OGWUCHE v. STATE
(2020)LCN/15346(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Monday, July 13, 2020
CA/MK/85C/2012
RATIO
WORDS AND PHRASES: ABETMENT
Abetment is an offence defined in Section 83 of the Penal Code as follows:
“A person abets the doing of a thing, who – (a) instigates any person to do that thing; or (b) engages with one or more other person or persons in any conspiracy for the doing of that thing; or (c) intentionally aids or facilitates by any act or illegal omission the doing of that thing.” See MAMMAN V STATE 1976 LPELR 1832 (SC).Flowing from the above definition of abetment, it is clear the offence of abetment is committed when a person instigates any person to do that thing, or engages with one or more other person or persons in any conspiracy for the doing of that thing, or intentionally aids or facilitates by any act or illegal omission the doing of that thing. PER ADAMU JAURO, J.C.A.
CRIMINAL LAW: INGREDIENTS TO BE PROVEN TO SECURE A CONVICTION FOR THE OFFENCE OF AIDING AND ABETTING FORGERY
Therefore to secure a conviction for the offence of aiding and abetting forgery, the prosecution is duty bound to prove the following:
1. That the accused person instigates any person to do the forgery, or
2. That the accused engages with one or more other person or persons in any conspiracy for the doing of the forgery, or
3. That the accused intentionally aids or facilitates by any act or illegal omission the doing of the forgery.
In addition to proving either of the above, the prosecution must also prove that the act abetted (Forgery) should have been actually committed. See the case of KAZA V STATE (2008) LPELR-1683 (SC)
The Respondent can prove its case against the Appellant by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC). PER ADAMU JAURO, J.C.A.
CRIMINAL TRIAL: BURDEN OF PROOF: PROOF BEYOND REASONABLE DOUBT
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See ABDULMUMINI V. FRN (2017) LPELR-43726 (SC); AKWUOBI V. THE STATE (2016) LPELR 41389 (SC). PER ADAMU JAURO, J.C.A.
COURT PROCESS: WHETHER A DEFECTIVE ORIGINATING PROCESS CAN BE AMENDED
It is not in doubt that the original Notice of Appeal is the originating process upon which the instant appeal is predicated. The position of the law is that once an amendment is duly made, it goes to the root of the document amended which is to say the amendment dates back to the date the process was filed. See NUT TARABA STATE & ORS V. HABU & ORS. (2018) LPELR – 44057 (SC); REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG V. NAMA (2014) LPELR – 22372 (SC). Notwithstanding what I have said above, the life question is, can a defective originating process be amended? The answer is in the affirmative where such originating process is not void ab initio, like where a notice of appeal is alleged defective because some of the grounds of appeal are incompetent while there are competent grounds that could sustain the appeal. However where a Notice of criminal appeal is void ab initio like when it is not signed by the Appellant as mandated under Order 17 Rule 4(1) of the Court of Appeal Rules and when the reason for the Appellant’s failure to personally sign the Notice does not fall within the province of the exceptions enumerated under sub rules (5) & (6), the process is incurably defective and cannot be subject to amendment. It is settled law that a fundamentally defective document such as an Originating process i.e. the Notice of Appeal cannot be amended to infuse life into it. In other words, a fundamentally defective originating process cannot be cured by an amendment of same nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. You can only validly amend a valid originating process, not a fundamentally defective one which in the eye of the law does not exist. See OKWUOSA V. GOMWALK & ORS (2017) LPELR – 41736 (SC). PER ADAMU JAURO, J.C.A.
Before Our Lordships:
Adamu Jauro Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
ABEL OGWUCHE APPELANT(S)
And
THE STATE RESPONDENT(S)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling and Judgment of the High Court of Benue State, sitting in Makurdi delivered by Honourable Justice I. Hwande on the 21st day of May, 2005 and on the 6th day of April, 2011 respectively. In the said ruling against a no case submission filed by the Appellant, the trial Court held that there was a prima facie case of the offence of aiding and abetting the offence of forgery contrary to Section 85 and 364 of the Penal Code lawestablished against him to warrant him to enter his defence.
In the Judgment, the Appellant was found guilty of the offences of aiding and abetting forgery contrary to Section 85 and 364 of the Penal Code Law. Upon his conviction, the Appellant was sentenced to a fine of N40, 000 or to serve a jail term of three years.
BRIEF STATEMENT OF FACTS
The Appellant with two others were charged with the offences of forgery and aiding and abetting forgery contrary to Section 85 and 364 of the Penal Code Law.
