3PLR – FEDERAL REPUBLIC OF NIGERIA V. MAGAJI IBRAHIM & ANOR
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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FEDERAL REPUBLIC OF NIGERIA
V.
MAGAJI IBRAHIM & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 23RD DAY OF DECEMBER, 2013
CA/YL/48C/2012
LN-e-LR/2013/64
OTHER CITATIONS
(2013) LPELR-24231(CA)
BEFORE THEIR LORDSHIPS
JIMI OLUKAYODE BADA, J.C.A
JUMMAI HANNATU SANKEY, J.C.A
ADAMU JAURO, J.C.A
BETWEEN
FEDERAL REPUBLIC OF NIGERIA – Appellant(s)
AND
- MAGAJI IBRAHIM
- IBRAHIM GANGYIBENSO – Respondent(s)
REPRESENTATIONS
Mr. Sylvanus Tahir – For Appellant
AND
Mr. T. H. Shabo – For Respondent
ORIGINATING STATE
ADAMAWA STATE: High Court
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE – CORRUPTION AND CRIMINAL BREACH OF TRUST:- Duty of prosecution to prove ingredients of the crime – Relevant considerations – Effect of failure thereto
CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY:- Whether inference can be made for the offence of conspiracy – How made – Need to consider the evidence before the court
CRIMINAL LAW AND PROCEDURE – OFFENCE OF FORGERY:- Charge of making false documents and using as genuine forged documents under Section 366 of the Penal Code – Three requirements the prosecution must prove – That the Accused made, signed, sealed or executed the document in question or any part of it; or that it was made by someone else – That it was made under the direction or with the knowledge of the Accused person – That the Accused made it with some specific intent or dishonestly or fraudulently – Three requirements to be proved for the offence of using as genuine forged documents, under Section 366 of the Penal Code – That the Accused used a document claiming it to be a genuine one – That the Accused knew or had reason to believe that the document was forged – That Accused did so fraudulently or dishonestly – Effect of failure to prove any of the elements.
CHILDREN AND WOMEN LAW:- Women in Employment – Public servant – Cashier – Duty to be diligent – Implication for corruption and abuse of office – Criminal proceedings arising from alleged misappropriation of public funds – Cashier’s poor handling of her role – Effect
CONSTITUTIONAL LAW AND JURISPRUDENCE – FAIR HEARING – PRESUMPTION OF INNOCENCE:– Nigerian criminal justice system – Principle that the accused is always presumed innocent until proved guilty – Constitutional foundation – Section 36(5) of the 1999 Constitution (as amended) – Effect
PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL:- Rule that an issue for determination may encompass more than one ground of appeal, but one ground of appeal cannot support more than one issue – Propriety of formulating two issues for determination from a single ground of appeal – Effect – Where such issues are incompetent and liable to be struck out
PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL:- Ground of appeal in respect of which no issue has been distilled from – Whether is deemed to have been abandoned and such ground must be struck out
PRACTICE AND PROCEDURE – COURT – JUDGMENT AND ORDER – JUDGMENT WRITING: Rule that judgment writing is an art and each Judge is entitled to and free to follow his style – Minimum requirement – Need for a judge regardless of preferred style to show a clear understanding of the facts and issues raised in the case, the law applicable and from all these he should be able to arrive at a conclusion
PRACTICE AND PROCEDURE – EVIDENCE – EVALUATION OF EVIDENCE:- Evaluation of evidence in criminal cases – Whether slightly different from that in civil cases because civil cases are determined on preponderance of evidence while criminal cases are based on proof beyond reasonable doubt
PRACTICE AND PROCEDURE – EVIDENCE – EVALUATION OF EVIDENCE:-As reviewing and assessing evidence with a view to giving it probative value – Criminal trials – Need to first consider whether the prosecution had proved its case and thereafter a consideration of the defence
PRACTICE AND PROCEDURE – EVIDENCE – EVIDENCE OF A HANDWRITING EXPERT: Circumstances where the evidence of a handwriting expert is necessary in order to resolve apparent conflict of evidence
PRACTICE AND PROCEDURE – EVIDENCE – STANDARD OF PROOF:-Criminal proceedings – Duty of the prosecution to prove every ingredient of the offence charged as provided for in the substantive law, beyond reasonable doubt – Failure thereto – Whether any lingering doubt will be resolved in favour of the accused person
WORDS AND PHRASES – “CRIMINAL CONSPIRACY”:- Definition
MAIN JUDGMENT
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The appeal herein is against the judgment of the Adamawa State High Court of Justice, Yola delivered on 2nd February, 2012 in case number FRN/IC/2010.
A summary of the facts culminating in this appeal is hereby made as follows: Pursuant to a petition dated 2nd May, 2007 signed by one Alhaji Bubajoda Koncha on behalf of Toungo concerned citizens, the Economic and Financial Crimes Commission (EFCC) commenced investigation against the two respondents. The petition alleged embezzlement of the sum of N25 Million obtained as loan by Toungo Local Government of Adamawa State from Union Bank Plc, with the consent of the Ministry for Local Government and Chieftaincy Affairs, Adamawa State. The 1st respondent was the former Chairman Toungo Local Government Council of Adamawa State, while the 2nd respondent the Director of Finance/Treasurer of the same Local Government.
