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With the aid of decided cases distinguish between ownership and possession of land


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. 

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