REPUBLIC VRS AMPONSAH & 6 OTHERS (H2/9/20) [2021] GHACA 45 (6 May 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - S. DZAMEFE, JA (PRESIDING) N. AGBEVOR, JA B. MENSAH, JA Criminal Appeal Suit No: H2/9/20 6th May, 2021 THE REPUBLIC - RESPONDENT VRS. APPELLANT - APPELLANT 1. KWAME AMPONSAH 2. DR. CHRISTOPHER OBAREKI - 3. EUGENIE UMJUNDZI 4. DANIEL ANDREANI (AT LARGE) 5. ADAMS KABA (AT LARGE) 6. UMAR (AT LARGE) 7. FRANK YEBOAH @ KWAME HORGLE (AT LARGE) JUDGMENT DZAMEFE, JA The accused persons were charged with three counts of conspiracy to commit crime namely, defrauding by False Pretence contrary to Sections 23(1) and 131 of the Criminal Offences Act 1960, Act 29, Defrauding by False Pretence contrary to Section 131 of the Criminal Offences Act, 1960 Act 29 and Money Laundering contrary to Section 1 of the Anti-Money Laundering Act 2008 Act 749. COUNT ONE STATEMENT OF OFFENCE Conspiracy to commit crime namely: defrauding by false pretence contrary to Section 23(1) and 131 of the Criminal Offences Act 1960, Act 29. PARTICULARS OF OFFENCE 1. KWAME AMPONSAH Businessman, 2. DR. CHRISTOPHER OBAREKI Businessman, 3. EUGENIE UMJUNDZI Businesswoman, 4. DANIELE ANDREANI (at large), 5. ADAMS KABA (at large), 6. UMAR (at large), 7. FRANK YEBOAH @ KWAME HORGLE on or about the 22nd day of July of 2015 in Accra, in the Greater Accra Region, acted together with a common purpose to defraud Di Lorenzo Roberto Maria by means of false pretence. COUNT TWO STATEMENT OF OFFENCE Defrauding by false pretence contrary to Section 131 of the Criminal Offences Act 1960, Act 29. PARTICULARS OF OFFENCE 1. KWAME AMPONSAH Businessman, 2. DR. CHRISTOPHER OBAREKI Businessman, 3. EUGENIE UMJUNDZI Businesswoman, 4. DANIELE ANDREANI (at large), 5. ADAMS KABA (at large), 6. UMAR (at large), 7. FRANK YEBOAH @ KWAME HORGLE on or about the 22nd day of July of 2015 in Accra, in the Greater Accra Region, by means of false pretence and with intent to defraud obtained the consent of Di Lorenzo Roberto Maria to part with two hundred and sixteen thousand US dollars ($216,000) under the pretext of offering him gold for sale, a representation you knew at the time of making to be false. COUNT THREE STATEMENT OF OFFENCE Money Laundering contrary to Section 1 of the Anti-Money Laundering Act, 2008, Act 749 as amended. PARTICULARS OF OFFENCE 1. KWAME AMPONSAH Businessman, 2. DR. CHRISTOPHER OBAREKI Businessman, on or about the 22nd day of July of 2015 in Accra, in the Greater Accra Region within the jurisdiction of this court by means of a false pretence acquired two hundred and sixteen thousand US dollars ($216,000). FACTS The facts as given by the prosecution are that, the complainant Roberto Maria Di Lorenzo is an Italian Businessman and the Director of DLR Finance Limited based in London. On 23rd July 2015, a business partner informed him that the 4th accused Daniele Andreani an Italian national said he had gold for sale in Ghana. The complainant was therefore assisted to travel to Ghana by 1st accused Kwame Amponsah who signed a letter to the Ghana Immigration Service as the Managing Director of a company by name Kwaglo Ghana Limited and the 5th accused Adams Kaba who also signed a letter to the Ghana High Commission in Italy as the managing Director of Ocean Link Mining Limited. On arrival the complainant was met at the Airport by Eugenie Umukunzi 3rd accused, 4th accused and Umar 6th accused. The complainant was then introduced to 5th accused and 6th accused as the Directors of Ocean Link Mining. After some discussions a contract for the supply of 200kg and 1500kg of gold was signed, with the complainant and 5th accused signing on behalf of their respective companies. The 4th and 5th accused then took the complainant to Bar Purity, the company which would ship the gold to complainant’s address. At Bar Purity, the complainant met with the 1st accused who directed that as part of the transaction, the complainant opens what he called “metal account” with Bar Purity which was done and a total of two hundred and sixteen thousand dollars ($216,000.00) was deposited into it by the complainant for the purposes of shipment fees, insurance, tax, legal documentation and other logistical expenses. 1st accused then demanded the complainant to pay twenty-four thousand dollars (USD 24,000) to Standard Express Security Company as cost of the storage of 200kg of gold even though that was not part of the signed agreement and that was done. Complainant was then taken to the HFC Bank Ridge Branch by 7th and 5th accused to view some metal they kept in the bank’s vault as gold. 1st accused bought 2kg of gold from the metal account with Bar Purity and passed it off as part of the gold in the vault and shipping same to a refinery of complainant’s choice at Dubai for further assaying. The result proved it was pure gold even though complainant was not given the gold. The 6th accused then asked the complainant to make a further deposit of three million dollars ($3million) before the rest of the 198kgs could be shipped even though that was contrary to the agreement signed. When the complainant refused to make the payment, the 6th accused then presented some four gentlemen to the complainant as Miners who had custody of the gold and he had to pay them one thousand, two hundred dollars ($1,200.00) as their transport fare from the mine site and a further two thousand cedis (Gh¢2000.00) paid through the 6th accused as enticement fee for them to release the gold. 1st accused advised and with the consent of the complainant, paid the 3rd accused, twenty thousand dollars ($20,000.00) for the release of a quantity of gold in a box supposedly being kept with some security company which was never supplied the complainant. Sensing fraud the complainant then made a report to the police. 1st and 2nd accused indicated that their company Bar Purity was only contracted to ship gold to the complainant’s address by Ocean Link Mining Limited. The 3rd accused also claimed she only worked as a broker for Ocean Link and got the complainant for the sellers and that she did not receive any money from Bar Purity on behalf of the complainant. She however admits knowing the 5th and 6th accused persons as the owners of the gold and was just helping them to sell. Police investigation however discovered that A1, A2 and A7 are the same people behind Bar Purity Ghana Limited, Standard Express Security and Kwaglo Ghana Limited. The 1st accused however created the impression that they were separate entities and that Kwaglo was just contracted to do the shipment although in the agreement signed by the parties, Bar Purity was supposed to do the shipping. A1 is also the Director of Standard Express Ghana Limited the security company allegedly keeping the gold and that they work in concert with a host of others to facilitate their criminal trade. PLEA Count One 1A 2A - - Not Guilty Not Guilty Count Two 1A 2A - - Not Guilty Not Guilty Count Three 1A 2A - - Not Guilty Not Guilty Prosecution to establish its case called two witnesses to testify for the republic. PW1 is Mario Carmine Pugliese, who does humanitarian assistance in villages. He said he met the complainant Roberto De Lorenzo when he needed some assistance from him in course of his gold transaction. Complainant approached him for assistance because according to him, he was having difficulty with Bar Purity, 1st accused and 2nd accused to ship 200 kilos of gold to its destination. Complainant asked him to look at the contract between the seller and himself and the DLR Finance Limited which he represents. Upon reviewing the documents, he PW1 felt there were too many factors that showed fraudulent or not realistic things. According to the witness, the first part of the contract showed that 1,500 kilos of gold will be shipped in three tranches of 500 kilos each and the second contract of 200 kilos was to be shipped first. Witness said “from my experience in Ghana for six years and my knowledge of gold mining, these amounts are outrageous”. Again he questioned what was stated in the contract that 15% discount gross which is before expenses from the London market price and showed 12% as the net meaning 3% for taxes, paper work, shipping and all other costs. The contract showed that Ocean Link Mining Ghana Limited was the seller of the gold but reviewing the contract, it shows Bar Purity Ghana Limited as the sellers banking information. At this point when he realized that this was not correct he and the complainant went to the Italian Embassy in Accra to report the matter. The Embassy officials after listening to them directed them to the police Headquarters Accra to go make a report. They made the report to one CID Investigator Charles Adaba. Charles Adaba immediately called the 1st accused to report at the CID Headquarters and on his arrival and after some discussions between them, he was arrested. He made a statement to police. He said three days after, they were all invited by Charles Adaba and they were asked to go to Bar Purity, East Legon to meet the 1st and 2nd accused persons. In the 2nd accused’s office, he became aggressive towards them and said they should deposit a further $3 million with Bar Purity. At that point he PW1 requested for a refund of all the money that was wired to his bank account in Ghana back to complainant and DLR Finance. The 2nd accused got more aggressive and threatened to get them arrested because they had no licence to buy gold. The 2nd accused insisted if they do not deposit the $3million, the gold will not be shipped to them and also he will call his Interpol and police friends to arrest them. He said the following day they went back to the CID Headquarters to report the experience at Bar Purity to Charles Adaba who advised them this was purely a civil case so they should find a lawyer to assist them. He said at the end of the day no gold was ever shipped to the complainant – [page 45 ROA]. The witness also said a metal account was opened for DLR Finance at Bar Purity and 200,000 Euros (USD216,000) deposited in it. The witness said the metal account was to pay for evaluation, taxes, shipping, completely up to the refinery or to the destination of the DLR Roberto De Lorenzo. This amount was also not returned to the complainant. In cross examination the witness admitted he was not there when the contract was signed but complainant approached him for assistance in August 2015. In cross examination he was asked; - Q - From what you have read, 2 kilos of gold was shipped to the preferred choice of Roberto De Lorence, was that right. A - That is correct – [page 48 ROA] The witness said this is true but the 3rd accused represented the 1st and 2nd accused and Bar Purity in Dubai where the 2 kilos of gold was refined for trial run and at the end of the day the proceeds went to the 3rd accused and not the complainant who was then in Ghana. He did admit this 2 kilos of gold were shipped before he got into the matter. In cross examination he was asked; - Q - Were you shown any document that show that the money for the 2 kilos of gold shipped to the designated address of DLR Finance was collected by 3rd accused. A Q A Q - - - - No, I did not see any document from 3rd accused Kindly have a look at this documents, could you read the name of the owner of the assay report? DLR Finance Limited So the gold was sent to be assayed for DLR Finance is that right. A - That is what it shows here but the mandate 3rd accused handled this transaction. This is the first time I have ever seen this document. Counsel for the accused suggested to the witness that the complainant after paying the money into the metal account with Bar Purity, again requested for some which was given back to him. In cross examination this transpired; - Q - Kindly look at this documents, have you ever seen this document. Yes Are the signatures of Mr. Roberto acknowledging receipt A Q - - of monies. A - This is his signature but it was only two amounts [page 49 ROA] Q - When these monies were given to Roberto, he signed for it, is that right Yes And every money that Roberto paid, he was given a receipt, A Q - - is that right. A - That is correct. According to the witness, the monies that the complainant received from Bar Purity, he paid them to a company called Standard Express Security Ghana, which does not exist [page 50 of ROA]. The witness alleged that 1st accused who is a shareholder/director of Bar Purity took the complainant to HFC bank to show him the alleged gold and this was brought to Bar Purity to evaluate to prove they have gold. Asked in cross examination; - Q - All what you are saying were you present when it was taking place. A - No, I was not present going to the bank but I did my investigations after – [page 50 ROA] The witness said not satisfied with Charles Adaba saying the case was a civil matter, he petitioned the Inspector General of Police (IGP) and the Attorney General on 22nd March 2016 and 31st March 2016 respectively. Asked in cross examination Q A - - Did Roberto tell you the amount he signed for He showed me 30,000 dollars on one receipt and 20,000 for the second receipt – [page 51 ROA] Q - So you agree with me that you were not present when all these transactions between Bar Purity and Roberto occurred. A - I was not present when these documents were signed nor the transactions. Q - So you agree with me that you were not present when the transaction between Bar Purity and Roberto took place. A Q A Q - - - - The transaction in giving these money, I was not present How many kilograms of gold were you expecting to be shipped to Roberto. 