Author: fredericknkobowo

Cases and Principles on Criminal Trials in Nigeria Vol. 2

March 7, 2023

Proving the Ingredients of an Offence

Ingredients of the Offence of Armed Robbery

UTTO v. STATE (2021) LPELR-56230(SC)

“Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:- (1). That these was a robbery (2). That the robbery was an armed robbery (3). That the accused person was one of those who robbed. All of the above must be provided beyond reasonable doubt before a conviction can be sustained and proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. See OLAYINKA AFOLALU VS THE STATE (Supra); FATAI OLAYINKA VS THE STATE (2007) 4 SCNJ 53; CHUKWUKA OGUDO VS THE STATE (2011) 12 SC (PT.1) 71.” Per SAMUEL CHUKWUDUMEBI OSEJI, JSC (Pp 28 – 29 Paras D – A).

OLAYIWOLA v. STATE (2021) LPELR-58288(SC)

“There are three ingredients required to successfully prove the offence of Armed Robbery which are; that there was a robbery or series of robberies, that each robbery was an armed robbery and that the defendant was one of those who committed the offence. See Nwaturuocha v. The State (2011) LPELR-8119 (SC) Pgs. 13-14, Paras. G-B, Bello v. The State (2007) 10 NWLR Pt. 1043 Pg. 564.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 28 – 28 Paras B – D)

NWOKOCHA v. AG OF IMO STATE (2016) LPELR-40077(SC)

“It is to be noted that the essential ingredients of the offence of armed robbery are: (1) That there was a robbery. (2) That it was an armed robbery. (3) That the accused was the robber or one of the robbers. All the three ingredients must be altogether proved for the offence to be said to have been proved. See Adekoya v. State (2012) MSCJ vol. II p.20 – 21.” Per MARY UKAEGO PETER-ODILI, JSC (Pp 52 – 53 Paras E – A)

OLUGBODE v. STATE (2022) LPELR-58126(CA)

“To secure a conviction for the offence of Armed Robbery, the prosecution must prove the following ingredients by credible evidence: (a) That there was a robbery or series of robberies (b) That the robbery was an armed robbery (c) That the accused participated in the robbery. All the above ingredients must be proved. It is not sufficient that two of the ingredients have been proved leaving one. They all must co-exist for the offence to be proved. See PEDRO VS. STATE (2018) 17 NWLR (PT. 1649)463, BABATUNDE VS. STATE (2018) 17 NWLR (PT. 1649)549, SMART VS. STATE (2016) 9 NWLR (PT. 1516)447 AND EMEKA VS. STATE (2014) 13 NWLR (PT. 1425)614.” Per FOLASADE AYODEJI OJO, JCA (Pp 19 – 19 Paras B – E)

KANGE v. STATE (2021) LPELR-55688(CA)

“It is trite that for a prosecution to secure a conviction for armed robbery, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that there was robbery or series of robberies; (ii) that the robbery was an armed robbery carried out with firearms or offensive weapons; and (iii) that the person charged with the offence was one of the robbers or implicated therein. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of armed robbery would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Dawai Vs State (2018) 5 NWLR (Pt 1613) 499, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453, Amos Vs State (2018) LPELR 44694(SC), John Vs State (2019) LPELR 46936(SC), Ayinde Vs State (2019) LPELR 47835(SC), Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 15 – 16 Paras D – C)

Ingredients of the Offence of Conspiracy

GARGA v. STATE (2022) LPELR-57677(SC)

“The ingredients required by law for the Prosecution to prove the offence of criminal conspiracy under Section 97 (1) of Penal Code are: a) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. b) Where the agreement is other than an agreement to commit an offence that some act besides the agreements was done by one or more of the parties in furtherance of the agreement. c) Specifically, that each of the accused individually participated in the conspiracy. See Yusuf v. FRN (2017) LPELR-43830 (SC) Pg. 26-27, paras. F; State v. Salawu (2012) ALL FWLR Pt. 614 Pg. 30-31; Kayode v. State (2016) LPELR-40028 (SC) Pg. 51-52, paras. F; Eze V. FRN (2017) LPELR-42097 (SC) Pg. 62-63, para. D; Obiakor v State (2002) 6 SC Pt. 11 Pg. 33 at 39-40 and Clark v. The State (1986) 4 NWLR Pt.35 Pg. 381.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 18 – 19 Paras E – D)

STATE v. FAFURU (2022) LPELR-58482(SC)

“The ingredients of the offence of conspiracy under the Penal Code are as follows: a) An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means. b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in the agreement, and c) Specifically, that each of the accused persons individually participated in the conspiracy. See: Musa v. The State (2016) LPELR-42803 SC; Obiako v. The State (2002) 6 SC (Pt. 11) 33; (2002) LPELR-2168SC.” Per ABDU ABOKI, JSC (Pp 14 – 15 Paras E – B)

ABACHA v. STATE (2002) LPELR-16(SC)

“Finally, the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences. See this court’s remarks in the case of Patrick Njovens & Ors. v. The State (1973) NNLR 76 at page 95: “When it is proposed to give evidence of the happenings inside hell it is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed, it would be preposterous to look for such evidence in other directions. The overt act or omission, which evidence conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick & Ribuff (1929) 21 CAR. 94. They need not all have started the conspiracy at the same time for, conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions (and or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.” Per SYLVESTER UMARU ONU, JSC (Pp 78 – 79 Paras E – F)

KAREEM v. STATE (2021) LPELR-58392(SC)

“Sometimes, to prove conspiracy it only takes one of the conspirators to confess to the act or omission and inferences deduced from the evidence that other Defendants also conspired to carry out such an act or omission. See Abacha V. State [2002] SC Pgs. 78-79, Paras. E-F where it was held per Onu JSC that: “conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions (and/or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 39 – 40 Paras F – C)

BALOGUN v. STATE (2018) LPELR-44215(SC)

– Whether it is necessary to prove that conspirators were seen together coming out of the same place at the same time

“It is not necessary to prove that the conspirators were seen coming out from the same place at the same time. Conspirators need not know each other. They also need not have started the conspiracy at the same time. For a conspiracy started by some persons may be joined at a later stage or stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. See R vs Mevick & Rebuff (1929) 21 CAR 94; Njovens & Ors v. The State (1973) NSCC 257. It is therefore difficult to prove the offence of conspiracy by direct evidence. Conspiracy is a matter of inference from the criminal act of the parties concerned which act is done in pursuance of an apparent criminal purpose. It is therefore the duty of the Court in every case of criminal conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with the offence. See Daboh & Anor vs The State (1977) 5 SC 222: ERIM vs The State (1994) 4 NWLR (Pt. 346) 535.” Per PAUL ADAMU GALUMJE, JSC (Pp 12 – 13 Paras C – A)

GARBA v. STATE (2020) LPELR-51375(CA)

– Meaning and ingredients of the offence of conspiracy and how the offence of conspiracy can be inferred; whether evidence of what one accused says in the absence of the other conspirators is admissible against such others

“…The Appellant was also convicted of conspiracy to commit Armed Robbery. “Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do” Nwosu Vs State (2004) 15 NWLR pt 897 pg 466, Amachree Vs Nig. Army (2004) 3 NWLR pt 807 pg 256. The ingredients of the offence of conspiracy punishable under Section 97 of the Penal Code are as follows: (a) An agreement between two or more persons to do or cause to be done some illegal act, or same act which is not illegal by illegal means. (b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement and (c) specifically, that each of the accused persons individually participated in the conspiracy. Abacha Vs Federal Republic of Nigeria (2006) 4 NWLR pt 970 pg 239 Aituma Vs State (2006) 10 NWLR pt 989 pg 452. In this appeal, the Appellant conspired with this gang. He knew the 3rd accused person Jeremiah Stephen who enlisted him to convey their operational gun to the scene of crime. He of course knew what he was enlisted for, to convey the operational gun for a Robbery. There was no evidence that he participated in the actual Robbery. The offence of conspiracy is not defined in the Criminal or Penal Code. Therefore, direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inaction of the parties concerned. Oduneye Vs The State (2001) 13 WRN pg 88. In this appeal, the Appellant ferried the operational gun through the checkpoints to the scene of crime. Of course he was aware that the gun was not a toy to play with. He knew as a police officer that ferrying the gun across checkpoints was on its own a crime not to think of when it was going to be used for armed robbery. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not to have started the conspiracy at the same time. The bottom line of the offence is the meeting of the minds of the conspirators. Nwosu Vs State (supra). The other accused person planned the armed Robbery and enlisted the help of the Appellant to assist them ferry the gun through the police checkpoints. There was from all these snippets of evidence a meeting of the mind of the Appellant with the other accused persons. It is very difficult to prove the offence of conspiracy. It is actually a matter of inference from certain acts of the parties. Consequently, the actual commission of the offence is not necessary to ground a conviction for conspiracy. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical.Nwosu Vs the State (2002) 10 NWLR pt 776 pg 612. Daboh Vs State 1977 5 SC pg 197. It is trite law that in a conspiracy proceedings evidence of what one accused says in the absence of the other conspirators is admissible against such others on the basis that if they are all conspirators what one of them say in furtherance of the conspiracy is admissible evidence against them, even though it might have been said in the absence of the other conspirators. This statement of law is thus an exception to the rule of hearsay. Nwosu Vs State (2004) 15 NWLR pt 897 pg 466. The Appellant was part and parcel of the conspiracy and as such was rightly convicted of the offence of Conspiracy to commit armed robbery.” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 14 – 17 Paras D – E)

UDO v. STATE (2020) LPELR-49723(CA)

– How the offence of conspiracy can be inferred

“The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is, therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with that offence. See COKER J.S.C in NJOVENS VS. THE STATE (1972) LPELR- 2042(SC).” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 20 – 21 Paras C – A)

Proving the Ingredients of an Offence Ingredients of the Offence of Armed Robbery UTTO v. STATE (2021) LPELR-56230(SC) “Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:- (1). That these was a robbery (2). That the robbery was an armed

Law Report Legal Articles

Cases and Principles on Criminal Trials in Nigeria

fredericknkobowo

March 7, 2023

Standard of Proof in Criminal Cases

Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011

Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the case of Miller v Minister of Pensions (1947) 2 All ER 372, Lord Denning said on the nature of proof beyond reasonable doubt, said that; It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility 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 a reasonable doubt.”

