Republic Vrs Bobby Yawson [2022] GHACC 163 (10 October 2022)

IN THE CIRCUIT COURT ‘1’, ADENTAN, ACCRA, BEFORE HER HONOUR JUDGE DORA G. A. INKUMSAH ESHUN (MRS.), SITTING ON THURSDAY THE 10TH DAY OF NOVEMBER 2022 SUIT NO: D7/247/2021 THE REPUBLIC V. BOBBY YAWSON RULING ON WHETHER OR NOT THE PROSECUTION HAS MADE OUT A CASE SUFFICIENT FOR THE ACCUSED TO ANSWER The accused person is a 42-year-old businessman charged on 29th June 2021 with one count of fraudulent breach of trust contrary to section 128 of the Criminal and Other Offences Act, 1960 (Act 29) and a second count of defrauding by false pretences contrary to section 131(1) of Act 29. He pleaded “not guilty” to the charges and was granted bail in the sum of GH¢200,000 with three sureties who should be known to the police, to be justified in the bail sum, by the relieving judge. In the brief facts, the complainant, Mr. Emmanuel Carlos Arthur, and the accused person Charles Bobby Yawson, are both businessmen. The complainant stays at Kwabenya while the accused person stays at East Legon Hills in Accra. In July 2016, the complainant imported solar panels and batteries and contacted the accused to help him look for prospective buyers. The accused person told the complainant he had been awarded a contract to install a solar power system to support streetlights in Accra and pleaded with the complainant to supply him with some of the solar panels and batteries to execute the contract. Between July 2016 and February 2017, the complainant supplied the accused person with solar panels and batteries to the tune of GH¢145,800. The accused person paid the complainant GH¢46,000 leaving a balance of GH¢99,800. The accused person told the complainant he would pay the difference when he received payment for the contract but when the complainant demanded his money, the accused said he had not been paid. The complainant conducted his own investigations and he was told that the accused had been paid. When he confronted the accused person, the accused said he had used the money and pleaded with the complainant to give him time to pay him. After waiting for three years without being paid, the complainant reported the case to the police on 2nd September 2020. During investigations, the accused confirmed to the police that after he executed the contract, he was paid. He pleaded with the police to give him a month to refund the money, but failed to honour his promise. The accused was then charged with the offences after investigations. The prosecution produced two witnesses – the complainant, Emmanuel Carlos Arthur (PW1) and the investigator – Det. Chief Inspector Dzah Worlanyoh (PW2). PW1 tendered invoices from New Energy Ghana dated, a) 27th July 2016 in the amount of GH¢34,400 – Exhibit A, b) 17th November 2016 for GH¢1,600 – Exhibit A1, c) 10th February 2017 for GH¢35,800 – Exhibit A2, d) 12th February 2017 for GH¢32,000 – Exhibit A3. The accused person tendered the following through PW1, a) b) c) a bank statement from Golden Link Savings and Loans for the account of Walkstar Ghana Limited from 1st January 2017 to 17th June 2019 – Exhibits 1 – 1A, the complainant’s written account of money received and amounts outstanding dated 27th July 2016 showing a balance of GH¢99,800 – Exhibit 2, a typed table with amounts paid and due for panels and batteries showing a balance of GH¢95,900 – Exhibit 3. The investigator tendered; a) The investigation caution of the accused person dated 2nd September 2020 – Exhibits B and B1, and b) The charged caution statement of the accused person dated 9th September 2020 – Exhibit C. In section 174(1) of the Criminal and Other Offences Procedure Act, 1960 (Act 30): “At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused sufficiently to require the accused to make a defence, the court shall call on the accused to make their defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement” [Sarpong v. The Republic [1981] GLR 790]. The court shall now consider whether the prosecution has made out a case, sufficient for the accused person to answer. The issues the court must determine are whether the; a) ownership of the solar panels and batteries was invested in the accused person on behalf of the complainant, and b) accused person gained the consent of the complainant to give him the solar panels and batteries by a false representation. In section 127 of Act 29, “A person who commits a fraudulent breach of trust commits a second- degree felony”. The offence of fraudulent breach of trust is defined as dishonestly appropriating “…a thing, the ownership of which is invested in that person as a trustee on behalf of any person” [section 128 of Act 29]. PW1 testified that he informed the accused that he had imported solar panels and converter batteries in 2016 while he was looking for buyers. After some days, the accused told him he had been awarded a contract to install solar systems to support traffic lights in Accra. The accused promised to pay for the first consignment of panels and batteries