ABDULSALAM V THE STATE

ABDULSALAM V THE STATE


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON MONDAY, 9TH JULY, 2018


Suit No: CA/J/405C/2017

CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

ABDULLATEEF A. ABDULSALAM
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Dismissal of Appeal – The conditions that necessitate the dismissal of appeal
Under what circumstances will an appeal in a criminal trial be dismissed

It is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively:
(I) Did the prosecution prove the essential elements of the offence;

(ii) Was the case proved beyond reasonable doubt; and

(iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. Per ABIRU, JCA. read in context

B. CRIMINAL LAW AND PROCEDURE
2. Offence of Forgery – The provision of the law on the offence of forgery and what must be proven to succeed in a forgery case
Position of the law as regards the offence of forgery

The Appellant at the trial Court stood trial for the offence of forgery contrary to Section 363 of the Penal Code Law and punishable under Section 364 of the Penal Code. The referred sections of the law provides as follows:

Section 363

“Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any other person to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that may be committed, commits forgery; and a false document made wholly or in part by forgery is called a forged document.”

Section 364

“Whoever commits forgery shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.”

Forgery is the fraudulent act of creating a copy of a document that is intended to be passed off as genuine when it is not. To succeed under Section 363 PC, the prosecution must prove;

(a) The original document.

(b) That a copy of the original document was fraudulently created.

(c) That the accused person created the fraudulent document.

(d) That there was intention to cause.

(i) Damage or injury to the public or a person or;

(ii) Someone to part with valuable or;

(iii) Any other person to support any claim or title or;

(iv) A person to enter into any form of contract or;

(v) Intention to commit fraud.

The ingredients that must be proved to successfully establish the offence of forgery are the original document, the unauthorized creation of a copy of the said document by the accused person and fraudulent intention to cause any of the various acts stated above. Per ONYEMENAM, JCA. read in context

3. Guilt of an Accused Person – The methods of establishing the guilt of an accused person
How to establish/prove the guilt of an accused person

The law is well established, that in criminal trial, proof of commission of a crime by an accused person can be established in any of the following ways or methods, namely:

1. Through the testimony of an eyewitness or witnesses who witnessed the act of the commission of the offence, by the accused person; or

2. By confessional statement made voluntarily by the person accused of the commission of the offence, or

3. By circumstantial evidence.

Omoregie V. State (2017) LPELR – 42466 (SC). The Court of law can rely solely on one of the ways stated above or on two or all of the ways. The trial Court in this case relied on the testimonies of PW9 and PW10 along with the direct, cogent and positive confessional statement of the Appellant that he forged the documents as charged, to arrive at its decision that the Respondent proved its case beyond reasonable doubt. I hold that the learned trial Judge was right in his decision. Per ONYEMENAM, JCA. read in context

C. EVIDENCE
4. Burden of Proof and Standard of Proof – The effect of Sections 135 and 139 of the Evidence Act, 2011 on criminal prosecutions
Burden of proof and standard of proof in criminal cases

By virtue of Sections 135 and 139 of the Evidence Act, 2011 in all criminal prosecutions, it is the duty of the prosecution to prove its case beyond reasonable doubt. This however does not mean proof beyond any shadow of doubt though the ingredients of the offence charged must be proved as required by law to the satisfaction of the Court. It must also be remembered that the burden of prove rests solely on the prosecution.

Ehimiyein V. State (2016) LPELR – 40841 (SC); Yakubu V. The State (2014) (SC); Obiakor V. The State (2002) 6 SCNJ 193; State V. Aibangbee; Akinyemi V. Akinyemi & Anor. (1963) LPELR – 15457. Per ONYEMENAM, JCA. read in context

5. Confessional Statement – Effect of a confessional statement admitted without objection

A confessional statement tendered without objection and admitted in evidence, is good evidence and no amount of subsequent arguments against it or retraction will vitiate its admissibility and potency as a voluntary statement; and the mere denial by the accused, will not be a good reason for rejecting it. Although it is always desirable to have some evidence of circumstances which make it probable that the confession was truly confessional, a free and voluntary confession alone is sufficient without more to warrant and sustain a conviction. Therefore, once a confessional statement is in evidence it becomes part of the case for the prosecution which the Court is bound to consider, provided that it admits the essential elements of the offence charged and is such that when tested against proven facts will show that the accused committed the offence. Osung V. State (2012) LPELR – 9720 (SC); Akpan V. The State (2001) 15 NWLR (PT. 737) 745; Sani V. State (1017) LPELR – 43475 (SC); Ajibade V. State (2012) LPELR – 15531 (SC).

