GARBA v. FRN
(2022)LCN/16718(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/G/26C/2021
Before Our Lordships:
Ebiowei Tobi Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
HARUNA GARBA APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
It is settled law that in a criminal case, the prosecution must prove the guilt of the Accused person beyond reasonable doubt. The Accused has no duty in law to prove his innocence, but he is safe to raise a reasonable doubt in the prosecution’s case against him. See Abdu v. The State (2016) LPELR 41461 (SC) where the Supreme Court at P. 9, Paras C–F, stated the position of the law thus:
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Adebiyi v. The State (2013) 7 NWLR (Pt. 1354) 397; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) A NLR 139. PER HASSAN, J.CA.
THE INGREDIENTS OF THE CRIMINAL OFFENCE OF FORGERY
In the case of Mustapha v. FRN (2018) LPELR 46564 (C A) p. 18 Para B–E, the Court stated the ingredient of forgery as follows:
“The ingredients or essential elements of the offence of forgery which must be established by cogent and reliable evidence in order to ground conviction are: (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 it is genuine. See the case of Alake v. The State (1991) 7 NWLR (Pt. 205) P. 95.”
See also the authority of Onochie v. The State of Lagos (2019) LPELR 52301, pages 10–11, paras E–E, where this Court held as follows on the ingredient of forgery
“Section 465 is to the effect that a person is guilty of forgery if he/she “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,… to the prejudice of any person, with intent that any person, in the belief that it is genuine, be induced to do or refrain from doing any act” The section further states that “the term “make a false document or writing” includes altering a genuine document or writing in any material part, either by erasure, obliteration, removal, or otherwise; and making any material addition to the body of a genuine document or writing; and adding to a genuine document or writing any false date, attestation, seal or other material matter.”
My Lords, it is to this extent and I am of the opinion that the elements the prosecution must prove for the offence of forgery are:
(1) That there is a document;
(2) That the document or writing is forged;
(3) That the forgery is by the accused;
(4) That the accused knows that the document or writing is false;
(5) That he intends that the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See: BABALOLA Vs. THE STATE [1989] 4 NWLR (Pt. 115) 264; ALAKE vs. STATE (1992) LPELR 403 (SC); MOORE vs. FRN (2012) LPELR-19663 (CA); JUBRIL vs. FRN (2018) LPELR-43993 (CA); AGBANIMU vs. FRN (2018) LPELR-43924 (CA).”
The ingredient of offence of using as genuine forged document under S. 366 of the Penal Code Law are as follows:
i. That the accused used a document claiming it to be a genuine one
ii. That the accused knew or has reason to believe that the document was forged.
iii. That Accused did so fraudulently of dishonestly. PER HASSAN, J.CA.
THE PRINCIPLE THAT THE LAW MUST BE INTERPRETED IN THE CONTEXT OF JUSTICE
I will by way of contribution make a few comments on the issues that my learned brother had addressed adequately. I will start with the issue of the date on the judgment which the Appellant’s Counsel submitted occasioned a miscarriage of justice because it is different from the date the judgment was delivered. I agree entirely with my brother that a Court is not only a Court of law but also a Court of justice. The law must be interpreted within the context of justice, that is to say, if the interpretation of a law will defeat the call of justice, a Court will be weary in approving such an interpretation. This is why the apex Court has held in a cloud of cases that the Court exists to do substantial justice and not technical justice. See Uwazuruike & Ors vs A.G. Federation (2013) 4-5 SC (pt 1) 90; Barde vs jagaba & Anor (2021) LPELR-55803(CA); IKpeazu vs Otti & Ors(2016) 2 SC (pt 11) 102. PER TOBI, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Gombe State High Court delivered by Hon. Justice Abubakar Jauro in Charge No. HC/GM/77C/2020, on the 5th day of October, 2020. The Appellant to this appeal was the Accused person at the Trial Court, while the Respondent was the Economic and Financial Crimes Commission which complained on behalf of the Federal Government of Nigeria.
The Appellant was arraigned before the trial Court on the 7th day of May, 2020 on a three count charge dated the 23/3/2020 and filed on the 24/3/2020 on criminal misappropriation, forgery and using forged documents as genuine. See page 210–211 of the record. Upon the prosecution of the case against the Appellant, he was acquitted on Count one and convicted on count two and three, for which he was sentenced for 18 months imprisonment.
The three count charges filed against the Appellant reads as follows:
Count one
That you, HARUNA GARBA between January and May 2019 in Gombe, Gombe State within the jurisdiction of this Honorable Court dishonestly obtained the sum of N568,400.00 (Five Hundred and Sixty-Eight Thousand Four Hundred Naira) property of Gombe State Government for feeding of referees during Gombe United football club matches, but dishonestly misappropriate the said money and thereby committed and offence contrary to Section 308 of Penal Code Law punishable under Section 309 of the same law.
Count two
That you, HARUNA GARBA between January and May 2019 in Gombe, Gombe State within the jurisdiction of this Honorable Court dishonestly made a cash receipt of Zeedan Restaurant & Catering Services purportedly issued to Gombe United football club for feeding of referees during Gombe United football club matches which you knew to be false and thereby committed an offence contrary to Section 363 of Penal Code Law and punishable under Section 364 of the same law.