Upon the completion of investigation by the EFCC, the 1st and 2nd respondents were jointly arraigned before the lower court on 1st April, 2010 on a 20 count charge of the following offences:
- Criminal Conspiracy under Section 97 of the Penal Code under counts 1 and 10.
- Criminal Breach of Trust by a public servant under Section 315 of the Penal Code in counts 2, 3, 4, 5, 6, 7, 8 and 9.
- Making false documents under Section 364 of the Penal Code and covered under counts 11, 13, 15, 17 and 19.
- Using as genuine, a forged document under Section 366 of the Penal Code in counts 12, 14, 16, 18 and 20.
See pages 3 to 10 of the record of appeal.
The respondents pleaded not guilty to the charges on pages 234 to 236 of the record of appeal. The prosecution called six witnesses styled ‘PW1 to PW6’ and tendered 20 documentary exhibits, which were admitted in evidence and marked exhibits ‘A’ to ‘T’. The defence called 5 witnesses, with the 1st respondent as DW5 and the 2nd respondent as DW2. One documentary exhibit was tendered by the defence, which was admitted in evidence as exhibit ‘U’. Upon the conclusion of hearing, written addresses were filed, exchanged and adopted in court on 11th October, 2012. In a judgment delivered on the 2nd February, 2012 the respondents were discharged and acquitted by the lower Court on all the charges, as follows:
“On the whole I find and hold that all the twenty count charges against the accused persons fail.
The prosecution has failed to establish any or all of them against the accused persons based on the evidence adduced before the court. The accused persons are accordingly discharged and acquitted of all the twenty count charges. I however wish to restate in passing that criminal trials are not based on analogies. In as much as the very brilliant address by the learned prosecuting counsel is appreciated, with respect, it cannot take the place of evidence and based on the evidence adduced before me, I conclude that the case of the prosecution against the accused persons fails. The 1st and 2nd accused persons are hereby discharged and acquitted.”
Aggrieved and dissatisfied by the aforementioned judgment, the appellant challenged same vide a notice of appeal dated 17th April, 2012 and filed on the 19th April, 2012. The notice of appeal is anchored and predicated upon eight grounds of appeal. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument is dated 10th April, 2013 and filed on 12th April, 2013, though deemed properly filed and served on 7th May, 2013. The appellant’s reply brief is dated 2nd October, 2013 and filed on 3rd October, 2013 though deemed properly filed and served on 7th October, 2013. The respondent’s brief of argument dated 10th August, 2013 and filed on 19th August, 2013 but deemed properly filed and served on 7th October, 2013.
On the 19th November, 2013 the date fixed for hearing the appeal, Mr. T. H. Shabo for respondents sought for leave to move the preliminary objection raised in the respondents brief of argument. Learned Counsel adopted pages 3 to 6 of the respondent’s brief of argument containing the notice of preliminary objection and the argument in support. Learned Counsel urged the court to sustain the preliminary objection and strike out ground 4 of the grounds of appeal and issues iii and iv formulated therefrom and ground 8. Mr. Sylvanus Tahir for the appellant adopted pages 2 to 4 of the appellant’s reply brief as his response to the preliminary objection. Learned counsel urged the court to discountenance the preliminary objection and allow ground 4 of the notice of appeal with issues (iii) and (iv) distilled therefrom, as well as ground 8. As for the main appeal, Mr. Sylvanus Tahir adopted the appellant’s brief of argument in urging the court to allow the appeal and set aside the judgment of the trial and convicting the respondents on all or any of the 20 counts charged. Mr. T. H. Shabo adopted the respondent’s brief of argument in urging the court to dismiss the appeal and affirm the judgment of the lower Court.
The appellant crafted five issues for determination on page 3 of the appellant’s brief of argument, as follows:
“i. Whether in order to convict on the offence of Criminal conspiracy in a charge or indictment, a trial court should not infer evidence of criminal conspiracy from the conduct of the accused persons and evidence of complicity, rather than insisting on direct evidence of conspiracy by the conspirators.
- Whether the learned trial Judge at all evaluated or appraised the evidence led by the prosecution at the trial to justify arriving at the decision that the prosecution failed to prove its case against the accused persons beyond reasonable doubt, thereby resulting in the discharge and acquittal of the accused persons on each of the 20 counts charges/information leveled against the accused persons.
iii. Whether in a charge of criminal breach of trust by public servants contrary to Section 315 of the Penal Code, the charge is not proved by the prosecution, where the accused persons, being civil servants are shown to have misapplied funds in contravention of a government directive, circular or resolution stipulating the mode by which such funds should be expended.
