BONIFACE ANUBALU v. THE STATE
(2019)LCN/13413(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/E/117C/2018
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
BONIFACE ANUBALU Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE ELEMENTS OF THE OFFENCE OF OBTAINING BY FALSE PRETENCE
False pretence is defined Section 20 of the Act as: “a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact of law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” The elements of the offence of obtaining by false pretence have been 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. See also the cases of ODIAWA V FRN (2008) All FWLR (Pt. 439) 436, ALAKE v The State (1991) 7 NWLR (PT 205) 567 and the case of ONWUDIWE v FRN (2006) All FWLR (Pt. 319) p. 774 wherein the Supreme Court per Niki Tobi JSC enumerated the elements of the offence of false pretence as follows:
?1. There must be a pretence
2. The pretence emanated from the accused person
3. That it was false;
4. That the accused person knew of its falsity or did not believe in its truth;
5. That there was an intention to defraud;
6. That the thing is capable of being stolen;
7. That the accused person induced the owner, to transfer his whole interest in the property; …” PER UMAR, J.C.A.
DEFINITION OF FALSE PRETENCE
False pretence as defined earlier is a reckless or deliberate representation by word or conduct which the person knows to be false or does not believe to be true. False pretence is also defined in the 9th edition of the Black Laws Dictionary at page 720 as follows:
?The crime of knowingly obtaining title to another person?s property by misrepresenting a fact with intent to defraud.?
False pretence is also one of the essential element which the Respondent must prove beyond reasonable doubt against the Appellant to sustain any conviction under Section 1(1) of the Act Was there any false pretence in the instant case? I do not think so. In order to prove the element of false pretence, the Respondent is required to prove beyond reasonable doubt that the Appellant knowingly dealt with the Complainant with intent to defraud. In the case of Abiodun v Federal Republic of Nigeria (2009) 7 NWLR (Pt. 1141) p. 489 at p. 506, this Court per Ogunwumiju JCA held as follows:
.It is clear that the Prosecution must prove all the ingredients of the offences particularly the vital element of fraud in the transaction. It is trite that where the prosecution fails to prove a vital ingredient of the offence, the conviction will be quashed ?. The fraudulent intent which is the mens rea required in any criminal prosecution, the unauthorized acts and the financial gain or interest must all be proved before it can be said that the prosecution had proved its case beyond reasonable doubt. PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Anambra State sitting in Ogidi (?the lower Court? or ?the trial Court?) delivered on 15 October 2018 (?the Judgment?) coram: Vin Agbata in Charge No: HID/4C/2016 wherein the Appellant was convicted of the offence of obtaining by false pretence contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, Cap A6, Laws of the Federation 2010.
The one count charge proffered against the Appellant is set out below:
That you Boniface Anubalu (m) on or about the 27th day of January 2012 at Awada, Obosi in the Idemili Magisterial District, with intent to defraud, obtained the sum of N25M (Twenty Five Million Naira) from Arinze Okoye (Managing Director, Divine Arisco W.A Ltd, Main Market, Onitsha) under the false pretence that you sold to his company, your two-storey uncompleted building situate at No. 52b Oraifite street, Awada, Obosi, a representation which you knew to be false and thereby committed an offence punishable under
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Section 1(3) of the Advance Fee Fraud and Fraud Related Offences Act, 2006?
The Appellant pleaded not guilty to the aforementioned charge during his arraignment on 23 May 2016 and the Respondent opened its case against the Appellant on 08 December 2016. In proving the sole count contained in the charge proffered against the Appellant, the Respondent called three (3) witnesses and tendered six (6) exhibits. Conversely, the Appellant testified for himself and called 4 additional witnesses, while an additional witness was also subpoenaed on behalf of the Appellant.
BRIEF FACTS
It is the Appellant?s case that he is the owner of a two storey uncompleted building situate at 52B, Oraifite street, Awada Obosi, Anambra State (?the property?) and that he was informed that one Christian Okonkwo used the Appellant?s title document to the property as a collateral to obtain loan from Arinze Paul Okoye (?the Complainant or PW1?). The Appellant alleged that he approached the Complainant and expressed his surprise that the Complainant was in custody of the Appellant?s title documents to the property.
?
According to the
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Appellant, the Complainant expressed his intention to use the Appellant?s title documents as collateral to obtain 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 obtain 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 loan from the bank and nothing more.
?
The Appellant alleged that the Complainant obtained the loan of Five Million Naira from the bank (N5, 000,000) and gave him the sum of One Million, Six Hundred Thousand Naira (N1, 600, 000) from the loan. The Appellant stated that he had refunded back to the Complainant the sum of One Million Naira (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 Twenty Five Million Naira (N25, 000, 000) from the Complainant at any time
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as purchase price for his property. The Appellant also denied executing a Deed of Assignment dated 21 January 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 be fixed at Twenty Five Million Naira (N25, 000, 000); and pursuant to the said agreement the Complainant effected 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 of Twenty Five Million Naira from the Complainant.
?
At the conclusion of the trial, the learned trial
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Judge held that the Respondent proved its case and consequently convicted the Appellant in the following terms:
?The prosecution has clearly proven the guilt of the Defendant beyond reasonable doubts. Consequently, the Defendant is as guilty as charged. Pursuant to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, Cap A6, Laws of the Federation 2010 which prescribes a minimum of seven years imprisonment without an option of fine; the defendant is sentenced to seven years imprisonment without option of fine
?
