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PLAINTIFF SHOULD SHOW CLEARLY AND PROOF NATURE OF HIS POSSESSION

Dictum

In a plaintiff’s pleading, he is required to show clearly and prove the nature of the possession which he is relying upon to sustain his action in trespass, that is whether he is relying on bare possession or on his possession or right to possession based on his title to the land. The rule of audi alteram partem, which is incorporated in our rules of pleadings postulates that a man must know the nature of the case which he is to meet in court. This is also a clear implication of the constitutional provision of fair hearing guaranteed by section 33 of our Constitution of 1979. As such is the case, a plaintiff cannot in his pleadings aver exclusive possession or right to possession based on title but, having failed to prove it, be allowed to succeed on bare possession.

— Nnaemeka-Agu, JSC. Adesanya v Otuewu (1993) – SC.217/1989

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WHERE LAND TITLE HOLDER DIVEST HIMSELF OF POSSESSION

I agree that where two persons claim possession at the same time that is the correct proposition of law as there is nothing like concurrent possession of land by two persons. If the party who has a better title has divested himself of possession in favour of a third party he has no possession which can be disturbed by mere entry and which will entitle him to sue for damages for trespass.

– Obaseki, JSC. Ekpan v. Agunu (1986)

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SEVEN LANDLORDS MUST NOT NEED OCCUPATION

Why must the seven landlords who were the plaintiffs in the case need the occupation of the single ground floor flat before they can recover possession of the flat. If that is the law, it is a law devoid of human face, human reason and common sense. I shall not project such a law.

– Ubaezonu JCA. Coker v. Adetayo (1992)

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PLANTING OF CROPS IS AN EFFECTIVE MEANS OF ASSERTING POSSESSION

Planting of crops on land is one of the most effective means of asserting possession of the parcel of land. The maxim is quic-quid plantatur solo, solo cedit. Whatever is fixed to the soil belongs to the soil. So long as the crops remain standing on the farm, the tenant, 5th P.W. is in exclusive possession.

– Obaseki, JSC. Ekpan v. Agunu (1986)

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REVERSIONARY INTEREST CANNOT BE SOLD WHEN ANOTHER IS IN POSSESSION

It appears to me to be the law that a reversioner, such as the 2nd respondent, cannot sell his reversionary interest, that is his particular estate, as fee simple while another person is in possession of the land. He must first either first recover possession from that other person in possession or sell his reversionary interest subject to that person’s possession. For what the reversioner has in such a case is the freehold reversion subject to the possession in another person and not a fee simple absolute free from incumberances. It must be noted that interests in land, whether legal or equitable, are carved out as it were on a plane of time. Any holder of a particular interest or estate who attempts to sell more than the quantum of his estate will be caught by the maxim: nemo dat quod non habet (no one can give or sell what he has not).

– Nnaemeka-agu, JSC. Ude v. Nwara (1993)

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SUMMARY PROCEDURE FOR POSSESSION IS WHERE FACTS ARE UNCONTESTED

The use of the summary procedure for possession under the provisions of order 50 of the High Court Rules is limited only to virtually uncontested cases for which default of summary judgment can be obtained or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to claim of the claimant to recover possession of the land or as to the wrongful occupation of the land without licence or consent and without any right, title or interest thereto – Henderson V. Law (1984) 17 HLR 237. It is only applicable in the clearest of cases where the title of the claimant to the land is not in dispute and has been confirmed. Where the existence of a serious dispute is apparent, this procedure should not be used – Adedipe v. Theophilus (2005) 16 NWLR (Pt 951) 250. In Madam Sinotu Osinowo V. Persons Named Unknown (1976) 10 CCHCJ 2551, Cole J, speaking of order 113 of the English Rules, stated at page 2555 thus: “This Order, in my view, is meant only to be employed in uncontested cases, where there is no issue or questions to be tried, and there is no reasonable doubt to the claim of the plaintiff to recover possession of the land, as example where the person wrongfully occupying the land cannot claim any right, title or interest in the land whatsoever.”

– Abiru, JCA. Okoli v. Gaya (2014)

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PAYMENT OF PURCHASE PRICE WITH DELIVERY OF POSSESSION CAN OUST SUBSEQUENT ANY CONVEYANCE

I think the most devastating evidence to the case of the respondent is that the 2nd respondent handed over the keys of the premises to him and put him in possession. Payment of purchase price coupled with delivery of possession can oust any subsequent conveyance of the legal estate to any subsequent purchaser. A diligent purchaser will certainly find out that there is someone in possession and be served with notice of his interest.

— Obaseki, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

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