LOUIS JOSEPH ARCHIBONG ITA & ORS v. MR. PETER ARCHIBONG ETIM ITA & ANOR (2013)

LOUIS JOSEPH ARCHIBONG ITA & ORS v. MR. PETER ARCHIBONG ETIM ITA & ANOR

(2013)LCN/6475(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 29th day of October, 2013

CA/C/156/2012

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. LOUIS JOSEPH ARCHIBONG ITA
2. ALBERT EDET
3. MOSES EDET AKINWALE WEY Appellant(s)

AND

1. MR. PETER ARCHIBONG ETIM ITA
2. SISTER MAGDALENE E.A.ITA Respondent(s)

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE FORMULATED FROM THE GROUND OF APPEAL

It is now firmly settled that every issue for determination, must be formulated from, based upon and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the argument or arguments advanced thereunder in the consideration of the appeal. Thus, issue or issues formulated by an Appellant or a Respondent, must be based on and correlate with the grounds of appeal. So, for an issue of determination to be competent, it must be based on a ground of appeal. See Captain Amadi v. NNPC (2000) 6 SCNJ 1; (2000) 6 S.C. (Pt. l) 66; Adelusola & 4 Ors. vs. Akinde & 3 Ors. (2004) 12 NWLR (Pt.887) 295 at 311; (2004) 5 SCNJ 235 at 246, Ibatur vs. Barakuro (2007) 4 S.C. (PT. I) 1. PER OTISI, J.C.A.

THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT AND WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

The main issues raised in this appeal challenge certain findings of facts made by the learned trial Judge, whether these findings of fact are supported by the evidence placed before the Court and whether the conclusions reached by him can be justified having regard to the admissible evidence placed before the Court. On how far an appellate court may exercise its jurisdiction when such issues are raised, certain judicial pronouncements are instructive. In Ebba v. Ogodo (1984) NSCC 255, Eso, JSC, of blessed memory said:
“Now, the principles upon which a court of appeal would act have been well stated in the English case of Watt or Thomas v. Thomas (1947) A.C. 484 and approved several times by this court. Indeed, it is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the court forms of them. That is one good reason why the trial court is named a “trial court” it is the trial court (and hence a court of appeal should attach the greatest weight to the opinion of the trial judge) that has the duty to see and indeed, in this case, has seen the witnesses and also heard their evidence. The Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound; it is in the Process of deciding whether the finding is sound or not, that the Court of Appeal (because it does not see the witnesses) is left only to examine the grounds that led to the conclusion reached by and the inferences that have been drawn from such conclusions of the trial court.
In this country, trial is usually, unlike in England, without a jury and the trial judge has the singular experience and duty of taking a lone decision on the evidence for the purpose of determining the facts, from his advantage of seeing and hearing simultaneously the witnesses. Unless the trial court has failed to make use of this singular advantage, and for that reason thereof the Court of Appeal finds that the decision is perverse, the Court of Appeal, whose opportunity is confined to printed record, is obliged to, and must accord to the finding of due respect. That indeed is the division of labour, and a sensible one at that, between the trial court and the appellate courts.
But this division ends or, rather does not exist, where the question does not affect the issue of credibility of witnesses: in other words, the court of appeal itself will obviously be in as good a position as the trial court, for in such a case, the trial court has no advantage really over the court of appeal. For the court of appeal will be in a proper position to evaluate, as the trial court, the evidence which has been given in the case, for in such cases the matter in dispute has been completely narrowed down to inference that could be drawn from proved facts, without going through the rigour of credibility of witnesses. When we have this type of cases, the court of appeal should not shrink from the task of such evaluation or be inhibited therefrom, just because it is a court of appeal. See Benmax v Austin Motor Co. Ltd. 1955 A.C.370. See also Lion Buildings Ltd. v. M.M. Shadipe 1976 12 S.C. 135 as per Sir Udo Udoma J.S.C. At p.153.”
Again, the Supreme Court, per Ogbuagu JSC in Sapo v Sunmonu (2010) 5-7 (PT 1) MJSC 35 said:
“At page 130 thereof, the Court below stated as follows:
“The main issues raised in the appeal are whether the findings of facts made by the learned trial Judge are supported by the evidence placed before the Court and whether the conclusions reached by him can be justified having regard to the admissible evidence placed before the Court. The law is settled that although it is no business of an appeal Court to substitute its view of the evidence for that of the trial Judge who has the singular opportunity of listening to the witnesses and watching them , the appeal Court could however, in the interest of justice, disturb, alter, reverse or set aside the lower Court’s findings of facts under certain circumstances. Among such circumstances are:
(1) where the trial Court fails to evaluate the evidence adduced before it: or
(2) the trial Court has drawn wrong inferences from the primary facts found; or
(3) the facts found by the trial Court are wrongfully applied to the circumstances of the case or the findings of facts are not reasonably justified or supported by the credible evidence given in the case. See
Akinola v. Oluwa (1962) SCNLR 352; Federal Commissioner for Works & Housing v. Lababebi (1977) 11- 12 S.C. 15; Kuforiji v. V.Y.B. Nig. Ltd. (1981) 6-7 S.C. 40; and Ezeafulukwe v. John Holt Ltd. (1996) 2 NWLR (Pt.432) 511.
Similarly, the law is settled that an Appellate Court is in the same position as the trial Court in relation to what conclusion or inference to draw from primary findings once any of the conditions for such interference, as already enunciated above exists. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177; Metalimpex v. A.G. Leventis (1976) 2 S.C. 91; and Runsewe v. Odutola (1996) 4 NWLR (Pt.441) 143.
Applying the law as decided above to the facts of the instant case, it is clear from the findings of facts made by the learned trial Judge that he did not properly evaluate the evidence placed before him and that some of the findings of facts he made were wrongfully applied to the case before him. Such omissions have therefore created an avenue for this Court to interfere with the findings of facts and application of the facts to the case.”
See also the concurring contribution of Adekeye, JCA (as he/she then was) at page 137 of the Records. I agree.
The Court below, at pages 131 to 133, as it was entitled and justified to do, re-evaluated the evidence in the Records bearing in mind also the above principles which it applied. See the cases of Fatoyinbo v. Williams 1 FSC 87; Karibo & Ors v. Grand & anor (1992) 3 NWLR (Pt.230) 426 at 441; (1992) 4 SCNJ 12; Adekeye vs. Iyanda (2001) 13 NWLR (Pt.725) 1 at 20; (2001) 6 SCNJ. 101; Abey & 5 Ors. v. Chief A.I.F Alex & 2 Ors (1999) 12 SCNJ. 234; Iwuoha & anor v. Nigerian Postal Services Ltd. & anor (2003) 4 SCNJ 258 at 278 and Morenikeji & 4 ors v. Adegbasin & 4 ors. (2003) 4 SCNJ 105 at 125 – 126 – per Iguh, JSC just to mention but a few.” PER OTISI, J.C.A.