This position has been followed by a plethora of Nigerian cases. Thus, in the case of AKINLOLU v. STATE (2015) LPELR-25986(SC), the Supreme Court described proof beyond reasonable doubt in the following words – “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Lori & anor v. State 1980 12 NSCC p. 269.” Pp 38 – 38 Paras B – C.

The provision of the law on the standard of proof required in criminal trials must be appreciated against the backdrop of the presumption of innocence of the accused persons (or defendants) as well as the position of the law that mere suspicion is not enough to ground a conviction for an offence.

Decided Cases on the Standard of Proof in Criminal Cases

AJAYI v. STATE (2013) LPELR-19941(SC)

“…the standard of proof in a criminal trial is, proof beyond reasonable doubt. Therefore, it is not enough for the prosecution to suspect a person of having committed a crime, there must be evidence which linked the person accused with the offence alleged.” Per OLUKAYODE ARIWOOLA, JSC (Pp 43 – 43 Paras B – C)

EKPO v. STATE (2018) LPELR-43843(SC)

“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. As was held by Oputa, JSC in Bakare v The State (1987) 1 NSCC Vol. 18 P.267 at 279, the burden is on the prosecution to prove its case beyond reasonable doubt with emphasis on “reasonable”‘ That not all doubts are reasonable. It was further assessed that reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt i.e. a doubt not borne out by the facts and surrounding circumstances of the case. Reasonable doubt does not eliminate the possibility of any doubts whatsoever, including remote possibilities as was expressed by Denning J in Miller v Minister of Pensions (1947) 2 All ER 373 as follows:- “The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so 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 also Nwaturuocha v the State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (Pt.1242) 170, Akinlolu v The State (2015) LPELR – 25986 (SC).” Per JOHN INYANG OKORO, JSC (Pp 18 – 19 Paras B – B)

ENEBELI v. STATE (2021) LPELR-54990(SC)

“The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty. The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.” Per ADAMU JAURO, JSC (Pp 16 – 16 Paras D – F)

NWATURUOCHA v. STATE (2011) LPELR-8119(SC)

“It is trite law that it is not the duty of an accused to prove his innocence as a matter of law, there is always a presumption of innocence in favour of an accused. The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt. Aigbadion v. State (2000) 4SC Pt.1 pg.1, Agbe v. State (2006) 6 NWLR pt. 977 pg.545, Section 138 of the Evidence Act Cap 112 Laws of the Federation 1990, Akinyemi v. State (1999) 6 NWLR pt.607 pg.449, Alonge v. I.G.P. (1959) SCNLR pt.576.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 15 – 15 Paras B – F).

Burden of Proof in Criminal Matters

Relevant Section of the Evidence Act – Sections 135 and 139 of the Evidence Act 2011

IORHEM v. STATE (2017) LPELR-43631(CA)

“In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused so that a wrong person may not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100.” Per JAMES SHEHU ABIRIYI, JCA (Pp 29 – 30 Paras D – A)

OMOREGIE v. STATE (2017) LPELR-42466(SC)

“The Law is settled that in criminal cases, the burden of proof that the accused committed the offence for which he is charged lies squarely 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 never shifts. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 135(2) of the Evidence Act, Alabi v The State (1993) 7 NWLR (Pt.307) 511 8t 531 paras A-C, Solola v The State (2005) 5 SC (Pt.1) 135.” Per PAUL ADAMU GALUMJE, JSC (Pp 22 – 23 Paras F – C)

ADEKOYA v. STATE (2012) LPELR-7815(SC)

“The fundamental aspect of burden of proof in criminal trials is the presumption of innocence in favour of an accused. It is entrenched in Section 36(5) of the 1999 Constitution that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” The Evidence Act Section 138(1) Laws of the Federation 2004 (Now Section 135(1) of the Evidence Act 2011) however stipulates 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.” Under our criminal law, it is not the duty of an accused to prove his innocence. The standard of proof in a criminal trial is proof beyond reasonable doubt. Which demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence? There must be evidence which identified the person accused with the offence. The consequences of presumption of innocence in favour of an accused person are that the burden placed on the prosecution to prove the guilt of an accused person beyond reasonable doubt must be satisfied. Any slightest doubt raised by an accused person shall lead the Court to resolve this doubt in favour of an accused. Igabele v. State (2006) 6 NWLR (pt.975) pg.100, Agbo v. State (2006) 6 NWLR (pt.977) pg.545, Aigbadion v. State (2000) 4 SC (pt.1) pg.15.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 28 – 29 Paras D – B)

OWOLABI v. STATE (2018) LPELR-46031(CA)

“In criminal trial, the burden of proving the guilt of the accused person is on the prosecution to establish his guilt beyond reasonable doubt and it never shifts. ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59, IGABELE V STATE (SUPRA).” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 25 – 26 Paras F – A)

Mens Rea and Actus Reus

Need to Prove Mens Rea and Actus Reus

LIMAN v. STATE (2016) LPELR-40260(CA)

“It is also trite that criminal responsibility for the commission of a crime is premised on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty mind of the accused person beyond reasonable doubt. In other words, in a criminal trial, before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime; that is, the actus reus and the mens rea. Actus reus is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea. Mens rea is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused and establish that the accused had the correct legal criminal mind of committing the act. The two must co-exist, whether explicitly or by necessary implication – Njoku Vs State (2013) 2 NWLR (Pt 1339) 548.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 12 – 13 Paras E – D)

ABUBAKAR v. FRN (2022) LPELR-58650(CA)

In every criminal trial, the basic components that must be established by the prosecution are actus reus and mens rea. That is, the doing of the act or omission complained of and the guilty mind that procured the act or omission. That means, apart from doing the act (in this case, issuing a dud cheque), there must also be the requisite intention to deceive, cheat, swindle or defraud the recipient of the cheque and deny him of the value accrued to the cheque, after enjoying that corresponding value (by the person who issued the cheque). The legal principle of actus reus and men rea are well defined. See the cases of Eze Vs The State (2017) LPELR-42006 CA: “To establish criminal responsibility, there must be mens-rea – criminal knowledge or intention to commit the offence, to support the actus reus – the actual act. Aminu Tanko Vs The State (2009) 4 NWLR (pt.1131) 430; Okewu Vs FRN (2012) LPELR 7834 (SC).” See also Idagu Vs The State (2018) LPELR-44343 (SC): “It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.” Per AUGIE, JSC” Per ITA GEORGE MBABA, JCA (Pp 17 – 19 Paras B – A)

ONYA v. STATE (2019) LPELR-48500(CA)

“The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is the objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was one of the youths that invaded the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI,JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 27 Paras C – C

TAIWO v. FRN (2019) LPELR-47635(CA)

“Except in cases of strict liability, offences in the Criminal Law are structured to comprise of two parts – a physical part and a mental part, the physical part or actus reus means the whole definition of the crime with the exception of the mental element; See Glanville William Criminal Law 18. See also Okonkwo and Naish Criminal Law in Nigeria 45. There is also the mental element because the law does not ordinarily punish mere intention until it merges into the physical act. It is expressed as “actus non facit reum nisi men sit red’, the act does not constitute a crime unless accompanied by a guilty mind. Every offence is defined by its ingredients or elements. In this appeal, one element of the offence under Section 26 (2) of the Trafficking In Persons Act is “to obtain financial benefit” i.e. an inducement in the alleged trafficker to obtain financial benefit. This can be proved by showing a financial consideration at any stage. It must not be presumed as the trial Judge did in this case. One cannot say “she probably committed the offence as she couldn’t have done it nothing”. Pecuniary benefit in the real sense must be proved. The law is that the prosecution is bound to prove its case beyond reasonable doubt and in doing so must prove all elements of the offence physical and mental. R V. LAWRENCE (1933) 11 NLR 6; 1933 AC 699; R V. ADAMU (1944) 10 WACA 161 SECTION 135 OF THE EVIDENCE ACT 2011. A trial Court would be asking questions such as the following: i. What was paid to the defendant/appellant and why? ii. Can financial proof be established by circumstantial evidence? iii. In what pecuniary way was the defendant/appellant induced? iv. What if the intendment of the defendant/appellant was just to help the mother of Abike have normal and lawful custody of her natural child? v. Is it forbidden by any law for Abike to rejoin her mother in London? The trial Court failed in all these inquiry. The trial Judge acted on her own conjecture and not evidence. The lead judgment in this appeal by my Lord Folasade Ayodeji Ojo, JCA has demonstrated the futility of such conjecture. The stream of the Criminal Law must be kept pure and devoid of all subjectivity. Judges must look beyond the parties in cases before them.” Per NONYEREM OKORONKWO, JCA (Pp 28 – 30 Paras F – E).

