TRESPASS TO LAND IN GHANA: A COMPREHENSIVE LEGAL ANALYSIS

INTRODUCTION

Trespass to land is one of the most significant torts under Ghanaian law, protecting an individual’s right to possess and enjoy land without unlawful interference. It occurs when a person intentionally or negligently enters or interferes with another person’s land without lawful authority, consent, or any legal justification. Importantly, the law protects not only ownership but also lawful possession. As a result, a person in lawful possession of land may maintain an action for trespass even against someone with a better title who is not in possession.

Trespass to land is actionable per se, meaning that a claimant does not need to prove actual damage before succeeding in a claim. Once an unlawful interference with land is established, the tort is complete.

MEANING OF LAND

The concept of land extends beyond the physical ground.

Section 281 of the Land Act, 2020 (Act 1036) defines land broadly to include:

“The solid surface of the earth, trees, plants, crops and other vegetation, a part of the earth’s surface covered by water, any house, building or structure whatsoever, and any interest or right in, to or over immovable property.”

This broad definition reflects the practical reality that land comprises everything permanently attached to it.

Similarly, Nii Ollennu, in Principles of Customary Land Law in Ghana, explains that land includes not only the surface itself but also everything naturally forming part of it, such as rivers, streams and growing trees, together with things permanently attached to it, including buildings and other structures.

EXTENT OF OWNERSHIP OF LAND

Traditionally, ownership of land was expressed through the Latin maxim:

Cuius est solum, eius est usque ad coelum et ad inferos meaning  “Whoever owns the soil owns everything up to the heavens and down to the depths.”

Under this principle, ownership was considered to extend to:

• the surface of the land;
• the airspace above it; and
• the subsoil beneath it.

Modern Ghanaian law, however, places important limitations on this principle.

Article 257(6) of the 1992 Constitution provides that all naturally occurring minerals beneath or upon land belong to the Republic of Ghana in trust for its people. Consequently, while landowners possess rights over their land, they do not own naturally occurring minerals beneath it.

Similarly, ownership of airspace extends only to the height reasonably necessary for the ordinary use and enjoyment of the land.

AIRSPACE AND SUBSOIL RIGHTS

The limits of ownership over airspace have been considered in several important cases.

In KELSEN v IMPERIAL TOBACCO CO LTD (1957) 2 QB 334, the defendant erected an advertising sign which projected approximately eight inches into the plaintiff’s airspace. The court held that the projection constituted trespass and granted a mandatory injunction ordering its removal. The court explained that while ownership of airspace is not unlimited, a landowner is entitled to exclusive possession of the lower airspace necessary for the ordinary use and enjoyment of the property.

Similarly, in BERNSTEIN OF LEIGH v SKYVIEWS & GENERAL LTD (1978) QB 479, aerial photographs were taken of the plaintiff’s property from considerable height. The court held that a landowner’s rights over airspace do not extend indefinitely upwards. Only the lower airspace necessary for ordinary enjoyment of the land is protected. Flights at ordinary navigable heights therefore do not amount to trespass.

The same principle applies beneath the surface. In POUNTNEY v CLAYTON (1883) 11 QBD 820, the plaintiff acquired land intending to build a railway but sought to prevent the defendant from continuing mining operations beneath it. The court held that the plaintiff had acquired rights only to the surface because the mining rights had previously been granted to the defendant. Accordingly, there was no trespass since the defendant possessed a lawful right to the subsoil.

WHAT CONSTITUTES TRESPASS TO LAND?

Trespass to land occurs where a person directly and intentionally or negligently interferes with another person’s land without consent or lawful justification.

Trespass may occur through:

• entering land without permission;
• remaining on land after permission has been withdrawn;
• constructing structures that extend onto another person’s property;
• cutting trees or branches across a boundary;
• digging beneath another person’s land; or
• throwing objects directly onto another person’s property.

The law protects possession rather than ownership alone.

ESSENTIAL ELEMENTS OF TRESPASS

To establish trespass to land, the claimant must generally prove:

• a direct act;
• a voluntary act;
• a positive act;
• intentional or negligent conduct;
• physical interference with the land; and
• absence of consent or lawful justification.

DIRECT ACT

The interference must be directly caused by the defendant.

In PICKERING v RUDD (1815) 1 Stark 55; 17 ER 204., branches from the plaintiff’s plants extended into the defendant’s land. The defendant cut only the portions that crossed the boundary. The court held that there was no trespass because the defendant never entered or physically interfered with the plaintiff’s land itself. The decision illustrates that the interference must be directly connected to the claimant’s land.

VOLUNTARY ACT

The defendant must have acted voluntarily.

In SMITH v STONE (1647) 82 ER 533, the defendant was forcibly carried onto the plaintiff’s land by other people. The court held that the defendant was not liable because his presence on the land was entirely involuntary. The actual trespassers were those who carried him onto the land.

However, a genuine mistake is not a defense. In BASELY v CLARKSON (1681) 3 Lev 37, the defendant accidentally mowed part of the plaintiff’s adjoining land believing it formed part of his own property. The court held that although the defendant acted under a mistake, he remained liable because he was in full physical control of his actions. Mistake is therefore not a defense to trespass.

PHYSICAL INTERFERENCE

Trespass requires direct physical interference with land.

In LAVENDER v BETTS [1942] 2 All ER 72, a landlord removed doors and windows from premises occupied by a tenant in an attempt to force the tenant out. The court held that this amounted to trespass because it directly interfered with the tenant’s possessory rights.