- Whether the learned trial Judge did not err in law by discharging and acquitting the accused persons on count 2 of the information by holding that the N25 Million loan secured by the Toungo Local Government Council from Union Bank Plc were expended in certain other projects different from the ones for which the loan was obtained, when there was no shred of evidence placed before the trial court by the accused persons/respondents, as against the prosecution’s credible evidence to the contrary.
- Whether in all cases of allegation of forgery the prosecution’s case fails where a handwriting analyst was not called to give evidence, more so when the persons whose signature were allegedly forged gave evidence at the trial disclaiming/disowning their purported signatures.”
The respondents on their part, nominated four issues for determination on pages 6 and 7 of the respondents brief of argument, namely:
“i. Whether the prosecution proved beyond reasonable doubt the offence of conspiracy under SECTION 97 PENAL CODE against the respondents. (Relates to ground one of the Appeal).
- Whether the learned trial Judge did not evaluate the evidence adduced at the trial court and if not; whether it has occasioned a miscarriage of justice or rendered the decision so reached, perverse. (Relates to ground two and seven of the Appeal).
iii. Whether the prosecution did prove the offences of criminal breach of trust and misappropriation beyond reasonable doubt against the Respondents. (Relates to ground three of the Appeal).
- Whether prosecution did prove beyond reasonable doubt the offences of making false documents and of using as genuine forged documents under Sections 364 and 366 of the Penal Code respectively, against the respondents. (Relates to ground five and six of the Appeal).”
A consideration of the preliminary objection will first be made, before delving into the main appeal.
PRELIMINARY OBJECTION
The notice and the grounds in support of the preliminary objection as contained on page 3 of the respondents brief is hereby reproduced, thus:
“The Respondents shall at the hearing of the appeal raise objection to the competence of issues (iii) and (iv) of the Appellant’s brief and shall urge the Honourable Court to strike them out for having been raised from a single ground of Appeal i.e. ground four (4) of the Notice of Appeal. See paragraphs 7.0 and 8.0 of the Appellant brief of Argument.
Take notice that the grounds on which the objection is raised is that the law frowns against proliferation of issues in Appeal and in a situation where two or more issues are raised from a single ground of Appeal those issues are liable to be struck out and the resultant effect would be that Ground (iv) of the Notice of Appeal and issues (iii) and (iv) in Appellant’s brief will be discountenanced.”
In arguing the objection, it was submitted that issues (iii) and (iv) canvassed by the appellant are not competent in law having been distilled from ground 4 and should be struck out. The respondents contended that a single ground of appeal cannot give rise to two issues and where two issues are raised from a single ground as in the instant case, they are liable to be struck out. In support, reference was made to the following cases: Okonobor & 9 Ors. v. Edegbe & Sons Transp. Co. Ltd. (2010) 2 NWLR 284 at 289, Ogoyi v. Umagba (1995) 5 NWLR (Pt. 419) 283 at 297, Sulaiman v. U.A.C. (Nig) Plc (2003) FWLR (Pt. 161) 1760 at 1768, Atanyi v. Mili. Gov. Plateau State (2002) FWLR (Pt. 89) 1168 at 1187. It was submitted that the resultant effect of striking out issues (iii) and (iv) is the abandonment of ground 4 which will be left without an issue for determination and it will equally be struck out. The Court was also urged to strike out ground 8 of the grounds of appeal, as no issue for determination was distilled from it. In concluding, it was urged that the preliminary objection be allowed.
In response to the preliminary objection, the appellant conceded that the position canvassed by the respondents is the general rule, but stated that an appellate court has the discretion not to strike out issues which may appear prolix in order not to punish a party. In support of this submission, reference was made to the following cases: Ika Local Government Area v. Mba (2007) 12 NWLR (Pt. 1049) 676 at 696, U.P.S. Ltd v. Ufot (2006) 2 NWLR (Pt. 963) 1 at 19-20, State v. Okoye (2007) 16 NWLR (Pt. 1061) 607 at 646. Learned counsel urged the court to dismiss the preliminary objection and merge the two issues distilled from ground 4 into one issue, in order to do justice to the appellant. On ground 8, it was contended that it is an omnibus ground hence it needs no particulars. In support, reference was made to the following case: Isiekwe v. State (1999) 9 NWLR (Pt. 617) 43 at 56, Nwankwo v. FRN (2003) 4 NWLR (Pt. 809) 1 at 40. It was contended that issues distilled from grounds 2 and 7, are relevant to ground 8. The court was urged not to strike out ground 8 of the grounds of appeal.
I will start a consideration of the preliminary objection from ground 8 of the grounds of appeal. The grouse of the respondent is that no issue has been distilled from the said ground, hence it should be deemed abandoned and struck out. The appellant however evaded the complain in relation to ground 8 and submitted that it is an omnibus ground and doesn’t require particulars. Learned counsel further contended that issues distilled from grounds 2 and 7 are relevant to ground 8. The challenge posed to ground 8 by the respondent is not in relation to particulars but rather no issue has been distilled from the said ground. The question of particulars to ground 8 is a non issue and has no relevance to the objection.