The Appellant was specifically charged under the Ninth head of Charge in the Charge sheet for the offence abetting Forgery contrary to Section 85 and 364 of the Penal Code Law for which the Appellant pleaded not guilty. The said charge at page 1-9 of the record of appeal read as follows:
“9th HEAD OF CHARGE
That you Abel O. Ogwuche (M), a civil servant and at the material time to this case a staff of the Civil service Commission, Markurdi Benue State and within the Benue State Judicial Division that on or about the month of March 2004 at Markurdi Benue State aided and abetted the Commission of the offence of Forgery of the signature of the executive Governor of Benue State, Dr George Akume by one Thomas Tor Orgeli of the Health Management Board by patronizing and seeking the assistance of the said Thomas Tor Orgeli to dishonestly and fraudulently secure the employment of your girlfriend one Lady Doobee Msugh with the Benue State Government when you submitted to Thomas Tor Orgeli the curriculum vitae of your girlfriend Doobee Msugh, who then forged the signature and approval remark of Dr. George Akume on Doobee Msugh Curriculum Vitae dating same 14th April 2004. And that you Abel Ogwuche further facilitated the quick processing of your said girlfriend Doobee Msugh’s application as purportedly approved by the executive Governor of Benue State Dr. George Akume at your place of work, the Benue State Civil Service Commission amongst other similar purported approvals which was committed in consequence of your abetment and that you have thereby committed an offence punishable under Section 85 and Section 364 of the Penal Code.”
The case of the Respondent was that the Appellant aided and abetted the commission of an offence of Forgery when he forwarded the name of one Doobee Msugh his girlfriend to one Thomas Tor Ogheli who fraudulently wrote a letter with the forged signature and approval remark of Dr. George Akume, the Governor of Benue state (as he then was) to fraudulently secure her employment. The Respondent stated that the Appellant then quickly processed the employment of Doobee Msugh using the approval purported to have been issued by the Governor of Benue State at the Benue State Civil Service Commission where the Appellant worked as Secretary to the Chairman of the Commission.
It is the case of the Respondent that after investigation of the above offence, the Appellant and his co-accused were arraigned and charged to Court with the offences of forgery and aiding and abetting contrary to Section 85 and 364 of the Penal Code Law.
The case of the Appellant on the other hand was that sometimes in March 2004, one Doobee Msugh who was his course mate in the University pleaded with him to assist her find a job in the Benue State civil service. The Appellant stated that he spoke to his friend one Thomas Orgeli (the 1st accused the trial) who then asked for the credentials and curriculum vitae (CV) of the said Doobee Msugh. The Appellant stated further that he gave the documents of Doobee Msugh to Mr Thomas Orgeli in March 2004, and by April 2004, the approval from the Benue State Government House to employ Doobee Msugh was received by the Appellant. It is the case of the Appellant that few days after receiving the approval; he was called by the Permanent Secretary of the Civil Service commission who asked him if he was the one assisting Doobee Msugh for which he replied in the affirmative. He stated in his defence that the Permanent Secretary further asked if he had any contact at the Benue State Government house and if he demanded for money from the said Doobee Msugh. The Appellant stated that he replied that he didn’t demand any money from the said Doobee Msugh and didn’t have any contact at the Government house. That he only knows Thomas Orgeli of the Hospital Management Board. The Appellant stated further that after he was questioned by the Permanent Secretary, he didn’t hear anything about the matter until he was invited for questioning on 04/08/2004 at the Benue State Government house. He stated that on 5/8/2004, he was taken to the criminal investigation department Police Division in Markudi where he made a statement.
At the close of trial and filing of the final addresses, the learned trial judge at page 242 to 252 of the record of appeal found the Appellant guilty as charged and sentenced him to a fine of N40,000 or to serve a jail term for three years.
Dissatisfied with his conviction and sentence by the trial Court, the Appellant invoked the appellate jurisdiction of this Court vide an Amended Notice of appeal dated 29th January, 2018 and filed on same day.
In compliance with the Rules of this Court, parties filed and exchanged their briefs. The Appellant’s Amended Brief of Argument is dated 1st of February, 2019 and filed on the same date. The Appellant also filed a Reply Brief to Respondent’s brief of argument. The Reply Brief is dated 9th June, 2020 and filed on the same date. Both Briefs were settled by SHAIBU ENEJOH ARUWA ESQ. who at paragraph 2.0 of the Appellant’s Amended Brief formulated two issues for the determination of the appeal as follows:
1. Whether the Evidence of the Prosecution established a prima facie case of abetment of the commission of the offence of forgery against the appellant to have warranted the Court below to hold that the appellant had a case to answer.
(Distilled from ground 1 of the amended Notice of Appeal filed on the 29th January, 2018)
2. Whether the prosecution proved the offence of abetting the commission of the offence of forgery contrary to Section 85 and Section 364 of the Penal Code against the 2nd Accused.
