AUGUSTINE IHEANYI GODWIN OBIOMA v. THE STATE
(2013)LCN/6096(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2013
CA/OW/347/2011
RATIO
CRIMINAL LAW AND PROCEDURE: FORGERY: DEFINITION
By Section 465 of the Criminal Code Vol. 2, Cap. 30 Laws of Eastern Nigeria 1963 applicable in Abia State of Nigeria, a person who makes a false document or writing knowing it to be false and with intent that it may in any way be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may, in the belief that it is genuine be induced to do or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing.PER JOHN INYANG OKORO, J.C.A.
FORGERY: ESSENTIAL INGREDIENTS TO BE PROVED
In a charge of forgery, an essential ingredient to be proved is that the accused person forged the document in question. See MICHAEL ALAKE vs. THE STATE (1992) 9 NWLR (Pt.265) 260 and IDOWU vs. STATE (1998) 11 NWLR (Pt.574) 354.
In the instant case, the appellant was not only charged with forgery of eleven cheque leaves, he was also charged with uttering the forged cheques and stealing the money through them. In such a situation, such as presents itself in the instant case, an accused person Cannot be convicted in the absence of evidence that:
(a) He was involved in the cashment of the cheques;
(b) He instigated anyone to cash the cheques;
(c) He had any dealing with the beneficiaries’ names in the cheques for payment.PER JOHN INYANG OKORO, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE: IN THE ABSENCE OF DIRECT EVIDENCE, CIRCUMSTANTIAL EVIDENCE IS ADMISSIBLE TO SUPPORT A CONVICTION
It is trite that where direct evidence is not available, circumstantial evidence which is cogent and pointing irresistibly and unequivocally as well as compelling at the accused is admissible to support a conviction. No accused person can be convicted on mere suspicion as suspicion no matter how strong can establish by itself only the guilt of an accused person. See ALANO vs. A.G. BENDEL STATE (1988) 2 NWLR (Pt.75) 201; UKORAH vs. THE STATE (1977) 4 SC 167; ABIEKE & ANOR. vs THE STATE (1975) 9-11 SC.97.PER JOHN INYANG OKORO, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE: WHEN CIRCUMSTANTIAL EVIDENCE WILL LEAD TO A CONVICTION
The circumstantial evidence that can lead to a conviction must be such that is sufficient to link the accused with the offence or offences charged and also point unmistakably and irresistibly, to the commission of the offences by the accused. See OMOGODO vs. STATE (181) 5 SC. 5; LORI vs. STATE (1980) 8-11 SC- 81; YONGO vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; IDOWU vs. STATE (SUPRA); ALAKE vs. STATE (supra); BABALOLA vs. STATE (1989) 4 NWLR (Pt.115) 264. PER JOHN INYANG OKORO, J.C.A.
EVIDENCE: WHEN AN ACCUSED GIVES EVIDENCE AGAINST A CO-ACCUSED, HE SHALL NOT BE CONSIDERED AN ACCOMPLICE
It is now well settled that where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused, the accused who gives such evidence shall not be considered an accomplice. His evidence therefore would not require corroboration. See ADEDOYIN vs. STATE (1996) 3 NWLR (Pt.435) 169; BADMUS vs. C.O.P. (1948) 12 WACA 361. Thus, a trial court is bound to be cautious of relying on the evidence of a co-accused without any corroboration in convicting an accused person. In such a situation, the trial court has to warn itself that it is unsafe to convict on the uncorroborated evidence of a co-accused. See OKORO vs. STATE (1988) 5 NWLR (Pt. 94) 255; IDAHOSA vs. QUEEN (1965) NMLR 85; MBENU vs. STATE (1988) 3 NWLR (Pt.84) 615.PER JOHN INYANG OKORO, J.C.A.
CRIMINAL LAW: WHETHER AN ACCUSED CAN BE CONVICTED ON THE EVIDENCE OF A CO-ACCUSED
It is not the law that an accused person cannot be convicted on the evidence of a co-accused but that no one should be convicted only on the uncorroborated evidence of a co-accused. See OZALU vs. THE STATE (1990) 1 NWLR (Pt.124) 92; GBADAMOSI vs. STATE (1992) 9 NWLR (Pt.266) 465; KABO vs. STATE (1994) 2 NWLR (Pt.325) 143; OGUNYE vs. STATE (supra).PER JOHN INYANG OKORO, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
AUGUSTINE IHEANYI GODWIN OBIOMA Appellant(s)
AND
THE STATE Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court holden at Umuahia in charge No. HU/17C/2003 delivered on 21st July, 2010 by T. U. Uzokwe, J wherein the learned trial Judge found the appellant guilty of a 24 count charge of forgery, stealing and uttering. In all, counts 1 and 2 are of stealing, counts 3-13 are of forgery while counts 14-24 are uttering.
The prosecution called five witnesses and tendered several exhibits. The appellant testified in his defence.
The gist of the prosecution’s case against the appellant is that between the months of November, 1999 and 2002, the appellant who was the Director of Finance and Supply at Broadcasting Corporation of Abia State (BCA) Umuahia, forged a total of 11 cheques and knowingly and fraudulently uttered the forged cheques which he cashed at Hallmark Bank Plc Aba, Umuahia and Umuchukwu Community Bank Umuahia and stole a total amount cashed to the tune of N2,087,950.00.
