that he acted under the authority of some person having such a right.
Case Information
A Appeal dismissed.
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