200 kilograms of gold How much money had Roberto paid for the 200 kilograms of gold. A - Roberto DLR transferred 200,000 Euros, which will take care of expenses, taxes, shipping and the work and once the 200 kilograms arrived at DLR destination, Roberto when final assay and smelting was done at the Refinery, would pay for the gold received from the assay report – [page 52 ROA] Q - So you said the 200,000 Euros that was paid was not for the price of the gold A - That is correct, it was fees which amount to be 3% which is about 2% higher and other companies like theirs, like Bar Purity and whatever the cost were, the balance would be applied for purchasing the gold by the difference according to the contract. Q - Could you tell the court who was supposed to buy the 200 kilograms of gold and ship to for Roberto A Q - - Robert De Lorenzo DLR Finance was the buyer Could you tell the court the cost of the 200 kilos of gold that Roberto was expecting. A - At the time of the market, the going price on the market was approximately USD$40,000 per kilo for 24 carats and there was a discount for the purity of the gold of 15% gross. Q - You agree with me that the 200 kilos of gold could cost at least not less than USD3million is that right. A - That is correct – [page 53 ROA] The witness did admit that two kilos of gold was shipped to Dubai, to an assay of Roberto’s choice for test run. Asked in cross-examination; - Q - Did Roberto tell you that he collected monies totaling USD100,000 from Bar Purity from the total amount of USD200,000 that he deposited. A - That is not true, he collected USD50,000 – [page 55 ROA] The witness states that upon reading the contract signed, it is very clear, simple and straight forward, that 200 kilos of gold will be shipped C. I. F. He admitted he was not present when the terms of the contract were discussed nor was he present when the complainant signed for monies from Bar Purity. He was also not present when the terms and conditions under which the 2 kilos of gold were sent to Dubai were discussed. He agreed all that he said in court were what he heard and what he was told – [page 56 ROA]. He said he was present when Bar Purity said if complainant does not deposit USD3million the gold cannot be shipped to him but he said that was not part of the agreement. Detective Chief Inspector, George Kinsley Adu of the Legon District Police Headquarters told the court he investigated another case of defrauding by False pretence and conspiracy involving the accused persons before this case was reported. While investigating his case involving the 1st and 2nd accused persons and others, the complainants came to report the instant case at their station, Legon Police Station against the same people he was already investigating. The complainant told him about the reluctance of the police at the police headquarters in investigating the case so he Adu took up the case. He said upon the complaint, the complainants gave him a copy of a contract document that 3rd accused claimed to be a mandate and a representative of Ocean Link Mining Company Limited in Italy and some parts of Europe. The complainant told him they together with Ocean Link Mining Company Limited with Bar Purity Ghana Limited entered into that contract to sell and ship a quantity of gold bars in kilos. The witness told the court according to that contract, 200 kilos of gold will be supplied by the 3rd accused’s mandate seller being Ocean Link Mining Company while Bar Purity would be the shipper of the gold – [page 60 ROA]. The witness said in the first contract, it is stated DLR being Roberto’s company will pay 3% of the total cost of the gold to be supplied including taxes and shipment documentation cost and that there would not be any payment of the gold to be supplied until the gold arrive at the final destination of the buyer being a refinery in Italy and it would be upon the final assay conducted by the buyers refinery being DLR that the total cost of the gold would be paid into the account of the supplier being Ocean Link – [page 60 ROA]. After reading the contract, it looked suspicious to him and he became convinced that it was fraudulent. The witness said he interrogated 3rd accused who admitted she had the mandate of Ocean Link Mining Company Limited during the transaction and she represented the said company in the transaction. The witness told the court from his investigations he got to know that on the arrival of the complainant in Ghana, he was met by 3rd accused, Omar and some others he could not mention who took him to the Bar Purity at East Legon where he met the 1st accused. Before meeting the 1st accused, he had already had a copy of the contract. The 1st accused then asked him to open a metal account to indicate that Bar Purity Ghana Limited was going to ship whatever quantity of gold that may be supplied – [page 64 ROA] 1st accused then gave complainant two account numbers that he could transfer monies into for payments. After this meeting at Bar Purity, complainant was asked to open the metal account and after all calculations he was asked to deposit USD200,000 into the account which he transferred on four instalments – [page 64 ROA]. This amount he said was the 3% payment to cover the shipment of the 200 kilos of good in the first contract. According to the witness one Kwame Horgle (7th accused), a director of Bar Purity posed as a worker for Ocean Link Mining Company Limited and also as an agent for Standard Express Security Limited and told the complainant that since they will supply the gold to them for shipment, they would have to secure the gold at the facility of Standard Express Security Ghana Limited – [page 66 of ROA]. The witness also said to make complainant believe they had large quantities of gold, the 1st, 2nd and 3rd accused persons asked the 7th accused to take complainant to the HFC Bank, West Ridge Branch, Accra, to show him the alleged gold that was being kept in the safe custody of the bank. Upon their insistence, they made complainant withdraw USD$30,000 from his metal account and paid same to Standard Express Security Ghana Limited for the safe keeping of the gold. At that point, according to the witness, 3rd accused asked complainant to buy metal boxes which will be used in shipping the gold and that will cost USD 80,000. He said the 1st, 2nd and 3rd accused suggested a refinery in Dubai for the test running since the refinery the complainant suggested in Italy was not working. Complainant collected USD20,000 from his metal account and gave same to the 3rd accused at Bar Purity for the purchase of the metal boxes for shipment. The witness said the 3rd accused did confirm at the police station that she was given USD$20,000 by the complainant to buy the metal boxes which she ordered at Achimota. She could however not lead police to the shop she ordered the item. The 1st and 2nd accused persons, according to the witness informed the complainant they had exported 2 kilos of gold to the refinery in Dubai for testing and that he will have to pay USD$3million into their account else they could not ship the 200 kilos gold to him. 3rd accused also confirmed at the police station that 1st accused gave her the 2kilos gold which she took to Dubai for testing – [page 67 ROA]. The witness tendered receipts issued by Bar Purity to the complainant for monies he paid into the metal account and from which he made withdrawals exhibit “B” series- [page 67 ROA] The witness at this point tendered the two contracts signed by the parties. That is between DLR Roberto as the buyer, Ocean Mining Link Limited as the supplier of the gold and Bar Purity Ghana Limited as the shipper – Exhibit ‘C’ & “C1” – [page 67 ROA]. The witness told the court, as part of his investigations he had to ascertain the deposit of the monies paid by the complainant into the accounts of Bar Purity. He also ascertained the persons behind Ocean Link Mining Company Limited, Kwaglo Ghana Limited, Bar Purity Ghana Limited and also standard Express Security Ghana Limited. He said it was disclosed that Standard Express Security Ghana Limited is a non-registered company and his investigations disclosed that it was fraudulently established by the accused persons in doing their fraudulent business– [page 69 ROA]. He said his investigations established that 7th accused who posed as an agent from Standard Express Security Ghana Limited and as well as a worker for Ocean Link Mining Company Limited is a Director of Bar Purity Ghana Limited of which the 2nd and 1st accused are directors. He said his investigations at the HFC Bank, West Ridge Branch revealed that 7th and 3rd accused and others brought complainant to the bank on 29th July 2015. That the 7th accused infact is the safe account holder of safe numbers 124 and 125 which he showed the complainant as the gold deposit – [page 70 ROA]. The witness said his investigations about the companies at the Registrar General’s Department revealed that the 1st accused is a director of Kwaglo Ghana Limited. They guaranteed complainant’s invitation to come to Ghana. 