Section 93 of the Evidence Act 2011
(1) If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.
(2) Where a rule of evidence requires a signature, or provides for certain consequences if a document is not signed; an electronic signature satisfies that rule of law or avoids those consequences.
(3) An electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.
- Introduction
Where any person is alleged to be the maker of a document then the handwriting or signature on the document in question must be proved to be the handwriting or signature of that person. See section 93(1) of the Evidence Act. Also, where a statement in a document is tendered as documentary hearsay, the statement shall not be deemed to have been made by a person unless the document was signed or made in the handwriting of that person or recognized by him in writing as one for the accuracy of which he is responsible. See also section 83(4) of the Evidence Act. There are seven methods to prove the identity of the maker of the signature or handwriting on any document.
- Methods of Proof of Execution of Documents
2.1 The first method is by the direct evidence of a witness. The direct evidence about the identity of any handwriting may be a confession by the maker of the writing or the evidence of a witness in whose presence the writing was made. See section 29 of the Evidence Act on confessions and section 126 of the Evidence Act on direct evidence.
2.2 The second method is by the opinion of any person acquainted with the handwriting or signature of the maker of the document. Section 72 of the Evidence Act states that, when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that is was or was not written or signed by that person is admissible. In Stephen John v The State, (2011) NWLR (pt.1278) 353, the statements of the defendants were tendered by a police officer who stated as follows, “The statement of the first defendant was recorded by Sergeant Attah Idu. He is now on transfer to Lagos. I have been with Sergeant Atta Idu since 1999 in the Police Force. I can identify his handwriting and signature. If I see the statement I can recognize his handwriting and signature.” Counsel argued that the statements were inadmissible since they were not tendered by the police officer who obtained them. At the Supreme Court, Mukhtar JSC said,
“The reproduced evidence of pw3 explained the reason why the maker was not in court to tender the confessional statement, and the fact that he identified the handwriting of the maker of the said Exhibit lends credence to its admissibility. The contention that the Exhibit was inadmissible because it was not tendered by the maker is, in the circumstance, of no moment.” See also, Edoho v The State (2010) NWLR (pt.1214) 651.
2.3 The third method is by proof that the name, address, and business or occupation of the maker of the document in question is the same as that of the defendant. See section 94(1) of the Evidence Act states that, evidence that a person exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such document was written or signed by that person.
2.4 The fourth method is by evidence that the document in question was a reply to another document delivered to the defendant in order to prove that the defendant was the maker of the document. Section 94(2) of the Evidence Act states that, evidence that a document exists to which the document in issue, purports to be a reply, together with evidence of the making and delivery to a person of such earlier document, is admissible to show the identity of the maker of the disputed document as the person to whom the earlier document was delivered.
2.5 The fifth method is by the finding of the trial Judge sitting in open court after a comparison of handwritings. Section 101 of the Evidence Act states that, in order to ascertain whether a signature or writing is that of the person by whom it purports to have been written or made, any signature or writing admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved. The court may direct any person in court to write any words or figures to enable the judge to make the comparison. Section 101 of the Act does not permit a trial judge to examine the documents in chambers but only in open court. Before a trial judge can invoke the provisions of section 101 of the Act, there must be a dispute over the maker of the document in question. Furthermore, the duty of the trial judge is to make a comparison between admitted and disputed writings and not to examine disputed writings alone and come to a conclusion.
