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Law/Judiciary

Must Testator Mention Assets In Will? (11)

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The Supreme Court
case declared exhibit P9 worthless. There was no allegation of fraud or forgery. The appellant in his brief at page 16 submitted that exhibit P9 and the plan attached to it are defective and for all material purposes fail to ground exhibit PI on grounds of fraud which takes it away from the protection of S. 53(2) of the Registration of Titles Law. That is certainly not a way to allege or prove fraud. Exhibit D4 did not allege fraud. It merely declared the exhibit worthless for purposes of proving the title in that particular case. If the appellant wanted to bring the issue of fraud into the matter, he should have specifically pleaded same and led evidence of the fraud. See Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299. All these issues were fully considered by the learned trial Judge in coming to the inclusion that the decision of the Supreme Court, exhibit D4 did not detract from the validity of exhibit Pl. See pages 143 and 144 of the record. What learned counsel for the appellant is contending in essence is that because the Supreme Court declared in some other suit that the conveyance exhibit P9 is worthless, all he needed to do was tender the Supreme Court judgment and then relax and watch the court demolish the claim of the respondent on that ground! The appellant refused to take into account or reckon with the explanation of the respondent as pleaded that the defect in the title of Chief Ajao was rectified by terms of settlement reached in the suit instituted as to the actual size of the land sold to him.
There is no doubt that exhibit D4 could constitute estoppel per rem judicata. But for it to apply, the suit must be between the same parties or their privies and the subject matter must be the same. See     Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141. Learned counsel made a big deal about exhibit – D4 being a judgment in rem which binds all persons whether parties to the proceedings or not. He relied heavily on the case of Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319 at 407, paras. B-F, 437, para. C. In that case, the Court of Appeal defined a judgment in rem as:
“The judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from a particular interest in it of a party to the litigation. Apart from the application of the term to persons, it must affect the ‘res’ in the way of condemnation, forfeiture declaration, status or title, or order for sale or transfei Examples of judgment in rem are:
(a) Judgment of a probate court establishing a will or creating the status of administration; Judgment of a divorce court of competen jurisdiction dissol v ing or establishing marriage or affirming its existence;
(c) Judgment on a parliamentary election petitior However there are judgments which resemble judgments in rem whereas they are not. For instance a judgment is not in rem only because it has, in a suit inter partes, determined an issue concerning the statute of a particular person or family. [Sosan v. Ademuyiwa. (1986) 3 NWLR (Pt.27) 241 referred to.]
In addition to the above, this issue is completely settled by the case of Sosan v. Ademuyiwa (supra) which the appellant referred to be which vital point he chose to ignore. There, the Supreme Court held that a judgment in a land case is a judgment in personam an     not a judgment in rem because it is the rights or interests of the parties in respect of the land which are being determined and no the status of the land itself. The case further re-stated the point the a previous judgment cannot operate as estoppel per rem judicatai in a subsequent proceeding where the parties are different, the claim is different, and the pleadings and evidence are all different.
Learned counsel for the respondent had submitted that PWI an PW5 had testified to the sale of the plot of land, plot 98 to the fatht of the respondents. To say that because the deed of conveyance exhibit PI had its root in the deed of conveyance exhibit P9 which had been described as worthless in exhibit D4 did not amount saying that the parcel of land did not originally belong to the Ika chieftaincy family and that it had not been sold to Chief Ajao. the same vein, if the conveyance exhibit P1 given by Ajao family, described as worthless, that would not affect the factual sale of property to the respondent’s father. Counsel finally submitted that chieftaincy family and that unle he can convince the court that  purchased the land from lkate chieftaincy family , the irregularities or defects in exhibits PI and P9 will not assist him in any way. This is a correct exposition of the law and facts as they stand. I agree totally with learned counsel for the respondent.
Further on exhibit PI, appellant’s counsel relying on Romait v. Romaine (supra) had contended that mere production of a valid instrument of grant is not enough and that it is incumbent on the trial court to further inquire into a number of issues such as whether the
