MARK ONOCHIE ODUAH V. FEDERAL REPUBLIC OF NIGERIA (2012)

MARK ONOCHIE ODUAH V. FEDERAL REPUBLIC OF NIGERIA

(2012)LCN/5149(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of February, 2012

CA/L/163/2002

RATIO

THE POSITION OF THE LAW ON THE EXPRESSION ‘ GROUND OF APPEAL’

In Metal Construction (WA LTD) VS. MIGLIORE 1990 1 NWLR (Part 152) 299 at 311, a ground of appeal was defined as “the allegation of error of law or fact made by an Appellant as the defect in the Judgment appealed against and on which it is relied upon to set is aside.” Order 5 Rule 2(2) (3) and (4) of the court of Appeal Rules 2011 portrays clearly what the contents and requirements of Notice of Appeal should be. I shall reproduce it verbatim. Order 6
Rule 2(2) “Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”
Rule 2(3) “The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the Appeal without any argument or narrative and shall be numbered consecutively”
Rule 2(4) “The Notice of Appeal shall be signed by the Appellant or his Legal Representative”
Indeed Order 6 Rule (3) is apt. It has this to say
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the Judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”By Order 5 Rule (5) of the Court of Appeal Rules 2011, the Court is however not restricted by Grounds of Appeal. I shall reproduce this provision verbatim. “Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant, provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.” This provision, I dare say, makes the Rule elastic, and directory. Breach of it would not render the appeal incompetent, but at best, the said defaulting grounds are liable to be struck out. PER. RITA NOSAKHARE PEMU J.C.A.

WAYS BY WHICH A GROUND OF APPEAL WHICH ALLEGES AN ERROR OR MISDIRECTION IN LAW CAN BE A VALID GROUND OF APPEAL

A Ground of Appeal shall not allege both misdirection and error at the same time or allege misdirection in law and fact in the same ground of appeal. INCAR (NIG). PLC VS. BOLEX ENT. (NIG.) LTD. (1996) 6 NWLR (Pt. 454) 318 at 324 Ratio 13. The law is elementary, that a ground of appeal is not supposed to serve a mere academic purpose, but to redress a wrong or perceived wrong. It therefore should not be an academic question. The Grounds of Appeal should address themselves to and consider the facts of the particular case. PETERS VS STATE (1992) 9 NWLR (Pt. 265) 323 @ 325 Ratio 3; LAAH VS OPALUWA (2004) 9 NWLR (Pt.879). In LUCAS PHARMACEUTICAL CHEMIST LTD VS. ROCHE (NIG) LTD (1995) I NWLR (Pt. 369) 28 @ 30, this Court held in Ratio 2 that for a Ground of Appeal which alleges an error or misdirection in law to be a valid ground of appeal, it must comply with the following condition:
a) Quote a passage in the Judgment where the misdirection or error in law is alleged to have occurred.
b) Specify the nature of the error in law or misdirection; and
c) Give full substantial particulars of the alleged error or misdirection.
The Ground of Appeal must state clearly the complaint against the Judgment so that the adverse party, or the Court is not thrown into a state of confusion in trying to decipher the content or nature of the ground. Therefore it must be specific and not general in terms.The decision of the lower court complaint against must be based on a question raised by the parties. The Appellant must have its grounds on substantial questions that were determined by the lower court, which were in controversy. Simply put, a ground of appeal shall be a concise statement of the Appellant’s complaint. The word concise is defined in the Advanced Learners Dictionary 6th Edition (Oxford) as “giving only the information that is necessary and important, using few words” A Ground of Appeal shall not contain arguments or narration. It shall not be argumentative. Where it becomes argumentative, then it becomes argument whose rightful place is in the Brief of Argument. To allow such would render the Brief of Argument otiose. A Ground of Appeal shall contain accurate particulars. These particulars give insight into the nature of the Ground of Appeal, as they bring to the fore the real complaint of the Appellant against the Judgment appealed. Therefore, the particulars must not be independent complaints from the grounds of appeal itself, but should be auxiliary to it. PER. RITA NOSAKHARE PEMU J.C.A.

MEANING OF VAGUENESS OF A GROUND OF APPEAL

In CBN VS. OKOJIE (2002) 8 NWLR Pt. (768) 48, the Apex Court dealt extensively with the meaning of vagueness of a Ground of Appeal. Uwaifo JSC (as he then was) had this to say at page 61. “Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars ore clearly irrelevant. See ATUYEYE VS. ASHAMU (1987) 1 NWLR (Pt. 49) 267; (1987) NSCC (Vol. 18. Pt. 1) 117. In the present case the ground of appeal is incompetent for incurable vagueness and being the sole ground, the notice of appeal is accordingly incompetent.” PER. RITA NOSAKHARE PEMU J.C.A.

THE POSITION OF THE LAW WHERE A PARTICULAR ATTACHED TO A GROUND DOES NOT FLOW FROM OR RELATE TO THE GROUND OF APPEAL

DEFITION OF THE TERM “MAKING A FALSE DOCUMENT IN WRITING”

ELEMENTS OF THE OFFENCE OF FORGERY

Section 465 of the Criminal Code provides that “A person who makes a false document or writing knowing it to be false, and with intent that it may be used or acted upon as genuine, whether in Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain in Nigeria or elsewhere is said to forge the document or writing”
It is clear that the offence of forgery can be committed without the element of fraud. All that needs to be established is that:
(a) The document is false
(b) Knowledge that the false document or writing is false
(c) Intention that same be used or acted upon as genuine
(d)To the prejudice of any person or with intent that any person may, in the belief that it is genuine be induced to do, or refrain from doing any actAt page 206 of the Record of Appeal, the Appellant in making his defence had this to say. PER. RITA NOSAKHARE PEMU J.C.A.

