IGP v. AIJUN & ORS
(2021)LCN/14942(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, January 04, 2021
CA/A/576C/2019
RATIO
APPEAL: EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUES IS FORMULATED
It is now settled that where a ground of appeal is not covered by the issues for determination set out in the appellant’s brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 @ 699, Western Steel Works v. Iron & Steel Workers Union (No. 2) (1987) 1 NWLR (Pt. 49) 284, 304, Ngilari v. Mothercat Ltd (1999) LPELR-1988 (SC), PER STEPHEN JONAH ADAH, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
INSPECTOR GENERAL OF POLICE APPELANT(S)
And
1. HAO AIJUN 2. LIU YANGXI 3. OBI ANTHONY RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja, in Suit No: FHC/ABJ/CR/77/2017 delivered on the 28th day of February, 2019, coram: Dr. Nnamdi O. Dimgba, J. Wherein the trial Court found the respondents not guilty of the charges preferred against them and discharged and acquitted all the three respondents on all counts due to the failure of the appellant to prove the charge beyond reasonable doubt as required by law.
The charge against the respondent was dated and filed on the 12th day of June, 2017.
The respondents entered a not-guilty plea when the charges were read to them. Thereafter, the matter went into full trial. The prosecution in order to prove his case, called a total of five witnesses and tendered several exhibits. At the close of the prosecution’s case, the respondents made a no-case submission. Written addresses were filed and exchanged in that regard and in a considered ruling, the trial Court upheld the respondents’ no-case submission in part and refused the no-case submission in respect of counts 1–5. The sustained five counts charges are reproduced hereunder as follows:
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Count 1:
That you Hao Aijun (F), Liu Yangxi (m), Obi Anthony Chibuzor (m) on the 20th day of May, 2015 within the jurisdiction of this Honourable Court, conspired amongst yourselves to commit an offence to wit: forgery of the Company Resolution of BN Ceramics Industry Nigeria Ltd and thereby committed an offence punishable under Section 516 of the Criminal Code C38 LFN 2004.
Count 2:
That you Hao Aijun (F), Liu Yangxi (m), Obi Anthony Chibuzor (m) on the 20th day May, 2015 within the jurisdiction of this Honourable Court, forged the Company Resolution of BN Ceramics Industry Ltd by preparing a fake Board Resolution which you purportedly used to increase the share capital of the company from 10,000,000 to 20,000,000 when in fact there is no such meeting and resolution and thereby committed an offence punishable under Section 473 of the Criminal Code C38 LFN 2004.
Count 3:
That you Hao Aijun (F), Liu Yangxi (m), Obi Anthony Chibuzor (m) on the 20th day of May, 2015 within the jurisdiction of this Honourable Court, forged a document in the name of Zhang Xing purportedly relinquishing his shares
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3,760,000 in BN Ceramics Industry Nigeria Limited and thereby committed an offence punishable under Section 473 of the Criminal Code C38 LFN 2004.
Count 4:
That you Hao Aijun (F), Liu Yangxi (m), Obi Anthony Chibuzor (m) on the 20th day of May, 2015 within the jurisdiction of this Honourable Court, forged a company resolution of BN Ceramics Industry Nigeria Limited by preparing a fake Board Resolution which you purportedly used to illegally re-allot shares of the BN Ceramics Nigeria Ltd, when in fact there was no such meeting and resolution thereby committed an offence punishable under Section 473 of the Criminal Code C38 LFN 2004.
Count 5:
Obi Anthony Chibuzor (m) in 2015 within the jurisdiction of this Honorable Court knowingly and fraudulently uttered false document and thereby committed an offence punishable under Section 468 of the Criminal Code C38 LFN 2004.
Based on the ruling of the trial Court, the respondents opened their case and testified for themselves without calling any witnesses. At the close of hearing, parties upon the order of the trial Court, filed and exchanged their respective written addresses.
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in a considered judgment delivered on the 28th day of February, 2019, the trial Court found in favour of the respondents that the prosecution failed to prove its case beyond reasonable doubt as required by law and discharged and acquitted them.
Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court vide a Four Ground Notice of Appeal filed on the 15th May, 2019. The record of appeal was transmitted to this Court on the 27th day of June, 2019.
In line with the rules of this Court, parties filed and exchanged their respective briefs of argument
Counsel for the appellant distilled a sole issue in the appellant’s brief of argument dated 9th day of April, but deemed properly filed and served on the 1st June, 2020. The sole issue is:
Whether the learned trial judge was wrong when he held that the prosecution has not discharged the burden placed on them to prove the offences beyond reasonable doubt and consequently discharged and acquitted the respondents of all offences charged? (Distilled from Grounds 1, 2 & 3).
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In response, counsel for the 1st respondent also, submitted a sole issue in the 1st respondent’s Brief of Argument filed on the 19th May, 2020 thus:
Whether the lower Court was right when it held that the prosecution has not discharged the burden of proving its case beyond reasonable doubt and consequently discharged and acquitted the 1st respondent of all offences charged. (Distilled from grounds 1, 2 & 3).
Also, counsel for the 2nd respondent formulated a sole issue in the for the determination of this appeal in the 2nd respondent’s brief of argument filed on the 19th May, 2020, thus:
Whether the lower Court was right when it held that the prosecution has not discharged the burden of proving its case beyond reasonable doubt and consequently discharged and acquitted the 2nd respondent of all offences charged? (Distilled from Grounds 1, 2 & 3).
