Qist Chambers

Qist Chambers Barristers & Solicitors Litigation, Cooperate and Property Consultants

13/09/2024

*MORKA & ORS. vs. OSADEME(2022)*
*LCN/17136(CA)*

*ISSUE:* TRADITIONAL EVIDENCE-
Whether satisfying the provisions of Section 115 (3) & (4) of the Evidence Act, 2011 by a witness in his written statement on oath is necessary for his traditional evidence to command probative value(Issue is mine)

*PRINCIPLE:*
"The contention of the appellants’ counsel on the non-compliance with the provisions of the Evidence Act is untenable. First, there is a plethora of cases by which it has been settled that witness statement on oath which should accompany a writ of summons by virtue of the High Court (Civil Procedure) Rules of Delta State is not the same as an affidavit and needs not comply with the provisions of the Evidence Act, 2011. Once an affidavit is deposed to as required by law, it becomes evidence on which the Court can rely and reach a decision in appropriate cases. A statement on oath does not become evidence until the maker/deponent adopts same as his evidence after being sworn as a witness before the Court. See ABUBAKAR V. ALI & ORS. (2015) LPELR-40359 (CA) At 45-46 (D-E); TAR & ORS. V. MINISTRY OF COMMERCE & INDUSTRIES & ORS. (2018) LPELR-44216 (CA) AT 31-32 (C).
Secondly, it is accepted that traditional history is evidence of historical fact transmitted from generation to generation by word of mouth. It is by its nature hearsay evidence because the witnesses cannot speak from their personal knowledge. They only repeat the story which their ancestors had passed down from generation to generation. What the law requires a party relying on evidence of traditional history as his root of title to do is to plead and proof the following: (1) The name of the person who founded the land (2) How he founded the land, and (3) The intervening owners on whom the land devolved from its founder to the last successor without leaving gaps or creating mysterious linkages which cannot be explained. See AWODI & ANOR. V. AJAGBE (2014) LPELR-24219 (SC) AT 48 (B-F), (2015) 3 NWLR (PT.1447) 578; PADA V. GALADIMA (2018) 3 NWLR (PT. 1607) 436 AT 456 (C-F). Late Osademe Okoro by pleadings and evidence and the evidence of CW1 now the respondent traced the history of his root of title from Mordia who deforested the land to himself unlike the appellants who merely pleaded vaguely that the land in dispute is a communal land of Ogbeisogban Community and the community has been in exclusive possession of the land from time immemorial without stating how the community came to own the land. Osademe Okoro grew up and farmed with his father on the land in dispute. He was at a vantage position to talk about ownership of the land." Per BOLAJI-YUSUFF, JCA.

*DOCUMENTS: Duty Of A Party Relying On Documents In Support Of His Case**LADOJA v. AJIMOBI (2016-LCER-30543-SC):* "I see...
27/01/2024

*DOCUMENTS: Duty Of A Party Relying On Documents In Support Of His Case*

*LADOJA v. AJIMOBI (2016-LCER-30543-SC):*
"I seek to say that the law is settled on documents tendered in Court which purpose and worth must be demonstrated through a witness. It is settled also that the duty lies on a party who wants to rely on a document in support of his case to produce, tender and link or demonstrate the documents tendered to specific parts of his case. The fact that a document was tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on him to link his document with his case. See C.P.C V. INEC (2011) 18 NWLR (Pt 1279) 493 at 546 - 547. The appellant at the trial Tribunal, apart from tendering Exhibits 1 " 192 through PW1 did not bother to demonstrate the exhibits through any witness. The witness PW1 merely dumped the exhibits on the Tribunal and expecting it to go on a voyage of discovery. It is not the Court's lot to be saddled with nor can it suo motu assume the partisan responsibility of tying each bundle of such documentary evidence to the appellant's case to prove the malpractice alleged. It would amount to the Court doing a party's case which will occasion injustice to the other party. The Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party. The petitioner has the duty to tie the documentary evidence to the facts he pleaded through a witness. Anything short of that would be taken as dumping the evidence (documents) on the Tribunal. Each document has to be related to the case; PW1 did not tie any of the documents, Exhibits 1-192, 201, 203 - 2013, to its case. Therefore, the Tribunal cannot be faulted when it rejected the exhibits. The Lower Court also rightly endorsed same. This Court in the case of Omisore V. Aregbesola (2015) 15 NWLR (pt 1482) 205 at 323, 332 drove home the point when it held "Documentary evidence, no matter relevance, cannot on its own speak for itself without the aid of an explanation relating its existence." *Per OGUNBIYI, J.S.C. at Pp. 32-33; Paras. C-C*

24/08/2023

A court can not grant any relief claimed in the alternative when principal reliefs are granted.

