NELSON MOORE V. FEDERAL REPUBLIC OF NIGERIA
(2012)LCN/5659(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of November, 2012
CA/L/824/07
RATIO
“Forgery” is defined in Section 465 of the Criminal Code Law Cap C 17 Laws of Lagos State thus: “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 Lagos State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, he induced to do or refrain from doing any act, is said to forge the document or writing. “A person who makes a counterfeit seal or mark, or makes an impression of a counterfeit seal knowing the seal to be counterfeit or makes a counterfeit representation of the impression of a genuine seal, or makes without lawful authority an impression of a genuine seal, with intent in either case that the thing so made may in any way be used or acted upon as genuine, whether in Lagos State or elsewhere, to the prejudice of any person may, in the belief that it is genuine, he induced to do or refrain from doing any act, whether in the State or elsewhere is said to forge the seal or mark. The term “make” a false document or writing” includes uttering 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 …” Per PEMU, J.C.A.
”Decidedly arraignment of an accused person under Section 215 of the Criminal Procedure Act requires the following: a) “The Accused person shall be brought before the Court unfettered unless the Judge otherwise directs (e.g of the Accused person becomes violent the Judge may direct that he be brought before the Court unfettered. b) The charge shall be read and explained to the Accused person in the language he understands c) The Accused person shall then be called upon to plead instantly.” Failure to comply with any of the above renders the entire proceedings a nullity. BASSEY V. STATE 2012. 12 NWLR PT. 1314, PAGE 209 at 217; KAJUBO V. STATE 1988 1 NWLR (PT. 73) 721; EYO ROKOROMO V. STATE 1979 6-9 SC- 3.” Per PEMU, J.C.A.
”It is trite that a conviction can be secured against an accused person either by direct evidence, or circumstantial evidence.” Per PEMU, J.C.A.
”In ONAGORUWA V. STATE (1993) 7 NWLR (PT. 303) 49 at 83, it was held that a trial Court is competent to rule that an accused has no case to answer if only one of the conditions earlier enumerated in this Judgment is satisfied. At the expense of repetition, the conditions are when- (a) There has been no evidence to prove an essential element to the alleged offence. b) The evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safety convict on it. IBEZIAKO V. COP. 1 ALL NLR 61; OLAWALE AJIBOYE & ANOR V STATE (1995). 8 NWLR (PT.414) 408 at 414 – 415 B-A, 418 CD; ODIDO V SATE 1995) 1 NWLR PT 369.88 at 110 g. b.” Per PEMU, J.C.A.
”To be guilty of the offence of Forgery under Section 417 of the Criminal Code Law of Lagos State, the prosecution must prove these ingredients to establish the offence against an accused person. They are, the forgering of a document, writing, and a seal.” Per PEMU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
NELSON MOORE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RITA NOSKHARE PEMU, J.C.A (Delivering the Leading Judgment): This is an interlocutory Appeal against the Ruling of Honourable Justice M. Olokoba of the Ikeja Judicial Division of the High Court of Justice, Lagos State, in Charge No. ID/84C/2005, delivered on the 13th day of August, 2007, whereby he overruled the no case submission and called upon the accused person to enter into his defence.
SYNOPSIS OF THE CASE:
The Appellant was charged before an Ikeja High Court for the offences of Forgery contrary to Section 467 of the Criminal Code, Cap C17 Vol. II Laws of Lagos State of Nigeria 2003 -And Uttering contrary to Section 468 of the Criminal Code C17. Vol. II, Laws of Lagos State of Nigeria 2003.
In proof of its case, the Prosecution called four witnesses, PW1, PW2, PW3 and PW4 respectively.
PW1 is Reuben Omosigho, a Police Officer with the Economic and Financial Crimes Commission, as an Investigator- Pages 9 – 12 of the Record of Appeal.
PW3 is Boniface Uzoechi, also a Police Officer attached to the Office of the Economic and Financial Crimes Commission as an Investigator Pages 12 – 13 of the Record of Appeal.
Both officers investigated the Petition written by the Nigerian Communication Commission and addressed to the Chairman, Economic and Financial Crime Commission and dated 12th June, 2004. (Page 13 of the Record of Appeal).
PW2 and PW4 are not Police Officers.
Various Statements of the Appellant were admitted in evidence. Pages 22 – 27 of the Record of Appeal. Other Exhibits were also tendered and admitted.