3rd accused came to Ghana on the ticket of Nest Seekers Limited. Standard Express Security Ghana Limited has the 1st accused as a director, Bar Purity Ghana Limited has 1st, 2nd and 7th accused as directors. He however added that Standard Express Security Ghana Limited was not in existence. He also said Ocean Link Mining Limited, the company that was purported to be selling the gold to the complainant and their directors were nowhere to be found – exhibit “D” [page 70 ROA] The witness tendered into evidence a pen drive containing CCTV video coverage of the 7th accused person in the HFC Bank in another case he was investigating. Counsel for the accused objected to its tendering, but the trial court admitted same into evidence for this case as exhibit ‘E’ and ‘E1” – [page 73 ROA]. According to the witness the banks safe policy is that the owner and the bank had separate keys and can only be opened by the two at the same time. Secondly the bank does not inspect the deposit to know the contents. In the instant case, he said they could not trace the 7th accused for his key so they forced the safe opened in the presence of a third party. They took the content to the precious Minerals Marketing Company (PMMC) where it was verified and the content read no gold value as submitted by the PMMC exhibit ‘K’, ‘K1’ – [page 75 ROA]. The witness tendered a document in court affirming that the 3rd accused had mandate to represent Ocean Link Mining Company Limited and a permanent representative of the company in Europe exhibit ‘Q’ – [page 80 ROA] The witness tendered exhibit ‘S’, a document by Ocean Link Mining Limited inviting complainant to Ghana and also a document for visa application on arrival by Kwaglo Ghana Limited - [page 81 ROA] He also tendered the caution and charged statements of the 1st, 2nd and 3rd accused persons, though he did not take the statements. In cross examination the witness said he became the investigator of the case in December 2015. He said though he met the complainant in December 2015, there is nothing recorded in the diary of action to show they met [page 86 ROA]. He never collected any statement from the complainant - [page 86 ROA]. This transpired in cross examination and for the sake of evidential value and weight of the testimony of the witness we reproduce all; - Q - Did you make any entry to the effect that Roberto, the complainant herein appeared in course of your investigation before you? A Q - - It is at my discretion to make such entries. I put it to you that you have no discretion in matters such as making entries that the complainant came to your station in respect of this case. A - The complainant had already been to the CID headquarters for which a diary had been prepared and his complaint had been taken and all processes were officially started at the CID headquarters. I was detailed to do the investigation after I arrested A3 and the CID headquarters deemed it fit that I should continue the parallel investigation. They are the authorities I report to and they know whatever that went on between me and Roberto during investigations. Q A - - Did you collect any statement from Roberto? Statement was collected by CID and I also listened to Roberto and therefore statement was also collected. Q - You claimed in your evidence that the CID officer who was entrusted with the investigation of this case at the CID headquarters was reluctant to act on the case and therefore it was given to you, did you find it necessary as someone who had been given the case to take a statement from the complainant. A - Being an investigator, what is necessary to prove is the fact finding and deliberate enquiry into the compliant made. The statement alone does not substantiate the claim but the fact finding and the fact to be gathered to prove your case are also important. Q - The investigative directions of a case is the direct function of the complaint laid before the police and captured in the complainant’s statement to the police. A - Statement has already been taken and there is no need for duplication and as an investigator I know the direction and where to find my facts and that is what I exactly did. Q - Who authorized you to assume the investigation of this case? A Q A Q - - - - I received information from the CID headquarters Did the officials at CID headquarters know that you are handling a case involving the accused persons and the complainant in this case? Yes my lord Why were the police at the CID headquarters reluctant in pursuing this case? A - I remember in my evidence-in-chief I stated that, it was the complainant who came and stated that the police CID headquarters were reluctant to arrest A3. Q - Counsel reads the evidence-in-chief of the last paragraph of the witness dated 17th May, 2017 page 2, besides the fact that you said A3 was not arrested by the CID headquarters, you also said in the entire case that the police at the CID headquarters were reluctant to arrest A3. A - Per what counsel read to the court indicating that I was reporting on the assertion of Roberto. Q - As an investigator, did you find out the allegation brought against the police at the CID headquarters. A - Yes my lord, on the occasions, I was the person who normally took A3 to the CID headquarters and I have been at the CID headquarters in respect of this case several times. Q - By your answer, you have adopted the assertion by Roberto that the police at CID headquarters were not prepared to handle the case? A - That is not the case. What happens in our police sector is that, if you have suspect in your custody and another person comes to state that this suspect is being required in investigations conducted somewhere else, it is the responsibility of the investigator or the District Station Office, CID or any responsible police officer to find out and that was what I exactly did. Q - You were taken to police intelligence and Professional Standard (PIPS) by A1. A Q A - - - Not in this particular case But the fact still stands that you were taken to PIPS by A1 Yes but it is not in this particular case. It was a petition that when I initiated the first investigation involving the accused persons, they wrote petitions not only to PIPS but to the CID headquarters, to Accra Regional and other places and I perceived that as a falsehood just to divert my attention from investigations. Q - In the course of your investigations, you collected the gun of A1, is that not it? Yes my lord You were directed by PIPS to return quickly the gun to A1? A Q - - A - When I went to PIPS, the allegations that the accused persons made were not based on the gun but during investigations, I handed over the gun to the accused person. Q - A1 also accused you of spoiling his car, is that not the case? A - Not in this particular case Q A - - But in the first case? Yes my lord but the allegation was proven to be Unfounded. Q - As you stand here, the A1 has issued a civil suit against you through lawyer Ahmed? A - It was not in this case but A1 in order to frustrate my investigations that I was doing for the Republic as a Police Officer decided to sue me personally at the High Court. On the basis that I should return all exhibits in my possession relating to the case that I was doing among other things to them. However, I later received a judgment that if I was doing the case personally for myself, then I should hand over the documents and whatever I have to them? Q A Q - - - Is the case pending or not? I do not think the case is pending All these developments took place between you and A1 before you took over as an investigator in this particular case. A - I started this investigation in December 2015 and as I said the High Court process came later after December 2015. Q - You developed bad blood against the accused persons in particular A1 and that edged you on to maneuver to become an investigator in the second case with the sole aim of squaring it up with his courage in reporting you to PIPS and to issue a writ against you. A - I am a professional police investigator and I have been neutral in my investigations. Q - Did you collect any statement from the accused persons as an investigator when you took up this case? A - Statement had been taken and I also followed up with interrogation and questioning of the accused persons in this case. Q - Do you have any entry in the diary of action that you interrogated the accused persons at the Legon Police Station. A - The accused persons have been with me at the Legon police station several times and as I said, I did parallel investigations. There were entries that they have been with me at the police stations. Q - In respect of this particular case, did you make entries that you have interrogated them at the police station? A - The entries that was made were not specific but there was an entry made. In cross-examination the witness admitted the contract signed was electronically mailed to the complainant to study before he came to Ghana – [page 90ROA] The witness admits that out of the Euros 200,000 that the complainant transferred into the accounts of Bar Purity, he again collected USD$50, 000 out of it – [page 92 ROA] He also told the court that in 2015 he was verbally instructed to carry out parallel investigations into this case and because he was instructed verbally at the Headquarters to do so, he never recorded anything in any diary of action but reported to headquarters verbally – [page 103 ROA]. That he verbally reported his investigations to Chief Supt. Naami and Mr. Mawusi. He said further in cross examination that the complainant never mentioned 2nd accused in his complainant and statement to police – [page 115 ROA] Further, he said it was the 7th accused person who deposited the gold in safe keeping at HFC. The supporting documents bear his name and not Bar Purity certificate nor 1st and 2nd accused. He again said the 7th accused person used parts of Bar Purity documents to open the account at HFC – see [page 128 & 131 ROA]. He did confirm that 7th accused opened the HFC account in his personal capacity – [page 32 of ROA]. 7th accused also described himself as self-employed when he was opening the account at HFC. Prosecution at this stage closed their case. Counsel for the 1st and 2nd accused made a submission of no case at the end of prosecution’s case. The learned trial judge was of the view that a prima facie case has been established by the prosecution against the two accused persons and therefore overruled the submission and called upon them to open their defence. DEFENCE The first accused is Kwame Amponsah, a businessman working as the manager of Bar Purity Ghana Limited. He said 2nd accused is the Chief Executive Office of Bar Purity. He got to know the 3rd and 4th accused persons who did some gold export business through them. He does not know the 5th and 6th accused but knows 7th accused persons who worked with Bar Purity from 2012 through 2013 when he quit. He also knows the complainant Roberto Mario De Lorenzo as well as Mario Pugliese who was at the police headquarters as an interpreter to Roberto. He said the 3rd accused person used to interpret English to Roberto but since she was not at the police headquarters, PW1 came to do the interpretation. The 1st accused said he first met the 3rd accused when she and three others came to Ghana to deal in export of gold and were frequenting their office. They told him their boss called Roberto Lorenzo was in Italy and would like to visit Ghana but has no visa, so if they can help give him an invitation to enable him acquire a visa. They decided to help give him the invitation, and he secured the visa and came to Ghana. That was how they met him. They pleaded with them to allow them remit monies through their bank account since they are foreigners and have no bank accounts in Ghana and they obliged. They transferred money into their account and when it hit the account they were informed and Roberto, 3rd accused and 4th accused came three times to withdraw part of the money. For each withdrawal Bar Purity issued them with receipts evidencing the release. According to the witness, they came for USD$76,000 for their suppliers, then later USD30,000 and USD20,000. Later Roberto and 3rd accused left Ghana for Dubai to see to the testing of 2 kilos gold sent to a refinery in Dubai. He said they were not part of the negotiation for the supply of the gold, they were just to ship. The 2 kilos shipped was brought to them by Roberto and Ocean Link. The 2 kilos cost USD76,000. Roberto and 3rd accused withdraw the USD$76,000 from their money in their account to pay the suppliers, Ocean Link. The accused said as at the date of his testimony, Roberto’s balance in their bank account was USD$12,000. When the people who promised to supply the gold failed them, Roberto lodged a complaint at the police headquarters against Ocean Link and not him. The 1st accused said he was arrested by police from Ho together with PW2 because of a report made by one Lac Harvey and Huggette Gilbert against him and not the instant case. At the Legon police station where PW2 sent them, he organized TV3 crew to put them on TV and there Roberto on seeing them rushed to the Legon police station to lodge a complaint about him again though he already did at the police headquarters. The 1st accused told the court Bar Purity does not buy gold but just shipping with their licence acquired from the Minerals Commission since 2012. Legon Police however wrote to the Minerals Commission to suspend their licence because of this case, which they did. He said prior to acquiring their own licence in 2012, they used to ship with the PMMC. Bar Purity he said does not buy gold but ship gold just like PMMC does and they have their records at PMMC, Minerals Commission, Customs and Bank of Ghana – [page 229 ROA] He said