Possession

Possession
Protection of Possession
Kokebe Wolde
In This Presentation:-
o Introduction
o Dispossession
o Legal Remedies for Dispossession
Introduction
 Possession is an important facet of life.
 Because it is important facet of life of individuals as
well as society, it is recognized and protected by law.
 The possession of a thing by a person in the manner
defined by the law, irrespective of a right in rem that
he may have over the thing, is protected by law:
uninterrupted possession is protected by law.
o Criminal law: Arts 685 & 686 criminalize dispossession
and interference.
o Civil law remedies designed to protect from
dispossession: Arts 1148 & 1149 Civ. C.
Dispossession
 A possessor is protected from dispossession.
 But, what constitutes dispossession? When do we say
that a person’s possession is threatened entailing the
application of lawful measures (remedies)?
 The law doesn’t provide a direct definition for the term
‘dispossession’.
 From a cumulative reading of Arts 1140, 1148 & 1149, we
can construct the following definition for the term
‘dispossession’:
Dispossession is a third party’s physical or juridical act that
interferes with or disturbs another person’s possession of a
thing.
Dispossession …ctd.
 The defining elements of dispossession
1st, dispossession consists of overt conduct; it involves a
material act. Mere thought or desire does not
constitute dispossession. It will not affect the
person’s possession actually or potentially.
2nd, the material act should target, actually or

imminently against one’s possession. It should be
directed at usurping the thing or disturbing the
peaceful possession of a thing by a person.
 The defining elements of dispossession …ctd.
3rd, the material act of interference may be a simple
physical act or it may be a juridical act.
Physical act: eviction or any other physical act which
prevents the possessor from enjoying
peaceful possession. Eg. snatching,
demolition, evicting, fencing in, etc.
Juridical act: performance of juridical acts that
contradict a person’s possession. E.g.:
 Trying to register in one’s own name;
 Posing as seller of the thing and drawing up contract;
 Proclaiming oneself as owner or possessor.

4th, the material act (physical or juridical) must be taken
without the consent of the possessor.
5th, the material act of dispossession must be one that is not
authorized by law. If the person preforming the material act of
dispossession is authorized by law, then it will not be
considered as dispossession. E.g.:
- Seizure of exhibits by police: Criminal Procedure Law
- Attachment of an object of property to satisfy judgement creditor:
Civil Procedure Code
- The Power of the Federal Government Housing Corporation to
evict defaulting tenants & unlawful occupants of government
owned houses. Art 6(3) Proc No. 555/2007 + Regn No. 398/2017.
- The power of municipal authorities to demolish constructions
contrary to masterplan or without having building permit.
Proclamations 315 & 316/1987.
The defining elements of dispossession …ctd.
6th, the author of the act constituting the dispossession
could be any person other than the possessor
himself/herself.
Having right of ownership or any other real or in
personam right in relation to the object cannot be a
justification to commit an act constituting dispossession;
having a right over the thing will not take away the
dispossession character or effect in law. Rights holders
have to use possessory action or petitory action or
personal action (in case of in personam rights).
Defense of jus tertii not applicable.
7th, the act that constitutes dispossession may be either usurpation or
interference.
Usurpation: is an act of evicting or depriving a person of his possession –
partly or wholly.
It involves an act of taking away a thing another person
possesses without his consent by force or fraudulently.
Interference: this is not about snatching or taking away the thing under
the possession of a person.
Rather, it is about creating every sort of inconvenience or
interference on the possessor so that he will not peacefully
enjoy his possession or to cause him to lose the animus or
corpus or both with regard to his possession.
Distinguish this from nuisance under Art 1125 which is about
interference in the enjoyment of a right.
Remedies for Dispossession
 When dispossession occurs as defined above,

property law provides a remedy. There are two
alternative remedies. These are:
– Use of force (self-help remedy) – Art 1148
– Possessory action (legal action in court)
Remedies for Dispossession
o Use of force – Art 1148
 According to Art 1148 a person who is in an imminent or
actual danger of dispossession can use force to repel the act
of usurpation or interference.
 So, the law permits the use of force to protect one’s
possession in so far as one has the physical ability to do so.
But, there are conditions:
– The use of force must be forthwith: while the act is being
committed or when the usurper is running away;
– Proportional use of force: only that amount of force necessary
to repel the act of dispossession must be used (Art 1148); No
use of force in excess of what is necessary under the
circumstances. No revenge or punishment allowed. Further, the
value of the thing and the minimum force that can compel the
wrongdoer from his action should be considered in applying
force.
Remedies for Dispossession …ctd.
o Possessory Action – Art 1149
 If one cannot or did not want to preserve his possession by
force or if he was not around to protect his possession by
force, there is a second alternative to restore or ensure
peaceful possession: Possessory Action
 Elements of the possessory action:
– The plaintiff must state and describe the factual circumstances
that constitute usurpation or interference. He should indicate the
overt conducts of the defendant that threatened his possession.
– The plaintiff should indicate the legal remedy he is seeking:
restoration of the thing or cessation of the interference; plus,
compensation, as the case may be.
Remedies for Dispossession …ctd.
o Possessory Action – Art 1149 ….ctd.
 Elements of the possessory action …ctd.
– The plaintiff has to produce evidence which show:
a) That he is the possessor of the thing; should not necessarily relate to
the real rights (e.g.: ownership) he/she has over the thing.
b) The commission of the act by the defendant
– The plaintiff should observe the period of limitation for the PA; the
possessory action should be brought within 2 year from the date the
act of usurpation happened/interreference commenced.
 When these elements are fulfilled, the court will order the restoration
of the thing or cessation of the interference.

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2nd, the material act should target, actually or

 The defining elements of dispossession …ctd.

 When dispossession occurs as defined above,

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