Forgery: What Prosecution Needs To Establish

0
6783

Mark Onochie Oduah

V

Federal Republic of Nigeria

Court of Appeal

(Lagos Division)

CA/L/163/2002

John Inyang Okoro JCA (Presided)

Sidi Dauda Barge JCA

RITA Nosakhare Pemu, (JCA) (Read the leading Judgement)

Friday, 10th February, 2010

Issue:

Whether the tribunal was right in convicting the appellant
for the offence of forgery contrary to section 467 of the Criminal Code, based
on the evidence the charge before the court

Facts:

Before the Lagos Zone of the Failed banks (Recovery of
Debts) and Financial malpractices in Banks Tribunal the 5th accused/appellant
was charged with a 78-count charge of various offences. The offences spanned
from stealing, obtaining by false pretences, receiving gratification, forgery,
conspiracy, issuing dud cheques, amongst others. The appellant pleaded not
guilty to the respective charge.

The prosecution’s case was that sometime in 1991 the
management of African Continental Bank Limited observed that the bank’s
clearing accounts with the Central Bank were consistently overdrawn. This was
as a result of indiscriminate purchase of
cheques by branch managers and fraudulent lodgements of other bank’s
cheques by customers into their accounts with A.C.B. Ltd., knowing that these
customer’s accounts and that any cheques lodged into any 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 were cleared, the branch manager should document such necessity and
forward same to the Executive Director (Operations) for approval and or
guidance. The new introduction was labeled “Guidance Facility”, the operation
of which resulted in the series of transactions giving rise to the charge
against the appellant and four others.

The prosecution’s case against the appellant was for
fraudulently inkling in the list of companies whose cheques were accommodated
for guidance facility in respect of account No. 4319 at Nsukka Branch of the
bank the names of Universal Vegetable Oil Company and Paritz AWTS Holdings
(Nig.) Limited, which companies were not approved for the enjoyment of the
guidance facility by the bank.

The defence of the appellant was that his schedule 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 were passed
onto management with a recommendation for their approval or otherwise. The
decisions of management were 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 with whom he signed the letter conveying the decision of management to
the branch.

The trial tribunal in its judgement on 9th June, 1997 found
the appellant guilty of the offence of forgery. It therefore convicted and
sentenced him to a term of 12 months imprisonment.

Dissatisfied with the decision, the appellant appealed to
the Court of Appeal. The gravamen of the appellant’s appeal was that the
ingredients of the offence of forgery had not been established to warrant his
conviction coupled with the failure of the trial tribunal to elicit evidence
from one Mr. S.A. Okorie who was alleged to have signed exhibit Z with the
appellant.

Section 465 of the Criminal Code Law defines forgery as
follows:

“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
or refrain from doing any act, whether in thestate or elsewhere, is said to
forge the document in writing”

Held (Unanimously allowing the appeal):

1.On Effect of defect in a charge –

By virtue of section 166 of the Criminal Procedure Act, 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. In the instant case, ex facie, the charge was
defective. This because, there should have been a column of statement of
offence and another column for particulars of offence. To have lumped both
together made the charge and indeed the count defective. But section 166 of the
Criminal Procedure Act cured this apparent defect, subject to where the accused
was in fact misled by such error or omission. (P.102, paras. B-D).

2.On Meaning of “forgery” –by virtue of section of section
465 of the Criminal Code Law 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 or refrain from doing any act, whether in the state or elsewhere,
is said to forge the document or writing.

(P.102, paras. E-G)

3. On what amounts to “making a false document in writing”-

The phrase “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 any false date, attestation, seal or
other material matter . (P.102, paras. G-H).

4.On Meaning of “document” –

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. (P.103, para. A-B)

5. On meaning of “writing”

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 (P.103, para. B).

6. On Ingredients of forgery –

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 act. (P.106, paras. A-B)

Per PEMU, J.C.A. at page 109, paras. D-H:

“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 11) 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. 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”.