M.A. ALATISHE (APPELLANT/RESPONDENT)
H.R. SANYAOLU (RESPONDENT/APPELLANT)
 1 All N.L.R. 391
Division: Supreme Court
Date of Judgment: 23rd December, 1964
Case Number: FSC 100/63
Before: Brett, Onyeama, and Ajegbo J.J.S.C.
Appeal by plaintiff; cross-appeal by defendant:
The plaintiff ousted the defendant and built on the land; then he sued for declaration of title and injunction but failed; he did not attack the judgment against himself, but complained of the judge's findings in the defendant's favour.
The defendant counter-claimed for possession; he bought from someone, but could not show how his vendor acquired the land. The judge found that the defendant demarcated the land, which was bush, with stout pegs and put a caretaker prior to the plaintiff's entry, and was entitled to possession, but did not grant him possession; he ordered the plaintiff to pay the defendant an amount as the value of the land.
On appeal Counsel for the plaintiff argued (1) that the judge's findings in the defendant's favour were not sound on the evidence and (2) that the order was made in the equitable jurisdiction of the court, but he could not cite authority. Counsel for the defendant argued that the judge on his findings ought to have granted him possession.
(1) The type of conduct which indicates possession must vary with the type of land; here it was bush, and the judge rightly held on the evidence that the defendant had proved possession.
Wuta-Ofei v. Danquah  1 W.L.R. 1238 (P.C.);  3 All E.R. 596.
(2) The judge in effect ordered the defendant to sell land in his possession to the plaintiff, and that he had no jurisdiction to order: he ought to have granted the defendant an order for possession.
Plaintiff's appeal dismissed: Defendant's appeal allowed.
Chief D.O. Coker, for Appellant.
V.O. Munis for Respondent.
Onyeama, J.S.C. (delivering the judgment of the court).:-This is an appeal by the plaintiff and a cross-appeal by the defendant from the judgment and order of Dickson, J. given on the 13th of January, 1962, in the High Court at Lagos. Mr Alatishe, the plaintiff, hereinafter referred to as the appellant, claimed a declaration of title to a piece of land in Haastrup Street, Surulere, Lagos, and an injunction. The defendant, Mr H.R. Sanyaolu, hereinafter referred to as the respondent, counter-claimed for possession of the parcel of land.
The appellant's root of title was a sale to him of a plot of land by the administrator of the estate of Victor Coker in 1959. This plot had been sold in 1922 to Alhaji Alli Famu by the Oloto Chieftaincy family, the original owners, and by Alhaji Alli Famu to Victor Coker on the same day.
At the hearing in the High Court the appellant was not able to show that the land he claimed to have purchased from Coker was the land in question.
The trial Judge considered the question:-
"Does the evidence show that the land conveyed to the plaintiff by exhibit 'A' forms a part of the land covered by exhibit 'B' and 'C'?".
He decided that there was no evidence before him connecting the land claimed by the appellant with the land in exhibit "B" and "C"; and since the appellant had failed to establish the identity of the land he claimed the claim for title and injunction failed.
Mr D.O. Coker, for the appellant, Alatishe, has not suggested that the judgment dismissing the appellant's claim was wrong in law or against the weight of the evidence; his complaint is that the finding in favour of the respondent's claim of possession was wrong' he argued that since the respondent had counter-claimed for possession he had to prove a better right to possession than the appellant, who, in the counter-claim, was the defendant; he pointed out that there was no evidence how the respondent's predecessor-in-title, Amida Kaffo, acquired the land, nor was the wife of the caretaker whom the respondent claimed to have put in charge of the land called as a witness; he submitted that the whole evidence about the caretaker was unsatisfactory and that there were no physical signs of possession of the land by the respondent; for these reasons the counter-claim should have been dismissed.
Mr Munis answered that there is evidence that the appellant or his agent received notice of the registration of a deed of conveyance covering the plot he claimed to have bought from Coker when he sought to register his deed of conveyance; there is no evidence of any acts of possession on the land by Coker or the appellant; on the contrary, there is evidence, which the judge believed, that in 1941 the respondent caused the area to be surveyed and survey pillars placed on the land; the learned judge was satisfied with the evidence about the caretaker. In respect of his appeal, Mr Munis submitted that the learned trial Judge having found that the respondent was entitled to possession was wrong in refusing to award possession to him and to order that the appellant pay him £150 the value of the land; in effect, ordering him to sell the land to the appellant at a price fixed by the judge.
Mr Coker's answer to the appeal of the respondent is that the judge had made the order in the exercise of his equitable jurisdiction.
We think that the appeal of the respondent ought to be allowed and that of the appellant dismissed.
The evidence which the learned trial Judge accepted clearly established that the respondent was in possession. The area in question was bush and unenclosed land and to establish possession it is not necessary for a claimant to take some active step in relation to the land such as enclosing or cultivating it. In the case of vacant unenclosed land which is not being cultivated little can be done on the land to indicate possession. The type of conduct which indicates possession must vary with the type of land: Wuta-Ofei v. Danquah  1 W.L.R. 1238.
The area in question which appears to be building land, was surveyed by the respondent's surveyor and the boundaries demarcated by stout wooden pegs. The learned judge regarded these as acts of ownership, and having regard to the type of land we think he was right to hold that possession had been proved.
We can find no warrant, or precedent, however, for the order that the party shown not to be entitled to possession pay to the party entitled the value of the land; and, presumably, thereafter continue in possession of the land. Although Mr Coker submits that the order was made in the exercise of the equitable jurisdiction of the court, he did not suggest what principle of equity covered it. In appropriate cases the court in its equitable jurisdiction will award damages in place of some relief sought, but the present case is not one of those in which such a course can be followed. What has happened is that the learned judge has, in effect, ordered the defendant to sell land of which he is in possession to the plaintiff for a price fixed by the judge.
We do not think the learned trial Judge had jurisdiction to make such an order in this case and that order will be set aside.
It is therefore ordered that the appeal of M.A. Alatishe from the judgment of the High Court at Lagos in Suit LD/161/1960 M.A. Alatishe v. H. R. Sanyaolu dated the 13th of January, 1962, be dismissed. It is ordered that the appeal of H. R. Sanyaolu from the judgment on the counter-claim in that Suit be allowed; the judgment on the counter-claim is set aside and in place of it is substituted judgment for H. R. Sanyaolu the defendant for possession of the area edged yellow on the Plan No. L & L/B.2029 marked exhibit H.
The respondent will have the costs of the appeal assessed at 40 guineas.