Counsel for the 3rd respondent also distilled a sole issue for determination of this appeal in the 3rd respondent’s brief of argument filed on 19th May, 2020 incorporating notice of preliminary objection. The sole issue is:
Whether the lower Court was right when it held that the prosecution has not discharged the burden of proving its case beyond reasonable doubt and
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consequently discharged and acquitted the 3rd respondent of all offences charged. (Distilled from Grounds 1, 2 & 3).
On the 8th day of October, 2020, when the appeal came up for hearing, counsel for the 3rd respondent, O.S. Kehinde Esq. moved the 3rd Respondent’s Preliminary Objection incorporated at pages 4 to 9 of the 3rd Respondent’s Brief of Argument. He adopted the arguments therein and urged the Court to strike out the appeal.
In opposition to the Preliminary Objection of the 3rd respondent, counsel for the appellant relied on the arguments at pages 2 to 6 of his reply brief of argument dated 7th October, 2020, and urged the Court to discountenance the objection.
I shall first consider the Preliminary Objection of the 3rd respondent and resolve it one way or the other before considering the appeal on its merit, if need be.
PRELIMINARY OBJECTION
The Preliminary Objection incorporated at pages 4 to 9 of the 3rd respondent’s brief of argument, is seeking the order of this Court to strike out this appeal on the following grounds:
(i) Ground 1 of the Appellant’s Notice of Appeal is incompetent as it does not relate to
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any particular finding of the lower Court.
(ii) Ground 4 of the Appellant’s Notice of Appeal abandoned as no issue was formulated from it.
(iii) The appellant’s sole issue for determination of this appeal was formulated from Grounds 1, 2 and 3 of the Appellant’s Notice of Appeal.
(iv) The appellant formulated its sole issue for determination from competent and incompetent grounds of appeal.
(v) As a result of the above, the appellant’s sole issue for determination is incompetent and liable to be struck out.
Counsel for the 3rd respondent stated that, a look at the appellant’s notice of appeal would reveal that the ground of appeal is predicated on the purported finding of the lower Court that ‘Exhibit AH6 (1 – 7) were proved to be forged and that the appellant proved that the respondents used the said Exhibits as genuine’, and the subsequent failure of the Court to convict the respondent on the count of using forged documents as genuine. Counsel submitted that the appellant is imputing a finding into the judgment of the lower Court which is not supported by the wording of the judgment. That there is nowhere in the judgment wherein the
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lower Court found that Exhibits AH6 (1 – 7) were proved to be forged and that the appellant proved that respondents used the said exhibits as genuine. He relied on the cases of Omega Bank (Nig.) Plc v. O.B.C Ltd (2005) 8 NWLR (Pt. 928) 547 @ 580, Para. B and Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257 @ 281, Para. C. He reproduced part of the judgment of the trial judge at pages 825 – 827 of the record of appeal and submitted that the judgment of a Court must be read holistically. That a party ought not to pick out statements and comments in a judgment and read it in isolation of the whole judgment. He relied on Jim-Jaja v. C.O.P. Rivers State (2013) 6 NWLR (Pt. 1350) 225 @ 253 Para. D. Counsel canvassed further that based on the portion of the judgment which the appellant read in isolation, that the appellant couched a ground of appeal which suggest that the lower Court made the finding that: (1) Exhibit AH6 (1 – 7) was forged, and (2) That the 3rd respondent used the said Exhibits as genuine. Counsel posited that ground 1 of the Notice of Appeal is an attempt to mislead this Court as same does not relate to any finding of the lower Court and is therefore, incompetent.
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He urged the Court to so hold and strike out ground 1 of the appellant’s notice of appeal.
Counsel for the 3rd respondent further invited the Court to examine the sole issue formulated by the appellant for the determination of this appeal. He argued that an examination of the issue would reveal that the sole issue was formulated from grounds 1, 2 & 3 of the notice of appeal and that having established that ground 1 is incompetent, that the appellant’s sole issue for determination must also be incompetent as it has been formulated from competent and incompetent grounds of appeal. He submitted that an issue formulated from competent and incompetent grounds of appeal is incompetent. He cited Obasi v. Mikson Est. Ind. Ltd (2016) NWLR (Pt. 1539) 335 @ 381, Paras C. Counsel posited that it is not the duty of this Court to perform a surgical operation on the sole issue formulated by the appellant in order to separate the arguments that flow from the incompetent ground and that of competent ground and that such surgical operation of this sort is impossible. He referred the Court to Bello v. Gov. Kogi State (1997) 9 NWLR (Pt. 521) 496 @ 513,
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Paras. G – H. He urged the Court to strike out the sole issue for determination formulated by the appellant in this appeal. That the appellant having failed to formulate any issue from ground 4 of the notice of appeal, same ground 4 is deemed to have been abandoned. He cited Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 @ 699, Paras. G – H. Counsel maintained that the failure of the appellant to formulate any issue from ground 4 of the notice of appeal is that this appeal can only be decided based on grounds 1, 2 and 3. He relied on Bredero (Nig.) Ltd. v. Shyantor (Nig.) Ltd & Ors (2016) LPELR-40205 (CA). He finally urged the Court to strike out this appeal as there is no valid issue upon which this Court can determine the appeal.
