MINISTER OF THE FCT v. CHANNEL PETROLEUM CORPORATION LTD
(2022)LCN/17106(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, October 05, 2022
CA/ABJ/CV/900/2021
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
THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY APPELANT(S)
And
CHANNEL PETROLEUM CORPORATION LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN FORMULATE ISSUES FOR DETERMINATION FOR PARTIES
The issues articulated by both parties are basically the same and all go to the meat of the appeal. However, I will articulate a sole issue in the determination of this appeal as allowed by law. See the case of ESENOWO VS SAM (2013) LPELR 21130 where the Court held as follows.
“Akaahs JCA (as he then was) held in the case of Udo v. Registered Trustees B.C. & Star (2011) 17 NWLR pt 1276 page 223 that: “Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court after consideration of those set out by the parties”. The main reason a Court sometimes articulates issues for parties is to narrow the issues in controversy between the parties in the interest of clarity, accuracy and brevity. A Court can also formulate issues for determination when the parties have not adequately covered the issues in controversy. See A. Int’l Ltd v. S. R. Int’l Ent. Ltd (2010) 13 NWLR pt 1211 page 270, Okoyeukwu V. Okoye (2009) 6 NWLR pt 1137 page 350.”
Per NDUKWE-ANYANWU, JCA.
See also Governor of Imo State VS E.F. NETWORK (NIG) LIMITED, NNADI VS BPE (2020) LPELR 50577. PER NDUKWE-ANYANWU, J.C.A.
THE POSITION OF LAW ON FORGERY
By this, the Appellant is alleging that the Respondent forged Exhibit A1 – Exhibit A8 and therefore, not entitled to the reliefs sought. What does the law envisage where there is an allegation of forgery?
I will, first of all, define what forgery means in this context.
“Forgery is the noun of the verb “forge” and to forge means inter alia, to make a copy or an imitation of something in order to deceive people. See OLUFEMI BABALOLA VS THE STATE (1989) LPELR 695 PER NGWUTA. And by the Black’s Law Dictionary, 8th Edition, pg 677 “forgery” is defined to include:
(1) The Act of fraudulently making false documents or altering a real one to be used as if genuine.
(2) A false or altered document made to look genuine by someone with intent to deceive. Per Mbaba, Justice Court of Appeal in EGEJURU VS MEDICAL AND DENTAL PRACTITIONERS INVESTIGATION PANEL (2017) LPELR 42616, APC VS PDP (2015) LPELR 24587, ADINNU VS ADINNU (2013) LPELR 21251, AGI VS PDP (2016) LPELR 42578. PER NDUKWE-ANYANWU, J.C.A.
THE ESSENTIAL ELEMENTS ON THE OFFENCE OF FORGERY
In an allegation of forgery, an essential ingredient to be proved is that the accused person forged the documents in question. See KAYODE IDOWU VS THE STATE (1998) LPELR 1427, ALAKE VS THE STATE (1992) 9 NWLR PT. 265 PG. 260.
In the instant appeal, the Appellant alleged that the Respondent forged Exhibit A1 – A8 but did not proffer any proof of that. Forgery can be alleged in a Civil Suit such as this. The ingredients of forgery both in criminal and civil matters are the same. They are as follows:
a) Existence of an original/genuine document.
b) That the document is forged.
c) That forgery was done by the accused.
d) That the accused knows that it was forged.
e) That the accused intended the forged documents to be acted upon as an original/genuine to the detriment of the victim, see ALAKE VS THE STATE (1991) 7 NWLR PT. 205 PG 567, APC VS PDP (Supra), OBIOMA VS THE STATE (2020) 3 NWLR PT 1710 PG 45, MODIBO VS USMAN (2020) 3 NWLR PT 1712 PG 470, ABEBE VS FRN (2020) LPELR 50806.