(Distilled from grounds 2,3,4,5 and 6 of the amended notice of Appeal filed on the 29th January, 2018)
The Respondent’s Brief on the other hand is undated but filed on 4th December, 2018. The said Brief was settled by MICHEAL A. AGBER ESQ., DIRECTOR PLANNING AND RESEARCH, MINISTRY OF JUSTICE, MAKURDI, BENUE STATE. Counsel to the Respondent at page 12 of the Respondent’s brief formulated two issues for the determination of the appeal to wit:
“1. Whether or not the trial Court was right in holding that the Appellant has a case against him to answer having overruled the No case submission on his behalf by counsel.
2. Whether or not the trial Court was right in convicting and sentencing the Appellant as charged for the offence of aiding and abetting forgery punishable under Section 85 and Section 364 of the Penal Code.”
The appeal was taken on 10th June, 2020 wherein counsel adopted their respective briefs and made oral adumbrations in respect of their contentions in the appeal.
Before delving into the issues raised by parties for the resolution of the appeal, the Respondent by way of preliminary objection challenged the competence of the Appellant’s appeal. The objection was brought pursuant to Order 17 Rule 4(1) of the Rules of this Court. The ground upon which the appeal was challenged is that the original notice of appeal attached to the record of appeal dated 1st July 2011 and filed on 5th July 2011 was signed by one C.A. UJAH ESQ. (Appellant’s counsel) and not by the Appellant himself as mandated by law.
ARGUMENTS ON NOTICE OF PRELIMINARY OBJECTION
The crux of the Respondent’s objection is that the Notice of appeal was not signed by the Appellant as mandatorily provided for under Order 17 Rule 4(1) of the Court of Appeal Rules but by counsel C.A. Ujah Esq. thereby rendering the appeal incompetent and liable to be struck out. Counsel submitted that in criminal appeals, the Notice of appeal shall be signed by the Appellant himself except and if he was insane or of unsound mind at the time. He submitted further that the Appellant does not come within the exceptions provided under sub-rules (5) and (6) of Rule 4 of Order 17 of the Court of Appeal Rules.
He submitted that the instant appeal having not been initiated by filing the originating Notice of appeal in compliance with the Rules of this Court renders the Notice of appeal defective thereby robbing the Court of the jurisdiction to entertain the appeal. He referred the Court to the case of UWAZURIKE V. ATTORNEY GENERAL OF THE FEDERATION (2007) ALL FWLR (PT 387) 834 at 844 – 845 and argued that whatsoever subsequent amendment or proceedings based on this invalid appeal are nugatory. He submitted that the Appellant’s Notice of appeal is incurably defective and as such beyond any amendment. Counsel therefore urged the Court to strike out the appeal and uphold the preliminary objection.
In response to the arguments and submissions regarding the competence of the appeal, counsel to the Appellant submitted that on 29th January, 2018, the Appellant filed a motion on notice seeking among other reliefs an order extending time within which the Appellant can appeal the final judgment of the trial Court delivered on 6th April, 2011 on grounds of mixed law and facts.
Counsel submitted further that upon realization that the Notice of appeal filed on 5th July, 2015 was incompetent, the Appellant sought leave to amend the Notice of appeal on the 29th September, 2017. It is the submission of counsel that the said motion was granted by this Court on 11th April, 2018 and that this Court deemed the already filed Amended Notice of Appeal dated 29th January, 2018 as properly filed and served.
Counsel submitted that the legal and logical implication of the steps taken by the Appellant is that the Appellant has abandoned the Notice of appeal filed by C.A. Ujah Esq. dated 1st July, 2011 and filed on 5th July, 2011 in preference of the Notice of appeal filed on 29th September, 2017 pursuant to leave of this Court. He submitted further that the Appellant’s brief of argument is not predicated on the Notice of appeal complained of in the Notice of Preliminary objection. Counsel referred the Court to the case of ORJI V. FRN (2007) 13 NWLR (PT. 1050) 55 Pp. 83 – 84, paras. C – H.
He urged the Court to discountenance the Respondent’s objection and treat the appeal on its merit
RESOLUTION OF PRELIMINARY OBJECTION
The substance of the Respondent’s objection is that the Appellant’s original notice of appeal dated 1st July, 2011 and filed on 5th July, 2011 was signed by one C.A. Ujah, Esq., former counsel to the Appellant. Order 17 Rule 4(1) of the Court of Appeal Rules 2011 provides thus:
“Every notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of sub-rules (5) and (6) of this Rules.”