*Mshelia JCA* in *Fed College of Edu. Technical, Potiskum v Joseph* (2020) 9 NWLR (Pt 1729) 381 at 409 stated thus:
*_"...To directly answer the issue, I agree with the submission of appellant's counsel that the trial court was wrong to have entered judgment in favour of the respondent in terms of the alternative claims. Having found that the respondent has proved the main or principal claim, the matter ends there. Respondent cannot be granted the two claimd at the same time."

YUGUDA v. ABDULLAHI(2022) LPELR-58160(CA)PrincipleISLAMIC LAW AND PROCEDURE - ISLAMIC LAW MARRIAGE - Position of the law...
24/08/2023

YUGUDA v. ABDULLAHI
(2022) LPELR-58160(CA)
Principle
ISLAMIC LAW AND PROCEDURE - ISLAMIC LAW MARRIAGE - Position of the law as regards the sums of money or items which are regarded as refundable or claimable in the case of Khu’lu divorce
"...I must mention straight away that Quran Surah 2 Al-Baqara verse 229 referred to by the learned counsel does not support his contention rather the opposite is the case. It states: "2:229. The divorce is twice after that either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money) given by the husband to his wife at the time of marriage which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e. g to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-khul (divorce). These are the limits ordained by Allah so do not transgress them. And whoever transgresses the limits ordained by Allah then such are the Zalimun (wrong does)." Ibn Abbas (RA) narrated that the wife of Thabit bin Qais came to the Prophet (SAW) and said "O Allah's messenger! I do not blame Thabit for defects in his character or his religion, but I being a Muslim, dislike to behave in an Un-Islamic manner (If I remain with him)". On that Allah's Messenger (SAW) said (to her), "Will you give back the garden which your husband has given you (as mMahr) she said "yes". Then the prophet (SAW) said to Thabit "O Thabit! Accept your garden and divorce her once". Sahih Al-Bukhari 7/5273. With the above hadith, the earlier hadith referred to by the appellant's counsel that if a woman ask her husband for divorce without any harm inflicted upon her, she will be forbidden from the fragrance of paradise, becomes inapplicable to the instant case. As to what a husband is entitled to in a Khul'i the case of Jimoh v. Adunni (2013) 1 SQLR (Pt. 111) 66 at 69 ratio 4 Okunola JCA held thus: "Once it is ascertained in a divorce matter that the wife really dislikes the husband so that she cannot live happily with him any longer as in the instant case, the Court shall then fix as compensation (that is Khul) anything that it considers proper and the husband shall have to accept that and divorce the wife. See A. R. Doi Basis of Sharia P. 288; Husaina v. Tsiriko (supra) P. 366 Paras E-F See also Bulumkutu v. Zangina (1997) 11 NWLR (Pt. 529) 526 P. 317, Salisu v. Lawal (1986) 2 NWLR (Pt. 23) 435 P. 442 was referred to with approval. See also Ramota Issa v. Issa Alab (1990) 1 SLRN 80 Pp. 90-91". It is settled law in plethora of judicial authorities that in a Khul divorce under the Maliki school of Islamic jurisprudence the wife is allowed to ransom herself by paying back to her husband the exact dowry paid to her or an amount less or more than that. But there is no law which states that the husband can claim an outrageous amount from the wife as Khuli so that he can remarry another wife. It is not the responsibility of the wife to provide the husband with the money to marry another wife in accordance with his whims and caprices. The Court has the power to decide on what is reasonable for the wife to pay the husband as compensation. The lower Court was right when it affirmed the decision of the trial Court for the payment of compensation of the sum of N80,000.00 by the respondent..." Per ABUBAKAR MAHMUD TALBA, JCA (Pp 14 - 17 Paras B - A)

07/08/2023

STERLING BANK PLC V. SAMAK ASSOCIATES LTD & ORS ( 2021) LPELR 36409 (CA) " A Board resolution is a public document whose proper custody is with CAC and must be certified and mandatorily forwarded to CAC within 15 days