The burden and standard of proof in cases of forgery is like in criminal matter even where it is alleged in a civil matter. The onus is on the Appellant in this appeal to prove this allegation of forgery. The standard of proof is beyond reasonable doubt. To prove forgery, both the original and the fake (forged one) must be produced in Court for examination. See OKPALANGWU VS FRN (2021) LPELR 52710, EGEJURU VS MEDICAL AND DENTAL PRACTITIONERS INVESTIGATION PANEL (Supra), BABALOLA VS THE STATE (Supra). In APC VS PDP (Supra) the Court held inter alia: That before an allegation of forgery can be said to be established, the original documents and the forged ones must be tendered in evidence. It said: “In my view, based on the definition above, to prove forgery or that a documents is forged, two documents must be produced: (1) The document from which the forgery was made, and (2) The forgery or the forged document. Only one document – the allegedly forged HND Certificate was produced. If it is forged, then the genuine document from which the forgery was made must exist. No such document is in evidence; it follows the allegation of forgery of the HND Certificate was not proved and consequently, the appellant failed to prove the allegation that the 2nd respondent presented a forged HND Certificate to INEC.” See again Alake Vs State (supra) where my lord, Kutigi JSC (as he then was, later CJN) said: “It is implicit from the forgoing that there was no direct evidence that the appellant forged any of the cheques. It is an essential ingredient to be proved in charge of forgery that “the accused forged the document in question” PER NDUKWE-ANYANWU, J.C.A
WHETHER OR NOT THE ALLEGATION OF FORGERY MUST BE SPECIFICALLY PLEADED
The law required the Appellant to plead specifically forgery and prove it. It cannot be proved by evidence of DW1 which go to no issue in this appeal if not specifically pleaded.
In EYA VS OLOPADE (2011) LPELR 1184. Rhodes-Vivour JSC held as follows:
“The law is very well crystallized that where a plaintiff (appellant) avers in his pleadings that a document (Exhibit F) is a forgery, to succeed he must plead and provide particulars of forgery in his pleadings. Then proceed at trial to establish that Exhibit F is a forgery and the standard required is proof beyond reasonable doubt. The appellants’ did not provide particulars of forgery and did not lead evidence in proof of forgery. The pleading that Exhibit F is a forgery must be discountenanced as there was/is nothing before the Court to show that Exhibit F is a forgery.”Per RHODES-VIVOUR, JSC. PER NDUKWE-ANYANWU, J.C.A.
THE BURDEN AND STANDARD OF PROVING THE OFFENCE OF FORGERY
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 (2022) 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. 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). PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory delivered on 1st July 2021 by M. R. Osho- Adebiyi.
The facts of this appeal in the lower Court was that the Respondent as claimant claimed the following reliefs.
1. In the case before the trial Court, the Respondent as Claimant filed this suit against the Appellant by virtue of a Writ of Summons filed on the 7th day of September, 2020 against the Appellant. The Writ of Summons and the Statement of Claim are on pages 1 – 3 and 4 – 7 respectively of the record of Appeal.
2. The Respondent Claims against the Appellant as the sole Defendants at the trial Court are as follows:
a. A Declaration that the Claimant is the holder of the Statutory Right of Occupancy dated 2nd December, 2002, referenced (MFCT/LA/MISC.20897 over Plot No. 733 within Central Business District, Abuja.
b. A Declaration that the Claimant’s Statutory right of Occupancy over Plot No. 733 within Central Business District, Abuja is valid and subsisting.
c. A Declaration that the payment of the sum of N10,525,398.14 (Ten Million, Five Hundred and Twenty Five Thousand, Three Hundred and Ninety-Eight Naira and Fourteen Kobo) being the total assessed Rent, Fees, Premium, Survey Fees, development Levy, etcetera for the issuance of Certificate of Occupancy is valid and subsisting and represents full and final payment by the Claimant for issuance of Certificate of Occupancy over Plot No. 733 within Central Business District, Abuja.
d. An Order directing the Defendant to issue the Claimant with the Certificate of Occupancy over Plot No. 733 within Central Business Districts Abuja.
e. An Order of perpetual injunction restraining the Defendant whether by himself, 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 over Plot No. 733 within Central Business District, Abuja.
f. An Award of the sum of Ten Million Naira (N10,000,000.00) as general damages.
The Appellant as defendant filed his unconditional appearance and also filed his statement of defence. The Respondent’s case at the lower Court was that it was granted a Statutory Right of Occupancy Over Plot No 733 within the Central Business District Abuja in File No. MFCT/LA/MISC/17108. The Respondent said it filed the necessary papers for recertification. The Respondent claimed it paid a total of N10,525,398.14 (Ten Million, Five Hundred and Twenty Five Thousand Three Hundred and Ninety-Eight Naira Fourteen Kobo).