STEPHEN v. STATE (2008) LPELR-8360(CA)

“It is imperative to state that the offence of being in an unlawful possession of firearms does not require proof of mens res and actus reus as contended by the Appellant’s Counsel. It is a strict liability offence. The elements do not contain the need for criminal intent or mens rea. Once a person has knowingly taken possession of an article and it remains within his control, he continues in possession of it. So long as the appellant did not come into possession of the weapon in accordance with the Act or any order made thereunder, it can never be argued that his intentions were entirely lawful. It is not necessarily a reasonable excuse that the weapon is carried only for self-defence. One, who is under constant threat, it is said, must resort to the police. He commits an offence if he regularly goes out armed for self-defence. Thus, in Bradley V. Moss (1974) Crim. LR 430, DC: Pittard V. Mahoney (1977) Crim. LR 169, Grieve V. Macleod (1967) SCT 70, it was held that there was no excuse for carrying an ironbar though D had reasonable cause to fear and did fear that he would be violently attacked and intended to use the bar for defence only, and, that, it was not reasonable for an Edinburgh taxi-driver to carry two feet of rubber hose with a piece of metal inserted at one end, though he does so for defence against violent passengers whom taxi drivers sometimes encounter at night. See Smith & Hogan Criminal Law, 10th Edition (2002) p. 461-462. In Olatunji’s case, it was because grenade was not covered by the definition of firearm, that a ballistician was held to have been needed to establish whether the grenade was a firearm or not.” Per THERESA NGOLIKA ORJI-ABADUA, JCA (Pp 16 – 18 Paras E – A).

EGWU v. STATE (2019) LPELR-48499(CA)

“The question is whether the appellant had the mens rea, that is the intention to commit murder or serious bodily harm necessary to convict him for murder. From the entire evidence on record, it is clear that the only intention of sending the task force to bring those not at the meeting was to mobilize the youths for the meeting. I do not think it can reasonable be argued that the appellant had the slightest criminal intent or could have foreseen the murder of the deceased as the consequence of trying to mobilize the youths to attend a meeting. The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was the one that sent the task force and/or the youths to the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI, JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.” In NJOKU & ORS. V.THE STATE (2012) LPELR-20608(SC) AT 21-22 (F-E), the Supreme Court per Onoghen JSC held that: “it is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act. The two must co-exist whether explicitly or by necessary implication. In their interplay of words/phrases reflected in their book: ‘Criminal Law 831’, 3rd edition 1982, Rollin M. Perkins and Ronald N. Boyce, stated that: “The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus.” It is clear to me from the entire evidence on record that the prosecution failed to prove the appellant had the necessary mens rea or criminal intent to murder the deceased.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 28 Paras D – A)

STATE v. KALIB (2021) LPELR-56084(CA)

“…for a person to be held liable for a criminal offence there must be present the physical and mental elements of the offence which in legal parlance is referred to as the actus reus and the mens rea. Except in strict liability offences, no person will be convicted for a criminal offence if either the actus reus or mens rea is missing. This is an established principle of law. In proving its case beyond reasonable doubt, the prosecution is expected to prove both aspect of the offence. See Taiwo vs FRN (2019) LPELR-47635 (CA). In Olufemi Babalola & Ors vs The State (1989) 7 SC (pt 1) 94, the apex Court per Oputa, JSC of blessed memory drove home this point in these words: “It is not necessary here to go into remote history of mens rea except to say that in common law offences, there are always present two essential elements:- (a) a guilty conduct and (b) a mind at fault. It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea”. Probably from there, the legalists got the now popular latin maxim – actus non facitreum nisi mens sit rea. No man, (including the 1st appellant), should according to this maxim be convicted of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element a mind of fault, a mens rea. The intent and the act must both concur to constitute the crime:- Fowler v. Padget (1997) 7 T. R. 509 at p. 514. And as Stephen J., observed in R. v. Tolson (1889) 23 Q.B.D. 168 at p. 187:- “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.” Per EBIOWEI TOBI, JCA (Pp 11 – 12 Paras B – E)

Proving the Ingredients of an Offence

TEMITAYO v. STATE OF EKITI (2021) LPELR-56039(CA)

“The ingredients of any offence are always discernable from the language used by the legislature in providing for the offence. See the case of ROLAND VS. FRN (2018) LPELR-43686 (CA) where this Court held on page 32, paragraph B, that: It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words, which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per BALKISU BELLO ALIYU, JCA (Pp 21 – 21 Paras B – D)

ROLAND v. FRN (2018) LPELR-43686(CA)

“It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 32 Paras B – D)

TAIWO v. FRN (2019) LPELR-47635(CA)

“Having failed to establish that the Appellant benefited financially or materially from the deal, a consideration of proof of the other ingredients of the offence under Section 26(2) (Supra) has become unnecessary. Failure of the prosecution to establish one of the ingredients of the offence is sufficient to defeat the entire prosecution. In other words, failure to prove one essential ingredient of an offence is sufficient to find the case of the prosecution not proved beyond reasonable doubt.” Per FOLASADE AYODEJI OJO, JCA (Pp 25 – 26 Paras F – B)

FRN v. TALAL (2022) LPELR-57088(CA)

“I hold that the learned trial Judge was right when he held that the prosecution did not prove that the pretence or representation made to PW1 was false. Having found as above, it is not necessary to proceed to pronounce on the next element of the offence, which is, whether the Accused/Respondent made the pretence or representation with the intention to defraud. This is because, as stated on the onset of this Judgment, the prosecution have the onerous duty to establish every ingredient of the offence charged, otherwise they would have failed to prove the offence beyond reasonable doubt. In other words, once any one of the essential elements of the offence are not proved, it would mean that the charge has not been proved beyond reasonable doubt, and the accused will be entitled to an acquittal. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Darlington v. FRN (2018) 11 NWLR (Pt. 1629) 152 and Kassim v. State (2017) LPELR-42586 (SC). See also Ameh v. State (2018) 12 NWLR (Pt. 1632) 99 and Aliu v. State (2015) 2 NWLR (Pt.1442) 51. Thus, in Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170, the Supreme Court, per Adekeye, JSC said: “In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged …” It follows therefore that, were the Court finds that an essential element of the offence charged has not been proved, it would mean that the prosecution failed to prove the essential ingredients of the offence beyond reasonable doubt and the Appellant would be entitled to an acquittal. See Ibrahim v. State (2015) LPELR-40833 (SC); Okoro v. State (1988) 5 NWLR (Pt. 94) 255 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. I therefore hold that, for failing to prove that the pretence or representation made to the Accused/Respondent was false, an essential ingredient of the offence charged has not been proved beyond reasonable doubt.” Per HARUNA SIMON TSAMMANI, JCA (Pp 31 – 33 Paras B – B)

Ingredients of the offence of Armed Robbery

MABA v. STATE (2020) LPELR-52017(SC)

“All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the undermentioned elements, namely- (I) that there was a robbery, (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accused person or persons was/were the armed robber(s). All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved; then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit the accused person of the offence of armed robbery. See Per Sanusi, JSC in Ugboji v. State (2017) LPELR-43427 (SC).” Per UWANI MUSA ABBA AJI, JSC (Pp 36 – 37 Paras C – A)

Cont’d

Standard of Proof in Criminal Cases Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011 Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the

Learned Scribbles

SHOULD BEING A GREEN WIG ALWAYS EQUAL CATASTROPHE?

fredericknkobowo

March 6, 2023

For many of us, being called to the Nigerian bar was a crowning moment. The cheers, the high necks of our proud fathers and the floating shoulder pads of our even prouder mothers when they attended that graceful ceremony would likely still be very vivid for us. Six years of study was rewarded by our official circumcision into the largest bar in Africa as Barristers and Solicitors of the Supreme Court of Nigeria. In effect, that day we justified all the ‘the Bar, the bar’, our friends and well-wishers hailed us as earlier.

But the reality for the majority of new lawyers (new wigs) is that legal practice in Nigeria (especially litigation practice in a solo man firm) would send initial shockers down your spine. After the dopamine of the call to bar ceremony wears off, real life as a young lawyer in Nigeria begins.

A number of young lawyers have the good fortune of getting into the top-tier law firms at the earliest opportunity in their careers and this totally changes the trajectories they travel and opportunities they become exposed to. But not everyone will or can get into a top-tier law firm in Nigeria. And this is largely because the top tiers can’t hold the about 5,000 new wigs sent into the legal services market every year.

So, in real sense, many young lawyers have and will see various forms of shege. Pardon my nomenclature (the shege) please. It is just the current reality on ground. And this reality has caused a number of young lawyers to abandon the profession and rather engage in other endeavors.

However, despite this shege, is the curious position that the young lawyer does not know law or is a bundle of catastrophe waiting to be unleased on an uninformed client. I largely disagree with this position.

With that last sentence, one experience immediately comes to my mind. I started my practice in a solo firm and the first time, I visited my former Boss in chambers, I was welcomed. Mind you, I was not welcomed with a rousing speech that got me all motivated to work. I remember the scenery fairly well and what my Boss said. He said something to the effect that I was comparable to this large wardrobe that was empty (even after graduating from university and Law school) and it was now that the knowledge of the law was going to be stuffed into my head (the wardrobe that is). This was a shocker for me. And to say the least, it was not encouraging.

Expectedly, this perception held by my Boss then reflected in the tasks he routinely gave me. So for the first few months, I was the one assigned to appear in Court for matters that were not going on. The morning of the matter, he would usually brief me as to the excuse for the matter not going on. For some days, I came back with costs, not crushing costs though but for the most part, my applications for adjournments were duly granted. But the point is, I felt that I was not growing per se.