The Appellant being dissatisfied with the Judgment has appealed to this Court. The parties, in compliance with the Rules of this Honourable Court, filed and exchanged their respective Briefs of Argument. The Appellant?s Brief of Argument dated 04 February 2019 was replaced by an Amended Brief of Argument dated 01 March 2019 pursuant to an order of this Court made on 08 April 2019. The Appellant?s Amended Brief of Argument was settled by G.E Ezeuko (SAN) and filed on 01 March 2019. The Learned Senior Counsel to the Appellant formulated the following issues for the determination of this
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Appeal in the Appellant?s Amended Brief of Argument to wit:
1. Whether the trial Courts failure to consider and attach any probative value to Exhibit D2 occasioned grave miscarriage of justice against the Appellant? (Grounds 2 and 3)
2. Whether the Respondent proved the charge against the Appellant beyond reasonable doubt? (Grounds 1 and 4).
A Respondent?s Brief of Argument dated 01 April 2019 and settled by G.C Emenike Esq. was filed on behalf of the Respondent. The Respondent?s Brief of Argument was deemed properly filed by this Court on 08 April 2019; and the following issues were distilled for determination:
?1. Whether the trial Court was right in holding that Exhibits P2 and P5 were duly executed and thereby refused to accord any probative value to Exhibit ?D2
2. Whether the prosecution from the totality of the evidence placed before the trial Court proved the charge against the Appellant beyond reasonable doubt
On 05 April 2019, learned Counsel to the Appellant filed a Reply Brief of Argument dated 05 April 2019. The Appellant?s Reply Brief of Argument was deemed
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properly filed by this Court on 08 April 2019. The counsel to the respective parties adopted their Briefs of Argument on 08 April 2019.
I am of the considered view that the identical issues formulated by the counsel to the parties can be subsumed in a single germane issue to wit:
?Whether the Respondent proved the charge against the Appellant beyond reasonable doubt?
APPELLANT?S ARGUMENT
The learned SAN submitted that it is a trite principle of law that evaluation and ascription of probative value are within the exclusive preserve of the trial Court; and the trial Court has an obligation to evaluate all material evidence presented before it in its duty of fact finding. The case of CHUKWU V OMEAKU (2009) All FWLR (Pt. 490) p. 697 was cited and relied on. The case of ANPP v Allah (2009) All FWLR (Pt 492) p. 1191 at p. 1212 was also relied on wherein this Court held as follows:
?Before a judgment or decision of a Court can be reached, due appraisal and analysis of the evidence must be painstakingly undertaken. It will be a calamity and a travesty of justice for a Court to decide a case without due consideration of
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the evidence led by both parties
The counsel to the Appellant argued that where a trial Court fails to consider a material documentary evidence alongside other pieces of evidence placed before him, the appellate Court will be in the position to evaluate such evidence, consider such evidence and make appropriate findings on same. Counsel premised his argument on the case of CHUKWU V OMEAKU (Supra).
The Appellant?s counsel 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 29 February 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 lower 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 authenticity of Exhibit D2 was not impugned by the Respondent. 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
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Exhibit P2 such that the legal and contractual effect of Exhibit P2 is determined by Exhibit D2.
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 loan and thus negates any allegation of false pretence. He submitted that the law is settled that in proving the offence of false pretence, it must be shown that there was a false presentation which operated in the mind of the Complainant which led to the advancement of funds, the case of Ede v FRN (2001) 1 NWLR (Pt. 695) p. 802 was cited and relied on. 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.
?
The counsel to the Appellant argued that the purported Deed of Assignment between the Appellant and the Complainant tendered by the Respondent and admitted in evidence
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as Exhibit P5 is of a doubtful origin as same was not executed by the Appellant at any point; and the admissibility of same was challenged at the point it was tendered by the Respondent. He argued further that the Respondent failed to lead any credible evidence as to how the sum of Twenty Five Million Naira (N25, 000, 000) was advanced by the Complainant to the Appellant.
The Appellant?s counsel argued that the oral evidence of PW1 that he effected payment to the Appellant in the sum of Seventeen Million Naira (N17, 000, 000) contradicts the evidence in Exhibit P5 wherein the Appellant acknowledged receipt of the sum of Twenty Five Million Naira (N25, 000, 000) from the Complainant. Counsel relied on the case of ODUM V CHIBUEZE (2015) LPELR- 40895 (CA) and submitted that where oral evidence and documentary evidence state different things, the document will be rendered useless. He contended that the material contradiction in the testimony of PW 1 and the content of Exhibit P5, is fatal to the genuineness of Exhibit P5 and this invariably casts a doubt as to the credibility of Exhibit P5. Counsel argued that such doubt ought to be resolved in favour
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of the Appellant. The case of STATE V NJOKU (2012) All FWLR (Pt. 523) p. 1945 was cited and relied on.
The learned senior counsel submitted that if the trial Court had duly considered Exhibit D2 it would have held that there was no false representation and the sum of Twenty Five Million Naira (N25, 000, 000) was not obtained from the Complainant. He submitted further that for an accused to be convicted for obtaining by false pretence, the prosecution must establish by credible evidence that the amount alleged was obtained from the Complainant under false pretence by the accused person. The case of AYO V STATE (2010) LPELR- 3041 (SC) was relied on.
Counsel argued that the content of Exhibit D2 clearly indicates that the Appellant did not intend to defraud the Complainant in any manner; and if the lower Court had duly considered Exhibit D2, it would not have sentenced and convicted the Appellant. He contended that the failure of the trial Court to consider Exhibit D2 occasioned a grave miscarriage of justice against the Appellant.
The learned SAN submitted that this Court is imbued with the powers to consider the said Exhibit D2 pursuant to the
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provisions of Section 16 of the Court of Appeal Act. He consequently urged this Court to consider, evaluate and ascribe the right probative value to Exhibit D2 and resolve this issue in favor of 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. The cases of AFOLALU V STATE (2010) All FWLR (Pt. 538) p. 312, AYO V STATE (2010) All FWLR (Pt.530) p.1393 were cited and relied on. Counsel argued further on the authorities of STATE V NJOKU (2010) All FWLR (Pt. 523) p. 1945, ABDULLAHI V STATE (2008) LPELR-28 (SC) as well as Section 135 (2) of the Evidence Act that the burden of proving the alleged commission of crime by the Defendant rests squarely on the Prosecution.
