SQUIB CASE LAW
Continued from vol. 8 number 28
He was asked under cross-examination whether he knew his brother to be a Pastor for him to be addressed as Pastor Emmanuel. He said he did, that his brother said he is a soul winner in his church and they call him Pastor. Also, his brother said that Abbey Abraham is a member of his church.
He said in Exhibit P9 that he did not know what his brother is doing in Malaysia and where he lives but he has been sending money to their parents through Western Union and that this was the 1st time of his sending money to their parents through him.
Contrary to what he said in Exhibit P9 however, under cross-examination, he said his brother is a business agent in Malaysia. Alaba traders used to contract him to source for products for them and he adds his own money. He also said under cross-examination that his brother has an apartment in Malaysia contrary to his statement in Exhibit P9. In his evidence in court he said he does not know how to operate an e-mail, that he sends his sister to open his mail. Also that he goes to business centre to check his mail but in Exhibit P9 he said he sent a mail to Obinna to ask him about the reference number meaning that he can operate his e-mail.
There are contradictions and inconsistencies in the evidence on PW1 and that of the accused and Exhibit P9. The position of the law is that if established that an accused person lied under oath or that there are inconsistencies in his evidence does not establish his guilt or shift the burden of proof. Omogodo V State (1981) 5 SC 5, the weight the court will attach to his evidence is another consideration.
The accused person was asked about the two international sports found in his possession Exhibits P2 and P3. He said under cross-examination that his brother kept them with him when he came home for Christmas and he did not come for them before going back to Malaysia and he did not know how he went back or probably he had another passport. These two passports have different names but carry the photograph of Chidiebere Obinna.
From the evidence of the accused, it is clear that there was regular phone contact with his brother. That he did not ask his brother how he managed to get back to Malaysia without the passports he left with him, I find difficult to believe. I strongly believe the accused person knows that his brother is not a straightforward person and not doing genuine business in Malaysia contrary to his evidence under cross-examination that he did not ask him about his business.
What I am unable to make as a finding is that he took part in the criminal design of the 2nd accused to swindle Abbey Abraham although there is a strong suspicion that he probably knows about the deal. This suspicion does not amount to circumstantial evidence to link him with the offence.
In this case, it would have helped the case of the prosecution a great deal if they had contacted Abbey Abraham directly. The e-mail of Abbey Abraham Exhibit P18(iii-iv) in law is documentary hearsay. The e-mail came to Intercontinental Bank's website. PW1, PW2 and PW3 testified of the truth of the contents of the e-mail of which they had no personal knowledge. The credibility of the maker and the truth of all the contents of the mail were not tested under cross-examination. See Ijioffor V State (2001) 9 NWLR (Pt. 718) 371, Opolo V State (1977) ANLR 312 at 316, Subramanian V Public Prosecutor (1956) 1 WLR 965.
A document will amount to documentary hearsay where the person tendering cannot vouch for their contents because the information therein did not come from his personal knowledge. He is as it were a stranger to the document. Myers V DPP (1965) AC 1001.
The proper role of the court in a criminal trial is to evaluate all the evidence before it and see whether the prosecution discharged the onus on it to prove the allegations beyond reasonable doubt. If there is insufficient evidence or where the evidence of the prosecution was seriously discredited under cross-examination thereby creating doubt in the mind of the court on the culpability of the accused, the benefit of the doubt must be given to the accused person. Ibeh V State (1997) 1 NWLR (Pt. 484) 632.
I hold that the prosecution failed to prove and there are no compelling facts from which the court can infer that the accused person and Chidiebere Obinna Emmanuel conspired together to obtain $8,000 from Abbey Abraham under false pretences. I find the accused person not guilty of Count 1 also.
I now go to Counts 4 and 5.
Section 427 of the Criminal Code Cap C18 Laws of Lagos State provides:-
''427. Any person who receives anything which has been obtained by means of any act constituting a felony or misdemeanor, or by means of any act done at a place not in Lagos state, which if it had been done in the state would have constituted a felony or misdemeanor and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of a felony."
The offence of receiving stolen property consists of these ingredients:
a. That the property was obtained by means of a felony or misdemeanor i.e. by stealing.
b. That the accused was in possession or took part in concealing or disposing off the property.
c. That the accused had knowledge that the property was obtained as in (a) above. Okoroji V State
(2002) 5 NWLR (Pt 759) 21.
The felony in this case is not stealing but fraud. An accused charged for obtaining by false pretences can also be convicted for stealing where the evidence so warrants even if he was not charged for stealing. See Section 174 of the Criminal Procedure Act and the case of Babalola V State (1989) 4 NWLR (Pt. 115) 264 at 286.
There is no doubt from the facts of this case that the $16,000 was obtained by Uche Obinna Chidiebere by fraud. The proceeds of the fraud was received in Nigeria by the accused person.
In the case of Osakwe V Queen (1963) NSCC (Pt. 3) 291, the Supreme Court held that a person cannot be convicted for receiving a stolen thing merely because he was willing to receive it; proof is needed that he, whether alone or jointly with another, has already had the thing in his possession or already aided in concealing it or disposing of it when he knew it was stolen. See State V Nnolim (1994) 5 NWLR (Pt. 345) 394.
The crucial determinant is the guilty knowledge that the thing received was stolen or obtained by fraud. Defence counsel argued that the requisite mens rea is absent in this case. That the accused person did not know that the money was illegally obtained by his brother.
The facts from which inference of knowledge that a property is stolen can be drawn include (i) manner of receipt or delivery of the goods allegedly stolen (ii) the time of delivery (iii) the price paid for the property or goods (iv) the actions upon delivery. Okoroji V State (supra) Ekpo V State (2003) 17 NWLR (Pt. 849) 392
In this case, I have held that there is no acceptable proof that the accused person knew that his brother fraudulently obtained the money but there is a strong suspicion that he did.
The word suspicion means ordinarily the act of suspecting, state of being suspected or the imagining of something without evidence or on slender evidence. Niki Tobi JCA (as he then was) in Onagorowa V State (1993) 7 NWLR (Pt. 303) 49. Suspicion has no place in law and is no substitute for proof by evidence. Kutigi JSC (as he then was) in Alake V State (1992) 9 NWLR 265) 265 stated:
"Guilty knowledge cannot be founded on suspicion.
For there to be a crime, the physical conduct (the actus reus) must be accompanied with a guilty mind (the mens rea). The intent and the act must both concur to constitute the crime. Babalola V State (1989) 3 NSCC 97.
Since the requisite mens rea is not proved in this case, the accused person cannot be convicted under Counts 4 and 5. I accordingly find him not guilty of Counts 4 and 5 also.
In all, I hold that the prosecution failed to prove all the counts against the accused person beyond reasonable doubt. He is accordingly discharged and acquitted on all the counts.
M.O. OBADINA (MRS.)
JUDGE
19/2/2008.
Counsel: A. M. Olatule for the Prosecution
Adesina Ogunlana for the Accused Person
Friday, May 30, 2008
Vol 8 No 28 FGN V UCHE CHIDOZIE HENRY
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT 31 (CRIMINAL DIVISION)
BEFORE HON. JUSTICE M.O. OBADINA (MRS)
TODAY TUESDAY THE 19TH DAY OF FEBRUARY 2008
BETWEEN: FEDERAL REPUBLIC OF NIGERIA PROSECUTION
AND
UCHE CHIDOZIE HENRY ACCUSED
JUDGEMENT
CONTINUED FROM LAST WEEK…
Continuing in his address prosecution counsel argued that there
are three ways by which commission of crime can be proved.
These are:
1 By confessional statement.
2 By circumstantial evidence
3. By evidence of eye witnesses.
He cited the case of Emeka V State (2001) NWLR (Pt. 734), 667.
He submitted that in this case, there is circumstantial evidence pointing irresistibly to the fact that the accused person was acting jointly with Kofi and Pastor Emmanuel if he is not the said Kofi. He referred to Section 8 of the Criminal Code and submitted that the accused person and Pastor Emmanuel had a common intent to prosecute an unlawful purpose. He cited the cases of Akinkunmi V State (1987) 1 NWLR (Pt, 52) 608, Agwuna V Attorney General of the Federation (1995) 5 NWLR (Pt. 396) 418, Aminu V State (2005) 2 NWLR (Pt. 909) 180, State V Oladimeji (2003) 14 NWLR (Pt. 839) 59.
He submitted that there were representations made to Abbey Abraham by the accused person which representation acted upon the mind of the victim and also on Intercontinental Bank which released the money. Without the representation of the accused person and his brother he submitted, the victim Abbey Abraham would not have released the money.
On the count of conspiracy, he submitted that even if the accused person was not part of the initial scheme, it will not make any difference because he joined the scheme later and this makes him accountable as a conspirator. He cited the cases of Haruna V State & 7 Ors (1972) 7 NSCC 550, Mumuni & Ors V State (1975) A!I NLR 295, Oluchi V The Republic (1966) NMLR 307.
On counts 4 and 5, learned counsel referred to the ingredients of the offence of receiving stolen property referred to by Justice E. 0. Fakayode in his book Criminal Code Companion 2nd Edition 1985 and the case of State V Nnolie (1995) 5 NWLR (Pt. 345) 394.