The Appellant in this case at hand stated in his evidence that he wrote Exhibit Y5 personally, he identified it and the Respondent sought to tender it and his counsel did not raise any objection. Exhibit Y5 is a confessional statement. In considering the confessional statement Exhibit Y5, two main options were open to the trial Court. Where in the first option the trial Court considers the confession as direct and positive then it is sufficient by itself to ground a conviction of the offence charged and in this case the offence of forgery. Jimoh Yesufu V. The State (1976) 6 SC 167 AT 173; Achabua V. The State (1976) 12 SC 63 at 68; Saidu V. The State (1982) 4 SC 41; Obosi V. The State (1965) NMLR 119 AT 123.

The other option is for the trial Court to combine the confessional statement with the Prosecution evidence, and other circumstantial evidence which offer corroborative qualities to that statement enduing it with strength with which a conviction can be obtained. Ogedengbe V. State (2014) LPELR – 23065 SC; Tufule V. The State (1968) NMLR 262; Salawu V. The State (1971) 1 NMLR 2 49; Yaro v. The State (2008) 2 WRN 131 AT 153.

The confessional statement (Exhibit Y5) is direct, cogent, positive, unequivocal, compelling and to the point that the Appellant fraudulently forged copies of the original documents of the University of Maiduguri as stated above. The trial Court at pages 114 to 115 extensively considered Exhibit Y5 before arriving at his conclusion that the Prosecution has proved the offence of forgery against the Appellant. I endorse the evaluation of the learned trial Judge therein. I hold that he was right to rely on the Appellant’s confessional statement to convict him. Nwachukwu V. State (2007) ALL FWLR Pt. 390 PAGE 1380; Ubierho V. State (2005) I NCC Page 146 At 153 Agboala V. State (2014) 10 ACLR Page 382 At 411 – 414; Semiu V. State (2014) 9 NCC Page 333 At 355; Olalukumbosun V. State (2014) 10 NCC Page 459 At 482; Iheubeka V. State (2001) 2 ALLR Page 183 At 201 Ogoala V. State (1991) 2 NWLR Pt 175 Page 509. Per ONYEMENAM, JCA. read in context

6. Documentary Evidence – How it is necessary to call the maker of a document when the document is being tendered in evidence
Whether it is necessary to call the maker of a document when same is being tendered in evidence

The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered by a witness other than the maker thereof attracts no probative value in the absence of opportunity given to the other party for cross-examination for the purpose of testing its veracity. Emmanuel V. Umana & Ors (2016) LPELR – 40659 (SC); Omisore V. Aregbesola (2015) NWLR (Pt. 1482) 205; Aregbesola V. Oyinlola (2011) 9 NWLR (Pt. 1253) 458. Sa’eed V. Yakowa (2013) 7 NWLR (Pt. 1352) 124; Osigwelem V. INEC (2011) 9 NWLR (Pt. 1253) 425 at 451.

By the combined reading of Sections 1 (b), 37, 38 and 83 of the Evidence Act, a document which is to establish a fact in a proceeding can only be admissible as evidence of that fact if the maker of the document (statement) is called as a witness otherwise the document (statement) will amount to hearsay for which no probative value shall be ascribed to because the opposing party was denied the opportunity of cross examining the maker of the document. The purpose of a witness is not merely to tender document. A witness needs to be cross-examined on the document he tendered and as such he must be the maker. This is why a trial Court cannot dispense with the personal appearance of the person who recorded the contents of document such as an Investigating Police Officer. Magaji V. Nigerian Army (2008) LPELR – 1814 (SC). Per ONYEMENAM, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONYEMENAM, JCA


This is an appeal against the decision of the High Court of Borno State delivered by Fadawu Umaru, J. dated 7th September, 2017 in Case No: BOHC/MG/CR/22/2016; wherein the Appellant was convicted and sentenced to 10 years imprisonment without option of fine and a fine of N250, 000.00 with 2 years imprisonment in default for an offence of forgery contrary to S.364 of the Penal Code of Borno State 1994.