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

MARK ONOCHIE ODUAH Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

RITA NOSAKHARE PEMU J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Failed Bank (Recovery of Debts) and Financial Malpractice in Banks Tribunal, Lagos Zone, holden in Lagos, as contained in the Judgment of the Chairman of the Tribunal, Coram Honourable Justice AMINA AUGIE, delivered on the 9th of June 1997, whereby the 5th accused person, the Appellant herein) was sentenced to a term of imprisonment for 12 (twelve) months.
It is for the offence of forgery, as reflected in count 18 of the charge.
FACTS OF THE CASE
The Appellant and four other persons were charged with a 78 counts charge of various offences. They spanned from the offences of stealing, obtaining by false pretences, receiving gratification, forgery, conspiring, and offences in relation to dishonoured cheques, and other offences. In the course of trial, the prosecution withdrew counts 19-78 of the charge, which counts were accordingly, struck out.
The Appellant was the 5th accused person, and he was charged with one count only, namely count 18. It reads thus:-
“That you, Mark Onochie Oduah, while being on officer of A.C.B. in Lagos, on or about the 10th day of August 1993, did commit a felony, to wit, you committed the offence of forgery .in that you fraudulently included in the list of companies whose cheques are accommodated for guidance facility in respect of account No. 4319 at Nsukka Branch of the Bank, the names of companies not approved by the Executive Director and you thereby committed on offence punishable under Section 467 of the Criminal Code.”
The accused persons all pleaded “Not Guilty” to the respective counts against them. The prosecution called eight witnesses, PW1-PW8 and the accused persons testified. The Appellant testified as DW4 and called DW5, DW6 and DW7 as his witnesses.
At pages 27 of the Record of Appeal it is explicit that the 5th accused person pleaded not guilty to the 18th count on the charge sheet.
The prosecution’s story is that sometime in 1991, the management of A.C.B. Ltd observed that the Bank’s clearing accounts with the Central Bank was consistently overdrawn. This was as a result of indiscriminate purchase of cheques by branch managers and fraudulent lodgments of other banks’ cheques by customers into their accounts with ACB Ltd, knowing that these customers had no fund from the originating banks or branches to cover the cheques.
The management of A.C.B Ltd then resolved that no manager or other staff of the bank should purchase any cheques into any customer’s accounts and that any cheque lodged into A.C.B Ltd branch by a customer should be allowed to run the full clearing circle and that no staff should accord value to any such cheques before they were cleared.
If there arose, however, any need for a customer to draw against such cheques before they are cleared, the branch manager should document such necessity and forward same to the Executive Director (operations) for approval and or guidance.
This new introduction was labeled “GUIDANCE FACILITY”, the operation of which resulted in the series of transaction giving rise to the charge against the Appellant and four others.
The 5th accused person (the Appellant herein) was a manager at the Head Office of Ohoazara branch of A.C.B. Ltd. of which the 4th accused person was manager.
The Assistant General Manager of A.C.B Ltd (PW4), on one of his unscheduled visits to the Nsukka Branch of the Bank discovered that staff were not complying with this novel directive.
On the 3rd of June 1994, the inspectorate team of A.C.B. Ltd discovered that some staff flouted this directive.
PW6, Josephat Nnaemeka Jeseofor Madueke who testified for the prosecution and who knows the 5th accused person (Appellant) was the Executive Director (Operations) for A.C.B. Ltd. He stated that the Appellant worked under him at the operations department, and that in the discharge of the duties of the office, he received a memo from the Appellant. That memo is Exhibit “Z”. When he reviewed the companies which were involved in the guidance facility, he cancelled Paritz AWTS Holding (Nig) Ltd because it was not in line with their policy of companies whose cheques will be considered for guidance facility. He then minuted on Exhibit “Z” that approval was granted in the old amount of N3,000,000.00 (Three Million Naira).
To his amazement however, in a letter which the Appellant sent to the Nsukka Town Branch (Exhibit E26) Universal Vegetable Oil Company and Paritz AWTS Holding (Nig) Ltd were listed among the companies approved for the enjoyment of the guidance facility.
The defence of the Appellant, testifying as DW4 was that while his duties in the Head Office of A.C.B. Ltd included the processing of applications from branches in respect of guidance facilities and that upon the receipt of the applications recommending customers for guidance facilities, they are passed onto management with a recommendation for their approval or otherwise. The decisions of management are thereafter passed on by them to the branches. The Appellant worked directly under Mr. S.A. Okorie who was a Senior Manager. That the letter which the prosecution claimed contained additional companies for approval for enjoyment of guidance facilities was signed by both the Appellant and the said S.A. Okorie. That the letter Exhibit Z came to him from S.A. Okorie the Senior Manager with whom he signed the letter conveying the decision of management to the branch.
Under cross-examination, the Appellant maintained that there was no cancellation of the last company in Exhibit “Z”, when approval was given and passed on to him by the Executive Director.
However, when re-examined, the Appellant had this to say as shown at page 208 of the Record of Appeal.
“There is no where in my reply that I said I did not sign alone. It is true that the 1st time I am saying I did not sign alone is here is this Court; the document come from the DGM to the ED. I signed on behalf of the DGM.”
From records, a motley of Exhibits were tendered. Exhibits A-Z, and the Tribunal, having appraised the evidence before it, convicted the Appellant on the g/6ftgg7. He was thereafter sentenced to a term of 12 months imprisonment for the offence of forgery in count 18 of the charge on the 24/6/1997. The Appellant and other accused persons were deemed to have served their sentences and were thereby discharged from prison custody.
The Appellant is dissatisfied with the decision of the Tribunal of the 9th of June 1997 and this is why he has wielded his right, in consonance with the practice Direction of this Honourable Court by filing a Notice of Appeal on the 5th of March 2003, encapsulating 10 (ten) Grounds of Appeal. See pages 303-312 of the Record of Appeal.
The gravamen of the Appellant’s appeal as reflected in his Grounds of Appeal is that the Ingredients of Forgery has not been established to warrant a conviction, and the failure of the Tribunal to elicit evidence from one Okorie, who was alleged to have signed Exhibit Z with the Appellant.
The Appellant filed its Brief of Argument on the 12th of September 2003 with one sole issue for determination as seen at page 2 of his Brief of Argument.
It is
“whether the Tribunal was right in convicting the Appellant of the offence of forgery, contrary to Section 467 of the Criminal Code, based on the evidence and the charge before the Court.”
The Brief is settled by Dr. Onyechi Ikpeazu and in examining this issue, he sought leave of the Court to do so under the following subsidiary issues; namely
