IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT MAITAMA
CASE NO: FCT/HC/CR/25/2005
BETWEEN
FEDERAL REPUBLIC OF NIGERIA ------------------- COMPLAINANT
AND
PRINCE ONYIUKE --------------------------------------- ACCUSED PERSON
JUDGMENT
The Accused was arraigned on 13/4/2005 on an amended 13-count charge of
obtaining the sum of N5, 500,000.00 (Five million five hundred thousand
Naira) from one Dr C. U Undie by false pretence and fraudulently using as
genuine forged documents knowing them to be forged and being in
possession of forged documents knowing them to be forged and intending
that same shall fraudulently be used as genuine.
In proof of its case, the prosecution called 8 witnesses Pw1- Pw8
respectively, while the defence called only one witness Dw1 in proof of his
case and a total of 17 Exhibits were tendered. At the conclusion of trial,
parties were ordered to file and exchange their written addresses and on the
last adjourned date, learned counsels to the prosecution and accused move
and adopted their written addresses and the case was adjourned for
judgment.
In his written address, learned counsel for the accused Paul O. Eshiemomoh
esq, submitted that in every criminal allegation, the burden of proof rest on
the prosecution to prove the culpability of the accused person in the crime.
He cited sections 132, 136(1) and 139(3) of Evidence Act, 2011 (As
amended), USUFU V, STATE 2007 1 NWLR PT 1020 P 93 AT 112,
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ALABI V. STATE 1993 7 NWLR PT 307 P 511 AT 531, and that the
standard of proof of the allegation against the accused is proof beyond
reasonable doubt for this court to convict him. He cited the case of
OGUNTOLA V. STATE 2007 NWLR PT 1049 P 617 AT 635.
On count 1, which is for the offence of obtaining by false pretence contrary
to section 1 (1) (a) of the Advance Fee Fraud and other Related offences
Decree No. 62, 1999. in order to succeed in a charge of obtaining by false
pretence, the prosecution must prove the following ingredients;
a.
b.
c.
d.
e.
f.
that there is a pretence;
that the pretence emanated from the accused person
that it was false
that the accused person knows its falsity or did not believe in its truth
that there was an intention to defraud
that the accused induced its owner to transfer his whole interest in the
property; and
g. that the thing is capable of being stolen.
Counsel cited the cases of ONWUDIWE V. FRN 2006 10 NWLR PT 988 P
382 AT 429-430, ODIAWA V. FRN 2008 All FWLR PT 439 AT 436, and
OSHUN V. DPP 1965 NMLR 357 AT 358. He contended that the
prosecution must lead evidence tending to show that the accused person
knew his claim to be false or did not believe it to be true. That in OSHUN V.
DPP (SUPRA) the court held that even if the prosecution had proved that the
land never belong to the appellant, the fact that they could not prove that the
appellant knew his claim to be false was enough to exculpate the appellant.
He contended that the uncontradicted evidence before this court is that plot
A19 Kubwa Express way Abuja, covered by Exhibits 4 and 5 for which
accused person is charged before this court is in fact in existence and there is
no contrary evidence to that fact.
Accused person in his evidence in chief stated that he has even faced that
land and the prosecution has not produced any evidence to the contrary to
prove that Exhibits 4 and 5 are not in respect of any existing plot of land to
suggest that the accused used the document to sell non existing land or land
which is the property of another person. He urged the court to hold that the
entire case of the prosecution is premised on suspicion and suspicion no
matter how strong cannot ground a conviction for a crime. He cited the case
of AHMED V. STATE 2001 NSCQR 273 AT 289- 290, and submitted that
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the prosecution has failed to prove any of the above ingredients as laid down
by the supreme court and none of the evidence of the witnesses could
establish that there was pretence by the accused or that the representation of
the accused was false or that the accused intended to defraud the
complainant. That the accused did not directly approach the complainant or
offer the papers to him knowing that they were forged.
He contended that the evidence of Pw1- 5 were statements of facts which
goes to show that there was transaction in respect of plot of A19 Kubwa
Express road which belong to the accused person’s company and that the
accused person gave the letter of offer and certificate of occupancy through
his lawyers as evidence of his ownership of the land but their evidence did
not any way prove that the accused know that the documents he gave to his
lawyer were forged or prove that he had a fraudulent intention. That the
accused person has never denied the factthat he instructed his lawyer Bar
Kanu to sell his land and also has not denied the fact that he got the letter of
offer and the certificate of occupancy (Exhibits 4 and 5) from one Tony
Momoh on payment of consideration.
Further that the accused person has consistently maintained that he produced
the said Tony Momoh before EFCC and that Tony Momoh confirmed to the
EFCC that he sold the land and gave possession of Exhibits 4 and 5 to the
accused person and the above pieces of evidence of the accused were
corroborated by Pw6 Idris Mohammed, one of the investigating police
officers. He urged the court to hold that the witnesses in this case did not
adduce any indictable evidence to convict the accused person for this
offence. Counsel contended that the only way the prosecution would have
been able to establish the ingredients of this offence would have been
through the evidence of Pw7 and Pw8 and that while they may have proved
that Exhibits 4 and 5 are forged, they could not establish that they were
forged by the accused person or that the accused person knew they were
forged and knowingly and pretentiously used them to sell the land to the
complainant.