The Appellant being dissatisfied with the conviction and sentence appealed to this Court on 4th October, 2017 by a notice of appeal containing three ( ) grounds of appeal as at pages 119-123 of the record.

The Respondent commenced criminal proceedings against the Appellant and 6 others before the High Court of Borno State in Case No. BOHC/MG/CR/24/16. The Appellant alone was charged for the offence of forgery under Section 364 of the Penal Code Law Cap. 102 Laws of Borno state of Nigeria 1994. The Appellant pleaded not guilty to the charge and the matter proceeded to hearing. The prosecution called witnesses and the Appellant testified as DW 1 and his wife also testified.

After the final addresses, the Court convicted and sentenced the Appellant.

With the Notice and Grounds of Appeal filed on 4th October, 2017, learned counsel for the parties filed and exchanged the necessary processes and made the appeal ripe for hearing. On 19th April, 2018 therefore, the appeal was heard. While Mr. T. A. Lenkat held the brief of A. B. Usman for the Appellant; Mr. A. S. Kaigama Principal State Counsel, Ministry Of Justice Borno State appeared for the Respondent. Mr. Lenkat referred to and adopted the Appellant’s brief filed 22nd December, 20 7 in urging the Court to allow the appeal. On the other hand, Mr. Kaigama adopted the Respondent’s brief filed on 12th February, 2018 in urging the Court to dismiss the appeal. In the Appellant’s Brief, Mr. I. S. Benisheikh who settled the Appellant’s brief distilled 2 issues for the determination of the appeal. The 2 issues are:

i. “Whether the prosecution has proved its case beyond reasonable doubt or not despite the contradictions in the testimonies of the witnesses.

ii. Whether the exhibits admitted by the lower Court were admissible in law or not.”

Also, Mr. B.R. Balami Director of Public Prosecution Ministry of Justice, Maiduguri who prepared the Respondent’s brief raised the following 2 issues for determination:

i. “Whether the Respondent has proved beyond reasonable the offence of forgery Contrary to S. 364 PC as required of it under S. 135 Evidence Act 2011 as amended.

ii. Whether the Exhibits admitted by the lower Court are admissible at law.”

The two sets of issues are the same except for the phrasing. The issues as phrased by the Respondent speak more eloquently, I shall therefore determine the appeal based on them.

SUBMISSIONS ON ISSUE 1

“Whether the Respondent has proved beyond reasonable doubt the offence of forgery Contrary to S. 364 PC as required of it under S. 135 Evidence Act 2011 as amended.”

Mr. Benisheikh submitted that the prosecution did not prove the offence against the Appellant beyond reasonable doubt. He contended that the ingredients of the offence of forgery punishable under Section 364 of the Penal Code must be proved before any offence will be established and the subsequent conviction of an accused person. He reproduced the definition of forgery as provided by Sections 362, 363 and 364 of the Penal Code Law to confirm that the Respondent did not prove the crime of forgery against the Appellant beyond reasonable doubt. He also referred to Section 135 of the Evidence Act 2011; Nwobodo V. Onoh & Ors (1984) NSCCI.

The learned counsel argued that the only evidence against the Appellant was the evidence of PW9 and the testimony given by him did not prove any ingredient of the offence. He referred to pages 41 – 46 of the record of the lower Court. He submitted that the only said evidence against the Appellant is also contradictory. He reproduced a portion of the evidence of PW9 under cross examination at page 57 lines 5 – 12 in support of his argument.

He finally urged the Court to resolve the issue in favour of the Appellant by setting aside the judgment of the lower Court, discharging and acquitting the Appellant.

In reaction, Mr. Balami learned Director of Public Prosecution, representing the Respondent, in the Respondent’s brief submitted that the prosecution proved its case beyond reasonable doubt as required of it under S. 135 of the Evidence Act 2011.

