NNAMDI ASOMUGHA V. CLEMENT NWABUEZE
(2011)LCN/4481(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2011
CA/E/228/2008
RATIO
ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST RELATE TO THE GROUND OR GROUNDS OF APPEAL FILED
It is well settled practice in our appellate courts that, in any appeal, issues for determination must relate to the ground or grounds of appeal filed see Oniah v. Onvia (1989) 1 NWLR (Pt. 99) 514 at 529, and Western Steel Works Ltd. V. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284. Where the issues formulated for determination in an appeal is neither related to or can be distilled from each or all of the grounds of appeal, the issue is unarguable and is a fortiori incompetent and ought therefore to be struck out. See Ifediorah v. Umeh (1988) 2 NWLR (Pt. 74) 5. Omagbemi v. Guinness (Nig) Ltd (1995) NWLR (Pt.377) 258 at 268. PER MOHAMMED L. TSAMIYA, JCA
FORGERY: STANDARD OF PROOF REQUIRED TO PROVE FORGERY
Forgery being a crime must be proved beyond reasonable doubt. See Abiodun Adelaja v. Yesuf Alade (1999) 6 NWLR (pt.608) 554 at 557. So also fraud. The standard of proof with respect thereof is even more demanding because the onus is on he who alleges a crime and to prove it beyond reasonable doubt by necessary evidence. See Abiodun Adelaja v. Yesuf Alade (supra), and section 135 of the evidence Act. PER MOHAMMED L. TSAMIYA, JCA
FORGERY: WHAT THE WORD “FORGERY” ENTAILS
Forgery is the making of a false document in order that it may be used as genuine see Words and Phrases legally defined, vol.2 p.272. PER MOHAMMED L. TSAMIYA, JCA
FORGERY: WHEN IS A DOCUMENT SAID TO BE FORGED
…a document is forged if the whole or any material part thereof purports to be made by or on behalf of a person who did not make it nor authorizes its making. See Words and Phrases legally defined (supra). PER MOHAMMED L. TSAMIYA, JCA
CONTRADICTION IN EVIDENCE: WHEN CAN IT BE SAID THAT PIECES OF EVIDENCE CONTRADICT ONE ANOTHER
It is important to note that in law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in details between them. Two pieces of evidence contradict one another when they are by themselves in consistent. See Idiok v. State (2006) 12 NWLR (Pt. 993) 21 par. G-A. PER MOHAMMED L. TSAMIYA, JCA
CONTRADICTION IN THE EVIDENCE: CIRCUMSTANCES UNDER WHICH CONTRADICTION IN THE EVIDENCE OF A DEFENDANT WILL BE MATERIAL IN THE DETERMINATION OF THE CASE
It is also to note that contradiction in the evidence of a defendant (respondent) who by the pleading has not the initial burden to prove his case can only be materials in the determination of the case if the plaintiff (appellant) has in the first place proved his case. Where a plaintiff (appellant) has not proved his case, contradiction in the evidence of the defendant (respondent) will not avail or help the plaintiff (appellant) in sustaining his claim. See Amede v. U.B.A. (2008) NWLR (Pt.1090) 551 at 557. PER MOHAMMED L. TSAMIYA, JCA
JUSTICES
MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
NNAMDI ASOMUGHA Appellant(s)
AND
CLEMENT NWABUEZE Respondent(s)
MOHAMMED L. TSAMIYA, JCA (Delivering the leading Judgment): This is an appeal by the plaintiff (herein referred to as the appellant) against the judgment of Anambra State High Court (herein referred to as the trial court) sitting in Onitsha Judicial Division, delivered on 26th February, 2008, dismissing the appellant’s case against the defendant (herein referred to as the respondent). The appellant instituted an action in the trial court against the respondent, claiming the sum of Ten Million Naira (N10 million) damages for trespass, and injunction restraining the respondent, his agents, and/or privies from further trespass on the land in dispute which is verged purple on the appellant’s plan No. SSC/AN/D66/2006. In a nutshell, the case for the appellant according to statement of claim and evidence is that the land in dispute was one-half of a piece or parcel of land called plot 1284 Akpaka Forest Layout, Onitsha. That the said Plot 1284 along with other plots was the compensatory plots granted to the original owners of the said Akpaka Forest layout by the Anambra State government, namely, the Umuosuma Family of Umudei village Onitsha. That the appellant’s family was one of the original owners and he, (the appellant) derived his interest over the said plot 1284 through his family. Appellant’s disputed plan, admitted in evidence as Exh. P1. The respondent agreed that plot 1284 Akpaka Forest Layout, Onitsha, a long with other plots stated by the appellant, were the compensatory plots given to the original owners of Akpaka Forest Layout by the State government.
