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.

Resolution:

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