ARCH-BISHOP JOHN OBI OKEKE
APPELLANTS
FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY LAW AND CONVEYANCING
The Prosecution (Respondent) at the trial court claimed that the Appellant (Defendant at trial court) was entrusted with a parcel of land at Festac Town by one Ignatius Ozurumba in the year 2000 when he was travelling abroad. The said Mr. Ignatius Ozurumba gave the Appellant some amount of money to pay for ground rent on his behalf. That upon return from his journey, he enquire about the documents to the land but the Appellant told him that he misplaced the papers to the land. However, he observed that some persons had trespassed on the land and when he enquired, the people said that the land was sold to them by the Appellant. Upon making search in the file at the Federal Housing Authority, it was discovered that the Appellant had forged documents in the file, hence the petition written to EFCC by Mr. Ignaitus Ozurumba which resulted in the case at the trial court.
The Appellant on the other hand claimed that the land was allocated to him by Federal Housing Authority and not Mr. Ignatius Ozurumba because he made all the necessary payments and obtained the letters of allocation. That he was later forced to sell the land because the place was water logged and he misplaced the paper work at some point.
The Appellant was charged alone as Defendants on 8 counts charge. Upon the full prosecution of the case against the Appellant and was acquitted on 2 counts of the charge and found guilty on 6 counts of the charge, convicted and sentenced to imprisonment accordingly.
The Appellant was dissatisfied with the decision hence the instant appeal.
Appeal dismissed
Ø Whether the learned trial judge was right in law when she failed to make any finding on the issue raised on behalf of the Appellant as to the legal inadmissibility of the documents admitted in evidence as Exhibit P17, P18, P19 (a), P19 (b), P19 (c), P21, and D2 respectively?
Ø Whether the learned trial judge was right in law to have relied on Exhibit P17, P17 (a), P17 (b), P18, P19 (a), P19 (b), P19 (c), P21 (a), P21 (b), P21 (c), P21 (d), P21 (e ) and D2 which are uncertified photocopies of public documents to convict the Appellant in this case?
Ø Whether the learned trial judge was right in convicting the Appellant in respect of the offence in count two of the information after finding that the Federal Housing Authority’s original allocation papers with Red. No. FHA/EST/33 dated 18th February, 1993 covering the parcel of land in question was lost and that the Appellant did not intend to permanently deprive the complainant of the document, the complainant having voluntarily handed the document to the Appellant?
Ø Whether the learned trial judge properly evaluated the evidence adduced in this case when she convicted the Appellant of the offences in counts 2, 3, 4, 5, 6 and 8 of the information in this case?
Ø Whether the prosecution proved counts 2, 3, 4, 5, 6 and 8 of the information against the Appellant beyond reasonable doubt to warrant the Appellant’s conviction by the learned trial judge in the circumstance of this case?
The word used in Order 6 (1) (a and b) is ‘’SHALL’’ and when the word ‘’SHALL’’ is used in a statute or provision of the Rules of Court makes it mandatory that the rule must be observed. The Apex Court in the case of DIOKPA FRANCIS ONOCHIE & ORS V. FERGUSON ODOGWU & ORS (2006) All FWLR (Pt. 317) 544 made it clear that the word ‘’shall’’ when used in a statute or rule of Court, makes it mandatory that the rule or provision, must be observed. – Per M. S. Hassan, JCA
It is not in dispute from the submission of both parties that these documents were admitted in evidence by the trial Court without objection by the Appellant, the question is can the Appellant be heard to complain about the admissibility of these documents at this stage, the answer is not far fetch, the correct position of the law is that the test or principle that govern admissibility of documentary evidence are whether or not the document is pleaded by the party or parties to the proceedings, whether it is relevant to the subject matter of the case before the Court and whether the document is admissible in law, any objection on the admissibility of a document is taken when the document is tendered in evidence and not afterwards, where an objection has not been raised by the opposing party to the reception of a piece of evidence, the document will be received in evidence and the opposing party cannot afterwards be heard to complain about its admission. It is the law that once the conditions for admissibility of a document are met at the trial Court and the document is admissible an appellant who failed to object at the trial Court can no longer do so on appeal. See ETIM v. EKPE (1983) LPELR-1172 (SC); SHURUMO v. THE STATE (2010) 19 NWLR (Pt. 1226) 73. – Per M. S. Hassan, JCA
Forgery is defined in Section 465 of the Criminal Code, it provides ‘’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 the State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document or writing.’’ – Per M. S. Hassan, JCA
On definition and ingredients of the offence of stealing, the Apex Court in WAHABI ADEJOBI & ANOR v. THE STATE (2011) LPELR-97 (SC) per ADEKEYE, JSC at pages 38-39 said ‘’A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely-1. The ownership of the thing stolen.
Ownership is a most vital and indispensible essential ingredient of the offence of stealing. There must be evidence that the property is owned by a person. That person could be known or unknown but the property must be owned or capable of being owned. – Per M. S. Hassan, JCA
Now settled law that where a document of ownership of property reflects or is issue in the name of a person, it serves as prima facie evidence that ownership of property is invested in that person. Julius Berger Nig. Ltd v. Ede (2003) 8NWLR Part 823 Page 526; Odebunmi v. Abdullahi (1997) 2 NWLR Part Oyovbiare v. Omamurhomu (1999) Part 621. Whereas the law is that the person brandishing a document of title to land is not automatically entitled to it, presumption, albeit rebuttable is that the person named on that document is invested with title and thereby placing the onus of a rebuttal on the person asserting otherwise. – Per M. S.Hassan, JCA
Per RHODES-VIVOUR, JSC in CHIEF SAMUSIDEEN AFOLABI AYORINDE & ORS V. CHIEF HASSAN SOGUNRO & ORS (2012) LPELR-7808 (SC) Pages 22-23 said ‘’Evaluation of evidence comes in two forms. (a) Findings of fact based on the credibility of witnesses and (b) Findings based on evaluation of evidence. In (a) an appeal Court should be slow to differ from the trial judge. After all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be accorded some respect. But in (b) an appeal Court is in as good a position as the trial Court to evaluate the evidence. In both (a) and (b) the conclusion of the trial judge should be accorded much weight except found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the court to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation’’. – Per M. S. Hassan, JCA
Now a document is said to be forged if the whole or a part of it is made by a person with all falsity and knowledge of the falsity, and with the intention that it may be used or acted upon as genuine to the prejudice of the victim. The offence of uttering on the other hand occurs when a person knowingly and fraudulently utters a false document, or writing or counterfeit seal. See ALAKE v. THE STATE (1991) 7 NWLR (Pt. 205) 567 at 592-593. A document which tells a lie about itself, it includes a document made with intent to defraud, making a false document. See NIGERIA AIRFORCE v. KAMALDEEN (2007) 7 NWLR (Pt. 1032) 164 at 191-192. 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 the State or elsewhere, to the prejudice of any person, or with intent that any person may in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document in writing. – Per M. S. Hassan, JCA
It is a settled principle of law that where a trial Court has carried out its assignment satisfactory, an appeal Court shall be left with no option but to affirm such decision. See ALI V. THE STATE (2015) 10 NWLR (Pt. 1466) Page 1 at 31 paragraphs D-H Per Ogunbiyi, JSC. – Per M. S. Hassan,JCA
Generally, in a criminal trial, the essential duty of the prosecution is to establish the ingredients of the offence after which the court has only one duty, that is to make a finding on the evidence before the court. – Per Y. B. Nimpar, JCA
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