MR. KEN UCHE ORAKA v. MRS LIZZY ORAKA & ANOR
(2019)LCN/13332(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/L/577/2015
RATIO
LAND LAW: THE DUTY TO SHOW EXCLUSIVE OWNERSHIP OF PROPERTY IS ON THE PERSON WHO CLAIMS OWNERSHIP
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.PER TOBI EBIOWEI, J.C.A.
LAND LAW: 5 WAYS OF PROVING TITLE OR OWNERSHIP TO LAND AND WHETHER THEY HAVE TO BE PROVEN CONJUCTIVELY
InAigbobahi & 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 and positive 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.PER TOBI EBIOWEI, J.C.A.
LAND LAW: DUTY OF THE PLAINTIFF WHEN HIS METHOD OF PROVING OWNERSHIP IS BY WAY OF TRADITIONAL EVIDENCE
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.PER TOBI EBIOWEI, J.C.A.
APPEAL: WHETHER THE COURT CAN FORMULATE ITS OWN ISSUES FOR DETERMINATION IN
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).PER TOBI EBIOWEI, J.C.A.
MEMORANDUM OF UNDERSTANDING: NATURE
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 Safetrust 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.PER TOBI EBIOWEI, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
MR. KEN UCHE ORAKA Appellant(s)
AND
1.MRS LIZZY ORAKA
2.FIRST BANK OF NIGERIA PLC Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. A. Oyebanji (Mrs.) of the High Court of Lagos State delivered on 27/3/15 wherein His lordship partly allowed the case of the Claimant (Now Appellant) and partly allowed the counter claim of the 1st Defendant/Counter Claimant (1st Respondent/Cross Appellant). Both parties are dissatisfied with the judgment. The Appellant extant notice of appeal is the amended notice filed on 21/6/16. The 1st Respondent filed a cross appeal on 30/03/15.
The Appellant is the Claimant in the lower Court. He is the husband of the 1st Respondent who was 1st Defendant in the lower Court. They got married in 1993. The relationship produced children. They lived together in the United State, Canada and Nigeria. Within the period of their marriage several properties were acquired. They were directors of their company Ken Ashley Limited which they formed together. There were marital problems between them. This is usually normal in most marriage but the scale of their problems got to a stage where both parties could not see themselves living together any
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more. The problem led to claims and counter claims, allegations and counter allegations. All these led to the Appellant?s arrest and subsequently been charged to Court. To eventually get the matter out of Court, it was alleged that the Appellant was made to make an undertaking on 18/4/11 to sign a Memorandum of Understanding (MOU). This letter of undertaking is Exhibit A14& A15 (found in pages 48 and 49 of the records). The product of Exhibit A14 is the first Memorandum of Understanding (referred to as MOU 1 or Exhibit A5). This was eventually signed on 1/5/11. It is in pages 122-127. Following some disagreements over MOU 1, a second MOU in pages 128-134 of the records was executed between the parties. This was made on 19/6/11. The purpose of the MOUs (Exhibit A14 & A15) was for the sharing of the properties acquired during the marriage, which by all intent and purposes as shown in the evidence, is still subsisting. This is in spite of the claim by the Appellant that there was a divorce. It is safe to so hold because DW2 a Court staff denied the existence of divorce proceedings.
The Appellant claim is that he did not sign the MOUs
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willingly and therefore they should be set aside. This is more so particularly when he claims that the properties were not jointly acquired but rather they are his personal properties. On the other hand, the 1st Respondent says the properties were jointly acquired and therefore she was entitled to some percentage of all the properties. Based on this different position held by both parties clearly showing there is no meeting ground, the Appellant instituted the action at the lower Court on 19/1/12 against the Respondents. The claim of the Appellant in the lower Court is basically to declare the first and second MOUs as fraudulent and so they are to be declared null and void. Consequent upon that, the Appellant also sought for an order that the properties mentioned therein belongs to him and therefore all documents challenging his exclusive ownership of the properties should be set aside. For completeness, I will reproduce the reliefs of the claimant in the lower Court.
1. An order of this Honourable Court nullifying the purported memorandum of understanding (Vol. 1 & 2) between the Claimant and the 1st Defendant as same is a sham and fraudulently
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procured by the 1st Defendant.
2. An order of this Honourable Court that the said Memorandum of Understanding 1 & 2, procured fraudulently by the 1st Defendant does not reflect an understanding freely entered into or consented to by the Claimant, it is therefore void and of no effect.