The above provision is very clear and unambiguous. The law has crystallized in this jurisdiction of ours that in criminal appeals, the notice of appeal shall be signed personally by the Appellant except if he was insane or of unsound mind at the time of filing the notice. In the circumstances above, the Appellant’s legal representative can sign on his behalf.
It is clear from the original notice of appeal at pages 253 to 230 of the record of appeal that the said notice of appeal was not signed by Abel Ogwuche, the Appellant as mandatorily required under Order 17 Rule 4 (1) of the Rules of this Court. There is no evidence on record that the Appellant falls within the category of persons whose legal representatives are allowed under the rules of Court to sign their notice of appeal on their behalf.
The Appellant’s counsel at paragraph 4.0 of the Appellant’s reply brief admitted that the notice of appeal filed on 5th July, 2015 was incompetent. He however submitted that upon realization of the defect in the Notice of appeal, the Appellant sought leave to amend the Notice of appeal vide a motion filed on 29th September, 2017.
It is not in doubt that the original Notice of Appeal is the originating process upon which the instant appeal is predicated. The position of the law is that once an amendment is duly made, it goes to the root of the document amended which is to say the amendment dates back to the date the process was filed. See NUT TARABA STATE & ORS V. HABU & ORS. (2018) LPELR – 44057 (SC); REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG V. NAMA (2014) LPELR – 22372 (SC). Notwithstanding what I have said above, the life question is, can a defective originating process be amended? The answer is in the affirmative where such originating process is not void ab initio, like where a notice of appeal is alleged defective because some of the grounds of appeal are incompetent while there are competent grounds that could sustain the appeal. However where a Notice of criminal appeal is void ab initio like when it is not signed by the Appellant as mandated under Order 17 Rule 4(1) of the Court of Appeal Rules and when the reason for the Appellant’s failure to personally sign the Notice does not fall within the province of the exceptions enumerated under sub rules (5) & (6), the process is incurably defective and cannot be subject to amendment. It is settled law that a fundamentally defective document such as an Originating process i.e. the Notice of Appeal cannot be amended to infuse life into it. In other words, a fundamentally defective originating process cannot be cured by an amendment of same nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. You can only validly amend a valid originating process, not a fundamentally defective one which in the eye of the law does not exist. See OKWUOSA V. GOMWALK & ORS (2017) LPELR – 41736 (SC).
In the instant case, the original Notice of appeal filed by the Appellant’s former legal representative in the eyes of the law violates the Order 17 Rule 4(1) of the Court of Appeal Rules 2011. SeeNWITE V STATE (2013) 17 NWLR (PT. 1332) 157 AT 163-164. Accordingly, the original Notice of Appeal is only good for striking out and nothing more as any proceedings or order based on it is a nullity. In the instant case therefore, the original Notice of Appeal not signed by the Appellant personally is incapable of being amended as the said Notice is incurably defective and same is hereby struck out. It is to be noted that the Court of Appeal Rules 2016 made a paradigm shift by allowing a legal representative to sign on behalf of the appellant. See Order 17 Rule 4 (1) of 2016 Rules.
Despite having held that the Notice of appeal filed on 5th July, 2011 was defective and therefore incompetent, not being the final Court in an appeal of this nature and in the event that I am wrong to have struck out the appeal due to the incompetence of the original notice of appeal, I shall proceed to determine the appeal on its merits.
APPELLANT’S ARGUMENTS AND SUBMISSIONS
On issue No. 1 distilled by the Appellant, counsel submitted that after the close of the prosecution’s case there was no evidence to show that the Appellant committed the offence of abetting forgery as charged warranting him to enter his defence. Relying on the case of AJIDAGBA V IGP 1958 SCNLR 60, he argued that a no case submission may be made and upheld by the Court where there is no evidence from the prosecution to prove the essential elements of the offence charged or where the evidence adduced by the prosecution has been so discredited under cross examination or it is so manifestly unreliable that no reasonable Court or tribunal could safely convict upon it.
Counsel submitted that there was no evidence adduced by the prosecution on record to show that the appellant instigated the commission of the offence of forgery. He submitted further that the Respondent failed at trial to prove that Appellant knew the 1st accused was going to forge the document as alleged in the charge against him. Counsel argued that to prove the offence of abetment, it is incumbent on the Respondent to show that the Appellant possessed mens rea to commit the offence. He referred this Court to NJOVENS & ORS V THE STATE (1973) I NMLR 331 AT 200. Counsel referred this Court to the evidence of PW1 at page 137 of the record of appeal and submitted that the Appellant had no knowledge that the 1st accused person at trial was going to engage in the act of forgery in other to procure employment for Doobee Msugh. Counsel submitted further that Exhibit “F”, the extra judicial statement of 1st accused at pages 92 to 94 of the record of appeal clearly shows that the Appellant was oblivious of the criminal intentions of 1st accused.