By contrast, PERERA v VANDIYAR [1953] 1 All ER 1109demonstrates the limits of the tort. There, a landlord disconnected the tenant’s electricity and gas supply. Although the conduct amounted to a serious breach of the tenancy agreement, the court held that it was not trespass because there had been no direct physical interference with the land itself.

CONSENT AND REVOCATION OF PERMISSION

Consent is a complete defense to trespass.

A person who enters land with permission is not a trespasser. However, once permission is withdrawn, the individual must leave within a reasonable time.

In ROBSON v HALLETT (1967), the court held that every occupier of a dwelling house gives an implied license to members of the public, including police officers on lawful business, to approach the front door and knock. Once that license is revoked, however, the visitor must be afforded a reasonable opportunity to leave before becoming a trespasser.

The law also distinguishes between ordinary licenses and contractual licenses.

In HURST v PICTURE THEATRES LTD [1915] 1 KB 1, a customer who had purchased a theatre ticket was wrongfully removed from the premises. The court recognized that although permission to remain on private property may generally be withdrawn, contractual rights arising from the ticket gave rise to separate legal consequences.

Likewise, in COWELL v ROSEHILL RACECOURSE CO LTD (1937) 56 CLR 605; [1937] HCA 17, a spectator who had paid admission was forcibly removed from the racecourse. The court considered the effect of a contractual license and recognized that contractual rights may limit the immediate consequences of revoking permission.

WHO CAN SUE FOR TRESPASS?

Trespass is primarily a possessory action.

Those entitled to sue generally include:

• allodial title holders;
• usufruct holders;
• customary freeholders;
• common law freeholders;
• leaseholders;
• customary tenants; and
• other persons in lawful possession.

Ghanaian courts have consistently recognized that possession enjoys legal protection.

In OHIMEN v ADJEI (1957) 2 WALR 275, the court recognized that although the allodial title holder possesses the highest customary interest in land, a usufruct holder who has reduced land into effective possession enjoys exclusive possessory rights over that portion and may sue even the allodial owner for trespass where those possessory rights are unlawfully disturbed.

Similarly, in AWUAH v ADUTUTU [1987-88] 2 GLR 191, the plaintiff received land from a stool, entered into possession and began cultivating it. When the stool later attempted to dispose of part of the same land to another person, the court held that the plaintiff’s usufructuary interest entitled him to maintain an action for trespass.

In ATTA v ESSON [1975] 1 GLR 128, the allodial owners entered land occupied by customary tenants and felled palm trees cultivated by them. The court held that while the allodial owners retained the radical title, the customary tenants possessed the beneficial interest in the crops they had cultivated. The defendants were therefore liable for trespass.

Even possession without title may receive legal protection.

In WIREDU v MIM TIMBER CO LTD [1963] 2 GLR 167–173, the court held that a person in possession of land, though himself a trespasser, may maintain an action against any other trespasser except the true owner or someone acting under the owner’s authority. The law therefore protects possession against all except those with a better legal right.

Likewise, in WUTA OFEI v DANQUAH [1961] DLSC10241, the court observed that possession depends upon the nature of the land. Vacant land may be possessed by acts such as erecting boundary pillars or placing signboards. Continuous occupation is not the only way of proving possession.

Conversely, WHITE v BAYLEY [1861] 142 ER 438, demonstrates that mere occupation is insufficient where the occupier has no possessory interest. A servant occupying premises solely on behalf of his employer could not sue for trespass because possession remained with the employer.

DEFENSES TO TRESPASS

Recognized defenses include:

• consent;
• license;
• necessity; and
• lawful authority under statute or the Constitution.

Article 18(2) of the 1992 Constitution guarantees the privacy of home and property but permits lawful interference where necessary for public safety, crime prevention, public health or the protection of the rights of others.

Accordingly, police officers executing lawful search warrants, authorized public officers carrying out statutory duties and other persons acting under lawful authority may enter land without committing trespass.

In CYNTHIA AYIMAH v EDWARD FIANKO & ECG [2018] DLHC5364, an ECG official entered premises to remove an electricity meter pursuant to lawful instructions from the owners of the property. The court held that the official’s entry was lawful and did not amount to trespass.

Similarly, in AFUA & OTHERS v NATIONAL HEALTH INSURANCE AUTHORITY (2016) HRCM/CM 240/2015, journalists entered the premises of the NHIA to report on matters of public interest. The court held that they were lawfully present and that the Authority’s officials were liable for assaulting them. The decision demonstrates that entry onto public premises in the exercise of lawful constitutional rights will not ordinarily constitute trespass.

REMEDIES AVAILABLE

Where trespass is established, the court may award several remedies, including:

• nominal damages where no actual loss is proved;
• compensatory damages for losses suffered;
• aggravated or exemplary damages in appropriate cases;
• prohibitory injunctions restraining continued trespass;
• mandatory injunctions requiring the removal of unlawful structures; and
• recovery of possession where the claimant has been unlawfully dispossessed.

The decision in KELSEN v IMPERIAL TOBACCO CO LTD (1957) 2 QB 334 remains a leading authority demonstrating the court’s willingness to grant mandatory injunctions requiring the removal of unlawful encroachments.

CONCLUSION

Trespass to land remains one of the principal legal mechanisms for protecting possessory rights in Ghana. It safeguards not only owners but also tenants, usufruct holders, customary freeholders and other persons lawfully in possession. The combined effect of the Land Act, 2020 (Act 1036), the 1992 Constitution, and the decisions of the Ghanaian and common law courts demonstrates that the law places a high value on the peaceful possession and enjoyment of land. Anyone who enters, remains upon, or interferes with another person’s land without lawful authority risks civil liability, regardless of whether actual damage can be proved.