The Republic Vrs Noah [2022] GHADC 263 (15 December 2022)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 15TH DECEMBER, 2022 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B18/88/22 THE REPUBLIC V OSEI NOAH JUDGMENT INTRODUCTION 1. The accused was arraigned before this court for the below offences: COUNT ONE STATEMENT OF OFFENCE Falsely pretending to be a public officer: contrary to section 237 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Osei Noah, Age 37yrs, Businessman: For that you during the month of August 2020 at Tamale in the Northern Region and within the jurisdiction of this court, - 1 - not being a public officer, did pretend to be a public officer by introducing yourself as a military officer stationed at Kamina Barracks, Tamale and a lawyer to Sandiba Gloria Yennupaak which you well knew not to be true. COUNT TWO STATEMENT OF OFFENCE Defrauding by false pretence: contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Osei Noah, Age 37yrs, Businessman: For that you during the month of August 2020 at Tamale in the Northern Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of one Sandiba Gloria Yennupaak and to part with cash the sum of GHS1,800.00 by means of certain false pretence to wit falsely pretending that if the said money was given to you, you could help get her enlisted into the Ghana Police Service and upon such false representation, you succeeded in obtaining the said amount from the said Sandiba Gloria Yennupaak a statement you well knew at the time of making it to be false. FACTS OF THE CASE 2. The facts of the case given by the prosecution are that in February 2021 (I note the charge sheet stated year 2020) accused introduced himself to the complainant, Sandiba Gloria Yennupaak, as being a military officer stationed at Kamina Barracks, Tamale and as a lawyer. Accused later informed the complainant that he could get her enlisted into the Ghana Police Service and so demanded for GHS1,800.00 to facilitate the processes. Accused, however, on receiving the money went into hiding. On 15th May, 2022 at about 3:00pm complainant bumped into accused at Aboabo - 2 - Market, Tamale. Accused upon seeing the complainant took to his heels but was arrested and handed over to the police. During interrogation, accused admitted to having posed as a military officer stationed at Kamina Barracks and taking the GHS1,800.00 under the pretence of getting complainant enlisted into the Police Service. 3. Accused when arraigned before this court, however, pleaded not guilty to the above charges. DEFINITION OF THE OFFENCES 4. Section 237 of Act 29 provides that a person who pretends to be or acts as a public officer, juror, or to be a messenger of or to hold any authority from the President, or a Minister or a Court, and who is not lawfully authorised to act in that capacity or not holding that authority, and in or under colour of such assumed character does or attempts to do, or procures or attempts to procure, any other person to do or abstain from doing an act commits a misdemeanour, unless the person shows: (a) that the pretence or act was made under a mistake of law or of fact; or (b) in the case of a person acting as a public officer, that the pretence or the act was in good faith for the public benefit. 5. With respect to the defrauding by false pretence, section 132 of Act 29 explains that 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. Section 131 of Act 29 provides that a person who defrauds any other person by a false pretence commits a second degree felony. BURDEN OF PROOF - 3 - 6. By a plea of not guilty, the accused puts himself in charge of the court, meaning that his guilt has to be proved beyond reasonable doubt. It is settled law that a person is presumed innocent until the contrary proved, see article 19(2)(c) of the 1992 Constitution. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that the person was guilty, has been provided for in ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323). In Gligah & Atiso v The Republic [2010] SCGLR 870, the Supreme Court, per Dotse JSC re-emphasized this point thus: “…whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt. The burden is, therefore, on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story.” 7. Thus, whereas the prosecution carries that burden to prove the guilt of the accused beyond reasonable doubt, there is no such burden on accused to prove his innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374, COP v Isaac Antwi [1961] GLR 408. METHODOLOGY 8. In the instant case, accused pleaded not guilty to the charge. As noted above, the prosecution must prove the whole of its case including the identity and knowledge of offence against the accused, beyond reasonable doubt. In Owusu-Ansah v The State [1964] GLR 558 the court held that, ‘…the prosecution is bound to prove each count separately beyond reasonable doubt and that proof in support of one count cannot be - 4 - deemed to be proof of the other counts where the evidence in support of the other counts leaves room for doubt.’ 