Counsel for the appellant in response to the 3rd respondent’s objection, distilled a sole issue. He submitted that the 3rd respondent’s objection having not been filed and the requisite fees paid as provided in Order 10 Rule 1 of the Court of Appeal Rules 2016, is liable to be struck out. That the Rules of Courts are bound to be obeyed as they by virtue of Section 18(1) of the Interpretation Act are in the nature of
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subsidiary legislation. He cited Adeniran v. Olusokun II (2019) 8 NWLR Part 1673 page 98 at 114 paras. A – G. That the use of the word ‘shall’ in Order 10 Rule 1 of the Court of Appeal rules means that the provision of the rule must be complied with for such preliminary objection to be competent. That in the instant appeal, the 3rd respondent did not file any preliminary objection as mandatorily required under Order 10 Rule 1 of the Court of Appeal rules therefore, that the preliminary objection in the brief of argument is incompetent and liable to be struck out. He urged the Court to so hold.
Counsel for the appellant further posited that ground 1 of the grounds of appeal is not incompetent as argued by the 3rd respondent. That the ground 1 relates to the findings of the lower Court on page 818 of the record of appeal. That the argument of the 3rd respondent that appellant’s ground 1 of the grounds does not relate to the findings of the trial Court is misconceived. He urged the Court to dismiss the 3rd respondent’s preliminary objection for lacking in merit and devoid of substance.
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RESOLUTION OF PRELIMINARY OBJECTION
The leg of the objection that is glaring is the fact that no issue is generated from the ground 4 of the grounds of appeal. This ground 4 complained of the judgment of the trial Court being unreasonable and unwarranted considering the evidence before the trial Court. It is now settled that where a ground of appeal is not covered by the issues for determination set out in the appellant’s brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 @ 699, Western Steel Works v. Iron & Steel Workers Union (No. 2) (1987) 1 NWLR (Pt. 49) 284, 304, Ngilari v. Mothercat Ltd (1999) LPELR-1988 (SC),
In the instant case, ground 4 has been abandoned. That ground is accordingly struck out. Apart from this abandonment of ground 4, every other complaint in the preliminary objection has no consequential effect. It is in this respect that I hold that the objection is partially allowed. The objection is partly allowed. The said Ground IV of the grounds of appeal in this appeal is struck out. The other grounds not established are dismissed.
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MAIN APPEAL
Having disposed of the Preliminary Objection of the 3rd respondent, I will now consider the other grounds of the appeal on merit. The issues distilled by the parties are virtually the same except in some modification of words. I shall adopt the appellant’s sole issue in the resolution of the appeal. The sole issue is:
Whether the learned trial judge was wrong when he held that the prosecution has not discharged the burden placed on them to prove the offences beyond reasonable doubt and consequently discharged and acquitted the Respondents of all offences charged?
Counsel for the appellant argued that the trial Judge erred in holding that the prosecution had failed to proof the offences against the respondents beyond reasonable doubt and consequently discharged and acquitted them of all the charges. That the appellant alleged that the respondents committed a criminal offence by forging documents which were presented to the Corporate Affairs Commission (CAC) as genuine and thereby deriving benefits from such act contrary to Section 473 of the Criminal Code Cap C38 LFN 2004. He relied on the cases of Odiawa v. FRN (2008) ALL FWLR part 439 page 436 and F.R.N. v. Ibrahim (2015) 4 NWLR part
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1450 page 411 @ page 430 paras F-G. In the instant case, the prosecution, through PW1 established that the letter wherein PW1 was purported to have relinquished his shares and other documents signed on his behalf in order to increase and re-allot the share capital of BN Ceramics Industry Nigeria Ltd., to the respondents were all forged as he did not sign those documents or give his consent for them either expressly or impliedly and he was not aware of the act until it has been done. That the evidence of PW1 was corroborated by other witnesses. That the trial Court despite holding that the letters Exhibit AH6 (1-17) were forged to relinquishing the shares of the nominal complainant to the respondent misdirected himself to the effect that the identity of who is the master mind of the forgery was not proved. Counsel reproduced the finding of the trial Court at page 826 of the record of appeal and submitted that under the criminal jurisprudence, the burden of proving the guilt of an accused person lies on the prosecution and never shifts. Where the prosecution has discharged that burden, in some cases, the pendulum shifts to the accused. He cited the case of
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Igabele v. State (2006) 25 NSCQR page 321 at 350. However, proof beyond reasonable doubt as required of the prosecution does not mean proof beyond all shadow of doubt. He cited the cases of Nwaturuocha v. State (2011) 6 NCC page 462 at page 480; Osuagwu v. State (2013) 5 NWLR part 1347 page 360 at 386 and State v. Buhari (2019) 10 NWLR part 1681 page 583 at 596
Furthermore, that the prosecution can discharge its burden of proof beyond reasonable doubt in three ways:
(a) By evidence of confession;
(b) Circumstantial evidence;
(c) By evidence of eye witnesses.
He referred this Court to the cases of Onitilo v. State (2018) NWLR part 1603 page 239 at 257 and State v. Buhari (2019) 10 NWLR part 1681 page 583 at 596.