He submitted that these counts were established because the accused person received the $16,000 proceeds of the fraud knowing that the money was fraudulently obtained by his brother. This guilty knowledge makes him liable.
He urged the court to convict him as charged.
In his reply submission, defence counsel argued that the totality of the so-called evidence of the prosecution is hinged on the email of Abbey Abraham to Intercontinental Bank which is hearsay evidence and inadmissible and should be discountenanced by this court.
The first issue to determine is whether the charge as framed is bad for duplicity.
Section l56 of the Criminal Procedure Law Cap CIS Laws of Lagos State, 2003 provides:
‘156 For every distinct offence with which any person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned in Sections 157 to 161 of this Act"
Section 156(1) provides:-
‘156(1) The charge shall contain such particulars as to the time and place of the offence and the person, If any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged."
The evidence led at this trial is that the accused person received the sum of $16,000 sent through Intercontinental Bank Plc. $8,000 was paid directly into his account while the second $8,000 was paid into the account of PW4 which he later received from PW4. If the prosecution wanted to capture how the two tranches of $8,000 were received, the particulars of offence of Count 3 should have indicated the name of PW4 for clarity. As the charge stands, counts 2 and 3 which are exactly the same in word and content allege the same thing and therefore bad for duplicity.
It is not all cases that a charge which is bad for duplicity is fatal to to prosecution's case. It wilt be fatal if it is shown that the accused person was prejudiced or misled by the defect in the charge. It is then the court will hold that convicting him on the defective charge will occasion a miscarriage of justice. Onakoya V Federal Republic of Nigeria (2002) 11 NWLR (Pt. 779) 595. In this case, from the proceedings, there is no basis for a finding that the accused person was misled by the charges as framed or that he suffered any prejudice.
I now go to the substance of this case.
It is a settled principle of law that the prosecution has a duty to prove the case against an accused person beyond reasonable doubt and this duty never shifts. Amala V State (2004) 12 NWLR (Pt. 888) 520.
Proof beyond reasonable doubt means no more than proof of all the essential elements of the offence. State V Bakare (1987) 1NWLR (Pt. 52) 579; Nwankwo V Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809) 1.
The first Count in this information is conspiracy. As defined by prosecution counsel, conspiracy is an agreement between two or more persons to do an illegal act or to do a legal act by illegal means. The offence is complete once the plot is formed even if nothing further is done or the parties had no opportunity to commit the offence. Waziri V State (1997) 3 NWLR (Pt. 496) 689. Proof of the existence of conspiracy is generally a matter of inference deduced from certain acts of the accused done in pursuance of the criminal purpose. Nwankwo V Federal Republic of Nigeria (supra).
In this case, the prosecution sought to establish the count of conspiracy by the overt act of the accused i.e. the collection of the $16,000 from the Bank.
I will therefore first deal with the substantive charges before returning to the count of conspiracy. Amachree V Nigerian
Army (2003) 3 NWLR (Pt. 807) 256 at 274 supports this procedure.
The ingredients or essential elements to be established in a case of obtaining by false pretences were stated by Niki Tobi JCA (as he then was) in the case of Alake V State (1991) 7 NWLR (Pt. 205) 567 at 591. Inter alia;
1 That there is a pretence.
2. That the pretence emanated from the accused person.
3. That it was false
4. That the accused knew of its falsity or did not believe in its truth.
5. That there was an intention to defraud.
6. That the thing is capable of being stolen.
In the case of State V Nwokedi (1977) 3 SC 35, the Supreme Court also fisted the ingredients to be proved as follows:-
1. The representation made by the accused was false to his knowledge.
2. The representation made by the accused is one that induced the victim to part with his money.
3. The accused obtained property in the money or goods for himself and did not have possession on behalf of another.
What was the pretence or the representation that the accused made to Abbey Abraham that made him to send the $16,OOO?
The evidence of the prosecution in this trial is that the representation to Abbey Abraham was from the brother of the accused person Uche Chidiebere Emmanuel Obinna.
The evidence cross-examination testified that the said Abbey Abraham is one of the customers of Intercontinental Bank and he sent an e-mail to the Bank that one Pastor Emmanuel who he met in Togo told him he runs a charity organisation, an orphanage in Nigeria and that he will need assistance and that if he is to send money to Nigeria, there are two EFCC agents who wilt assist. That the 2 agents are the accused person and Njoku Onyebuchi (PW4).
The testimony of PW1 is said to be contained in the e-mail of Abbey Abraham Exhibit P18 (iii-iv). This e-mail is the genesis of this case and very material. In the first place contrary to the evidence of PW1, Abbey Abraham did not say in Exhibit P18 (iii- iv) that he is a customer of Intercontinental Bank neither did PW2 and PW3 staff of the Bank say so. The e-mail header is not shown in the exhibit, only the attached message. The e-mail address of sender Abbey Abraham is not on Exhibit P18 (iii-iv). PW2 and PW3 said the mail came via their website but this does not explain why the e-mail address of the sender is not shown.
Contrary to the evidence of PW1 under cross-examination where he attempted to give oral evidence of the content of a written document which is not allowed in law thereby contradicting himself. Abbey Abraham said he met the so called Pastor Emmanuel online not in Togo. Abbey stated that the representation was made to him by Pastor Emmanuel which made him to send the $16,000 to the accounts of Uche Henry the accused and Onyebuchi Njoku PW4. Abbey gave his phone number and referred to his e-mail address which I believe the bank had through the website message.
The EFCC did not produce any evidence before this court that they contacted Abbey Abraham and he gave details of the representation made by the accused person to him. No e-mail correspondence between the EFCC and Abbey Abraham or between Abbey and the accused were tendered. When asked under cross-examination whether the EFCC contacted Abbey at all, PW1 said that they called his number and their messages went to the answering machine. The man never contacted EFCC. The interesting thing however is that Abbey continued to communicate with the bank asking for progress reports on the case. Exhibit D3 is the response of PW3 to inquiry of Abbey Abraham. The investigation of the EFCC was limited to the bank. No wonder PW1 said under cross-examination that the victim of the offence was Intercontinental Bank not Abbey Abraham.
There is no evidence before this court from the alleged victim showing the representation made by the accused person. What about the contents of the e-mail box of the accused person?
Under cross-examination, PW1 said the accused person supplied his e-mail address but not his password. He was shown the statement of the accused Exhibit P9 under cross-examination where both the e-mail address and password were stated. The evidence of the accused person is that his e-mail box was assessed both at Intercontinental Bank headquarters where he was first investigated and at the EFCC and no incriminating mail was found.
The pretence stated in Counts 2 and 3 is that the accused person and Uche Chidiebere Emmanuel Obinna at large obtained the stated sums by stating that the money was demanded as gratification by three EFCC agents and the Governor of the Central Bank of Nigeria to facilitate the release of certain money from a bank to Abbey Abraham's Charity Organisation. This pretence was not proved against the accused person.
Where there is no direct evidence of the representation made by an accused person in a charge of obtaining by false pretences, the accused person can still be liable under Section 7 of the Criminal Code as a principal offender if it is proved that he aided other accused persons who made the representation. Akran V I. G. P (1960) NSCC (Vol 1) 2.
Section 7(b-c) of the Criminal Code Cap C 17 Laws of Lagos State 2003, provides:
‘7(a) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
(c) every person who aids another person in committing the offence."
In the case of Sunday lyaro V State (1999) 1 NWLR (Pt. 69) 259, the Supreme Court held that to secure a conviction under Section 7 of the Criminal Code, it must be proved that either prior to or at the time of commission of the offence, the person charged did something to facilitate its commission.
The aid which is given to the principal offender must take place before or at the time of the commission of the crime and not after.
R V Enweonye & Ors (1955) 15 WACA 1.
Aiding and abetting is a case of specific intent. A person possesses the mental element when at the time of aiding the principal offender he:
(a) knows that the principal offender is committing or will possibly commit the actus reus of the crime in question
(b) intends or at least knows that his or her conduct will assist or encourage the principal's commission of this actus reus and
(c) Knows or believes that the actus reus is being committed.
See Peter Gillies: Secondary Offences and Conspiracy Criminal Law Journal Vol. 15 1991. See also DPP for Northern Ireland V Lynch (1975) A. C. 653.
Is there any evidence on record of any act of the accused which aide or facilitated the commission of this offence?
Does the fact that he supplied his account number and that of his friend to his brother amount to aiding or facilitating or assisting the commission of the offence?
The accused person gave evidence of how the money got into his account and what the money was meant for. The investigators found out that his story that his brother sent the money for him to give their parents was true because the money was traced to his fathers account at First Bank Plc, Onitsha branch less the N600,000 he said he borrowed from his father for his business. PW4 a prosecution witness corroborated this story saying he was present when Emmanuel Obinna called the accused person that he should forward his account number to him. Also, that they both dictated their account numbers on phone to Obinna.