9. The prosecution in proving its case against the accused called three (3) witnesses: Sandiba Gloria Yennupaak (PW1), Mahama Mary (PW2) and D/Insp. Frederick Kansuk (PW3). Prosecution sought to tender in evidence the investigation cautioned statement but same were objected. After a mini-trial, the objection was upheld. The Prosecution’s Case 10. PW1’s evidence is that she got to know accused through PW2 who was a former girlfriend of accused. According to her, accused introduced himself as a military officer stationed at 6BN Kamina Barracks, Tamale and also as a lawyer. She averred that in 2021 she had intentions of joining the Ghana Police Service and upon discussions with accused, indicated he could get her enlisted. She added that accused demanded for GHS1,800.00 to facilitate the process of which she duly paid. However, after receiving the money, accused started given her excuses and later went into hiding. Luckily, on 15th May, 2022 at about 3:00pm she spotted accused at Aboabo Market, Tamale and accused upon seeing her took his heels. PW1 then raise an alarm and accused was arrested. 11. PW2, on her part, corroborated the evidence of PW1. She added she received the initial amount of GHS1,500.00 and gave it to accused at her residence at Kakpayili, in the presence of PW1. She further stated that PW1 informed her that accused had visited her at Gurugu and she handed over to him GHS200.00 and subsequent mobile money transfer of GHS100.00. Accused then went into hiding, but was arrested when spotted by PW1 at Aboabo Market. - 5 - 12. PW3, also corroborated the evidence of PW1 and PW2. He contends that upon his investigations at Kamina Barracks, it was found that accused was not a military officer. Neither was accused a lawyer. He then caused accused to be charged with the offences and arraigned before this court. 13. At the end of the Prosecution’s case, the Court found that a prima facie case had been established against accused and therefore called upon accused to open his defence. Accused Person’s Defence 14. Accused testified that he only got to know PW1 through his former girlfriend PW2. That on 15th May, 2022 he brought some items to Aboabo Market to trade. After closing sales, he headed to the lorry station to pick a car. He then sighted a friend one Emmanuel who had taken some goods from him and so was heading towards the friend’s direction. Then he saw PW1, PW1 enquired whether he had seen PW2. Answering in the affirmative, PW1 then stated that PW2 had taken some money from her to be given to him to support his trade. Accused contended that he disputed what PW1 was saying but PW1 insisted the amount was paid into accused’s bank account. Angered by the insistence of PW1, an old lady bystander advised them not to fight and PW1 suggested they go to the police. Gladly, accused followed PW1 to the police station. At the police station, accused indicated that the police officer demanded for the bank account details but he directed the police officer to rather ask PW1 since she was alleging that. He added that the police officer would not heed to his suggestion and kept insisting and so he (accused) stated that if that was the case, they should take him to court. Accused maintains that he does not know anything about what PW1 or PW2 is alleging. Moreso, he has never represented to PW1 or PW2 as being a lawyer or military officer. - 6 - ANALYSIS OF FACTS AND LAW 15. Before I proceed with analyzing the facts and law in respect of the charges against the accused, let me rehash the decision in Owusu-Ansah v The State (supra) where the court held that, “…the prosecution is bound to prove each count separately beyond reasonable doubt and that proof in support of one count cannot be deemed to be proof of the other counts where the evidence in support of the other counts leaves room for doubt.” In this instant case, the prosecution is required to prove each count separately, thus falsely pretending to be a public officer and defrauding by false pretence. Count one 16. I will start with the count one, falsely pretending to be a public officer. The particulars of offence states, ‘Osei Noah …not being a public officer, did pretend to be a public officer by introducing yourself as a military officer stationed at Kamina Barracks, Tamale and a lawyer to Sandiba Gloria Yennupaak which you well knew not to be true’, contrary to s. 237 of Act 29. In proof of this offence, s. 238 of Act 29 requires prosecution to show, ‘(a) a statement purporting to be signed by a person in the name of the President, Minister or Court, declaring that the accused was not at a stated time or period a messenger of or did not hold an office or authority under the President, Minister or Court, and (b) a statement purporting to be signed by the Chairman of the Civil Service Council declaring that the accused was not a civil servant, and (c) a statement purporting to be signed in the name of any local or other statutory authority, declaring that he was not an officer of that authority shall, without further proof, (as) prima facie evidence of the matters so declared.’ 