According to the respondent, the land in dispute which he is claiming is a plot of land outside the area granted to the said Umuosume family of Umudei Village Onitsha. (Original land owners of Forestry Reserve as compensatory plots,) and is the plot of land called Plot 1284B Akpaka Forest Layout Onitsha. That the said plot 1284B was a direct allocation by the Anambra State government to respondent’s vendor one Japheth Ngobiliwho in turn sold same to the respondent. The respondent’s documents of title were tendered and received in evidence.
In their efforts to prove their respective case, the parties called witnesses and presented some documents for the consideration of the trial court. While the appellant tendered in evidence, particularly. Exhibits p1, p2, p5 and p6, the respondent on the other hand tendered, Exhibits D1- D4 and D6.
At the end of the trial after submission of written addresses by the learned counsel to the parties, the learned trial judge in his judgment dismisses all the reliefs claimed by the appellant.
Part of his judgment at page 155 of the record this appeal reads:
I feel, therefore, constrained to hold, most humbly, that the case of the defendant (respondent) out weighs that of the plaintiff (appellant) in the imaginary balance. Consequently, I find this suit to be lucking in merit and it is hereby dismissed.
The appellant who was not happy with this judgment of the trial court appealed to this court against it.
In this appeal, five (5) grounds of Appeal were filed on behalf of the appellant by his counsel. Briefs were filed and served by both parties. Two issues for determination were identified in the appellant’s brief. They are:
1. Whether the trial courts evaluate or properly evaluate the evidence before it as to the land in dispute in this case (grounds 1, 2 and 5)
2. Whether the trial court was right in preferring the evidence of the defence when defence witnesses contradicted themselves or were grossly discredited under cross-examination and most of their exhibits shown to be lanced with fraud.
The respondent’s brief on the other hand had identified for consideration three (3) issues out of which issues 2 and 3 thereof identical with issues 1 and 2 of the appellant’s in this appeal. The issues read as follows:
1. Whether the learned trial judge was right in holding that the land which the appellant is claiming to be one-half of plots 1284 is not one-half of plot 1284 but plot 1284B which is among the plots the Government carved out of the surplus land between plot 1284 – a border plot and the Nkisi River.
2. Whether the trial judge was right when he held that the appellant did not prove the allegation of forgery of Exhibits D3 and D4 beyond reasonable doubt as required by law.
3. Whether the trial court evaluates or properly evaluates the evidence before it.
The appellant had argued in his reply brief that issue No. 1 on the respondent’s issues for determination, is erroneous and grossly misconceived on the grounds that firstly, it does not flow from the grounds of appeal, secondly, the trial court did not making express finding to that effect and thirdly, no express finding that the land in dispute is plot 1284B Akpaka Forest Layout, Onitsha. In fact, learned counsel for the appellant in their appellant’s brief of argument married to the issues he identified to his grounds of appeal as follows:
Issue 1 to grounds 1, 2 and 5.
Issue 2 to grounds 3 and 4.
It seems to me that the appellant’s argument is sound. It is clear from the arguments advanced in the appellant’s brief, however, that the issue of Whether the learned trial judge was right in holding that the land which the appellant is claiming to be one-half of plot 1284 is not one-half of plot 1284 but plot 12848 which is among the plots the government carved out of the surplus land between Plot 1284 – a border plot and the Nkisi River, has no relation, whatsoever, to any ground of appeal.
