REPUBLIC VRS NARH COFFIE [2022] GHACC 368 (8 December 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 8TH DAY OF DECEMBER 2022 BEFORE HIS HONOUR KWABENA KODUA OBIRI- YEBOAH, CIRCUIT COURT JUDGE. D6/335/2022 THE REPUBLIC VRS NARH COFFIE ================================================================== JUDGEMENT ================================================================== The accused was arraigned before the Court on one count: 1. Defrauding by false pretence: Contrary to Section 131 (1) of the Criminal Offences Act 1960 (Act 29) The law provides under sections 173 and 174 of the Criminal and Other Offences Procedure Act, Act 30 as follows: 173. Acquittal of accused when no case to answer At the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174. The defence (1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement. (2) The Court shall then hear the accused if the accused desires to be heard and the evidence the accused may adduce in defence. By these provisions, at the end of the case of the prosecution, the court came to the conclusion that a case has been made against the accused person. The facts of the case as attached to the charge sheet is that Complainant in this case Ellen Nyarko is a Ghanaian businesswoman resident at Kwashieman in Accra. Accused Narh Coffie is a 47-year-old businessman resident in Accra Newtown, a suburb of Accra in the Greater Accra Region. Sometime in the month of August 2021, accused met complainant at Tudu where the accused was dressed in a civilian attire holding handcuff. The accused introduced himself to the complainant as a police officer stationed at the CID Headquarters but currently on attachment at the Airport police station. Accused then proposed love to the complainant which she accepted. Complainant thinking, she was dealing with a police officer, exchanged contact with the accused and started intimate relationship with him. In the course of their relationship, accused told complainant that he was involved in an accident at Achimota – Circle Road and had been rushed to the Komfo Anokye Teaching Hospital in Kumasi for treatment. Again, accused made complainant to speak with a lady on phone who claimed to be the mother who had just returned from USA and pleaded with the complainant to send money for the accused person’s medical expenses with a promise of paying back in dollars. Accused once again, made the complainant to speak with a gentleman on phone supposed to be his father at the hospital who also confirmed that indeed his son has been involved in accident. All these phone calls were done via accused’s contact numbers, 0209789430 and 0202304763. The supposed father prevented the complainant from visiting accused at the hospital with an excuse that the son cannot talk due to the accident and also there would not be accommodation for her and all that was needed was for the complainant to send money for treatment. Complainant therefore sent an amount of GHC 62,200 in tranches via Vodafone cash to wallet numbers 0209789430 and 0202304763 and that his mother will give her Dollars for repayment. Accused after receipt of the money ceased communication with the complainant. Complainant reported the case to the Police and investigation led to the arrest of the accused. During investigation, it was established that, accused never had an accident and his supposed parents who spoke to the complainant on phone are all dead. After the investigation, accused was charged with the offence and put before this honourable court. Accused appearing before the court pleaded not guilty to the charge proffered against him. It is trite law that in a criminal case, when an accused pleads not guilty to an offence, pursuant to S.11 (2) of the Evidence Act, 1975 (NRCD 323), the burden of proof is on the prosecution; and the standard of proof has to be beyond reasonable doubt as stated in Section 13(1) of the Evidence Act, 1975 (NRCD 323) and affirmed in the case DARKO v THE REPUBLIC [1968] GLR 203. There is no burden on the accused. See: COP v Isaac Antwi (1961) GLR 408 @ 412, Nkansah v The Republic (1980) GLR 184. Section 131 (1) of the Criminal Offences Act, 1960 (Act 29) states: “A person who defrauds any other person by a false pretence commits a second-degree felony.” False pretence has been defined in section 133 (1) of the Act 29 as : “… a representation of the existence of a state of facts made by a person, with the knowledge that the representation is false or without the belief that it is true, and made with an intent to defraud.” The pertinent question is: what is defrauding by false pretence? According to S. 132 of Act 29: “A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” Pursuant to S.133 of Act 29 and as affirmed in the case of ABODAKPI v THE REPUBLIC [2008] 2 GMJ 33, for the prosecution to succeed in proving the offence of defrauding by false pretences, they are required to prove the following: (1) That the accused made a representation of the existence of a state of facts. (2) That the representation was made either by written or spoken words or by impersonation. (3) That the representation was made with the knowledge that it was false or made without the belief that it was true. (4) That the representation was made with intent to defraud. (5) That