What is Possession and what is the legal significance of possession?
1.
What is possession
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. Ordinarily, the word “possession” means “the
state of having or owning something.” Legally, “possession” refers to “the fact
of having property in ones power; the exercise of dominion over property”. It
is the right under which one may exercise control over something to the
exclusion of all others; the continued exercise of a claim to the exclusive use
of a material object.
Possession therefore,
refers to the physical condition constituted by the fact that a person is in
physical control of a thing, with an intention so to control it. In other
words, possession consists of two elements; physical control and the intention
to exclude others. Possession consists of physical control over anything
coupled with the intention to exclude others from this control.
There are two kinds of possession which must be distinguished. The
first is called Corpus Possession. This is the actual physical control over the
thing possessed by a person. It is known as “possession in fact,” that is, the
continuous exercise of control of a person over a thing. The control need not
be direct control, in this context may be exercised through others; for
example, servants and agents. An agent controls not only what he owns, but
those which he holds on behalf of his principal.
The second type of
possession is the animus possidendi or legal possession. This exists when a
person exercises exclusive control over a thing and has intent to exclude
others, on behalf of himself from the use and enjoyment of the thing either
permanently or temporarily.
Exclusively possession is
ascribed not only to those in lawful possession such as holders of certificates
of occupancy and tenants, but also to those whose possession are wrongful. It
is instructive and general to point out that element of intentional control is
important here, since control necessarily involves an act of will.
2.
What is The Legal Significance of
Possession?
The
legal significance of possession, whether in the federal sense of seisin or otherwise, lies in the rights
to which it gives rise to, known as possesory rights or rights of possession
(to be distinguished from the right to possession). The law attributes a right
to a person in actual physical possession of land.
The person in possession may be there
by virtue of his right to possession as one of the incidents of ownership. Such
a right may also arise by virtue of a grant by the owner in the exercise of his
paramount powers. The primary right which possession confers is the right to
exclude intruders. A good example of this right is the right to damages for
trespass to land. Trespass to land concerns itself with interference with
possession.
Thus, the right to an action in
trespass is in the person in possession of the land. In Amakor v Obiefuna, the Supreme Court per
FATAYI-WILLIAMS opined that:
It is trite law that trespass to land is actionable at
the suit of the person in possession of the land. That person can sue for
trespass even if he is neither the owner nor a privy of the owner. This is
because possession of the land gives the person in such possession the right to
retain it and to undisturbed enjoyment of it against all wrongdoers except a
person who could establish a better title.
A possessor of land can therefore
exclude all those interfering with his possession, except a person with a
better right to immediate possession.
The possessory right to exclude
others exists even where the possession is without right and therefore
wrongful; it arises from the mere fact of actual physical possession,
irrespective of whether the possession is by virtue of a right to possession.
It is this protection given to the fact of actual physical possession, wrongful
though it may be, that is expressed in the adage ‘possession is nine parts of
the laws’.
This protection is, however, subject
to the qualification that if in fact the possession be without right it avails
only against those who have equally no right to possession, but not against the
person to whom the right belongs. In Ogualaji
v. AG. Rivers State & Anor,
it was held that if the law prescribed a particular method of exercising a
statutory power, example, recovery of premises or possession, any other method
is excluded. In view of the state of the general law as to the right and
position of a former tenant or lessee who holds over, our courts have the right
to more in and protect possession.
Therefore, in cases where a person
with a better right to immediate possession expresses an intention to possess
the property, such a person is expected to go to court and obtain an order for
possession before entering the land. The second right flowing from possession
relates to the presumption of ownership. Thus, the law recognizes that the
possessor may be there by virtue of his right to possession as one of the
incidents of ownership.
By virtue of the authorities of section 143 of the Evidence Act 2011
and the case of Tijani v Cole, a person in possession of land
is presumed to be the owner until the contrary is proved. Two applications of
this presumption may here be noticed. First, as between two claimants to a
piece of land, neither of whom can satisfactorily prove his title, the person
in possession is the party entitled to the protection of the law. Secondly, an
adverse possession has by virtue of this presumption a presumptive or possesory
title to the land, notwithstanding that he is liable to be defeated at the
instance of the real owner. Nevertheless, although presumption of ownership in
favour of the person in possession does not confer ownership as such, it is
capable of ripening into ownership by lapse of time or by acquiescence and or
laches on the part of the real owner.