Counsel contended that the Appellant in his defence testified as DW1 wherein he denied instigating the 1st accused person to commit forgery and neither was he aware that the document he processed in his official capacity was forged. He contended further that the trial Court acted in error when it dismissed the No case Submission of the Appellant and urged this Court to hold same.
On issue two, Counsel adopted his arguments and submissions made in support of issue one above, and added that on the authority of TYOSAR V THE STATE (2003) 3 ACLR 502 AT 512, a trial Court is not to believe the evidence of the prosecution over that of the accused person where there is doubt in the case of the prosecution. He submitted that the doubt in the evidence of the Respondent as shown above should be resolved in favor of the Appellant. He submitted that the conviction of the Appellant by the trial Court was not born out of the evidence adduced before it. He argued that a finding of a trial Court must be based on evidence and not speculation. He referred this Court to the case of AIBANGBEE V THE STATE (1998) 1 ACLR 168 at 212. Counsel therefore urged this Court to hold that the Respondent failed to prove the offence of abetment of forgery against the Appellant. On the whole, he urged the Court to allow the appeal and to discharge and acquit the Appellant of the offence charged.
RESPONDENT’S ARGUMENTS AND SUBMISSIONS
On issue 1 distilled by the Respondent, Counsel submitted that the prosecution at the trial Court established a prima facie case of aiding and abetment of forgery against the Appellant that required him to enter his defence.
Counsel argued that a prima facie case means that the prosecution has raised some salient and serious questions linking the accused person to the crime calling for some explanation from the accused person. He referred this Court to UZOAGBA V C.O.P 2013 ALL FWLR PT 685 337. Counsel argued further that a prima facie case only means that there is a ground for proceeding with the trial, and not a proof of the guilt of the accused person. He referred this Court to AJIDAGBA V IGP (1958) 3 FSC 5.
Counsel referred to the charge against the Appellant and submitted that the salient elements of the offence of aiding and abetting forgery were established by the evidence of PW1 at pages 134 to 138 of the record of appeal and the confessional statement of the Appellant (Exhibit E) at page 95 to 96. He submitted further that relying on both the evidence of PW1, and Exhibit E vis-à-vis the definition of the offence charged under Sections 83 and 89 of the Penal Code Law, the Respondent was able to prove that the Appellant gave the credentials and Curriculum vitae of Doobee Msugh to the 1st accused who did the forgery of the signature and approval of the then Governor (Dr George Akume). That the Appellant used his office as confidential secretary to the Chairman of the Civil Service Commission to process the employment of Doobee Msugh using the forged documents and that the Appellant admitted that 1st accused is his friend and that Doobee Msugh is his girlfriend.
Counsel submitted that Conspiracy as an ingredient of abetment of forgery can be deduced from the acts of 1st accused and Appellant. He submitted further that conspiracy which is mostly done in secret cannot be mathematically proved but can be inferred from the facts and evidence before the Court. He referred this Court to ABIODUN V STATE (2013) ALL FWLR (PT 664) 110.
It is the submission of counsel that from the evidence adduced by the Respondent, it was established that the Appellant instigated the 1st accused at trial to commit the offence of forgery, that the Appellant had both knowledge and intention of the act of abetment of the crime and that there was a conspiracy between the Appellant and 1st accused towards aiding and abetting him to commit the crime of forgery. Counsel contended that all the above are the ingredients of the offence of aiding and abetting forgery. Counsel therefore submitted that in the circumstance, a prima facie case was established against the Appellant that required him to enter his defence. He submitted that considering the totality of evidence led at the trial, the trial Court was right in overruling the No case submission of the Appellant.
He therefore urged this Court to resolve this issue in favour of the Respondent.
On whether the trial Court was right in convicting and sentencing the Appellant as charged for the offence of aiding and abetting forgery punishable under Section 85 and 364 of the Penal Code Law, Counsel to the Respondent argued that although the evidential onus of proof in a criminal trial is always resting on the prosecution, the said proof is beyond reasonable doubt not all shadow of doubt. He referred to the case of KASSIM V THE STATE 2017 272 LRCN 106. Counsel submitted that from the totality of evidence adduced at trial, the Respondent was able to prove the guilt of the Appellant for the offence of aiding and abetting forgery punishable under Section 85 and 364 of the Penal code Law. Counsel for the Respondent under issue No. 2 adopted all his arguments and submissions canvassed under issue one.
