BULAMA v. STATE
(2022)LCN/16085(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, March 08, 2022
CA/G/82C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
FUGU BULAMA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE OFFENCE OF SURGERY BEING PROVEN BY THE PROSECUTION BEYOND REASONABLE DOUBT
On the commission of the offence of forgery, learned counsel, K. S. Lawan Esq. (Hon. Attorney-General and Commissioner for Justice, Borno State) made extensive submissions on pages 6 – 10 of the brief of argument and urged the Court to hold that the prosecution adduced credible evidence in support of the case against the appellant specifically on the ingredients of the offence of forgery as enunciated in the cases of ODEH VS FRN (2018) LPELR 47370 (CA) PP. 34-36; AMADI VS FRN (2008) 18 NWLR PT. 1119 P 261 @ 277-228 and DAIRO VS FRN (2020) 10 NWLR PT 1733 P 482 (1) 505. Learned counsel went on to submit that, mere possession of a forged document and or issuing same, even if not the maker of it, renders such person guilty of the commission of forgery as held in the case of LAMBERT VS FRN (2021) LPELR – 54672 (CA). That the evidence of prosecution witnesses No. 1 – 4, if taken and considered with the Exhibits admitted by the lower Court, the commission of the offence of forgery has been proved by the prosecution beyond reasonable doubt as required by law. The principles of law espoused in the case of ADAMU VS FRN (2021) LPELR 54598, (CA0 PAGE 52-56, reinforces the adumbration supra. As to what is meant by proving a criminal case beyond reasonable doubt, learned counsel cited and relied on the principles of law propounded by the superior Courts in the case of DAIRO VS FRN (2012) LPELR 43724 (SC) P. 25024, ADENEKAN VS THE STATE OF LAGOS (2021) 1 NWLR PT. 1756 P. 130 0176, and urged that the Court be guided by same, in the determination of the extant appeal.
THE DEFINITION OF THE OFFENCE OF CRIMINAL CONSPIRACY
Firstly, what is the offence of criminal conspiracy? In ADEJOBI VS THE STATE (2011) 12 NWLR PT 1261 P. 347 at 375, the Apex Court, per ADEKEYE, J.S.C had to say:
“Conspiracy is a criminal offence not defined in the criminal or penal code (sic). It is accepted as an agreement of two or more persons to do an act which it is an offence to agree to do. As direct positive evidence of the Pw1 between the conspirator is hardly capable of proof the Court established the offence of conspiracy as matter of inference to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and the meeting of minds need not be physical.”
In UBIERHO VS STATE (2005) 5 NWLR PT 919 P. 644 at 658, the Supreme Court Per KATSINA-ALU, JSC (as he then was) defined conspiracy thus:
“This Court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
In ADELEKE VS STATE (2012) 8 NWLR PT. 1292 P. 122 at 139 this Court per ALAGOA, JCA (as he then was) put it in these words:
“conspiracy has been held to be a meeting of the minds of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means…”
THE DEFINITION OF FORGERY AND THE INTENTIONS IN SUPPORT OF THE FORGERY
In my view, the reasoning and decision taken by the learned judge of the lower Court, supra, cannot be faulted.
Section 363 of the Penal Code defines forgery thus:
“Whoever makes a false document or part of a document, with intent to cause damage or injury to the public or to a person or to support a claim or title or to cause any person to part with property or to enter into an express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery; and a false document made wholly or in part by forgery is called a forged document.”
The offence of forgery as defined in the above mentioned section is committed where a person makes any false document and a document is said to be false if the whole or same material part of the document or writing purports to be made by or on behalf of someone who did not make it or authorize it to be made.
See the cases of FRN VS OKONKWO (2020) LPELR 50755 (CA) P. 35 – 36 and NATHANIEL VS STATE (2019) LPELR – 50326 (CA).
THE CHARGE BEING PROVED BEYOND REASONABLE DOUBT
The evidence of the prosecution witnesses reproduced supra, established all the essential elements of the offence of forgery.
The law is trite;
“where all the essential ingredients of the offence charged have been proved or established by the prosecution, the charge is proved beyond reasonable doubt as enunciated Court in the case of ADAMU VS FRN (2021) LPELR -54598 (CA) PAGES 52-56 PARAS E-E.”
THE REQUIREMENT OF PROVING BEYOND REASONABLE DOUBT TO SECURE CONVICTION
Mohammed JSC (as he then was) expressed the same view in the case of Afolalu v. State (2010) All FWLR (Pt. 528) P. 812 when he said:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before the trial Court, that Court is left with no doubt, that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person benefit of the doubt resulting in his discharge and acquittal: Alonge v. Inspector-General of Police (1959) SCNLR 516; Fatoyinbo v. Attorney – General, Western Nigeria (1966) WNLR 4 and State v. Danjuma (1997) 5 NWLR (506) 512.”
