Must Testator Mention Assets In Will? (11I)

The respondents had led
evidence of how the land was founded and first settled upon and how the ownership descended down the years to the Ikate family. They led evidence of how the Ikate family sold a large parcel of the land including the land in dispute to Chief Ajao by a Deed of Conveyance, and of how Chief Ajao laid out the land into plots and sold the land in dispute to their father in 1961 and put him in possession without executing Deed of Conveyance. They led evidence of how the Ikate family confirmed the ownership of the large parcel of land including the land in dispute by Chief Ajao in suit No IK1163/65 and how the executors of late Chief Ajao executed a Deed of Conveyance formally conveying the land in dispute to their father and how their  father maintained possession of the land until his death in 1980 and that on the death of their father, they inherited the land and exercised acts of possession until the appellant trespassed into the land in 1984. On the genuineness and validity of exhibit PI, the conveyance by Chief Ajao’s executors in favour of the respondents, the learned trial Judge correctly found that the document was a certified true copy of the Deed of Conveyance duly registered at the Lands Registry in Lagos and that the registration particulars were duly reflected on it. That naturally raised the presumption under  section 114 of the Evidence Act that the document was genuine. These issues were not contested by the appellant in his pleadings. The only concern of the appellant which he thought was the clincher was that exhibit PI was predicated on a deed of conveyance which had been declared worthless by the Supreme Court. He was so certain that he had “closed the deal” on this contention that he chose to put all his eggs in that one basket. For that reason he did not traverse most of the averments in the amended statement of claim he ought to have traversed and he did not call witnesses to lead evidence of facts averred in his own amended statement of defence.
On the question of the capacity and authority of the grantees of exhibit PI to make the grant, the respondents led evidence that the grantees were the executors and personal representatives of Chief  Ajao who were empowered by exhibit P10 to manage the estate and the question of their capacity was not contested by the appellant in his pleadings and evidence. On the issue of due execution of exhibit PI, as again correctly found by the learned trial Judge the document carried on its face indications that it was signed by the grantees added to the fact that the document was made on 28/1 0/64 and was over twenty years old on the date it was given in evidence and so enjoyed the presumption of due execution provided for under Section 123 of the Evidence Act. See Obawole v. Williams (1996) 10 NWLR (Pt.477) 146; Adekuro v. Ogunniya (2000) 3 NWLR (Pt. , 647) 151 at 164 A-D.
Further, 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. See Jules v. Ajani (1980) 5-7 SC 96; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 at 154; Odubeko v. Fowler (1993) 7  NWLR (Pt. 308) 637. The learned trial Judge considered all these factors and came to the conclusion that the respondents discharged the onus on them to prove their entitlement to the land in dispute. His Lordship certainly did not as argued by learned counsel for the appellant misdirect himself on the real purport of the legal burden of proof in land cases. On the contrary, the judgment showed that the learned trial Judge understands fully the incidents of burden of proof in land matters. On being satisfied that the respondents discharged the burden, the learned trial Judge then turned to the case of the appellant as the evidential burden now shifted on him to establish his case. The appellant testified for himself and called no other witness. This is how the learned trial Judge dealt with his evidence:
“The defendant testified that he bought the land in 1984 from one Olaiya Coker and immediately took possession of it and built thereon and that before he bought the land he conducted a search at the Lands Registry to confirm that Olaiya Coker was the registered owner and he obtained a certified true copy of his Deed of Conveyance admitted as exhibit Dl. He gave evidence that his purchase of the land was evidenced by a Deed of Transfer admitted as exhibit D2. Exhibit Dl showed that the said Olaiya Coker from whom the defendant bought the land in dispute purchased the land from the head and principal members of the Onikate Family and West African Estate Development Corporation Limited, the attorneys of the Onikate family. The plaintiffs challenged the rights of the Onikate family, their attorneys and of Olaiya Coker to the land in dispute in their reply to the defendant’s pleadings. The onus was thus on the defendant to lead evidence in support of the rights of these persons to the land in dispute because the law is that in an action for declaration of title to land, if a party predicates his     title on sale or grant by a particular person, family or community he is under a duty to plead and prove not only the sale or grant of the land to him but also the origin of the title of the particular person, family or community that sold or granted the land to him unless that title had been admitted. See Alade v. Awo (1975) 4 SC 215; Piaro v. Tenalo (1976) 12 SC 31; Elias Omo-Bare (1982) 5 SC 25; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Bamgbose v. Olusoga (1996) 4 NWLR (Pt. 444) 520, Akpadiaha v. Owo (2000) 8 NWLR (Pt. 669) 439 and Olasa v. Ezimuo (2003) 17 NWLR (Pt.848) 129 and the proof of the origin of the title of the particular person, family or community must be by credible evidence. In Bamgboye v. Olusoga (supra) Belgore, JSC said thus at page 531: ‘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 this must be done through clear  pleadings and evidence in support of genealogy  as continuous exclusive possession. Without this stating just simply that a grant is from a family without more may not be enough.’
See also the cases of Barngbose v. Oshoko (1988) 2 NWLR (Pt.78) 509 and Lawson v. Afani Construction Co. (Nig.) Ltd. (2002) 2 NWLR (Pt. 752) 585. The
defendant pleaded the rights of the Onikate family and their attorneys to the land in dispute but he led no piece of evidence in support of the averments and the averments would be deemed abandoned. See Glasa v. Ezimuo (supra).”
At page 7 of the appellant’s brief of argument, learned counsel set out the case of the defendant. He stated that the land in dispute formed part of a large tract of land belonging to the Onikate family through their ancestor Akodi who first settled on the tract of land over 200 years ago and exercised all acts of ownership thereon. He pleaded that the title of the Onikate Family over Ikate land was confirmed in judgments delivered in five suits and that by an instrument dated 18/11/67 duly registered in the Lands Registry, the Onikate family appointed West African Estate Development Corporation Limited its attorney in respect of the land. The defendant further pleaded that the land in dispute was conveyed to his predecessor-in-title, one Olaiya Coker by a Deed of Conveyance dated 12/7/76 and duly registered and that Olaiya was put in possession of the land whereupon he exercised all rights of ownership thereon until he transferred his interest to him. All these are averments in the amended statement of defence. The defendant testified and called no other witness. Evidence was therefore not led on the averments above. The learned trial Judge was right that where no evidence is led in respect of pleaded facts, the facts are deemed abandoned. N.l.M.V. Ltd. v. F.BN. Plc (2009) 16 NWLR (Pt.1167) 411 at 437. It is an elementary principle of law that failure to lead evidence on pleaded facts is fatal to a claimant’s case. The appellant, it appears regarded his pleadings as evidence. This can never be for once pleadings are not supported by evidence, they are deemed abandoned. Okolie v. Marinho (2006) 15 LR (Pt. 1002).
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 off and 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. In his brief, learned counsel for the appellant concluded by urging the court to set aside the judgment of the lower court and in its place award the land in dispute to the appellant who has a better and unimpeachable title to the land. I had to go back to the processes filed to be sure that the appellant did not file a counter- claim because in the absence of such counter claim, the question of awarding the land in dispute to the appellant simply does not arise.

R-L: Governor Peter Obi of Anambra State, discussing with Deputy Inspector-General of Police, Mr Kachi Udoji, Deputy Inspector-General of Police, Mr Philemon Leha and Anambra State Commissioner of Police, Mr Bala Nasarawa, during his visit to Holy Ghost Adoration Ministry Centre, Uke, Anambra State where there was a stampede, recently.
Photo: NAN