the representation was made by the accused and that by that representation he obtained the consent of another person to part with something. The various elements of defrauding by false pretence can be elucidated further as follows: a. Defraud b. False Pretences c. Personation and d. intention to defraud Consequently, in a criminal trial of an accused person for the offence of defrauding by false pretences, if the prosecution fails to adduce sufficient and satisfactory evidence to prove all the above stated ingredients of the offence their case must fail. Thus, the failure by the prosecution to prove sufficiently any one of these essential ingredients of the offence will be fatal to the prosecution’s case. See TAMAKLOE v THE REPUBLIC [2011] 1 SCGLR 29, Asiedu v The Republic (1968) GLR 1, Chief Superintendent of Police v Ceesay & Anor (1957) 2 WALR 87, Rabbles v The State (1964) GLR 580. In Blay v The Republic (1968) GLR 1040 it was held that in a charge of defrauding by false pretences, if the evidence showed, that the statements relied on, consisted partly of a promise to do something in future, there was sufficient false pretence on which a conviction could be based. In holding 5 thereof the court held that “To defraud was deprive by deceit or to induce a cause of action by deceit”, In the case of Adobor v The Republic (2008) 19 MLRG 23 CA, the court stated as follows: “To constitute an offence by false pretence, the accused should have made a representation which to his knowledge is false, the representation should be made to a person who believed it and as a result was induce to part with or transfer with or transfer the ownership of anything”. Also, in the case of Asiamah v The Republic (J3/06/2020) (2020) GHASC 64/04, Nov. 2020, the Supreme Court, speaking through Her Ladyship Torkornoo (Mrs.) JSC, stated that “The criminal enterprise of defrauding by false pretence requires … people to agree to get a … person to give consent to part with or transfer the ownership of a thing… See also Commissioner of Police v Dwamena (1957) 1 WALR 55, COP v Dwamena (1956) 1 WALR 55, Arthur v State (1961) 1 GLR 316, Akowuah v Commissioner of Police (1964) GLR 457. In the case of Asare and Others v The Republic (No.3) 1968 GLR 804 CA, it was held that: - “To succeed on a charge of defrauding by false pretence under Act 29 section 132 and 133, it was not enough for the prosecution to prove that the representation was false; they should go further to prove the consent to part with ownership was in fact obtained by false pretence”. In the case of R v Emmanuel Mensah Xenyo, Criminal Appeal No. 8/2002, delivered on 23rd May 2002, Rose Owusu JA (as she then was), held inter alia that in a charge of defrauding by false pretences, it must be proved that the person who parted with or transferred the ownership of anything, would not have done so but for the false pretences. In other words, it must be proved that PW1 was induced by the false pretences to part with or transfer the ownership of the money to the Accused. In the case of Philip Akpeena Asibit v The Republic; Unreported, Criminal Appeal No: H2/23/2018; delivered on 13th February 2020, the Court of Appeal, per Dennis Adjei JA, distilled and stated the following as the elements or ingredient of the offence of defrauding by false pretences. “The main elements of defrauding by false pretence as discussed above which the prosecution is required by law to prove are five fold and they are ; a representation has been made by the accused as to the existence of state of facts; the representation was made either in writing, uttered words or by impersonation; the accused made the representation with the knowledge that it was false or he made it without belief that it was true; the accused made the representation with intent to defraud; and finally, the accused made the representation and based on it he obtained the consent of another person to part with something. The above ingredients of the offence have been discussed in several cases including Rep v Selormey (2001-2002) 2 GLR 424, Kuma v The Republic (1970) C. C 113 and the unreported case of Daniel Abodakpi v The Republic (Criminal Appeal No H2/6/07 delivered on 20th June 2008). The issue for determination in the instant case is whether or not the accused is guilty of the offence of defrauding by false pretences contrary to S.131 (1) of Act 29. In other words, did the accused, with intent to defraud, make a representation, knowing it to be false or without belief in its truth, and through that did obtain the consent of the complainant to part with something? The prosecution, during the trial, through their witnesses that is PW1, Ellen Nyarko, the complainant and PW2, the Investigator, gave evidence in support of the charge. The prosecution also tendered various documents before the court in support of the charge. The prosecution tendered in evidence, exhibit A, court order they obtained, from the magistrate court, for the management of Vodafone to provide certain information on various mobile phone numbers including that of the accused. Investigation Caution statement and charge statement of the accused as exhibit B and D. They also tendered mobile money details of the two mobile numbers of the accused as exhibit C and