As a green wig, you must concede that you do not have the years of experience the senior lawyer has. But your have a lot of advantages going for you as well. One being your youth and familiarity with tech. The truth however is you have to think it so for yourself and take steps to maximally utilize as many advantages that you discover in your arsenal of practice.

Besides to my mind, being inexperienced is vastly different from being incompetent. And the green wig is not automatically incompetent, after all he has a qualifying certificate that screams otherwise. For whatever it is worth, that certificate should be prima facie evidence of competence. But as certificates go these days, we really don’t trust them. That aside, the truth is anyone can gather experience, if he diligently seeks to do so. If I should draw an allusion; How do quack lawyers do it and look so real? They simply learn quickly on the job.

Being a green wig therefore puts the young lawyer in the position of a lifelong learner – the same position the Senior Lawyer is in. Many times, there are two things to learn in every work environment namely – how to get things done and how not to get things done. The first limb yields itself to an easy explanation. How not to get things done is simply observing what your current boss isn’t doing optimally when compared to others and learning from others instead. I am not advocating an abandonment of your Boss. No. Rather a comparison of the excellence level of the output he puts forward and the output put forward by others as well.

Why do I think that being a young lawyer isn’t necessarily a disadvantage unless one makes it out to be? I’d give an illustration from my experience as well. So, when I left that my Boss – yes, the one with the wardrobe analogy, I joined another law firm. Another culture shock hit my spine. Over in this new firm, new wigs actually handled matters. I only accompanied a senior to Court once and within a month or two I was sent for a matter slated for cross examination. See me and my village people in Court that day. The entire ocean was even under my legs. To say the least, I was flustered. And the lawyer on the side? He was a senior lawyer of course. But, I knew the facts of the case and our trial strategy. Also, I was mandated to draft cross examination questions and they were reviewed by my senior in chambers. Armed with those questions as well as a few other lessons[1] I proceeded to cross examine the witness successfully. I was barely a year at the bar then.

This brings me to the issue of mentorship as well. There is a whole lot a young lawyer can learn on his own. But there is a whole lot more he can learn from Seniors who he considers to be mentors.

The long and short of this piece is self-evident; being a young lawyer does not equate incompetence and it would never be if you don’t let it. I would have borrowed a few words from Anthony Ekundayo’s Hint on Legal Practice to end this piece, but I think the entire book and all the words therein are best read. So I overcome the temptation to borrow and enjoin any young lawyer reading this to read the book.

Instead, I will send with a few words of mine from my practice journal;

No one is born with the knowledge of law crested on his brain. Even the most admired jurists had no knowledge of law at birth. The bright lights we have seen and will yet see in the sphere of law and legal practice that do all the admirable things we applaud them for, do so with their ‘acquired’ knowledge of law. They simply built key competencies and displayed these acquired competencies to our admiration and adulation. The same can be done by any new wig. After all, from the day of call forward, all ‘wigs’ grow old and not younger. The green wig soon turns yellow and maybe grey and if unattended to, the wig grows bald.

Cheers.

Written by Nkobowo Frederick LLB, BL

[1] Prof Irving’s ten rules of Cross examination – available on youtube and Prof. Yemi Osinbajo’s Cross Examination; the trial Lawyers most potent weapon for the most part.

Law Report Legal Articles

INSUFFICIENT DENIAL IN PLEADINGS

fredericknkobowo

March 6, 2023

Written by Carrington Omokaro, Esq

An averment in a statement of defence which states “The defendant denies paragraph _ and puts l NJ the plaintiff to the strictest proof” or “The defendant is not in a position to admit or deny _ and will at the trial put the plaintiff to proof”, amounts to an insufficient denial. Such averment does not deny the facts sufficiently enough to raise any issue in respect of the said facts. Where there is no issue the question of burden of proof does not arise. – Lewis & Peat (N.R.I) Ltd v. A.E Akhimien (1976) 7 SC 157

Explanation

In the case earlier cited, the Appellant as plaintiff in his statement of claim averred

1️⃣. The Plaintiffs are a trading company registered in Nigeria with their Headquarters in Ogbarefe in the Midwestern State.

2️⃣The Plaintiffs buy rubber lumps and process them for export

The Respondent as defendant at the trial court in paragraph 3 of the statement of defence stated The defendant is not in a position to admit or deny paragraphs 1 & 2 of the statement of claim and would put the Plaintiffs to the strictest proof thereof.

During address, learned counsel for the respondent for the first time raised the question of capacity of the appellants to sue. He submitted that there was “no legal person before the court as there is no averment that the plaintiff is a legal person.” Continuing his submissions he pointed out that no certificate of incorporation of the appellants’ company was exhibited at the trial and that in the circumstances the appellants could neither sue nor be sued. The learned trial Judge in a considered judgment held that the appellants having failed to establish their corporate personality could not maintain the claim which must be dismissed. The trial Judge further stated that “_When the corporate existence of plaintiff was impugned by the defendant, it became necessary for the plaintiff to adduce evidence in proof thereof of the fact of incorporation. Oral assertion by a junior employee of the company is not enough. The certificate of incorporation or registration under the Companies Act…………………….. should be tendered or evidence of its non-existence given

On Appeal to the Supreme Court, the Apex Court in allowing the Appeal stated

“If a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: “defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof”. As was held in Harris v. Gamble (1878) 7 Ch D 877. A plea that “defendant puts plaintiffs to proof” amounts to insufficient denial…We are, therefore, of the opinion that paragraph 3 of the Statement of Defence did not deny the facts alleged in paragraphs 1 & 3 of the Statement of Claim sufficiently enough to raise any issue in respect of the facts”.

Written by Carrington Omokaro, Esq An averment in a statement of defence which states “The defendant denies paragraph _ and puts l NJ the plaintiff to the strictest proof” or “The defendant is not in a position to admit or deny _ and will at the trial put the plaintiff to proof”, amounts to an insufficient denial. Such averment does

Law Report Legal Articles

RES JUDICATA V ISSUE ESTOPPEL

fredericknkobowo

March 6, 2023

Written by Carrington Omokaro, Esq

ISSUE ESTOPPEL
Illustration

Making reference to a land dispute, Mr. A sues Mr. B in 2012 asking the court to declare him the owner of the land in dispute. Mr B did not counter-claim. The court eventually holds that Mr. A has failed to prove title to land. Mind you, Mr. B did not counterclaim, so the fact that Mr A’s claim was dismissed, does not make him the owner.

What then happens if Mr. A refuses to give up possession ? Should Mr. B take the laws into his hand and kick Mr A out, No !. Should he also wait for Mr. A to file another action, so that he (Mr. B) can raise res judicate…No!
Mr. B can now institute an action against Mr. A to prove his own title and in his statement of claim(i.e Mr. B’s), he will then plead the earlier decision as Issue Estoppel (I.e to establish the fact that Mr. A (Claimant in the previous suit, now defendant in the subsequent suit) is estopped from pleading any fact in his statement of defence towards establishing title. Hence, Mr. A will be estopped from leading evidence as regards title.

2️⃣ RES JUDICATA
It is only used as a defence and when raised, it robs the court of jurisdiction. This is why a Claimant cannot raise Res judicata because he cannot be validly seen to raise a plea that oust the court from entertaining his own suit.
It gives the impression that the claimant in the instant suit had judgment delivered against him or that the claimant’s claim had earlier been dismissed.
Illustration
Using same scenario as stated in the preceding paragraph… If Mr. A had successfully proved title, then Mr. B ought not to be in the land. However, assuming Mr. B decides to institute an action against Mr. A who had earlier gotten judgment in his favour, then Mr. A who will now be the defendant in the subsequent action can raise the defence of RES JUDICATA which operates not only against the party whom it affects(Mr. B), but also against the jurisdiction of the court itself. The party
affected (Mr. B) is estopped per rem judicatam from bringing a fresh claim before the court. At the same time, the Jurisdiction of the court to hear such
claim is ousted.” This is because the court having previously made a pronouncement on that claim between both parties in the previous suit is functus officio

UKAEGBU & ORS vs. UGOJI & ORS (1991) 6 NWLR (Pt. 196) 127

Written by Carrington Omokaro, Esq Making reference to a land dispute, Mr. A sues Mr. B in 2012 asking the court to declare him the owner of the land in dispute. Mr B did not counter-claim. The court eventually holds that Mr. A has failed to prove title to land. Mind you, Mr. B did not counterclaim, so the fact

Law Report

Cases And Principles on Land Litigation in Nigeria

fredericknkobowo

March 4, 2023

Duty of A Claimant in An Action for Declaration of Title to Land

In a civil action where a Claimant seeks a declaration from the Court that title to a piece or parcel of land belongs to him, the law has placed some duties which the Claimant must satisfy if his case is to succeed.

Claimant’s Duty to Show the extent of land claimed

The first duty of any claimant in an action for title to land is to show exactly and precisely a defined and identifiable area to which his claim relates. If the claimant fails on this first hurdle no further questions need arise. His case will stand dismissed.