From the five issues formulated for determination by the appellant, I note and in fact it is obvious that no issue has been raised, formulated or distilled from ground 8 of the grounds of appeal. The consequence is now firmly settled, that a ground of appeal in respect of which no issue has been distilled from, is deemed to have been abandoned and such ground must be struck out. See Onafide v. Olayiwola (1990) 7 NWLR (pt. 161) 130, Ndiwe V Okocha (1992) 7 NWLR (pt.252) 29, (1992) 7 SCNJ 355, Adomolaran v. Kupoloyi (1994) 2 NWLR (Pt. 325) 221, Ngillari v. Mothercat Ltd (1995) 8 NWLR (Pt. 311) 377, Agbareh v. Mimra (2008) 33 NSCQR 970 at 976, Aderigbigbe v. Abidoye (2009) 38 NSCQR 806 at 812; Sapo v. Sunmonu (2010) 42 NSCQR 910 at 921, just to mention a few. Ground 8 of the ground of appeal is accordingly struck out as urged by the respondent.
The first part of the preliminary objection complains about distilling two issues, namely issues (iii) and (iv) from a single ground i.e. ground 4 of the grounds of appeal. The appellant conceded that the position canvassed by the respondents is the general rule but contended that an appellate court has the discretion not to strike out issues which may appear prolix. The appellant urged the court to merge the two issues distilled from ground 4 and dismiss the preliminary objection. Issues (iii) and (iv) were no doubt crafted out of a single ground of appeal namely ground 4 of the grounds of appeal.
It is trite law, that an issue for determination may encompass more than one ground of appeal, but one ground of appeal cannot support more than one issue. It is therefore absolutely wrong for the appellant to formulate two issues for determination from a single ground of appeal. See Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt. 99) 566 at 580, Anie Ibrahim & Ors v. Chief Uzorka & Ors (1993) 8 NWLR (Pt. 309) 1, Atanyi v. Military Gov. Plateau State (2002) FWLR (Pt. 89) 1168, Ogoyi v. Umagba (1995) 5 NWLR (Pt. 419) 283 at 297, Suleiman v. UAC (Nig) Plc (2003) FWLR (Pt. 161) 1768, Oknobor & 9 Ors v. D. Edegbe & Sons Transp. Co. Ltd. (2010) 2 NMLR 284 at 289. Consequently the said issues are incompetent and are hereby struck out. See Okonobor & 9 Ors v. D. Edegbe & Sons Transp. Co. Ltd. & Anor (2010) 2 NMLR 284 at 289. Issues (iii) and (iv) are hereby struck out. Hence this appeal will be determined on issues 1, 2 and 5.
By way of preamble, it must be restated that by our criminal justice system, the accused is always presumed innocent until proved guilty. This principle of presumption of innocence has a constitutional blessing by virtue of Section 36(5) of the 1999 Constitution (as amended) which provides thus:
“Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
By the aforementioned constitutional provision, the burden of proving or establishing the guilt of an accused person is squarely on the prosecution. The standard of proof is proof beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011, which provides thus:
“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.”
See the following cases: Woolmington v. DPP (1935) AC 462, Bakare v. State (1987) 3 SC 1, Okoro v. State (2010) 16 NWLR (Pt. 1220) 584, Agbiti V Nigerian Navy (2011) LPELR 2944, Oduneye V State (2001) 2 NWLR (Pt. 697) 311, Dibie v. State (2007) 9 NWLR (Pt. 1038) 30, Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt. 24) 648, Emeka v. State (2001) FWLR (Pt. 66) 682.
The prosecution therefore owes a duty to prove every ingredient of the offence charged as provided for in the substantive law, beyond reasonable doubt. Where the standard of proof beyond reasonable doubt is not attained, any lingering doubt will be resolved in favour of the accused person. See the following cases: Onafowokan v. State (1987) 3 NWLR (Pt. 61) 531, State v. Danjuma (1997) 5 NWLR (Pt. 809) 1 at 35-36, Abdullahi v. State (2008) ALL FWLR (Pt. 432) 1047.
Having struck out issues (iii) and (iv) the appeal as earlier stated will be resolved on the remaining three issues for determination. A consideration of the issues will be made anon and starting in the reverse order with issue V.
ISSUE V
This issue relates to counts 11, 13, 15, 17 and 19 of the charge on the allegation of making false documents or forgeries of exhibits L, M, N, P, Q and R contrary to Section 364 of the Penal Code. The appellant stated that they have led evidence in support of the counts through PW1, PW2, PW3 and PW4. The appellant contended that PW4 the cashier of the Local Government, stated in her evidence that exhibit M was not paid to Envidee (Nig) Ltd but to 2nd Respondent. The appellant maintained that PW4 further stated that PW2 and PW3 whose names appeared as recipients on exhibits L, N, P, Q, and R, were not paid the monies but rather payment was effected to the 2nd respondent. It was contended that PW2 and PW3 made requisitions for the various items to be purchased and vouchers raised in their names but they were never paid.