11/12/2022

(Learned Counsel for the appellant submits that the failure of the respondents to file their counter affidavit in response to the appellant’s motion on notice dated April 30, 2015 until about a year after and without any attempt to regularize is a fundamental failure to comply with the requirement of Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009. He also submits that the respondents’ failure to regularize their counter affidavit borders on procedural jurisdiction which the trial Court had no business acting on those processes because they are not properly and validly before it.)
*MOBIL PRODUCING NIGERIA UNLTD. vs. LYCIUS & ORS.(2020)LCN/15073(CA)*

*ISSUE:* DISCRETIONARY POWER OF COURT-Whether a Court can act on a court process filed out of time and not regularized where there is a leverage in the Rules of Court to treat same as waivable irregularity; Whether failure to regularize a court process filed out of time has bearing on the substantive jurisdiction of the Court(Issue is mine)

*PRINCIPLE:*
"​The appellant’s complaint on the first issue relates to the alleged failure on the part of the respondents to respond appropriately to its motion on notice of April 30, 2015. The relevant provision of Order 26 Rules 5 of the Federal High Court (Civil Procedure) Rules, 2009 provides that-
“5. A party on whom a motion has been served as per the preceding rules of this order and who intends to reply may do so by filing his written address in reply along with a counter affidavit if he so wishes and shall do so, not later than seven days from the service of the motion on him.”
At the expiration of time stated above, a party may however apply for an extension to file his processes in accordance with Order 48 Rule 4 of the Rules which states:-
“4. The judge may as he deems fit and either before or after the expiration of the time appointed by these rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking a

05/12/2022

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ADMISSIBILITY OF UNREGISTERED TITLE DOCUMENTS: BENJAMIN V KALIO REMAINS THE LAW

Elvis AsiaClick here to view Elvis Asia’s profile
Elvis Asia
Managing Partner at Law Future Partners…
Published Jul 27, 2019
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Introduction

In its revolutionary decision in Moses Ben­jamin & 2 Ors v Adokiye Kalio & Anor[1], the Supreme Court put paid to the perennial issue of admissibility of unregistered land documents. The court held that once the document is pleaded and relevant, it is admissible. In doing so, the court overruled decades of authorities on the point on the premise that the various land instruments’ registration laws in the country, which makes registration a condition sine qua non for admissibility, are unconstitutional. The court reasoned that admissibility is governed by the Evidence Act which is a Federal Legislation and therefore any document or evidence admissible under the Evidence Act cannot be made inadmissible under state law.

Ejembi Eko JSC who delivered the lead judgement of the Court, pontificated as follows:

“It is obvious to me, upon a painstaking and dispassionate perusal of Section 20 of the Law, Cap 74 of Rivers State, that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport is clear and categorical, that no land instrument, mandatorily registrable, which is not so registered ‘shall not be pleaded or given in evidence in any court as affecting land’. This is clearly an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979. Section 20 of the Law Cap. 74 Rivers State, has therefore, rendered inadmissible Exhibit L, a piece of evidence that is relevant and admissible under the Evidence Act... ... ... ... In my judgement; a piece of evidence pleadable and admissible in evidence by dint of the Evidence Act, cannot be rendered unpleadable and inadmissible in evidence, by a la