Count three
That you, HARUNA GARBA between January and May 2019 in Gombe, Gombe State within the jurisdiction of this Honorable Court fraudulently uses as genuine a forged documents to wit: cash receipts of Zeedan Restaurant and Catering Services purportedly issued to Gombe football club for feeding of referees during Gombe United football matches which you knew to be false documents and thereby committed an offence contrary to Section 366 of Penal Code Law punishable under Section 364 of the same law. See pages 1 and 2 of the Record
The Appellant pleaded not guilty to all three Counts and on this note, the Respondent took a date to provide evidence in proof of his case against the Appellant. See pages 210-211 of the Record.
The Prosecution in fulfillment of the mandate of the law at trial called two witnesses. Detective Awa Remi Odec Francis of Accounting and financial investigation department with EFCC testified as PW1, while Zainab Dankama testified as PW2. The following documents were tendered and admitted in prove of the prosecution’s case as follows:
a. Petition written to EFCC by Sylvester Esthon and James Ephraim -EXH A
b. Letter of investigation Activities to Gombe Unite EXH B
c. Response letter from Gombe United EXH C
d. Statement of Accused person at EFCC Gombe EXH D
e. Cash receipt booklet of Zeedan Restaurant EXH E
See pages 213–222 of the Record
During cross-examination of PW2 by Counsel to the Accused, the statement of PW2 was tendered and admitted as EXH F however, same was expunged by the Court for not being certified.
After the close of the prosecution case, the Accused person opened his defence on the 6th of June, 2020, and testified for himself as DW 2 and called three other witnesses. In his defence, the Accused tendered the following documents:
a. The statement of PW2/DW3 at EFCC EXH F
b. Match form dated the 19/05/2019 EXH G
c. Attendance form dated 19/05/2019 EXH H
d. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 EXH DEF 1
e. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 EXH DEF 2
f. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 – EXH DEF 3
g. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 EXH DEF 4
h. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 EXH DEF 5
i. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 EXH DEF 6
j. Pre-match meeting form & Pre-match attendance sheet dated 11/02/2019 EXH DEF 7
See pages 223–236 of the record
At the close of evidence of both parties, Counsel were allowed to filed and exchanged written addresses. The trial Court in her considered judgment on the 5th day of October, 2020, acquitted the Accused/Appellant on the first Count of misappropriation of funds but convicted him on the second and third counts of forgery and using forged documents as genuine. See the judgment of the trial Court at pages 239–256 of the Record.
The Accused Appellant being aggrieved by the decision of the trial Court, exercised his constitutional rights of appeal and approached this Court via a five grounds of appeal dated the 3rd of December, 2020. See pages 258–263 of the Record. The Record of Appeal was transmitted to this Court on the 4th of March, 2021. The Appellant’s brief dated the 30th day of June, 2021 but filed on the 1st day of July, 2021 was deemed properly filed on the 22nd November, 2021. The Respondent’s brief dated the 20th day of January, 2022, but filed on the 25th of January, 2022, was deemed properly filed on the 26/1/2022.
The Appellant did not file a reply brief in response to the Respondent’s brief.
BRIEF STATEMENT OF FACTS
The Prosecution commenced investigation which cumulated into this case filed against the Appellant by the Economic and Financial Crimes Commission upon receiving a letter of complaint dated 18/12/2018 from one James Ephram and Slyvester Esthon against one Auwalu Musa Umaru erstwhile Chairman of Gombe United Football Club. The complaint stated that the dual of James Ephraim and Slyvester Esthon were former players who were disengaged from the football club but without being paid their entitlement to the tune of N3,990,000 and that the money was given by the State Government to the Chairman of then Gombe State United Football Club to pay to all players but they were cheated and not paid.
During investigation of the complaint by the Commission, letters of investigation were written to Banks, Agencies, Gombe United Football Club and Zeedan Restaurant and Catering Services, office of Accountant General Gombe State. Responses received from all correspondences were looked into by the Commission and same revealed that the said amount complained of by the petitioners were actually released by the Gombe State Government to the Football Club for payment of all former players including the Petitioners, but the money was fraudulently misappropriated by the management of the club including the Appellant herein with fictitious and forged payment receipts.
Further investigation led the Commission to send out another letter of investigation to one Zeedan Restaurant and Catering Services, a food vendor attaching all receipts purportedly claimed to have emanated from the Restaurant. Responses from Gombe State Government revealed how monies released to the club for payment of the players were expended. The prosecution’s investigation revealed that money were fraudulently misappropriated and the management of the club and Appellant used fictitious payment receipts to retire same including forged cash receipts which Appellant claimed to have emanated from Zeedan Restaurant who testified as PW2.
At the conclusion of investigation, a case of criminal misappropriation, forgery and using forged documents as genuine was established against the Appellant upon which he was tried and convicted on counts 2 and 3 and discharged on count 1, hence, this appeal.
Issues for determination. The Appellant on the wings of his grounds of appeal formulated two issues for determination as follows:
1. Whether the manifest defects on the face of the judgment of the trial Court delivered on the 5th day of October, 2020, in open Court but dated and signed on 5th September, 2020, does not render the said judgment inherently and incurably bad? (Distilled from Ground 4 of the Notice of Appeal).
2. Whether the Respondent had proved the offences of forgery and using forged document as genuine, both punishable under Section 364 of the Penal Code Law against the Appellant beyond reasonable doubt to warrant the trial Court convicting and sentencing him despite acquitting him of the offence of Misappropriation? (Distilled from Grounds 1, 2, 3 & 5 of the Notice of Appeal).