The learned Counsel to the submitted that once the prosecution fails to prove any ingredient of an alleged offence, the Court must as a matter of necessity hold that the prosecution has failed to
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prove the commission of the alleged crime beyond reasonable doubt. He stated that the Appellant was charged with obtaining the sum of Twenty Five Million Naira (N25, 000, 000) from Arinze Okoye with intent to defraud and under the false pretence of selling to Arinze Okoye?s company, a two storey uncompleted building situate at No. 52B Oraifite Street, Awada Obosi contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.
The Appellant?s counsel argued on the authority of EDE v FRN (2001) 1 NWLR (Pt. 695) p. 802 that the elements of the offence of obtaining by false pretence are as follows:
?1. That the representation made by the Defendant is false
2. That the representation operated on the mind of the person from whom the money was obtained
3. That the presence or representation was false to the knowledge of the Defendant
4. That the representation was made with intent to defraud?
?
The Counsel to the Appellant argued that Exhibit P2 and D2 clearly evince that there was no false representation made by the Appellant to the Complainant. Counsel submitted that Exhibit P2
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(Irrevocable Power of Attorney) was executed by the parties only to expedite the obtention of loan by the Complainant on behalf of the Appellant; and to enable the Complainant use the Appellant?s property as collateral for the loan. He submitted further that the content of Exhibit D2 established unequivocally that the intent of the parties in executing Exhibit P2 was to secure a loan and not an outright sale of property; thus there was no false representation by the Appellant as the Complainant was fully aware of the entire transaction and its essence.
Counsel argued that the Complainant did not transfer or part with the sum of Twenty Five Million Naira (N25, 000, 000) to the Appellant at any time whatsoever. He submitted that the Respondent did not prove the allegation that the Appellant received the sum of Twenty Five Million Naira (N25, 000, 000) and the only evidence adduced by the Respondent to buttress the allegation is the receipt clause in Exhibit P5 (Deed of Assignment), the origin of which was challenged by the Appellant and has no evidential value.
?
The learned Senior Advocate submitted that the Complainant only admitted paying the
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sum of Seventeen Million Naira (N17, 000, 000) which is inconsistent with the sum of Twenty Five Million Naira (N25, 000, 000) contained in Exhibit P5. He argued that contrary to the Judgment of the learned trial Judge that there were contradictions in the evidence put forward by the Appellant, a proper scrutiny of the evidence led by the Appellant and his witnesses show no contradiction.
The Appellant?s counsel contended that any alleged contradiction in the evidence put forward by the Appellant as alluded to by the trial Judge, has no significance to the issue as to whether the Respondent proved the offence of obtaining by false pretence beyond reasonable doubt. He submitted that the onus of proof in a criminal trial is constantly on the prosecution, and this onus is discharged only when all the ingredients of the offence have been proved.
Counsel argued that any material doubt in the evidence of the prosecution must be resolved in favour of the accused person, and the Respondent?s evidence against the Appellant is imbued with material doubt which unequivocally entitles the Appellant to an acquittal by the trial Court. The
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Appellant?s counsel consequently urged this Court to hold that the trial Court was in error when it held that the Respondent proved the guilt of the Appellant beyond reasonable doubt.
RESPONDENT?S ARGUMENT
The learned Counsel to the Respondent submitted that it is the duty of the trial Court who saw and heard the witnesses during trial to appraise the evidence of the witnesses. He contended that this duty is the exclusive preserve of the trial Court and is not extended to any other Court. The case of TABANSI V TABANSI (2018) 18 NWLR (PT. 1651) P. 279 AT P. 306.
?
Counsel 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 Twenty Five Million Naira (N25, 000, 000). He submitted that there was no contradiction in the evidence of PW1 that he effected payment of Twenty Five Million Naira (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 following cases were
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relied on: OWOEYE V OYINLOLA (2012) 15 NWLR (Pt. 1322) p. 84 (CA) and also BELLO V GOVERNOR OF GOMBE STATE (2016) 8 NWLR (Pt. 1514) p. 219 at p. 280 wherein the Court held that:
?The law undoubtedly is that documentary evidence is the best evidence, the best proof of the contents of documents. Oral evidence will therefore not be allowed to discredit or contradict the contents thereof.?
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 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
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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.
With regards to whether the Respondent proved the charge against the Appellant beyond reasonable doubt, learned Counsel to the Respondent argued on the authority of Agbo v State (2006) 6 NWLR (Pt.977) p. 545 that proof beyond reasonable doubt does not mean proof beyond shadow of a doubt. The Respondent?s counsel alluded to the dictum of the Supreme Court in Agbo v State (supra) as follows:
?The law would fail to protect the community if it admits fanciful possibilities to defeat the course of justice, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt?
The Respondent?s counsel also relied on the ingredients of the offence of obtaining by false pretence as laid down in the case of Ede v FRN (Supra). He contended that there was no doubt that the Appellant was the
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bonafide owner of the property; but the element of false pretence was active when the Appellant offered the property for sale to the Complainant, collected the sum of Twenty Five Million Naira (N25, 000, 000) from the Complainant and subsequently rescinded the transaction under the guise that it was a loan transaction.
Counsel argued that the law is trite that once it is shown that a person obtained money from another by a representation intended to deprive the latter of his money illegally, there is a clear indication of an intent to defraud. The case of Okweji v FRN (2003) LPELR 12387 was cited and relied on. He argued further that the evidence of PW 1 and PW2 and the receipt clause in Exhibit P5 are unassailable pieces of evidence that the Appellant received the sum of Twenty Five Million Naira (N25, 000, 000) from the Complainant.
?
