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DENNIS ONYEJIFE EDOZIE
SIMEON OSUJI EKPE
AKPAN MBAT UKPE
(Alias Bassey Mbat Ukpe)
Nnamdi Onyekwelu Esq, for the appellant
B.T. Ebute Esq, D.D.P.P. Cross River State for the respondent.
CONSTITUTIONAL LAW – Presumption of innocence guaranteed by section 33(5) 1979 and 36(5) 1999 Constitutions – relationship with requirement to prove a criminal charge beyond reasonable doubt.
CRIMINAL LAW AND PROCEDURE – Burden of proof in criminal trials – duty on prosecution to prove criminal charge beyond reasonable doubt – what amounts to proof beyond reasonable doubt
CRIMINAL LAW AND PROCEDURE – Defence of claim of right under section 23 of Criminal Code – ingredients of.
DENNIS ONYEJIFE EDOZIE, JCA. (Delivering the leading judgment): The appellant as an accused person was charged and tried in the Calabar High Court on a three count information for the offence of the forgery of a survey plan in count one, altering of the said survey plan in count two and in count three, altering of forged Certificate of Occupancy contrary to section 267(2)(e), 468 and 468 respectively of the Criminal Code Cap 31 vol. II Laws of Cross River State. The counts read as follows:
“STATEMENT OF OFFENCE COUNT 1
Forgery, contrary to section 467(2)(e) of the Criminal Code.
PARTICULARS OF OFFENCE
Akpan Mbat Ukpe alias Bassey Mbat Ukpe sometimes (sic) between the 25th of February, 1980 and the 5th of March 1980 at Calabar in Calabar Judicial Division forged a survey plan No. ESQ/1974 (sic) dated 5/12/73 a document which is required for procuring the registration of title to land purporting it to have been made in his name.
STATEMENT OF OFFENCE COUNT 2
Uttering a false document contrary to section 468 of the Criminal Code.
PARTICULARS OF OFFENCE
Akpan Mbat Ukpe, alias Bassey Mbat Ukpe on or about the 5th of March, 1980 at Calabar in the Calabar Judicial Division knowingly and fraudulently uttered a forged survey plan No. ESA/1974 (sic) of 5/12/73 purporting it to have been made in his favour.
STATEMENT OF OFFENCE COUNT 3
Altering as false document contrary to section 468 of the Criminal Code.
PARTICULARS OF OFFENCE
Akpan Mbat Ukpe alias Bassey Mbat Ukpe sometimes (sic) between 1980 and 1985 at the Mercantile Bank of Nigeria Mbukpa branch, Calabar in the Calabar Judicial Division knowingly and fraudulently uttered false document, namely, the Certificate of Occupancy No. CA/367/80 purporting it to be evidence of his title to the property situated at No. 5B Diamond Hill, Calabar.”
The above information is grounded upon the evidence led by six prosecution witnesses as summarised hereafter. The complainant, Akpan Jacob Ukpe (PW1) and the appellant, Akpan Mbat Ukpe are cousins and indigenes of Okon town in Ikot Abasi Local Government Area of Akwa Ibom State. In 1972, PW1 then resident in Lagos requested his father-in-law, the late Chief Ada Ekpenyong living in Calabar to look for a house in Calabar for him to buy. Shortly after, the father-in-law found the property at No. 5B Diamond Hill situate at MCC Road Calabar, a house of about 17 rooms owned by Ogbonna Nwokoro, an Igbo man who fled Calabar in the wake of the Nigerian Civil War. The appellant was contacted and intimated of this fact and he in turn sent a telegram ex h. A to PW1 advising him to come to Calabar with the sum of £450 to pay for the house. On receiving this message, PW1 arrived Calabar on 4/4/72 with the said amount but as he could not wait to see the vendor, he (PW1) gave the money to the appellant in the presence of PW1’s father-in-law with the mandate and authority to pay for the house on his behalf and render account to him. The appellant subsequently paid the sum of £410 as the price for the house and also paid the sum of £9:7:6 as the outstanding arrears of ground rent. As per letter dated 5/5/72, exh. B, the appellant forwarded to PW1 the original of the purchase receipt and the receipt for the payment of ground rents copies of which were admitted as exhs. C and D respectively. Also forwarded to the PW1 was the agreement dated 23/3/72 exhibit E conveying the property to the PW1. On the pretext that the appellant needed the originals of exhibits C and D to apply to the rehabilitation office for the release of the property, the PW1 returned the original to the appellant after making copies thereof which he, PW1 retained. By a letter dated 20/9/72, copy of which was admitted as exhibit C, the appellant requested for the sum of £50 for the application for the release of the property to be processed. Again the PW1 remitted the money as per his letter dated 27/10/72 exhibit J forwarding the money order for the amount, the counterfoils of which are attached to exh. J.
Subsequently, the PW1 came to Calabar and after the inspection of the house requested for a survey plan of the property for which the appellant engaged the services of a surveyor. Chief Edem Elias Akpan (PW3) who carried out the survey and produced in the name of Akpan Ukpe a survey plan No. ESA/974 of 5/12/73 exh. F. It is the case for the prosecution that the appellant deceitfully and fraudulently inserted the letter “M” in between the names of Akpan and Ukpe in a copy of the survey plan exhibit F and thus altered the PW1’s name to become the appellant’s name, to wit, Akpan M. Ukpe and this was done without the knowledge and consent of PW1 and the surveyor (PW3) who prepared the plan exhibit F. Furthermore, when the property designated as “Abandoned Property” by the then South Eastern Government was released officially to the PW1 as per the letter of release dated 13/9/74 from the Ministry of Economic Development and Reconstruction exhibit K, the appellant also altered the PW1’s name A.J. Ukpe in exhibit K to read B.M. Ukpe the appellant’s name. The initials “A.J.” for Akpan Jacob were altered to read ‘B’, ‘M’ meaning Bassey Mbat the other names of the appellant. The appellant utilised the forged survey plan and letter of release already doctored for his benefit to apply and obtain a Certificate of Occupancy No. CA/267/80 dated 7/4/89 exhibit ‘L’ in respect of the property in dispute. Finally, the appellant used the said Certificate of Occupancy exh. ‘L’ with the copy of the forged survey plan exh. F. attached to apply and obtain a loan from the Mercantile Bank of Nigeria Mbukpa Branch, Calabar using the property in dispute as collateral.
Attempts at the settlement of the dispute out of court failed hence the matter was reported to the police. The appellant made two statements to the police exhs. S1 and S2. He also testified in his defence and called four other witnesses. The gist of his defence is that he originally bought the property in dispute with his own money but in the name of PW1. He however admitted that he altered the name of the PW1 to reflect his own name as alleged by the prosecution. He explained that he did so partly because the PW1 failed to reimburse him for the amount he paid and partly because the Rehabilitation Committee having declared the sale of the property to PW1 by the vendor Ogbonna Nwokoro as illegal, the property being an “abandoned property” the property was then offered to him by the Rehabilitation Committee and he accordingly bought it for himself.