He referred to the ingredients of the offence of forgery Contrary to Sections 363 and 364 of the Penal Code to submit on when the offence of forgery is said to be committed. He submitted that the Appellant made a false document to wit: Employment letters of University of Maiduguri without the authority or permission of the University. He argued that both the testimony of the Appellant and DW2 (his wife) did not show that University of Maiduguri through its agents gave the Appellant the authority to produce the employment letters. He argued that the Appellant produced the employment letters with intent that it would be believed that it was emanating from the University and same was used to defraud unsuspecting desperate job seekers.

Furthermore it was the Respondent’s submission that the prosecution through its witnesses PW9 and PW10 and the extra judicial statement of the Appellant Exhibit Y5 discharged the burden required of it.

On the meaning of prove beyond reasonable doubt as contemplated by S. 135 Evidence Act 2011, he relied on: Lord Denning in the case of Miller V. Minister Of Pension 1947 as re-echoed in Nigeria in Igabele V. State (2005) 1 NCC Page 59 At 78 PER FABIYI JCA. Bakare V. The State (1987) 1 NWLR Pt 52 Page 579.

The DPP also submitted that once confessional statement is tendered and admitted as an Exhibit in Court, it becomes part of the case of the prosecution and the trial Court is duty-bound to consider its probative value. He relied on: Amoshima V. State (2009) ALL FWLR Pt. 488 Page 328 At 374. It was added that when confessional statement is direct, cogent, positive, unequivocal and compelling, a Court can convict thereon and it matters not whether the accused resiles, retracts or denies that statement all together. He cited: Nwachukwu V. State (2007) ALL FWLR Pt 390 Page 1380; Ubierho V. State (2005) I NCC Page 146 At 153 Agboala V. State (2014) 10 ACLR Page 382 At 411- 414; Semiu V. State (2014) 9 NCC Page 333 At 355; Olalukumbosun V. State (2014) 10 NCC Page 459 At 482 Iheubeka V. State (2001) 2 ALL R Page 183 At 201 Ogoala V. State (1991) 2 NWLR Pt 175 Page 509.

The Respondent again submitted that not all contradictions are material. That minor contradictions in the evidence of the prosecution at page 57 lines 5-12 cannot be fatal to the prosecution’s case. He referred to: Okudo V. State (2011) 3 NWLR PT. 1234, P. 209 at 232; Lines F-H Orji V. State (2008) ALL FWLR Pt. 422 P 1093 At 1118.

He noted that given the circumstances of the case Exhibit U2 cannot amount to contradiction in the evidence of PW9. He added that moreover even if Exhibit U2 is thrown away the Appellant’s confessional statement Exhibit Y5 which stated that the 1st convict gave him money to produce employment letter of University of Maiduguri can still ground Appellant’s conviction. The learned counsel summed up by submitting that the fake employment letters, Exhibits K, L, P1 and other related documents were produced without authorization and that amounts to forgery.

He thereafter urged the Court to hold that the prosecution has proved the offence of forgery against the Appellant.

RESOLUTION OF ISSUE 1

The Appellant at the trial Court stood trial for the offence of forgery contrary to Section 363 of the Penal Code Law and punishable under Section 364 of the Penal Code. The referred sections of the law provides as follows:

Section 363

“Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any other person to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that may be committed, commits forgery; and a false document made wholly or in part by forgery is called a forged document.”

Section 364

“Whoever commits forgery shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.”

Forgery is the fraudulent act of creating a copy of a document that is intended to be passed off as genuine when it is not. To succeed under Section 363 PC, the prosecution must prove;

(a) The original document.

(b) That a copy of the original document was fraudulently created.

(c) That the accused person created the fraudulent document.

(d) That there was intention to cause.

(i) Damage or injury to the public or a person or;

(ii) Someone to part with valuable or;

(iii) Any other person to support any claim or title or;

(iv) A person to enter into any form of contract or;

(v) Intention to commit fraud.

The ingredients that must be proved to successfully establish the offence of forgery are the original document, the unauthorized creation of a copy of the said document by the accused person and fraudulent intention to cause any of the various acts stated above. The Appellant’s contention is that the only Prosecution witness PW9 who testified against the Appellant did not establish the ingredients of forgery and his testimony was contradictory. PW9 is an Investigating Police Officer. I shall reproduce the aspect of his testimony that relates to the Appellant who was the 2nd accused person at the trial court.

