Acquisition of Title to Land by Adverse Possession: Need to Stop Endorsement of Land Theft

Description

ABSTRACT

Acquisition of Title to Land by Adverse Possession: Need to Stop Endorsement of Land Theft

Gbenga Ojo*

The central focus of this paper is on the acquisition of title to land in Nigeria by the doctrine of adverse possession. An adverse possessor is not the original owner of the land; he is a trespasser/squatter, who has been in possession for a period of not less than twelve yearsand asserts his possession as the basis of his title to the land in respect of which he was in trespass. The paper interrogates the concept of adverse possession, posits that acquisition of title to land by a trespasser/squatter is legislative endorsement of trespass to land, land theft or land grabbing and needs total overhauling. The paper suggests the Singapore model which abolished acquisition of title to land by adverse possession. The paper recommends that the title of an adverse possessor should be dealt with under interplay of the equitable doctrines of laches and acquiescence or the Rule in Awo v Cookey Gamor the concept of Hauzi in Islamic jurisprudence, depending on the nature of the adverse possession being pushed forward as the basis of title to the land. It should be negative acquisition of title and not positive acquisition, as it is presently.

Keywords: Acquisition of title, adverse possession, land owner, trespasser, squatter, land theft, laches and acquiescence, rule in Awo v Cookey Gam, Hauzi

INTRODUCTION
The legal truism is that, possession is nine-tenth of the law. Possession gives an ownership ‘good’ against everyone except a person who has a better title.₁ Possession raises a presumption of ownership.₂ Such is the importance of possession in land law. From the inception of the entry of the squatter into possession, nec vi, nec clam and necprecario, the squatter acquires a ‘property’ in the land, which if not challenged for the duration of the limitation period, extinguished the title of the rightful owner of the land.₃ No compensation is payable to the rightful owner.₄ Notice is also not given to the rightful owner. The law is that time runs, without the knowledge of the rightful owner of possession by adverse possession.₅The extinction of the title of the rightful owner and acquisition of title by the trespasser is automatic and by operation of law.₆ This appears draconian to the rightful owner and a windfall to the trespasser/squatter. This has been said to be ‘an uncompensated shift of economic value to the squatter or interloper’.₇

This paper opines that the law should not be used as instrument of encouraging or endorsing trespass to land, which is tortious and in some cases criminal. The paper examines the legal framework for acquisition of title to land by adverse possession.

* LL.M, BL. Lecturer, Lagos State University and Principal Counsel, Gbenga Ojo and Co, Lagos, Nigeria.

1. Newington v Windeyer [1985] 3 NSWLR 55, Olayioye v Oladeinde [1969] 1 ALL NLR 287.
2. Igiehon v Omoregie [1993] 2 NWLR (Part 276) 398, Adio JCA (as then was) said ‘one right flowing
3. Gray and Gray, Law (6thedn, Oxford University Press) 464.
4. Lagos State Land Registration Law, Cap.L41 Laws of Lagos State 2015, s 100.
5. Akibu v Azeez [2003] 1 SC (Part 11) 71.
6. Limitation Law of Lagos State, Cap L84, Laws of Lagos State, 2015, s 21; formerly Limitation Law of Lagos State, 1973, 21.
7. Gray (n 3) 464.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.10 NO.1