JACOB LADIPO.V. SIL CHEMICAL LIMITED & 3 ORS
April 4, 2025BARRISTER BUSARI MUSE OLOOKAN & ANOR V FEDERAL ROAD SAFETY COMMISSION (FRSC) & ORS
April 4, 2025Legalpedia Citation: (2019) Legalpedia (CA) 13117
In the Court of Appeal
HOLDEN AT LAGOS
Wed May 22, 2019
Suit Number: CA/L/577/2015
CORAM
PARTIES
MR. KEN UCHE ORAKA APPELLANTS
1. MRS LIZZY ORAKA2. FIRST BANK OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant is married to the 1st Respondent and they have children. Both parties have resided in the United States, Canada and Nigeria within the period of the marriage and acquired properties together. They both formed a Company, named Ken Ashley Limited and were directors of the said Company. They later started having marital problems, which lead to a separation, snowed balled into claims and counter claims, allegations and counter allegations and all these led to the Appellant’s arrest, and he was subsequently charged to court. To get the matter out of Court, the Appellant alleged that on the 18th of April, 2011 he was made to sign an undertaking, in which he promised to sign a Memorandum of Understanding (MOU) and which was eventually signed on 1st of May, 2011. Following some disagreements over the MOU, a second MOU was executed between the parties on 19th of June, 2011. The whole essence of these MOU was for the sharing of the properties acquired by the Appellant and 1st Respondent during the marriage, which as shown in the evidence, is still subsisting though the Appellant claimed that there has been a divorce, which was not proven. The Appellant later instituted an action at the High Court of Lagos State, wherein he claimed a declaration that both MOUs were fraudulently obtained, hence should be declared null and void and he also sought an order declaring him the absolute owner of all the properties mentioned therein, thereby setting aside all documents challenging his exclusive ownership of the properties, amongst other reliefs. The 1st Respondent in reaction brought a counter-claim to the effect that the MOUs are valid and that the court should hold that she is entitled to the sharing of the properties as they were acquired together with the proceeds from the Company they formed. At the end of proceedings, the Lower Court delivered its judgment wherein it partly allowed the case of the Appellant and partly allowed the counter claim of the 1st Respondent. Both parties are dissatisfied with the judgment; hence an appeal to this Court. The Appellant filed a notice of appeal which was later amended by the subsequent notice of appeal. The 1st Respondent on the other hand, filed a Cross- Appeal.
HELD
Appeal Succeeds in part, Cross Appeal Succeeds In Part
ISSUES
Whether the Memorandum of understanding that is, MOU 1 & MOU 2(Exhibits A5 & A6) are valid and enforceable in law against all the parties in this matter. Whether the Appellant proved his exclusive title to the properties and whether the Cross Appellant proved her title to the car and just ownership of the properties owned by the MOUs. Whether the lower court was right in preferring the date in Exhibit D9 to the dates on the MOUs. Whether the decision of the lower court is in line with the evidence before the court and whether the court properly evaluated the evidence before it. Whether MOU 2 is a document that can transfer title to the parties in the suit.
