The Republic Vrs Noah [2022] GHADC 262 (20 December 2022)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 20TH DECEMBER, 2022 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B18/87/22 THE REPUBLIC V OSEI NOAH JUDGMENT INTRODUCTION 1. On 20th May, 2022 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 Alice Sandow and Mahama Mary 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 Alice Sandow to part with cash sum of GHS2,250.00 by means of certain false pretence to wit falsely pretending that if the said money was given to you, you could supply her with spiritual materials to protect herself and upon such false representation, you succeeded in obtaining the said amount from the said Alice Sandow a statement you well knew at the time of making it to be false. COUNT THREE 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, - 2 - with intent to defraud did obtain the consent of one Mahama Mary to part with cash the sum of GHS600.00 by means of certain false pretence to wit falsely pretending that if the said money was given to you, you could secure her visa to travel outside the country and upon such false representation, you succeeded in obtaining the said amount from the said Mahama Mary a statement you well knew at the time of making it to be false. FACTS OF THE CASE 2. The facts of the case as tersely given by the prosecution are that in Alice Sandow (first complainant) got to know accused through Mahama Mary (second complainant) who is (now was) accused’s girlfriend. Accused introduced himself to the complainants as being a military officer stationed at Kamina Barracks, Tamale and also as a lawyer. In August 2020, accused informed Alice Sandow about a prophesy he had received from the late T. B. Joshua of the Synagogue Church of All Nations concerning her and the family and that Alice should give him GHS2,250.00 for spiritual materials to protect her. Accused promised to supply the spiritual materials within three days but failed to supply to do so. Also accused took GHS600.00 from Mahama Mary under the pretence of securing her a visa. However, on receiving the money i.e. GH2,850.00 accused went into hiding. Upon hearing that accused had been arrested in another case of fraud, complainants went to the police station and made a case against the accused. 3. Accused was later arraigned before this court on the above charges, but he pleaded not guilty to the charges. DEFINITION OF THE OFFENCE - 3 - 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 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 - 4 - 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 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:, Mahama Mary (PW1), D/Insp. Frederick Kansuk (PW2) and Alice Sandow (PW3). Prosecution tendered in evidence the following: a. Exhibit A - investigation cautioned statement dated 16/5/22 b. Exhibit B – charge cautioned statement dated 17/5/22 The Prosecution’s Case - 5 - 10. I will take the evidence of the complainant’s first. PW1’s evidence is that she got to know accused sometime in April 2020 after introducing himself as a military officer stationed at Kamina Barracks, Tamale and also as a lawyer. They have been in a boyfriend-girlfriend relationship from then, until accused went into hiding, thus April 2020 to June 2021. She stated in evidence that during their relationship, accused collected GHS600.00 and her passport under the pretence of securing her a visa to travel to the United States of America. But accused on receiving the money and went into hiding. Upon her enquiries at Kamina Barrack, she got to know that accused was neither a military officer or a lawyer but rather trades in sandals. On 15th May, 2022 when she had that accused had been arrested in another case of falsely pretending to be a public office and defrauding by false pretence, she followed up at the Regional CID, Tamale and levelled the above charges against the accused. 11. PW3’s evidence is that she got to know accused through PW1. She averred that accused introduced himself as a military officer stationed at Kamina Barrack and also as a lawyer. According to her accused sometime in August 2020 informed her about a prophesy he (accused) had received from the late T. B. Joshua of the Synagogue Church of All Nations concerning her. PW3 stated that the prophesy was about her and her family. Particularly, about her, the prophesy was that she would get, “money and .. need[ed] to be protected .. [she] will prosper.” Accused then took cash of GHS2,250.00 under the pretence of supplying spiritual materials within three days but failed to do so. Accused then went into hiding and was arrested on 15th May, 2022. When she had information about accused arrest, she went there and made this case against the accused. 12. PW2, the investigator, corroborated the evidence of PW1 and PW3. He contends when he took investigation cautioned statement from accused, accused denied taking - 6 - any money from the complainant but admitted taking the passport of PW1. 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 confirmed that PW1 is the former girlfriend whiles PW3 is the sister of PW1. That on 16th May, 2022 when he was at the police station, PW2 enquired about some monies deposited in his bank and mobile money accounts. Accused contends that PW1 indicated at the police station that he had received GHS40,000.00 to get her a visa to USA. PW3 also stated he (accused) received GHS10,000.00 to get her spiritual materials. Also, PW1 and PW3 insisted that he had introduced himself to them as being a military officer and lawyer. He denied ever receiving any money or being a military officer or lawyer. He added that he never promised PW1 to get her a visa to travel to the USA. He only got court to notice that the amount is GHS2,250.00 and GHS600.00. He maintained that he had not received any cash or deposit into either his bank account or mobile account. ANALYSIS OF FACTS AND LAW 15. Following the decision in Owusu-Ansah v The State (supra), the prosecution is therefore bound to prove each count separately beyond reasonable doubt. 