The appellant stated that exhibit L covering the sum of N6 million was alleged to have been paid to a contractor, though the name of PW3 was on the voucher and alleged to have signed for it. The appellant contended that failure to call a handwriting expert is not fatal to the case as was held by the court. The appellant submitted that the court can compare the signatures of PW2 and PW3 on their extra judicial statements volunteered to the EFCC vis-a-vis the purported signatures on exhibits L, N, P, Q and R in line with Section 101(1) of Evidence Act 2011 formerly Section 108. The appellant further submitted that PW2 and PW3 had given evidence to the effect that the signatures on the said Exhibits are not their signatures, hence forgery is established. In support, reference was made to the following cases: Abadom v. State (1997) 1 NWLR (Pt. 479) 1 at 22, Alake v. State (1992) 9 NWLR (Pt. 265) 260 at 270, Wambai v. Kano N. A. (1965) NNLR 15, R V Kuree 7 WACA 175, Wakefield V Lincoln (Bishop) 1921 L.J. Rep 174 at 179 – 180.
The appellant contended that the trial court was in error to have relied on Aituma v. State (2007) 5 NWLR (Pt. 1028) 466. The appellant argued that there was sufficient evidence to have found the respondents guilty for conspiracy to forge, conspiracy for using as genuine, forged documents and forgery of exhibits L, M, N, P, Q and R. In support, reference was made to the following cases: Babalola v. State (1989) 4 NWLR (Pt. 115) 264 at 277, Nigeria Airforce v. James (2002) 18 NWLR (Pt. 798) 295 at 322, Osondu v. FRN (2000) 12 NWLR (Pt. 682) 483 at 505, Agwuna v. A.G. Federation (1995) 5 NWLR (Pt. 369) 418 at 438. The appellant urged that the issue be resolved in favour of the appellant and the judgment of the lower court be set aside.
The respondents in issue 4, submitted that there was no shred of evidence before the lower court to establish that the respondents forged the documents or used same as genuine. The respondents submitted that PW3 is not a witness of truth as he contradicted himself with regards to issue of money for the purchase of the goods. The respondents argued that if PW3 had not received the money as he claimed, how did he get the money to pay in his name for the purchases contained in the receipts in exhibit L, wherein he admitted receiving the said goods of the same value into the Local Government store as evidenced by store Receipt Voucher attached to exhibit L. It was posited that the contradictory stand of PW3, is enough to cast doubt on the mind of the court and be capable of resolving the issue in favour of the respondents. In support, reference was made to the case of Sunday v. State (2010) ALL FWLR (Pt. 548) 884 at 924-925.
For the offence under Section 364, the respondents listed the 3 essential requirements which the prosecution must prove. It was submitted that the prosecution did not establish that it was the respondents that signed Exhibits L, M, N, P, Q and R nor sealed it. It was argued that it was established through PW2, PW3 and DW3 that it is the account clerks within each department that prepare vouchers i.e. exhibits L, M, N, P, Q and R, and non of the respondents is an account clerk in any of the departments. It was submitted that the defence led unrebutted evidence through DW1 to show that all monies previously collected by DW1 was from PW4, hence the claim that DW2 collected money on exhibit M for delivery to DW1 cannot be true. It was argued that PW4 was therefore not telling the truth when she alleged paying monies on exhibits M, N, P, Q and R to DW2. It was further submitted that PW4 under cross examination admitted that she was not present when DW2 allegedly signed exhibits L, M, N, P, Q and R though she admitted putting question marks on the column for recipient signature on exhibit L. It was argued that it was nowhere indicated that DW2, signed and collected monies on exhibits L, M, N, P, Q and R.
It was posited that the prosecution never called any handwriting expert to establish whether the signatures on the exhibits were forged and the forgery was made by the respondents. It was further argued that specimen signatures of PW2, PW3 and PW4 were never tendered in evidence to enable the court compare same with the signatures on exhibits L, M, N, P, Q and R and draw conclusions. The failure to call handwriting expert or tender specimen signatures of PW2, PW3 and PW4, was argued to be fatal to the prosecution’s case. In support, reference was made to the following cases: Aituma v. State (2007) ALL FWLR (Pt. 381) 1798) at 1811, Sunday V State (2010) ALL FWLR (pt. 548) 884 at 911 – 912. The court was urged to hold that the prosecution had failed to establish the ingredients of the offence to warrant convicting the respondents.
For the offence under Section 366 in counts 12, 14, 16, 18 and 20, the respondents listed the 3 ingredients which the prosecution must prove. The respondents adopted arguments made for offence under Section 364 and further stressed that the prosecution failed to show how the respondents used any of the exhibits claiming it to be genuine. It was contended that the prosecution failed to establish the guilty knowledge in the usage of the exhibits and the fraudulent or dishonest intention of the respondents with regards to the exhibits. It was submitted that the evidence of PW2 and PW3 under cross examination and that of DW2, DW3 and DW5 established that respondents had nothing to do with exhibits L, M, N, P, Q and R.