RATIONES DECIDENDI
OWNERSHIP OF PROPERTY – WHETHER A PERSON CAN GIVE WHAT HE DOES HAVE
“The law is clear that a person cannot give what he does not have. See Adelaja vs. Fanoiki &Anor (1990) 3 SC 130; Mohammed Oladapo Ojengbede vs. M.O. Esan (Loja- Oke) &Anor NSCQLR Vol. 8 (2001) 461.-
OWNERSHIP TO LAND – WAYS OF PROVING TITLE OR OWNERSHIP TO LAND
“It is trite that a person who claims ownership of a property or land has a duty in law to prove such title by any of the five ways of proving title. See Owhonda vs. Ekpechi (2003) 17 NWLR (Pt.849) 326; Kaburu Pada vs.Woya Galadima & Anor ELC (2017) 2386 SC 1. In Aigbobahi & Ors vs. Aifuwa & Ors (2006)2 FWLR (Pt.308) 2024 the apex court per Onnoghen, JSC ( as he then was) held:
“The law recognizes five distinct ways in which title to or ownership of land in Nigeria could be proved as stated by the Supreme Court in the case of Idundun v. Okumagba (1976) 9-10 SC 227, These 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 andpositive 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 owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
In an action for declaration of title to land, as in the instant case, a plaintiff need not prove all the five ways. Where the plaintiff’s case is based on traditional evidence of ownership as the legal basis of his claim, his duty is limited to proving such traditional title and no more. On the other hand, if a plaintiff’s claim relies on conveyance as the legal basis of ownership his duty is, simply to produce the documents of the title or the title deeds. The same thing applies where he claims through any of the other remaining three ways.” –
ISSUES FOR DETERMINATION – POWER OF THE COURT TO FORMULATE ITS OWN ISSUES FOR DETERMINATION
“The law however permits a court to formulate its own issues for determination provided those issues are formulated from the grounds of appeal. See Emmanuel Ikeaja Mpama vs. First Bank of Nig. NSCQR Vol. 53 2013 page 190; UBA Plc vs. Salman (2018) LPELR-45698 (CA); FRN vs. Borisade (2015) LPELR-24301 (SC)”. –
AGREEMENT OF PARTIES – INSTANCES WHEN AN AGREEMENT ENTERED INTO BY PARTIES WILL BE BINDING AND NOT BINDING ON THEM
“Agreement entered into between parties are binding where the agreement is made voluntarily without any compulsion, misrepresentation and fraud. The reverse is also correct; an agreement entered between parties will not be binding and enforceable when the agreement is made under duress, fraud and misrepresentation. See: Osun State Govt. vs. Dalami Nig. Ltd NASCQR Vol. 29 2007 page 765; A.G. Rivers vs. A.G. Akwa-Ibom & Ors NSCQR Vol. 45 2011 page 1041; Aina & Anor vs. Ariyo & Anor (2017) LPELR-42888(CA).-
DOCUMENT – WHETHER A DOCUMENT SIGNED UNDER DURESS CAN BE ENFORCED AS A VALID ADMISSION
“In Santrade Investment Ltd &Ors vs. Tino Electronics (Nig.) Ltd (2010) LPELR-4931 (CA), this court per Saulawa, JCA at page 25-26 held:
“ Thus the purported agreement which was drafted by the Appellants’ counsel in consequence of the 2nd Appellant’s arrest and detention at the CID Force HDS, Alagbon Close, Ikoyi, Lagos, is not capable of being considered and enforced as a valid admission, it is most undoubtedly, a voidable document, See Omman VS. Ekpe (supra) at 373 para H; 374 paras A – B, wherein Pats-Acholonu, JCA (of blessed memory, as he then was) aptly lamented thus:
“It is most unfortunate that our citizens now use the army and police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any document signed in the presence of the police and relating to a civil claim shall be viewed with suspect particularly to the persons against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract what (sic) with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the police to whom a purely civil matter is brought to its attention to enforce or put the fear of God into the other side will certainly not be enforced as there is no consensus and is voidable. ” –
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROVING THAT A DOCUMENT WAS MADE UNDER DURESS
“The Appellant who is alleging that MOU 1 was made under duress, fraud and misrepresentation has the obligation in law to lead credible evidence to prove same. See T. Ejuetami vs. Mrs. Benedicta O. Olaiya NSCQLR Vol. 8 (2001) 385.-
AMENDMENT– IMPLICATION OF AN AMENDED DOCUMENT
