Forgery as an Offence under the Criminal Code - The Kemi Adeosun Case
Sometime in July, 2018, Nigerian social and traditional media was rife with allegations of NYSC certificate forgery by Mrs. Kemi Adeosun (then Minister of Finance appointed by President Buhari in 2015). Amid the controversy, the minister resigned her appointment whilst there were calls from numerous quarters for her prosecution for the offence of forgery which never happened.
In July, 2021, a Federal High Court sitting in Abuja determined a case instituted by the said Kemi Adeosun to the effect that the erstwhile mandatory NYSC certificate is not a statutory requirement to hold political office in Nigeria. This decision again resurrected the “NYSC certificate forgery†allegation against Mrs. Adeosun with renewed calls for her immediate arrest and prosecution! The appropriate question therefore is, why is Mrs. Kemi Adeosun not put under arrest and prosecuted for the “obvious†crime of forgery?
The collective effect of Section 36(8) and (12) of the 1999 Constitution as amended is that no person in Nigeria can be prosecuted for a crime UNLESS the elements of the offence as well as the punishment thereof are defined in writing. It is also well established that most crimes (save strict liability offences) have both a mental (mens rea) and physical (actus reus) element which the prosecution must prove beyond a reasonable doubt – see, Sections 139 and 135 Evidence Act 2011.
The offence of forgery is a known crime specifically defined in Section 465 Criminal Code. For ease of reference, the entire provision would be reproduced hereunder as follows:
(1) A person who makes 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 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.
(2) A person who makes a counterfeit seal or mark or makes an impression of a counterfeit seal knowing the seal to be counterfeit or makes a counterfeit representation of the impression of a genuine seal or makes without lawful authority an impression of a genuine seal with intent in either case that the thing so made 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 seal or mark.
(3) The term “make a false document in writing†includes altering a genuine document or writing in any material part either by erasure, obliteration, removal or otherwise; and making any 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.
(4) It is immaterial in what language a forged document or writing is expressed.
(5) It is immaterial that the forger or anything forged may not have intended that any particular person should use or act upon it or that any particular person should be prejudiced by it or be induced to do or refrain from doing any act.
(6) It is immaterial that the thing forged is incomplete or does not purport to be a document, writing or seal which would be binding in law for any particular purpose if it is so made, and is of such a kind as to indicate that it was intended to be used or acted upon.
Judicial interpretation of this provision can be gleaned from the case of Ontario Oil & Gas Nig. Ltd. v. Federal Republic of Nigeria (2015) Legalpedia (CA) 81611 per Obaseki-Adejumo, JCA. and it is noteworthy that Olanipekun, SAN who was counsel on record for the Appellant in that case is also representing Mrs. Adeosun at the Federal High Court, Abuja. The Court of Appeal in the aforementioned case interpreted similar provisions of the Lagos State Criminal Code Law for forgery and uttering and listed the following ingredients to wit:
1. The accused utters or forges a document;
2. The accused knew the document to be false;
3. The accused presented the document to another with the intention that it could be acted upon;
4. The document was acted upon to the detriment of the other party.
In the Kemi Adeosun case, the NYSC certificate is not a document to which she was capable of inputting any information. In other words, unless there is evidence that she personally produced, altered or included any information on the certificate, then she cannot be charged or prosecuted for the offence of forgery as defined in the Criminal Code.
However, Section 468 Criminal Code provides as follows: Any person who knowingly and fraudulently utters a false document or writing or a counterfeit seal is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question. This crime is the offence known to law which Mrs. Kemi Adeosun may have committed and under which she may be charged and prosecuted as opposed to the commonly assumed crime of forgery stricto sensu. In other words, whereas the prosecution may never be capable of proving the elements of the crime of forgery to the requisite standard (proof beyond reasonable doubt) in this case, the offense of uttering false documents can be proved and is proper. On being found guilty, Kemi Adeosun may be liable to imprisonment of three (3) years.
It may be wise to always keep in mind that what is right may not always be what is the law!
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