He submitted that through the testimony of the PW1 and Exhibit E, the Respondent was able to prove that the Appellant consciously instigated the 1st accused to commit the forgery, making the Appellant an abettor within the meaning of Section 83 (b) (c) of the Penal Code. Counsel submitted that there was no contention from the Appellant that the offence of forgery was committed by the 1st accused whom he aided and abetted. He submitted further that the implication of this is that Appellant concedes that the offence of forgery was proved against the 1st accused person, therefore considering the evidence linking the Appellant to the 1st accused person; it was proved beyond reasonable doubt that Appellant aided and abetted the 1st accused person in his commission of the offence of forgery.
On the whole Counsel prayed this Court to affirm the conviction of the Appellant by the trial Court as proper and dismiss this Appeal for lacking in merit.
RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the briefs of arguments filed by both parties as well as the issues distilled for determination across the divide. Having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the following issues would suffice in determination of this appeal.
1. Whether from the totality of evidence adduced by the Respondent at trial, the trial Court was right in overruling the No case submission of the Appellant and holding that the Appellant has a case to answer?
2. Whether from the totality of the evidence adduced by the Respondent at trial, the guilt of the Appellant was proved beyond reasonable doubt to justify his conviction by the trial Court?
In the course of resolving this appeal, this Court will attempt the resolution of the issues distilled in their descending order.
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See ABDULMUMINI V. FRN (2017) LPELR-43726 (SC); AKWUOBI V. THE STATE (2016) LPELR 41389 (SC).
The Appellant and his co-accused persons were arraigned at the trial Court for the offences of forgery and aiding and abetting forgery contrary to Section 85 and 364 of the Penal Code Law.
The Appellant in particular was charged for the offence of aiding and abetting the commission of the offence of forgery for which he pleaded not guilty.
To ascertain whether the Respondent proved beyond reasonable doubt the offence of aiding and abetting forgery punishable under Section 85 and 364 of the Penal Code against the Appellant is an issue to be determined after revisiting the evidence on record.
Abetment is an offence defined in Section 83 of the Penal Code as follows:
“A person abets the doing of a thing, who – (a) instigates any person to do that thing; or (b) engages with one or more other person or persons in any conspiracy for the doing of that thing; or (c) intentionally aids or facilitates by any act or illegal omission the doing of that thing.” See MAMMAN V STATE 1976 LPELR 1832 (SC).Flowing from the above definition of abetment, it is clear the offence of abetment is committed when a person instigates any person to do that thing, or engages with one or more other person or persons in any conspiracy for the doing of that thing, or intentionally aids or facilitates by any act or illegal omission the doing of that thing.
Therefore to secure a conviction for the offence of aiding and abetting forgery, the prosecution is duty bound to prove the following:
1. That the accused person instigates any person to do the forgery, or
2. That the accused engages with one or more other person or persons in any conspiracy for the doing of the forgery, or
3. That the accused intentionally aids or facilitates by any act or illegal omission the doing of the forgery.
In addition to proving either of the above, the prosecution must also prove that the act abetted (Forgery) should have been actually committed. See the case of KAZA V STATE (2008) LPELR-1683 (SC)
The Respondent can prove its case against the Appellant by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC).
In a bid to discharge the evidential burden of proof imposed on it by law, the Respondent called six witnesses who testified as PW1, PW2, PW3, PW4, PW5 and PW6 respectively. Before proceeding, I must quickly point out that the Appellant did not contend or dispute that the Respondent had proved the offence of forgery against the 1st accused at trial beyond reasonable doubt. The Appellant’s contention from his amended brief of argument before this Court is that the offence of aiding and abetting the commission of forgery against the Appellant was not proved by the Respondent beyond reasonable to warrant his conviction by the trial Court.
Now the question is, notwithstanding the fact that the Appellant is not contending the conviction of the 1st accused person for forgery, has any credible evidence been led by the Respondent to reasonably link the Appellant with the offence of aiding and abetting the 1st accused to commit the offence of Forgery?
The crux of the Respondent’s case rests on the testimony of PW1, One Mrs. Ann Anweh who was at the material time a Permanent Secretary of the Civil Service Commission of Benue State where the Appellant was employed as a confidential secretary to the Chairman of the Commission.
In her testimony at pages 134 – 138 of the record of appeal, she testified that:
“I am a civil servant with the civil servant with Benue State Government. I work in the office of Head Service (sic). I am Permanent Secretary in the Civil Service Commission where I worked in respect of this case. I was the accounting officer of the Commission. I was in charge of discipline, promotion and appointment. I know 2nd accused. He was my staff in the civil service commission. He was the confidential Secretary attached to the Chairman Civil Service Commission. I came across 1st accused through 2nd accused who told me he had a friend who is 1st accused. That 1st accused was working with Health Management Board. That 1st accused helped him secure employment of a friend.
