NASIR & ANOR v. EFCC & ANOR (2020)

NASIR & ANOR v. EFCC & ANOR

(2020)LCN/14253(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/256/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. MAHMOOD MOHAMMED NASIR 2. DR W. A. M. SHITTU TITILOLA APPELANT(S)

And

ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. EHIZUWA ABUMERE (BEING THE ADMINISTRATOR OF THE ESTATE OF PROF. ABUMERE) RESPONDENT(S)

RATIO

THE CRIMINAL OFFENCE OF FORGERY AND ITS LEGAL IMPLICATION

Forgery is a criminal offence and the legal implication is that the allegation has to be proved beyond reasonable doubt. This is because if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. See Section137 (1) of the Evidence Act and the cases of OMORHIRHI & ORS, VS. ENATEVWERE (1988) 1 NWLR (PT.73) 746 and FOLAMI VS.COLE (1990) 2 NWLR (PT.133) 445.
The above only goes to show that the standard of proving forgery as a criminal offence whether in a civil or criminal proceedings remains the same i.e. proof beyond reasonable doubt. PER IDRIS, J.C.A.

WHETHER OR NOT IT IS ENOUGH TO PLEAD THAT A DOCUMENT WAS FRAUDULENTLY OBTAINED WHEN THERE IS NO EVIDENCE IN SUPPORT OF IT
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 alleged 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 or fraudulent obtaining without evidence is of no value since pleadings cannot translate to evidence. See the cases of NWAGA VS. REGISTERED TRUSTEES CLUB (2004) FWLR (PT. 190) 1360; NEW NIGERIAN BANK PLC VS. DENCLAG LTD (2004) ALL FWLR (PT. 228) 606; PROF. AJIBAYO AKINKUGBE VS.EWULUM HOLDINGS (NIG.)LTD & ANOR (2008) 4 SC 125; EDOKPOLO & CO. VS.OHENHEN (1994) 7 – 8 SCNJ 500. PER IDRIS, J.C.A.

WHAT IS REQUIRED TO BE PLEADED IN AN ALLEGATION OF FORGERY IN CIVIL CASES

The Supreme Court has provided the guide. In the case of AINA VS. JINADU (1992) 4 NWLR (PT.233) 91 at 106, it was stated as follows:
”The offence of forgery is committed when a person knowingly makes a document or writing which is false with intent that it may in any way be issued or acted upon as genuine to his prejudice. While it may be necessary to plead all ingredients of forgery as defined in Section 465 of the Criminal Code, a party alleging the crime must plead its major ingredients. These include the person who committed the offence and the document forged. Of course, he must also plead facts, which will enable the Court to infer means rea. A mere loaded vague and nebulous averment is not enough for the purposes of pleading the crime of forgery.”(Emphasis Mine). PER IDRIS, J.C.A.

WHEN IS AN EXPERT WITNESS EVIDENCE REQUIRED BY THE COURT

Section 68(1) and (2) of the Evidence Act, 2011 has made provision for when the evidence of an expert is necessary as follows:
“when the Court has to form an opinion upon a point of foreign law, customary law or when custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in subsection (1) of this Section are called experts.” PER IDRIS, J.C.A.

WHETHER OR NOT ANY ACT OF TRESPASS GIVES THE INJURED PARTY RIGHT TO RECOVER DAMAGES

It is firmly established that any act of trespass gives the injured party right to recover damages. It matters less if the injured party suffered no physical injury or substantial damage, for the injured party is entitled to receive compensation for discomfort or inconvenience(s) caused to him, by unlawful interference with his right of possession (Emphasis mine). See the cases of OKONKWO VS. OGBOGU (1996) 5 NWLR (PT. 449) 420; UMUNNA & 5 ORS VS. OKWURAIWE & 3 ORS (1978) 6 – 7 S. C. 1and ONWU VS. NKA (1996) 7 NWLR (PT. 458) 1.
It can be said that general damages must flow from the injury suffered and it is always at large and at the discretion of the Court. In all cases the Court must exercise its discretion judicially and judiciously.
With regard to award of damages the Supreme Court per Karibi Whyte, JSC in the case of ENGR. SAMUEL D. YALAJU-AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS (1990) 6 SCNJ 149/172 reiterated thus:
“It is well settled law that general damages is the kind of damages which the law presumes to flow from the wrong complained of. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated and filed on the 12th Day of October, 2009, the Appellants as Plaintiffs at the trial Court instituted an action against the 1st Respondent as 1st Defendant at the trial Court and upon the application of the 2nd Respondent, the 2nd Respondent was joined as the 2nd Defendant at the trial Court.

On the 18th of May, 2012, the Appellants filed an Amended Writ of Summons and further filed a further Amended Writ of Summons dated and filed on the 24th day of February, 2014 and sought for the following reliefs against the Defendants jointly and severally:
1. A DECLARATION that the 1st Defendant cannot lawfully constitute itself in to an investigator and a judge over the dispute between the Plaintiffs and the Children of Professor S.I. Abumere.
2. A DECLARATION that the 1st Plaintiff is entitled to the benefits of the terms in the Power of Attorney and the Deed of Assignment donated by professor S.I. Abumere until declared otherwise by the Court of competent Jurisdiction.
3. A DECLARATION that the endless investigation by the 1st Defendant over Plot 910

within Gwarimpa District of the Federal Capital Territory, Abuja since August 2006 is unreasonable, unwarranted and a gross violation of the Plaintiffs right to fair hearing under Section 36 of the 1999 Constitution (As Amended).
4. A DECLARATION that any alleged criminal indictment of the Plaintiffs by the 1st Defendant without recourse to their trial in a Court of Competent Jurisdiction for the alleged criminal indictment is illegal, null and void and a violation of their right to fair hearing under Section 36 of the 1999 Constitution.
5. AN ORDER directing the 1st Defendant to hand over to the Plaintiffs forthwith, the certificate of occupancy, Deed of Assignment, Power of Attorney and all the title documents confiscated or obtained from the Plaintiff by the Agents of the 1st Defendant.
6. AN ORDER of Perpetual Injunction restraining the Defendants, their agents, servants or privies from continuing to harass, intimidate or invite the Plaintiffs to the offices of the 1st Defendant for purposes of investigations regarding the ownership of Plot 910, Gwarimpa District, Abuja.

On the other hand, the 2nd Respondent filed a further Amended

Statement of Defence and Counter-claim dated and filed on the 4th of November, 2015.

The Appellants also filed a reply to the 1st and 2nd Respondents Statement of Defence dated 2nd May, 2012 and filed on the 18th May, 2012.