“The position of the law on repealed statute is clear. The later statute overrules the former statute. This is the same with the amendment of court processes. For instance, like in this case a notice of appeal that has been amended has no life whatsoever. In the circumstance, the extant or relevant appeal is the amended notice of appeal. See: Obidi vs. Chinedu & Ors(2017) LPELR-42749 (CA). The implication of this is that on the execution of MOU 2, MOU 1 is extinct and cannot be looked upon for any future purpose just like a repealed law. See: Legal Practitioners Ordinance vs. Edewor (1968) ANLR 224”. –
PRINCIPLE OF ESTOPPEL –WHETHER AN AGREEMENT CAN BE BINDING ON A PARTY ON THE PRINCIPLES OF ESTOPPEL
“The Appellant who willingly executed MOU 2 cannot deny the binding force of MOU 2 on him. It is not binding as a contract but on the principles of estoppel since he has made a promise of intention to enter into a contract. See A. G. Bendel State vs. A. G. Federation (1981)10 SC 1; Lawal vs. UBN Plc & Ors (1995)2 NWLR (PT. 378) 407.The MOU is not a contract or an agreement in the sense of the word but rather an intention to enter into a contract later”.-
CONTRACT- BASIS FOR THE VALIDITY OF CONTRACT
“I agree with the Appellant that a contract is only valid when all the ingredients that make up a valid contract are present. One of such ingredient is consideration which the law says must not necessarily be sufficient. See Chabasaya vs. Anwasi(2010) 10 NWLR (Pt.1201) 163; BFI Group Corporation vs. B.P.E. (2012) 7 SC (Pt.III) 1’’.-
MEMORANDUM OF UNDERSTANDING –WHETHER A MEMORANDUM OF UNDERSTANDING IS CONTRACTUAL
“The point must be made that it is not all agreements that are contracts. Some agreements do not require consideration as they are not contracts. A Memorandum of Understanding falls into such categories as it is an understanding between parties on the understanding of been bound by the terms therein. From all intent and purposes, a Memorandum of Understanding does not have the binding force of a contract as it is not contractual but rather an intention to enter into a contract. In Safe trust Savings and loan Ltd vs. Gov. Ekiti State &Ors (2014) LPELR-22778 (CA),Galinje JCA ( as he then was) at pages 13-14 this court held:
“The Appellant has admitted entering into an agreement with the 2nd Respondent, an agreement which he said is a Memorandum of Understanding. As far as I am concerned, Memorandum of Understanding is not an agreement yet. Blacks Law Dictionary, 6th Edition defines Memorandum as an informal record, note or instrument embodying something that the parties desire to fix in memory by the aid of written evidence, or that is to serve as the basis of a future formal contract or deed. In Kerner v. Hughes Tool Co. 128 CAL RPTR.839 at 845, it was stated that Memorandum implies something less than a complete contract and that the Memorandum functions only as evidence of the contract and need not contain every term, so that a letter may be a sufficient Memorandum to take a case out of frauds.” –
MEMORANDUM OF UNDERSTANDING – EXTENT OF THE BINDING EFFECT OF A MEMORANDUM OF UNDERSTANDING
“MOU 1 & 2 has no contractual binding force on the parties or indeed the court’s powers to enforce those documents as a binding contract is limited. The binding effect of an MOU is to the extent of the intention to enter into an agreement but not binding as an agreement or contract”.
MEMORANDUM OF UNDERSTANDING – DEFINITION AND CONCEPT OF A MEMORANDUM OF UNDERSTANDING
“In BPS Construction &Engineering Co Ltd vs. FCDA (2017) LPELR-42516 (SC),Kekere-Ekun, JSC 20-21 held:
“For the definition of “memorandum of understanding”, in Black’s Law Dictionary, 8th edition at page 1006 , the reader is directed to the definition of “Letter of intent, which is found at page 924 thereof and states thus: “Letter of intent: A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement.
– A letter of intent is not meant to be binding and does not hinder the parties from bargaining with a third party. Business people typically mean not to be bound by a letter of intent and Courts ordinarily do not enforce one; but Courts occasionally find that a commitment has been made”
From the above definition, it is clear that a memorandum of understanding or letter of intent, merely sets down in writing what the parties intend will eventually form the basis of a formal contract between them. It speaks to the future happening of a more formal relationship between the parties and the steps each party needs to take to bring that intention to reality. From the definition given above, notwithstanding the signing of a memorandum of understanding, the parties thereto are not precluded from entering into negotiations with a third party on the same subject matter.”