The Respondent claimed it filed all the necessary papers for recertification. The Respondent waited for its papers to be processed to no avail. Upon enquiry, the Appellant claimed that its papers had been misplaced.
During the trial, the Respondent tendered exhibit A1 – A8 which the Appellant claimed were forged. In the considered judgment of the trial Judge he held inter alia:
1. The trial Court in its judgment in favour of the Respondent (Claimant) ordered against the Appellant (Defendant) as follows:
a. That the Claimant is the holder of a Statutory right of Occupancy dated 7th September, 2000, referenced (MFCT/LA/MISC.17108) over Plot No. 733 within Central Business District, Abuja.
b. That the Claimant’s Statutory right of Occupancy over Plot No. 733 within Central Business district, Abuja is valid and subsisting.
c. That the payment of the sum of N10,525,398.14 (Ten Million, Five Hundred and Twenty Five Thousand, Three Hundred and Ninety-Eight Naira Fourteen Kobo) being the total assessed Rent, Fees, Premium, Survey Fees, Development Levy, etcetera for the issuance of Certificate of Occupancy is valid and subsisting and represents full and final payment by the Claimant for issuance of Certificate of Occupancy over Plot No. 733 within Central Business District, Abuja.
d. The defendant (sic) are ordered to issue the Claimant with the Certificate of Occupancy over Plot No. 733 within Central Business district, Abuja.
e. The Defendant are (sic) restrained whether by himself, 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 over Plot No. 733 within Central Business District, Abuja.
f. Both parties should bear its cost.
Being aggrieved by this judgment, the Appellant filed his notice with four (4) grounds on 18th August, 2021. The Appellant also filed its Appellant’s brief on 7th December 2021 and articulated three (3) issues for determination as follows:
a. Whether having regard to the evidence on record, the trial Court was right to have held that Exhibits A1 – A8 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 filed his Respondent’s brief on 23rd December 2022 and articulated three (3) issues also for determination 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? (Ground 2)
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)
The Respondent’s case at the lower Court was:
1. On the 28th day of December 2000 the Appellant issued the Respondent with an Offer of Terms of Grant/Conveyance of Approval in respect of the said Plot No. 733 within Central Business District, Abuja. A certified true copy of the said Offer of Terms of Grant/Conveyance of Approval which was at the trial tendered without objection and admitted in evidence as exhibit A3. The Respondent accepted the offer. A certified true copy of the Respondent’s Acceptance Letter was admitted in evidence and marked Exhibit A4.
2. Pursuant to the aforesaid grant, the Appellant demanded payment of the sum of N10,525,398.41, from the Respondent as Right of Occupancy Rents and Fees including the Premium for Certificate of Occupancy, Survey Fees and Development Levy in respect of the plot of land, the demand notice/bill was tendered without objection and admitted in evidence as Exhibit A5. The receipt evidencing the Respondent’s payment of the said N10,525,398.41 to the Appellant was tendered in evidence without objection and admitted in evidence as Exhibit A8.
3. The Respondent complied with the Appellant’s recertification policy by submitting the requisite documents for verification and recertification and paid the processing fee for the same. A copy of the recertification form was admitted in evidence as Exhibit A7; while a copy of the bank teller for payment of the re-certification fee was admitted in evidence as Exhibit A6.
4. The Respondent became aggrieved that over the years the Appellant was unable to complete the processing of the Respondent’s application for recertification of the said plot of land. In addition, the Appellant had also started to hold out that the file for the said plot of land was misplaced and missing; and had also purportedly subdivided the plot into two. The Respondent became aggrieved when it became aware that the Appellant’s actions constituted a scheme to dispossess the respondent of the plot of land and illegally take over the same. Consequently, the respondent commenced Suit No. FCT/HC/CV/2558/2020 at the lower Court and ought judicial intervention and redress.
