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Must Testator Mention Assets In Will? (1)



This, counsel argued is not as held by the lower court dependent on  the pleadings of the defendant. Counsel submitted that at any rate,  the defendant in paragraph 3 of the amended statement of defence  out-rightly denied paragraph 5 of the plaintiff’s amended statement  of claim, the conveyance to Chief Ajao among others and went  ahead to put the plaintiff to its strictest proof. Counsel citing Buliari  v. Obasanio (2005) 2 NWLR (Pt. 910) 241 submitted that where a  defendant specifically denies a fact averred by the plaintiff and goes A  further to put the plaintiff to strict proof thereof, issues are joined  between the parties. The burden consequently rests on the plaintiff  to substantiate his claim. Counsel submitted that it was improper  for the learned trial Judge to upturn all the principles of law with regard to the legal burden on a party claiming a declaration of title B on the grounds that the defendant did not plead the issue in his defence.

Learned counsel further submitted that the lower court was wrong in holding that the protection afforded registered owners of a defective title under section 53(2) of Registration of Titles Law, C Cap. R4, Laws of Lagos State, 2004 was open to the appellants.

Citing the cases of Phillips v. Ogundipe (1967) 1 All NLR 258; (1967) SCNLR 460 and Lababedi v. Lagos Metal Industries Ltd.

(1973) 8 NSCC 1, counsel submitted that the section does not validate spurious transfers based on the principle of nemo dat quod D non habet. Learned counsel urged us to set aside validly upheld the conveyances issued and signed by the Onikate Chieftaincy Family.

On whether the respondents discharged the onus of proving their  title, counsel submitted that they failed to prove their root of title because their title is hinged on the purported conveyance to Chief E Ajao dated 15/3/56 which was iscredited by the Supreme Court.


I have considered carefully the submissions of the parties in  this appeal. The age long principle in land matters is that the onus is on a plaintiff who claims declaration of title to land to satisfy F the court that he is entitled on the evidence adduced by him to the declaration sought; except in a few cases such as where the defendant claims exclusive ownership of family land, the onus never shifts. To discharge the onus the plaintiff must rely on the strength of his own case and not on the weakness of the defence G except where the defendant’s case supports his case. Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252; Eze v. Atasie (2000) 9 WRN 73 at 88; (2000) 10 NWLRM  (Pt. 676) 470; Adesanya v.

Aderonmu (2000) 9 NWLR (Pt. 672) 370. The plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence.

If  the onus is not discharged the weakness of the defendant’s case will not help the plaintiff and the proper judgment is for the  defendant. Kodilinye v. Odu (1935) 2 WACA 336; Atuanya v.

Onyejekwe (1975) 3 SC 161 at 168; Onibudo v. Akibu (1982) 7 SC

A         60 at 84-85; Bello v. Eweka (1981) 1 SC 10 1; Lawson v. Ajibulu

(1997) 6 NWLR (Pt. 507) 14 at 41 F-H. The methods by which a claimant may establish title to land were settled by the Supreme Court in Idundun v. Okumagba (1976) 9-10 SC 227. They are:

(a)By traditional evidence.

(b) By production of documents of title duly authenticated and executed.

By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.

By acts of long possession and enjoyment. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.

The claimant is not required to prove all the five methods. He would succeed in his claim if he is able to establish anyone of the five methods.

From the evidence led by the respondents as plaintiffs in the lower court, they relied on documents of title and acts of long possession and enjoyment. I shall now examine the evidence led in the case to see whether the learned trial Judge was right in holding that the respondents succeeded in proving their title to the land in dispute.

Documents of title:

The respondents tendered the following documents in proof of their title:

1. Exhibit PI: Deed of Conveyance executed in 1964 in favour of the respondents’ father by the executors of Chief Ajao, his predecessor in title.

Exhibit P2: A certified true copy of terms of settlement which confirmed Chief Ajao’s title to Ikate Chieftaincy  land.

Exhibit P9: a Deed of Conveyance dated 15/3/56  registered as No. 46 at page 46 in Volume 145-1 b of the Register of Deeds on which exhibit PI is predicated.

Learned counsel for the appellant faulted all of the above  documents tendered in proof of title by the respondents on the ground that the Supreme Court in No. Suit. SC.298/76 between Awomuti v. Salami pronounced as worthless exhibit P9 Chief Joseph  Adeniran Ajao’s conveyance of 15/3/56. The contention of learned

counsel was that since Chief Ajao’s conveyance of 15/3/56 has been  discredited, any document of title predicated on it is invalid and  inadmissible in proof of title to land. The respondents submitted that from the evidence of PW3 at the lower court it was clear that  the land in dispute formed part or portion of a large parcel of land belonging to lkate Chieftaincy family. Counsel submitted that the  lkate Chieftaincy family sold part or portion of their land to Chief Ajao in two trenches, first it was ten acres and then another 20 acres. Chief Ajao took more than the 20 acres he bought later and this led to litigation in Suit No. IK/163/65. The parties in the suit settled out of court wherein the title of Chief Ajao to the larger area  in the conveyance was confirmed but subject to the right of those  who had purchased part of the land from Ikate Chieftaincy family prior to the sale to Chief Ajao. Counsel argued that the appellant  did not purchase the land from the Ikate Chieftaincy family or from Chief Ajao. He could not therefore benefit from any irregularity  in the title of Chief Ajao. Counsel submitted that it was the same  people who had wanted Chief Ajao’s title set aside on grounds of  fraud that later confirmed the said title. In view of the pleadings and  evidence led by the respondents, the appellant cannot rely on the  Supreme Court judgment in the manner he tried to do in this case.