WAYS OF ESTABLISHING TITLE OF OWNERSHIP OF LAND

It is now well settled that there are five ways of proving ownership of land. These five ways are:
1. By traditional evidence;
2. By production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody;
3. By acts of ownership such as selling, leasing or renting out all or part of the land, or forming on it or on a portion of it, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of the land.
5. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See: Idundun v. Okumagba (1976) 9/10 SC 227 at 246 – 250; Ekpo v. Ita (1932) 11 N.L.R. 68; Uka vs. Irolo (2002) 7 S.C. (PT.II) 77.
These five methods are independent of each other; and proof of each method suffices to establish title to a piece or quantity of land in dispute. See: Echi v Nnamani (2000) 8 NWLR (PT 667) 1; Oyedoke v The Reg. Trustees of CAC (2001) 3 NWLR (PT 701) 621. PER OTISI, J.C.A.

WHETEHR OR NOT A CLAIMANT MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE IN A CLAIM FOR DECLARATION OF TITLE TO LAND

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, Calabar , delivered on 20th April, 2012.
In summary, the facts leading to this appeal are as follows: The land and property in dispute, No 56 Egerton Street, Calabar, forms part of a larger parcel of land and property known as and called No 56, 58 and 60 Egerton Street, Calabar, and, Nos. 21 – 25 Macdonald Street, Calabar. The case of the Appellants is that the entire larger parcel land belonged to the 1st Appellant’s father, Ita Joseph Archibong Ita, by virtue of a Deed of Land Gift (Exhibit E) executed by Etubom Efa John Eyamba, for himself and on behalf of Ekpeyong Offiong Okoho Eyamba family, owners of the land, in favour of the said 1st Appellant’s father, late Joseph Archibong Ita, who was also the grandfather and uncle of the 2nd and 3rd Appellants, respectively. The said Deed was witnessed by late Admiral Akinwale Wey, who was the 1st
Appellant’s uncle and 3rd Appellant’s father. Sometime between 1981 and 1982, late Admiral Wey Calabar requested of late Joseph Archibong Ita, his elder brother, for a place to put up a house in Calabar, in order to avoid staying in hotels when visiting Calabar. He was granted No 56 Egerton Street, Calabar to build a house. Late Joseph Archibong Ita had a brother who predeceased him, but whose wife, Mma Edima, had no children for him. After his demise, late Joseph Archibong Ita allowed Mma Edima to continue to reside in a thatched house at No 56 Egerton Street. With the permission and consent of late Joseph Archibong Ita, Admiral Wey first demolished the thatched house and put up a 2-room back house on the land where Mma Edima was allowed to stay, while he erected the main building in front. Admiral Wey stayed in the said house anytime he visited Calabar. Late Joseph Archibong Ita, who was based in Ikot Ekpene, also stayed in the said front house whenever he visited Calabar.
It is the case of the Appellants that Mma Edima was fond of having people stay with her in the backhouse. The Respondents as well as one Emmanuel Okon Effiong, who testified as CW2, had lived with her at the said back house. Mma Edima, who died in 1991, never laid claims to the property or to No 56 Egerton Street. After the death of late Joseph Archibong Ita, the Respondents started to lay claims on the property. They served quit notices on the 1st Appellant to recover possession, describing themselves as landlord and landlady, while describing the 1st Appellant as a tenant at will. The 1st Appellant ignored the notices, and instituted an action seeking the following reliefs:

1. An order that the entire piece of land lying and situate between Nos. 56, 58 and 60 Egerton Street, and Nos. 21 – 25 MacDonald Street as shown in the Survey Plan No. EAAC/124 annexed to the Deed of Gift dated 5th March, 1971 and registered as No. 94 at Page 94 in Volume 132 of Lands Registry in the Office Calabar, is the bona fide property of Late Joseph Archibong Ita, the father 1st and 2nd claimants and grandfather and uncle of 3rd and 4th claimants respectively.
2. An order that the Defendants are not the children or members of Late Joseph Archibong Ita’s family or the Archibong Ita’s family at all by any manner whatsoever and they have no right or interest whatsoever in any property covered by the said Deed of Gift and the Survey Plan attached thereto including No. 56 Egerton Street, Calabar, or any property of Late Joseph Archibong Ita at all.
3. An order that the Plaintiffs are the direct beneficiaries of Late Joseph Archibong Ita’s property shown in the Deed of Gift with the Survey Plan annexed and referred to in relief No. 1 above including No. 56 Egerton Street, Calabar and the backhouse held on by the 1st Defendant as a squatter.
4. An order of possession of the backhouse at No. 56 Egerton Street, Calabar.
5. An order of perpetual injunction restraining the Defendants and their agents, assigns and privies from further claiming ownership, right or interest in the said property to any part thereof.