At the close of the case for the Prosecution on the 7th of February 2007, learned Counsel for the accused/appellant Mr. Bello informed Court that he intends to make no -case submission, and the Court directed that both learned Counsel for the Prosecution and the accused/appellant file their respective addresses and reply within 14 days. In other words, learned Counsel for the accused/appellant shall file his written address on a no-case submission within 14 days from the 7th of February, 2007, while learned Counsel for the Prosecution shall file a written reply thereto within 14 days from the date of his receipt of the address of learned Counsel for the accused/appellant -Page 19 of the Record of Appeal.
The matter was adjourned to the 12th of March 2007 for the adoption of the written addresses of the respective parties.
Learned Counsel for Appellant/Applicant had sought leave to compile and file a supplementary Record of Appeal on the 9th of November 2010, which application was granted as prayed on the 7th of April 2011, with a deeming order.
However the prayer for an Order Directing the Chief Registrar of the High Court of Lagos State, Lagos or any officer under his command to furnish this Honourable Court with copies of all documentary exhibits tendered during the trial of the charge against the accused/appellant, in the Court below, was withdrawn and same was accordingly struck out on the same date.
The Supplementary Record which was deemed compiled and filed on the 7th of April 2011, encapsulates the written addresses of learned Counsel to the Respective parties – Pages 1 to 20A of the Supplementary Record of Appeal.
Suffice to say that at the close of submission of learned Counsel for the respective parties as reflected in their written addresses, the learned trial Judge overruled the no case submission.
Noteworthy is that the accused/appellant had been granted extension of time on the 8th of September 2010, to compile and transmit the Record of Appeal out of time.
The overruling of the no – case submission by the learned trial Judge is what has informed the filing of a Notice of Appeal by the Appellant on the 30th of January, 2009 encapsulating six (6) Grounds of Appeal.
The Appellant filed his Brief of Argument on the 9th of November 2010.
On the 12th of May 2011, the Appellant filed a motion for an Order setting the Appeal down for hearing solely on the Appellant/Applicant’s Brief of Argument, the Respondent having failed or neglected to file its Brief of Argument within the time stipulated by the Rules of this Honourable Court, and same was granted on the 26th of April 2012.
The result is that the Respondent has no Brief of Argument on record.
This Appeal, in consequence, shall be determined solely on the Appellant’s Brief of Argument which was filed on the 9th of November 2010, and settled by Lateef Owolabi Esq.
The Appellant has, at Page 2 of 18 in his Brief of Argument filed on the 9th of November 2010, formulated and articulated three issues for determination.
They are:
1. “Whether having regard to the totality and quality of the evidence led, the learned trial judge was not in error to have called upon the Appellant to enter his defence on the charges.”
2. “Whether having regard to the totality and quality of the oral and documentary evidence, the trial judge could infer circumstantial evidence against the Appellant.”
3. “Whether from a consideration of Exhibit P2, there could be any inference of an intention to commit forgery.”
In the absence of any Brief of Argument emanating from the Respondent, the issues proffered by the Appellant are the only issues to be considered in this Appeal. The Appellant’s brief of Argument was adopted in Court on the 24th September 2012.
The Appellant submits in his Brief of Argument that Issue No 1 is distilled from Grounds one and two of the Notice of Appeal. That Issue No. 2 is distilled from Grounds three and four of the Notice of Appeal. He submits that Issue No. 3 is distilled from Ground six in the Notice of Appeal.
On Issue No. 1, learned Counsel has argued, rightly in my view, that the principles upon which a no case submission will be upheld are when:
(a) “There has been no evidence to prove an essential ingredient in the alleged offence – this means the evidence, even if believed cannot ground a conviction and
(b) The evidence adduced by the Prosecution has been so manifestly discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”
He argues that the Appellant is charged with the offences of Forgery and Uttering.
He contends that, from the definition provided by the law, the following elements or ingredients of the offence must be proved.
a) The documents in question must be a false document.
b) It must have been made or forged by the accused person.
c) Whether in Lagos State or elsewhere with intent to defraud any other person.
d) The other person must have been induced to believe that the document is genuine.
Citing ALAKE v. STATE (1992) 9 NWLR (Pt. 265) 260 at 270 D; KAYODE IDOWU v. STATE (1998) 9 NWLR (pt. 574) 354 at 363 E; AITIMA & ANOR V. THE STATE (2006) 10 NWLR (PT.989) 452 at 468 D-E G-H.