document is genuine and valid; whether it has been duly execute stamped and registered; whether the grantor had the authority and capacity to make the grant; whether the grantor had in fact what he purported to grant; and whether it has the effect claimed by the holder of the instrument. In his judgment at pages 140-141, the learned trial Judge resolved the matter thus:
“It is correct as stated by the defendant’s counsel that where a party tenders and relies on a registered document of title such production and reliance upon such an instrument inevitably carries with it the need for the court to inquire into some or all of a numb: of questions such as those enumerated by him above – Romaine v. Romaine (1992) 4. NWLR (Pt. 238) 65( Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412 and Atanda v. Ifelagha (2003) 17 NWLR (Pt. 849) 27′
In resolving these questions, however, the court must consistently and constantly keep the pleadings of the parties in focus. This is because it is an essential principle of the rules of pleading in our adversary
system that each party is free to formulate his own case and once formulated he is bound by his pleadings and cannot be allowed to urge a case different from the
formulated on the pleadings and the courts themselves are bound to decide only the case formulated on the pleadings and it would be contrary to the propel unction of the court to adjudicate on any matter not put in issue by the pleadings – see Overseas Construction Co. (Nig.) Ltd. v. Creek Enterprise (Nig.) (1985) 3 NWLR (Pt. 13 ) 407 and Moghalu v. Woho (2004) 17 NWLR (Pt. 903) 465. This principle is an outflow of the doctrine of fair hearing that demands that a party must know in advance the nature of what he is to face in court and prepare for same and thus material facts must be set out to enable a party to be on his guard and tell him all that he will have to contend with at the trial – see Tate Industries PIc v. Devcom Merchant Bank Ltd. (2004) 17 NWLR (Pt. 901) 182. Looking through the pleadings of the defendant, no where did he plead or raise issues on the capacity of the executors of the Estate of Chief J.O. Ajao to execute exhibit PI and/or on the inconsistencies in the date Chief Ajao bought the land and when he made his Will. These were material facts and not having been pleaded, it was improper for the defendant’s counsel to raise them in his address. See Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1 and Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158. And this is because a party must be consistent in presenting his case and he will not be allowed to take one stance in the pleadings
and then turn somersault in the address. See Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617 and Aguocha v. Aguocha (2005) 1 NWLR (Pt. 906) 165.”
This is very sound reasoning and takes care of all the arguments put forward by appellant’s counsel concerning the capacity of the executors of the Estate of Chief Ajao to execute the conveyance in favour of the respondents.
Learned counsel for the appellant had also argued that if exhibit PI was duly executed by the executors appointed in a Will dated 22/8/44, it was incumbent on the plaintiffs to show that the land in dispute formed part of Chief Ajao’s estate by tendering the Will and that since the plaintiffs failed to tender the Will, it was safe to conclude that it was impossible for the land bought in 1956 to be part of a Will made in 1944 without a codicil. These facts as rightly stated above by the learned trial Judge were not pleaded. Besides, it is not a rule that a testator must mention in his Will every single real estate he owns. He could empower the executors to take control of all his landed property without mentioning them specifically in the Will.
In his judgment at pages 144 – 146, the learned trial Judge incisively examined the root of title of the respondents, their long possession of the land in dispute and the incidents of exhibit P1 and at the end found, correctly in my view that the respondents led credible evidence to sustain their claim for declaration of title to the land in dispute in accordance with the rule as laid downn in Idundun v. Okuniagb.

Deputy Commandant, Nigeria Security and Civil Defence Corps, Enugu Command, Mr. Dan Samuel (left), with his Commandant, Mr. Nathaniel Ubong, addressing newsmen on armed robbery suspects paraded by the command in Enugu, recently. Photo: NAN

Deputy Commandant, Nigeria Security and Civil Defence Corps, Enugu Command, Mr. Dan Samuel (left), with his Commandant, Mr. Nathaniel Ubong, addressing newsmen on armed robbery suspects paraded by the command in Enugu, recently.
Photo: NAN

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Features

Judiciary As Last Hope Of The Common Man

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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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Law/Judiciary

Elele OSPAC Seeks Govt’s Assistance

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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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Law/Judiciary

Legal Departments In LGAs And Justice Dispensation

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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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