The Respondents filed their statement of defence and counterclaim, seeking these reliefs:
a) A declaration that the Defendants are entitled to statutory right of occupancy over the property lying and situate at No. 56 Egerton Street, Calabar, Cross River State having inherited the same through their late father, Mr. Peter Etim Archibong Ita.
b) An order of perpetual injunction restraining the Plaintiffs from further trespassing on the property known as No. 56 Egerton Street, Calabar either by themselves, their agents, workers, privies or any person claiming under or through them howsoever.
c) An order granting possession of the four bedroom apartment lying and situate at No. 56 Egerton Street, Calabar to the Defendants.
d) N100 million general damages against the Plaintiffs jointly and severally.
The main issue for trial settled at pre-trial by the parties was the ownership of No. 56 Egerton Street, Calabar. At the conclusion of the trial, the lower court dismissed the claims of the Appellant and granted the counterclaims of the Respondents; and, also granted the following order:
No child of the late Admiral Akinwale Wey shall be denied the use (alongside with the Defendants) of the main building on the said No. 56 Egerton Street, Calabar.

The Appellants, being dissatisfied with the decision of the trial court, filed this appeal.
In the Notice and Grounds of Appeal filed on 4/5/2012, the Appellant raised two Grounds of Appeal and sought an Order, setting aside the judgment of the lower court delivered on 26/4/2012; and, entering judgment in their favour. The Appellants filed two additional Grounds of Appeal on 23/7/2012, but deemed on 18/3 /2013.
The Appellants’ Brief of Argument, settled by I.A. Inyang, Esq. of Counsel, was filed on 19/3/13, and, deemed properly filed and served on 18/9/2013. Ukpong Eba, Esq. of Counsel for the Respondents filed the Respondents’ Brief on 23/4/2013, deemed properly filed and served on 18/9/2013. These Briefs were adopted by respective Counsel on 18/9/2013.
In the Appellants’ Brief, four Issues were distilled for determination from the four Grounds of Appeal as follows:

1. Whether the Deed of Gift (Exhibit E) registered as No. 94 at Page 94 in Volume 132 of the Land Registry in the Office Calabar, tendered by the 1st Appellant, was not sufficient evidence of Conveyance which transferred title and interest in the land at No. 56 Egerton Street, Calabar, Cross River State, from the Eyamba family (the Grantor) to Joseph Archibong Ita (the Grantee) and father of the 1st Appellant; and afor tori whether the 1st Appellant was right to rely on the document as the basis and foundation of his title and claim to the land, as he is the only surviving child of Late Joseph Archibong Ita.
2. Whether the Learned Trial Judge was right when he held that: “the Defendant’s (i.e. Respondents in this appeal) were entitled to the statutory right of occupancy over the property lying and situate and known as No. 56 Egerton Street, Calabar, Cross River State of Nigeria” despite the existence of the Deed of Gift (Exhibit E) duly tendered by the 1st Appellant and admitted as a document of title between the Eyanba family and Joseph Archibong Ita (the father of the 1st Appellant), which document the 1st Appellant derived his title and interest from.
3. Having regard to the totality of the evidence and the exhibit tendered by the Appellant particularly Exhibit E in proof of his claim to the land and property at No. 56 Egerton Street, Calabar, whether the judgment of the trial judge was not against the weight of evidence in this case.
4. Whether the Learned Trial Judge was right when he made the following order: “no child of Late Admiral Wey shall be denied the use (alongside with the Defendants) of the main building in the said No.56 Egerton Street, Calabar”, when none of the parties asked for such relief or order.

On Issue 1, it is submitted that the Deed of Gift, Exhibit E, is the basis and foundation of the Appellants’ case. Chief Adam Efa Eyamba, the son of late Etubom Effa John Eyamba, who had signed Exhibit E on behalf of the Grantor Eyambo family had testified as CW3. It is submitted that the capacity or title of the Eyamba family as original owners of the land was not in dispute. That the Deed of Gift qualifies as an instrument and a conveyance, which conferred and transferred title in the land in dispute from the Eyamba family to late Joseph Archibong Ita, the 1st Appellant’s father. And, that this is sufficient proof of title in favour of late Joseph Archibong Ita.
It is submitted that there are five methods of proving title to land, all of which are independent of each other, relying on Kyari vs. Achali (2001) 11 NWLR (PT 724) 412: Idundun vs. Odumagba (1976) 9-10 S.C. 277: Iragunima vs. Rivers State Housing and Development Authority (2003) FWLR (PT 169) 1233; Nwadihe vs. Ibekwe (1987) 4 NWLR (PT 67) 718. It is submitted that the Supreme Court held expressly in Iragunima vs. Rivers State Housing and Development Authority (supra) that a party who proves any one of the five ways is entitled to the ownership of the land. The Appellants, having tendered Exhibit E in proof of their title, without any objection, submit that they had proved the title of late Joseph Archibong Ita to the land by the method of production of title. It is submitted that, in view of the totality of the evidence proffered before the trial court, the 1st Appellant proved his title to the land in issue.
The Court is urged to hold that the Deed of Land Gift, Exhibit E, was sufficient evidence of an instrument or conveyance which transferred title and interest in the land in issue from the Eyamba family to late Joseph Archibong Ita, father of 1st Appellant; and to hold that the 1st Appellant had rightly relied on the title of his father as the basis and foundation of his claim to the land in issue.

On Issue No 2, it is submitted that the Respondents had pleaded and testified that the basis of their claim was a transaction by their great grandfather in the 18th century through which their great grandfather became a tenant of the Eyamba House of Duke Town. In support, they tendered Exhibit B, a survey Plan No JEJ/CP/2079 dated 20th October, 1997. It is submitted that a Survey Plan is not an instrument of title to land. It is further submitted by that the evidence of CW3, Chief Adam Efa Eyamba, the said Survey Plan made after Exhibit E, was rendered null and void and of no effect whatsoever. It is further submitted that the Respondents did not tender any oral or documentary evidence to substantiate this claim; and, that assuming without conceding there was such agreement, it become extinct and ceased to have legal effect as soon as Exhibit E, which is unambiguous, came into existence. It is submitted that the great grandfather of the Respondents was a tenant by their evidence and had no title to pass onto the Respondents; and, that the Respondents cannot therefore successfully rely on the fact of inheritance. That the established legal principle that one cannot place something on nothing and expect it to stand operates strongly against the Respondents. The Respondents failed to prove their title to the land.

