Possession As Means Of Proof Of Ownership In Nigeria

1.0 INTRODUCTION

The land system of a given society is the manner in which land is owned and possessed. It is an institutional framework within which decisions are taken about the use of land, embodying that legal or customary arrangement whereby individuals or groups or organizations gain access to economic and social opportunities through land . The land system is also constituted by the ru1es and procedures which govern the right and responsibilities of both individuals and groups in the acquisition, use and control of land. It has been argued that all societies of whatever culture and political creed have land systems woven of property rights.  These property rights lend form to the proprietary land units. The proprietary land unit is the decision-making unit which is fundamental to all positive decisions about land use and comprises two elements, the run of property rights and the area of physical land to which they pertain . Any land system may portray categories of estates or rights in land. These rights are absolute or non-derivative interests and derivative interests. The absolute interests are those rights in land that confer upon their holders unconditional interests in perpetuity and in terms of quality, it is regarded as the most superior form of ownership. The absolute interests confer absolute ownership rights and as such allow for the highest scope of proprietary decisions as to the use and management of land. The derivative interests on the other hand are interests that have been derived or carved out from the larger estates or superior estates . They are inferior in quality and include leaseholds, life interests, kola tenancy, mortgage, borrowed interests, pledges, among other . The land ownership structure in Nigeria is based on the absolute and derivative interests. The structure of ownership of these interests in the country has evolved over the years.

1.1 WHAT IS LAND?

Land, sometimes referred to as dry land, is the solid surface of Earth that is not permanently covered by water . The vast majority of human activity throughout history has occurred in land areas that support agriculture, habitat, and various natural resources. Some life forms (including terrestrial plants and terrestrial animals) have developed from predecessor species that lived in bodies of water.

Areas where land meets large bodies of water are called coastal zones. The division between land and water is a fundamental concept to humans. The demarcation between land and water can vary by local jurisdiction and other factors. A maritime boundary is one example of a political demarcation. A variety of natural boundaries exist to help clearly define where water meets land. Solid rock landforms are easier to demarcate than marshy or swampy boundaries, where there is no clear point at which the land ends and a body of water has begun.

Land is elemental. It is where life begins and it is where life ends. Land provides the physical substratum for human activity; it is the essential base of all social and commercial interaction. Land law is, accordingly, that part of the law which governs the allocation of rights and obligations in relation to ‘real’ or ‘immovable’ property. Human being spend scarcely a moment out of contact with terra firma and the very existence is constantly sustained and shaped by the natural and constructed world around us. The significance of land in human affairs is therefore incalculable, although it is only in an era of global environmental threat that we slowly begin to realize how fragile and irreplaceable the rich resource on which we so utterly depend is. In the case of real property, as was once observed, ‘there is a defined and limited supply of the commodity .’ Land ownership bites both upon two concepts or forms of ownership i.e. the principal or dominant right and ownership of third party rights which are commonly known as subordinate real rights: X owns land for instance, but others may have rights in that land for land is an asset that lots of people can do lots of things with.

Land ownership bites both upon two concepts or forms of ownership i.e. the principal or dominant right and ownership of third party rights which are commonly known as subordinate real rights: X owns land for instance, but others may have rights in that land for land is an asset that lots of people can do lots of things with. We can live on it, build on it, work over it, catch fish in river or on it, play on it, and trade both on it and in it .

Moreover, land is said to be static or stationary in the sense that it stays where it is, unlike say ships and other moveable items . At any given time a multitude of interests and rights can exists in one and the same land. More than anything else, the fact of the possibility of existence of multiplicity of interests and rights in land spins a serious conundrum in dealing with land ownership and prospective purchasers are usually faced with potential problems where issues are not handled with desirable expertise from a conveyancing perspective. Thus, the ownership of a land under English law is complex, and a potentially infinite number of people may have rights in it. That complexity militates against easy transactions in land. It may make it difficult to know at any given point in time who owns a piece of land or how many people have rights in it, or which third party rights have priority over other third party rights in a given land. When we view this from the context of legal terminology, the picture appears to be like a diptych for the reason that Western Legal systems have organized that intricacy in two different ways.

1.2 WHAT IS POSSESSION

 In law, possession is the control a person's intentional exercises toward a thing. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property. Like ownership, the possession of anything is commonly regulated by country under property law.

1.3 DISTINCTION BETWEEN POSSESSION AND OCCUPATION

The distinction between possession and occupation will be looked at three (3) different stages of transfer of ownership.

1) The actual transfer: transfer of ownership is registered in the deed’s office

2) Possession: the possessor now becomes liable for maintenance and repair of the property, runs risk of accidental damage or loss to the property and is also entitled to the benefits of the property such as rental income

3) Occupation: physically moving into the property and occupying it Below is an example which serves to clearly explain the principle of “possession”.

 Party A sells a house to party B for the total amount of N1 million. The sale takes place on the 1st of January while the contract stipulates that occupation and possession will pass on to party B on the 1st of March. 

 The date of transfer was agreed to be on the 1st of April. However, through no fault of the purchaser, the house burns down on the 10th of March, which happens to be just a few days after party B moved into the house.

 Take note that this disaster strikes after possession and occupation has been granted to the purchaser, but before the actual transfer of ownership has taken place.

 Now, the question is, who will bear the risk of damage and loss? The answer is quite simple in this case; because the purchaser was already in possession, the loss is his. He will still be liable to pay the purchase price of N1 million.