The Respondent?s counsel submitted that the Appellant is making a u-turn to assert that the transaction between the parties was merely a loan transaction and relying on Exhibit D2 which was belatedly prepared after Exhibit P2 and P5 had been duly executed by the parties. He submitted further that there was clear
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evidence that the Appellant defrauded the Complainant by refusing to deliver the property to the Complainant after the receiving the purchase price of Twenty Five Million Naira (N25, 000, 000) for the property.
Counsel argued that the ingredients for the offence of obtaining by false pretence were proved by the Respondent. He submitted that although the burden of proving a charge against an accused person is on the prosecution, where the prosecution has adduced sufficient evidence showing the accused person is guilty of the offence charged, the burden of proving his innocence shifts to the accused person. The provisions of Section 138(3), 139, 141 and 142 of the Evidence Act as well as the cases of NASIRU V STATE (1999) 2 NWLR (PT. 589) P. 87 AND IMHANRIA V NIGERIAN ARMY (2007) 14 NWLR (PT. 1053) P. 76 were relied on by the Respondent?s counsel to buttress his submission.
?
Counsel contended that the content of Exhibit D2 is unhelpful in rebutting the inference that the Appellant committed the offence. The learned counsel to the Respondent argued that it is not a defence in fact or in law for the Appellant who executed Exhibit P2 and P5 with the
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Complainant and acknowledged receipt of Twenty Five Million Naira (N25, 000, 000) as consideration to claim that he executed the documents for the purpose of obtaining loan.
The Respondent?s counsel submitted that oral evidence is not admissible to contradict, alter or vary the content of a document. The provisions of Section 125 and 128 of the Evidence Act as well as the case of OWOEYE V OYINLOLA (Supra) was cited by the Respondent?s counsel to buttress his submission. Counsel consequently urged the Court to hold that the Respondent proved the charge against the Appellant beyond reasonable doubt.
The Respondent?s counsel also urged this Court to make an order of restitution directing the Appellant to deliver the property situate at 52, Oraifite street, Awada Obosi , Anambra to the Complainant in accordance with the provisions of Section 11(1) and (II) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006. In conclusion, counsel relied on the dictum of this Court in the case of NWUDE v FRN (2016) 5 NWLR (Pt. 1506) p. 471 as follows:
?Section 11 of the Advance Fee Fraud and other Fraud Related Offences Act,1995
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provides that in addition to any penalty prescribed under the Act, the High Court shall order a person convicted of an offence under the Act, to make restitution to the victim of the false pretence or fraud by directing that person to pay to the victim an amount equivalent to the loss sustained by the victim?
APPELLANT?S REPLY
In the Appellant?s Reply Brief of Argument, learned Counsel to the Appellant submitted that the record of appeal unequivocally establishes the fact that the Complainant led evidence that he paid the sum of Seventeen Million Naira (N17, 000, 000) to the Appellant. He contended that Exhibit D2 corroborates and strengthens the evidence of the Appellant and his witnesses that Exhibit P2 was made for the purpose of obtaining loan from Skye Bank with the use of the Appellant?s landed property as security for the loan.
?
The Appellant?s counsel argued that Section 128(1) of the Evidence Act is inapplicable to this case because the later document executed by the parties referred to and modified the former document executed by the parties, and same does not translate to using oral evidence to
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contradict the content of a documents. He submitted that the law is trite that when a document refers to the content of another document executed by the same parties, the later document is admissible in law for the purpose of determining the precise intentions of the parties in making the earlier document.
Counsel contended that the non-registration of Exhibit D2 does not detract its effect of clarifying the intentions of the parties or modifying Exhibit P2. He submitted that Section 128 (2) and (3) of the Evidence Act admits as exceptions the case of a separate subsequent oral agreement to decipher the intention of the parties in making an earlier document. The learned SAN argued that once a separate subsequent document duly executed by parties establishes the intention of the parties and shows the applicability of the earlier agreement, such later document is germane and vital.
?
The counsel to the Appellant argued that the Prosecutor cannot shift the burden of proof to an accused person as same will be contrary to the presumption of innocence accorded an accused person in Section 36 (5) of the constitution of the Federal Republic of Nigeria 1999(as amended)
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The cases of MUSA V STATE (2014) LPELR-24026 (CA) and the case of OKOH V STATE (2014) LPELR- 22589 SC were relied upon. Counsel submitted that the authorities cited by the Respondent?s counsel are inapplicable to the facts of the case; and the reliefs sought by the Respondent?s counsel in the absence of a cross appeal against the Judgment of a lower Court is an alien procedure.
The Appellant?s counsel argued that if the Respondent was dissatisfied with the Judgment of the lower Court, it had the opportunity in law to cross appeal the sentence against the Appellant or file a Respondent?s notice to vary same pursuant to the rules of Court. Counsel submitted that the case of NWUDE V FRN (Supra) cited by the Respondent?s counsel is inapplicable to this case.
The Appellant?s counsel consequently urged this Court to resolve this issue in favor of the Appellant and allow the appeal.
?
RESOLUTION OF ISSUE FOR DETERMINATION
I have thoroughly perused the arguments canvassed by the counsel to the parties in this appeal, and more particularly the grievance of the Appellant with the Judgment of the lower
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Court. The Appellant was charged under the provisions of Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 (?the Act?). The provisions of Section 1(3) cannot be considered in isolation of Section 1(1) of the Act, I have therefore reproduced below the provisions of Section 1(1) and Section 1(3) of the Act.
Section 1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person, in Nigeria or in any other country for himself or any other person;
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
(c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
Section 1(3) A person who commits an offence under subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.
?
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False pretence is defined Section 20 of the Act as: “a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact of law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.”
