The Republic Vrs Gawsu [2022] GHADC 264 (20 December 2022)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 20TH DECEMBER, 2022 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B10/3/22 THE REPUBLIC V SULEMANA GAWSU JUDGMENT INTRODUCTION 1. On 12th April, 2022 the accused was arraigned before this court for the below offence: STATEMENT OF OFFENCE Defrauding by False Pretence, contrary to section 131 of the Criminal Offences Act 1960 (Act 29). PARTICULARS OF OFFENCE Sulemana Gawsu, Businessman, Aged 37yrs: in the months of January and February 2022 in Tamale in the northern magisterial district and within the - 1 - jurisdiction of this court, with intent to defraud did obtain the consent of one Benard Wewoli to part with cash of GHS270,000.00 by means of certain false pretences to wit: by falsely pretending that if the said amount is giving to you, you could secure him, his brother and 23 others a job, buy him a pick up and five other saloon cars and upon such false presentation you succeeded in obtaining the said amount from the said Benard Wewoli which statement you well knew at the time of making it to be false. FACTS OF THE CASE 2. The facts of the case are tersely put by the prosecution are that accused in the month of January 2022 collected a sum of GHS212,100.00 from the complainant, Benard Wewoli, with a promise to secure complainant and others a job in the National Security Services and Ghana Cocoa Board. On 3rd February, 2022 accused again collected a sum of GHS52,500.00 from the complainant, this time a business arrangement to buy complainant a pick-up and saloon vehicles. Accused, after collecting these monies, failed to honour his promises and went into hiding. Subsequently, he was arrested and charged with the aforementioned offence. DEFINITION OF THE OFFENCE 3. With respect to the defrauding by false pretence, section 132 of Act 29 explains 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. Section 131 of Act 29 further provides that whoever defrauds any person by any false pretence shall be guilty of a second degree felony. BURDEN OF PROOF - 2 - 4. 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. 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). Significantly, 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 case of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374, COP v Isaac Antwi [1961] GLR 408 and Gligah & Atiso v The Republic [2010] SCGLR 870. METHODOLOGY 5. In the instant case, accused pleaded not guilty to the charge. As noted above, It is settled law that upon a plea of not guilty, the prosecution must prove the whole of its case including the identity and knowledge of the offence against the accused, beyond reasonable doubt. 6. The prosecution in proving its case against the accused person called two witnesses: complainant Benard Wewoli (PW1), No. 6924 D/PW/Cpl. Esther Wemang (PW2). Prosecution also tendered in evidence three exhibits: i. ii. iii. Exhibits A, A1 - the investigating cautioned statement of PW1 and Accused Exhibit B - the charge cautioned statement Exhibit C, C1 and C2 – copy of mobile money transfer receipt, mobile money transaction history statement and WhatsApp chat between complainant and accused, respectively. - 3 - The Prosecution’s Case 7. Complainant (PW1) is a teacher and a businessman who deals in the sale of combine harvesters. According to PW1, he had not met the accused, save this case was reported to the police. All his communication with the accused was on phone. He indicated that he got to know the accused through one Alhaji Ibrahim and Alfred when they gave out his number to accused. The accused called him for 12 combine harvesters. It is noted that during the bargain accused indicated he had slots to recruit people into the security services and Ghana Cocoa Board so if complainant should give him a good price. However, after bargaining accused did not come back. On or about November 2021, PW1 stated he received a call from the accused regarding the slots. So in January 2022 PW1, his brother and other friends (39 in all) expressed interest and accused demanded for money of which they paid GH212,100.00 via MTN merchants and accused mobile account. Also, as demanded by accused, PW1 bought cow head, tail and leg at the cost of GH1,00.00 for accused to give to his boss to fast track the process. PW1 maintains that accused assured them of getting them employment. Whiles at this, PW1 stated that accused informed him he can get him a pick up and five salon cars (Toyota Corollas) through a brother who deal in cars in UK. When PW1 indicated that he had no money, accused convinced him that if he can make a deposit of GHS50,000.00 he accused would add GHS50,000.00 for the vehicles to come and when the vehicles are sold, PW1 will keep what is left after paying accused. So in February 2022, PW1 send the GHS50,000.00. Even with this transaction, PW1 stated accused requested for an extra GHS2,000.00 because his (accused) account was short. PW1 added that he received GHS500.00 from accused to cover the mobile transaction fees. In effect, PW1 sent GHS52,500.00 for the vehicle transaction via MTN merchant number 0542030970. A week later, accused demanded for GHS6,000.00 for the vehicles to which PW1 paid. In total, PW1 claims he sent GH270,600.00 to the accused. - 4 - 8. PW2 in her testimony indicated that she investigated the case and caused accused to be charged with the said offence. She tendered in evidence Exhibits A, A1, B, C, C1 and C2 as aforementioned. 