CITATION: (2020) LPELR-50755 (CA)
In the Court of Appeal
In the Asaba Judicial Division
Holden at Asaba
ON FRIDAY, 4TH SEPTEMBER, 2020
Suit No: CA/AS/364C/2016
Before Their Lordships:
AYOBODE OLUJIMI LOKULO-SODIPE
Justice, Court of Appeal
MOHAMMED AMBI-USI DANJUMA
Justice, Court of Appeal
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO
Justice, Court of Appeal
FEDERAL REPUBLIC OF NIGERIA
ENGR. VALENTINE OKONKWO
LEADING JUDGMENT DELIVERED BY ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
The appellant received a complaint through a petition dated September 19, 2011, written by Westar Engineering Ltd through its legal practitioner, Kwunume Anamanya Esq, alleging that the defendant/respondent committed forgery, uttered forged document, and fraudulent inducement by means of a forged document. The respondent was arraigned before the Federal High Court, Asaba after a detailed investigation by the Economic and Financial Crimes Commission (EFCC).
The learned judge found the respondent not guilty in all three counts of forgery, uttering forged documents, and fraudulent inducement filed against him by the EFCC in suit No. FHC/ASB/24C/2013 and discharged and acquitted him in all the counts. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.
Issues For Determination
The Court determined the appeal on the following issues: 1. Whether the learned trial judge was right in holding that Sharper Image Limited and not Sharper Industry Image Ltd owns the Intercontinental Bank (now Access Bank Plc) account no. 0051001000091250 stated in Exhibit ‘J’, a letter dated December 7th, 2011 written by the said Intercontinental Bank (now Access Bank Plc) to EFCC when the evidence before the Court revealed otherwise?
2. Whether from the facts and circumstances of this case, the trial Court was right to hold that Sharper Industry Images Ltd has no nexus to the present charge as constituted and the evidence led thus leading to the acquittal of the defendant?
3. Whether the learned trial judge was right in holding that there was no forgery of attachment to Exhibit ‘U1’ Exhibit ‘CC2’ despite the preponderance of evidence to the effect that the said exhibits are false?
4. Whether the learned trial Judge was right when he failed to properly evaluate evidence led before the Court in respect of Sharper Industry Image Ltd, Sharper Image Ltd, and Account nos. 0057001000091250 and 0101480906?
5. Whether the trial judge was right in holding that there is no evidence that the domiciliation of contract payment dated January 10, 2007, purportedly issued by the Financial and Accounts Department of Delta State Ministry of Works, Asaba was forged, and the forgery emanated from the respondent despite the sufficient evidence before the Court to that effect?
6. Whether the trial judge was right in holding that there is no evidence of a forged document, uttering of a forged document, and/or that the respondent authored a forged document, and/or that the respondent authored a forged document, uttering of a forged document, and/or that the respondent authored a forged document despite the evidence in pages 2 & 3 of Exhibit ‘U1’ & Exhibit ‘CC2’ used to divert N6, 715, 318 to the Sharper Industry Image Ltd account no.
0057001000091250 was false?
7. Whether the trial judge was right when it held that he found no evidence that the respondent induced Intercontinental Bank now Access Bank Plc to make payment in the sum of N6, 715, 318 to the Sharper Industry Image Ltd’s account no. 0057001000091250 by means of a letter of domiciliation of contract payment despite the abundant evidence before the Court relating to such inducement?
On issue 1, Counsel to the appellant argued that the Court is bound by its record and that from the totality of the evidence as indicated by the exhibits, the account number 0057001000091250 into which the induced money was paid does not belong to Sharper Image Nigeria Limited as against the decision of the trial Court. Rather, it belongs to Sharper Industry Images Limited.
On issue 2, Counsel submitted that there are sufficient pieces of evidence that Intercontinental Account No. 0101480906 is the same as account no. 0057001000091250. While the latter is the original number assigned to the account when it was opened, the former is a NUBAN number assigned to the account as a result of the Central Bank of Nigeria’s policy of “review of the operation of bank accounts”.
On issue 3, Counsel argued that there is sufficient evidence to prove that the documents used to induce the payment of the sum of N6, 715, 318 into Intercontinental Bank (now Access Bank Plc) account No. 005001000091250 (now account No. 0101480906) belonging to Sharper Industry Images Limited was false and so forged.
On issue 4, Counsel argued that the trial judge did not examine and evaluate the pieces of evidence in the case properly. Rather, the trial Court muddled or mixed up the whole evidence.
On issue 5, Counsel submitted that the trial judge erred in holding that there was no evidence that the domiciliation of contract payment dated 10th January 2007 purportedly issued by the Financial and Account Department of Delta State Ministry of Works, Asaba was forged, and the forgery emanated from the respondent.
On issue 6, Counsel argued that there was a preponderance of the evidence that there were forged documents in the case. Counsel submitted that a document that bears or contains a false statement or tell lies about itself is forged.
