MINISTER, FCT v. UNITED POWER & ENERGY SYSTEM
(2022)LCN/17108(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, August 08, 2022
CA/ABJ/CV/903/2021
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
HON. MINISTER, FCT APPELANT(S)
And
UNITED POWER AND ENERGY SYSTEM RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURTS CAN FORMULATE ISSUES FOR DETERMINATION FROM THE GROUND OF APPEAL
In the circumstance, I will formulate a sole issue for the determination of this appeal. The law allows me to formulate my own issues for determination provided they are formulated from the ground of appeal. The Notice and grounds of Appeal which is the fulcrum, upon which the edifice of the entire appeal was built contain 3 (Three) grounds as could be found at pages 146-150 of the record of appeal. The Appellant’s counsel formulated three issues for determination from the three grounds by linking issue one to grounds 1 and 2, issue two to ground 2, and issue three to ground 3 respectively. However, the law guiding formulation of issue has it that for an issue for determination to be competent, each issue must relate to at least one of the valid ground of appeal. Where more than one issue for determination are derived from a single ground, such issues are incompetent and Court cannot make finding on it. See UNITY BANK PLC V. BOUARI (2008)2 SCNJ, WAEC V. ADEYANJU (2008)4 SCNJ 167, NWANKWO V. EDCS U.A. (2007)2 SCNJ 89, MIL.ADMIN FOR EKITI STATE V. ALADEYELU (2007)5 SCNJ 1. PER TOBI, J.C.A.
THE POSITION OF LAW ON THE BURDEN AND STANDARD OF PROOF TO ESTABLISH THE OFFENCE OF FORGERY
The law on the burden and standard of proof to establish forgery is settled. Permit me as I take a little excursion on this venture. Forgery can be defined as the act of making a false document or altering a genuine document for same to be used. See Agi vs PDP & Ors (2016) S.C. (pt 1) 74. As to what will amount to ingredients of the offence of forgery, the Supreme Court in Ndoma-Egba vs A.C.B. Plc (2005) 14 NWLR (pt 944) 79 held thus:
“In Nwobodo vs. Onoh (1984) All NLR 1 at 77, (1984) 1 SCNLR 1 at 72, Obaseki JSC discussed the nature of the offence of forgery and the proof of it in relation to Section 137 (1) of the Evidence Act thus: “Forgery as defined under the Criminal Code reads – S. 465 A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine be induced to do, or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing. To bring an indictment for the offence of forgery under S. 465 of the Criminal Code, it must contain the important ingredient of knowledge except the word ‘forgery’ is used in the indictment.”
Similarly, this Court held in Wagbatsoma vs FRN (2015) ALL FWLR (pt 812) 1430 as follows:
“On the offence of forgery and uttering of a false document, what the prosecution needs to prove is as stated in ODIAWA V. FRN (2008) LPELR 4230 (CA), ALAKE vs STATE (1991) 7 NWLR (Pt.205) 567 thus:
“The offences of forgery and uttering have been defined in Section 467(2)(c) of the Criminal Code. Their ingredients are:
a. That the accused utters or forges a document.
b. That he knew the document to be false.
c. That he presented the said document to the other party with the intention that it could be acted upon.
d. That the document was acted upon by the other party to his determent (the 4th ingredient is not always necessary to prove once the other 3 have been established)…”
The burden and standard of proof in cases involving forgery is like in criminal matter even if it is alleged in a civil matter. The burden is on the person alleging and the standard is beyond reasonable doubt. The Supreme Court made this point in Ogah v. Ikpeazu & Ors (2017) 5-6 S.C (pt 1) 1 where the Court held:
“The other side of the argument is that, where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of KAKIH v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows: “By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine.
In this case, for the Appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th Respondent presented a forged certificate to the 2nd respondent knowing that it would be used fraudulently or dishonestly as genuine.”
To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which Onus must be discharged by the Appellant See NWOBODO v. ONOH (1984.) 1 S. C. NLR 1, TORTI v. UKPABI (1984) 1 NSCC 141 at 145.”Per BAGE, J.S.C.” PER TOBI, J.C.A.
THE POSITION OF LAW ON THE PRESUMPTION OF REGULARITY
The law on presumption of regularity is to the effect that a document which meets all the requirement of making same is presumed regular. This is provided for in Section 146 and 168 of the Evidence Act. I reproduce same for ease of reference. Section 146 provides thus:
(1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.”
Section 168 of the Evidence Act states thus:
1. When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.
(3) When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.
(4) When a minute is produced purporting to be signed by the chairman of a company incorporated under the Companies and Allied Matters Act and purporting to be a record of proceeding at a meeting of the company or of its directors it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceeding at the meeting have been duly had, and that all appointments of directors, managers and liquidators are valid.
See A.G. of the Federation v. Anuebunwa (2022) LPELR-57750 (SC), Ogbuanyinya & Ors v. Okudo & Ors (1990) LPELR-2294(SC).