The Respondent in her brief adopted the two issues formulated and submitted by the Appellant for determination. I have considered the facts and circumstances of this appeal, the judgment of the Gombe State High Court, and the submissions of Counsel in their respective briefs, and since both parties are at idem on the issues arising for determination, I shall adopt the two issues distilled in the Appellant’s brief as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Whether the manifest defects on the face of the judgment of the trial Court delivered on the 5th day of October, 2020, in open Court but dated and signed on 5th September, 2020, does not render the said judgment inherently and incurably bad? (Distilled from Ground 4 of the Notice of Appeal).
APPELLANT’S COUNSEL’S SUBMISSION
The gross of the Appellant’s complaint on this issue distilled from ground 4 of the Notice of Appeal was that the judgment of the trial Court which is dated and signed on the 5th of September, 2020, but delivered in the open Court on the 20th of October, 2020, was defective. Appellant commenced his argument on this issue by relying on the authority of Amasike v. the Registrar General, C.A.C & Anor (2010) LPELR 456 (SC) to submit that it is settled law that it is not every error/mistake in a judgment that will result in same being set aside, but only fundamental errors or defects may amount to a judgment being set aside on appeal. However, the question is the defect in this appeal, to wit: difference in the date of delivery of 5th of October, 2020, and the date signed on the judgment delivered being 5th of September, 2020, fatal as to result to setting same aside on appeal?
The Appellant while relying on the authority of Ake Properties Ltd & Ors v. George (2014) LPELR 22428 (CA) where this Court held that a Judge cannot sign a judgment before it is delivered to submit and contend that an appeal must be predicated on a judgment that is valid for the Appellate Court to assume jurisdiction. As such, where there is a difference of date on the judgment delivery and signing, such divests the power of an appellate Court to entertain the matter, hence, occasioning miscarriage of justice. Counsel referred to the authority of Ake Properties Ltd & Ors v. George (Supra) on that point to stress that the issue of a date on a judgment contradicting the date it was signed divests the Appellate Court of jurisdiction to entertain the appeal.
Counsel went further to submit that on the authority of Ake Properties Ltd & Ors v. George (2014) the error complained of by this appeal is not clerical or slips that may be remedied by the Court. Counsel stressed that in the instant case, the defect was not just one of date, but even the charge number on the face of the judgment is different from the original charge number of the case. Counsel submitted that this makes it more clear that it is beyond an ordinary defect as it has become a clog on the jurisdiction of this Court to entertain the substantial matters of the case.
Counsel urged this Court to hold that these defects have caused a miscarriage of justice as they trampled on the rights of parties to appeal and urge this Court to resolve this issue in favor of the Appellant.
RESPONDENT’S COUNSEL SUBMISSIONS
On the issue of the date the judgment is being delivered being the 5th of October, 2020, different from the date the judgment was signed by 5th of September, 2020, the Respondent’s Counsel submitted that the Supreme Court has held that it is not every mistake or error in a judgment that necessarily determines an appeal in favour of an Appellant or automatically results in the appeal being allowed. The error or mistake to result in the upturn of a judgment must be substantial and must have occasioned a miscarriage of justice. That the appellate Court is bound to interfere once the Court is satisfied that such error has occasioned miscarriage of justice. Counsel referred to KAYODE v. STATE (2016) 7 NWLR (Pt 1511)199 at page 232, paras. C-E, and submitted that the Appellant is inviting My Lords to declare the judgment of the trial Court a nullity on the ground that it was signed on 5th September, 2020 but delivered on 5th October, 2020, whereas the Appellant did not state how such typographical error occasioned him miscarriage of justice.
Counsel submitted and urged this Court to hold that it is pertinent to note that the Appellant never faulted any parts of the judgment including the plea of leniency (allocutus) made by Counsel on the same 5/10/2020 in open Court on behalf of Appellant as captured the printed record of appeal. Therefore, what the Appellant is praying for is far from substantial Justice. Counsel cited the authority of Nwoko v. Azekwo (2012) 12 NWLR (PART 1313) 151 where the Court stated that a judgment may be written and dated, but it is the date that it is delivered that is important.
He further relied on the authority of Julius Berger PLC. v. 7Up Bottling Co. PLC (1997) 2 NWLR (PART 489) 603, to submit that Courts had held that the purpose of dating a judgment is to give the parties an opportunity to appeal against it within the time stipulated. See also Dakingari v. Ward & green (2001) 5 NWLR (PT. 707) cited by Counsel on that note.
Counsel urged this Court to hold that the Appellant did not suffer any miscarriage of justice in the difference in the delivery date of the trial Court’s judgment with the date it was delivered and that the authorities of Amasike vs. The Registrar General CAC & Anor (2010 LPELR-456 (SC), Ake Properties Limited & ORS. V. Mrs. Aebisi George (2014) LPELR-22428 (CA) cited by Counsel in his address does not apply to the Appellant’s case as the facts and circumstances are different.
