ALHAJI AUWALU DARMA & ORS v. ALHAJI GHALI MUSTAPHA (2014)

ALHAJI AUWALU DARMA & ORS v. ALHAJI GHALI MUSTAPHA

(2014)LCN/7717(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of June, 2014

CA/K/243/2012

RATIO

PRACTICE AND PROCEDURE: MISCARRIAGE OF JUSTICE; WHAT THE COMPLAINT MUST PROVE AND SATISFY THE APPELLATE COURT TO PROVE MISCARRIAGE OF JUSTICE AS A RESULT OF FAILURE TO DELIVER JUDGMENT WITHIN THE STATUTORY PERIOD OF 90 DAYS

Of course, that complaint has nothing to do with the alleged miscarriage of justice, arising from delivery of the judgment outside 90 days.
To prove miscarriage of justice as a result of failure to deliver judgment within the statutory period of 90 days, the complaint must go further to prove and satisfy the appellate court that at the time the trial judge wrote the judgment, he was no longer in touch with the facts of the case and the evidence adduced before him, leading to supplanting the facts and evidence with his wishful thinking. See the case of Iheanacho vs. Iwumadi (2013) LPELR 20689 (CA), Akindipe vs State (2008) 15 NWLR (Pt. 1111) 560. per. ITA G. MBABA, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE COURT HAS THE LIBERTY TO FORMULATE OR MODIFY ISSUES FORMULATE BY COUNSEL

It should also be appreciated that the trial court, or even this court, is not bound by the issues(s) for determination distilled by parties and their counsel in a case, as the court has liberty to formulate or modify issue(s) formulated by counsel in the light of the evidence adduced and the law as envisaged by the court to be most appropriate to assist the court to determine the case and do justice in the case. See the case of ACB LTD VS. AJUGWO (2012) 6 NWLR (Pt. 1295) 97; IBB IND. LTD. VS. MUTUNA CO. NIG. LTD (2012) 6 NWLR (Pt. 1997) 487

The Court is not expected to call on the counsel for the parties to address on such issue(s) arising from the claim and evidence adduced and considered by the court as being germane to decide the case. This, in fact, is not a case of raising an issue suo motu, as the issue formulated to determine a suit is different from raising a point of law or issue suo motu by court, which was never canvassed or did not arise from the case, and using it to base its decision, in which case the court must to call on the counsel to address it, where it does not touch on a matter of law like jurisdiction which the court is enjoined to consider, without notice. See the case of Olorunkunle vs. Adigun (2012) 6 NWLR (Pt. 1297) 407. per. ITA G. MBABA, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN ON THE PARTY CLAIMING EASEMENT TO PLEAD AND PROVE SUCH EASEMENT

It is trite law that where a party claims an easement, he must plead and prove such easement – De Facto Bakeries and Catering Ltd V. Ajilore (1974) 1 All NLR (Pt. II) 385, Seismograph Service Nig Ltd v. Eyuafe (1976) 9-10 SC 135 at 160 – 161, Okonzua v. Amosu (1992) 6 NWLR (pt 248) 416, Olusanya v. Oshineye (2001) 13 NWLR (Pt 730) 298, Muniyas (Nig) Ltd V. Ashafa (2011) 6 NWLR (Pt 1242) 85, Olusanya V. Oshineye (2013) 12 NWLR (Pt 1367) 148. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

TENEMENT: EASEMENT; WHAT A PARTY SEEKING TO ENFORCE HIS RIGHT TO EASEMENT MUST PLEAD AND PROVE

It must be stated that the right to an easement is inclusive and not exclusive. Thus, where a party claims the right to exclusive and restrictive use of a piece of land, it is not an easement – Okonzua v. Amosu supra, Olusanya V. Oshineye supra and Muniyas (Nig) Ltd V. Ashafa supra. In Amachree V. Isokariari (1998) 11 NWLR (Pt 572) 52, it was held that for a party to succeed in a claim of right of way to an access road, he must establish that the access road is one for which a public right of way has been created. From all said, it is clear, and as stated by the Court of Appeal in Muniyas (Nig) Ltd V. Ashafa supra, that a party seeking to enforce his right to easement must plead and prove the following:
i. That he is the owner of the dominant tenement;
ii. That the servient tenement belongs to someone else;
iii. That the right of easement was created by grant or that it has arisen by prescription from time immemorial and in the case of a right of way to an access road, that the access road is one for which a public right of way has been created;
iv. That it is the act or action of the defendant that deprives him of the enjoyment of his right of easement. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: THE EFFECT OF ANY SPECIFIC FINDING OF FACTS MADE BY A TRAIL COURT THAT THERE IS NO APPEAL AGAINST

LAND LAW: SALE, ACQUISITION AND TRANSFER OF TITLE TO LAND; WAYS IN WHICH LAND CAN BE PROPERLY AND RIGHTLY SOLD, VALIDLY ACQUIRED AND LEGALLY TRANSFERRED IN NIGERIA

The law recognizes that there are two clear and distinct ways in which land can be properly and rightly sold, validly acquired and legally transferred in Nigeria and these are either under customary law or under the received English Law – Folarin v. Durojaiye (1988) 1 NWLR (pt 70) 351, Ezeagu v. Onwuchekwa (1997) 4 NWLR (pt 502) 689, Njoku v. Dikibo (1998) 1 NWLR (pt 534) 498, Commissioner for Lands & Housing Kwara State v. Atanda (2007) 2 NWLR (Pt 1018) 360. It is a settled legal principle that in order to transfer an absolute title under native law and custom, there must be payment of money and delivery of the land which must be done in the presence of witness. In other words, before there can be a valid sale under native law and custom, the three elements or requirements are: (i) payment of purchase price; (ii) the purchaser is put in possession by the vendor; (iii) in the presence of witnesses – Manya v. Idris (2001) 8 NWLR (Pt 716) 627, Basil v. Fajebe (2001) 11 NWLR (pt 725) 592, Adedeji v. Oloso (2007) 5 NWLR (pt 1026) 133, Obi v. Onyemelukwe (2011) 1 NWLR (pt 1228) 400, Agboola v. United Bank for Africa Plc (2011) 11 NWLR (pt 1258) 375. This custom is of universal application throughout Nigeria – Egonu v. Egonu (1978) 11-12 SC 111, Abdullahi V. Bataganawe (1997) 5 NWLR (Pt 506) 650 and Akinterinwa V. Oladunjoye (2000) 6 NWLR (pt 659) 92, Ajayi V. Jolaosho (2004) 2 NWLR (Pt 856) 89, Ogundalu v. Macjob (2006) 7 NWLR (Pt 978) 148. Failure to plead and prove any of the ingredients is fatal to the case of the party – Yashe V. Umar (2003) 13 NWLR (Pt 938) 465. The Appellants, in the instant case did not plead or prove any of the three ingredients. It is also settled that to constitute a transfer of legal title under English Law by purchase, there must be a valid sale, payment of money accompanied by acknowledgement of receipt and execution of a deed of conveyance. If a person sells his land to another and fails to put the person in possession, retains possession, the payment of money to the owner of a parcel of land does not per se amount to a transfer of title to the purchaser. There must be either a conveyance executed in favor of the purchaser to invest him with legal title or entry into possession by the purchaser to give him equitable title to the land – Folarin v. Durojaiye (1988) 1 NWLR (Pt 70) 351, Ejiniyi v. Adio (1993) 7 NWLR (pt 305) 320, Iragunima v. Uchendu (1996) 2 NWLR (Pt 428) 30, Buraimoh v. Karimu (1999) 9 NWLR (pt 618) 310, Olowoake v. Salawu (2000) 11 NWLR (pt 677) 127, Eiya v. Qudus (2001) 15 NWLR (pt 737) 587, West African Cotton Ltd v. Yankara (2008) 4 NWLR (pt 1077) 323. Payment of purchase price without possession is not sufficient – Kachalla V. Banki (2001) 10 NWLR (pt 721) 442, West African Cotton Ltd V. Yankara (2008) 4 NWLR (Pt 1077) 323. And neither is possession without payment of purchase price – Ugwunze V. Adeleke (2008) 2 NWLR (Pt 1070) 148, Chabasaya V. Anwasi (2010) 10 NWLR (pt 1201) 163. These facts must be pleaded and proved by a party relying on purchase of land under the received English law. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