Sometime in February, 2002, the PW2, while carrying out reconciliation exercise of the cash book with bank balance, together, with one Ngozi Okereke came across the sum of N726,350.00 in favour of Emaxy Ventures debited to BCA account and discovered that other cheque leaves and counterfoils were missing and were used to debit BCA account. As a result, he decided to make further findings. On 5/3/2002, while PW2 was still compiling his findings the appellant who was the Director of Finance at BCA at that time handed over to him a cheque book containing a cheque he had signed and when he went through the cheque booklet, he discovered that cheque leaf No. 0592 had been detached from the inside including the counterfoil but the preceding No. 0591 had not been used. He became apprehensive and mentioned the discovery to the Deputy Director of Finance (the PW1 herein). At that point the PW1 and PW2 went to the Director General of the Establishment and made a report.
The PW3, a police Sgt investigated the matter which was reported through a petition to the police by the Director General of BCA. The appellant and other accused persons now standing trial at the Magistrates court were arrested. During investigation, the PW3 discovered that the person who actually cashed Exh.5 (cheque written in the name of Nwankwo ON) was Okezie Ezebunwa who testified as PW4. PW4 worked in the Accounts Department of BCA. Further investigation also revealed that Emaxy Ventures account at Umuchukwu Community Bank was opened by one A. I. E. Obioma and that the documents for the opening of the account was brought to the Bank by PW4 at the instruction of the appellant. The PW4 said that it was during police investigation that he heard about Emaxy Ventures. That he did not know how the account of Emaxy Ventures was opened at Umuchukwu community Bank even though he knew the Bank. It was during police interrogation that he was shown a certain document and he remembered a certain day the appellant sent him to a certain boy at that Community Bank to collect a certain document from the boy which he collected and brought back to him after which he gave him back the document which he returned to the boy. It was during investigation that he discovered and understood that the said document was used to open an account in the name of Emaxy Ventures at the Community Bank.
One Raphael Onwuzungbo, a police Inspector and a handwriting and document examiner attached to the Forensic Science Laboratory, Force CID Annex Alagbon Close, Ikoyi, Lagos, analyzed the various documents tendered vis-a-vis the specimen signatures and writings of the appellant and that of the Director General of BCA. Analysis conducted showed that the signature on the eleven cheques used to defraud BCA matched the signature and writing of the appellant.
At the close of the prosecution’s case, the appellant denied the offences and testified on his own behalf. He denied having anything to do with Emary Ventures, withdrawals from BCA account, the cheques used in defrauding BCA and that he never sent anybody including PW4, Okezie Ezebunwa to the Bank to cash cheque for him. At the end, the learned trial judge found the appellant guilty as charged in the 24 counts and convicted him accordingly. The appellant was sentenced to 3 years imprisonment or a fine of N10,000.00 on each of the 24 counts.
Dissatisfied with the judgment of the learned trial judge, the appellant by a Notice and Grounds of Appeal dated 28th July, 2010, filed an appeal against the said decision on 29th July, 2010. The said Notice has two grounds of appeal. Subsequently, on 23rd December, 2011, the appellant filed six additional grounds of appeal numbered 3-8. In all, eight grounds of appeal were filed out of which the learned counsel for the appellant formulated five issues for the determination of this appeal.
On 15th January, 2012, when this appeal came up for hearing, both the learned Senior Counsel for the appellant Dr. A. Nwaiwu, SAN leading other counsel and the learned Attorney General of Abia State also leading other counsel, adopted their briefs. In the brief settled by Dr. Amaeclu Nwaiwu, SAN, five issues have been distilled on behalf of the appellant. The five issues are as follows:
“1. Whether the prosecution proved the charge against the accused person beyond reasonable doubt.
2. Whether the circumstantial evidence by which the learned trial judge based his findings and conviction is sufficient enough to ground a conviction against the accused person.
3. Whether the evidence of PW4 being a co-accused is sufficient enough in law to ground a conviction against the accused Person.
4. Whether the contradictions and inconsistencies in the evidence of the prosecution witnesses especially PW3 is sufficient in law to ground a conviction against the accused person.
5. Whether the learned trial judge properly and dispassionately considered the case of the appellant, ascribe probative value, make proper inference based on the dispassionate consideration of the issues raised by the defence before the court below made its findings and conclusion to the prejudice of the appellant and resulting in submission (sic) miscarriage of justice.”
The respondent has however distilled four issues for the determination of this appeal. In the brief signed by A. U. Onukwube Esq., Director of Public Prosecution (DPP) Abia State, the four issues are couched thus:
“1. Whether considering the entire evidence adduced before the lower court, that court was right in convicting the appellant as charged.
2. Whether the lower court can rightly accept and rely on the testimony of PW4, a co-accused to the appellant.
3. Whether there are material contradictions in the evidence of prosecution witnesses and in particular, the evidence of PW3.
4. Whether the lower court failed to consider the defence raised by the accused/appellant.”
I shall determine this appeal based on the five issues submitted by the appellant.
The first issue is whether the prosecution proved the charge against the appellant beyond reasonable doubt. It is the submission of the learned Senior Counsel for the appellant that the prosecution failed to prove the counts of forgery, stealing and uttering against the appellant. According to him, by section 36(5) of the 1999 Constitution the burden is on the prosecution to prove beyond reasonable doubt the guilt of the accused person, relying on the cases of BABUGA vs. STATE (1996) 7 NWLR (Pt.460) 279 and MORKA vs. STATE (1998) 2 NWLR (Pt.537) 294.
