The Republic Vrs Mawulolo [2022] GHACC 101 (3 November 2022)

IN THE CIRCUIT COURT OF JUSTICE HELD AT DENU ON TUESDAY THE 30TH NOVEMBER, 2022 BEFORE HIS HONOUR JOSEPH OFOSU BEHOME ESQUIRE -CIRCUIT COURT JUDGE COURT CASE NO. VR/CT/DE/CC.167/2022 THE REPUBLIC VRS: ABU MAWULOLO ACCUSED PERSON ………. … ABSENT. C/INSPECTOR SETH APPAU FOR PROSECUTION … PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON J U D G M E N T The Accused person stands charged before this Court with the following offences: i. Forgery: Contrary to Section 159 of the Criminal and other Offences Act, (Act 29) 1960. ii. Pretending to be Public Officer: Contrary to Section 237 of the Criminal and other Offences Act, (Act 29) 1960. The accused person pleaded not guilty to the charge of forgery after same was read and explained to him in Ewe dialect but pleaded guilty for the offence of pretending to be a public officer but sentence was deferred. BRIEF FACTS OF THE CASE The facts of the case are that, the complainant in this case WO1, Elizabeth Mensah is a retired military officer and lives at Santa Maria in Accra. The accused Abu Mawulolo is an herbalist and lives at Wudoaba a suburb of Aflao. The Complainant built a four-bedroom house at Rainbow a suburb of Aflao and rented out to Police personnel. Later, the accused met the complainant and fell in love with her which resulted into marriage. Accused managed to convince the complainant to vacate the Police personnel from the house. The complainant who is not permanent in Aflao complied. In the year 2017, the complainant was down with stroke in Accra hence her inability to visit Aflao. Accused took advantage, forged her signature to claim that the complainant sold the said house to One Sani Abdulai at a price of 14,000.00 CFA which he the accused witness became suspicious and enquire from the complainant whether she sold her house which she told her that she never sold the house or signed any house sale document. On 14/12/2021, the complainant and witness came to Aflao and reported the case to the Police and accused was arrested. At his house at Wudoaba, Police saw pictures of accused dressed in a full Military Uniform, hanged on his wall inside his house and one also with the complainant in uniform which Police became suspicious of impersonation and arrested him. Accused denied the offence of forgery and said the complainant really sold the house sign but admitted the offence of pretending to be a public officer. He claimed it was a photographer who photoshoot for him, accepted and hang same on the wall in his house. However, he could not assist Police to the said buyer Sani Abdulai and the said photographer. After investigation, he was charged with the offences as contained in the charge sheet and now before this Honourable Court. The prosecution called three (3) witness in support of its case. PW1, Complainant herein and victim confirmed the facts as presented by prosecution. PW2, Veronica Mensah asserts she is a daughter to complainant. She avers Complainant and accused are married couples and complainant has four (4) room house before she got married to accused. PW2 says, Complainant initially rented out this said house to police personnel at Aflao but accused convinced her to eject them. PW2, contends she was one day cleaning the mother’s room upon the latter’s request when she chances on a sale document of the complainant’s 4 bed room house located at Rainbow-Aflao. She avers following a closer scrutiny of the document she realized that the purported signature of complainant was not hers again her witness one Tsotso Tengey was not known to her or was she a relative and therefore she became sceptic of the whole affair. PW2, says this revelation dawn on her in 2017 when the mother was down with a mild stroke and she was with her and attending to her. PW2, says, she went to the mother and inquired about the sale and she was completely taken aback saying she has never sold any house to any Sani Abdulai. PW2, contends she followed up to Aflao to the house and met new tenants who say complainant’s husband is their lordlord. She avers she went back to Accra and informed complainant and they came and lodged a complaint with the police Aflao. PW3, (D/C/Inspector John Annor) investigated the case. PW3 relied on his witness statement together with the attached exhibits. THE DEFENCE OF THE ACCUSED PERSON In opening his defence, the Accused person testified and called one witness as DW1. The accused person told the Court that he is a herbalist and complainant is his wedded wife. Accused contends complainant once fell sick and he took her to 37 Military Hospital and she recovered and shortly afterwards developed an eye problem and she entreated him to look for purchaser of her (4) four bed room house at Rainbow-Aflao to cater for herself. Accused person avers he then got Sani Abdulai, a Nigerian but residing in Lome- Togo who bought the house at 14,000.00 CFA- paying by two equal instalments. He says, complainant then prepared the sale document and after the second and the last payment both parties together with their witnesses, signed the document whilst he witnessed for the complainant. Accused says he has been collecting the rent from the house ever since but one Ahage a brother to the purchaser has been coming for same. He says however that since the issue of the alleged forged sale document cropped up Sani Abdulai, has been ill and has gone back to Nigeria. He denied having forged complainant’s signature to effect the sale of the latter’s house. He tendered in evidence a letter purported to have been written by complainant mandating him to looking for a purchaser as Exhibit “AM 1” and purchase receipt, Exhibit “AM” and thereafter called a witness. DW1, (Tsotso Tengey) testified as a witness for the accused person. She told the Court that she is a