The elements of the offence of obtaining by false pretence have been 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. See also the cases of ODIAWA V FRN (2008) All FWLR (Pt. 439) 436, ALAKE v The State (1991) 7 NWLR (PT 205) 567 and the case of ONWUDIWE v FRN (2006) All FWLR (Pt. 319) p. 774 wherein the Supreme Court per Niki Tobi JSC enumerated the elements of the offence of false pretence as follows:
?1. There must be a pretence
2. The pretence emanated from the accused person
3. That it was false;
4. That the accused person knew of its falsity or did not believe in its truth;
5. That there was an intention to defraud;
6. That the thing is capable of being stolen;
7. That the accused person induced the owner, to transfer his whole interest in the property; …”
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The poser at this juncture is whether the Respondent proved the aforementioned elements of the offence of false pretence beyond reasonable doubt to sustain the conviction of the Appellant. In resolving the question of whether there was a false pretence emanating from the Appellant which induced the Complainant/PW1 to part with his money, the Lower Court after reviewing, evaluating and assessing the evidence adduced concluded as follows at page 78 of the Judgment: –
In the spirited efforts to drive home her points, the prosecution fielded three witnesses PW1, PW2 and PW3. PW2, Benjamin Anthony Okpalaeke, introduced PW1 to the ill-fated transaction. PW 2 and the Defendant together visited PW1 in his office with respect thereof. These are common grounds; there is no question about it?..PW2 then proceeded to give a vivid account of how the parties negotiated and settled for the purchase price of the sum of N25, 000, 000; which purchase price the complainant duly paid on instalment basis?.Although the Defendant denied ever making any such representation of intending to sell the
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house, the subject matter of these proceedings, the denial is clearly of no consequence. I say so, because apart from the aforesaid unassailable testimonies of PW2, the Defendant executed Exhibits P2 and P5; by means of which he transferred the ownership of the said premises to the complainantExhibits P5, on the other hand, particularly has a receipt clause by means of which the Defendant clearly acknowledged the receipt of the sum of N25, 000, 000.00 from the Complainant. In the face of the above unassailable pieces of evidence, it beats my imagination how the Defendant and counsel expect any discerning mind to agree with them that the Defendant never made a representation to the Complainant to the effect that he had the premises in the market for sale?.The said exhibit P2 and P5 speak for themselves; and they are clear and unambigious with respect thereof. The law, therefore is since settled that oral evidence is not admissible to contradict, alter, add to or vary the content of a document?..?
?
The gravamen and summation of the submissions made on behalf of the Appellant is that the Appellant never made any
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representation of intention to sell the property at No. 52B Oraifite street, Awada Obosi (?the property?) to the Complainant. The Appellant?s case as evinced from the records is that the Power of Attorney with respect to the property (Exhibit P2) executed in favor of the Complainant by the Appellant was merely for the obtention of loan and nothing more. The question at this point is whether this submission was supported by evidence at the lower Court.
It is distillable from the evidence on record that the Appellant tendered an Agreement executed by the Appellant and the Complainant which was admitted as Exhibit D2. The Appellant relied heavily on this document as unequivocally evincing the intentions of the parties in the transaction. It was argued extensively on behalf of the Appellant that the lower Court did not consider Exhibit D2 in the determination of the charge against the Appellant.
The contention by the Appellant?s counsel that Exhibit D2 was not considered by the Court below is tenable. A methodical perusal of the Judgment reveals that the lower Court did not in fact make any reference to or weigh the evidential
29
value of Exhibit D2 in its Judgment.
The non-consideration of Exhibits D2 by the Court below 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. For whatever it was worth, the lower 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 adjudication process. See Adebayo & Ors. v Shogo (2005) 2 S.C (Pt I) 1 where the Supreme Court held thus:
“The beauty, elegance and romance of our adjudicatory system is that the Court should hear all sides, carefully compare the weight of the evidence given, make a proper appraisal before determining preponderance after such painstaking considerations of all issues addressed upon it….”
See also U.B.A. PLC. V. BTL Industries Ltd (2006) 19 NWLR (Pt.1013) p. 61 wherein the apex Court observed as follows:
.The above is a fairly detailed analysis of the specific documentary exhibit about which non-evaluation, the appellant complained. The documents together constitute an integral part of the
30
defence of the appellant and the trial Court had no reason whatsoever not to consider them. The trial Court and indeed the Court of Appeal had a duty to carefully consider them. See Akeredolu v. Akinremi (1989) 3 NWLR (PU08) 164; Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) 275; Karibo v. Grend (1992) 3 NWLR (Pt.230) 426. There is nothing on the record to show that these documents on which the appellant relied so heavily were given the due consideration they deserved. The appellant thus had good cause to complain?
The failure of the lower Court in considering Exhibit D2 imposes an obligation on this Court to assume the responsibility of appraising the documentary evidence pursuant to the provisions of Section 16 of the Court of Appeal Act, 2005, as amended. The content of Exhibit D2 is reproduced hereunder for a better appreciation to wit:
? AGREEMENT
I, Mr. Arinze Paul Okoye of Ire village Ogidi, Idemili Local Govt Area, Anambra State, on this day 29th February 2012 agree that Mr. Boniface Onyemaechi Anubalu of Ezi-Nimo, village Eziowelle in Idemili Local Government Area of Anambra State did not sell his building at No. 52B Oraifite
31
Street, Awada Layout Obosi to me rather the former agreement was to formalize Mr. Boniface O. Anubalu (sic) quest to obtain loan from me (Mr. Arinze Paul Okoye) Sky Bank.
Signed
Boniface Anubalu
Signed
Okoye Arinze Paul
Signed
Okpaleke BTC (Witness)?