HOW CRIMINAL LIABILITY CAN BE ESTABLISHED
Criminal Liability can be established by direct evidence, confessional statement or circumstantial evidence. See Ali v State (2014) 14 NWLR (pt 1692) 314; Bassey v State (2019) 12 NWLR (pt 1686) 348. In whichever of the three ways stated above, the Prosecution must prove the guilt of the Appellant beyond reasonable doubt. Proof beyond reasonable doubt does not mean beyond all reasonable doubt but rather the proof must be such that there is no doubt material enough on the proof of the ingredient of the offence to sway the Court in favor of the Appellant. This means the proof is such that points to the Appellant as the person that committed the offence. The Apex Court has on several cases defined what will amount to proof beyond reasonable doubt. See Adepoju v State (2018) 15 NWLR (Pt 1641) 103. JUMMAI HANNATU SANKEY, J.C.A
THE SUFFICIENT EVIDENCE ON WARRANTING THE CONVICTION OF THIS COURT
The question now is, whether there is sufficient evidence before the lower Court to warrant the conviction. My lord has adequately presented the position of the law and the evidence required to secure conviction for Conspiracy and Forgery. I will not go into that again except to say that, for Conspiracy, there must be evidence of an agreement between two or more people to do an unlawful act or a lawful act in an unlawful means. See Kareem v State (2021) 17 NWLR (pt 1806) 503; Ushie v State (2018) 11 NWLR (1629) 139. JUMMAI HANNATU SANKEY, J.C.A
THE OFFENCE OF FORGERY AND THE MENS REA
For forgery, the offence is complete when a person knows about or participates in the writing of a document which content is false and was made with the intention to get an advantage from another party. See Duru v FRN (2018) 11 NWLR (pt 1632) 20; Maihaja v Gaidam (2018) 4 NWLR (pt 1610) 454; Dairo v FRN (2020) 10 NWLR (pt 1733) 482. JUMMAI HANNATU SANKEY, J.C.A
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant, Fugu Bulama, and two (2) other persons, were arraigned on a 2 Counts Charge No. BOHC/MG/CR/133/2020, before the High Court of Justice, Maiduguri, Borno State (hereafter referred to as the lower Court) for allegedly committing the offences of conspiracy and forgery which are criminal offences Punishable under Sections 97(1) and 364, respectively, of the Penal Code, Borno State.
THE COUNTS CHARGE
The two (2) Counts Charge is as follows:
1. That you Fugu Bulama ‘M’, Mandu Bulama ‘M’ and Kawu Lawan Kadiri ‘M’ sometime in the months of June 2018, at Upper Sharia Court Damboa sitting at post office Maiduguri, which is within the jurisdiction of this Honourable Court conspired among yourselves and forged Upper Sharia Court Order in case No. CVF/36/2018 and you thereby committed an offence punishable under Section 97 of the Penal Code Laws Cap 102 Laws of Borno State 1994.
2. That you Fugu Bulama ‘M’, Mandu Bulama ‘M’ and Kawu Lawan Kadiri ‘M’ sometime in the months of June 2018, at Upper Sharia Court Damboa sitting at post office Maiduguri, which is within the Jurisdiction of this Honourable Court did commit all illegal act wit; forged Upper Sharia Court Order in case No. CVF/36/2018 and you thereby committed an offence punishable under Section 364 of the Penal Code Laws Cap 102 Laws of Borno State 1994.
Briefly, the facts and or events culminating to the arrest and prosecution of Fugu Bulama, Mandu Bulama and Kawu Lawan Kadiri who were arraigned before the lower Court as the 1st, 2nd and 3rd accused persons, could be summarized thus. The 1st and 2nd accused persons approached Kawu Lawan Kadiri, (the 3rd accused person) to make a document (a warrant of possession) Form 15, which was admitted in evidence before the lower Court as Exhibit B.
The 1st and 2nd accused persons, fraudulently used Exhibit B as genuine to confer title on them in respect of a parcel of land. The matter was reported to the Police. After investigating the matter, the accused persons were arraigned before the lower Court on a two Count charge, alleging the commission of the offences of conspiracy and forgery of a document contrary to the provisions of Section 97(1) and 363 of the Panel Code Law, Cap 102, Laws of Borno State, 1994.
At the trial, the prosecution called 4 witnesses and tendered 7 documents which were admitted in evidence to prove the charge against the appellant and the 2 other accused persons. The appellant testified in his defence. He did not call any witness nor did he tender any exhibit in his defence. Learned counsel to the parties filed written address, which was adopted before the lower Court. On the 3rd day of June 2021, the learned judge of the lower Court delivered his judgment wherein the appellant and the two 2 others, were found guilty, convicted and sentenced to an eight (8) years term of imprisonment each, without any option of fine, on both counts of the Charge; which were to run concurrently. Aggrieved by the conviction and sentence by the lower Court, the appellant filed a notice and grounds of appeal to this Court on the 28th day of June 2021.
