TRESPASS TO LAND IN GHANA- A COMPREHENSIVE STATUTORY, CONSTITUTIONAL, AND CASE LAW ANALYSIS

Seth Doe 

Assisted by 

Sarah Asante , Philipa Hagan , Ewurama Mongson

1. Introduction

Trespass to land is one of the most important torts protecting possession and proprietary interests in Ghana. It serves as a legal mechanism for safeguarding the peaceful occupation of land and preventing unlawful intrusion. Given Ghana’s plural land tenure system, which recognizes customary and statutory interests concurrently, disputes involving trespass are widespread and frequently litigated. Ghanaian courts have consistently affirmed that trespass to land is actionable per se, meaning that once unlawful interference with possession is established, liability arises even where no physical damage is proven. The tort derives authority from common law principles, statutory provisions under the Lands Act, 2020 (Act 1036), and constitutional protections under the 1992 Constitution.

2. Meaning and Scope of Land

Section 281 of the Lands Act, 2020 (Act 1036) defines land to include the solid surface of the earth, trees, plants, crops, and vegetation, land covered by water, buildings and structures, and any interest or right in, to, or over immovable property. This statutory definition expands the scope of trespass protection beyond physical soil to include fixtures, improvements, and proprietary interests. Ollenu, in Principles of Customary Land Law in Ghana, similarly defines land as encompassing the surface of the soil, natural attachments such as rivers and trees, and artificial attachments such as buildings and permanent structures. This unified interpretation ensures that trespass actions may be grounded in both physical intrusion and interference with proprietary interests.

3. Constitutional Context of Trespass to Land

Article 18(1) of the 1992 Constitution guarantees the right to own property, while Article 18(2) prohibits unlawful interference with the privacy of the home and property except in accordance with law and in the public interest. Trespass to land, therefore, has constitutional implications, as unlawful entry constitutes a violation of private property rights. However, Article 257(6) of the 1992 Constitution limits land ownership by vesting all naturally occurring minerals in the President on behalf of the Republic. This provision modifies private rights to subsoil and demonstrates that ownership of land in Ghana is not absolute.

4. The Cuius Est Solum Principle and Its Modification

The common law maxim cuius est solum eius est usque ad coelum et ad inferos traditionally suggests that ownership of land extends indefinitely upward and downward. Ghanaian law has adopted a restricted version of this doctrine. In Kelsen v Imperial Tobacco Company, the plaintiff occupied office premises above a shop, while the defendant erected a signboard that projected approximately eight inches into the plaintiff’s airspace. The plaintiff sued for trespass, seeking removal of the sign. The court held that the intrusion constituted trespass and granted a mandatory injunction compelling the removal of the projection. The court reasoned that although land ownership includes airspace, this ownership is limited to the height necessary for the ordinary and reasonable enjoyment of the land. Any unauthorized intrusion into that protected zone is actionable even without proof of damage. This case firmly established vertical trespass in Ghanaian jurisprudence and limited the scope of the ancient maxim.

Similarly, in Lord Bernstein of Leigh v Skyviews and General Ltd, the defendant operated an aerial photography business and flew aircraft over the plaintiff’s land to take photographs. The plaintiff claimed that this constituted trespass to airspace. The court dismissed the claim and held that landowners only own such airspace as is reasonably necessary for ordinary use and enjoyment of land. Airspace beyond that height forms part of public navigable airspace and cannot ground a trespass claim. This decision balanced private property rights with public aviation interests and further refined the scope of vertical ownership.

5. Nature of Trespass to Land

Trespass to land consists of a direct, voluntary, and unjustifiable physical interference with land in the possession of another person. It is distinct from nuisance, which concerns indirect interference. Trespass protects possession rather than ownership strictly and is actionable per se. The plaintiff must establish that the defendant caused the intrusion, acted voluntarily, engaged in a positive act, intended or negligently caused the interference, physically interfered with the land, and acted without consent or lawful justification.

6. Direct and Voluntary Interference

In Pickering v Rudd, the plaintiff’s tree branches extended over a boundary wall into the defendant’s land. The defendant cut the encroaching branches without entering the plaintiff’s land. The plaintiff sued for trespass. The court held that no trespass had occurred because the defendant had not directly entered or interfered with the plaintiff’s land. The decision established that trespass requires direct physical intrusion and that actions confined to one’s own land do not constitute trespass even where they affect adjoining property.

In Smith v Stone, the defendant was forcibly carried onto the plaintiff’s land by third parties and was sued for trespass. The court held that the defendant was not liable because his presence on the land was involuntary. The court emphasized that trespass requires voluntary conduct and that liability rests on those who caused the physical intrusion. This case laid the foundation for the requirement of voluntariness in trespass actions.

The principle was further clarified in Basely v Clarkson, where the defendant mistakenly mowed part of the plaintiff’s adjoining lawn. The defendant argued that the act was involuntary. The court rejected this defence and held that voluntariness relates to physical control of movement and not to intention or mistake. Since the defendant was in control of his actions, he was liable for trespass. The case established that mistake is not a defence in trespass to land.

7. Physical Interference and Possessory Rights

In Lavender v Betts, the landlord forcibly entered premises occupied by a tenant and removed doors and windows in an attempt to eject the tenant for non-payment of rent. The court held that the landlord’s conduct constituted trespass because the tenant remained in lawful possession of the premises. The decision reaffirmed the principle that possession, not ownership, determines who may sue for trespass and that even landlords may be liable where they unlawfully interfere with tenants’ possessory rights.

In contrast, in Perera v Vandiyar, the landlord cut off electricity and gas supply to pressure the tenant to vacate. The tenant sued for trespass. The court held that although the landlord’s conduct amounted to a serious breach of contract, it did not constitute trespass because there was no direct physical intrusion onto the premises. This case distinguished contractual breaches from tortious trespass and reinforced the requirement of physical interference.