Counsel submitted that the 1st and 2nd respondents at the trial Court under cross-examination admitted they had a meeting wherein, the acts complained of were decided and carried on to instruct the 3rd respondent in furtherance of the decision to carry on with the Act (pages 740-743 and 747-750 in the record of appeal). The outcome of the meeting was the increase in the share capital of the company as well as the shareholding
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status of the nominal complainant and relinquishing them to the respondents using Exhibit AH6 (1-17) which was proved to be forged, is sufficient to ground the Respondents on the counts of forgery of documents and utilizing same. He relied on the case of F.R.N v. Ibrahim (supra) and Odiawa v. FRN (supra). That the falsified documents in issue were made under the instruction and knowledge of the respondents established the ingredients of the offence of forgery and the evidence before the Court was enough for the trial Court to have convicted the respondents as charged. The burden immediately shifts to the respondents to disprove the established facts that the falsified documents in issue were not made under the direction and with the knowledge of the them. It was not in dispute that they filed the falsified documents with the Corporate Affairs Commission and sought to legitimize their illegal acts based on the falsified documents. This is an appropriate case where circumstantial evidence will apply. He relied on the cases of Iliyasu v. State (2015) 11 NWLR (Pt. 1469) 26 @ 61 paras C-F. The Supreme Court stated that even in the absence of direct linking evidence
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such as which the trial Court sought from the prosecution witnesses, a conviction may be based on circumstantial evidence as held inIliyasu v. State (supra) @ 61-62 paras G-B.
Counsel stated further, that it is trite law that the entity recognized as a company is an artificial creation of the law and all its activities are carried on by persons who control and manage the entity. He relied on Section 63(1) CAMA.
That the 1st and 2nd respondents testified as DW1 & DW2 and stated that there was a meeting and that at the meeting, the decision to increase the share capital of the company was reached and that the nominal complainant was not at the meeting at pages 740-743 and 747-750 of the record of appeal. During cross-examination, the 1st & 2nd respondents testified that they instructed the 3rd Respondent to file the necessary document to implement the decision reached at the meeting for which the notice was not given to the nominal complainant nor was he present which is contrary to Section 266(2) and (3) of the Companies and Allied Matters Act. The falsified documents were prepared and filed by the 3rd Respondents (company secretary)
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pursuant to the instruction of the 1st and 2nd Respondents. From the facts above, it is believed that the 1st 2nd and 3rd Respondents were responsible for the falsification of the documents in issue, this is enough to ground the conviction of the 1st to 3rd Respondent. He relied on the cases of Mohammed v. State (2007) 11 NWLR (Pt.1045) 303 at 325 para A-B and Abokokuyanro v. State (2016) 9 NWLR (Pt.1518) 520 @ 541 para B-C.
Counsel pointed out that the law is trite that the one who procures the commission of an offence is also guilty of committing the offence itself. He relied on Section 7 of the Criminal Code, Laws of the Federation 2004, Cap C38. The decision of the trial Court that those who presented the documents to CAC i.e. Mr. Ugolo Johnson who is still at large and Mr Roy ought to be before the Court and such failure is fatal to the case is perverse and occasioned a miscarriage of justice at page 826 of the record of Appeal. That the failure to call a witness which will be fatal to the case of the prosecution, such a witness must be a vital witness and a vital witness is not toga to be worn by whoever the accused persons wishes. He relied on the case of Ikumonihan v. State (2018) 14 NWLR (Pt.1640) page 456 @ 487 paras B-C.
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Furthermore, that parties to a crime who may be charged with actually committing the offence are not only those who carried out the act by their physical participation but those who procured such act by their instructions and rectification as their contribution to the success of the Act. He cited the case of Kolawole v. State (2015) 8 NWLR (Pt.1460) 134 @ pp 164-165, paras E-B. The Companies and Allied Matters Act makes it mandatory that the presenter of a documents to the Corporate Affairs Commission must be an accredited agent of the Commission and such a presenter is a neutral third party contracted by an agent of the company and provided with the necessary documents and information required to be presented to the Corporate Affairs Commission. The presenter is not the originator of the documents presented, rather, he is merely contracted to take the documents to the Commission for a fee. The contention of the respondents that Ugolo Johnson and Roy are vital witnesses is a total misconception which has misdirected the trial Court in arriving at its decision. He relied on the
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cases of Ali v. State (2015) 10 NWLR (Pt. 1466) page 1 @ 27 para B; Ikumonihan v. State (supra) @ 487 paras C-F and C.G.C (NIG) Ltd v. Atovure (supra) at page 19 para F-G.
Counsel finally submitted that the evidence required to prove the case of the prosecution was properly placed before the Court. He relied on the case of Tajudeen Iliyasu v. State (2014) 15 NWLR (Pt.1430) 245 @ 263 para B-C. The evidence before the Court shows that the forgery and use of the forged documents marked as Exhibits AH6(1-17) as genuine was proved at the trial Court and that the document was procured on the instructions of the Respondents. Counsel urged this Court to set aside the judgment of the trial Court, which discharged and acquitted the Respondents, and convict them on Counts 1, 2, 3, 4, & 5 and sentence the Respondents accordingly.
In response, counsel for the 1st respondent canvassed that the 1st respondent was charged alongside the 2nd and 3rd respondents with forgery under Section 473 of the Criminal Code Act. That when an accused has been charged of forgery, it is essential for the prosecution to prove:
a. The intention of the accused to defraud
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- Lack of lawful authority or excuse
c. Making, signing or execution of a document or writing by the accused for, or in the name, or on account of, another person, whether by procuration or otherwise.
