Must Testator Mention Assets In Will?

Appeal:
This was an appeal against the judgment of the High Court which granted the respondents’ claims. The Court of Appeal in a unanimous decision dismissed the appeal. History of the Case:
Court of Appeal:
Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Lagos Names of Justices that sat on the appeal: Amina Adamu Augie, J.C.A. (Presided); Joseph Shagbaor Ikyegh, J.C.A.; Chinwe Eugenia Iyizoba, J.C.A. (Read the Leading Judgment)
Appeal No.: CA/L/314/06
Date of Judgment: Friday, 10th May 2013 Names of Counsel: Okafor C.I.A., Esq. -for the AppeLLant Prince A.A. Mumuni – for the Respondents
High Court:
Name of the High Court: High Court of Lagos State
Name of the Judge: Abiru, J. Suit No.: ID/328/85
Date of Judgment: Thursday, 2nd February 2006 Counsel:
Okafor C.I.A., Esq. – for
the Appellant Prince A.A. Mumuni – for the Respondents IYIZOBA, J.C .A. (Delivering the Leading Judgment): This  appeal is against the judgment of Abiru J. of the High Court of Lagos State dated the 2nd day of February 2006 in suit No. ID/328/85. The appellant herein was the defendant in the suit whereas the respondents were the plaintiffs. Briefly, the case of the plaintiffs as deduced from their amended statement of claim is that by virtue of an indenture of conveyance dated the  day of March, 1956 the Ikate Chieftaincy family sold and conveyed about 67 acres of land at Ikate to Chief Joseph A. Ajao for an Estate in fee simple and thereafter put him into exclusive possession thereof. The plaintiffs averred that around 1961, Chief Joseph Ajao sold the land in dispute to their father, Fasasi Okunola Onanuga and immediately put him into possession but without executing any formal deed of conveyance. The executors and executrix of the will of the said Chief Joseph Ajao eventually by an indenture of conveyance dated the 22nd day of August, 1964 sold and conveyed the land to their father, thereby confirming his ownership and possession of the land. They claimed to have been in possession since then until the defendant trespassed on the land, drove away their tenants and started erecting a building on the land. Consequently they took out a writ of summons against the defendant wherein they claimed as follows:
1. A declaration that they, as against the defendant are the persons entitled in the capacity in which they have sued to apply for and obtain a Certificate of Occupancy in respect of the land and premises situate at and known as Plot No. 98 in Ajao Layout, Ikate near Yaba in the Lagos State of Nigeria which land is shown and delineated on the plan accompanying an Indenture of Conveyance dated the 28th day of October, 1964 and registered as No. 36 at page 36 in Volume 798 of the Register of Deeds kept in the Lands Registry Office, Lagos.
2. N2000.00 (Two thousand naira only) being damages for trespass committed by the said defendant on the said land by unlawfully breaking and entering upon the said land without the consent and/or permission of the plaintiffs.
3. A perpetual injunction restraining the defendant his servants and/or agents from committing any further act or acts of trespass on the said land or any part of same.
The defendant in his amended statement of defence at pages 6-8 of the record of appeal denied the claims of the plaintiffs and traced his title to one Olaiya Coker whose title in turn is traced to Onikate Chieftaincy title, a rival family claiming ownership of the same land in Ikate. The defendant relying heavily on some Supreme Court judgments averred that the conveyance of 15th March 1956 to the predecessor of the plaintiffs’ father by the Ikate Chieftaincy family had been impugned and declared worthless thus leaving the plaintiffs with no valid conveyance to rely on.
In proof of their case, the plaintiffs called five witnesses while the defendant testified for himself and called no other witness. The learned trial Judge after hearing the parties’ witnesses and their counsel entered judgment for the plaintiffs granting all their claims.
Dissatisfied with the judgment, the defendant filed a notice of appeal on 14/2/05 containing three grounds of appeal. Counsel filed their briefs of argument which they relied on during the hearing.