upon delivery. However, after PW1 delivered items worth GH¢34,400 on 27th July 2016, the accused only paid GH¢4,000. On 17th November 2016, PW1 supplied the accused with additional panels and batteries in the amount of GH¢8,600. The accused paid GH¢6,000 leaving a balance of GH¢1,800. The accused paid GH¢40,000 for a supply worth GH¢70,800 on 10th February 2017 but he did not make any payment for the last consignment worth GH¢32,000 supplied on 12th February 2017. After repeated demands for his money, PW1 conducted his own investigations and was told the accused person had been paid. When he confronted the accused person, he admitted he had received the money but used it for another contract and promised to pay the balance of GH¢99,800 when he was paid. After the accused failed to pay him, PW1 reported the matter to the Kotobabi Police where the accused person failed to honour his promise to the police to pay the money in two weeks. PW1 admitted that the account in Exhibits 1 and 1A belongs to him. He received an amount of GH¢40,000 in that account on 3rd March 2017 for goods supplied in February 2017. He said he did not know that bank – the accused help him open that bank account because that is where the accused saves his money. The accused promised to pay for the goods in a couple of days but did not. When he finally called PW1 to come for the cheque, PW1 followed the accused to the bank where the account the cheque was paid into was opened. In cross-examination, PW1 insisted that he supplied 40 solar panels to the accused on 12th February 2017. PW1 testified that he brought the accused one sample solar panel that was not free and had to be paid for. PW1 testified that all the information about the amounts and products allegedly owed and supplied, was in the documents and invoices given to the accused. According to PW1, after the accused deposited GH¢40,000 in his account, the accused called the next day to borrow GH¢5,000 to travel to Nigeria. That was why he noted that the accused had paid GH¢35,000 for that transaction. The accused countered that the payment of GH¢35,000 was made on 10th February and not 3rd March, from the accused’s office before PW1 began supplying him with the items on the 10th of March 2019 invoice. The amount of GH¢40,000 was paid on 3rd March 2017 when PW1 sent a car to deliver the solar panels. PW1 testified that the accused did not pay for the items supplied until a month later in March when he called to say the cheque for GH¢40,000 was ready. According to PW1, he reported the accused to the Kotobabi Police station for non-payment of goods supplied, but he did not know that the batteries he picked up from the Kotobabi police station were faulty. Det. Chief Inspector Dzah Worlanyoh, the investigator, (PW2), testified that the case was referred to him for investigation on 2nd September 2020 while he was on duty at the Legon District CID. In his witness statement, PW2 repeated PW1’s averments and added that the accused was arrested with the help of the complainant. In his statement, the accused told the police he truly bought the solar panels and batteries from the complainant to execute his contract and made part payment to the complainant but after the batteries and panels were installed, they caused damage to the system. He informed the complainant who promised to replace the faulty batteries so he could complete the contract and pay the complainant after he was paid. However, the complainant failed to replace the batteries after taking some of them away. He therefore paid PW1 leaving a balance of GH¢20,000. PW2 testified that the accused could not support this claim with documents. The accused contended that because of the faulty batteries supplied by the complainant, he lost two machines valued at GH¢90,000 and asked PW2 whether he had investigated the truth of that matter – PW2 responded that when he asked the accused to produce the machines he never did. When the accused countered that the company has an office at Ashaley Botwe and asked whether PW2 knew where the office was located or whether he had investigated the company or the accused person, PW2 answered, “No, because my investigation was to investigate the accused person and not a company, as it was accused person who dealt personally with the complainant”. When the accused asked PW2 how he got involved in a crime since the money was paid by his company to the complainant, PW2 responded that it was the accused who collected the items from the complainant. The accused person asked PW2 why he called to negotiate with him in an audio the accused recorded if he had concluded investigating the crime and brought the case to court. PW2 responded that he did not know at which stage of the investigation the accused recorded the audio because he went into hiding after he was released on police enquiry bail, and “they” were all trying to get him to the police station to put him before the court. After considering the evidence, the court finds that the issues between the