Proof of Title to Land by Acts of Possession


“Evidence of acts of ownership numerous and positive and extending over a long period of time is also one of the accepted ways of proving ownership. Based on the foregoing the onus shifted to the appellants to lead evidence in rebuttal because the burden of proof is never static in a civil case. See Section 145 of the Evidence Act and OYADARE VS KEJI & ANOR (2005) 1 NWLR (PT.925) PAGE 571 AT 590. Where the Supreme Court held as follows:- “It is good law that a plaintiff who succeeds in proving acts of possession can obtain judgment claiming trespass. Acts of possession and enjoyment of land could be evidence of ownership or of right of occupancy.See OKECHUKWU V OKAFOR [1961] 1 ALL NLR 685. Where a plaintiff proves sufficient acts of possession, the burden is thrown on the defendant under Section 145 of the Evidence Act to prove the contrary. In order to get judgment, the defendant has the onus to rebut the evidence of the plaintiff. See ONYEKAONWU VS EKWUBIRI [1966] 1 ALL NLR 32, [1966] 2 SCNLR 369. See also ONYEYIOLA VS ADEOTI [1973] NNLR 10; ADEGBOLA VS OBALAJA [1978] 2 LRN 164. Acts of long possession and enjoyment of land can be prima facie evidence of ownership of the particular piece of land with reference to which such acts are done. See ODI vs. OSAFILE [1987] 2 NWLR [PT.57] 510.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 58 – 59 Paras A – A)


“The Respondents have also said that they proved their title to the land in dispute by “long acts of possession”. Again, I cannot but say that the stance of the Respondents in this regard is in total misapprehension of the law as it relates to proof of ownership to land by “long acts of possession” or “possession”. True it is that the position of the law is that “possession” is nine tenth of the law. However, the connotation of a stance that one has proved title to land by “possession” was clearly or lucidly brought out in the case of BALOGUN V. AKANJI (1988) LPELR – 720 (SC), (1988) 1 NWLR (Pt. 70) 301. In the said case Oputa, JSC; (now of blessed memory) said thus: – “xxxxxx I repeat once more that the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the Full Court per Webber, J. in Ekpo v. Ita supra (that the onus is on the plaintiffs claiming a decree of declaration of title to land to prove acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners) applies, is erroneous. That dictum will only apply where the Plaintiff’s root of title is Acts of Possession. It will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title, pleaded and relied upon is Traditional Evidence (as in this case). In either case acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases once, and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition. No. That is not the law: Mumuni Abudulai v Ramotu Manue (1945) 10 W.A.C.A.172 and Moselewa Thomas v. Preston Holder (1946) 12 W.A.C.A.78. Unfortunately Ekpo v. Ita supra is one of our misleading cases. It has misled many a judge and it misled the learned trial judge in this case who thought that “it may be worthwhile sometimes to see whether Ekpo v. Ita and the later case of Stool of Abinabina are not in conflict.” Of course they are not in conflict. xxxx One final word on Ekpo v. Ita supra. Anyone who pleads Acts of possession as his Root of Title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying – “I do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner.” Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved in such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and there from determine on whose side the presumption in Section 145 Evidence Act will operate.” Per AYOBODE OLUJIMI LOKULO-SODIPE, JCA (Pp 54 – 57 Paras B – C)

It is also necessary to consider the position of the Court of Appeal in the decision below when relying on long acts of possession to prove title to land;


“When the question of long possession arises, the burden of proving that the person in possession is not the owner rests on the person who says he is not. In addition, long possession is to be used as a shield and not a sword. It cannot found a claim of declaration of title to land, damages for trespass and perpetual injunction against the true owner of title to such land. See Atunrase v. Sunmola (1985) 1 NSCC Page 115 (SC) at 123 Lines 3 & 4 per Kawu JSC See also Kyari v. Alkali (2001) 11 NWLR Part 724 Page 412 at 446 Para F-G per Iguh JSC. Indeed a party, whose claim to ownership depends on long possession and use of the land, has only equitable title and cannot be granted a declaration of title. ?Thus, not only can the defence of long possession not found a claim for declaration of title, the Appellant has failed to prove that the 1st and 2nd Respondents are not owners of the land in dispute. He also did not dispute the ownership of the 1st and 2nd Respondents of the area covered by the Certificate of Occupancy, Exhibit D2. Having failed to prove ownership of any land outside the area covered by this Certificate of Occupancy or the ownership of any land occupied by these Respondents, he failed to prove his case, I hold, on the balance of probabilities. His claim to title was rightly dismissed by the lower Court.” Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Pp 18 – 19 Paras B – C)

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