C1 and highlighted monies that the complainant transferred to the accused with a yellow mark. The prosecution also tendered as exhibit E; picture of a vehicle bought by the accused with money obtained from the complainant. Prosecution also tendered exhibits F, F1 and F2 which were statements provided by mobile money agents, from whom accused received money sent to him by complainant. The prosecution after the evidence of their witnesses closed their case before the court. Afterwards, the Accused opted to make statement before the court which he did and hence was not cross examined. From the evidence, PW1 indicated how he met the accused, and they started a relationship. This is confirmed from the evidence before the court. During cross examination of PW1 by the accused, he stated in Q7, that, PW1 was his girlfriend. PW1 also said in paragraph 6 of his witness statement, that she thought she was dealing with a genuine policeman and so she agreed to his proposal of marriage, and they exchange phone numbers. The numbers the accused gave her were 0209789430 and 0202304763 and these were the numbers the accused used to call her, and the numbers the prosecution exhibited the mobile money transactions, showing that she was sending money to these numbers. PW1 demonstrated in her evidence how the accused told her stories after stories, which she believed, to get her to send money at various times to the accused on the two mobile numbers he gave to her. These numbers per exhibit C was 0202304763 with the name Emmanuel Coffie and per exhibit C1 was 0209789430 with the name Sourage Adukunu. PW1 told the court how she sent the money believing the stories the accused told her to help the accused. PW1 said she sent money to the accused and later had to borrow money in addition to send to accused all to help the accused go through treatment or to assist accused as she was thinking the accused person’s life was in danger. PW1 said in paragraph 19 of the witness statement that she sent most of the moneys through mobile money agents/merchants including Opokua Beauty Enterprise, Cocobenz Enterprise among others to the numbers the accused provided. This is reflected in the exhibits C and C1, with the yellow, highlighted by the prosecution. The accused during cross examination of PW1 did not deny taking money from the accused but rather denied that the two names per the Vodafone numbers were not his names. From the evidence of the prosecution, the accused blocked the complainant (PW1) number and that was when PW1 realised that the accused person had succeeded in defrauding her and she reported the matter to the police. From the evidence of the investigator, the complainant (PW1) did not even know the house of the accused, but she provided the two numbers, the accused gave to her, and it was those two numbers that the complainant sent the various moneys to the accused, and it was those numbers that the investigator used to get to the accused. The investigator PW2, as stated supra, obtained a court order which is in evidence as exhibit A, which compelled Vodafone to disclose information on the accused person’s numbers and through the analysis of the accused person’s numbers, he got to know that the accused person is staying in Accra New Town and he managed to arrest the accused person at his house at Accra New Town and he was identified by the complainant as the person who defrauded her. From the evidence of the prosecution, the accused has been linked to the numbers which he claims does not belong to him, as those were the numbers the prosecution used to arrest him, and the mobile money statement of account shows various money transfers from the mobile money agents the complainant indicated and transfers from the complainant own number to those Vodafone mobile numbers and the accused therefore cannot just be heard to say that those numbers does not belong to him. PW2 also gave evidence of the fact that the accused received some of the money in cash through other mobile money agents. The accused used the facilities of the mobile money agents to receive money from the complainant and these the prosecution exhibited their statements before the court as indicated supra. Prosecution also provided in evidence a photograph of the vehicle the accused used the money he collected from the accused to purchase. The investigator also gave evidence that all the mobile money agents accused person used to defraud the complainant are all in Accra which indicates that the accused has never been in Kumasi as he made the complainant to believe. The prosecution also gave evidence, that, from investigations, the accused has never been involved in a fatal accident and has never been admitted at Komfo Anokye Teaching Hospital and the representation he made to the complainant were all false and intended to defraud the complainant. The accused in his defence made a statement before the court. He said the complainant is his girlfriend and they were arranging to get married. The accused said he informed the complainant that he imports items outside the jurisdiction so the complainant should give him some money to do that business. He said the complainant agreed and gave him cash the sum of GHC 20,000.00 and he used it to import the goods. He went