Before Their Lordships

ABDU ABOKIJustice of The Court of Appeal of Nigeria

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRUJustice of The Court of Appeal of Nigeria

Between

1. ALHAJI AUWALU DARMA
2. ALHAJI SANI MAICHARBI
3. ALHAJI IBRAHIM SHUAIBU
4. ALHAJI SULE – Appellant(s)

AND

ALHAJI GHALI MUSTAPHA – Respondent(s)

ALHAJI AUWALU DARMA & ORS v. ALHAJI GHALI MUSTAPHA

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kano State High Court in suit No K/133/2011, delivered on 19/7/2012 by Hon Justice Patricia Mahmud against the Defendant (now Appellant). The Respondent had claimed against the Appellants as follows:
“1A declaration that the plaintiff as the owner of property covered by certificate of occupancy NO/LKN/CON/2002/55 (sic) is entitled to the right of enjoyment of ingress and egress attached to the property by both sides of the property as contained in the survey plan attached of (sic) the Land.
2 A declaration that the act of the defendants in creating plots of land and developing them out of the road and the exit of the plaintiff’s land at the southern side of the plaintiff (sic) Land is illegal, and encroachment into his right and enjoyment of his use of land.
3 An order… directing the defendants to demolish any structure made on the road reservation, blocking the exit of the plaintiff’s land.
4 An order of perpetual injunction restraining the defendants…,
After hearing the case, the trial court held for the Respondent and granted all the reliefs sought. Appellants being dissatisfied, filed their Notice of Appeal on 2/8/12 and disclosed 3 grounds of appeal as follows:

“1 The trial court erred in when it hold that the appellants/defendants created structures on a public way, when there was no proof of such assertion.

Particulars:
(A)    Exhibit 6 as tendered by DW3 shows a strip of land (on which the Appellants /Defendants erected their structures) that has not been designated by the Kano State urban protection and development agency (KNUPDA).
(B)  DW3 clearly stated that the subject matter was not within the planned area, as the planning authority (KNUPDA) has not designated the area.
2    The judgment of the lower court is null and void as it was delivered outside the statutory period.

Particulars:
Parties closed their case, adopted their final addresses on 5th March, 2012. However judgment was delivered on 9th day of July 2012.
3 The decision of the Honourable lower court is/was against the weight of evidence dully (sic) placed before it.”
See page 108 and 109 of the Records of Appeal.

Appellants filed their brief on 19/11/2012, which was deemed duly filed on 7/2/13. They distilled two (2) issues for the determination of the appeal:
“1 Whether the respondent had proved his assertion before the lower court that he had a right of way through the Appellants piece of land.
2. Whether or not the delay in delivering the lower court’s judgment occasioned a miscarriage of justice.”

The Respondent filed his brief on 27/2/2013 and adopted the two issues as distilled by the Appellants for the determination of the appeal.
When the appeal came up for hearing on 31/3/14, at Kano, the parties, through their counsel adopted their briefs and urged us accordingly.
Arguing the appeal, Appellants’ counsel, Abdulrrazaq Aikawa Esq (who settled the brief), on issue 1, asserted the law that he who alleges must prove, as posited by Section 131-133 of the Evidence Act, 2011, and that this calls for adducing cogent, acceptable and convincing evidence, whether oral or documentary, to establish the assertion. He relied on EKEAGWU V. NIGERIA ARMY (2010) SCNJ 22 at 30, ISHOLA VS FOLONRUNSO (2010) 6 SCNJ 184; OSUJI VS EKEOCHA (2009)7 SCNJ 296.

Applying the above principle, counsel submitted that the Respondent failed to prove his claim; that it was pertinent to note that Exhibit B2 (Certificate of Occupancy LKN/COM/2002/55) (sic) pleaded and relied upon by the Respondent only showed designated plot on which his building stood; that the real issue in contention at the lower court was the strip of land bordering the southern – end of Respondents property as shown on the site plan (Exhibit 6) which the Respondent claimed to be a public way.

Whether the said strip of land was a public way and Respondent had establish it, counsel referred us to the evidence of DW3 (KNUPDA Officer) Subpoenaed to tender Exhibit 6 (site plan), which, Counsel said, clearly explained that there was encroachment on the public way by the Appellants’ structure, but argued that there was still a strip of land adjacent to the Respondent’s structure, at the southern-end, which neither offended the public right of way nor belonged to the Respondent. Counsel further submitted that the entire lay-out plan was commercial in nature, which allowed for plots to be attached together. He said that the totality of the dispute rested on this strip of land, and queried whether Respondent could claim right of way on the land belonging to the Appellants, considering the position of Exhibit 6.

He noted that the Respondent and the Appellants had the same root of title, that is, from a common vender, one NA ABBA ZAKARI. He argued that Respondent was therefore not sincere, when he claimed that the strip of land in dispute was a public way, when in fact the two of them (parties) had right of title from a common private person; Counsel further argued that even if the strip of land were a public way (which he did not concede),that it was the duty of the Respondent to lead credible evidence to establish it; that a plaintiff, in a civil action, must discharge the onus of proof placed on him; that the Respondent did not show the trial court any evidence that the said strip of land was a public way, or did not belong to the Appellants. He relied on the case of Bamgbegbin vs Oriare (2010) 6 SCNJ 346.

On issue 2, Counsel relied on Section 294 (1) of the 1999 Constitution, which stipulates that judgment must be delivered within 90 days from the date of close of addresses by counsel. He said that the trial court took the final addresses in this case and adjourned the case for judgment, fixed on 5/3/2012, but the same was not delivered until 9/7/12 – over 4 months; that the delay had occassioned miscarriage of justice, in that the learned trial judge, instead of digesting the authorities supplied in response to the issues raised by the parties, hastily raised new issues so as to come up with a judgment; that at page 105, line 4, of the records, the trial court was of the view that the issue for determination was whether the Defendants/ Appellants had proved their entitlement to the piece of land in dispute; that even if that issues was to be determined, the law forbids the trial court from raising such issue, suo motu, without calling on the parties to address it. Counsel relied on the case of Mrs Evangeline Fombo vs Rivers State Housing and Property Development Authority and another. (2005) 5 SCN 213 at 217; A.G of Fed & Ors vs Alhaji Atiku Abubakar & Ors (2007) 4 SCNJ 456

Counsel said that the right of addressing the Court was not given to Appellant before the Court gave its decision; that the Judgment is perverse as the issue of ownership was not contested by the parties and there was, in fact, no dispute as to the ownership of Appellants’ piece of land. He referred us to page 29, line 5, of the Records, where he said the Respondent (as PWI) admitted the fact that the piece of land belonged to the Appellants and that they (parties) shared the same root of title. He submitted that where a court ignores the facts or evidence before it in its Judgment, a decision reached thereby will be perverse. A. G of Fed. vs Atiku Abubakar (supra) at 489.