On Issue No 3, it is submitted that based on the evidence and on the exhibits tendered, the judgment of the trial court is against the weight of evidence.

On Issue No 4, it is submitted that the Respondents never asked for the order that:
“No child of Late Admiral Wey shall be denied the use (alongside the defendants) of the main building on the said No. 56 Egerton Street, Calabar.”
That a court of law cannot go outside the writ of summons or statement of claim and award a claimant or counter-claimant what is not claimed: relying on African Continental Savings Ltd. vs. Nigeria Dredging Food and General Works Ltd. (1972) 5 S.C. 235 at 250; Udongwe vs. Uzuegbu & Ors. 15 NSCQR 262 at 265; Aarinola vs. Oluogbo (2001) 16 NWLR (PT 738) 38 at 44: Ladojobi vs. Shodipo (1989) 1 NWLR (PT 99) 596; Kotoye vs. CBN (1989) 1 NWLR (PT 984) 19: Odukwe vs. Ogunbiyi (1998) 8 NWLR (PT 561) 339.
This Court is urged to set aside the judgment and orders made by the trial court.

In the Respondent’s Brief, two issues for determination were raised, as follows:
1. Whether the trial court evaluated the evidence adduced by the parties and weighed same in an imaginary scale to see which party’s evidence has more weight or preponderates.
2. Whether the trial judge was right in granting as consequential order that no child of the late Admiral Akinwale Wey shall be denied the use (alongside with the Defendants) of the main building on the said No. 56 Egerton Street, Calabar.
On Issue No 1, it is submitted that parties are bound by their pleadings and that a court of law will confine itself to the pleadings and reliefs sought by the parties. That the trial court had evaluated the evidence of the parties and found that the Appellants failed to prove their case. That in a case of declaration of title, the claimant succeeds on the strength of his case and must not rely on the weakness of the defence. That the Appellants failed to lead credible evidence at the lower court. It is further submitted that the trial court evaluates and weighs evidence proffered before it. That it is not the function of the appellate court to interfere with findings made by the trial court.
On Issue No 2, it is submitted that a consequential order is an order that necessarily flows directly and naturally from and inevitably consequent upon the judgment already given: relying on SEC & Exchange Com. vs. Gema (2008) 27 WRN 161. That even where a person has not specifically asked for such relief from the court, the court has the power to grant such a relief as consequential relief: relying on Okupe V FBIK (1974) 1 ALL NLR 314. That a consequential order must be one made giving effect to the judgment which it follows. It is submitted that the consequential order made by the trial judge is supported by evidence of both parties to the proceedings; and that the order was made to protect an established right on record.

The Appellants filed a Reply Brief on 3/9/2013 but deemed on 18/9/2013. They submit that the trial court failed to properly evaluate the totality of the evidence proffered by the 1st Appellant, vis-a-vis the evidence put forward by the Respondents; and that, accordingly, the decision of the lower court is against the weight of evidence. It is further submitted that a consequential order is to give effect to the decision or judgment of the court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties of the trial nor was it in the contemplation of the parties that such relief would be the subject matter or formal executor judgment or order against either side to the dispute: relying on Awoniyi vs. ARMOC (2000) 6 S.C. (PT 1) 103 at 123 – 124; Akinbobola vs. Plisson Fisko (1991) 1 NWLR (PT 1) 167 at 170; Federal Republic of Nigeria vs. Zebra Energy (2002) 12 S.C. (PT.1) 139; Obayagbona vs. Obazee (1973) S.C. 247: Liman vs. Alhaji Mohammed (1991) NWLR (PT 617) 116.
It is also submitted, relying an Order 18 Rule 4(2) of the Court of Appeal Rules 2011 that the Respondents failed to respond to the material points of substance contained in the Appellants’ Brief. It is further submitted that the only logical inference or conclusion is that the Respondents have conceded those points. The Court is urged to allow the appeal.

Before proceeding to consider the issues arising for determination in this appeal, it is necessary to comment on the failure of both the Appellants and the Respondents, to show under what grounds of appeal their respective issues were formulated from. The Respondents, who have not filed any cross-appeal nor filed a respondents’ notice to affirm the Judgment of the court below on grounds other than grounds argued by the Appellants, must raise issues arising from the grounds of appeal as filed by the Appellants. It is now firmly settled that every issue for determination, must be formulated from, based upon and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the argument or arguments advanced thereunder in the consideration of the appeal. Thus, issue or issues formulated by an Appellant or a Respondent, must be based on and correlate with the grounds of appeal. So, for an issue of determination to be competent, it must be based on a ground of appeal. See Captain Amadi v. NNPC (2000) 6 SCNJ 1; (2000) 6 S.C. (Pt. l) 66; Adelusola & 4 Ors. vs. Akinde & 3 Ors. (2004) 12 NWLR (Pt.887) 295 at 311; (2004) 5 SCNJ 235 at 246, Ibatur vs. Barakuro (2007) 4 S.C. (PT. I) 1.

The parties have assigned to the Court, as it were, the task of deciphering which of the issues raised for determination arises from which of the 4 grounds of appeal.
This is most improper. Parties have been sufficiently cautioned and should desist from this practice.
The omnibus ground of appeal, that the judgment is against the weight of evidence, was the 1st Ground of Appeal. This simply means that:
“there was no evidence which, if accepted, would support the finding of the learned trial judge or the inference which he had made.”
See: NTA v Anigbo (1972) 5 SC 156: Ali v The State (1988) 1 NWLR 1: Sparkling Breweries v UBN (2001) 8 MJSC 175.

To my mind, having regard to the Grounds of Appeal, and, to the Issues raised for determination by the parties, there are two main Issues arise for determination,
1. Whether the lower court properly evaluated the totality of the evidence proffered by the parties in dismissing the claims of the Appellants and in granting the counter-claim of the Respondents.
2. Whether the order made by the lower court that:
“No child of Late Admiral Wey shall be denied the use (alongside the defendants) of the main building on the said No. 56 Egerton Street, Calabar.”
was rightly made as a consequential order.
These Issues shall now be considered.