i) Did the evidence that was tendered before the Tribunal disclose the ingredients required in order to sustain a conviction under Section 467 and 464(b) of the Criminal Code?
ii) Did the failure to cite the document alleged to be forged in the charge render the charge defective?
iii) Was the non-production of evidence of S.A. Okorie, the Appellant’s superior who signed Exhibit 26 jointly with the Appellant fatal to the case for the prosecution?
iv) Did the evidence of the prosecution particularly the unsatisfactory evidence of PW6 warrant the decision of the Tribunal that the Cancellation in Exhibit Z was made before the document was minute to the Appellant and that it was the Appellant who supplied the additional Company in Exhibit E26?
Let me quickly observe here that the Appellant did not indicate what Ground of Appeal this sole issue is distilled from. This constitutes bad drafting and same is hereby deprecated.
On the Respondent part, he filed his Brief of Argument on the 10th of May 2004, but pursuant to a motion on notice filed on the 22nd of November 2010 to amend its Brief of Argument dated 10th of May 2004, the application was granted on the 8th of February 2011. The Respondent’s amended Brief of Argument and Notice of preliminary Objection was therefore deemed filed on the 8th of February 2011. The Respondent adopts the only issue for determination as formulated by the. Appellant in his Brief of Argument as the only issue which calls for determination in this appeal. Howbeit, the Respondent substitutes the word “of” thereat for the word “for” so that the said issue can now read
“whether the Tribunal was right in convicting the Appellant for the offence of forgery, contrary to Section 267 of the Criminal Code, based on the evidence and the charge before the Tribunal – all the grounds of appeal.”
This was the amendment sought and obtained by order of Court of 8th February 2011.
The Appellant had filed a reply brief on the 18th of November 2004.
I shall deal first and foremost with the Preliminary Objection raised by the Respondent in his Amended Brief of Argument filed on the 22nd of November 2010.
The gravamen of the grounds of the said objection are:
i) Some of the Grounds of Appeal are repetitive of one another, for example, grounds VII and IX.
ii) Some of the grounds of the said appeal are not cognizable grounds of appeal for example grounds II and III.
iii) The particular of most of the grounds of appeal are unwieldy, prolix and argumentative. See Grounds I, particulars (1) (3) and (4); Ground II, particular (2); Ground II, particulars (1) and (2); Ground IV, particulars (1) (2) and (3); Ground V, particulars (1), (2), (4), (5), (6), (7), (8), (9), (10) and (11); Ground VI, particulars (1), (2), (3), (4), (5), (6) and (7); Ground VII, particulars (1), (2) and (3); Ground IX, particulars (5), (6), (7), (8), (9) and (10).
Ground 1, through V of the Grounds of Appeal talks about the learned trial Tribunal erring in law. Grounds VI and VII talks about the Tribunal misdirecting itself in law. Grounds VIII, IX complains about the error in law, while Ground X is an omnibus ground.
In Metal Construction (WA LTD) VS. MIGLIORE 1990 1 NWLR (Part 152) 299 at 311, a ground of appeal was defined as “the allegation of error of law or fact made by an Appellant as the defect in the Judgment appealed against and on which it is relied upon to set is aside.”
Order 5 Rule 2(2) (3) and (4) of the court of Appeal Rules 2011 portrays clearly what the contents and requirements of Notice of Appeal should be. I shall reproduce it verbatim.
Order 6
Rule 2(2) “Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”
Rule 2(3) “The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the Appeal without any argument or narrative and shall be numbered consecutively”
Rule 2(4) “The Notice of Appeal shall be signed by the Appellant or his Legal Representative”
Indeed Order 6 Rule (3) is apt. It has this to say
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the Judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”By Order 5 Rule (5) of the Court of Appeal Rules 2011, the Court is however not restricted by Grounds of Appeal. I shall reproduce this provision verbatim.
“Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant, provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
This provision, I dare say, makes the Rule elastic, and directory. Breach of it would not render the appeal incompetent, but at best, the said defaulting grounds are liable to be struck out.
A Ground of Appeal shall not allege both misdirection and error at the same time or allege misdirection in law and fact in the same ground of appeal. INCAR (NIG). PLC VS. BOLEX ENT. (NIG.) LTD. (1996) 6 NWLR (Pt. 454) 318 at 324 Ratio 13.
The law is elementary, that a ground of appeal is not supposed to serve a mere academic purpose, but to redress a wrong or perceived wrong. It therefore should not be an academic question. The Grounds of Appeal should address themselves to and consider the facts of the particular case. PETERS VS STATE (1992) 9 NWLR (Pt. 265) 323 @ 325 Ratio 3; LAAH VS OPALUWA (2004) 9 NWLR (Pt.879).
In LUCAS PHARMACEUTICAL CHEMIST LTD VS. ROCHE (NIG) LTD (1995) I NWLR (Pt. 369) 28 @ 30, this Court held in Ratio 2 that for a Ground of Appeal which alleges an error or misdirection in law to be a valid ground of appeal, it must comply with the following condition:
a) Quote a passage in the Judgment where the misdirection or error in law is alleged to have occurred.
b) Specify the nature of the error in law or misdirection; and
c) Give full substantial particulars of the alleged error or misdirection.
The Ground of Appeal must state clearly the complaint against the Judgment so that the adverse party, or the Court is not thrown into a state of confusion in trying to decipher the content or nature of the ground. Therefore it must be specific and not general in terms.The decision of the lower court complaint against must be based on a question raised by the parties. The Appellant must have its grounds on substantial questions that were determined by the lower court, which were in controversy.
Simply put, a ground of appeal shall be a concise statement of the Appellant’s complaint. The word concise is defined in the Advanced Learners Dictionary 6th Edition (Oxford) as “giving only the information that is necessary and important, using few words”
A Ground of Appeal shall not contain arguments or narration. It shall not be argumentative. Where it becomes argumentative, then it becomes argument whose rightful place is in the Brief of Argument. To allow such would render the Brief of Argument otiose.
A Ground of Appeal shall contain accurate particulars. These particulars give insight into the nature of the Ground of Appeal, as they bring to the fore the real complaint of the Appellant against the Judgment appealed. Therefore, the particulars must not be independent complaints from the grounds of appeal itself, but should be auxiliary to it.
In CBN VS. OKOJIE (2002) 8 NWLR Pt. (768) 48, the Apex Court dealt extensively with the meaning of vagueness of a Ground of Appeal. Uwaifo JSC (as he then was) had this to say at page 61.
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars ore clearly irrelevant. See ATUYEYE VS. ASHAMU (1987) 1 NWLR (Pt. 49) 267; (1987) NSCC (Vol. 18. Pt. 1) 117. In the present case the ground of appeal is incompetent for incurable vagueness and being the sole ground, the notice of appeal is accordingly incompetent.”

