Must Testator Mention Assets In Will?

CLIFFORD O. IMOH
v.
1.ABIODUN ONANUGA
2.FEMIONANUGA
(For themselves and as principal Members and accredited representatives of the descendants and family of Late F ASASI
OKUNOLA ONANUGA)
COURT OF APPEAL
(LAGOS DIVISION)
CA/Ll314/06
AMINAADAMU AUGIE, J.C.A. (Presided)
JOSEPH SHAGBAOR lKYEGH, J.CA
CHINWE EUGENIA IYIZOBA, J.C.A. (Read the Leading Judgment)
FRIDAY, JOTH MAY 2013
Issue:
Whether in the circum
stances of this case the respondents satisfactorily discharged the legal burden of establishing their case to deserve the declaratory relief granted to them or which of the two parties has by preponderance of evidence proved a better title to the land in dispute.
Facts:
The respondents by a writ of summons sued the appellant at the High Court of Lagos State for trespass on 67 acres of land belonging to their father. The respondents claimed that the said land which originally belonged to the Ikate Chieftaincy family was sold to Chief Joseph A. Ajao for an Estate in fee simple who thereafter sold same to their father Fasasi Okunola Onanuga and was immediately put in possession.
The sale of the land in dispute by Chief Ajao to the respondents’ father was later ratified by the executors and executrix of the Will of Chief Ajao by an indenture of conveyance dated 22J1d day of August, 1964. The respondents claimed that they have been in possession since 1964 until the appellant trespassed on the land by driving away their tenants and started erecting building on the land.        In response, the appellant claimed to have bought the land from one Olaiya Coker whose title was traceable to the Onikate Chieftaincy family, a rival family claiming ownership of the same land in Ikate. The trial court after considering the root of title and the evidence led by the two parties, entered judgment in favour of the respondents granting all their claims.
Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal. Held (Unanimously dismissing the appeal):
1.On Methods of establishing title to land – The methods by which a claimant may establish title to land are:
(a) by traditional evidence;
(b) by production of documents of title duly authenticated and executed;
(c) by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
(d) by acts of long possession and enjoyment; and
(e) proof of possession of connected or adjacent land in circumstances rendering it probable that the ownership 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. [Idundun v. Okumagba (1976) 9-10 SC 227 referred to.] (P. 153, paras. A-D)
2.On Onus of proof in action for declaration of title to land –
The onus is on a plaintiff who claims declaration of title to land to satisfy 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 except where the defendant’s case supports his case. 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. [Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252; Eze v. Atasie (2000) 10 NWLR (Pt. 676) 470; Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370; Kodilinye v. Odu (1935) 2 WACA 336; Atuanya v. Onyejekwe (1975) 3 SC 161; Onibudo v. Akibu (1982) 7 SC 60; Bello v. Eweka (1981) 1 SC 101; Lawson v. Ajibulu (1997) 6 NWLR (Pt. 507) 14 referred to.] (Pp.152-153,paras.F-A)
3 .On Effect of claim of title to land through grant or inheritance –
Whenever title is claimed through a grant or inheritance, there must be clear traditional history of how the family or community came into the land and it must be done through clear pleadings and evidence in support of enealogy as continuous exclusive possession. Without this stating just simply that a grant is from a family without more may not be enough. In the instant case, the appellant pleaded the rights of the Onikate family and their attorneys to the land in dispute but he had no piece of evidence in support of the averments.
