Adverse possession
Adverse possession is a possession that is hostile, under a claim or colour of title, actual, open, notorious, exclusive and continued for the statutory period of years and thereby giving an indivisible right of possession or title to the adverse possession under the Limitation Laws. Limitations Laws have two consequences. One, no action shall be brought to recover the land after the expiration of twelve years from the date of accrual of the right of action.
The action is said to be statute-barred. Two, the title of the rightful owner of the land will be extinguished on the expiration of the statutory period fixed by the limitation law. A person pleading adverse possession has no equities in his favour as he is trying to defeat the title of the true owner. It is for him to plead and establish all facts necessary to establish his possession. He must plead and lead evidence not necessarily when he entered possession but when his possession becomes adverse to that of the paper owner.
Criticism
Acquiring title to land by adverse possession is a legislative endorsement of trespass or land theft. The law is harsh and inequitable. An adverse possessor is a trespasser/squatter who is liable in damages for trespass. Granted that the law should not encourage stale claim but to go to the extent of extinguishing the title of the rightful owner for a trespasser on account of account of lapse of time without having regard to the knowledge of rightful owner or circumstances that make it impossible for the rightful owner to protest against the trespasser is illogical and indefensible.
A frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely. However, if as it is the present case, the owner of the land has no immediate use for it and is content to let another person trespass on the land for the time being, it is hard to see what principle of justice entitles the trespasser to acquire land for nothing from the owner simply because he has been permitted to remain there for 12 years. To say that in such circumstances the owner who has sat on his rights should, therefore, be deprived of his land appears to be illogical, and disproportionate.
However, the Land Registration Act of 2002 has overhauled the law of adverse possession in England and Wales. Under the new legal regime, mere lapse of time cannot in itself bar the rights of a registered proprietor. It is immaterial, whether or not the registered proprietor has commenced legal proceedings to terminate the squatter’s proceedings.. The Act promotes the fundamental concept of indefeasibility that is a feature of registered title by placing the onus on the squatter.
There are three special cases, in which despite opposition/objection, the adverse possessor may succeed n registration. They are:
{1} where it would be “unconscionable because of equity of estoppel” for the registered proprietor to seek to dispose of the applicant the circumstances are such “that the applicant ought to be registered as proprietor” of the estate in question.
{2} where the applicant is entitled “for some other reason” {eg under an uncompleted contract of purchase} to be registered as proprietor
{3} reasonable mistake as to boundary
Recommendation:
I strongly recommend that adverse possession should be abolished in Nigeria.
The law is robbing Peter to pay Paul. It is anachronistic, outdated, reprehensible and encouraging land theft or robbery. Title to land by adverse possessions need legislative rethinking and total overhauling in Nigeria. If we must retain it in our statute book, I recommend the English model, which is being followed in Hong Kong with its check and balances. Resulting Trust There is yet another problem. It is the doctrine of resulting trust.
More specifically, the specie of the resulting trust known as purchase price resulting trust or contribution to the purchase price resulting trust. The beneficial interest in any property belongs to the person who provides the purchase price or to the extent of his contribution to the purchase price. The person in whose name documents of the title is written is holding the land in resulting trust for the person who paid the purchase price
SUGGESTION FOR REFORMS
Establishment of Land Commission
The first solution, which is critical is the establishment of the Land Commission in the state. The problem is more than what a task force can handle. The land Commission will be set up by a statute, with a Chairman and a Secretary. The government will determine the composition. The commission will have its investigators and prosecutors. The police should not be involved in this at all. This is because some of the bad eggs in the police are part of the problems.
We can cite EFCC and ICPC as examples. When the police seemingly cannot handle cases of corruption, economic and financial, Federal Government set up these two bodies. At least in the fight against corruption, the bodies have done far better than the police. The problem of security to land and consequences demand these drastic measures. The punishment should range from 10 years to twenty-one years with no option of fine. The commission will flush out from the state, land grabbers and fraudulent omo oniles
TITLE BY ADVERSE POSSESION UNDER LIMITATION LAWS SHOULD BE OVERHAULED AND UPDATED
I have suggested a total overhauling of this concept. I suggest in this paper the Singaporean method. That is to abolish it. Such title could be dealt with under the equitable maxim of latches and acquiescence, the rule in Awo v Cookey Gam or the Islamic jurisprudence of Hausa with so many exceptions. If we must retain it we should adopt the English model with so many checks and balances
TITLE ALL LANDS IN LAGOS STATE
This is the final solution. Is it not strange that in Ikoyi, Victoria Island, some part of Yaba and few other places, there is no problem of insecurity of title to land. In those places, all lands are titled by the government. It creates indefeasibility of title to land. Government-issued Land Certificate and guarantee the title of the land. Apart for a few instances, the title is safe. I can give to the government a position paper on how this will work. It will involve the office of Surveyor-General, Ministry of Justice, Land Bureau and Physical planning. Because it is going to be capital intensive, it can be done in stages.
Finally, there is need to streamline and incorporate into a legislation or two, legislation on land matters in the nature of Companies and Allied Matters Act, 1990 in the state, though this is an aside. Law Reform Commission in the state should be able to handle this.
Hitherto, there were different statutes on corporate matters. There was Companies Act of 1968, there were laws dealing with firms and enterprises as well as incorporated trustees. With the promulgation of Companies and Allied Matters Act, 1990, all these laws were brought together under one legislation. Nigeria legislation on land are too many, scattered and uncoordinated
There is a need to consolidate these arrays of laws on land in the state in the nature of Companies and Allied Matters Act, where major legislation on corporate matters are put together under one enactment. It might be necessary to have similar enactment in property laws in Lagos State.
Source: vanguardngr