“All the accused persons gave me their voluntary statements. They each gave me their voluntary statement under words of caution. (page 40)….In the course of investigation, the 1st accused revealed that the 2nd accused is the one who provides the fake documents. We went to the house of the 2nd accused and invited him and on the same day executed a search at the house of the 2nd accused person. Several assorted documents of different institutions were also recovered from the 2nd accused person.” (he listed the recovered documents).

See pages 43 to 44 of the record. Under cross-examination by the 1st accused’s counsel, PW9 said – “The 2nd accused made a confessional statement and indicated that he used the computer admitted in evidence to make the fake statement of result.” See page 55 of the record. Under cross-examination by 2nd accused person’s counsel, PW9 stated thus: “I am (sic) not part of the team that conducted a search at the house of the 2nd accused person. The Exhibits were indeed recovered at the house of the 2nd accused as indicated on the search warrant. ……Exhibit U2 is amongst the exhibits handed over to me. I do not know if it belongs to the 2nd accused person or not but it was part of the Exhibit recovered……The statement of the 2nd accused person is attached to the case file sent to the DPP………This is the statement of the 2nd accused………..I was not around when the 2nd accused person was arrested and a search conducted as …………..The University of Maiduguri replied and indicated that all the appointment letters are fake. I know the person who forged the document from the statement of 1st accused and 2nd accused person. The 2nd accused admitted he collected N160,000.00k and not N2 something million alleged by the 1st accused. The 2nd accused person confessed that he forged the documents. ……..” see pages 56 to 57 of the record.

The above was the evidence of PW9 as it concerns the Appellant. From the reproduced evidence, the PW9 was the one who obtained the statement of the 1st accused which revealed that it was the Appellant who forged the appointment letters on the University of Maiduguri letterhead paper which the 1st accused used to deceive and cheat people with. He also obtained the confessional statement of the Appellant that he forged the letters and was paid N160,000.00k. The University of Maiduguri confirmed that the letters produced by the 2nd accused for the 1st accused were forged.

From the record, the evidence of the PW9 was not the only Prosecution evidence in prove of the case of forgery against the Appellant. The Prosecution also had and relied on the Confessional Statement of the Appellant admitted in evidence through the Appellant without objection as Exhibit Y5. The Appellant under cross-examination by the Prosecution counsel said: “I was not told anything until when I wrote the statement. I personally wrote the statement. If I see the statement I can identify the statement. I can identify my name and signature. ….This is my statement.” The confessional statement was admitted in evidence without objection and marked Exhibit Y5. See pages 65 to 66 of the record.

Again is the evidence of PW10, the Registrar of the University. He stated that no appointment took place during his tenure. When shown Exhibits A, B, C, D and K – the employment letters purportedly issued under his hand through the 1st accused his alleged Personal Assistant, the PW10 said – “These appointment letters did not emanate from the office of the Registrar of the University of Maiduguri. Secondly the letterhead paper used is completely different from that of University of Maiduguri. The signature is not also that of the Registrar of the University of Maiduguri. The E-mail address on the letterhead paper is completely different from that of the University of Maiduguri. Exhibit A did not have the name of the Registrar and the fellow of the Chattered Institute of Administrators is not there. The E-mail address is completely different. My E-mail address starts with capital letter T and is Tijjanibukar@yahoo.com. The second e-mail also has capital letter T and is Tijjani letter “t” for both e-mail addresses. There was no employment in 2015. The wordings in content of the letter of the appointment in the exhibits shown to me is completely different from that of the University of Maiduguri.”

The above represents the Respondent’s evidence in proof of the offence of forgery against the Appellant at the trial Court. By virtue of Sections 135 and 139 of the Evidence Act, 2011 in all criminal prosecutions, it is the duty of the prosecution to prove its case beyond reasonable doubt. This however does not mean proof beyond any shadow of doubt though the ingredients of the offence charged must be proved as required by law to the satisfaction of the Court. It must also be remembered that the burden of prove rests solely on the prosecution.

Ehimiyein V. State (2016) LPELR – 40841 (SC); Yakubu V. The State (2014) (SC); Obiakor V. The State (2002) 6 SCNJ 193; State V. Aibangbee; Akinyemi V. Akinyemi & Anor. (1963) LPELR – 15457.