Another reason Appellants gave to show that the Judgment occasioned miscarriage of justice, having been delivered outside the stalutory time, was that the lower Court put up a claim of trespass for the Plaintiff/Respondent. He said that this claim of trespass was not before the lower Court; that since that issue was not raised in the pleading, the trial Court had no right or duty to consider it.
He urged us to resolve the issues for Appellants and allow the appeal.

The Respondent’s counsel, Habibu Akilu Esq, on issue 1, while agreeing with the principle of law that he who alleges must prove, by adducing cogent, acceptable and convincing evidence therefore, submitted that Appellants did not advert their minds to the general principles of the burden of proof, in the circumstance of this case, which involved invoking of Section 133 (2) of the Evidence Act, 2011, which says;
“if the party referred to in subsection (1) of this section adduce evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successfully, until all the issues in the pleadings have been dealt with.”

He submitted that, in civil cases, the burden of proof is not static as it shifts, depending on the state of pleadings and evidence led in support. He relied on the case of Buhari vs Obasanjo (2005) 37 (sic); Ifegu vs UBN Plc (2011) ALL FWLR (pt 602) 1679 at 1680 and submitted that Respondent’s claims, as per the writ of summons and statement of claim, were duly proved in evidence, backed up by Exhibits; that the Respondent called an officer of Kano State Town Planning Authority (KNUPDA) who testified and tendered Exhibit 6; (part of the Layout Plan of the area in dispute (TP/UDB/172), as per pages 87 to 99 of the Records; that the Respondent established that he had right of ingress and egress to his property from the southern side which was designed by the town planning authority of Kano State as access road; that the Appellants’ act of creating plots and developing them, thereby blocking his (Respondent’s) exit from the southern side of his property, as per the survey plan and layout plan tendered before the trial Court, was illegal and encroachment on the Respondent’s right of ingress and egress. He referred us to pages 6 to 12 of the Records of Appeal.

With that, counsel submitted that the Respondent had discharged the burden of proving his case and the burden had shifted to the Appellants to show that the area (land) in dispute was not an access road, but Appellants’ plots of land.
Counsel submitted the Appellants either did not understand the case of the Respondent at the Court below, or deliberately refused to understand; that their assertion that the issue in contention before the lower court was a strip of land bordering the southern end of the Respondent’s land, as shown on Exhibit 6 (site plan), cleary indicated that Appellants’ counsel did not read or understand the nature of Respondent’s claim; that Appellants did not plead any strip of land nor led evidence on the same, that the land in dispute which was access road was a strip of land. He referred pages 51 to 59 of the Records.

Counsel said that parties are bound by their pleadings and that facts not pleaded goes to no issue. He relied on Abubakar vs Yar’Adua (2009) ALL FWLR (pt. 457) SC & Olademo vs Lagos Building Investment Co. Ltd (2011) ALL FWLR (pt. 592) 1768; Nwuke vs UBN plc (2009) ALL FWLR (pt. 499) 557; Iyagba vs Sekibo (2009) ALL FWLR (pt. 446) 1930. He added that Appellant’s counsel cannot proffer evidence for parties through their brief of argument or written addresses (Mohammed vs Abdulasis (2009) ALL FWLR (pt. 465) 1684.)

On the issue of the entire land in dispute being under customary title and both parties having a common source of title, counsel submitted that this was of no moment, as Appellants did not tender any document of file or evidence of transaction, showing how title passed to them. He asserted that the duty of evaluation of evidence and findings of fact in a case is that of the trial court, who heard the case and saw the witnesses and noted that demeanour; that in this case the trial court did not only hear the case and assessed the witnesses, it also visited the locus in quo, to see for itself the nature of the dispute before arriving at its decision; that the trial court found correctly that Respondent had proved his claim, and so the findings of the lower court cannot be disturbed. Ajikanle vs Yusuf (2009) ALL FWLR (pt. 475) 1795.

On issue 2, Respondent’s counsel submitted that the failure to deliver the Judgment within the statutory period of 90 days cannot be a ground for setting aside the Judgment, if it is not established that the failure has occasioned a miscarriage of Justice. He relied on Section 299 (5) (sic) of the 1999 Constitution. Counsel submitted that Appellants had not shown that the delay in delivering the Judgment occasioned any miscarriage of Justice to the Appellants. He said that Appellants rather complained that the trial court raised a new issue, suo motu, to arrive at the Judgment. That argument, Counsel said, was belated and did not flow from the issue at hand.
Counsel also submitted that the trial court was perfectly right in formulating the appropriate issue for determination of the case before it.
Counsel urged to resolve the issues against Appellants and dismiss the appeal.

RESOLUTION OF ISSUES
From the facts and evidence adduced in this case, the issue before the trial Court was not that of proof of title to the respective plots of land occupied by the parties, as their titles were never in dispute. The issue was on the right of way (ingress and egress) of the Respondent at the southern end of his land. The Appellants had laid claims to the strip of land, claimed by the Respondent as the right of way. In its consideration of the evidence before it, the trial court asked whether the Appellants had proved their entitlement to the said strip of land in dispute, and it came up with the following findings; That Defendants
“Contest the ownership of the piece of land in dispute which is adjacent to the plaintiff’s property. The defendants made bogus claims of ownership, including how they had the same root of title with the plaintiff’s seller in, respect of the land; they never tendered any documentary evidence or call oral evidence to trace their root of title. You cannot lay claim of ownership to a piece of land simply by occupying it or putting up structure on it. This is what has happened in this case… The Court visited the locus in quo, where the testimony of DW3, the officer of the town planning authority (KNUPDA) was taken. He showed us the red cross on the structure of the Defendant which was cleverly covered up. This is evidence of the illegality of the structure… From the explanation of DW3 on Exhibit 6, the layout of the area, there is no plot in that area. The piece of land that remains next to the Plaintiff’s property is made up (sic), the set back on the road. From our observation, there is no way a decent dog house can be built on that plot of land, where the Defendants’ structure is erected… the Defendants’ structure has completely blocked part of the road and the Plaintiff’s right of ingress and egress. The Defendant cannot be allowed to make a profit from their act of trespass.” See pages 105 to 106 of the Records.

The evidence of the DW3, Officer of KNUPAD, who was subpoenaed by the Court to explain issues vis -a -vis the development layout for the area, in relation to the structures and the dispute between the parties, showed that the Kano State Town Planning Development Authority (KANUPDA) had a layout plan of the area which was tendered as Exhibit 6; Defendants’ structures on the disputed strip of land had been marked for demolition, stopping further development of same; that the structures were encroachment into the access road.

DW3 further told the court that there was a legal requirement that there should be a set back of 1.8. metres (in respect of storey buildings) between two different developers, and 1.5 metres in respect of Bungalows. The same distance of 1.5 metres set back was observed from the road by the builders. He further said that the Defendants did not observe the set back, because they had encroached into the road; that from the layout, the Defendants’ structure (development) was not on the plot of land, as some part was on the strip of land and some part on the road. He further said:
“In a normal layout the owners of properties taken over by roads or public utilities are to be compensated. TPU/UDB/172 which is the layout for this area have all been compensated as far as our records are concerned. The development down the road (DW3 points to a structure down the road that has encroached into the road even more than the defendants structure) is an encroachment on the road.” See pages 35 and 36 of the Records.