The particulars of a Ground of Appeal are intimately related to the ground and cannot be divorced from it. Therefore, where a particular attached to a ground does not flow from or relate to the ground of appeal, it must be struck out, in other words, the particulars as well as the ground it purportedly flows from must be struck out, as the Court is not a surgeon who will excise the bad part from the ground. Thus a particular, merely highlights the main ground and is not an independent complaint against the Judgment.Regarding omnibus ground in a Notice of Appeal – it is couched depending on whether it is a civil case or a criminal case.
In civil cases, it is couched that the Judgment is against the weight of evidence. In criminal cases, the omnibus ground is that the Judgment is unreasonable, unwarranted and cannot be supported by weight of evidence.
I have endeavoured, as concisely as possible to restate the law as it is regarding the formulation of grounds of appeal. Sufficient enough to view the grounds raised in the Preliminary Objection vis-a-vis the grounds of appeal inherent in the Notice of Appeal. This is to enable one see how tenable the preliminary objection is.
In Ground (1) of the Preliminary Objection, learned counsel for the Respondent, Muyiwa Ogunkolade Esq. had argued that Grounds VII and IX of the Grounds of Appeal are repetitive of one another. But in his brief of argument, he referred to Ground VI at paragraph 1.1 at page 2.
Ground VII of the Grounds of Appeal has this to say-
“The learned trial Judge of the Failed Bank Tribunal Lagos Zone V misdirected himself in law when he held as follows:-
“The 5th Accused person con get away with the defence of on honest and reasonable mistake in the case of Paritz AWTS Holdings Limited included in Exhibit E26, but what about Universal Oil Limited, which was not even recommended by 5th Accused in Exhibit Z, but is on the list of approved companies in Exhibits E26”
In Ground IX of the Grounds of Appeal, it says-
“The Tribunal erred in low and come to a wrong decision, which is resulted in a miscarriage of justice when it held thus:
“The 5th Accused person can get away with the defence of on honest and reasonable mistake in the case of Poritz AWTS Holdings Limited included in Exhibit E26, but what about Universal Oil Limited which was not even recommended by the 5th Accused in Exhibit X, but is on the list of approved companies in Exhibit E26. As Mr. Abubakar rightly observed”
Indeed Ground IX was essentially repetitive of Ground VII. There is however an extension of Ground IX which Ground VII does not have.
I find Ground IX as repetitive of Ground VII to a large extent, and in the exercise of my discretion, I shall strike out Ground VII and same is hereby struck out.
In Ground (II) of the Preliminary Objection, learned counsel had argued that some of the Grounds of the said appeal are not cognizable grounds of appeal for example grounds II and III.
A cursory look at Ground II of the Grounds of Appeal shows that the Appellant is quarrelling about the charge before the lower court and not the decision of the lower court. Indeed that ground and its particulars are argumentative and narrative, and should have been in the argument in the Appellant’s brief.
Moreso, the couching of the ground that the learned trial Tribunal Judge of the Failed Bank Tribunal, Lagos Zone V erred in law and occasioned a miscarriage of Justice, amounts to bad drafting by the Appellant’s counsel.
As earlier postulated in this Judgment, a Ground of Appeal shall disclose a reasonable ground of complaint, devoid of vagueness. There is no ground of appeal which should quarrel about an error in law and occasioning of gross miscarriage of justice at the same time. Such a ground is decidedly incompetent and liable to be struck out. See ELENDU V. EKWOADA (1995) 3 NWLR (At 386) 704 at 719 Ratio 34; AKUCHIE V. NNAMADI (1992) 8 NWLR (Pt. 258) 214 at 223.
Ground II, being vague and argumentative is hereby struck out.
This same virus extends regrettably to Ground III in the Notice of Appeal where the Appellant said
“The Learned Trial Tribunal Judge of the Foiled Bank Tribunal Lagos Zone V erred in law and thereby occasioned a gross miscarriage of justice when the Tribunal failed to hold that the non production of the evidence of Mr. S.A. Okorie, the 5th deceased person’s superior who signed Exhibit E26 jointly with the 5th accused person was fatal to the case of the prosecution”
The complaint in a ground must be in the nature of error in law or error on the fact, OR error on mixed law and fact. It is therefore not proper to say that the learned trial Judge erred in law and thereby occasioned a gross miscarriage of justice, because the law and the extant Rules of the Court of Appeal do not provide for such drafting.
I find Ground III as prolix and vague and same is hereby struck out. In Ground III of the grounds of objection of the Respondent, it has this to say-
“The particulars of most of the Grounds of Appeal are unwieldy prolix and argumentative. See Grounds 1, particulars (1) (3) and (4); Ground II, particular (2); Ground III, particulars (1) and (2); Ground IV, particulars (1), (2) and (3); Ground V, particulars (1), (2), (4), (5), (6), (7), (8), (9), (10) and (11); Ground V, particulars (1), (2), (3), (4), (5), (6) and (7); Ground VII, particulars (1), (2) and (3); Ground IX particulars (5), (6), (7), (8), (9) and (10).”
I had struck out Grounds II, III and VI of the Grounds of Appeal. There would therefore be no need to dwell on it further.
However, I shall consider the objection in respect of the other Grounds and particulars complained of. They are Grounds I, IV, V and Ground IX.
In Ground I, the Appellant has again faulted in his drafting of the Ground in the sense that he quarreled about error in law, and occasioning of gross miscarriage of justice. This is fatal to this Ground which is liable to be struck out and same is hereby struck out. Moreso, I find all the particulars buttressing Ground I as argumentative, prolix and unwieldy. The facts therein are ones which should have constituted the Appellant’s argument in his Brief of Argument. Ground 1 is accordingly hereby struck out.
Indeed Grounds IV, V have the same virus as Ground I and same are hereby struck out.
Regarding Ground IX, particulars (5), (6), (71, (8), (9) and (10) are argumentative, imprecise, unwieldy and incomprehensible and are liable to be struck out and same is hereby struck out.
What is left for the Appellant are Grounds VI, VIII and X.
Ground VI shorn of its particulars has this to say-
“The Learned Trial Tribunal Judge of the Failed Bank Tribunal Lagos Branch misdirected himself in law when he held as follows:-
“I find as a fact that it was 5th Accused who inserted the names of the two companies which were not approved on the approval list of companies in Exhibit E26”
Ground VIII says –
“The Tribunal erred in law in holding that Section 464(b) of the Criminal Code was applicable and that the 5th Accused is caught by Section 464(b) of the Criminal code and consequently convicted and sentenced the 5th Accused on count 18 of the charge”
Ground X which says that-
“The verdict of the Learned Trial Judge is unreasonable and cannot be supported having regard to the evidence”
is one which is in order, as the Notice of Appeal has to do with criminal matter.
I shall consider this appeal based on Grounds VI, VIII and X only.
At the expense of repetition, the Appellant’s sole issue for determination is-