The grounds of appeal without the particulars, are thus:
THE GROUNDS OF APPEAL
1. The decision is against the evidence before the Court.
2. The High Court erred in law when it convicted and sentenced the appellant to 8 years imprisonment without option of fine when the alleged offences were not proved beyond reasonable doubt which error has occasioned a serious miscarriage of justice.
3. The High Court erred in law when it convicted and sentenced the appellant to 8 years imprisonment for forgery when the prosecution had failed to producing the original document from which the purported forged document emanated and without calling the person whose signature was used and the appellant is not a party in the case leading to the alleged offence.
4. The High Court erred in law when it convicted and sentenced the appellant based on Exhibit B which is a purported warrant of possession (Form 15) when the appellant is not a party to it which error has occasioned a serious miscarriage of justice.
5. The Honourable judge erred in law in convicting and sentencing the appellant to 8 years imprisonment for conspiracy without the option of fine when the prosecution had not prove its case beyond reasonable doubt.
6. The trial lower Court erred in law by convicting and sentencing the appellant to 8 years imprisonment without the option of fine when the respondent woefully failed to establish the charge of conspiracy and forgery beyond reasonable doubt thereby occasioning a miscarriage of justice.
7. The learned trial judge erred in law when he held that the appellant had confessed to the offences charged thereby occasioning a miscarriage of justice.
The appellant’s brief of argument, settled by M. S Umar Esq, was filed on the 11th day of October, 2021, containing three 3 issues for determination in the appeal on page 2 thereof; which are thus:
1. Whether or not the prosecution had proved the case of forgery against the Appellant beyond reasonable doubt to warrant the lower Court to convict and sentence the appellant to 8 years imprisonment without option of fine (distilled from Ground 1, 2, 3 and 6 of the Grounds of appeal).
2. Whether or not the prosecution had proved the offence of conspiracy against the appellant beyond reasonable doubt to warrant the lower Court convict and sentence the appellant to 8 years imprisonment without the option of fine. (Distilled from Ground 4, 5 and 7 of the Grounds of appeal)
3. Whether or not having regard to the proceedings and the exhibits tendered, there is unequivocal cogent and direct confessional statement by the appellant (Distilled from Ground 8 of the Ground of appeal).
The respondent’s brief of argument which was settled by K. S Lawan, (Hon Attorney-General and Commissioner for Justice) on the 10th of January 2022, out of time, was deemed properly filed and served on the 20th of January 2022, containing a sole issue for determination of the appeal, on page 3 thereof; which is as follows:
WHETHER THE RESPONDENT HAS PROVED THE OFFENCES OF CONSPIRACY AND FORGERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT TO WARRANT THE CONVICTION AND SENTENCE OF THE APPELLANT TO 8 YEARS IMPRISONMENT.
The issues for determination contained in the appellant’s brief of argument are similar if not identical with that contained in the respondent’s brief of argument. This being the case, the said issues are hereunder amalgamated and compressed to a sole Issue for easier consideration and resolution in the final determination of the appeal. This sole issue is thus:
WHETHER THE RESPONDENT HAD ADDUCED COGENT AND CREDIBLE EVIDENCE PROVING THE COMMISSION OF THE OFFENCES OF CONSPIRACY, AND FORGERY, UNDER SECTIONS 97(1) AND 363 OF THE PENAL CODE LAW, BORNO STATE, WARRANTING HIS CONVICTION AND SENTENCE TO EIGHT 8 YEARS IMPRISONMENT WITHOUT OPTION OF FINE BY THE LOWER COURT (GROUNDS 1-8 OF THE NOTICE OF APPEAL FILED ON THE 28-06-2021).
DETERMINATION OF THE APPEAL
On the commission of the offence of criminal conspiracy by the appellant and 2 others, M. S Umar Esq. of learned counsel to the appellant, made elaborate submissions on pages 8 to 10 of the brief of argument, citing and relying on principles of law enunciated in a plethora of decisions of the superior Courts to buttress his contention that, the respondent did not adduce credible evidence proving the commission of the offence of conspiracy by the appellant beyond reasonable doubt as required by law. The cases of Busari Vs State (2015) 5 NWLR PT 1452 P.367; Smart Vs State (2016) LPELR 40827(SC); amongst others, were relied on to reinforce the submissions Supra. Learned counsel further did contend that the respondent failed to adduce evidence from which it could be inferred that the appellant conspired with other persons to commit criminal offence as alleged by the respondent. It is learned counsel’s submission that the respondent did not prove the commission of the offence of conspiracy, therefore, the learned judge to the lower Court erred in law when he convicted the appellant.
On the commission of the offence of forgery by the appellant, learned counsel made submissions on pages 4 to 8 of the brief of argument citing and referring to a litany of decisions of the superior Courts, to buttress his adumbration that the respondent did not adduce cogent and reliable evidence which established the commission of the offence of forging false document by the appellant. It has been further adumbrated that, the person whose signature was forged did not give evidence before the lower Court when such person is a vital witness to the prosecution’s case. That, without the evidence of the vital witness, the commission of the offence of forgery cannot be established. Learned counsel, therefore submitted that, the prosecution did not prove the case against the appellant beyond reasonable doubt. This Court has been urged to hold so, and allow the appeal for lacking in merit.