It is not correct as posited by the Appellant’s counsel therefore, that the evidence of the Respondent against the Appellant in proof of his guilt of the offence of forgery was based on the evidence of the PW9 alone. From the record before this Court from where I have x-rayed the Prosecution evidence against the Appellant, it is apparent that the trial Court relied on the evidence of the PW9, PW10 and the confessional statement of the Appellant, Exhibit Y5 to arrive at its decision. In the evidence of PW10 at pages 60 to 62, he tendered the original of the letterhead paper of the University of Maiduguri which was admitted as Exhibit X. He also identified the fake letterhead papers and appointment letters tendered by the PW9 and gave the distinguishing features between the original and the forged ones. This evidence was in no way shaken under cross-examination. It is my view therefore and I so hold that the Respondent proved the original document of the forged document.

To prove the fraudulent making of the original documents and by the Appellant, the PW9 tendered the forged documents and gave evidence that he obtained the confessional statement of the Appellant which was admitted as Exhibit Y5. In Exhibit Y5, the Appellant stated inter alia: “I knew Habib for more than 10 years, the first printing work he brought to me was the printing of Bocolis statement of result…I could remember he used to bring me such work of printing statement of results and appointment letters with the letterhead of University of Maiduguri. I printed University of Maiduguri appointment, statement of result and certificates all with the letterhead of the University of Maiduguri. …..Normally I used to get them when (they) people bring work of printing of photocopy for me. I will then scan it in the computer, I will then edit and print same out, in case when somebody need it. All I know Habib gave me in respect of the appointment letter with the letterhead of University of Maiduguri is not more than N160,000. (One Hundred and Sixty Thousand Naira). I have been forging the documents mentioned above.

The way I used to forge them is by scanning them into the computer and print them out…..”

A confessional statement tendered without objection and admitted in evidence, is good evidence and no amount of subsequent arguments against it or retraction will vitiate its admissibility and potency as a voluntary statement; and the mere denial by the accused, will not be a good reason for rejecting it. Although it is always desirable to have some evidence of circumstances which make it probable that the confession was truly confessional, a free and voluntary confession alone is sufficient without more to warrant and sustain a conviction. Therefore, once a confessional statement is in evidence it becomes part of the case for the prosecution which the Court is bound to consider, provided that it admits the essential elements of the offence charged and is such that when tested against proven facts will show that the accused committed the offence. Osung V. State ( 12) LPELR – 9720 (SC); Akpan V. The State (2001) 15 NWLR (Pt. 737) 745; Sani V. State (2017) LPELR – 43475 (SC); Ajibade V. State (2012) LPELR – 15531 (SC).

The Appellant in this case at hand stated in his evidence that he wrote Exhibit Y5 personally, he identified it and the Respondent sought to tender it and his counsel did not raise any objection. Exhibit Y5 is a confessional statement. In considering the confessional statement Exhibit Y5, two main options were open to the trial Court. Where in the first option the trial Court considers the confession as direct and positive then it is sufficient by itself to ground a conviction of the offence charged and in this case the offence of forgery. Jimoh Yesufu V. The State (1976) 6 SC 167 at 173; Achabua V. The State (1976) 12 SC 63 at 68; Saidu V. The State (1982) 4 SC 41; Obosi V. The State (1965) NMLR 119 at 123.

The other option is for the trial Court to combine the confessional statement with the Prosecution evidence, and other circumstantial evidence which offer corroborative qualities to that statement enduing it with strength with which a conviction can be obtained. Ogedengbe V. State (2014) LPELR – 23065 SC; Tufule V. The State (1968) NMLR 262; Salawu V. The State (1971) 1 NMLR 2 49; Yaro V. The State (2008) 2 WRN 131 at 153.

