HON. MINISTER, FCT V. UNITED POWER & ENERGY SYSTEM

Legalpedia Citation: (2022-08) Legalpedia 91664 (CA)

In the Court of Appeal

Holden At Abuja

Mon Aug 8, 2022

Suit Number: CA/ABJ/CV/903/2021

CORAM

UZO IFEYINWA NDUKWE ANYANWU

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE

EBIOWEI TOBI

PARTIES

HON. MINISTER, FCT

APPELLANTS

UNITED POWER & ENERGY SYSTEM

RESPONDENTS

AREA(S) OF LAW

APPEAL, ACTION, COURT, LAND LAW, EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Respondent, being Claimant at the trial High Court instituted the action for declaration as the holder of a Statutory Right of Occupancy over the property known as Plot No: 586 in Asokoro District, Abuja. The Respondent claimed that the said property was allocated to it by the Appellant in 1987, and based on the allocation, all the necessary fees have been paid including fees for the recertification. Based on the said allocation from the Appellant, the Respondent claims to be entitled to the Statutory Right of Occupancy over the same property. The Respondent relied on Exhibits AB1-AB8. In spite of meeting all the conditions of the allocation and recertification, the Appellant has failed to finalize the transaction. The Appellant as Defendant at the lower Court, in defence, totally denied the allocation to the Respondent and alleged that the documents, that is Exhibit AB1-AB8, did not emanate from his office. The Appellant expressly alleged that Exhibits AB1-AB8 are not genuine but fake and forged. After taking evidence of parties and submission of counsel, the trial Court evaluated the evidence and perused the documents tendered and admitted as exhibits, and thereafter delivered judgment in favour of the Respondent and granted the reliefs claimed.

Dissatisfied with the judgment, the Appellant filed this appeal of 4 grounds, seeking to set aside the decision of the lower Court.

HELD

Appeal dismissed

ISSUES

Whether the lower Court was right when it held that Respondent has proved its case on the balance of probability to entitle it to judgment.

RATIONES DECIDENDI

PUBLIC DOCUMENT – IMPLICATION OF CERTIFICATION OF A PUBLIC DOCUMEN

“Being public document, they are all Certified True Copies done in line with the provisions of Section 104 of the Evidence Act, 2011. The certification was made by one Yakubu Ahmed, Land Registrar of the Department of Land Administration FCT. The implication of this certification is that the certifying officer has seen the original document in his possession and compares same with the copies before certified them as true copies of the original. See Uzoma v. Asodike (2009) LPELR-8421 (CA), Mark v. Chukwuemeka & Ors (2015) LPELR-40708 (CA).”- Per TOBI, J.C.A.

PUBLIC DOCUMENT – HOW PUBLIC DOCUMENTS ARE PROVED

“By the provision of Section 102 of the Evidence Act, 2011 public document can be proved by the original which is primary evidence and the only acceptable secondary evidence of a public document is the Certified True Copy of such document which certification must be in line with Section 104 of the Evidence Act, 2011. To appreciate my discourse in this issue, I will reproduce Sections 104 of the Evidence Act, 2011 as follows:

“Section 104 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

(2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”- Per TOBI, J.C.A.

ISSUE(S) FOR DETERMINATION: CONSEQUENCE WHERE MORE THAN ONE ISSUE FOR DETERMINATION IS FORMULATED FROM ONE GROUND OF APPEAL

However, the law guiding formulation of issue has it that for an issue for determination to be competent, each issue must relate to at least one of the valid ground of appeal. Where more than one issue for determination are derived from a single ground, such issues are incompetent and Court cannot make finding on it. See UNITY BANK PLC V. BOUARI (2008)2 SCNJ, WAEC V. ADEYANJU (2008)4 SCNJ 167, NWANKWO V. EDCS U.A. (2007)2 SCNJ 89, MIL.ADMIN FOR EKITI STATE V. ALADEYELU (2007)5 SCNJ 1.

It therefore follows willy-nilly that the Appellant’s issues one and two having derived from ground 2 cannot be said to be competent in the light of the above authorities and the facts that more than one issue cannot be distilled from a ground of appeal. Consequently, the Appellant’s issues one and two are incompetent, and therefore struck out as it offends the law against proliferation of issues.”- Per TOBI, J.C.A.

OFFENCE OF FORGERY – MEANING OF ‘FORGERY’ – ELEMENTS NECESSARY TO PROVE THE OFFENCE OF FORGERY

“Forgery can be defined as the act of making a false document or altering a genuine document for same to be used. See Agi vs PDP & Ors (2016) S.C. (pt 1) 74. As to what will amount to ingredients of the offence of forgery, the Supreme Court in Ndoma-Egba vs A.C.B. Plc (2005) 14 NWLR (pt 944) 79 held thus:

“In Nwobodo vs. Onoh (1984) All NLR 1 at 77, (1984) 1 SCNLR 1 at 72, Obaseki JSC discussed the nature of the offence of forgery and the proof of it in relation to Section 137 (1) of the Evidence Act thus: “Forgery as defined under the Criminal Code reads – S. 465 A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine be induced to do, or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing. To bring an indictment for the offence of forgery under S. 465 of the Criminal Code, it must contain the important ingredient of knowledge except the word ‘forgery’ is used in the indictment.”

