Legal Nuggets (78): How to Prove the Allegation of Forgery of Documents.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

BRILLA ENERGY LIMITED v. FEDERAL REPUBLIC OF NIGERIA & ORS (2018) Digest of Court of Appeal Cases CA/A/449C/A/2017

CRIMINAL LAW AND PROCEDURE -OFFENCE OF FORGERY:"...To prove the allegation of forgery in respect of the above mentioned documents the prosecution led evidence through the PW3 and tendered Exhibits 'J' and 'K' to show that all the "certificates" purportedly issued by MGI Inspections Ltd did not emanate from that company and were therefore forged documents. Exhibit 'J' was written to MGI Inspections Ltd to authenticate the genuineness or otherwise of the attached documents (certificates), certificate of Quantity Transfer dated 9/7/11, Certificate of Quantity Transfer dated 26/8/11 and Certificate of Origin dated 9/7/11. Exhibit 'K' is the response of MGI Inspections Ltd declaring that the purported documents (certificates) marked A - A5 sent to them for authentication was not done or issued by them. It was clearly stated that they were not aware of the operation and therefore had no information concerning the said documents. In a similar manner, the evidence led through PW8 in which Exhibits 'T' and U1 - 5 were tendered proved that the purported Certificate of Quantity dated 14th June, 2011 claimed to have been issued by SGS Netherlands BV as proof of the quantity of PMS loaded on board the vessel MT KRITI AKTI at Amsterdam to West Africa did not emanate from the company. By Exhibit 'T', is a letter written by the EFCC to SGS Inspection Services Nigeria Limited, to authenticate a Certificate of Quantity which purportedly emanated from SGS Netherlands. The request was made pursuant to Section 38(1) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 in cause of the EFCC's investigation of the alleged fraud and money laundering to authenticate the genuineness or otherwise of the Certificate of Quality attached to their letter. In their response, the SGS Inspection Services Nigeria Limited in Exhibits U1 - 5, it was clearly stated that they contacted their SGS Corporate Security in establishing the authenticity of the documents attached to the letters. SGS Corporate Security contacted SGS Netherlands and responded thus: 1. "That the attached document in respect of KRITI AKTI is false. 2. The documents marked A - A1 for HERMIONE are correct but not conclusive as they are not the final documents sent to a client." The documents used to facilitate the crime are relevant. The documents utilized by the appellant, 2nd and 3rd respondents used to obtain the subsidy were forged and they knowingly used them as genuine to defraud the Federal Government of Nigeria. The documents told lies and the lies were exposed and confirmed through the exhibits highlighted above. The trial Court was right to have held that the documents subject of counts 4,7,10 and 16 at the trial Court were forged. See, NIGERIA AIRFORCE VS. JAMES (2002) 18 NWLR (PT. 798) 295 AT 322 Pt F - H, BABALOLA VS. THE STATE (1989) 4 NWLR(PT. 115) 264 AT 277. In proof of forgery, the accused person may personally forge the documents or procure another person to do it. All the documents earlier listed in this judgment told lies about themselves as those who purportedly issued them as emanating from their companies disclaimed them in evidence. The 3rd Respondent being the "alter ego" of the Appellant who executed the import permit either forged or procured those that forged the documents; in both cases the appellant is liable. See, OSONDU VS. FRN (2000) 12 NWLR (PT. 682) 483 AT 505A - B. A company acts through its agents or servants, therefore, any servant or agent ofa company can give evidence to establish any transaction entered into by that company, such evidence is admissible and not hearsay. Therefore, the evidence of the PW3, the Managing Director of MGI and that of the PW8, an authentic staff of SGS Nigeria Ltd, a subsidiary of SGS Netherlands BV, the parent company are credible, unassailable and not hearsay. Their evidence were neither contradicted, discredited nor rebutted by the appellant and the 2nd and 3rd respondents who found it unnecessary to testify in their defence, and had no evidence whatsoever, oral or documentary to challenge the testimony of the PW3 and PW8 who rightly testified on behalf of their companies. The learned Senior Counsel was wrong to have argued that their evidence was hearsay, the learned trial judge was right to have utilized same. The learned Senior Counsel also alleged that the evidence of the PW5 and PW11 were hearsay and ought not to have been relied upon by the trial Court. The prosecution led evidence through the PW5 and PW11 (also PW6 and PW7) to prove the forgery of the Bill of Lading and Exhibits O, P, Q1, 1 - 49, Q2, 1 - 37, R and S to buttress their oral testimonies. Exhibits Z1, Z2, Z3 and Z4 comprising of the Lloyd's List Intelligence Reports to the effect that the Mother Vessel, MT Kriti Akti was a scrapped vessel at the alleged time of importation of PMS from Amsterdam, and could therefore not have been used to import the PMS, pages 786 - 795 of the printed records of appeal. The appellant as a defendant as well as the other defendant did not offer any contrary evidence to rebut the contents of these exhibits, which is evidence placed before the Court by the prosecution. The Exhibit 'Z' series were reports obtained from the Lloyd's List Intelligence which were relied upon and taken to be conclusive by the trial Court on the status of the vessel, MT KRITI AKTI, in which the report revealed that as at 17th April, 2010 MT KRITI was a scrapped/dead vessel. There was no contrary evidence on the part of the accused persons that the vessel had not been scrapped as at when it was alleged to have loaded the PMS or that the vessel was active and in operation within the period stipulated by the appellant, 2nd and 3rd respondents. The learned trial judge was right to have believed and acted on the evidence of these witnesses which was not rebutted. The learned Senior Counsel listed the elements required to be proved for forgery,it tallied with those of the 1st Respondent. These are: 1. That there is a document or writing. 2. That the document or writing is forged. 3. That the forgery is by the accused persons. 4. That the accused knows that the document or writing is false. 5. That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See, BABALOLA VS. THE STATE (1989) (supra), KATE ENTERPRISES LTD VS. DAEWOO NIG LTD (1985) (supra) and NIGERIA AIRFORCE VS. JAMES (2002) (supra). The PW11 was one of the investigating officers whose evidence was not discredited or rebutted. The learned trial judge thoroughly analyzed the documents confirming the forgery for which the appellant was tried and convicted. I cannot fault it. The trial Court found that Exhibits 'D' and 'E' that were submitted by the 2nd Respondent to the PPPRA was for the purpose of claiming subsidy payment. These documents were relied upon and the subsidy payment was processed and actually paid. The appellanthas not denied that the subsidy was not paid based on these documents. The appellant, 2nd and 3rd respondents knew and/or had reason to believe that the documents were forged and they went ahead and presented the documents to the PPPRA. I had held above that a company such as the appellant and 2nd Respondent can only act through its officers or agents. In the present case, the appellant and 2nd Respondents acted through the 3rd respondent and the deceased Managing Director to the 2nd respondent. I hold that the appellant, appellant and 2nd respondents presented the various documents earlier highlighted in this judgment knowing that they would be fraudulently used or dishonestly used as genuine. See, ODIAWA VS. FRN (2008) ALLFWLR (PT. 439) at 437 and AREBI VS. GBABIJO (2010) ALL FWLR (PT.527) at 710. The appellant had the opportunity to counter the contents of the documents said to have been forged by him and others, but, it failed to do so. It did not call evidence and it did not discredit the documents. The learned trial judge was right to have relied on the above exhibits. The 1st respondent made out that the documents used for the payment of the subsidy were forged by the appellant, 2nd and 3rd respondents the forged documents were presented when the appellant knew they were not genuine. The appellant presented the documents knowing they were forged since those who purportedly issued the documents denied making them and/or having knowledge of the contents or transaction leading to the claim and payment of the subsidy."