K. S. LAWAN ESQ, (Hon. Attorney-General and Commissioner of Justice, Borno State) of learned counsel, who settled the respondent’s brief of argument, made elaborate submissions on pages 3 to 12 thereof, citing and relying on principles of law propounded in a plethora of decisions of the Apex Court, and this Court to buttress his contention that, cogent and credible evidence have been adduced by the prosecution proving the commission of the offences of conspiracy and forgery by the appellant and 2 others. Specifically, learned counsel adumbrated that, to establish the commission of the offence of criminal conspiracy, the prosecution must adduce evidence from which it can be inferred that the accused persons acted with the meeting of the minds to do the unlawful act as enumerated in the cases of OKAFOR Vs STATE (2016) 4 NWLR PT 1502 P248 at 267, and BOUWOR Vs STATE (2016) 4 NWLR PT 1502 P. 295 at 309 amongst others.
Submitting further, learned counsel did contend that, in a charge of conspiracy, all that is required is evidence of agreement, direct or inferential, among the accused persons, in proving the commission of the offence or conspiracy. That the conspirators need not have been together or acted together, they can even be only circumstantially linked with the offence committed.
The principles of law espoused in the case of FAMUYIWA vs STATE (2017) LPELR 43836, (5C); JOHN VS STATE (2016) LPELR 40103 (SC) and IBOJI VS STATE (2016) LPELR – 40009 (SC) were cited and relied on to reinforce the adumbrations supra. In conclusion, learned Counsel did urge that the commission of the offence of conspiracy, has been established beyond reasonable doubt by the respondent against the appellant.
On the commission of the offence of forgery, learned counsel, K. S. Lawan Esq. (Hon. Attorney-General and Commissioner for Justice, Borno State) made extensive submissions on pages 6 – 10 of the brief of argument and urged the Court to hold that the prosecution adduced credible evidence in support of the case against the appellant specifically on the ingredients of the offence of forgery as enunciated in the cases of ODEH VS FRN (2018) LPELR 47370 (CA) PP. 34-36; AMADI VS FRN (2008) 18 NWLR PT. 1119 P 261 at 277-228 and DAIRO VS FRN (2020) 10 NWLR PT 1733 P 482 (1) 505. Learned counsel went on to submit that, mere possession of a forged document and or issuing same, even if not the maker of it, renders such person guilty of the commission of forgery as held in the case of LAMBERT VS FRN (2021) LPELR – 54672 (CA). That the evidence of prosecution witnesses No. 1 – 4, if taken and considered with the Exhibits admitted by the lower Court, the commission of the offence of forgery has been proved by the prosecution beyond reasonable doubt as required by law. The principles of law espoused in the case of ADAMU VS FRN (2021) LPELR 54598, (CA0 PAGE 52-56, reinforces the adumbration supra. As to what is meant by proving a criminal case beyond reasonable doubt, learned counsel cited and relied on the principles of law propounded by the superior Courts in the case of DAIRO VS FRN (2012) LPELR 43724 (SC) P. 25024, ADENEKAN VS THE STATE OF LAGOS (2021) 1 NWLR PT. 1756 P. 130 0176, and urged that the Court be guided by same, in the determination of the extant appeal.
On the contention that the lower Court imposed term of sentence without considering any option of payment of fine, learned counsel pointed out that the lower Court had discretion in the matter, which has been exercised judicially and judiciously as provided by the law, applied in the cases of IDAM VS FRN (2020) LPELR – 49564 (SC) PP 13 -14 and EROMOSELE VS FRN (2018) LPELR 43851.
Concluding, learned counsel did submit that the prosecution had adduced cogent and credible evidence proving the commission of the offences of conspiracy and forgery against the appellant, beyond reasonable doubt, urges this Court to dismiss the appeal and affirm the conviction and sentence of the appellant.
Did the respondent (prosecution) adduce credible evidence proving the commission of the offence of conspiracy and forgery under Sections 97(1) and 363 of the Penal Code, Borno State, justifying the conviction and sentence of the appellant by the learned judge of the lower Court?
Firstly, what is the offence of criminal conspiracy? In ADEJOBI VS THE STATE (2011) 12 NWLR PT 1261 P. 347 at 375, the Apex Court, per ADEKEYE, J.S.C had to say:
“Conspiracy is a criminal offence not defined in the criminal or penal code (sic). It is accepted as an agreement of two or more persons to do an act which it is an offence to agree to do. As direct positive evidence of the Pw1 between the conspirator is hardly capable of proof the Court established the offence of conspiracy as matter of inference to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and the meeting of minds need not be physical.”
