CORAM

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PARTIES

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ADAOHA UGO-NGADI APPELLANTS

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FEDERAL REPUBLIC OF NIGERIA RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

APPEAL, CRIMINAL LAW AND PROCEDURE, FAIR HEARING, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellants (2nd Defendant and 1st Defendant) in Appeals Nos. CA/L/348C/17, CA/L/348CB/17 and one other were charged before the High Court of Lagos State on Eight(8) counts information for the offences of Conspiracy to obtain property by false pretense contrary to Section 8 and punishable under Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, obtaining property by false pretense contrary to Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006, conspiracy to forge documents contrary to Section 516 of the Criminal Code, CAP C17, Vol. 2, Laws of Lagos State of Nigeria, 2003 among others. The Respondent in proof of the alleged offences called 12 witnesses and tendered documents. The accused persons defense of no-case submission was overruled hence they entered their defense. The trial court in delivering its judgment convicted the Applicant along with the Appellants and discharged and acquitted the 3rd Defendant. The Appellants were sentenced to sixty-nine (69) years imprisonment, to run concurrently in respect of each term imposed for the respective offences. The 4th Defendant was ordered to return to the Federal Government the sum of N754, 936,001.78 being the amount it was said to have defrauded the country with. Being aggrieved by the conviction and sentence of the trial court, the Applicant has filed the instant appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the decision of the lower Court to proceed with the trial of the Appellant in the absence of the 1st Defendant (Walter Wagbatsoma) amounted to a breach of right to fair hearing and as such rendered the entire trial a nullity. Whether the lower Court rightly construed Exhibit P5 to be a forged document consequent on which the lower Court found the Appellant guilty to the offences of forgery, conspiracy to forge documents, obtaining money by false pretense and fraud. Whether the lower Court rightly held that the actual volume of PMS supplied by the Appellant was less than the volume of PMS claimed to have been supplied by the Appellant Whether the lower Court held that the Respondent proved its allegation against the Appellant beyond reasonable doubt.

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RATIONES DECIDENDI

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BREACH OF THE RIGHT TO FAIR HEARING – DUTY OF A PARTY ALLEGING A BREACH OF THE RIGHT TO FAIR HEARING

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“The law is that it is the duty of the party alleging the breach of his right to fair hearing to prove the allegation from the record of proceedings in which the alleged breach or denial occurred. Ejeka v. State (2003) 6 SCM, 1. Maikyo v. ltodo (2007) 5 MJSC, 60, Gbadamosi v. Dairo (2007) 1 SCNJ. 444, Mogaji v. Nigerian Army (2008) 8 NWLR (1089) 338. lt is therefore not sufficient for a party to merely make an allegation of breach or denial of fair hearing in the conduct of proceedings of a Court without going further to show the manner in which the breach or denial occurred from the record of proceedings of the Court, since it lies and occurs usually, in the procedure used or adopted in the conduct of the proceedings. Orugbo v. Una (2002) 16 NWLR (792) 175: Inakoju v. Adeleke (2007) 4 NWLR (1025) 423: FBN, Plc. v. TSA Ind. Ltd (2010) 15 NWLR (1216) 259”.

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DENIAL OF FAIR HEARING – WHETHER A PARTY WHO FAILS TO UTILIZE THE OPPORTUNITY GIVEN TO HIM AT TRIAL, CAN COMPLAIN OF A DENIAL OF FAIR HEARING

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“There is no record of any attempt by the Appellant to utilize the opportunity to confront the 1st Defendant on any piece of evidence given by him while he was still in the witness box. Having failed, neglected or opted not to utilize the said opportunity, the Appellant or her counsel cannot later and/or now be heard to complain of denial or lack of such opportunity, in the name of denial of fair hearing. Magna Maritime Services Limited v. Oteju (2005) 554 (Pt. 1) 55: Pam v. Mohammed (2008) 9 MJSC 117. Audu v. INEC (No. 2) (2010) 13 NWLR (1212) 456. Perhaps, I should remind counsel that the principle and the right to fair hearing provided for and guaranteed by the provisions of Section 36(1) & (4) of the Constitution import that in the conduct of both civil and criminal judicial proceedings of a Court of law, a party is to be afforded reasonable and adequate opportunity to present his case before the Court without let or hindrance and that all the relevant and material issues canvassed by the party be adequately considered and taken into account in the final determination of the case. Ndukauba v. Kolomo (2005) 1 SC (Pt. 1) 80: Osayomi v. The State (2006) ALLFWLR (342) 1577: Agbabiaka v. FBN, Plc. 2006) ALLFWLR (326) 253”.

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RIGHT TO FAIR HEARING – IMPORT OF THE CONSTITUTIONAL RIGHT TO FAIR HEARING IN THE CONDUCT OF JUDICIAL PROCEEDINGS

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“The right to a fair hearing in the conduct of judicial proceedings of a Court of law provided for under Section 36(4) of the Constitution is one which deals with and requires that any person charged with a criminal offence be provided with the reasonably adequate opportunity to present his defence, to the charge and that every material defence raised or available to him be sufficiently considered by the Court in the determination of whether he is guilty of the offence/s charged or not. The right is therefore one of substance and not a technical doctrine to be used as both a shield and a weapon in all cases, even when the facts clearly do not warrant resort thereto by Counsel”.