Issue No. 1
The main issue before the trial court was the ownership of No. 56 Egerton Street, Calabar. I think I need begin by setting out some salient principles of law involved.
It is now well settled that there are five ways of proving ownership of land. These five ways are:
1. By traditional evidence;
2. By production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody;
3. By acts of ownership such as selling, leasing or renting out all or part of the land, or forming on it or on a portion of it, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of the land.
5. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See: Idundun v. Okumagba (1976) 9/10 SC 227 at 246 – 250; Ekpo v. Ita (1932) 11 N.L.R. 68; Uka vs. Irolo (2002) 7 S.C. (PT.II) 77.
These five methods are independent of each other; and proof of each method suffices to establish title to a piece or quantity of land in dispute. See: Echi v Nnamani (2000) 8 NWLR (PT 667) 1; Oyedoke v The Reg. Trustees of CAC (2001) 3 NWLR (PT 701) 621.

It is also well settled that in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. See: Oje v Bobolola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48.
The land and property in dispute, No 56 Egerton Street, Calabar, forms part of the larger parcel of land and property known as and called No 56, 58 and 60 Egerton Street, Calabar, ond, Nos. 21 – 25 Macdonald Street, Calabor. It is in evidence that the entire parcel of land had formerly belonged to late Archibong Ita, the father of late Joseph Archibong Ita, and grandfather of the 1st Appellant. He had held the land upon an annual tenancy to the Eyamba family. In 1971, the entire larger parcel land, by virtue of a Deed of Land Gift (Exhibit E) executed by Etubom Efa John Eyamba, for himself and on behalf of Ekpenyong Offiong Okoho Eyamba family, original owners of the land, was granted to late Joseph Archibong Ita, the 1st Appellant’s father. Exhibit E was the CTC of the Deed of Land Gift, dated 5th March, 1971, and it was admitted in evidence without objection. Exhibit E was donated by Etubom Effa John Eyamba on behalf of the Eyamba family to Joseph Archibong Ita, as donee, and is described thus:
“…the Donee, which expression shall, where the con so admits, include his heirs, brothers, executors, administrators, successors and assigns…”

Exhibit E further states:
“WHEREAS the said Eyamba Family is seized for its own sole benefit of all the piece of parcel of land and hereditaments hereinafter described and intended to be donated, granted and conveyed for an estate of inheritance in fee simple in possession free from all emcumbrances (sic), and has agreed to donate, grant and convey the property to the Donee as an adopted member of the Eyamba Family.
WHEREAS the ARCHIBONG ITA’S FAMILY of Calabar in the South Eastern State of Nigeria have been tenants of Eyamba Family for a considerable number of years and have been paying annual rent at the rate of #1 (One pound) a year. And whereas the said Eyamba Family hereby agrees to release the said Archibong Ita’s family from the liability to pay any further rents…”

Exhibit E was signed by the parties to the transaction; and, was witnessed by late Admiral Akinwale Wey, who was the 1st Appellant’s uncle and 3rd Appellant’s father. The Survey Plan attached to Exhibit E states that it shows:
“LANDED PPOPERTY OF LATE CHIEF ARCHIBONG ITA AT EGERTON STREET – CALABAR – SOUTH EASTERN STATE-”

In his further depositions at page 46 of the Record of Appeal, the 1st Appellant who testified as CW1, stated:
“My grandfather Mr. Effiong Archibong Ita did not purchase the land subject matter of this suit from Ekpeyong Offiong Okoho Eyamaba family as claimed by the defendants. On the contrary the man only held the land on a yearly rental of #1 (one pound) at the time. In 1971 the original landlords represented by Etubom Effa John Eyamba, in a different and new transaction altogether for himself as the head of the family and also on behalf of the entire family conveyed the entire area of land and property in Nos. 56, 58 and 60 Egerton Street and Nos. 21 to 25 MacDonald Street, Calabar to my father Joseph Archibong Ita for a consideration of #30 (30 pounds) together with customary gifts and drinks.”

Chief Adam Efa Eyamba was CW3. He stated in his depositions made on behalf of the Etubom Okon Ekpenyong John Eyamba family, at page 50 of the Record of Appeal as follows:
“Our family Ekpenyong Offiong Okoho Eyamba are the overlords and original owners of the land. The land was formerly held on a yearly rental by late Archibong Ita at the rate of #1 (one pound). Later in 1971 during the tenure of my father late Etubom Effa John Eyamba as the head of the family, the said land was in a fresh and different transaction donated to Joseph Archibong Ita for a consideration of #30 (30 pounds) together with the necessary customary gifts and drinks. My father signed the agreement for himself and on behalf of the family and since then all the right and interest on the land was formally and legally transferred to Mr. Joseph Archibong Ita and our family only knows and recognizes him, his children and grandchildren as the persons who have right and interest in the land in question.”
Under cross examination, he said:
“I can see my father’s signature on Exh. “E” (Deed of Gift). Etubom Efa John Eyamba was my father.”