In UBIERHO VS STATE (2005) 5 NWLR PT 919 P. 644 at 658, the Supreme Court Per KATSINA-ALU, JSC (as he then was) defined conspiracy thus:
“This Court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
In ADELEKE VS STATE (2012) 8 NWLR PT. 1292 P. 122 at 139 this Court per ALAGOA, JCA (as he then was) put it in these words:
“conspiracy has been held to be a meeting of the minds of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means…”
In OBASANJO BELLO VS FRN (2011) 10 NWLR PT. 1256 P. 605 at 626, GALINJE, JCA. (as he then was) said:
“Criminal conspiracy, means,
When two or more persons agree to do or cause to be done.
a. An illegal act; or
b. An act which is not illegal by illegal means; such an agreement is called criminal conspiracy.”
The commission of the offence of criminal conspiracy is often very hard or difficult to establish by direct evidence. Therefore, the Court usually establishes the offence by relying on inference deduced from the criminal acts of the conspirators. The offence of conspiracy is said to be committed when two or more persons agree to do an act through unlawful means. The agreement could be inferred from what each of the conspirators did nor did not do in furtherance of the commission of the offence of conspiracy. The essential ingredient of the offence of conspiracy lies in the bare agreement and association to do an unlawful act which is contrary to or forbidden by law whether that act be criminal or not, and whether or not the accused person had knowledge of its unlawfulness. It is therefore open to a trial Court to infer from the facts of doing the acts towards a common intention and a common purpose. This is so because the crime of conspiracy is usually designed or plotted with utmost secrecy. The law therefore recognizes the difficulty in proving such offence by adducing direct evidence. The offence of criminal conspiracy is therefore said to have seen proved when there is credible evidence that two or more persons agreed to do or cause to be done (i) an illegal act: or (ii) an act which is lawful by unlawful means. See OBASANJO BELLO VS F.R.N (2011) 10 NWLR PT. 1256 P. 605 at 626; AJE & ANOR. VS STATE (2006) 8 NWLR PT. 982 P. 345 at 359 – 60; ADEJOBI VS STATE (2011) 12 NWLR PT. 1261 P. 347 ANDYAKUBU VS F.R.N(2006) 14 NWLR PT. 1160 P. 151.
On page 9 of the appellant‘s brief of argument, M. S. Umar Esq of learned counsel to the appellant, submitted as follows:
“It is further submitted with respect, for the appellant that the facts of this appeal as can be gleaned from the record there was nowhere it can be inferred from the evidence led that there was conspiracy to commit an offence hence the charge of conspiracy is not made out against the appellant.”
On page 4 of the respondent’s brief of argument, learned counsel adumbrated thus:
“It is in evidence that, the 1st and 2nd convicts induced the appellant with the sum of N5000 thereby facilitated the processing and procurement of Exhibit B (warrant of possession), a false document purportedly conferring title over a disputed land to the detriment of Pw1, while judgment as not delivered. My lords considering the circumstances of the case and the conduct of the appellant with the other convicts, the inevitable conclusion to be drawn is that they all acted in concert towards actualizing a common end which is to produce Exhibit B knowing that same is a forged document”.
Learned counsel went further to submit on page 5 of the said brief of argument thus:
“In a charge of conspiracy, all that is required is evidence of agreement among the parties, which could be expressed or implied. Conspirators need not be seen together before conspiracy can be established, the conspirators can be circumstantially linked with the conspiracy”.
The respondent (prosecution) called four (4) witnesses whose evidence had been reproduced on pages 25 to 52 of the printed record of appeal. The appellant called 3 witnesses and tendered Exhibits “A and B”.
On pages 51 -52 of the printed record of appeal, the learned judge of the lower Court, after a careful consideration of the evidence before him arrived at his decision thus:
“The offence of conspiracy can always be inferred from the circumstances of each case and things said or done by the conspirators in reference to common intention is sufficient proof of common intention. It is apparent from the evidence of Pw1, Dw1, Dw2, and Dw3 that the said Upper Sharia Court restrained them from farming on the land during the pendency of the action but that despite the Court order the 1st and 2nd accused caused people to farm on the land in dispute. Hence, he reported the matter to the police at Dambowa Division and the police invited the 1st and 2nd accused and ask them to comply with the Court order until the matter is finally determined but instead the 1st and 2nd accused came to Maiduguri after three days and got a Court order that they presented at Damboa Police Station. The 1st and 2nd accused persons as Dw1 and Dw2 testified that they approached the 3rd accused (dw3) for Exhibit B. The 3rd accused in his evidence as Dw3 testified that the 1st and 2nd accused persons gave him N5000.00k before issuing Exhibits A and B that he did not issue a receipt. Exhibit B was issued and signed by the 3rd accused and not the presiding judge. The 1st and 2nd accused induced the 3rd accused to issue exhibit B to create the assertion that Exhibit B has conferred title to the land to them. It is therefore not surprising that it was presented at Damboa Police station to assert the fact that judgment has been delivered and that they are entitled to the land when in fact they knew that the assertion is not true. It is crystal clear that the 1st, 2nd and 3rd accused persons acted in concert. It is apparent from the evidence adduced that all the accused persons agreed to do an illegal act and that all of them participated in the conspiracy. I therefore hold that the prosecution has proved the first count of the charge against all the accused persons.
