Forgery: What Prosecution Needs To Establish(3)

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PEMU, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of the Failed Bank (Recovery of Debts) and Financial Malpractice in Banks tribunal, Lagos Zone, holden in Lagos, as contained in the Judgment of the Chairman of the tribunal, coram honourable Justice Amina Augie, delivered on the 9th of June 1997, whereby the 5th accused person, the appellant herein) was sentenced to a term of imprisonment for 12 (twelve) months.

It is for the offence of forgery, as reflected in count 18 of the charge.

Facts of the case the appellant and four other persons were charged with a 78 count charge of various offences. They spanned from the offences of stealing, obtaining by false pretences, receiving gratification, forgery, conspiring, and offences in relation to dishonoured cheques, and other offences. In the course of trial, the prosecution withdrew counts 19-78 of the charge, which counts were accordingly, struck out.

The appellant was the 5th accused person, and he was charged with one count only, namely count 18. It reads thus:- “That you, Mark Onochie Oduah, while being on  officer of A.C.B. in Lagos, on or about the IO” day of August 1993, did commit a felony, to wit, you committed the offence of forgery in that you fraudulently included in the list of companies whose cheques are accommodated for guidance facility in respect of account No.4319 at Nsukka Branch of the Bank, the names of companies not approved by the Executive Director and you thereby committed an offence punishable under section 467 of the criminal code.”

The accused persons all pleaded “Not Guilty” to the respective counts against them. The prosecution called eight witnesses, PW1-PW8 and the accused persons testified. The appellant testified as A  DW4 and called DW5, DW6 and DW7 as his witnesses.

At pages 27 of the record of appeal it is explicit that the 5th accused person pleaded not guilty to the 18th  count on the charge sheet.

The prosecution’s story is that sometime in 1991, the management of A.C.B. Ltd observed that the bank’s clearing accounts with the Central Bank was consistently overdrawn. This was as a result of indiscriminate purchase of cheques by branch managers and fraudulent lodgments of other banks’ cheques by customers into their accounts with ACB Ltd, knowing that these  customers had no fund from the originating banks or branches to cover the cheques.

The management of A.C.B Ltd. then resolved that no manager or other staff of the bank should purchase any cheques into any customer’s accounts and that any cheque lodged into A.C.B Ltd. branch by a customer should be allowed to run the full clearing circle and that no staff should accord value to any such cheques before they were cleared.

If there arose, however, any need for a customer to draw against such cheques before they are cleared, the branch manager should document such necessity and forward same to the Executive Director (operations) for approval and or guidance.

This new introduction was labeled ‘Guidance Facility”, the operation of which resulted in the series of transaction giving rise to the charge against the appellant and four others.

The 5th accused person (the appellant herein) was a manager at the Head Office of Ohoazara branch of A.C.B Ltd, of which the 4th accused person was manager.

The Assistant General Manager of A.C.B Ltd. (PW4) , on one of his unscheduled visits to the Nsukka Branch of the bank  discovered that staff were not complying with this novel directive.

On the 3rd of June 1994, the inspectorate team of A.C.B. Ltd  discovered that some staff flouted this directive.

PW6, Josephat Nnaemeka Jeseofor Madueke who testified for the prosecution and who knows the 5th accused person (appellant) was the Executive Director (Operations) for A.C.B. Ltd. He stated that the appellant worked under him at the operations department, and that in the discharge of the duties of the office, he received a memo from the appellant. That memo is exhibit “Z”. When he reviewed the companies which were involved in the guidance facility, he cancelled Paritz AWTS Holding (Nig) Ltd. because it was not in line with their policy of companies whose cheques will be considered for guidance facility. He then minuted on exhibit “Z” that approval was granted in the old amount of N3,000 ,000 .00 (Three Million Naira).

To his amazement however, in a letter which the appellant sent to the Nsukka Town Branch (exhibit E26) Universal Vegetable Oil Company and Paritz AWTs Holding (Nig) Ltd. were listed among the companies approved for the enjoyment of the guidance facility.

The defence of the appellant, testifying as DW4 was that while his duties in the Head Office of A.C.B. Ltd. included the processing of applications from branches in respect of guidance facilities and that upon the receipt of the applications recommending customers for guidance facilities, they are passed onto management with a recommendation for their approval or otherwise. The decisions of management are thereafter passed on by them to the branches. 

The appellant worked directly under Mr. S. A. Okorie who was a Senior Manager. That the letter which the prosecution claimed contained additional companies for approval for enjoyment of guidance facilities was signed by both the appellant and the said S. A. Okorie. That the letter exhibit Z came to him from S. A. Okorie the Senior Manager with whom he signed the letter conveying the decision of management to the branch.

Under cross-examination, the appellant maintained that there was no cancellation of the last company in exhibit “Z”, when approval was given and passed on to him by the Executive Director.

However, when re-examined, the appellant had this to say as shown at page 208 of the Record of Appeal.

“There is no where in my reply that I said I did not sign alone. It is true that the 1st time I am saying I did not sign alone is here is this court; the document came from the DGM to the ED. I signed, on behalf of the DGM.”

From records, a motley of exhibits were tendered. Exhibits A-Z, and the tribunal, having appraised the evidence before it, convicted the appellant on the 9/6/1997. He was thereafter sentenced to a term of 12 months imprisonment for the offence of forgery in count 18 of the charge on the 24/6/1997. The appellant and other accused persons were deemed to have served their sentences and were thereby discharged from prison custody.

The appellant is dissatisfied with the decision of the tribunal of the 9th of June 1997 and this is why he has wielded his right, in consonance with the Practice Directions of this honourable court by filing a notice of appeal on the 5th of March 2003, encapsulating 10 (ten) grounds of appeal. See pages 303-312 of the record of  appeal.

The gravamen of the appellant’s appeal as reflected in his grounds of appeal is that the ingredients of forgery has not been established to warrant a conviction, and the failure of the tribunal to elicit evidence from one Okorie, who was alleged to have signed exhibit Z with the appellant.

The appellant filed its brief of argument on the 12th of  September 2003 with one sole issue for determination as seen at page 2 of his brief of argument.

“Whether the tribunal was right in convictmg the appellant of the offence of forgery, contrary to section 467 of the Criminal Code, based on the evidence and  the charge before the court.”

The brief is settled by Dr. Onyechi Ikpeazu and in examining this issue, he sought leave of the court to do so under the following subsidiary issues; namely

(i) Did the evidence that was tendered before the tribunal disclose the ingredients required in order to sustain a conviction under sections 467 and 464(b) of the Criminal Code?

(ii) Did the failure to cite the document alleged to be forged in the charge render the charge defective?

(iii) Was the non-production of evidence of S.A. Okorie, the appellant’s superior who signed exhibit 26 jointly with the appellant fatal to the case for the prosecution?

(iv) Did the evidence of the prosecution particularly the unsatisfactory evidence ofPW6 warrant the decision of  the tribunal that the cancellation in exhibit Z was made before the document was minute to the appellant and that it was the appellant who supplied the additional company in exhibit E26?

Let me quickly observe here that the appellant did not indicate what ground of appeal this sole issue is distilled from. This constitutes bad drafting and same is hereby deprecated.