Possession is the holding of something that does not necessarily belong to the ‘possessor’. It also denotes control over property. However, it is easier to define a term like possession in the context in which it is used because it has the potential to take different shapes and forms from one aspect of law to the other.
This was emphasised by Per Earle CJ in the ancient case of R v. Smith, where he stated that, “possession is one of the vaguest of all terms and shifts its meaning according to the subject matter to which it is applied-varying very much in its sense, as it is introduced either into civil or criminal proceeding.” This submission has been given further credence by Lord Parker CJ in the case of Towers & Co Ltd v Gray, when he said, “the meaning of (the term) ‘possession’ depends on the context in which it is used”.
Possession is the exercise of control over something to the exclusion of all others. Possession is also the exercise of dominion or power or control over a property or object. According to C. C. Wigwe, possession exists where a person can exercise general control of anobject or property to the exclusion of all then that is possession.
The Roman law of possession was a vague concept. However, certain advantages were attached to the possessor and they include: (a) that possession was prima facie evidence of ownership, (b) that possession was the basis of certain remedies, (c) that possession was an important condition in the acquisition of ownership, and (d) that in the law of pledge, possession of the thing pledged constituted the creditor’s security without any presumption of ownership.
Theories of Possession
Different jurists have made several submissions on the meaning of the term ‘possession’ and its ambit. Some of the include Savigny, Salmond, Goodhart, Holmes, Jhering, Pollock, and Maine. These submissions have also been criticised on relevant grounds.
Savigny’s Theory of Possession
Friedrich Carl von Savigny, based on the text written by the Roman jurist, Paul, published his masterpiece on the concept of possession in 1803. He postulated that possession consists of two elements which are corpus possessionis (effective control) and animus domini which means the intention to hold as owner. He contends that these two elements must coexist simultaneously for possession to exist. And if either of them is lost, then possession is lost.
However, Savigny’s postulations have been criticised on a number of facts. First, that his theory, which he claimed to have been based on Roman law does not truly reflect the position of Roman law of possession. Also, he failed to define the timeframe which constitutes “permanent” loss of either corpus possessionis or animus domini. Moreover, he erroneously concluded that corpus and animus are always needed for possession to exist, when in fact, possession can continue without them.
Salmond’s Theory on Possession
According to Dias, Salmond’s theory on possession was the first in the field of possession as a jurisprudential topic.In his book titled, ‘Jurispredence’, he distinguished between “possession in fact” and “possession in law”. He asserted that the former is a “conception” while the latter is a fiction. For Salmond, the possession of a material object is the continuing exercise of a claim to the exclusive use of it. Thus, possession involves two things: (1) claim of exclusive user; and (2) conscious or actual exercise of this claim, that is, physical control over it. The former is the mental element called as animus possessionis and the latter is the physical element called as corpus possidendi.
Salmond also distinguished between possession of physical objects calling this “corporeal possession”, and, possession of rights which he referred to as, “incorporeal possession.” He contends that the former is “the continuing exercise of the claim to the exclusive use of ‘a thing’, and that this claim involves two elements – corpus possessionis (i.e. effective control of the thing) based upon a reasonable expectation of non- interference” with one’s possession, and the animus possidendi (i.e. intention to possess and to exclude all others). He concludes that if either corpus or animus is lost, possession is lost.
Salmond has been criticised on the fact that his adoption of the animus possidendi is only a veiled use of Savigny’s theory of animus domini, and is faulty for the same reasons Savigny’s theory is faulty. Also, like Savigny, he made a fundamental error in his conclusions on corpus with animus. While both are needed for possession to exist, they are not required for its continual existence. Moreover, his assertion that there are two different conceptions of possession, and that the only conception of possession is possession in fact is misleading.
Holmes’ theory of Possession
Similar to Savigny and Salmond, Holmes also posited that both the corpus and the animus are needed to acquire possession. However, he further concedes that fewer facts are needed to continue possession than are needed to acquire it. The most potent criticism against Holmes is his rejection of a priori philosophical criteria of which he paradoxically became a victim.
In conclusion, possession, as a fundamental concept in jurisprudence, is the holding of something that does not necessarily belong to the ‘possessor’, but must largely be defined within the confines of its use.