The authenticity of Exhibit E was not challenged. The signature of late Admiral Wey on Exhibit E was also not queried. Exhibit E was therefore accepted as a genuine document.
It is not in issue that the parcel of land and property in Nos. 56, 58 and 60 Egerton Street and Nos. 21 to 25 MacDonald Street, Calabar were held on a yearly rental of #1 (one pound) by late Archibong Ita, grandfather of the 1st Appellant. From Exhibit E, in 1971, the original landlords represented by Etubom Effa John Eyamba, in a different and new transaction altogether conveyed the entire area to the 1st Appellant’s father, Joseph Archibong Ita upon consideration.
The Respondents pleaded and the 1st Respondent as DW1 testified in paragraphs 3, 10 and 11 of his depositions at page 34-36 of the Record of Appeal that:

“3. That the original owner of No. 56, 58 and 60 Egerton Street, Calabar was known as late Etubom Effiong Archibong Ita Yanibo. He purchased the land aforementioned from Eyamba House in 18th century. Late Etubom Effiong Archibong Ita Yanibo had three children namely Paul Archibong Ita, Peter Etim Archibong Ita and Joseph Archibong Ita. Late Yanibo had two wives who were mothers of these three children.
10. That our grand father Chief Archibong Ita acquired this land covered by Survey Plan No. EAAC/124 from the Eyamba House.
11. That upon The death of our grandfather, Etubom Archibong Ita (sic), the eldest son, Paul Archibong Ita (sic) directed his junior brother, our late father, Peter Etim Archibong Ita to develop the tail end of Egerton which is now No. 56 Egerton Street. Our late father built a mud wattle building on the land and resides (sic) there with us his children. While his elder brother Paul Archibong Ita developed part of No. 60 Egerton Street and stayed there with his mother. No. 58 Egerton Street was allowed as family compound with one house. While the 1st and 2nd claimant (sic) father, Joseph Archibong Ita (sic) due to his misbehavior left for Ikot Ekpene and stayed over there.”

Under cross-examination, the 1st Appellant as CW1 admitted that late Chief Archibong had 3 sons, Paul Archibong Ita, Peter Etim Archibong Ita and Joseph Archibong Ita.
The 1st Appellant in his further depositions at page 42 of the Record of Appeal said:

“7. The claimants also state that notwithstanding the fact that Mr. Joseph Archibong Ita stayed in Ikot Ekpene he nonetheless did not forget or abandon his home and root and since he was blessed from his business and trade he built houses on the land in question in Calabar Nos 56, 58 and 60 Egerfon Street, and 21 and 25 Macdonald Street, Calabar…

He further stated in paragraph 11 that no sharing of the entire parcel of land ever took place to the exclusion of the 1st Appellant’s father. He was not cross examined on these averments.
The trial Judge was persuaded by Exhibit C, which was a letter dated 8th September, 1923 tendered by DW1. Exhibit C was a letter written by late Joseph Archibong Ita to his brother Paul, requesting for a house within the compound. For the learned trial Judge, this letter buttressed the evidence given by the Respondents that the family land was partitioned by Paul the eldest son. The learned trial Judge however made no mention of the evidence of CW1 on the issue of partitioning.
The learned trial judge of Page 131 of the Record of Appeal had said:

“It is my considered view that to determine the ownership of No. 56 Egerton Street, Calabar, it is necessary to determine how the land comprised in Exhibit “E” is held, and also the relationship between the parties on the one hand, and between them and the late Rear Admiral Akinwale Wey (a.k.a. Ete Joe) on the other hand.”

The Record of Appeal of Page 116 thereof, however, clearly indicates that the parties had agreed on the issue for trial at pre-trial session held on 30/4/2010; and, the trial court thereupon noted as follows:

“Both counsel are also agreed and it is so settled that the main issue for trial is the ownership of No. 56 Egerton Road, Calabar.
The matter shall accordingly proceed to trial on that issue and the issue whether or not the matters statute barred.”

The land in issue herein is only No. 56 Egerton Street. A consideration of “how the land comprised in Exhibit “E’ is held” was not in issue in these proceedings.
The 1st Respondent testified as DW1. In his depositions at page 35 – 37 of the Record of Appeal he stated that:

“8. That we are the bonafide owners of the property known as No 56 Egerton Street, Calabar by act of inheritance from our late father, Mr. Peter Etim Archibong. The said property comprised of a four bedroom bungalow and two room boys-quarters erected by Admiral Joseph Edet Wey with permission of the 2nd defendant for Mrs. Noel Etim Archibong Ita our late mother and her children.
13. That sometime in 1980, our uncle, Vice Admiral Joseph Edet Wey who is the relation of our late father i.e. maternal relation took permission from the 2nd defendant to build a house for their late mother and for himself on the land known as No 56 Egerton Street, Calabar. Upon the owner permission the two buildings were demolished which were a thatch sand dried block. Vice Admiral Joseph E. Wey then put up two buildings one for himself and one for our late mother to replace the two old building and fenced round…Upon the death of Vice Admiral Joseph Edet Wey his children had been collecting rents on the front apartment. Sometime in 1999, the 2nd claimant took permission from Mr. Moses Edet Wey, 1st son of Admiral Wey to stay in one room in the property for one month. And he obliged.”

Under cross examination, DW1 said:
“My claim to the land in No. 56 Egerton Street, Calabar is based on an 18th century agreement. The land was purchased by my great grandfather called Archibong Effiong Nyanibo. My grandfather was called Archibong Ita. My great grandfather bought the land from Eyamba House of Duke town. I do not know who was the head of Eyamba House at the time. I cannot remember the year. I do not have the 18th century agreement.”

Under cross examination he further said:
“I said Admiral Wey obtained permission from me and my sister and mother to build on the land.”

The land was resurveyed in the name of the 1st Respondent as Survey Plan No JEJ/CR/21597, dated 20th
October, 1997. The CTC of the Survey Plan was tendered as Exhibit B. CW4 of the Eyamba family said in evidence regarding this re-survey:
“The family has never authorized or show (sic) the boundaries of any part of the land to Mr. Peter E A. Ita or any other person to resurvey. The purported resurvey by one Mr. Peter E.A. Ita is not recognized by our family and we have nothing whatsoever to do with him or any other person in respect of the land or any part thereof. The family only recognizes the Agreement it entered with Mr. Joseph Archibong Ita and no other.”

DW1, the 1st Respondent, under cross examination, admitted that:
“No member of Eyamba House the original owners of the land, was around to show the boundaries of the land when we surveyed the land as in Exh. “B’.

Aside from Exhibit B, the Respondents presented no other document in proof of their claims to No. 56 Egerton Street.
The purpose of tendering a survey plan is to show with reasonable certainty the identity and extent of the land claimed: reflecting all the features of the land and showing clearly the boundaries. See also: Owie v Ighiwi (2005) 3 MJSC 82; Oyefeso v Coker (1999) 1 NWLR (PT 588) 654.