Once a document is presumed regular by law, the burden is on the other party to rebut the presumption. See Ilori & Ors v. Ishola & Anor (2018) LPELR-44063(SC), Emesiani v. Emesiani (2013) LPELR-21360(CA). PER TOBI, J.C.A.
WHETHER OR NOT THE OFFENCE OF FORGERY MUST BE SPECIFICALLY PLEADED
In Kareem v. UBN Ltd. & Anor (1996) 5 NWLR (pt 451) 643, the apex Court held that: “Forgery being a criminal offence must be specifically pleaded and proved before a trial Court can act on its allegation.” Per MOHAMMED, J.S.C.
The fact that there is no specific pleading of allegation of forgery against the Respondent, there is no need for calling for any evidence as the law is clear that evidence not backed by pleadings is of no moment. See Eze v. Ene &Anor (2017) LPELR-41916(SC), Akekuta & Ors v. Nurudeen & Anor (2022) LPELR-57153 (CA). On this ground alone, this appeal will fail. PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of His Lordship, O. A. Musa J., delivered on 24/6/2021 in Suit No: FCT/HC/BW/CV/238/2020 wherein the claims of the Claimant, the Respondent in this appeal for declaration as the holder of a Statutory Right of Occupancy over the property known as Plot No: 586 in Asokoro District, Abuja was granted among other reliefs. The Respondent claims to be entitled to the Statutory Right of Occupancy over the same property based on the allocation from the Appellant. From the record of appeal, it is the Respondent’s case that the said property was allocated to it by the Appellant in 1987, and based on the allocation, all the necessary fees have been paid including fees for the recertification. This is to say that the Respondent has met all the requirements put in place by the Appellant for the recertification of the property allocated to it by the Appellant. For this, the Respondent relied on Exhibits AB1-AB8. In spite of meeting all the conditions of the allocation and recertification, the Appellant has failed to finalize the transaction. What is clear is that, there is a letter of allocation of the subject property from the Appellant to the Respondent and that the Respondent has done all that needs to be done for the allocation to be final. The Appellant’s defence is a total denial of the allocation and that the documents, that is Exhibit AB1-AB8 did not emanate from his office. Indeed, the Appellant expressly made an allegation of forgery against the Respondent, that is to say that, the Appellant expressly alleged that Exhibits AB1-AB8 are not genuine but fake and forged.
In proof of its case, the Respondent as Claimant in the lower Court called a witness and tendered 8 documents. The Appellant as Defendant called one witness denying all the claims of the Respondent and describing all the documents which it certified as forged. At the close of the evidence, the trial Court took the submission of counsel, evaluated the evidence and perused the documents tendered and admitted as exhibits. The Court delivered 29 pages judgment in favour of the Respondent as could be found at pages 116-145 of the records. The lower Court at pages 141, 143 and 144 of the record held as follows:
“First of all, the 1st Defendant did not adduce evidence for the reasons I have given, I hold that the 1st Defendant was not able to disprove that all the documents tendered by the Claimant were issued by, his office… Having considered the above allegation raised by the Defendant, I hold that the Defendant failed to prove the allegation that the documents relied upon by the Claimant are not genuine or forged. Therefore I resolve issue no. 1 in favour of the claimant and hold that the claimant has adduced credible, cogent and sufficient evidence to establish that the 1st Defendant allocated the said Plots NO. 581 Asokoro District, Abuja to it… Being satisfied that the claimant has proven his case, I enter judgment in favour of the claimant against the Defendants as follows:
Having considered the above allegations raised by the Defendant, I hold that the 1st Defendant failed to prove the allegation that the documents relied upon by the Claimant are not genuine or are forged. Therefore, I resolve issue No. 1 in favour of the Claimant and hold that the Claimant has adduced credible, cogent and sufficient evidence to establish that the 1st Defendant allocated the said Plots No. 561 & 562 Asokoro District, Abuja to it.
Being satisfied that the claimant has proven his case, I enter judgment in favour of the claimant against the Defendants as follows:
a. Declaration that the claimant is the holder of a Statutory Right of Occupancy dated 24th June, 2002, 1987, referenced (MFCT/LA/MISC. 19748) over Plots No. 581 Asokoro District, Abuja.
b. Declaration that the Claimant’s Statutory Right of Occupancy over Plots No. 586 Asokoro District, Abuja, is valid and subsisting.
c. Declaration that the payment of the sum of N8,030,119.15 (Eight Million Thirty Thousand, One Hundred and Nineteen Naira, Fifteen Kobo) being the total assessed Rent, Fees, Premium, Survey Fees, Development Levy, etcetera for the issuance of the Certificate of Occupancy is valid and subsisting and represents full and final payment by the Claimant for issuance of Certificate of Occupancy over plot 586 within Asokoro District, Abuja
d. An order directing the Defendant to issue the Claimant with the Certificate of Occupancy over plot No. 586 within Asokoro District, Abuja.
e. An order of perpetual injunction restraining the Defendant whether by themselves, agents or privies from unlawfully revoking and or expropriating or in any manner howsoever interfering with the rights, title of the Claimant or possession of the Claimant of Plots No. 561 & 562 Asokoro District, Abuja.