Similarly, this Court held in Wagbatsoma vs FRN (2015) ALL FWLR (pt 812) 1430 as follows:

“On the offence of forgery and uttering of a false document, what the prosecution needs to prove is as stated in ODIAWA V. FRN (2008) LPELR 4230 (CA), ALAKE vs STATE (1991) 7 NWLR (Pt.205) 567 thus:

“The offences of forgery and uttering have been defined in Section 467(2)(c) of the Criminal Code. Their ingredients are:

a.That the accused utters or forges a document.

b.That he knew the document to be false.

c.That he presented the said document to the other party with the intention that it could be acted upon.

d.That the document was acted upon by the other party to his determent (the 4th ingredient is not always necessary to prove once the other 3 have been established) …”

”- Per TOBI, J.C.A.

BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF OF CRIMINAL ALLEGATION OF FORGERY IN CIVIL PROCEEDINGS

“The burden and standard of proof in cases involving forgery is like in criminal matter even if it is alleged in a civil matter. The burden is on the person alleging and the standard is beyond reasonable doubt. The Supreme Court made this point in Ogah v. Ikpeazu & Ors (2017) 5-6 S.C (Pt. 1) 1 where the Court held:

“The other side of the argument is that, where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of KAKIH v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows: “By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine.

In this case, for the Appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th Respondent presented a forged certificate to the 2nd respondent knowing that it would be used fraudulently or dishonestly as genuine”

To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which Onus must be discharged by the Appellant See NWOBODO v. ONOH (1984.) 1 S. C. NLR 1, TORTI v. UKPABI (1984) 1 NSCC 141 at 145.”Per BAGE, J.S.C.”

Similarly, in APC & Anor v. Obaseki & Ors (2021) LPELR- 55004 (SC), the Supreme Court held:

“Forgery being a crime, allegation of its commission must be proved beyond reasonable doubt. S.135(1) of the Evidence Act 2011 provides that “If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.” Per AGIM, J.S.C.

In proving forgery, it is the law that the person making the allegation will prove beyond reasonable doubt the ingredients of the offence of forgery and this will require tendering both the original and the forged document to enable the Court compare both documents to determine whether it was forged. It will therefore be required to present both documents. This is what the Supreme Court held in Mohammed v. Wammako & Ors (2017) LPELR-42667 (SC) in these words:

“… the allegation of forgery is criminal in nature. The standard of proof is beyond reasonable doubt. Evidence that would establish the allegation in this case beyond reasonable doubt would include:

(a) exhibiting both the document from which the alleged forgery was made and the forged document;

(b) evidence that it was the 1st respondent who forged the document(s);

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 TOBI, J.C.A.

REGULARITY – PRESUMPTION OF REGULARITY OF A PUBLIC DOCUMENT

“The onus is on the Appellant who is alleging that Exhibits AB1-AB8 is forged to give evidence to that effect bearing in mind the presumption of regularity of the document. The law on presumption of regularity is to the effect that a document which meets all the requirement of making same is presumed regular. This is provided for in Section 146 and 168 of the Evidence Act. I reproduce same for ease of reference. Section 146 provides thus:

(1)The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2)The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.”

Section 168 of the Evidence Act states thus:

(1)When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

(2)When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.

(3)When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.

(4)When a minute is produced purporting to be signed by the chairman of a company incorporated under the Companies and Allied Matters Act and purporting to be a record of proceeding at a meeting of the company or of its directors it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceeding at the meeting have been duly had, and that all appointments of directors, managers and liquidators are valid.

See A.G. of the Federation v. Anuebunwa (2022) LPELR-57750 (SC), Ogbuanyinya & Ors v. Okudo & Ors (1990) LPELR-2294 (SC).” – Per

PRESUMPTION OF REGULARITY – ON WHOM LIES THE BURDEN TO REBUT THE PRESUMPTION OF REGULARITY

“Once a document is presumed regular by law, the burden is on the other party to rebut the presumption. See Ilori & Ors v. Ishola & Anor (2018) LPELR-44063(SC), Emesiani v. Emesiani (2013) LPELR-21360(CA).”- Per TOBI, J.C.A.

OFFENCE OF FORGERY – REQUIREMENTS OF THE LAW WHERE A PARTY RAISES ALLEGATION OF FORGERY AGAINST THE ADVERSE PARTY

“… there is no evidence of the allegation of forgery made against the Respondent. All that the Appellant did was to merely deny the documents. A denial of the documents does not mean or imply that the documents were forged. For the Appellant to allege forgery and for a Court to take such allegation serious, there must be clear and specific pleading alleging same and evidence establishing same. In Kareem v. UBN Ltd. & Anor (1996) 5 NWLR (pt 451) 643, the apex Court held that: “Forgery being a criminal offence must be specifically pleaded and proved before a trial Court can act on its allegation.” Per MOHAMMED, J.S.C.

The fact that there is no specific pleading of allegation of forgery against the Respondent, there is no need for calling for any evidence as the law is clear that evidence not backed by pleadings is of no moment. See Eze v. Ene &Anor (2017) LPELR-41916(SC), Akekuta & Ors v. Nurudeen & Anor (2022) LPELR-57153 (CA). On this ground alone, this appeal will fail.

In case I am wrong in this position, I had mentioned earlier in this judgment that the onus is on the Appellant to prove that Exhibits AB1-AB8 are forged. The Appellant called only one witness who could not prove that the documents were forged. This is more so that it is the Appellant’s agent that certified the documents in line with the law. The certification of those documents by the Appellant means that the original or counterpart copies of those documents are in the custody of the Appellant. In the light of this, I am really at a loss as to what the Appellant is denying or challenging. I make bold to say that paragraphs 5-13 of the Appellant’s pleading cannot ordinarily qualify as proof of the fact that the documents are not genuine. The Appellant has indeed, failed completely to prove with any trace of evidence that the documents were forged.” – Per TOBI, J.C.A.