The Appellant joined issues with the Respondent, and countered that the Respondent did not apply for allocation of land in Federal Capital Territory (FCT). The Appellant averred that the Respondent was not allocated the plot of land in issue by the Appellant. The Appellant denied issuing a bill/demand notice to the Respondent for payment of certificate of occupancy fees. The Appellant also denied receiving any payments for certificate of occupancy from the Respondent. The Appellant also maintained that the Respondent did not fill any form for recertification, and did not make any payment for re-certification to the Appellant. However, the Appellant did not produce any reliable evidence in proof of his allegation of forgery.
The Appellant’s Counsel in his argument submitted that the Respondent did not challenge the notion that Exhibit A1 – A8 were all forged. Therefore, the Exhibits would be taken as forged. See CAPPA AND D’ ALBERTO LIMITED VS AKINTILO (2003) 9 NWLR PT. 824 PG 49.
Counsel argued that the ownership of the land in the FCT is vested in the Federal Republic of Nigeria to be administered by the Minister of the FCT. See Section 1 (3) of the FCT Act Cap 503 LFN, 204. See also Section 18 of FCT Act. Counsel argued that it is only the Minister of the FCT that can determine the genuineness or otherwise of any allocation within the FCT. See ONA VS ATANDA (2000) 5 NWLR PT. 656 P. 244.
Counsel also argued that the DW1 gave enough proof beyond reasonable doubt that the Respondent’s documents were forgeries and not genuine. Counsel argued that proof is beyond reasonable doubt and not beyond a shadow of doubt. See JOHN VS THE STATE (2011) 12 SC PT. 1 PG 130, OLAYINKA AFOLALU VS THE STATE (2010) 5 – 7 SC PT. 2 PG 95, THE STATE VS OLADOTUN (2011) 5 SC PT 2 PG 133.
Counsel also argued that through DW1, the Appellant had discharged the burden placed on it, to prove the allegation of forgery by the Respondent. See UKEJE VS UKEJE (2014) 11 NWLR PT 1418 PG 384.
Counsel also argued that the learned trial Judge failed to evaluate properly the evidence placed before it. Counsel also claimed that the learned trial Judge relied heavily on the submission of the counsel to the Respondent in reaching its decision. See NIGERIA ARAB BANK LIMITED VS FEMI KANE LIMITED (1995) 4 NWLR PT. 387 PG 100. Counsel thereafter, urged the Court to resolve the three issues in its favour and allow this appeal.
In response, the Respondent’s Counsel submitted that the onus is on the Appellant to prove the allegation of forgery. See JULES VS AJANI (1980) 5-7 SC PG 96.
It is incumbent on the Appellant to demonstrate the forgery. See OGBEBOR VS IHASEE (2013) LPELR 20729. Counsel argued that the Respondent denied the allegation of forgery vide its reply to the statement of defence. The Appellant did not afford the Court an opportunity to see the genuine copy of the documents forged. More assertions do not prove forgery but must be backed with credible evidence. YAKUBU VS JAUROYEL (2014) 11 NWLR PT 1418 PG 205 where the Supreme Court held:
“It is not enough to plead fraud or that a document was fraudulently obtained when the evidence in support shows no such thing and this is all the more necessary where the forgery at the base of the fraud is a crime which has to be proved on the correct standard, that being beyond reasonable doubt, which is not going to be sidelined because the suit in dispute is civil. Furthermore, the pleading of fraud or forgery of fraudulent obtaining without evidence is of no value since pleadings cannot translate to evidence.”
Niger guards Ltd v. Usoroh (2010) 12 NWLR (Part 1208) 207 at 221 and 224; State v. Azeez (2008) ALL FWLR (Pt.424) 1423 at 1455; Egesimba v. Onuzuruike (2003) FWLR (PT. 128) 1410; Alake v. State (1992) 11/12 SCNJ (Pt.ll) 177 at 184; and State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 208 – 209.
See also ABDULSALAM VS THE STATE (2018) LPELR-45371.
Again, the Appellant certified Exhibit A1 – A8 as certified true copies of the original. This presupposes that the originals are in the custody of the Appellant. Under Sections 102 and 104 of the Evidence Act, 2011, Certified True Copies of Public documents are presumed to be genuine under Section 146 (1) Evidence Act. See AICE INVESTMENT COMPANY LIMITED VS FIDELITY BANK (2015) LPELR 25753, KAWU VS MINISTER FCT (2016) LPELR 41142, BAYAWO VS NDLEA (2018) LPELR 45030.