In his judgment delivered on 31/7/97, the learned trial Judge Binang J. upheld the case for the prosecution, convicted the appellant on all the three counts and sentenced him to two years imprisonment on each count with all the sentences to run concurrently. In addition, he ordered the appellant to deliver up the property in dispute to PW1 within one week from the date of the judgment and for the exhibits to be given to their owners.
Aggrieved by the said judgment, the appellant lodged the instant appeal upon five original and four additional grounds of appeal on the basis of which five issues were identified for determination in the appellant’s brief. The five issues also adopted in the respondent’s brief read as follows:
“i. Was the learned trial Judge right to hold that the charge against the appellant was proved beyond reasonable doubt?
iii. Was the trial Judge right to have made the consequential order of “delivery up of No. 5B Diamond Hill Calabar to PW1 within one week from the date of judgment and exhibits to the owners.”
On 28/11/2000 when the appeal was heard, learned counsel for the parties adopted their briefs and while counsel for the appellant urged that the appeal be allowed, the opposing counsel prayed that the conviction and sentences of the court below be affirmed.
It is convenient to consider issues i, iv and v together and at the risk of repetition, they read as follows:
“i. Was the learned trial Judge right to hold that the charge against the appellant was proved beyond reasonable doubt?
In relation to issue 1, it is the contention of the appellant that it is the duty of the prosecution to prove its case beyond reasonable doubt; that the court must consider the defence of an accused no matter how stupid, inconsistent and doubtful and that every judgment must comply with the provisions of section 245 of the Criminal Procedure Law, Counsel cited and relied on many legal authorities, to wit, Alonge v. Inspector-General of Police (1958) 4 FSC, 203, Aruma and Anor. v. The State (1990) 6 NWLR (Pt. 155) 125 at 137, Bozin v. The State (1985) 2 NWLR (Pt. 8) 465, 481, R. v. Barimah (1945) 11 WACA 49 at 50, Ignatius Nwosu v. The State (1998) 8 NWLR (Pt. 562) 433 at 444, OPAYEMI v. THE STATE (1985) 2 NWLR (Pt. 5) 101 at 112. Furthermore, learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt and that the learned trial Judge failed to give reasons for his decision and to evaluate the evidence led at trial as required by section 245 of the Criminal Procedure Law. It is the appellant’s contention that the views expressed by the learned trial Judge at page 184, lines 26-32 thus:
“I have carefully listened to the submission of both learned counsels (sic). I have considered the evidence adduced by the prosecution in support of the charge. I have considered the defence put up by the accused person. I have studied the legal authorities referred to and the exhibits tendered.”
and the trial Judge’s findings at page 185, lines 18-28 thus:-
“The accused person tried to put up a formidable defence by calling a good number of witnesses. He denied the charge. The prosecution led oral evidence and tendered documentary evidence which was credible, consistent and unassailable. The evidence point accusing finger directly on the accused and no one else as one who perpetrated the acts – forgery and altering complained of”
do not amount to evaluation of evidence and reasons for a decision contemplated by section 245 of the Criminal Procedure Law, more so when relevant statutory and judicial authorities on the ingredients of the offence of forgery and altering as stated in the cases of Queen v. Abuah (1961) All NLR 662, 667 and Awobotu v. The State (1976) SC 49 at 78 were not referred to. The appellant further submitted that the above views and findings of the trial Judge are not supported by :
ii The typewritten and unsigned statement of the appellant exh. S1 SII.
iii. The failure to tender the written statement of PW1 and finally that this court cannot itself evaluate the evidence on record and come to a conclusion as to the guilt or otherwise of the appellant as by doing so, the court would fall into the error of evaluating the credibility of the witnesses which is the primary function of the court of trial.
On issues (iv) and (v), the appellant submitted that it is the duty of the court to examine all defences open to the accused person however weak or false and cited the following cases: Nwuzoke v. The State (1988) 1 NWLR (Pt. 72) 529, Aliu Wakala AND Ors.v. The State (1991) 8 NWLR (Pt. 211)552 at 561, 562. Learned counsel pointed out that the evidence of the handwriting analyst was not evaluated; that the facts of the case were not weighed against the essential ingredients of the crimes of forgery and altering; that the intent necessary to found count 3 especially the mens rea, to wit, “knowingly and fraudulently” were not mentioned and finally that the defence of the appellant that he bought the property in dispute for himself and that he was not guilty of forgery or uttering was not considered. Counsel therefore submitted that the prosecution failed to prove its case beyond reasonable doubt.
Responding to the above submissions, learned counsel for the respondent submitted that the prosecution had proved its case against the appellant beyond reasonable doubt as required by section 138(1) of the Evidence Act of 1990. Counsel referred to the meaning of forgery and altering as interpreted in the cases of Awobotu v. State (1976) 10 NSCC 211 and Queen v. Abuah (1961) 2 NSCC 269, 270 respectively. Counsel referred to the evidence of six prosecution witnesses and the exhibits tendered to prove the forgery and altering of survey plan No. ESA/974 of 5/12/73 against the appellant. Counsel further referred to the confessions and admissions by the appellant that he was the PW1’s agent, that he forged the copy of the survey plan exhibit F, and uttered it to the Land Use and Allocation Committee before the Certificate of Occupancy exhibit L was given to him. The appellant further admitted that he uttered exhibit L with the attached copy of the forged survey plan exhibit F to obtain a loan from the Mercantile Bank. It is the submission of the respondent’s counsel that the evidence of the prosecution witnesses, the confessions and admission of the appellant conclusively and irresistibly show that the appellant and no one else committed the offences charged and that the totality of the evidence adduced on both sides overwhelmingly prove beyond reasonable doubt that the appellant committed the offences with which he was charged and tried and therefore his conviction was justified.
On the defence of the appellant that the transaction in exhibit F for the sale of the property by the vendor was illegal, counsel submitted that the defence is not substantiated as no document or other credible evidence was adduced to prove the alleged illegality. It is counsel’s contention that the learned trial Judge satisfactorily complied with section 245 of the Criminal Law and cited the case of Aigbe v. The State (1976) 9 AND 10 SC 77, 90, 92. In regard to the appellant’s contention that the court below did not evaluate the evidence adduced at the trial, the respondent submitted that section 245 of the Criminal Procedure Law does not lay down any particular format for evaluating evidence and that the court below adequately evaluated the totality of the evidence adduced by both the prosecution and defence. Counsel referred to the case of Akibu v. Opaleye (1974) 11 SC. 189 at 203 to submit that an appellate court can re-evaluate the evidence on record to determine whether the guilt of the appellant was established by the evidence adduced and argued that although Opaleye’s case is a civil matter, the principle therein stated is applicable to criminal cases vide the case of Oguonezee v. The State (1998) 58 LRCN 3512. In regard to the handwriting Analyst Report, exhibit R, the respondent contended that the report did not exonerate the appellant. On the admissibility of the appellant’s type-written statements exhibits SI and SII, it was submitted that sufficient foundation was laid before they were admitted. Furthermore, it was contended that if exhibits R and SI and SII were discountenanced, there still remains legally admissible evidence to justify the conviction of the appellant.