Counsel referred to the case of ONWUDIWE V. FRN (SUPRA) and that
under cross- examination Pw8 the Forensic Expert admitted that he cannot
say that it was the accused person that forged Exhibits 4 and 5 and that the
accused as a layman cannot know or could not have known that the
documents were forged by merely looking at them or signing the signatures.
He submitted that the failure of the prosecution to produce Tony Momoh as
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a witness or produce his statement at the EFCC office to them to contradict
the accused person allegation that Mr Tony Momoh admitted giving him
Exhibits 4 and 5 at EFCC office amount to withholding evidence and ipso
facto resolve the issues against the prosecution. He referred to section 167
(d) of the Evidence Act and the cases of OTTIH V. NWANEKE 1990 3
NWLR PT 140 P 550 AT 562, ALGUOBARUEGHIAN V. 2004 17
NSCQR 442 AT 464.
O Counts 2 and 3 which were brought under section 366 of the Penal Code,
he adopted his submissions on the burden and standard of proof of criminal
allegation against the accused as placed on the prosecution by the Evidence
Act. And for the prosecution to secure the conviction of the accused person
under section 366 of the Penal Code, they must prove beyond reasonable
doubt the following ingredients of the offence, to wit;
a. that the accused used a document as genuine;
b. that he knew or had reason to believe that the document was forged;
and
c. that he did so fraudulently or dishonestly.
He contended that the law is to constitute an offence under section 366 of
the Code, the prosecution must as a matter of necessity prove knowledge and
fraudulent intention and the court must necessarily as k itself whether from
the evidence, the accused knew or had reason to believe the documents to be
forged and whether he used the documents fraudulently or dishonestly. He
referred to NOTES ON PENAL CODE LAW 4th Edition by S. S
Richardson, A. O., CBE, MA (Oxon) Hon. LLD (ABU) at p. 284.
Learned counsel submitted that the offence under section 366 of the Penal
Code is not a strict liability offence, ipso facto the fact that a forged
document was found in possession of the accused person does not discharge
the burden on the prosecution to prove the liability of the accused person.
That the prosecution did not only fail to call Tony Momoh to give evidence
because they knew that his evidence would exculpated the accused, they
failed to make available Tony Momoh’s extra judicial statement to them at
their office. He posed 3 questions for the court to resolve and find that the
prosecution has not proved all the ingredients of this offence to warrant the
conviction of the accused person.
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On counts 4- 13 of the charge, which are offences of forgery of documents
contrary to section 368 of the Penal Code law, which requires similar
ingredients of the offences to be proved. He conceded that while the
prosecution was able to prove that the documents to wit, Exhibits 4 and 5
were forged through the evidence of Pw7 and Pw8, the prosecution however
failed to prove that the accused knew or had reason to believe that the
documents were forged or that that he fraudulently or dishonestly intended
to use them to sell plot A19 to the complainant. That the accused person did
not dispute the fact that he released the documents to his lawyers to use to
sell the land but he had maintained that he never forged or knew that the
documents were forged as they were given to him by one Tony Momoh from
whom he bought the land. He referred to accused extra judicial statement to
the prosecution. Further that the accused person also gave evidence of the
fact that he submitted to the prosecution the power of attorney Tony Momoh
executed in his favour.
counsel submitted that these facts were never contradicted in evidence or
denied by the prosecution and under cross-examination Pw6 admitted that
the accused person informed them that he purchased the land from Mr Tony
Momoh and the fact that Mr Tony Momoh was arrested by them on being
produced by the accused but they failed to prosecute him or call him as a
witness or even tender his statement to them to contradict the evidence of the
accused person.
He urged the court to hold that in the absence of any other cogent evidence,
the only eay the prosecution can prove that the accused person knew that the
documents were forged is by proving that he forged them. That the evidence
before this court is however in favour of the accused person as Pw6, Pw7
and Pw8 maintained that they never saw the accused forge any of the
documents. For the prosecution to secure conviction under section 368 of the
Penal Code, they must prove the following ingredients of the offence of
forgery to the satisfaction of the court;
i. that the documents were forged
ii. that it was in possession of the accused
iii. that he held in possession knowing it to be forged and knowing it
would be used fraudulently or dishonestly as a genuine document; and
iv. that the document is discussed in sections 362 and 363.
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Counsel contended that the criminal intent can only be inferred by this court
if and only if the accused person cannot account for this possession. He
referred to NOTES ON PENAL CODE (SPURA) at 285. he contended that
there is no dispuite as to the fact that the documents referred to in the charge
were in possession of the accused person, the accused person never
discovered any of the documents but consistently gave account of how he
came into possession of the documents which account the prosecution never
bothered to verify in their haste to prosecute the accused person. Further that
the accused in his statement to the prosecution and in his evidence before the
court stated that he purchased the plots of land to which the documents relate
from the villagers at Kubwa village being plots granted to the villages as
compensation and accused person proceeded to produce the power of
attorney executed by the sellers in his favour and in favour of his company
and specifically mentioned one Musa Bazago of Kubwa village from whom
he purchased some of the plot covered by the documents.