On forgery, the learned Silk referred to Section 465 of the Criminal Code Vol. 2 Cap. 30 Laws of Eastern Nigeria as applicable in Abia State on its meaning and submitted that to prove forgery, the prosecution must show that the accused person forged the document and that the person whose signature is alleged to be forged must be called as a witness, referring to the cases of ALAKE vs. STATE (1992) 9 NWLR (pt.265) 260 and IDOWU v. STATE (1998) 11 NWLR (Pt.574) 354. Learned Senior Counsel contended that, none of the prosecution witnesses testified that he saw the appellant forge the cheque or that he benefited from the proceeds of the forged cheque. Moreso, that the Director General of BCA whose signature was forged was never called as a witness.
The learned Senior Counsel submitted further that it is implicit from the evidence adduced before the lower court that there was no direct evidence that the appellant forged any of the cheques. That it is an essential ingredient to be proved beyond reasonable doubt in a charge of forgery that the accused forged the document in question. That the court below was in error when he convicted the appellant without such evidence citing ALAKE vs. STATE (supra) to buttress the submission.
Learned Senior Counsel drew the attention of this court to the fact that PW5, the handwriting analyst did not conclude his secondary school education and also failed to tender the chart he used to draw his conclusion. That such failure is fatal to the prosecution’s case. He relies on T. A. Aguda: Law and Practice Relating to Evidence in Nigeria (1990) London, sweet & Maxwell P. 114 paragraphs 9-30. According to learned Silk, since the prosecution failed to prove who made the forged documents this court should hold that the court below was wrong in convicting the appellant on the counts of forgery. On the counts of stealing, learned Counsel referred to the ingredients of the offence of stealing as enunciated in ONAGORUWA v. STATE (1993) 7 NWLR (Pt.303) 409 and CHIANUGO vs. STATE (2002) 2 NWLR (Pt.750) 225 at 235 and submitted that the prosecution failed woefully to prove the essential ingredients of stealing against the appellant. He contended that the prosecution witnesses, apart from stating that some cheques were used to defraud BCA of her money, they could not link the appellant with the theft of the money. That the only witness whose evidence linked the appellant with the stealing is PW4 but that his evidence is fraught with inconsistencies, showing a desperate attempt to implicate the appellant for failing to give him another salary advance when he had not paid back an earlier one. Also, that the PW4 stated in Exh. J, that he was a photographer while in Exh. L, he retracted some of the material contents of Exh. J which was made and signed by him under caution. According to learned Senior Counsel, these inconsistencies and retractions show that the statements of the PW4 are nothing but after-thought and cannot be relied upon by any reasonable court. It was his further contention that whereas the name used in opening the “account on Emaxy Ventures is Nze A. I. E. Obinna the same of the appellant is A. I. E. Obioma and that the IPO failed to go to Corporate Affairs Commission to verify the actual owner of Emaxy Ventures. That the IPO merely speculated as to who owns the account. Speculation, according to him is outside the duty of the court. He relies on the case of BAMGBEGBIN vs. ORIARE (2009) ALL FWLR (pt.484) 1460 at 1480 and UWAGBOE vs. STATE (2008) ALL FWLR (Pt.419) 425.
Finally on the issue of stealing he submitted that where an accused person is one of those who had access to the property stolen, evidence led must point irresistibly to the fact that he alone and not other person stole the property. He urged this court to hold that the prosecution failed to prove that it was the appellant alone who stole the money. He relies on the case of AMADI & ORS. vs. THE STATE (1993) 8 NWLR (Pt.313) 644.
On the issue of uttering, learned Senior Counsel submitted that the major ingredient in the offence of uttering which must be proved beyond reasonable doubt by the prosecution is “guilty knowledge” that the document is a forged one and if the accused utters the forged document, the guilty knowledge is presumed. He refers to the case of UKPE vs. THE STATE (2001) 18 WRN 84 at 107. According to him, the prosecution must prove that the appellant was involved in the cashment of the cheques, or that he instigated someone to cash the cheques and that he had any dealing with the beneficiaries named in the cheque for payment. Referring to the evidence of the appellant as DW1, the learned silk submitted that he has denied ever sending the PW4 or any person to Umuchukwu Community Bank to cash any money on his behalf nor cash any of the questioned cheques. Moreso, that some of the exhibits particularly 14 and 15 show that the front page is photocopy which makes statements about their genuineness. Apart from that, learned counsel referred to Section 97 of the Evidence Act and submitted that the condition precedent for the admissibility of the two exhibits was not met. In all, he opined that from the totality of the evidence led by the prosecution on this count, it only shows suspicion and that in law suspicion no matter how high cannot ground a conviction, citing the case of IDOWU vs. STATE (1998) 11 NWLR (Pt.574) 365.
The learned Counsel for the respondent (The State) after a detailed summary of the evidence led at the trial, submitted that the evidence as led, if accepted and believed by the court will suffice as proof beyond reasonable doubt of the guilt of the appellant of all the charges with which he was charged.
On the none calling of the Director General of BCA to testify, he submitted that Exh. 10 is the statement of the said Director General in which he denied signing any of the forged cheques i.e. Exhibits O-Y. Also that the handwriting analyst, the PW5 confirmed that the Director General did not sign Exhibits O-Y.
In response to the argument that failure to tender the chart used by PW5 was fatal to the prosecution’s case, learned counsel for the respondent submitted that apart from the fact that PW5 tendered Exhibit 24 showing a detailed report of his findings, he did not use any chart but video spectoral comparator in conducting his examination. He also contended that although PW5 did not complete his secondary education in a school, he sat for and obtained his GCE in 2002 and attended courses within and outside Nigeria in the field of handwriting analysis.