22/10/2022

*MR ADO AGUELE V. HIS LORDSHIP BASHIR ABDULLAHI SUFI (2014) LPELR--23600 (CA)*

COURT - COURT REGISTRAR/OFFICIALS - Responsibility of court registrar/officials

"It is patently obvious that by Section 4 of the Judicial Services Commission Act published in Kano State No. 11 of 1980 contained in Cap 67 Laws of Kano State, 1991, referred to by Learned Counsel for the Appellant, the office of the Chief Registrar of the High Court of Kano State is distinct from the office of Magistrates. The Chief Registrar of the High Court of Kano State is the Head of Administration, the Chief Accounting Officer of the Court and heads the Court Support Staff. However, I must observe the inability of this Court to encounter any law permitting a Chief Registrar of a State High Court appointed from the Magistrate or any Chief Registrar to sit as a Chief Magistrate in the Chief Magistrates Court of the State or any law prohibiting a Chief Registrar of the State High Court appointed the Magistrate of the State from sitting in the Chief Magistrates Court of that State to entertain and determine any case arising from the Magisterial District of the State. By the High Court Laws of Kano State referenced by the Appellant's Counsel, Section 110(1) and (2), the Chief Registrar and other officers mentioned therein shall perform such duties in ex*****on of the power and authorities of the Court as may from time to time be assigned to them by the Rules of the Court or subject thereto to any special order of the Chief Judge. Sub-section 2 clearly stipulates that the office of the Probate Registrar of the High Court shall be filled by the Chief Registrar unless and until some other person shall be appointed. As strongly asserted by the Appellant's Counsel, the duties of the Chief Registrar are the duties assigned to them by the Rules of the Court, or any special order of the Chief Judge and acting as the Probate Registrar until the appointment of any person to the office. He also reproduced the offices of the Magistrates established by the Magistrates Court Law of Kano State, 1991. He further argued that the office of the Chief Registrar is now regulated by the High Court Laws but not Chief Magistrates Court Laws. It need be further stressed that even though there is Law regulating the duties of a Chief Registrar, there seem not to be any Law, as I observed earlier, prohibiting the Chief Registrar of the State High Court appointed from the Magistracy from continuing to sit in Court as a Chief Magistrate, the position he has not been stripped of. There is no Law suggesting that being appointed a Chief Registrar would erode the powers of a Chief Magistrate to sit as such. It must be emphasized that an action can only be declared as being illegal where there is a law in place prohibiting its commission . As a Chief Magistrate, he still remains a Chief Magistrate and none of his powers as a Chief Magistrate were extinguished by his appointment as a Chief Registrar. He is still a Chief Magistrate heading the administration in the High Court and from there he may be elevated to the Higher Bench. It is also necessary to observe that in this era of submission of copies of the judgments one had delivered as a Magistrate before he would ever be considered for appointment as a Judge of the High Court, one then wonders how that requirement can be met by the Respondent if, having not been robbed of his powers as a Chief Magistrate by any law, he continually fails to sit as such? From where would he obtain proof of his diligence and assiduity? Since this Court has not been furnished with any Law of Kano State precluding the Respondent from continually sitting as a Chief Magistrate, the Respondent's action of sitting to help in decongesting the Courts cannot be declared a nullity or illegal. One may say it is deplorable, thoroughly reprehensible not nice, but it is not breaking the law or illegal. No law was perceived as having been violated. I am afraid, the learned trial Judge seem to me right in his interpretation of the two Laws relied upon by the Appellant. The truth is, there is no clearer law prohibiting him from performing his duties as a Chief Magistrate since he is the one still equipped with the power or duties of assigning cases to the Magistrates for adjudication. I may say in passing that common sense may dictate that he should concentrate on his administrative duties but since there is no law restricting him from sitting as a Chief Magistrate, it would amount to begging the Law to do otherwise."
Per ORJI-ABADUA, JCA (Pp. 9-12, paras. E-D)

A letter written as a reply to a letter of demand and intention to sue if the demand was not complied with is admissible...
08/10/2022

A letter written as a reply to a letter of demand and intention to sue if the demand was not complied with is admissible in evidence. It cannot be inadmissible by reason of *S. 83(3)[Statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact the statement might tend to establish] of the Evidence Act, 2011*. This is so because where a person receives but fails to respond to a business letter which by nature of its content requires a response or a refusal of some sort, the person will be deemed to have admitted the contents of the letter.

_*U.B.A PLC v. VERTEX AGRO LTD. (2020) 17 NWLR (PART 1754) PAGE 467*_

05/05/2022

*OREDIPE & ORS. vs. HERITAGE BANK COMPANY LTD. & ANOR.(2020)LCN/15261(CA)*

*ISSUE: ESTOPPEL PER REM JUDICATAM/RES* *JUDICATA-* Circumstances under which the doctrine of estoppel per rem judicatam will apply(Issue is mine)