(underlining mine for emphasis)
In my view, the reasoning and decision taken by the learned judge of the lower Court, supra, cannot be faulted.
Section 363 of the Penal Code defines forgery thus:
“Whoever makes a false document or part of a document, with intent to cause damage or injury to the public or to a person or to support a claim or title or to cause any person to part with property or to enter into an express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery; and a false document made wholly or in part by forgery is called a forged document.”
The offence of forgery as defined in the above mentioned section is committed where a person makes any false document and a document is said to be false if the whole or same material part of the document or writing purports to be made by or on behalf of someone who did not make it or authorize it to be made.
See the cases of FRN VS OKONKWO (2020) LPELR 50755 (CA) P. 35 – 36 and NATHANIEL VS STATE (2019) LPELR – 50326 (CA).
In order to establish the commission of the offence of forgery, the essential elements/ingredients which must be proved by cogent evidence are these:
a. That there is a document in writing
b. That the document or writing is forged
c. That the forgery is by the accused person
d. That the accused person knows that the document or writing is false
e. That the accused intends the forged document to be acted upon to the prejudice of the victim in the belief that is it genuine. See the case of ALAKE VS THE STATE (1991) 7 NWLR (PT 205) P. 95.
A person who is in possession of a forged document and or issues same to another is guilty of committing the offence of forgery as held in the case of LAMBERT VS FRN (2021) LPELR – 54672 (CA). The prosecution witnesses 1 – 4 before the lower Court; gave evidence which have been recorded on pages 17 – 24 of the record of appeal thereof, as follows:
PW1:-
“…the 1st and 2nd accused came to Maiduguri and got a Court order and presented same to the Damboa Police state. The police informed me that the 1st and 2nd accused have obtained an order from Court. I told the police that the presiding judge has retired and that the matter is still pending, I demanded that I be given a copy of the order and I was given a copy of (exhibit B) the warrant of possession through my brother.”
Pw2, the registrar of the Upper Sharia Court Damboa, gave evidence as follows:
“that there is no way title can be conferred on a party without judgment and that the Court did not confer title to any of the parties and the Court is not aware of such warrant of possession (Exhibit B).”
The evidence of Pw3, Investigation Police officer are thus:
“in the course of investigation that police wrote a letter to the Upper Sharia Court, Damboa, to ascertain the genuineness or otherwise of exhibit B and the said Court replied them with exhibit c.”
Exhibit C, which is a reply to Exhibit B contains as follows:
“regard to pendency and the issuance of declaratory title, the record had clearly shown the matter is not concluded before the judge went on retirement, hence there is no judgment that would qualify or warrant the issuance of declaratory title.”
The evidence of the prosecution witnesses reproduced supra, established all the essential elements of the offence of forgery.
The law is trite;
“where all the essential ingredients of the offence charged have been proved or established by the prosecution, the charge is proved beyond reasonable doubt as enunciated Court in the case of ADAMU VS FRN (2021) LPELR -54598 (CA) PAGES 52-56 PARAS E-E.”
The evidence of Pws 1- 4 taken together with Exhibits A, B and C have established all the essential ingredients or elements of the offence of forgery as defined by Section 363 and punishable under Section 364 of the Penal Code Law, Borno State. The learned judge of the lower Court, after evaluating the evidence before him, arrived at a decision as recorded on page 51 of the printed record of appeal as follows:
“I hold that the prosecution has proved the third ingredient of the offence of forgery against the 1st, 2nd and 3rd accused persons and further hold that the offence of forgery is proved against the 1st, 2nd and 3rd accused persons.”
The reasoning and decision reached by the learned judge of the lower Court supra, can be not faulted.
Learned counsel to the appellant did contend that the prosecution did not adduce credible and reliable evidence proving the commission of the offences of conspiracy and forgery by the appellant beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011. What is proof beyond reasonable doubt? In Miller V. Minister of Pensions (1947) 2 All ER P. 372, which had been cited and relied on by the Courts in Nigeria over the years, proof beyond reasonable doubt, has been defined by the superior Courts in a litany of judicial decision:
“It is not proof to the hilt.” It does not mean proof beyond the shadow of doubt. He observed “what the law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”. See Miller Vs Minister of Pensions (1947) 2 AIIE. R P. 372.”
In Mufutau Bakare Vs. State (1987) 1 NSCC 26, at 272. Oputa, JSC stated:
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means what it says. It does not admit plausible and fanciful possibilities but, it does admit a high degree of cogency, consistent with an equally high degree of probability”.