The signature of the complainant and the Appellant is clearly appended on the document, they are therefore bound by the terms of the agreement. The Court is also bound to give effect to the intention of parties as expressed in a contract. See the case of BABATUNDE V BANK OF THE NORTH LTD (2011) 12SC (Pt V) p.1. I have duly considered the content of Exhibit D2 and the intention of the parties is deductible. The parties intended that there was to be no sale of the property; and the execution of the former agreement was to secure a loan. In light of the explicit content of Exhibit D2, the narration of events by the Appellant is more probable. The Appellant had testified at page 69 of the records that:
?I know Christian Okonkwo. He is a co-trader in the main market of Osha. He borrowed money from Arinze Paul using the documents of my house as security. The
32
documents are exhibits P3 and P4. Pw2 was the person who informed me about the fraudulent transaction. I accompanied PW2 to the office of Paul Arinze Okoye. When we got to the office, Arinze Paul Okoye told me that Christain Okonkwo was supposed to pay back the loan in two weeks? time. Arinze Paul Okoye then told me that he was going to use the documents to borrow some money from the bank. He also said that he was going to prepare some documents to the effect that I sold the house to him to the tune of N25, 000, 000. 00. We also prepared another document to the effect that I did not sell the property to Arinze Paul Okoye. ?
?
It is presumable from the content of Exhibit D2 and the testimony of the Appellant reproduced above which was not challenged; that the Arinze Paul Okoye ? the Complainant envisaged that that the discrepancy in the name contained in the title document to the property might scuttle his loan application, hence the decision to prepare and execute other documents evincing transfer of the property from the Appellant to the Complainant. The Complainant and the Appellant also agreed to prepare and in fact executed Exhibit D2
33
stating their intentions with respect to the property.
I hold the view that the relationship between the Appellant and the Complainant is governed by Exhibit D2. I am also in complete agreement with the submission of the learned Counsel to the Appellant in paragraph 4.1.09 of the Appellant?s Brief of Argument that:
?Of utmost importance is the content of Exhibit ?D2? and its role in explaining the making, the circumstances and the real intention of the parties in executing Exhibit ?P2? which is the irrevocable power of attorney. Exhibit D2 is an admission and acknowledgment by the Complainant that he and all the parties to the transaction are aware that there was no sale or intention to sell the said landed property from the onset and that Exhibits P2 was made for the purposes of obtaining loan. Hence, the above clearly negates any allegation of false pretence which operated on the mind of the complainant to allegedly advance his money to the Appellant.?
The records of the Court indicate that at the point Exhibit D2 was tendered during the trial at the lower Court by the Counsel to the Appellant; there
34
was no objection as to the content or import of the document. The learned Counsel to the Respondent merely challenged the admissibility of Exhibit D2 on the grounds that the document was not registered and the signature on the document ?appear? to have been scanned. Also in the Respondent?s Brief of Argument Respondent?s counsel urged this Court to discountenance Exhibit D2 because same is not registered and cannot therefore take precedence over Exhibit P2 and P5 which were registered in the Lands Registry.
I am highly unimpressed or convinced by the submission of the learned counsel to the Respondent. The agreement between the Appellant 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 to my mind, such document requires no registration as same is not a registerable instrument.
?
It is noteworthy that there was no iota of denial that the Complainant executed Exhibit D2 or is unaware of the existence of
35
such document, this invariably indicates that the Complainant and the Appellant were ad idem that the property was not for sale and the documents of conveyance of the property executed by the parties was to enable the Complainant secure loan from the bank.
In light of the clear intention of the parties in Exhibit D2, is the allegation of false pretence inferable from the transaction between the parties? False pretence as defined earlier is a reckless or deliberate representation by word or conduct which the person knows to be false or does not believe to be true. False pretence is also defined in the 9th edition of the Black Laws Dictionary at page 720 as follows:
?The crime of knowingly obtaining title to another person?s property by misrepresenting a fact with intent to defraud.?
False pretence is also one of the essential element which the Respondent must prove beyond reasonable doubt against the Appellant to sustain any conviction under Section 1(1) of the Act Was there any false pretence in the instant case? I do not think so. In order to prove the element of false pretence, the Respondent is required to prove beyond
36
reasonable doubt that the Appellant knowingly dealt with the Complainant with intent to defraud. In the case of Abiodun v Federal Republic of Nigeria (2009) 7 NWLR (Pt. 1141) p. 489 at p. 506, this Court per Ogunwumiju JCA held as follows:
.It is clear that the Prosecution must prove all the ingredients of the offences particularly the vital element of fraud in the transaction. It is trite that where the prosecution fails to prove a vital ingredient of the offence, the conviction will be quashed ?. The fraudulent intent which is the mens rea required in any criminal prosecution, the unauthorized acts and the financial gain or interest must all be proved before it can be said that the prosecution had proved its case beyond reasonable doubt
In the instant case, there is no controversy that the title in the property is vested in the Appellant, the documents tendered by the Respondent particularly the Customary Right of Occupancy (Exhibit P3) and Deed of Assignment P4 establish that the Appellant has legal title to the property. Exhibit D2 also reflects and evinces that the Appellant as the legal owner of the property
37
had no intention of relinquishing his title to the property to the Complainant.
I do not see any misunderstanding or misrepresentation as to whether there was intent to transfer the title in the property. The Complainant knew for a fact that the Appellant had no intention of alienating his property and he executed D2 with the understanding that the property was not for sale. 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. I however do not see any element of fraud or deceit in the conduct of the Appellant in this transaction. In IJUAKA VS. COMMISSIONER OF POLICE (1976) LPELR- 1466 SC the Supreme Court enunciated on what has to be proved in order to establish the intent to defraud and stated as follows:
“In order that a person may be convicted of that offence it has been said hundreds of times that it is necessary for the prosecution to the prove to the satisfaction of the jury (Court) that there was some mis-statement which in law amounts to a pretence, that is, a mis-statement as to an existing fact made by the accused person; that it
38
was false and false to his knowledge; that it acted upon the mind of the person who parted with the money; that the proceeding on the part of the accused was fraudulent. That is the only meaning to apply to the words with intent to defraud
The Respondent?s counsel has argued in paragraph 4.20 at page 9 of the Respondents Brief of Argument that:
?That there was no doubt that the Appellant was the bonafide owner of the property prior to the transaction that led to this charge. The representation or false pretence here goes to the issue of offering the property for sale; collecting the sum of Twenty Five Million from the Complainant and rescinding from the agreement under the guise that it was a loan transaction?