That the prosecution failed to investigate this defence of the accused person
to confirm whether Musa Bazago orthe villagers the accused person
mentioned actually sold to him and like Tony Momoh, the only person or
persons that would have helped this court to know whether the accused
person told EFCC the truth would have been Musa Bazago and the villagers.
He contended that the power of attorney executed by the settlers in favour of
the accused person in the absence of any evidence to the contrary raised the
presumption that they are so executed or authenticated. He referred section
150 of the Evidence Act.
In conclusion, he urged the court to discharge and acquit the accused person
of all the counts of the charge as the prosecution failed to prove all the
elements of the offences to secure a conviction of the accused. That for the
prosecution to succeed it must prove ALL and not SOME or MOST of the
ingredients of each of the offences against the accused person. He referred to
section 36(1) of the constitution of the Federal Republic of Nigeria 1999.
In his final written address learned counsel for the prosecution James Neville
Onu Esq, formulated 3 issues for determination, to wit;
1. Whether the prosecution has proved beyond reasonable doubt against
the accused count 1 bordering on obtaining money by false pretence.
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2. Whether the prosecution has proved beyond reasonable doubt against
the accused counts 2 and 3 bordering on fraudulently using as genuine
forged documents knowing them to be forged.
3. Whether the prosecution has proved beyond reasonable doubt against
the accused counts 4- 13 which are on being in possession of forged
documents knowing them to be forged and intending that same shall
fraudulently be used as genuine.
Counsel submitted that generally it is the duty of the prosecution in a
criminal trial to prove the guilt of the accused reasonable doubt and cited the
cases of GBADAMOSI V.STATE 1992 9 NWLR PT 266 P 456 AT 498,
AGBE V. STATE 2006 6 NWLR PT 977 AT 545. However, proof beyond
reasonable doubt should not be stretched beyond reasonable limit. It is not
proof beyond all iota of doubt and not proof beyond all shadows of doubt.
He cited the cases of NARISU V. THE STATE 1999 2 NWLR PT 589 P 87
AT 98, AIGBADION V. STATE 2000 4 SC PT 1 P 1. Further that in
criminal trials the burden on the prosecution is not static, it shifts to the
accused once the prosecution has made out a prima facie case against him
and cited the case of IGABELE V. STATE 2005 ALL FWLR PT 285 P 568
AT 592.
On issue No.1, learned counsel cited the provisions of section 1(1)(a) of the
Advance Fee Fraud and Other Fraud Related Offences Decree No.14 of
1995 and section 23 of the Decree which defines the meaning of false
pretence. That the prosecution concedes that the ingredients of the offence as
enunciated in the case of ALAKE V. THE STATE 1991 7 NWLR PT 205 P
567 AT 591 and reiterated in ONWUDIWE V. FRN 2006 10 NWLR PT 988
P 382 AT 429-430, as follows;
a.
b.
c.
d.
that there is a pretence
that the pretence emanated from the accused person
that it was false
that the accused person knew of its falsity or did not believe in its
truth
e. that there was an intention to defraud
f. that the things is capable of being stolen
g. That the accused person induced the owner to transfer his whole
interest in the property.
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He submitted that all the elements of the offence have been proved by the
prosecution in this case by the following pieces of evidence, to wit;
a. whether the land in question i.e plot A19 Cadastral Zone 07- 05
Kubwa Express way which the accused purportedly bought from
Tony Momoh actually belonged to him, i.e the accused.
b. Whether the offer letter i.e Exhibit 4 and Certificate of Occupancy i.e
Exhibit 5 in respect of the said plot A19 were forged.
c. Whether the accused knew or had reasons to know that they were
forged when he used them to sell the said plot A19 and obtained the
sum of N5.5m from Dr Celsius Undie (i.e Pw1)
On issue No.1, learned counsel contended that the accused person testifying
as Dw1 was very inconsistent on the actual plot which he sold to Pw1, in his
statement of August 10, 2004- Exhibit 9, said he bought Plot A19 and Plot
A21 from Tony Momoh and in his testimony in court on the 23 rd of June,
2010, said he chose plot A21 for RNC Engineering Nigeria Limited and plot
A20 for RNC Onyiuke Builders Nigeria Limited from the layout which
Tony Momoh presented to him. Under cross-examination was vacillating
between A21 and A19 as to the correct plot sold to Pw1 and that the evasive
responses of I cannot remember- even on obvious issues portray Dw1 as a
person that lacks credibility. He cited the case of AJIDE V. KELENI 1985 2
NSCC VOL.16 PT 11 P 1298 AT 1316.
He referred to Exhibit 14, a letter written by Bwari Area council dated 14 th
March, 2006 is to the effect that the said plot A19 in the records of the
council belongs to one Clifford C. Nzimaka and not RNC Engineering and
according to Exhibit 14E, the plot in question was not officially allocated to
RNC Engineering. He referred to Exhibit 14A from Bwari Area Council and
the unchallenged evidence of Pw6. further that the accused might have
bought the said plots from Tony Momoh but the records are clear to the
effect that they belonged neither to Tony Momoh nor the accused person.
On second issue above, he submitted that a false or forged document is a
document that tells a lie about itself and cited the cases of OSONDU V.