“whether the Tribunal was right in convicting the Appellant of the of offence of forgery, contrary to Section 467 of the Criminal Code, based on the evidence and the charge before the Court.”
This sole issue flows from the Grounds VI and VIII of the Ground of Appeal.
It is the argument of learned counsel for the Appellant that the evidence of the prosecution, particularly, the unsatisfactory evidence of PW6 did not warrant the decision of the Tribunal to the effect that the cancellation in Exhibit Z was made before the document was minuted to Appellant and that it was the Appellant who supplied the additional company in Exhibit E26.
He argues that the ingredients required to sustain a conviction for forgery were not established, in convicting the Appellant under Section 467 and 464(b) of the Criminal Code. He argues that, before a charge of forgery, (as in the instant case) can be successfully maintained against an accused person, the Court must critically examine the ingredients of the offence and ascertain after proper evaluation of the evidence, that the act of the accused person came within the confines of the particulars of the offence, citing AMADI VS. STATE (1993) 8 NWLR (Part 314) 644; IDOWU VS. STATE (1998) 11 NWLR Part (574) 351 at 368.
He further argues that in an offence of forgery, the necessary fraudulent intent as laid down in Section 464(b) of the Criminal Code must be established by clear and convincing evidence.
He argues that Subsection (1)(2)(3)(4) and (5) of Section 467 of the Criminal Code Law (which deals with aggravated instances) are not applicable to the charge before the Tribunal.
Learned counsel had argued that the crux of the offence of forgery is not the telling of a lie, or falsehoods that are reduced to writing, but that it is essential that it refers to an instrument which tells a lie about itself in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was made or altered. R V. DODGE AND HARRIS (1972) 1 Q.B. 46 R V WINDSOR 1865 10 COV. 118 at 123.
Thus telling a lie does not become a forgery because it is reduced into writing. He argues that alteration or additions to a document are necessary ingredients for a document to be forged, as distinct from the documentation of falsehood in a separate document. He argues that the operative term in Section 465 of the Criminal Code is making a “false document” and not to tell a lie on a document. That to make a false document connotes that the document must be falsified, or that the writing in a document must be falsified.
The prerequisite therefore, is that there must be in existence a document which is then made false by a subsequent conduct of the person accused, or a subsequent writing of the accused person, on that same document.
Learned counsel argued that the conduct of the Appellant and S.A. Okorie of not complying with the directives issued to them by their superiors, amount to a dereliction of duty. They at best acted in excess of their authority by preparing Exhibit E26 in a manner that derogated from the laid down instructions from the management of the Bank.
He argues that Exhibit E26 did not tell a lie about itself by purporting to be that which it was not. That the prosecution’s case is that it contained in false statement by the inclusion of two companies that were not approved for guidance facility. He argues that no document was altered by a parson who did not make it.
He argues that Exhibit E26 originated from the Appellant and Mr. Okorie who were authorized to originate such document. It did not contain alterations or addition to the information originating from management. He argues that Exhibit E26 was a genuine document on the face of it, and it originated from the Appellant and S.A. Okorie.
Referring to the evidence of PW8, the Investigating Police Officer, he argues that it was not disputed that the Appellant had a right to convey approval. He only failed to consult the Bank. And this, cannot amount to forgery while citing the case of R V. SCOTT 13 WACA 25, he submits that the West Africa Court of Appeal in that case held that where an agent who had general authority to sign a cheque and fraudulently makes out a cheque for a payment not due, he was not guilty of forgery.
In MORISON V. LONDON COUNTY & WESTMINISTER BANK (1914) 3 K.B. 356, it was held that while an agent exceeds his authority, such as by including in a list of authorized companies, those that were not authorized it may amount to a fraudulent act accomplished in excess of authority, but certainly not forgery of a document, which he himself authenticated. Citing OSONDU V. FRN (2000) 12 NWLR (Pt.682) 483 at 504, 506, 507 & 508; ODU V. STATE (1965) 1 ALL NLR. 25.Learned counsel argues that the Tribunal was wrong to have restricted the application of the principle in R V. SCOTT. The law did not create any special class of cases for cheques.
Learned counsel for the Appellant has in essence, argued that the Appellant was misled as to the actual document he allegedly forged. This offends the provisions of Section 166 of the Criminal Procedure Act, he argues. Section 166 of the Criminal Procedure Act has this to say –
“No error in stating the offence, or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misted by such error or omission”
I have painstakingly perused the arguments advanced in the Appellant’s Brief of Argument.
Noteworthy is that the Appellant was not charged with conspiracy. Neither was any of the other accused persons. The Appellant, in count 18 on the charge sheet (pages 3-11 of the Record of Appeal) filed on the 27th of June 1996 was charged thus:
“That you MARK ONOCHIE ODUAH while being an officer of the African Continental Bank in Lagos on or about the 10th of August 1993, did commit o felony, to wit, you committed the offence of forgery in that you fraudulently included in the list of company’s whose cheques are accommodated for guidance facility in respect of account No. 4319 at Nsukka Branch of the bank, the names of companies not approved by the Executive Director and you thereby committed an offence punishable under Section 467 of the Criminal Code Act Cap. 77 Laws of the Federation of Nigeria 1990 read together with Section 3(1)(d) of the Failed Banks Decree No. 18 of 1994.”
Ex facie, the charge is defective. This is because, there should have been a column for “statement of offence” and another column for “particulars of offence”. To have lumped both together makes the charge and indeed the count defective.
But Section 166 of the Criminal Procedure Act Cap. C41, cures this apparent defect, subject to where the accused person is misled by such error or omission. At the expense of repetition, it has this to say-
“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission.”
But this is the crux of the case of the Appellant in his sole issue for determination. It is that the Appellant is misled by the omission to state the particulars of the offence of forgery, with which he is charged.
It is only the punishment section that is stated on count 18.
It is Section 465 and not Section 464 of the Criminal Code Law Cap C38, that defines the offence of forgery as-
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in the state or otherwise, to the prejudice of any person’ or with intent that any person may, in the belief that it is genuine, be induced to do a refrain from doing any act, whether in the state or elsewhere, is said to forge the document in writing”