I do not agree with the submission of the learned Counsel to the Respondent as reproduced above. I am of the firm and considered view that Exhibit D2 negates any assumption that the Appellant offered the property to the Complainant for sale. There was no such offer or representation upon which a false representation can be inferred. The Respondent in this case did not prove the element of false pretence or
39
intend to defraud as required by law against the Appellant and I so hold.
In a bid to prove the other elements of the offence of false pretence, the Respondent alleged that the Complainant under the inducement of the Appellant effected payment of the sum of N25, 000, 000 (Twenty Five Million Naira) to the Appellant as purchase price for the property, a fact which has been denied by the Appellant.
The Supreme Court in the case of ONWUDIWE v FRN (Supra) held as follows:
for the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment of the offence? (underlining mine)
Flowing from the foregoing authority, the prosecution must prove as an element of false pretence, the fact that the victim of false pretence parted with a thing capable of being stolen. The Respondent relied on the consideration clause in Exhibit
40
P5 and the testimony of the Complainant as PW1 to prove that the Complainant as a victim of the false representation of the Appellant parted with his money which is a thing capable of been stolen. The Appellant on his part denied receiving the sum of Twenty Five Million Naira (N25, 000, 000) from the Complainant. The Appellant also denied executing Exhibit P5. During cross examination of the Appellant, the Appellant stated at page 70 of the records as follows:
?I have been a business man for more than 30 years. I am the owner of the building the subject-matter of these proceedings. I did not sell it to Arinze Paul Okoye. He did not give me the sumof N25, 000, 000.00 with respect thereof?.I did not obtain the sum of N25, 000, 000.00 from Arinze Paul Okoye? ?
During cross examination, the Complainant on his part as PW 1 testified at page 55 of the records as follows:
The Defendant acknowledged receipt of the monies he received from me. I don?t have now a copy of the acknowledgment. All the monies I gave to him are reflected on the agreement I signed with him. I don?t remember whether I told the
41
Police about the acknowledgments. The money I gave to the Defendant was in cash
Notwithstanding, the purported consideration and receipt clause in Exhibit P5 a document which has been vehemently denied by the Appellant, I hold the view that it is highly implausible that a transaction of this nature involving a huge volume of cash to the tune of Twenty Five Million Naira (N25, 000, 000) will be carried out without the involvement of any financial institution. This is an express violation of the provisions of the Money Laundering (Prohibition) Act 2011 particularly Section 1(a) which provides that:
?1. No person or body corporate shall, except in a transaction through a financial institution, make or accept cash payment of a sum exceeding
(a) N5, 000,000.00 or its equivalent, in the case of an individual; or
(b) N10, 000,000.00 or its equivalent in the case of a body corporate.
?Asides violating the provisions of the law, the Respondent failed to call anyone who witnessed the exchange of such amount of money between the Complainant and the Appellant, to testify on the alleged payments made by the Complainant to the
42
Appellant. This in my view raises serious doubt that 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 Twenty Five Million Naira (N25, 000, 000) from the Complainant.
The law is well settled 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 where the Supreme Court held as follows:
?An accused person will not be convicted of a crime unless the case has been proved beyond reasonable doubt. Any doubt of course results in discharge and acquittal of the accused person.?
I am of the respective view that the Respondent did not prove that the Appellant received the sum of Twenty Five Million Naira (N25, 000, 000) as purchase price of the property from the Complainant.
Assuming I am wrong and the Complainant indeed paid the sum of Twenty Five Million Naira (N25, 000, 000) to the Appellant as purchase price for the
43
property and the Appellant failed to deliver the property to the Complainant as agreed or refuses to refund the purported consideration paid by the Complainant, the only remedy available in law to the Complainant who allegedly furnished consideration is to institute an action for either specific performance of the contract, restitution and or seek for damages for breach of contract and not engage the Police to file a spurious criminal charge of false pretence against the Appellant. Our jurisprudence is replete with practice and procedure for enforcing the terms of commercial contract between parties.
If indeed there was any agreement or contract for the sale of the property by the Appellant who is the legal owner of the property; and the said Appellant reneges or rescinds on the contract after receiving the purchase price, the cause of action to my mind falls within the purview of a breach of contract which does not require the involvement of the Police. See the case of DR. OLU ONAGORUWA v. THE STATE (1993) LPELR-43436(CA) where this Court observed that:
?it is not my understanding of the law that such a breach ripens into
44
criminality on the part of the appellant. There is no law known to me where a breach of an agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish. I am not even quite sure whether the appellant breached any agreement with Wema Bank. There was none between them and so the issue of breach could not arisen
The duty of the Police as spelt out in Section 4 of the Police Act include prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. I have scrutinized the provisions of the Section 4 of the Police Act and I am unable to decipher any provision empowering the Police to enforce contract or meddle into purely civil transactions between parties. The interference of the Police in purely civil matters is an abuse of the statutory powers of the Nigerian Police.
?I am not
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oblivious to the fact that the Police receive countless petitions daily alleging one crime or the other, however the Police is not a robot incapable of methodically sieving through the Petitions to determine if there is criminal element or not in each of the Petition before acting on same. It does not augur well for the society if the Police upon the instigation of a complainant acts outside its statutory defined functions by interfering in simple civil transactions between citizens. Simply put, it is neither the duty nor the power of the Police to serve as agents of any person, be it an individual or a corporate citizen or even agents of Government at either the Federal or State or Local Government level, to enforce commercial disputes, under any guise or pre of investigating a crime in a purely civil dispute without any element of criminality. See Section 8(2) of the Administration of Criminal Justice Act 2015, wherein it is provided thus: “A suspect shall not be arrested merely for a civil wrong or breach of contract.