It was shown at the trial also that the accused person and PW4 were regular customers of Intercontinental Bank and had been operating their accounts prior to the lodgment of the $16, 000. PW2 said under cross-examination that the lodgments were not unusual else they would have queried the transfer. Also, they were gainfully employed. Their shops were next door to the bank. After collecting the money, they did not disappear. They were arrested right in their shops. I agree with defence counsel that these acts do not portray the accused person and PW4 as criminals.
Since the prosecution was unable to establish that the false representation that proceeded from the brother of the accused person was facilitated by him and this representation was what made Abbey Abraham to send the money to Nigeria, I hold that the most important ingredient for the offence of obtaining under false pretences is not proved. The accused person cannot be held liable for the acts and omissions of his brother. The accused person is not guilty of Count 2 and not guilty of Count 3.
I now return to the count of conspiracy.
The allegation is that the accused person conspired with his brother Chidiebere Emmanuel Obinna to obtain the sum of $8, 000 by false pretences. As defence counsel rightly pointed out, if the accused person is alleged to have obtained $16,000 in two tranches of $8000, the second $8000 coming through his friend's account, how come the conspiracy is in respect of only $8000? This is a grave error on the part of the prosecution.
Can the court make a finding in respect of $8000 when the amount involved is $16,000? The court has no power to severe the amount involved and make a finding only in respect of the $8,000 credited directly to the account of the accused person when PW4 is not an accused person in this case.
Can a man conspire to obtain an amount less than the actual amount received? What this count is alleging is that Uche Henry and Uche Chidiebere formed an agreement to obtain $8,000 from Abbey Abraham by false pretences whereas the amount Abbey
Abraham said he was defrauded is $16, 000. The framing of this count is fatal and the effect is that the count is not proved.
Assuming I am wrong and I can severe the amount involved and make a finding on the $8000 alleged, 1 will look at the merit of the allegation of conspiracy.
The fact that there is no positive evidence of any agreement between the accused persons to commit an offence is not enough to hold that the prosecution did not establish the charge of conspiracy.
Proof of conspiracy is a matter of inference from the evidence adduced and the court can convict for conspiracy if it is satisfied that the accused persons pursued the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. Nwankwo V Federal Republic of Nigeria (supra) at 32 - 33.
Can the court infer conspiracy from the facts of this case?
PW2 in his evidence-in-chief testified that when the accused person and PW4 came for the money, they were asked to produce reference number involving the swift code for the transfer. They presented an e-mail sent to them by the sender of the money. That email is Exhibit P14. Exhibit P14 is dated 30th August, 2006 sent by Chidiebere at large using his e-mail address Chidiebere Omile Omile to Skindo@yahoo.com the accused person’s e-mail address. The subject of the mail is "Dozie here is it he send it to me."
TO BE CONTINUED…
Monday, May 26, 2008
NBA V JIDE ALADEJOBI ESQ
IN THE LEGAL PRACTITIONERS DISCIPLINARY
COMMITTEE OF THE BODY OF BENCHERS HOLDEN AT
ABUJA ON APRIL 21, 2008.
SUIT NO: BB/DCNB/057
BEFORE:
1. HON. JUSTICE UMARU ERI OFR, CJK - CHAIRMAN
2. HON. JUSTICE R.D. MOHAMMED P. JCA MEMBER
3. HON. JUSTICE Z.A. BULKACHUWA P.CJA MEMBER
4. HON. JUSTICE ABDU ABOKI JCA MEMBER
5. HON. JUSTICE KULU ALIYU, CJ, ZAMFARA MEMBER
6. CHIEF OMORUYI A. 0 SAN AG EDO MEMBER
7. CHIEF A.S. AWOMOLO, SAN MEMBER
8. CHIEF N. NWANODI, SAN MEMBER
BETWEEN:
NIGERIAN BAR ASSOCIATION -- COMPLAINT
AND
JIDE ALADEJOBI, ESQ. - - RESPONDENT
DIRECTION
The complaint against the Respondent is that "as counsel to Alhaji Saliu Gbolagade on about the year 2001, conspired with the said Alhaji Saliu Gbolagade to draft and execute a. 10 year Lease Agreement purportedly on behalf of Mrs. Victoria Akinyele Aliu (the Petitioner) in respect of the Petitioner's property situated at No 52, Western Avenue, Surulere, Lagos with the intent to interfere with the Petitioners ownership rights over property, all contrary to Rules 24, 28 and 49 (a) and (b) of the Rules of professional conduct in the legal profession and section 12 of the legal professional's Act, 1990 as amended." The above complaint was read to the
2. The complaint of professional rnisconduct against the Respondent was made to the Nigeria Bar Association in the Petition of Mrs. Victoria Akinyele Aliu through her solicitor Mr. Mike Umonnan and was dated 1st Dec., 2003. By a letter dated 6th Jan., 2004, the NBA Disciplinary Committee sent a copy of the Petition to the NBA disciplinary committee sent a copy of the petition to the respondent but the respondent refused to react. Thus, the only material available to the NBA Disciplanary Committee for consideration was the petition by Petitioner presented through her Attorney.
3. The first witness for the Petition was the Secretary to the Legal Practitioners Disciplinary Committee Abubakar Umar Maidama. On the 16th Jan. 2008 he gave evidence as to the receipt of a letter dated 16th March, 2005 from the NBA forwarding a report against the Respondent stating inter alia that a prima facie case of professional misconduct has been made against the Respondent in terms of the supporting documents forwarded with the said letter, the letter and the bundle of documents forwarded with it was marked Exhibit A1 - A45. Among the documents in the Exhibit are letters calling upon the Respondent to give his reaction to the petition the first letter is dated January, 2004 (Exhibit A4) and 18th June 2004 (Exhibit A2) the Petition. The witness concluded his testimony with the statement of fact that from the records in his possession, there was no reaction whatsoever from the Respondent.
4. The second witness for the petition was the lawful Attorney of the Petitioner. Mr. Mike Umonnan exhibited his power of Attorney which was admitted in evidence as Exhibit B. The witness was instructed and granted a power of Attorney to give evidence in respect of the case between the NBA and Jide Aladejobi currently before "the. Legal Practitioners Disciplinary Committee, Abuja.
5. Mr. Umonnan's evidence was in line with the petition prepared by him for Mrs Victoria Akinyele Aliu and which he had forwarded to the NBA Legal Practitioners Disciplinary Committee on 1st Dec. 2003. That petition is part of the bundle of papers admitted in evidence in this matter through the 1st witness and marked Exhibit A8. His evidence showed that sometime in 1997 one Alhaji Gbolagade who was a tenant at the property known as 52, Western Avenue, Surulere, Lagos approached the landlady of the said property Mrs. Victoria Akinyele Aliu and offered to assist her to eject earring tenants in the said property and bring in new ones following the agreement Alhaji Gbolagade took the petitioner to the Respondent who prepared the agreement to govern the relationship between the petitioner and Alhaji Gbolagade. That agreement signed by both parties is in evidence in this matter as Exhibit A12.
6. Sometime in the year 2002 and based on the information which the Petitioner received about her said property, she had to brief counsel Messrs Abimbola Isikalu & Company to write to Alhaji Gbolagade protesting about the plan by the said. Alhaji Gbolagade to sell all the property. What the Petitioner received in reply was a letter from the Respondent acting as counsel to the said Alhaji Gbolagade stating inter alia as follows:-
ALADEJOB1 & ALADEJOB1 &CO
Dated 8th May 2002
Abimbola Isikalu & Co.
Solicitors & Advocates,
60 Toyin Street, Ikeja Lagos.
Attention Abimbola Isikalu Esq.
Dear colleague,
RE: BUILDING SITUATE NO.9A, WESTERN AVENUE, SURULERE, LAGOS.
We write as solicitors to and on behalf of Alhaji Saliu Gbogalade of No 9A, Western Avenue, Surulere, Lagos. Yours dated 3rd May, 2002 and titled as above addressed to our client has been referred to us for necessary action. Permit us to state with respect the content of your letter was informed most likely by the fact that your client did not reveal facts very material to the transaction between herself and our client to you.
The brief gist of the matter is that our chambers undertook a couple of years back the recovery of the premises in question from the tenants and in consideration of the renovation/repairs carried out by our client ten year lease (copy enclosed) was executed in his favour with the expiration being 28 February, 2011.
We are therefore to assure you that our client has no intention whatsoever of alienating your client reversion as to do that would be illegal.
Meanwhile, we shall cause a letter to be written to all tenants informing them of the true position.
Yours faithfully,
For: ALADEJOBI & ALADEJOB1 &CO
Jide Aladejobi.
The document copy of which was said to be enclosed is in evidence as Exhibits A15, A16 and A17. Upon receipt of the said documents, the Petitioner had to request the Commissioner of Police, Lagos State to investigate the matter. As a sequel to these reports, criminal proceedings are pending in the High Court of Lagos State, Ikeja Division. The case of forgery of the Deed of lease is against the respondent and Alhaji Gbolagade and both were supposed to open their defence on 30th and 31st Jan. 2008 having failed in their no case submission.