On the contention that the evidence led by the prosecution does not link the appellant with the theft of the money, he submitted and urged this court to believe the testimony of PW4 who testified that he cashed all the forged cheques i.e. Exhibits O-Y and returned the money to the appellant. On why the PW3 did not go to Corporate Affairs Commission to investigate ownership of Emaxy Ventures, he submitted that since PW4 had told the PW3 during investigation that the said company does not exist, there was no need to travel to Abuja for such investigation. Learned Counsel contended further that Exhibits 14 and 15 are originals and there was no foundation needed in order to tender them.
Learned Counsel submitted that either by direct evidence or circumstantial evidence, there was enough evidence to convict the appellant. He urged this court to resolve issue one against the appellant.
By Section 465 of the Criminal Code Vol. 2, Cap. 30 Laws of Eastern Nigeria 1963 applicable in Abia State of Nigeria, a person who makes a false document or writing knowing it to be false and with intent that it may in any way be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may, in the belief that it is genuine be induced to do or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing.
In a charge of forgery, an essential ingredient to be proved is that the accused person forged the document in question. See MICHAEL ALAKE vs. THE STATE (1992) 9 NWLR (Pt.265) 260 and IDOWU vs. STATE (1998) 11 NWLR (Pt.574) 354.
In the instant case, the appellant was not only charged with forgery of eleven cheque leaves, he was also charged with uttering the forged cheques and stealing the money through them. In such a situation, such as presents itself in the instant case, an accused person Cannot be convicted in the absence of evidence that:
(a) He was involved in the cashment of the cheques;
(b) He instigated anyone to cash the cheques;
(c) He had any dealing with the beneficiaries’ names in the cheques for payment.
There is no doubt that the Broadcasting Corporation of Abia State (BCA) was defrauded by the forgery of eleven cheques written in different names wherein the cheques were cashed and the various sums totaling N2,087,950.00 was stolen. The genesis of the discovery is as stated by PW2 in his evidence. According to him, he was the cashier at BCA when the appellant herein was the Director of Finance. As he was carrying out reconciliation exercise of the cash book in February, 2002, he came across the sum of N726,350.00 in favour of Emaxy Ventures debited to BCA account when the said Emaxy Ventures was not a creditor of BCA. He also discovered that cheque leaves and counterfoils were missing and were used to debit BCA account. He then decided to make further findings. While the findings were on, and specifically on 5/3/02, the appellant, who was Director of Finance and Supply gave the PW2 a cheque book containing a cheque he (the appellant) had signed and he discovered that cheque leaf No.0592 and its counterfoil were detached when cheque leaf No. 0591 was still intact and not yet used. At that stage, the PW2 notified the PW1 who at that time was the Deputy Director of Finance and Supply. Clearly, when the said cheque leaf was missing, the cheque booklet was in the custody of the appellant. He instantly became the prime suspect. During investigation, he PW4 made statement to the police and also testified that he was an errand boy to the appellant, collected and returned the forms used in opening the account of Emaxy Ventures at Umuchukwu Community Bank Nigeria. Ltd., Umuahia. That was where the sum of N726,350.00 was paid into which also gave up the unwholesome deal. The PW4 also testified that he cashed all the eleven cheques i.e. Exhibits “O – Y” on the instruction of the appellant and returned the various sums to him. The appellant has however denied this. Again the PW5, the handwriting analyst testified to the effect that analysis conducted by him showed that the appellant signed all the eleven cheques and that the signatures of the Director General of BCA on the cheques were forged.
It is clear that the cheque book was in the custody of the appellant and immediately he gave it to PW2, he discovered the missing leaflet which blew the lid open. Again, the fraudulent intent is clearly shown by the careful removal of the cheque leaflets and the counterfoil so as to conceal the crime. As was held by the Apex Court in ALAKE vs. THE STATE (supra), the mere fact that an accused person charged with the forgery of a document knew that such a document, the custody of which he had by official responsibility, had become missing and he did not complain does not in itself, amount to proof that he forged the document. The learned Senior Counsel for the appellant had argued that nobody saw the appellant forge the cheque or when he tore off any of the eleven leaflets. But all the pieces of evidence from when the discovery of the missing leaflets was made immediately he gave the cheque book to the PW2, the evidence of PW4 that the appellant sent him to cash all the cheques, the opening of Emaxy Ventures account, the account of BCA was debited and the evidence of PW5 the signature/handwriting analyst that the appellant signed those cheques, show and point irresistibly to the fact that it was the appellant and no one else removed those cheque leaves and caused them to be uttered through PW4 after he had written and forged the signature of the Director General on it.
I am aware that in a charge of forgery of signature, the person whose signature is alleged to have been forged is a vital and material Witness. The Supreme Court in ALAKE v. THE STATE (supra) held that failure of the prosecution to call such a person as a witness is fatal to its case. That it is not sufficient that the evidence of a handwriting analyst called as a witness showed that the accused person authored the disputed signature. Also that it is the evidence of the person whose signature is alleged to have been forged that settles the point in issue once and for all. See WAMBAI vs. KANONA (1965) NWLR 15. In the instant case, the Director General of BCA whose signature was forged was not called as a witness. However, he made a statement which was tendered as Exhibit 10 without any objection. In it, he denied signing any of those cheques. Cases are decided on their peculiar facts. Where there are compelling evidence linking an accused person with the forgery of a document, say, as in this case where the proceeds of the forgery were paid to the appellant, it is my view that the failure to call the Director General of BCA, without more, will not be fatal to the prosecution case. The opening of Emaxy ventures account and the subsequent debiting of BCA account to the tune of N:726,350.00 in favour of Emaxy ventures through one of the forged cheques point irresistibly to the appellant and no one else.