2.6 In Yongo v COP, (1992) NWLR (pt. 257) 36, the defendants were charged with dishonestly receiving and concealing stolen property. The case of the prosecution was that pw1 bought a brand new car for N49,000 and told the 1st defendant driver to take the car to Gongola State. The driver deviated to Gboko where he gave the car and particulars to the 2nd defendant with instruction to sell the car and it was sold to the 4th defendant. There was no agreed price but the 2nd defendant collected a deposit of N10,000. The car was reported stolen and later discovered in the possession of the 4th defendant buyer who claimed that the car was given to him as pledge for a loan of N10,000 and tendered the pledge Exhibit K. The Magistrate examined the pledge in chambers, rejected the document as fake and accepted the evidence of the prosecution that the 4th defendant obtained the vehicle by outright sale On appeal the Supreme Court held that the explanation of the defendants that the transaction was a pledge was sufficient to raise a reasonable doubt in the mind of the court and rebut the presumption of guilty knowledge. Kutigi JSC said,
“On the whole therefore I am of the view that the magistrate was wrong when he single-handedly in his chambers, proceeded to examine Exh.K (the pledge) and thereby arrived at the conclusion that the writing and the signatures thereon were all done by one single individual. No wonder he did not say who wrote and or signed it. I think although the law permits trial courts to compare writings or signatures in order to discover their authors, this only arises in a case where the writings or signatures are in dispute and therefore in issue. And in such cases proven or acknowledged writings or signatures of the disputants must be before the court. Nobody has denied writing or signing Exh.K in this case.” See also, Queen v Wilcox (1961) ANLR 658, ACB v Ndoma-Egba (2000) NWLR (pt.994) 79, Abeke v The State (2007) NWLR (pt.1041) 411.
2.7 The sixth method is by circumstantial evidence. In some cases there may be no direct evidence of witnesses or the evidence of a handwriting expert but circumstantial evidence may provide proof that a document was forged or uttered by the defendant. In Akinbisade v The State, (2006) NWLR (pt.1007) 184, the defendant was charged and convicted of conspiracy, stealing and uttering a forged document. The case of the prosecution was that the defendant and one Okusanya, opened a bank account on the false authority of their boss. The account was operated by them in different assumed names by which they made several deposits and withdrawals. The Supreme Court was split (3:2) on whether or not the defendant uttered Exhibit S, the forged letter of authority to open the account. The majority were of the view that there was overwhelming evidence that the defendant operated the fraudulent account and she could not have done so without knowledge of the letter. Therefore, even if she did not open the account personally she must have aided, counseled or procured someone to utter the forged letter. The minority held the view that there was no evidence on the record to prove that the defendant forged the letter or conspired with anyone to make it and the fact that the defendant fraudulently operated the account did not automatically mean that she uttered the forged letter. Tobi JSC delivering the lead judgment said,
“It is not in all cases that absence of evidence of handwriting expert is prejudicial to the case of the prosecution. While such evidence could be a desideratum in some cases, it is not invariably so. Where there is a very strong connecting link between the defendant and the document to the extent that the circumstances zero on the commission of the offence by the defendant, the court is entitled to draw the inference circumstantially that the defendant was the author of the document and therefore the author of the crime. It is because our adjectival law realises that it is not in all cases that direct evidence of an eye witness is possible that the law has carved out a niche to assimilate or accommodate circumstances surrounding the commission of an offence; a position which leads to the admission or admissibility of circumstantial evidence.” See also, UTB v Awanzingana Entp. (1994) NWLR (pt.348) 56
- Proof by Handwriting Experts
3.1 The seventh method is by the opinion of an expert known as a handwriting analyst or document examiner. See Section 68 of the Evidence Act. The opinion of a handwriting expert is not conclusive about the identity of the maker of the disputed writing. The purpose of the opinion of the expert is to assist the trial Judge to make the correct inference from the comparison of the admitted and disputed writings. The handwriting expert should state whether in his opinion the admitted writing and the disputed writing were made by one and the same person but not whether the disputed writing was made by the defendant. It is the duty of the trial Judge to arrive at the ultimate conclusion about the identity of the maker of the disputed writing. In Fakhruddin v State of Madhya Pradesh, (1967) AIR (vol.54) 1326, the Supreme Court of India explained,
“This comparison depends on an analysis of the characteristics in the admitted or proved writing and the finding of the same characteristics in large measure in the dispute writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert opinion is given the court must see for itself and with the assistance of the expert come to its own conclusion whether it can be safely held that the two writings are by the same person. That is not to say the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of an expert or other witness.” See also, Awosika v I.G.P (1968) ANLR 706, Ozigbo v The State (1976) ANLR