This court per Okoro, JCA (as he then was) held the same position in Star Finance & Properties Ltd & Anor vs. NDIC (2012) 10 NWLR (pt 1309) 522 when the court held as follows:
“In several human relations, parties intending to enter into a contract or an agreement may first declare that intention in a document which they wish to guide them subsequently when they are ready to sign a legally binding contract or an agreement. Such a document expresses the preliminary understanding of parties who plan to enter into a contract or some other agreement. The contents of such a document serves to fix in memory the desire of the parties which is to serve as the basis for a future formal contract of deed. It is my understanding that such a document is usually referred to as Memorandum of Understanding, ‘MOU’ for short. It is not the real agreement but a document guiding the future agreement. Its status is something less than a complete contract. See Black’s Law Dictionary with pronunciations, 6th Edition (Continual Edition 1891-1991) P.984. Black’s Law Dictionary (Seventh Edition) at page998 defines Memorandum of Understanding thus:”See Letter of Intent”. On page 916 thereof, the said Letter of Intent equated with Memorandum of Understanding states: -“A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement; a non committal writing preliminary to a contract …”As I had expressed earlier, a Memorandum of Understanding cannot be anything more than a document which contains the preliminary understanding of parties willing to enter into a contract or an agreement subsequently based on those conditions contained in that document. That is my own understanding of the term “Memorandum of understanding”.- –
UNSIGNED DOCUMENT– STATUS OF AN UNSIGNED DOCUMENT
“The law on unsigned document is settled. Such a document is inadmissible and unenforceable. In Omega Bank Nig. Ltd plc vs. O. B.C. Ltd (2005) SC (Pt.1) 49, the apex court held:
“A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious.”
See: Rabiu Alfa Zakari vs. Hon. (Alh.) Abdullahi Zakari EPR Vol. 6 page 773. –
TITLE TO LAND- WAYS OF PROVING TITLE TO LAND
“A document that passes title to land is wider and broader in application and consequence. When the issue of title to land is in issue, once a court holds that the title belongs to a particular person, the right is applicable against every other person except anyone else who has a better title. Bearing that in mind, it is clear to me that an MOU cannot transfer title of land to anyone whose name is mentioned therein. The law on ownership of land and how to prove same is settled over the years. There are five ways by which title can be proved. In Alhaji Matanmi & Anor vs. Victoria Dada NSCQR vol. 53 2013 page 353, the apex court held:
“It is now beyond argument, as it has been consistently held by this court without any equivocation that there are five ways of proving title to land. A claimant may rely on more than one mode of proving title if so desired.
However, one mode of proving title will suffice, if properly established to the satisfaction of the court. The five ways of proving title to land are:-
(a) Traditional evidence.
(b) Production of document of title.
(c) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
(d) Acts of long possession and enjoyment of the land.
(e) By proof of possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute.”
A party is not bound to prove all five but any of the ways of proving title will be sufficient. –
MEMORANDUM OF UNDERSTANDING – WHETHER A MEMORANDUM OF UNDERSTANDING QUALIFIES AS AN INSTRUMENT UNDER THE LAND INSTRUMENT REGISTRATION LAW
“Clearly a Memorandum of Understanding is not such a document as in all sense of a title document it cannot pass. The issue here is therefore, whether the Land Instrument Registration Law is applicable, in other words, can the MOU qualify as an instrument under the Land Instrument Registration Law. This is therefore the appropriate place to look at the provisions of the Land Instrument Registration Law. The relevant provision here is Section 2 which defines what document will amount to an instrument under the law. Section 2 of the Land Instrument Registration Law provides thus;
“Instrument means a document affecting land in lagos state whereby one party (hereinafter called the grantor) confers, transfers, limits, charges, or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in the Lagos State, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
The apex court in Rapheal Waka Ogbimi vs. Niger Construction Ltd NSCQR Vol 26 2006 page 407 @ 411-412 per Onnoghen, JSC (as he then was) answered that question when he held:
“There is no doubt that exhibit B, is a document in the form of a letter. A cursory look at exhibit B clearly shows that it purports to transfer and/or confer an interest in the piece of land described therein on or to the appellant. Exhibit B was written for and on behalf of Amukpe Community, the original owners of the land in dispute who thereby qualify to be described as grantors while the appellant, on whom the interest is conferred or transferred to, is clearly the grantee. By the transfer or conferment of the said interest, the Amukpe Community thereby extinguished its interest in the land in favour of the appellant. I therefore agree with the conclusion of the lower court that exhibit “B””purports to transfer the land in dispute to the respondent by Amukpe Community. Exhibit “B” is therefore an instrument as defined under Section 2 of the Land Instrument Registration, Law Cap 81, Laws of Bendel State of Nigeria 1976 – applicable in Delta and Edo States.”
