With the aid of decided cases
distinguish between ownership and possession of land
Possession is an incidence of
ownership. However, circumstances abound where possession and ownership are
separated. In fact, both differ in terms of their meaning, establishment and
legal significance.
Possession is the actual physical
control over a piece of land. It is constituted by the fact that somebody is in
physical control of the land with intention to control it. Thus, possession
necessarily involves an act of will. On the other hand ownership signifies the
most comprehensive or maximum interest a person can have in land. Ownership
connotes all rights, powers and privileges which an individual may have or
exercise over a piece of land. In Abraham
v Olorunfummi (1991) 1 NWLR (Pt. 165) 53,
NIKI TOBI JCA (as he then was) opined that ownership connotes a complete and
total right over a property.
Further, possession may be
established by evidence of physical residence on the land. It may also be
established by a show of some visible or external sign which indicates control
over the piece of land in question. For instance, in Wuta Ofei v Danquah (1961) 3 All ER 596, it was
held that the demarcation of the land with pegs at its four corners by the
claimant was sufficient act of possession even though it was an uncultivated
land.
Also, in Alatishe v Sanyaolu (1964) 1 All NLR 398, where the land in dispute
was also bush land, all that the claimant did was to demarcate the land with
stout wooden pegs, it was held that possession had been established. Again, in Okechukwu v Okafor (1981) 1 All NLR 398, the Supreme Court held that the erection of
pillars on land was sufficient to establish possession. Additionally, in Ekpan v Uyo (1986) 3 NWLR (Pt. 26) 63,
OBASEKI JSC held that planting of crops on land is one of the most effective
means of asserting possession of a parcel of land. Equally, someone could be in
possession through the erection of a sign board on the land: Mogaji v Cadibury Fry (Export) Ltd (1972) 2
SC 97.
Summarily, the acts of the plaintiff
sufficient to prove possession were summarized by ONU JSC in Nathaniel Ude v N’chimbo as follows:
Cultivation of a piece of land, erection of a building
or fence thereon, demarcation of land with pegs or beacons are all evidence of
possession. A person can also be in possession through a third party such as a
servant, agent or tenant. Possession of predecessors in law deemed to be
continued by their successors.
From
the following, it may be deduced that possession is a question of fact to be
decided on the merits of each particular case. However, ownership is a creation
of law. Thus, it is the law that could determine what could or could not be
owned by the individual or groups in the society.
Also, the owner of a land is the person
who has the right to possession, whether mediate or immediate and whose right
to possession is not tied up with or is restricted by the superior right of another
person. To amount to ownership in this sense the right claimed must be infinite
and absolute. Ownership may also be established by possession of statutory or
customary right of occupancy. However, this may be displaced by prove of better
title by another person: Abioye v Yakubu.
This is consistent with the decision of the Supreme Court in Ogunleye v Oni to the effect that a
certificate of occupancy is a mere piece of paper.
Another area of divergence between
possession and ownership can be seen in their legal significance. In the first
place, actual physical possession of a piece of land confers on the possessor
the primary right to exclude intruders from the land. This right accrues even
to a person in adverse possession. It is this significant attribute of
possession that gave rise to the often quoted adage that “possession is the
nineth part of the law”.
The right to exclude intruders
confers on the person in possession a cause of action in trespass against
intruders. In Balogun v Akonyi (1992) 2
NWLR (Pt. 225) 519, the court held that trespass being an offence against
possession, only a person in possession can found or (base) an action on it.
The court, further, maintained that a person in possession even illegally, can
maintain an action in trespass against anyone except the owner of the property.
Therefore, trespass to land is actionable at the suit of the person in
possession of the land.
Secondly, possession raises the
presumption of ownership in favour of the person in possession. This is
consistent with section 143 of the Evidence
Act 2011 which provides that 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 competing
claims of title to land and in the absence of satisfactory proof of ownership
by either party/claimant; title will be awarded to the party in possession.
In the case of Tijani v Cole, it was held that the long possession of the defendant
and his ancestors have raised a presumption of ownership in their favour.
However, in Da Costa v Ikomi, the
Supreme Court pointed out that the section only creates a presumption of
ownership and does no more; it cannot stand where another person proves a
better title.
On the other hand and lastly,
ownership is legally significant by virtue of the following;
i. The owner of a parcel of land has the
right to use and enjoy, manage, consume, alienate and destroy the thing owned;
ii. He also has a right to posses the
thing which he owns which includes the right to exclude others;
iii. The owner also has the power and
right to alienate inter vivos, that
is the right to transfer his interest over the object to another.
iv.
He
additionally has the right to dispose of the property by Will.
v. An owner also has the right to
maintain action to recover adverse possession – recover the land from an
adverse possessor.
vi. Incorporate rights accrue to a person
by virtue of the ownership of the land.