In this case, there is both direct and circumstantial evidence against the appellant. The direct evidence is the one given by PW4 that the appellant sent him to the community Bank to collect the forms used in opening Emaxy Ventures account and also returned the forms to the Bank. It is this account which N726,350.00 was credited from BCA account. The PW4 also said he cashed all those cheques and returned the money to the appellant. The circumstantial evidence against the appellant is that he was the Chief Custodian of the cheque booklet from which the forged cheques were torn out and used to defraud BCA. Secondly, it was the appellant, PW2 and one Ngozi Okereke who had access to the cheques. Both the PW2 and Ngozi discovered the fraud and reported it immediately to their boss. It stands to reason that if any of them was involved, they would not have reported same, after all, the fraud had been there since about 1999 to 2002. This leaves the appellant as the likely culprit.
Thirdly, the PW2 discovered the removal of cheque leaf No. 0592 immediately the appellant handed over the booklet to him, pointing to the appellant as the one behind the removals. Also, the evidence of PW5 is to the effect that the signature of the appellant on the cheques Exhibits O – Y are appellant’s genuine signature while that allegedly to be that of the Director General of BCA are not. This point to the appellant as the forger of the Director General’s signature after signing his column.
It is trite that where direct evidence is not available, circumstantial evidence which is cogent and pointing irresistibly and unequivocally as well as compelling at the accused is admissible to support a conviction. No accused person can be convicted on mere suspicion as suspicion no matter how strong can establish by itself only the guilt of an accused person. See ALANO vs. A.G. BENDEL STATE (1988) 2 NWLR (Pt.75) 201; UKORAH vs. THE STATE (1977) 4 SC 167; ABIEKE & ANOR. vs THE STATE (1975) 9-11 SC.97.
The learned Senior Counsel for the appellant had argued that the appellant was convicted by the court below based on circumstantial evidence only. With due respect to the learned Silk, that is not the case here as there was direct evidence linking the appellant with the offence as I had categolized above. Be that as it may, assuming that the appellant was convicted on circumstantial evidence only, it will still suffice. The circumstantial evidence that can lead to a conviction must be such that is sufficient to link the accused with the offence or offences charged and also point unmistakably and irresistibly, to the commission of the offences by the accused. See OMOGODO vs. STATE (181) 5 SC. 5; LORI vs. STATE (1980) 8-11 SC- 81; YONGO vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; IDOWU vs. STATE (SUPRA); ALAKE vs. STATE (supra); BABALOLA vs. STATE (1989) 4 NWLR (Pt.115) 264. I strongly hold the view that all the circumstances surrounding the commission of the offences in this case point irresistibly to the appellant. The learned trial judge however, held which I agree with him that the appellant was not convicted on circumstantial evidence alone. Except any court would choose not to believe the evidence as assembled by the prosecution against the appellant which is very unlikely, else, the evidence adduced against the appellant is cogent, genuine and believable.
It was argued that the name on the back of Exhibit ‘R’ the cheque used to pay Emaxy Ventures is Nze A. I. E. Obinna while the name of the appellant is Sir A. I. E. Obioma. What a co-incidence. I do not intend to speculate here but the similarity in the initials and surname speaks volumes. Yes the IPO (PW3) did not go to Abuja to investigate the owners of Emaxy Ventures. The PW4 had stated that the name was made up by the appellant for the purpose of siphoning money from BCA. I agree with the learned counsel for the respondent that there was no need to go to Abuja as nothing could be found in that regard.
On the argument that the PW5 did not complete secondary education, there is abundant evidence that he later sat for and obtained his GCE and also attended practical courses both in Nigeria and abroad which put him as a professional in his own field. Many Professors and professionals today including some lawyers never saw the four walls of the secondary school but are self made. So the fact that PW5 did not complete his secondary education within the four walls of a secondary school does not make him a less or incompetent professional.
On the failure of the PW5 to tender the chart used, it is clear that he never testified that he used a chart. Rather, he said that he used video spectoral comparator in conducting his examination. He thereafter reduced his findings into a report which he tendered as Exh. 24. This report was corroborated by the report of his colleague (now deceased) which report was admitted as Exhibit 25.
I have meticulously examined Exhibits 14 and 15 and there is nothing on their faces to show that they are photocopies. Thus all the submission on that aspect go to no issue. It is my view that the prosecution led enough evidence which linked the appellant with the offences charged and I agree with the court below in this regard. In resolving issue I, I have unwittingly resolved issue 2 also which the appellant robed into his issue one. I shall not therefore give another consideration to issue 2. At it is, issues 1 and 2 are hereby resolved against the appellant.
The next issue is whether the evidence of PW4 being a co-accused is sufficient enough to ground the conviction of the appellant. It is the submission of the learned senior counsel for the appellant on this issue that in view of the fact that the PW4 was a co-accused with the appellant at the Magistrates court before the appellant opted to be tried at the High court, his evidence ought to be treated with considerable caution and that the final court should have been wary in reaching a verdict on the uncorroborated evidence of such witness. He relies on the cases of IDAHOSA & ANOR vs. QUEEN (1965) NMLR 85 at 87 and OGUNYE vs. STATE (1999) 5 NWLR (Pt.604) 548.
In response, the learned counsel for the respondent submitted that it is not the law that a court cannot convict an accused person based on the evidence of a co-accused. Rather, the court is only to treat the evidence of a co-accused with caution and require corroboration accordingly. He submitted that the evidence of PW1, PW2, PW3 and PW5 corroborated the evidence of PW4. He relies on the cases of ADEDOYIN vs. THE STATE (1996) 3 NWLR (Pt.435) 169 at 179; YONGO vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; MALAYI vs. THE STATE (1968) ALL NLR 177.
