Chukwuemeka A. Nnabuife ACIS
INTRODUCTION
Adverse Possession of land does not automatically guarantee ownership, but it can lead to ownership under specific legal conditions, depending on the jurisdiction and applicable laws. In Nigeria, the concept of adverse or long possession is primarily governed by statutory provisions like the Limitation Laws and the Land Use Act of 1978, alongside customary law principles and judicial interpretations. Internationally, adverse possession is a widely recognized doctrine with varying requirements.
UNDERSTANDING ADVERSE POSSESSION
Possession can be loosely defined as the right under which one may exercise control over something to the exclusion of all others (Wigwe,2017) [1]. Possession must have three qualities. It must be long, continual and peaceable. When the fact of control is coupled with a legal claim and right to exercise it in one’s own name against the world at large, we have possession in law as well as in fact. Possession is the exercise by a person of physical control over land coupled with the relevant animo possidendi (intent to exercise the physical control in the name of the person in possession to the exclusion of the world at large). Possession is 9/10 of ownership (Onuoha 2010) [2]. Adverse possession is a principle of real estate law whereby somebody who possesses the land of another for an extended period may be able to claim legal ownership of that land. It is, in effect, a set of rules that allow a mere trespasser to acquire a better title to land than the person who ‘legally’ owns it and to whom it was formally conveyed (Adebayo,2025) [3]. The plea of adverse possession in land is a shield of defence and not a sword of attack, it can only be properly used as a defence and not a sword to attack, therefore it is not a means to institute an action against the true owner rather where the squatter is sued, he/she can raise it as a defence. The duty of proving long possession is on the Defendant who raises such a defence. Where a party bases his title on long possession/adverse possession, there is, in law a duty on such person to prove the nature of his possession to enable the court to draw the inference of exclusive possession, the party has the burden to dispose.
The term "adverse possession" refers to a legal principle that grants title to someone who resides on or is in possession of another person's land. The property's title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property [Law Journal,2023] [4].
Adverse possession is sometimes called squatter’s rights, although squatter’s rights are a colloquial reference to the idea rather than a recorded law. Adverse possession occurs when a person takes over land they do not own. This can happen intentionally, with a squatter or trespasser deliberately occupying the land, or unintentionally, such as when someone unknowingly encroaches on a neighbour’s property.
In cases of intentional adverse possession, a trespasser or squatter is someone who occupies another person's land illegally and unknowingly comes onto another person's land to live on it and/or take it over. In other cases, adverse possession may be unintentional. For example, a homeowner may build a fence separating their yard without realizing they've crossed over and encroached on their neighbour's property line. In either case, the adverse possessor also referred to as the disseisor can lay claim to that property. If the claimant is successful in proving adverse possession, they are not required to pay the owner for the land. A disseisor who successfully proves adverse possession is not required to pay the owner for the land.
REQUIREMENTS TO PROVE ADVERSE POSSESSION
The requirements to prove adverse possession tend to vary between jurisdictions. In many states, proof of payment for the taxes on a property and a deed is essentially required for the claimant to be successful. Each state has a period during which the landowner of record can invalidate the claim at any time.
For example, if the state threshold is 20 years and the landlord paints or pays for other maintenance on the house in question in the 19th year, then the claimant will have a difficult time proving adverse possession. That said, landowners are advised to remove the possibility of adverse possession as soon as possible by having signed agreements for any use of an owned property.
To successfully claim land under adverse possession, the claimant must demonstrate that his or her occupation of the land meets the following requirements:
Continuous use: Under this condition, the adverse possessor must show they've been in continuous and uninterrupted possession of the property in question.
Hostile and adverse occupation of the property: Although this doesn't mean that the disseisor uses force to take the land, they must show there is no existing agreement or license from the landowner such as a written easement, lease, or rent agreement.
Open and notorious possession: The person seeking adverse possession must occupy a property in a manner that is open, notorious, and obvious. The true owner is not required, however, to be aware of the occupation.
Actual possession: The possessor must actively possess the property for the state's predetermined statutory period, which may vary from three to 30 years. Possession may involve maintaining the land and paying taxes, depending on state law.
Exclusive use: The property is used solely by the disseisor, excluding any others from using it as well.
Adverse possession has been proposed as a possible solution to discourage abuses of intellectual property rights like cybersquatting, excessive copyright, and patent trolling. Applying adverse possession to intellectual property as well as physical property would force the abusers to put more resources into actively using their portfolio of trademarks, patents, and so on, rather than just sitting on them and waiting for the actual innovators to step into their territory.