The main thrust of this appeal is that the prosecution had failed to prove beyond reasonable doubt the guilt of the appellant of all the counts of the information. It was also seriously canvassed that the court below had abdicated its responsibility of evaluating the evidence adduced by the parties and that this court being an appellate court cannot properly embark on such evaluation as to do so would amount to evaluating evidence which touch on the credibility of witnesses.
It is a cardinal principle of law that the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the prosecution vide section 138 of the Evidence Act 1990. The burden never shifts and if on the whole of the evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal: Alonge v. I.G.P. (1958) SCNLR 516, (1959) 4 FSC 205; Fatoyinbo v. A.G. Western Nigeria (1966) NMLR 4. The principle that the onus of proving a criminal case beyond reasonable doubt rests on the prosecution means no more than that the primary onus of establishing the guilt of the accused is always on the prosecution except in very special circumstances like insanity where the law presumes an accused person sane and casts on him the onus of establishing the contrary. Onofowokan v. The State (1987) 3 NWLR (Pt. 61) 1538. Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller v. Minister of Pensions (1947) 2 ER 372,
‘it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable” the case is proved beyond reasonable doubt’: See Akalezi v. State (1993) 2 NWLR (Pt. 273) 1 at 13.In regard to the contention on the evaluation of evidence. It is settled law that the evaluation of evidence and the ascription of probative value to such evidence are primary functions of the trial court which saw, heard and assessed the witnesses. Where, therefore a trial court clearly evaluates the evidence of the parties and justifiably appraised the facts, it is not the business of the Court of Appeal to substitute its own views of the facts for those of the trial court just because it would have come to a different conclusion on the same facts: Ajumobi Ogundulu AND Ors. v. Chief Phillips AND Or. (1973) 1 NMLR 267 at 272; (1973) 2 SC 1; Mogaji v. Odofin (1978) 4 SC 91, 94 at 96, Christopher Okala v. Eunice Uzoka (1978) 4 SC 77 at 86, Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 at 451; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 at 393. However, when a trial court fails in its appraisal of evidence and the appellate court is in as good a position as the trial court to re-appraise such evidence and make appropriate findings thereon from the printed record and/or documents put in evidence, it will do so instead of ordering a retrial. See Fashanu v. Adekoye (1974) 6 SC. 83; Nnaji v. Chukwu (1996) 10 NWLR (Pt. 478) 265 at 278. But when the evidence is such that the impression of the trial court of the witnesses as to their credibility is bound to play a decisive role, the appellate court which naturally had no advantage of making such impression cannot embark on the re-appraisal of the evidence. It will order a retrial unless the case can be brought to an end by the appellate court on other crucial grounds: See Ugwu v. Ogbuzuru (1974) 10 SC. 191 at 192; Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167 at 180-181; Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 at 492; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 629 at 143; Tinubu v. Khalil AND Dibbo Trans Ltd. (2000) 11 NWLR (Pt. 677) 171 at 183.
With the above guiding principles in mind, the counts of the information and the evidence led in their support will now be critically examined. The charge in count one is laid under section 467(2)(e) of the Criminal Code.
Section 467 provides that:
“Any person who forges any document, writing or seal is guilty of an offence which, unless otherwise stated is a felony and is liable, if no other punishment is provided, to imprisonment for three years.”
And subsection 2(e) stipulates-
“If the thing forged purports to be or is intended by the offender to be understood to be or to be used as any of the following things –
(e) a document which by law is required for procuring the registration of any title to any land or estate in land, the offender is liable to imprisonment for fourteen years.”
Forgery is defined in section 465 as follows:-
“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 persons may, 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.”
The section provides further:-
“The term “make a false document or writing” includes altering a genuine document or writing in any material part, either by erasure, obliteration, removal, or otherwise, and making any material addition to the body of a genuine document or writing; and adding to a genuine document or writing any false date, attestation, seal or other material matter.”
Section 464 defines a false document inter alia thus:-
“A document or writing is said to be false
In count one, according to the particulars of offence, the thing alleged to be forged is a survey plan No. ESA/974 dated 5/12/73, a document which is required for procuring the registration of title to land. For the prosecution to succeed in this count, it has to prove firstly, that the survey plan in question is a false document and was made by the appellant with the knowledge of its falsity and secondly the mens rea, that is the intent that the survey plan may in anyway be used or acted upon as genuine 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.
According to the prosecution, the survey plan forged by the appellant is the one attached to the Certificate of Occupancy No. CA/367/80 exhibit L which was issued to the appellant in respect of the property in dispute. That survey plan is the counterpart of the Survey plan exh. F prepared by the Licensed Surveyor, Chief Edem Silas Akpan PW3. The only difference in both plan is that while exh. F was made in the name of PW1 by name Akpan Ukpe, the one attached to exh. L purports to be made in the name of Akpan M. Ukpe the name of the appellant. The addition of the letter “M” between Akpan and Ukpe in the plan attached to exh. L is a material addition to the body of a genuine document thereby making it a false document. This is in accord with the evidence of PW3 who at p.111 et seq testified thus:-
“Sometime early in December 1973 the accused consulted me to carry out a property survey of a piece of land situated at MCC Road Calabar on behalf of his brother PW1 Mr. Akpan Ukpe. I went on the land, executed a plan on 5/11/73. The plan is numbered as ESA/974. It was later signed by the Surveyor-General. I then delivered the original plan duly completed and signed to the accused for onward transmission to PW1. There were buildings (sic) on the land I surveyed along Calcenco Road, Calabar, now MCC road.
My client’s name is Akpan Ukpe i.e. PW1. It is this name I recorded in the survey plan. exh E (error for F) is shown to the witness. He identified it as the plan he prepared and sent to his client Akpan Ukpe (PW1) exh. L (Certificate of Occupancy) is shown to the witness. The plan attached to exh. L has a different name. There is an introduction of ‘M’ between Akpan and Ukpe. In my own plan I wrote Mr. Akpan Ukpe. But the plan attached to exh. L, ‘M’ is inserted between Akpan and Ukpe. The ‘M’ is inserted free hand while other information in exh. L is stencilled. Exh. F is the genuine plan produced by my office. The plan attached to exh. L is tampered with.”
In his statement to the police exh. SI, the appellant admitted that he changed the ownership of the house to his name and under cross examination he also said that he made the plan to reflect his ownership of the house.
The survey plan No. ESA/974 dated 5/12/73 attached to the Certificate of Occupancy exh. L is a document and is false because a material part of it, to wit, the name of Akpan M. Ukpe purports to be made by the surveyor PW3 who in fact did not make it. The appellant made the false document knowingly and with the intent that any person may in the belief that it is genuine be induced to do or refrain from doing any act. It is my view that the prosecution proved its case beyond reasonable doubt with respect to count one of the information.