According to the Petitioner, she never instructed anybody to sell her property neither did she set her hand to the document as was purported to be the case in Exhibit A15 to A17. The witness concluded his evidence as follows:-
"Consequent upon the forged documents Exhibits A27 to A30, the respondent’s clients Alhaji Gbolagade, assignee on the deed collected rents from many tenants with a view to leasing the property to them. After that, the assignee, Gbolagade prevented the petitioner from having access to (the Premises) which resulted in the collapse of some parts of the property. The Lagos State Urban and Reqional Board served several notices stating that the property would be demolished which were collected by Alhaji Gbolagade but were never served on (the petitioner). On 29/9/2003, the property was demolished by the Lagos State Urban and Regional Planning Board. It was when it was demolished that the Petitioner became aware. The Petitioner suffered loses. The property was even leased out and rents collected."
That was the case for the Petitioner.
The Respondent appeared for himself and opened and closed his defence on 14th March, 2008 by reason of the nature of the defence raised by the Respondent, a mere summary of his evidence will not suffice to show fairness to his case. His entire evidence both in-chief and in cross-examination is hereafter reproduced.
My names are Babajide Aladejobi. I am a Legal Practitioner. I was called to Bar 11th October 1987. I practice at NO. 53, Western Avenue, Ojuelegba Lagos, In 1997 the complainant Mrs. Victoria Adun Aliu was brought to my Chamber by one Alh. Saliu Gbolagade. Alh. Gbolagade informed me that the complainant had a property at No. 62, Western Avenue. I was informed that tenants there had been living rent free over the years and that Alh. Gbolagade as an estate agent was to be given the assignment of filing the ejection process through the Court of Law. When I found that parties were aggrieved, that is Alh. Gbolagade and the Complainant, I advised that a power of Attorney be donated by the complainant to Alh. Gbolagade. I was instructed to prepare the power of Attorney which I did and the complainant signed. Armed with the power of Attorney Alh. Gbolagade instructed me to take out ejection proceedings against all the tenants at the Surulere Rent Tribunal. Alh. Gbolagade paid my fees as a result of which 1 took out writ against all the tenants. The proceeding lasted for the 3 years in the course of which the complainant was invited to give evidence. About the year 2000, we succeeded in ejecting all the tenants from the premises after which Alh. Gbolagade paid the balance of my fees. Towards the end of 2000, Alh.
Gbolagade returned to my chambers to inform me that he had agreed with the complainant to have the property re-structured and renovated so as to have it attract a commercial higher value. 1 inquired as to whose expenses the renovation was to be carried out and Alh. Gbolagade informed me that it was to be at his own expenses and the developer in, consideration of a grant to him of a lease in and over the said property for a period of 10 years. 1 then counseled that such an agreement should be in writing. He sought for time to consult with the complainant over my advice. He came back after a month to say that the complainant had agreed.
COMMITTEE - Copy of the lease is admitted as Exhibit R2.
Cross examination by Ameh - I see Exhibit A2 and A5. I received the Exhibits and I responded accordingly. Exhibit A2 read. From the content of Exhibit A2, my response was not received. 1 do not have any proof to show that my response was received within 14 days. I have seen Exhibit A12 and A13. A12 and A13 was prepared by me as I testified in Chief. I said before that Exhibit A13 was signed by the petitioner but not in my presence. I am the maker of Exhibit A14. Exhibit A15 - A16 is not a copy enclosed as referred to in my letter Exhibit A14. Exhibit A15 - A16 was a copy which was signed by the complainant and it was not witnessed and I cannot say if stamp duty was paid because that was not part of the job given to my chambers. Exhibit A29 -A30 is the copy I attached to my letter Exhibit A14. I see Exhibit A27 - A28 and A29 - A31 and the features, stamp duties appear to be the same. 1 agree that stamp duties are paid after parties have signed. On Exhibit A30, the witness signature was done in my presence, on 1/03/2001. I do not recall that it was not back dated. I believe it was signed on that date. The building has been pulled down. It was the subject of accusation between the complainant and the contractor. It was pulled down by the Lagos Renewal Board because the renovation was unauthorised. As at 2004 my office was operating at both No. 53, Western Avenue, but also retained a correspondence office at No. 27, Adegbite Street, Ilasamaja, Lagos. I started operating at No. 53, Western Avenue at about 1998. Linda stopped working with me may be late 2001 or early 2002. I am not precise. Miss Joy Amadu was also my clerk but she left around 2005 or 2006. Right now I am standing trial before the Lagos High Court.
The Respondents filed a written address dated 26th March, 2008. At the close of the introductory paragraph to his address, he put in issue that the petitioner never gave the pledge in the closing paragraph of the petition to substantiate the allegations therein if called upon and proceeded to add that she was never called upon to do so. It has never been the law that the complainant under Rules governing the proceedings of the Legal Practitioners Disciplinary Committee must be the actual person offended, or cheated. It is immaterial whether the complainant, as is in this case, is the Donee of a Power of Attorney. See the contribution of Uwais CJN in the decision in OKIKE vs. LPDC (2005) 15NWLR (Part) 949 Pp 471 -550 at Pp 5l7 - 518. In what follows, I shall deal serially with the issues raised in the Respondents address as incontrovertible facts.
Fact (a) Respondents stated that the allegedly forged lease does not have the slightest connection with the Respondent beyond the fact that it was drafted by counsel in his chambers - one Princess Medina Titi Aladejobi (Mrs). This allegation is contrary to the tenor of Exhibit A14 which was made and authorised by the Respondent under the name and style of Aladejobi & Aladejobi & Co. A paragraph in the said letter dated 5th May 2002 read as follows: "The brief gist of the matter is that our chambers undertook a couple of years back the recovery of the princess in question from tenants and in consideration of the renovation/repairs carried out by our client, a ten year lease (copy enclosed) was executed in his favour with the expiration being 28th Feb., 2011
The Respondent himself signed that letter. It was he who enclosed in that letter to the petitioner exhibits A15, A16, A17 which constitute the forged documents in question. The Respondent also admitted that Exhibits A29 - A30 is the copy he attached to exhibit A14. The adoption of Exhibit A15 -A17 and by implication Exhibit A29 - A30 as his own act by reason of Exhibit 14 puts the connection between the Respondent and those exhibits beyond the fact of their being drafted by counsel in the chambers of the Respondent. He has made himself sufficiently connected to the allegedly forged documents as a principal source of their existence and by implication sufficiently connected to their origin and therefore answerable for any badges of deformity which they carry.
Fact (b) The Respondent also further alleged that at the Lagos State High court before Gbajabiamila J., the Petitioner never made the faintest allegation that the alleged forgery of the lease in question had any connection with the Respondent. He put in evidence in proof of this position, a certified true copy of the evidence of the Petitioner in the case of the State vs. Alhaii Saliu A. Gbolagade and Anor. before the Lagos High Court on 28th September, 2006. This document was admitted in evidence -in- Chief as Exhibit R1. At pages 2 and 3 of the said exhibit, the Petitioner in the course of her evidence stated as follows in continuation other evidence:
"The 1st accused responded to my lawyer. The 1st accused responded saying the property now belongs to him and not PW1 (sic the Petitioner). The lawyer gave a copy of the 1st accused letter but it is not with me now. I cannot find the original copy of the same. This is the copy Exhibit A. Letter dated 8/5/02 with annexure hereto emanating from the Chambers of (Al) Adejobi & Aladejobi & Co and addressed to [Bamboozle) Oshikalu & Co accepted and marked Exhibit A. Accused Counsel I'm not objecting. I thus went to Panti CID to report and Alagbon Close and Surulere Police Station. I went to Alagbon.and _Panti because my signature was forged, stating that I have given them the property. The signature as appended on the agreement is not mine. This is why I have cause to disagree and go to the Police that my signature has been forged. I confronted him, he was later charged to Court, (Underlining mine)
The Respondent is the "anor" in the charge in Suit No. LCD/91/04 between Alhaji Saliu A. Gbolagade & Anor. referred to in Exhibit Rl.
The rest of the statement of FACTS can be dealt with briefly. Items (c) and (d) and (f) have been dealt with by implication earlier. Item (e) is not relevant for the determination of the main issue in this proceedings which is whether the conduct of the Respondent falls within the class of conducts which can be described as infamous conduct in any professional respect i.e. an act or omission which in the opinion of the disciplinary committee is such that will bring the profession into disrepute.
The Respondent presented two issues for determination in the resolution of the matters in difference between him and the complainants in this suit. These issues are:
(a) Whether a person who is not ex facie expressed to be the maker of a document could be said to be the maker of a document on account of the fact that it was made by another Counsel in the persons Chambers - Issue A
(b) Whether the ingredients of the crime of forgery have been established before the Committee. Issue B
The committee shall deal briefly with each of these issues as no issues have been framed for the Petitioner.
On Issue A: The principle is that he who does or executes something through another is deemed in law to have done or executed that something through and by himself. This principle is at the root of the law of agency in Civil Law and to a large extent is also applicable in Criminal Law in connection with the question of Parties to a crime.