It is well settled practice in our appellate courts that, in any appeal, issues for determination must relate to the ground or grounds of appeal filed see Oniah v. Onvia (1989) 1 NWLR (Pt. 99) 514 at 529, and Western Steel Works Ltd. V. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284. Where the issues formulated for determination in an appeal is neither related to or can be distilled from each or all of the grounds of appeal, the issue is unarguable and is a fortiori incompetent and ought therefore to be struck out. See Ifediorah v. Umeh (1988) 2 NWLR (Pt. 74) 5. Omagbemi v. Guinness (Nig) Ltd (1995) NWLR (Pt.377) 258 at 268.In the present case the first issue in the respondent’s brief is not related to either of the appellant’s grounds of appeal and is therefore in competent and liable to be struck out. Consequently, it is hereby struck out.
And all the arguments in the respondent’s brief under the said issue 1 are also struck out. The remaining issues 2 and 3 of the respondent are valid and competent. I shall now proceed to determine the appeal on its merits. Having gone through the grounds of appeal, issues from the parties, the record of appeal and the briefs filed by the parties, I would prefer to determine this appeal on the two issues identified by the appellant since they are identical to the respondent’s issues No.2 and 3.
The first issue for determination is whether the trial court evaluates or properly evaluates the evidence before it as to the land in dispute in this case. This issue is related to grounds 1, 2, and 5 of the grounds of appeal. The learned counsel for the appellant made some six basic complains under this issue. One of the complaint was the failure of the trial to recognize and appreciate the fact that it is the plaintiff s (appellant’s) claim that determines the cause of action, and not the defendant’s (respondent’s) answer. Learned counsel stressed the point that, he (the appellant) claimed interference by the respondent over his (appellant’s) one-half of plot 1284 Akpaka Forest Layout, Onitsha. Therefore, according to appellant, that plot is the land in dispute, and since the respondent has no counter-claim over any plot of land the land in dispute is that plot 1284 Akpaka Forest Layout, Onitsha, and this settled the question as to land in dispute. Learned counsel also submitted that the appellant further went extra miles to establish the land in dispute to be one-half of plots 1284 Akpaka Forest Layout Onitsha by tendering exhibit p1. That this exhibit p.1 shows clearly the land which the appellant is claming. That the same exhibit shows that the said land in dispute was super imposed on Akpaka Forest layout Drawing plan, Exhibit p2. The learned counsel further submitted that Exhibit D1 (tendered by the respondent) did not show any land in dispute between the appellant and the respondent and as such it cannot be qualified as ‘a dispute plan’ or a counter or challenge to the appellant’s Exhibit p1. Also as there is no counter plan the appellant’s Exhibit p.1 ought to be deemed by the trial court as accurate plan because a defendant who fails to file a dispute plan, particularizing the area in dispute is bound by the plaintiff s dispute plan. That had the trial court appreciated the fact that the land in dispute is the said one-half of plot 1284 Akpaka Forest layout, Onitsha the question as to the land in dispute would have been settled by the trial court.
The second complaint was related to the way and the manner the trial court treated Exhibit D1 (respondent’s dispute plan) which led the trial courts failure to notice that, on the face of it the land surveyed is located at Onitsha South Local Government of Anambra State, whereas Akpaka Forest Layout is in Onitsha North Local Government Area, and this fact is supported by the evidence DW1 under cross-examination. Therefore, if the land DW1 surveyed for the respondent is at Onitsha South Local Government Area, as shown by Exhibit D1, then clearly it could not have been Akpaka Forest Layout that he surveyed, and he referred us to the top right hand side of exhibit D1.
The third complaint of the appellant relates to the finding of the trial court to wit: the respondent’s exhibit D1 (disputed plan) was not superimposed on appellant’s Exhibit p1 (appellant dispute plan) contrary to provision of order 15 rule 10 (3) of the High court Rules of Anambra state, 2006. That provision of the Rule sought to dispel any doubt as to whether the appellant and respondent are referring to the same piece of land. That the respondent refused to comply with the said provision and his refusal therefore leads one to conclude that had something to hide.