In his Counter-claim, the 2nd Respondent counter-claimed against the Appellants as follows:
1. A DECLARATION that the purported sale by one Sunday Oghiator to the 1st Plaintiff/ Defendant to the Counter claim being without the consent of Professor Sylvester Abumere is fraudulent, unlawful, illegal, pro-tan to void and same be set aside by the Honourable Court.
2. AN ORDER setting aside the purported sale of Plot 910 Gwarimpa District as same was purchased and sold in fraudulent circumstances and without the consent and authority of Professor Sylvester Abumere.
3. A DECLARATION that the purported sale by one Sunday Oghiator to the 1st Plaintiff/ Defendant to the Counter-claim being without the consent of Professor Sylvester Abu mere is fraudulent, unlawful, illegal, pro-tan to void and same be set aside by the Honourable Court.
4. AN ORDER setting aside the purported sale of Plot 910 Gwarimpa District as same

was purchased and sold in fraudulent circumstances and without the consent and authority of the late Professor Sylvester Abumere.
5. AN ORDER directing the 1st Defendant to forthwith release the Certificate of Occupancy No: bseuw03ad4z-4f4dr-e2aeu-10 to the 2nd Defendant/ Counter Claimant.
6. AN ORDER on the Registrar of Deeds of the Abuja Geographic Information Systems (AGIS) to cancel and or strike out the 1st Defendant’s purported title.
7. AN ORDER of perpetual Injunction restraining the Plaintiffs/ Defendants to Counterclaim either by themselves, Agents, Privies, Assigns Representative in interest or howsoever called from trespassing on Plot 910 Gwarimpa District 1 covering an area of 3, 184.03 sq2 as it forms part of the Estate of late Professor Sylvester Abumere.
8. General damages of N5,000,000 (Five Million Naira) for the acts of trespass.
9. Cost of Five Hundred Thousand Naira.

Before going into the appeal, here is a summary of the facts involved in this Appeal below.

It is the claim of the Appellants that sometime on the 30th of April, 2002, the 1st Appellant was donated a power of Attorney by one Professor

Sylvester Abumere who is now Late and the original allotee of Plot 910 within Gwarimpa District of the Federal Capital Territory, Abuja subject matter of this appeal.

The Appellants also claim that a Deed of Assignment was also executed between the 1st Appellant and the said Professor Abumere.

The Appellants claim that the land upon which the power of Attorney and Deed of Assignment relates is covered by a certificate of occupancy number bseuw03ad4z-4f4dr-e2aeu-10 (after re-certification) and registered as No. 6469 at page 6469 in Volume 33 of the certificate of occupancy register in the Land registry, Abuja.

The Appellants’ Claim that on the 27th February, 2006, the 1st Respondent arrested the 2nd Appellant who is the mother of the 1st Appellant for illegal possession of the title documents to the said Plot 910, Gwarimpa District, Abuja.

It is also the Appellants’ Claim that the 2nd Appellant was the one who paid for the land on behalf of the 1st Appellant to the Late Prof. Abumere before the power of Attorney and the Deed of Assignment were executed.

The Appellants claim that the 2nd Appellant was subsequently released on

bail by the 1st Respondent on the condition that she deposited the certificate of occupancy in its office and it was so deposited with the officers of the 1st Respondent named Shuaibu Abdullahi and Mr Boateng on the 2nd day of August, 2006.

The Appellants’ claim that the 1st Respondent had continued to invite the 2nd Appellant to their office for interrogations and continued to adjudicate upon the dispute between the Appellants and the children of the Late Professor Abumere.

It is also the claim of the Appellants that the late Professor Abumere, having executed legal documents in favor of the 1st Appellant in respect of the said Plot 910, the Respondents cannot deprive the 1st Appellant of the benefits of the instruments over the land.

The Appellants at the trial Court opened their case on the 10th of October, 2012 calling two witnesses, PW1 and PW2. They both testified and tendered Seven (7) Documents admitted and marked as Exhibits A, B, C, D1, D2, E, F and G respectively as follows:
Exhibit A – Power of Attorney
Exhibit B – Deed of Assignment
Exhibit C – Letter of Offer
Exhibits D1 and D2 – Professor

Abumere’s Documents
Exhibit E – PW2’s Statement to the EFCC
Exhibit F – Sample signature of PW2
Exhibit G – PW2’s Statement to the EFCC

The Appellants’ closed their case on the 25th February, 2013 and the matter was adjourned to 17th April, 2013 for the defence to open its case.

The Respondents at the trial Court opened their case on the 17th April, 2013 calling five (5) witnesses, DW1, DW2, DW3, DW4 and DW5 through whom Twenty-Eight (28) documents were tendered, admitted and marked as Exhibits H1 – P respectively as follows:
Exhibit H1 – Letter of request from the 1st Respondent addressed to the University of Ibadan requesting for documents signed by Professor Abumere
Exhibit H2-H17 – Letters obtained from the University of Ibadan bearing signatures of the late professor Sylvester Abumere.
Exhibit I1 – Letter of Request dated February 9, 2011 to DW1 from Ibrahim Adoke.
Exhibit I2 – Letter of Request dated September 23, 2011. Issued by Ibrahim Adoke
Exhibits J1-J3 – Forensic experts reports on examination documents/comparative table showing the Late

Professor Abumere’s Standard and disputed signatures.
Exhibit K – Copy of Petition written to the 1st Respondent by the 2nd Respondent.
Exhibit L – Original Copy of the Letters of administration of the Estate of Professor Abumere.
Exhibits M – Copy of the Petition written by the 2nd Respondent.
Exhibits N – Subpoena DucesTecum issued to the DW4
Exhibits O1 and O2 – Union Bank statements of the two accounts maintained by the Late Professor Abumere before his death.
Exhibit P – Form filled by late Professor Abumere for re-certification.

The Respondents closed their case on the 24th of March, 2015 and the matter was adjourned to 7th July, 2015 for adoption of final Written Addresses. The Parties adopted their respective Final Written addresses on the 29th of February, 2016.

After considering the evidence led by parties, the Learned Trial Judge, Honourable Justice A.A.I.Banjoko delivered Judgment in the Suit No.FCT/HC/CV/2313/2009 on the 14th November, 2016 wherein the trial judge partly dismissed the Appellants’ claim and granted the 2nd Respondent’s counter-claim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Dissatisfied with the Judgment of the trial Court, the Appellants filed a Notice of appeal dated 21st November, 2016, comprising of three grounds of appeal. The Appellants Amended the Notice of Appeal dated and filed 17th of April, 2018 containing Four (4) grounds of Appeal and the parties filed and exchanged their respective briefs of argument.