It is now well settled that where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused, the accused who gives such evidence shall not be considered an accomplice. His evidence therefore would not require corroboration. See ADEDOYIN vs. STATE (1996) 3 NWLR (Pt.435) 169; BADMUS vs. C.O.P. (1948) 12 WACA 361. Thus, a trial court is bound to be cautious of relying on the evidence of a co-accused without any corroboration in convicting an accused person. In such a situation, the trial court has to warn itself that it is unsafe to convict on the uncorroborated evidence of a co-accused. See OKORO vs. STATE (1988) 5 NWLR (Pt. 94) 255; IDAHOSA vs. QUEEN (1965) NMLR 85; MBENU vs. STATE (1988) 3 NWLR (Pt.84) 615.
It is not the law that an accused person cannot be convicted on the evidence of a co-accused but that no one should be convicted only on the uncorroborated evidence of a co-accused. See OZALU vs. THE STATE (1990) 1 NWLR (Pt.124) 92; GBADAMOSI vs. STATE (1992) 9 NWLR (Pt.266) 465; KABO vs. STATE (1994) 2 NWLR (Pt.325) 143; OGUNYE vs. STATE (supra).
The main contention of the appellant in this issue is that he was wrongly convicted of the offences of forgery, stealing and uttering based only on the evidence of a co-accused. One thing I wish to say quickly is that the PW4 herein did not give evidence on his behalf at the court below but testified as a prosecution witness. Also, the appellant herein stood trial alone and not together with the PW4 at the court below. I however admit, as evidence show, that the PW4 is standing trial at the Magistrate Court. Whatever has happened to the charge at the Magistrate Court is not in evidence. In this case, PW4 was a prosecution witness and did not give evidence in his defence. Assuming that I am wrong and he is to be taken as a co-accused, was the appellant convicted on the evidence of PW4 alone? I do not think so. There were more than enough corroborative evidence which authenticated the evidence of PW4. First, the PW2 first discovered the missing cheque leaves immediately the appellant handed over the cheque book to him being that he had earlier discovered that the account of BCA had been debited in favour of Emaxy Ventures which was not a creditor to BCA. He promptly reported the matter. PW3 i.e. the IPO investigated this matter and discovered how Emaxy Ventures account with a Community Bank was opened. A whooping sum of N726,350.00 was paid into that account through one of the forged cheques. PW4 said it was the appellant as his boss who sent him to collect the forms which was used to open the account. PW5 the handwriting analyst confirmed it was the appellant who signed all the eleven cheques. The appellant agreed that one of the cheques was not signed by the Director General of BCA because it was “dragged”. All these pieces of evidence i.e. of PW2, PW3 and PW5 point irresistibly to the appellant and they clearly corroborate the evidence of PW4 assuming that he was a co-accused. It is my view that the court below did not convict the appellant based on the evidence of PW4 alone. This is what the court said on page 197 of the record:
“I am of the view that apart from the circumstantial evidence adduced against the accused in this case, there is also direct evidence from some of the prosecution witnesses.
This goes to show that the appellant was convicted both on direct and circumstantial evidence. I hold the view that even if the evidence of PW4 is expunged, the appellant could still have been convicted. This issue as it stands is resolved against the appellant. The argument of learned senior counsel on page 27 of their brief has nothing to do with this issue. That is why the said argument was discountenanced by me.
Issue No. 4 is whether the contradictions and inconsistencies in the evidence of the prosecution witnesses especially PW3 is sufficient in law to ground a conviction against the accused person. The first contradiction, according to the learned senior counsel for the appellant is that whereas PW3 said that Emaxy ventures belongs to the appellant, he later said that the signature card of Emaxy Ventures account does not bear the signature of the appellant. He submitted also that the internal auditors of BCA who audited BCA account for the years 2000 and 2001 did not point out that the cheques were serially incorrect. Learned Counsel also pointed out that the PW3 did not go to Corporate Affairs Commission and yet he concluded that Emaxy Ventures belongs to the appellant. Again he submitted that PW4 who gave evidence that it was the appellant who sent him to Umuchukwu Community Bank to open Emaxy Ventures account also said that the signature card does not bear the photograph of the appellant. Finally, he pointed out that the PW5 who tendered Exhibit 25 was not a co-author of the document and did not tender the chart analysis in evidence. He cited the cases of NASAMU vs. THE STATE (1979) 6-9 SC. 153; IKENSON vs. THE STATE (1989) 3 NWLR (Pt.110) 455 at 466; STATE vs. NNOLIM (1994) 5 NWLR (Pt.345) 394.
In his reply, the learned Counsel for the respondent submitted that there are no contradictions in the evidence of the prosecution either between the witnesses or of PW3 within himself. That the argument of the appellant in issue 4 did not disclose any contradiction in the evidence of the prosecution witnesses.