*PRINCIPLE:*
"These two issues distilled from grounds 1, 3 and 4 of appeal questioned the legality of the transaction leading to the purchase and issuance of the 45 bank drafts claimed by the Appellants through the 1st Respondent, in view of the above cited Supreme Court’s judgment. The complaint of the Appellants under these issues, and indeed the foundation of this entire appeal is on the trial Court’s holding in pages 307 to 308 of the record of appeal, part of which was quoted at page 10 of the Appellants’ brief of argument. The learned trial Judge held that: "This is the third time the action in respect of the 45 bank drafts came up before the Courts for adjudication. The Supreme Court declared illegal the said transaction ab initio. That the transaction is shrouded in secrecy. The Federal Ministry of Justice was ordered to be intimated of the said transactions and the said bank drafts be forwarded to the same Ministry saddled with the responsibility of prosecution of alleged offenders on behalf of the Federal Government. Where items are said to be impounded as ordered by the Supreme Court, it is said to be subject of illegal activity especially where prosecution is imminent…. In the circumstances of this case, I do agree with the decision of Abang J., in his judgment of 18th February, 2013 that the suit is meant to defeat the effect of the Supreme Court judgment dated 27th February, 1998 to the effect that the earlier transaction from the pleading and evidence of the plaintiff is illegal and unenforceable and that the obligations arising out of procurement of the banker’s draft are equally illegal and unenforceable. Whether as far as banker’s draft is concerned there are usually three (3) parties, i.e. the issuer, the holder for value and the holder in due course which can be an endorsee as the Applicants’ counsel puts it. The facts still remains that such transaction remains illegal. I do not therefore have the capacity nor audacity to sit here and review the judgment of either the Court of Appeal or the apex Court of the land as regards the non enforceability of the transaction or any ancillary matters thereto regarding the said drafts. The invitation to do so is certainly diabolical…”
Was the learned trial Judge right to so hold is the question that must be determined under the two issues. The Supreme Court’s decision in Alao V. ACB Ltd. (supra), no doubt was in respect of the 45 bank drafts issued by some customers (now the Appellants) in favour of Alao, the Appellant in that case. There is no dispute even from the learned Appellants’ counsel on this point. Thus, in the determination of these two issues and indeed this appeal, we need look no further than that case.
It is clear that in its judgment, the Apex Court found and held from page 355 to 356 of the NWLR (Pt. 542), that the transaction involving the procurement of the 45 bank drafts, which was for the purpose of paying Alao a debt in foreign currency was illegal and therefore unenforceable because it was done in contravention of Sections 3(1) and 7(c) of the Exchange Control Act in force at the time material to the transaction. His Lordship Kutigi, JSC, (of blessed memory) was categorical in stating from page 355 to 356 that: "Clearly, the transactions herein show that offences have been committed against Sections 3(1), 7(c) and 8 of the Exchange Control Act. They are therefore illegal transactions which law Courts will not enforce.”
The Apex Court further observed in page 356 paragraph B-C inter alia, that Appellant Alao did not name nor called as witness any of his Nigerian customers who borrowed the foreign currency from him and that: "The 45 bank drafts were issued in the names of various institutions of Britain, and each draft was especially and restrictively crossed and marked “Account Payee Only Not Negotiable”, but nevertheless the drafts were each endorsed by the business associate to the plaintiff. How come?”
From the entire decision of the Apex Court, there is no doubt that the issue of the fraudulent procurement of the 45 bank drafts that the present Appellants made the subject of their claims before the trial Court and in this appeal were declared illegal and unenforceable, by the Supreme Court of Nigeria. There is no Court in this Country, which can legalize that transaction.​
The Appellants learned counsel argued, rather vehemently, that it was the contract between the Appellants and Alao that the Supreme Court declared illegal and not the procurement of the 45 bank drafts. This argument is not only totally misconceived, but a deliberate misrepresentation of the clear pronouncement of the Apex Court, which was made in precise and clear simple language. In any event, the Apex Court observed that the Appellant Alao did not tender any agreement between him and the issuers/purchasers of the 45 bank drafts. Infact the purchasers were described as faceless by the Apex Court and to us too, they must remain forever so, because it (Supreme Court) said so. Their appearance in this suit from oblivion is of no consequences in view of their being pronounced faceless by the highest Court of the land.
Another contention of the learned Appellants’ counsel made in page 12 to 13, paragraphs 4.13 of the Appellants’ brief of argument is that: “…The loan transaction which is the basis of the interaction between the parties in the case is what was pronounced as illegal because the consent of the Minister was not sought at the time not for any other reason whatsoever. But Kutigi, CJN, (as he was then) was quick to note even at that, that the law they (Supreme Court referred to as “they”) relied upon to declare the loan transaction at the time of their (Supreme Court as “they”) decision was no longer law. More recently and importantly, the Supreme Court itself not long thereafter has had course to review and overrule itself on this issue as the law stands presently. The Honourable Court did so in the case of *Onwuchekwa V. NDIC (2002) 2 SC (Pt. II) 28,* wherein the scenario in Alao’s case replayed itself and was re-visited and overruled.
The case of Onwuchuckwa V. NDIC & Anor. which the learned Appellants’ counsel referred to in her argument (supra) is also reported in (2002) 5 NWLR (Pt. 760) 371. A close examination of that case revealed that it was decided on completely different circumstances with that of Alao V. ACB Ltd. and the Apex Court never even referred to its decision of Alao V. ACB Ltd., let alone reversed and overruled itself. The argument of the counsel of the Appellants is glaringly incorrect and deceptive meant to mislead this Court. It is most unfortunate, regrettable and unbecoming of a counsel to deliberately mislead the Court. I leave it at that.​
It is also strange that the same Appellants who relied on the order of the Supreme Court directing the proceeds of the 45 bank drafts to be returned to the Central Bank, because the intention for which they were procured by the faceless purchasers was illegal and amounted to an offence under the extant law, would turn around to argue (even falsely) that the decision in which the order was made was overruled since 2002. Let me be categorical here, that order of the Supreme Court remained static like the rock of Gibraltar and the proceeds of the illegally obtained 45 bank drafts shall remain with the 2nd Respondent forever, because the Supreme Court said so. The fate of the 45 illegally procured bank drafts is sealed forever.
It is for all the above stated reasons that I find no fault whatsoever with the above quoted finding and conclusion of the learned trial Judge and I have no hesitation in affirming same. Consequently, the Appellant’s suit leading to this appeal is certainly, without any iota of doubt caught up by the principle of res judicata. Issues one and three are resolved against the Appellants." *Per ALIYU, JCA.*

