The Differences Between Possession and Ownership in Nigerian Law

 Possession and ownership are two different keys that can open the same door. Possession and ownership are regarded as same in normal parlance, as it isn’t easy to differentiate both concept. However, in legal parlance, understanding both concept makes it easy to differentiate them as they are just similar. The legal maxim  called “Nemo dat quod non habet” must be taken into cognizance. It means, ‘you cannot give what you do not have’. It  is a legal rule, commonly referred to as  the nemo dat rule, which  implies that a person who doesn’t have ownership to a property cannot transfer the title  of that property to another person. People tend to make the mistake such that once they are in possession of a property they think they can transfer title whereas they cannot because it is just mere possession they have, and they lack the valid title to the property in question. 


According to black’s law dictionary, to possess means to occupy in person; to have in one's  actual and  physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to. On the other hand, black’s law dictionary describes to own as having  a good legal title; to hold as property; to have a legal or rightful title to; to have; to possess. While an owner is referred to as the  person in whom is vested the ownership, dominion, or title of property; proprietor. 


Ownership is the relationship that exist between a person and a thing  which is the  subject matter, and it is capable of being  owned. It should be noted that some things cannot be owned. The right to ownership consist of the right to possess, dispose and destroy. 


The concept of ownership was defined in the case of Abraham v Olorunfunmi where it was held that ownership is  a complete and total right over a property.  It is the right  to use, dispose, alienate without the consent of a third party. The owner is referred to as the alpha and omega of the property. 


 Possession was defined in the case of Buraimoh v Bamgbose as effective physical control or occupation of land with the intention to continue possession as well as exclude trespassers. A person in possession can exclude every other person apart from the owner. Ownership is characterized by absolute right to possession, the right to use and enjoy the property, right to exhaust the property while using it, right to dispose, alienate or destroy the property, ownership of a property is for a duration of time that cannot be determined, ownership is residual in nature such that the owner retains ownership even after leasing out the property for use. Ownership may be corporeal that is ownership of material things or incorporeal which is ownership of intangible things. 


Possession refers to the control a person has over a property that enables him to exercise continuous claim to the exclusive use of the property, as well as excluding others from the use. It is possible to have the right to possess without the right to ownership.  For instance, where  the owner of a property leased out the property  to another person called the lessee. The lessee is in possession for the agreed time and does not in any way become the owner of the property in question.   Possession can  be legal, adverse or long. Possession  can also mean physical control of a property with the purpose  to continuously hold on to  the property, while ownership is the exclusive legal right to possess something. 


The scenario below will help  understand the two concept perfectly. In the first scenario, whereby Mr A owns a land, any other person squatting on that land with or without his consent is a possessor. That is, the squatters are just in possession, and a possession can be lawful or unlawful. That is, it is Mr A that have absolute authority over the land. Also, the relationship that exists  between a landlord and a tenant. The landlord has the right of ownership to the house, while the tenant has the right of possession. 


Ownership gives a person the right to possession of a property, but possession does not give a person the right to own a property. Possession gives the right to physically control and occupy a property, while ownership gives the right to possess the property as well as transfer the ownership to another person.


In conclusion, the  major differences between ownership and possession includes that  ownership is an absolute authority a person has over a property while possession is just a physical control a person has over a property. 


Ownership gives the owner unlimited and unrestricted right over a property, while possession gives the possessor a limited right over the property 


Ownership is a right that consist of both the right to own and possess, while possession is a right without the right to own. 


Ownership is de jure in nature that is an authority by law and right, while possession is de facto in nature that is not necessarily by law. 


Ownership is a legal right that portrays a legal situation, while possession is just a possessory right.


Transfer of ownership involves a rigid process as legal and formal procedures amongst other things are needed, while transfer is possession is relatively easy and there is no need of formalities like that of ownership. 


Ownership gives proprietary right, while possession gives possessory right. 


An owner can fully exercise both proprietary and possessory rights, while a possessor can only exercise possessory right. 







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