RESOLUTION OF ISSUE ONE
That the judgment on appeal is dated and signed 5th of September, 2020, but delivered on 5th of October, 2020 is not in doubt. What is in contention is whether the judgment is a nullity or not as argued by the Appellant. In the case of Ake Properties Ltd & Ors vs. Mrs. Adebisi George (2014) LPELR 22428 (CA), my Lord Pemu, JCA declared a similar judgment a nullity. He held thus at pages 7–8 paras B–F:
“But the issue here is that the date on the judgment contradicts the date it was signed… Assuming the different dates in the judgment appealed was a mistake on the part of the Court below, decidedly, the inherent power of Court to amend or vary its own judgment, or order is limited only to situation where (a) there is a clerical mistake in the judgment or Order; or… it is however not the function of the Court of Appeal to do this on behalf of the lower Court. Assuming this Court could do that, it is my view that what was obtained in the judgment was not a clerical mistake, neither was it a slip of whatever nomenclature…Judgment of the lower Court which is the subject matter of this appeal. In consequence, the judgment of Charles Efanga Archibong (J) dated 28th May, 2012, but signed on the 21st of May, 2012 is hereby set aside while Suit No. FHC/L/CS/1555/2012 is hereby struck out, being a nullity.”
The judgment appealed against is at pages 239–257 of the record of appeal. The reasonable inference to draw is that the judgment was prepared before the date of delivery and signing. When it was subsequently delivered on the next date there was an omission to reflect the date of delivery. What that translates to is that the judgment was dated and signed on an earlier date before the date of delivery.
This same issue was dealt with and considered by the Court of Appeal, in the case of Dakingari vs. Ward & Green (1999) LPELR-9930 (CA) held:
“The judgment signed and dated a day before its delivery is quite in order under the law as it could then be delivered subsequent to the date it was signed within the time prescribed by Section 258 (1) of the 1999 Constitution by the Judge himself who wrote or prepared the judgment or by any other Judge of the same Court for that matter if for any reason the Judge who wrote or prepared and signed the judgment is not able to deliver it.” per Mohammed, JCA (P. 22 paras A–C).”
A little similar situation confronted the Supreme Court in the case of Hadi Sule vs. The State (2017) LPELR-47016 (SC) in which one of the complaints in that case was that the learned trial Judge did not sign or seal the judgment with the date therein in open Court, which is even a more serious complaint, in my view, than the complaint herein in this appeal. The apex Court inter alia held:
“… Equity follows the law, and takes as done that which ought to be done. This is what Section 168(1) of the Evidence Act, 2011, is about when it provides that when any judicial act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. On this presumption, and without the appellants showing in what manner their rights have been compromised or prejudiced or that they had suffered any miscarriage of justice, I hold that the trial Court delivered its judgment wherein the appellants were convicted and sentenced for the offence(s) alleged against them on the date the judgment was delivered in open Court. The importance is that the judgment was delivered in open Court by the learned trial Judge before whom they were tried. This resort to arcane technicality has not impressed me. I will not allow the appeal on this issue.” Per Eko, JSC (Pp. 33–34, paras E–F).
In the instant appeal, the record of appeal on which this appeal is prosecuted shows that the judgment was dated 5th of September, 2020. The Notice of Appeal indicates that the appeal is against the judgment delivered on the 5th of October, 2020. Beyond the complaint on the differences in dates, the Appellant has not shown what miscarriage of justice he has suffered. The Appellant’s counsel with due respect did not advert his mind to the fact that beyond the bare assertion that there is difference between the date the judgment was dated and signed, and the date same was delivered, the Appellant had an inescapable duty to point out the miscarriage of justice he had suffered. See the case of KAYODE v. STATE (supra) cited by Respondent Counsel.
In the recent case of Ahmed v. FRN (2020) LPELR 50434 (CA) where the Court of Appeal had to deal with the similar issue of a judgment dated and signed on a different date and delivered on a different date, this Court in disagreeing that a judgment signed and dated on a different date from the date it was delivered is a nullity held as follows:
“Beyond the complaint on the differences in dates, the Appellant has not shown what miscarriage of justice he has suffered. With due respect to his Lordship, Pemu, JCA, in the case of Ake Properties Limited & Ors vs. Mrs. Adebisi George (supra) she did not advert her mind to the fact that beyond the bare assertion that there is a difference between the date the judgment was dated and signed, and the date same was delivered, the Appellant had an inescapable duty to point out the miscarriage of justice he had suffered. The days of technical justice are long gone. This is my area of disagreement with her Lordship, with the greatest respect. Having said that I reach the inevitable conclusion that issue one is resolved against the Appellant and in favour of the Respondent.”
On the strength of the decisions cited, particularly the Supreme Court decision of Hadi Sule vs. The State (supra) and the fact that the Appellant in the instant appeal equally has not explained what miscarriage of justice the delivering of the judgment of the trial Court on the 5th October, 2020, a different date from the date the judgment was dated and signed had occasioned him, I see no merit on this issue.
It is settled law that the purpose of dating a judgment is to allow parties exercise their rights to appeal, the Appellant by this ground of appeal has not raised any complaint that he was unable to exercise his constitutional right to appeal by virtue of the date written on the judgment, therefore no miscarriage of justice has been shown by Appellant to justify this ground of appeal.
This issue is resolved against the Appellant and in favor of the Respondent.
ISSUE TWO
Whether the Respondent had proved the offences of forgery and using forged document as genuine, both punishable under Section 364 of the Penal Code Law against the Appellant beyond reasonable doubt to warrant the trial Court convicting and sentencing him despite acquitting him of the offence of misappropriation? (Distilled from Grounds 1, 2, 3 & 5 of the Notice of Appeal).