APPLICABLE CASES;

IYAJI v. EYIGEBE (1987) LPELR-1571(SC)

“…the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, Akinala Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159. If the claimant fails on this first hurdle no further questions need arise. His case will stand dismissed. Even if, as was observed by the Area Court Grade II Ajaka and apparently approved by the Court of Appeal that:- “the land in dispute is within the land of plaintiff, Ajaka-ate, and within Ikare Anama” (the land of the Defendant). It was still the duty of the plaintiff/claimant to show clearly the precise boundaries separating his holding which he calls Ajaka-ate and the Defendant’s undisputed land known as Ikare Anama. If he fails to do this (as was certainly the case in this appeal) there again he will have his case dismissed by the trial Court and if he appeals an appellate Court is also bound to dismiss his appeal for failure to establish precise boundaries especially on the side in dispute where the lands of the parties are contiguous. Udofia & anor. v. Afia & ors. (1940) 6 W.A.C.A. 216 : Udekwe Amata v. Udogu Modekwe (1954) 14 W.A.C.A. 580 : Vincent Okorie & Ors. v. Philip Udom & Ors. (1900) 5 F.S.C,162.” Per CHUKWUDIFU AKUNNE OPUTA, JSC (Pp 11 – 12 Paras F – E)

UKAEGBU & ORS v. NWOLOLO (2009) LPELR-3337(SC)

“Now, it is firmly settled that normally, the first duty of any claimant of title to land, is to show exactly and precisely, a defined and identifiable area to which the claim relates. So said this court in the case of Musa Iyaji v. Sule Ejigebe (1987) 3 NWLR (pt.61) 523 @ 529; (1987) 7 SCNJ. 148 – per Oputa, JSC, citing the case of Akinola Baruwa v. Ogunshola (1938) 4 WACA 159. That if a claimant fails on the first hurdle, no further question need arise. That his case will stand dismissed. The cases of Udofia & anor. v. Afia & ors. (1940) 6 WACA 216; Udekwe Amata v. Udogu Modekwe (1954) 14 WACA 580 and Vincent Okorie & ors. v. Philip Udom & ors. (1960) 5 FSC. 162 were also referred to.” Per IKECHI FRANCIS OGBUAGU, JSC (Pp 42 – 42 Paras B – F)

ARCHIBONG & ORS v. ITA & ORS (2004) LPELR-535(SC)

“…one of the primary duties of a party who seeks declaration of title to land is to establish the identity of the land. See Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; Baruwa v. Ogunshola (1938) 4 WACA 159 where it was held that where there is a doubt as to identity of the land, it behoves the claimant to file a plan – See also Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192.” Per SYLVESTER UMARU ONU, JSC (Pp 42 – 42 Paras C – E)

OKOCHI & ORS v. ANIMKWOI & ORS (2003) LPELR-2455(SC)

“In an action for declaration of title to land, it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision. See Baruwa v. Ogunsola (1938) 4 WACA 159 and Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141. Where a plaintiff fails to lead satisfactory evidence of boundaries to the land in dispute which he claims, the action must fail. See Aboyeji v. Momoh (1994) 4 NWLR (Pt.341) 646. In an action for declaration of title to land when the boundary is in dispute, the duty of the plaintiff is to prove by evidence the identity of the land he claims. In doing so, he must prove with certainty the boundaries of the land in dispute.” Per NIKI TOBI, JSC (Pp 12 – 12 Paras C – E)

Duty to show how the land was acquired (the mode of acquisition of his title)

AJIBOYE v. ISHOLA (2006) LPELR-301(SC)

“It is however the duty of the plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the plaintiff may take advantage of the defendant’s evidence where it supports his case – see Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252.” Per WALTER SAMUEL NKANU ONNOGHEN, JSC (Pp 28 – 28 Paras A – B)

OWAKAH v. RSHPDA & ANOR (2022) LPELR-57950(SC)

“The law is settled that to succeed in a case of declaration of title to land, a party must plead and prove the method by which he acquired the said title, ownership of land cannot be claimed by a party without establishing ownership. See FASORO VS BEYIOKU (1988) 2 NWLR (Pt 76) 263, NWOFOR VS NWOSU (1992) 9 NWLR (Pt 264) 229, ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt 424) 2521 UNITED BANK FOR AFRICA PLC V. AYINKE (2000) 7 NWLR (Pt 663) 831, OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265. A claimant must satisfy the Court on the following: (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of the title claimed. See OBAWOLE V. COKER (1994) 5 NWLR (Pt 345) 4161, ADESANYA V. ADERONMU (2000) 9 NWLR (Pt 672) 370 at 3821, EDOHOEKET V. INYANG (2010) 7 NWLR (Pt 1192) 251, OBINECHE VS AKUSOBI (2010) 12 NWLR (Pt 1208) 383.” Per TIJJANI ABUBAKAR, JSC (Pp 20 – 21 Paras D – C)

BIG JOE VENTURES LTD v. IMALELE (2022) LPELR-57989(CA)

“it is the duty of the Plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the Plaintiff may take advantage of the Defendant’s evidence where it supports his case. See: Onwugbufor V. Okoye (1996) 1 NWLR (Pt.424) 252; MEMUDU AJIBOYE V. ALHAJI OLOYEDE ISHOLA (2006) LPELR-301(SC).” Per UCHECHUKWU ONYEMENAM, JCA (Pp 9 – 9 Paras A – C)

DIKE & ORS v. OKOLOEDO & ORS (1999) LPELR-946(SC)

SAMUEL v. WAZIRI & ORS (2016) LPELR-40313(CA)

“Therefore in an action for declaration of title to land, what the claimant was required to prove in order to succeed, are: 1. To ascertain the identity of the land to which his claim relates and prove it,2. Second, He must plead and establish the root of his title.As regards the issues of the proof of the identity of the land in question, the Apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 held that: “The plaintiff must first and foremost plead and prove clearly the area of the land to which his claim relates and boundaries thereof and if the location and size of the land is in issue, the Plaintiff must prove the exact location and the area being claimed…” The Supreme Court also held in Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 10250 282, 300 that: “The issue of the identity of the land in an action for declaration of title to land is very fundamental. The Onus is on the Plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. See for example Ezukwu Vs. Ukachukwu (2004) 17 NWLR (Pt. 009) 227; Iordye V. Ihyambe (2000) 15 NWLR (Pt. 692) 675. But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise. In such a situation it cannot be contended that the area claimed of the land in dispute us certain. See Akinterinwa V. Oladunjoye (2000) 6 NWLR (Pt. 659) 92. It must be emphasized in an action where the Plaintiff claims a declaration of title to land and fails to give exact extent and identity of the land he is claiming. His action should be dismissed. See Rufa v. Rickerts 2 WACA 95 Udofia V. Alfia. See also Arabe V. Asanlu (1980) 5-7 SC 78″ per Musdsdapher, JSC (as he then was).” Per SAIDU TANKO HUSSAINI, JCA (Pp 9 – 11 Paras F – C)

Ways of Proving title to Land

The Locus Classicus case of Idundun v Okumagba (1976) 9-10 SC 227 is noteworthy here. In that case, the Apex Court established that there are five ways of proving or establishing title to land or ownership of land. These five ways have been consistently upheld and repeated in many other cases since Idundun v Okumagba.

OMOTAYO v. CO-OPERATIVE SUPPLY ASSOCIATION (2010) LPELR-2662(SC)

“There are five ways of proving or establishing title to land or ownership of land. These are by- (1)Traditional evidence (2) Production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produce from proper custody. (3) By positive acts of ownership extending over a sufficient length of time. (4) By acts of long possession and enjoyment of the land. (5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. The establishment of one of the five ways is sufficient proof of ownership. Ayoola v. Odofin (1984) 11 SC 120. Ewo v. Ani (2004) 17 NSCQR 36 Piaro v. Tenalo (1976) 12 SC 31. Idundun v. Okumagba (1976) 9-10 SC 227 Ndukuba v. Izundu (2007) 1 NWLR Pg. 1016 pg. 432. Adanji v. Anwase (2006) 12 NWLR pt. 993 pg. 183. Nkado v. Obiano (1997) 5 NWLR pt. 503 pg 31. Nkwo v. Iboe (1998) 7 NWLR pt 558 pg. 354 Chukwu v. Diala (1999) 6 NWLR pt.608 pg. 674. Inwelegbu v. Ezeani (1999) 12 NWLR pt. 630 pg. 266. Adesanya v. Aderonmu (2000) 6 SC pt.11 pg. 18. Adeosun v. Jibesin (2001) 11 NWLR pt. 724 pg. 290.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 28 – 29 Paras E – D)

EZEANAH v. ATTA (2004) LPELR-1198(SC)

“In a civil claim of title to or ownership of land, for a party to succeed, he must prove his title in one of the five ways laid down in this Court’s decision of Idundun v. Okumagba (1976) 9-10 SC 227 followed by a long line of other decided authorities to the following effect: “1. Proof by traditional evidence. 2. Proof by production of documents of title duly authenticated to prove title. 3. Proof by acts of ownership extending over a sufficient length of time, numerous and positive as to warrant the inference that the person is the true owner. Vide Ekpo v. Ita (1932) 11 NLR 68. 4. Proof by acts of long possession and 5. Proof of possession of connected or adjacent land in circumstances probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.” See also Chukwu v. Diala (1999) 6 NWLR (Pt. 608) 674 at 681; Orubon v. Gbondu (1999) 11 NWLR (Pt. 628) 661; Otukpo v. John (2000) 8 NWLR (Pt. 669) 507 at 525; Okechukwu v. Okafor (1961) 1 All NLR 685.” Per SYLVESTER UMARU ONU, JSC (Pp 43 – 44 Paras C – B)

GONIRAM v. SUNDAY (2020) LPELR-51421(CA)