FRN 2000 12 NWLR PT 682 AT 483, DOMINGO V. THE QUEEN 1963 1
ALL NLR 81. In the instant case, Pw7 who was alleged to have signed
Exhibit 4 stated categorically that he did not it and Pw8 Muazu Abdullahi
testified after comparing Exhibit 4 with the specimen signature of Pw7
(Exhibit 14) that it was not Pw7’s genuine signature that was on Exhibit 4
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and referred to Exhibit 14J which is the examination report of Pw8 on
Exhibit 4. it is therefore established beyond any stretch of imagination that
the said Exhibit 4 was forged.
On Exhibit 5, he contended that the law is settled that you cannot place
something on nothing and expect it to stand and referred to the case of
MACFOY V. UAC 1961 3 NLR 1405 AT 1409. Exhibit 5 is based on
Exhibit 4 and since it has been shown by Exhibit 14E that the said plot A19
belongs to one Clifford C. Nzimaka and that Exhibit 4 was forged, it goes
without saying that Exhibit 5 which purports to be the certificate of
occupancy of the said plot A19 is equally a forged document. To drive this
submission home is the fact that Pw8 examined Exhibit 5 in comparison
with Exhibits 14K, 14L and 14M and came to the conclusion that Exhibit 5
was not signed by the same Hon. Mary Awye U. Jiyaba who signed Exhibits
14K, 14L and 14M. He issued a report Exhibit 14J and gave evidence in
court. He submitted that the prosecution has proved that Exhibits 4 and 5
were forged documents.
On the third issue, he contended that by Exhibit 8 (i.e accused statement of
19/7/2004) accused claimed that he bought the said plot A19 and Plot A21
from Tony Momoh in 1989 and in his evidence in chief stated that 3 days
after he bought the plots from Tony Momoh came and handed over the offer
letters of one of which is in respect of plot A19 (Exhibit 4). Under crossexamination, he stated that Tony Momoh gave him the offer letters and after
three weeks, he gave him the certificate of occupancy i.e Exhibit 5 and these
transactions were in 1989. He referred the court to the dates of issuance of
Exhibits 4 and 5 and added to this is the fact that the holder (i.e RNC
Engineering Limited) was non-existent company in 1997 and referred to
Exhibits 14P & 14R clearly showed that RNC Engineering Limited was
registered on the 9th of July 2003, more than 13 years after the said Exhibit 5
was handed over to the accused by Tony Momoh as alleged by him.
He cited the case of AWOBUTU V. THE STATE 1976 10 NSCC 211 AT
227, where the SC Held that in a charge of false pretences, the false
pretences must be proved as laid and proof can be by direct evidence or from
facts leading only to that conclusion. He contended that the prosecution has
proved beyond reasonable doubt all the elements of obtaining property by
false pretence as enunciated in the case of ALAKE V. STATE and
ONWUDIWE V. FRN and urged the court to hold so and convict the
accused accordingly.
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On issue No.2, the accused is charged with fraudulently using as genuine
Exhibits 4 and 5 by causing them to be presented to Dr C. U Undie, the Pw1
knowing them to be forged. He referred to section 366 of the Penal Code
Act, CAP 532 Laws of the Federation of Nigeria(Abuja) 1990 and what the
prosecution is required to prove are the following ingredients, viz;
a. that the accused used a document as genuine
b. that the accused knew or had reason to believe that the document was
forged.
c. That he did so fraudulently or dishonestly.
Learned counsel adopted the arguments on count 1 on Exhibits 4 and 5. on
the first ingredient, he submitted that the accused used Exhibits 4 and 5 as
genuine by causing them to be presented to Pw1 through Pw3 who he
instructed to sell the said plot A19 and Pw1 relying on it as genuine and
believing that RNC Engineering Limited a non- existent company actually
existed and owned the said plot A19, was on that basis parted with the sum
of N5. 5million. And so this ingredient is proved.
On the second ingredient, he reiterated the arguments in count 1 to the effect
that;
a. in exhibit 8 the accused stated that he bought plot A19 and plot A21
from Tony Momoh in 1989.
b. He stated in evidence in chief that 3 days after buying the said plot,
Tony Momoh gave him the offer letters (including exhibit 4).
c. Under cross-examination he stated that after 3 weeks of Tony Momoh
giving him exhibit 4, he gave him exhibit 5.
d. All these transactions took place in 1987 but exhibits 4 and 5 post
dated 1987 with several years.
e. RNC Engineering Limited was not a registered company in 1987. it
was registered in 2003.
He contended that the foregoing facts go to show that the accused knew or
had reasons to believe that Exhibits 4 and 5 were forged documents.
On the third ingredient, he contended that mens rea is inferable from the
conduct of the accused from the points above and cited the case of PAM V.
MOHAMMED 2008 16 NWLR PT 1112 AT 92. All that the prosecution is
required to prove facts from which the court can infer fraudulent or
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dishonest instant and that facts stated above show fraudulent or dishonest
intent. Further that the accused counsel had made heavy weather of the
prosecution not calling Tony Momoh because it knew that Tony Momoh
testimony would exonerate the accused. He stated that submission is
misconceived as the courts have consistently held that section 167(d) of the
Evidence Act 2011 (previously section 149 (d) of the Evidence Act LFN
1990) does not apply to witnesses. He cited the case of EKPENYONG V.
