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Anubalu v. State (2019) LPELR-48088 (CA)
 
In the Court of Appeal
In the Enugu Judicial Division
Holden at Enugu
ON WEDNESDAY, 3RD JULY, 2019
Suit No: CA/E/117C/2018
 
Before Their Lordships:
 
IGNATIUS IGWE AGUBE, JCA
JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA
ABUBAKAR SADIQ UMAR, JCA
 
Between
BONIFACE ANUBALU                                
Appellant(s)
 
And
 
THE STATE                                           
Respondent(s)

           

LEAD JUDGMENT DELIVERED BY ABUBAKAR SADIQ UMAR, J.C.A.
 

FACTS OF THE CASE
It is Boniface Anubalu (Appellant)’s case that he is the owner of a two-story uncompleted building situate at 52B, Oraifite Street, Awada Obosi, Anambra State (“the property”) and that he was informed that one Christian Okonkwo used his title document to the property as a collateral to obtain loan from Arinze Paul Okoye (the Complainant).

The Appellant alleged that he approached the Complainant and expressed his surprise that the Complainant was in custody of his title documents to the property. According to him, the Complainant expressed his intention to use the title documents as collateral to obtain a loan from Skye Bank.
  
The Appellant stated that the Complainant asked him to execute an Irrevocable Power of Attorney in favour of the Complainant to enable the Complainant to obtain a loan with the title documents which bear the name of the Appellant.

The Appellant alleged that he executed the Power of Attorney and also made another agreement with the Complainant stating clearly that the purport of the Power of Attorney was to secure a loan from the bank and nothing more. The Appellant alleged that the Complainant obtained the loan of N5, 000,000 and gave him the sum of N1, 600,000 from the loan. The Appellant stated that he had refunded back to the Complainant the sum of N1, 000,000.

The Appellant claimed that he did not transfer or have the intention of transferring his title in the property to the Complainant. The Appellant also claimed that he did not receive the sum of N25, 000,000 from the Complainant at any time as the purchase price for his property. The Appellant also denied executing a Deed of Assignment dated January 21, 2013 (Exhibit P5), which was executed in favour of the Complainant.
  
The Respondent, on the other hand, stated that the Complainant and the Appellant reached an agreement for sale of the property. The Respondent alleged that it was agreed that the purchase price for the property is fixed at N25, 000,000 and pursuant to the said agreement the Complainant affected payment of the purchase price to the Appellant. The Respondent alleged that further to the agreement, the relevant title documents to the property were delivered to the Complainant, an Irrevocable Power of Attorney was executed (Exhibit P2) and a Deed of Assignment (Exhibit P5) was also executed in favour of the Complainant.

The Respondent alleged that the Appellant failed to deliver the possession of the property to the Complainant and has now denied the sale of the property to the Complainant under the guise of a loan transaction after collecting the sum N25, 000,000 from the Complainant.
  
The Respondent proffered a charge against the Appellant at the High Court of Anambra State sitting in Ogidi with an offense punishable under Section 1(3) of the Advance Fee Fraud and Fraud Related Offences Act, 2006. The Appellant pleaded not guilty to the charge.

At the conclusion of the trial, the learned trial Judge held that the Respondent proved its case and consequently convicted the Appellant of the offense of obtaining by false pretense contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, Cap A6, Laws of the Federation 2010. The Appellant being dissatisfied with the judgment appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on a sole issue as follows: Whether the Respondent proved the charge against the appellant beyond a reasonable doubt.

APPELLANT’S COUNSEL SUBMISSION
Learned counsel for the Appellant submitted that the circumstances resulting to the arraignment and conviction of the Appellant revolves on the intention of the parties as expressed in the Agreement dated February 29, 2012, between Arinze Paul Okoye and Boniface Anubalu (Exhibit D2) vis a vis Exhibit P2 which were tendered and duly admitted in evidence by the trial Court. He contended that Exhibit D2 is an agreement between the Appellant and the Complainant, which was duly executed by the Appellant and the Complainant; and the Respondent did not impugn the authenticity of Exhibit D2. Counsel argued that Exhibit P2 was made on 27 January 2012 while Exhibit D2 was made on 29 February 2012 and by implication Exhibit D2 supplants and overrides Exhibit P2 such that Exhibit D2 determines the legal and contractual effect of Exhibit P2.
  
The learned SAN argued that Exhibit D2 is an admission and acknowledgment by the Complainant that there was no sale or intention to sell the landed property and Exhibit P2 was made solely for the purposes of obtaining a loan and thus negates any allegation of false pretence. Counsel contended that if the trial Court had considered Exhibit D2 with the uncontradicted evidence of DW6, it would have reached a finding that the Appellant and Complainant had full knowledge that Exhibit P2 was for the purposes of obtaining a loan and there was no intention to alienate any landed property of the Appellant. He argued further that the Respondent failed to lead any credible evidence as to how the sum of N25,000,000 was advanced by the Complainant to the Appellant.