“From the pleadings of the parties, issues were duly joined. While as submitted by the Appellant, it may be technically right to say that the Appellant did not expressly claim title to the land in question in the reliefs set out in her statement of claim, title was decidedly put in issue by the pleadings of the parties. Therefore, in order for the Appellant to prove her entitlement to a declaration of possession and occupation of the land in dispute on the strength of her possession and occupation of the land as claimed, as opposed to the adverse claim of the Respondent who also contended that he owned the land having bought same and was also in possession, the Appellant was obliged to prove her title which entitled her to such possession and occupation of the land. This is settled law. In the case of Regd. Trustees of the Apostolic Faith Mission V James (1987) LPELR-2946(SC) 35-36, E-A, the Supreme Court per Oputa, JSC held as follows – “Since the only issue in this case is – as between the Plaintiffs and the Defendants, who has a better title? – it is necessary to investigate the parties respective roots of title. In any event, since the Plaintiffs claimed damages for trespass and perpetual injunction, they have put their title in issue for their claim to postulate that they are either the owners of the land in dispute or that before the trespass complained of, they were in exclusive possession of the land. The onus of proof was also definitely on the Plaintiffs.” (Emphasis supplied) Therefore, by virtue of the authority of Idundun V Okumagba (1976) 10 SC 277, the locus classicus on the issue, title to land can be proved in one or more of the following five methods: 1. Proof by traditional history or traditional evidence of the history of the land, which includes mode of acquisition of same, for instance, by deforestation of the virgin forest by the first settler, conquest of the original owners through acts of war, gifts, e.t.c. 2. Proof by grant or the production of documents of title to the land. 3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land. 4. Proof by acts of long possession. 5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would, in addition, be the owner of the land in dispute. See also Iseogbekun V Adelakun (2012) LPELR-15516(SC) 28-29, G-D, per Mukhtar, JSC; Dakolo V Rewane-Dakolo (2011) LPELR-915(SC) 23-24, E-D, per Rhodes-Vivour, JSC; Odunze V Nwosu (2007) LPELR-2252(SC) 67, C-F, per Onnoghen, JSC. Therefore, in the instant case, the Appellant having put her title in issue by also claiming trespass and injunction, was obliged to prove her title to the land by one of the five ways enumerated above. Indeed, one of the recognized ways of proof of title is by the production of documents of title or a valid instrument of grant. The production and reliance upon such a document of title or instrument of grant inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: i. Whether the document is genuine and valid; ii. Whether it has been duly executed, stamped and registered; iii. Whether the grantor had the authority and capacity to make the grant; and iv. Whether it has the effect claimed by the holder of the document or instrument. See Romaine V Romaine (1992) LPELR-2953(SC) 15-16, E-B, per Nnaemeka-Agu, JSC; Nwadike V Ibekwe (1987) 4 NWLR (Pt. 67) 718.” Per JUMMAI HANNATU SANKEY, JCA (Pp 10 – 14 Paras D – D)

ADISA v. OYINWOLA & ORS (2000) LPELR-186(SC)

“The several ways in which title in land can be acquired should not be confused with the several ways in which such acquisition can be proved. The much cited case of Idundun & Ors v. Okumagba & ors. (1976) Vol. 10 NSCC 446 deals with ‘five ways in which ownership of land may be proved” and not the ways of acquiring title to land. In short Idundun & ors. v. Okumagba & Ors deals with matters of evidence rather than question of substantive law of acquisition of title. It is for this reason that acquisition of title by gift, grant, or purchase was not mentioned.” Per EMMANUEL OLAYINKA AYOOLA, JSC (Pp 43 – 43 Paras B – D)

Litigation Survey Plans

Position of the Law on a Litigation Survey Plan which is not countered

RAPHAEL & ANOR v. EZI (2014) LPELR-23328(CA)

“The settled legal position remains that a litigation survey plan which is not countered will be taken as accurately reflecting the disputed land. See ADELAJA v. ALADE (1999) 6 NWLR (PT 608) 544 or (1999) LPELR (109) 1 at 17 – 18, ADESANYA v. ADERONMU (2000) 9 NWLR (PT 672) 370 or (2000) LPELR (145) 1 at 24 and OGUN v. AKINYELU (supra).” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 14 – 15 Paras D – A)

AYEMWENRE v. EVBUOMWAN (2019) LPELR-47213(CA)

“The bone of contention therefore is whether it is the same parcel of land now in dispute. For the DW1 and DW2, the land is not the same land sold to the Appellant. But as per the evidence of the PW1, who prepared Exhibit ‘A’, the litigation survey plan, he produced same based on the content of Exhibits ‘B’, ‘E’ and ‘H’ as well as his visit to the land identified to him by the Appellant where he was shown the features on the land. Part of his evidence in Court reads thus: “In the month of December 1990 the plaintiff commissioned me to prepare a litigation survey for him in respect of the land in dispute. I went in his company to the land in dispute which situate at Etete layout road in Ugbor quarters, Benin City. The plaintiff showed me his document of title which included three sets of certificate of transfer, one from Emmanuel Igbinoba for a plot of 250ft by 100ft including an Oba’s approval. These are the documents now shown to me” … The transferors were Emmanuel Igbinoba, Osasu Osunbor and Osasuyi Uwuigbe. The plaintiff showed me round the boundaries of the land and identified the features on the land to me. He also identified his neighbours to the west as one John Idehen, he identified the ward beacons on the land and the various portions transferred by individual transferors, he identified a building on the land, the building blocks, building sand, wall fences all where by the defendant causes of action in this suit. I carried out my survey, produced a plan which I signed. I delivered certified copies to the plaintiff.” Further in his evidence the PW1 emphatically stated that he saw the ward beacons on the boundaries of the land. He also identified the three parcels of land sold to the Appellant by the three vendors which were marked yellow, brown and green respectively in Exhibit “A”. The boundary beacons he saw on the land were said to be marked by beacon Nos. 1333A, 1334A, 1335A, 1217A, 2252A, 2253A, 1216A. The Appellant’s land is said to be defined by beacons Nos. BDS 8682 CP1 – CP9. The evidence as adduced by the PW1 was not challenged or contradicted during cross-examination by the Respondent and the description of the land as given in his evidence is consistent with the content of Exhibit “A”. In other words, Exhibit ‘A’ provided a proper description of the land in dispute and identified same as correctly derived from Exhibits ‘B’, ‘E’ and ‘H’ which are the documents of title tendered in evidence and relied upon by the Appellant in proof of his title to the land. What is more, in the case of MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217 the Supreme Court relying on the earlier authorities of OKPULOKA VS. UME (1976) 9 – 10 SC 269 and OWOTAIRFE VS. ONOKPOSO (1984) 12 SC 19 held that it is the plaintiff’s survey plan that determines the land in dispute and not the defendant’s survey plan where the defendant has not counter claimed. In the instant case, the Respondent incidentally did not counter-claim so Exhibit N cannot upstage Exhibit “A”. Per SAMUEL CHUKWUDUMEBI OSEJI, JCA (Pp 34 – 37 Paras E – C)

OSULA v. INNEH (2015) LPELR-25692(CA)

“A careful reading of the record of appeal would reveal that the hostility between parties is a boundary dispute. The Appellant and the Respondent have a common boundary. The Respondent’s complaint is that the Appellant unlawfully outstripped the boundary into her land and to prove this she engaged the services of a surveyor who produced a litigation survey Plan Exhibit “A”. ?The Appellant on his own side did not prepare a litigation survey to show the status of the land in dispute. He merely denied trespassing into the Respondent’s land. In a similar situation as in this case, in the case of Adeagbo Vs. William (1998) 2 NWLR Part 536 Page 120 at 128 paragraph B Acholonu JCA (as he then was) held among others as follows:- “The Respondent has shown himself to have built a house on the land. He filed a plan of the area in dispute. The Appellant filed none. Therefore he is bound by the plan of the Respondent as he would be deemed to approve of it regardless of his denial. Mere ipse dixit of the Appellant without a plan should be discountenanced.” The Learned trial Judge applied the principle enunciated when he held as follows at page 75 of the record thus:-“After a calm and cool consideration of the entire evidence adduced by the parties and weighing the evidence of the Plaintiff and her witnesses vis-à-vis that of the Defendant I must say straightaway that I believe the candid and compelling evidence of the PW1, the registered surveyor that the present dimension of the Defendant’s land as depicted in Exhibit “A” verged “Green” is 100 feet x 131 feet. I also believe his credible evidence that the portion of the Plaintiff’s parcel of land trespassed into by the Defendant is 31 feet by 100 feet verged “yellow” in Exhibit “A”. At page 76 of the record of Appeal, the Learned trial Judge stated further:- “Additionally, it is my view that the defendant having failed to file a survey plan in rebuttal of the Plaintiff’s survey plan is deemed to have approved of the Plaintiff’s as to the boundaries at the land in dispute…” Finally on page 77 of the record of appeal the learned trial Judge held as follows:- “In the final result having weighed the evidence adduced by the Plaintiff in support of her claim including her witnesses and the documentary evidence tendered and placed side by side the evidence of the Defence on the imaginary scale of Justice, I prefer the case of the Plaintiff to that of the Defendant … I am satisfied that the Plaintiff has successfully proved her claim on the balance of probability as required by Law.” ?A careful review of the finding of the Learned trial Judge would show that the evaluation of evidence was done in compliance with the principle of evaluation as enunciated by the Apex Court in Mogaji vs. Odofin (Supra). In view of the foregoing, I therefore have no difficulty in coming to the conclusion that the Learned trial Judge’s appraisal of evidence adduced at the trial cannot be faulted.” Per JIMI OLUKAYODE BADA, JCA (Pp 11 – 14 Paras D – A)