STATE 1991 6 NWLR PT 200 P 683 AT 700-701. Infact it was the accused
that should have called Tony Momoh if he felt that he would help his case
and that accused in full knowledge of this was content with futile and feeble
attempt to tender the statement of the said Tony Momoh. He urged the court
to hold that counts 2 and 3 of the charge have been proved beyong=d
reasonable and convict the accused accordingly.
On issue No.3 formulated above, he contended that the ingredients of the
offence under section 368 of the Penal Code Act Cap. 532 LFN (Abuja)
1990 are as follows:
a. that the document was forged
b. that it was in the possession of the accused
c. that he held its possession knowing it to be forged and knowing that it
would be used fraudulently or dishonestly as a genuine document
d. that the document was one described in section 362 and 363.
He enumerated the documents in question as follows:
a. count 4- exhibit 12B(in the name of Prince Ralph Onyiuke, dated
15/6/96).
b. Count 5- exhibit 13C (in the name of Aliu Tony dated 15/6/96).
c. Count 6- exhibit 13A (in the name of Barrister Lucky dated 15/6/96).
d. Count 7- exhibit 13D (in the name of Samson Dogo dated 15/6/96).
e. Count 8- exhibit 13E (in the name of Mr Prince R Onyiuke dated
15/6/96).
f. Count 9- exhibit 13B (in the name of RNC Onyiuke Builders Ltd
dated 27/6/95).
g. Count 10- exhibit 12D (in the name of Isah Idris dated 2/2/95).
h. Count 11- exhibit 12E (in the name of Abu Abdullahi dated 2/2/95).
i. Count 12- exhibit 12A (in the name of Chief Raphael Onyiuke dated
15/6/95).
j. Count 13 is a duplication of count 4 and urged the court to strike it
out.
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He contended that Pw6 gave evidence to the effect that the foregoing
documents were recovered from the accused house when a search was
conducted there and referred to Exhibit 11 which is the search warrant and
this proved the second ingredient that they were recovered from the accused
person’s possession. Further that Musa Audu while testifying as Pw7 state
categorically that he did not sign the said documents and also the testimony
and report(exhibit 14H dated 17/5/2005) of Pw8, who examined the
signatures on the said documents in comparison with the signature of Pw7
confirmed the assertion of Pw7 that he did not sign the said documents. He
referred to Exhibits 14A and 14b and submitted that the prosecution has
proved that the said documents were forged and were ones described in
sections 362 and 363 of the Penal Code Act aforesaid.
On the third ingredient, he contended that criminal intent is inferable by the
court if the accused cannot account for the possession and referred to notes
on Penal Code Law (Cap 89 Laws of Northern Nigeria 1963) (Fourth
Edition) (1987) Annotated by S. S Richardson and the case of PAM V.
MOHAMMED (SUPRA). He contended that the critical question is whether
the accused has been able to give a reasonable account of his possession of
all the documents and submitted that the answer is in the negative. Further
that the accused testimonies on this are full of contradictions, incoherent,
evasive, ambivalent and totally unreliable and accused counsel submission
that the accused testified that he purchased the plots to which the documents
relate from the villagers at Kubwa and specifically mentioned one Musa
Bazago of Kubwa village from whom he purchased some of the plots are not
borne out or supported by the records.
He referred to the testimonies of the accused in chief and under crossexamination, when the accused was asked if he wrote in his statement to
EFCC that it was Tony Momoh that gave him the documents in question, he
answered in the positive and when shown all his statements tendered in
evidence to point out where he stated his assertion, he said that it was in
another statement which was not tendered. Counsel stated that all the
statements of the accused were front loaded in the proof of evidence and
there was no time the accused requested for the production of any of his
statements which were not allegedly tendered. That this assertion of the
accused is obviously an afterthought.
Moreover, there is no place in the whole statements of the accused where he
explained how he came by the documents to enable EFCC investigate same.
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He contended that an alibi must be unequivocal and must be raised during
the investigation of the allegation against the accused and not during trial.
He cited that case of NSOFOR V. STATE 2002 10 NWLR PT 775 P 274
AT 294-295. Assuming without conceding that it was Tony Momoh that
gave him the one that bears Aliyu Tony, who he claimed to be Tony Momoh
and asserted that he had transaction with, what of the others bear other
names who he said that he did not have any transaction with.
He submitted that the accused had failed to explain or give account of the
forged documents found in his possession. Consequently, the only
ineluctable inference is that he knew that the documents were forged and
knew that they would be used fraudulently or dishonestly as genuine. He
submitted that the prosecution has proved counts 4- 12 of the charge beyond
reasonable doubt against the accused and urged the court to hold so.
Further that, the accused counsel had submitted that Pw6, Pw7 and Pw8 had
admitted that they did not see the accused forging the documents and could
not assert that it was the accused that forged them, he contended that none of
the counts of all the charges in the charge sheet alleges that the accused
forged the documents and even if any did, the law is settled that where a
document was to be used as an intermediate step in a scheme of fraud in
which an accused person was involved, if it is shown that such document
was false and was presented or uttered by the an accused in order to gain an
advantage, an irresistible inference exists that either the accused forged the
document with his own hand or procured someone to commit the forgery.