This is the judgment of the Court which I reserved to be delivered today.”
Unhappy with the judgment, the Appellant who was Defendant in the lower Court filed this appeal of 4 grounds found at pages 145-149 of the record seeking the following relief:
An order allowing this appeal and setting aside the decision of the lower Court delivered on 24th June, 2021 and dismissing the Respondent/Claimant’s case.
Lami A. Bassagi Esq., Assistant Chief State Counsel in the Federal Capital Territory who settled the Appellant’s brief filed on 15/12/21 formulated 3 issues for determination from the 4 grounds of appeal as follows:
a. Whether having regard to the evidence on record, the Trail Court was right to have held that Exhibits AB1 – AB8 are genuine and have conferred a valid title on the Respondent. (Distilled from Grounds 1 and 2)
b. Whether the learned trial judge was right when he held that the Appellant failed to prove his allegation of forgery against the Respondent. (Distilled from Ground 2)
c. Whether the learned trial Court was right when he held that the Respondent as Claimant at the trial Court has discharged the legal burden of proof placed on her to be entitled to judgment. (Distilled from Ground 3)
The Respondent’s Counsel Kalu Onuoha Esq., in the Respondent’s brief filed on 22/12/2021 formulated 3 issues which are not radically different from the issues formulated by the learned counsel to the Appellant. For completeness, I will reproduce them as follows:
i. Whether the Court below was right when it held that the Appellant failed to prove that the documents relied on by the Respondent were forgeries? (Ground 1)
ii. Whether the burden of proving forgery shifted from the Appellant to the Respondent to disprove forgery at any moment during the trial? (Ground2)
iii. Whether the Court below was right when it held that the Respondent had discharged the burden of proof placed on it by Sections 131-133 of the Evidence Act? (Ground 3)
Let me take a brief summary of the submissions of counsel. The learned Appellant’s counsel, Lami A. Bassagi Esq., submitted that all the questions or inquiry raised on each of the issues should be answered in the negative. Specifically, on issue 1, learned counsel submitted that Exhibits AB1-AB8 which the Respondent relied on as his root of title do not emanate from the Appellant and that they are fake and forged. He submitted that the Respondent having not responded to paragraphs 5-13 of the Appellant’s witness statement on oath, the paragraphs should have been deemed unchallenged, and relied upon by the Court and used it against the Respondent. He relied on Cappa & Dalberto Ltd vs Akintilo (2003) 9 NWLR (pt 842) 49. Referring to the fact that by law, land in the Federal Capital Territory is vested in the Hon. Minister, it is the further submission of counsel that, it is only the Appellant that can determine whether a document of title from his office is genuine and therefore, the Appellant having given unchallenged evidence to the effect that Exhibits AB1-AB8 are forged, the lower Court should have so held. He urged Court to resolve this issue in favour of the Appellant. This argument will stand only if as submitted by counsel that paragraphs 5-13 of DW1 witness deposition on oath is unchallenged. Can this really be true in the light of the record of appeal. I will be considering that later in this judgment.
On issue 2, it is the firm submission of counsel that the evidence of DW1 was enough prove beyond reasonable doubt that Exhibits AB1-AB8 is forged. It is the further submission of counsel that if the lower Court had properly evaluated the evidence of DW1 which is unchallenged, it would not have arrived at the decision it did. Counsel relied on Ukeje vs Ukeje (2014) 11 NWLR (pt 1418) 384. This issue should be resolved in favour of the Appellant.
On the last issue, learned counsel submitted that there is no evidence in the pleading that supported the case of the Respondent and since submission of counsel is not evidence, the lower Court should have dismissed the Respondent’s case. Relying on Nig Arab Bank Ltd vs Femi Kane Ltd (1995) 4 NWLR (pt 387) 100, learned counsel submitted that the appeal be allowed and the judgment of the lower Court be set aside.
The Respondent’s counsel also addressed the issues in seriatim starting with issue 1. It is the firm submission of counsel that the Appellant did not prove the allegation of forgery as required by law referring to Adelaja vs Fanoiki (1990) 2 NWLR (pt 131) 137, Okunrinjeje vs Ajikobi (2018) LPELR-44850 (CA), Jules vs Ajani (1980) 5-7 S.C. 96 among other cases. The inability of the DW1 to present any document as the bases of the forgery from the record of the Appellant is fatal to the claim of the Appellant that the Exhibits were forged and more so that the Appellant was unable to prove any of the ingredients of the offence of forgery. The fact that the exhibits were certified by the Appellant speaks volume in favour of the Respondent. Learned counsel referred to a host of cases including AICE Investment Co. Ltd vs Fidelity Bank (2015) LPELR- 25753 (CA), Kawu vs Minister, FCT (2016) LPELR-41142 (CA), Davies vs Governor Ekiti State (2018) LPELR- 46373 (CA). It is the submission of counsel that the lower Court was right in not allowing the evidence of DW1 override the Certified True Copy of the title documents. He urged Court to resolve this issue in favour of the Respondent.