 
With respect to the issue as to whether the Respondent proved the charge against the Appellant beyond reasonable doubt, the learned Counsel to the Appellant argued that pursuant to the provisions of Section 135 (1) of the Evidence Act (as amended) 2011, the allegation of commission of a crime must be proved beyond reasonable doubt. Learned Counsel submitted that once the prosecution fails to prove any ingredient of an alleged offense, the Court must as a matter of necessity hold that the prosecution has failed to prove the commission of the alleged crime beyond reasonable doubt.
 
RESPONDENTS’ COUNSEL SUBMISSION
Learned Counsel to the Respondent argued that the Appellant duly executed Exhibits P2 and P5 for the transfer of ownership in the property to the Complainant, and Exhibit P5 has a receipt clause wherein the Appellant acknowledged the receipt of N25, 000,000. He submitted that there was no contradiction in the evidence of PW1 that he affected payment of N25, 000,000 to the appellant. Counsel stated that the law is trite that oral evidence is not admissible to contradict, alter, add to or vary the content of a document.

The Respondent’s counsel submitted that the law is settled that a party cannot approbate and reprobate at the same time, and the Appellant who duly executed Exhibit P2 and P5 in favor of the Complainant cannot be allowed to reprobate by stating that he executed the documents for the purpose of obtaining a loan. He submitted further that Exhibit D2 being an unregistered agreement cannot be used to impugn the content of Exhibit P2 and P5 which were executed by the parties and registered in the Lands registry. Counsel contended that the Appellant who made a false representation to the complainant of his intention to alienate the property and executed Exhibit P2 and P5 in favour of the Complainant, ought not to be allowed to hide under the cloak of Exhibit D2 which was made belatedly after the execution of Exhibit P2 and P5. The Respondent’s counsel urged this Court to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUES
In resolving the issue, the Court started by considering the provisions of Section 1(3) and 1(1) of the Advance Fee Fraud and other Fraud Related Offences Act, Cap A6, Laws of the Federation 2010. The Court stated the elements of the offense of obtaining by false pretense as laid down by the Court in a surfeit of authorities including the case of EDE v FRN (Supra) which was jointly relied on by the parties.

Also the cases of ODIAWA V FRN (2008) All FWLR (Pt. 439) 436 (2000) LPELR-5549(CA); ALAKE v The State (1991) 7 NWLR (PT 205) 567, (1991) LPELR-15326(CA); and ONWUDIWE v FRN (2006) All FWLR (Pt. 319) p. 774, (2006) LPELR-2715(SC). The Court held that the non-consideration of Exhibits D2 by the trial Court in its judgment when it gave due attention to the other documentary evidence particularly Exhibit P2 and P5 made its approach to the case, with deference, lopsided.

The Court held further that the trial Court was bound to consider the document one way or the other in its judgment in the interest of balanced justice; an important facet of the adjudication process. See ADEBAYO & ORS. V SHOGO (2005) 2 S.C (PT I) 1, (2005) LPELR-79(SC) and U.B.A. PLC V. BTL INDUSTRIES LTD (2006) 19 NWLR (PT.1013) P. 61, (2006) LPELR-3404(SC).

The Court held the view that Exhibit D2 and the agreement between the Appellant govern the relationship between the Appellant and the Complainant and the Complainant (Exhibit D2) is not a document transferring the title in a property, which will require any form of registration at the Lands Registry. Exhibit D2 is a simple agreement duly executed by the parties conveying their intentions with respect to the property and such document requires no registration as the same is not a registrable instrument.
  
The Court observed that in light of the clear intention of the parties in Exhibit D2, is the allegation of false pretense inferable from the transaction between the parties? Was there any false pretence in the instant case? The answer was in the negative. The Court held that in fraud generally, there is always an element of deceit or intent to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct. The Court further held that the Respondent did not establish the elements of the offense of false pretense in this case against the Appellant.

  
The Court further observed that the case of the Respondent raises serious doubt as to whether the Complainant parted with any money as consideration for the purchase of the property and lends credence to the testimony of the Appellant that he did not receive the sum of N25, 000, 000 from the Complainant.

The Court stated the well-settled position of the law that doubt arising from the failure of the prosecution to prove a charge against an accused person must as a matter of necessity be resolved in favour of the accused person. See the case of FRN v IWEKA (2011) 11-12SC (Pt. I) p. 109, (2011) LPELR-9350(SC).

HELD
In the final result, the Court held that the Respondent did not prove the charge against the Appellant beyond a reasonable doubt. Consequently, the Court held that the appeal succeeds. The Judgment of High Court of Anambra State delivered on October 15, 2018, convicting the Appellant for the offense of obtaining by false pretense was thereby set aside and in its place, the Appellant was discharged and acquitted.
 
Appearances:          
G.E. Ezeuko, SAN                                      
For Appellant

G.C.Emenike,Esq.                               
For Respondents
 
Compiled by LawPavilion


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