POSSESSION AS A MEANS OF PROOF OF OWNERSHIP IN NIGERIA
Land is a delicate subject in Nigeria. It has been a subject of conflict and war in some communities and even between countries. Often times, the courts are charged with determining claims to land by parties purporting to be the owners of such land either by inheritance, by acts of possession or holding title documents to such land. This paper aims at examining possession as a means of proving ownership to land in Nigeria.
There are five ways of proving title to land in Nigeria, this is as established by the Supreme Court in the case of Idundun & Anor V. Okumagba & Ors. These are:
- Traditional evidence.
The position of the law is that a party who hinges his claim on declaration of title to land vide traditional history must trace ancestral title, i.e whether by family settlement, conquest, or grant. Authorities abound evincing that a claim predicated on traditional history or evidence must be proven by any of these methods, and traditional evidence adduced must be cogent, un-contradicted evidence that must also be conclusive, if the party is to succeed in his claim. This is as held by the Supreme Court in the case of Alhaji Ganiyu M. B. Iseogbfken & Anor. Vs Alhaji. Sikiru Gberigi Adelakun & Ors.
- Production of document of title.
This entails the establishment of title to land by production of title documents linking the person to the land. Such document includes Certificate of Occupancy issued by the State Governor, Deed of Assignment, and other title transfer deeds.
In the case of Pastor J. Akinlolu Akinduro V Alhaji Idris Alaya, the Supreme Court held that the production of a document of title is indeed one of the five ways of establishing title to land.
The document so tendered in evidence must, of course, be duly authenticated in the sense that its due execution must be proved unless it is produced from proper custody in circumstances giving rise to a presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract.
The Court will give consideration to the following in order to ascertain the authenticity of title documents:
(a) whether the document is genuine and valid;
(b) whether it has been duly executed, stamped and registered;
(c) whether the grantor had the authority and capacity to make the grant;
(d) whether in fact the grantor had what he purported to grant; and
(e) whether it has the effect claimed by the holder of the instrument.
- Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
In cases where acts of possession and ownership are held to be conclusive proof of title to land, the courts have always insisted that such acts not only extend for a length of time, but also be numerous and positive enough to draw an inference of exclusive ownership. This means not only that from the overwhelming number of such acts, one should be able to say that the person carrying out such acts must have regarded the land as his own and that from the nature of such acts, their openness and being exercised without force or stealth, any person asserting a contrary title would have known of such exercise and expected to assert his contrary title. This is as held in the case of Hyacinth Anyanwu V. Robert Achilike Mbara.
- Acts of long possession and enjoyment of the land.
It is trite law that possession is prima facie evidence of ownership of land. However, a person claiming title to land must prove that he has been in possession and enjoyment of such land for a long period of time.
In the case of Duru v.Onwumelu, the Supreme Court held that, to base a right to declaration of title to land on the fact of long possession, the principle is that such party must prove acts of possession and ownership of the land in dispute over a sufficient length of time numerous and positive enough to warrant the inference that they are the exclusive owners.
- Proof of possession of adjacent land
Proof of possession of a connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute. This is as held by the Supreme Court in the case of D.O. Idundun & Anor V. Daniel Okumagba & Ors.
It is pertinent to note that a party attempting to assert ownership of title to land need not establish all five ways enumerated above simultaneously. Any one or more will suffice. (Aighobani v Aifuwa). The focus on this paper, however, is on establishing title to land by possession.
What is Possession?
Possession refers to a state of having, owning, or controlling something. Possession in law connotes visible power or control over something, as distinct from lawful ownership, holding or occupancy as distinct from ownership. Under Nigerian Land law, Possession of property means the occupation or physical control of the parcel of land either personally or through an agent or servant of the claimant. This is as held in the case of Bello Salami & Anor V. Alhaji Adetoro Lawal.
Possession as means of proof of Ownership
Even though possession is prima facie evidence of ownership, it is not ownership strictu sensu. For example, a tenant in occupation of a property is in possession of that property. The tenant, however, cannot be termed the owner of such property. This is because the tenant is only a temporary occupant of the property and shall have to yield possession to the landlord at the expiration of the term granted. Generally, a person in possession can maintain an action for trespass against anyone.
In Ogbimi v Niger Construction Ltd, the Supreme Court per Oguntade J. S. C. held thus:
“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 exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who could establish a better title. Therefore, anyone other than the true owner, who disturbs his possession of the land, can be sued in trespass and in such an action, it is no answer for the Defendant to show that the title to the land is in another person.”
Means of Proving Possession
A person claiming possession must prove not only his relationship to the land, but also proof of physical acts done on the land showing exclusive control of the land. The act of building, or planting on land are acts of possession. He may not necessarily build, he may fence or use some other items to demarcate the land as a means of securing and exercising control, and this singular act will be interpreted as being in possession.
The Supreme Court in the case of Group Captain Ogah (Rtd) & Anor V. Mallam Garba Ali Gidado & Ors, also held that Survey Plans can be used as evidence to prove possession. In the instant case, the Appellants alleged that the trial court erred when it entered judgment for the Respondents based on Exhibit P1 and P2 (Deed of Conveyance and Survey Plan to the land in dispute) tendered by the Respondents, without confirming its authenticity. The Court opined thus:
“One of the ways of showing a specific area claimed is to file a plan of the area, such plan being properly oriented drawn to scale and accurate reflecting the boundary features. Thus, once a survey plan is tendered to identify the land in dispute, oral evidence to describe the features and boundaries of the land is subsumed in the plan, which is before the Court, being a written, and by far a better evidence of identification of the land in dispute.”
Conclusively, possession in itself does not equal ownership, it is however prima facie evidence of ownership and one of the ways by which a party can prove title to land in Nigeria. The person alleging ownership must do more, in addition to prove such ownership. Generally, the burden of proving ownership and possession is on the party who claims possession and ownership. This is as held by the Supreme Court in Adegbite V. Ogunfaola.
For a party to prove ownership by possession, such party must establish that he has been in possession for a certain length of time and acted on the land like the owner of such land.
Idundun & Anor V. Daniel Okumagba & Ors (1976) LPELR-SC.309/74
Alhaji Ganiyu M. B. Iseogbfken & Anor. Vs Alhaji. Sikiru Gberigi Adelakun & Ors. (2012) LCN/3986(SC).
Section 5 (1) and section 9 (1) and (2) of the Land Use Act 1978.
Pastor J. Akinlolu Akinduro V Alhaji Idris Alaya SC. 296/2002
Hyacinth Anyanwu V. Robert Achilike Mbara (1992) 6 SCNJ 22
Section 35 of the Evidence Act 2011 CAP E14
Duru v.Onwumelu (2001) 18 NWLR (Pt.746) 672
Idundun & Anor V. Daniel Okumagba & Ors (Supra)
(Aighobani v Aifuwa). (2006) 6 NWLR (Pt 996) pg 270 at 286 paras B – G
Adegbite V. Ogunfaola (1990) 7 Sc (Pt. 1) 100.
Bello Salami & Anor V. Alhaji Adetoro Lawal, (2008) 6-7 S. C. (Pt. Ii) 242.
Ogbimi v Niger Construction Ltd (2006) 9 NWLR (Pt 986)
Group Captain Ogah Rtd and Anor Vs Ali Gidado & Ors (2013) LPELR – 20298 (CA)