I think DW3 was a reliable expert or official who gave official account of the Town Planning Authorities on the disputed strip of land, that the same (or a good part of it) fell into the road layout for the area and that the Appellants’ structures built on the disputed strip (which blocked the ingree and egress of the Respondent at the Southern end of his property) were illegal structures which encroached on the access road.

Appellants did not fault the evidence of the DW3 and did not also fault the findings of the trial court on the said evidence of DW3; that going by a Exhibit 6, Appellants built structures on the disputed area, reserved as right of way and the same was marked illegal and the same was marked illegal, and that the said structure encroached into the access road. See pages 35 – 36 of the Records. From that evidence, the lower court found that:
“…. The Defendants’ structure has completely blocked part of the road and the Plaintiff’s, right of ingress and egress…”
See pages 105 and 106 of the Records.

In my opinion, the learned trial court held rightly, as there was sufficient evidence to establish the claim of the Respondent, that he was entitled to right of ingress and egress at the Southern end of his property, by virtue of the fact that the Exhibit 6 (Town Planning layout) had made provision for access road at the area, which the Appellants tried to block with illegal structures, claiming to have built on their land!
I think that was a primitive reasoning by the Appellants in an urban environment, which subjects individual/private ownership of property to the prevailing town planning rules and regulations, relating to buildings and developments, in the over-all interest of the society. Of course, the DW3 had stated some of these rules and regulations, when he told the court the set backs which developers of land must observe and that, where public interest/utility demands a given portion of individual’s private land, compensation is paid, to the individual and that compensation had been paid to all in respect of the access road (TPU/UDB/172) pertaining to the Exhibit 6, which was the access road of the area.
Appellants could, therefore, no longer lay claims to the strip of land (which formally belonged to them) on which the access road was programme, as the same became public thorough fair for common use of the members of the public, particularly those dwelling in the area, including the Respondent whose right of ingress and egress to his property, therefrom, cannot be curtailed.

On page 24 of the Records is a letter by the Kano State Environmental, Planning and Protection Agency, dated 25/5/2004, addressed to Alh. Aminu Gambia & Six others, following a petition by Alhaji Gali Goron Dutse against renewed attempt to block the access road. The letter reads, in part:
“Further to the above subject matter, I am directed to inform you that the Agency will not allow any development along that strip and the document submitted are not tenable. Consequently, you are advised to contact the Ministry of Land and Physical, planning for in respect of any compensation…”

The letter was signed by Aminu S. Usman Senior Town Planning Office for Managing Director. It was copied to Alh. Gali, (Respondent herein). That letter was pleaded and relied upon by the Respondent at the Trial (See paragraph 14 of the statement of claim on Page 7 of the Records). I believe that the letter sufficiently put the Appellants on notice about the strip of land which the Appellants claimed; that the same was part of the access road which no body should build on or block.
I therefore resolved the issue 1 against the Appellants.

On the Issue 2, that the judgment of the trial court was a nullity, because it was delivered outside the statutory period of 90 days, after the conclusion of addresses, I think the Appellant only held onto Section 294 (1) of the 1999 Constitution and forgot about Section 294 (5) of the same Constitution, which says:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1), of this section, unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered, a miscarriage of justice by reason thereof.”
Appellant has the burden of proving that miscarriage of justice. See ABC LTD VS. AJUGWO (2012) ALL FWLR (Pt. 607) 697.

Appellants made a lame allegation that they suffered a miscarriage of justice as a result of the failure to deliver the judgment within 90 days. Appellants did not show what constituted the miscarriage of justice, but rather canvassed an issue which they never appealed against, that is, that the trial judge raised an issue different from what counsel canvassed and used it to decide the cases without calling on the parties to address it on the issue so formulated by the court.

I resolve this issue against the Appellant, and on the whole dismiss the appeal, as the same is devoid of any merit.
Appellants shall pay costs of N30, 000.00 to Respondent.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother ITA G. MBABA, JCA, just delivered. I agree with his reasons and conclusion that this appeal is devoid of merit and should be dismissed.
I abide by the consequential orders as to costs contained in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita George Mbaba, JCA. His Lordship considered and resolved the issues in contention in this appeal. I agree with the conclusions.

This is an appeal against the judgment of the High Court of Kano State in suit No K/133/2011 delivered by Honourable Justice Patricia Mahmud on the 9th of July 2012.
The Respondent, as plaintiff, in the lower Court commenced the action leading to this appeal against the Appellants, as defendants, and his claims were for:
i. A declaration that the Plaintiff as the owner of property covered by Certificate of Occupancy No LKN/CON/2002/55 is entitled to the right of enjoyment of ingress and egress attached to the property on both sides of the property as contained in the survey plan attached to the land.
ii. A declaration that the act of the Defendants in creating plots of land and developing them out of the road reservation, thereby blocking the road, and the exit of the Plaintiff’s land at the southern side of the Plaintiff’s land is illegal and an encroachment into his right and enjoyment of his use of land.
iii. An order of this Honourable Court directing the Defendants to demolish any structure made on the road reservation, blocking the exit of the Plaintiff’s land.
iv. An order of perpetual injunction restraining the Defendants either by themselves, agents, privies, servants, whosoever deriving authority from them or claiming ownership, from further encroaching on the right of use and enjoyment of the Plaintiff’s land by blocking his exit attached to his land from the southern end, out of the road reservation as per the survey plan of the land.
v. Cost of filing and prosecuting this suit.

The case of the Respondent before the lower court was that he purchased the parcel of land covered by certificate of occupancy No LKN/CON/2002/55 lying and being at Dorayi Babba, Kano from one Alhaji Nasiru Mukthar in 2002 as evidenced by a sales Agreement and that the plot of land was designated for commercial purposes. It was his case that he applied to the Kano State Ministry of Land and Physical Planning to regularize his ownership of the land and he was issued with a letter of grant dated 11th December, 2002 and a certificate of occupancy dated 23rd of March, 2004 and that the plot of land as shown on the survey plan, faced two roads for ingress and egress, one on the western side and another on the southern side and that since the plot of land was designated for commercial purposes, he developed a small scale industry thereon and put a big gate on the western side and another big gate on the southern side with five other small doors for easy movement of goods and workers.

It was the case of the Respondent that in 2003, the Appellants erected some structures on the road reservation on the southern side of his property and they blocked his doors and right of way through that side and that he lodged a complaint with the Kano Sate Environment Planning and Protection Agency and who demolished the structures and the Appellants left the land. It was his case that the Appellants resurfaced in 2004 and made an attempt to block the doors of the property on the southern side by erecting a fence along the road reservation and he resisted the attempt and wrote a petition to Kano Sate Environment Planning and Protection Agency and the Agency wrote to the Appellants saying that they could not make any development on the road reservation. It was his case that Appellants did not relent in their illegal acts and they, in 2011, embarked on erecting a fence along the road reservation on the southern end of his property and thereby blocking his doors and they created plots of land thereon and that despite his resistance and warning from relevant government agencies, the Appellants are bent on continuing their actions on the land.