In counts two and three, the appellant was charged with offence of uttering false document contrary to section 468 of the Criminal Code. The section provides:-
“Any person who knowingly and fraudulently utters a false document or writing or a counterfeit seal is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.……………………….
The term ‘fraudulently’ means an intention that the thing in question shall be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of some person whether a particular person or not or that some person whether a particular person or not shall, in the belief that the thing in question is genuine be induced to do or refrain from doing some act whether in Nigeria or elsewhere.”
Altering is committed when a forged document is fraudulently presented with the intention that it should be acted upon as genuine by a third party who so acts upon it. See Queen v. Abuah (1961) 2 NSCC 269, 270. An important ingredient for the offence is guilty knowledge that the document is a forged one. If the forger altered the document, the guilty knowledge is presumed.
In the particulars of offence in counts two and three, the appellant was alleged respectively to have altered a forged survey plan No. ESA/974 of 5/12/73 and false Certificate of Occupancy No. CA/367/80 to the Mercantile Bank of Nigeria, Mbukpa branch, Calabar. It has earlier been shown that the survey plan No. ESA/974 of 5/12/73 which is attached to the Certificate of Occupancy is a false document and was forged by the appellant. In his evidence under cross examination, the appellant on p. 161 line 21 et seq said:-
“Exh. L is the Certificate of Occupancy with the survey plan attached. It is my own. I tendered my survey plan to the Land Use and Allocation Committee before the Certificate of Occupancy was given to me.
I tendered exh. L to Mercantile Bank to obtain a loan.”
The above excerpt is an admission by the appellant that he uttered the survey plan in question to the Land Use and Allocation Committee to support his application for the Certificate of Occupancy exh. L in respect of the property in dispute. The intention obviously was that the Land Use and Allocation Committee should act on the survey plan as genuine. It is also admitted by the appellant that he uttered the Certificate of Occupancy exh. L with the forged survey plan which forms an integral part of it, the Certificate is equally forged and by its being uttered to the Mercantile Bank, the offence in count three of the information was consummated. I am in total agreement with the court below that the prosecution established its case against the appellant on all the three counts of the information.
If the prosecution proves a case beyond reasonable doubt against an accused person, the onus shifts on the latter to prove reasonable doubt to cast doubt in the prosecution’s case which doubt is usually resolved in favour of the accused. The evidence for proving such reasonable doubt may be found in the defence of the accused. In this appeal, the appellant’s counsel has contended that the court below did not consider the defence of the appellant. It is a cardinal principle of criminal law that the defence of an accused person however foolish or unfounded it may seem to be ought to be considered: Rex v. Kwabara Bio (1945) 11 WACA 46. In Nse Udo Ntita v. The State (1993) 3 SCNJ 28 at 35, the Supreme Court said:-
“It is settled law that any defence to which an accused person is, on the evidence entitled should be considered however stupid or unreasonable for whatever it is worth…”
Also in Rasaki Oladipupo v. The State (1993) 6 SCNJ 233, 239-241 the Supreme Court further reiterated:-
“A defence raised by an accused person ought to be adequately considered however weak, foolish or unfounded such a defence may appear. It is also immaterial to the consideration of such defence whether they are contradictory or inconsistent provided they are available on the totality of evidence before the court as in this case and not merely being formulated in the address or brief of counsel.”
See also Ajidohun v. State (1991) 9 NWLR (Pt.215) 33 at 43.
While it is settled law that any defence which an accused person is on evidence entitled to should be considered however stupid or unreasonable for whatever it is worth, it is certainly not the role of any court of law to formulate or invent a defence for an accused person where on a consideration of the totality none is open or available to him. See R. v. Fadina 3 FSC 11, Oji v. State (1972) 12 S.C. 47, Udofia v. The State (1984) 12 SC 139. Oguntolu v. State (1996) 2 NWLR (Pt. 432) 503 at 508. With the above principle in mind, one would ask what the defence of the appellant is to the charges preferred against him. In his evidence at p. 149 line 31 et seq of the record he said:-
“I still remember February 1972. On that date one Chief Ada Ekpenyong sent Akpan Nathaniel Udowot to call me. When I got there, Chief Ada Ekpenyong introduced me to Ogbonna Nwokoro. Chief Ada Ekpenyong said my own brother A. J. Ukpe (PW1) sent a letter to him that he should look for a plot for him. But now his friend Ogbonna Nwokoro wants to sell his house. That that is the reason he sent for me. We all left to inspect the house. When we returned back to the house we negotiated for the price of the house, we arrive at £410 (820). Later Ada Ekpenyong then told Ogbonna Nwokoro to give him one month to enable him send a message to PW1. Ogbonna agreed but demanded for his transport money to enable him come back to Calabar. I paid £5 (N10) to Ogbonna to help him travel to Calabar. On 23/3/72 Ogbonna arrived at Chief Ada Ekpenyong’s house. Chief Ada Ekpenyong sent Akpan Nathaniel Udowot to call me………..We went to Chief Ada Ekpenyong’s house. I had earlier sent a telegram to A.J. Ukpe (PW1) to come down. Ada Ekpenyong then asked if I have got a reply from my brother A.J. Ukpe over the telegram he sent for him to come down. Ada Ekpenyong then told Ogbonna to give us a gap of two weeks again to see if A.J. Ukpe could come down. Ogbonna refused and said instead he wants to refund the £5 (N10) we paid to him. Ogbonna says he has one person at Big Qua who wants to buy the house. He cannot go without money. I told Ogbonna and Ada Ekpenyong to allow me 3 hours to help look for money and pay him. By 3.00p.m I demanded (sic) the sum of £410 (N820) to Ada Ekpenyong who paid same to Ogbonna in my presence and Akpan Nathaniel Udowot. We made conveyance agreement. I gave one bottle of hot drink (Terry Brandy) ………….. I did all this transaction on behalf of my brother A.J. Ukpe (PW1) who did not come. After that a team of persons from Rehabilitation office came and demanded rent from tenants in the house I bought from Ogbonna…….They told me that Ogbonna had no right to come and sell the house to me.
In September 1972, a team of people from rehabilitation including a policeman came to No. 50 Diamond Hill with a list of tenants indebted to them……. I took the people to Ada Ekpenyong to help explain matters. When the people got to Ada Ekpenyong they explained that Ogbonna had no right to sell abandoned property. …………………………………. Chief Ada Ekpenyong then told me that since Ogbonna did not come I should go to Lagos and meet my brother A. J. Ukpe and that he will send for Ogbonna to come since the transaction we had with him over the house has been rejected. That when I reach (sic) Lagos I told my brother A.J. Ukpe (PW1) everything that had happened over the property and tell him to come down to Calabar. I later went to Lagos and informed him. My brother A.J. Ukpe then ordered me to leave his house.