Learned Counsel for the Appellants has rightly submitted that a survey plan cannot be tendered as proof of title to land.
The evidence for the Respondents, if paraphrased, would be thus: That the Respondents, led by the 2nd Respondent gave Admiral Wey permission to build on their land sometime in 1980. The permission was for Admiral Wey to construct two buildings, one for him and one for their mother, the owners of the land. This authority empowered Admiral Wey to build a four bedroom bungalow for himself at the front of the property, and a two room boys-quarters. Admiral Wey, who only had permission from the owners of the land, built and lived in the front building of four rooms, while their mother, the rightful owners of the land, lived of the bock, in two rooms, which the 1st Respondent described in paragraph 8 of his depositions, as ” …two rooms boys-quarters”.
At the demise of Admiral Wey, his children began to collect rent from the front apartment, while the Respondents still lived in the “two room boys-quarters”. The son of Admiral Wey, the 3rd Appellant, even granted permission to the 1st Appellant in 1999 to stay in the property, and he did. All these were with the knowledge of the owners of the land.
Thus the Respondents, purported owners of the land and property, continued to live at the back “boys-quarters” without complaint, while Admiral Wey lived in the front main house, until the death of their mother in 1991, and the death of Joseph Archibong Ita in 1996, father of the 1st Appellant, and the death of Admiral Wey. Even after the death of Admiral Wey, the Respondents, who said they gave permission for the erection of the building on their land in 1980, accepted the proprietory actions still exercised by the children of Admiral Wey over the property after his death, without murmur or protest.
They later began to lay claims to the property. The Notice to Quit served on the 1st Appellant, Exhibit F, was dated 30th January, 2009, about 29 years after the buildings were erected. In my respectful opinion, this entire account sounds surreal.
The claim of the Appellants to No. 56 Egerton Street is hinged on Exhibit E. Unlike the position taken by the trial court, I do not think it is a major problem, against the Appellants, that the Survey Plan attached to Exhibit E does not specifically indicate that it shows land belonging to Joseph Archibong Ita but states that it shows:
“LANDED PROPERTY OF LATE CHIEF ARCHIBONG ITA AT EGERTON STREET – CALABAR – SOUTH EASTERN STATE-”
The entire parcel of land covered by the document had belonged to late Chief Archibong Ita. The contents of the document showed that the same land which had belonged to late Chief Archibong Ita under a yearly tenancy had now been given to Joseph Archibong Ita, out rightly, under a new transaction.
CW4 identified the signature of his late father, the donor. The signature of Admiral Wey on Exhibit E as witness was not challenged. Having witnessed this document, which was dated 5th March, 1971, I do not see how the account of the Respondents, to the effect that they gave Admiral Wey permission to build on the land in issue sometime in 1980 can be believed.
The 2nd Appellant, who testified as CW4, tendered as Exhibit G, without any objection, a hand written letter, dated 19th June, 1987, written to him by Admiral Wey, his late Uncle. The letter reads in part:

“Dear albert,
Thank you for your last letter, although we spoke on the phone, I have not seen Peter. I hope he is in Calabar with his family.
As I told you, I have not given him any authority over the main house and I expect him to pay NEPA bill for Ma. Please let Louis Ita know this whenever he is in Town…”

Louis Ita, is the 1st Appellant. Peter is 1st Respondent. CW4 was not at all cross examined on the letter.
From these pieces of evidence, certain questions arise which demand answers – why would the 1st Respondent require the authority of Admiral Wey over the main house, which was said to have been built with the permission of the Respondents upon land said to belong to them? How could the Respondents be content to remain in the boys quarters of a building erected with their permission even after the death of Admiral Wey? Why would the children of Admiral Wey continue to exercise possessory rights over the main house while the Respondents remained in the boys’ quarters of the property even after the death of Admiral Wey, as was acknowledged by the Respondents? The obvious answers to these questions can only tilt the scales in favour of the Appellants.
The Respondents did not prove ownership of No 56 Egerton Street by traditional evidence: they did not prove ownership by production of any documents of title, a survey plan is not a document of title; they failed to prove ownership by acts of ownership that extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner: they did not prove ownership by acts of long possession and enjoyment of the land; and they failed to prove ownership by proof of possession of any connected or adjacent land.
The Appellants, on the other hand, relied on Exhibit E, a registered instrument of title, the authenticity and execution of which has not been challenged. The capacity and authority of the grantors of Exhibit E was not challenged. The Appellants were in order to have relied thereon.
I therefore hold that the lower court failed to properly evaluate the totality of the evidence proffered by the parties in dismissing the claims of the Appellants and in granting the counterclaim of the Respondents. Issue No 1 is thus resolved in favour of the Appellants.

Issue No. 2
The trial court had ordered that:
“No child of Late Admiral Wey shall be denied the use (alongside the defendants) of the main building on the said No. 56 Egerton Street, Calabar.”
None of the parties sought any order in these terms. It is elementary law that a court of law is confined to the relief or reliefs of the plaintiff. It does not go outside the relief or reliefs to grant what the plaintiff does not ask for. A court of law can grant all the reliefs sought by the plaintiff. It can also grant part of the reliefs. But it cannot grant reliefs not sought by the plaintiff. See: Ojo v. Abogunri (1989) 5 NWLR (Pt. 120) 162; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Ilodibia v. NCC (1997) 7 NWLR (Pt. 512) 174; Udom v. E. Michelliti and Sons Ltd, (1997) 8 NWLR (Pt.516) 187; Olaopa v. OAU Ile-Ife (1997) 7 NWLR (Pt.512) 204; Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt.575) 529: Ilona vs. Idakwo (2003) 5 S.C. 216.