In Posu Vs State (2011) 2 NWLR (Pt. 1234) P. 393 @ 410 – 411, the Supreme Court per Galadima, JSC said:
“By virtue of the provision of Section 138(1) of the Evidence Act, the prosecution must prove the ingredients of an offence beyond reasonable doubt to secure a conviction. Therefore, if on the entire evidence adduced before a trial Court, the Court is left with no doubt the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is the credible evidence of a single witness. On the other hand, where the Court considers the totality of the evidence and reasonable doubt is created, the prosecution would have failed in its duty of discharge the burden of proof which the law vests upon it, thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. Afolalu v. State (2009) 3 NWLR (Pt. 1127) 160; Fatoyimbo v A. G Western Nigeria (1966) 1 SCNLR 101; Alonge v. IGP (1959) SCNLR 516; State v. Danjuma (1997) 5 NWLR (pt. 506) 512.”
Mohammed JSC (as he then was) expressed the same view in the case of Afolalu v. State (2010) All FWLR (Pt. 528) P. 812 when he said:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before the trial Court, that Court is left with no doubt, that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person benefit of the doubt resulting in his discharge and acquittal: Alonge v. Inspector-General of Police (1959) SCNLR 516; Fatoyinbo v. Attorney – General, Western Nigeria (1966) WNLR 4 and State v. Danjuma (1997) 5 NWLR (506) 512.”
In view of the evidence of Pw1, 2, 3, 4 and exhibit A, B and C, I entirely agree with the learned judge of the lower Court when he found and held as recorded on page 52 of the printed record of appeal that:
“On the whole, I hold that the prosecution has proved the offences of conspiracy and forgery against the accused persons. Consequently, the Court hereby find you, Fugu Bulama, Mandu Bulama and Kawu Lawan Kadiri guilty and accordingly convict you as charged for the offence of conspiracy under Section 97(1) of the Penal Code Law Cap. 102 Laws of Borno State of Nigeria 1994 and the offence of forgery under Section 364 of the Penal Code Law Cap. 102 Laws of Borno State of Nigeria 1994.”
In the end result, I resolve the sole issue against the appellant. The judgment of the lower Court delivered on the 3rd day of June, 2021, in Charge No. BOHC/MG/CR/133/2020 by Hon. Justice Umaru J. is hereby affirmed, that is to say, the conviction and sentence imposed on the appellant are also affirmed.
JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the Judgment just delivered by my learned brother, Ibrahim Shata Bdliya, J.C.A. I agree with his reasoning and conclusion and will only add a few words.
The facts of the case leading to this Appeal have been adequately captured in the lead Judgment. The Appellant herein, Fugu Bulama, (as 1st accused person before the lower Court) along with Mandu Bulama (2nd accused) approached the Kawu Lawan Kadiri (3rd accused) to prepare a document for them, being a warrant of possession, (Exhibit B). The 1st and 2nd accused persons then proceeded to fraudulently use Exhibit B as a genuine document to confer title on them of a parcel of land. After the matter was discovered and reported to the Police, investigation was carried out and the Appellant and the two others were charged for the offences of conspiracy and forgery punishable under Sections 97 and 364 of the Penal Code Laws Cap 102, Laws of Borno State, 1994.
The facts therein alleged that they conspired to forge an Order in the form of a warrant of possession purported to have been issued by the Upper Sharia Court in Case No. CVF/36/2018 purporting that it had been issued by the same Court. In order to establish the offences as charged, the Respondent adduced evidence through four (4) witnesses and seven (7) exhibits. In his defence, the Appellant testified but called no other witness and tendered no exhibits.
Gleaned from the Record of Appeal, the evidence adduced by the prosecution was very cogent and damning in proving the charge against the Appellant and his co-travelers in crime. Very significant is the evidence of PW1 and PW2. The substance of the evidence of PW1 was that when he was shown and given a Court Order, Exhibit B, by the Police which the Appellant and co-accused persons had given them, he was taken aback and he told the Police that the case before the Upper Sharia Court Damboa had not been concluded when Presiding Judge retired. In the same vein, PW2, the Registrar of the Upper Sharia Court, Damboa categorically denied that the said Order, a warrant of possession, had been issued by the Upper Sharia Court as Judgment in the case had not been delivered yet. On its part, the Police officer investigating the allegations sought for further clarification and/or authentication of Exhibit B from the Upper Sharia Court, Damboa. He received Exhibit C in reply. Therein, it was reiterated inter alia as follows –
“…with regard to [the] pendency and the issuance of declaratory title, the record had clearly shown the matter is not concluded before the judge went on retirement, hence there is no judgment that would qualify or warrant the issuance of declaratory title.” (Emphasis supplied)
The Appellant had no answer to these cogent pieces of evidence amassed against him and his cohorts, aside from a mere denial. Certainly, it was proved through both oral and documentary evidence that the Appellant acted in concert and agreement with the two co-convicts to procure and forge a warrant of possession purporting it to have been issued by the Upper Sharia Court Damboa and presented it to the Poli ce as a genuine document. This was clearly an illegal act. Consequently, the ingredients of conspiracy were proved – Bello V FRN (2011) 10 NWLR (Pt. 1256) 605, 626; Adejobi V State (2011) 12 NWLR (Pt. 1261) 347.
