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STANILAUS v. FRN (2020)

STANILAUS v. FRN

(2020)LCN/15548(CA)

In The Court of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/AW/79C/2019

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

UGWUNWA IKENNA STANILAUS APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

PRINCIPLE GOVERNING THE OFFENCE OF FORGERY

The common features inherent in the offences of forgery, uttering and obtaining by false pretences are:
In establishing an offence of forgery the prosecution must prove the following:
1. The existence of document in writing
2. That the document or writing was forged
3. That the forgery was by the person being accused
4. That the person who made it knew that the document or writing was false and
5. That the person accused intended the forged document to be acted upon
MAIHAJA V GAIDAM(2018) 4 NWLR (pt. 1610) 454; APC V PDP (2015) 5 NWLR (pt. 1481) 1. RITA NOSAKHARE PEMU, J.C.A.

MEANING OF THE OFFENCE OF FORGERY

The offence of forgery includes the making of a false document or altering a real document to use as genuine – OSONDU V FRN 2000 (pt 682) 483. The offences of forgery and uttering are not mutually exclusive as the offence of forgery is akin to that of uttering. The same elements of proof as well as punishment is inherent in both. RITA NOSAKHARE PEMU, J.C.A.

WHAT IS FALSE PRETENCE?

“False pretense” according to the Advance Fee Fraud and other Related Offences Act 2006 is a representation, whether deliberate or reckless, made by word, in writing, or by conduct, of a matter of fact or law, and which the person making it knows to be false, or does not believe to be true. RITA NOSAKHARE PEMU, J.C.A.

 

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Anambra State sitting in Onitsha, delivered on the 3rd day of May 2019, whereby the Appellant was discharged and acquitted of the offences of issuing dud or dishonoured cheques to the complainant. He was however convicted for forgery, uttering of forged document, and for obtaining money by false pretences.

FACTS OF THE CASE
Vide charge No. O/21C/2014, the Appellant was arraigned based on six counts of various offences, as stated above.
The prosecution at the trial called five witnesses, while the defence called three witnesses.

At the end of the trial, the Court below discharged and acquitted the Appellant of Courts 1-3, but was convicted on counts 4, 5 and 6.

The Appellant dissatisfied, is desirous of appealing the decision of the Court below. He filed a Notice of Appeal on the 1st of August 2019 with eight (8) grounds of Appeal – Pages 254-261 of the Record of Appeal.

​The Appellant filed his brief of argument on the 25th of September 2019. It is settled by C. Chuma Oguejiofor Esq. The Respondents brief of argument was not filed in this Court. It only has on it the stamp of the Court of Appeal Enugu. I am of the view that this process should have been filed, even though the State does not pay for filing.

The Appellant distilled (3) three issues for determination viz.
i. WHETHER THE LEARNED TRIAL JUDGE HAD ACTED CORRECTLY IN FINDING THE APPELLANT GUILTY OF THE OFFENCE OF FORGERY AND IN SENTENCING HIM TO 3 YEAR IMPRISONMENT WITHOUT OPTION OF FINE FOR THE OFFENCE OF FORGERY”.
ii. WHETHER THE LEARNED TRIAL JUDGE HAD ACTED CORRECTLY IN CONVICTING THE APPELLANT FOR THE OFFENCE OF UTTERING A FALSE (FORGED) DOCUMENT AND IN SENTENCING HIM TO 3 YEARS IMPRISONMENT FOR THE OFFENCE”.
iii. WHETHER THE LEARNED TRIAL JUDGE HAD ACTED CORRECTLY IN CONVICTING THE APPELLANT FOR THE OFFENCE OF OBTAINING MONEY BY FALSE PRETENCES AND IN SENTENCING HIM TO 5 YEARS IMPRISONMENT.

The Respondent distilled a sole issue for determination viz:-
“WHETHER THE OFFENCES UPON WHICH THE APPELLANT WAS CHARGED AND CONVICTED WERE PROVEN AGAINST HIM BEYOND REASONABLE DOUBT BY THE RESPONDENT”.