COP EKITI STATE & ORS v. AREGBESOLA & ORS(2020) LPELR-50177(CA)PRACTICE AND PROCEDURE - FUNDAMENTAL RIGHT (ENFORCEMENT P...
06/04/2022

COP EKITI STATE & ORS v. AREGBESOLA & ORS

(2020) LPELR-50177(CA)

PRACTICE AND PROCEDURE - FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE)
RULES -

*Ratio*

*_Position of the law as regards laying foundation for the admissibility of document(s) attached to an affidavit in a fundamental rights enforcement procedure_*

*Principle*

"The 1st Respondent supported her claim of torture, brutalization, beating etc and graphically illustrated same through paragraphs 15 and 22 of the records and further exhibited Exhibits SA (2a-g) which are pictures. The Appellants raised serious objection to the admissibility of Exhibit SA (2a-g) to the effect that no mention was made of the photographs during the proceeding nor did the 1st respondent say that she took pictures. Nonetheless, those pictures came into the limelight as annexure to the 1st Respondent further affidavit and admitted in evidence in evidence and made Exhibit SA (2a-g). The Appellants must have totally misconceived the procedure under the fundamental Rights which is proved by affidavit evidence different from the pleadings where a foundation must be laid and objection taken before a document can be taken. The law is well settled that documents annexed to affidavits as exhibits already form part of the evidence before the Court and as such the issue of laying foundation to its admissibility does not arise. See D.G. DICN & Anor v. Dinwabor & Ors (2016) LPELR - 41316 (CA) Where the court held that: "The dominant position of the Courts as rightly stated by the Applicants is that copies of public documents attached to an affidavit as exhibits need not be certified copies because the documents already form part of the evidence adduced by the deponent before the Court to use once it is satisfied that they are credible." - Ojuya v. Nzeogwu (1996) 1 NWLR (PT. 427) 713, Ilorin East L.G V. Alasinrin (2012) LPELR 800, B.A.T (NIG) LTD V. INT. To***co Co. PLC (2013) 2 NWLR (PT. 1339) 493, Jukok Int Ltd v. Diamond Bank PLC (2016) 6 NWLR (Pt. 1507) 55." Per PAUL OBI ELECHI, JCA (Pp 35 - 36 Paras B - D)

14/03/2022

"Suffice it to be shown that the gift accepted was to influence a performance of official duty. It must not have been asked for. What the law punishes with the greatest respect is the receipt of such a gift. The giving must not have been prompted by a demand by a defendant..."
*FEDERAL REPUBLIC OF*
*NIGERIA vs. KAYODE-BECKLEY*
*(2020)LCN/13958(CA)*

*ISSUE:* OFFENCE OF GRATIFICATION-Whether evidence of demanding financial offer by a public officer is necessary to ground conviction for the offence of gratification(Issue is mine)