The principal exception to the application of this rule in Civil Law is where it is alleged that the person masquerading as an agent is in fact an independent contractor on his own or in popular parlance, a lone ranger. The question now is whether it is open to the Respondent to plead that despite his posture in Exhibit A14 as the Master or Principal of his Chambers, each counsel in his Chambers is in fact an Independent Contractor. If it is still open to him to so plead, he must go further and provide the evidence upon which this Committee can so find.
It is with the utmost humility that the committee asserts that no such evidence has been provided.
There is therefore no basis on which the Committee can find that assuming Exhibit A15, A16, A17 which are the same document as Exhibit A 29 - A30 are forgeries, the Respondent is not a party to that forgery. This issue is therefore decided against the Respondent.
On Issue B: It has been said in several of the matters relating to disciplinary proceedings that such proceedings are not criminal trial and cannot be alternative to criminal trials. In this instance what is in issues is not the crime of forgery.
That 1 suppose is what is being ventilated in the Lagos State High Court; what is in issue here can be put in this manner. A document which can also be referred to as a document of title is alleged to have been forged. The alleged act of forgery is said to have taken place or originated from the office of a firm of lawyers whose undoubted principal is the Respondent. In the course of the resulting altercation, the matter was reported to the police and the opinion of a handwriting expert was obtained confirming the alleged forgery. If this scenario is correct, would that not amount to an infamous conduct. That is precisely the situation in this matter. We go back again to exhibit A14 which was the letter from the Respondent as principal of Aladejobi & Aladejobi & Co., counsel Alhaji Saliu Gbolagade & Co. to Abimbola Isikalu & Co. counsel to the Petitioner. The Petitioner when she received the offending exhibits reported a case of forgery to the police. The police had to subject the suspect document to forensic examination, in Exhibit 23, the document examiner of the forensic science laboratory of the Nigeria Police Force confirmed that the questioned signature in the portion of the relevant document, is spurious. On the strength of this finding both Alhaji Saliu Gbolagade and the Respondent were charged to court for forgery of a lease agreement for the property at No 52, Western Avenue, Surulere Lagos property of Victoria Akinyele for ten years dated 1/3/2001 purported to have, been signed by the said Victoria Akinyele and Alhaji Saliu Gbolagade with intent that it may be acted upon as genuine...
"There were eight other charges all alleging what one may term infamous acts unbecoming of a lawyer. Not one of the persons who participated in the making of the alleged forged document, all of whom belong to Aladejobi and Aladejobi & Co. firm was called as a witness. Moreover from the Respondents own evidence before this Committee, it was Alhaji Saliu Gbolagade who brought the petitioner to the Respondent’s chambers to provide the legal framework for Alhaji Gbolagade to look after the Petitioners property at 52, Western Avenue. How did it come about that when about the end of the year Alhaji Gbolagade returned to the Respondent’s chambers and he gave the advice that a new document giving the Alhaji a 10 years lease over the property should be prepared, he acted only on what he was told by the Alhaji Gbolagade. Taking all the above circumstances into account, the Respondent ought to know that before this Committee, the complaint against him is not for the offence of forgery as created by statute or common law but simply whether the dealing between him, his law firm and the petitioner have been above board. The way issue "B" has been framed and argued by the respondent without any evidence other than his ipse dixit leaves the Committee with no alternative than to decide that issue against him. Issue “B" is for the above reasons decided against the Respondent. For the above reasons the Committee finds that the Respondent has no defence to the complaint against him. He has introduced no evidence to leave any doubt in the mind of the Committee that the gravamen of the complaint against him has been proved.
Based on the facts before the Committee, the Respondent is liable for professional misconduct. This Committee will never condone any indecent conduct in the legal profession.
DIRECTION:
1.The Committee hereby directs that the name of Jide Aladejobi, be struck off from the Roll of Legal Practitioners in Nigeria.
2. Certified copies of this Direction shall be served on the Chief Registrar Supreme Court, Chief Registrar Court of Appeal, all Chief Judges in Nigeria including F.C.T and Federal High Court. The Attorney General of the Federation and all States Attorneys General. The President, Nigeria Bar Association and all branches of the Nigerian in Bar Association.
Signed:
Hon. Justice Umaru Eri OFR.
Chairman.
21st April, 2008.
COMMITTEE OF THE BODY OF BENCHERS HOLDEN AT
ABUJA ON APRIL 21, 2008.
SUIT NO: BB/DCNB/057
BEFORE:
1. HON. JUSTICE UMARU ERI OFR, CJK - CHAIRMAN
2. HON. JUSTICE R.D. MOHAMMED P. JCA MEMBER
3. HON. JUSTICE Z.A. BULKACHUWA P.CJA MEMBER
4. HON. JUSTICE ABDU ABOKI JCA MEMBER
5. HON. JUSTICE KULU ALIYU, CJ, ZAMFARA MEMBER
6. CHIEF OMORUYI A. 0 SAN AG EDO MEMBER
7. CHIEF A.S. AWOMOLO, SAN MEMBER
8. CHIEF N. NWANODI, SAN MEMBER
BETWEEN:
NIGERIAN BAR ASSOCIATION -- COMPLAINT
AND
JIDE ALADEJOBI, ESQ. - - RESPONDENT
DIRECTION
The complaint against the Respondent is that "as counsel to Alhaji Saliu Gbolagade on about the year 2001, conspired with the said Alhaji Saliu Gbolagade to draft and execute a. 10 year Lease Agreement purportedly on behalf of Mrs. Victoria Akinyele Aliu (the Petitioner) in respect of the Petitioner's property situated at No 52, Western Avenue, Surulere, Lagos with the intent to interfere with the Petitioners ownership rights over property, all contrary to Rules 24, 28 and 49 (a) and (b) of the Rules of professional conduct in the legal profession and section 12 of the legal professional's Act, 1990 as amended." The above complaint was read to the
2. The complaint of professional rnisconduct against the Respondent was made to the Nigeria Bar Association in the Petition of Mrs. Victoria Akinyele Aliu through her solicitor Mr. Mike Umonnan and was dated 1st Dec., 2003. By a letter dated 6th Jan., 2004, the NBA Disciplinary Committee sent a copy of the Petition to the NBA disciplinary committee sent a copy of the petition to the respondent but the respondent refused to react. Thus, the only material available to the NBA Disciplanary Committee for consideration was the petition by Petitioner presented through her Attorney.
3. The first witness for the Petition was the Secretary to the Legal Practitioners Disciplinary Committee Abubakar Umar Maidama. On the 16th Jan. 2008 he gave evidence as to the receipt of a letter dated 16th March, 2005 from the NBA forwarding a report against the Respondent stating inter alia that a prima facie case of professional misconduct has been made against the Respondent in terms of the supporting documents forwarded with the said letter, the letter and the bundle of documents forwarded with it was marked Exhibit A1 - A45. Among the documents in the Exhibit are letters calling upon the Respondent to give his reaction to the petition the first letter is dated January, 2004 (Exhibit A4) and 18th June 2004 (Exhibit A2) the Petition. The witness concluded his testimony with the statement of fact that from the records in his possession, there was no reaction whatsoever from the Respondent.
4. The second witness for the petition was the lawful Attorney of the Petitioner. Mr. Mike Umonnan exhibited his power of Attorney which was admitted in evidence as Exhibit B. The witness was instructed and granted a power of Attorney to give evidence in respect of the case between the NBA and Jide Aladejobi currently before "the. Legal Practitioners Disciplinary Committee, Abuja.
5. Mr. Umonnan's evidence was in line with the petition prepared by him for Mrs Victoria Akinyele Aliu and which he had forwarded to the NBA Legal Practitioners Disciplinary Committee on 1st Dec. 2003. That petition is part of the bundle of papers admitted in evidence in this matter through the 1st witness and marked Exhibit A8. His evidence showed that sometime in 1997 one Alhaji Gbolagade who was a tenant at the property known as 52, Western Avenue, Surulere, Lagos approached the landlady of the said property Mrs. Victoria Akinyele Aliu and offered to assist her to eject earring tenants in the said property and bring in new ones following the agreement Alhaji Gbolagade took the petitioner to the Respondent who prepared the agreement to govern the relationship between the petitioner and Alhaji Gbolagade. That agreement signed by both parties is in evidence in this matter as Exhibit A12.
6. Sometime in the year 2002 and based on the information which the Petitioner received about her said property, she had to brief counsel Messrs Abimbola Isikalu & Company to write to Alhaji Gbolagade protesting about the plan by the said. Alhaji Gbolagade to sell all the property. What the Petitioner received in reply was a letter from the Respondent acting as counsel to the said Alhaji Gbolagade stating inter alia as follows:-
ALADEJOB1 & ALADEJOB1 &CO
Dated 8th May 2002
Abimbola Isikalu & Co.
Solicitors & Advocates,
60 Toyin Street, Ikeja Lagos.
Attention Abimbola Isikalu Esq.
Dear colleague,
RE: BUILDING SITUATE NO.9A, WESTERN AVENUE, SURULERE, LAGOS.