APPELLANT’S COUNSEL SUBMISSION
The Appellant’s complaint encapsulated by this issue arising from grounds 1, 2, 3, & 5 is whether the Prosecution at the trial Court had discharged the burden placed on her by law by proving her case against the Appellant. Counsel relied on the authority of Okunaya v. State (2020) 2 NWLR (Pt. 1709) P. 472 at 493 and S. 135 of the Evidence Act, 2011, to say that the burden on the prosecution is to prove her case against the accused beyond reasonable doubt, and for the prosecution to successfully do this, the ingredient of the offence charged must be established otherwise, the accused would be entitled to an acquittal.
Counsel on that note shifted his attention to the ingredients of the offence of forgery clearly spelled out in S. 363 of Penal Code Law and submitted that S. 363 is predicated on S. 362 of the same Penal Code Law which clearly defines what qualifies as a false document as there cannot be an offence of forgery unless there is a false document either wholly or in part by making or cancelation, alteration or execution by way of signing or a mark. Counsel also referred this Court to her decision in Mobil Producing (Nig) Unltd v. Hope (2016) LPELR 41191 (CA) on the definition of what forgery is.
Counsel submitted and contended that from the authorities cited, it is safe to say that there is no forgery where a document is made or altered with lawful authorization, as in the instant case, the totality of evidence before the trial Court showed that PW2/DW3 gave the Appellant the receipts herself for purchasing food from her for the players and officials of the club for years. Moreover, it is clear from the documents and evidence before the lower Court that the Appellant never requested for blank receipts from PW2/DW3, rather it was PW2/DW3 that handed the Appellant blank receipts when he requested for receipts to show he had purchased food from her restaurant for match officials.
Counsel further submitted that Appellant only requested for the receipts to support the claim that he never misappropriated the monies released for the welfare of players and officials which the lower Court held in favor of the Appellant leading to the Court’s finding that there was no misappropriation of funds by Appellant base on the evidence before the Court. Counsel submitted that is clear that the receipts were filled by the Appellant with the knowledge and authority of PW2/DW3. Therefore, same cannot be said to be a false document, as this fact was admitted by PW2 in her evidence that she gave the blank receipt to Appellant and she believed that Appellant was not going to use it for a dishonest purpose.
Therefore, according to Counsel, PW2’s willingness to issue blank receipts to the Appellant while being fully convinced that he was not dishonest leads only to one logical conclusion, and that is, PW2 authorized the Appellant to fill in details in the receipt, and that in the very least is an implied authorization. On that note, counsel urge this Court to hold that there was lawful authorization by PW2 when she handed the receipts to the Appellant to fill in the details.
Counsel also submitted that the Prosecution failed to establish by evidence that there was a fraudulent or dishonest intention on the part of the Appellant in filling the details in the receipts having been established that there was no misappropriation as alleged by the Prosecution at the trial Court. Counsel submitted that this is so because the case against the Appellant as it were ordinarily emanated on the basis of suspicion that the Appellant misappropriated some monies meant for feeding and accommodating match officials, which led to the request by the Prosecution for the receipts and Appellant produced same to proof otherwise. Therefore according to Counsel, to arrive at either a fraudulent or dishonest intention on the part of the Appellant, the trial Court ought to have considered his actions in relation to the actual cause, which is the misappropriation.
Counsel on that note contended that based on the evidence before the trial Court, the Court having acquitted the Appellant of the offence of misappropriation on the grounds that he did not misappropriate any money, there is nothing else to establish a fraudulent or dishonest intention on the part of the Appellant in obtaining receipts. Counsel submitted while relying on the authority of APC v. PDP & Ors (2015) LPELR 24587 (SC) and urged this Court to hold that the Prosecution has not established the case of forgery against the Appellant, let alone to meet the legal requirement of proving same beyond reasonable doubt since the Prosecution had failed by her evidence to prove that the Appellant made a false document with fraudulent or dishonest intentions.
Counsel referred this Court to the authority of Mustapha v. FRN (2018) LPELR 46565 (CA) which deal with the ingredient of the offence of using forged document and submitted that the prosecution has failed to establish by evidence that the receipt in question were forged, the said documents having been made with the lawful authority of PW2 without any fraudulent or dishonest intentions. Thus the first ingredient of using as genuine a forged document cannot be said to have been established.
Counsel submitted further that there were transactions between the Appellant and PW2 for which the Appellant subsequently requested for a receipt when needed and the trial Court rightly held that the transactions between the Appellant and PW2 were true and as such, no monies were misappropriated by the Appellant. Counsel submitted that it was also the evidence of PW2 that she willingly gave the receipts to Appellant as proof of the transactions carried out between the two of them, hence, there is no basis for the decision of the trial Court that Appellant used as genuine forged documents having held that the claim of Appellant is true.
Counsel rounded up his submission by referring the Court to the authority of State v. Ahmed (2020) 14 NWLR (Pt. 1743) 1 at 20, Paras A-C and urge the Court to resolve the doubt casted in the case of prosecution in favor of the Appellant by holding that the offences of using document as genuine is not as well established beyond reasonable doubt by the Prosecution.
