Must Testator Mention Assets In Will? (11)

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