The term “making a false document in 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”
The word “document” includes a register or register books, or part of either, and any book, and any paper, parchment, or other material whatsoever, used for writing or printing, which is marked with any letters of marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them, but does not include trade marks on articles of commerce.
The word “writing” includes an inscription on wood, stone, metal or other material, it also includes a mere signature and a mark of any kind.
Section 2(1) of the Failed Banks (Recovery of Debts) and Financial Malpractices Banks Decree No. 18 of 1994 it says-
“When the Tribunal is ready to commence the trial, the accused shall be brought before it and the Tribunal shall read or cause to be read to him the substance of the complaint against him and he shall be asked whether he is guilty of the offence or offences charged.” (Underlined for emphasis).
On the count 18, it refers to Section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994.
Section 3(1)(d) talks about the power of the Tribunal to try other offences relating to the business or operation of a bank under any enactment.
Section 18 of the Supplementary Provision to Schedule 2 to the Decree has this to say –
“where there rules contain no provision in respect of any matter relating to or connected with the trial of offences under this Decree, the provisions of the Criminal Procedure Code or, depending on the venue, the Criminal Procedure Act shall, with such modifications as the circumstances may require, apply in respect of such matter to the some extent as they apply to the trial of offences generally”
Notably is that there is no format for charges against accused persons in the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994.
In the alternative to the Preliminary Objection, learned counsel for the Respondent argues that the formulation of four sub-issues from the sole issue for determination by the Appellant is an unnecessary Innovation and urges this Court to strike out same.
In his reply brief filed on the 18th of November 2004, learned counsel for the Appellant argues that this has to do with form and not substance. He cites AKPAN V. THE STATE (1992) 6 NWLR (Part 248) 439 @ 456-457 where Uche Omo J.S.C. (as he then was) had this to say –
“It is settled that a bad, faulty or inelegant brief, though may attract some adverse comments from the Appeal Court, it is still a brief though faulty and as such the appellate court would not close its eyes to the fact of its existence. Thus the fact that the brief of argument is poorly written would not discharge the appellate court from its duty of doing substantial justice to the parties appealing before it”
NIGERIAN BREWERIES PLC V. OLADEJI (NIG.) LTD (2002) 15 NWLR (Pt. 791) 589; LAWAL V. SALAMI (2002) 2 NWLR (Part 752) 687 at 710.
In formulating issues for determination, decidedly, counsel must avoid prolixity and keep closely within the confines of the grounds of appeal relied upon.
Ideally, a party cannot formulate more issues than one from a ground of appeal. Appeals are heard and decided on issues raised on the grounds of appeal filed before the Court.
A cursory looks at Issue No. 1 on the Appellant’s brief, shows that it refers to both the charge and the evidence before the Court. The four subsidiary issues deal with these matters of “charge” and “evidence” before the Court.
In ANAEZE V. ANYASO (1993) 5 NWLR (Pt. 291) 1; it was held that although framing two issues from a single ground of appeal by an Appellant amounts to proliferation of issues, the practice of which had been frowned at in several cases by the Supreme Court, the Appellant’s ground three and issues (i) and (ii) formulated therefrom in this case were competent to sustain the instant appeal. BURAIMOH V. BAMGBOYE (1989) 3 NWLR (Pt.109) 352; YUSUF V. AKINDIPE (2000) 8 NWLR (Pt. 669) 376; UTIH V. ONOYIVWE (1991) 1 NWLR (Pt.166) 166.
While Rules of Court and Procedure are made to be obeyed, and where their strict observance may lead to injustice on any of the parties, the Court should be liberal in interpreting the rules in order to do substantial justice. A.G OF BENDEL STATE V. A.G OF THE FEDERATION (1982) NCLR. 1 at 112-113.
I find no problem with the subsidiary issues as they flow from the sole issue for determination. One must bear in mind that the present appeal had to do with a criminal matter. Substantial justice, more than anything else is the watchword. The application by learned counsel for the Respondent that this Court discountenances and strikes out all the sub-issues is misconceived and is hereby refused.
Learned counsel for the Respondent had argued that “fraud” is distinct from “forgery” citing AINA V. JUNAIDU (1992) 4 NWLR (Pt. 233) 91. He argues that Section 465 of the Criminal Code Law does not provide for fraud as an element of forgery.
A careful look at learned counsel for the Respondent’s argument seems to me that this matter is not a criminal one. It certainly has to do with a criminal charge, and I dare say that the consideration of criminal matter differs from that in a civil matter. While, with the former, you must prove your charge beyond reasonable doubt, the latter can be established on a preponderance of evidence.
The scale of justice in that regards shifts.
