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Can allegations of conspiracy to commit forgery be sustained where the main offence of forgery is not proved?

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State v. Awara
CITATION: (2020) LPELR-50265(CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON WEDNESDAY, 8TH JULY, 2020
Suit No: CA/C/81C/2019
Before Their Lordships:
MOJEED ADEKUNLE OWOADE                      
Justice, Court of Appeal
HAMMA AKAWU BARKA                                
Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU                     
Justice, Court of Appeal
Between 
THE STATE                                                       
–           Appellant(s)
And
NSOBIARA AWARA                                           
–          Respondent(s)
LEADING JUDGMENT DELIVERED BY HAMMA AKAWU BARKA, J.C.A.

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FACTS
This is an appeal against the judgment of Justice Akon B. Ikpeme of the High Court of Cross River State, Akamkpa.
   
The appellant as complainant, was a member of the Independence Baptist Church, and as such member was approached by one Pastor David Lang, asking for permission to use his piece of land located at Anantigha, Calabar South Local Government of Cross River State, to enable them open a temporary church building, which he obliged being a trustee of the church. Two weeks later, the respondent herein sought his permission to use blocks in building the temporary church, which he also graciously agreed to. However, when the audit report of the church for the year 1999 was being published, he observed a report therein that the sum of N10,000 was received by him in respect of the said land, and when he objected, the board of trustees grew annoyed with him. At the time, the church and trustees were bent on persecuting one Mr. Okoi Okpebri and his wife on the grounds that the said Mr. Okpebri had a prior wife before his present wife, and wanted to expel them from the church. He protested and was also expelled from the church. Further to that, the church sued him and Mr Okpebri to Court, where the respondent presented a deed of grant purported to have been signed by Mr. Okpebri and himself to back up their claims, that he indeed collected N10, 000 for the land accommodating the church building. All appeals made to the church for a copy of the deed of grant proved abortive, wherefore he reported a case of the forgery of his land documents to the State CID for investigation. In the course of investigation, another deed of assignment was discovered, prompting the case being charged to Court for the offences of conspiracy, and conspiracy to commit forgery.
  
The case of the respondent is that the Independent Baptist Church desirous of opening a branch of the church in Calabar South Local Government Area of Cross River State, approached the complainant, a member and trustee of the church, for the use of his parcel of land located at Calabar South Local Government Area as a temporary site for the building of the church, which request was granted. Consequently, Mr. Okoi Okpebri on behalf of the Board of Trustees of the church applied for and was granted on November 3, 1997 permission for the building of the temporary church. The next year, the complainant offered the land free to the church. The church due to biblical practice offered N10, 000 as the price for the land, which the complainant refused. The church proceeded to formalise the grant by entering a deed of grant with the Pw2. According to the respondent, the problem led to the instant action started when the church wanted to discipline Mr. Okpebri and his wife. Having disciplined them, the Pw2 protested. When shown the financial report indicating that N10, 000 was paid to him in respect of the land, Pw2 protested that he gave the land freely. The subsequent refusal by the Pw2 to abide by the directives of the church led to his expulsion, which he contested before the High Court of the Cross River State. The church on the other hand instituted a case against Pw2 and Mr. Okpebri for defamation which resulted in a consent judgment filed in Court. Pw2 thereafter petitioned the Cross River State Police Command complaining about the forgery of his land instruments, and when the State failed to prosecute the respondent based on the advice of the DPP, the fiat of the State Attorney-General was sought for and Mr. Okpebri and Mr. Awara arraigned before the High Court of the Cross River State.
 

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Addresses were ordered, filed and adopted. Judgment was delivered on January 16, 2018 to the effect that the State failed to prove the two charges leveled against the accused person and thereby entered an order of discharge and acquittal.
  
Dissatisfied, the Appellant appealed to the Court of Appeal.
Issue for determination
  
The Court determined the appeal on a sole issue viz:
“Whether the ingredients of the offence of conspiracy to commit the offence of forgery were proved beyond reasonable doubt in respect of the respondent?”

Appellant’s submissions
Arguing the issue, appellant submitted that to succeed in a charge of conspiracy, the following ingredients must be established, namely;
i. An agreement between two or more persons to do an illegal act, which is not illegal by illegal means;
ii. That an illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality. See Aituma vs. The State (2006) ALL FWLR (pt. 318) 671.
Appellant contended that the respondent, Okpebri and Pastor Lang conspired to forge exhibits 1A & 1B without the knowledge of the appellant. He contended that conspiracy is always inferred from all the circumstances of the case, and the fact that appellant did not sell his land to the respondent, who acted in concert with others to bring forward deeds of agreement alleged to have been forged, the Court can infer conspiracy from such acts, and maintained that exhibits 1A and 1B was designed by the respondent, Okpebri and Pastor Lang with the common aim of illegally acquiring the appellant’s plot of land, as the two exhibits were purported to have been signed by the appellant.

