MOOT, MOCK AND DEBATE SOCIETY: LAND LAW: THE DOCTRINE OF ADVERSE POSSESSION: EXPLORING THE PRINCIPLES AND IMPLICATIONS OF ACQUIRING LAND RIGHTS THROUH CONTINUOUS POSSESSION
by Diretkinan Satzilang Dashi
The doctrine of adverse possession is an age long legal principle of common law that is now deeply rooted in Nigerian law. It is a pathway for a person in possession of a land that is not originally theirs to acquire legal title over that land without the owner’s permission. It is founded upon the maxim of equity “vigilantibus non dormientibus aequitas subvenit”, which can be roughly translated to mean “equity aids the vigilant, not those who slumber on their rights”. The principle is grounded in the idea that land should be used productively rather than lying idle. This article shall explore some elementary principles of adverse possession, its legal framework in Nigeria, and the legal implications for landowners and occupiers alike
Definition
The term adverse possession can be defined as the legal principle that grants title to someone who is in open, notorious and continuous possession of another person’s land without the owner’s permission over a period of time. The original owner’s rights over the land becomes extinguished and the possessor becomes the lawful owner of the land.
In the Court of Appeal case of Akinkumi v Sadiq (2001) 2 NWLR (Pt. 696) 101, the court defined adverse possession as- an occupation of realty inconsistent with the right of the true owner.
In Akinbade v Babatunde (2018) 7 NWLR (Pt. 1618) 398, it was established that “an adverse and exclusive possession of land for several years could ripen to ownership, particularly when there is no evidence that the plaintiffs who assert ownership of the land, though aware of the adverse possession of the defendants, never in those years either took steps to quit them from the land or demand payment from them of any sort of rents. In the instant case, the appellants not only admitted that the respondents were in exclusive possession of the disputed land, they further admitted that the respondent s were in adverse possession and had consistently sold portions of the land in expression of their…ownership rights”.
Adverse possession as a plea is to be used as a shield and not a sword. It can only be invoked as a defence when the possessor is sued and not as a means of instituting an action. Consequently, the onus is always on the possessor to prove that the nature of his possession qualifies him to enjoy the protection the law affords an adverse possessor.
Legal Framework
Adverse possession under Nigerian land law is primarily governed by common law, statutory provisions and judicial precedents. The major statutes on the subject matter are:
It is important to note that although the law recognizes adverse possession, it does not imply that anybody who arbitrarily takes possession of another person’s land without their consent will be given automatic title to the land. For possession to be considered “adverse,” it must meet specific criteria. See Adejumo v Olawaiye (1996) 1 NWLR (Pt. 425) 436. These criteria include:
Continuous Possession
For a possessor to gain title to land by means of adverse possession, they must occupy the land continuously, without any interruption for the statutory period of time, which varies depending on the jurisdiction. They must have acted on the land as if they were in fact the true owner. For example, carrying out maintenance of the land and paying property taxes.
Exclusive Possession
The possessor must have exclusive possession over the land to the exclusion of all others inclusive of the original owner.
Open and Notorious Possession
The possession must be obvious for every observant person to see. This means that secret acquisition of possession cannot suffice as adverse possession. It must be visible for everyone including the original owners to see.
Hostile Possession
The possession must be hostile meaning it must be without the permission of the original owner. If the possession was conferred on the possessor by the consent of the original owner, it will not qualify as adverse possession. The possession must be inconsistent with the ownership rights of the person with title.
In the case of Kareem v. Ogunde (1972) NMLR 141, the Supreme Court also emphasized that an intention to possess the land on the part of the adverse possessor is another important element that needs to be proved.
Adverse possession has significant and distinct implications for both original landowners and those seeking to acquire land through adverse possession:
For Landowners: the most dreadful implication of adverse possession for an original owner of land is the potential that they could lose the ownership rights over their land. If the occupier has satisfied all conditions of adverse possession, they may not succeed in recovering back possession of the land even if they challenge the occupier in court.
For example, in Olagunju v Adesoye (2009) 9 NWLR, the Supreme Court held that the defendant had met all the criteria for establishing adverse possession and as a result, the plaintiff’s title to the land was extinguished.
It is therefore advisable that landowners take active steps to monitor their property and prevent unauthorized occupation.
For Occupiers: Adverse possession provides a legal pathway for people who have occupied and invested in land over an extended period to gain recognized ownership. Provided they meet all the statutory requirements for adverse possession. There could however be challenges where they cannot prove to the court the steep burden of proof and requirements necessary to establish a defence of adverse possesion.
For example, in Idu v Okumagba (1988) 2 NWLR (Pt. 77), the defendant failed to satisfy these criteria, as he couldn’t prove continuous nor hostile possession. The court therefore upheld the plaintiff’s documented title. Also see Owoade v Oshoboja (1988) 2 NWLR (Pt. 77) 391.
Limitations and Criticisms of Adverse Possession
The doctrine of adverse possession is not without its limitations and criticisms. Some argue that it unfairly deprives rightful landowners of their property, especially if they are unaware of the occupation. Others view it as a necessary tool for ensuring productive land use, particularly in cases where the rightful owner has abandoned the land.
In Nigeria, there is an ongoing debate about the application of adverse possession under the Land Use Act, which emphasizes state ownership of land. However, the courts have continued to apply the doctrine, balancing individual land rights with the broader public interest.
Adverse Possession of Public Land
Adverse possession does not apply to public land in Nigeria as public land is held in trust by the government for the general public.
Conclusion
The doctrine of adverse possession plays a crucial role in Nigerian land law, providing a mechanism for occupiers to claim land ownership after a period of continuous, open, and hostile occupation. For landowners, it serves as a reminder to be proactive in managing their property rights. Although adverse possession may appear controversial, it encourages productive land use and offers a legal pathway for long-term occupiers to secure their rights. Understanding the principles and implications of adverse possession is essential for navigating land disputes and ensuring legal compliance in Nigeria.
Footnotes
https://www.mondaq.com/nigeria/real-estate/1491302/adverse-possession-legal-principles-case-law-and-contemporary-applications
https://trustedadvisorslaw.com/unpacking-the-concept-of-adverse-possession-under-the-nigerian-property-law/#:~:text=Adverse%20Possession%2C%20also%20known%20as,legal%20ownership%20of%20the%20land.
https://www.investopedia.com/terms/a/adverse-possession.asp
https://www.judicialpoetry.com/sc/five-ways-ownership-of-land-may-be-proved/?highlight=five%20ways
https://www.linkedin.com/pulse/doctrine-adverse-possession-law-adedayo-samuel-adesheila-esq-acarb#:~:text=An%20adverse%20possession%20is%20not,which%20he%20was%20in%20trespass.
Land Use Act 1978
Alphonsus Okoh Alubo, Contemporary Nigerian Land Law, Jos University Press
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