This court was urged to dismiss the appeal and further reference was made to the case of Aituma V State (supra) at page 1812.
The issue under consideration relates to counts 11, 13, 15, 17 and 19 of the charge on the allegation of making false documents and counts 12, 14, 16, 18 and 20 on using as genuine forged documents under Section 366 of the Penal Code. The three requirements the prosecution is to prove under Section 364 are as follows:
“i. That the Accused made, signed, sealed or executed the document in question or any part of it; or that it was made by someone else.
- That it was made under the direction or with the knowledge of the Accused person.
iii. That the Accused made it with some specific intent or dishonestly or fraudulently.”
The three requirements to be proved for the offence of using as genuine forged documents, under Section 366 of the Penal Code are, as follows:
“i. That the Accused used a document claiming it to be a genuine one
- That the Accused knew or had reason to believe that the document was forged.
iii. That Accused did so fraudulently or dishonestly.”
My consideration will start with counts 11, 13, 15, 17 and 19 of the charge on making false documents, contrary to Section 364 of the Penal Code. The offences are said to have been committed in relation to exhibits L, M, N, P, Q and R. The said exhibits are payment vouchers with annexures of either receipts, memo, council extracts or stores receipt voucher (SRV). The breakdown of the names for which the exhibits were raised are as follows:
(i) Exhibit L – Usman Y. Atiku – PW3
(ii) Exhibit M – Arc. Jared Gideon – Deceased
(iii) Exhibit N – Mathew Ibrahim – PW2
(iv) Exhibit P – Mathew Ibrahim – PW2
(v) Exhibit Q – Mathew Ibrahim – PW2
(vi) Exhibit R – Mathew Ibrahim – PW2
The cumulative effect of the allegations in the aforementioned counts is to the effect that the two accused persons, now respondents, fraudulently made the false documents, namely the aforementioned exhibits. Essentially, as earlier said the exhibits are payment vouchers and from the evidence of PW2, PW3, PW4 and DW2, DW3, DW5 payment vouchers are made by the account clerks in the respective departments. The 1st respondent (DW5) was the former chairman Toungo Local Government, while the 2nd respondent (DW2) was the Director of Finance/Treasurer of the Local Government. Hence, it is not in dispute that both respondents are not account clerks.
The allegation when narrowed down are comprehensively to the effect that the respondents forged the signatures of the beneficiaries or recipients on the vouchers and collected the monies instead of the people in whose names the vouchers were raised. The contention of the appellant is that the lower Court was wrong in relying on Aituma v. State (supra) and holding that failure to bring a handwriting expert was fatal to the prosecution’s case. The appellant contended that the crucial thing in the instant case is that PW2 and PW3 testified to the effect that the signatures on exhibits L, N, P, Q and R are not their signatures, hence forgery is established.
The peculiarity in the instant case is that while PW2 and PW3 are saying that the signatures on exhibits L, N, P, Q and R are not their signatures DW2 and DW5 are also denying having signed any of the exhibits nor collected monies reflected in the said exhibits. PW4 Bridget Ishaku the cashier of the Local Government who alleged to have paid DW2 the monies on the said exhibits stated as follows under cross examination on page 286 of the record “I was not present when the 2nd accused signed exhibits M – R”. In the circumstances of this case where each of the parties is accusing the other, the evidence of a handwriting expert is necessary in order to resolve the apparent conflict. See Aituma v. State (supra). In fact the respondents even queried PW3 to the effect that if he denied signing and collecting monies on exhibit L, where did he get the money to offset the receipts bearing his name attached to exhibit L and why did he sign the store Receipt voucher acknowledging the receipt of items covered by the money in exhibit L into the Local Government store.
In addition to the foregoing, the specimen signatures of PW2, PW3 and PW4 were not tendered in evidence as exhibits. This would have assisted the court to make the necessary comparison as submitted by the appellant in line with Section 101 (1) of the Evidence act 2011. The denial of the signatures on exhibits L, N, P, Q and R by PW2 and PW3 is very important towards establishing forgery, but in the peculiar circumstance of this case the evidence of a handwriting expert would have laid to rest the allegation hurled against PW2 and PW3 by the Respondents to the effect that they PW2 and PW3 were the actual signatories to the exhibits. The cases of Alake v. State (supra), Wambai V Kano NA and R V Kuree (supra) are not strictly relevant to the peculiar circumstance of this case.