Perhaps in considering this issue, the evidence of PW2, one Mary Uma Uduma is apt, she is a Deputy Director with the Nigerian communications Commission.
Let me reproduce the essential portion of her evidence for purposes of this appeal.
“……………On the 6th of January, 2004 I received a phone call. The voice from the other end asked if he was on to Mrs. Mary Uma Uduma. The person introduced herself as Gladys Okebukola. I am of Fountain Trust Bank. She asked whether my organization issued confirmation of reasonableness of fees letter to one of the operators, Alternative Resources Ltd, I told her I did not think so but added that she should send the evidence of such letter.
She wrote the Commission a letter listing all the supposed confirmation letters issued by the Commission in September, October and November 2003 awaiting over one Million dollars i.e. the value on these letters was over one Million Dollars. To my greatest surprise those letters did not emanate from our office. The letters bare signatures that I did not sign. They resembled my signatures but they were forged. I quickly reported to my immediate boss, the Director of licencing telling him my findings. He directed that I note to the Fountain trust bank that those letters did not emanate from our office in that – they were forged. Subsequently I went with my Director to our Chief Executive to report the case to him. He then directed that the matter should be reported to the EFCC.”
Page 11 of the Record of Appeal.
She went further
“… Alternative Resources Ltd is registered with the EFCC as a licensee…”
Under X.X, she had this to say at Page 12 of the Record of Appeal.
“I do not know the Accused person. I have never had any dealing with him”.
PW4, Mrs. Gladys Okebalama, the Chief Inspector of Fountain Trust Bank PLC, as at the time this matter was instituted, also testified. She said she does not know the accused person. Nothing in her evidence linked the accused with the offences of which he was charged.
P.W3, Boniface Uzoechi a Police Officer attached to the Economic and Financial Crime Commission, 15 Awolowo Road, Ikoyi, Lagos said that in the course of his investigation, he searched the accused home and found nothing incriminating. He took statements from the accused person.
There is however no Police Report on the face of the Record of Appeal.
It is foolhardy to think, that from the evidence of these witnesses, the accused person can be said to have a case to answer. In view, in particular of the dearth of the establishment of the essential ingredients of the offences as charged by the prosecution. Indeed there is no evidence, in my view, to prove an essential ingredient of the offences charged against the accused person. In the offences of Forgery and Uttering ingredients obtain, as in any other offence.
To be guilty of the offence of Forgery under Section 417 of the Criminal Code Law of Lagos State, the prosecution must prove these ingredients to establish the offence against an accused person. They are, the forgering of a document, writing, and a seal.
To be guilty of the offence of Uttering under Section 468 of the Criminal Code Law of Lagos State, the Prosecution must prove that the accused person knowingly and fraudulently uttered a false document, or writing, or a counterfeit seal. He shall be guilty of an offence of the same kind as of forgery and is liable to the same punishment as if he had forged the thing in question.
“Forgery” is defined in Section 465 of the Criminal Code Law Cap C 17 Laws of Lagos State thus:
“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 Lagos State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, he induced to do or refrain from doing any act, is said to forge the document or writing.
“A person who makes a counterfeit seal or mark, or makes an impression of a counterfeit seal knowing the seal to be counterfeit or makes a counterfeit representation of the impression of a genuine seal, or makes without lawful authority an impression of a genuine seal, with intent in either case that the thing so made may in any way be used or acted upon as genuine, whether in Lagos State or elsewhere, to the prejudice of any person may, in the belief that it is genuine, he induced to do or refrain from doing any act, whether in the State or elsewhere is said to forge the seal or mark.
The term “make” a false document or writing” includes uttering 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 …”
By Section 466 of the Criminal Code Law, it says:
“In the case of an offence which involves the forgery or uttering of a document or writing relating to the payment of money, or to the delivery or transfer of any property, or to the creation or performance of any obligation, it is immaterial in what county the money or property is, or purports to be, payable, delineable, or transferable, or the obligation is, or purposes to be an obligation to be performed, and if the money or the property purports to be payable, delineable, or transferable or the obligation purports to be an obligation to be performed in some country oat of Nigeria, it is immaterial whether the document or writing is under seal or not.”