parties arise from a commercial contract. In the Sale of Goods Act, 1962 (Act 137), property in goods cannot be transferred to a buyer where the goods are not ascertained. Specific goods are goods identified and agreed upon at the time a contract of sale is made [section 81(1) of Act 137]. Ascertained goods are goods identified and agreed upon after a contract of sale is made [section 81(1) of Act 137]. In section 26(1) of Act 137 property in ascertained goods passes under a contract of sale when the parties intend it to pass. However, “Unless a different intention appears, the property in the goods passes under a contract of sale when they are delivered to the buyer” [section 26(2) of Act 137]. Having received delivery of the solar panels and batteries and made part payment for them, the court finds that property of the solar panels and batteries had already passed to the accused person. Therefore, it is not possible for the items to have been invested in the accused as a trustee for PW1 because PW1 did not continue to have ownership over them and did not intend to take them back after he delivered them to the accused person. There is also no evidence that the accused person dishonestly appropriated the solar panels and batteries as PW1 consented to sell them to the accused person under a contract. The second issue to be determined is whether the accused person gained the complainant’s consent to give him the solar panels and batteries by a false representation. A person who defrauds another person by a false pretence commits a second-degree felony [section 131(1) of Act 29; Republic v. Assibit (Philip) & Abuga Pele, Suit No. FTRM 122/14; Unreported, 23rd February 2018]. The offence is defined as obtaining the consent of another person to part with, or transfer the ownership of a thing, by means of a false pretence or by personation [section 132 of Act 29, Asiedu v. The Republic [1968] GLR 1]. The elements of the offence of defrauding by false pretences are that1; 1. 2. 3. The accused person made a false representation or personation by written, spoken, sign language or other means, The accused made the representation of the existence of a state of facts to obtain the consent of another person, The representation made by the accused was false or without the belief that it was true, and The accused caused the other person to part with or transfer the ownership of a thing because of the false representation. PW1 testified that the accused told him he needed the goods for a contract he had been given to install solar panels for traffic lights in Accra. PW2 testified that during investigations, he found that the accused was supplied with batteries and solar panels to the tune of GH¢145,800 between July 2016 and February 2017 but installed them for a house and not traffic lights as he told the complainant. The accused was paid in full for his contract, paid the complainant GH¢46,000 and failed to pay the balance of GH¢99,800. Investigations also revealed that when the accused was reported to the Kotobabi Police Station, he raised the issue of the faulty batteries. When PW1 requested that the batteries be returned, the accused person gave him only three. The accused also disputed the balance to be paid but failed to provide a receipt or documents to support his claim. The accused promised the District Crime Officer he would pay the balance in two weeks but failed to do so. The accused person objected to PW2’s evidence, stating that he knew Inspector Worlanyoh and there was a problem between them before this case. Around February 2016 the accused’s brother was arrested. When they got to the police station, PW2 said the accused had challenged him, so he unlawfully locked the accused up and the accused reported him to the Police Professional Standards Bureau (PIPS). When PW2 denied this allegation, the accused countered that PW2 was invited to go to PIPS in March 2016 but never showed up. The accused’s second objection was that PW2 was not the one that investigated the case and did not know much about the case. According to the accused person, PW2 did not take the accused’s statement and does not know anything about what he presented to the court because the investigation was done by one Sgt. Cobbinah. PW2 testified that although he had people who assisted him, he was the lead investigator in the case. PW2 cautioned the accused and when he travelled, Insp. Joseph Cobbinah charged the accused on his instructions. The court found that the accused’s investigation caution statement and charged caution statement were different. However, there was nothing to show that it was PW2 who took the investigation caution statement, because there was no name next to the signature. The accused contended that Sgt Cobbinah wrote both statements because he did not give any statement written by Insp. Dzah. The statement was written in English, read back to him in English and a gentleman was present when the statement was being taken. The accused sought to tender an audio recording