How to put the identity/survey plan of a disputed land in issue

EKARIKO v. ATSENUWA (2022) LPELR-58448(CA)

“I cannot see where the appellant put the identity of the land in issue. It is immaterial that both sides used different units of measurements. There is no dispute about the location of the land, the area, the size or features of the land pleaded by the respondent. There is no issue raised about the survey plan of the respondent. The law as I have already stated is that to make a plaintiff’s survey plan an issue, the defendant should be clear and specific on the parts in controversy-is it the area, size, location, boundaries or locus in quibus of acts of possession? See Osuji v. Ogualaji (2002) 16 NWLR (Pt. 792) 136, 152. The case of Adenle v. Olude (2003) supra does not support the case of the appellant as the Supreme Court re-stated the position of the law as to how the identity of land in dispute in a case where there is a litigation survey plan is put in issue. The apex Court found that, just as in this case, the appellant did not put the identity of the land in dispute in issue.” Per JOSEPH EYO EKANEM, JCA (Pp 12 – 12 Paras A – E)

Offodile vs. Offodile & Ors (2019) LPELR-4785 (SC),

“The 2 Courts below by Exhibit A held that the boundary and delineations of the land in dispute were not proved with certainty by the Appellant to give him title to the land in dispute. The identity of land in dispute will be in issue, if the Defendants in their Statement of Defence made it one, that is, if they disputed specifically either the area or the size or the location or the features shown on the Plaintiff’s’ plan. When such is the case, then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the land. Where therefore the identity of the land is not an issue, the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact, in such cases, the plan can and should be tendered by consent. See Per TABAI, J.S.C in ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC

Anyanwu & Ors vs. Uzowuaka & Ors (2009) 13 NWLR (Pt. 1159) 445,

“In NWOBODO EZEUDU & ORS v. ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be in issue, if and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. the onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there I will make bold to say that the mere production of the Plaintiff’s plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”

When will a Litigation Survey Plan be required/not required in an action?

KPEKU & ORS v. SIBEKENEKUMU & ORS (2013) LPELR-20703(CA)

“… the law is that where both parties know the land in dispute, a survey or litigation plan is not necessary. See Sadiku Osho v. Michael Ape (1998) 6 SCNJ 139 at 142.” Per HELEN MORONKEJI OGUNWUMIJU, JCA (Pp 18 – 18 Paras B – C)

OLISA & ORS v. OBIORAH & ORS (2014) LPELR-24523(CA)

“Even though the filing of a litigation survey plan is not an indispensible essential in a claim for land, survey plans are usually filed to delineate the boundaries of the land which plan must agree with the evidence of the party such that there is certainty as to the area of land claimed: ONISESE v. OYELEYE (2008) 21 WRN 43 at 78. It however remains good law that a survey plan is not a desideratum if the identity of the land in dispute is clear and not in dispute: ADEDEJI v. OLOSO (2007) 5 NWLR (PT.1026) 133 and AREMU v. ADETORO (2007) 16 NWLR (PT.1060) 244 at 262.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 33 Paras D – A)

OMORUYI v. OBANOR (2011) LPELR-4349(CA)

“A survey or litigation plan may not in all circumstance be necessary that is where the land in dispute can be ascertained and known to both parties. The parties in this case would not have identified the land in dispute without a survey plan. See OMIYALE V. MACAULAY 2009 3 NWLR 345 SC. The trial Judge was therefore right when he said I quote – “I am satisfied and I find that the area verged Red in Exhibit 5 is the same as the area verged Pink in Exhibit 6. In other words the parties are disputing over one and the same parcel of land.” Per GEORGE OLADEINDE SHOREMI, JCA (Pp 13 – 13 Paras B – E)

AKHIGBE v. AIGBEZE (2017) LPELR-45656(CA)

“It is the law that where the identity of the land in dispute is known to the parties, there would be no need to file a litigation survey plan, but where the description of the land, location and dimension as given by the parties do not tally then, the identity and extent of the land are in issue, a survey plan would be necessary to clear doubts as to the land the claimant has alleged has been trespassed unto. In the case of OGEDENGBE & ORS VS. BALOGUN (2007) 9 NWLR (PT. 1039) 380; (2007) 3 SC (PT. 11) 71, the Apex Court held that as a matter of fact and this is also settled, where the identity of the land in dispute, is known to the parties and not in dispute, no plan is necessary, the absence of a plan is not fatal to the plaintiff’s claim if there is proper description of the land made available in the proceedings. See also EGBUTA & ANOR VS. ELEKWACHI & ANOR (2013) LPELR – 20666 (CA). The contrary is the position where there is no proper description of the land over which title is claimed and no litigation survey plan is produced. See also MUEME VS. GAJI (2001) 2 NWLR (PT. 697) 289, CHIEF DANIEL ALLISON IBULUYA and ORS VS. TAM BEBEBO DIKKO and ORS (1976) 6 SC 97 at 107 and CHIEF SOKPUI VS. CHIEF AGBOZO (1951) 13 WACA 241 at 242. A survey plan is used for the purpose of giving an accurate and precise description of the land claimed with scientific or mathematical precision. It is the law that, it is the duty of every claimant of title to land, as in this case, to adduce evidence showing the clear identity, boundary and other features of the land he claims. This duty or burden can be discharged by evidence of the description, boundary area and other features of the said land in dispute. Therefore, it is for the purpose of more accuracy or precision in identifying the land with mathematical accuracy or in a scientific manner that necessitates the use of a survey plan. Further, where the party claims the ownership of a larger or vast expanse of land including the land in dispute, or the land in dispute is part of a large portion as in the present case, a composite plan is filed to show the vast land as well as the portion in dispute, verged in a different or specific colour. Alternatively, the identification of the land could be proved by other evidence, mostly oral. In this appeal there is a dispute as to the identity, extent or area of the land in dispute where the appellant has made out that the respondent does not even know the land he claimed title for in the trial Court. In this situation, the identification by either oral evidence or survey plan (documentary) would be required. That way, it could be said precisely, yes, this portion of land is the land the claimant claimed title of without doubt and that it is the same land as described and identified by the appellant. That way, the Court would be in a position to determine whether the parties are at one with the dispute over the same portion of land in terms of location and extent. See SUNDAY DANIEL OBICHIE VS. JOHN A. ADETONA (2008) LPELR 8472 (CA), EZUKWU VS. UKACHUKWU (2004) 17 NWLR (PT. 902) 227 at 249; OTAMA VS. YOUDUBAGHA (2006) 2 NWLR (PT. 337) and OLADIMEJI VS. OSHODI (1968) 1 ALL NLR 47. In the respondent’s claim, he gave the dimension of the land over which he laid claim. In paragraphs 4, 5 and 11 of his written statement (evidence) on oath and as PW1 he similarly gave the measurement of the land and gave the location as situate at Obe Village particularly at Mechanic Road as in his claim. Similarly, the evidence of the PW 2 and PW 3. Can it then be rightly said that the claimant pleaded and gave evidence as to the location and extent of the land allegedly trespassed on with mathematical accuracy? How does one identify the particular portion in dispute at the Mechanic Road in Obe Village, surely there must be several portions of land on that road and in that Village mentioned above, moreso, where it has been challenged by the respondent. In this case, a litigation survey plan was necessary which would assist oral evidence in identifying the land over which the claimant claimed title and allegedly trespassed upon by the appellant.” Per CHIDI NWAOMA UWA, JCA (Pp 11 – 15 Paras F – C)

Composite Survey Plans

KASALI & ORS v. SANNI & ORS (2017) LPELR-51065(CA)

A composite plan as the name implies is usually drawn by the super imposition of at least two plans filed and or tendered by opposing parties. It is where the two sides file plans which do not match that it becomes the duty of the plaintiff to file a composite plan to show the relative positions of the area of land claimed by both himself and the defendant. See Bankole V Pelu (1991) 8 NWLR (Pt 211) 523, 550 and Bankole V Dada (2003) 11 NWLR (Pt 830) 174, 224. There may also be situations in which a defendant needs to file a composite plan as was held by the Supreme Court in Elias V Suleiman (1973) 12 SC 113. A composite plan is also useful in linking a piece of land presently in dispute with a piece of land that was the subject of litigation in a previous suit as was done in Obineche V Akusobi (2010) All FWLR (Pt 533) 1839, 1859. It may also be deployed where the original title documents failed to fully prescribe the parcels of land allegedly allocated to the disputants – Eholor V Osayande (1992) 6 NWLR (Pt 249) 524, 536.” Per JOSEPH EYO EKANEM, JCA (Pp 25 – 26 Paras F – E)

ONI & ORS v. OMOFADE (2016) LPELR-50053(CA)

“On the other hand, as the respondent set up his own case that the disputed parcel of land is the same as the parcel of land litigated in suit No.ID/479/89, he had the onus to prove the assertion. For it is elementary that he who asserts must prove. Therefore the respondent had the burden to produce in evidence a composite plan showing the parcel of land in dispute in suit No.ID/479/89 is the same as the parcel of land in dispute in suit No.ID/10/2010 vide Elias v. Suleimon (1973) A.N.L.R. 217 at 928 thus- “In view of this and his later observation that he had not the necessary composite plan before him (which is clearly the duty of the defendants/respondents to provide), it is quite clear that the 3rd defendant/respondent had also failed to prove conclusively that the land bought by him and in support of which he had produced the purchase receipts (Exs. 21 and 22), formed part of the land claimed by the plaintiff/appellant.” Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 16 – 17 Paras E – C)

Duty of A Claimant in An Action for Declaration of Title to Land In a civil action where a Claimant seeks a declaration from the Court that title to a piece or parcel of land belongs to him, the law has placed some duties which the Claimant must satisfy if his case is to succeed. Claimant’s Duty to Show the

Guest Post

The 2023 General Elections And The Words Of Fatayi-Williams CJN in AWOLOWO V SHAGARI (1979).

fredericknkobowo

March 3, 2023

INTRODUCTION

Right from 2020 most Nigerian voters expected the wider use of the electronic voting system by the Independent National Electoral Commission (INEC) in 2023. This public choice was influenced by the need to reduce or possibly eliminate irregularities that have come to characterize the election process in Nigeria. The Electoral Act, 2022 is the product of this agitation.