When I was in the Commission I was handling the issue of recruitment of staff. I was the Secretary of the Commission. All approvals coming for recruitment were passed to me for processing for the Board. During this period in question, we received so many approvals more than usual. The Board directed me to write to Government house and enquire if all those approvals were coming from them. When the letter got to Government House Makurdi, I was told hold on over the issue to allow them investigate the approvals.
I received a letter that those letters were not sent from Government House. I was invited by the police to give a statement. I have some of the letters with me. I have the last of approvals sent to our Commission. The letters were served to Chairman Civil Service Commission. The covering letter was said to have emanated from Government house. Mrs B.M Agber was purported to have signed those letters. I know Mrs B.M Agber, I have some of the letters with me. We received a list from Ochidoma. The Ochidoma listed some names and purportedly sent to the Governor Dr. George Akume to employ. There was covering letters from government house.
I know Doose Msur (sic) she is my daughter-in-law. She brought a letter of approval from Government House. Her name is on exhibit ‘A’. She is no.2 on that list. When I saw her name I asked her how she got the approval. She told me it was my staff 2nd accused that secures (sic) the approval for her.
The procedure for employment was that a person used to apply with his or her credentials.
That now there is normal employment. It is refused employment (sic). It is dependent on approval by the Governor of the state. The Governor receives the application from the candidate, gives the approval on the credentials and directs Civil service to employ. Copies of the approval are forwarded to Chairman Civil service Commission with covering letter. I was curious regarding the approval letter that affected my daughter-in-law. I invited 2nd accused to my office to find out how he managed to get the approval for my daughter-in-law. The 2nd accused told me it was 1st accused that helped him secure the approval.
It was this time that I invited 1st accused to my office. I asked him how he was able to convince the Governor to approve the list so easily. 1st accused told me the Governor was his friend and used to invite him to his office occasionally. That he has been helping other people because he too was once helped like that. I asked 1st accused if he requested anything from my daughter-in-law. He denied requesting for anything. 2nd accused has been on suspension and he was the one receiving mails for our office. I would have loved to find out how he was receiving these mails that did not come from Government House.”
It is important to the resolution of the instant appeal to reiterate that the Appellant made a statement at the police station which was tendered and admitted without objection either from the Appellant or his counsel. (See page 142 of the record of appeal). In the Appellant’s statement marked exhibit ‘E’ at page 95 – 96 of the record of appeal, the Appellant stated that:
”That sometime in March 2004, One Doobee Msugh (widow) who was my course mate in the University after the completion of our course last year approached me if I could find somewhere even if it is cleaning job. Then I talked to my friend Mr. Thomas Orgeli and he said I should collect her papers which I did in that same March and by April, I received the approval to employ her from Govt. (sic) House. Some days after receiving the approval, the Permanent Sec. Civil service commission sent for me in her office. She asked me whether I know Doobee and I said yes that we were course mates from the BSU (sic). She again asked me if I was the one helping her to get a job which I said yes.
She asked who is helping me in Govt. house and I said nobody but a friend in Hospital Mgt. Board (Thomas Orgeli) she asked that how much did we demand from her and I said we never demanded anything from her and she said Doobee came and demanded N10, 000 to appreciate those that helped her. It was then the Perm. Sec. told me that Doobee is her sister in law (sic) (i.e. wife to her son) and she told me I can leave. Since then I have not heard anything until yesterday at about 2:30-3:00pm when a man came to the Perm. Sec’s office and she sent for me, when I went she asked me whether I know the man and I say no, she said he is from Govt. house and wanted to find out some information from me but the man said it is the CSO who needed me and they drove me to Govt. House and after asking me some questions which I answered and reported in written (sic) then we were taken to ‘A’ division until we were brought here today.”
From the totality of the evidence before this Court especially the testimony of PW1 which was not challenged under cross-examination, and the statement of Appellant Exhibit ‘E’ reproduced above it was established beyond reasonable doubt that:
(a) The appellant worked with the civil service commission as confidential secretary to the Chairman of the Commission
(b) The Appellant was well acquainted with Doobee Msugh whose approval for employ employment by the Governor was proved to be forged
(c) The Appellant was a friend to 1st accused person at trial who was convicted for the forgery.
(d) The Appellant was the one who forwarded the documents of Doobee Msugh to 1st accused who then forged the approval letter and signature of the Governor to secure her employment.
(e) The Appellant as confidential secretary to the chairman civil service commission quickly processed the forged approval of Doobee Msugh when it came back to him from an unofficial channel.
