Republic Vrs Koufie and Another [2022] GHACC 139 (9 November 2022)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON WEDNESDAY 9TH DAY OF NOVEMBER, 2022 BEFORE H/H DORINDA SMITH ARTHUR (MRS.), CIRCUIT COURT JUDGE. _____________________________________________________________________ SUIT NO. 36/2023 THE REPUBLIC VRS 1. GEORGE KOUFIE 2. DENNIS SIEBEKPIIR JUDGMENT The Accused persons were arraigned before this Court on September 13, 2022 for the offences of Conspiracy to Defraud by False Pretences, Falsely Pretending to be a Public Officer, and Defrauding by False Pretences Contrary to Sections 23(1), 237 and 131 of the Criminal Offences Act, Act 29, 1960. The accused persons pleaded not guilty to the charges preferred against them for which reason the prosecution assumed the burden of proof and must prove the charges against the accused persons beyond reasonable doubt in accordance with Section 11(2) of the Evidence Act 1975 NRCD 323 which states that; Page 1 of 10 “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt.” Under the Evidence Act, 1975 (NRCD 323) the burden of proof has two elements – namely, the burden of persuasion and the burden of producing evidence. The two are not the same. The burden of persuasion as provided in s.10 of the Act involves the establishment of a requisite degree of belief concerning a fact in the mind of the court; or the party raises a reasonable doubt concerning the existence or non-existence of a fact or that the party establishes the existence or non-existence of a fact. This burden is on both the prosecution and the defence. Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng vs. Republic [1977] 2 GLR 171 CA The prosecution in order to discharge the burden placed upon them called one witness and tendered in evidence four exhibits. THE PROSECUTION CASE The summary of prosecution’s evidence is that the complainant is a police officer stationed at the Regional Police Headquarters, Cape Coast. He reported the matter and the case was referred to the investigator D/C/Insp. Thomas Aklamanu (PW1) for investigation. After investigations the accused persons were charged and arraigned before court. According to PW1, during investigation the complainant informed PW1 Page 2 of 10 that he met the second accused person (A2) who told him that he has an uncle who can help individuals to be recruited into Fire Service so the complainant became interested and he agreed to make payments to A2 for the uncle to aid the complainant secure job placements for his siblings. A2 gave the contact of first accused person (A1) for the complainant to contact him. PW1 continued that A1 asked the complainant to send him money so an amount to the tune of Ghc 18500 was sent to him. He continued that during interrogation of A1, he admitted receiving the money which was sent to A2 and A2 also sent it to one Sarfo K. Adjei in Accra. After collecting the money, APs could not secure the employment for the siblings of the complainant hence the report. PW1 tendered in evidence the investigation caution and charged statements of APs and added that the amount received from the complainant has been refunded to him. EVALUATION OF EVIDENCE, FINDING OF FACTS AND APPLICATION OF LAW At the close of case of prosecution, the court suo moto entered submission of no case per Section 173 of Act 30/60 for the offences of conspiracy to defraud by false pretences, Falsely Pretending to be a public Officer, and Defrauding by False Pretences levelled against accused persons. This is because, Prosecution failed to lead cogent evidence to prove all the elements of the offences as such a case has not been made out sufficiently against them to require them to answer to the offences. Also, prosecution’s case is grounded on illegality and same cannot be relied on to ground a prima facie case against accused persons. Thus, the accused persons are acquitted and discharged with respect to the charges. These are my reasons: Page 3 of 10 In Section131 of Act 29/60, the offence of defrauding by false pretence is a second degree felony. The offence is defined in Section132 that: “a person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything”. And according to Section133 (1) of Act 29/60, false pretence means: “a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true and made with an intent to defraud”. Thus in the case of KUMA VRS THE REPUBLIC [1970] C. C. 113, the Court of Appeal stated the ingredients of the offence as: (a) that there was a misstatement or personation by the accused which in law amounts to a false pretence. (b) that the falsity of the pretence was known to the accused or accused had no belief in the truth of the representation he made (c) that the accused thereby obtained the consent of another person to part with or transfer the ownership of anything, and (d) that the accused acted with intent to defraud. In order to ground a conviction prosecution is required to proof beyond reasonable doubt all the four ingredients of the crime of defrauding by false pretences. All the four ingredients will be determined together as they are intertwined. The first is for the court to determine whether there was a misstatement or personation by the accused which in law amounts to a false pretence. Here, prosecution is to lead cogent evidence to prove that accused persons made a statement to the complainant but that Page 4 of 10 statement was false or that accused persons represented themselves to the complainant that they could secure employment for his siblings and by so doing collected money for the acquisition and could not get the complainant employment. From PW1, the complainant is a police officer and he should have known the procedure for one to get employment with the service or Fire Service of Ghana. The accused persons are not the recruiting agencies or Human Resource personnel of the Fire Service and they did not present themselves as such to the complainant. From the evidence, the complainant knew that accused persons wanted to secure such employment through “connection” and not through the right and proper channel. Here, it is very important that the prosecution proves that the representation made by the accused persons is about or relates to an existing fact or state of facts but not a mere representation of any intention or state of mind or what will happen in the future. In R VRS ODOI [1942] 8 WACA 156 AT P.159 the test as to whether a representation relates to an existing state fact is laid down thus: “is any existing fact alleged as an inducement to part, such alleged existing fact being untrue to the knowledge of the accused?” In the Supreme Court of the Colony of Gambia case of CHIEF SUPERINTENDENT OF POLICE VRS CEESAY AND GOMEZ [1956] 2 WALR 87, the court laid down the principle that “in a charge of defrauding by false pretences, the false pretence must be proved to be a false representation of an existing fact in order to support conviction but it is settled principle of law that a false pretence as to an existing fact coupled with a promise to do something in the future or a statement of intention as to future conduct is sufficient”. Page 5 of 10 Here, the evidence of PW1 even if it is correct does not amount to accused persons making false representation of an existing fact. The informed the complainant