of a conversation between him and PW2 to show that PW2 was not abreast with the case. When the prosecution objected to the tendering of the video, the court ruled that considering the audio recording was relevant to the prosecution of the alleged crimes against the accused person and the accused person’s freedom was at stake, the audio recording was admissible to enable the accused’s right to have adequate facilities for the preparation of his defence under articles 19(2)(3) and 18(2) of the 1992 Constitution of Ghana and the principles in Raphael Cubagee v. Michael Yeboah Asare & Ors and The Republic v. Kwame Amponsah & 4 Ors (Suit No. J6/01/2018) The accused stated that from the beginning of the audio he could be heard asking for the time he should get to court because the case was in court. PW2 told him he was in the High Court. In the audio recording, the accused is heard asking the prosecutor whether that day was the court date, and the prosecutor who initially did not remember the date, finally agreed that was the date. The prosecutor asked the accused person to come and sit down with the complainant to resolve the matter. The accused person, very upset, informed the prosecutor that his machines worth GH¢100,000 that were damaged are still in his possession – however, he has not taken the complainant on. He expressed his belief that the complainant was taking advantage of him and told the prosecutor he would come to the police station to try to resolve the case. PW2 testified that PW1 informed him that the accused person fraudulently took GH¢99,800 from him in respect of solar panels and converter batteries worth GH¢145,800 that he provided the accused. He admitted that he had never come across Exhibits 1 and 1A during his investigation and he did not file Exhibit 2 as part of the evidence in court. He further testified that during his investigations, the accused did not tell him where he used the solar panels and converter batteries to work but admitted collecting them from PW1. When the accused stated, “Point of correction – it is not converter, it is inverter”, PW2 testified, “My lady it was a solar panel and a battery inverter or converter battery, I’m not sure.” The accused person denied PW2’s assertion that the accused person stated in his investigation caution statement and before the District Crime Officer that, after he completed the contract he was using the items for, he was fully paid. In Exhibit B, the accused stated in the English language that the complainant offered to supply him with solar panels and batteries for a contract. PW1 supplied him with 62 panels and 30 batteries. When the batteries were fixed, they realized the polarities of the battery terminals had changed and blown two of the machines they were connected to. The accused told PW1, who came to take some of the batteries away. The accused had to go and buy new machines for the customer. In October 2017, the accused told PW1 to give him some time to pay him his money. Recently, when PW1 called about the money, the accused told him he was expecting some money from Tamale and would pay him. Things have been difficult for the accused recently and although he used the panels and batteries, he has not yet been paid. He paid the complainant some money for some of the items. However, the amount owed is not the amount claimed by PW1. The accused stated that he made some payments to PW1 through the bank, and he would have to go through the receipts of all the payments to verify the amount. In Exhibit C, the accused stated that he imports and installs solar panel systems. PW1 contacted him in 2017 and told him he had seen an advertisement on television – he had some solar panels and batteries he imported for sale but did not have the market, so he asked the accused to help him sell the items as he had the market. PW1 delivered the items bit by bit and the accused paid him as and when the products were brought to him. In 2018 he needed some panels and batteries for a project so he contacted PW1 who said he could only give him 30 batteries and 30 panels at a cost he could not remember. About 15 of the batteries were faulty and caused damage to two 30KVA solar inverted machines. The cost of each machine was GH¢46,000 and the damaged machines are still with the accused person. The accused admitted he owes PW1 some money but stated that PW1 also owes him the cost of the two 30KVA solar inverted machines that were damaged because of the 15 faulty batteries PW1 gave him for the project. The receipts and invoices in Exhibit A series show that, out of a total cost of GH¢103,800 for goods supplied between 27th July 2016 to 12th February 2017, PW1 recorded a payment of GH¢4,000 on Exhibit A (27th July 2016) and noted on Exhibit A2 (10th February 2017) that, “The 10th February 2017, he brought (28) batteries and (30) panels in which I have pictures to support it”. In Exhibit 2, a statement written by PW1, he admits the accused paid him GH¢4,000 for the 27th July 2016 invoice; GH¢7,000 for