Without much ado, I agree with the learned Counsel for the respondent that the appellant failed to point out even one contradictory evidence given by the prosecution witnesses. All the issues raised by the learned Senior Counsel for the appellant are far from being contradictions. They are issues which he had earlier raised when he argued the first issue in this appeal which I had already determined. I do not believe that learned Senior Counsel does not know what contradictory evidence means. But for the avoidance of doubt, where one witness called by the prosecution or defence gives evidence which contradicts or is opposed to the evidence of another witness or where the said witness gives two sets of evidence which are opposed to each other on a material point, such evidence is said to be contradictory. Put differently, a piece of evidence is contradictory to another when is asserts or affirms the opposite of what the other assets and not necessarily when there are some minor discrepancies in, say, details between them. Contradiction between two pieces of evidence goes rather to the essential of something being or not being at the same time, whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. See IKE vs. OFOKAYA (1992) 9 NWLR (pt.263) 42 and OGOALA vs. STATE (1991) 2 NWLR (pt.175) 509 at 525. It is a well settled principle of law that only contradictions in respect of a material fact that would make the Court to doubt the evidence. See IKENSON vs. STATE (supra); STATE vs. NNOLIM (1994) 5 NLWR (Pt.345) 394. In the instant case there are no contradictions in the evidence of prosecution witnesses, at least the learned Senior Counsel did not point out any. As it stands, the issue does not avail the appellant at all.
The 5th and final issue is whether the learned trial judge properly and dispassionately considered the case of the appellant, ascribe probative value, make proper inference based on the dispassionate consideration of the issues raised by the defence before the court below made its findings and conclusion to the prejudice of the appellant and resulting in substantial miscarriage of justice. Learned Counsel submitted that the learned trial judge failed to do so. According to him, the appellant gave copious evidence both in his evidence-in-chief and under cross examination denying the alleged charge of forgery, uttering and stealing and various acts as alleged by the prosecution witnesses but that the court below failed to consider them.
The learned Counsel for the respondent however opined that the court below dispassionately considered the evidence of the appellant. That the mere fact that the learned trial judge accepted the evidence of the prosecution over and above that of the appellant does not mean that the court did not consider his defence.
It is trite that the duty of evaluating evidence and ascribing probative value to it belongs to the learned trial judge who had the opportunity of seeing and watching the demeanor of witnesses before him. The evaluation of evidence of a witness should precede the testing of his credibility. Once there is proper evaluation of evidence by a trial court, an appellate court has no business interfering unless the decision is perverse and has occasioned a miscarriage of justice. See NWACHUKWU vs. NWOSU (1990) 7 NWLR (Pt.160) 72; BALOGUN vs. AGBOOLA (1974) I ALL NLR (Pt.2) 66; MADUEKWE vs. OKOROAFOR (1992) 9 NWLR (Pt.263) 69; JACOB POPOOLA & 2 ORS. VS. JOSEPH OYEYEMI ADEYEMO & ANOR. (1992) 8 NWLR (Pt.257) 1.
It is rather unfair to the learned trial judge to say that he failed to evaluate the evidence of the appellant. The Record of Appeal which contains the judgment of the lower court shows that the learned trial judge after a detailed and very elaborate summation of the evidence of both the appellant and the respondent started by saying as follows:
“I have carefully considered the evidence adduced on both sides. I have equally very carefully perused the exhibits tendered especially the specimen signatures and handwritings on all the cheques involved and I shall start by saying that the offence of stealing of the BCA money totaling N=2. (sic) was proved because all the witnesses including the accused person admitted that the said amount cashed with a total of 11 cheques were not cashed by any of BCA creditors. The pertinent question then is who stole the various sums of money since accused denied the offence.”
The learned trial judge then went ahead to evaluate the totality of evidence led before him and at the end preferred and believed the evidence of the prosecution witnesses. The fact that the court preferred the evidence of the prosecution above that of the appellant does not amount to failure to evaluate evidence. I have not seen any piece of evidence which was led by the appellant which was not considered. Having evaluated and ascribed probative value to the evidence led before him, this court has no business substituting his views on it. The appellant has failed, again to show that the learned trial judge failed to consider his defence. Accordingly, this issue is resolved against the appellant.
Having resolved the five issues against the appellant, it is my well considered view that this appeal lacks merit and ought to be dismissed. It is accordingly dismissed by me. I affirm the judgment of the Abia State High Court sitting in Umuahia in charge No.HU/17C/2003 delivered on 21st July, 2010.
UWANI MUSA ABBA AJI, J.C.A.: I have read in advance the lead judgment of my learned brother, J. I. Okoro, JCA, just delivered and I agree entirely with the reasoning and conclusions reached thereat that the appeal is devoid of any merit.
The Appellant who was the Director of Finance and supply at the Broadcasting Corporation of Abia State (BCA), Umuahia forged and cashed a total of 11 cheques of the Corporation and on the whole stole from the Corporation the total sum of N2,087,950.00.
It is in evidence on record that the Appellant and the Director General of the Corporation are the only two signatories to BCA account and that the Appellant signs every cheque for payment before sending same to the Director General for his signature. Every cheque is written on the instruction of the Appellant. It is the Appellant who keeps the cheque booklets in use unless he delegates to the cashier. The Appellant also keeps all used and unused cheque booklets in his custody. Indeed there was no explanation from the Appellant as to how the cheque in his custody and which can only be written on his instruction and which must be signed first by him, came to be written on and sent to the Director General who signed. He could not also explain as to how these cheques got to the payees and got cashed with the cheque booklets still in his custody.
PW5, the handwriting expert testifies that Exhibits ‘O’ to ‘Y’, the 11 cheques were not signed by the Director General but carried with it the signature of the Appellant. The Appellant admitted that the counterfoil of the used cheque books Exhibits ’17’ to ’23’ were missing. I therefore agree with the Learned trial Judge that the above circumstances leads to the irresistible conclusion that the Appellant is pricy to the stealing with the forged and uttering cheques.