The learned Respondent’s Counsel also argued that the Appellant did not even make out a prima facie case of forgery nor prove it. Therefore, the onus cannot shift to the Respondent.
The Court rightly therefore, held that the Respondent proved its case against the Appellant. On the contrary, the Appellant failed to prove the allegation of forgery which is a crime.
Counsel finally urged the Court to resolve these issues in the Respondent’s favour and dismiss this appeal.
RESOLUTION
The issues articulated by both parties are basically the same and all go to the meat of the appeal. However, I will articulate a sole issue in the determination of this appeal as allowed by law. See the case of ESENOWO VS SAM (2013) LPELR 21130 where the Court held as follows.
“Akaahs JCA (as he then was) held in the case of Udo v. Registered Trustees B.C. & Star (2011) 17 NWLR pt 1276 page 223 that: “Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court after consideration of those set out by the parties”. The main reason a Court sometimes articulates issues for parties is to narrow the issues in controversy between the parties in the interest of clarity, accuracy and brevity. A Court can also formulate issues for determination when the parties have not adequately covered the issues in controversy. See A. Int’l Ltd v. S. R. Int’l Ent. Ltd (2010) 13 NWLR pt 1211 page 270, Okoyeukwu V. Okoye (2009) 6 NWLR pt 1137 page 350.”
Per NDUKWE-ANYANWU, JCA.
See also Governor of Imo State VS E.F. NETWORK (NIG) LIMITED, NNADI VS BPE (2020) LPELR 50577.
The sole issue is:
whether the Court below was right when it held that the Appellant failed to prove that the documents relied upon by the Respondent were forgeries.
The Appellant whilst denying all the averments of the Respondent in their pleadings stated categorically that the documents Exhibit A1 – A8 tendered by the Respondent were forgeries and as such the Respondent had no right to the reliefs sort by it in its claim.
By this, the Appellant is alleging that the Respondent forged Exhibit A1 – Exhibit A8 and therefore, not entitled to the reliefs sought. What does the law envisage where there is an allegation of forgery?
I will, first of all, define what forgery means in this context.
“Forgery is the noun of the verb “forge” and to forge means inter alia, to make a copy or an imitation of something in order to deceive people. See OLUFEMI BABALOLA VS THE STATE (1989) LPELR 695 PER NGWUTA. And by the Black’s Law Dictionary, 8th Edition, pg 677 “forgery” is defined to include:
(1) The Act of fraudulently making false documents or altering a real one to be used as if genuine.
(2) A false or altered document made to look genuine by someone with intent to deceive. Per Mbaba, Justice Court of Appeal in EGEJURU VS MEDICAL AND DENTAL PRACTITIONERS INVESTIGATION PANEL (2017) LPELR 42616, APC VS PDP (2015) LPELR 24587, ADINNU VS ADINNU (2013) LPELR 21251, AGI VS PDP (2016) LPELR 42578.
In an allegation of forgery, an essential ingredient to be proved is that the accused person forged the documents in question. See KAYODE IDOWU VS THE STATE (1998) LPELR 1427, ALAKE VS THE STATE (1992) 9 NWLR PT. 265 PG. 260.
In the instant appeal, the Appellant alleged that the Respondent forged Exhibit A1 – A8 but did not proffer any proof of that. Forgery can be alleged in a Civil Suit such as this. The ingredients of forgery both in criminal and civil matters are the same. They are as follows:
a) Existence of an original/genuine document.
b) That the document is forged.
c) That forgery was done by the accused.
d) That the accused knows that it was forged.
e) That the accused intended the forged documents to be acted upon as an original/genuine to the detriment of the victim, see ALAKE VS THE STATE (1991) 7 NWLR PT. 205 PG 567, APC VS PDP (Supra), OBIOMA VS THE STATE (2020) 3 NWLR PT 1710 PG 45, MODIBO VS USMAN (2020) 3 NWLR PT 1712 PG 470, ABEBE VS FRN (2020) LPELR 50806.