On issue 7, Counsel argued that the relationship between Westar Engineering Nig. Ltd and Sharper Image Nig Ltd represented by the respondent is an agency and not a partnership.
Arguing the appeal, the respondent submitted that the lower Court was right in holding that the evidence produced at the trial is at variance with the charge. The star witness of the prosecution named William Okonji in his testimony stated that the money was paid into Sharper Image Nigeria Ltd account whereas the charge states that the money was paid into the account of Sharper Industry Image Ltd. Respondent submitted that both companies exist and have been duly incorporated under the Laws of the Federal Republic of Nigeria and the law recognises the sanctity and distinctness of companies once incorporated. See MARINA NOMINEES LTD v FIBR (1986) NWLR (PT. 20) 48; SALOMON v SALOMON (1897) AC 22 AT 51 and MAERSK LINE & ANOR v ADIDE INVESTMENTS LTD (2002) 11 NWLR (PT. 778) 317.
Respondent further submitted that the lower Court clearly and properly evaluated the evidence before it, arrived at its conclusion and where the evaluation of evidence as carried out by a trial Court is not shown or demonstrated to be perverse, an appellate court cannot be invited to set the findings or conclusion of the trial Court aside. IGAGO v THE STATE (1999) 14 NWLR (PT. 637) 1; SUGH v THE STATE (1988) NWLR (PT. 77) 475.
Respondent further submitted that the prosecution failed to prove the allegation of forgery against the respondent and the lower Court was therefore perfectly right when it so held. That the allegation of forgery was never proved or established as PW2 whose signature was alleged to have been forged in his testimony never identified any signature as a real or forged signature and by so doing did not prove that allegation; See ACN v LAMIDO (2012) LPELR – 7825 (SC); NDOMA – EGBA v ACB PLC (2005) 14 NWLR (PT. 944) 79 and JULES v AJANI (1980) ALL NLR 170
RESOLUTION OF THE ISSUES
On issues 1, 2, and 4, the Court stated the position of the law as held in was held in IBRAHIM v STATE (2013) LPELR – 21883 (SC) as follows:
“It is the law, that once an accused person makes a statement under caution saying or admitting the charge or creating the impression that he committed the offence charged, the statement made becomes confessional. See PATRICK IKEMSON AND ORS V. USMAN ISHA & ORS (2012) 7 S. C 93 at 117 and (2012) 16 NWLR 9PT. 1327) 613 at 632, (2012) 12 SCM (PT. 2) 425.”
The crux of the dispute under these issues is the fact that the witness of the prosecution, William Okonji, in his testimony stated that the money was paid into Sharper Image Nigeria Ltd account whereas the charge stated that the money was paid into the account of Sharper Industry Image Ltd. On the basis of this, the respondent argued that the case of the appellant was contradictory. The Court in resolving this held that the testimony of the witness was a mere slip as there was sufficient documentary evidence to prove that the money was paid into the account of Sharper Industry Image Ltd. The trial Court was therefore wrong to have held that the money was paid into the account of Sharper Image Nigeria Ltd. The Court, therefore, resolved the issues in favour of the appellant and against the respondent.
On issues 3, 5, and 6, the Court gave the definition of forgery according to ALL PROGRESSIVE CONGRESS v PEOPLES DEMOCRATIC PARTY & ORS (2015) LPELR – 24587 (SC) as: “Forgery is the noun form of the verb “forge” and to forge means, inter alia, to make a copy or an imitation of something in order to deceive people.”
Going further, the Court examined the record of proceedings at the trial Court and came to the conclusion that PW2, whose signature was alleged to have been forged, should have been made to identify his signature and the forged one or to at least attest whether or not he signed the alleged forged documents. The Court however held that the failure of PW2 to identify his signature and the forged one was not fatal to the prosecution’s case as there was unchallenged testimony of PW6, an expert witness, who demonstrated how the forgery was perpetrated.
On who prepared the forged document, the Court held that the respondent’s admission against interest, coupled with the circumstantial evidence stemming from the fact that he was known as an agent of Westar Engineering Ltd and was responsible for the preparation of such documents, pointed to the fact that the respondent prepared the document. The Court, therefore, resolved the issues in favour of the appellant and against the respondent.
On issue 7, the Court held that the resolution of issues 1 – 6 made it unnecessary to consider issue 7. It was therefore resolved in favour of the appellant and against the respondent.
The Court allowed the appeal and set aside the decision of the trial Court. The Court found the respondent guilty on the 3 counts he was charged with and sentenced him to 8 years imprisonment on counts 1 and 2 each and 9 years imprisonment on count 3 to run concurrently.
M. T. Iko (Senior Detective Superintendent)
O. J. Obodaya
For Respondent (s)
Compiled by LawPavilion.
In this article: