ABDULSALAM v.

STATE

CITATION: (2018) LPELR-45371(CA)

In the Court of Appeal

In the Jos Judicial Division
Holden at Jos

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ON MONDAY, 9TH JULY, 2018
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Suit No: CA/J/405C/2017
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Before Their Lordships:

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UCHECHUKWU ONYEMENAM Justice, Court of Appeal

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HABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal

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ELFRIEDA OLUWAYEMISI WILLIAMS-

Justice, Court of Appeal
DAWODU
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Between
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ABDULLATEEF A. ABDULSALAM - Appellant(s)

And
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THE STATE - Respondent(s)

RATIO DECIDENDI
1. APPEAL - 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, J.C.A. (Pp. 25-26, Paras. F-B) -
read in context
2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF FORGERY: 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

A)
to be passed off as genuine when it is not. To succeed under Section 363 PC, the
prosecution must prove; (C
(a) The original document.
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(b) That a copy of the original document was fraudulently created.
(c) That the accused person created the fraudulent document.
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(d) That there was intention to cause.

(i) damage or injury to the public or a person or;
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(ii) someone to part with valuable or;

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

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

(v) intention to commit fraud.
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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
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the various acts stated above."Per ONYEMENAM, J.C.A. (Pp. 7-9, Paras. E-B) -
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read in context
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3. CRIMINAL LAW AND PROCEDURE - 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, J.C.A. (Pp. 24-25, Paras. C-B) - read in context
4. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: 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, J.C.A. (Pp. 13-14,
Paras. D-A) - read in context

A)
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5. EVIDENCE - 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).

A)
The Appellant in this case at hand stated in his evidence that he wrote Exhibit
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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
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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
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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
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YESUFU V. THE STATE (1976) 6 SC 167 AT 173; ACHABUA V. THE STATE (1976)
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12 SC 63 AT 68; SAIDU V. THE STATE (1982) 4 SC 41; OBOSI V. THE STATE

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(1965) NMLR 119 AT 123.

The other option is for the trial Court to combine the confessional statement with
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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;
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TUFULE V. THE STATE (1968) NMLR 262; SALAWU V. THE STATE (1971) 1 NMLR
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2 49; YARO V. THE STATE (2008) 2 WRN 131 AT 153.

The confessional statement (Exhibit Y5) is direct, cogent, positive, unequivocal,
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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, J.C.A. (Pp. 16-18, Paras. A-E) - read in context
6. EVIDENCE - DOCUMENTARY 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

A)
no probative value shall be ascribed to because the opposing party was denied
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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-
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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
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who recorded the contents of document such as an Investigating Police Officer.

MAGAJI V. NIGERIAN ARMY (2008) LPELR - 1814 (SC)."Per ONYEMENAM, J.C.A.
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(Pp. 22-23, Paras. A-C) - read in context

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UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the

Leading Judgment): 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.

A)
The Appellant being dissatisfied with the conviction and
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sentence appealed to this Court on 4th October, 2017 by a

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notice of appeal containing three (3) grounds of appeal as

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at pages 119-123 of the record.

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The Respondent commenced criminal proceedings against

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the Appellant and 6 others before the High Court of Borno

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State in Case No. BOHC/MG/CR/24/16. The Appellant alone

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was charged for the offence of forgery under Section 364 of

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the Penal Code Law Cap. 102 Laws of Borno state of

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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.

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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

A)
Respondent. Mr. Lenkat referred to and adopted the
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Appellant’s brief filed 22nd December, 2017 in urging the

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Court to allow the appeal. On the other hand, Mr. Kaigama

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adopted the Respondent’s brief filed on 12th February,

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2018 in urging the Court to dismiss the appeal. In the

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Appellant’s Brief, Mr. I. S. Benisheikh who settled the

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Appellant’s brief distilled 2 issues for the determination of

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the appeal. The 2 issues are:

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i. “Whether the prosecution has proved its case

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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."

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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.”

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The two sets of issues are the same except for the phrasing.
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The issues as phrased by the Respondent speak more

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eloquently, I shall therefore determine the appeal based on

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them.
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SUBMISSIONS ON ISSUE 1
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“Whether the respondent has proved beyond

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reasonable doubt the offence of forgery Contrary to S.

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364 PC as required of it under S. 135 Evidence Act

2011 as amended."

​ M r. 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

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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.

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He referred to pages 41 - 46 of the record of the lower
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Court. He submitted that the only said evidence against the

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Appellant is also contradictory. He reproduced a portion of

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the evidence of PW9 under cross examination at page 57

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lines 5 – 12 in support of his argument.

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He finally urged the Court to resolve the issue in favour of

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the Appellant by setting aside the judgment of the lower

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Court, discharging and acquitting the Appellant.

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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.

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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

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that the Appellant produced the employment letters with
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intent that it would be believed that it was emanating from

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the University and same was used to defraud unsuspecting

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desperate job seekers.

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Furthermore it was the Respondent’s submission that the

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prosecution through its witnesses PW9 and PW10 and the

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extra judicial statement of the Appellant Exhibit Y5

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discharged the burden required of it.