PW1 did not honour this invitation. He did not come down to Calabar………. Ada Ekpenyong on hearing the report sent for Ogbonna to come. Chief Ada Ekpenyong, myself and Ogbonna went to the Rehabilitation office. When we got there, the officer in-charge explained again to Ogbonna that he has no right to dispose of the abandoned property ……………………………………………………………..
After the burial of Chief Ada Ekpenyong’s wife the three of us, myself, Ogbonna and Chief Ada Ekpenyong went back to Rehabilitation. From there we moved to the house of Chief Rehabilitation Officer – Chief Inyang Essim. On getting there both Chief Ada Ekpenyong and Ogbonna pleaded with the Rehabilitation officer to allow me to buy the house at No. 5b Diamond Hill Calabar. I also applied to buy the house …….. The Officer directed following the pleading of Chief Ada Ekpenyong and Ogbonna that the property at No. 5b Diamond Hill should be handed over to me. The expenses made by me in renovating the house ……………….was one of the factors that made the Rehabilitation Officer to hand the house to me. The house was released to me in September, 1974.”
Paraphrased, the defence of the appellant, is that he bought the house in dispute with his own money but in the name of the PW1 but that since the house was an abandoned property which the vendor Ogbonna Nwokoro had no right to sell according to the Rehabilitation Officer, the house was at his request released to him by the Rehabilitation office. Defence to the like effect is contained in the appellant’s statement to the police dated 10/6/85 except that no mention was made about the illegality of the sale by Ogbonna Nwokoro.
Part of the statement reads:-
“I used his name in purchasing this house as he was not present when I bought this house. Originally there was no dispute over the ownership of this house since I paid for the purchase of the house on his behalf. Dispute over the ownership started when he refused to repay me my money I used in effective (sic) repairs and the actual purchase money……….”
It seems to me that the defence set up by the appellant falls within the ambit of the defence of claim of right under section 23 of the Criminal Code. The section reads:-
“A person is not criminally responsible, as for an offence relating to a property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
According to the commentary in Aguda on Criminal Procedure Law of the Southern State of Nigeria, 1982 Edition, Article 1091 p. 481, the section does not require that the claim be a reasonable one though the question whether a claim is reasonable or not may have a bearing on the question whether or not it is honestly held. Even though the claim may be unfounded in law and fact, it would appear the section affords a defence to anyone who honestly asserts what he believes to be a lawful claim provided the claim is honestly held: See R. v. Turner (No. 2) (1971) C. App. R. 336: (1971) 2 SII E.R. 441.
Considering the appellant’s defence in the light of section 23 of the Criminal Code set out above, it seems to me that exhs. A, B, C, G, J and K believe the appellant’s assertion that he bought the house in question with his own money and that the property was released to him by the rehabilitation officer. Exh. A was the telegram he sent to PW1 informing him that the price of the house found for him was £450. The PW1 said he arrived Calabar with that amount which he gave the appellant with authority to pay for the house and render account to him. The appellant bought the house in the name of the PW1 for the sum of £410 out of the money PW1 gave him. Exh. C is the photocopy of the receipt of the amount paid. In exh. B dated 5/5/72 the appellant in his letter gave the PW1 an account of the transaction. In his letter dated 20/9/72 exh. G, the appellant requested the PW1 to remit additional sum of £50 for the processing of the application for the release of the property. The PW1 responded through his letter dated 27/9/72 exh. J by which he remitted a postal order of that amount to the appellant. Finally exh. K is a letter dated 13/9/74 from the Ministry of Economic Development and Reconstruction, Calabar by which the property was released. Mr. Okon Effiong Eyo PW5, a retired Senior Assistant Secretary who signed exh. K in his evidence at p. 119 line 17 et seq of record said inter alia:-
“In the exercise of my functions I am aware of the fact that the Military Governor gave clearance for the release of the property at No. 5b Diamond Hill Calabar to Mr. A.J. Ukpe, PW1 in this case. Exh. K bore my signature and all contents are correct except the name of the addressee. When I wrote and signed exh. K, the name on the addressee was A.J. Ukpe as confirmed from the clearance letter from the Governor’s office. Nobody could effect any change of name on exh. K safe (sic) with the approval of the Military Governor of Cross River State. I am not aware of the fact that the Military Governor gave any clearance to effect such a change of name as is now the case in exh. K.”
What the witness is saying in the extract just reproduced above is that the release of the property was to PW1, A.J. Ukpe and that the appellant’s name B.M. Ukpe on exh. M is a forgery. If the property was released to the appellant as he fraudulently asserted, why was the letter exh. K addressed to PW1? It seems obvious that the appellant’s assertion is a fabrication. It is pertinent to observe that in his statement to the police exh. J, made on 10/6/85 no such assertion about the property being released to him was made. The story was invented in January 1997 when the appellant testified before the court below. The story is incredible and an after-thought. The appellant’s claim of right to the property in question was not made in the exercise of an honest claim of right and without intention to defraud. On the contrary, the claim was made malafide with the intent to defraud. The defence contemplated in section 23 of the Criminal Code in unavailing to him. With his porous and weak defence, he has failed to prove reasonable doubt against the prosecution’s case thereby leaving the proof beyond reasonable doubt established by the prosecution unaffected and undiminished.
The main plank of attack against the judgment is that it did not comply with the provisions of section 245 of the Criminal Procedure Act. The section provides:-
“245. The Judge or Magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the Judge or Magistrate at the time of pronouncing it; provided that in the case of a magistrate in lieu of writing such judgment it shall be a sufficient compliance under this section if the magistrate –
The above provision has been judicially considered. In the case of Atunde v. Commissioner of Police (1952) 14 WACA 171, it was stressed that the section does not provide that non-compliance with its provisions invalidates a conviction. However, in John AND Anor. v. The State (1966) 1 All NLR 211, a conviction by a High Court based on a very sketchy judgment which did not review the prosecution’s case or that of the defence was set aside for not satisfying the requirement of the section. More recently, in the case of Samson Aigbe AND Anor v. The State (1976) 9-10 S.C. 77 at 91, Bello JSC as he then was, discussing the effect of non-compliance with the section said:-
“It has been stated in a number of cases since the Queen v. Timothy Fadina (1958) 3 FSC 11 that the observance of the provisions section 245 of the Act is mandatory and that failure to do so constitutes miscarriage of justice which vitiates any conviction arising there from.”
The contention of the appellant with respect to non-compliance with section 245 of the Criminal Procedure Act is that the court below did not evaluate the evidence adduced at the trial nor did it give reasons for its decision. A careful perusal of the judgment shows clearly, that the counts of information preferred against the appellant were clearly set out therein. And in the said judgment, the court reviewed in some reasonable details the evidence led by the witnesses for the prosecution as well as those for the defence and at page 184 line 26 et seq of the record it concluded thus:-
“I have considered the evidence adduced by the prosecution in support of the charge. I have considered the defence put up by the accused person. I have studied the legal authorities referred to and the exhibits tendered……
The prosecution led oral evidence and tendered documentary evidence which was credible consistent and unassailable ….. I hold that the charge has been proved beyond reasonable doubt against the accused person…….”