It is also in evidence borne out from the records that PW4 in his evidence admitted that the Appellant gave him Exhibits ‘O’ to ‘Y’ and he cashed them and handed over the proceeds to the Appellant. PW 4 also testified that it was the Appellant that sent him to obtain the forms with which the account was opened at the Umuchukwu Community Bank and also sent him back with the account opening documents and directed him to a particular staff of the Community Bank who received the documents from him and opened the account. It was into this account that Exhibit ‘R’ the cheque for N726,350:00 was paid in and cashed.
It is a correct statement of the Law that it is at the discretion of the prosecution to call the witnesses it considers relevant to prove its case, even though where a vital and material witness is not called such a failure could be fatal to the prosecution case. In the instant case, the failure to call the Director General, BCA, is not fatal in that he had already made a statement to the police that the signatures on Exhibits ‘O’ to ‘Y’ were not signed by him and the evidence of PW 5, the handwriting analyst corroborated this fact that the Exhibit ‘O’ to ‘Y’ had signature of the Appellant therein and not that of the Director General, BCA.
In the instant case, the circumstances relied upon by the Learned trial Judge to convict the Appellant is not only positive, direct and unequivocal but pointed unmistakably and irresistibly to the commission of the offence by the Appellant. The cases of Alake vs. State (1992) 9 NWLR (PT 265) 260; and Idowu vs. State (1998) II NWLR (PT.514) 354, heavily relied upon by the Learned Senior Counsel for the Appellant are clearly distinguishable with the facts and circumstances of this case. They do not therefore apply.
It is for this reason and the more detailed reasons in the judgment of my Learned brother, J. I. Okoro, JCA that I found the appeal as lacking in merit I also dismiss the appeal and affirm the judgment of the lower court delivered on the 21st day of July, 2010.
HARUNA SIMON TSAMMANI: J.C.A.: I had the advantage of reading before now, the judgment delivered by my Learned brother; JOHN INYANG OKORO; JCA. My Learned brother admirably summarized the facts of this case, and adequately considered all the issue that came up for determination in this appeal. I agree entirely with his reasoning and conclusions thereon.
The Appellant was alleged to have forged and also knowingly and fraudulently uttered eleven (11) Cheques, which were then honoured by Hallmark Bank Plc, Aba, Umuahia and Umuchukwu Community Bank, Umuahia respectively. That by presenting or uttering those Cheques, the Appellant stole a total sum of two million, eighty seven thousand, nine hundred and fifty naira (N2,087,950.00) from the Account of Broadcasting Corporation of Abia State (BCA). The Appellant, as is expected, denied committing the offence. He was however convicted by the Court below, and sentenced to three (3) years imprisonment or pay a fine of ten thousand naira (N10,000.00) in each of the 24 counts on the charge sheet.
In the appeal before us, it has been argued by Learned Senior Counsel for the Appellant that, the prosecution failed to prove the case of forgery as charged, because the person whose signature was alleged to be forged was not called as a witness. He based his argument on the cases of ALAKE v STATE (1992) 9 NWLR (Pt .265) p.260 and IDOWU v STATE (1998) 11 NWLR (pt. 574) p.354. The main issue for consideration in ALAKE v STATE (supra) was whether bearing in mind that there was no direct evidence that the Appellant committed any of the offences with which he was charged and convicted, there was sufficient circumstantial evidence to warrant his conviction. The Supreme Court then held that, the evidence of the persons whose signatures were alleged to have been forged were vital and material witnesses, and that failure to call them to confirm ordering their signatures on the Cheques involved was fatal to the prosecution’s case, notwithstanding the evidence of the hand writing analyst. In the case of IDOWU v STATE (supra) wherein the Supreme Court also cited the case of ALAKE v. STATE (supra), there was no iota of evidence that the Appellant forged the documents in question. There was neither direct nor circumstantial evidence against the Appellant. Most importantly, the Appellant and his co-accused who were alleged to have forged the documents in question testified at the trial, wherein the Appellant denied signing any of the documents.
It is trite law that no two cases are the same. They may be similar but certainly not the same. In the case of ALAKE v. STATE (supra) there was neither direct nor circumstantial evidence that the Appellant therein forged the documents, accordingly the need to call the persons whose signatures were alleged to have been forged was imperative. In IDOWU v STATE (supra) there was no evidence that the Appellant forged any document or made the alterations in the documents alleged to be forged especially when he denied making the alterations. In the instant case, there was sufficient direct and circumstantial evidence from P.W.1, P.W.2, P.W.3 and P.W.4 that the Appellant forged the Cheques. I do not think that the Supreme Court laid it as a rule in the case cited above that, in all cases, the person whose signature was alleged to be forged must be called as a witness. It can be safely reasoned from those decisions that, where there is enough or sufficient circumstantial evidence showing that the Appellant forged the document(s) in question, it would be safe to convict. It is therefore my view that from the evidence on record, the trial Court rightly found that there was sufficient direct and circumstantial evidence to conclude and reasonably infer that the Appellant committed the offences for which he was charged.
It is for the above reason and the detailed reasons admirably stated by my Learned brother in the lead judgment, that I also agree that this appeal has no merit and should be dismissed. I accordingly dismiss same. The judgment of the Court below is therefore affirmed.
Appearances
Dr. Amaechi Nwaiwu, SAN with B. N. Meneke (Mrs.), J. C. Uwandu Esq., L. O. Unanwa (Miss), C. R. Onwuegbuchukem (Mrs.), I. C. Achara Esq., and E. C. Okafor Esq.For Appellant
AND
Umeh Kalu Esq. Attorney-General, Abia State with A. U. Onukwube Director of Public Prosecution (DPP), D. Okwun-Kalu Esq., Senior State Counsel and T. M. Omotehinse, Pupil State Counsel for the State.For Respondent