that they will work out the employment through an uncle of A2 and they charged him for that ‘connection’. It is clear that the complainant knew right from the beginning of this transaction that he was entering into a ‘connection’ and not any other transaction. The prosecution also has the obligation to prove that the representation made by the accused persons of the existing state of facts is false. This is because an accused can only be convicted of false pretences when it is proved that he made the representation of the existence of a state of facts with knowledge at the time he made it that the representation was false or that he made the representation without belief in the truth. Here, the documents and evidence of DW1 collapsed the evidence of prosecution that the statement accused made his family owns the land is false or that at the time accused made that statement to PW1 he knew it was false. It is noted PW1 evidence was discredited under cross examination but the court was of the opinion that there were certain explanation of circumstances peculiarly within the knowledge of the accused person which was needed and his evidence threw more light into the circumstances. By the provision of Section 133(2) of the Act 29 the representation may be made either by written or spoken words, or by persuasion, or by any other conduct, sign, or means or whatsoever kind. But then the knowledge that this representation in whatever form is false or that the representation is made without belief in its truth cannot be proved by direct evidence. It can only be inferred from other facts or conduct proved against the accused. A look at the documents tendered in evidence when juxtaposed with the report from Lands show clearly that the family of accused owns the lands in dispute unless there is another document that shows that the family of accused has relinquished their interest Page 6 of 10 in the land to State Housing Corporation. Also, from PW3, the investigator the land in dispute is about 38 acres which is exactly the acre of land accused family acquired and registered. DW1 testified that the State Housing Corporation acquired land from the same family accused deceased step father acquired his land from and that they share boundaries. This may explain why the 38acres of land was not touched by State Housing Corporation. This also cannot amount to false representation because at the time accused dealt with PW1, he did not have any knowledge of State Housing expressing interest and offering the family compensation. The proposal which the family has rejected and sued the State Housing Corporation and Land Commission at the High Court for. Furthermore, prosecution was to prove that the accused thereby obtained the consent of PW1 to part with or transfer the ownership of the amount of Ghc6000. Here, as discussed above, it is in dispute that PW1 parted with the money because of any false pretence. Accused tendered in evidence the agreement which prosecution could not discredit because it shows clearly that the money was collected for the demarcation of the land and not as payment of a land because they lands had not been demarcated. I must say that accused gave cogent evidence which the court accepts as credible and with the documentary proof he provided he cannot be deemed as using fraud to collect money from PW1. Under Section 38 of The Evidence Act supra, a person is presumed to intend the ordinary consequences of his voluntary act. Here, PW1 voluntarily gave money for the demarcation of the lands and he cannot turn round to claim that accused made false representation. This is because he went with accused to Lands Commission for search and also went with accused to see DW1 on the lands. As a buyer he should have Page 7 of 10 conducted a search from Land Commission himself before parting money to accused or the surveyor for any land. The learned author P. K. Twumasi in his book Criminal Law in Ghana- p77 stated that: “The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common law which has been accepted as an important principle of our criminal law.” Therefore, intention of accused person can only be inferred from the proven facts of the case of prosecution which has already been discussed that accused acted without any intend to defraud PW1. He believed in good faith that the family owns the lands and he dealt with PW1 because of the power of attorney that was given him by the executor of the estates. Hence, the only conclusion the court can arrive at safely is that accused acted without intend to defraud PW1 and this could be inferred from the proven facts. From the evidence of prosecution, PW1 demanded for a refund of the amount of GHc6000 he paid to either the accused or surveyor stating that he was no longer interested in the land. This case should have been a civil case if PW1 was demanding for a refund and not criminal and so the displeasure of accused person about this case is understandable. It is however noted that the amount has been refunded to PW1. Therefore, prosecution was not able to prove sufficiently all the ingredients of defrauding by false pretence against accused person beyond reasonable doubt. The court then turns to the offence of conspiracy under Section 23(1) of Act 29. Page 8 of 10 Conspiracy is defined under Section 23 (i) of the Criminal Offences Act, 1960. It states as follows: “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be”. The Prosecution was thus expected to establish the following ingredients: 1. That there must be two or more persons. 2. That the persons must either agree or act together. 3. That they held a common purpose and; 4. That the common purpose must be either to commit or abet a crime. To satisfy the first ingredient, the Prosecution must prove that accused was with another person or persons and they agreed to act together with a common purpose to defraud PW1 by false pretences. The first element cannot be sustained because accused cannot stand alone under conspiracy as the other accused person was discharged. Also, from the determination of the second count above, the charge of defrauding by false pretence collapsed. Thus, the accused cannot have a common purpose with another who has been discharge under the same charges to act or agree together to defraud. The first count therefore collapse abysmally. Under Section 13 of NRCD 323 enjoins the accused person to only raise doubt concerning the case of the prosecution. Subsection 2 of the said section provides as follows: Page 9 of 10 Except as provided in section 15 (3), in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt. Here, accused person’s evidence created doubts in prosecution case such that he cannot be convicted of any of the charges levelled against him. DISPOSITION I have considered all the evidence of prosecution, accused and his witness with all the documents tendered in evidence and conclude that accused person is not guilty of the offences of conspiracy to defraud by false pretences and Defrauding by False Pretences Contrary to Sections 23(1) and 131 of the Criminal Offences Act, Act 29, 1960. I hereby acquit and discharge accused person. Case struck out as ended. H/H DORINDA SMITH ARTHUR (MRS.) CIRCUIT COURT JUDGE ACCUSED PERSON PRESENT. PROSECUTOR: INSP. IDDRISU YAKUBU PRESENT. Page 10 of 10