before this case, there has never being any complaint against them at the Minerals Commission for offering to sell gold instead of shipping. He denied knowing a company called Standard Express Security Company let alone being its director as prosecution is alleging. The accused told the court by their shipping procedures, the customer Roberto had to open a “metal account” which he did. He narrated the procedures for exporting gold which they followed in exporting the 2 kilos of gold to Dubai. He said the metal account was opened on behalf of Roberto Mario De Lorenzo and he personally signed the account documents by himself exhibit “B 3&4”. The accused also tendered into evidence shipping documents covering the 2 kilos of gold exported to Dubai exhibit “2” [page 235 ROA]. The accused explained that metal accounts are only opened when a customer want gold exported for him and not like a bank account with money deposited in it. The USD$216,000 the complaint transferred into Bar Purity bank account was because he had no bank account here in Ghana. It is the complainant’s own money he deposited in their bank account and which he always came to withdraw in bits with 3rd accused, 4th accused and one other person. Complainant was always issued receipts for these withdrawals on A4 sheet of paper which he signs and as at the time of his testimony, complainant still had USD$12,000 balance in their bank account [page 236 ROA] For the 2 kilos gold shipped to Dubai for the complainant, he paid 0.5% shipment cost and service fee to Bar Purity totaling USD$8,500. These amount were deducted from the amount deposited in their bank account. The 1st accused denied the prosecution’s case that he or they fraudulently took USD$216,000 from the complainant because from that amount he collected, the following amounts, USD$74,365.46, USD$85,000, USD$50,000, USD$20,000, USD$30,000 amount and was left with a balance of USD$12,000. He said PW1 confirmed in his evidence that complainant informed him he had collected USD$50,000 from the account. About the company Standard Express Security Company, the accused denied having anything to do with that company but that Bar Purity has a subsidiary company called Standard Express Ghana Limited used for travel and tour purposes. Bar Purity’s Security wing is called Guardlock Security Company limited and that he knows nothing about Standard Express Security Company. In cross examination the accused denied buying the 2 kilos gold sent to Dubai saying complainant’s suppliers brought it and complainant and 3rd accused gave them the refinery address in Dubai. It is the client who provides the destination address and so the documents and the assay report bore Roberto’s Company name. The accused explained to the court that in his Investigation Caution Statement he said they bought the 2 kilos of gold because he was instructed by the complainant to pay for it with his money in their bank account but not that he physically bought the gold – [page 248 ROA]. He said 3rd accused went to Dubai for the test on the instructions of the complainant and not by them. About the 7th accused, the 1st accused said he knew him as Kwame Horgle who worked with them from 2012 to 2014 and left. He does not know he is also called Frank Yeboah. His English name is Louis. He also never sent him to HFC to show gold to anyone nor asked him to sign any receipts for anyone. The accused denied the prosecution’s allegation in cross examination that they have a grand scheme, inviting whites from Europe to Ghana to defraud them and that the 3rd accused was part of the scheme and was their permanent representative abroad. – [page 252 ROA] Dr. Christopher Obareki, the 2nd accused person lives at Spintex Road, Accra. He knows 1st accused, 3rd accused and 4th accused but not 5th accused, 6th accused and 7th accused. He denied the charges leveled against him. He said the 1st accused informed him one day that a client called Roberto needed their services to ship gold to Europe. 1st accused brought Roberto, 3rd accused and 4th accused to his office for the discussion. They further asked for the company’s bank account so that they could send money to pay their suppliers and also pay their charges. They transferred euro equivalent of USD$216,000. Complainant then instructed them to pay their suppliers for 2 kilos worth of gold and on several occasions he collected money in cash. That he never offered to sell gold to them. The accused denied PW1’s allegation that he went to Dubai to the refinery they shipped the 2 kilos gold to collect same as the owner. The accused explained to the court that their bank details was used in the contract between Ocean Link and DLR because they agreed DLR could use their bank account for their transactions – [page 270 ROA] DW1: - Assistant Sup of Police, Charles Adaba was subpoenaed by the accused persons to testify for them. He was then the District Crime Officer, Dodowa. He said on 2nd October 2015, then as a Chief Inspector stationed at the Fraud Unit, CID Headquarters, his unit Commander Mr. Felix Mawusi referred a fraud case to him for investigation. The complainant was one Roberto De Mario Lorenzo. He was accompanied by one Mario Carmine as an interpreter to the complainant who could not speak English. Roberto complained he was defrauded by directors of a company called Ocean Link Mining Limited. That they defrauded him of USD 216,000 meant for the supply of 200 kg of gold and that they supplied only 2 kilos and he had waited for two months after receiving the 2 kilos of gold remaining 198kg. He gave the names of the directors as Adams Kaba and Ibrahim Kaba- [page 292 ROA] According to the witness Roberto said the two were demanding an extra USD$3million as collateral before they could supply the remaining 198kg of the gold. He said Roberto told police in his statement that he was based in France and was interested in buying gold and was linked to the 3rd and 4th accused by one Ennio Somariva who told him the two could help him get gold to buy. On 22nd July 2015 he came down to Ghana with his travel arrangements facilitated by the Directors of Ocean Link Mining Limited. He said on arrival there was an agreement between the Ocean Link Directors i.e. 3rd and 4th accused and the complainant for the supply of 200kg of gold. - [page 293 ROA]. The witness told the court the suppliers made the complainant aware that they do not have a licence to ship the gold so they consulted a company called Bar Purity to do the shipment. They further agreed an amount of Euro 200,000 to be transferred into the Bar Purity Company’s bank account in Ghana. The transfer was done in four installments of Euro 50,000 each. The witness said he invited the directors of Bar Purity i.e. 1st and 2nd accused to the CID headquarters to assist in police investigations. In course of the investigations it came out that 2kg of gold was shipped to an address provided by the complainant on the 18th of August 2015 through KLM cargo with file number of 174- 78162556 and Assay report on the receipt was 96.99 purity at the cost of USD$63,290,20- [page 293 ROA] He said the 1st and 2nd accused persons admitted in their statements to police that they received the euro 200,000 in their UBA account to facilitate the shipment or the export of the gold that Ocean Link and the complainant had agreed on. They also told police the complainant on arrival came for USD$50,000 from the amount in the account, sent 3rd accused to collect USD$20,000 on two occasions and the cost of exporting the 2kg with the taxes amounting to USD$76,000. The witness testified further that on 15th March 2016 they wrote a letter to the Registrar General’s Department for details on Ocean Link Mining Company and Bar Purity. On 31st March 2016 a duplicate docket was prepared and sent to the Attorney Generals for advise and they advised 1st, 2nd and 3rd accused be charged for the offence for conspiracy under Section 23(1) of the Criminal and other Offences Act 29 and defrauding by false pretence under Section 131(1) Criminal and other Offences Act 29 1960. The instruction was duly carried out and the charge statements forwarded to the office of the Attorney General. The witness said on 27th April 2016, he was called by the Director of Operations at the CID Headquarters, Mr. John Naami who gave him a query letter from PW1 to answer to the effect that he was biased against the complainant and he responded. PW1’s request was that he should use evidence in another case involving the 1st and 2nd accused in the Circuit Court into this case he was investigating but he refused. PW1 threatened him he will make sure the case docket is taken from him and true to his threat one day one Chief Inspector Naa Afua called him and told him that a letter from the Attorney General’s Office signed by State Attorney Stella Appiah instructed he should hand over the case docket to the Legon Police District Headquarters for continuation and prosecution. At the time of this instruction, this instant case was in the High Court with the same State Attorney as the prosecutor. He said it was not the normal practice for a case to be transferred from the Headquarters to a District Office for investigations and that was the first time he experienced it. He told the court the complainant’s case was about the USD3million he was asked by Ocean Link to deposit before the supply of the 200kg of gold and that at that time the cost of the 200kg was about USD7.6m based on the fact that 2kg cost USD76,000. He said the complainant never lodged any compliant against 1st nor 2nd accused, he just invited them to assist him do a thorough investigation- [page 296 of ROA]. The witness said at the police station in the presence of the complainant and PW1, 1st accused and 2nd accused explained to him how the monies deposited in their bank accounts had been utilized and complainant never challenged them – [page 297 ROA] He said he never took any statement from PW1 as a complainant. He ended his testimony saying the problem of the complainant was that he understood the contract to mean he was to receive 198kg of gold before making payment while the seller, being directors of Ocean Link were insisting on receiving a deposit before sending him the 198kg gold. In cross examination he said 3rd accused gave names of the directors of Ocean link as Adams Kaba and Ibrahim Kaba (5th accused and 6th accused). He wrote a letter to the Registrar General’s Department to find out the directors of the company. He told the court he collected statement from the complainant Roberto Maria De Lorenzo. He also found out that Kwaglo Ghana applied for visa for the complainant and also that 1st accused is the Managing Director of the company. He also found out that one Frank Yeboah is also a director of that company. JUDGMENT At the end of the trial, the trial High Court held that the “Prosecution has been able to establish counts 1 and 2 beyond reasonable doubt and I convict them thereon accordingly” – [page 340 ROA]. On the third count of money laundering the trial High Court Judge delivered herself thus; - “it is my view, therefore, that once a proper case has been established for the offences of conspiracy to defraud and defrauding by false pretence, and the sum of USD216,000 has been lost, a case for money laundering was made. The justification for the funds put forward by the accused persons are unmeritorious. In the circumstances, I hold that the prosecution has been able to establish and prove beyond reasonable doubt the offence of money laundering against the accused persons under count 3 of the charge sheet. 1st accused and 2nd accused are accordingly convicted on count 3” – [page 342 of ROA] Sentence: -The court said having considered the circumstances of the case, the lack of remorse, the age and medical condition of the accused persons they were sentenced to 24 months, IHL, in addition to a fine of three thousand (3000) penalty units or in default 4 years IHL on count 1 and 2. Count 3, the accused persons were sentenced to a mandatory term of 18 months in addition to a fine of two thousand (2000) penalty units or in default 2 years IHL - [page 344 ROA] Dissatisfied with the judgment the 1st and 2nd accused persons filed this appeal against the entire judgment convicting them and the sentences imposed. GROUNDS OF APPEAL 1. The judgment of the court cannot be supported having a regard to the evidence on record. 