On issue 2, referring to Sections 135, 139 of the Evidence Act and the cases of Emmanuel vs State (2017) LPELR-43550 (CA), Adamu vs State (2016) ALL FWLR (pt 852) 1551 along with other cases, counsel submitted that the burden to prove the allegation rest on the Appellant who is making the allegation. The burden could not shift to the Respondent as the Appellant did not make a prima facie case for the allegation of forgery against the Respondent in any way whatsoever.
On issue 3. It is the firm submission of counsel that the Respondent has discharged the burden of prove to establish his claim in line with Sections 131, 132, 133 and 134 of the Evidence Act, 2011. The standard of proof required is balance of probability and on the strength of Exhibits AB1-AB8, the Respondent has proved title to the land as entrenched in the locus classicus case of Idundun vs Okumagba (1976) 9-10 S.C. 227. Those documents certified by the Appellant serves as best evidence, counsel submitted while referring to a host of cases including Egharevba vs Osagie (2009) LPELR-1044(SC), Sankey vs Onayifeke (2014) ALL FWLR (pt 749) 1034. It is the further submission of counsel that after the grant of the land in dispute to the Respondent, the Appellant can only invalidate the grant either by revocation or by a Court order. Since none of these exist in this case, the lower Court was right in its decision, counsel relied on Teniola vs Olohunku (1999) 4 SCNJ 92; Obikoya & Sons Ltd vs Governor of Lagos State (1987) 1 NWLR (pt 50) 385. In the light of the above submission, counsel urged this Court to dismiss the appeal and affirm the decision of the lower Court.
The above is the submission of both counsels. What is at stake here is not complicated at all. The Respondent’s case is that the Appellant allocated the land in dispute, Plot 568 at Asokoro District, Abuja to it via all the documentation as showed in Exhibits AB1-AB8. These are documents evidencing the allocation of the property to the Respondent who has paid all the necessary fees for recertification. Being public document, they are all Certified True Copies done in line with the provisions of Section 104 of the Evidence Act, 2011. The certification was made by one Yakubu Ahmed, Land Registrar of the Department of Land Administration FCT. The implication of this certification is that the certifying officer has seen the original document in his possession and compares same with the copies before certified them as true copies of the original. See Uzoma v. Asodike (2009) LPELR-8421(CA), Mark v. Chukwuemeka & Ors (2015) LPELR-40708(CA). By the provision of Section 102 of the Evidence Act, 2011 public document can be proved by the original which is primary evidence and the only acceptable secondary evidence of a public document is the Certified True Copy of such document which certification must be in line with Section 104 of the Evidence Act, 2011. To appreciate my discourse in this issue, I will reproduce Sections 104 of the Evidence Act, 2011 as follows:
“Section 104 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
105. Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
I will not take a roll call of all the documents, I will just mention a few that are directly relevant to this appeal which shows the allocation made to the Respondent and what the Respondent has done in response to the offer. Exhibit AB3 is a letter of allocation of the land in dispute from the Federal Capital Territory, where the Appellant held sway. The allocation made to the Respondent of Plot 568 in Asokoro District in Abuja was a follow up to the application form made by the Respondent. The Exhibit is titled “Offer of Terms of grant/ Conveyance of Approval.” This is an offer which in law does not create a contract since no acceptance was made at that stage. See Dangote Gen. Textile Products Ltd & Ors v. Hascon Associates (Nig) Ltd & Anor (2013) 5 S.C. 112, Ashakacem Plc v. Asharatul Mubashshurun Investment Ltd (2019) LPELR-46541(SC).
In paragraph 3 of Exhibit AB3, the Respondent is expected to sign the letter of acceptance. The offer was made on 18/9/1987. The acceptance letter Exhibit AB4 was made on 25/9/1987 by the Respondent and sent to the Appellant in response to Exhibit AB3. Exhibit AB5 is the right of Occupancy from the Appellant’s office signed on behalf of the Appellant by the Chief Deed Registrar (Lands) of the Appellant’s ministry. In response to this, Exhibit AB6 was made which was the payment of N7,701 required by Exhibit AB5. Recertification was required and by Exhibit AB7, the fee for the recertification was paid and the Respondent made the application for recertification. The Respondent has done all that is required of it to be entitled to the Statutory Right of Occupancy over the property in dispute. All these are enough documents to show the title of the Respondent over the property against all others except if there is a valid revocation of the allocation. Section 44 of the Land Use Act makes provision for when and how revocation of a right of occupancy can be made. See Sharing Cross Educational Services Ltd v. Umaru Adamu Ent. Ltd. (2020) LPELR-49567(SC) Dasuki V FRN & Ors (2018)10 NWLR (Pt.1627) P.320, Akinbade V Babatunde (2017)12 S.C. (Pt.III) P.84
It is not in doubt that there is no evidence of revocation of the allocation to the Respondent. From the evidence before the lower Court and in the record, except there is evidence that those documents are forged, I cannot see how I can set aside the judgment of the lower Court. What is clear is that if these documents are genuine, there is enough evidence which will entitle the Respondent to its claim. The main thrust of the case of the Appellant is that the documents do not emanate from him or his office and therefore they are forged. This is the main issue in this case. If I hold that the documents are genuine, the appeal will fail and it will be dismissed but if on the other hand, I hold that they are forged the appeal will be allowed. This in my opinion is what will determine this appeal one way or the other.