Now, from the totality of evidence before the Court, both oral and documentary, can it be said unequivocally, that the accused/appellant deserves to be called upon to enter his defence?
I am of the view that the answer must necessarily be in the negative.
There is no iota of evidence directly or by circumstantial evidence which links the accused person with the offence with which he was charged.
Moreso I observe that there is nothing on record to show that the charge was read over to the Appellant neither was he told to plead thereto. This alone renders the whole proceedings null and void.
The accused person was charged with offences contrary to provisions of the Criminal Code C17. Laws of Lagos State.
The provisions of the Criminal Procedure Law, are for the procedure to be followed in the prosecution of criminal cases in the High Court and Magistrates’ Courts – See Criminal Procedure Law C18 Laws of Lagos State of Nigeria.
Section 167 of the Criminal procedure Law C18 Laws of Lagos State has this to say:
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the Accused and not later”
By simple canon of interpretation, this connotes that the accused person is required in law to take his plea after the charge has been read over to him-
From record this evidently has not been done in this matter. This lacuna divests the lower Court of the jurisdiction to continue to hear the matter – Pages 9 of the record of Appeal.
Decidedly arraignment of an accused person under Section 215 of the Criminal Procedure Act requires the following:
a) “The Accused person shall be brought before the Court unfettered unless the Judge otherwise directs (e.g of the Accused person becomes violent the Judge may direct that he be brought before the Court unfettered.
b) The charge shall be read and explained to the Accused person in the language he understands
c) The Accused person shall then be called upon to plead instantly.”
Failure to comply with any of the above renders the entire proceedings a nullity.
BASSEY V. STATE 2012. 12 NWLR PT. 1314, PAGE 209 at 217; KAJUBO V. STATE 1988 1 NWLR (PT. 73) 721; EYO ROKOROMO V. STATE 1979 6-9 SC- 3.
It is evident that the accused/appellant was not brought properly before the Court by due process of law. Even if he was so brought (which was not done), the prosecution has failed to establish any ingredient of the offences charged against him. This alone knocks the bottom off the entire proceedings.
The learned trial judge had no basis for calling upon the accused/appellant to enter his defence, as he did.
The first issue for determination is hereby resolved in favour of the Appellant and against the Respondent.
It is trite that a conviction can be secured against an accused person either by direct evidence, or circumstantial evidence.
By the same token as issue No. 1, there is no circumstantial evidence that can be inferred, from what was available at the trial, either by oral or documentary evidence.
That issue is resolved in favour of the Appellant and against the Respondent.
A cursory look at Exhibit P2 (which I am of the view is Exhibit Pl on the record), shows that it is a letter from the Nigerian Communication Commission to the Chairman/Chief Executive Economic and Financial Crimes Commission, Aso Rock, Abuja, reporting a case of Economic Sabotage, Fraud and Forgery.
The said letter is hereby reproduced verbatim.
“January 12, 2004
NCC
NIGERIAN
COMMISSION
The Chairman/Chief Executive,
Economic and Financial
Crimes Commissions
Aso Rock,
Abuja.
ATTENTION: ALHAJI NUHU RIBADU.
Dear Sir,
REPORT OF A CASE OF ECONOMIC SABOTAGE, FRAUD AND FORGERY
“The Central Bank of Nigeria (CBN gave a directive to the Nigeria Communications Commission (as it was to other agencies of Government) that confirmation should be made of the reasonableness of price on invoices for the payment of invisible transaction.
This directive is in line with Foreign Exchange Regulation of the CBN to curb malpractices in invisible transfer of forex which has a negative effect on the Nigerian Economy.
In furthermore of the directive, the Commission has developed an in-house procedure for making such confirmation.
By its letter dated 6th January, 2004, Fountain Trust Bank PLC of Plot 16th Adeola Hopewell, Victoria Island, Lagos, has requested the Commission to confirm the authenticity of a purported confirmation made by the Commission in respect of transactions entered into by Alternative Resources (Nig.) Limited, a licensed vendor of telecommunications equipment and Rose of Sharon U.K.
The confirmation dated 2nd September 2003, October 6 2003 and November 20, 2003, in the sums of USD 342,000, 000, USD 315,000 and USD 474,000 respectively purportedly made by the Commission as forged.
No request was made to the commission by the bank, nor such confirmation made by the commission.
In addition, the said Alternative Resources (Nig) limited is not licensed to provide the services for which the forex was purportedly sought by the company and confirmed by the Commission.