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On the second leg of the issue, appellant argued that the High Court was not right in discharging and acquitting the respondent on the offence of forgery. Appellant argued that in establishing the offence, the following ingredients have to be established:
i. That there is a document.
ii. That the document in writing is forged
iii. That the forgery is by the accused person.
iv. That the accused person knows that the document or writing is false.
v. That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See Smart vs. The State (1974) 11SC 173 per Coker JSC. Appellant argued that all the ingredients listed were established, and thereby urged the Court to resolve the issue in favour of the appellant.
Respondent’s submissions
  
In response to the submissions of the appellant, the respondent argued that there was no evidence of an agreement to execute an illegal act, nor proof that respondent forged the signature of the PW2. 
Respondent submitted that common intention to commit a crime is an important element of the offence of conspiracy, which can be inferred from certain criminal acts, inaction or omission of the parties concerned. See Njovens vs. The State (1973) 5SC 17, Onyenye vs. The State (2012) 15 NWLR (pt. 1324) 586 @ 617. He submitted that prosecution failed to prove by direct evidence any agreement or common intention by the named parties to falsify any document, as held by the High Court. He argued that there was no inference of illegality in the entire transaction and urged the Court to so hold.
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On the alleged offence of forgery, respondent argued that the prosecution presented confusing, conflicting and contradictory positions with regards to which document was alleged to have been forged, contending that the document was not specified. Respondent accused the prosecution of being inconsistent in the prosecution of their case and, relying on Saraki vs. FRN (supra), argued that such did incalculable damage to their case. Respondent drew the Court’s attention to the advice by the State Director of Public Prosecution to the effect that there was no credible evidence to warrant a charge of forgery against the suspect. Respondent also referred to the evidence of the handwriting expert stating that the signatures on the documents were that of the appellant. Thus, the conclusion by the High Court that prosecution failed to establish his case as demanded by law was appropriate in the circumstance. Respondent prayed the Court to resolve the lone issue against the appellant, and affirm the decision of the High Court.
Resolution of the issue
  
In resolving the issue, the Court in accordance with the case of Aituma vs. The State (2006) ALL FWLR (pt. 318) 671 decided to consider the issue of forgery first before delving into a consideration of the allegation of conspiracy to commit forgery if need be. This is because where the count of conspiracy is based on the same facts as those of the substantive offence, Courts are enjoined to deal with the substantive charge first as, should the substantive charge be unproven, there would indeed be no conspiracy to commit the substantive offence.
  
The Court defined forgery as the making of a false document or writing knowing it to be false and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine be induced to do, or refrain from doing any act whether in Nigeria or elsewhere. See Ndoma-Egba vs. ACB Plc (2005) 14 NWLR (pt. 944) 79. Going further, the Court stated the ingredients of the offence of forgery as: (a) There is a document or a writing;
(b) That the document or writing was forged; and
(c) That the accused person forged the documents or writing in question;
(d) The accused person intended the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine.

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Citing Obioma vs. The State (2020) 3 NWLR (pt. 1710) 45 @ 62 inter alia.
  
Applying the above to the case and upon an examination of the record of appeal, the Court agreed with the respondent that the appellant was inconsistent in the prosecution of his case. The Court noted that if the appellant’s contention was that he was induced to sign exhibits 1A, 1B and exhibit 22, he failed to prove it especially as the law presumes that a person that signs a document has knowledge of the contents of the document. See Yadis Nig. Ltd vs. Great Nig. Inv. Co. Ltd (2001) 11 NWLR (pt. 725) 529. If on the other hand, the appellant contended that exhibits 1A, 1B and 22 do not relate to the land in contention, the findings by a handwriting expert that the signatures on the documents were indeed that of the appellant would render the appellant’s case inconsistent.  That the burden of proving that the respondent forged his signature rested on the appellant and not otherwise. See Tewogbade vs. Obadina (1994) LPELR-3144, per Onu JSC, and Pam & Anor vs. Mohammed & Anor (2008) ALL FWLR (pt. 436) 1868 @ 1886. By virtue of the inconsistency in the prosecution of his case, the Court held that the prosecution failed to prove the allegation of forgery as required by the law.
  
On the allegation of conspiracy to commit forgery, the Court held that the main offence of forgery having not been proved, the allegation of conspiracy to commit forgery could not be sustained. This is because common intention to commit a crime is an important ingredient of the offence of conspiracy and the offence of conspiracy can only be inferred from criminal acts or inaction of the parties concerned. Thus, the respondent having been absolved of the allegation to commit forgery, there was no crime on which the allegation of conspiracy could stand on.

Held
The Court held that the appeal had no merit and consequently dismissed it.
Appearances:
Linus Mbey Esq.                         
For Appellant
Mba E. Ukweni (SAN), with him, G. O. Abbi Esq.                               
For Respondent
Compiled by LawPavilion

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