LEGAL PERSPECTIVE: Trespass affects ownership by Dr AbdelGadir Warsama, Legal Counsel

Dr AbdelGadir Warsama, Legal Counsel

Three acts could affect ownership that includes conversion, detinue and trespass. Trespass consists of any legally unjustifiable act of direct physical interference with chattels in possession of another. Allegation of trespass arising out of touching or moving a chattel will seldom succeed. Trespass, unlike conversion and detinue, is probably actionable per se, that is without any proof of damage. It is unlikely that the damages awarded for such interference with possession will be worth recovering unless circumstances call for aggravated damages.   

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Where the chattel is damaged by trespass, the action is generally framed in negligence. This is because in order to be actionable trespass must be willful or negligent. In other words, trespass does not lie entirely free from fault and upon an allegation of trespass the burden of proof is on the plaintiff.

Although a trespass may coincide with a conversion, it is obvious that trespass can be committed without any denial of or interference with title, but trespass lies only on favor of a plaintiff who has possession. This includes, trustee of goods in the hands of a beneficiary, and the executor or administrator after death of the testator but before a grant of probate or administration. Also, the immediate right to possession enjoyed by a bailor where the bailment is at will. The right of immediate possession is limited to this specific instance in case of trespass because the right generally covers circumstances where conversion would lie but not trespass, as an action against seller of goods by buyer who paid price and the goods passed but who has not taken delivery.

The correct view is that right to possession, as a title for maintaining trespass, is merely a right in one person to sue for trespass done to possession. This right exists when the person whose actual possession was violated held as agent or on behalf of the person having the right to possession, and that it does not exist for the purpose of trespass or theft, as distinguished from trover or detinue, when the person whose possession was violated was not in any way a delegate or representative of the person having the right to possession, nor when the thing was not in any possession at all.

The three mentioned acts are against ownership, however, the legal characteristics of each is different therefore different action is needed for each act.

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