Counsel for the appellant Okafor C.I.A. Esq out ofthe three grounds of appeal distilled one sole issue for determination as follows:
“Whether in the circumstances of this case, the plaintiffs in this matter indeed 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.”
Learned counsel for the respondents Olusola Martins Esq. in his brief of argument formulated three issues for determination. They are: Whether the Ikate Chieftaincy Family or Onikate Chieftaincy Family is the authentic group that represents Ikate Chieftaincy Family for the purpose of selling and giving good title to Itire Chieftaincy Family lands.
Whether Plot 98 in Ajao Layout at Ikate is the same as or different from Plot no. 98 in Plan No. ASA1165/51 prepared by one E.O Litan (Licensed Surveyor) and is now known as No. 129, Olaitan Odularu Street, Ikate.
Whether the plaintiffs (now respondents) have successfully discharged the onus of proving their title .to the said piece of land now known as No. 129, Olaitan Odularu Street, Ikate.
All the issues overlap and would be considered together. Appellants’ Arguments:
Learned counsel for the appellant after quoting copiously B Re from the judgment of the learned trial Judge, the judgments of the
Supreme Court in Bello v. Eweka (1981) 1 SC 10 1; Woluchem v. Gudi  (1981) 5 SC 291, submitted that the trial Judge misdirected himself on the interpretation of the real purport of legal burden of proof on the plaintiff in a declaration of title suit. Counsel contended that the learned trial Judge erred in holding that the plaintiffs discharged the legal burden on them of proving title to the property when the evidence adduced was fraught with all sorts of irregularities and half-truths and the source of their title non-existent. Counsel further argued that the court does not make declarations of right either on admissions or in default of pleadings but only if the court was satisfied by evidence adduced by the plaintiff. Learned counsel pointed out what he perceived as areas of weakness in the plaintiffs’ case thus:
“The plaintiffs’ claim for declaration of title to the land was predicated on a grant by conveyance for which they tendered exhibits PI, the plaintiffs’ Deed of Conveyance made to the plaintiffs’ father in 1964, exhibit P2, a certified true copy of terms of settlement which they claimed confirmed Chief Ajao’s title to Ikate Chieftaincy land and exhibit P9, a Deed of Conveyance dated 15th March 1956 and registered as No. 46 at page 46 in Volume 145-1b of the Register of Deeds on which exhibit PI is predicated on.”
Learned counsel 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. Learned counsel submitted that the lower court erred in holding that the above issue should not have been raised in the defendant’s counsel’s address because the issue is a material fact and that nowhere in the pleadings of the defendant did he plead or raise the issue. Counsel relying on Romaine v. Romaine
(1992) 4 NWLR (Pt. 238) 650 submitted that mere production of a valid instrument of grant is not enough and that it is incumbent the judgment of the lower court and award the land in dispute to the appellant who has a better and unimpeachable title to the land. Respondents’ Arguments:
Learned counsel for the respondents in his brief after referring to certain paragraphs of the amended statement of claim submitted that the suit was fought on the basis that the land belonged to either !kate Chieftaincy family or Onikate Chieftaincy family and whether the land the subject matter of the suit fell within the large parcel of land validly sold to Chief J .A. Ajao. Counsel submitted that the capacity of the executors of the will of Chief Ajao to sell the estate land was never in issue and so the non-production of the will or the probate of Chief Ajao’s estate is not relevant to the issues at stake.
Counsel argued that if the defendant had considered the capacity of the executors to execute the will relevant, he should have pleaded same in order to put the plaintiff on notice. Appellant’s Reply:
In reply to respondent’s argument on issue 1, whether the Ikate Chieftaincy Family or Onikate Chieftaincy Family is the authentic group that represents the family for purpose of selling and giving good title to Itire Chieftaincy Family lands, counsel submitted that the parties are in agreement that they derived their title from the same family. The family has now split into two as a result of dispute. One is known as Ikate chieftaincy family while the other is known as Onikate chieftaincy family. Contrary to the contention of the respondents’ counsel submitted that there are numerous decided cases where courts have 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 executed, 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.