In the prosecution of criminal matters, any doubt that rears its head must be resolved in favour of the accused person.
I would desire that this fact be borne in mind in considering this appeal.
The gravamen of the Appellant’s sole issue for determination (adopted by the Respondent) is whether the charge against the Appellant was established beyond reasonable doubt, having regard to the evidence before the Tribunal.
The argument of learned counsel for the Respondent that the only issue for determination is not a life issue but that it contains mere academic, hypothetical and speculative questions is ludicrous. This is because that issue is the very life issue in this matter. In other words, there is the need to prove a charge before the Court by cogent, compelling and credible evidence, moreso a criminal charge which must be established beyond reasonable doubt.
Section 465 of the Criminal Code provides that
“A person who makes a false document or writing knowing it to be false, and with intent that it may be used or acted upon as genuine, whether in Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain in Nigeria or elsewhere is said to forge the document or writing”
It is clear that the offence of forgery can be committed without the element of fraud. All that needs to be established is that:
(a) The document is false
(b) Knowledge that the false document or writing is false
(c) Intention that same be used or acted upon as genuine
(d)To the prejudice of any person or with intent that any person may, in the belief that it is genuine be induced to do, or refrain from doing any actAt page 206 of the Record of Appeal, the Appellant in making his defence had this to say
“I work directly under Senior Manager at that time was one Mr. S.A. Okorie. The letter Exhibit Z that I was alleged to have forged came to me from Mr. Okorie the Senior Manager. The letter conveying approval was signed by myself and Mr. Okorie. tt was not signed by me alone. Exhibit E and Exhibit C-D in page 26 of Exhibit E is the document signed by me and Mr. Okorie conveying the approval. There was no other approval conveyed by me to the branch. Exhibit Z is addressed to E.D (Operation) and it is my recommendation to the E.D. In Exhibit Z, the name of the last company is crossed out in the approval, the company was not crossed out.
The usual practice is that such a cancellation would have come with an endorsement i.e. it would have been initialed that it was corrected.
He went on
“I did not get a query on this issue until the last Friday in April 1994.
Under cross-examination, the Appellant had this to say, answering questions put to him by the Prosecutor
“What I am saying is that there was no cancellation of the last company in Exhibit Z, when it was approved and passed on to me by the E.D. Even if there was such cancellation, my other leg of defence that t signed the approval letter together with my superior Mr. S.A. Okorie,,,,,,,,,,,,,It is true that there is no where in my replies to the query when I said that there was no cancellation by the E.D. when the approval was sent to me.
When he was re-examined, he said.
“There is nowhere in my reply that I said I did not sign alone. It is true that the 1st time I am saying I did not sign alone is here in this Court; the document came from the DGM to the E.D. I signed on behalf of the DGM.”
It is the contention of the learned counsel for the Respondent that in Exhibit Z which was the recommendation of the Appellant to the Executive Director, the name of Paritz AWTS Holdings Nigeria Limited was cancelled, while the name of the Universal Oil was not even included in his own list. When PW6 received Exhibit Z, he cancelled out Paritz AWTS Holding Nigeria Limited, because according to him “it was not in line with our policies of companies whose cheques will be considered for the guidance facility.”
That surprisingly, when approval was conveyed to the affected branch, the name of Paritz AWTS Holdings Nigeria Limited which was cancelled out by PW6 was inserted by the Appellant, so also the name of Universal Oil that was not even recommended to the management in the first instance by the Appellant.
He argues that accordingly, the offence of forgery has been established. That PW6 did not authorize the inclusion of these two companies. This falls within the definition of a false document under Section 464(b) which is
“If the whole or some material part of the document or writing purports to be made by or on behalf of some person who did not make it or authorize it to be made or if, in a case whereby or by the authority of the person by whom it purports to be made, it is with a fraudulent intent. Falsely dated as to the time or place of making ….”
As elegant as submission of learned counsel for the Respondent is, there are certain issues that plague my mind.
The Appellant had said in evidence inter alia that
“My duties include doing duties designed to me by my supervisor’…” (See pages 205-206 of the Record of Appeal).
His supervisor is Mr. S.A. Okorie. He never testified. I wonder why. His testimony would have thrown much more light on the matter. Moreso as the Appellant said that they signed the document Exhibit Z together. He was in my view a crucial and material witness, and failure to call him is fatal to the case of the Prosecution.