In the Appellants brief of argument as settled by his counsel S.T. Ologunorisa SAN, and dated 3rd October, 2018 and filed 4th October, 2018, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Learned Trial Judge was Right when he dismissed some of the reliefs sought by the Appellants on the basis that the documents of title in respect of Plot 910 within Gwarimpa District, Abuja were forged (Ground 1).
2. Whether the Learned Trial Judge was right to have granted 5 of the Reliefs Sought in the Counter-claim of the 2nd Respondent (Ground 2).
3. Whether the learned Trial Judge was Right to have dismissed reliefs 2, 5 and 6 sought by the Appellants in view of the preponderance of evidence before the Court (Ground 3).
4. Whether the Learned

Trial Judge was right to have admitted and relied on Exhibits 01 and 02 (Ground 4).

The Appellants’ Counsel argued the four issues raised together. The Appellants’ Counsel argued that in addressing the issue of forgery, the learned trial judge recognized that there is a heavier burden on the 2nd Respondent to prove the assertion beyond reasonable doubt and the 2nd Respondent failed to satisfy this burden of proof bearing in mind that he must proof his claims in the Counter-claim on the merit.

The Appellants’ Counsel also argued that the onus is on the Respondents to prove forgery beyond reasonable doubt and the burden never shifts as the duty can only be satisfied after a thorough examination of the quality of evidence given by the Respondents.

The Appellants’ Counsel argued that a close examination of the evidence of DW1 shows that it fell short of the standard of proof required.

The Appellants’ Counsel also argued that the Learned Trial Judge relied heavily on the evidence of DW1 in several portions of his judgment. He further argued that the parties joined issues in their respective pleadings on the

authenticity of the Late Professor Abumere’s signature.

The Appellants’ Counsel argued that PW1 and PW2 gave evidence to the execution of Exhibits A and B. Also, the DW1 was Cross-examined on his report and it is therefore not correct to regard DW1’s testimony as unchallenged.

The Appellants’ Counsel argued that when a Court is called upon to determine the genuineness of a signature, it is not only the evidence of handwriting expert that is relevant. On this point, he referred this Court to Section 72(1) of the Evidence Act.
The Appellants’ Counsel also argued that Exhibits H2 – H16 shows that the documents DW1 utilized as authentic signature of the late Professor Abumere were documents purportedly taken from the custody of the University of Ibadan and the non-certification of these documents makes it inadmissible and worthless.

The Appellants’ Counsel also argued that the Exhibits upon which the evidence of DW1 is based becomes more suspicious as no evidence was given as to how and when Exhibits H2-H16 got into the 1st Respondent’s Custody. On this point, the Appellants’ Counsel cited

the case of GOODWILL & TRUST INVESTMENT LIMITED & ANOR VS. WITT & BUSH LIMITED (2011) 8 NWLR (PT. 1250) PAGE 500.

The Appellants’ Counsel also argued that the letter of complaint by the 2nd Respondent to the 1st Respondent was dated 1st March, 2016 (Exhibit K) and the evidence before the trial Court shows that Exhibits H1 to H16 and J1 and J2 were procured in 2011, five years after the complaint and two years after the case was instituted.

The Appellants’ Counsel also argued that the learned Trial Judge ignored the purport and effect of Section83(3) of the Evidence Act. Counsel also argued that the 1st Respondent cannot be a judge in its own cause where issues have been joined on the pleadings and that DW1 cannot qualify as an independent Expert witness. On this point, the Appellants’ Counsel cited the case of DISU OLOMO VS.SUNDAY APE (2015) 14NWLR (PT. 1478) PAGE 46.

The Appellants’ Counsel argued that any expert evidence which falls short of the standard of credibility and veracity ought not to have been relied upon by the trial Court. On this point, the Appellants Counsel cited the case of DR. JOHN OLUKAYODE FAYEMI VS. OLUSEGUN ADEBAYO ONI & ANOR

(2009) 7 NWLR (PT. 1140) PAGE 223 AT PAGES 277 TO 278 PARAS E – B.

The Appellants’ Counsel argued that the DW3 gave evidence that he was not in the Country when the transaction occurred and that he admitted that PW2 was his father’s personal assistant who helped him on land matters. He also denied the signature on Exhibit H15 under cross-examination.

The Appellants’ Counsel argued that the PW2 is no doubt acquainted with Professor Abumere’s handwriting and that he identified Exhibits A and B as documents issued by the Late Professor. The Appellants’ Counsel also argued that PW1 has also interacted with the Late Professor’s work as a consultant to the Urban and Regional Planning Department of the Federal Capital Authority. The Appellants’ Counsel further argued that both the PW1 and PW2 gave credible evidence which has in no way been shaken by the Respondents who have failed to tender what they regard as the genuine signature of the Late Professor Abumere.

The Appellants’ Counsel argued that the main thrust of the Appellants case is not the

proof that N2,500,000 (Two Million Five Hundred Thousand Naira) was paid into Late Professor Abumere’s account but that the deceased executed the documents of title and that they are being deprived of same wrongly. Counsel further argued that the trial judge impeaching the credibility of PW2 was unnecessary.

The Appellants’ Counsel also argued that it is erroneous to rely on Exhibits O1 and O2 tendered by the Respondents in proof of their own case, to show that N2,500,000 (Two Million Five Hundred Thousand) was not paid to Professor Abumere.

The Appellants’ Counsel argued that Exhibits O1 and O2 were not pleaded. However, the Learned Trial Judge marked the said documents as Exhibits and admitted them despite objection.

The Appellants’ Counsel also argued that the Learned Trial Judge wrongly held that Section 84 of the Evidence Act was complied with, the witness having attached a certificate pursuant to the said Section 84.

The Appellants’ Counsel also argued that the case of forgery upon which the defence and Counter-claim is hinged having collapsed, the Respondents have absolutely nothing to place on the scale

to contradict the evidence of PW1 and PW2.

The Appellants’ Counsel also argued that the import of Section 128 of the Evidence Act is that in the absence of evidence of forgery which must be proved beyond reasonable doubt, Exhibits A and B remains uncontroverted. On this point, he cited the case of EZEMBA VS. IBENEME (2004) 14 NWLR (PT. 894) PAGE 617.

The Appellants’ Counsel also argued that having produced documents of title which are duly authenticated and uncontroverted, the Appellants have satisfied the conditions and the learned trial judge fell into error to have expunged Exhibit B from the records and held that Exhibit A on its own part did not confer legal rights and interest on the Appellants.

The Appellants’ Counsel argued that the Learned Trial Judge did not grant the two Declarations sought by the 2nd Respondents but went ahead to grant an order setting aside the purported sale of the Plot and returning the title documents to the 1st Respondent on the ground of fraud which the Appellants have shown that the Respondents did not prove.