The case of the Appellants was that the right of way claimed by the Respondent did not exist and that they had been exercising possessory rights over their plots of land long before the Respondent purchased his plot of land and that both the Respondent’s plot of land their plots of land were all subject to customary right and that the area was not designated as at the time they purchased their plots of land. It was their case that all the plots of land in the area originally belonged to one Na’abba Zakari and that they, and Nasir Mukhtar who sold to the Respondent, all purchased their respective plots of land from the heirs of Na’abba Zakari and that after buying the plot of land from Nasir Mukhtar, the Respondent approached the second Appellant to inquire if all the Appellants were willing to sell their plots of land to him.
It was their case that they agreed to sell their plots but that instead of negotiating with them, the Respondent petitioned the Kano State Environment Planning and Protection Agency and who after investigation came to the conclusion that the area in question was not a laid out area and not designated and was subject to customary title.

It was the case of the Appellants that the Respondent thereafter offered to give them two plots of land at another location in exchange for their plots of land to enable him construct a gate and that they reluctantly agreed but that when the Respondent was not forthcoming with the two plots of land, they continued developing their plots of land and that the Respondent demolished some of their structures on their land on the 22nd of February, 2011. It was their case that the matter was taken to the Police Station and the Respondent was advised to report the issue to the Kano State Environment Planning and Protection Agency but rather than do so, the Respondent erected a gate on their land and he was arrested by the Police.

The matter proceeded to trial and during which the Respondent testified as the sole witness and he tendered exhibit while the first and second Appellants testified as the two defence witnesses. The records of appeal show that after the conclusion of the evidence of the second defence witness, counsel to the Appellants applied that the lower court should visit the locus in quo and the request was granted and the lower Court visited the locus in quo on the 28th of October, 2011. At the locus in quo, the lower court observed that the Respondent’s six smaller doors have been enclosed within the structures erected by the Appellants and that there was no set back between the Respondent’s property and the appellants and also that there was no set back between the Appellants’ property and the access road to the southern end of the Respondent’s property. The lower court thereafter noted that an official of the Kano State Environment Planning and Protection Agency ought to have been made a witness and invited to the locus to show what the legal limits were between buildings and between a building and the road and to tender the survey plan of the area as it relates to the two properties. The lower Court ordered the issuance of a subpoena to the Kano State Environment Planning and Protection Agency and the matter was adjourned for continuation at the locus in quo for the evidence of the official.

The records show that an officer of the Kano State Environment Planning and Protection Agency testified at the locus in quo on the 15th of December, 2011 as the third defence witness and he stated, in response to questions by counsel to the parties, that there was a KANUPDA mark on the structure of the Appellants stopping further development, even though an effort had been made to clean the mark, and he showed the red marking to the lower Court and stated that the marking shows that it is an illegal structure being an encroachment into the access road. The witness tendered the layout plan for the area, TPU/UDB/172, as Exhibit 6 and, in response to questions by the lower Court, stated that there is a legal requirement that there should be a setback of 1.8 meters, if it a storey building, and 1.5 meters, if it is a bungalow, from the next building and if it is from a road, it is 1.5 meters. The witness explained that there was a triangular strip of land between the road and the property of the Respondent and he stated that the Appellants did not maintain any setback and their structures encroached unto the road and that the encroachment was much bigger than the empty strip of land and that their development, from the layout, was not on a plot of land and some part was on the strip of land and some part was on the toad. He stated that from the layout, the structures of the Appellants cannot be accounted for and that their records show that all the owners of the properties taken over by the road had been paid compensation and that the failure to report and stop the encroachment unto the road by the Appellants was due to a lapse on the part of their development officers.

At the conclusion of trial and after the written addresses of the parties, the lower Court entered judgment in favour of the Respondent and granted all his claims. The lower Court, after summarizing the evidence led by the witnesses, stated thus:
“… The real issue to determine in my view in this case is whether the defendants have proved their entitlement to the piece of land in dispute.
The plaintiff tendered Exhibits 1, 2 and 3 to prove his ownership of his property.
Though the defendants do not contest the ownership of this property but they contest the ownership of the piece of land in dispute which is adjacent to the plaintiff’s property. The defendants made bogus claims of ownership including how they had the same root of title with the plaintiff’s seller in respect of the land, they never tendered any documentary evidence or call oral evidence to trace their root of title. You cannot lay claim of ownership to a piece of land simply by occupying it or putting up a structure on it. This is what happened in this case. The defendants never gave any reliable/believable evidence in respect of this piece of land. The only thing they did was the structure they put thereon … From the explanation of DW3 on Exhibit 6, the layout of the area, there is no plot in that area. The piece of land that remains next to the plaintiff’s property is made up of the setback on the road. From our observation at the locus in quo, there is no possibility of a plot of land existing in the area where the defendants put up their structure. … Like the visit showed to us the defendants’ structure completely blocked part of the road and the plaintiffs right of ingress and egress. The defendants cannot be allowed to make profit from their act of trespass. This is strengthened by the fact that the defendants never proved their title to the land in dispute through any of the five accepted ways of proving title to land….While the plaintiff claims a right of ingress and egress, the defendants claimed ownership. I have already found that the defendants have failed to prove any title to the property in question.”

The Appellants were dissatisfied with the judgment and they caused their counsel to file a notice of appeal dated the 1st of August, 2012 and containing two grounds of appeal against it.
In compliance with the Rules of this Court, counsel to the Appellants, in arguing the appeal, filed a brief of arguments dated the 17th of November, 2012 and it was deemed properly filed on the 7th of February, 2013. In response, the Respondent filed a brief of arguments dated the 25th of February, 2013. At the hearing of the appeal, counsel to the parties relied on and adopted their respective briefs of arguments.

Counsel to the Appellant formulated two issues for determination in his brief of arguments and these were:
i. Whether the Respondent had proved his assertion before the lower court that he had a right of way through the Appellants’ piece of land.
ii. Whether or not the delay in delivering the lower Court’s judgment occasioned a miscarriage of justice.
Counsel to the Respondent adopted the two issues for determination as formulated by the counsel to the Appellants. This court accepts the two issues for determination agreed by the parties and shall consider them separately.

In arguing the first issue for determination, Counsel to the Appellants reiterated the settled principle of law that he who asserts must prove and that to succeed, the asserting party must be able to adduce cogent, acceptable and convincing evidence whether documentary or otherwise in support of the relief sought and he referred to the cases of Ekeagwu V. Nigerian Army (2010) 6 SCNJ 22 and Ishola V. Folorunsho (2010) 6 SCNJ 184. Counsel stated that in the instant case the Respondent did not discharge the onus placed on him and that the Respondent only led evidence to show that he owned the plot of land on which he erected his property and this fact was not the issue in contention before the lower Court. Counsel said that the issue in contention was the strip of land bordering the southern end of the Respondent’s property as shown on the layout plan and over which the Respondent claimed a right of way and that the testimony of the officer of the Kano State Environment Planning and Protection Agency that there was encroachment on the public way was not helpful as this was not the issue before the lower court counsel stated that the strip of land neither offended the public way nor did it belong to the Respondent and that the question is whether the Respondent can claim a right of way on the said strip of land belonging to the Appellants without proof that the land was a public way and that the onus was on the Respondent to show that the strip of land was a public way and not the property of the Appellants. Counsel concluded by saying that the Respondent failed to lead evidence in the discharge of the onus and he urged this Court to resolve the first issue for determination in favour of the Appellants.