We write as solicitors to and on behalf of Alhaji Saliu Gbogalade of No 9A, Western Avenue, Surulere, Lagos. Yours dated 3rd May, 2002 and titled as above addressed to our client has been referred to us for necessary action. Permit us to state with respect the content of your letter was informed most likely by the fact that your client did not reveal facts very material to the transaction between herself and our client to you.
The brief gist of the matter is that our chambers undertook a couple of years back the recovery of the premises in question from the tenants and in consideration of the renovation/repairs carried out by our client ten year lease (copy enclosed) was executed in his favour with the expiration being 28 February, 2011.
We are therefore to assure you that our client has no intention whatsoever of alienating your client reversion as to do that would be illegal.
Meanwhile, we shall cause a letter to be written to all tenants informing them of the true position.
Yours faithfully,
For: ALADEJOBI & ALADEJOB1 &CO
Jide Aladejobi.
The document copy of which was said to be enclosed is in evidence as Exhibits A15, A16 and A17. Upon receipt of the said documents, the Petitioner had to request the Commissioner of Police, Lagos State to investigate the matter. As a sequel to these reports, criminal proceedings are pending in the High Court of Lagos State, Ikeja Division. The case of forgery of the Deed of lease is against the respondent and Alhaji Gbolagade and both were supposed to open their defence on 30th and 31st Jan. 2008 having failed in their no case submission.
According to the Petitioner, she never instructed anybody to sell her property neither did she set her hand to the document as was purported to be the case in Exhibit A15 to A17. The witness concluded his evidence as follows:-
"Consequent upon the forged documents Exhibits A27 to A30, the respondent’s clients Alhaji Gbolagade, assignee on the deed collected rents from many tenants with a view to leasing the property to them. After that, the assignee, Gbolagade prevented the petitioner from having access to (the Premises) which resulted in the collapse of some parts of the property. The Lagos State Urban and Reqional Board served several notices stating that the property would be demolished which were collected by Alhaji Gbolagade but were never served on (the petitioner). On 29/9/2003, the property was demolished by the Lagos State Urban and Regional Planning Board. It was when it was demolished that the Petitioner became aware. The Petitioner suffered loses. The property was even leased out and rents collected."
That was the case for the Petitioner.
The Respondent appeared for himself and opened and closed his defence on 14th March, 2008 by reason of the nature of the defence raised by the Respondent, a mere summary of his evidence will not suffice to show fairness to his case. His entire evidence both in-chief and in cross-examination is hereafter reproduced.
My names are Babajide Aladejobi. I am a Legal Practitioner. I was called to Bar 11th October 1987. I practice at NO. 53, Western Avenue, Ojuelegba Lagos, In 1997 the complainant Mrs. Victoria Adun Aliu was brought to my Chamber by one Alh. Saliu Gbolagade. Alh. Gbolagade informed me that the complainant had a property at No. 62, Western Avenue. I was informed that tenants there had been living rent free over the years and that Alh. Gbolagade as an estate agent was to be given the assignment of filing the ejection process through the Court of Law. When I found that parties were aggrieved, that is Alh. Gbolagade and the Complainant, I advised that a power of Attorney be donated by the complainant to Alh. Gbolagade. I was instructed to prepare the power of Attorney which I did and the complainant signed. Armed with the power of Attorney Alh. Gbolagade instructed me to take out ejection proceedings against all the tenants at the Surulere Rent Tribunal. Alh. Gbolagade paid my fees as a result of which 1 took out writ against all the tenants. The proceeding lasted for the 3 years in the course of which the complainant was invited to give evidence. About the year 2000, we succeeded in ejecting all the tenants from the premises after which Alh. Gbolagade paid the balance of my fees. Towards the end of 2000, Alh.
Gbolagade returned to my chambers to inform me that he had agreed with the complainant to have the property re-structured and renovated so as to have it attract a commercial higher value. 1 inquired as to whose expenses the renovation was to be carried out and Alh. Gbolagade informed me that it was to be at his own expenses and the developer in, consideration of a grant to him of a lease in and over the said property for a period of 10 years. 1 then counseled that such an agreement should be in writing. He sought for time to consult with the complainant over my advice. He came back after a month to say that the complainant had agreed.
COMMITTEE - Copy of the lease is admitted as Exhibit R2.
Cross examination by Ameh - I see Exhibit A2 and A5. I received the Exhibits and I responded accordingly. Exhibit A2 read. From the content of Exhibit A2, my response was not received. 1 do not have any proof to show that my response was received within 14 days. I have seen Exhibit A12 and A13. A12 and A13 was prepared by me as I testified in Chief. I said before that Exhibit A13 was signed by the petitioner but not in my presence. I am the maker of Exhibit A14. Exhibit A15 - A16 is not a copy enclosed as referred to in my letter Exhibit A14. Exhibit A15 - A16 was a copy which was signed by the complainant and it was not witnessed and I cannot say if stamp duty was paid because that was not part of the job given to my chambers. Exhibit A29 -A30 is the copy I attached to my letter Exhibit A14. I see Exhibit A27 - A28 and A29 - A31 and the features, stamp duties appear to be the same. 1 agree that stamp duties are paid after parties have signed. On Exhibit A30, the witness signature was done in my presence, on 1/03/2001. I do not recall that it was not back dated. I believe it was signed on that date. The building has been pulled down. It was the subject of accusation between the complainant and the contractor. It was pulled down by the Lagos Renewal Board because the renovation was unauthorised. As at 2004 my office was operating at both No. 53, Western Avenue, but also retained a correspondence office at No. 27, Adegbite Street, Ilasamaja, Lagos. I started operating at No. 53, Western Avenue at about 1998. Linda stopped working with me may be late 2001 or early 2002. I am not precise. Miss Joy Amadu was also my clerk but she left around 2005 or 2006. Right now I am standing trial before the Lagos High Court.
The Respondents filed a written address dated 26th March, 2008. At the close of the introductory paragraph to his address, he put in issue that the petitioner never gave the pledge in the closing paragraph of the petition to substantiate the allegations therein if called upon and proceeded to add that she was never called upon to do so. It has never been the law that the complainant under Rules governing the proceedings of the Legal Practitioners Disciplinary Committee must be the actual person offended, or cheated. It is immaterial whether the complainant, as is in this case, is the Donee of a Power of Attorney. See the contribution of Uwais CJN in the decision in OKIKE vs. LPDC (2005) 15NWLR (Part) 949 Pp 471 -550 at Pp 5l7 - 518. In what follows, I shall deal serially with the issues raised in the Respondents address as incontrovertible facts.
Fact (a) Respondents stated that the allegedly forged lease does not have the slightest connection with the Respondent beyond the fact that it was drafted by counsel in his chambers - one Princess Medina Titi Aladejobi (Mrs). This allegation is contrary to the tenor of Exhibit A14 which was made and authorised by the Respondent under the name and style of Aladejobi & Aladejobi & Co. A paragraph in the said letter dated 5th May 2002 read as follows: "The brief gist of the matter is that our chambers undertook a couple of years back the recovery of the princess in question from tenants and in consideration of the renovation/repairs carried out by our client, a ten year lease (copy enclosed) was executed in his favour with the expiration being 28th Feb., 2011
The Respondent himself signed that letter. It was he who enclosed in that letter to the petitioner exhibits A15, A16, A17 which constitute the forged documents in question. The Respondent also admitted that Exhibits A29 - A30 is the copy he attached to exhibit A14. The adoption of Exhibit A15 -A17 and by implication Exhibit A29 - A30 as his own act by reason of Exhibit 14 puts the connection between the Respondent and those exhibits beyond the fact of their being drafted by counsel in the chambers of the Respondent. He has made himself sufficiently connected to the allegedly forged documents as a principal source of their existence and by implication sufficiently connected to their origin and therefore answerable for any badges of deformity which they carry.
Fact (b) The Respondent also further alleged that at the Lagos State High court before Gbajabiamila J., the Petitioner never made the faintest allegation that the alleged forgery of the lease in question had any connection with the Respondent. He put in evidence in proof of this position, a certified true copy of the evidence of the Petitioner in the case of the State vs. Alhaii Saliu A. Gbolagade and Anor. before the Lagos High Court on 28th September, 2006. This document was admitted in evidence -in- Chief as Exhibit R1. At pages 2 and 3 of the said exhibit, the Petitioner in the course of her evidence stated as follows in continuation other evidence:
"The 1st accused responded to my lawyer. The 1st accused responded saying the property now belongs to him and not PW1 (sic the Petitioner). The lawyer gave a copy of the 1st accused letter but it is not with me now. I cannot find the original copy of the same. This is the copy Exhibit A. Letter dated 8/5/02 with annexure hereto emanating from the Chambers of (Al) Adejobi & Aladejobi & Co and addressed to [Bamboozle) Oshikalu & Co accepted and marked Exhibit A. Accused Counsel I'm not objecting. I thus went to Panti CID to report and Alagbon Close and Surulere Police Station. I went to Alagbon.and _Panti because my signature was forged, stating that I have given them the property. The signature as appended on the agreement is not mine. This is why I have cause to disagree and go to the Police that my signature has been forged. I confronted him, he was later charged to Court, (Underlining mine)
The Respondent is the "anor" in the charge in Suit No. LCD/91/04 between Alhaji Saliu A. Gbolagade & Anor. referred to in Exhibit Rl.