He cited the case of OSONDU V. FRN 2000 12 NWLR PT 682 AT 483.
In conclusion, he submitted that the prosecution has proved beyond all
reasonable doubt the counts alleged against the accused in the entire charge
sheet and urged the court to convict the accused accordingly.
I have gone through the processes filed and watched the demeanor of the
witnesses and listened to the submissions of counsels to both parties in the
instant case. I think the simple question to answer at this point is whether the
prosecution has proved its case beyond reasonable doubt and thereby had
successfully established the criminal liability of the accused person to secure
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his conviction by this court. The accused person is charged with the offence
of obtaining money by false pretence in count 1, contrary to section 1(1)(a)
of the Advance Fee Fraud and other Fraud Related Offences Decree No.13
of 1995 as amended by Tribunals Certain Consequential Amendments
Decree No.62 of 1999 and punishable under section 1(3) of the same
Decree.
However, before proceeding to consider the merit of this case, I wish to
strike out count 13 of the charge being a duplication of count 4 as submitted
by learned counsel for the prosecution. Accordingly, the said count 13 is
hereby struck out. Consequently, the accused person is therefore standing
trial for 12 count charge only. And I so hold.
In considering count 1, it is the law as rightly stated by both counsels in the
case of the ONWUDIWE V. FRN (SUPRA) that for the prosecution to
succeed, it must prove the following ingredients of the offence, viz;
a.
b.
c.
d.
that there is a pretence
that the pretence emanated from the accused person
that it was false
that the accused person knew of its falsity or did not believe in its
truth
e. that there was an intention to defraud
f. that the thing is capable of being stolen
g. that the accused person induced the owner to transfer his whole
interest in the property.
In the instant case, the prosecution posed 3 questions and submitted on the
first that the accused might have bought the said plots from Tony Momoh
but the records are clear to the effect that they belonged neither to Tony
Momoh nor the accused person and on whether the offer letter (exhibit 4 and
certificate of occupancy (exhibit 5) in respect of plot A19 were forged, he
referred to the evidence of Pw7, Dw1, exhibit 14,(J, K, L & M) respectively.
And on the third question as to whether the accused knew or had reasons to
know that exhibits 4 and 5 were forged when he used them to sell the said
plot A19 and obtained the sum of N5.5 m from Pw1, he referred to exhibit 8
and the evidence of Dw1 under cross-examination and the case of
AWOBUTU V. THE STATE (SUPRA). He submitted that the prosecution
has proved beyond reasonable doubt all the elements of obtaining property
by false pretence as enunciated in the case of ALAKE V. STATE and
14
ONWUDIWE V. FRN (SUPRA). Learned counsel to the accused submitted
as held in the case of OSHUN V. DPP (SUPRA), which bothered on claim
of title to land, the court held that even if the prosecution had proved that the
land never belong to the appellant, the fact that they could not prove that the
appellant knew his claim to be false was enough to exculpate the appellant.
In the instant case Pw1 testified to wit;
“I saw this document as presented by 2 lawyers (1) Nkiruka (2) Chijioke
Kanu, who had shown to me that the owner had authorized him to sell this
property on his behalf. I believe the document to be genuine. Barrister
Chijioke showed me the letter of authority to sell the property. We now
agreed to go and see the property and we did, along Kubwa Express way
FCT. We confirmed the beacons on the certificate and settle on the price of
the property at N8.5million.”
Pw2 testified to wit;
So I started searching, eventually I came in contact with one Barrister
Chijioke who told me that he had a genuine land for sale. I called the
complainant Doctor and said he will be coming. At the meeting the Barrister
Chijioke said he will show us the pieces of land. Then after we conclude on
the price, same date we agreed on the price of N8.5million. At the meeting
he came with photocopy of C of O and Offer letter and he took us to the
property along Kubwa Express Road. When we inspected the property we
saw all the beacons and they correspond with what is on the C of O.”
PW6 testified upon cross- examination to wit;
“In the course of investigation the accused gave me Exhibits 4 & 5, which
are letter of offer and C of O in respect of the plots. He also told me that
Tony Momoh helped him in processing the Letter of offer i.e Exhibit 4.
Tony Momoh introduced the accused to somebody i.e Chief of Bazango to
purchase the plot. It was the Chief of Bazango that sold the land to the
accused person. Tony Momoh was arrested by EFCC. We did not arrest the
Chief of Bazango. Tony Momoh was not charged to court. We did not take
statement from Chief of Bazango. The Chief of Bazango is Gwari and he
admitted that the accused bought the plot from him through Tony Momoh. I
did not see the accused signing Exhibits 4 and 5. The accused met one Mr
Lugard who is Zonal Land Manager and he told the accused that the
documents he want to process is not genuine. Mr Lugard told the accused
that the documents were forged. Lugard did not tell me that it is the accused
15
that forged the documents. I didn’t ask the accused whether the documents
were forged by him or not.”