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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

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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

A)
PAGE 328 AT 374. It was added that when confessional
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statement is direct, cogent, positive, unequivocal and

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compelling, a Court can convict thereon and it matters not

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whether the accused resiles, retracts or denies that

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statement all together. He cited: NWACHUKWU V.

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STATE (2007) ALL FWLR PT 390 PAGE

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1380; UBIERHO V. STATE (2005) I NCC PAGE 146 AT

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153 AGBOALA V. STATE (2014) 10 ACLR PAGE 382

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AT 411- 414; SEMIU V. STATE (2014) 9 NCC PAGE

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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

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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

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employment letter of University of Maiduguri can still
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ground Appellant’s conviction. The learned counsel

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summed up by submitting that the fake employment letters,

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Exhibits K, L, P1 and other related documents were

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produced without authorization and that amounts to

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forgery.
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He thereafter urged the Court to hold that the prosecution

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has proved the offence of forgery against the Appellant.

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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:

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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
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“Whoever commits forgery shall be punished with
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imprisonment for a term which may extend to

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fourteen years or with fine or with both.”

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​ F orgery is the fraudulent act of creating a copy of a

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document that is intended to be passed off as genuine when

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it is not. To succeed under Section 363 PC, the prosecution

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must prove;
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(a) The original document.

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

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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.

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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

A)
was the 2nd accused person at the trial court.
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“All the accused persons gave me their voluntary

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statements. They each gave me their voluntary statement

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under words of caution. (page 40)….In the course of

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investigation, the 1st accused revealed that the 2nd

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accused is the one who provides the fake documents. We

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went to the house of the 2nd accused and invited him and
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on the same day executed a search at the house of the 2nd

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accused person. Several assorted documents of different

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institutions were also recovered from the 2nd

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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

A)
accused as indicated on the search warrant. ……Exhibit U2
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is amongst the exhibits handed over to me. I do not know if

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it belongs to the 2nd accused person or not but it was part

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of the Exhibit recovered……The statement of the 2nd

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accused person is attached to the case file sent to the

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DPP………This is the statement of the 2nd accused………..I

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was not around when the 2nd accused person was arrested
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and a search conducted as …………..The University of

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Maiduguri replied and

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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

A)
revealed that it was the Appellant who forged the
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appointment letters on the University of Maiduguri

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letterhead paper which the 1st accused used to deceive and

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cheat people with. He also obtained the confessional

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statement of the Appellant that he forged the letters and

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was paid N160,000.00k. The University of Maiduguri

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confirmed that the letters produced by the 2nd accused for

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the 1st accused were forged.

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​From the record, the evidence of the PW9 was not the only
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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

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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.

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A)
Again is the evidence of PW10, the Registrar of the
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University. He stated that no appointment took place

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during his tenure. When shown Exhibits A, B, C, D and K –

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the employment letters purportedly issued under his hand

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through the 1st accused his alleged Personal Assistant, the

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PW10 said – “These appointment letters did not emanate

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from the office of the Registrar of the University of

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Maiduguri. Secondly the letterhead paper used is

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completely different from that of University of Maiduguri.

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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

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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.”

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The above represents the Respondent’s evidence in proof of

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the offence of forgery against the Appellant at the trial

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Court. By virtue of Sections 135 and 139 of the Evidence

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Act, 2011 in all criminal prosecutions, it is the duty of the

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prosecution to prove its case beyond reasonable doubt. This

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however does not mean proof beyond any shadow of doubt

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though the ingredients of the offence charged must be

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proved as required by law to the satisfaction of the Court. It

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must also be remembered that the burden of prove rests

solely on the prosecution.

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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

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before this Court from where I have x-rayed the
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Prosecution evidence against the Appellant, it is apparent

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that the trial Court relied on the evidence of the PW9,

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PW10 and the confessional statement of the Appellant,

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Exhibit Y5 to arrive at its decision. In the evidence of PW10

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at pages 60 to 62, he tendered the original of the letterhead

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paper of the University of Maiduguri which was admitted as

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Exhibit X. He also identified the fake letterhead papers and

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appointment letters tendered by the PW9 and gave the

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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.

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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

A)
printed University of Maiduguri appointment, statement of
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result and certificates all with the letterhead of the

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University of Maiduguri. …..Normally I used to get them

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when (they) people bring work of printing of photocopy for

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me. I will then scan it in the computer, I will then edit and
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print same out, in case when somebody need it. All I know
LP

Habib gave me in respect of the appointment letter with

8)

the letterhead of University of Maiduguri is not more than

01

N160,000.00 (One Hundred and Sixty Thousand Naira). I

(2

have been forging the documents mentioned above.

15
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

A)
confession was truly confessional, a free and voluntary
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confession alone is sufficient without more to warrant and

37

sustain a conviction. Therefore, once a confessional

5
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statement is in evidence it becomes part of the case for the

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prosecution which the Court is bound to consider, provided

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that it admits the essential elements of the offence charged

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and is such that when tested against proven facts will show
8)

that the accused committed the offence. OSUNG V.