In response, Counsel to the Respondent conceded the principle of law that states that he who asserts must prove but stated that in civil cases the burden of proof is not static and that it shifts from one side to the other depending on the state of the pleadings and evidence led in support of the parties case and he referred to the case of Ifegu v. UBN Plc (2011) All FWLR (pt 602) 1676. Counsel thereafter reproduced the claims of the Respondent in the lower court and referred to the testimony of the Respondent and the exhibits tendered as well as the testimony of the officer of the Kano State Environment Planning and Protection Agency and the layout plan tendered and stated that the Respondent gave compelling evidence of his right of ingress and egress through the southern end of his property and the road was so designated by the Kano State Town Planning Authority. Counsel referred to the survey plan of the property of the Respondent attached to the certificate of occupancy and the layout plan of the area and stated that the Respondent discharged the onus of proof on him and that the onus of proof shifted to the Appellants to show that the area in dispute is not an access road.

Counsel stated that the Appellants failed to discharge the onus of proof and that the assertion of the counsel to the Appellants that the contention in issue in this matter was the strip of land bordering the southern end of the Respondent’s property was a clear misrepresentation of the pleadings of the Appellants as they did not plead nor led evidence to prove that the land in dispute which is an access road is a strip of land and that the Appellants cannot make a case outside their pleadings; he referred to the case of Abubakar V. Yar A’dua (2009) All FWLR (Pt 457) 1, amongst others.
Counsel stated that the Appellants did not plead or lead evidence how title in the land they claimed passed to them and that, on the evidence led by the parties, the lower Court correctly found that the Respondent satisfactorily proved his case and that this Court should not disturb the findings of the lower Court. Counsel urged this Court to resolve the issue for determination in favour of the Respondent.

It is correct as stated by both Counsel that in a civil suit, the general onus is on the claimant to prove to the satisfaction of the court the assertions made in the pleadings of the contentions upon which he meets his case. Where a claimant fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal – Woluchem v. Gudi (1981) 5 SC 291, Olowu v. Olowu (1985) 3 NWLR (Pt 13) 372, Orlu v. Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Agala v. Okusin (2010) 10 NWLR (Pt 1202) 412, Obi v. Onyemelukwe (2011) 1 NWLR (pt 1228) 400, Eyo v. Onuoha (2011) 11 NWLR (pt 1257) 1, Agboola V United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. In other words, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Umeojiako V. Ezenamuo (1990) 1 NWLR (Pt 126) 253, Olagunju vs Yahaya (2004) 11 NWLR (Pt 883) 24, Harka Air Services Ltd v. Keazor (2006) 1 NWLR (Pt 960) 160, Ogunyade V Osunkeye (2007) 15 NWLR (pt 1052) 218, Dim Vs Enemuo (2009) 10 NWLR (pt 1149) 353, Iroagbara V. Ufomadu (2009) 11 NWLR (pt 1153) 587, Oyeneyin V. Akinkugbe (2010) 4 NWLR (pt 1184) 265. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum v. Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye v. Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1.
However, where the claimant is able to prove his claim by adducing evidence in support thereof, the burden will shift to the defendant to adduce evidence in rebuttal.
Thus, where a claimant alleging a fact pleads that fact and produces evidence in proof of it, then the onus will shift to the defendant to call evidence in rebuttal on preponderance of evidence – Imana v. Robinson (1979) 3-4 SC 1, Ezeudu v. Obiagwu (1986) 2 NWLR (pt. 21) 208, Nnorodim v. Ezeani (1995) 2 NWLR (pt. 378) 448, Iheanacho v. Chigere (2004) 17 NWLR (pt 901) 130, Baba-Iya v. Sikeli (2006) 3 NWLR (pt 968) 508, Mani v. Shanono (2006) 4 NWLR (pt 969) 133, Edohoeket v. Inyang (2010) 7 NWLR (pt. 1192) 25, Bamikole v. Oladele (2011) 1 NWLR (Pt 1229) 483.

Looking at the claims of the Respondent before the lower court, they are predicated on a right of easement; a public right of way. Now, an easement is not in itself an incorporeal hereditament in the sense that it is capable, like other forms of personal property, of being purchased or sold by anybody; it is rather a right appurtenant to a corporeal hereditament, a right which is enjoyed as part of a real property. The term easement has been defined as a right annexed to land to utilize or enjoy another land owned by another person in a particular manner and it confers on its owner no proprietary or possessory right in the land affected, but merely imposes a definite and limited restriction upon the proprietary rights of the owner of the land. It is an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it for a specific limited purpose, such as to cross it for access to a public road.
In other words, an easement is a right attached to land to utilize other land of different ownership in a particular manner not involving the taking of any part of the natural produce of the land or of any part of its soil or to prevent the owner of the other land from using his land in a particular manner. In legal parlance, the land benefiting from an easement is the dominant tenement while the land burdened by an easement is called the servient tenement. Except where an easement can be shown to have arisen by prescription from time immemorial, must be created by a grant (express, implied or presumed) or by statute.

In the instant case, it was not in contest between the parties, either on the pleadings or in the evidence led, that the dominant tenement in the matter was the parcel of land covered by certificate of occupancy No LKN/CON/2002/55 lying and being at Dorayi Babba, Kano and on which the Respondent had erected structures and that the parcel of land belonged to the Respondent. The Respondent pleaded and led evidence to prove how he came to own the land and he tendered his title documents in evidence as Exhibits 1, 2 and 3. The Appellants conceded that the Respondent was the owner of the said parcel of land. It was also not in dispute between the parties that the Respondent was not the owner, and he did not claim ownership, of the land on which the access road, and in respect of which the Respondent claimed the right of way, was created. It was the case of the Respondent, from the exhibits tendered, that the access road was created by the Town Planning Officers of Kano State and was indicated on the survey plan of his land prepared by the relevant governmental authority and attached to his certificate of occupancy. The case of the Appellant in response was that they owned the parcel of land over which the access road was created and that they had been exercising possessory right over the land long before the Respondent purchased his plot of land.

It was the case of the Respondent that the access road was one for which a public right of way has been created by the relevant government authority and was indicated on the survey plan attached to his certificate of occupancy. The case of the Respondent was corroborated in very material particulars by the testimony of the officer of the Kano State Environment Planning and Protection Agency who testified at the locus in quo as the third defence witness. This witness tendered the layout plan for the area of the land of the Respondent, TPU/UDB/172, as Exhibit 6, and he showed very clearly that the access road existed on the layout and was one for which a public right of way had been created. The testimony of this witness was not shaken or disparaged by questions from the counsel to the Appellants and neither was it challenged or contradicted by any contrary evidence. It was also the case of the Respondent that his right of way had been impaired by structures erected by the Appellants which blocked off the six small doors he created on the southern end of his property to access the road. The Respondent led evidence in proof of this fact and his testimony was again corroborated in every material particular by the testimony of the third defence witness. The lower court itself observed during the visit to the locus in quo that ‘the Respondent’s six smaller doors have been enclosed within the structures erected by the Appellants and that there was no set back between the Respondent’s property and the Appellants and also that there was no set back between the Appellants’ property and the access road to the southern end of the Respondent’s property’. This observation was not challenged by the Appellants in this appeal.