Learned Counsel for the Respondents has described the order as a consequential order. In Obayagbona v. Obazee (1972) 5 S.C.247, Sowemimo, JSC, stated the position as follows:
“A consequential order” must be one giving effect to the judgment which it follows. Thus any consequential order made subsequent to a judgment and detracting from the judgment is not one made within jurisdiction.”
A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon it. A consequential order must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief. An order made without a trial on one of the issues, or one though made after the judgment detracts from it, is not a proper consequential order. See also: Akinbobola vs. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270; Ogbechie vs. Onochie [1988] 1 NSCC 211.
The Respondents in their counter claim had sought, inter alia, a declaration that they are entitled to the statutory right of occupancy over No 56 Egerton Street. The trial court granted this order. There was no evidence of a joint ownership with Admiral Wey. The evidence of the Respondents was that Admiral Wey had obtained their permission to build on the land to avoid staying in hotels while visiting Calabar. An order that “No child of Late Admiral Wey shall be denied the use (alongside the defendants) of the main building on the said No. 56 Egerton Street, Calabar”, certainly did not flow from the judgment. Issue No 2 is also resolved in favour of the Appellants.

It is clear, from the findings of facts made by the learned trial Judge that he did not properly evaluate the evidence placed before him and that some of the findings of facts he made were wrongfully applied to the case before him. An appellate court may in this circumstance interfere with such findings of facts and application of the facts to the case.
Having regard to these considerations and in this circumstance, the decision of the lower court delivered in Suit No HC/331/2009 on 25/4/2012 is hereby set aside.
In view of the evidence which was presented before the lower court; and having regard to the provisions of Section 15 of the Court of Appeal Act 2004, Judgment is hereby entered in favour of the Appellants in terms of their claims in Reliefs 1, 3, 4 and 5 in Suit No HC/331/2009.
This appeal therefore succeeds. Parties shall bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I have before now, read the draft of the lead judgment delivered by my learned brother, Onyekachi A. Otisi, JCA, in this appeal. The two (2) issues identified and considered therein are the germane issues arising from the grounds of the appeal which require decision by the court in the appeal. The views expressed and the conclusions reached by my learned brother on the issues are the same with mine and so agree with them completely. Just for emphasis, I would like to restate the law that it is the primary duty and function of a trial court to evaluate or assess the evidence adduced by the parties before it and ascribe the appropriate and due probative value or worth to it in the determination of a dispute between them. In the discharge of that duty, a trial court is to be guided by and should take into consideration certain established factors such as:
a) Admissibility of the piece of evidence
b) Relevance to the issue in dispute
c) Credibility of the evidence
d) Probability of the evidence
e) Conclusiveness on the issue in dispute
See Magaji v Odofin (1978) 4 SC, 91; Onwuka v Ediala (1989) 1 NWLR (96) 182; Baba v N.C.A.T.C (1991) 5 NWLR (192) 388; Adamu v State (1991) 4NWLR (187) 530; Ojokolobo v. Alamu (1998) 9 NWLR (565) 226; Sha v Kwan (2000) 5 SC, 178.

The law is also settled that where a trial court had fully and properly assessed and evaluated the relevant evidence placed before it by the parties and justifiably appraised the facts in support of which the evidence was adduced, an appellate would have no reason to interfere with such evaluation or assessment. lt is only where in a complaint on the evaluation of evidence by a trial court, the appellate court was satisfied that the trial court has either failed to evaluate the evidence properly or at all or had failed to draw the correct inferences from proved or accepted facts or has wrongly assessed the probative value of undisputed evidence, that it will intervene and interfere with such evaluation by a trial court. See Highgrade Maritime Services Ltd. v F.B.N. Ltd. (1991) 1 NWLR (167) 290; Oko v Ntukidem (1993) 2 NWLR (274) 124 at 135; Adebayo v Ighodalo (1996) 5 NWLR (450) 507.
In the present appeal, it has been very ably demonstrated in the lead judgment that the High court did not properly evaluate the relevant evidence adduced by the Appellants in proof of their claim for title to the property in dispute. The Exh. ‘E’ which was a document of ownership of the property in dispute put and admitted in evidence without objection from the Respondents and which admissibility and credibility were never questioned nor challenged by them throughout the trial, was one way or mode of proving title to land recognised by the law. See Atanda v Ajani (1989) 3 NWLR (111) 511; Okafor v Idigo (1984) 1 SCNLR 481; Ebevuhe v Ukpakara (1996) 2 NWLR (460) 254 at 277 -8.
Exhibit ‘C’ tendered by the Respondents in proof of their claim for ownership of the property in dispute was merely a copy of a letter written by Joseph Archibong Ita to Paul, his brother, asking for a house within the family compound. The letter was dated 8th September 1923 and had nothing to do with the claim for ownership of the property in dispute; No 56 Egerton Street, Calabar, which was the sole issue settled by the parties and identified and considered for determination by the High Court in its judgment. To have relied on the said letter as proof or supporting the counter claim of the Respondents for title or ownership of the property in dispute as against the evidence of the Appellants and particularly Exh. ‘E’, was manifestly an improper assessment, evaluation and ascription of probative value to the totality of the evidence adduced by the parties in the case before the High Court. Instances to justify the interference by this court with such improper evaluation of the evidence by the High Court have been highlighted in the lead judgment and the court has a duty to do so in the circumstances of the case.
I join in allowing the appeal for all the reasons set out in the lead judgment and abide by the orders made therein.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA.
I am in agreement that when a trial judge failed in his primary duty of evaluation of relevant and material evidence before it, the Appellate court will do so under S.15 of the Court of Appeal Act, 2004. Agbi – Ogbch (2006) 11 NWLR Pt 990 page 65, Bashaya vs. State (1998) 5 NWLR Pt 550 page 351, Ojokolobo Vs. Alamu (1998) 9 NWLR Pt 565 page 226, Sha Vs. Kwan (2000) 5 SC page 178.
My learned brother has done so in the lead judgment and I am in total agreement. I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

Appearances

I.A. Inyang, Esq.For Appellant

AND

Ukpong Eba, Esq.For Respondent