PROOF OF HANDWRITING &

SIGNATURES IN CRIMINAL CASES

1. 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.

2. 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 1 st 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

3. 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.

4. 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.”

5. 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.