Looking at the evidence of PW2 and PW3 from another perspective, their denial of the signatures on exhibits L, N, P, Q and R, goes towards establishing that the said signatures were forged. Who then forged the signatures? Was there any evidence as to who forged the signatures? Bridget Ishaku PW4, the cashier who keeps custody of vouchers stated under cross examination on page 286 that “I was not present when the 2nd accused signed exhibits M – R”. There is no evidence pointing to the fact that the 2nd respondent signed exhibits L, N, P, Q and R. Exhibit M meant for Arc. Jared Gideon as beneficiary was not signed by anybody, hence the question mark written in green ink on the signature column of the recipient. As there is no signature on the recipient’s column of exhibit M, who then will be held responsible as having forged it, since there was nothing forged. It appears PW4 the cashier was a bit careless in the discharge of her duties, as monies were collected without recipients signing the vouchers or where somebody is collecting on behalf of a recipient appropriate endorsement to that effect be made by documenting an authority letter, authorizing collection by a third party on behalf of the recipient. The evidence as it is, I do not see how the offence of forgery can be said to have been established. The decision of the lower court to that effect is unassailable.
On the counts under Section 366 of the Penal Code, namely counts 12, 14, 16, 18 and 20, their existence is predicated upon the proof of the counts under Section 364. The three requirements under Section 366, had earlier been reproduced in this judgment. Having failed to prove forgery, counts 12, 14, 16, 18 and 20 will have no legs to stand on and a consideration of the said counts will be merely an academic exercise. Consequent upon the foregoing, this issue is resolved against the appellants and in favour of the respondents.
ISSUE II
The complaint under this issue is to the effect that the learned trial Judge failed to evaluate/appraise the evidence led by the prosecution and discharged the accused persons on the grounds that prosecution has failed to prove the charges. It was contended that the learned trial Judge merely stated the charges, summarized the evidence and written addresses, but failed to evaluate the evidence in order to objectively justify his decision.
It was submitted that in a joint trial with more than one accused person, it is the duty of the trial Judge to evaluate and assess the evidence as it affects each of the accused persons. In support, reference was made to Section 269 of the CPC and the following cases: Halilu Mohamman v. IGP (1970) NWLR 98, Alake v. State (1992) 9 NWLR (Pt. 556) 260 at 270, Emeka & Ors. v. State (1998) 7 NWLR (Pt. 559) 584, Abadom v. State (1997) 1 NWLR (Pt. 479) 1 at 29-30, State v. Azeez (2008) 14 NWLR (Pt. 1108) 439, Omobo v. COP (1965) NWLR 274, Benmax v. Austin Motor Co. Ltd (1955) AC 370, NBTC Ltd v. Narumal (NIG) Ltd (1986) 4 NWLR (Pt. 33) 128 at 177, Oladehin v. Continental Textile Mills Ltd (1978) 2 SC. 23 at 32.
The appellant urged the court to evaluate the evidence, the lower court having failed to do so and convict the respondents as charged.
The respondents under issue two contended that the lower court properly evaluated the evidence of both the prosecution and the defence. It was submitted that it was after the due evaluation of the evidence that the lower court concluded that the prosecution had failed to prove the 20 count charges.
It was argued that evaluation of evidence is the primary responsibility of trial courts who had the opportunity of seeing and hearing the witnesses. It was posited that this court can only step into the shoes of the trial court to do the evaluation where the decision of the lower court is perverse or occasioned a miscarriage of justice. In support, reference was made to the following cases: Olusanya v. State (2012) ALL FWLR (Pt. 656) 573 at 596, Agbabiaka v. Saibu (1998) SCNJ 305 at 318-319, Sunday v. State (2010) ALL FWLR (Pt. 548) 874 at 947, Ojo v. FRN (2009) ALL FWLR (Pt. 494) 1461. It was argued that the appellant has not in any way shown that the decision of the lower court is perverse or occasioned a miscarriage of justice. The court was urged to discountenance the submission of the appellant and resolve the issue in favour of the respondents.
The complain under this issue is on evaluation of evidence, to the effect that the lower court failed to evaluate the evidence. Evaluation of evidence involves reviewing, and assessing the evidence with a view to giving it probative value. In criminal trials the first thing to consider is whether the prosecution had proved its case and thereafter a consideration is made of the defence. See David Uso v. C.O.P. (1972) 11 SC 37. The complaint canvassed under the issue is more of an attack on the style adopted in writing the judgment. The lower court after summarizing the evidence, the counts of charges and the submissions of counsel, proceeded to make its consideration of the evidence vis-a-vis the charges. The consideration of the evidence vis-a-vis the charges in order to determine whether the offences had been proved, to my mind is a proper evaluation in a criminal trial. This process was done by the lower court from page 385 to the concluding part of the judgment, where the lower court concluded that the prosecution had failed to prove the offences beyond reasonable doubt.
It should be noted that judgment writing is an art and each Judge is entitled to and free to follow his style. The most essential thing is that a Judge should show a clear understanding of the facts and issues raised in the case, the law applicable and from all these he should be able to arrive at a conclusion. See Onuoha v. State (1988) 2 SC (Pt. 11) 115, Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494.
Evaluation of evidence in criminal cases is slightly different from that in civil cases because civil cases are determined on preponderance of evidence while criminal cases are based on proof beyond reasonable doubt. The lower court did the evaluation of evidence before concluding that the prosecution failed to prove the offences charged. Consequent upon the foregoing, this issue also fails and is resolved against the appellant in favour of the respondents.