The fourth complaint relates to Exhibit D1 (respondent’s dispute plan) which the appellant contended as not super-imposed on Exhibit p2 (the Akpaka Forest Layout Design plan). It was further submitted that it was not in dispute that Exhibit p2 was the instrument used in effecting grants of land at the layout, and this supported by the evidence of DW3. That the he further contended if not for mischievous intent, the respondent would have super-imposed exh. D1 on Exhibit p2 (the Layout Plan) in order to show where it falls within the layout plan but did not do so. That the respondent’s failure shows that there is nothing in Exhibit p2 or in the entire Akpaka Forest Layout called plot 1284B claimed by the respondent. That the plan which, as at March 2007, was still in the making and which was in determinate and in conclusive, would not form the basis of a government’s allocation of land purportedly made in year 2003.
The fifth complaint relates to the evidence of DW2 (the vendor) who, according to the appellant, admitted under cross-examination that, the land in dispute in this case is plot 1284 Akpaka Forest Layout Onitsha. That if exhibit 2 is properly examined, it could be seen that it does not contain any thing called plot 1284B, and it is not amended.
The sixth complaint of the appellant is the challenge on the trial courts failure to notice the above points. He contended that had the trial court done what the laws mandated it to do and evaluated the evidence led as to the plot of land in dispute, it would have noticed the said points mentioned above and each of them would have been sufficient to dispose of the question of whether the land in dispute was plot 1284 (or part of it) or plot 12848. That failure to notice any of the above points by the trial court shows, clearly that either it did not evaluate the evidence at all or it did so improperly. He finally urged this court to resolve this issue in favour of the appellant.
In his reply on this issue, the learned counsel for the respondent submitted that trial court properly evaluated the evidence before reaching its decision. On Exhibit p1 (appellant disputed plan) which the appellant contended that the trial court ought to accept as accurate and unchallenged, the respondent learned counsel submitted that, in the face of Exhibits D1 and D6 the accuracy of the said Exhibit p1 stood challenged. With regards to the second complain of the appellant, i.e. that plot 1284B, surveyed by DW1 is located at Onitsha South L.G.A. whereas the land claimed by the appellant is in Onitsha North Local Government Area, the respondent’s counsel submitted that the location of Onitsha was not an issue in contest and even if there is, DW1 made slip in heading Exhibit D1 which could be regarded as inconsequential which this court has a discretion to correct or ignored. He prayed this court so to do as it cannot prejudice the appellant.
On the third appellants complaint i.e. non-super imposition of Exhibit D1 on Exhibit p.1, the learned counsel for the respondent submitted that the layout having been subsequently surveyed with all that plots therein properly identified and demarcated with beacon numbers, there is no need to superimpose Exhibit D1 on Exhibit p.1. He further submitted that Exhibit p1 is a product of superimposition on Exhibit p.2. That exhibit p.2 is a mere design which does not contain any beacon number as the layout has not been surveyed at that stage. Exhibit D1 is a product of lifting the information on the ground (because at the time Exhibit D1 was produced, Exhibit D6 therefore was still being prepared). Exhibit D 6 therefore supersedes Exhibit p2. Therefore any super-imposition of Exhibit D1 on Exhibit p1 will distort the layout and bound to produce a wrong result because, according to the counsel, Exhibit p.2 from which exhibit p.1 was derived was inchoate. He pointed out that the survey plan of the layout subsequent to survey is Exhibit D.6 and that exhibit D6 being the master plan, it contains all the information concerning the layout including identification and location of various plots therein.
On the fourth complaint of the appellant i.e. the exhibit p2 was instrument the government used in effecting grant of land at the Layout, the learned counsel for the respondent submitted that, though Exhibit p.2 was the instrument used to allocate plots in the layout, that does not deviate from the fact that more plots were realized during survey than were contained in Exhibit p2 due to the surplus land between plot 1284 and the Nkisi River.
On the sixth complaint of the appellant, i.e. that the trial court failed to notice that Exhibit p.2 has not been amended and that it does not contain anything called plot 12848, the learned counsel concedes only to the extent that Exhibit p. does not contain anything called plot 12848. But with regard to amendment, he contended that the subsequent survey and carving out of the surplus land into additional plots amounted to amendment.