*PRINCIPLE:*
"...as to whether for it to qualify as gratification, the gift must have been sought for to influence the performance of a public duty by the Respondent, the learned Counsel to the Appellant relied on the amended charge against the Respondent which reads:
“That you, AVM JOHN ADENIYI KAYODE-BECKLEY whilst serving as Director of Armament, Nigerian Air Force, sometime in 2015 at Abuja within the jurisdiction of this Honourable Court did corruptly accept a gift in the sum of Ten Million Naira (N10,000,000.00) from one Mr. Himma Aboubakar of Societe D’ Equipments Internationaux Nig. Limited, a contractor with the Nigerian Air Force in Performance of your official act and you thereby committed an offence contrary to Section 17(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17 (c) of the same Act.”
I am of the view that the onus was on the Appellant to prove the ingredients or elements of the one count charge which I believe are the following:
1. That the Respondent is/was a Public Officer
2. That he corruptly accepted a gift in the sum of N10,000,000.00 from an individual or corporate entity.
3. That the gift was an inducement for doing, forbearing to perform official duty or having been accepted to do or refrain from performing his official duty.
​The ingredients of the offence must be cumulatively proved or established. The burden is not on Defendant to prove the elements of the offence. The prosecutor must first establish prima facie that the Defendant committed the offence laid against him before evidential onus of showing doubts in the prosecution’s case shifts to the Defendant. See the case of PROF. BUKAR BARABE VS. FRN (2019) 1 NWLR (PART 1652) 100 at 124 H to 125 A – H where my Lord KEKERE- EKUN, JSC, held as follows: "The Position of the law, which remains constant and inviolable, is that in order to secure a conviction in criminal proceedings, the prosecution has the onerous burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135(1) & (2) of the Evidence Act, 2011; Igabele V. The State (2006) 6 NWLR (Pt. 975) 100; Iko V. The State (2001) LPELR–1480 (Sc) @ 48A – B, (2001) 14 NWLR (Pt. 732) 221; Lori V. The State (1980) 8-11 SC 81. This is in line with the presumption of innocence guaranteed to any person who is accused of committing a crime, as provided for in Section 36(5) of the 1999 Constitution, as amended. The burden remains on the prosecution throughout the trial and never shifts. However, where the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt shifts to the defendant. See Section 135(3) of the Evidence Act, 2011… In a few limited circumstances, such as where the accused person raises a defence of alibi or insanity, he has the evidentiary burden of adducing such evidence as would raise a reasonable doubt as to his guilt. This is because the facts constituting the defences are strictly within the accused person’s knowledge. See Ndukwe V. The State (2009) 7 NWLR (Pt. 1139) 43; Akpan V. The State (1991) LPELR–380 (SC) at 17 -18, F – C, (1991) 3 NWLR (Pt.162) 656; Madjemu V. The State (2001) 13 NWLR (Pt. 730) 375; Isah V. The State (2017) LPELR–43472 @ 28 – 29, F – E, (2018) 8 NWLR (Pt.1621) 346. His failure to testify, for example, cannot result in a conviction. The prosecution must adduce cogent and compelling evidence to discharge the burden of proving its case beyond reasonable doubt. Any doubt created in the mind of the Court must be resolved in favour of the accused person. See Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349; Aiguoreghian V. The State (2004) 3 NWLR (Pt. 860) 367; Adie V. The State (1980) NLR 323; Shehu V. The State (2010) 8 NWLR (Pt. 1195 112.
In order to establish the guilt of an accused person’s beyond reasonable doubt, the prosecution must prove all the essential elements of the offence or offences with which he is charged. The Court must be satisfied that the totality of the evidence led supports the particulars of the offence as charged. See: Alor V. The State (1997) 4 NWLR (Pt 501) 511; Nwaturuocha V. The State (2011) 6 NWLR (Pt. 1242) 170; Orji V. The State (2008) 10 NWLR (Pt. 1094) 31; George V. FRN (Supra)
I shall now apply the principles to the facts of this case. Count 5 and 6 of the charge were reproduced earlier in this judgment. By the said counts, the Chad Research Institute to confer unfair advantage on his son, Adam Bukar Bababe, by awarding a retainership contract for the maintenance of the Institute’s computers and approving the renewal of the said retainership contract in favour of Cyber Tech. Nig. Ltd. a company allegedly owned mainly by his said son. He is thereby alleged to have committed an offence contrary to and punishable under Section 19 of the Corrupt Practices Act. Section 19 provides:
“Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer is guilty of an offence and is on conviction liable to imprisonment for five (5) years without option of a fine.
The essential elements of the offence are:
1. That the accused person is a public officer.
2. That he used his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of his or upon any other public officer.”