01

STATE (2012) LPELR – 9720 (SC); AKPAN V. THE

(2

STATE (2001) 15 NWLR (PT. 737) 745; SANI V.

STATE (2017) LPELR – 43475 (SC); AJIBADE V.

STATE (2012) LPELR – 15531 (SC).

16
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 A)

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1(

(1976) 12 SC 63 AT 68; SAIDU V. THE STATE (1982)

37

4 SC 41; OBOSI V. THE STATE (1965) NMLR 119 AT

5
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123.
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The other option is for the trial Court to combine the

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confessional statement with the Prosecution evidence, and

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other circumstantial evidence which offer corroborative

8)

qualities to that statement enduing it with strength with

01

which a conviction can be obtained. OGEDENGBE V.

(2

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.

17
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. A)

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390 PAGE 1380; UBIERHO V. STATE (2005) I NCC

37

PAGE 146 AT 153 AGBOALA V. STATE (2014) 10

5
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ACLR PAGE 382 AT 411 - 414; SEMIU V. STATE

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(2014) 9 NCC PAGE 333 AT 355; OLALUKUMBOSUN

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V. STATE (2014) 10 NCC PAGE 459 AT 482;

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IHEUBEKA V. STATE (2001) 2 ALLR PAGE 183 AT

8)

201 OGOALA V. STATE (1991) 2 NWLR PT 175 PAGE

01

509.
(2

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

18
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. A)

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I resolve issue 1 in favour of the Respondent.

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SUBMISSIONS ON ISSUE 2
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“Whether the Exhibits admitted by the lower Court

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are admissible at law.”

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8)

Mr. Benidheikh submitted that documents can only be

01

admitted in evidence in accordance with the provisions of

(2

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

19
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

A)
witness among those who conducted the search was called.
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He referred to the evidence of PW9 at pages 56 lines 19 -

37

25 and 57 lines 5 -12. He submitted that since the PW9

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knew nothing about the Exhibits he tendered the exhibits

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were not admissible. He relied on Section 1 of the Evidence

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Act. He urged the Court to resolve this issue in favour of

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the Appellant.
8)
01

Mr. Balami DPP submitted that all the Exhibits admitted by

(2

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.

20
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: A)

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Provided that:-
37

a. The Court may exclude evidence of facts which,

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though relevant or deemed to be relevant to the issue,

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appears to it to be too remote to be material in all the

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circumstances of the case; and

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b. This section shall not enable any person to give

8)

evidence of a fact which he is disentitled to prove by

01

any provision of the law for the time being in force.”

(2

​ M r. 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.

21
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; A)

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AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT.

37

1253) 458. SA'EED V. YAKOWA (2013) 7 NWLR (PT.

5
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1352) 124; OSIGWELEM V. INEC (2011) 9 NWLR (PT.

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1253) 425 AT 451.

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By the combined reading of Sections 1 (b), 37, 38 and 83 of

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the Evidence Act, a document which is to establish a fact in

8)

a proceeding can only be admissible as evidence of that

01

fact if the maker of the document (statement) is called as a

(2

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

22
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

A)
Appellant did not stem on admissibility based on relevance
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to facts in issue. Accordingly, where as in Exhibit U2 the

37

PW9 admitted that he was not the maker and was not part
5
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of the team that conducted search in the Appellant’s house,

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that he did not know whether Exhibit U2 recovered belongs

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to the Appellant or not; Exhibit U2 was wrongly admitted

LP

because the Appellant was denied the opportunity of cross

8)

examining the maker. Exhibit U2 is therefore expunged

01

from the record. However, expunging Exhibit U2 which is

(2

an employment letter which the 1st convict gave to the wife

of PW7 does not change

23
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. A)
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37

I carefully considered the evidence of the Respondent at

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trial. The law is well established, that in criminal trial,

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proof of commission of a crime by an accused person can

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be established in any of the following ways or methods,

LP

namely:
8)

1. Through the testimony of an eyewitness or

01

witnesses who witnessed the act of the commission of

(2

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

24
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

A)
affirm the conviction and sentence of the Appellant by the
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1(

High Court of Borno State delivered on 7th September,

37

2017 in Case NO: BOHC/MG/CR/22/2016.

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HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I

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have had the privilege of reading before now the lead

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judgment delivered by my learned brother, Uchechukwu

8)

Onyemenam, JCA. His Lordship has considered and

01

resolved the issues in contention in the appeal.

(2

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

25
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

A)
ingredients of the offence of forgery against the Appellant
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beyond reasonable doubt and that the lower Court properly

37

evaluated the evidence led by the parties in making its

5
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findings in the judgment appealed against. The Appellant

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failed to give any reason for this Court to interfere with the
EL

judgment of the lower Court.

LP
8)

I thus find no merit in the appeal and I hereby dismiss

01

same. I affirm the conviction of and the sentence passed on

(2

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.

26
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,

J.C.A.: 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.

A)
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37

27
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(2
 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)

A)
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LP
8)
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(2