The Appellants’ Counsel argued that the learned Trial Judge granted

perpetual injunction to restrain the Appellants from trespassing on the land and damages in the sum of N500,000 (Five Hundred Thousand Naira) for trespass. He further argued that there is no pleadings or evidence that the Respondents are in possession of the land but rather the pleadings relate only to the counter-claim on who has the right to hold the title documents of the land.

In conclusion, the Appellants’ Counsel argued that the Respondents gave no evidence of trespass and supplied no iota of proof in support of the relief for injunction and damages for trespass and it is not the business of the Court to grant reliefs not sought for.

In the 1st Respondent’s brief of argument as settled by its counsel, Chioma Okongwu, dated 26th November, 2018 and filed 27th November, 2018, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Trial Judge was wrong in relying on the evidence of DW1, a forensic expert in holding that exhibits an exhibits were forged.
2. Whether the learned Trial Judge was not wrong in relying on the exhibits O1 and 02 in evidence and according them

probative value.
3. Whether the learned Trial Judge was not right in granting the 2nd Respondent’s Counterclaim.

On Issue One, the 1st Respondent’s Counsel in response to the argument of the Appellants in Paragraph 3.16 of the Appellants Brief of argument, argued that the Exhibits H2 – H16 obtained from the University of Ibadan were all original documents obtained from the official personnel file of the Late Professsor Abumere and since they are originals, they need no certification. On this point, he cited the case of KASSIM VS. STATE (2017) LPELR – 42586(SC).

The 1st Respondent’s Counsel also argued that DW1 does not have any form of interest in the dispute, subject matter of this Appeal but was only called to give evidence as to whether Exhibits A and B were executed by the late Professor Abumere. On this Point, he cited the case of N.S.I.T.F.M.B. VS.KLIFCO NIGERIA LIMITED (2010) 13 NWLR (PT. 1211) 307.

The 1st Respondent’s Counsel argued that the evidence of DW1 was not controverted by the Appellants in any manner and therefore the Court has the duty to act on same. On this point, he cited the case of

SEISMOGRAPH SERVICES (NIG) LIMITED VS.OGBENI, 1976 3SC 18, 1976 LPELR – 3029 SC.

In concluding the argument on this issue, the 1st Respondent’s Counsel argued that the Learned Trial Judge was right to have acted on the testimony of DW1 as the evidence is a specialized kind of evidence and especially as the evidence was not whittled down in the course of cross-examination.

On issue two, the 1st Respondent’s Counsel argued that the learned trial judge was right to have admitted Exhibits O1 and O2 in evidence as the two exhibits revealed that there is nowhere in the statements where any payment of N2,500,000 (Two Million Five Hundred Thousand) was made in respect of the Plot, subject matter of this appeal.

The 1st Respondent’s Counsel further explained the applicability of Section 84 of the Evidence Act to the case by analyzing the applicability of the said Section 84 citing the case of DICKSON VS.SYLVA (2016) LPELR – 41257 SC.

On Issue Three, the 1st Respondent’s Counsel argued that the Learned Trial Judge granted the Counterclaim of the 2nd Respondent on valid grounds. Counsel also argued that the evidence

of DW1 was able to establish that Exhibit A and B were forged and upon the pronouncement of the Court that the said Exhibits were forged, the property subject matter of this Appeal reverts to the estate of the Late Professor Abumere. On this point, counsel cited the case of ROMAINE VS.ROMAINE (1992) NWLR (PT. 238) 650.

The 1st Respondent’s Counsel also argued that Exhibit B is not valid enough to have vested title on the Appellants since there was no consideration on the face of Exhibit B and as such invalidates the said Exhibit. On this point, he cited the case of ODUSOGA VS. RICKETTS (1997) 7 NWLR (PT. 511).

In conclusion, the 1st Respondent’s Counsel argued that even if Exhibit A is valid, it cannot confer any interest in the land on the Appellants. On this point, counsel cited the case of EZEIGWE VS.AWUDU (2008) 11 NWLR (PT. 1097) SC 158 AT 176 PARA B – D.

In the 2nd Respondent’s brief of argument as settled by his counsel Adeyemi Pitan Esq; dated and filed 5th November, 2018 the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Learned Trial Judge was not

right when he held that Exhibits A and B were forged placing reliance on the unimpeachable and uncontroverted evidence of DW1 (Expert evidence) (Ground 1)
2. Whether exhibits O1 and O2 were not clear evidence that was no payment whatsoever by the Appellants for the Property in question. (Ground 4)
3. Whether the Learned Trial Judge was not right when she held that having regard to exhibit A and B, the Appellants are not entitled to the benefits of the power of Attorney (Exhibit A) and Deed of Assignment (Exhibit B). (Ground 2).

On issue one (1), the 2nd Respondent’s Counsel argued that the evidence of DW1 is most helpful to this Court as there was no evidence challenging the evidence of DW1.

The 2nd Respondent’s Counsel also argued that Exhibit H2 – H16 which DW1 based his report were tendered in their original forms and as such admissible and were rightly admitted in evidence. On this point, he cited the case of PDP VS. INEC (2014) 17 NWLR (PT. 1437) PAGE 525 AT 563.
Also citing the case of UTC (NIG) PLC VS. LAWAL (2014) 5 NWLR (PT. 1400) SC 221 AT 245 PARA C – H the 2nd Respondent’s Counsel argued that

DW1 performing his official duties cannot under any guise be said to be an interested person.

The 2nd Respondent’s Counsel argued that the cross-examination of DW1 as contained in pages 410 – 411 of the Record of Appeal was neither extensive or destructive, it remained unchallenged and there is nothing in the evidence of DW1 that will make the evidence to be discountenanced or discarded by the ourt.

The 2nd Respondent’s Counsel argued that the cases of FAYEMI VS. ONI and ANPP & ANOR VS. ALHAJI SAIDU NASAMU USMAN & 2 ORS (2008) 12 NWLR (PT.1100) cited by the Appellants are not applicable in this case.

The 2nd Respondent’s Counsel argued that the 2nd Respondent by reason of his father to son relationship, is acquainted with his father’s signature and upon comparing Exhibits A and B, concluded that Exhibits A and B were not signed by his father and as such were forged and so, the decision of the trial Court cannot be faulted in any way relying on Section 72 of the Evidence Act.

In concluding the argument on this issue, the 2nd Respondent’s Counsel argued that there was no evidence to show that the

statements by PW1 and PW2 that they were familiar with the Late Professor Abumere’s signature would make Section 72 of the Evidence Act applicable and this evidence is overwhelming to buttress that Exhibit A and B was apparently forged.