RESPONDENT’S SUBMISSION ON ISSUE TWO
The Respondent after restating the benchmark of burden of proof in criminal case being the proof of the Accused guilt beyond reasonable doubt as set out by Sections 135 and 138 (1) of the Evidence Act, 2011, he referred this Court to decided in the authorities of Ibeziako vs. COP (1963) NLR 61; Bakare V. State (1987) 1 NWLR (PT.52) 578 SC; Afolalu v. State (2010) 16 NWLR ( PT. 1220) SC 584 on the point and submitted that discharging the burden of proof placed on the Prosecution, it is generally accepted that the commission of a crime can be proved by any of the following three ways: that is by direct evidence, confessional statement of the Accused, and circumstantial evidence. Counsel cited the authorities of Adeyemo v. State (2015) 16 NWLR (PT. 1485) S.0 311 at p. 329 paras A-B; Maigari v. State (2010) 16 NWLAR (PT. 1220) C.A 439 at 467 paras E-G; Emeka v. State (2011) 14 NWLR (PT. 734) 666.
On that note, the Respondent submitted that she has discharged the burden placed on her leading to the securing of the conviction of the Appellant with option of fine. Counsel referred the Court to S. 131 and 132 of the Evidence Act, and submitted that from the foregoing, it is against the Appellant that judgment would be given if no evidence were offered. Consequently, the onus is on the Appellant to establish that certain facts exist as per fact contained in his written address dated 28th Day of July, 2020, to be entitled to the reliefs sought i.e. to allow the appeal, set aside the decision of the trial Court and finally enter judgment discharging and acquitting the Appellant.
Counsel submitted that the Respondent having discharged the burden on her at the trial Court, the Appellant’s brief of argument is with no merit it could not therefore support his claim before this Court. In the light of this, Counsel urge this Court to answer the first issue for consideration in the affirmative and hold that the lower Court was right in convicting and sentencing the Appellant accordingly as the Respondent has proved the elements of forgery and using as genuine, a forged document against the Appellant provided by S. 364 of the Penal Code Law, and the ingredient of the offence of using as genuine forged documents, under Section 366 of the Penal Code Law of the Penal Code.
Counsel submitted that in response to Appellant’s submission that no document was forged and that the Appellant did not use as genuine forged documents, the Appellant’s admission that he collected blank receipts from PW2 is the establishment of the commission of the offence. Counsel submitted that facts admitted need no further proof. Counsel further referred this Court to Appellant’s admissions in EXH D before the trial Court, and the evidence of PW2 wherein she testified that she never authorized the Appellant to take the empty receipts he took from her.
RESOLUTION OF ISSUE TWO
It is settled law that in a criminal case, the prosecution must prove the guilt of the Accused person beyond reasonable doubt. The Accused has no duty in law to prove his innocence, but he is safe to raise a reasonable doubt in the prosecution’s case against him. See Abdu v. The State (2016) LPELR 41461 (SC) where the Supreme Court at P. 9, Paras C–F, stated the position of the law thus:
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Adebiyi v. The State (2013) 7 NWLR (Pt. 1354) 397; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) A NLR 139.
This has been the law, and on this point, both Appellant and Respondent are at idem, more so, like I said, that has been the ancient law and it is still the law. I shift my attention to the offences of forgery and using as genuine false document which the Appellant complained against to this Court under grounds 1, 2, 3 & 5 of his notice of Appeal and argued under this issue. In order to settle this issue, what comes up for determination is whether the Prosecution has proved the guilt of Appellant on the offence of forgery and using as genuine false document beyond reasonable doubt. This can only be established by looking at the ingredient of forgery and using as genuine false documents and whether the evidence adduced by prosecution at trial has met the requirement of the law.
S. 363 of the Penal Code defines forgery as follows:
“Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contact 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”
In the case of Mustapha v. FRN (2018) LPELR 46564 (C A) p. 18 Para B–E, the Court stated the ingredient of forgery as follows:
“The ingredients or essential elements of the offence of forgery which must be established by cogent and reliable evidence in order to ground conviction are: (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 it is genuine. See the case of Alake v. The State (1991) 7 NWLR (Pt. 205) P. 95.”
See also the authority of Onochie v. The State of Lagos (2019) LPELR 52301, pages 10–11, paras E–E, where this Court held as follows on the ingredient of forgery
“Section 465 is to the effect that a person is guilty of forgery if he/she “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,… to the prejudice of any person, with intent that any person, in the belief that it is genuine, be induced to do or refrain from doing any act” The section further states that “the term “make a false document or writing” includes altering a genuine document or writing in any material part, either by erasure, obliteration, removal, or otherwise; and making any material addition to the body of a genuine document or writing; and adding to a genuine document or writing any false date, attestation, seal or other material matter.”
My Lords, it is to this extent and I am of the opinion that the elements the prosecution must prove for the offence of forgery are:
(1) That there is a document;
(2) That the document or writing is forged;
(3) That the forgery is by the accused;
(4) That the accused knows that the document or writing is false;
(5) That he intends that the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See: BABALOLA Vs. THE STATE [1989] 4 NWLR (Pt. 115) 264; ALAKE vs. STATE (1992) LPELR 403 (SC); MOORE vs. FRN (2012) LPELR-19663 (CA); JUBRIL vs. FRN (2018) LPELR-43993 (CA); AGBANIMU vs. FRN (2018) LPELR-43924 (CA).”
The ingredient of offence of using as genuine forged document under S. 366 of the Penal Code Law are as follows:
i. That the accused used a document claiming it to be a genuine one
ii. That the accused knew or has reason to believe that the document was forged.
iii. That Accused did so fraudulently of dishonestly.