It is correct that the third defence witness was not the witness of the Respondent but a witness who was subpoenaed based on the observation made by the lower court during the visit to the locus in quo and he was treated as a defence witness. It is an accepted principle that although the claimant succeeds on the strength of his evidence where, however, there is evidence led by a witness at trial which supports the case of the claimant and contains evidence on which the claimant may rely, then provided that evidence is credible and accepted by the Judge during the assessment of the evidence adduced, the claimant shall be entitled to the evaluation of the evidence in his favour, so as to increase the strength of his case – Igwe V. Alozieuwa (1990) 3 NWLR (Pt 141) 735, Awofolaju v. Adedoyin (1992) 8 NWLR (pt 260) 492, Olagunju V. Yahaya (2004) 11 NWLR (Pt 883) 24, Ashiru V. Olukoya (2006) 11 NWLR (pt 990) 1, Nwankwo v. Ofomata (2009) 11 NWLR (pt 1153) 496, Iroagbara V. Ufomadu (2009) 11 NWLR (Pt 1153) 587, Nwokidu V. Okanu (2010) 3 NWLR (Pt 1181) 362, Gbadamosi V. Okege (2011) 3 NWLR (pt 1233) 175. Thus, where a witness called by a defendant gives evidence which supports the claimant’s case and the defendant does not treat him as a hostile witness, the evidence of such witness must be treated as an admission upon which the claimant is entitled to rely as further reinforcement of his case – Okafor V. Idigo (1984) 1 SCNLR 481, Adebambo V. Olowosego (1985) 3 NWLR (Pt 11) 207, Akintola V. Solano (1986) 2 NWLR (pt 24) 598, Olatunji V. Adisa (1995) 2 NWLR (pt 376) 167, Elewuju V. Onisaodu (2000) 3 NWLR (pt 647) 95, Nkoko V. Akpaka (2000) 7 NWLR (Pt 664) 225, Alikor V. Ogwo (2010) 5 NWLR (Pt 1187) 281. The Respondent was entitled to have the evidence led by the third defence witness evaluated in his favour, and the lower Court was on firm ground when it did so.

It is clear from the records of appeal that the Respondent led cogent, convincing and credible evidence in support of his assertion to a right of easement. The onus shifted to the Appellants to lead clear and cogent evidence in support of their case to debunk the claims of the Respondent.

From the case made out on their pleadings before the lower Court, the Appellant predicated their challenge to the right easement claimed by the Respondent on their ownership of the parcel of land bordering the southern end of the parcel of land of the Respondent and over which the said access road was created. They specifically denied that the right of way claimed by the Respondent saying it did not exist and asserted that they had been exercising possessory rights over their plots of land bordering the southern end of the Respondent’s parcel of land long before the Respondent purchased his plot of land. Now, it is an established principle of law that where a party’s claim to a piece of land is predicated on ownership, the onus is on him to prove and establish his ownership and that where he fails to do so, it is fatal to his claim to the land – Adesanya V. Otuewu (1993) 1 NWLR (pt 270) 414, Elegushi V. Oseni (2005) 14 NWLR (pt 945) 348. The lower Court found in its judgment that the Appellants led no evidence at trial, documentary or otherwise to establish their ownership of the parcel of land they claimed. This finding of the lower Court has not been challenged by the Appellants on this appeal.

It is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties -Amale V. Sokoto Local Government (2012) 5 NWLR (pt 1292) 181, SCC (Nigeria) Ltd v. Anya (2012) 9 NWLR (pt 1305) 214, Uwazurike v. Nwachukwu (2013) 3 NWLR (pt 1342) 503, Nwaogu v. Atuma (2013) 11 NWLR (pt 1364) 117. In other words, the decision of the lower court that the Appellants failed to prove their claim of ownership of the parcel of land bordering the southern end of the parcel of land of the Respondent, and over which the said access road was created, remains binding and conclusive between the parties on the issue. It cannot be re-examined by this court – Alakija v. Abdulai (1998) 6 NWLR (pt. 552) 1 and Opara v. Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (pt 1002) 342.

By way of addition, it was the case of the Respondent on the pleadings that both the Respondent’s plot of land and their plots of land were all subject to customary right as all the plots of land in the area originally belonged to one Na’abba Zakari and that they, and Nasir Mukhtar who sold to the Respondent, all purchased their respective plots of land from the heirs of Na’abba Zakari. The law recognizes that there are two clear and distinct ways in which land can be properly and rightly sold, validly acquired and legally transferred in Nigeria and these are either under customary law or under the received English Law – Folarin v. Durojaiye (1988) 1 NWLR (pt 70) 351, Ezeagu v. Onwuchekwa (1997) 4 NWLR (pt 502) 689, Njoku v. Dikibo (1998) 1 NWLR (pt 534) 498, Commissioner for Lands & Housing Kwara State v. Atanda (2007) 2 NWLR (Pt 1018) 360.

It is a settled legal principle that in order to transfer an absolute title under native law and custom, there must be payment of money and delivery of the land which must be done in the presence of witness. In other words, before there can be a valid sale under native law and custom, the three elements or requirements are: (i) payment of purchase price; (ii) the purchaser is put in possession by the vendor; (iii) in the presence of witnesses – Manya v. Idris (2001) 8 NWLR (Pt 716) 627, Basil v. Fajebe (2001) 11 NWLR (pt 725) 592, Adedeji v. Oloso (2007) 5 NWLR (pt 1026) 133, Obi v. Onyemelukwe (2011) 1 NWLR (pt 1228) 400, Agboola v. United Bank for Africa Plc (2011) 11 NWLR (pt 1258) 375. This custom is of universal application throughout Nigeria – Egonu v. Egonu (1978) 11-12 SC 111, Abdullahi V. Bataganawe (1997) 5 NWLR (Pt 506) 650 and Akinterinwa V. Oladunjoye (2000) 6 NWLR (pt 659) 92, Ajayi V. Jolaosho (2004) 2 NWLR (Pt 856) 89, Ogundalu v. Macjob (2006) 7 NWLR (Pt 978) 148. Failure to plead and prove any of the ingredients is fatal to the case of the party – Yashe V. Umar (2003) 13 NWLR (Pt 938) 465. The Appellants, in the instant case did not plead or prove any of the three ingredients.

It is also settled that to constitute a transfer of legal title under English Law by purchase, there must be a valid sale, payment of money accompanied by acknowledgement of receipt and execution of a deed of conveyance. If a person sells his land to another and fails to put the person in possession, retains possession, the payment of money to the owner of a parcel of land does not per se amount to a transfer of title to the purchaser. There must be either a conveyance executed in favor of the purchaser to invest him with legal title or entry into possession by the purchaser to give him equitable title to the land – Folarin v. Durojaiye (1988) 1 NWLR (Pt 70) 351, Ejiniyi v. Adio (1993) 7 NWLR (pt 305) 320, Iragunima v. Uchendu (1996) 2 NWLR (Pt 428) 30, Buraimoh v. Karimu (1999) 9 NWLR (pt 618) 310, Olowoake v. Salawu (2000) 11 NWLR (pt 677) 127, Eiya v. Qudus (2001) 15 NWLR (pt 737) 587, West African Cotton Ltd v. Yankara (2008) 4 NWLR (pt 1077) 323. Payment of purchase price without possession is not sufficient – Kachalla V. Banki (2001) 10 NWLR (pt 721) 442, West African Cotton Ltd V. Yankara (2008) 4 NWLR (Pt 1077) 323. And neither is possession without payment of purchase price – Ugwunze V. Adeleke (2008) 2 NWLR (Pt 1070) 148, Chabasaya V. Anwasi (2010) 10 NWLR (pt 1201) 163. These facts must be pleaded and proved by a party relying on purchase of land under the received English law. The Appellants, in the instant case, did not plead or prove payment of purchase price for the plots of land they claimed to own.

