Picture a scenario where you leave your landed property for about ten years. For instance, this could be due to work opportunities on a different continent.

Upon your return, you got news that someone has already settled on your land and has displayed various acts of ownership over the land, like leasing out part of the land for about 7 years. You hurried to the land in a bid to retake back ownership and the supposed new owner declares that the rights you have are extinguished. Do you still have rights over such land? Can you bring a claim in court to retake back possession and ownership?

This article seeks to explore the concept of ownership by prescription and the effect of limitation statutes on land actions.

It is well established that acts of long and exclusive possession of land coupled with animus possidendi (intention to continue in exclusive possession) may be enough to sustain a claim of ownership over land.

In some cases, time actually runs in favour of an adverse possessor and the exercise of these possessory rights over land for a long period of time could result in what is called ownership by prescription. Therefore, he may be able to claim ownership rights over a piece of land over the former owner, after a specified amount of time has passed. In Nigeria, this particular space of time would usually depend on which law; the parties to the action are subject to.

In accordance with the various statutes of limitation in Nigeria, after a certain time, actions brought in relation to land may be declared statue barred. This has the effect of extinguishing the right of a claimant (former land owner) over such land as a result of his failure at seeking a prompt relief over his land grievance. The statute therefore provides that the action by the claimant should be instituted within a particular time and if this isn’t done, the defendant has a defence that such an action has become statute barred.

This law is provided for under both the Limitation Act at the federal level, and the various State limitation laws. In section 15(2) of the Limitation Act, an action to recover land by or against an individual becomes statue barred if it is not instituted within twelve years from the date when the right of action accrued. A cause of action arises or accrues the moment the alleged wrong has fully occurred, entitling the aggrieved party to a right to approach the court.

The court would look at the time when the wrong was alleged to have been committed and compare it to the date when the suit was filed. If the period is longer than 12 years, the action would be declared statute barred. However the defendant must raise this as a defence, if he doesn’t, it would be considered to have been waived by him.

The defendant may raise this defence at any stage of the proceedings. Being an issue of jurisdiction, it may even be raised at the appeal court. The rationale for this limitation rule is that disputes should not last forever[1]. A lot could occur within the period within which the claimant neglected to assert his rights. The defendant may have lost a lot of evidence to defend himself from the stale claim from the claimant. Therefore it would appear that there will be more injustice to the defendant than justice to the plaintiff. The defendant would also not be required to prove that the claimant had knowledge of the defendant’s presence on his land. This fact would be immaterial unless if there is proof of fraudulent concealment.  

There are however certain instances where the limitation statue would not apply. Time wouldn’t run in a situation where the claimant is under some sort of legal disability, for instance insanity or infancy; in this case the limitation time will be extended. Also, in the case of fraudulent concealment, time would only start to run from the date that the claimant discovers or becomes aware of the fraud. However it is important to note that even though the time to institute an action has passed, the adverse possessor would not be able to claim ownership of the land unless he has been in CONTINUOUS, PROLONGED AND UNINTERRUPTED ADVERSE POSSESION for the whole 12 years period in the case of land belonging to an individual and 20 years in the case of land belonging to the state.

The limitation rule does not apply to customary law[2]. Therefore, the owner of a land would not necessarily lose its title to land to an adverse possessor, only because he has gone out of possession of that land for a long time. The rule of adverse possession however applies under customary law as a sort of exception. Therefore, in the case of Akpan Awo v. Cookey Gam the court while exercising its equitable jurisdiction, stated that, no court will apply the rule in circumstances in which in justice will be done to an innocent party who has been in continuous and undisturbed possession of the land for years, to the knowledge of the owner, and in the belief that he has valid title, was lead to expend money or to alter his position.

Therefore to rely on the rule of equity established in the case of Akpan Awo v. Cookey Gam the defendant would have to establish certain things by evidence.[3]

• That he was truly an adverse possessor and not a tenant, a licensee or a person enjoying occupational right within the title of the plaintiff. The test here is usually to enquire whether the person claiming to be an adverse possessor, derived his interest from the plaintiff in question
• That the adverse possessor took possession of land believing that he has title to it.
• That the plaintiff had knowledge of the adverse possession but acquiesced to it. Just like in equity, In this case, latches (delay) and acquiescence (knowledge) of the plaintiff would work together to destroy his claim.
• That the adverse possessor had relied in the plaintiff acquiescence leading him to expend his money or to otherwise alter his position.
• That there are no extenuating circumstances negating acquiescence, for instance the adverse possessor being related to him by blood ties etc. This is because the plaintiff may attempt to follow the peaceful part of out of court settlement, which may delay the commencement of any action he may later decide to bring to court.
• That the length of time is long enough to establish a prima facie evidence of acquiescence on the part of the plaintiff.

The adverse possessor, to rely on the rule established in Akpan’s case would have to prove all the above stated.

Adverse Possession under Islamic Law

Under Islamic law, the rule of prescription is recognised and is referred to as Hauzi[4]. Where a person has been in undisturbed and continuous possession for a period of ten years or more while the true owner stands by and does nothing to claim his property and the parties are not related by blood or marriage the person in possession acquires title by prescription. Under Islamic law there is no need to prove that he was led to expend money or to alter his position.

From the above stated rules, it is very clear that the law seeks to achieve its ultimate objective of justice. The rule on ownership by prescription no matter what law is applied, seeks to ensure that no party actually suffers injustice. This is clear by the simple fact that the limitation rule would not apply strictly in certain circumstance, for instance when the claimant was under aged at the time he was supposed to institute the action. Although the limitation rule is not applicable to customary law, the court in Akpan’s case, while exercising its equitable jurisdiction, established certain situations, where a land owner would actually lose his rights to land to an adverse possessor. One of these most important circumstances is when the land owner has acquiesced to the activities going on in the land, leading the adverse possessor to expend more money and time to the land in the believe that he has a right to do so. The law therefore tries to find a middle ground between the two competing claims and would stop the other party from asserting his right as this would lead to injustice.

---

[1]“ Land litigation in Nigeria practice and procedure” by Abiodun Azeem Akinyemi, page 141                                         

[2] The limitation statutes exclude any matter regulated by customary law from the ambit of its application. For instance section 18of the limitation law of Anambra state.

[3] “Practical approach to law of real property in Nigeria” by Prof. I.O. Smith, SAN, page 53.

[4] Ibid, page 56.

AUTHOR:JUSTICE OJIENOH