Finally, learned counsel for the respondent submitted that the trial court noticed all the six raised in this issue and had properly evaluated them before coming to its decision and he urges this court to resolve this issue in favour of the respondent and dismiss it.
Having stated the submissions of counsel to the parties I think it will help I quote the findings made by the learned trial judge on these points.
“I have taken a lot of pains to study exhibit p.2. I have also considered Exhibit D.6 which I carefully compared with exhibit p.2. It appears to me that the controversial plot No.1284 is at the boundary of the entire Akaka Forest Layout which is evidenced on Exhibit p.2. Consequently, it seems to me that the testimonies of the defendant (respondent) and his witnesses to the effect that the government later carved the portion of the land which falls between the aforesaid boundry and the Nkisi River into additional plots is more probable then those of the plaintiff (appellant’s) on that point”.
His Lordship further held:
It seems to me that this controversy arose when the Okebunabo/Iyiawu families took advantage of the controversial plot No.1284 which was granted to them by the government at the extreme end of the layout and then annexed, for their own purpose, the said surplus portion which exists between the said plot 1284 and the Nkisi River.”
Further more, His Lordship held:
“The plaintiff (appellant) has no answer, on the face of the record, to the overwhelming piece of evidence in favour of the defendant (respondent) to the effect that there exists a surplus area of land between the controversial plot 1284 and the Nkisi River. Rather, quite to the contrary, the plaintiff’s (appellant’s) testimony to the effect that plot No. 1284 is a large portion of which the said families carved into two and named plots 93 and 95 respectively, adds credence to same. It seems to me that when the families purported to have carved into two the offending plot 1284, they went beyond the boundary of same.”
The above are the findings the learned counsel found unacceptable.
Be that as it may, it is the law that an appellate court should not interfere on matters on credibility of a witness, to disturb the finding of the trial court on issue of fact. See Salami v. Oke (1987) 4 NWLR (Pt.63) 1, and Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386. Where, however, the holding of the trial court is not a finding of fact but an inference or conclusion draw from findings of facts or accepted facts, the appellate court may reverse it as it is on good apposition as the trial court to draw the necessary inference from proved facts. See Odinaka v. Monghalu (1992) 4 NWLR (Pt.223) 1 at 15 where Akputa, J.S.C (of blessed memory) stated as follows:
“What an appellate court may not reverse, except in certain circumstances, is the finding of fact from which the inference or conclusion was drawn by the trial court. In effect whether there was negligence is not a matter of credibility but that of evaluation of evidence, and the court of Appeal is in good apposition as the trial court to draw the necessary inference from proved facts, without touching on the issue of credibility of witnesses.”In this case there was a dispute over apportion of land. The proved facts are that the land in dispute is a portion of a large area of land formally known as Akpaka Forest reserve. That when the Government of Anambra State acquired the said Forest Reserve it turned it into a modem layout and granted a Larger area of it to the families of the appellant as compensatory plots which include plot 1284. That the said plot 1284 was a corner plot purchased by the appellant. After the grant, the Government realized that there exists, on the ground, surplus area of land before the Nkisi River (the border which is between plot 1284 and the Nkisi River) and which surplus area was then parcelated by the Government and realized additional plots which includes the respondent’s plots 1284B.
The learned trial judge, after drawing an analogy decided that the controversy (between the parties) arose when the Okebunabo/Iyiawu families took advantage of the controversial plot 1284 which was granted to them by the government at the extreme end of the layout and then annexed, for their own purposes, the said surplus portion which exists between the said plot 1284 and the Nkisi River. He supported his analogy with the fact that plot 1284 is at the border before the surplus land. To my mind this is a clear case of finding of fact from which the conclusion was drawn by the trial court. I hold that the conclusion of the trial court was right having been drawn from the facts. Therefore I see no reason for interference. The law is that, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and duly assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably assesses the facts, the duty of the court of Appeal is to find out whether there is evidence on record from which the trial court arrived at its findings of fact; the court of Appeal cannot interfere. The finding of facts made by a court are entitled to respect by an appellate court when it is clear that the trial court has adequately performed its primary duty of evaluating and ascribing probative value to the evidence before it. In such circumstances such findings are to be approached by an appellate court with due caution and not on the basis that it would or might itself find otherwise. The essential consideration is that there is enough evidence on record from which the trial court’s finding can be supported. On the point that the trial court failed to evaluate the evidence before it, it is relevant to call on aid the decision of the Supreme Court in Mogaji v. Odofin (1978) 8 S.C. 91 has laid down the basic principles for trial judge to bear in mind when comes to write judgment as follows:
