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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