9. 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’s Defence 10. According to accused, one Alhaji informed him to ask his boss, Sulemana Bawa (but in his investigative cautioned statement accused gave the name of the boss as Nurudeen Tampoli) to buy a combine harvester for the said Alhaji. So the boss directed him to make enquires of which he got the telephone number of the complainant. In bargaining for the price of the combine harvester, he informed the complainant to reduce the price and that once complainant gives them a good price, someday his boss can also help complainant. In his exact words, accused stated, “I told the complainant that the price was high so he should reduce it. I told complainant to ask Alhaji because my boss had chances, jobs in security services. I told complainant this because he might also need a slot and should that be the case we will also assist.” Accused added that two (2) months later, he received a call from complainant that four (4) people were interested in the job. He then confirmed with his boss and asked complainant to make payment. Accused further stated that complainant later requested for additional slots. In all, accused indicated that nineteen (19) people expressed interest in the job: six (6) applicants were asked to pay GHS10,000.00, others were to pay GHS5,000.00 and five (5) slots were for free. Accused, however, did not say anything about the vehicles, but in his investigative cautioned statement, Exhibit A1, he acknowledged taking money from the complainant regarding the jobs and the - 5 - vehicles. In Exhibit A1, accused stated that “the allegation levelled against me by the complainant is true”. In evidence accused admits receiving GHS120,000.00 in one breath, in another breath GHS230,000.00, and in another he is not sure of the amount. 11. Accused indicated to call two witnesses, but when given the opportunity he failed to call them. He later indicated that he would no call any witness. ANALYSIS OF FACTS AND LAW 12. The essential ingredients of the offence of defrauding by false 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.” In COP v Dwamina [1965] 1 WALR 55, the court 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. See also the case of The State v Agyemang, Asem & Boamono [1962] 2 GLR 67. 13. The law is certain that a confession made by an accused in respect of a crime for which he is being tried is admissible against him, provided that it was shown by prosecution that it was voluntary and that accused was not induced to make it by any promise or favour or undue terror, see s. 120 of NRCD 323 and the case of State v Otchere [1932] 2 GLR 463. - 6 - 14. In the instant case, prosecution was able to lead sufficient evidence in proof that accused made representations of getting the complainant and others jobs in the Ghana National Security and Ghana Cocoa Board and also to purchase a pickup and five saloon vehicles for complainant. Complainant relying on these statements parted with GHS270,600.00 to the accused. Exhibits C series indicated the monies received by accused. In Exhibit A1, accused admitted to the allegations against him. He did not object to tendering of this confession statement, see State v Otchere (supra). Also, in the course of his defence, the accused rather recounted incidents that goes to admission of the offence. This is what ensued: “Q: You told complainant that your boss has chances in the security services, not so? A: Yes. I told the complainant but I did not ask the complainant to pay monies to me. Q: So complainant called you and informed you he was interested? A: That is correct. Q: So you called your boss to confirm whether there are chances, is that correct? A: That is correct. Q: So because you told complainant that there are chances, he paid the monies to you? A: Yes. But for not all. - 7 - … Q: And how much was each supposed to pay? A: GHS10,000.00 for others. GHS5,000.00 for others. Q: How many paid for the GHS10,000.00? A: Q: You said the people did not pay all and some slot were given for free by your boss, not so? A: Yes Q: How many were for free? A: 5 people. 