It is my view that unlike the case of Aigbe v. The State supra, in which the court failed to consider the evidence of witnesses for the prosecution against the 2nd appellant and the latter’s defence, the court below in the instant case reviewed the entire evidence adduced by the prosecution and the defence before reaching a decision on the appellant’s guilt. I am unable to hold that the provisions of section 24 of the Criminal Procedure Act had not been complied with.
In regard to the criticism on evaluation of evidence, it is settled law that when as in this case, evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non-evaluation or improper evaluation of evidence by the trial court, an appellate court is in as good a position as the trial court to do its own evaluation; See Abisi v. Ekwealor (1993) 6 NWLR (PT. 302) 643; Adeyemi II v. Atanda (1995) 5 NWLR (Pt. 397) 512 at 529. In the instant case, the main body of evidence to be evaluated is purely documentary. It is the law that where the consideration of documentary evidence to resolve a relevant issue in a case is principally involved, the demeanour of witnesses can hardly play any part: See Olujinle v. Adegbo (1988) 2 NWLR (Pt. 75) 238; U.T.B. v. Awanzigama Ent. Ltd. (1994) 6 NWLR (Pt. 318) 81. Having carefully evaluated the evidence adduced by the prosecution and defence and reached the same conclusion as the court below, it is my view that the complaint about evaluation of the evidence by the court below is baseless.
The appellant’s counsel complained that the trial court did not give full weight to the handwriting analyst’s report exh. R to the effect that the appellant was not the writer of the ‘M’ inserted between Akpan and Ukpe in the forged survey plan No. ESA/974 of 5/12/73. In my view, that report did not necessarily exonerate the appellant. It is not the law that it is only the person who manually writes or signs a forged document that may be convicted for the forgery of the document. The position of the law is that all persons who are participes criminis whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime. See Agwuna v. A.G. Fed. (1995) 5 NWLR (Pt. 386) 418 p. 438. In regard to the contention that the statements of the appellant to the police exhibits SI and SII were merely typewritten copies and not the original copies signed by him. It is my view that the contention is without substance. The statements were tendered and admitted without objection. The position of the law is that where, as in this case, certain documents are admissible in evidence upon fulfilment of certain condition or under certain circumstances, an appellant who fails to object to their admissibility in the trial court cannot do so in Appeal Court: See Raimi v. Akintoye (1986) 3 NWLR (Pt. 26) 87; Abolede Alade v. Okulade (1976) 1 All NLR (Pt. 1) 67; Ministry of Lands, Western Nig. v. Dr. Nnamdi Azikiwe AND Ors. 169/68 of 31/1/68, Owoyin v. Omotosho (1961) 1 All NLR 304. On the question that the prosecution did not tender the written statement of PW1 to the police, there is no law requiring the prosecution to tender such statement. It is usually the defence that seeks to tender it for the purpose of contradicting the evidence of the maker of the statement under section 199 of the Evidence Act 1990. As I find no merit in all the points canvassed in respect of the issues under consideration, they are resolved in favour of the prosecution against the appellant.
Did the appellant have a fair trial? With respect to this issue appellant contends that a Judge in a criminal case is an umpire and as such most not descend into the arena and for this proposition, the following authorities were cited and relied upon: David Uso v. C.O.P. (1972) 11 SC 37; Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333 at 356 and Jonathan Enigwe AND Ors. v. Michael Akaigwu (1992) 2 NWLR (Pt. 225) 505 at 531-532. It was also contended that if by a statement made by a court, a reasonable person conceives that the appellant has not had a fair hearing, the appellate court may declare the trial and judgment a nullity on the authority of Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696. Counsel then referred to the following passages of the judgment of the court below:-
Finally before passing sentence on the appellant, the court at p.186 lines 28-31 and p. 186 line 27 et seq further commented:-
“As is well known, the law punishes the state of mind at the time of the offence. I have noted the demeanour of the accused throughout the trial. As I said in the judgment, the accused showed no sign of remorse. He felt all the delays were juju he was using on everybody.
The accused can even say he used juju on the court. There is therefore a need to award punishment that would serve as deterrent on him and others.”
Commenting on the above statement, learned counsel for appellant argued in his brief that the statements gave the impression that the court did not give the appellant a fair trial and urged that the conviction and sentences passed on the appellant be declared a nullity. It was further submitted that a trial that started in 1993 and ended in 1997 could not be described as protracted.
In the opinion of the respondent’s counsel, the statements complained of did not violate the appellant’s constitutional right of fair hearing as provided for in section 33(1) of the 1979 Constitution as amended which was the law in force at the time of the judgment appealed against.
It has been said in the case of Isiaku Mohammed v. Kano Native Authority (1908) 1 All NLR 426 that a fair hearing involves a fair trial and that:-
“The true test of a fair hearing is the impression of a reasonable person who present at the trial whether from his observation justice has been done in the case.”
See Paul Onongo v. Aper Aku AND Ors. (1983) 2 SCNLR 332 (1983) 11 SC 129 at 179: Rasaki Ariori AND Ors. v. Muraina Elearo AND Ors. (1983) 1 All NLR 1; (1983) 1 SC 13 at 59; Atano v. A.G. Bendel State (1988) 2 (1988) 1 NWLR (Pt. 75) 201 at 218; Funsuk Eng. Ltd. v. MC Arthur (1995) 4 NWLR (Pt. 372) 640 at 641. It is a settled principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligation: See Olumesan v. Ogundipo (1996) 2 NWLR (Pt 433) 628 at 644; Raymond Obeta AND Attorney-General Enugu State v. Josephat Maduabuchi Okpe (1996) 8 NWLR (Pt. 473) 401 at 440. In the instant case, there is no suggestion from the statements complained of that the appellant’s right of fair hearing was being compromised since from the record of proceedings he had ample opportunity to present his case. I disagree with learned counsel for the appellant that the statement complained of gives an observer or a reasonable person present at the trial the impression that the court did not give the appellant a fair trial. From the antecedents of this case, the case has had a chequered history. The information was filed on 29/8/87 but the trial aborted before three Judges before it started de novo on 3/11/93 before Binang J. The prosecution called six witnesses and closed its case on 9/11/95 and the matter was adjourned to 22 and 23/11/95 for defence but at the instance of the appellant the case was transferred to another Judge to start de novo. However, on the representation by the prosecution the case was re-transferred to Binang J. who concluded same on 31/7/97. The remark by the trial Judge that the trial was of a protracted nature cannot be faulted. In any case that statement is a mere observation and not the reason for the judgment. A valid appeal must be an attack on the ratio decidendi and not on the obiter dicta of the case. See Saudi v. Adbullahi (1989) 4 NWLR (Pt. 116) 38 at 431; Ede v. Omeke (1992) 5 NWLR (Pt. 242) 428 at p. 435. Furthermore, I do not agree that the court below by making any of the statements complained of could be said, by any stretch of imagination, to have descended into the arena of the conflict as to infer bias against the appellant. The issue under consideration lacks merit.