Before I go into resolving this issue, let me quickly state it clearly that Appellant’s counsel submission that the Appellant was acquitted of the offence of misappropriation therefore he couldn’t be convicted for the offences of forgery and using as genuine false document is clearly misconceived, as an acquittal on the count of misappropriation does not automatically mean that the case of forgery and using as genuine false documents could not be established.
It is not in doubt that the Appellant used the blank receipts he obtained from Zeedan Catering and Restaurant Services. PW2 is the food vendor who operates Zeedan Restaurant Services and she testified before the trial Court as PW2 to the effect that the Appellant requested for the blank receipts and she handed same blank to the Appellant. She stated that Exhibit E is the booklet from which she gave the accused some blank papers. She said Exhibit page 3 is her receipt and that she is not the person that filled the receipts. That the sum of N49,000- pages 14, 21, 33, 46, 39, and 61 of Exhibit C are all her receipts but she is not the one that filled all of them. She said further that the transaction between her and the accused stopped in 2018 and that no referees were brought to her restaurant for feeding in 2019. See page 220 of the record. The accused admitted that he took blank receipts from PW2 and gave it to his daughter to fill and he later took it to the accountant. See page 231 of the record. He also said at page 232 of the record that Exhibit C pages 3, 14, 21, 33, 46, 49, and 61 are cash receipt of Zeedan Restaurant Gombe State. Contain all the monies collected by him for GUFC, that the above are receipts that were filled for him. See page 232 of the records. The accused testified as DW 2.
I believe a resolution of the ingredients of both forgery and using as genuine false document vis a viz the evidence adduced at the trial Court will effectively resolve this issue
On the first ingredient of forgery, it is very clear that the blank receipts obtained from PW2 by Appellant the focal point of the Respondent’s prosecution of Appellant was made by Appellant by filling the figures on it, hence, there is a document made. This fact was admitted by Appellant and PW2 confirm she issued blank receipts to Appellant, the contention is whether the document was created in the act of forgery with intention to deceive, prejudice or injure the Football club or Zeedan Restaurant or even EFCC bearing in mind that these receipts form part of the bulky report EXHIBIT C submitted to EFCC by the Football club herself forming her response to the investigation activities in EXHIBIT B.
On the second point of whether the writing on the document was forged. The definition of the word forge is apt here. the Supreme Court in Agbonifo v. Aiwereoba & Ors (1988) LPELR 245 (SC) Pp 20-21 Paras F-A while explaining the meaning of forge as different form to tamper has this to say:
“To tamper with a document means to deal with it in any way which tends to change it from its original form. To tamper with it does not necessarily mean to forge the document. On the other hand, to forge a document is to, with intention to defraud, destroy, alter, mutilate, or falsify the document, or to make or be privy to making a false entry therein or to omit or be privy to omitting a material particular from the document.”
From the explanation of what a forged document is, the forgery done by the Appellant is discernible from the evidence of the prosecution. It is evident that the Appellant altered the blank receipts from their original form and used same in convincing the auditors for the EFCC in believing that the receipts are genuine.
The second ingredient that the writing on the document was forgery has been established by the prosecution based on the evidence before the trial Court.
On the third ingredient of the forgery done by the accused, it is borne out of the evidence before the trial Court that the writing on the receipts was done by the daughter of the Appellant. The Appellant procuring his daughter to write on the receipt makes it his act. The entry on the receipts is forged as Pw2 stated in evidence that she did not fill the entry on the receipts and it was done without her knowledge or consent on this, the prosecution has been able to establish that the figures in Exhibit C were forged by the Appellant.
On the fourth ingredient, it is clear that the Appellant falsely entered the figures on the receipts in order to submit proof of payment for food purchased to the Football club in order for the club to answer the investigation activities of EFCC in EXHIBIT B. These receipts indeed form part of the bulky report which the club submitted to EFCC for the investigation activities EXHIBIT C. Therefore, it is arguable that the amount entered on the receipts is false and this clearly show that they were forged and were submitted to EFCC in order to convince them in believing that the receipts are genuine.
On the ingredient of the offence of using as genuine forged document under Section 366 of the Penal Code Law, I am satisfied with the explanation given by the learned trial Judge in page 256 of the record where the learned trial Judge stated:
‘’….the picture painted by the evidence suggests the fact that the accused actually obtained blank receipts and altered the receipts by causing his daughter to fill in the details figures in pages 3, 14, 21, 33, 46, 49 and 61 of exhibit C. He in addition used those receipts as evidence of how he expended the money he received from the club. In other words, he claimed the receipts were evidence that he procured food from Zeedan Restaurant on the dates mentioned on the receipts. It is evident that he altered the blank receipts from their original form and used same in convincing the auditors for the EFCC as the case may be, in believing that the receipt are genuine. I also find no merit in the argument by the defence that he did that with the consent of PW2. I am therefore convinced by the prosecution that the accused has committed the offences of forgery and using forged documents as genuine contrary to Section 363 and 366 punishable under Section 364 of the Penal code. I consequently find you Haruna Garba guilty and accordingly convict you of those offence.’’
In view of the foregoing issue two is resolved against the Appellant.