Although the requirements for adverse possession may vary significantly between jurisdictions, the following are the typical requirements that need to be met:
The possession of the property must be continuous and uninterrupted.
The occupation must be hostile and adverse to the interests of the true owner, and take place without their consent.
The person seeking adverse possession must occupy a property in a manner that is open, notorious, and obvious.
Possession of the property must continue for the state's predetermined statutory period, which may vary from three to 30 years.
The property must be occupied exclusively by the person seeking adverse possession.
PREVENTING ADVERSE POSSESSION
If you are a landowner, you can prevent a trespasser from gaining property ownership by taking some easy measures:
Identify and mark your property boundaries. Inspect your land regularly for signs of trespassers. You may want to use “no trespassing” signs and block entrances with gates. Although many states will not find a “no trespassing” sign sufficient to prevent an adverse possession claim, it's a good way to deter trespassers.
Offer to rent the property to the trespasser. With a proper rental agreement in place, the trespasser cannot claim adverse possession.
Grant written permission to someone to use your land, and make sure you get their written acknowledgement.
Act fast. In the event of trespassing, you must act before the trespasser has been on your land for the period of time detailed by your jurisdiction, in order to make a successful case.
Hire a lawyer as soon as you detect signs of trespassing on your land. You might need to file a lawsuit to expel the trespasser, or a court order to remove an unwanted structure from your land.
IS POSSESSION EVIDENCE OR GUARANTEE OF OWNERSHIP?
Section 46 of the Evidence Act states that the acts of possession exercised in respect of one piece of land are deemed to be evidence of acts of possession in respect of adjoining land or land of similar features. In other words, where there is a dispute between two parties with respect to more than one piece of land, if one party can prove acts of possession with respect to one plot, such acts of possession are extended to the adjoining plot of land or land with similar features.
Section 146 of the Evidence Act provides that when there is a dispute as to ownership of a thing, the person in possession is deemed to be the owner of that thing until the contrary is proved and the person disputing his ownership bears the burden of furnishing evidence to the contrary. This has been affirmed in the case of Udeze v Chidebe.
To buttress more on this, in Agheghen v Waghoreghor, Elias C.J.N (as he then was) while considering the nature of the interest of the defendant who was a customary tenant, observed that in customary land law parlance, the defendants are not gifted of the land, they are not borrowers or lessees, they are grantees of land under customary tenure and hold as such a determinable interest in the land which they may enjoy in perpetuity subject to good behaviour. While in the land he can maintain action in trespass and enjoy all the rights of the owner except absolute transfer. When a grant is accorded to a customary tenant, he is conveyed with full right of possession but however, but reversionary right is reserved by the original owner and that is what he can use to prove constructive possession.
An attempt to elevate possession to ownership was resisted by the Supreme Court in the case of Abioye v Yakubu. Suffice it to state, that there is nothing like title by prescription under customary land tenure. No matter how long an adverse possessor holds land in possession it cannot convert into ownership.
LEGAL POSITION OF ADVERSE POSSESSION IN NIGERIA
In Nigerian law, long possession of land may lead to ownership through the doctrine of adverse possession, which allows a person who has possessed land without the owner's permission for a specified period to claim legal title, provided certain conditions are met.
The key statutory framework is the Limitation Law (or Act) of various states, which sets time limits for landowners to recover their property from adverse possessors. For example, Section 15 of the Limitation Law of Lagos State provides that no action to recover land can be brought after 12 years from the date the right of action accrued to the owner. If the owner fails to act within this period, their title may be extinguished, and the adverse possessor could claim ownership.
The Land Use Act of 1978 [5], a cornerstone of Nigerian land law, vests all land in the state governor, held in trust for the people (Section 1). Individuals and entities are granted a Certificate of Occupancy (C of O), conferring a right of occupancy, typically for a 99-year lease. While this complicates outright ownership, adverse possession can still apply to unregistered land or customary land not yet formalized under the Act. However, for registered land under the Act, the doctrine’s application is limited, as the state’s overriding authority can intervene.
Under customary law, Adverse possession can also support a claim to ownership through the doctrine of prescription, particularly where the possessor demonstrates undisturbed use with the acquiescence of the true owner or community. The case of Akpan Awo v. Cookey Gam (1913) 2 NLR 100 [6] elucidated this, holding that a right of prescription under customary law may arise if the adverse possessor proves continuous, undisturbed possession for a sufficient period (e.g., 21 years in that case), with the owner’s knowledge and inaction amounting to acquiescence.