The burden and standard of proof in cases of forgery is like in criminal matter even where it is alleged in a civil matter. The onus is on the Appellant in this appeal to prove this allegation of forgery. The standard of proof is beyond reasonable doubt. To prove forgery, both the original and the fake (forged one) must be produced in Court for examination. See OKPALANGWU VS FRN (2021) LPELR 52710, EGEJURU VS MEDICAL AND DENTAL PRACTITIONERS INVESTIGATION PANEL (Supra), BABALOLA VS THE STATE (Supra). In APC VS PDP (Supra) the Court held inter alia: That before an allegation of forgery can be said to be established, the original documents and the forged ones must be tendered in evidence. It said: “In my view, based on the definition above, to prove forgery or that a documents is forged, two documents must be produced: (1) The document from which the forgery was made, and (2) The forgery or the forged document. Only one document – the allegedly forged HND Certificate was produced. If it is forged, then the genuine document from which the forgery was made must exist. No such document is in evidence; it follows the allegation of forgery of the HND Certificate was not proved and consequently, the appellant failed to prove the allegation that the 2nd respondent presented a forged HND Certificate to INEC.” See again Alake Vs State (supra) where my lord, Kutigi JSC (as he then was, later CJN) said: “It is implicit from the forgoing that there was no direct evidence that the appellant forged any of the cheques. It is an essential ingredient to be proved in charge of forgery that “the accused forged the document in question”
An allegation of forgery in a civil suit must be specifically pleaded and strictly proved EZE VS ENE (2017) LPELR 41916. It is not proper as in this case for the DW1 to allege forgery without really pleading it. Counsel to the Appellant argued that the Respondent did not challenge paragraphs 4 – 14 of the Appellant’s statement of defence.
The law required the Appellant to plead specifically forgery and prove it. It cannot be proved by evidence of DW1 which go to no issue in this appeal if not specifically pleaded.
In EYA VS OLOPADE (2011) LPELR 1184. Rhodes-Vivour JSC held as follows:
“The law is very well crystallized that where a plaintiff (appellant) avers in his pleadings that a document (Exhibit F) is a forgery, to succeed he must plead and provide particulars of forgery in his pleadings. Then proceed at trial to establish that Exhibit F is a forgery and the standard required is proof beyond reasonable doubt. The appellants’ did not provide particulars of forgery and did not lead evidence in proof of forgery. The pleading that Exhibit F is a forgery must be discountenanced as there was/is nothing before the Court to show that Exhibit F is a forgery.”
Per RHODES-VIVOUR, JSC.
It is also important that to prove forgery or that a document is forged, two documents must be produced.
(1) The document from which the forgery was made, and
(2) The forgery or the forged document. See APC VS PDP (2015) LPELR 24587.
In this appeal the Appellants alleged that all the documents tendered by the Respondent Exhibit A1 – A8 were forged. The Appellant did not produce the genuine documents from which the Exhibits were forged to the Court. The Appellant alleged forgery but could not prove it.
The standard of proof in a case of forgery must be beyond reasonable doubt APC VS PDP (Supra) MOHAMMED VS WAMMAKO (2017) LPELR 42667.
It is worthy of note that the documents alleged forged Exhibit A1 – A8 were all documents pertaining to this allocation of Plot 733 in the Central District. Exhibits A1 – A8 are sequential in the process of Land acquisition.
The Appellant’s stamps were on all the documents having been received by the Appellant. There was the Appellant’s stamp receiving the documents for recertification. Also worrisome is the Appellant’s officials certifying all the documents as a true copy of the original. If the Respondents actually certified the photocopies as public documents, where does it lie in its mouth to turn round and allege that they were forgeries?
The Appellant had certified all the documents Exhibit A1 – A8 as copies of the original, the Court shall presume them regular. See Section 146 and 168 of the Evidence Act.
Section 146 provides as follows:
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 authorised 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 (2011)
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 other 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 Matter Act and purporting to be a record of proceeding at a meeting of the company or of its director 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.F. VS ANUEBUNWA (2022) LPELR 57750, OGBUANYINYA VS OKUDO (1990) LPELR 2294, UZOMA VS ASODIKE (2009) LPELR 8421.