The confessional statement (Exhibit Y5) is direct, cogent, positive, unequivocal, compelling and to the point that the Appellant fraudulently forged copies of the original documents of the University of Maiduguri as stated above. The trial Court at pages 114 to 115 extensively considered Exhibit Y5 before arriving at his conclusion that the Prosecution has proved the offence of forgery against the Appellant. I endorse the evaluation of the learned trial Judge therein. I hold that he was right to rely on the Appellant’s confessional statement to convict him. Nwachukwu V. State (2007) ALL FWLR Pt. 390 Page 1380; Ubierho V. State (2005) I NCC Page 146 At 153; Agboala V. State (2014) 10 ACLR Page 382 At 411 14; Semiu V. State (2014) 9 NCC Page 333 At 355; Olalukumbosun V. State (2014) 10 NCC Page 459 At 482; Iheubeka V. State (2001) 2 ALLR page 183 at 201 ogoala v. state (1991) 2 NWLR Pt 175 Page 509.

On the fourth ingredient which is as to the intent of the Appellant forging the documents. Going through the confessional statement of the Appellant which I do not want to start reproducing now, it is very clear that the Appellant in forging the documents had the intention to cause injury to the reputation and standard of education of University of Maiduguri, cause the innocent job seekers to part with their money for document that has no value and to commit fraud. I adopt the findings of the trial Court on this at page 114 as mine. I agree with the learned trial Judge that the Appellant made the forged documents dishonestly or fraudulently with the intent that fraud may be committed.

From what I have said above therefore, I hold that the Respondent established the ingredients of the crime of forgery against the Appellant.

I resolve issue 1 in favour of the Respondent.

SUBMISSIONS ON ISSUE 2

“Whether the Exhibits admitted by the lower Court are admissible at law.”

Mr. Benidheikh submitted that documents can only be admitted in evidence in accordance with the provisions of the Evidence Act or any other law recognized by the Constitution of the Federal Republic of Nigeria 1999 (as amended). He relied on: Sections 1, 2, 3, 4, 83, 84, 93 & 100 of the Evidence Act, 2011; Remm Oil Services Ltd V. Endwell Trading Co Ltd (2003) FWLR Pt. 152 98. CA; Ogu V. M. T & M. C. S. Ltd (2011) 8 NWLR (Pt. 1249) 345 CA; jolayemi v. olaoye (1999) 10 NWLR (Pt. 624) 600 CA; Iniama V. Akpabio (2008) 17 NWLR (Pt. 1116) 225 CA; FRN V. Fani- Kayode (2010) ALL FWLR (Pt. 534) 181.

The learned counsel submitted that all the Exhibits tendered and admitted by the learned trial Judge in respect of the Appellant are not admissible for the fact that they were not tendered by the person who conducted the search, the witness was unable to identify the Exhibits, no witness among those who conducted the search was called. He referred to the evidence of PW9 at pages 56 lines 19 – 25 and 57 lines 5 -12. He submitted that since the PW9 knew nothing about the Exhibits he tendered the exhibits were not admissible. He relied on Section 1 of the Evidence Act. He urged the Court to resolve this issue in favour of the Appellant.

Mr. Balami DPP submitted that all the Exhibits admitted by the trial Court are admissible under the law as they are relevant to the trial of the Appellant. He cited Section 1 of the Evidence Act 2011 as amended.

He further argued that by virtue of Sections 4, 5, 6, 7 and 8 of the Evidence Act 2011 as amended all the Exhibits admitted are relevant to the fact in issue.

He submitted that the trial Court rightly admitted Exhibits Y5 and U2 since they are relevant to the facts in issue.

He urged the Court to affirm the conviction and sentence of the Appellant.

RESOLUTION OF ISSUE 2

Section 1 of the Evidence Act provides thus:

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other fact as are hereafter declared to be relevant and of no others:

Provided that:-

a. The Court may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and

b. This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.”

Mr. Benisheikh submitted that by Section 1 (b) of the Evidence Act, the PW9 IPO was disentitled from giving testimony in respect of items purported to have been recovered since the search was not conducted in his presence. He further leaned on Sections 83, 37 & 38 of the Evidence Act respectively.

The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered by a witness other than the maker thereof attracts no probative value in the absence of opportunity given to the other party for cross-examination for the purpose of testing its veracity. Emmanuel V. Umana & Ors (2016) LPELR – 40659 (SC); Omisore V. Aregbesola (2015) NWLR (Pt. 1482) 205; Aregbesola V. Oyinlola (2010) 9 NWLR (Pt. 1253) 458. Sa’eed V. Yakowa (2013) 7 NWLR (Pt. 1352) 124; Osigwelem V. INEC (2011) 9 NWLR (Pt. 1253) 425 At 451.