It must also be noted that an accused is entitled to rely on the gaps or lacuna in the prosecution’s case where as in this case there are a lot of pieces of evidence both oral and documentary pointing to the innocence of the Respondent. A lot of doubts have been created in prosecution’s case as pointed out under issues 1 and 2 which have been resolved against the Appellant.
Even going by the ingredients of the offence as told or stated in paragraph 4.32 page 10 of the Appellant’s Brief of Argument and his further argument under paragraph 4.33 viz:
4.32. It is our humble submission my noble Lords that what the prosecution need to prove in a charge under Section 17(a) of the law are the following:
a. That the Defendant corruptly accepted the gift
b. That the Defendant accepted or obtained the gift for himself or for any other person.
c. That the Defendant accepted the gift in the course or for discharging his official duty.
d. That the gift is for an inducement or reward for doing, forbearing to do or for having done or forborne to do, any act or thing.
4.33. My Lords there is nowhere in the section under which the Respondent was charged that requires prove of a request/demand by a per charge under the Section as was held by the Honourable trial Court. Suffice it to be shown that the gift accepted was to influence a performance of official duty. It must not have been asked for. What the law punishes with the greatest respect is the receipt of such a gift. The giving must not have been prompted by a demand by a defendant and we respectfully urge this honourable Court to so hold”, the prosecution failed to establish the one Count Charge.
​The Appellant needs to be reminded of the command or dictates of Section 135 of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended all of which have been abundantly interpreted or explained in numerous cases. Suffice to refer to the following:
1. AKEEM AFOLAHAN V. THE STATE (2018) 8 NWLR (PART 1621) 223 at 239 G – H to 240 A – C per BAGE, JSC, who said: “The offence for which the appellant is charged is a very serious one, and by virtue of Section 135(1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convicting evidence that leaves no iota or doubts or skepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides:
“135. Standard of proof where commission of crime in issue; and burden where guilt of crime etc. asserted
(1) 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.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of act is or is not directly in issue in the action.
It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish his case beyond reasonable doubt. It must however be noted that proof reasonable doubt does not mean proof beyond all shadow of doubt, I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo V. Commissioner of Police (1992) LPELR- 3528 (SC), (1992) 4 SCNJ 113, (1992) 8 NWLR (Pt. 27) 36; Ogundiyan V. The State (19991) LPELR-2333 (SC), (1991) 3 NWLR (Pt.181) 519; Alonge V. IGP (1959) 4 FSC 203, (1959) SCNLR 516; Onubogu V. The State (1974) 9 SC 1 at 20; Babuga V. The State (1996) LPELR-701 (SC), (1996) 7 NWLR (Pt. 460) 279.”
2. UCHECHI ORISA VS. THE STATE (2018) 11 NWLR (PART 1631) 453 at 466 C – D per GALUMJE, JSC, who said: "The law is settled that 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. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Akpan V. The State (1990) 7 NWLR (Pt. 160) 101; Adamu V. A–G Bendel State (1986) 2 NWLR (Pt. 22) 284. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with criminal offence shall be presumed innocent until he is proved guilt. It is therefore plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi V. The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras. A-C; Solola V. The State (2005) 5 SC (Pt. 1) 135, (2005) 11 NWLR (Pt. 937) 460; Bakare V. The State (1987) 1 NWLR (Pt. 52) 579. (underlined mine)
The prosecution failed to prove any of the ingredients of the offence as set out in the charge by the evidence of its witnesses at the trial Court. The money found in Defendant’s account has been positively explained as encapsulating his DTA/Estacodes and extra expenses incurred at inspection, loading and transportation of the armaments to Nigeria. The Defendant also performed his duties of receiving or certifying that the goods were dully supplied and received by his employer. There is no scintilla evidence to show that he was gratified, induced or influenced by the N10,000,000.00 paid by the Chief Executive of the said Contractor. The finding of the trial Court is therefore quite in order and in tandem with the provision of Section 17(a) of the Corrupt Practices and Other Related Offence Act, 2000 coupled with provisions of Section 135(1) (2) of the Evidence Act (2011). The charge was not proved. The prosecution failed to prove that the N10,000,000.00 was or is a gift or gratification accepted to make Respondent do or refrain from performing his official or public duties.
Issue 3 is also resolved against the Appellant." Per IGE, JCA.

*Courtesy: Lawrence Udo Edet, Esq.*
*(Providing legal principles & solutions)*

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