2. The learned trial judge erred in law in her application of the law on conspiracy 3. The learned trial judge erred in law by failing to appreciate that the thresh-old for admissibility of hearsay evidence was not met and that her reliance on PW1’s evidence occasioned for the Accused Persons a substantial miscarriage of justice; 4. The learned trial judge erred in law by convicting the Accused Persons on the charge of money laundering when at all times material, the charges were bad for duplicity or defective for that matter and thereby occasioned for the Accused Person a grave miscarriage of justice; 5. The learned trial judge erred in law by taking into account irrelevant material for purposes of arriving at a conviction and thereby occasioned for the Accused Persons a grave miscarriage of justice; and 6. Additional grounds may be filed on receipt of the court of proceedings. No additional grounds were filed, so that ground is dismissed. SUBMISSION Ground 1 - The judgment of the court cannot be supported having a regard to the evidence on record. Before we begin to look into the grounds of appeal, I wish to state that counsel for the appellant did not argue his grounds severally but marshed all up. The conventional method we know is to argue his appeal on each ground of appeal alleged. Be it as it may, since the omnibus ground of appeal is there we assume he is inviting this court to re-hear the whole case since the principle encompasses all appeals being by way of re-hearing. Count I Statement of Offence Conspiracy to commit crime namely, defrauding by false pretence contrary to Sections 23(1) and 131 of the Criminal Offence Act, 1960, Act 29. The particulars are that, the 7 accused persons on or about the 22nd day of July of 2015 in Accra, in the Greater Accra Region, acted together with a common purpose to defraud Di Lorenzo Roberto Maria by means of false pretence. Count II - Defrauding by False Pretence contrary to Section 131 of the Criminal Offences Act, 1960, Act 29 and the particulars are that all the 7 accused persons on the same date 22nd day of July 2015 in Accra, in the Greater Accra Region and within the jurisdiction of this court by means of a false pretence and with intent to defraud obtained the consent of De Lorenzo Roberto Maria to part with Two hundred and sixteen thousand USDollars (USD216,000) under the pretext of offering him gold for sale, a representation they knew at the time of making to be false. What is Conspiracy? The meaning of conspiracy that existed under the Laws of Ghana has changed by the work of the Law Review Commissioner appointed under Section 1 of the Laws of Ghana (Revised Edition) Act 1998 (Act 562). Until the change the definition of Conspiracy as contained in Section 23(1) of Act 29 was “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 revised definition provides thus; - “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”. By the new definition, to establish the crime of conspiracy now in Ghana, prosecution must prove that the persons agreed to act together with a common purpose to commit the offence – See (i) Dennis Adjei-Contemporary Criminal Law in Ghana [page 88 of ROA], (ii) Rep vrs Augustine Abu in Suit No. ACC 15/2010 dated 23rd December, 2009 unreported. The new definition imposes a higher duty on prosecution since any charge of conspiracy now must indicate that the persons who have been charged with the offence agreed to act together with a common purpose for or in committing or abetting the crime. It does matter whether there was or without pervious concert or deliberation to commit on offence or abet the criminal offence. Therefore, a case of conspiracy without proving that the persons involved agreed to act together to commit the offence shall fail. To briefly recap the facts of this appeal as given by the prosecution, the complainant Roberto Lorenzo, an Italian businessman based in London was interested in buying gold. On 23rd July 2015, a business partner informed him that another Italian national known as Daniele Andreani (4th accused) said he had gold for sale in Ghana. The complainant was interested in buying the gold and so was assisted to travel to Ghana by the 1st accused who signed an invitation letter to Ghana Immigration Service as the Managing Director of a company Kwaglo Ghana Limited to enable the complainant secure an entry visa. The facts say one Adams Kaba (5th accused) also signed a letter to the Ghana High Commission in Italy as the Managing Director of Ocean Link Mining Limited. The complainant was able to secure his entry visa and travelled to Ghana. On arrival he was met at the airport by one Eugenia Umakunze (3rd accused), 4th accused and 6th accused. Complainant was introduced to 5th accused and 6th accused as the Directors of Ocean Link Mining Limited. The fact says after some discussions, a contract for the supply of 200kg and 1500kg of gold was signed with the complainant and 5th accused signing on behalf of their respective companies. The evidence before this court is that a copy of the contract “exhibit A” that was signed was electronically sent to the complainant in London, which he studied, made some corrections and additions before coming down to Ghana to sign same. There was no evidence led by the prosecution to controvert this assertion by the accused persons. Meaning the complainant had seen the contract, studied same and presumably carried out his due diligence as a businessman before jetting down to Ghana to sign same. The facts continued that 4th and 5th accused persons then took the complainant to Bar Purity, the company which would ship the gold to the complainant’s address. The facts here introduced Bar Purity represented by the 1st and 2nd accused standing trial as the company that will ship the gold to the complainant’s address. This piece of evidence as in the prosecutions own facts is confirmed by Clause ‘e’ under Scope of Contract page of the contract signed which says ‘e’ - Buyer will pay costs for export documents, insurance and freight to and through BAR PURITY which will grant and fulfill all operations of production of export documents, insurance and freight. A maximum amount of 200,000 Euro will be at the disposal of BAR PURITY for the above mentioned operations. This was on page 2 of the contract and was initialed by the complainant. At the Bar Purity, as per the term of the contract signed between complainant and Ocean Link, 1st accused, the Managing Director of Bar Purity requested the complainant to open a “Metal Account” with Bar Purity into which the Euro 200,000 was to be deposited by the complainant for the purposes of shipment fees, insurance, tax, legal documentation and other logistical expenses as stipulated in the contract. According to the facts, 1st accused asked complainant to pay USD24,000 to STANDARD EXPRESS SECURITY COMPANY as cost of storage of 200kg of gold even though that was not part of the signed agreement. This allegation the 1st accused denied. ASP Adaba, the original investigator of the case, who started the investigations and collected statements from the complainant and accused persons before the case was taken from him, in his evidence for the defence said he asked the complainant to show him exactly who and where he paid that money but he could not lead the police to anywhere. That being the case it was his allegation against the 1st accused which was not established. This piece of evidence by ASP Adaba was not controverted by prosecution. In cross examination, he was asked; - Q - You said you investigated who the said Frank Yeboah is, what kind of investigation did you conduct? A - The complainant was made to assist us to locate the office where he paid the amount for the gold to be deposited and when he failed to locate office. I found out from the Registrar General’s Department so that is the reason why I gave the answer that, Frank Yebaoh is a real person but I did not see him personally. This is to confirm the fact that the complainant could not assist police to locate the office where he paid the alleged amount for safe keeping of the gold. The facts continued that complainant was later sent to the HFC Bank, Ridge Branch, Accra by 7th accused and 5th accused to view some metal they kept in the banks’ vault as gold. The facts say 1st accused then bought 2kgs of gold from the metal account with BAR PURITY and passed it off as part of the gold in the vault and shipped same to a refinery of complainant’s choice at Dubai for further assaying. The result proved it was pure gold even though the complainant was not given the gold. These are the facts given by prosecution themselves. The 1st accused denied buying the gold but explained that the complainant instructed him to pay the suppliers of the 2kg gold from his money in the metal account with them. That he did not buy the gold but was just instructed to pay for it with money from the metal account. This assertion was also not controverted or disproved by the prosecution. All these occurred before the complainant reported the case to the CID Headquarters before ASP Adaba. In 1st accused’s statement to police dated 26th October 2015, he said when he enquired from the 3rd and 4th accused as to why the delay in the supply of the gold they were supposed to ship, they instructed him to buy the 2kg gold to send to the complainant’s refinery. I guess this confirms his story that he was instructed to do so. He continued to say he did so with money in the metal account with them. From prosecutions’ facts, complainant gave the refinery address in Dubai to Bar Purity and from the statement of 3rd accused, to the police dated 4th June 2016, she confirmed the facts and stated further that complainant sent her to Dubai to check whether the 2kg gold had been received and also to test for the purity of the gold. In her statement to the police, 3rd accused said she met two representatives of complainant in Dubai, Stephanie and one other. They assayed and found the 2kg as pure and she returned and informed complainant accordingly. She said she and complainant went to give the Dubai assay report to Bar Purity on her return. She said further that the complainant then demanded the sellers Adam and Ibrahim Kaba to release the 198kg to Bar Purity to export to Dubai and they also told complainant to deposit USD3m before the remaining 198 kilos would be released –exhibit ‘Y’ – [page 476-9 ROA] Exhibit Z, the diary of action by the police states that the complainant went to report to police in the company of one Mario Carmine that “a company by name Ocean Link Mining Limited and its director collected cash of USD200,000 with the pretext of supplying him with 200kg of gold but had failed to do so” – [page 480 ROA]. That when he demanded for the supply of the gold the directors are demanding for USD3m before they ship to him the 200kg of gold and so needed police assistance. There is evidence from the diary of action that on 26th October 2015, the complainant, his interpreter Mario Carmine (PW1), Esther Duah and 1st accused met and agreed for the two parties to meet at an appointed time for the two to reconcile the accounting differences based on the advice by Counsel for the complainant. All these took place after statements were taken from the complainant as well as the 1st accused. The 1st accused was released on bail to go home. It is also stated in the diary that the complainant had given power of attorney to Mario and a lady called Esther Duah to represent him but the 1st accused told the police he does not know them. 1st accused before C/Supt/CID/OPDS Mr. John Naami said the same story that he nor his company Bar Purity had no contract with the complainant, and that they are just to ship the gold and in fact they did ship 2kgs for him. Whilst waiting for the remaining 198kg to be shipped he was invited by the police. He admitted before the