Issue III: Was the trial Judge right to have made the consequential order of “delivery up of No. 5b Diamond Hill Calabar to PW1 within one week from the date of judgment and exhibits to the owners?”
In arguing this issue, it is submitted in the appellant’s brief that the order is oblivious of the statutory period of appeal to the Court of Appeal; it forecloses the appellant’s constitutional right of Appeal under section 220 of the 1979 Constitution. It is also argued that the order for restitution under section 263(1)-(2) of the CPL must be read subject to section 263(4) of the CPL. Reference was made to the evidence of PW1 to the effect that the originals of some documents relating to the same property and between the same parties in a civil matter is before High Court 3. The court it was contended was prejudging the out come of the said civil action. Counsel to the appellant is therefore of the view that the consequential order aforesaid was made in error. In his reply, learned counsel for the respondent submitted that the consequential order was lawful and made in the interest of justice and in accordance with section 299 of the Criminal Procedure Law.
The Criminal Procedure Act makes provision for the disposal of exhibits tendered in the court in the course of proceedings. Section 263(1) and (4) provides:-
“263(1) During or at the conclusion of any trial, or inquiry the court may make such orders as it thinks fit for the disposal whether by way of forfeiture, confiscation or otherwise of any property produced before it regarding which any offence appears to have been committed or which has been used for the commission of any offence.
By subsection (1) of section 263 above, the court was entitled to make the consequential orders relative to the exhibits tendered at the trial but the exhibits can only be given to the owners subject to subsection 4, that is, after the expiration of the period allowed by law for the appellant to appeal against the judgment without his lodging an appeal or if the appeal is entered until its disposal. By the consequential order directing that exhibits be given to their owners without more, the order stood to be carried out with effect from the date of judgment because the judgment of a court takes effect from the date it is delivered and it is meant to be obeyed without any demand. To that extent, the consequential order on the exhibits is erroneous. The property in dispute, that is, No. 5B Diamond Hill Calabar was not an exhibit before the court, section 267(1) makes provision for the restoration of immovable property. It enacts:
“267(1) Whenever a person is convicted of an offence attended by criminal force and it appears to the court that by such force any person has been dispossessed of any immovable property, the court may if it thinks fit, order the possession of the same to be restored to such person.
There is abundant evidence that the property was bought by PW1 through the appellant who has without consent of PW1 been living therein and collecting rents from the tenants for his own use. The order for the delivery of possession to the PW1 is justified. The objection that the order is prejudicial to the pending civil suit is taken care of by subsection 2 of the section. Subject to the observation with respect to the consequential order on the disposal of the exhibits, the issue under consideration is resolved in favour of the prosecution against the appellant.
On the whole the appeal fails and is accordingly dismissed. The conviction and sentences passed by the court below on the appellant are affirmed. The consequential order for the delivery of the exhibits to their owners is set aside. The bail granted to the appellant is revoked. The appellant is to proceed to serve the two year term of imprisonment imposed by the court below.
OKWUCHUKWU OPENE, JCA.: I have had a preview of the judgment just delivered by my learned brother Edozie JCA. He has very articulately and exhaustively dealt with all the issues raised in this matter and I have scarcely anything more to add to it. I entirely agree with him that there is no way that the judgment of the learned trial Judge can be faulted and that all the charges against the appellant were proved beyond reasonable doubt.
I also dismiss the appeal and I abide by the consequential orders made in the leading judgment.
SIMEON OSUJI EKPE, JCA.:I have had the advantage of reading in advance the leading judgment of my learned brother, Edozie, JCA. just delivered by him. It is a marathon judgment. He has meticulously and painstakingly considered and resolved all the issues raised for the determination of the appeal. I agree with his reasoning and conclusions.
However, I wish to add a few comments in my concurring opinion with the lead judgment. My first comment is on the contention of the learned counsel for the appellant in the appellant’s brief that the prosecution failed to prove its case beyond reasonable doubt.
Section 33(5) of the Constitution of the Federal Republic of Nigeria, 1979, now section 36(5) of the 1999 Constitution of Nigeria gives constitutional and statutory force to the presumption of innocence which is an essential foundation of our adversary system of criminal justice. To displace the constitutional presumption of innocence, the law therefore requires the prosecution to prove its case beyond reasonable doubt. See Alonge v. I.G.P. (1959) 4 FSC 203 at page 205. This is the golden thread that runs throughout the length and breadth of the web of the criminal law. See Woolminghton v. D.P.P. (1935) AC 462. The burden of proof beyond reasonable doubt which rests on the prosecution never shifts and if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal. The only exceptions where the onus of proof rests on the accused person are in the case of insanity, intoxication and proof of facts especially within the knowledge of the accused person, and in such cases the standard of proof is not as high as that on the prosecution, i.e. beyond reasonable doubt, but on the balance of probabilities as in civil proceedings. See section 141 of the Evidence Act 1990; R. v. Echem (1952) 14 WACA 158; R. v. Onakpoya (1959) 4 FSC 150.
The vital question is what does proof beyond reasonable doubt amount to? Proof beyond reasonable is a matter of degree reasonably permissible and sufficient for holding that the accused person committed the offence. The Judge should be satisfied that the evidence before him is sufficient to establish the guilt of the accused person. An absolute certainty is not attainable, hence proof beyond reasonable doubt has been taken to mean such a degree of cogency which is consistent with and equivalent to a high degree of probability. See The State v. Bakare (1987) 1 NWLR (Pt 52) 579; Abadom v. The State (1997) 1 NWLR (Pt. 479). It does not eliminate the possibility of any doubts whatsoever including remote possibilities. In the case of Miller v. Minister of Pensions (1947) 2 AER 373, Denning J (as he then was) expressed it thus:
“The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt.”
See Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at page 13. In Otoki v. A.G. Bendel State (1986) 2 NWLR (Pt. 24) 648, it was held that beyond reasonable doubt does not mean beyond any shadow of doubt. See Mbenu v. The State (1988) 3 NWLR (Pt 84) 615 (sic). Again, in The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548, the Supreme Court held that while in a criminal case, the onus is on the prosecution throughout to establish the guilt of the accused person beyond reasonable doubt, though not beyond any shadow of doubt, for the accused to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable doubt arising from some evidence before the Court. I therefore agree entirely with the learned trial Judge in his judgment that the case has been proved beyond all reasonable doubt against the accused person now appellant.