ISSUE ONE
The appellant contended that the lower court was wrong in not convicting the respondents for the offence of criminal conspiracy under counts 1 and 10. It was submitted that ample evidence had been adduced in support of the counts but the lower court held that there was no proof that the conduct of the accused persons amounted to a common intention to prosecute any unlawful purpose. It was further submitted that for the offence of conspiracy, direct evidence of an agreement is not indispensable and it is open for the trial court to infer conspiracy from the fact of doing things towards a common end. In support, reference was made to the following cases: Onochie v. The Republic (1966) 4 NSCC 73 at 74, Ikwunne v. State (2000) 5 NWLR (Pt. 658) 3 NWLR (Pt. 12) 283 at 299, R. v. Murphy (1837) 8 C & P 310 (1837) ER 508.
It was argued that going through exhibits L, M, N, P, Q and R, it is obvious that the 2nd respondent recommends the payment, while the first respondent as chairman approves the payment, thereby facilitating criminal breach of trust. It was contended that the trial court could have inferred evidence of conspiracy from the conduct of the respondents as well as evidence of their complicity. It was urged that the issue be resolved against the respondents and the judgment of the trial court be set aside and a verdict of conviction be entered for the offence of conspiracy.
It was submitted on behalf of the respondents, that there was no agreement on their part or any act done in furtherance of any conspiracy. It was contended that there was no evidence that shows a nexus in the acts of the 1st and 2nd respondents to collect N25 million and convert it to their own use. It was argued that from the evidence of PW2, PW3, DW2, DW3 and DW5 that payment vouchers are made by clerks. The respondents urged the court to uphold the judgment of the lower court. In support, reference was made to the case of Ojo v. FRN (2009) ALL FWLR (Pt. 494) 146 1 at 1500. The respondents argued that the trial court based its decision on the evidence before it, which could cover any inference as to agreement. It was urged that this issue be resolved in favour of the respondents.
The offence of criminal conspiracy has been defined to mean an agreement between two or more persons to do an illegal act or an act which is not illegal by an illegal means. See section 96 of the Panel Code. The finding of the trial court for the offence of conspiracy is on page 386 as follows:
“In the instant case based on the evidence adduced and which I have copiously reproduced earlier in this judgment, it is my finding and I so hold that there is no proof that the conduct of the accused person amounted to a common intention to prosecute any unlawful purpose, therefore I cannot convict them of conspiracy.”
The contention of the appellant in quarrelling with the above finding of the trial court is that evidence of an agreement is not undispensable and it is for the trial court to infer complicity from the fact of doing things towards a common end. From the evidence of PW2, PW3, PW4, DW2 and DW3, it is clear that exhibits L, M, N, P, Q and R were prepared by departmental clerks and payments thereon effected by the cashier PW4. DW5 (1st respondent) in both his evidence in chief and cross examination, confirmed that he had nothing to do with the aforementioned exhibits. See pages 325-337 of the record. Exhibit A contains the statement of account of the local government as an annexure, and none of the respondents was reflected on it as having withdrawn any amount.
I am quite in agreement with the submission that, inference can be made for the offence of conspiracy. See State v. Ajuluchukwu 7 NCC 293, Onochie v. The Republic (1966) 4 NSCC 73 at 74, Ikwune v. State (2000) 5 NWLR (Pt. 658) 550 at 561, Okuson v. A.G. Bendel State (1985) 3 NWLR (Pt. 12) 283 at 299. I however hasten to add that inference cannot be made in vacuum, but by considering the evidence before the court. See Ojo v. FRN (supra). By the finding of the trial court, it stated that based on the evidence adduced there was nothing to prove prosecution of an unlawful purpose. There was also no evidence to support the doing of a lawful act by an illegal means. The decision of the lower court to the effect that there is no evidence to support the offence of criminal conspiracy is in order and unassailable. The issue is also resolved against the appellant and in favour of the respondents.
Consequent upon the resolution of all the issues against the appellant and in favour of the respondents, the appeal herein is lacking merit and substance. The appeal is hereby dismissed. The decision of the lower court delivered on 2nd February, 2012 in case number FRN/IC/2012 is hereby affirmed.
JIMI OLUKAYODE BADA, J.C.A.:
I had a preview of the lead Judgment of my learned brother ADAMU JAURO, just delivered. My Lord has adequately dealt with all issues in this appeal.
I agree entirely with the reasons given therein as well as the conclusion that the appeal lacks merit and ought to be dismissed. I too dismiss the appeal.
I abide by the consequential orders made in the said lead judgment.
JUMMAI HANNATU SANKEY, J.C.A.:
I have read in draft a copy of the lead Judgment by my learned brother, Jauro, J.C.A.
- I agree with his reasoning and conclusions that this appeal is without merit. I also dismiss it. I subscribe to the order made on costs.