further to state that when the money was given to him, he gave it to his male friend, afterwards when he calls him, he could not get him. Accused said, “I told her that I could not reach my friend and she said we should pray about it, and I will hear from him. I told her that I have heard what she said so we agreed that we were going to pray about it. One to two weeks later she told me that where she collected the money from, they were demanding the money so I told her if I had known that she was going to borrow I will not have allowed her to do so. I told her that she was aware that I have used the money to import goods so whenever the goods arrive, I will sell them to pay off the money. Thereafter I heard that she has reported a case at the police headquarters that I have defrauded her, and I said no I have not defrauded her, but she is my girlfriend that we are in a relationship. I told them that the money was a loan I took from her, and it is not true that I have defrauded her”. From the statement of the accused, he was not being truthful to the court. At one point he said the accused was his girlfriend and they were arranging marriage. And this is the same person who after taking the money from the complainant blocked her and it had to take a court order and disclosure of information from his telecom operators for the investigator to get him arrested. Again, in his statement at one point, he said, he asked for money to do business from the complainant and the amount was GHC 20,000.00. Then in the same statement he said he used it to import goods then just afterwards, he said, he gave the money to a male friend. This male friend he did not mention his name before the court, but he stated further that when he calls, he cannot get through to the male friend. Then in the same statement he said he has used the money to import goods so whenever the goods arrive, he will sell them to pay off the money. The inconsistencies in the statement of the accused are palpable and can easily be gleaned from the face of the statement that it cannot be the case and hence it is not acceptable and same is not enough to create doubt in the case of the prosecution During cross examination of PW1 this is the question accused asked: Q3. The money I collected from you did I tell you that I was using it to trade, or I was sick. A. He said he was involved in a fatal accident, so he needed the money. It is clear from the records that the accused took advantage of the sincerity of the complainant and her willingness to help him and support him, may be to facilitate the marriage process, to defraud her and not only that but also to abuse her. It is amazing the transfers the complainant made to the accused, the various stories that he told her for her to make the transfers. And the consistency of the transfers she made to the accused after various stories he called to tell her was amazing. For instance, as all the number of the financial request, the accused told her of his mother’s one week celebration and she was invited, and the complainant went to their hometown, Somanya only for her to arrive in the evening and call the accused over hundred times for him not to respond. From the evidence of PW1 she gave money to the accused and all the money he gave to the accused was through mobile money transfer to the accused usually through the two numbers the accused provided and from her own number. This is the case, because in the evidence provided by the prosecution, statements which were tendered by three mobile money agents, indicated that even sometimes when the Vodafone network is bad the accused will then request the money to be sent to the MTN number of the agent and the agent will intend give cash to the accused. From the evidence they did that because, the accused told them that he was a policeman. The fundamental principle is that the prosecution must prove the guilt of the accused and the prosecution cannot rely on the defence of the accused to fill in the gaps of their case. See Donkor v The State (1964) GLR 598, Logan and Laverick v The Republic (2007-08) SCGLR 76 In the case of Miller v Minister of Pensions (1947) All ER 372 @ 373, Lord Denning indicated that it is needless for the prosecution to attempt to proof the guilt of the accused beyond a shadow of doubt since that standard will be impossible to attain and were the law to allow that, there will be the admission of fanciful possibilities to deflect the course of justice. The prosecution has been able to lead evidence to prove their case before the court and the issue before the court is answered in the affirmative. The defence of the accused has been considered by the court in totality and based on the three-tier test of examining the defence of the accused person, the defence is found to be unacceptable, it is not reasonably probable and considering the whole case before the court, that is the prosecution and the defence together, the prosecution has been able to satisfy the guilt of the accused beyond reasonable doubt. See Brempong v The Republic (1995-1996) 1GLR 321 @ 350, Lutterodt v Commissioner of Police (1963) 2 GLR 429 @439. The accused is therefore found guilty on the count and is convicted accordingly. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 13