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Possession of Land

Possession of Land
Possession is one of the incidents of ownership. Moreover, in certain circumstances possession which was not originally grounded in ownership may grow into it. Possession means the effective physical or normal control or occupation of a property. It is a relationship of a person to a thing. Possession is the fact of having property in ones power. It is the exercise of dominion over property.
Possession involves both physical and mental elements. It arises when a person has physical control of a tangible thing, be it land or chattel, with the intention to exclude others therefrom. The intention to exclude others is sufficient to retain possession once it is acquired, for without it a person may lose possession of his house and belongings by going on a brief vacation. But, the nature of control which grounds possession depends on the nature of the thing possessed. Indeed, it is generally accepted that possession in any given case means possession of that character of which the thing is possible.
There can only be one possession of a thing at any given time. It is true that two or more persons may be concurrently in possession of a piece of land as joint tenants or tenants in common, but there can be no such thing as concurrent possession by two or more persons claiming adversely to one another. Whenever the facts of a land case are such that possession as between the opposing parties is indeterminate, the party who has title is deemed to be in possession and in that case the title of the parties is put in issue and must be settled by the court.
The person in possession is not without rights. There are two important attributes. The first is that the person in possession has the right to keep away intruders. Even, where he does not have any legal title, in so far as he is in physical possession his right is protected by law. He can keep out all those interfering with his possession. Though, he may not be able to keep out the person with a better title; even then, if he resists the person with a better title, the person with a better title may have to go to court to eject him from possession.
This secured right flows from the presumption of law that the person in possession is presumed to have title to the property, until the person with a better title is established and declared by a competent court. As against other trespassers the person in possession’s right to possessory title will be upheld. In fact, if the real owner does not take any step for a period of time, the possessory right may ripen into title for lapse of time or by laches and acquiescence on the part of the real owner.
The right to possession is an incident of ownership, though it may arise not only as an incident of ownership; but also, by virtue of grant from the owner. However, although possession is an incidence of ownership, circumstances abound where possession and ownership are separated.
Thus, while the owner has the right to possession of his land, he may not exercise this right and may choose to allow a stranger to occupy the land or exercise possessory right over it, in which case, the stranger may be in possession. Again, a stranger can be in possession of land without the consent of the true owner. Where possession is against the consent of the owner: It is called adverse possession. An adverse possessor is a person who has no right to possession but who is in possession of a piece of land.
Under land law, possession is the actual physical control over a piece of land. For possession of land to be protected by law, it must be exclusive. A person claiming possession must prove not only his relationship to the land, he must also prove his physical acts showing exclusive control of the land. To establish possession, a person must show that he is physically resident on the land and that some visible or external signs can be shown to indicate control over the piece of land in question. But, it is instructive to note that the type of conduct which indicates possession must vary with the type of land. By this, acts like farming, can in certain circumstances be sufficient to establish possession.
Thus, in Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63, Obaseki, JSC opined that “planting of crops on land is one of the most effective means of asserting possession of a parcel of land. Also, in Okechukwu v. Okafor (1961) 1 All NLR 685 at 690, the Federal Supreme Court held that the erection of pillars on the land is a sufficient indication of possession. Similarly, in Alatisha v. Sanyaolu (1964) 1 All NLR 398, the Supreme Court of Nigeria held that surveying of land and demarcation of its boundaries by stout wooden pegs is sufficient to found possession.
Lastly, the act of building, or planting on land are acts of possession. One may not necessarily build, one may fence or use some other items to demarcate it, and one will be held to be in possession. In Wuta-Ofei v Danquah (1961) 3 All ER 596, demarcation by wooden pegs was held to be sufficient acts of possession.
Legal Significance of Possession
The legal significance of possession lies on the rights which it gives rise to. These are certain legal rights accruing to an individual by the mere fact of possession. We shall examine these rights briefly.
a)                  Possession gives rise to a right to exclude intruders and this right arises from the mere fact of actual physical possession. This right thus, exists even where the possession is without the consent or right of the owner and therefore wrongful. This is because it arises from the mere fact of actual physical possession, irrespective of whether the possession is by virtue of a right to possession.
The person in possession can therefore exclude all those interfering with his possession, except the person with a better right to immediate possession, by maintaining an action in trespass against all intruders. It is on this premise that possession is described as the nine part of the law.
In Balogun v. Akidinyi (1992) 2 NWLR (Pt. 225) 519, the court held that trespass to land being an offence against possession of land, means that only a person in possession can raise an action on it. The court maintained that a person in possession even illegally can maintain an action against anyone except a real owner of the property.
b)                 A second right flowing from possession relates to the presumption of ownership. Possession gives rise to the presumption of ownership in favour of the person in possession. Thus, unless the contrary is proved, a person in possession of land is by law presumed to be the owner.
A statutory codification of this position can be found in section 143 of the Evidence Act, 2011, (which prescribes the burden of proving ownership) thus “when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”. The implication of this presumption is that in the event of two conflicting claims of title to land and where no satisfactory prove of title exists; title will be awarded to the person in possession, even if the possession is wrongful.
This presumption can only be rebutted by the real owner upon prove of better title to the property. This means that the person in possession has a very strong footing even though this presumption is rebuttable. Finally, although possession does not per se confer ownership; it is capable of ripening into ownership by lapse of time or laches by the true owner.

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