In the circumstance, I will formulate a sole issue for the determination of this appeal. The law allows me to formulate my own issues for determination provided they are formulated from the ground of appeal. The Notice and grounds of Appeal which is the fulcrum, upon which the edifice of the entire appeal was built contain 3 (Three) grounds as could be found at pages 146-150 of the record of appeal. The Appellant’s counsel formulated three issues for determination from the three grounds by linking issue one to grounds 1 and 2, issue two to ground 2, and issue three to ground 3 respectively. However, the law guiding formulation of issue has it that for an issue for determination to be competent, each issue must relate to at least one of the valid ground of appeal. Where more than one issue for determination are derived from a single ground, such issues are incompetent and Court cannot make finding on it. See UNITY BANK PLC V. BOUARI (2008)2 SCNJ, WAEC V. ADEYANJU (2008)4 SCNJ 167, NWANKWO V. EDCS U.A. (2007)2 SCNJ 89, MIL.ADMIN FOR EKITI STATE V. ALADEYELU (2007)5 SCNJ 1.
It therefore follows willy-nilly that the Appellant’s issues one and two having derived from ground 2 cannot be said to be competent in the light of the above authorities and the facts that more than one issue cannot be distilled from a ground of appeal. Consequently, the Appellant’s issues one and two are incompetent, and therefore struck out as it offends the law against proliferation of issues.
This remains the lone surviving issue of the appellant, that is, issue no. 3, and the three issues distilled by learned counsel on behalf of the respondent. The lone surviving issue is also similar in substance with the 3rd issue formulated by the respondent.
I am not under obligation to adopt the issues as formulated by counsel in the brief as the law has accorded me a license to reformulate or even formulate my own issue(s) different from that of the parties, but within the scope of the live issue(s) as covered by the grounds of Appeal. I therefore feel safer reformulating a sole issue for proper determination of this appeal as follows:
Whether the lower Court was right when it held that Respondent has proved its case on the balance of probability to entitle it to judgment.
I had mentioned above that the main thrust of the Appellant’s case in this appeal and the defence at the lower Court is that Exhibits AB1-AB8 are forged documents. The law on the burden and standard of proof to establish forgery is settled. Permit me as I take a little excursion on this venture. Forgery can be defined as the act of making a false document or altering a genuine document for same to be used. See Agi vs PDP & Ors (2016) S.C. (pt 1) 74. As to what will amount to ingredients of the offence of forgery, the Supreme Court in Ndoma-Egba vs A.C.B. Plc (2005) 14 NWLR (pt 944) 79 held thus:
“In Nwobodo vs. Onoh (1984) All NLR 1 at 77, (1984) 1 SCNLR 1 at 72, Obaseki JSC discussed the nature of the offence of forgery and the proof of it in relation to Section 137 (1) of the Evidence Act thus: “Forgery as defined under the Criminal Code reads – S. 465 A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine be induced to do, or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing. To bring an indictment for the offence of forgery under S. 465 of the Criminal Code, it must contain the important ingredient of knowledge except the word ‘forgery’ is used in the indictment.”
Similarly, this Court held in Wagbatsoma vs FRN (2015) ALL FWLR (pt 812) 1430 as follows:
“On the offence of forgery and uttering of a false document, what the prosecution needs to prove is as stated in ODIAWA V. FRN (2008) LPELR 4230 (CA), ALAKE vs STATE (1991) 7 NWLR (Pt.205) 567 thus:
“The offences of forgery and uttering have been defined in Section 467(2)(c) of the Criminal Code. Their ingredients are:
a. That the accused utters or forges a document.
b. That he knew the document to be false.
c. That he presented the said document to the other party with the intention that it could be acted upon.
d. That the document was acted upon by the other party to his determent (the 4th ingredient is not always necessary to prove once the other 3 have been established)…”
The burden and standard of proof in cases involving forgery is like in criminal matter even if it is alleged in a civil matter. The burden is on the person alleging and the standard is beyond reasonable doubt. The Supreme Court made this point in Ogah v. Ikpeazu & Ors (2017) 5-6 S.C (pt 1) 1 where the Court held:
“The other side of the argument is that, where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of KAKIH v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows: “By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine.
In this case, for the Appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th Respondent presented a forged certificate to the 2nd respondent knowing that it would be used fraudulently or dishonestly as genuine.”
To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which Onus must be discharged by the Appellant See NWOBODO v. ONOH (1984.) 1 S. C. NLR 1, TORTI v. UKPABI (1984) 1 NSCC 141 at 145.”Per BAGE, J.S.C.”