17. In effect, what is expected of prosecution is to at least produce a statement signed by a person in the name of the President, Minister, Court or Chairman of the Civil Service - 7 - Council, declaring that the accused who is holding himself as a public was not at the stated time or period a messenger of or did not hold any office or authority under the President, Minister or Court or being civil/public servant. 18. It is important to point out here that under no circumstance is a lawyer (not engaged in the civil or public service) considered to be a public officer, see sections 3 and 237 of Act 29. Section 3 of Act 29 defines a public officer, to include ‘any person holding an office election or appointed under any enactment or under powers conferred by any enactment.’ At best, if a person who is not enrolled willfully pretends to be, or takes or uses any name or title, or description implying that he is qualified or recognised as qualified to act as a lawyer or barrister or solicitor, he shall be liable to a fine not exceeding … or to imprisonment for a term not exceeding six months or to both, see s. 9 of the Legal Profession Act, 1960 (Act 32). 19. From the evidence, prosecution states that accused represented to the complainant (PW1) and PW2 that he was a military officer at Kamina Barracks, Tamale. PW1 and PW2 under cross-examination stated that they have never seen accused in military uniform or on duty or being a lawyer. When PW3 was also under cross-examination, he answered that his investigation at the Northern Command of the 6BN Kamina Barracks, Tamale turned out that accused was not military officer, yet he caused accused to be charged under s. 237 of Act 29. Excerpt of what ensued under cross- examination is below: “Q: Since your investigation turned out that I am not a military officer, then that should have been the end of it, because they (PW1 and PW2) are not telling you the truth? - 8 - A: That is not correct, because you made complainant to believe you were a military officer and made her believe that you were in a better position to get her into the Ghana Police Service.” 20. Accused, on his part, disputed being a military officer or a lawyer and indicated that the charge was a fabrication against him. - 9 - 21. From the above, the prosecution was to produce a statement purporting to declare that accused was not a military officer as required under s. 238 of Act 29. But it failed to tender any such statement. Also, it is unclear whether the representation as a public officer was to induce the complainant to part with the GHS1,800.00. The charge or particulars of offence did not establish this link. It just stated that, ‘not being a public officer, (accused) did pretend to be a public officer by introducing (himself) as a military officer stationed at Kamina Barracks, Tamale and a lawyer to Sandiba Gloria Yennupaak which (he) well knew not to be true.’ Regarding particulars of offence, Justice Brobbey, in his book, Practice & Procedure in the Trial Courts & Tribunals of Ghana, (2011) 2nd Edition stated that ‘…[i]t is sufficient for the charge to contain particulars necessary to give ‘reasonable information’ to the accused as to the nature of the charge he faces’. At p. 132 of the book, he added that “[w]hat will amount to ‘reasonable information’ will depend on the facts on each case. To satisfy the constitutional requirement (i.e. article 19(2)(d) of the 1992 Constitution), the person drafting the charge may be better off if he inserts more or detailed particulars than if he inserts few particulars”. See also State v Lawman [1961] GLR (Pt II) 698, SC. 22. On the totality of the evidence, I find that prosecution has not led any evidence sufficient evidence in proof beyond reasonable doubt that accused did pretend to be a public officer, i.e. as a military officer, and I so hold. Accused is, therefore, acquitted and discharged on count one. Count Two 23. Now regarding the second count, the court in COP v Dwamina [1965] 1 WALR 55, held that in a charge of defrauding by false pretence, the rule is that there ought to be proof that but for the false pretence the person who parted with his money would not ordinarily have done so. The essential ingredients of the offence of defrauding by false - 10 - pretence