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APPEAL ON THE ISSUE OF THE RIGHT TO FAIR HEARING – WHETHER AN APPEAL ON THE ISSUE OF THE RIGHT TO FAIR HEARING REQUIRES THE LEAVE OF COURT TO BE VALIDLY BROUGHT BEFORE THE COURT IN INTERLOCUTORY OR FINAL DECISIONS OF THE HIGH COURT

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“The issue of the right of a party to fair hearing in a case is so fundamental and crucial in the conduct of all judicial proceedings of a Court of law and the administration of justice generally because of its constitutional guarantee and so a substantive issue of law that can be raised in an appeal against the final or interlocutory decision of a High Court, sitting at first instance, as of right by dint of the provisions of Section 241 (1)(a) and (b) of the Constitution (as altered). The provisions provide that:
“An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
So whether against an interlocutory or final decision of the High Court sitting at first instance, as in the present appeal, the appeal on the issue of the right to fair hearing can be raised as of right and does not require the leave of Court to be validly brought before the Court. FCDA v. Koripamo Agary (2010) 14 NWLR (1213) 364: Ikem v. Aisowieren (2010) 1 NWLR (1174) 147; Maduabuchukwu v. Maduabuchukwu (2006) ALLFWLR (318) 695: Iwueke v. Imo Broadcasting Corporation (2005) 10 SC. 19”.

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OFFENCE OF FORGERY – STATUTORY DEFINITION OF THE OFFENCE OF FORGERY

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Section 465 of the Code defines the offence of forgery thus:
“A person who makes a false document or writing knowing it be false and with intent that it may in any way be used or acted upon as genuine whether in the state or elsewhere, to the prejudice of any person or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the state or elsewhere, is said to forge the document or writing.

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OFFENCE OF FORGERY – MEANING OF “MAKES A FALSE DOCUMENT OR WRITING”

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“The term “makes a false document or writing ” includes altering a genuine document or writing in any material part, either by ensure, obliteration, removal or otherwise; and making material addition to the, body of a genuine document or writing, and adding to a genuine document or writing any false date, attestation, seal or other material matter.”

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PROOF OF THE OFFENCE OF FORGERY – INGREDIENTS OF THE OFFENCE OF FORGERY A PROSECUTION MUST PROVE

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“Proceeding on what is now elementary and established position of the law on the burden and standard of proof of any allegation of the commission of a criminal offence against a person charged before a Court of law, by the provisions of Sections 132 and 135(1) & (2) of the Evidence Act, 2011 as well as cases which include Adeniji v. State (2001) FWLR (1957) 809 @ 824: Eze v. FRN (1987) 2 SCNJ. 76: Okpulor v. State (1990) 21 NSCC (Pt. 3) 496: Ochiba v. State (2011) 12 MJSC (Pt. III) 162. Igri v. State (2012) 6-7 MJSC (Pt. III) 107, the prosecution is required to prove the essential elements or ingredients of the offence of forgery of Exhibit P5 against the Appellant and the other Defendants beyond reasonable doubt.
The elements/ingredients are:
(a) Existence of an original/genuine written document
(b)That the document was forged
(c) That the forgery was done by the accused person/s
(d) That the accused person/s knew that the document was forged and
(e)That the accused intended that the forged document be acted upon as original and genuine to the detriment of the victim i.e. to be induced to do or reframe from doing any act in the belief that the forged document was genuine.
See Alake v. State (1991) 7 NWLR (205) 567, Adekolu v. State (2003) ACLR. 117. Aituma v. State (2006) ALLFWLR (318) 671. GARBA v. COP (2007) ALLFWLR (384) 260, Uzoka v. FRN (2010) 2 NWLR (1177) 118. Eya v. Olopade (2011) 5 MJSC (Pt. II) 48”.

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OFFENCE OF FORGERY – GROUND ON WHICH AN ACCUSED PERSON CAN BE FOUND GUILTY OF THE OFFENCE OF FORGERY

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“The law is established and still remains that an accused person does not have to be shown to have personally forged a document before he can be found guilty of the offence of forgery in respect of the said document. An accused person can be convicted on the evidence which shows that he participated in the forgery by procuring some other person to forge the document to be used for his benefit and to the detriment of another person who is induced by the forgery to act on the forged document as genuine.
This is clearly borne out by the provision of Section 7 of the Criminal Law of Lagos State, under which Appellant and other Defendants were charge with the offences of forgery, conspiracy to forgery and altering of false documents. The Section provides that:
”When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and be guilty of the offence and may be charged with actual committing it, that is to say
(a) every person who actually does that act or makes the omission which constitute the offence.
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence .
(c) every person who aids another person in committing the offence
(d) any person who counsels or procures any other person to commit the offence.
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DOCUMENTARY EVIDENCE – ADMISSIBILITY OF DOCUMENTARY EVIDENCE -WHETHER DOCUMENTARY EVIDENCE CAN BE TENDERED FROM THE BAR WITHOUT CALLING THE MAKER AS A WITNESS

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“In any case, documentary evidence is admissible and can be admitted in evidence through any witness by consent, from the bar or without objection, notwithstanding that their makers were available and not called as witnesses. U.N.I.C v. U.C.I.C. Limited (1999) 3 NWLR (593) 17, Adim v. NBC Limited (2010) 9 NWLR (1200) 543”.

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CASES CITED

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STATUTES REFERRED TO

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Administration of Criminal Justice Act, 2015 (ACJA)|

Advance Fee Fraud and Other Fraud Related Offences Act, 2006|

Constitution of the Federal Republic of Nigeria 1999|

Court of Appeal Act 2004|

Court of Appeal Rules, 2016,|

Criminal Code of Lagos State, 2003|

Evidence Act, 2011

 

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