That the case the appellant sought to appeal against is different from the case presented at the lower Court, that circumstantial evidence allegedly points to the acts of the 1st and 2nd respondents as masterminds of the forgery through the 3rd respondent as a “procured agent” at page 12 para 3.28 of the appellant’s brief of argument. He cited the case of Itodo v. State (2020) 1 NWLR (Pt.1704) 1 @ 29 paras B-D. Under cross-examination, that the 1st respondent, as DW1 stated that a meeting took place and only 4 of the directors of the company were in the extra-ordinary General Meeting of the company which held on the 20th of May, 2015, wherein the share capital of the company was increased (page 741 of the record of appeal) and also the 2nd respondent corroborated the testimony of the 1st respondent and stated that the nominal complainant was invited to the meeting by phone call and email. That this corroborates the testimony of PW1 that the mode
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of his communication with the respondents when he was in china was “most times by telephone”. Therefore, that having established that the nominal complainant was invited to the meeting, DW1 and DW2 stated that four directors attended the meeting, the requisite quorum for forming a meeting under Section 232 of the companies and Allied Matters Act was formed. The four directors present at the meeting have the power to increase the share capital of the company, notwithstanding the absence of PW1 (the nominal complainant).
Furthermore, that the resolution passed at the meeting held on the 20th of May, 2015 at page 126 of the Record of Appeal which was signed by the 1st and 2nd Respondents only and there is nowhere in the resolution the signature of the nominal complainant appeared at page 74 of the record of appeal). That under cross-examination, PW1 admitted that he did not know who forged his signature. That the law is settled that evidence procured under cross-examination is as potent and valid as evidence procured from examination-in-chief. He cited the case of Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 @ 611, paras A-B. PW1 and posited that the appellant
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failed to prove an essential element of the offence of forgery i.e. that the 1st respondent forged his signature or procured someone to do it and that the unreliability of his evidence was exposed during cross-examination. He cited the case of Okoro v. State (1988) 3 N.S.C.C. 275 @ 295 paras 29-33. Similarly, that PW2 also failed to link the 1st respondent with the allegations of forgery and the evidence is more damaging to the appellant’s case than that of PW1, that while PW1 stated that he doesn’t know who forged his signature, PW2 stated that the hand writing analysis revealed that the Respondents were not the ones that signed the document complained of.
Counsel stated that the law is trite that under Section 68 of the Evidence Act, an expert on hand writing may give his opinion on a disputed signature or writing and such an opinion is admissible in evidence, albeit, the final decision is made by the Judge. He relied on the case of Alake v. State (1991) 7 NWLR (Pt.205) 567 @ 592 paras D. That it is risky for a Court to ignore or wave aside an expert opinion, where such an opinion has not been expunged or controverted. He relied on the case of
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Nicon v. Nze (2004) 15 NWLR (Pt.896) 245. He maintained that the appellant failed to tender evidence that the 1st respondent “procured agents” to forge the signature of the nominal complainant as claimed by counsel of the Appellant in his brief of argument. That there is no trace of evidence that points to the procurement of anyone to forge the signature of the nominal complainant He relied on the following cases Ahmed v. The State (2001) 18 NWLR (Pt.746) 622; Nweke v. The State (2001) 4 NWLR (Pt.704) 588; Udo Ebre & 2 Ors v. The State (2001) 12 NWLR (Pt.728) 617 and Amadi v. State (1993) 8 NWLR (Pt.314) 644 @ 664 para A.
Counsel submitted that the 1st respondent cannot be convicted based on speculation. That the circumstances relied upon by the appellant do not point to the 1st respondent as the perpetrators of the offence of forgery and that the appellant’s allegation is founded on mere suspicion. That from the foregoing, the appellant did not prove his case beyond reasonable doubt. That the circumstantial evidence in the case is not sufficient to link the 1st respondent with the offence of forgery of the nominal complainants’ signature. He cited the
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case of Asia v. State (2018) LPELR-44861. He referred this Court to the oral testimony of the 3rd respondent (DW3) and his statement which was made at the Police Station at pages 754 and 29-31 of the record of appeal respectively. He opined that the investigation conducted by the IPO is unsatisfactory to warrant the charge against the 1st respondent let alone secure a conviction in Court. It is a trite law that it is unsafe to convict where the investigation is shoddy. He cited the cases of Jammal v State (1999) 12 NWLR (Pt.632) 582 @ 599 paras G-H and Al-mustapha v. State (2013) 17 NWLR (Pt.1383) 350 @ 411 paras C-E.
Counsel pointed out that the prosecution is not bound to call a particular witness in order to discharge the burden of proof placed on him, the law is very emphatic that where there exists a vital point in issue and there witnesses whose evidence would settle that issue one way or the other, theses witnesses ought to be called. He relied on the case of Alake v. State (1992) 9 NWLR (Pt.265) 260 @ 273 para E and State v. Nnolim (1994) 5 NWLR (Pt.345) 394 @ 406 paras C-D. He maintained that Roy and Ugolo Johnson were vital witness in this case.
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That their testimony would have established who signed the documents and failure of the prosecution to call them is fatal to the appellants’ case. That the failure to tender Roy’s statement during the trial raises the presumption under Section 167(d) of the Evidence Act 2011 that had the statement been tendered, the evidence would have been unfavourable to the prosecution. He cited the case of Ogudo v. State (2011) LPELR-860 SC. That the prosecution must not withhold evidence and failure to tender the statement made by Roy, leaves this Court with no option but to invoke the presumption under Section 167(d) of the Evidence Act against the Appellant. He cited the case of Ogudo v. State (supra) and Eyop v. State (2012) LPELR-20210 (CA).