Automation of election process reduces direct human influence and provides an opportunity to solve old electoral problems. Independent National Electoral Commission (INEC) by its own processes and procedures deal with four components of Electronic Voting System (EVS): Electronic Voter Register (EVR), Electronic Voting Machine (EVM), Electronic Voter Authentication (EVA), Electronic Transmission of Results (ETR), Automatic Fingerprints Identification System (AFIS) and Smart Card Reader (SCR).

Independent National Electoral Commission (INEC) now adopts the use of electronic voting (e-voting) and electronic transmission of election results to a single portal. Subject to Section 51 of the Electoral Act, 2022, the result of an election will be substantially affected where it is observed that there was over voting. By the provisions of Section 73(2) of the Electoral Act, 2022 the non-recording of sensitive and non-sensitive electoral materials will make an election invalid.

The Electoral Act, 2022 has set strict punitive measures for offenders. Section 73(3) of the Electoral Act, 2022 provides that a Presiding officer who intentionally announces or signs an election result in violation of subsection (2) is liable on conviction to a fine of N10,000,000 or imprisonment for a term of at least one year or both. Section 120(4) of the Electoral Act, 2022 punishes any person who announces or publishes an election result knowing same to be false or which is at variance with the signed Certificate of return. It makes him liable on conviction to imprisonment for a term of 36 months. Section 120(5) of the Act provides that any returning officer or collation officer who delivers or causes to be delivered a false certificate of return knowing same to be false is liable on conviction to imprisonment for a maximum term of three years without an option of fine. In the same fashion, Section 120(6) provides that any person who delivers or causes to be delivered a false Certificate of return knowing same to be false to any news media is liable on conviction to imprisonment for a term of three years.

CASE SUMMARY: AWOLOWO v. SHAGARI & ORS

FACTS:

An appeal requesting to nullify the 1979 election conducted by the Federal Electoral Commission. This matter was first heard at the Presidential election tribunal in Lagos. Obafemi Awolowo alleging that as far as the records show, no candidate scored not less than 25% of the votes cast in 13 States. The 3^rd respondent declared 1^st respondent as having won the Presidential election. Obafemi Awolowo disagrees with the result declared on the election. Obafemi Awolowo wants the election declared void and that the Federal Electoral Commission should hold the election, which should have followed on the failure of all the candidates to win at the first ballot.

Shehu Shagari is a member of National Party of Nigeria. Shehu Shagari scored 5,688,857, he also scored at least 25% of votes cast in each of the twelve States namely, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto and in the thirteenth State – Kano, he scored 19.94%. Obafemi Awolowo scored 4,916,651, in total.

ISSUE:

The correct interpretation of Section 34A(1)c)(ii) of the Electoral (Amendment) Decree No. 32 of 1979.

HOLDING:

The appeal was dismissed and cost was awarded on the ground that Shagari was lawfully declared the winner, and that he satisfied the requirements of Section 34A(1)(c(i) of the said Decree. Also, that even if he didn’t get up to more than one third in the 13^th State, Section 111 & Section 110 of the Decree would have come to his aid and that judgement would have still be given to him.

Kayode Eso dissented.

NOTABLE DICTA:

“Moreover, until election returns can be computerised in this country, the “mathematical canon of interpretation” put forward by Professor Awojobi (1^st petitioner’s witness) in his testimony before the Tribunal will remain impractical and legally unacceptable.” – Per Fatayi-Williams, CJN.

RELEVANCE OF DICTA PER FATAYI-WILLIAMS, CJN

Digital technologies to improve the reliability of election results has become more widely used around the world in the past two decades. They include; biometric voter registration, smart card readers, voters’ cards, optical mark recognition, direct electronic recording, and electronic result transmission. The principal reason for using them is to contain electoral fraud. It also promotes the credibility of elections.

Technology has drastically reduced incidences of electoral malpractices such as; ballot stuffing, result sheet mutilation, manipulations, over voting, alteration of result sheets and hijacking of ballot boxes in the history of Nigeria elections. The Independent National Electoral Commission (INEC) with empowerment from the Electoral Act, 2022 has employed a number of innovative approaches to improve the management and conduct of elections in the country.

Electronic Registration of Election Results: Section 62(2) of the Electoral Act, 2022 provides Independent National Electoral Commission (INEC) with powers to compile, maintain and update, on a continuous basis, a register of election results to be known as the National Electronic Register of Election Results. It is a distinct database or repository of polling unit by polling unit results, including collated election results, of each election conducted by the Commission in the Federation. The Register of Election Results is to be kept in electronic format by the Commission at its national headquarters.

Computer Generated Evidence: Section 62(3) of the Electoral Act, 2022 allows for any person or political party to obtain from Independent National Electoral Commission (INEC), on payment of such fees as may be determined by the Commission, a certified true copy of any election result kept in the National Electronic Register of Election Results for a State, Local government, Area council, registration area or Electoral ward or Polling unit, as the case may be, and the certified true copy may be in printed or electronic format.

Definition of Return: Section 152 of the Electoral Act, 2022 provides for the meaning of return. It means the declaration by a returning officer of a candidate in an election as being the winner of that election.

Re-election: Section 47 of the Electoral Act, 2022 doesn’t only provide for the use of smart card readers or other technological device as may be prescribed by Independent National Electoral Commission (INEC) but in subsection (3) states expressly that where a smart card reader or any other technological device deployed for accreditation of voters fails to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if the Commission is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election and declaration of a winner in the constituency concerned. This process was absent in 1979.

Transmission of Election Results: Section 50 of the Electoral Act, 2022 provides for voting and transmission of results at an election subject to Section 63 of the Act.

Disputes: Section 64(6) of the Electoral Act, 2022 provides that where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall determine the correctness of the disputed result based on:

the original of the disputed collated result for each polling unit where the election is disputed;
1. the smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed;
1. data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as prescribed under section 47(2) of the Act;
1. the votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60(4) of the Act.

Electronic Posting of Results: Section 68 of the Electoral Act, 2022 allows for Independent National Electoral Commission (INEC) to post on its notice board and website a notice showing the candidates at the election and their scores and the person declared as elected or returned at the election.

Petition: Section 15 First schedule of the Electoral Act, 2022 provides that when a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the selection or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.

Election: Section 28(1)(2) and (3) First schedule of the Electoral Act, 2022 provides that at the conclusion of a hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission. If the Tribunal or Court has determined that the election is invalid, then, subject to Section 134 of the Act, where there is an appeal and the appeal fails, a new election shall be held by the Commission. Where a new election is to be held, Independent National Electoral Commission (INEC) shall appoint a date for the election which shall not be later than three months from the date of the determination.

Certain defects not to Invalidate Election: Section 135(1) and (3) read together gives an understanding that an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. Furthermore, no election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the Commission.

Postponement of Election in Emergency: By virtue of Section 24 of the Electoral Act, 2022, where the Commission appoints a substituted date in accordance with subsections (2) and (3), there shall be no return for the election until polling has taken place in the area or areas affected. Notwithstanding subsection (3), the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.

Nullification of Election: Section 136(1)(3) provides powers to a Tribunal court to declare as elected the candidate who scored the highest number of valid votes cast at an election and satisfied the requirements of the Constitution and the Act. This takes effect where the candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election.

CONCLUSION

Over time, the country has ossified into a two-party system. The competition in 1979 was more intense than in recent time. All the five parties that contested in 1979 pulled their weight. The votes were evenly spread, ranging from 33.77% for the party with the highest votes to 10.01% for the party with the least votes. The 2023 presidential election will be the most competitive multiparty poll since 1979. With the new Electoral Act, the 2023 General elections will be a radical departure from the pattern set by the seven elections held between 1979 and 2019.

Written By Abasiodiong Ekarika

REFERENCES

Hbriefs, “Case summary of Obafemi Awolowo v. Shehu Shagari (1979).”
Electoral Act, 2022.
Premium Times, April 29, 2022, “Technology, E-voting and Credible Elections in Nigeria.”
This Day Live, July 17, 1992, “Echoes of the 1979 Presidential Poll.”

INTRODUCTION Right from 2020 most Nigerian voters expected the wider use of the electronic voting system by the Independent National Electoral Commission (INEC) in 2023. This public choice was influenced by the need to reduce or possibly eliminate irregularities that have come to characterize the election process in Nigeria. The Electoral Act, 2022 is the product of this agitation. Automation

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December 24, 2022

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What is Affiliate Marketing? Affiliate marketing is a business model in which an individual (the affiliate) promotes products or services on behalf of a company and earns a commission for each sale made as a result of their promotion. Affiliate marketing is a process where publishers earn a commission by promoting a product or service made by another retailer or

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7 Simple Steps to Writing Your Next Business Plan

fredericknkobowo

December 24, 2022

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