The rest of the statement of FACTS can be dealt with briefly. Items (c) and (d) and (f) have been dealt with by implication earlier. Item (e) is not relevant for the determination of the main issue in this proceedings which is whether the conduct of the Respondent falls within the class of conducts which can be described as infamous conduct in any professional respect i.e. an act or omission which in the opinion of the disciplinary committee is such that will bring the profession into disrepute.
The Respondent presented two issues for determination in the resolution of the matters in difference between him and the complainants in this suit. These issues are:
(a) Whether a person who is not ex facie expressed to be the maker of a document could be said to be the maker of a document on account of the fact that it was made by another Counsel in the persons Chambers - Issue A
(b) Whether the ingredients of the crime of forgery have been established before the Committee. Issue B
The committee shall deal briefly with each of these issues as no issues have been framed for the Petitioner.
On Issue A: The principle is that he who does or executes something through another is deemed in law to have done or executed that something through and by himself. This principle is at the root of the law of agency in Civil Law and to a large extent is also applicable in Criminal Law in connection with the question of Parties to a crime.
The principal exception to the application of this rule in Civil Law is where it is alleged that the person masquerading as an agent is in fact an independent contractor on his own or in popular parlance, a lone ranger. The question now is whether it is open to the Respondent to plead that despite his posture in Exhibit A14 as the Master or Principal of his Chambers, each counsel in his Chambers is in fact an Independent Contractor. If it is still open to him to so plead, he must go further and provide the evidence upon which this Committee can so find.
It is with the utmost humility that the committee asserts that no such evidence has been provided.
There is therefore no basis on which the Committee can find that assuming Exhibit A15, A16, A17 which are the same document as Exhibit A 29 - A30 are forgeries, the Respondent is not a party to that forgery. This issue is therefore decided against the Respondent.
On Issue B: It has been said in several of the matters relating to disciplinary proceedings that such proceedings are not criminal trial and cannot be alternative to criminal trials. In this instance what is in issues is not the crime of forgery.
That 1 suppose is what is being ventilated in the Lagos State High Court; what is in issue here can be put in this manner. A document which can also be referred to as a document of title is alleged to have been forged. The alleged act of forgery is said to have taken place or originated from the office of a firm of lawyers whose undoubted principal is the Respondent. In the course of the resulting altercation, the matter was reported to the police and the opinion of a handwriting expert was obtained confirming the alleged forgery. If this scenario is correct, would that not amount to an infamous conduct. That is precisely the situation in this matter. We go back again to exhibit A14 which was the letter from the Respondent as principal of Aladejobi & Aladejobi & Co., counsel Alhaji Saliu Gbolagade & Co. to Abimbola Isikalu & Co. counsel to the Petitioner. The Petitioner when she received the offending exhibits reported a case of forgery to the police. The police had to subject the suspect document to forensic examination, in Exhibit 23, the document examiner of the forensic science laboratory of the Nigeria Police Force confirmed that the questioned signature in the portion of the relevant document, is spurious. On the strength of this finding both Alhaji Saliu Gbolagade and the Respondent were charged to court for forgery of a lease agreement for the property at No 52, Western Avenue, Surulere Lagos property of Victoria Akinyele for ten years dated 1/3/2001 purported to have, been signed by the said Victoria Akinyele and Alhaji Saliu Gbolagade with intent that it may be acted upon as genuine...
"There were eight other charges all alleging what one may term infamous acts unbecoming of a lawyer. Not one of the persons who participated in the making of the alleged forged document, all of whom belong to Aladejobi and Aladejobi & Co. firm was called as a witness. Moreover from the Respondents own evidence before this Committee, it was Alhaji Saliu Gbolagade who brought the petitioner to the Respondent’s chambers to provide the legal framework for Alhaji Gbolagade to look after the Petitioners property at 52, Western Avenue. How did it come about that when about the end of the year Alhaji Gbolagade returned to the Respondent’s chambers and he gave the advice that a new document giving the Alhaji a 10 years lease over the property should be prepared, he acted only on what he was told by the Alhaji Gbolagade. Taking all the above circumstances into account, the Respondent ought to know that before this Committee, the complaint against him is not for the offence of forgery as created by statute or common law but simply whether the dealing between him, his law firm and the petitioner have been above board. The way issue "B" has been framed and argued by the respondent without any evidence other than his ipse dixit leaves the Committee with no alternative than to decide that issue against him. Issue “B" is for the above reasons decided against the Respondent. For the above reasons the Committee finds that the Respondent has no defence to the complaint against him. He has introduced no evidence to leave any doubt in the mind of the Committee that the gravamen of the complaint against him has been proved.
Based on the facts before the Committee, the Respondent is liable for professional misconduct. This Committee will never condone any indecent conduct in the legal profession.
DIRECTION:
1.The Committee hereby directs that the name of Jide Aladejobi, be struck off from the Roll of Legal Practitioners in Nigeria.
2. Certified copies of this Direction shall be served on the Chief Registrar Supreme Court, Chief Registrar Court of Appeal, all Chief Judges in Nigeria including F.C.T and Federal High Court. The Attorney General of the Federation and all States Attorneys General. The President, Nigeria Bar Association and all branches of the Nigerian in Bar Association.
Signed:
Hon. Justice Umaru Eri OFR.
Chairman.
21st April, 2008.
Tuesday, May 6, 2008
10th MARCH 08 CONTD FROM LAST WEEK
CASE LAW
CONTINUED FROM LAST WEEK…
according to learned counsel, the evidence of sale given by the 2nd defendant and his witness contradicted themselves in material particulars. While the 2nd defendant claimed to have purchased his land from Oba Hassan Sekumade the witness i.e. the 2nd P.W. claimed that it was one Lasisi Jimbo who sold the land to the 2nd defendant. The 2nd defendant did not tender any document evidencing the sale of the land to him by whoever contrary to the requirement under the law that all transaction relating to land must be evidenced in writing.
Learned counsel submitted further that the certificate of occupancy relied upon by the 2nd defendant is not a conclusive evidence of any right or interest in the land as it is at best prima facie interest and it may be challenged and rendered invalid in appropriate cases. Learned counsel for this proposition relied on the case of Lebabedi vs. Lagos Metal Industries Limited (1973) NSCC page 1 at page 6. The claimant having shown a better title than the 2nd defendant, the grant of the Certificate of Occupancy to the 2nd defendant should be set aside and discountenanced. Learned counsel cited the case of Ogunleye vs. Oni (1990) 2
NWLR (Pt. 135) page 745.
On the claim for trespass learned counsel submitted that the 2nd defendant had by himself confirmed his trespass by giving evidence of his having erected a fence on the land and made a building foundation on the same. Also, according to learned counsel, the evidence of the surveyor, the 2nd P.W. was not challenged and it was to the effect that the 2nd defendant encroached on the land claimed by the claimant.
Learned counsel finally submitted that apart from the hearsay evidence given by the 2nd D.W. concerning how he got to know about the sale of land to the 2nd defendant, all the other evidence proceeding from him consisted of facts that were not pleaded and should be rejected by the court. Likewise should the evidence of the second defendant concerning the sale of land to him in 1995, that he did not meet any structure on the land and that the Oba processed the Certificate of Occupancy for him be treated as they were not pleaded. Learned counsel urged the court to uphold the claims of the Claimant.
From the pleadings and evidence of the parties, it does appear that a parcel of land was leased to the claimant measuring approximately 2217.26 square yards which has been interpreted on exhibit P4 as 1853.851 square metres by the Sekumade Family as evidenced by exhibit PI.
The unchallenged evidence of the 2nd P.W. is that the parcel of land which the 2nd defendant claimed was sold to him measuring approximately 1093.970 square metres was a part of the 1853.851 square metres leased to the claimant by the Sekumade family. This is shown plainly on exhibit P4 tendered by the 2nd P. W.
The land in dispute in this case therefore is not the entire land leased to the claimant measuring 1853.851 square metres but the 1093.970 claimed by the 2nd defendant to have been sold to him.
Now the general law regarding proof is that he who asserts must prove. – See Sections 135 and 136 of the Evidence Act and the case of - Nnabuife vs. Nwigwe (2001) 9NWLR (Pt. 719 page 710.
Also, in an action for declaratory relief which is granted at the discretion of the court (See Elendu vs. Ekwoaba (1998) 12. NWLR (Pt. 578) page 320 and Guda vs. Kita (1999) 12 NWLR (Pt. 593) page 82) and which discretion must be exercised judicially and judiciously, the burden of proving entitlement to a declaratory relief sought is at all times on the claimant seeking the reliefs. The plaintiff generally cannot found his case on the failure on the part of the defendant. - See Eke vs. Okwaranyia (2001) 12 NWLR (Pt. 726) page 18; UBN Ltd. & Anor. Vs. Jimba & Anor (2001) 12 NWLR (Pt. 727) page 505.