PW6, Josephat Nnaemeka Jeseofor Madueke testifying has this to say inter alia. That he cancelled out Paritz AWTS Holdings (Nig.) Limited. This is because it was not in line with the stated objective. That in Exhibit Z, no Universal Oil Company and Paritz AWTS were approved but they are on the approval letter
sent by the Appellant to the branch. He said he did not initial the cancellation.
Under cross-examination, he did say inter alia
“I will not know what transpired between the 5th accused and Okorie…”
It will not be right to say that the 5th accused (Appellant) acted unilaterally since he signed with Okorie.
He went on “As far as Exhibit E, page 26 is concerned, the 5th accused did not sign alone” Pages 105-107 of the Record of Appeal.
Now, looking at this evidence on record, and the non-production of S.A. Okorie to testify, there are some doubt on my mind as to whether any nexus has been made out against the Appellant. It is not a case of preponderance of evidence, but that of proof beyond reasonable doubt.
Regrettably there is nothing from the totality of the evidence that enables me to infer mens rea as it relates to the offence of forgery against the Appellant. PW6 did not say that the Appellant actions or inactions, or omission for that matter caused any injury to anybody.
PW6 had testified unequivocally at page 108 of the Record of Appeal that
“It is not entirely correct to say Central Bank stopped us from tending. We were entitled to lend whatever we recover’……..Guidance facility is not the some as lending.” (Underlined for emphasis).
The Appellant had testified that one copy of Exhibit E26 was put in circulation within management while another copy was sent to the E.D. (Operations), and that the E.D. (Operations) must have seen either a copy of Exhibit E26 in the general circulation file or the one in his own file. He did not query the inclusion of Paritz Awts Holdings (Nig.) Limited until nearly nine months from the date of Exhibit E26.
The successor to PW6, in a minute dated 8th November 1993, and addressed to the DGM (Operations) approved the list of Companies in Exhibit E26, including Paritz AWTS Holdings (Nig.) Ltd. for the 1st accused guidance facility in Ohaozare branch. Why would the same company adjudged by PW6 to be ineligible for guidance facility on the 4th of August 1993, approved for guidance facility on 8/11/93?
In his Judgment, the learned Chairman of the Tribunal at page 41 of his Judgment (page 271 of the Record of Appeal) had observed thus
“The question now is, who put the names of Paritz AWTS and Universal Oil Ltd, in Exhibit E26, the letter conveying the approval of management to the branch?”
The 5th accused person (The Appellant herein) had said that Exhibit E26 was signed by S.A. Okorie and himself.
“The fact that Exhibit E26 was signed by another person apart from the 5th accused will not qualify as a justifiable defence” said the Learned Chairman of the Tribunal.
But with respect, that is a justifiable defence and it was pertinent that the prosecution produces that other person, which he failed to do. This is fatal to the case of the prosecution
The prosecution had failed to establish forgery against the Appellant. The query issued to the 5th accused person (The Appellant herein) dated 22nd April 1994 (Exhibit II) does not establish any offence against him. Neither does it establish his guilt.
What the Appellant did, may have amounted to administrative excesses, but certainly not forgery. He may have done things unilaterally and without authority, but certainly not forgery. The prosecution had left many questions unanswered which has created doubt in my mind.
Exhibit E26 was not handled by the Appellant alone. Neither was Exhibit Z. Criminal charges are not subject to possibilities and probabilities, or guesswork or suspicion, but must be proved beyond reasonable doubt. This fact cannot be overemphasized.
Even though the Appellant put in his defence and did not come with a “no-case submission”, the charge against him is devoid of particulars as to the particular document which he allegedly forged. Putting it succinctly, the charge was vague. This again is fatal to the case of the prosecution.
In all, I am of the view that the charge against the Appellant is devoid of the required proof and therefore this constitutes a gaping lacuna in the case of the prosecution. The result is that the Appeal succeeds and the Judgment of the learned Chairman of the Tribunal delivered on the 9th of June 1997 is hereby set aside as it affects the Appellant.

JOHN INYANG OKORO. J.C.A: I read before now the Judgment of my learned brother, Pemu, JCA, just delivered and I agree that this appeal is meritorious and ought to be allowed. My learned brother has ably dealt with all the salient issues submitted for the determination of this appeal and I hereby adopt both his reasoning and conclusion and also allow this appeal. I abide by all consequential orders made in the lead Judgment.

SIDI DAUDA BAGE. J.C.A: I have been privileged to read in advance the Judgment articulated and written by my learned brother PEMU, JCA and I agree completely with both the reasoning and the conclusions. The Judgment is exhaustive and I have nothing useful to add. The Appeal succeeds and the judgment of the learned Chairman of the Tribunal on 9/6/97 is hereby set aside. There shall be no order as to costs.

Appearances

Dr. Onyechi Ikpeazu (SAN)For Appellant

AND

Muyiwa Ogunkkolade Esq.For Respondent