officer that complainant did transfer USD200,000 into the account for shipment – [page 485 ROA] On 3rd May 2016, police had advice from the Attorney General’s Department to charge 1st, 2nd and 3rd accused with the offence of conspiracy to commit crime of defrauding by false pretence. Turning to exhibit ‘I’ which is complainants own statement to police he said an Italian partner called Ennio Somariva informed him that one Daniele (4th accused) also an Italian based in Ghana had gold to sell and he became interested. Ten days later he complainant spoke with Daniele personally on phone about his interest in the gold. Daniele told him they had made arrangements for his travel to Ghana. On arrival at Kotoka International Airport, 3rd accused and Umar met him. He lodged at Amponsah hotel, East Legon. There he met the directors of Ocean Link Mining Limited, Umar and Adams. He said after a few days of discussions a contract was signed between himself for DLR finance and Ocean Link Mining Limited represented by Adams Kaba. Two contracts were signed for the supply of 200kg and 1500kg of gold respectively to DLR Finance. It was agreed the 200kg be sent to Dubai to an agreed refinery. At this point it is clear the complainant went through the contract, got himself satisfied and signed same. They also agreed on the refinery in Dubai where the 200kgs will be shipped. He said they agreed further that “until the selected refinery had finished and both parties accept the result no monies will be paid for the 200kg of gold” (emphasis mine). Complainant then said the 3rd and 4th accused persons advised him to open an account with BAR PURITY the company they claimed would be used to export the 200kg of gold. It is necessary to pause at this point to understand the terms agreed on by the parties. They said until the selected refinery had finished and both parties accept the result, no money will be paid for the 200kg of gold. To my understanding that was exactly what happened. To me that agreement meant until the gold is tested and both parties accept the assay result complainant i.e. the buyer will not pay for the 200kg of gold. Hence, the 2kg was sent to the refinery of complainant’s choice in Dubai, that tested the gold and said was pure and which report complainant himself and 3rd accused sent personally to Bar Purity, the shippers. My understanding is that, after that report from Dubai that the 2kg gold was pure, the Buyer (complainant) was then to pay for the balance 198kg before it is exported. After all, from the contract it is CIF contract. Page 2 of the contract, under scope of contract, clause ‘d’ state; - Agreed Delivery term is only CIF (Cost, Insurance, Freight – Inco terms) of Buyer’s Destination Airport International (Malpensa Milan-Italy). We should not lose sight of the fact that all these addresses were not conjured by the seller in the Contract but provided by the complainant. What is a CIF Contract? Our Sale of Goods Act, 1902, Section 61 defines CIF i.e. Cost, Insurance, Freight Contracts. It states: In a Cost, insurance, freight contracts, unless a contrary intention appears, a. The seller is bound at the seller’s expense to ship the goods during the agreed period to the port agreed on or to acquire goods afloat which have been so shipped. b. The seller is bound, at the seller’s expense, to effect on the goods an insurance of the type normal for goods and voyage of the kind in question. c. The seller is bound to transfer to the buyer proper shipping documents in accordance with the terms of the contract. d. The buyer is bound to take up proper shipping documents and in doing so, to pay the price in accordance with the terms of the contract. e. The goods are delivered to the buyer, and the property in the goods passes to the buyer, on the transfer to the buyer of the Bills of Lading. f. The risk in the goods passes to the buyer when they are shipped or acquired afloat. Our emphasis is on subsection ‘d’ which states in CIF, the buyer (Roberto) is bound to take up proper shipping documents and in doing so, to pay the price in accordance with the terms of the contract (emphasis mine). THE CONTRACT SIGNED 1. SCOPE OF THE CONTRACT state; - (b) The buyer, under full corporate authority and responsibility declares that he has the full capability to smelt and assay any amount of CIF delivered metal using his refining facilities and is able to purchase and pay the above mentioned gold in bars. (e) Buyer will pay costs for insurance and freight to and through Bar Purity which will grant and fulfill all operations of production of export documents insurance and freight. 2. PAYMENT (Clause 3 of the Contract) 3.1 Within 72 (Seventy-two) banking hours after Assaying, Refining and issuing Invoice of the gold. At the end of each working day, the amount of gold refined in the same day will be and as a reference, the LBMA second fixing on the day will be taken. The seller will issue an invoice for the amount of the gold refined in the day and Buyer will pay the invoice within a maximum of 72 hours from the issue of the invoice. This until all the gold has not been refined. 3.2 The final payment of the total quantity of the gold supply shall be made to seller bank account or to his Mandate representative or as shall be authorized by seller. 3.3 Referenced funds in this agreement are to be wired in USD (US Dollars). The transaction can also be concluded in Euro or Swiss Frans or AED (Dirham) subject to mutual agreement. 3. PAYMENT TERMS The payment will be made on gold content as indicated on the refinery assay report by bank transfer to the bank designated by seller and/or facilitator, within 72 (Seventy-two) hours after the refining of the gold and the issuance of invoice. 4. ARBITRATION Any dispute arising shall be settled amicably if possible, if the parties fail to do so, disputes arising under this contract or in connection with it shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce in Geneva, Switzerland or by London Court, by one or more arbitrators appointed by the that institutions, in accordance with these Rules. All the legal proceedings shall be in English. My understanding of the contract signed as CIF contract is that Cost of the gold, Insurance and Freight will be borne by the Buyer. Clause ‘e’ under scope of the contract state that the buyer (Roberto) will pay costs for insurance and freight to and through BAR PURITY which will grant and fulfill all operations of production of export documents, insurance and freight. This is the specific role of BAR PURITY. They are not responsible from supplying the gold. Secondly, CIF, FOB, C & A etc. are all inco-terms related to shipment. These terms are different from payment terms. We have payment and payment terms and then shipping terms in the contract. Our understanding of CIF is that the buyer (Roberto) pays from the cost of the gold, Insurance of the gold and the freight of the gold to itis destination. The Seller’s duty is to make sure from this payment the gold is insured and it is shipped to the buyer’s choice of port of destination. Once the seller does this and gives the Bill of lading to buyer title in the goods is transferred to the buyer. CIF is concerned with the shipment of the gold to the buyer’s destination airport in this case Malpensa International Airport in VA, Italy. The payment as found in the contract states within 72 banking hours after assaying, refinery and issuing invoice of the gold. To my mind, the payment for the gold was to be made by the buyer 72 hours after receiving the assaying and refinery report and invoice of the gold. This to me meant the buyer only pays after receiving those three documents. In the instant appeal he did receive for the 2kg which he duly paid for as stipulated in the contract. The reminder 198 was not supplied as the evidence reveals. It means the buyer was not obliged to pay anything until he sees those documents. Assuming the contract was that all the 200kgs of gold had to be supplied to the buyer before he paid, as he claimed CIF meant, why then did he pay upfront for the 2kgs of gold? He should have taken it as part of the 200kg stipulated in the contract, but he paid for it before it was exported to his refinery in Dubai. There is also a clause in the contract on Arbitration. The parties themselves have decided in the contract how disputes or misunderstandings between them will be resolved. I wonder why the buyer failed to keep to those terms but decided to report to police even after his own lawyer advised them to settle. Legally, if there is a breach of contract, the affected party must sue for damages for breach of contract. In the instant appeal, DLR had the legal right to sue Ocean Link Mining Limited for damages for breach of contract, if they think the later did not fulfil his obligations under the contract. I do not see where BAR PURITY committed any offence in this appeal. The contract specified their role, the amount to be paid them and which the buyer did. If the seller failed to supply the gold, how was Bar Purity going to ship same. Secondly, why blame Bar Purity for the non-supply by Ocean Link Mining Limited? Aside speculations and conjectures, there is no positive evidence that BAR PURITY is the same as Ocean Link Mining Limited nor related. They were just appointed by the parties to do the shipment and in fact they did for the 2kg that came to them. We do not believe prosecution’s case that Bar Purity purchased the 2kg gold. We believe the explanation given by the 1st accused as to the contradiction in his statement on that issue in his written statement to police and his evidence in court, since it is reasonably probable and could be true. That he was authorized to pay for the gold from monies in their account. Roberto and 3rd accused never denied this before the police. The law is that where a party in a trial whether civil or criminal makes a positive assertion, he assumes the onus of proof. The party denying an allegation has no onus to prove the negative. The onus of proof will shift onto the latter party after the one making a positive assertion has been able to establish that assertion and the ruling will go against the one making the negative assertion if he leads no evidence in rebuttal of the established positive averment. With the greatest respect to the learned High Court Judge, prosecution failed to establish that positive assertion against the appellants that they bought the 2kg gold to make a representation to the complainant that they had pure and genuine gold to sell to him to enable them defraud him. One other issue of interest to this court is that the appellants told the court they are licensed by the Minerals Commission to buy and export gold. That they have exported over USD$120m worth of gold and their records are there to be seen at the Minerals Commission, Customs and Bank of Ghana. That they were awarded once the Best exporter of Gold for the year. All these they said to prove their track record in the business and to establish that they are not fraudsters. Prosecution could have followed up to investigate this for its veracity, but rather decided to write to the Minerals Commission to suspend their licence without finding out the truth in their defence. I do not think that was fair to the appellants because they were investigated and charged for fraud and this affects their personal character and the company itself. In the usual course of business, unless otherwise agreed upon, who will use his own resources to acquire 200kg of gold, we are told worth about USD7.6million, ship same out to a buyer in a different country before he pays? It is possible but very rare. The accused in their defence said this cannot even happen because by our Ghanaian laws on gold Export, the shipper through PMMC, Customs and Bank of Ghana is to make sure the gold is assessed by Customs, appropriate payments made to Bank of Ghana before export. This is to enable the government take its 0.5% tax revenue on each export made. DW1, the first investigator of the case who testified for the defence said, the misunderstanding between the parties was that the complainant