Furthermore, the warrant of possession, Exhibit B, was in writing; the evidence of PW1, PW2, and PW3 as well as Exhibit C, established that the document was forged by the accused persons and presented to the Police knowing that it was a false document; and finally, that the intention was for the Police to act on the forged warrant of possession to the prejudice of PW1 in the belief that it was genuine. By these convincing pieces of evidence, I am of the considered view that all the ingredients of the offences of forgery were also proved – FRN V Okonkwo (2020) LPELR-50755(CA) 35-36. Thus, the Respondent having proved both the offences of conspiracy and forgery as charged, the learned trial Judge was right when it convicted and sentenced the Appellant under Sections 97 and 364 of the Penal Code Laws of Borno State.
It is therefore for these reasons and for the detailed reasons contained in the lead Judgment that I find no merit in the Appeal. It fails and is dismissed. I abide by the consequential Orders made therein.
EBIOWEI TOBI, J.C.A.: I was afforded the privilege to read in draft the lead judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA. I agree with the reasoning and the conclusion reached by my learned brother in upholding the conviction and the sentencing of the Appellant to 8 years each for counts 1 and 2 which are to run concurrently. The implication of the conviction is that the lower Court agrees that the Prosecution has proved its case beyond reasonable doubt. The Appellant is saying in this appeal that the Prosecution has not proved beyond reasonable doubt the ingredients of the offence of Conspiracy and Forgery.
Criminal Liability can be established by direct evidence, confessional statement or circumstantial evidence. See Ali v State (2014) 14 NWLR (pt 1692) 314; Bassey v State (2019) 12 NWLR (pt 1686) 348. In whichever of the three ways stated above, the Prosecution must prove the guilt of the Appellant beyond reasonable doubt. Proof beyond reasonable doubt does not mean beyond all reasonable doubt but rather the proof must be such that there is no doubt material enough on the proof of the ingredient of the offence to sway the Court in favor of the Appellant. This means the proof is such that points to the Appellant as the person that committed the offence. The Apex Court has on several cases defined what will amount to proof beyond reasonable doubt. See Adepoju v State (2018) 15 NWLR (Pt 1641) 103.
The question now is, whether there is sufficient evidence before the lower Court to warrant the conviction. My lord has adequately presented the position of the law and the evidence required to secure conviction for Conspiracy and Forgery. I will not go into that again except to say that, for Conspiracy, there must be evidence of an agreement between two or more people to do an unlawful act or a lawful act in an unlawful means. See Kareem v State (2021) 17 NWLR (pt 1806) 503; Ushie v State (2018) 11 NWLR (1629) 139.
For forgery, the offence is complete when a person knows about or participates in the writing of a document which content is false and was made with the intention to get an advantage from another party. See Duru v FRN (2018) 11 NWLR (pt 1632) 20; Maihaja v Gaidam (2018) 4 NWLR (pt 1610) 454; Dairo v FRN (2020) 10 NWLR (pt 1733) 482.
The Appellant Counsel submitted that the failure of the Respondent to call as witness, the person whose signature was forged and the non-production of the document Exhibit B is forged from is detrimental to the Respondent’s case. This general position of the law can be justified by the cases of Mohmmed v Wammako (2018) 7 NWLR (pt 1691) 573; APC v PDP (2015) 15 NWLR (pt 1481) 1; Omon v Ekpa (2019) 15 (pt 1696) 504; C.G.G (Nig) Ltd v Ayovuare (2006) 5 NWLR (pt 1504) 1; Alake v State (1992) 9 NWLR (pt 265) 260. This general position is however not applicable here as Exhibit B is not forged from an existing document and what is at stake here is not the forging of a person’s signature. In the case here, the Appellant forged the document. The prosecution through the evidence of PW1, PW2 and PW3 clearly satisfies any requirement of the law. PW2 is a staff of the Court who came to testify that the document forged, Exhibit B (the Hausa version) and Exhibit G (the English version) did not emanate from the Court. This was also revealed by the PW3’s investigation. PW1’s evidence clearly shows that the Appellant secured the document which is a misrepresentation of the facts and this was done to get advantage on the property in dispute. The Appellant agreed giving Exhibit B to the other persons (1st & 2nd accused).
For the above reasons and much more for the reason advanced by my learned brother, BDLIYA, JCA. I also dismiss this appeal.
Appearances:
M. S. Umar, Esq. with him, M. Umara, Esq., M. B. Askira, Y. A. Adamu, Esq., M. I. Wasuru, Esq., N. Y. Yerima, Esq., A. I. Musa, Esq., and M. N. Iliyas, Esq. For Appellant(s)
K. S. Lawan, Esq. (Hon. Attorney General & Commissioner for Justice) with him, A. H. Izge -Ag. Ps/SG, U. M. Umar -SC, B. Lawan -SC. For Respondent(s)