ISSUE NO. 1
It is the Appellant’s Argument that PW1 testified and did not say that he saw the Appellant write or make Exhibit “C”. That PW2 tendered Exhibit “G” and “H”.

PW3 also testified. That apart from Exhibit “H” which is a letter purportedly written by the Managing Director of the Chinese Company to the effect that Exhibit C was a false document, there is nothing to show that the Appellant forged Exhibit “C”.

Submits that no handwriting analyst was called to testify that he had obtained the Appellant’s specimen signature, and compared it with the writing on Exhibit C, and discovered that the Appellant had signed Exhibit “C”.

He submits that the prosecution relied solely on Exhibit “C” made by a total stranger who was not called as a witness, nor allowed to be cross-examined by the Appellant, as the maker of Exhibit “C”.

​Submits that Exhibit “H” lacks probative value. It was not tendered through its maker; neither was its maker available to be cross-examined on the document. That Exhibit “C” is documentary hearsay evidence, and has no probative value.

He urges that Exhibit “H” tendered before the trial Court was not made by the witness who had tendered it and testified regarding it. The Managing Director of the Indian Company which had issued the Sales confirmation invoice (Exhibit “C”) to the Appellant, was not called to testify neither did he avail himself for cross-examination.

That the witnesses who had tendered Exhibit “H” in the proceedings below cannot testify, nor answer questions on the veracity or otherwise of the document.

He submits that the Court below relied on Exhibit “H” in finding that the sales confirmation invoice is false or forged by the Appellant. It is the same exhibit which is documentary hearsay that the Court below had relied on solely to find that the sales confirmation invoice (Exhibit “C”) was forged by the Appellant.

Urges this Honourable Court to expunge Exhibit “H” from the record of the Court. In the alternative, this Court should attach no probative value to it.

​That on the charge sheet, the Appellant was charged with forging a document titled “Sales confirmation” dated 12/11/2010, but in its judgment the Court below talked about a sales confirmation invoice of 18/11/2010.
Urges Court to discharge and acquit the Appellant in respect of the offence of forgery of the Sales Confirmation dated 12/11/2010.

ISSUE NO. 2
The Appellant submits that the prosecution having failed to establish a case of forgery, there is no issue of proof or no proof beyond reasonable doubt of the offence of forgery. In other words, that when a document has not been proved to be a forgery or false, an offence of uttering a forged document cannot be said to have been established or committed by any person.

Once the offence of forgery is not established, the document which is not a forgery cannot be said to have been uttered as a false/forged document.

ISSUE NO. 3
The Appellant submits that it was the erroneous view held by the learned trial judge that the sales confirmation invoice was a forged that had influenced him in finding that the Appellant intended to defraud and indeed had defrauded PW1.

He submits that the Appellant as PW2 had testified that he told the complainant PW1 to come and collect his goods but he refused to do so because the process of the commodity had gone up. – Page 202 of the Record of Appeal
That the Appellant was not cross-examined on this fact. That piece of evidence was not discredited. The facts remain unchallenged, he submits.
The Respondent sole issue is whether the prosecution had proved its case beyond reasonable doubt.

RESOLUTION OF ISSUES
The Appellant had been convicted and sentenced in Counts 4, 5 and 6 on the information.
Count 4 has this to say in its particulars:
Count 4 “Ugwuwna Ikenna Stanilaus and Staniyke Multi Resources Ltd on or about the 12th of November 2010, in Onitsha, Anambra State within the jurisdiction of the High Court of Anambra State in order to deceive and with intent to defraud forged a document titled Sales confirmation dated the 12/11/2010 purportedly issued by Guangzhou Zwei Import and Export Company Limited in favour of Mr. Malobi Uchenna Emma of De Blessed Uche best and you thereby committed an offence”.
Count 5 PARTICULARS OF OFFENCE
“Ugwunwa Ikenna Stanilaus and Staniyke Multi Resources Ltd on or about the 12th November 2010 in Onitsha Anambra State, within the jurisdiction of the High Court of Anambra State in order to deceive and with intent to defraud, uttered a forged document titled Sales confirmation dated the 12/11/2010 purportedly issued by Guangzhou Zwei Import and Export Company Limited Mr. Malobi Uchenna Emma of De Blessed Uche best and you thereby committed an offence”.
Count 6 PARTICULARS OF OFFENCE
“Ugwunwa Ikenna Stanilaus and Staniyke Multi Resources Ltd on or sometimes in January 2012 in Onitsha Anambra State, within the jurisdiction of the Anambra State High Court of Nigeria with intent to defraud, obtained the sum of (N12,403,000.00) twelve million, four hundred and three thousand naira from Mr. Malobi Uchenna Emma of De Blessed Uche best under the false pretence that you were importing motor spare parts for him from China, which pretence you knew to be false and you thereby committed an offence”. – Pages 2-3 of the Record of Appeal.