understood the contract to mean all 200kgs of gold will be shipped to him before he pays the price while the seller thinks he has to pay before it is exported. Let us not forget that the complainant is not a tourist in Ghana who decided to buy gold and has no idea about the business. This is a businessman based in London and his company DLR is a Finance Company. The contract signed on page 2 specifically stated in clause ‘e’ that the Buyer will pay costs for export documents, insurance and freight to and through BAR PURITY which will grant and fulfill all operations of the production of export documents, insurance and freight. It continues “A maximum amount of Euro 200,000.00 will be at the disposal of BAR PURITY for the above mentioned operations”. This clause by no stretch of imagination meant that the Euro 200,000.00 was the cost of the 200kg of gold to be exported to the Complainant. The story of the complainant being taken to the HFC Bank to see the gold in the vault, the less said about it the better. What was the essence of that trip by the complainant? Were his eyes seeing the metal physically going to tell him the quality or the purity? The behaviour of the complainant was quite naïve and unlike a businessman who owns a Finance company. If the idea of seeing the gold in the vault was to induce him to buy them, it failed because he had already signed the contract. The complainant in his own statement to police Exhibit ‘1’, states “Later I transferred an amount of €200,000.00 to the accounts of BAR PURITY on two instalments, Ecobank Ghana Limited. A/C No. 0711014472310801 with ………. Code ECOCGHAC Okponglo Branch and UBA Bank A/C No. 2416439103261, also two instalments of €50,000.00 at each transaction. These monies were meant to cater for insurance, taxes, shipping cost, legal documentation and other logistical expenses” – [page 491 of record of appeal]. Just as stipulated in the Contract. He said a day after the receipt of the last instalment, the1st accused gave him USD20,000.00 to pay to Standard Express Security Ghana Limited for security storage. Whether it was the 1st accused who instructed him to do so or he asked 1st accused to give him that amount to pay as directed by someone else is not stated. The complainant had signed a contract and knows the terms. Why will he pay money which he is not supposed to pay? Assuming it was the 1st accused who asked him to do so, will fall under “and other logistical expenses” as stated in the contract and complainant’s own statement to police – [page 491 ROA]. In his statement to police the complainant said at the HFC bank, Frank Yeboah went into the vault and brought out 2kgs of gold in one kilo bars. They proceeded to BAR PURITY with the gold smelted same and assayed and exported to Dubai later. He continued “I received the 2kg gold in one gold instead of the 2 bars I saw before the export. It was cleared and was found to be genuine after it was assayed at the refinery in Dubai. The Dubai refinery paid the cost of the gold to DLR Finance Ltd. which stood at $63,423.00 equivalent of GH¢248,616.93”. He went on, after satisfying myself with the outcome together with my ‘partners’ it was now the responsibility of Ocean Link Mining Limited to export the remaining 198kgs of the agreed quantity to the address in Dubai. This is very interesting. While the complainant who is party to the contract said he received the 2kgs gold and the price paid to his company, prosecution’s case is that he did not. He also said he satisfied himself with the outcome together with his “partners”. This statement confirms the story of the accused persons that the complainant, 3rd accused and 4th accused were partners who always come to Bar Purity. In effect, the USD63,000.00 the 1st accused used to pay for the 2kg gold was for the complainant and he received same back in Dubai. While prosecution said 1st accused went to Dubai to receive the money for the 2kg gold the complainant himself in his statement to police said it was paid to his company DLR Finance by the Dubai refinery. All these are contradictions in the prosecution’s case that created doubts in their case. The complainant made an interesting point in his statement to police on the 2kg gold. He said “I did not pay back Ocean Link Mining Limited the cost of the 2kg because it had been agreed in the contract that not until the remaining 198kg had been delivered no money will be paid”. – Two issues of importance arise here. First the complainant knows the terms of the contract as to what to do and what not to do. Secondly, that there was the agreement not to pay anything until the gold is supplied. He also said he asked Omar why the delay in exporting the remaining 198kg and Omar asked for $3m deposit before any further export. Here as well while Prosecution said it was the 1st accused who demanded the USD3million deposit complainant himself said it was Omar (6th accused). He said further that Omar arranged some 4 people claiming that they were from the village to meet him at East Legon while Prosecution said this was by the 1st and 2nd accused. This is another contradiction in the prosecution’s case. This transpired in cross-examination of the 1st accused. Q. The 2kg of gold you sent to Dubai was also collected by your goodself from the laboratory. A. That is not true. Roberto himself confirmed to receive the 2kg of gold and I have no right to travel to Dubai to receive the 2kg from the Refinery because it is not my refinery. Roberto chose the Refinery himself so there was no way they would have allowed me and there is also no record here at the immigration to find out whether I travelled within that period to Dubai – [page 267 ROA]. Q. You made Roberto believe that the gold you had sent to Dubai was for him. A. Yes my Lord. He was the one who asked us to send it to that particular address and it is work we have been doing since 2012 and there have been no complaints that any gold we exported did not reach the designated address. Q. The person you attentioned on the document accompanying the gold, Stephanie Somaira never received the gold, I suggest to you. A. That is not true because where the gold was delivered attested to the fact that the gold had been delivered so if there has been no such delivery, we would not have received any document – [page 248 ROA]. Q. It was 3rd accused who your delegated to represent you at the laboratory, is that not so. A. That is not so. 3rd accused was not acting on my behalf. 3rd accused and Roberto are on the same side so 3rd accused went to the refinery and she went in the interest of Roberto not me – [page 249 ROA]. This cross-examination is to show that the 2kg sold was sent and received in Dubai and also that 3rd accused acted in the interest of Roberto as a partner as he himself said. It also confirms 3rd accused’s story that she and Roberto sent the assay report from Dubai which she brought down to Roberto to Bar Purity in her statement to police. All these go to confirm the story of the appellants that the 2kg sold was exported to Dubai to the refinery of Roberto, the refinery of Roberto’s choice and the assay report sent to him. These are more contradictions in the prosecutions’ case. Roberto also told police he collected USD20,000 from Bar Purity and handed same to 3rd accused to pay for the release of quantity of gold in a box at a Security Company. Though he was not made aware of the whereabouts of the company. These are not credible stories from an accomplished businessman from Europe. Why pay huge sums like that if you are not sure about it? Before we proceed, we ask what is a contract? A contract is an agreement enforceable at law. An essential feature of a contract is a promise by one party to another to do or forbear from doing certain specified acts. The offer of a promise becomes a promise by acceptance. Contract is that specie of agreement whereby a legal obligation is constituted and defined between the parties to it. For a contract to be valid and legally enforceable, there must be; i. ii. iii. iv. v. vi. Capacity to contract Intention to contract Consensus ad idem Valuable consideration Legality of purpose Sufficient certainty of terms Osborn Concise Law 8th edition page 89 We now ask ourselves, from the facts and the various statements from the complainant, the accused persons and prosecution witnesses as analyzed above has the prosecution established the charge of conspiracy to defraud by false pretences against the appellants? Has prosecution established all the elements of both charges beyond reasonable doubts against the appellants to merit a conviction? The learned trial High court Judge on the standard of proof required in criminal trials quoted from page 48 – 55 of “Essentials of the Ghana Law of Evidence by S. A. Brobbey” pages 50 and 51 said: “Proof beyond reasonable doubt does not mean that there should be no doubt whatsoever in the case presented by the prosecution. It means that by the end of the trial the prosecution must prove every element of the offence or the charge (but not all the facts) and show that the defence is not reasonable.” From this definition, two things are to be established by the prosecution; i. ii. Every element of the offence must be proved and To show that the defence of the accused is not reasonable. The law is that, the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof in criminal trials, as beyond reasonable doubt. This is to say the prosecution must establish a prima facie case and the burden will be shifted to the accused persons to open a defence and in so doing, he may run the risk of non-production of evidence and or non-persuasion to the required degree of belief else he may be convicted of the offence. The law is that when the accused opens his defence the court is required to satisfy itself that the explanation offered by the accused is either acceptable or not. If it is acceptable, he must be acquitted and if it is not acceptable, the court should probe further to see if it is reasonably probable. If the explanation given by the accused in his defence is reasonably probable, he should be acquitted but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. See – Republic v. Francis Ike Uyanwune [2013] 58 GMJ 162 CA. We said earlier in this judgment that a case of conspiracy without proving that the persons involved agreed to act together to commit the offence shall fail. It is however not a defence for an accused person who is charged for conspiracy to state that he did not have prior or previous concert or deliberation with the other accused persons to commit the offence where there is evidence that they agreed to act together to commit the offence. Before we delve into the charge of conspiracy against the appellants, one issue which cropped up was whether PW1 was qualified to testify in the case. Normally in criminal trials, all witnesses who testify give statements to the police and the Law now allows the defence to have access to the statements. In fact, PW1 went to the CID Headquarters as an interpreter to the complainant. Later, on the police boss C/Supt Naami told the appellants that the complainant had given a power of attorney to Mario (PW1) to represent his interest in Ghana. The truth is that Mario (PW1) never witnessed any of the transactions between the complainant and the accused persons until the complainant lodged his complaint at the Police Headquarters. It is true all PW1 said in his testimony were things he was told by the complainant and therefore can his testimony be best described as hearsay? The trial High Court on the issue said, “In the matter, the prosecution has indicated that the complainant is ill and is out of the jurisdiction and can therefore not be present in court to testify. In the circumstances, the evidence of PW1 who says he is friends with the complainant would be admissible?”