3. An order that all the following properties to wit:
(i) Two wings of Duplex at 19A, Ogidi Crescent, Lekki Residential Scheme 1, Lagos State known as Block 8, Plot 23, Lekki Peninsular Residential Scheme covered by Certificate of Occupancy registered as No. 95 page 95 vol. 1991A at the Lands Registry Alausa, Ikeja, Lagos State.
(ii) Two detached houses at Lekki-Epe Expressway, Lekki Scheme 1, known as Block 113, Plot 8, Lekki Peninsular Residential Scheme, covered by Certificate of Occupancy registered as No. 43 page 43 in volume 2003 of the Land Registry, Alausa, Ikeja, Lagos State
(iii) Two wings of duplex at 11, Adedamola Ojomo Street, Surulere, Lagos State covered by Certificate of Occupancy registered as No. MO 12939 of the Lands Registry, Alausa, Ikeja, Lagos State.
(iv) Three bedroom Terrance house known as Flat 6, Block B1 at zone 1
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Basketball Street (16th Street) Game Village, Abuja Federal Capital Territory of Nigeria.
(v) One Plot of land at 21, Ogidi Crescent Lekki Scheme 1, known as Block 8, Plot 24, Lekki Peninsular Residential Scheme covered by Certificate of Occupancy registered as No. 43 at page 43 in volume 1996AA of the Lands Registry, Alausa, Ikeja, Lagos State
Are properties bought solely by the Clamant and they remain property (sic) of the Claimant and no other person whatsoever and also entitled to statutory right of occupancy where applicable.
4. An order of this honourable Court that the 1st Defendant did not purchase these properties stated above jointly with the Claimant but that these properties were bought solely by the Claimant.
5. An order that the conduct of the 1st Defendant in trying to claim the property of the Claimant by subterfuge is criminal and fraudulent.
6. An order of this honourable Court setting aside all devices, deeds of assignment and any transfer made to the 1st Defendant pursuant to the fraudulent memorandum of understanding purportedly entered into by the claimant with the 1st Defendant.
?7. An order of this
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honourable Court restraining the 1st Defendant her allies, proxies and anybody claiming through her from claiming the properties of the Claimant as stated above and/or parading herself as joint owner or owner of these properties.
8. An order of perpetual injunction restraining the Defendants particularly the 2nd Defendant from releasing the title documents belonging to the Claimant which was deposited by the 1st Defendant at their Adeola Odeku Branch to the 1st Defendant as such documents do not belong to the 1st Defendant.
9. An order of perpetual injunction restraining the 1st Defendant from demanding or receiving from the 2nd Defendant any title document in respect of any property belonging to the Claimant as pleaded in the case either personally or through her agents and privies as such documents pertaining to the Claimant?s properties listed above doest not belong to her but to the Claimant.
10. An order of the honourable Court directing the 2nd Defendant to transfer/handover forthwith the entire Claimant?s documents fraudulently obtained by the 1st Defendant and deposited in the 2nd Defendant?s custody.
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11. N10,000,000.00 (Ten Million Naira) as general damages against the 1st Defendant.
12. Any other order as the Honourable Court may deem fit to make in the circumstances of the case.?
The 1st Respondent as 1st Defendant in the lower Court in addition to her defence also made counter claim against the Appellant. As expected, the counter claim as the name implies is apposite to the claim of the Appellant. In summary her counter claim is 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 together. It will not be out of place to reproduce the counter claim of the 1st Defendant (1st Respondent);
?1. A declaration that the memorandum of understanding dated the 1st day of May, 2011 and the 2nd memorandum of understanding dated the 19th day of June, 2011 between Mr. Ken Uche Oraka (Husband) and Mrs. Lizzy Oraka (Wife) executed respectively between the parties therein are valid and duly executed by the said parties therein.
2. An order of this honourable Court directing the
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Claimant/Defendant to the counter-claim to give full effect and compliance to the memorandum of understanding dated the 1st day of May 2011 and the 2nd memorandum of understanding dated the 19th day of June, 2011.
3. An order of perpetual injunction against the Claimant/Defendant to the counter-claim, his agents, servants, privies, other or any person acting with his authority restraining him from interfering, altering, taking control, dealing in, selling, alienating, occupying, leasing or in any manner dealing with the properties and interest of the Defendant/Counter-Claimant as stated and created under the Memorandum of Understanding dated the 19th day of June, 2011 to wit:
(a) Two wings of Duplex at 19A Ogidi Crescent, Lekki Scheme 1 Lagos State Known as Block 8 Plot 23 Lekki Peninsula Residential Scheme covered by Certificate of Occupancy registered as No. 95 at page 95 in Volume 1991A of the Lands Registry Alausa, Ikeja, Lagos State.
(b) Two detached houses at Lekki-Epe Expressway Lekki Scheme 1