The common features inherent in the offences of forgery, uttering and obtaining by false pretences are:
In establishing an offence of forgery the prosecution must prove the following:
1. The existence of document in writing
2. That the document or writing was forged
3. That the forgery was by the person being accused
4. That the person who made it knew that the document or writing was false and
5. That the person accused intended the forged document to be acted upon
MAIHAJA V GAIDAM(2018) 4 NWLR (pt. 1610) 454; APC V PDP (2015) 5 NWLR (pt. 1481) 1.

The offence of forgery includes the making of a false document or altering a real document to use as genuine – OSONDU V FRN 2000 (pt 682) 483. The offences of forgery and uttering are not mutually exclusive as the offence of forgery is akin to that of uttering. The same elements of proof as well as punishment is inherent in both.

“False pretense” according to the Advance Fee Fraud and other Related Offences Act 2006 is a representation, whether deliberate or reckless, made by word, in writing, or by conduct, of a matter of fact or law, and which the person making it knows to be false, or does not believe to be true.

The case of the Respondent through PW1, PW2, and PW3, shows that the evidence about the sales confirmation invoice remains unchallenged. They were not cross-examined on the issue neither did the Appellant offer any evidence to the contrary.

That the Appellant forged the Sales Confirmation invoice and gave it to PW1 to deceive him that he has placed orders for the goods from the Chinese company. He submits that where a document was shown to be used as an intermediate step in the scheme of fraud in which an accused person was involved, if it shows that such document was false and presented or uttered by an accused in order to gain advantage, an inevitable inference exists that either the accused forged the document with his own hand, or procured someone to commit the forgery.

There is evidence by the Appellant that Exhibit C was the document that made the complainant PW1 part with the money the way he did. The Chinese Company had denied that Exhibit C emanated from them.

It is evident that the Appellant flaunted Exhibit C, and that document in the eyes of PW1 was an inducement to him, when the goods were not readily forthcoming, even after the Respondent had made part payment.

The Appellant did not deny taking the money for the items. Exhibit “C” purportedly issued from Guangzhhou Zwei import & Export Co. Ltd.

PW1 when asked whether his lawyer included in his petition to EFCC that he removed goods from the Appellant’s shop in part settlement of the debt owed him, his answer was in the negative. That the Appellant gave him some goods as part payment and issued him with a receipt Exhibit “A” – Page 178 of the Record of Appeal. This is much after the incident, the subject matter of the case at the Court below.

It is apparent that the Appellant in a bid to obtain money from PW1, and in order to perfect his fraud, and deception that he was importing motor spare parts with the money paid to him by PW1, forged Exhibit C.

Noteworthy is that the Appellants Counsel at the Court below failed to impugn the fact that Exhibit C (Sales confirmation invoice) was delivered to PW1 the Appellant, and that it was forged. The question then is “what is the source of Exhibit “C”?

​It is the duty of the Appellant to prove or disapprove the source or the authenticity of Exhibit C, the Chinese company having denied the ownership or knowledge of same.

It is on record that the duo had engaged in businesses in the past. The Appellant looked for an opportunity to cash in on that, knowing that PW1 would believe and trust him.

DW3, Livinus Chinedu Nwankwo when asked whether he was aware that the money in question was obtained by the Appellant from PW1 under the pretence of importing spare parts, answered in the affirmative. – Page 217 of the Record of Appeal. This witness was never re-examined.