The other comment is on counts 1, 2 and 3 charging the appellant with forgery and altering of the survey plan and the certificate of occupancy. The evidence of the prosecution witnesses about the forgery is unimpeachable, in my view. The appellant admitted forging the survey plan already made by PW3 in the name of PW1. In his evidence under cross-examination the appellant stated at page 161 line 21 et seq as follows:
“Exh. L is the C. of O. (Certificate of Occupancy) with the survey plan attached. It is my own. I tendered my survey plan to (the) Land Use and Allocation Committee before the (C. of O) (Certificate of Occupancy) was given to me. I made the plan to reflect the ownership of the house. My name is Akpan Mbat Ukpe as well as Akpan Ukpe. I tendered exh. L to Mercantile Bank to obtain a loan.”
There is in law a presumption that a person who is in possession of a forged document or instrument is the forger, more so where he altered the document and stands to gain by it. See Awosika v. Inspector General of Police (1968) 2 ALL NLR 336. The above evidence of the appellant admitting that he made or doctored the survey plan, exhibit F to reflect his ownership of the house coupled with the fact that he was also in possession of it and altered it to the Land Use and Allocation Committee for the purpose of obtaining the Certificate of Occupancy exh. L, prove beyond doubt that the appellant was the forger of exh. F, the survey plan. The appellant then altered the Certificate of Occupancy exh. L with the forged survey plan exh. F to the Mercantile Bank of Nigeria, Mbukpa branch, with the intent that it should be acted upon as genuine for the purpose of obtaining a loan from the said Bank, which loan he eventually secured. The appellant altered the forged survey plan and the certificate of occupancy and stood to gain by the altering. In my humble view, the offences of forgery and altering were thus committed by the appellant.
For the above views and the more detailed views of my learned brother, Edozie JCA, in the lead judgment, with which I agree, I am satisfied that the appeal lacks merit. I therefore, accordingly dismiss the appeal. I abide by the orders made in the lead judgment.
Cases cited in the judgment
Abadom v. The State (1997) 1 NWLR (Pt. 479).
Abisi v. Ekwealor (1993) 6 NWLR (PT. 302) 643
Alade v. Okulade (1976) 1 All NLR (Pt. 1) 67
Adeyemi II v. Atanda (1995) 5 NWLR (Pt. 397) 512
Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 at 451
Agwuna v. A.G. Fed. (1995) 5 NWLR (Pt. 386) 418
Aigbe v. The State (1976) 9-10 S.C. 77
Ajidohun v. State (1991) 9 NWLR (Pt.215) 33
Ogundulu. v. Phillips. (1973) 1 NMLR 267 at 272; (1973) 2 SC 1
Akalezi v. State (1993) 2 NWLR (Pt. 273) 1
Akalezi v. The State (1993) 2 NWLR (Pt. 273)
Akibu v. Opaleye (1974) 11 SC. 189
Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696
Wakala v. The State (1991) 8 NWLR (Pt. 211)
Alonge v. I.G.P. (1958) SCNLR 516, (1959) 4 FSC 205
Aruma and Anor. v. The State (1990) 6 NWLR (Pt. 155) 125
Atunde v. Commissioner of Police (1952) 14 WACA 171
Awobotu v. State (1976) 10 NSCC 211
Awosika v. Inspector General of Police (1968) 2 ALL NLR 336
Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 629
Bozin v. The State (1985) 2 NWLR (Pt. 8) 465
Okala v. Uzoka (1978) 4 SC 77
Uso v. C.O.P. (1972) 11 SC 37
Ede v. Omeke (1992) 5 NWLR (Pt. 242) 428
Ewuzoke v. The State (1988) 1 NWLR (Pt. 72) 529
Fashanu v. Adekoya (1974) 6 SC. 83
Fatoyinbo v. A.G. Western Nigeria (1966) NMLR 4
Funsuk Eng. Ltd. v. MC Arthur (1995) 4 NWLR (Pt. 372) 640
Nwosu v. The State (1998) 8 NWLR (Pt. 562) 433
Isiaku Mohammed v. Kano Native Authority (1908) 1 All NLR 426
John v. The State (1966) 1 All NLR 211
Mbenu v. State (1988) 3 NWLR (Pt.84) 615
Enigwe v. Akaigwu (1992) 2 NWLR (Pt. 225) 505
Miller v. Minister of Pensions (1947) 2 ER 372
Ministry of Lands, Western Nig. v. Dr. Nnamdi Azikiwe (1969) 1 ALL NLR 49
Mogaji v. Odofin (1978) 4 SC 91
Nnaji v. Chukwu (1996) 10 NWLR (Pt. 478) 265
Nse Udo Ntita v. The State (1993) 3 SCNJ 28
Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373
Oguntolu v. State (1996) 2 NWLR (Pt. 432) 503
Oguonezee v. The State (1998) 58 LRCN 3512
Oji v. State (1972) 12 S.C. 47
Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333
Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167
Olujinle v. Adegbo (1988) 2 NWLR (Pt. 75) 238
Olumesan v. Ogundipo (1996) 2 NWLR (Pt 433) 628
Raymond Obeta AND Attorney-General Enugu State v. Josephat Maduabuchi Okpe (1996) 8 NWLR (Pt. 473) 401
Onofowokan v. The State (1987) 3 NWLR (Pt. 61) 538
Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101
Oro v. Falade (1995) 5 NWLR (Pt. 396) 385
Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt. 24) 648
Owoyin v. Omotosho (1961) 1 All NLR 304
Paul Onongo v. Aper Aku AND Ors. (1983) 2 SCNLR 332 (1983) 11 SC 129
Queen v. Abuah (1961) 2 NSCC 269, 270
Queen v. Abuah (1961) All NLR 662, 667
R. v. Barimah (1945) 11 WACA 49
R. v. Echem (1952) 14 WACA 158;
R. v. Fadina(1958) 3 FSC 11
R. v. Onakpoya (1959) 4 FSC 150
R. v. Turner (No. 2) (1971) C. App. R. 336: (1971) 2 SII E.R. 441
Raimi v. Akintoye (1986) 3 NWLR (Pt. 26) 87
Ariozi v. Elearo (1983) 1 All NLR 1; (1983) 1 SC 13 Atano v. A.G. Bendel State (1988) 2 (1988) 1 NWLR (Pt. 75) 201
Oladipupo v. The State (1993) 6 SCNJ 233
Rex v. Kwabara Bio (1945) 11 WACA 46
Saudi v. Adbullahi (1989) 4 NWLR (Pt. 116) 389
The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548
The State v. Bakare (1987) 1 NWLR (Pt 52) 579
Tinubu v. Khalil AND Dibbo Trans Ltd. (2000) 11 NWLR (Pt. 677) 171
U.T.B. v. Awanzigama Ent. Ltd. (1994) 6 NWLR (Pt. 318) 81.
Udofia v. The State (1984) 12 SC 139.
Ugwu v. Ogbuzuru (1974) 10 SC. 191
Woolminghton v. D.P.P. (1935) AC 462
Statutes referred to in the judgment.
Criminal Code Cap 31 vol .II Laws of Cross River State section 23, 464, 465, 467, 467(2)(e) and 468
Criminal Procedure Act, Sections 245, 263(1)(4) and 267(1) and (2)