Similarly in APC & Anor v. Obaseki & Ors (2021) LPELR- 55004 (SC), the Supreme Court held:
“Forgery being a crime, allegation of its commission must be proved beyond reasonable doubt. S.135(1) of the Evidence Act 2011 provides that “If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.” Per AGIM,J.S.C.
In proving forgery, it is the law that the person making the allegation will prove beyond reasonable doubt the ingredients of the offence of forgery and this will require tendering both the original and the forged document to enable the Court compare both documents to determine whether it was forged. It will therefore be required to present both documents. This is what the Supreme Court held in Mohammed v. Wammako & Ors (2017) LPELR-42667(SC) in these words:
“… the allegation of forgery is criminal in nature. The standard of proof is beyond reasonable doubt. Evidence that would establish the allegation in this case beyond reasonable doubt would include:
(a) exhibiting both the document from which the alleged forgery was made and the forged document;
(b) evidence that it was the 1st respondent who forged the document(s);
(c) communication from the Polytechnic of Sokoto State disputing the 1st respondent’s claim to have studied there.
See A.P.C. V. P.D.P. & Ors (2015) LPELR – 24587 (SC); Ndoma-Egba v. A.C.B. Plc (2005) 14 NWLR (Pt.944) 79.”Per KEKERE-EKUN,J.S.C
See also APC v. PDP & Ors (2015) 3-4 S.C (pt. 1) 79, Lado & Anor v. Masari & Ors (2019 LPELR-55596 (SC).
The onus is on the Appellant who is alleging that Exhibits AB1-AB8 is forged to give evidence to that effect bearing in mind the presumption of regularity of the document. The law on presumption of regularity is to the effect that a document which meets all the requirement of making same is presumed regular. This is provided for in Section 146 and 168 of the Evidence Act. I reproduce same for ease of reference. Section 146 provides thus:
(1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.”
Section 168 of the Evidence Act states thus:
1. When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.
(3) When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.
(4) When a minute is produced purporting to be signed by the chairman of a company incorporated under the Companies and Allied Matters Act and purporting to be a record of proceeding at a meeting of the company or of its directors it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceeding at the meeting have been duly had, and that all appointments of directors, managers and liquidators are valid.
See A.G. of the Federation v. Anuebunwa (2022) LPELR-57750 (SC), Ogbuanyinya & Ors v. Okudo & Ors (1990) LPELR-2294(SC).
Once a document is presumed regular by law, the burden is on the other party to rebut the presumption. See Ilori & Ors v. Ishola & Anor (2018) LPELR-44063(SC), Emesiani v. Emesiani (2013) LPELR-21360(CA).
Having stated the above, the question is, is there evidence from the Appellant in the record buttressing the fact that the Exhibits were forged? This is the fundamental question here. In this regard, the Appellant relied on the evidence of DW1 in line with paragraphs 5-13 of the Appellant’s pleading, that is the statement of defence in the lower Court as found at pages 23-26, 28-31 of the record. It is the submission of the learned counsel to the Appellant that those paragraphs were not challenged and therefore they are taking as evidence which the lower Court should have relied on. With due respect to counsel, this submission is not a reflection of the record of appeal and the proceedings before the lower Court.
From the paragraphs referred to, they are not independent assertion but rather they are a reaction to the pleadings of the Respondent. In this respect, it is not right to submit that those paragraphs are unchallenged. They are mere denials and nothing more. Apart from the denials, there is no concrete evidence to prove that the documents, that is Exhibits AB1-AB8 were forged. I am tempted to reproduce the paragraphs here but I will resist the temptation. However, I must state that all those paragraphs did, was to join issues with the Respondent to the effect that the Appellant did not allocate land to the Respondent, and indeed the Appellant not aware of any such allocation and payments made by the Respondent. The implication of all this, is a complete denial of Exhibits AB1-AB8 which were pleaded and admitted in Court. The 1st Respondent has made the case for the allocation and the Appellant is defending the case by denying the allocation and the document. I am at a loss at the submission of learned counsel to the Appellant that paragraphs 5-13 are unchallenged. This submission is either based on ignorance or a deliberate act of misleading this Court. Whichever way it is not acceptable to this Court. Issues have been joined on the subject of allocation, therefore the submission of learned counsel to Appellant that paragraphs 5-13 of DW1 witness statement on oath is unchallenged does not hold water at all.
I have carefully looked through the record of appeal, the pleadings and evidence of the Appellant, I make bold to say with all sense of responsibility that there is no evidence of the allegation of forgery made against the Respondent. All that the Appellant did was to merely deny the documents. A denial of the documents does not mean or imply that the documents were forged. For the Appellant to allege forgery and for a Court to take such allegation serious, there must be clear and specific pleading alleging same and evidence establishing same. In Kareem v. UBN Ltd. & Anor (1996) 5 NWLR (pt 451) 643, the apex Court held that: “Forgery being a criminal offence must be specifically pleaded and proved before a trial Court can act on its allegation.” Per MOHAMMED, J.S.C.