The Particulars of Alternative Resources (Nig.) Limited is, No. 1 Ebun Street, Abule-Ijesho, Yaba, Lagos, Telephone -01-861472 – RC 227766.
The NCC requests your Commission to take immediate and timely steps to investigate the matter and bring the protractors of this economic crime to book.
Yours faithfully,
Signed
O.A. FAYOMI
Head of Enforcement
For: EXECUTIVE VICE CHAIRMAN.”
The Accused/Appellant made many statements, but in his 1st statement of 25th of January 2006, he had this to say inter alia.
“… I have been in business. I was appointed a Director to Alternative Resources in 2003 where I operate also as Managing Director. The Company has four directors, namely Steve Idoh, Dr. Nwachukwu, Mr. Moore and Janet Nwachuku………. The Company is licensed by NCC as a telecommunications outfit. Sometime between October and November 2003 my bank Fountain Trust Bank PLC called and said the Company did not have what they called a letter of reasonableness of price from Nigerian Communications Commission to be inserted in the Company’s file in the bank. However, because I was travelling abroad at the time, I provided funds for my staff and they later called to say that the document had been procured and the matter rested there or so. I thought until NDLEA sent an invitation letter requesting me to come. On arrival I realised that a petition originated from NCC alleging forgery of the said letter of reasonableness of price. After due and thorough investigation, the NDLEA absolved and discharged me from any complicity.”
A cursory look at Exhibit P1, and the above mentioned statement seems to me that the accused/appellant has nothing to explain. Section 286 of the Criminal Procedure Law of Lagos State Cap. C18 provides thus:
“If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the Defendant sufficiently to require him to make a defence, the Court shall, at that particular charge, discharge him.”
In ONAGORUWA V. STATE (1993) 7 NWLR (PT. 303) 49 at 83, it was held that a trial Court is competent to rule that an accused has no case to answer if only one of the conditions earlier enumerated in this Judgment is satisfied. At the expense of repetition, the conditions are when-
(a) There has been no evidence to prove an essential element to the alleged offence.
b) The evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safety convict on it.
IBEZIAKO V. COP. 1 ALL NLR 61; OLAWALE AJIBOYE & ANOR V STATE (1995). 8 NWLR (PT.414) 408 at 414 – 415 B-A, 418 CD; ODIDO V SATE 1995) 1 NWLR PT 369.88 at 110 g. b.
None of the prosecution witnesses on record has established any of the essential elements of the offences with which the Appellant is charged against him.
To be guilty of the offence of forgery, it is essential to prove that the Accused person forged the document in question.
I agree with the Appellant’s submission in his Brief of Argument that mere tendering of the forged document that they are not genuine is not enough.
The prosecution called no expert to verify any handwriting or signature as required by law. Nothing in the evidence of the prosecution witnesses shows any fraudulent intent on the part of the accused person.
Issue No. 3 must in the circumstances be resolved in favour of the Appellant, as for consideration of Exhibit P1, there can be no intention inferred to commit the offence charged, against the accused/appellant.
The appeal is one that has merit. The proceedings are null and void for want of jurisdiction, and even if this appeal deserves any consideration at all, it must succeed and it so succeeds.
The order of the trial Judge that the accused/appellant has a case to answer is erroneous and has no basis in law and on the facts before Court, and same is hereby set aside.
The accused/appellant is accordingly hereby discharged.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, the Hon. Justice R. N. Pemu, JCA. Having adopted the reasoning and conclusion reached in the lead judgment in question, I hereby without any hesitation hold that the instant appeal is meritorious.
Hence, the appeal is accordingly hereby allowed by me. I abide by the consequential order discharging the Appellant.
SIDI DAUDA BAGE, J.C.A.: My learned brother the Hon. Justice R. N. Pemu JCA, has obliged me with a copy of the draft of the judgment prepared and just delivered by him.
I adopt all the reasoning and conclusion reached by the lead judgment, that the appeal is meritorious, and thus also allowed by me. The order made by the lower court is also set aside by me, and the accused/appellant accordingly discharged.
Appearances
L.A. OWOLABI ESQ, WITH HIM ARE C. CHUKWUMA ESQ., & BABS ANIMASHAUNFor Appellant
AND
RESPONDENT: UNREPRESENTEDFor Respondent