On whether the appellant failed to prove that the respondent conspired to forge the company resolution of BN Ceramics Industry Nigeria Ltd., counsel reproduced count one of the charge and its elements, and submitted that beyond the mere fact of agreement, that the necessary mens rea of the crime is established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part
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in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of action was intended to achieve. Nothing less will suffice; nothing more is required. He relied on the following cases Ismail v. FRN (2020) 2 NWLR (Pt. 1707) 110, Paras D-F, State v. Gwangwan (2015) 13 NWLR (Pt.1477) 600 @ 622 paras D-F; Okafor v. State (2016) 4 NWLR (Pt.1502) 248 @ 276 paras B-C and Friday v. State (2016) 16 NWLR (Pt. 1538) 242 @ 259 paras G-H. That the appellant, having failed to prove the ingredients of the substantive offence of forgery, he cannot maintain a charge of conspiracy against the respondents. He cited the cases of Erim v. State (1994) 5 NWLR (Pt.346) 522 @ 534-535 and Amadi v. State (1993) 8 NWLR (Pt.314) 644 @ 677 paras A-C. Therefore, that none of the exceptions in the cases above cited exist in the present case and none of the Respondents have admitted to the offence of conspiracy and there is no other evidence to sustain the conspiracy count. Counsel urged this Court to so hold and affirm the decision of the lower Court.
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Counsel for the 2nd respondent canvassed under two subheadings on whether the appellant failed to prove the offences of forgery beyond reasonable doubt by establishing all the ingredients of the offence. Counsel submitted under this, that the law is settled that the prosecution must prove its case beyond reasonable doubt as provided for under Section 135 (1) of the Evidence Act, 2011(as amended). That proof beyond reasonable doubt connotes sufficiency of evidence and depends on the quality and cogency of evidence, He relied on the casesRonke v. F.R.N. (2020) 2 NWLR (Pt.1709) 574 @ 597 paras C-D; Nsofor v. State (2004) 18 NWLR (Pt.905) 292 @ 305 paras B. That it is a constitutional requirement for every person who is charged with a criminal offence will be presumed innocent until proved guilty as provided under Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) 1999. That the burden of proving the guilt of an accused person remains on the prosecution until the end of the case and never shifts. He cited the case of Alonge v. I.G.P (1959) 4 F.S.C.203 @204. That the law does not impose a duty on the accused person to purge himself of guilt. He cited the cases of Saidu v. State (1982) 4 SC 41 and Obue v. State (1976) 2 SC 141. That the
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Law imposes an obligation on the prosecution to prove the accused person’s guilt beyond reasonable doubt. Hence, where the ingredients of the offence are ascertainable, the prosecution must prove beyond reasonable doubt that the acts of the accused person or persons fall within the ambit of the offence.
Counsel submitted that the burden on the prosecution is only discharged in a criminal trial when the essential ingredients of the offence has been established with compelling and conclusive evidence and the accused person is unable to bring himself within the defences or exceptions allowed under the law.
He relied on the case of Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589 @ 616 para B; Ibrahim v. State (2015) 11 NWLR (Pt.1469) 164 @ 197 paras C-D and Alabi v. State (1993) 7 NWLR (Pt.307) 511 @ 523 para F. In the instant case, the 2nd respondent was charged alongside with the 1st and 2nd respondents with forgery under Section 473 of the Criminal Code Act. That to secure a conviction of the 2nd respondent for the offence of forgery which he was charged with under counts 2, 3 and 4 of the amended charged at page 53-54 of the record of appeal, that
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the prosecution has a duty to prove all the ingredients of the offence of forgery with compelling and conclusive evidence. Thus, where an accused has been charged for forgery, it is essential for the prosecution to prove the ingredients.
Furthermore, that the offence which the appellant has appealed against is different from the case presented at the lower Court that the circumstantial evidence allegedly points to the act of the 1st and 2nd respondents as the masterminds of the forgery through the 3rd respondent as a “procured agent” at page 12 paragraph 3.28 of the appellant’s brief of argument. He cited the case of Itodo v. State (2020) 1 NWLR (Pt.1704) 1 @ 29 paras B-D.
Counsel submitted that the appellant failed to show that the evidence of the prosecution made a complete unbroken chain of evidence that would unequivocally lead to the conclusion of the guilt of the 2nd respondent and because of the nature of circumstantial evidence, the Courts have reiterated severally that for circumstantial evidence to ground a conviction, it must irresistibly point to the guilt of accused. He cited the case of State v. Njoku (2010) 1 NWLR (Pt.1175) 243 @ 283
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paras E-G and Oladotun v. State (2010) 15 NWLR (Pt.1217) 490 @ 500 para E. He maintained that circumstantial evidence must be narrowly examined so that where there is a possible interpretation in favour of an accused, the prosecution would have failed to prove the guilt of the accused beyond reasonable doubt. He cited the case of Ahmed v. Nigerian Army (2011) 1 NWLR (Pt.1227) 89 @ 115 paras B-C. Counsel submitted that in addition to an intention to defraud and lack of lawful authority or excuse, it is vital to the case of the prosecution to prove that the forgery of the signature of the nominal complainant was as a result of the act of the 2nd Respondent. That if the evidence led fails to meet these essential requirements, the prosecution would have failed to discharge the constitutional burden of establishing the guilt of the respondents beyond reasonable doubt. He relied on the case of Idowu v. State (1998) 11 NWLR (Pt.574) 354 @ 363 LPELR-1427 SC and Al-Haleel v. FRN (2015) LPELR-25902 CA. That the law is settled that evidence procured under cross-examination is as potent and valid as evidence procured from examination-in-chief.