ANUEBUNWA VS. A.G.F. (2020) LCN/14805(ST) CA/A/CV/387/2020, OBIANWUNA OGBUANYINYA & ORS VS OBI OKUDO & ORS (1990) JELR 42978 (SC), OKECHUKWU UZOMA VS DR. VICTOR ASODIKE (2009) LCN/3134 (CA) CA/PH/188/2007). “It is trite, that literally speaking, the word ‘copy’, as a noun, means an imitation or reproduction of an original. Within the purview of the law of evidence, a copy is invariably and generally admissible to prove the contents of a writing. On the other hand, the word ‘Certificate’ is a derivative of the latin word – ‘Certificando’. It denotes a document in which a fact is formally attested e.g. Death certificate, school certificate, share certificate, certificate of marriage, certificate of occupancy, etc. Thus, the term ‘Certified True Copy’ or ‘certified copy’, for short, means a duplicate of an original (usually) official document certified as an exact reproduction by the officer responsible for issuing or keeping the original. It is termed or called ‘attested copy’; exemplified copy; ‘verified copy’ etc. See Black’s Law Dictionary 8th Edition 2004 at 239
Per SAULAWA, JCA (as he then was).
The Appellant having certified Exhibit A1 – A8 as true copies of the original, it would be unconscionable to deny the documents in another breath. As it is, the documents Exhibits A1 – A8 have been certified as copies of the original. The learned trial Judge was therefore, right to have accepted them as genuine documents in which the Respondent had utilised in proving his case against the Appellant.
I believe that the trial Court properly evaluated the material evidence placed before it by both parties. It is common ground that the primary duty of a trial Court is to adequately evaluate the evidence adduced in the case and make appropriate findings of facts in respect of all issues arising in the case and material in the determination of the case. Per Karibi Whyte JSC in WILSON VS OSHIN (2000) LPELR-3497. Mukhtar Justice Supreme Court also has this to say.
“Proper evaluation of evidence is absolutely important for in order to determine a case and come to a just conclusion, it is trite that the learned trial Judge must assess and appraise all evidence before him.” See ADELEKE VS IYANDA (2001) 13 NWLR PT 729 PG 1, ADENIJI VS ADENIJI (1972) 4 SC PG 10.
Having held that the learned trial Judge assessed the material evidence placed before him correctly, I would consequently agree with his findings. The documents tendered by the Respondent toward the certification of Plot 733 were allocated to him genuinely by the Appellant.
I therefore, find this appeal without merit. It is dismissed. I affirm the judgment of the lower Court and all the reliefs granted to the Respondent.
Cost to the Respondent is assessed at (N200,000.00) Two Hundred Thousand Naira only.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, UZO I. NDUKWE-ANYANWU, JCA, where the facts and contentions in issue have been well articulated.
The Respondent, as Claimant before the lower Court, had sought the following reliefs:
a. A Declaration that the Claimant is the holder of the Statutory Right of Occupancy dated 2nd December, 2002, referenced (MFCT/LA/MISC.20897 over Plot No. 733 within Central Business District, Abuja.
b. A Declaration that the Claimant’s Statutory right of Occupancy over Plot No. 733 within Central Business District, Abuja is valid and subsisting.
c. A Declaration that the payment of the sum of N10,525,398.14 (Ten Million, Five Hundred and Twenty Five Thousand, Three Hundred and Ninety-Eight Naira Fourteen Kobo) being the total assessed Rent, Fees, Premium, Survey Fees, Development Levy, etcetera for the issuance of Certificate of Occupancy is valid and subsisting and represents full and final payment by the Claimant for issuance of Certificate of Occupancy over Plot No. 733 within Central Business District, Abuja.
d. An Order directing the Defendant to issue the Claimant with the Certificate of Occupancy over Plot No. 733 within Central Business Districts Abuja.
e. An Order of perpetual injunction restraining the Defendant whether by himself, 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 over Plot No. 733 within Central Business District, Abuja.
f. An award of the sum of Ten Million Naira (N10,000,000.00) as general damages.
The Respondent’s case at the lower Court was that it was granted a Statutory Right of Occupancy Over Plot No 733 within the Central Business District Abuja in File No. MFCT/LA/MISC/17108. It alleged that it filed the necessary papers for recertification and paid a total sum of N10,525,398.14 (Ten Million, Five Hundred and Twenty Five Thousand Three Hundred and Ninety-Eight Naira Fourteen Kobo). It waited for its papers to be processed, to no avail. Upon enquiry, the Appellant claimed that its papers had been misplaced. The Appellant, however at trial contended that all the documents presented by the Respondent were forged.