On issue two, the 2nd Respondent’s Counsel argued that the applicability of Section 84 of the Evidence Act was resolved in the case of DICKSON VS. SYLVA (2016) LPELR – 41257 SC. Counsel further argued that by this decision, the DW4 who had printed, prepared and tendered the computer generated account statement as well as certificate of compliance has fulfilled the requirement of law.

The 2nd Respondent’s Counsel also argued that the 2nd Respondent tendered Exhibit E through PW2, which was made in 2006 and that the said Exhibit derogates from the oral evidence of the said PW2 during trial. He further argued that a clear perusal of Exhibit 01 reveals that there was no evidence of cash deposit of N2, 500,000 (Two Million, Five Hundred Thousand Naira).

Conclusively on this issue, the 2nd Respondent’s Counsel urged this Court to disregard the entire evidence and testimony of PW2 as his

evidence before the Court are inconsistent. On this point, he cited the case of OBRI VS. STATE (1997) LPELR – 2194 (SC).

On issue three, the 2nd Respondent’s Counsel argued that a perusal of Exhibit B clearly shows that it doesn’t contain a consideration clause and that it is only the assertion of PW1 and PW2 that money was paid into the Late Professor Abumere’s account that is before the Court.

The 2nd Respondent’s Counsel also argued that the 2nd Respondent in proof of his case, caused the DW4 to be subpoenaed and she tendered Exhibits 01 and O2 which does not show that the sum of N2,500,000 (Two Million Five Hundred Thousand Naira) was paid to Professor Abumere’s Union Bank Account. Counsel further argued that Exhibits A and B cannot amount to a valid contract because the Appellants did not furnish consideration for the property in dispute even if there was any sale at all. On this point, counsel cited the case of CHABASAYA VS. ANWASI (2010) 10 NWLR (PT. 1201) SC 163.

In concluding the argument, the learned Counsel for the 2nd Respondent argues that there is no land transaction between the deceased

Professor Abumere and the Appellants or any other person whatsoever and that Exhibits A and B are forged as established by the only expert witness. On this point, counsel cited the case of OJIBAH VS. OJIBAH (1991) 5 NWLR (PART 191) 296 and urged this Court to sustain the judgment of the trial Court and dismiss the Appeal with substantial cost.

The Appellants’ Counsel filed a Reply dated 4th March, 2019 and filed on the 6th March, 2019 respectively to both the 1st and 2nd Respondent’s Briefs of Argument. The said reply Briefs were settled by the Appellants’ Counsel, Sam Ologunorisa SAN.

In Reply to both the 1st Respondent and 2nd Respondent’s Brief of Argument, the Appellants’ Counsel argued that there was nowhere in the entire Records of Appeal where Exhibits H2 – H16 were referred to as originals and they are not allowed to add to the evidence already given or give evidence from the bar.

The Appellants’ Counsel also argued that the 1st Respondent’s Counsel mis-applied the cases of KASSIM VS. STATE (2017) LPELR – 42586 (SC) and NSITFMB VS.KLIFCO NIGERIA LIMITED (2010) 13 NWLR (PT. 1211).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The 1st Appellants’ Counsel argued that the 1st Respondent’s Counsel failed to address the fact that the Exhibits were not pleaded and lacked probative value.

The Appellants’ Counsel also argued that it is the evidence of the Appellant that they gave money for the subject matter of this Appeal to the PW2 who also gave evidence to confirm that he received money and gave the money to one Ajisafe who is Professor Abumere’s account officer at Union Bank Plc.

The Appellants’ Counsel also argued that Exhibit A was not tendered as proof of title perse but proof that Professor Abumere dealt with the Appellants and had the intention to sell his property and did sell his property, the subject matter of this Appeal to the 1st Appellant.

In Reply to the 2nd Respondent’s Brief of Argument, the Appellants’ Counsel argued that the 2nd Respondent lodged a report with the 1st Respondent since 1st March, 2006 but the 1st Respondent took no step to investigate the signatures until 2011 when the 1st Respondent procured DW1 who is in the employment of the 1st Respondent to impugned the signature in Exhibit A and B and

provide defence in the civil suit.

The Appellants’ Counsel in concluding the argument therein, argued that the 2nd Respondent’s Brief of Argument failed to address all the Germaine issues but rather concentrated on the discredited evidence of DW1 and the probative value of Exhibits 01 and 02.

RESOLUTION OF THE ISSUES
Having summarized the arguments of counsel, I wish to adopt the issues raised by the Appellants’ Counsel herein, and will address the issues thereon. The issues are:
1. Whether the Learned Trial Judge was Right when he dismissed some of the reliefs sought by the Appellants on the basis that the documents of title in respect of Plot 910 within Gwarimpa District, Abuja were forged.
2. Whether the Learned Trial Judge was right to have granted 5 of the Reliefs Sought in the Counter-claim of the 2nd Respondent.
3. Whether the learned Trial Judge was Right to have dismissed Reliefs 2, 5 and 6 sought by the Appellants in view of the preponderance of evidence before the Court.
4. Whether the Learned Trial Judge was right to have admitted and relied on Exhibits 01 and 02.

Since all the issues are

interwoven, they would be resolved together. Firstly, on the issue of dismissal by the trial Court of some of the reliefs sought by the Appellants at the trial Court on the basis that documents of title were forged, this task may prove to be a herculean task as the person who was said to have transacted with the Appellants is now late and could not have been called to say “I actually did transact with the Appellants, I sold my land and executed documents to that effect.”

I am then left with the evidence before this Court both documentary and oral to resolve the issue of whether the documents relating to the land, the subject matter of this Appeal was forged or not which warranted the dismissal of some of the reliefs of the Appellants at the trial Court.
In resolving this issue, it would be important to look at the meaning of forgery and how to prove forgery in a Civil Proceeding.
Forgery is a criminal offence and the legal implication is that the allegation has to be proved beyond reasonable doubt. This is because if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

See Section137 (1) of the Evidence Act and the cases of OMORHIRHI & ORS, VS. ENATEVWERE (1988) 1 NWLR (PT.73) 746 and FOLAMI VS.COLE (1990) 2 NWLR (PT.133) 445.
The above only goes to show that the standard of proving forgery as a criminal offence whether in a civil or criminal proceedings remains the same i.e. proof beyond reasonable doubt.
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 alleged 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 or fraudulent obtaining without evidence is of no value since pleadings cannot translate to evidence. See the cases of NWAGA VS. REGISTERED TRUSTEES CLUB (2004) FWLR (PT. 190) 1360; NEW NIGERIAN BANK PLC VS. DENCLAG LTD (2004) ALL FWLR (PT. 228) 606; PROF. AJIBAYO AKINKUGBE VS.EWULUM HOLDINGS (NIG.)LTD & ANOR (2008) 4 SC 125; EDOKPOLO & CO. VS.OHENHEN (1994) 7 – 8 SCNJ 500.