trader and resides in Accra and knows both complainant and accused. She contends on the 3rd of August, 2017 complainant called her on phone to proceed to her house the following day. DW1, avers she attended to the call and met accused and another person, who happened to be introduced to her as Sani Abdulai, and the purchaser of complainant’s house at Rainbow-Aflao. DW1 avers complainant informed her of her intention to dispose off her house and was soliciting the hand of she DW1 and accused to witness same for her. DW1, testified that complainant told her she had already received seven million CFA from, Sani Abdulai the purchaser herein and that the difference seven million was then paid in her presence and the signing of the sale document was effected and she and accused then witness for the complainant. DW1 says, in appreciation of her presence and witnessing for complainant, the latter gave her two pieces of cloth, one for her husband, Dosu Kanyi and the other for her good self. She thereafter tendered the sale document having been marked Exhibits “TT”. The legal issue for determination after the end of the trial is whether or not the accused, Abu Mawulolo forged the signature of complainant on the sale document to effect the sale of the complainant’s house to Sani Abdulai. The common Law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2) © of the 1992 constitution which reads: “A person charged with a criminal offence shall… © be presumed to be innocent until he is proved or has pleaded guilty." 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 a person was guilty, has been provided for in Sections 13 and 15 of the 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 him to prove his innocence. At best he can only raise a doubt in case of the prosecution. But the doubt must be real and not fanciful. In Republic vrs. Adu-Boahen and Another [1993-94] 2 GLR 324-342 per Kpegah J SC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person. When a plea of not guilty is voluntarily entered by an accused or entered for him by the trial Court. The burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. As to what constitutes Forgery, Obeng Gyebi vrs. The Republic ]2021] DLSC, 10691 at pages 6-7 Kulendi JSC has this to say”: “………a piece of writing or document is considered a forgery where such writing or document “tells a lie about itself” as to who made it, or altered it after it had been made, when it was made; and where it was made and where it was made; with the intention that it should be believed as having been so made or altered. Sections 158-164 of the Criminal Offences Act, 1960 (Act 29), provides for this offence. “The prosecution under Act 29 Section 159, must prove that the accused has made or altered a document or part of it with intent to make it appears as genuine and with the further intent to deceive another person or injure another person or evade the requirements of the law or commit a crime or facilitate the commission of crime. The definitions also indicate that two alternative intents are contemplated, and the presence of any one of them will constitute the offence of forgery. The intention must be to defraud or to injure another person. The intention to defraud implies the obtaining by false representation of some material or financial gain from someone, while the intent to injure may mean simply that some person may act to his detriment or loss. The accused person herein has consistently denied that he forged the complainant’s signature. DW1, (Tsotso) an alleged witness to complainant on the alleged purchase document also attest complainant voluntarily and willingly sold the instant house and signed the purchase document accordingly. PW1, who happened to uncover the purchase document attest that the signature on the document purported to be that of complainant is different from all her signatures that she knows and has seen. PW3, the investigator herein testifies that accused person forged the complainant’s signature he tendered samples of the complaint’s signature out of which he made the deductions for the Court’s perusal. For instance, there is a dis-similarity in complainant’s signature on the document “Declaration of Movable and Immovable Property of a Testator or An Intestate In the High Court of Ghana to complainant’s signature on the alleged Purchase document. “If the Court is entitled to act on a suspicion of grave impropriety”, it should be satisfied that the suspicion is well founded and that it has a solid and substantial basis. A mere feeling that something might be wrong should not be, and in my opinion is not enough”. See the South African case of Irvin & Johnson Ltd. Vrs. Gelcer & C0. Ltd. [1958] 2 S. A. L. R. 59 at 62-63. In the instant case, complainant is alive and she asserts I have not signed any document to convey anything. From the foregoing it is seen that the alleged suspicion of PW2 (Veronica Mensah) has been established by solid and compelling evidence and not conjecture. In furtherance to the above, the cross-examination between the accused person Abu Mawulolo and Prosecutor on one part and DW1 (Tsotso Tengey) and the Prosecutor on another side tells how incredible the defence is, the accused person in particular. Prosecution to the Accused Person Q. In paragraph 7 of your witness statement you stated that it was complainant who prepared the sale document. A. It was the buyer who rather prepared it and we went to Accra to sign same. Q. Were you together as couples when the complainant built the house? A. No, she built it long before the marriage. Q. Were there any siblings or relative of the complainant around when the document was allegedly signed. A. Yes, her eldest sister’s daughter was around. Q. Mention the name of the said person. A. Tengeh Tsotso. Q. Where is the said Tsotso now?” A. Accra, in the