The lower Court, in its judgment, held the documents of title presented by the Respondent to be valid and subsisting. It also held proved the payments made by the Respondent. It accordingly ordered the Appellant to issue the Respondent with the Certificate of Occupancy over Plot No. 733 within Central Business district, Abuja. It also made injunctive orders restraining the Appellant from unlawfully revoking and/or expropriating or in any manner howsoever interfering with the rights, title of the Respondent over the said plot. Aggrieved, the Appellant has appealed.
I agree with my learned brother’s well reasoned judgment that the lower Court rightly held that the Respondent proved its case against the Appellant and that the Appellant failed to prove the allegation of forgery against the Respondent. This is because, under Section 135(1) of the Evidence Act 2011 (as amended), where the commission of crime by a party to any proceeding is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt. See Bureau of Public Enterprises v Dangote Cement Plc (2020) 5 NWLR Part 1717 Page 322 at 351 Para E per Eko JSC; Anyanwu v PDP (2020) 3 NWLR Part 1710 Page 134 at 164-165 Para H-A per Okoro JSC.
I also agree with my learned brother that the documents tendered by the Respondent toward the re-certification of Plot 733 were allocated to him genuinely by the Appellant. I therefore find this appeal without merit and dismiss it. I accordingly affirm the judgment of the lower Court and agree with the order for costs made against the Appellant by my learned brother.
EBIOWEI TOBI, J.C.A.: I have read in draft, the leading judgment just delivered by my learned brother Uzo I. Ndukwe-Anyanwu, JCA dismissing the appeal as lacking in merit. I agree entirely with the reaching and the conclusion reached therein. This appeal is lacking in merit and it is also dismissed by me. My lord has adequately covered the field on the main issue at stake in the appeal and the position of the law. I will just add a few cases of mine in support of the judgment.
The Appellant has alleged that the documents of title that the Respondent relied on to buttress his claim were all forged. These documents are Exhibits A1-A8 which are mainly documents which emanated from the Appellant. The Appellant certified the documents as true in line with Section 104 of the Evidence Act 2011. The question therefore is, in the light of that allegation, where lies the burden of proof and further, whether the burden was properly discharged? The law on the burden of proof generally is settled beyond any dispute. This is that the burden of proof is on the party alleging or asserting a fact. See Akinola vs Lafarge Africa Plc (2022) 12 NWLR (pt 1844) 379. In the case at the lower Court and this appeal, it is the Appellant that is alleging that the documents are forged and therefore the burden is on him to prove that allegation. The standard of proof required is beyond all reasonable doubt since an allegation of forgery is criminal in nature whether made as a criminal offence or in a civil case.
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; Nigerian Airforce vs Kamaldeen (2007) 7 NWLR (pt 1032) 164. 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 believe 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 detriment (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 (2022) 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. 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 requirements of making same is presumed regular.
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 a Court to take such allegation seriously, there must be clear and specific pleading alleging and cogent 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 to call 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.
That apart, there is unchallenged pleading and evidence that the documents were certified by the Appellant. The certification of the said documents implies that the documents emanated from the Appellant and that comparing the tendered documents with the original, it is the same in content and structure. The certification of those documents by the Appellant means that the original or counterpart of the documents is in the custody of the Appellant and that the documents are genuine. On the strength of that, I am completely at a loss as to the bases of the Appellant challenging the documents on the ground that they are forged.
This in my opinion is completely out of place. I do not think the Appellant can deny documents that emanated from it and in its custody wish he certified to be true.
The Appellant has admitted that the sum of N10,525,398 was paid by the Respondent over the property, that is Plot 733 within Central Business District Abuja for fees including the issuance of the Certificate of Occupancy. The justice of the case demands that this appeal be dismissed on all grounds.
For the above reasons and much more for the more comprehensive reasons in the leading judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA I also dismiss the appeal as lacking in merit.
I abide by the order for cost.
Appearances:
C. J. OLIOBI, ESQ. For Appellant(s)
KALU ONUOHA, ESQ. For Respondent(s)