Having resolved the two issues against the Appellant, it means that this appeal must fail, it fails and is hereby dismissed, I AFFIRM the judgment of the learned trial Judge Hon. Justice Abubakar Jauro of the High Court of Justice, Gombe State, Gombe Judicial Division dated and signed on 5th day of September 2020 but delivered on 5th day of October, 2020 in Suit No. GM/77C/2018.
EBIOWEI TOBI, J.C.A.: My learned brother, Muslim Sule Hassan, JCA afforded me the privilege to read in draft, the lead judgment just delivered. My lord rightly in my view dismissed the appeal and affirmed the judgment of Hon. Justice Abubakar Jauro of the Gombe State High Court where the Appellant was convicted and sentence for the offence of forgery under Section 363 of the Penal Code. My lord, Muslim Sule Hassan, JCA has adequately addressed and resolved the issues presented before this Court in this appeal. I agree with the reasoning and the conclusion reached therein.
I will by way of contribution make a few comments on the issues that my learned brother had addressed adequately. I will start with the issue of the date on the judgment which the Appellant’s Counsel submitted occasioned a miscarriage of justice because it is different from the date the judgment was delivered. I agree entirely with my brother that a Court is not only a Court of law but also a Court of justice. The law must be interpreted within the context of justice, that is to say, if the interpretation of a law will defeat the call of justice, a Court will be weary in approving such an interpretation. This is why the apex Court has held in a cloud of cases that the Court exists to do substantial justice and not technical justice. See Uwazuruike & Ors vs A.G. Federation (2013) 4-5 SC (pt 1) 90; Barde vs jagaba & Anor (2021) LPELR-55803(CA); IKpeazu vs Otti & Ors(2016) 2 SC (pt 11) 102.
For an appellate Court to set aside the judgment of a lower Court on technicality, there must be evidence that there was a miscarriage of justice arising from what was done or was not done. There will be a miscarriage of justice if the act is inconsistent with the substantial right of the parties in a case. A miscarriage of justice occurs when the act or the omission of the Court amount to lack of justice not in line with the law and much more when it does not promote fairness and equity between the parties. See Kraus Thompson Org. Ltd vs Unical (2004) LPELR-1715; Nwankwoala vs FRN (2018) LPELR-43891 (SC).
The Appellant’s case is that the judgment was dated 5/9/2020. but delivered on 10/9/2020. I cannot seem to see where there is any evidence that the judgment was delivered on 5/10/2020. The date on the judgment is 5/9/2020 and there is nothing apart from the submission of Counsel to show that the judgment was delivered on 5/10/2020. The only evidence seems to be at page 238 where the lower Court on 29/7/2020 adjourned the case for judgment to 5/10/2020. At page 239, the judgment was delivered and the date therein as the date it was delivered is 5/9/2020. The Appellant says the judgment was delivered on 5/10/2020. On the face of the document, the judgment was delivered on 5/9/2020 and not 5/10/2020. Even if the position of the Appellant is correct, there is nothing to show that the Appellant suffered any miscarriage of justice arising from the error of the dating of the judgment. In my opinion, the first issue could not be resolved in favour of the Appellant.
Now let me focus on the offence for which the Appellant was convicted and sentenced. He was convicted for forgery arising from the Appellant presenting a blank receipt from PW2 which he filled inserting figures which were presented to the management of the Gombe United Football Club. The management paid the amount of the figure on the blank receipt presented to it by the Appellant which the Appellant knew was not correct. This is the bases of the conviction. The above is the clear evidence before the lower Court which informed the finding and the conviction of the Appellant by the lower Court. The question therefore is whether the above evidence and finding satisfies the position of the law on the ingredients of the offence of forgery. The offence is defined in Section 363 of the Penal Code. My learned brother has stated the ingredient of the offence and I will not repeat same but just refer to Ndoma-Egba vs A. C. B. Ltd (2005) 14 NWLR (pt 944) 79; Alake vs The State (1992) LPELR-403 (SC). This Court in Dalyop vs The State (2013) LPELR-21898(CA) made this point in these words:
“It is therefore necessary to find out the meaning of forgery and its ingredients under the Penal Code in order to see whether the Respondent has established a case of forgery against the Appellant. Sections 363 and 364 of the Penal Code read: “363 whoever makes any false document or part of a document with intent to cause damage or injury to any person to part with property or to enter into any 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. 364 whoever commits forgery shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.” The object of forgery is to cheat others by wrongful acts of make belief as genuine document the accused knows is not genuine but only calculated to deceive in order to obtain unmerited and unconscionable favour and benefits to the detriment of the person to whom the document may be presented.”
A person is liable for the offence of forgery when he makes a false document knowing same not to be true and enjoying the benefit arising from another person acting on the document believing same to be true. The evidence is clear that the Appellant filled the figures in the blank receipt which figures he knows were not correct. For the receipt not to be false, the figure imputed into the must be the correct sum representing the actual expenses for feeding. The Appellant defrauded the management with the forged document, Exhibit E.
For the above reasons and much more for the fuller reasons advanced in the lead judgment, I also dismiss this appeal as lacking in merit. The decision of the lower Court is hereby affirmed.
SUMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother MUSLIM SULE HASSAN, JCA. I am in agreement with the reasoning and conclusions reached by him in this appeal.
For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.
Appearances:
L.A. HARUNA ESQ., with him, L.E. OGILE, A.S. DAVID ESQ., and M.E. JOSHUA ESQ. For Appellant(s)
S.E. OKEMINI Detective Superintendent EFCC For Respondent(s)