The lower Court was thus very correct when it found that the Appellants did not prove their ownership of the plots of land they claimed to own by purchase from the heirs of Na’abba Zakari and on which they said the access road was created and on which they erected structures which the lower Court observed at the locus in quo as blocking the access of the six smaller gates of the Respondent property to the access road. The distinction that the counsel to the Appellant sought to draw between the land of the access road and the strip of land besides the access road is completely irrelevant as the Appellants led no evidence to prove their ownership of either the land of the access road or of the strip of land besides the access road. The net effect of this is that the substratum of the case of the Appellants in opposition to the case of Respondent was non-existent and that as such the Appellants did not discharge the onus on them to dislodge the claim of the Respondent to a right of easement. It is trite law that if the defendant fails to lead any credible evidence to tilt the scale to his side, judgment will be for the claimant – Dabo v. Abdullahi (2005) 7 NWLR (Pt 923) 181. The lower court was thus correct when it found that the Respondent made out a credible case to entitle him to judgment. The first issue for determination is resolved against the Appellants.

On the second issue, whether or not the delay in delivering the lower court’s judgment occasioned a miscarriage of justice, counsel to the Appellants referred to Section 294 (1) of the Constitution of the Federal Republic of Nigeria and stated that it required that judgments should be delivered within ninety days of close of final arguments. Counsel stated that the final arguments in the present suit were closed before the lower court on the 5th of March, 2012 but that the judgment was delivered on the 9th of July, 2012, a period of four months thereafter. Counsel conceded that judgment delivered outside the statutory period is not necessarily defective and it cannot be set aside unless it is shown that the delay in the delivery of the judgment occasioned a miscarriage of justice. Counsel stated that in the instant case, the delay did cause a miscarriage of justice as the lower court clearly abandoned the issues raised by the parties on their pleadings and came up with a new issue when it stated that the issue for determination was whether the Appellants have proved their entitlement to the piece of land in dispute. Counsel stated that there was no dispute as to the ownership of the Appellants’ piece of land and on which they erected their structure and that the Respondent admitted under cross-examination that the piece of land belonged to the Appellants and that they shared the same root of title, but that the lower court ignored this evidence and made no reference to the admission in the judgment

Counsel stated that even if the lower court desired to resolve this new issue, since the issue was raised suo motu, it ought to have given the parties an opportunity to address it on the issue before reaching a decision thereon, but that the lower court failed to do so and that this was wrong and he referred to the cases of Fombo V. Rivers State Housing & Property Development Authority (2005) 5 SCNJ 213 and Attorney General of the Federation V. Atiku (2007) 4 SCNJ 456. Counsel stated that the lower Court also brought up a claim in trespass for the Respondent and that this was not one of the reliefs sought before it and that since the lower Court was not a father christmas, it should not give what was not sought for. Counsel submitted that all these anomalies make the decision of the lower Court perverse and therefore occasioned a miscarriage of justice. Counsel urged this Court to resolve this issue in favour of the Appellants.

In response, Counsel to the Respondent adopted the interpretation of the Counsel to the Appellants on the meaning and intent of Section 294 of the Constitution and stated that the question was whether the Appellants showed that they suffered a miscarriage of justice by reason of the delay in the delivery of judgment. Counsel stated that the argument of Counsel to the Appellants that the lower Court raised a new issue of whether the Appellants proved their ownership of the land in dispute was a non-starter as the issue was not new but arose from the respective cases made out by the parties on the pleadings and on the evidence before the lower Court.
Counsel stated that the pleadings made it obligatory on the Appellants to prove their ownership of the parcel of land containing the access road and they had all the opportunity at trial to do so and that it was incorrect that the Respondent admitted at any time in the course of trial that the parcel of land belonged to the Appellants.
Counsel concluded that the Appellants did not show that they suffered any miscarriage of justice by reason of the delay in the delivery of the judgment and he urged this Court to resolve this issue in favour of the Respondent.

Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 provides that Courts should deliver their decisions in a matter not later than ninety days after conclusion of evidence and final addresses and Section 294 (5) of the Constitution contains provisions to the effect that the decision of a court shall not be set aside simply because it was not delivered within ninety days unless it is shown and it is apparent that the party complaining has suffered a miscarriage of justice by reason thereof. It is not in contest in this matter that the lower Court delivered its judgment four months after the trial and addresses of Counsel. This was outside the ninety days stipulated by Section 294 (1) of the Constitution. It is trite that by a combined reading of the provisions of Sections 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, a party cannot seek to nullify a judgment of court simply because it was delivered outside the ninety period allowed by the Constitution. The party must proceed further to show the miscarriage of justice he suffered by the reason thereof.
Where there is a failure to so establish a miscarriage of justice, the appellate court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not on the length of time simpliciter but on the effect it produced in the uniting of the judgment – Savannah Bank of Nigeria Ltd V. Starite Industries Overseas Corporation (2009) 8 NWLR (pt 1144) 491, International Beer and Beverages Industries Ltd V. Mutunci Company (Nig) Ltd (2012) 6 NWLR (pt 1297) 487, Kolawole Industrial Company Ltd V. Attorney General Federation (2012) 14 NWLR (pt 1320) 221 and Peoples Democratic Party V. Okorocha (2012) 15 NWLR (Pt 1323) 205.

On what is expected of a party alleging miscarriage of justice by reason of a delay in the delivery of judgment beyond the ninety day period, this Court in its unreported judgment in Appeal No CA/K/259/2011 – Alhaji Usman Sharu Baban-Lungu & Anor V. Alhaji Ahmed Abubakar Zarewa & 2 Ors delivered on the 22nd of March, 2013 stated thus:
“it is essential to understand that the concept of miscarriage of justice is not a speculative concept and it is not considered in the abstract but in concrete terms based on the peculiar facts of each case. Thus, a party alleging miscarriage of justice by reason of delay in the delivery of judgment by a Court will not succeed by merely parroting the concept, he must show in clear and real terms the injustice or injury he suffered on the face of the records and which is traceable to the failure of the Court to deliver judgment within the statutory period.”
The acceptable criteria for whether there has been a miscarriage of justice by reason of delay in delivering a judgment appears to be that given by Oputa, JSC, in Dibiamaka V. Osakwe (1989) 3 WLR (Pt 107) 101, at page 114 where the learned Justice explained thus:
“And the law is that if inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”

Respondent in the entire judgment. It is apparent that Counsel to the Appellants was merely clutching at “thin air”, not even at “straws”, in its bid to debunk the judgment of the lower court. The Appellants did not show that they suffered any miscarriage of justice by reason of the one month’s delay in the delivery of the judgment by the lower Court. The second issue for determination is also resolved against the Appellants.

It is for these reasons that I too find no merit in this appeal and I hereby dismiss same. The judgment of the High Court of Kano State in suit No K/133/2011 delivered by Honourable Justice Patricia Mahmud on the 9th of July, 2012 is hereby affirmed. I abide by the order on costs in the lead judgment.

Appearances

Abdurrazaq Aikawa Esq. (who settled the brief)For Appellant

AND

Habibu Akihu Esq. (who settled the brief)For Respondent