109 at 117
3.2 In criminal cases, and in particular trials for the offence of forgery, the handwriting of any person is an acceptable means to determine the identity of the maker of the signature or writing on any document. This is because the handwriting of every individual contains distinctive characteristics which differentiate it from the handwriting of any other person even though there may be some similarity in the handwriting of two or more persons. Opinion evidence involves the process of comparison and analysis of the characteristics of the admitted writing which is the handwriting of the defendant on the one hand with the characteristics of the disputed writing which is the handwriting in question. However, because of the possible resemblance between the handwriting of two or more persons there is the danger of mistaken identity and therefore the opinion evidence of handwriting experts must be evaluated with caution. Nevertheless, there is no law or rule of practice that requires the corroboration of the evidence of a handwriting expert or any other expert for that matter before the trial court can act upon it. An expert is not a tainted witness and should not be treated as unworthy of credibility unless and until the contrary is proved. In Murarilal v State of Madhya Pradesh, (1980) AIR (vol.67) 531, the Supreme Court of India said,
“We are firmly of the opinion that there is no rule of law nor any rule of prudence which has crystallized into a rule of law that opinion evidence of a handwriting expert must never be acted upon unless substantially corroborated. But having due regard to the imperfect nature of the science of identification of handwriting the approach as we indicated earlier should be one of caution.” See also, Magan Bihari Lal v State (1977) AIR (vol. 64) 1091.
- Proof of Forgery
4.1 The Criminal Code defines the offence of forgery and states that 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 Nigeria 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 Nigeria or elsewhere is said to forge the document or writing. When a person denies making a document which he is alleged to have written or signed then such a denial means that the document is a forgery. The original or primary evidence of the document which contains the forged signature or writing must be produced but secondary evidence or a copy of the document may be admissible.
4.2 The person whose signature or writing was forged is an essential and material witness for the prosecution to prove that the handwriting or signatures did not belong to them and was not made by them. That person must be called to state that he was not the author of the disputed writing and failure to call them to deny or confirm their handwriting or signature is fatal to the case of the prosecution. In Alake v The State, (1992) NWLR (pt.265) 261, the defendant and others were charged with offences of stealing, forgery, uttering and inducing delivery by false pretences. The defendant was the cash and bank supervisor of the company with responsibility for issuing cheques for payment of bills but there was no direct evidence that the cheques in question were written by him. The defendant’s boss testified that he was familiar with his signature and it was not on any of the three cheques in question. The evidence of the handwriting expert confirmed that the cheques were forged but did not state that the defendant’s handwriting was on any of the cheques. Furthermore, the persons whose signatures were alleged to have been forged did not give evidence to deny the signatures on the cheques. The Supreme Court discharged and acquitted the defendant. Kutigi JSC said,
“They were persons whose signatures were alleged to have been forged. I think failure to call them to deny or confirm their signatures on the cheques was clearly fatal to the case of the prosecution, the evidence of the handwriting analyst notwithstanding.”
- Electronic Signatures
5.1 A signature is used for two purposes, the first is to authenticate a document and the second is to identify the maker of the document. The traditional means of signatures on documents was by manual signatures on paper transactions but with modern e-commerce and technology the use of electronic signatures is now widespread. Proof of an electronic signature is admissible under section 93(3) of the Evidence Act. The section permits an electronic signature to be proved in any manner including by showing that a procedure existed by which it was necessary for a person, in order to proceed further with a transaction must have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.
5.2 The Evidence Act only states that electronic signatures are admissible in evidence but does not define an electronic signature. An electronic signature is an inscription in electronic or digital form which is appended to an electronic document to establish the identity of the maker and authenticity of the document. The use of electronic signatures in the UK is governed by the Electronic Communications Act 2000 and the Electronic Signatures Regulations 2002. Section 7(2) of the Electronic Communications Act defines an electronic signature and states that, “For the purposes of this section an electronic signature is so much of anything in electronic form as; (a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and (b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.” Electronic signatures have also been recognized in several other legal systems.
Jide Bodede LLM(Lond). Author of Criminal Evidence in Nigeria. Principal at Lawfields Solicitors & Advocates.