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 - 7 - officer by introducing yourself as a military officer stationed at Kamina Barracks, Tamale and a lawyer to Alice Sandow and Mahama Mary 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 Council, declaring that the accused who is holding himself as a public officer 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 and 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). - 8 - 19. From the evidence, prosecution contends that accused represented to the complainants PW1 and PW3 that he was a military officer at Kamina Barracks, Tamale. PW1 and PW3 under cross-examination stated that they have never seen accused in military uniform or on duty or being a lawyer. In fact, PW1 has been in a relationship with accused since April 2020 to June 2021, but has never seen accused in military uniform or on duty. When PW1 was under cross-examination, she answered that throughout their relationship accused failed to take her to his quarters or even give out the military uniform for washing. Excerpt of what ensued under cross- examination is below: “Q: What is my house number at Kamina Barracks? A: I do not know your house number because anytime I ask, you said no and you were the one coming to my end. … Q: A: … Q: Have you ever seen me in military uniform? No. So if I have lived with you for the past 2 to 3yrs and you have never seen me in military uniform, why do you say I am a military officer? A: Because anytime I request the uniform to wash, you say I am washing too much and that I would even spoil the military uniform” 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. Prosecution witnesses, indeed, never saw accused purporting to be a military officer or as a lawyer. 22. On the totality of the evidence, I find that prosecution has not led any sufficient evidence in proof beyond reasonable doubt that accused did pretenedd to be a public officer, i.e. as a military officer, and I so hold. Accused is hereby acquitted and discharged on count one. Counts Two and Three 23. Now, counts two and three relate to defrauding by false pretence. I shall state the law but analyse each count separately. 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 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. - 10 - 24. On count two, accused is alleged to have defrauded Alice Sandow (PW3) by false pretence. From the evidence, prosecution contends accused sometime in August 2020 informed PW3 that he had received a prophesy from the late T. B. Joshua of the Synagogue Church of All Nations concerning PW3 and her family. The prophesy particularly regarding PW3 was that PW3 would prosper and therefore needed to be protected. Based on this, accused took cash of GHS2,250.00 under the pretence of supplying spiritual materials within three days but he failed to do so. PW3 contended that she paid the money through PW1 on the instructions of accused. She stated further that when accused received the money, accused called her to confirm. Accused denied informing PW3 about the said prophesy or receiving any money. He argued that when PW3 was to deliver and the hospital requested her to pay GHS3,000.00, he gave PW3 the GHS3,000.00 and instead of paying, PW3 is rather fabricating this case against him. 25. From evidence, I find the testimony of PW3 unconvincing. The reason being that PW3 stated at paragraph 7 of her witness statement that “[a]ccused upon collecting the monies went into hiding and would not answer (her) phone calls.” I wonder how then accused confirmed the payment with PW3. Also, PW1 throughout her testimony said nothing about this payment. In fact, both of PW1 and PW3 stated that when accused received the monies from them, accused went into hiding and refused to answer any of their calls. Let me reiterate that one of the essential ingredients in a charge of defrauding by false pretence is for prosecution to prove beyond reasonable doubt that complainant parted with the money. I do not find this ingredient so proven. On the totality of the evidence, I therefore conclude that prosecution has failed to prove - 11 - beyond reasonable doubt that charge of defrauding by false pretence against the accused. Accused is hereby acquitted and discharged on count two. 26. Finally on court three, from the evidence, prosecution contends that complainant (PW1) parted with GHS600.00 and her passport due to representation made by accused to secure her a visa to travel to the USA. However, when PW1 was under cross-examination, she stated that the GHS600.00 was rather for books. This is what she said: “Q: You gave me your passport for what? A: For visa. …. Q: How did I collect the GHS600.00 you mentioned? A: You said you were using the GHS600.00 to add to the school fees at USA so that I would be given books?” 27. In one breath, the GHS600.00 was for a visa. In another breath, it was for books. This puts doubt in prosecution’s case. Reminding myself that an essential ingredient to be proved in a charge of defrauding by fraudulent pretence is that but for the false pretence complainant would not ordinarily have parted with the money. It is, however, unclear what representation was made, either for visa or for books. 28. Also, prosecution failed to establish the accused received the payment. Accused disputed ever receiving any money or promised PW1 a visa for the USA. This is what transpired when accused was under cross-examination: “Q: You used the school fees payment and promised to send her to USA as a means to collect GHS600.00 from her parents, not so? - 12 - A: That is not true. Q: You also took GHS600.00 from Mary to acquire her a passport which you failed, not so? A: That is not true. Mary told this court that she acquired her own passport. 29. From the above, it is unclear to this court what GHS600.00 is prosecution seeking to prove? Also, regarding the passport, PW2 stated in his witness statement that accused admitted taking PW3’s passport in the investigation caution statement, i.e. Exhibit A. I have carefully read Exhibit A and I did not find any such admission. I, therefore, find the evidence of the prosecution improbable, see the case of Amartey v The State [1964] GLR 256 @ 295, SC. 30. In effect, I have no hesitation in concluding that prosecution was unable to prove beyond reasonable doubt that accused took GHS600.00 by means of false pretence to secure PW1 a visa to travel to the USA and I so hold. Accused is, therefore, acquitted and discharged in respect of count three. CONCLUSION 31. In sum, I hold that prosecution has failed to prove beyond reasonable doubt that accused falsely pretended to be a public officer or defrauded complainants by false pretence: contrary to sections 237 and 131 of the Criminal Offences Act, 1960 (Act 29). I hereby acquit and discharge the accused, forthwith. - 13 - 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 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 - 14 -