1. He must decide issues in dispute between the parties.
2. He must sum-up the evidence called by each party and decide which side to believe based on the preponderance of credible evidence and the probabilities of the case.
3. He must record the logical and consequential finding of fact.
4. He must apply the law against the back ground of the finding of fact. See Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 and Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.From what I have observed in the judgment of the trial court, I am satisfied that the trial court has complied with the above basic principle laid down.
In the face of the forgoing, I am of the view that the trial properly evaluated the evidence on record before coming to its conclusion and I so hold. This is therefore is resolved in favour of the respondent and is dismissed.
This takes me to issue No.2 of the appellant’s issues.
The complaint of the appellant under this issue No.2 is that the trial court was not right in preferring the evidence of the defence when defence witnesses contradicted themselves, or were grossly discredited under cross-examination and most of their exhibits shown to be laced with fraud.
In their brief of argument, the appellant submitted that the trial court rightly identified the issue before it, namely, whether or not the land in dispute was part of plot 1284 or plot 1284B. That the principal document relied upon by the respondent for claiming to be owner of the said plot 1284B are exhibits D3 (an allocation paper dated 24/5/2003) and D4 (Government revenue receipt dated 28/5/2003). That, these two exhibits, according to his submission, is deeply embedded in fraud amply pleaded and proved by the appellant. His reasons are, that Exhibit D3 purportedly signed by Hon. Prince Ken Emekayi, as Commissioner for Lands and Survey Awka, at a time he was under police custody at Abuja on Criminal allegation (then under police investigation,) and this fact is attested by Exhibits p.8 and p.9. That the said Commissioner could not have made Exhibit D3 and is therefore a forged document. That the trial Court’s finding to wit: “It is possible he (the Commissioner) was still executing some functions of his office even whilst in detention,” is speculation which has no place in law. The counsel further submitted that the same exhibit D3 was dated 24/5/2003, and that 24/5/2003 was a Saturday and this was confirmed by DW3. And in the Civil Service, only five day working Week is observed and runs from Monday to Friday. Therefore it is not possible to sign Exhibit D3 on a Saturday. In the same vain, Exhibit D3 being an official letter, it bore no reference No.
On exhibit D4, learned counsel submitted it did not emanate from the Board of Internal Revenue and this is confirmed by exhibit p.10 (a letter from Mr. C.D.C. Okonkwo Esq). That if not emanated from the Government internal Revenue office, then the conclusion that could be reached is that it is a forged receipt.
With regard to the defence witnesses, learned counsel for the appellant contended that in their evidence contradictions are many. He pointed out that oral evidence of DW1 contradicts his documentary evidence exhibit D.1. That the evidence of DW2 under Cross-examination contradicts his evidence – In – Chief and also contradicts the evidence of DW4. According to the appellant’s counsel, with all these pointed fraud and contradictions, yet the trial court chose to prefer the defence (respondent’s) witnesses as against that of the appellant’s, and this is wrong on the part of the trial court. He finally urges this court to resolve this issue in favour of the appellant.
In response, learned counsel for the respondent submitted that the appellant failed to prove his allegation of forgery and that no contradictions on the respondent witnesses and none also was discredited. He urges this court to resolve this issue in favour of the respondent.