Now this brings us to the fact of whether the Respondents in this Appeal pleaded facts of forgery and also lead evidence in proof of the forgery thereof.
A perusal of the pleadings filed by both the 1st and 2nd Respondents at the trial Court respectively reveals that the act of forgery was specifically pleaded. See Pages 114,168 and 169 of the Record of Appeal Respectively.
What is therefore required to be pleaded in allegation of forgery in civil cases?
The Supreme Court has provided the guide. In the case of AINA VS. JINADU (1992) 4 NWLR (PT.233) 91 at 106, it was stated as follows:
”The offence of forgery is committed when a person knowingly makes a document or writing which is false with intent that it may in any way be issued or acted upon as genuine to his prejudice. While it may be necessary to plead all ingredients of forgery as defined in Section 465 of the Criminal Code, a party alleging the crime must plead its major ingredients. These include the person who committed the offence and the document forged. Of course, he must also plead facts, which will enable the Court to infer

means rea. A mere loaded vague and nebulous averment is not enough for the purposes of pleading the crime of forgery.”(Emphasis Mine).
From the pleadings of the Respondents at the trial Court, it is clear that their contention is that the signature of Late Professor Abumere who is the original allotee of the plot, subject matter of this Appeal on the Power of Attorney and Deed of Assignment marked as Exhibits A and B were forged by the Appellants. See pages 112 – 116 and pages 165 – 170 of the Record of Appeal Respectively.
The Respondents in proof of its case of forgery of the signature of the Late Professor Abumere in Exhibits A and B against the Appellants, gave evidence through DW1 and DW2 whom are forensic document examiner and a handwriting expert and an operative of the 1st Respondent who obtained documents from the University of Ibadan, bearing the signature of the Professor Abumere for examination respectively.
The Appellants’ counsel have however, contested in his brief of Argument that the DW1 and the DW2 are in the employ of the 1st Respondent.
The Appellants’ Counsel also contested that the DW3 who is

the son of the Late Professor Abumere and the 2nd Respondent in this case, did nothing more than state that the signature in Exhibits A and B does not belong to the deceased and nothing more. Section 68(1) and (2) of the Evidence Act, 2011 has made provision for when the evidence of an expert is necessary as follows:
“when the Court has to form an opinion upon a point of foreign law, customary law or when custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in subsection (1) of this Section are called experts.”
The DW1 furnished the Court with particulars of his skills and expertise which makes him qualified as expert to give the evidence for which he was called. See pages 404 and 405 of the Record of Appeal for the DW1’s particulars of expertise and also, paragraphs 1 – 4 of his witness statement on oath before this Court contained in Page

121 of the Record of Appeal.
Both the DW1 and DW2 were sworn on oath to tell the truth and even during cross-examination, they were able to show that they were acting in line with their duty and there was even no proof of bias by the Appellants to warrant the disregard of the Expert evidence by this Court. See also Page 410 of the Record of Appeal. From the foregoing, this Court strongly agrees with the trial Court that the DW1 is an expert.
In the case ofAPENA VS. AIYETOBI(1989) 1 NWLR (PT. 95) 85, this Court held that a surveyor or any expert in his field of knowledge who makes a statement in any form, in respect of a matter in Court at any stage of the proceedings, is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise.
The submission of Appellants’ counsel on the issue of the DW1 and DW2 being in the employ of the 1st Respondent is not tenable as there is no evidence to support his conclusion that DW2 and DW1, as forensic and handwriting analyst respectively, made the report to favour the 1st Respondent because they are both under its employment. There must be a

real likelihood of bias before a person making a statement can be said to be a ‘person interested’ in accordance to Section 83(3) of the Evidence Act, 2011.
Also, the DW1 utilized Exhibits H2 – H16, documents taken from the custody of the University of Ibadan to prove that the documents, Exhibit A and B does not contain the signature of the Late Professor Abumere who is said to have signed them.
The Appellants’ Counsel further argued that the documents Exhibits H2 – H16 were public documents which ought to be certified by an officer in custody of the documents which they failed to do. The Respondents’ Counsel on the other hand argued that the said documents were the original Copy. Whether it is the original or the secondary copy of these documents which ought to be certified that was tendered, I am of the firm view that these documents are relevant to the proceeding in proving the authenticity of Exhibits A and B.
In the law of evidence, the relevance of facts encompasses a wide area. Generally, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts

as may be declared under the Evidence Act to be relevant. No doubt, it is the surrounding circumstances that will determine this relevancy of a fact. See the case of OKONKWO OKONJI (ALIAS WARDER) & ORS VS. GEORGE NJOKANMA & ORS (1999) LPELR – 2477(SC).
The fact that Exhibits A and B consistently stated to be forged by the Respondents were specifically pleaded and also, the Exhibits H2 – H12 was extensively pleaded by the 1st Respondent confirms its relevancy to their case in proving that the Exhibits A and B were forged by the Appellants.
On the other hand, the Provisions of Section 72 of the evidence Act permits the evidence of the DW3 as it relates to giving evidence to handwriting and signature of the Deceased as he can be said to have knowledge of the said handwriting and signature by virtue of their father and son relationship.
In Paragraph 20 (iii) – (v) of the DW3 witness statement on oath contained in pages 173 and 174 of the Record of Appeal, DW3 stated that he shall lead evidence to buttress the fact that his father, the late Professor Abumere did not sign the Exhibits A and B but he never did. See also the

testimony of the said DW3 at page 413 – 416 of the Record of Appeal.
This leaves the evidence of DW1 as a strong and unwavering expert evidence to prove that the Exhibits A and B were forged and nothing in the evidence of the Appellants shows otherwise that the signature of the late Professor Abumere was genuine. I am of the firm view that the 1st Respondent was able to prove beyond reasonable doubt that the Exhibits A and B were forged and has been able to shift the burden to the Appellants who has failed to prove the contrary.
It is therefore my strong view and I agree also with the findings of the Trial Judge that the document Exhibit A and B were forged. I further agree with the decision of the trial Court wherein it expunged Exhibit B and having done so, even Exhibit A cannot confer any legal right of the Plot, subject matter of this Appeal on the Appellants.

This issue is hereby resolved in favour of the Respondents.

On the issue of whether the Learned Trial Judge was right to
have admitted and relied on Exhibits O1 and O2, I would first of all address the argument of the Appellants Counsel that Exhibits O1 and 02 were not

pleaded.