By the combined reading of Sections 1 (b), 37, 38 and 83 of the Evidence Act, a document which is to establish a fact in a proceeding can only be admissible as evidence of that fact if the maker of the document (statement) is called as a witness otherwise the document (statement) will amount to hearsay for which no probative value shall be ascribed to because the opposing party was denied the opportunity of cross examining the maker of the document. The purpose of a witness is not merely to tender document. A witness needs to be cross-examined on the document he tendered and as such he must be the maker. This is why a trial Court cannot dispense with the personal appearance of the person who recorded the contents of document such as an Investigating Police Officer. Magaji V. Nigerian Army (2008) LPELR – 1814 (SC). The learned DPP for the Respondent misconstrued the germane of the Appellant’s counsel’s submissions. The issue raised by the Appellant did not stem on admissibility based on relevance to facts in issue. Accordingly, where as in Exhibit U2 the PW9 admitted that he was not the maker and was not part of the team that conducted search in the Appellant’s house, that he did not know whether Exhibit U2 recovered belongs to the Appellant or not; xhibit U2 was wrongly admitted because the Appellant was denied the opportunity of cross examining the maker. Exhibit U2 is therefore expunged from the record. However, expunging Exhibit U2 which is an employment letter which the 1st convict gave to the wife of PW7 does not change nor affect the decision of the trial Court in the light of the legal evidence of the Respondent’s witnesses and the Appellant’s confessional statement Exhibit Y5.

Exhibit Y5 was written by the Appellant personally under the word of caution of PW9 and the said exhibit was tendered through the Appellant without objection. From all I had earlier in this judgment said about Exhibit Y5, I hold that it was rightly admitted by the trial Court.

I therefore resolve issue 2 partially in favour of the Respondent.

I carefully considered the evidence of the Respondent at trial. The law is well established, that in criminal trial, proof of commission of a crime by an accused person can be established in any of the following ways or methods, namely:

1. Through the testimony of an eyewitness or witnesses who witnessed the act of the commission of the offence, by the accused person; or

2. By confessional statement made voluntarily by the person accused of the commission of the offence, or

3. By circumstantial evidence.

Omoregie V. State (2017) LPELR – 42466 (SC). The Court of law can rely solely on one of the ways stated above or on two or all of the ways. The trial Court in this case relied on the testimonies of PW9 and PW10 along with the direct, cogent and positive confessional statement of the Appellant that he forged the documents as charged, to arrive at its decision that the Respondent proved its case beyond reasonable doubt. I hold that the learned trial Judge was right in his decision.

In sum, I hold that the appeal is bereft of merits. I dismiss Appeal No: CA/J/405C/2017, the same having failed. I affirm the conviction and sentence of the Appellant by the High Court of Borno State delivered on 7th September, 2017 in Case NO: BOHC/MG/CR/22/2016.

ABIRU, JCA

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has considered and resolved the issues in contention in the appeal.

This is an appeal against the conviction and sentence of the Appellant for the offence of forgery by the High Court of Borno State in Charge No BOHC/MG/CR/22/2016. It is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360.

I agree with the findings in the lead judgment that the records of appeal show that the Respondent proved all the ingredients of the offence of forgery against the Appellant beyond reasonable doubt and that the lower Court properly evaluated the evidence led by the parties in making its findings in the judgment appealed against. The Appellant failed to give any reason for this Court to interfere with the judgment of the lower Court.

I thus find no merit in the appeal and I hereby dismiss same. I affirm the conviction of and the sentence passed on the Appellant in the judgment of the High Court of Borno State in Charge No BOHC/MG/CR/22/2016 delivered by Honorable Justice F. Umaru on the 7th of September, 2017.

WILLIAMS-DAWODU, JCA

Having had the privilege and opportunity to preview the lead Judgment delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA, I also agree with the reasoning and conclusion reached therein.

I also find the appeal to be unmeritorious and therefore affirm the Judgment of the Court below delivered on September 7th, 2017.

Appearances:

T. A. Lenkat Esq. holding the brief of A. B. Usman Esq. For Appellant(s)

A. S. Kaigama Esq. PSC MOJ Borno State For Respondent(s)