I hold the further view that what is material in interpreting exhibit “B” for the purpose of the applicable law is not the form the document was written but its contents. There is no doubt that exhibit B was written as a letter addressed to the appellant but its contents reveal it as an instrument affecting land and therefore subject to registration before it can be admissible in evidence in any proceedings.”-
LAND INSTRUMENT REGISTRATION LAW – THE EVIDENCE ACT TAKES PRECEDENCE OVER THE LAND INSTRUMENT REGISTRATION LAW
“The Supreme Court has held that the Land Instrument Registration Law which requires that all Land instrument must be registered is subject to the Evidence Act 2011 which is the main law on evidence. The Evidence Act 2011 being a federal law supersedes the Land Instrument law which is a State law. See: Moses Benjamin &Ors vs. Mr. Adokiye Kalio [2018] 15 NWLR (Pt.1641) 38”.-
FINDING OF FACTS –CIRCUMSTANCES WHERE AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS OF FACT OF A LOWER COURT
“It is the duty of any court in doing justice to evaluate the evidence before it and make a finding based on the evaluated evidence. An appellate court will not ordinarily interfere with the finding of facts of the lower court except if such finding is perverse and occasion a miscarriage of justice. See: Tyogbide Akulaku & Ors vs. Ikyume Yongo NSCQR Vol. 9 2002 page 470; EtowaEnang&Ors vs. Fidelis IkorAdu (1981) 12 SC 38; Cyprian Onwuama vs. Loius Ezeokoli NSCQR vol. 9 2002 page 233; Chidozie Anekwe vs. The State NSCQR Vol. 58 2014 page 452”.-
ESTOPPEL BY CONDUCT – PRINCIPLE OF ESTOPPEL BY CONDUCT
“Even though MOU 2 is not legally binding but based on the principle of estoppel by conduct there is some form of duty on the Appellant to honour the intention as disclosed in MOU2. In A.G. Rivers State vs. A.G. Akwa-Ibom state @ Anor (2011) 8 NWLR (Pt.1248) 31, the Supreme court held:
“The doctrine of estoppel by conduct, though a common law principle has been enacted into our body of laws as section 151 of the Evidence Act. It is in these terms: “when one person has, by his declaration, Act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief (a thing to be true and to act upon such belief), neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing”
Also, called estoppel in pais, this common law principle, which as shown above, has gained statutory acceptance in Nigeria, forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around and disclaim his act or omission. Both the common and statutory law do not permit this conduct; that is why section 151 of the evidence Act has used the emphathic phrase “neither he nor his representative in interest shall be allowed…” This principle was explained better in Ude vs. Osuji (1998)10 SCNJ 75 @ 22 thus: “The principle of estoppel by conduct is that one party has, by his words or conduct, made to the other his words or conduct, made to the other (sic) a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous, legal relations as if no such promise or assurance has been made by him. He must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe vs. Combe (1951)1 ALL ER & 69 @ 770” See also Buhari vs. INEC (2009) All FWLR (Part 459) 419@517” –
CASES CITED
None
STATUTES REFERRED TO
Criminal Code Law of Lagos State|Evidence Act, 2011.|Land Instrument Registration, Law Cap 81, Laws of Bendel State of Nigeria 1976 (applicable in Delta and Edo States).|Land Instruments Registration Law|