8. Consent, Licence and Revocation

In Hurst v Picture Theatres Ltd, the plaintiff purchased a ticket to a theatre but was forcibly removed by the manager on the mistaken belief that the plaintiff had not paid. The theatre argued that revocation of consent made the plaintiff a trespasser. The court held that although the theatre breached the contract of admission, it could not rely on its own wrongful revocation to justify the use of force. The case established that contractual licences create enforceable rights and that revocation may give rise to breach of contract even though continued presence may technically amount to trespass.

In Cowell v Rosehill Racecourse Co Ltd, the plaintiff paid for admission to a racecourse but was later forcibly ejected. The defendant argued that the licence had been revoked. The court held that where a licence is contractual in nature, it cannot be arbitrarily revoked and the holder cannot be treated as a trespasser. This case reinforced the distinction between bare licences and contractual licences.

9. Implied Licence and Lawful Authority

In Robson v Hallett, police officers entered a private dwelling to make inquiries. After being ordered to leave, a violent altercation occurred. The defendants argued that the police were trespassers. The court held that householders give an implied licence to members of the public, including police officers, to approach the door and knock for lawful purposes. The court further held that once such a licence is revoked, a reasonable time must be allowed for departure. This case established the doctrine of implied licence and reasonable withdrawal time.

In Cynthia Ayimah v Edward Fianko and ECG, ECG officials entered the premises to remove an electricity meter following instructions from the property owner. The plaintiff alleged trespass and assault. The court held that the ECG official was not a trespasser because they acted under lawful authority and with permission from the true owner of the property. The court further held that a party who instigates violence cannot complain where proportionate force is used in response. This case illustrates statutory justification as a defence to trespass.

Similarly, in Afua and Others v National Health Insurance Authority, journalists entered NHIA premises to conduct investigative reporting and were assaulted by officials. The court held that the journalists were not trespassers because entry onto public premises for lawful media activity was justified and constitutionally protected. The NHIA was held liable for the acts of its employees.

10. Possession and Who May Sue

Trespass to land is fundamentally a possessory action. In Appolo Cinemas Estates (Gh) Ltd v Chief Registrar of Lands, the plaintiff was the registered owner of property which the defendant unlawfully entered and demolished. The court held that the plaintiff had constructive possession of the premises and that the demolition constituted trespass. The case affirmed that legal ownership carries constructive possession sufficient to sustain trespass actions.

In Bucknor v Essien, the defendant entered land under authority given by a lawyer who lacked consent from the true co-owner. The court held that a defendant cannot rely on authority from a person without title and that any possession is good against a wrongdoer. The case confirmed that trespass protects possession and that defendants cannot rely on ius tertiiunless acting under the true owner’s authority.

In Nicholls v Ely Beet Sugar Factory, the court held that to maintain an action in trespass, the claimant must show exclusive possession or a possessory interest. Mere permission or occupation without control is insufficient.

In Nunekpeku v Ametepe, the plaintiff failed because he could not establish possession at the time of the alleged trespass. The court held that where possession is disputed, the plaintiff bears the burden of proof, and failure to establish possession is fatal to the claim.

In Wuta Ofei v Danquah, the court held that possession does not require fencing or cultivation and may be demonstrated through acts such as the installation of boundary pillars or signposts. The case established that the nature of possession depends on the character of the land.

In Wiredu v Mim Timber Company Ltd, the court held that even a trespasser in possession may sue another trespasser unless the defendant proves superior title or authority from the true owner. This principle was reaffirmed in Owiredi v Mim Timber Company Ltd.

In Mensah v Peniana, the court held that proof of possession alone is sufficient to maintain an action for trespass unless the defendant proves a better title. Where the defendant establishes ownership, the plaintiff’s claim fails.

In Ntorih v Lagos, the plaintiff, a stool chief, successfully sued when the defendants erected a mosque on stool land without lawful authority. The court held that possession by trespassers cannot defeat the superior title of the true owner.

In Ayisi v Asibey II, the plaintiff proved purchase from the stool and exclusive possession. The court held that the plaintiff was entitled to sue subsequent purchasers who entered the land unlawfully.

In White v Bayley, the court held that a servant or agent occupying land on behalf of an employer does not acquire possessory rights and cannot sue for trespass.

In Allan v Liverpool Overseers, the court held that exclusive possession is required to sustain trespass and that shared control defeats possessory claims.

11. Trespass Ab Initio

The doctrine of trespass ab initio provides that where a person lawfully enters land but abuses the authority, the law treats the entry as unlawful from the beginning. In the Six Carpenters Case, the defendants entered a public house lawfully but refused to pay for what they consumed. The court held that their abuse of the licence rendered them trespassers from the moment of entry. This principle applies in Ghana, where statutory or contractual authority is abused.

12. Remedies for Trespass to Land

Trespass to land attracts damages and injunctive relief. In Odonkor v Amartei, the court held that damages in trespass are at large and exemplary damages may be awarded to deter flagrant violations. In Mahama v Issah, nominal damages were awarded for unlawful entry even though minimal harm occurred. In Hayfron v Egyir, substantial damages were awarded for the destruction of boundary markers, crops, and intimidation tactics. These cases confirm that damages serve compensatory, deterrent, and punitive purposes.

13. Conclusion

Trespass to land in Ghana remains a vital tort protecting possession and proprietary interests. The law emphasizes possession over ownership, recognizes constitutional and statutory limitations, and balances private rights with public necessity. Ghanaian courts have developed a coherent jurisprudence establishing that trespass is actionable per se, that possession is the cornerstone of liability, and that lawful justification and consent provide the principal defences. The doctrine continues to play a central role in land dispute resolution and property rights enforcement in Ghana.