The Sunday Mail
Although the terms “ownership” and “possession” may be closely related, they are not synonyms. They, however, both relate to property, be it movable or immovable, tangible or intangible.
To start with, ownership is just that, ownership. On the other hand, possession is the state of being in actual physical control of something.
Often, ownership and possession are crocheted together where the owner and the possessor are one and the same.
It is common cause that a thing can be owned by one person and yet be possessed by another.
A good example is what happens in a lease agreement. The property is owned by the landlord but is possessed by the tenant. If you send your car to the mechanic for service, the mechanic becomes the possessor but you remain the owner.
In this contribution, I seek to explain the law relating to the ownership and possession of things.
There is a misconception that the owner of a thing by virtue of his right as owner, is himself entitled to disposes and recover his property from a possessor who has breached the contract between the parties. Or even if there is no contract as such but somehow, the thing in question will be in the hands of an unauthorised person.
The true and correct position at law is that the possessor of a thing is entitled to retain the thing in question even if his possession is ill or unlawful. In fact, it has been said that even a thief or robber is entitled to retain possession of the thing stolen.
The true owner is not himself permitted to approach the thief to recover his property. Instances where this is allowed are few.
Where a person gains unauthorised possession of another’s property and the true owner immediately takes steps to recover the property so that the two actions, that is to say, the taking and the recovering are considered as having occurred contemporaneously so that they may be taken as one action.
Otherwise in order for the true owner to recover his property, he has to do so through a court of law. In other words, he must first apply for and be granted a court order authorising him to make the recovery.
Even then, the court order is not enforced by the owner but by either the Messenger of Court if the matter falls within the jurisdiction of the Magistrates Court or the Sheriff of the High Court.
The reasoning behind this approach is that one of the purposes of law is to ensure that at all times, citizens live in harmony with each other. Therefore, the law forbids owners of property who have lost possession from taking the law into their own hands.
The fact that the possessor of the property gained the property unlawfully is not justification for the owner to use, if you want, “self-help” to recover his property. Due process must first ensue.
But what if the owner forcibly regains property from the unlawful possessor?
For instance, if the tenant breaches the lease agreement by not paying his rent, is the landlord himself entitled to throw the tenant out?
The answer is no.
The landlord is obliged to first apply for a court order and even then, it will be the Messenger of Court who will do the hatchet job.
Further, in cases involving breaches of the lease agreement by tenants, a landlord who has been issued a Certificate of Ejectment by the Rent Board cannot use that certificate to himself eject the tenant.
The certificate has to be registered first with the Magistrates’ Courts, where-after a court order will be issued on which the Messenger of Court will proceed against the defaulting tenant.
If after he has unlawfully recovered his property and then seeks to have that recovery ratified by the court, such an owner is unlikely to be heard by the court before he restores possession to the unlawful former possessor.
The court uses the “dirty hands” doctrine, which essentially means he who is in breach of the law cannot be heard by the court until he has remedied the breach.
Interestingly, where the possessor of property is deprived of possession by the owner against his will, he has a right to approach the court for possession to be restored.
All he has to prove is that while he was in peaceful and undisturbed possession of the property in question – and I say that with great emphasis – the owner or some other persons acting for the owner, came and dispossessed him against his will.
In such instances, the court does not even enquire into whether the possession was ill or not. As long as the possessor proves as explained above, that will be the end of the matter. Possession will be restored.
The debate as to who is the rightful owner of the property or who is entitled to possession will be a case for another day.
If, on the other hand, the possessor’s possession was not peaceful and there were always quarrels and disputes over the property in question, the owner or dispossessor may himself be entitled to gain possession of the thing in dispute without the authority of the court.
In cases of termination of the employment relationship, disputes can arise particularly involving assets of the company as for example, the motor vehicle that the employee was using during the tenure of the employment contract. Very often, the employee will refuse to hand over the car where there is a deadlock or dispute over the terminal benefits or the termination of the employment contract itself.
There are some employers who have reported the employee to the police alleging that the vehicle was being used by the former employee without the company’s consent.
There are other instances where the employers have used “bouncers” to recover the car from the employee. Well, all such conduct is frowned at by the law and in such cases, as long as there is no court order directing the employee to release the vehicle, neither the employer nor the police can do so.
Of course, if the employee freely and voluntarily surrenders the vehicle, no issues will arise. In other words, the recovery will be lawful.
In other cases, the possessor of property would have been contracted to do some work on the property but the owner then fails to pay for the services rendered.
In such instances, the possessor would be entitled to decline to release the property unless and until he has been paid for the work done on that particular item.
Note, however, that if such a possessor decides to claim his money through the court process, he cannot use the property that he will be holding as the cause of action.
His cause of action will be predicated on the fact of the services rendered and not paid for by the owner of the property. If on the other hand, the owner decides himself to sue the possessor of the property for its release, the possessor will be entitled to use the same property as a defence weapon against the owner in the sense that the property will be his security for the unpaid services rendered.
So, all in all therefore, the law affords greater protection to possessors of property than it does to the owners. The main reason is to prevent chaos emanating from citizens taking the law into their own hands and thereby causing disquiet within society.
Tichawana Nyahuma is a Harare-based legal practitioner who writes in his personal capacity. Feedback: [email protected]
