Possession

The law is however well settled and trite too, that where two persons are claiming concurrently to be in possession, the person with better title is one whose possession will be ascribed to. See Mogaji & Ors vs Cadbury Nig Ltd and Ors (1988) NSCC 959 at 965.

PADA V. GALADIMA &

It must however be stressed here, that where a party claims title of a disputed land by way of his possession of same, if there is litigation between the parties as in this instant case, the onus is on the other side which is asserting the contrary, to prove that he is the true owner of the land. This is because there is usually a tendency to confuse possession with mere occupation. Occupation, as used in relation to land, entails more physical control of the land in the time being. It is a matter of fact. Such a control may have originated from mere permission or loan from the actual land owner or it may even be by stealing or by tortuous trespass. See Udeze vs Chidebe (1990) 1 NWLR (Pt.125) 145 SC; Ezukwu vs Ukachukwu (2004) 17 NWLR (Pt.902) 227.

PADA V. GALADIMA &

Before I conclude, I ask the question, what is the purpose of buying property if the purchaser is never given possession. Possession does not necessarily have to be a term in the contract of sale, it is implied.

Section 167 (a) of the Evidence Act states that:
"167. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume that –
(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.
Before this presumption applies, the following factors must be present:
(a) the goods must be goods capable of being stolen.
(b) the goods were recently stolen.
(c) soon after the theft the goods were found in possession of the defendant
(d) the accused person failed to account for his possession of the goods. See
Idan v. C.O.P. (1964) NMLR P.103
State v. Aiyeola (1969) ANLR p.293
Omopupa v. State (2008) ALL FWLR (Pt.445) p.1648.
The presumption could arise if the Court is satisfied that the person in possession of the stolen goods was the thief or that the person in possession of the stolen goods received the goods knowing them to have been stolen.
The accused person is required to explain how the goods came into his possession. If the Court is satisfied with his explanation, the presumption is rebutted.