Pw7 testified upon cross- examination to wit;
“I am not a signature or hand writing expert. If I am not the signatory, I
cannot determine which signature is forged because I am not an expert. I did
not know him, so I did not see him signing the document. I cannot say he is
the one who signed the document.
Pw8 also testified upon cross-examination to wit;
“I met the accused in this court for the first time. I could not say the accused
forged the signatures in documents, Exhibits 5, 12A, 12B, 12C, 12D, 12E,
13A, 13B, 13C, 13D, 13E, 4, 14K, 14M, 14N. I cannot say all the specimen
signatures are that of the accused person.”
Dw1 upon cross- examination testified to wit;
“Tony Momoh was arrested in the bank. I met Tony Momoh 4 times at
EFCC. He made statements at EFCC 2 times. I can see Exhibit 4. Tony
Momoh gave me the offer letter and C of O. he gave the offer and after 3
weeks he gave me the C of O. I can’t remember the year. It is in 1989 I came
to know Chief Tony Momoh. He has been telling me about allocation. It was
not in 1989 that Tony Momoh told me about the land. Somebody introduced
Tony Momoh to me in connection with the land as a staff of AMAC. The
land I bought from Tony Momoh is A21 and A19. It was A21 I sold to Dr
Undie. I signed the letter of acceptance for the 2 plots. I gave him a cheque
of N3 million. Is not true that Tony Momoh told EFCC that he brought the
plots to me. Tony Momoh gave offer letter to me and I gave it to Barrister
Kanu to sell for me. I have not made several attempts to sell the lands.”
I have also carefully perused Exhibits 8 and 9, which are the confessional
statements of the accused person to EFCC to be satisfied that the prosecution
has proved all the ingredients required in this count to secure conviction. At
this juncture I wish to be guided by the decision in the case of BELLO V.
STATE 2007 10 NWLR PT 1043 P 564 AT 568, the court held on onus and
standard of proof in a criminal case, to wit;
“In a criminal trial, an accused person does not have to utter a word. The
duty is on the prosecution to prove the charge against the accused person
beyond reasonable doubt. The prosecution cannot go below proof beyond
reasonable doubt to ground conviction of an accused standing trial in
16
Nigerian courts, otherwise the constitutional presumption of innocence will
be tampered with and breached, which is null and void.”
Further held at p. 571, when the onus of proof in criminal cases will shift to
the accused, to wit;
“By virtue of the provision of section 138(2) of the Evidence Act, where the
prosecution proves the commission of a crime against an accused beyond
reasonable doubt, the burden of proving reasonable doubt is shifted to the
accused.”
In the instant case, looking at the ingredients of the offence as stated above, I
wish to state that the weight of evidence before me could not establish, viz;
d. that the accused person knew of its falsity or did not believe in its
truth.
e. That there was an intention to defraud.
f.
g. That the accused induced the owner to transfer his whole interest in
the property.
My position is reinforced by the evidence of the above witnesses and more
particularly Pw6, the Investigating Police officer and Exhibits 8 and 9,
which are to the effect that the accused person bought the lands from Tony
Momoh and Chief of Bazango. I am of the calm view that the likely
inference to draw from the evidence led is that the accused allegedly bought
the lands in the mistaken belief that he had a good buy as it were. The
evidence of the prosecution could not successfully establish all the
ingredients of this offence against the accused person. Therefore, I refuse to
find in favour of the prosecution in respect of this count. And I so hold.
Accordingly, the accused person is hereby discharged and acquitted of this
count charge.
On the counts 2 and 3 which is fraudulently using as genuine forged
documents knowing same to be forged and thereby committed an offence
punishable under section 366 of the Penal Code Act Cap. 532, Laws of the
Federation of Nigeria (Abuja) 1990.
Section 366 of the Penal Code provides, to wit;
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366- whoever fraudulently or dishonestly uses as genuine any document
which he knows or has reason to believe to be a forged document, shall be
punished in the same manner as if he had forged such document.
For the prosecution to succeed, it must the following, to wit;
a. That the accused used a document as genuine.
b. That the accused knew or had reason to believe that the document was
forged.
c. That he did so fraudulently or dishonestly.
In the instant case, looking at the circumstances and in the light of the
evidence before me, I have no difficulty in agreeing that the first ingredient
of using a document as genuine has been successfully proved by the
prosecution when the accused caused Exhibits 4 and 5 to be presented to
Pw1as genuine by Pw2 and Pw3 respectively. On the second and third
ingredients of this offence, I wish to state that the evidence before me could
not support the case of the prosecution against the accused person. The
weight of evidence led by the prosecution from which this court can infer
knowledge and mens rea from the conduct of the accused person is not
satisfactory. I refuse to find in favour of the prosecution against the accused
person. And I so hold.
Accordingly, the accused person is discharged and acquitted of counts 2 and
3 of the charge.
On counts 4- 12 which is being in possession of forged documents and
knowing the same to be forged and intending that same shall fraudulently be
used as genuine and thereby committed an offence punishable under section
368 of the Penal Code Act Cap. 532 Laws of the Federation of Nigeria
(Abuja) 1990.