The said Exhibit O1 and O2 were tendered by DW4 who was invited to do so by a subpoena DucesTecum; Exhibit N.
In the case of ODU VS. DUKE AND ORS (2004) LPELR – 5335 (CA)(P. 8, Paras F – G) per Dongban-Mensem, JCA this Court held thus:
“A subpoena duces tecum is thus a Court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process….”
The above definition clearly shows that a subpoena ducestecum is initiated by a party who requires same for the production of documents which would be relevant to the facts in issue. This only show that the facts of those documents does not have to be pleaded. They are in the possession of another and would be relevant to the facts in issue and that is the essence of a subpoena ducestecum.

Now, it is important to reproduce pieces of evidence by the Appellants during trial at the lower Court to aid my findings. During

Cross-examination of the PW1 contained in page 393 of the Record of Appeal the PW1 stated thus:
“The land was an offer to me by Professor Abumere himself. Honestly, I cannot remember and I wouldn’t lie to that. It has been a long time.
I paid N2.5Million.
Exhibit A was registered in 2009 after the death of the Professor Abumere.
I paid cash
…
Until recently transaction in land, you don’t take receipts.”

At Page 395 of the Record of Appeal during his evidence in chief, PW2 stated thus:
“On Phone, Professor Abumere called me that I should meet up with Shittu that she was going to give me money. I went to Shittu, and me and her driver went to Eco Bank in Wuse 2 where she collected money and gave me N2.5Million and me and the driver drove to the Union Bank in Area 3, Abuja. The Accountant officer in that Bank is Mr.Ajisafe and he asked why are we paying cash today because we used to pay by draft, I told him that is the message I gave him the money to pay it into Professor Abumere’s account, He has two accounts on that branch. One is Ehitayo Associates and in Professor Abumere (Company

and Personal)
I can’t remember into which account the money was paid. MrEjisafe is Accounting officer to Professor Abumere.
…
I met Dr Shittu with Professor. Then with an agreement so Professor signed and I witnessed it.”

From the above testimonies, it can only be deduced that N2.5Million Naira cash was paid by the 2nd Appellant through the PW2 on behalf of the Late Professor Abumere into the Late Professor’s Account with Union Bank Plc.
The Respondents especially the 2nd Respondent argues otherwise and this has left the Court with no option but to make do with documentary evidence.
The Deed of Assignment, Exhibit B did not show that the consideration price for the land was N2.5 Million Naira or for any consideration at all and even if the Court should believe the testimony of the PW1 and PW2, there is even no receipt or teller to show that such money was indeed paid.
Oral evidence comes in handy to throw more light on documentary evidence. On oral evidence vis-a-vis documentary evidence there is a plethora of case law. See the cases of VINCENT U. EGHAREVBA VS. DR. OROBOR OSAGIE (2009) 18 NWLR (PT. 1173)

299; FASHANU VS.ADEKOYA (1974) 6 SC 83; KIMDEY & 11 ORS VS.THE MILITARY GOVERNOR OF GONGOLA STATE & ORS (1988) 2 NWLR (PT. 77) 445. It is trite law as these authorities show that documentary evidence should be used as a hanger from which to hang oral evidence.
It is therefore on this note that I found that Exhibits O1 and O2 were important to show that N2.5 Million Naira was paid to either of the two accounts maintained by the late Professor Abumere with Union Bank Plc which is relevant to the case at hand.

Before concluding on this Point, it is worthy of mention here to state that the DW4 who was invited to the Court by a Subpoena ducestecum was invited to do so by submitting Exhibits 01 and 02 and nothing more. The DW4 also went further to show a certificate of compliance as regards Exhibits 01 and 02 thereby complying with Section 84 of the Evidence Act, 2011.
The issuance of a subpoena ducestecum against a person to tender document(s) does not make that person liable to give evidence on oath or be cross-examined. See the cases of EDOHO VS. A – G, AKWA IBOM STATE (1996) 1 NWLR (PT. 425) 488; FAMAKINWA VS. U. I. (1992) 7 NWLR

(PT. 255) 608.
In the case of OLUBEKO VS.AWOLAJA & ANOR (2017) LPELR – 41854(CA) this Court, per Nimpar, JCA at (Pp. 23 – 27, Paras. C – D) explained what the Subpoena ducestecum is as follows:
“The subpoena issued in this case was subpoena tecum simpliciter and therefore it was a command to produce documents and not testify. The attempt by the Appellant to cross examine the subpoena witness was disallowed by the Court and the trial judge was right to have done so. The person subpoenaed was simply to produce documents and not to testify as a witness. You can only cross-examine a witness called by the other side to testify. This has nothing to do with fair hearing because the law has defined the role of a person subpoenaed to produce a document and not to testify. A person subpoenaed to produce need not enter the witness box as his duty is merely to produce to the Court the documents named in the subpoena. For whatever purpose, the said CW2 was sworn before telling the Court that he was subpoenaed to produce the documents, which he brought to Court. He was also made to file a written statement on oath contrary to settled position

of the law on such persons appearing on subpoena to produce. He was not examined in chief and therefore the need to cross-examine cannot arise. Whatever the subpoenaed person said to Court was between himself and the Court. The claimant also cannot examine him concerning any other thing outside the tendering of the documents. If, however, he is converted to a full witness then, the normal course of dealing with such class of witness must be observed…I have perused the record of appeal and supplementary record of appeal and I find therein that CW2 though sworn in, was never treated as a normal witness. He was not supposed to be sworn, see OGUNTAYO V ADELAJA (2009) 15 NWLR (PT 1163) 150 SC. In the said evidence he merely reiterated the steps taken and the documents he was asked to bring to Court….”

Considering the totality of my findings above, it is my strong view and I so hold that the learned trial judge was right to have admitted and relied on Exhibits O1 and O2. I hereby resolve this point in favour of the Respondents.

On the issue of whether the learned trial Court was right to have granted 5 of the reliefs sought in the

Counter-claim of the 2nd Respondent.

Firstly, it is the argument of the Appellants’ Counsel as contained in Paragraphs 3.58 of the Appellants Brief of Argument that the Learned Trial Judge did not grant the declaration sought in paragraphs 31 and 32 of the 2nd Respondent’s Amended statement of Defence and Defence to Counter-claim but went ahead to grant the reliefs claimed in its Paragraphs 33,34 and 35 on the ground of fraud.

It is settled that although the grant of a declaratory relief is at the discretion of Court, a party seeking the relief must succeed on the strength of his own case and not on the weakness of the defence.
The declaratory relief is granted to a claimant who has by concrete and satisfactory evidence shown his entitlement thereto. It is not even granted on the admission by the adverse party. See the cases of ANYANRU VS. MANDILAS LTD (2007) 4 SC (PT. 111) 58; DUMEZ NIG.LTD VS. NWAKHOBA (2008) 18 NWLR (PT. 119) 361.