In Makanjuola vs. Ajilore (2001) 12 NWLR (Pt. 727) page 416 at page 437 the Court of Appeal, Ibadan Division stated the Law, per Onnoghen J. C. A. as follows:-
"Furthermore, the law is settled that a declaratory relief as in the present case is a discretionary remedy "which is not granted as a matter of course and the court must be satisfied before granting it that the plaintiff or claimant has a very strong and cogent case both from his statement of claim and from the evidence in support thereof. The plaintiffs must satisfy the court that under all the circumstances of the case, he is fully entitled to the discretionary reliefs in his favour when all facts are taken into consideration"
The Claimant in this case seeks a declaration that he is entitled to the Certificate of Occupancy in respect of the land in dispute. He therefore has the burden of proving such entitlement. It is commonly agreed between the parties that the Sekumade family are the owners of the land in dispute. The representatives of the family, to wit Chief Tanimowo Rufai Bamimosu, Kafaru Faniyi, Chief Sule Jimbo and Mustapha Kasali signed the deed of lease exhibit PI leasing the land in dispute to the Claimant. The D.W. 2 confirmed that the named persons were the accredited representatives of the family.
Clearly therefore, it was the Sekumade family the owners of the land who leased it to the Claimant. The evidence of the 1st D.W. also corroborated this fact. It is also the evidence of the 1st D.W. that the land leased to the claimant was never taken from him by the family.
The upshot is that the Sekumade family had already leased the land to the claimant in 1995. Their interest in the land had been extinguished save as provided for in the terms of the lease. There was therefore no title residing in the family which could be passed on to any other person during the subsistence of the lease - Nemo dat quod non habet - See Mohammed vs. Klargester (Nig.) Ltd. (2002) 14 NWLR (Pt. 797) page 335. Ojengbede vs. Esan (2001) 18 NWLR (Pt. 746) page 771.
The case of the second defendant is that the Oba of lpakodo, the original first defendant sold the land in dispute to him and he proceeded to obtain a Certificate of Occupancy which he tendered and which was admitted as Exhibit Dl. He however did not tender any document in evidence of the sale to him by the said original first defendant. When asked under cross examination about any such document, he said that he was given purchase receipt by the said Oba and representatives of the family when he bought the land in 1995 but he returned the receipt to the original first defendant when the latter was helping process his certificate of occupancy. The receipt it must be noted was said to have been issued in 1995. He was asked whether the receipt was backdated to 1977. He said he did not know about that but all he knew was that he bought his land in 1995.
Now it does not appear likely that if the transaction, that is the sale of the land by the said original 1st defendant actually took place, the 2nd defendant would have no evidence in writing at all, handing over everything to the deceased original first defendant. I am therefore not inclined to believe him. It was on the basis of the sale to the 2nd defendant of the land in 1995 that he claimed that the Certificate of Occupancy was issued to him. The Certificate of Occupancy is however clear on the fact that it was issued pursuant to a purchase receipt dated the 29th day of August, 1977 - a clear 18 years before the 2nd defendant claimed to have purchased his land. Clearly, the Certificate of Occupancy exhibit Dl was not issued upon the 1995 transaction. The 2nd defendant would therefore not appear capable to founding a claim to the land on it. There is therefore no evidence at all in writing of the sale of the land to the 2nd defendant. - See Section 4 of the Statute of Frauds, 1677 making such a sale void prepared.
From my findings above, it appears fairly clear that the alleged vendors of the 2nd defendant had no title to pass to him. Also, there is no evidence proceeding from the 2nd defendant showing that he had any title at all upon which the grant of the Certificate of Occupancy could have been founded. Where this is the case, the Certificate of Occupancy should be held void. - See Jegede vs. Citicon Nigeria Limited (2001) 4 NWLR (Pt. 702) page 112. - See also Kyari vs. Alkali (2001) 5 S. C. Pt. II page 192, at page 216 -where Iguh J. S. C. held as follows:-
"I repeat that the mere issuance of Occupancy, Exhibits A & B does not and cannot confer title in respect of the land in dispute on the 1st respondent where no such title either existed or was available to be transferred to anyone.
It is my view that Exhibits A & B were both issued at a time the customary title of the appellant and members of his family over the piece of land in dispute was subsisting and vesting properly in them and had not been revoked. Both Certificate of Occupancy were rooted on no foundation whatsoever and they are in my view, totally ineffective and void ab initio."
The Certificate of Occupancy having been issued at a time when title to the property was subsisting in the Claimant must be held void ab initio. I so hold.
The second defendant sought to make heavy capital out of his being a purchaser for value without notice. I do not see how this claim can avail the 2nd defendant.
This is because the rule is "Caveat emptor" - the purchaser must take the pains to investigate the title of his vendor and also ascertain whether or not the land is encumbered. A purchaser who does not take necessary precautions cannot be excused for his ignorance - See Muhammed vs. Klargester Nigeria Limited (Supra). If the 2nd defendant had taken necessary precautions he would have become aware of the interest of the Claimant and that perhaps might have saved him the present trouble.
On the claim for trespass, learned counsel for the 2nd defendant as seen above submitted in effect that the claimant cannot sustain that claim against the 2nd defendant, the claim being an afterthought on the part of the claimant.
I have held above that the claimant has proved his title to the land in dispute.
The defendant who also claimed to be in possession and to be so entitled has not shown any title to the property. The law is that where there are conflicting claims to possession, the law ascribes possession to the party with a better title - Biariko vs. Ede Ogwuile (2001) 12 NWLR (Pt. 726) page 235. Bassil vs. Fajebe (2001) 11 NWLR (Pt. 725) page 592.
The title being vested in the claimant, any dealing with the land inconsistent with that title is called trespass which is an offence against possession. - See Omoni vs. Biriyah (1976) 6 S. C. page 43. Aderibigbe vs. Oki (1971) All NLR page 116.
As pointed out by learned counsel for the claimant in his written submissions, and as is evident from the foregoing, at the time 2nd defendant claimed to have bought the land, erected a fence and commenced building activities on the land, the lease to the claimant was still subsisting. In other words, the 2nd defendant has by his own admission dealt with the land in a manner inconsistent with the interest of the title holder. He has ipso facto admitted trespass.
Now, the case of the Claimant is that the original first defendant together with the 2nd defendant trespassed on the land in dispute. The original first defendant is now deceased. The present 1st defendant was apparently sued in a representative capacity for and on behalf of the Sekumade Family. The evidence before the court is that the family did not collude or connive with the late 1st defendant to commit the trespass. The 1st defendant was apparently sued personally. An action in trespass is an action in personam and does not survive the party. As soon as the original first defendant died, the action against him died with him. His name ought to be struck out simpliciter. The present 1st defendant apparently had nothing to do with the trespass. The Claimant ought not to substitute him. The claimant obviously has no cause of action against him. There is no right in the plaintiff or claimant to join a person against whom he has no cause of action. - See Ajayi vs. Jolayemi (2001) 5 S. C. (Pt. II) page 31. Aromire vs. Awoyemi (1972) 1 AII NLR (Pt. 1) page 101
In my view the 1st defendant was improperly joined to this suit and same should be struck out against him. A party who is improperly joined may be struck out at any stage in the proceedings. This is a case of misjoinder. The 1st defendant was not a necessary party to this suit. True, he is a vital witness in this suit. That however makes him only a necessary witness, not a necessary party. - See C.M.I. Trading Services Ltd. vs. Yuriy (1998) 11 NWLR (Pt. 573) page 284.
I have held above that trespass has been proved against the 2nd defendant. One million Naira (N1m) damages have been claimed against him. General damages are awarded at the discretion of the court. - See N. B. Plc vs. Ezeigo (2001) 12 NWLR (Pt. 726) page 11.
It is also the law that the award of general damages in trespass is nominal unless a case of exemplary damages was pleaded and proved. - See Bamgbegbin vs. Oriere (2001) 5 NWLR (Pt. 707) page 628.
Since the claimant did not plead or prove any special damage nor is there any reason to award exemplary damages, the damages the claimant may be entitled to in this case can only be nominal.
In the final result of this suit therefore I hold that the claimant succeeds in his claim against the 2nd defendant and I consequently order as follows:-
1. It is hereby declared that the claimant is entitled to the statutory right of occupancy in respect of the piece or parcel of land measuring approximately 2217.26 square yards situate lying and being at Araromi, Ipakodo, Ikorodu, Lagos State now known as Abraham Obafemi Oke Street, Ipakodo, Ikorodu, Lagos State and which piece or parcel of land is shown and delineated in survey plan no JF 334 dated 15th October, 1973 and attached to the indenture of lease dated 1st day of December, 1975 and registered as No. 28 at page 28 in Volume 1533 of the Land Registry Office in Lagos;
2. N20,000 damages are awarded against the 2nd defendant in favour of the claimant;
3. An order of perpetual injunction is hereby made restraining the 2nd defendant by himself, his agents, servants and/or privies from committing further acts of trespass or dealing in any form whatsoever in the said piece or parcel of land;
4. The suit is struck out against the 1st defendant and I award costs in the sum of N10,000.00 in his favour against the claimant;
5. Cost of this action assessed at N10,000.00 is awarded against the 2nd defendant in favour of the Claimant.
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