15. On the totality of the evidence, I am satisfied that prosecution has succeeded in proving beyond reasonable doubt the charge of defrauding by false pretence against the accused person and I so hold. 16. Having come to this conclusion, it is safe at this point to say that this case turns on the accused knowing very well that he had committed the offence but pleads not guilty and therefore the prosecution had to prove its case against him. Admittedly, he is entitled to that in law. However, I deduce from him an attempt to mitigate his sentence, yet he was urged to plead not guilty, thereby going the long haul in proof - 8 - of the case. There were instances he indicated to change his plea, but for one reason or the other, he maintained not guilty. I really do not see what he wanted to achieve with delaying the trial. Well, today is the end of the line. It is, however, high time that this court stresses on the factors that it considers before sentencing, so as to guide an accused in his plea and mitigation. SENTENCING 17. Before I proceed with sentencing, let me remind myself with the statement of Dotse JSC in the case Kingsley Amankwa (aka Spider) v The Republic [2021] DLSC 10793 where he recounted the words of Sophia Adinyira JSC in the case of Banahene v The Republic [2017-2018] 1 SCGLR 606 regarding the guiding principles that a court must consider when sentencing stated as follows: “…The factors that a court considers in determining the length of sentence include: i. Any period of time spent in lawful custody in respect of that offence before the completion of trial as provided by article 14(4) of the 1992 constitution; ii. iii. iv. v. The intrinsic seriousness of the offence; The degree of revulsion felt by law abiding citizens of the society for the particular crime; The premeditation with which the crime was committed; The prevalence of the crime within the particular locality where the offence took place or in the country generally; vi. The sudden increase in the incidence of the particular crime; vii. Mitigating circumstances such as the extreme youth, good character, remorse and reparation; and viii. Aggravating circumstance such as the violence or the manner in which the crime was committed.” [Emphasis mine] - 9 - 18. It is important to also reiterate the words of the learned Professor Mensah-Bonsu JSC in the case of Kweku Quaye @ Togbe v The Republic [2021] DLSC 10794 where she stated that being a first time offender or young age is not an automatic entitlement for a lenient sentence. The sentence is at the discretion of the court. This is what the learned Professor said: “The appellant appears to think that being a first offender or being young gives one an entitlement to lighter punishment than would otherwise be imposed. Nothing could be farther from the truth. It is important to highlight the fact that these are only two of the many factors that the court considers in imposing punishment. Any examination of a list of the factors would put the seriousness of the offence first before mitigating factors that the court could consider at its discretion. There is no entitlement since it is at the discretion of the court. A long line of cases, such as Kwashie v The Republic [1971] 1 GLR 488, Gligah & Atiso v The Republic [2010] SCGLR 870, Kamil v The Republic [2011] 1 SCGLR 300 and Frimpong @ Iboman v The Republic [2012] 1 SCGLR 279 provide a list of the factors a court may consider during sentencing. However, the list is not an exhaustive one, and the courts continue to add to it as appropriate”. 19. See pages 416-418 and 433-434 of the Criminal Record Book on pre-sentencing hearing. 20. In light of the above, I have considered the submissions of the prosecution as well as that of the accused. I note that the prevalence of the offence of defrauding by false pretence, particularly people promising others that they can secure them jobs and thereby taking huge sums of money from these desperate ones. I note the rise of the - 10 - said offence within the Tamale Metropolis. Lastly, I note the amount involved as on the high side. - 11 - 21. I, hereby, pass a sentence of 23months, (1year 11months) IHL because of the quantum of money and notoriety of the offence, to serve as punishment to others not to engage in same. The accused is also to refund the amount of GHS270,600.00 to the complainant. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. ABDUL RAHMAN DAWUD FOR THE PROSECUTION ACCUSED APPEARED IN PERSON Reference: 1. Article 19(2) of the 1992 Constitution 2. ss. 131 and 132 of the Criminal Offences Act 1960 (Act 29) 3. ss. 11(2), 13(1), 15, 22 and 120 of Evidence Act, 1975 (NRCD 323) 4. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 5. COP v Isaac Antwi [1961] GLR 408 6. Gligah & Atiso v The Republic [2010] SCGLR 870 7. Richard Kwabena Asiamah v The Republic [2020] DLSC 9911 8. COP v Dwamina [1965] 1 WALR 55 9. The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 10. State v Otchere [1932] 2 GLR 463 11. Kweku Quaye @ Togbe v The Republic [2021] DLSC 10794 12. Kwashie v The Republic [1971] 1 GLR 488 13. Kamil v The Republic [2011] 1 SCGLR 300 14. Frimpong @ Iboman v The Republic [2012] 1 SCGLR 279 - 12 - - 13 -