CRIMINAL LAW 2.8 FORGERY AND UTTERING

• Isochukwu
• 4
• Criminal Law II

TOPIC NINE: FORGERY AND UTTERING.

Section 465 of the Criminal Code provides that where a person knowingly makes a false document or writing:

• With the intent that it shall be acted upon as genuine to the prejudice of any person. OR
• That any person may in the belief that it is genuine be induced to act or refrain from doing an act.

(Whether in Nigeria or elsewhere) is said to forge that document.

The ingredients of the offence include:

1. There must be a Document or Writing:

In interpreting Section 463, a document is anything through which one can communicate an idea (by writing, printing or other signs capable of conveying a definite meaning). The language is immaterial so long as it was made with the intent that it shall be used or acted upon. It however does not include trademarks or articles of commerce.

Section 463 defines writing to be an inscription on wood, stone, paper of other material, a mere signature or mark of any kind.

In addition to making a false document, forgery can also occur where a genuine document is altered maybe by adding, erasing or editing contents.

With the advancement of information technology, this definition has been put to incorporate electronic and softcopy documents. Section 8 of the English Forgery and Counterfeiting Act 1981, Section 359 of the Criminal Law of Lagos State 2011 and Section 84 and 258 Nigerian Evidence Act 2011 recognises/includes electronic documents and computer generated documents to their definition of documents respectively.

2. Falsity of the document.

Section 464 defines four instances where a document can be said to be false. What the Section is saying in essence is that;

1. To tell a lie in a document which is required to be kept by a lawful authority is forgery. For example, to lie in birth certificate, marriage certificate, death certificate, and so on. In Etim V R the accused wrote an untrue statement in a writ that the order of the court authorised the sale of the defendant’s property, this was held to be forgery.
2. If the whole or material part of a document purports to be made by or on behalf of a person who did not make it or authorise it or where made by the person, the time and date have been altered. There is forgery.
3. If the whole or some material part of the document purports to be made by a person who does not in fact exist.
4. Forgery can also occur where a document is made by an existing person in his name but with the fraudulent intention that it shall pass as being made by some other person, real or fictitious.

In Nigerian Airforce V James the court observed that the central theme that runs through the provisions is that the document must tell a lie about itself. The false statement must relate to the authenticity of the document.

3. Knowledge of the falsity

The accused should know that the document is false. In R V Domingo; the accused opened an account with Barclays Bank in the name of his business DAOT. The bank requested for some documents and an identity card to authenticate his identity. The accused also signed a mandate authorising one Mr James to operate the account. It was later found that all the characters and signatures were fictitious and formed by the accused. The court held that the bank had acted in the belief that the documents were genuine and it would not have done so but for the false information on the documents. The appellant was convicted. See however; Odu V the State, where on similar facts, the Supreme Court had a contrary opinion.

4. Guilty intent

From Section 465, Meaning that the accused intends that it shall be acted upon to the prejudice of the victim or that a person may be induced to do a thing or refrain from doing a thing in the belief that the document is genuine.

For example; forged document used in obtaining a stall from allocators-R V Chidozie.

Preparing a document in order to receive money-FRN V Amadi.

Note Section 23 (bona fide claim of right) may avail a person. In R V Parker, the accused wrote a letter to his debtor asking him to pay up purporting that it came from the war office. He was NOT guilty of forgery since he was trying to enforce his bona fide claim of right.

Forgery can be demystified by experts as was held in Alake V the State that handwriting experts could prove forgery. Also Idowu V The State.

In conclusion, Section 467 provides a general punishment of 3 years for forgery. Life imprisonment is provided for forgery of seals of the federal and state government of Nigeria. 14 years in other cases of national and legal interest.

UTTERING

Section 468 provides that it is an offence to knowingly and fraudulently utter a false document or false seal whether in Nigeria or elsewhere. The accused shall be liable to the same punishment as though he had forged the document in question. E.g. if Tayo fraudulently prepares a false School Fees Remitta invoice he is said to forge. When Tayo presents the false invoice in the School Bursary from clearance, he is said to utter.

“UTTER” is defined in Section 1 to mean using or dealing with or attempting to deal with or use or act upon the thing in question. (In this case a forged document)

Fraudulently means that the accused intended that the document may be used or acted upon as genuine. Or in such belief one would do an act or be restrained from doing an act.

In essence, the accused must have uttered a document which he knows to be false with the intent that it shall be acted upon as genuine.

Forgery may be complete without any publication or uttering- Awobutu V the State.

FORGERY AND MACHINES.

Machine and computers are now common-place especially in commerce and banking activities. Our Criminal Code does not cover situations of electronic or mechanical forgery for example making a false ATM card which makes an ATM machine dispense cash. This may amount to an offence in some other countries like England under Section 8 of the Forgery and Counterfeiting Act… our criminal code should look into this. Although the prosecution may circumvent the ommission in the Criminal Code by using the electronic evidence (pursuant to Section 84 EA 2011) to prove the offence.