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He cited the case of Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 @ 611 paras A-B. PW1 failed to prove an essential element of the offence of forgery i.e. that the 2nd respondent forged his signature or procured someone to do it and the unreliability of his evidence was exposed under cross-examination. He relied on the case of Okoro v. State (1988) 3 N.S.C.C. 275 @ 295 paras 29-33. Similarly, that the PW2 also failed to link the 2nd respondent with the allegations of forgery at page 697-698 of the record of appeal.
He maintained that the 2nd respondent cannot be convicted based on speculation that she procured agents to forge the nominal complainant’s signature. The circumstance relied upon by the Appellant do not equivocally point to the 2nd respondent as the perpetrators of the offence of forgery and that appellant’s allegation is founded on mere suspicion. The circumstantial evidence in this case is not sufficient to link the 2nd respondent with the offence of forgery of the nominal complainant’s signature. He cited the case of Asia v. State (2018) LPELR-44861. The law is trite that it is unsafe to convict where the investigation is shoddy and the investigation conducted by the IPO
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is unsatisfactory to warrant the charge against the 2nd Respondent let alone secure a conviction in Court. He relied on the case ofJammal v. State (1999) 12 NWLR (Pt.632) 582 @ 599 paras G-H and Al-Mustapha v. State (2013) 17 NWLR (Pt.1383) 350 @ 411 paras C-E.
Furthermore, the prosecution is not bound to call a particular witness in order to discharge the burden of proof placed on him, the law is emphatic that where there exists a vital point in issue and there are witnesses whose evidence would settle that issue one way or the other, these witnesses ought to be called. He cited the case ofAlake v. State (1992) 9 NWLR (Pt.265) 260 @ 273 paras E and State v. Nnolim (1994) 5 NWLR (Pt.345) 394 @ 406 paras C-D. That Roy and Ugholo Johnson are vital witnesses in this case. Their testimony would have established who signed the documents that were submitted to CAC and failure of the prosecution to call them as witnesses is fatal to the appellants’ case. The failure to tender Roy’s statement during the trial raises the presumption under Section 167(d) of the Evidence Act 2011 that, had the statement been tendered, the evidence would have been unfavourable to the
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prosecution. He cited case of Ogudo v. State (2011) LPELR-860 SC. That the prosecution must not withhold evidence and failure of the prosecution to tender the statement made by Roy leaves this Court with no other option but to invoke the presumption under Section 167(d) of the Evidence Act against the appellant and relied on the following cases Ogudo v. State (2011) LPELR-860 SC and Eyop v. State (2012) LPELR-20210 CA.
Counsel finally submitted that the prosecution failed to prove the facts alleged and failed to lead any scintilla of evidence in the proof of the ingredients of forgery. Also, that the prosecution failed in its duty to discharge the burden of proof which the law vest upon him and urged this Court to so hold and affirm the decision of the lower Court.
Secondly, on whether the appellant failed to prove that the respondents conspired to forge the company resolution of BN ceramics Industry Nigeria Ltd, counsel adopted the 1st respondent’s submission and posited that none of the exceptions exist in the present case. Also, that none of the respondents admitted to the offence of conspiracy and there is no evidence to sustain the conspiracy count. He urged this Court to so hold and affirm the decision of the lower Court.
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Counsel for the 3rd respondent while arguing his own sole issue opted to argued same under three subheadings: First, that the appellant failed to prove the offences of forgery beyond reasonable doubt by establishing all the ingredients of the offence. Under this, counsel submitted that law is settled the prosecution must prove its case beyond reasonable doubt as provided for by Section 135(1) of the Evidence Act, 2011 (as amended). That proof beyond reasonable doubt connotes sufficiency of evidence and depends on the quality and cogency of evidence. He cited Ronke v. FRN (2020) 2 NWLR (Pt. 1709) 574 @ 597, Para. C-D, Nsofor v. State (2004) 18 NWLR (Pt. 905) 292 @ 305, Para. B. That it is a constitutional requirement that every person who is charged with a criminal offence will be presumed innocent until proven guilty. He relied on Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) 1999. That the burden of proving the guilt of an accused person remains on the prosecution until the end of the case and never shifts. That the law does not impose a duty
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on the accused person to purge himself of guilty. He referred the Court to Saidu v. State (1982) 4 SC 41, Obue v. The State (1976) 2 SC 141, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589 @ 616, Para. B, Ibrahim v. State (2015) 11 NWLR (Pt. 1469) 164 @ 197, Paras. C – D and Alabi v. State (1993) 7 NWLR (Pt. 307) 511 @ 523, Para. F. He posited that the appellant failed to show that the evidence of the prosecution made a complete unbroken chain of evidence that would unequivocally lead to the conclusion of the guilt of the 3rd respondent. Counsel reproduced counts charges 2, 3, 4 and submitted that the prosecution failed in its duty to discharge the burden which the law vest upon it. He urged the Court to so hold.