The investigation of the EFCC is what brought the Appellants tricks to light. It was their investigation that revealed the existence of Guangzhou Zwei Import and Export Co. Limited.
The Appellants failure to explain how he came about Exhibit “C” is fatal to his case.

The Appellant made heavy weather of the fact that Exhibit C is what can be termed documentary hearsay evidence. I am of the view that this is misconceived.

The fulcrum of the matter is whether PW1 was deceived by any document into parting with his money, with the promise from Appellant that goods will be supplied him.

​The issue of whether Exhibit C lacks probative value or not is irrelevant. The question is whether the Appellant forged Exhibit “C”. The Company Guangzhou Zwei had communicated via Exhibit “H” that they are not the author of Exhibit C, neither is it part of their Company’s record. Why would the Company therefore be required to come and testify about the existence, veracity and authenticity of Exhibit C?

​It is not in all cases that a handwriting expert is required in cases of forgery. There is no doubt that the Appellant forged Exhibit C (the sales confirmation invoice) as he failed to explain how he came about it.

Learned Counsel for the Appellant had argued in Paragraph 3.30 of his brief of argument, inter alia that the question is if the Appellant did not import the goods as agreed between himself and PW1 from where did the Appellant get the goods he had supplied to PW1.

​This argument does not, in my view advance the case of the Appellant an inch further. This is because, the fulcrum of the offence of forgery is when it is established by direct evidence or circumstantial evidence that a document (here Exhibit C) is shown to be used as false and presented or uttered by an accused in order to gain advantage.

There is an inevitable inference that either the accused person forged the document with his own hand, or procured someone to commit the forgery.

The Appellant obtained the colossal sum of (12,403,000.00) (Twelve million four hundred and three thousand naira) from the complainant PW1 under false pretence that he was importing motor spare parts for him from China which fact he knew to be false.
Section 444 of the Revised Civil Code Anambra State is apt.
It provides that
“Any person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal is guilty of an offence of the same kind and is liable in the same punishment as if he had forged the thing in question …”.
There is evidence that the Appellant testified to the effect that he gave Exhibit C to PW1. DURU V FRN (2018) 12 NWLR (pt 1632) 20 Exhibit “C” was a document which the Appellant armed himself with in anticipation of when PW1 would ask for the goods he had paid for.
Appellant now forwarded Exhibit C to PW1 as evidence that he had paid for the goods and that the goods had arrived, and that indeed he was going to Lagos to collect them. The Appellant then disappeared into thin air.
When PW1 received Exhibit “C” he was of the impression that it emanated from the Chinese Company. But the Chinese Company knew nothing about Exhibit “C”. By the Appellant transmitting to PW1 Exhibit C, purporting to show that the goods had been paid for from the money given to him by PW1, and that indeed the goods have been shipped and had arrived Lagos, and that he was going to get them down knowing that all these were false, the offence of uttering had been established.

In all, I resolve all the issues proffered by the Appellant in this Appeal in favour of the Respondent and against the Appellant.
The sole issue proffered by the Respondent is hereby resolved in favour of the Respondent and against the Appellant.
The Appeal fails and same is hereby dismissed.

​The judgment of the High Court of Justice of Anambra State sitting in Onitsha delivered on the 3rd day of May 2019, whereby the Court below found the Appellant guilty in Count 4, 5 and 6 is hereby affirmed. The Appellant is hereby sentenced to 3years imprisonment in Count 4; three years imprisonment in count 5 and 7 years imprisonment in count 6. The Sentences are to run concurrently.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the honour of reading in advance the judgment pronounced by my learned brother, R. N. PEMU, JCA, with which I agree and adopt as mine.
I also dismiss this appeal and affirm the judgment of Onitsha division of the High Court of Anambra State in Charge No. O/21C/2014, delivered on the 3rd day of May, 2019.

I am in agreement that the Appellant be sentenced to 3 years imprisonment in Count 4, 3 years imprisonment in Count 5 and 7 years imprisonment in Count 6.
The Sentences are to run concurrently.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

C. CHUMA OGUEJIOFOR, ESQ. For Appellant(s)

MAINFORCE ADAKA EKWU, ESQ. For Respondent(s)