the 17th November 2016 invoice; and GH¢35,000 for the 10th February 20.. [year not complete] invoice – the balance stated is GH¢99,800. The amount of GH¢40,000 paid to “Emmanuel Carlos Arthur” on 3rd March 2017 in Exhibit 1 is not recorded. In Exhibit 3, the accused tendered a typed statement of a total of GH¢111,800 due with an amount of GH¢95,900 paid, including an amount of GH¢9,900 stated for 5 returned batteries, leaving “arrears” of GH¢15,900. A calculation of the amounts stated gives the following results – Total Amount Due: GH¢113,000; Amount Paid: GH¢95,900 with the following Balance Due: GH¢17,100. In section 11(2) of the Evidence Act, 1975 (NRCD 323), the burden of producing evidence for the prosecution of a criminal action as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact beyond a reasonable doubt. The standard of proof required when the prosecution is making its case was discussed in the case of Logan and Laverick v. The Republic [2007-2008] SCGLR 762 as follows: Section 173 is concerned with summary trials where the judge decides both questions of law and fact. It is for the judge in a summary trial to weigh the evidence, and then decide whether from the facts proved, the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if un-contradicted will justify a conviction… where therefore, the evidence adduced on behalf of the prosecution fails to take the case out of the realm of conjecture, the evidence is best described as ‘insufficient’. It is the type of evidence which because it cannot convince, cannot be believed, and therefore is incapable of sustaining conviction. To make a case sufficiently against the accused person on the charge of defrauding by false pretences, the prosecution must show that; 1. 2. 3. 4. The accused person made a false representation or personation by written, spoken, sign language or other means to the complainant, The accused made the representation of the existence of a state of facts to obtain the consent of the complainant, The representation made by the accused was false or without the belief that it was true, and The accused caused the complainant to part with or transfer the ownership of his money or item because of the false representation. The court finds from the evidence that the prosecution has not adduced sufficient evidence to show that the accused made a false representation to PW1 to get PW1 to part with the solar batteries. Indeed, PW1 and PW2’s testimony and Exhibits B and C show that the accused took delivery of the items to use them for a contract and made a loss on the contract because of damage caused by some faulty batteries PW1 supplied. Whether the contract was for streetlights in Accra or a house is not material as the evidence and facts clearly show that there was a contract. The amount of GH¢5,000 the accused allegedly took from PW1 when he was travelling to Nigeria was not included in the charges and is deemed as a loan taken from a friend, from PW1’s evidence. The court finds therefore, that the prosecution has failed to prove the elements of defrauding by false pretences against the accused person. The Supreme Court held in Hemans v. Cofie [1977-1978] 1 GLR 144 that where; “…one obtains goods on credit and defaults in paying or receives money from people to do some work but fails to do the work, the default in each case amounts to a breach of the contract, the remedy of which lies in the civil courts and not the police station. Neither situation amounts to fraud.” The Supreme Court further said, “We do not know of any law which reduces the police to debt-collectors instead of protectors of the life and property of the citizenry.” The appropriate forum to determine the issues arising out of the contract between the parties and the set-off claimed by the accused person is the civil courts. In the State v. Ali Kassena [1962] 1 GLR 144 it was held that; “Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations. A submission that there is no case to answer may properly be made and upheld, a) when there has been no evidence to prove an essential element in the alleged offence; b) when the evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.” The court finds that the evidence of the prosecution, has been discredited by the accused person under cross-examination and is insufficient to prove the elements of the offences the accused person has been charged with. The accused person Charles Bobby Yawson, is therefore acquitted and discharged of the offences of fraudulent breach of trust contrary to section 128 and defrauding Emmanuel Carlos Arthur of solar panels and batteries worth GH¢99,800 contrary to section 131(1) of the Criminal and Other Offences Act, 1960 (Act 29). The sureties of the accused person are discharged, and the Registrar shall return the land documents filed to justify the accused’s bail, to the relevant surety. (SGD) DORA G. A. INKUMSAH ESHUN CIRCUIT JUDGE Ruling – Whether Prosecution Has Made Out a Case Yawson Nov 10, 2022 The Republic v. Bobby Page 12 12