Earlier in this judgment I had established the ways of proving the offence of aiding and abetting forgery punishable under Section 85 and 364 of the Penal Code. Having already proved the offence of forgery against the 1st accused at trial, it is my firm view that the conduct of the Appellant by collecting documents from Doobee Msugh and handing them to the 1st accused who forged the approval letter and signature of the Governor of Benue state (at that time) for her employment, and thereafter the Appellant as Confidential Secretary to the Chairman Civil Service Commission processed the forged approval of Doobee Msugh when it came back to him through an unofficial channel, aided and abetted the offence of forgery committed by the 1st accused. It can be reasonably inferred from the unbroken chain of events that the Appellant consciously instigated and abetted the 1st accused to commit the offence of forgery. See EZE V STATE 2018 LPELR 44967 SC, where the Supreme Court held that the initial element of the offence of abetment is the instigation or the positive act of encouragement to do the act that constitutes the offence. On whether there was a conspiracy between the Appellant and the 1st accused at trial, it is my firm view that Conspiracy as an ingredient of abetment of forgery can be deduced from the acts of 1st accused and Appellant established above. On this note it is pertinent to recall the position of the Supreme Court in ABIODUN V STATE (supra) that conspiracy which is mostly done in secret cannot be mathematically proved but can be inferred from the facts and evidence before the Court. In establishing the role played by the Appellant in the commission of the offence of forgery, the learned trial judge at page 247 of the record of appeal held as follows:
“2nd accused was at vantage position at the Civil Service Commission as Confidential Secretary to the Chairman of the Commission. As admitted by the 3rd accused, all ministries have their dispatch sections and official letters are served using the official method. 2nd accused claimed he got those letters from the Government house when the 1st accused made it clear that they did not come from Government House. PW2 also made it clear that the approvals that were given to 2nd accused who passed them on to his boss never came from Government House. Who then delivered those leters to him for processing if not the accused who forged them? In Peter vs. The State (1997) 3 SCNJ 48 at 66 Iguh JSC held that “where strong circumstantial evidence is held against an accused person in a criminal trial and then gives use to the drawing of a presumption or inference irresistibly warranting by such evidence, the criminal Court will not hesitate to draw such a presumption or inference so long as it is cogent, compelling and conductive as to convince a jury…
From the evidence that the 2nd accused gave the documents of Doose Msugh to his friend 1st accused to aid her employment and as the forged approval by 1st accused came back to the 2nd accused from the backdoor and not normal channel of official communication and that the 2nd accused processed the approval without questioning, to my mind is conclusive that he knew what he was in for……
By collecting documents from his friend Doobe and passing them on to 1st accused to forge a letter of the Governor’s approval for employment 2nd accused facilitated or aided the illegal act of forgery.” (Underlining mine for emphasis).
I agree with the decision and reasoning of the trial Court elaborately reproduced above and I see no reason for me to disturb the said findings which are rooted in facts and law.
From the totality of the evidence adduced by the Respondent at trial, it is my opinion that the Respondent proved beyond reasonable doubt that the Appellant committed the offence of aiding and abetting forgery punishable under Section 85 and 364 of the Penal Code. On the whole, I hereby resolve issue two distilled by this Court against the Appellant and in favour of the Respondent.
Having held that the trial Court was right to have convicted the Appellant for the offence charged, I find the resolution of the first issue unnecessary as same would amount to an academic exercise. Having held that the Respondent proved the offence of aiding and abetting against the Appellant beyond reasonable doubt, it is only logical to infer that the trial Court was right to have dismissed the Appellant’s no case submission and to have ordered him to enter his defence.
On the whole I hold that this appeal is bereft of merit and same is hereby dismissed. The decision of the trial Court delivered by Honourable Justice I. HWANDE in suit No. MHC/24C/2005 delivered on the 6th day of April, 2011 wherein the trial Court found the Appellant guilty of the offence of aiding and abetting forgery contrary to Section 85 and 364 of the Penal Code Law, and sentenced him to a fine of N40,000 or three (3) years imprisonment is hereby affirmed.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Adamu Jauro, JCA, made available to me in advance, a draft copy of the Judgment just delivered in which this appeal has been dismissed. The issues arising for determination have been comprehensively resolved, and, I adopt these resolutions as mine.
I also dismiss this appeal and abide by the orders made in the lead Judgment.
JOSEPH EYO EKANEM, J.C.A.: I had the opportunity of reading in advance the lead Judgment of my learned brother, Adamu Jauro, JCA. I am in agreement with the reasoning and conclusion that the appeal lacks merit. Accordingly, I too dismiss the appeal and affirm the decision of the trial Court.
Appearances:
S.E. Aruwa, Esq., with him, M.I. Balogun, Esq. For Appellant(s)
M.A. Agber, Esq., with him, E. Azembe, Esq. For Respondent(s)