The fact that there is no specific pleading of allegation of forgery against the Respondent, there is no need for calling for any evidence as the law is clear that evidence not backed by pleadings is of no moment. See Eze v. Ene &Anor (2017) LPELR-41916(SC), Akekuta & Ors v. Nurudeen & Anor (2022) LPELR-57153 (CA). On this ground alone, this appeal will fail.
In case I am wrong in this position, I had mentioned earlier in this judgment that the onus is on the Appellant to prove that Exhibits AB1-AB8 are forged. The Appellant called only one witness who could not prove that the documents were forged. This is more so that it is the Appellant’s agent that certified the documents in line with the law. The certification of those documents by the Appellant means that the original or counterpart copies of those documents are in the custody of the Appellant. In the light of this, I am really at a loss as to what the Appellant is denying or challenging. I make bold to say that paragraphs 5-13 of the Appellant’s pleading cannot ordinarily qualify as proof of the fact that the documents are not genuine. The Appellant has indeed, failed completely to prove with any trace of evidence that the documents were forged. The lower Court was right in my view when it held at page 141 of the record that the Appellant could not prove that the documents were forged. This makes the defence of the Appellant to the claim of the Respondent worthless with no substance whatsoever. I resolve this sole issue in favour of the Respondent.
Having held that the documents tendered as Exhibits AB1-AB8 are genuine, it is not difficult to hold that the Respondent has proved his claim for declaration of title and therefore, entitled to the Statutory Right of Occupancy over the land. By the principle embedded in Idundun vs Okumagba (supra) which states the five ways of proving title over land, Exhibits AB1–AB8 is sufficient evidence to establish the Respondent’s title to the land in dispute by way of production of the title documents duly authenticated. On this point, I refer to Thompson & Anor vs Arowolo (2003) 4 SC (pt II) 108, where the apex Court listed the five ways of proving title in these words:
“It has long been established by the Supreme Court on the celebrated case of D. O. Idundun & Ors v. Daniel Okumagba & Ors (1976) 9-10 SC 227 at Pp. 246-250 that there are five ways of proving title to land. These are:
1. By traditional evidence (Adedibu v. Adewoyin 13 WACA 191).
2. By production of a document of grant or title Johnson v. Lawanson (1971) 1 ALL NLR 56.
3. By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner Ekpo v. Ita (1932) 11 NLR 68.
4. By proving acts of long possession and enjoyment of the land; but this only raises a presumption of ownership Da Costa v. Ikomi (1968) 1 ALL NLR 394 at p.398.
5. By proof of possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute. Okechukwu v. Okafor (1961) 1 All NLR 685.
It is now well settled that each of the five ways of proving title to land enunciated above is THOMPSON & ANOR V. AROWOLO 57 independent of the other. See Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) 676 at 692, Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 218.”
In the light of the above, this appeal fails and it is dismissed. The judgment of O.A. Musa J. is hereby affirmed.
This is a Court of law and justice and as a result, this Court can make consequential orders to give life to the judgment of the Court. The apex Court made this point in APC & Ors v. Karfi & Ors (2017) LPELR-47024(SC) in these words:
“The power of a Court of law to make consequential orders is inherent and flows from its jurisdiction to try the case. All superior Courts of record possess inherent powers not necessarily derivable from any law. It is embedded in a Court to ensure and enhance a free flow of justice to end users. A consequential order is therefore an order which gives effect to the judgment already given by the Court. It is not granted as a fresh, unclaimed or unproven relief. See Awoniyi v. Regd. Trustees, AMORC (2000) FWLR (Pt. 25) 1592, (2000) 10 NWLR (Pt. 676) 522, (2000) 6 SC (Pt. I) 103, (2000) 6 SCNJ 141.
There is no doubt that the appellant’s right of appeal against the judgment of the Federal High Court is guaranteed under Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That right is fundamental and cannot be taken away from an aggrieved party. Indeed, the Court below did not make any order stopping the appellants from appealing against its judgment. Neither did the trial Court make such an order. See Eyesan v. Sanusi (1984) LPELR – 1185 (SC), Ben Anachebe v. Kingsley Ijeoma & Ors. (2014) LPELR – 23181 (SC).
As I said earlier, the above complaint was unnecessary, as the consequential order made by the lower Court did not suggest that the appellants had lost their right of appeal.
After a Court has decided a case and there is need to make a consequential order to give effect to the judgment, it is not the practice of the Court to invite parties to address it on what should be the consequential order to make. So, where in the process of considering the consequential order to make, a Court makes certain comment in the process, it cannot be the reason for the decision which had already been made. At best it is an orbiter which is not the reason for the judgment.
As to whether the Court below had jurisdiction to make the orders it made at the end of its judgment, my simple answer is that by Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Federal High Court and other Courts listed therein. It is trite law that where a Court has jurisdiction to hear and determine a matter, it also has jurisdiction to make consequential order(s) accordingly.” Per OKORO, J.S.C.