are stated in the recent case of Richard Kwabena Asiamah v The Republic [2020] DLSC 9911 where the Supreme Court speaking through Her Ladyship Torkornoo JSC held that, “the criminal enterprise of defrauding by false pretence requires …people to…consent to part with or transfer the ownership of a thing. They may obtain the consent directly or through personation of another person. For the charge of achieving this purpose…, these …people should have represented the existence of a state of facts, with the knowledge that such representation is false, or without the belief that it is true. They should also have made this false representation with an intent to defraud.” See also the case of The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 and Kuma v The Republic [1970] CC 113. 24. From the evidence, prosecution contends that accused informed the complainant (PW1) that he could get her enlisted into the Ghana Police Service and so demanded and received GHS1,800.00 in respect of that. According to PW1, she paid the money to accused through PW2. She added that she was not present when the money, particularly the initial part GHS1,500.00 was paid. PW2, on her part, indicated that she paid the initial GHS1,500.00 to accused in her room in the presence of PW1 and later it was PW1 who paid cash of GHS200.00 and mobile money of GHS100.00 to accused. PW3 on his part indicated that the money was paid in two tranches: GHS1,600.00 and GHS200.00. This is what he stated: “Q: Do you have anything to show that I received the amount of GHS1,800.00 from Gloria? A: No. But the monies were paid to you in two tranches. The first was GHS1,600.00 in the presence of Mahama Mary (PW2) at Mary’s room. The balance of GHS200.00 was paid to you at your place of abode and that was also done in the presence of Mahama Mary. - 11 - Q: I am putting it to you that Gloria (PW1) and Mary stated in court that they gave me GHS1,500.00 in the first tranche, but you are saying GHS1,600.00, which one should the court take? A: I know it was GHS1,600.00” 25. It is essential to point out that PW1 and PW2 stated in evidence that they do not know the place of abode of the accused. Throughout PW2’s relationship with accused, thus over 1year and 4months, PW2 claims accused never showed him his house or even his place of abode at Kamina Barracks (if that was even so). I wonder where the PW3 got that evidence that the GHS200.00 was paid at accused’s person place of abode. 26. Accused, however, contended that he had not received any money from PW1 or PW2 regarding any employment opportunity which he promised. He rather challenged PW1 to show the bank account details that the said money was paid into. 27. On the totality of the evidence, I find that prosecution was unable to prove any payment made to accused regarding the promise to get PW1 enrolled into the Ghana Police Service. At least the mobile money payment would have been a good proof. The inconsistences with payment of the first tranche also puts doubts in prosecution’s case. I find the evidence of the prosecution improbable, see Amartey v The State [1964] GLR 256 @ 295, SC. In effect, prosecution was unable to prove beyond reasonable doubt that accused with intent to defraud did obtain the consent of complainant (PW1) to part with cash the sum of GHS1,800.00 by means of false pretence to get her enlisted into the Ghana Police Service, and I so hold. Accused is, therefore, acquitted and discharged in respect of count two. - 12 - - 13 - CONCLUSION 28. In brief, prosecution failed to prove beyond reasonable doubt that accused falsely pretended to be a public officer or defrauded complainant by false pretence: contrary to sections 237 and 131 of the Criminal Offences Act, 1960 (Act 29). Accused was able to raise reasonable doubt in prosecution’s case, see COP v Isaac Antwi (supra). 29. Accused is, therefore, acquitted and discharged on both counts. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. A. R. DAWUD FOR THE REPUBLIC ACCUSED APPEARED IN PERSON References: 1. Article 19(2)(c) and (d) of the 1992 Constitution 2. ss. 131, 132, 237 and 238 of the Criminal Offences Act, 1960 (Act 29) 3. ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323) 4. Gligah & Atiso v The Republic [2010] SCGLR 870 5. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 6. COP v Isaac Antwi [1961] GLR 408. 7. Owusu-Ansah v The State [1964] GLR 558 8. p. 132 of Practice & Procedure in the Trial Courts & Tribunals of Ghana, (2011) 2nd Edition by Justice S. A. Brobbey 9. State v Lawman [1961] GLR (Pt II) 698, SC 10. COP v Dwamina [1965] 1 WALR 55 - 14 - 11. Richard Kwabena Asiamah v The Republic [2020] DLSC 9911 12. The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 13. Kuma v The Republic [1970] CC 113 14. Amartey v The State [1964] GLR 256 @ 295, SC - 15 -