In the circumstance, the averments were deemed abandoned. [Bamgbose v. Olusoga (1996) 4 NWLR (Pt. 444) 520; Olasa v. Ezimuo (2003) 17 NWLR (Pt. 848) 129 referred to.] (Pp. 162-163, paras. F-A)
4.  On Nature of a judgment in land matter – A judgment in a land case is a judgment in personam and not a judgment in rem because it is the rights or interest of the parties in respect of the land which are being determined and not the status of the land itself. Therefore, a previous judgment cannot operate as estoppel per rem judicatam in a subsequent proceeding where the parties are different, the claim is different and the pleadings and evidence are all different. [Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241 referred to.] (P. 157, paras. D-F)
5. On Whether compulsory for a testator to mention all his real estate in his Will – 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. (P.159,paras. G-H)
6. On Presumption of due execution of a document – Once a document is registered in accordance with the provision of section 17(1) – (4) of the Lands Instrument Registration Law, Cap. 158, Laws of Lagos State 2004, due execution is presumed.
Equally, a document made and was over twenty years old on the date it was given in evidence enjoys the presumption of due execution provided for under section 123 of the Evidence Act. [Jules v. Ajani (1980) 5-7 SC 96; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 referred to.] (P. 161, paras. C-D)
7. On Treatment of pleadings not supported by evidence –
Where no evidence is led in respect of pleaded facts, the facts are deeded abandoned, failure to lead evidence on pleaded facts is fatal to a claimant’s case.
In other words, once pleadings are not supported by evidence, they are deemed abandoned. [N.1.M. V Ltd. v. F.BN. (2009) 16 NWLR (Pt.1167) 411; OkoLie v. Marinho (2006) 15 NWLR (Pt.l002) 316; Ereanab v. Attah (2004) 7 NWLR (Pt. 873) 468 referred to.] (P.163,paras. E-F)
Per IYIZOBA,J.C.A. at pages 163-164, paras. F-E: “Apart from the tendering of documents of title, the respondents at the trial led evidence of long possession and enjoyment of the land. The respondents’ father’s predecessor in title Chief Ajao sold the land in dispute plot 98 to him in 1961 and immediately put him into possession. He exercised full dominion over the land and apart from causing same to be surveyed, he kept and maintained on the land rent paying tenants until his death in 1980. Sometime in 1972, the defendant or his representative trespassed on the land. The respondents’ father warned him offand caused his solicitor to write him a letter of warning.
On their father’s death, the respondents continued to exercise acts of possession over the land until early in the year 1985 when the appellant trespassed into the land with large quantities of building materials, drove away the tenants of the respondents and started building activities on the land. It is thus clear that the respondents pleaded and led evidence of long possession and enjoyment of the land, long before the appellant appeared on the land. As clearly set out in the respondent’s brief of argument, two witnesses PW3 and PW4 gave evidence that the land in dispute was
part of the Ikate Family land later christened Ikate chieftaincy family. They testified as to the genealogy of the Ikate family and asserted that the only land owning family in Ikate is the Ikate chieftaincy family.
The defendant/appellant who was the sole witness in his case did not rebut the testimony when he was giving evidence. It is consequently not in dispute that the land formed part or portion of a large tract of land belonging to Ikate Family. Both parties agreed and traced their origin to Ikate Family. The appellant through the splinter group Onikate Family.
As to who as between the Ikate Chieftaincy Family and the Onikate Family had the right to sell the land, learned counsel submitted that the evidence produced at the trial tilted heavily in favour of the Ikate Chieftaincy Family. I am in total agreement with this view. Indeed, there is hardly any evidence on the side of the scale of the Onikate Family. There were pleadings but no evidence in support.”
8.On What evaluation oj evidence by a trial court entails –
Evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of
the contending parties and disbelief of the other or a reasoned preference of one version to the other.
There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other. [Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356; Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249 referred to.] (P.165,paras. C-D)
9.On When estoppel per rem judicatam applies-
For the defence of estoppel per rem judicatam to avail a defender, the suit must be between the same parties or their privies and the subject matter must be the same. [Udeze v. Chidebe (1990) 1 NWLR (Pt.
125) 141 referred to.] (P.156,paras. F-G)

Cross section of law students going for their law school 2013/2014, during the presentation of financial support to them by the Senator representing Rivers South East District at Londa Hotel, Port Harcourt, recently.
Photo: Chris Monyanaga