These principles were affirmed in Alo v. Anyalor (1995) 5 NWLR (Pt. 395) 265 [7], where the court held that 12 years of continuous, adverse possession under the Limitation Law extinguished the original owner’s title. Similarly, in Nwakobi v. Nzekwu (1964) 1 All NLR 445 [8], the Supreme Court clarified that possession must be genuinely adverse, not based on a mistaken belief of lawful entitlement if the possessor knew they lacked title.
EFFECTS OF ADVERSE POSSESSION
Transfer of Title: If the statutory period (e.g., 12 years in Lagos) elapses without the owner asserting their rights, the adverse possessor may acquire a possessory title, effectively barring the original owner’s claim. This shifts property rights, rewarding productive use while penalizing neglect.
Economic Implications: Long possession incentivizes land use and development, as seen in rural Nigeria where small-scale farmers often rely on customary long possession for security of tenure. However, it can discourage investment in formal titles if possession alone might suffice.
Social Impact: It can lead to disputes, especially in family or communal land contexts, where long possession by one member might alienate others. This is common in Eastern Nigeria under Igbo customary law, where patriarchal norms often clash with possession-based claims.
IMPLICATIONS OF ADVERSE POSSESSION
Legal Uncertainty: The interplay between the Land Use Act and Limitation Laws creates ambiguity. Since the state technically “owns” all land, adverse possession against a C of O holder may be challenged by the governor’s revocation powers (Section 28, Land Use Act), undermining the possessor’s claim.
Conflict with Registered Titles: Adverse possession is less effective against land registered under the Land Use Act or state registries, as the indefeasibility of title principles protects registered owners. This limits its scope in urban areas where formal titles predominate.
Customary vs. Statutory Tension: In rural areas, customary prescription often prevails, but its recognition depends on judicial discretion, leading to inconsistent outcomes. The case of Okiade v. Morayo (1952) 14 WACA 167 [9] recognized five years as sufficient under customary law in some contexts, contrasting with statutory 12-year thresholds.
Gender and Equity Issues: Women in patriarchal communities may face barriers to claiming ownership through possession, as customary norms often favour male heirs, despite statutory equality under Section 43 of the 1999 Constitution [10].
INTERNATIONAL PERSPECTIVES
Internationally, adverse possession is a common law doctrine with statutory backing. In England, the Limitation Act 1980 [11] sets 12 years for unregistered land (Section 15), while the Land Registration Act 2002 governs registered land, requiring the possessor to apply to the Land Registry after 10 years (Schedule 6) [12] . The U.S. varies by state, with periods ranging from 5 years (California) to 20 years (New York), emphasizing continuous, hostile possession (e.g., Howard v. Kunto, 3 Wash. App. 393 (1970) [13], allowing “tacking” of possession periods between successive possessors). In France, the Civil Code (Article 2258) [14] recognizes 30 years of peaceful, public possession as conferring title, reflecting civil law’s usucaption principle.
Nigeria’s framework aligns with common law but is uniquely shaped by the Land Use Act, distinguishing it from pure ownership models elsewhere. Internationally, the doctrine balances property rights with land utilization, a goal Nigeria pursues but tempers with state control.
CONCLUSION
Adverse possession does not guarantee ownership in Nigeria unless it meets the stringent requirements of adverse possession under statutory or customary law. The Limitation Laws provide a 12-year threshold in many states, while customary prescription varies by context and judicial interpretation. The Land Use Act’s vesting of land in the state complicates absolute ownership, making possession-based claims vulnerable to governmental override. Effects include title shifts and economic incentives, but implications reveal legal uncertainties and social tensions. Internationally, similar doctrines exist, though Nigeria’s hybrid system reflects its colonial and customary heritage.
Footnotes
[1] Wigwe, C (2004)Mortgage Practice and Law of Possession in Nigeria.
[2] Onuoha, R.A.(2010).Basic principles of land law. Anon publishers.
[3] Adedayo, S (2021). Doctrine of Adverse Possession in Law.
[4] Unizik Law Journal (2023).Ownership and Possession of land.
[5] Land Use Act, 1978 (Nigeria), Sections 1, 28.
[6] Akpan Awo v. Cookey Gam (1913) 2 NLR 100.
[7] Alo v. Anyalor (1995) 5 NWLR (Pt. 395) 265.
[8] Nwakobi v. Nzekwu (1964) 1 All NLR 445.
[9] Okiade v. Morayo (1952) 14 WACA 167.
[10] Constitution of the Federal Republic of Nigeria, 1999, Section 43.
[11] Limitation Act 1980 (UK), Section 15.
[12] Land Registration Act 2002 (UK), Schedule 6.
[13] Howard v. Kunto, 3 Wash. App. 393 (1970). [14] French Civil Code, Article 2258.
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