Secondly, that the appellant failed to prove that the respondents conspired to forge the company resolution of BN Ceramic Industry Nigeria Ltd. Counsel reproduced count one and submitted that beyond the mere fact of agreement, that the necessary mens rea of the crime is established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some party in the agreed course of conduct in furtherance of the
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criminal purpose which the agreed course of action was intended to achieve. That nothing less will suffice, nothing more is required. He relied on State v. Gwangwan (2015) 13 NWLR (Pt. 1477) 600 @ 622 Paras D-F, Okafor v. State (2016) 4 NWLR (Pt. 1502) 248 @ 276 Paras. B-C and Friday v. State (2016) NWLR (Pt. 1538) 242 @ 259 Paras. G-H. He maintained that the appellant having failed to prove the ingredients of the substantive offence of forgery, that the he cannot maintain a charge of conspiracy against the 3rd respondent. He cited Erim v. State (1994) 5 NWLR (pt. 346) 522 @ 534-535. He urged the Court to so hold.
Lastly, that the appellant failed to prove that the 3rd respondent fraudulently uttered false documents. Under this heading, counsel reproduced count five of the charge and submitted that the same ingredients of proof applicable to the offence of forgery are also applicable to the offence of uttering He relied on Jubril v. FRN (2018) LPELR- 43993 (CA). That the offence of uttering has not been proved beyond reasonable doubt. He urged the Court to so hold and dismiss this appeal and affirm the judgment of the trial Court.
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We have, in an in-depth manner considered the argument of the parties in this appeal.
The crux of the prosecution is on the allegation that the 1st and 2nd Respondents through the 3rd Respondent procured forged documents to increase the Share Capital of BN Ceramics Ltd., and submitted same at the CAC to increase their share status without the consent of the nominal complaint Zhang Zing Chairman of the Company and to the benefit of the 1st and 2nd Respondents. This act was done by the respondents without any authorisation of the nominal complainant or lawful authority.
In the judgment of the lower Court, the learned trial judge put together his assessment of the evidence of the prosecution witnesses. At page 825, the learned trial judge summed up as follows:
From the totality of the evidence given in this case, most especially the testimony of PW1, PW2 and PW5 none of their testimony has been able to link the Defendants with any act of forgery. Even the testimony of the handwriting experts and the reports of their findings as manifested in Exhibits HA4, HA5, HA11 and HA13 did not link the Defendants to the document, the signature of the PW1 said to have been
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forged. PW1 who is the nominal complainant testified in his evidence in chief that his signature was forged and when asked during cross examination who forged his signature, said he does not know. PW2 who led the investigation also testified that the specimen handwriting and signatures of the Defendants and that of the nominal complainant PW1 were sent for forensic examination with the said Exhibit AH6 (1-7) and reply received was that the Defendants were not the ones that signed the letter relinquishing the shares of the nominal complainant which forms part of Exhibit AH6 (1-17). PW5 who is the forensic document examiner and a handwriting expert also corroborated the testimony of PW2. All these witnesses called by the Prosecution only confirmed that the said letter of relinquishment of shares which forms part of Exhibit AH6 (1-17) was forged but could not tell the Court who the mastermind is. DW1 and DW2 testified that a meeting was duly held by the Directors of the company increasing it shares from 10 million share capital to 20 million share capital and that the company secretary DW3 who was not present at the meeting but based far away in Lagos was
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contacted to file the necessary corporate changes reached at the company meeting at the Corporate Affairs Commission. (Underlining mine for emphasis).
From the evidence before the trial Court, it was not in doubt that the documents in issue were forged. The key question which fundamentally ought to be resolved by the lower Court is, who is the mastermind of the forgery? The prosecution was seriously alleging that the respondents in the instant appeal were the mastermind. Evidence abound that the end result of the forgery was to convey to the respondents some advantages of the PW1 alleged relinquishing of his own allotted shares to give the respondents an enlarged share capital of the company and the alteration of the Shareholding status of the respondents. The decision of this Court in Odiawa v. FRN (supra), was cited for the consideration of the trial Court. In that case of Odiawa v. FRN; this Court succinctly held that once documents containing false pretences are found in the possession or constructive possession of a person who may not necessarily be the author, the offence is complete. In the instant case, if the lower Court carefully looked into the
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case, it would have been able to pick the mastermind of the complaint in this appeal. From the evidence before the Court, the nominal complainant PW1, was not a stranger to the Respondent. They were all shareholders in the company in issue. A quick view of the evidence put in by the prosecution will show clearly that the mastermind could be those benefiting from the documents.
From the foregoing, it is our firm belief that the lower Court failed midway in its evaluation of the evidence before it in this case.
The sole issue is therefore, resolved in favour of the appellant. This appeal has merit. It is hereby allowed. The judgment of the lower Court is set aside. The case is hereby remitted back to the trial Court for a retrial before another Judge of that Court.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance, the Judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.
I agree with the reasoning and conclusion reached and abide by the orders made therein.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH. I agree with the reasoning, conclusion and orders therein.
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Appearances:
T. LOUGH, ESQ. For Appellant(s)
T. KEHINDE, SAN, with him, FAITH SAIKI, ESQ. – for 1st Respondent
ELOKA J. OKOYE, ESQ., with him, N. MARK, ESQ. – for 2nd Respondent
O. S. KEHINDE, ESQ. – for 3rd Respondent For Respondent(s)