Section 368 of the Penal Code provides to wit;
368- Whoever has in possession any forged document knowing the same to
be forged and intending that the same shall fraudulently or dishonestly be
used as genuine, shall be punished with imprisonment for a term which may
extend to fourteen years and shall also be liable to fine.
For the prosecution to succeed it must prove;
a. That the document was forged.
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b. That it was in the possession of the accused.
c. That he held its possession knowing it to be forged and knowing that
it would be used fraudulently or dishonestly as a genuine document.
d. That the document was one described in section 362 and 363.
I have also read sections 362 and 363 of the Penal Code and the illustrations
therein in respect of these counts charge.
In the instant case, the prosecution referred to Exhibits 14A and 14B and
submitted that the prosecution has proved that the said documents were
forged and were ones described in sections 362 and 363 of the Penal Code
aforesaid. Further that counsel to accused had submitted that Pw6, Pw7 and
Pw8 had admitted that they did not see the accused forging the documents
and could not assert that it was the accused that forged them. That none of
the counts of all the charges in the charge sheet alleges that the accused
forged the documents and even if any did, the law is settled that where a
document was to be used as an intermediate step in a scheme of fraud in
which an accused person was involved if it is shown that such document was
false and was presented or uttered by an accused in order to gain an
advantage, an irresistible inference exists that either the accused forged the
document with his own hand or procured someone to commit the forgery.
He cited the case of OSONDU V. FRN (SUPRA).
However, counsel to the accused person conceded that the prosecution was
able to prove that the documents to wit; Exhibits 4 and 5 were forged
through the evidence of Pw7 and Pw8. He submitted that the prosecution
failed to prove that the accused knew that the documents were forged or that
he fraudulently or dishonestly intended to use them to sell plot A19 to the
complainant.
He contended that the accused person did not dispute the fact that he
released the document to his lawyers to use them to sell the land but he had
maintained that he never forged or knew that the documents were forged as
they were given to him by one Tony Momoh from whom he bought the plot
and referred to the accused Extra judicial statement to the prosecution.
Further that accused person gave evidence of the fact that he submitted to
the prosecution the power of attorney Tony Momoh executed in his favour.
In the instant case, in the light of the evidence before me and circumstances
of this case, I wish to state that the prosecution has proved the first
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ingredient to wit; that the documents were forged and secondly; that it was
in the possession of the accused. However, in considering the third and
fourth ingredients that constitute this offence, I wish to state that I have
painstakingly perused the entire gamut of the evidence before me to
establish the fact of knowledge and fraudulent or dishonest use on the part of
the accused person. The evidence of Pw6, Pw7 and Pw8 in particular could
not establish that the accused person knew the documents to be forged and
Pw2 testified that when the accused person was confronted with the fact that
the documents were forged, he opposed vehemently and said that the
documents were genuine.
I also find that the testimony of the accused person in Exhibits 8 and 9 were
confirmed by Pw6 upon cross- examination that the accused person bought
the land through Tony Momoh and Chief of Bazango. On the fourth
ingredient of the offence that the document is discussed under sections 362
and 363 of the Penal Code.
I wish to point out as stated earlier that I have carefully read the illustrations
on those sections and I discovered that there must be actus reus and mens rea
on the part of the accused person. Which is to say that the prosecution must
prove that the act of forgery was committed by the accused person which
leads to the irresistible inference that he committed the offence. It is
abundantly clear from the evidence before me that none of the witnesses
called by the prosecution categorically stated that the accused person forged
or saw the accused person committing the forgery or procured someone to
do so. And I so hold.
In the case of NWATURUOCHA V. THE STATE 2011 SC 197, held to
wit;
“In the process of establishing the guilt of an accused the prosecution has to
prove all the essential elements of an offence as contained in the charge.
While discharging the responsibility of proving all the ingredients of the
offence vital witnesses must be called to testify during proceedings. Before a
trial court comes to the conclusion that an offence has been committed by an
accused person, the court must look for the ingredients of the offence and
ascertain critically that acts of the accused comes within the confines of the
particulars of the offence charged.”
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Also in the case of OYEBOLA V. STATE 2008 ALL FWLR PT 402 1175
AT 1186-1189, the court held to wit;
“Although proof beyond reasonable doubt is not proof to the hilt, where all
essential ingredients have not been established by the prosecution, same is
not proved beyond reasonable doubt.”
In the instant case, I discountenance the submission of the prosecution on
these counts based on the above authorities and for the fact that the
evidence led could not prove all the ingredients of these offences beyond
reasonable doubt. I refuse to find in favour of the prosecution against the
accused person on counts 4- 12. And I so hold.
At this juncture, I wish to state that I totally disagree with the submissions of
the prosecution that they have proved their case beyond reasonable doubt as
shown from the foregoing. The prosecution has therefore failed to prove this
case beyond reasonable doubt. And I so hold.
It is a clear position of the law that you cannot place something on nothing
and expect it to stand as it will surely collapse, as held in the case of
MACFOY V. UAC (SUPRA). The case of the prosecution cannot stand
against the accused person. It is hereby collapsed by the weight of evidence
before me. And I so hold.
Accordingly, the accused person is hereby discharged and acquitted of
counts 4- 12.
In the sum the accused person is hereby discharged of the 12 count- charge
and is hereby acquitted of same.
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