The declarative reliefs sought by the 2nd Respondent in paragraphs 31 and 32 of 2nd Respondent’s Amended statement of Defence and Defence to Counter-claim are reproduced as follows:

“A DECLARATION that all that property lying and situate at Plot 910 Gwarimpa 1 District, Cadastral Zone CO2 Abuja covering an area of 2,727,335 Sq2 forms part of the Estate of Late Professor Abumere.
32. A Declaration that the purported sale by one Sunday Oghiator to the 1st Plaintiff/Defendant to Counterclaim not being without the consent of Professor Abumere is fraudulent, unlawful, illegal, pro tanto void and same be set aside by this Honourable Court.”

I do not need to over flog the fact that I have already found and upheld the decision of the Court that the documents in respect of the title to the plot, subject matter of this Appeal was forged and the Appellants have failed to prove by credible and substantial evidence that they are entitled to the Plot in question.

In addition, and from the authorities on declarative reliefs already cited above, I am of the firm view that the 2nd Respondent were able to prove the grant of the Declarative reliefs sought in its Counterclaim and the failure of the trial Court to grant the said declarative relief is treated as an omission by it. I hereby resolve this point in favour of the 2nd

Respondent.

With regards to the argument of the Appellants’ Counsel in Paragraphs 3.61 of the Appellants Brief of Argument that the Respondent gave no evidence of trespass and supplied no iota of proof in support of the relief for injunction and damages for trespass.

It is elementary law that a plaintiff who has successfully established his action for trespass to land is entitled to damages, whether or not he proved that he suffered any damage or loss whatsoever. That is, trespass is actionable per se, with or without proof of actual or any damage. See the cases of OJINI VS. OGO OLUWA MOTORS (NIG.) LTD (1998) 1 NWLR (PT. 534) 353 AND INYANG & ORS VS.EKPE (2009) LPELR – 8086. Also, the quantum of damages to be awarded to a plaintiff in respect of trespass to land under general damages is within the discretion of the trial Court. The assessment for the sum awarded does not depend on any legal rules or established principles, but on the discretion of the trial Court. However, the said discretion is not totally unfettered, it is subject or limited by usual or common caution; prudence and remoteness of damages. See the case of OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265.

such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See also the cases OF LAR V. STIRLING ASTALDI LTD. (1977) 77/12SC 53; OMONUWA V. WAHABI (1976) 4 SC 37.
General damages may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded. It arises from inference of law and need not be proved by evidence. It suffices if it is generally averred. See the case of INCAR VS. BENSON (1975) 3 SC 117.

I have given thorough considerations to the established principles guiding award of damages in actionable trespass. More importantly, the reasons among others, where an award of damages by the trial Court will be interfered with have been enunciated in ERO VS. TINUBU (2012) 8 NWLR (PT.1301) 104/132 – 133 F – B. It has been stated thus:
“An appellate Court will not interfere with an award of damages by a trial Court unless in situation which includes:- a. Where the Court acted under wrong principles of law; b.Where the Court acted in disregard of applicable

principles of law. c. Where the Court acted in misapprehension of facts. d. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award. e. Where injustice will result if the appellate Court does not act. f. Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of damage….”

In the final Result on this point and considering the authorities cited above, I hereby uphold the award of general damages in the sum of N500,000.00 (Five Hundred Thousand Naira) for acts of trespass over the said land by the learned trial judge. This point is hereby resolved in favour of the 2nd Respondent.

In sum, this Court is satisfied that the Appellants failed to prove entitlement to the plot in issue and in upholding the decision of the Learned Trial Judge, I find that the legal title in the Plot subject matter of the Appeal is vested in the Estate of the late Professor Abumere who is the original allottee of Plot 910, Gwarimpa District, Federal Capital Territory, Abuja.

This Court upholds the grant of the reliefs sought by the Appellants by the trial Court thus:

A DECLARATION that the 1st Defendant cannot lawfully constitute itself in to an investigator and a judge over the dispute between the Plaintiffs and the Children of Professor S.I. Abumere.
2. A DECLARATION that the endless investigation by the 1st Defendant over Plot 910 within Gwarimpa District of the Federal Capital Territory, Abuja since August 2006 is unreasonable, unwarranted and a gross violation of the Plaintiffs right to fair hearing under Section 36 of the 1999 Constitution (As Amended).
3. A DECLARATION that any alleged criminal indictment of the Plaintiffs by the 1st Defendant without recourse to their trial in a Court of Competent Jurisdiction for the alleged criminal indictment is illegal, null and void and a violation of their right to fair hearing under Section 36 of the 1999 Constitution.

As regards the Counter-claim, this Court upholds the decision of the trial Court but holds in addition as follows:
1. A DECLARATION that the purported sale by one Sunday Oghiator to the 1st Plaintiff/Defendant to the Counter claim being without the consent of Professor Sylvester Abumere is fraudulent, unlawful,

illegal, pro-tan to void and same is set aside by the Honourable Court.
2. AN ORDER setting aside the purported sale of Plot 910 Gwarimpa District as same was purchased and sold in fraudulent circumstances and without the consent and authority of professor Sylvester Abumere.
3. AN ORDER directing the 1st Defendant to forthwith release the Certificate of Occupancy No: bseuw03ad4z-4f4dr-e2aeu-10 to the 2nd Defendant/ Counter Claimant.
4. AN ORDER on the Registrar of Deeds of the Abuja Geographic Information Systems (AGIS) to cancel and or strike out the 1st Defendant’s purported title.
5. AN ORDER of perpetual Injunction restraining the Plaintiffs/ Defendants to Counterclaim either by themselves, Agents, Privies, Assigns Representative in interest or howsoever called from trespassing on Plot 910 Gwarimpa District 1 covering an area of 3, 184.03 sq2 as it forms part of the Estate of late Professor Sylvester Abumere.
6. General damages of N5,000,000 (Five Million Naira) for the acts of trespass.
7. As Regards Cost, each party should bear their own costs.
In totality, this appeal is hereby dismissed.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I am in agreement with his reasoning which I adopt as mine and the conclusion that this appeal is lacking in merit.

I too do dismiss the appeal for lacking in merit. I abide by the consequential Orders made in lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. My lord has resolved the issues distilled for determination in an exhaustive manner. There is nothing to add, I adopt the judgment as mine and abide by the orders made therein.

Appearances:

A. Badejo, SAN, with him, S. T. Ologunrisa, SAN, L. Laoye, Esq., A. I. Audu, Esq. and O. C. Aina, Esq. For Appellant(s)

Okonjo, Esq. – for 1st Respondent
A. Pitan, Esq., with him, N. Okonkwo, Esq. and I. Aribisala, Esq. – for 2nd Respondent For Respondent(s)