From the submission of the appellant, his attitude to exhibits D3 and DW4 is that they are forged documents and laced with fraud, in particular, the signature to exhibit D3 is not valid signature in the hands of the said Hon. Commissioner for lands and Survey Awka. This allegation involves elements of criminality. Forgery being a crime must be proved beyond reasonable doubt. See Abiodun Adelaja v. Yesuf Alade (1999) 6 NWLR (pt.608) 554 at 557. So also fraud. The standard of proof with respect thereof is even more demanding because the onus is on he who alleges a crime and to prove it beyond reasonable doubt by necessary evidence. See Abiodun Adelaja v. Yesuf Alade (supra), and section 135 of the evidence Act. In his effort to prove his allegations of forgery and fraud, the evidence of the appellant is very clear in the record. It goes to show that the Hon. Commissioner for Lands and Survey, Mr. Prince Kenneth Emeakayi, was in police custody during the time he was said to have signed the said exhibit D3. But unfortunately, he made no efforts to show that the signature on the document (exhibit D3) is not a valid signature being not in the hand of the said Commissioner. The trial court in its humble opinion rightly held that it is one thing to say that one was in detention when he was said to have signed a document, and quite another thing to say that the signature on a document is forged. Forgery is the making of a false document in order that it may be used as genuine see Words and Phrases legally defined, vol.2 p.272. And a document is forged if the whole or any material part thereof purports to be made by or on behalf of a person who did not make it nor authorizes its making. See Words and Phrases legally defined (supra).From the record of this appeal, particularly the evidence he adduced before the trial court, the appellant has not called any witness to prove that the signature on exhibit D3 was not the signature of the said Commissioner for Lands and Survey, Mr. Ken Emeakayi, and the appellant also was not able to produce other documents with which either the trial court or this court could have compared so as to be able to come to a decision one way or the other. Exhibit D3 to this extent therefore is not a forged document. Consequently, I hold that the appellant failed to prove Exhibit D3 to be forged document.
Exhibit p.10 is of no assistance to the appellant’s allegation of forgery. For there is nothing from the record, to show that Government of Anambra State has complained against anybody forging of government receipts. The conclusion that I can reach in this circumstance is that the person who issued exhibit p.10 did so only for the purpose of this suit with the sole aim of creating more confusion for the court. More over, the makers of exhibit p.10 were not called as witness as such exhibit p.10 could not be relied upon and of no assistance at resolving the issue in question.
On the 2nd aim of the appellant’s submission on the evidence of DW1, DW2, DW3 and DW4, which he stated to be full of contradictions? It is important to note that in law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in details between them. Two pieces of evidence contradict one another when they are by themselves in consistent. See Idiok v. State (2006) 12 NWLR (Pt. 993) 21 par. G-A. It is also to note that contradiction in the evidence of a defendant (respondent) who by the pleading has not the initial burden to prove his case can only be materials in the determination of the case if the plaintiff (appellant) has in the first place proved his case. Where a plaintiff (appellant) has not proved his case, contradiction in the evidence of the defendant (respondent) will not avail or help the plaintiff (appellant) in sustaining his claim. See Amede v. U.B.A. (2008) NWLR (Pt.1090) 551 at 557. Thus in the instant case, there is no material contradiction in the evidence of DW2, DW3 and DW4 for the evidence of these witnesses was convincing enough to affirm that there is a separate land which is not part of controversial plot No.1284 Akpaka Forest Reserve, Onitsha. Even if there are such contradictions the contradictions in my view are in consequential.
Therefore this issue is also resolved in favour of the respondent.
Having solved the two appellant’s issues in favour of the respondent this appeal lacks merit and it fails. Consequently it is hereby dismissed. The judgment of the trial court delivered on 26/2/2008 dismissing the appellant’s claim is upheld.
The parties to bear their own respective costs.
ABDU ABOKI J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother Mohammed L. Tsamiya, (JCA) and I am in agreement with the reasoning and conclusion contained therein. I also dismiss the appeal and abide by the consequential order made therein.
SAMUEL C. OSEJI, J.C.A: I have had the privilege of reading in draft, the judgment of my learned brother Mohammed L. Tsamiya JCA and I agree with him that the appeal is unmeritorious and should be dismissed. I also dismiss it and abide by the order in the lead judgment.
Appearances
Chief O.B. Onyechi (SAN)
AguijwoFor Appellant
AND
Emeka NgokaFor Respondent