complainant’s house. Q. I am putting it to you that the said Tsotso is living with you now at Wudoaba. A. She is not but has been coming to me in the house at Wudoaba. Q. That is not true. A. It is. Q. Who is now in charge of the alleged Sani Abdulai’s house and receiving rent? A. I am the one who takes the rent. Q. I am putting it to you that you are the alleged purchaser. A. Not true. Q. The rent so collected from the house is used by you yourself. A. When I received the money, I send it to the person who bought the house. Q. By what means do you send the money. A. The younger sister and the younger brother of the purchaser have been coming for the money. Q. Mention the name of the younger sister who has been coming for the rent. A. Pastor Ahage. Q. Is the said Ahage having a Ghanaian background? A. The person is a Togolese, it is not a family but a friend. Q. I am putting it to you that you are not truthful to the Court. A. I am telling the truth. Q. I am finally putting it to you that you did forge the signature of Elizebeth Mensah to sell her house to the said Abdulai. A. That is not true. Accused person says in paragraph 7 of his witness statement that complainant prepared the sale document and after receipt of the consideration they respectively sign. However, he tells the Court that it is rather the purchaser who prepared same and they went to Accra to sign during a cross-examination. Also, accused person avers from the onset that though Sani has purchased the complainants house he still collects rent and remit same to Sani through her younger sister and brother. When asked to mention the name of the sister, he ……….. mentions the name of a man when the questions were mounting on him, he tells the Court that even the said Ahage that he mentioned as a brother is a mere friend and a Togolese National. In the case of Brempong II vrs. The Republic [1995-96] 1 GLR 350 per holding 5, the Court of Appeal stated that: “In law, for conflicts and inconsistencies in evidence to influence a decision, they had to be material and also destroy proof of an element of the offence or totally discredit the witnesses so as to make their testimony unreliable….” Also, in the case of Kuo Den alias Sobti vrs. The Republic [1989-90] GLR 203, the Supreme Court in a charge of murder explained at page 213 that where there are material inconsistencies in the defence put up by the accused person, there was sufficient justification for the jury to reject the defence. The above inconsistencies in the testimony of the accused person are material and thus totally discredited him and therefore unreliable. This also ensued between Prosecution and DW1. Q. Do you know the complainant, Elizabeth Mensah? A. Yes. Q. How do you know her? A. Her mother and my grandmother are from the same father but different mothers. Q. How do you know the accused person also? A. I got to know Abu Mawulolo through the complainant. Q. What relation do you have with the accused now? A. I take him as my father and my sister’s husband. Q. I am suggesting to you that you and the accused are now living together as couples at Wudoaba. A. That is not true. Q. I am putting it to you that it is because you are now living with accused as couples that is why you are here to bear witness to his acting. A. Not true. Q. Do you know one Sani Abdulai? A. Yes. Q. Do you know one Pastor Ahage Kwame? A. I do not know him. Q. Do you know one Tawo Abubakar? A. No. Q. Who is in charge of the house that has been allegedly sold? A. The accused herein. Q. Is Papa Abu the owner of the house or someone else. A. Sani is the owner of the house. Q. who is now collecting the rent from the house. A. Papa Abu. Q. Where is Sani now? A. When he came to buy the house, he alleged he is in Togo and when the case cropped up and accused called him, he said he is sick and has gone to Nigeria. Q. Who makes use of the rent proceeds now? A. The house owner’s siblings come for the money. Q. Mention one of the siblings who comes for the money. A. Papa Abu told me himself. Q. That means you yourself have not seen any of the siblings taking the money. A. I have not seen any of them. Q. I put it to you that all that you are saying before the Court is hearsay. A. No. Q. I am further putting it to you that you together with the accused and the people mentioned on the alleged document forged same to effect the alleged sale. Strangely enough, the accused person could not call Sani, the alleged purchaser to testify for the whole seven (7) months that the case stalled in Court and neither is any witness for the Purchaser called, that those who witnessed the purchase document. The Supreme Court in a unanimous decision in the case of Gligah & Anor vrs. The Republic [2010] 3 SCGLR 870, per holding 5, held that: “The Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case”. Having proved beyond reasonable doubt that accused person herein made the purchase document by forging complainant’s signature to defraud her, I am fully satisfied of the guilt of the accused for the crime charged. I find ABU MAWULOLO guilty of the offences charged and I accordingly convict him. BY COURT: In sentencing the accused person, I take into consideration the fact that accused is so advance in age, 99 but the callous plot executed by accused person with no sympathy for the stroke ridden wife, and for having no remorse and also to serve as a deterrent to others. The accused person will pay a fine of 500 penalty units or in default 3 years imprisonment for Count 1. Count 2: Accused is sentence to pay a fine of 300 penalty units or in default 3 years imprisonment. The sentences are to run consecutively. The forgery papers prepared by accused covering the house is cancelled forthwith and the house transferred to the ownership of WO1 Elizabeth Mensah. (SGD) CIRCUIT COURT JUDGE H/H JOSEPH OFOSU BEHOME 12