That is why the learned trial Judge in his judgment at page 143 of  the record held that the Supreme Court judgment, exhibit 04 had  no bearing in the present case in the following words:

“Exhibit 04 was in respect of a plot of land measuring  approximately 50ft by 100ft situate, lying and being  at No. 11, Ijero Street, Ikate, Lagos State. The land in

dispute in the instant proceedings situates lies and is at No. 129 Olaitan Odularu Street, Ikate. The parties in exhibit 04 were different from the parties in these  proceedings and there was no evidence to show that any of the parties in these proceedings was a privy  of any of the parties in exhibit 04. The judgment in  exhibit 04 was in respect of who owned the plot of land at No. 11, Ijero Street, Ikate, Lagos State and nothing was said about the ownership of the land at  No. 129 Olaitan Odularu Street, Ikate.”

I agree with the learned trial Judge that the Supreme Court  judgment exhibit 04 is not relevant here for reasons stated above.

Further, the pleading of the respondents had introduced a dimension  which made it necessary to consider exhibit D4 in the light  exhibit P2, the certified true copy of terms of settlement which confirmed Chief Ajao’s title to Ikate Chieftaincy land as register subject to the right of those who had purchased part of the land from Ikate Chieftaincy family prior to the sale to Chief Ajao. Instead properly traversing this fact raised in paragraph 9 of the amend statement of claim, the appellant merely averred in paragraph 17 his amended statement of defence that “the defendant shall conte at the trial that Para 9 of the statement of claim is a red herrir that the “misgiving” referred to therein is fatal to the cause of the plaintiffs”. That was a clear case of missed opportunity (that is) if the respondent had an answer to the averment. Exhibit  D4  to not declare the conveyance null and void but merely declared  worthless and the plan attached to it inadmissible in that particular case. No step had been taken by anyone pursuant to the view the Supreme Court in exhibit D4 to declare the conveyance Chief Ajao null and void. As far as the grantors of the land we concerned, the conveyance was valid subject to the caveat in the terms of settlement. There has been no rectification of the registered to the prejudice of the title of Chief Ajao. Even assuming with e

conceding that the title of Chief Ajao was defective, in the absence of allegation and proof of fraud or forgery, the plaintiffs/responder  whose title is based on exhibit PI duly registered as No 36 at pagev36 in Volume 798 of the Register of Deeds at the Lands Regis!  are protected by section 53(2) of the Registration of Titles Law, Cap. R4, Laws of Lagos State, 2004. The section provides that the declaration of a registered instrument as null and void shall not invalidate any estate acquired by a subsequent registered owner, being a purchaser for value, or a person deriving title under such  subsequent registered owner. See Banire v. Balogun (1986) 4 NWlR (Pt. 38) 746; Yesufu v. Ojo (1958) 3 FSC 106; (1958) SCNLR 430.

For section 53(2) to avail the appellants they must show that the predecessor in title bought for valuable consideration. Exhibit  PI  shows on the face of it that the property was bought for valuable consideration. See Bada v. Pereira (1974) 11 SC 51; (1974) LPElR – SC 312/1972. Where fraud or forgery is established, at whatever point then Section 53(2) would be inapplicable as established  the cases of Phillips v. Ogundipe (1967) I All NLR 258; (196  SCNLR 460 and Lababedi v. Lagos Metal Industries Ltd. (1973)  8 NSCC 1, referred to by appellant’s counsel in his brief. As pointed out by the court the section cannot be used as an engine of fraud. In the present case, neither fraud nor forgery was alleged.

L-R: Senior Special Assistant to Lagos Governor on Transport Education, Dr Marian Masha; member, International Association of Directors of Law Enforcement & Training, usa, Mr Val Luban; team leader, Mr David Harvey; Governor Babatunde Fashola of Lagos State chairman, Lagos State task force, Mr Bayo Sulaiman during the visit of the association to Governor Fashola in Lagos last Tuesday. Photo: NAN

L-R: Senior Special Assistant to Lagos Governor on Transport Education, Dr Marian Masha; member, International Association of Directors of Law Enforcement & Training, usa, Mr Val Luban; team leader, Mr David Harvey; Governor Babatunde Fashola of Lagos State chairman, Lagos State task force, Mr Bayo Sulaiman during the visit of the association to Governor Fashola in Lagos last Tuesday. Photo: NAN

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Judiciary As Last Hope Of The Common Man



The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended.  Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings.  The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?


By: Chidi Enyie

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Elele OSPAC Seeks Govt’s Assistance



Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.

It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.

Ikwerre people are proud of him and will back till eternity.

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Legal Departments In LGAs And Justice Dispensation



Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels:  NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing,  nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the  Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National  Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the  various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in  Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers,  the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.  A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.


By: Sylvester Udemezue with reports from King Onunwor

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