This prevalent attitude of involving the Police in a purely civil transaction under the guise of commission of a crime has received
46
scathing deprecations by the Supreme Court in a multitude of cases. In the case of DIAMOND BANK PLC v. H.R.H. EZE (DR) PETER OPARA & ORS (2018) LPELR-43907(SC), the Supreme Court pronounced thus thus:
?The subsequent actions of reporting the matter to the police and to the 3rd Respondent were nothing but abuse of process of law. What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them.?
See also the case of BERNARD ANOGWIE & ORS v. EBERE ODOM & ORS (2016) LPELR-40214(CA) where this Court held as follows:
“…the invitation of the police to intervene in a matter that is
47
purely civil in nature cannot be justified under any circumstances. The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties. See the case of MCLAREN vs. JENNINGS (2003) 3 NWLR (PT.808) 470?the mere fact that the police are usually invited into just about every matter under the sun is no justification to get the police involved in the resolution of civil disputes. The police has recently held itself out as a responsible law enforcement organization should be seen to live up to its billings in quickly to turning down matters not statutorily assigned to it so as to avoid embarrassments of matters of this nature
I must state that the joint conduct of the Police, Respondent and the Complainant in the circumstances of this matter is reprehensible, distasteful and leaves much to be desired. The Police in this case had no power to convert any purported disagreement between the parties as it relates to the alleged contract of sale which is a purely civil transaction; into a case of
48
obtaining by false pretence. The Respondent should have known or ought to have known that there is no taint of criminality in the transaction between the parties before needlessly exposing the Appellant to defending a criminal charge. The interventions of the Nigerian Police at the instigation of a party in the resolution of commercial/civil dispute is clearly an abuse of the investigative and prosecutor powers of the Nigerian Police. It is an unpleasant practice by the Nigerian Police that has received scathing deprecations and reprimands from the Nigerian Courts.
It remains to consider some other peripheral issues embedded in the submissions of the parties. The counsel to the Respondent sought from this Court restitution by the Appellant of the purchase price paid by the Complainant. The relief sought by the Respondent is not predicated on any of the grounds in the Notice of Appeal filed by the Appellant.
?A Respondent in an appeal is confined to the grounds of appeal as contained in the Notice of Appeal in formulating the issues for determination. The only proper avenue available to the Respondent to question any aspect of the Judgment which is
49
in his favour is by filing a Cross Appeal or Respondent?s Notice. See the cases of GALADIMA V. TAMBAI (2000) 11 NWLR (PT. 677) 1, BAKER MARINA (NIG.) LTD. V. DANOS CUROLE MARINA CONTRACTORS INC. (2001)7 NWLR (PT.712) 337, DELTA STATE GOVT. V. OKON (2002) 2 NWLR (PT. 752) 665. SEE ALSO OGUNBADEJO V. OWOYEMI (1993) 1 NWLR (Pt. 271) 517. The submission of the Respondent?s counsel in paragraph 5.1 (i) seeking restitution from the Appellant in accordance with Section 11 (1) and (II) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 is hereby discountenanced as same does not flow from the grounds of appeal as contained in the Notice of Appeal.
The law is settled that an accused person is to be discharged and acquitted once the Prosecution has failed to prove beyond reasonable doubt the offence for which the accused person has been charged. See the cases of TANKO V. THE STATE (2008) 16 NWLR (PT.1114) P.597, BELLO V. THE STATE (2007) 10 NWLR (PT. 1043) P.564 and RASAKI v. STATE (2011) 16 NWLR (Pt.1273) at 251 at 284.
?
The elements of the offence of false pretence were not established by the Respondent in this case against the
50
Appellant and I so hold. In the final result, I hold that that Respondent did not prove the charge against the Appellant beyond reasonable doubt. I am satisfied that from the available evidence on record, there was sufficient doubt in the evidence of the Respondent which ought to have been irrefutably resolved in favour of the Appellant.
Consequent upon the foregoing, I hold that this appeal succeeds. The Judgment of High Court of Anambra State delivered on 15 October 2018 coram: Vin Agbata in Charge No: HID/4C/2016 convicting the Appellant for the offence of obtaining by false pretence is hereby set aside and in its place, the Appellant is hereby discharged and acquitted.
IGNATIUS IGWE AGUBE, J.C.A.: I have read the Lead Judgment of my Learned Brother A. S. UMAR, JCA; in advance and I am in complete agreement with his reasoning and conclusion that from the totality of the evidence adduced by the prosecution in the Lower Court, the Respondent did not establish the essential ingredients of the offence of obtaining money under false pretence so as to warrant the conviction of the Appellant. The authorities of Tanko v. The State
51
(2008) 16 NWLR (PT. 1114) P.597, BELLO V. THE STATE (2007) 10 NWLR (pr.1043) P.564 AND RASAKI V. STATE (2011) 16 NWLR (PT.1273) 251 AT 284; ably relied upon by my Learned Brother in so holding are all on point and I adopt them as mine.
In the circumstances, I also hold that this Appeal is meritorious and hereby succeeds. The Judgment of the Honourable Justice Vin Agbata of the Anambra State High Court, Ogidi Judicial Division delivered on 15th October, 2018; is equally set aside and the conviction and sentence imposed on the Appellant are hereby quashed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
It is unacceptable to turn a purely commercial transaction into criminal just to force the hands of a party.
?I equally find merit I this appeal. I accordingly allow it while adopting the consequential orders in the lead judgment as mine.
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Appearances:
G.E Ezeuko, SANFor Appellant(s)
G.C Emenike, Esq.For Respondent(s)
Appearances
G.E Ezeuko, SANFor Appellant
AND
G.C Emenike, Esq.For Respondent