The lower Court has made a declaratory order as in order d above but there is no clear order made by the lower Court. in the light of that, it will not be out of place to make a consequential order directing the Appellant to issue the Respondent with the Certificate of Occupancy within 6 months from the date of the judgment of this Court or when the last act required by the Respondent to be done for the issuance of the Certificate of Occupancy. This consequential order will meet the tenet of justice in this matter.
I award N200,000 cost against the Appellant in favour of the Respondent.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother EBIOWEI TOBI JCA, I agree with his reasoning and final conclusions. However, I will lend my voice to the main thrust of this appeal, that the documents, Exhibits AB1-AB8 were forgeries.
Every forgery involves an alteration of documents but not every alteration of documents amounts to forgery. Forgery involves alteration with a fraudulent intent.
The fact or incidence of forgery must be specifically pleaded and proved even in civil matters as in the instant case beyond reasonable doubt. See Section 135(1) Evidence Act 2011.” Per OWOADE, JCA in ADINNU VS ADINNU (2013) LPELR-21251. The Appellant in this appeal had made allegations of forgery but failed to prove same. In a case of forgery, both the original document and the fake (forged one) must be produced in Court for examination. See OKPALANGWU VS FRN (2021) LPELR-52710. The Appellant failed to produce any documents In proof of their alleged forgery. Allegation of forgery even in a civil matter is criminal in nature and therefore, proof is beyond reasonable doubt.
In Mohammed v. Wammako & Ors (2017) LPELR-42667 (SC), the Supreme Court per Kekere-Ekun. J.S.C., held at Pp. 26 – 27 that: “…the allegation of forgery is criminal in nature. The standard of proof is beyond reasonable doubt. Evidence that would establish the allegation in this case beyond reasonable doubt would include: (a) exhibiting both the document from which the alleged forgery was made and the forged document; (b) evidence that it was the 1st respondent who forged the document(s); (c) … See APC v. PDP & Ors (2015) LPELR-24587 (SC), Ndoma-Egba v. A.C.B. Plc (2005) 14 NWLR (Pt. 944) 79.” By Section 135(1) and (2) of the Evidence Act 2011, the law makes it mandatory that if commission of a crime by any party to any proceeding is directly in issue, the standard of proof is that of proof beyond reasonable doubt. The burden is not placed on any other party than the person who asserts that a crime has been committed.
The Appellant in this appeal has failed to prove any of the ingredients of forgery that it had alleged against the Respondent.
For this and the more robust reasoning in the lead judgment. I also find this appeal lacking in merit. It is dismissed. I abide by all the other consequential orders contained in the lead judgment including that as to cost.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, EBIOWEI TOBI, JCA, where the facts have been clearly stated. The Claimant before the lower Court, the 1st Respondent herein sought among other reliefs, for a declaration that it is the holder of a Statutory Right of Occupancy over the property in dispute, within Asokoro District, Abuja to which the 2nd Respondent also laid claim.
The 1st Respondent contended that the said property was allocated to it by the Appellant in 1987 and that all the necessary fees have been paid, thus meeting all the requirements put in place by the Appellant. In spite of meeting all the conditions for the allocation and recertification, the Appellant failed to finalise the transaction.
The Appellant’s defence is a total denial of the allocation and that the documents, that is Exhibit AB1-AB8 did not emanate from his office, are not genuine but fake and forged.
The lower Court, upon conclusion of evidence, adjudged in favour of the 1st Respondent. Aggrieved, the Appellant has appealed to this Court.
I am in entire agreement with my learned brother’s reasoning and conclusions. The burden of proving that the title documents presented by the 1st Respondent did not emanate from the Appellant, lay on the Appellant to prove that they were forgeries.
This is because where the commission of a crime by a party to a proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt, and the burden of proof is on the person who asserts the commission of the crime. See Saleh v Abah (2017) 12 NWLR Part 1578 Page 100 at 153-154 Para G-D per Peter-Odili JSC, Nyesom v. Peterside (2016) 7 NWLR Part 1512 Page 452 at 533 Para E-F per Kekere-Ekun JSC.
See also Section 135(1) of the Evidence Act 2011(as amended).
In the instant case, as rightly held by the lower Court, the Appellant failed to prove that the certified documents presented by the 1st Respondent were forgeries. Apart from the mere denials, there is no concrete evidence to prove that the documents, viz Exhibits AB1-AB8 were forged.
It follows in consequence, that the 1st Respondent, by the duly proved documents presented by it, discharged the burden placed on it to prove its claim and is therefore entitled to be declared the holder of the Statutory Right of Occupancy over the land.
For this and the fuller reasons given by my learned brother, this appeal fails and it is dismissed. The judgment of the lower Court delivered by O.A. Musa J is accordingly affirmed. I subscribe to the award of costs awarded by my learned brother.
Appearances:
Chukwuka J. Oliobi, Esq, Assistant Director in the Federal Ministry of Justice, with him, Lami A. Bassagi, Esq, For Appellant(s)
Kalu Onuoha, Esq, For Respondent(s)