. The foundation laid makes the testimony of PW1 admissible although under different circumstances, it would have been inadmissible hearsay. Witnesses play a very important role in criminal cases. They help to clarify what happened by telling the judge or jury everything they know about an event. A witness is someone who has relevant information about a crime. A witness is a person who saw or heard the crime take place or may have important information about the crime or the defendant. In both civil and criminal trials every person is qualified to testify as a witness (NRCD 323 S.58) except those expressly disqualified under NRCD 323 Section 59. Ordinarily, a witness should testify on matters in respect of which he has personal knowledge. NRCD 323 Sect 60(1). He may however testify in matters of which he has no personal knowledge provided no objection is raised by any party- NRCD 323, S.60 (3). There was no evidence before the High Court by way of medical report that the complainant was sick and unable to attend court to testify. The 1992 Constitution guarantees the innocence of all accused persons until proven guilty. The charges against the accused hinged on a contract signed for supply of gold. A lot of money transactions were carried out and the best person to testify was the party himself who is the complainant. If there was evidence he was incapacitated due to ill health or deceased, then it is a different issue. Prosecution failed to tell the court if they made any efforts to bring him down but could not. Just to say he is sick and out of the jurisdiction is not enough. After all, he was not domiciled here. This trial was as recent as 2019. Prosecution could have used other virtual means to get him to testify, e.g. by skype or video conference, etc. Prosecution was able to play a pen drive video in court so was capable of engaging in virtual technology for his evidence. The absence of the complainant affected the case of the appellants in the sense that though prosecution relied on the statements made by the complainant to them to prosecute the appellants, the appellants did not have the opportunity to cross-examine him on those statements. This was unfair to the appellants especially since this is a criminal trial for which they eventually were convicted and sentenced to prison terms. PW2 testified in court but the capacity in which he did was not very clear. He took over the case as the investigator but before that he told the court he was investigating a similar case against the appellants and sending verbal reports to the Headquarters at the time C/Insp Adaba was the official investigator. Even before this case docket was officially transferred to him, he claimed he was carrying out a parallel investigation of the case and giving verbal reports to the CID Headquarters. Eventually, when he took over, he collected no statements from any of the accused persons. He just tendered their statements already taken by Adaba in court. He also never entered anything into any diary of action throughout his investigations, which is not normal with police investigations. There was evidence of bad blood between the appellants and PW2. The appellants had reported the PW2 to PIPS and petitioned the IGP against him. They also sued him in a civil suit. We think with all these it was just prudent he laid his hands off this case but he did not. The appellants alleged a likelihood of bias on his side which we think is very possible. It is trite law that in a criminal trials failure to call material witnesses is fatal to prosecution’s case. As a general rule, the prosecution are required to call any material or relevant witness whose evidence might resolve doubts in the case one way or the other, and failure to call such a witness has been held to be fatal to the case for the prosecution – R vrs Kuree [1941] 7 WACA 175. The Supreme Court held in the case of Tetteh vrs the State [1965] GLR 670 that, since there was no indication on record that the prosecution had reason to believe that the two witnesses, whose evidence could have resolved the doubt as to the amount received by the accused, would not speak the truth or that they could not be traced, the said witness should have been called because they were material and relevant witnesses. In Rep vrs T. O. Asare [1968] GLR 93, it was held further that the inconvenience and expenditure involved in calling a witness even from overseas are no excuse where a material witness has been called to testify – see Brobbey page 80-81. Sometimes it may even be necessary to call an investigating officer who conducted inquiries into the case and failure to do so may render the trial improper – Agyiri vrs C. O. P [1963] 2 GLR 380 SC. The prosecution is however relieved from calling a material witness if they have reasonable grounds to believe that the witness will not speak the truth. Annim vrs The Rep [1972] 1 GLR 354 CA. Chief Inspector Adaba was the original investigator who started the investigations collected statements from the complainant and the accused persons. He was still at post as a police officer, promoted to ASP and was stationed at Dodowa as a crime officer but prosecution failed to call him to testify for the State. They alleged he did not do a thorough investigation which he denied in the query to him. We wonder why the State failed to call him as a witness, at least to tender the statements, tell us how he collected them and what the parties told him since he met them first, interrogated them when the matter was fresh. Is it because prosecution felt if he was called his evidence will affect their case? In this instance, prosecution had no choice but to call him since he investigated the case. The worst they could do was to apply and treat him as a hostile witness but failure to call him was fatal to their case. The trial judge erred in not insisting prosecution called him as a witness. We are not oblivious of the fact that prosecution has the choice of who to present as a witness but they do not have a choice where the witness played a very vital role like the investigator even if his testimony will affect their case. They were under an obligation to call C/Insp Adaba to testify since he received the complaint and took statements from the complainant, invited the suspects and took statements including Investigation Caution Statements and Charged Statements from the accused persons. Was prosecution hiding something from the court? We cannot tell. Prosecution also failed to call any witnesses from the HFC bank especially that “third party” to tell the court how they got the gold from the vault. They also failed to call any witnesses from the PMMC as to what happened to the gold brought to them from HFC and how it was tested. Failure to call all these material witnesses was fatal to their case. We are of the view that every case must be dealt with on its own merits. PW2 can be investigating a similar case involving the same accused persons, but cannot be allowed to be sending information to the police headquarters against the accused persons from that other case which will be used against them in this case. It is unfair to the appellants since the complaint and the complainants in both cases are different. How the case got transferred to PW2 in particular also is strange. Is it because he has some expertise in such cases or something else? We wondered how a case was transferred from the headquarters to a District Office, though it is possible it is rare, since its rather in most cases, the other way round. Be it as it may, this is an investigator in a criminal case who never recorded anything in any diary of action till he testified in court against the accused persons. The appellants alleged the threats he and the father working at F. I. C issued against them. One of the accusations against the first investigator Adaba was that he became friends to the appellant and allegedly running errands for them hence the transfer of the case from him. It is in evidence the PW2 became friends to the complainant and even saw him off at the airport when he was leaving. When asked, he said, “every potential caller is an ally”. The cliché, what is good for the goose is equally good for the gander. From the evidence before us, it is very clear there was some bad blood between PW2 and the appellants and there was the very likelihood of bias from him against the appellants. The prosecutor in a comment which is not part of the evidence but on record said, “there are several interests in this case.” We however shall not comment on that. As we said earlier our 1992 constitution says all accused persons are presumed innocent until proven guilty. After these observations, we now ask the question, has prosecution been able to establish that the accused persons agreed to act together with a common purpose to defraud the complainant by defrauding by false pretences? The whole transaction was based on a contract signed between the complainant and Ocean Link Mining Ltd. – Exhibit ‘I’. Those who the complainant described as his partners, 3rd accused and 4th accused led the complainant to Ghana to come buy gold from Daniel Andreani his own compatriot (Italian). We must at this stage state our utmost surprise at the High Court that granted bail to 3rd accused, who was charged with the other accused persons for trial. This is a foreigner, who played very vital role, from the beginning to the end of this case. She was duly arrested, processed and charged for court on the charges of conspiracy and fraud for which she was aware. The police had taken lawful custody of her passport. Why will another High Court grant her bail, order the release of her passport to her to travel to Italy for medical attention and expect her to return and face trial? One of the common grounds of refusal to grant bail is if the court is of the view the accused will fail to attend trial because of the charge and the severity of the sentence. The High Court however granted her bail to travel to Italy and as expected she never returned to face trial. Her role and statements she made to police was very vital for the case of the appellants. If she were available to be cross-examined would have helped the court may be to arrive at a different decision especially concerning the appellants. Prosecution’s case is that all the companies that played a role in the transaction are all for the appellants and it is a scheme they have to defraud unsuspecting foreigners. This the appellants denied. Their case is that they came into the picture because they ship gold and the parties in the contract chose them to ship the gold for them. They also stated they have a licence to that effect from the Minerals Commission which was not denied or controverted by prosecution. To help an investor to get a visa to Ghana is no crime. The letter Kwaglo wrote to Immigration to apply for visa for complainant was no crime. There was no evidence before us to show that they lured the complainant to Ghana to defraud him. It is trite law that he who alleges must establish especially when the opponent denies – See Section 11 of Evidence Decree NRCD 323, (ii) George vrs Hlodjie Pt III [2006] 3 MLRG 179. The burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial, depending on the issues asserted or denied – In Re Ashalley Botwe etc [2003/4] SC GLR 420. It is trite mentioning that the mere assertion by a witness does not amount to proof - T. K. Seeberh & Co. Ltd vrs Mensah [2005/6] SC GLR 241. The onus was on prosecution to lead positive and cogent evidence to establish the assertions made by their witnesses and not just saying them on oath. Complainant himself said a business partner in Italy informed him of Daniele in Ghana who has gold to sell. He spoke with Daniele his compatriot, believed him before coming to Ghana. On his arrival he met Daniele, 3rd accused and Omar at the airport, signed two contracts before even meeting the appellants. There is evidence the copy of the contract was e-mailed to him which he studied before coming down to Ghana. The role of Bar Purity is clearly spelt out in the contract. They are to ship the gold and an amount stated in the contract was to be paid into their bank account which the complainant duly complied with. These facts and obligations on the complainant was known to him before he signed the contract. The appellants never played any tricks on him to pay the €200,000. It is in the contract he signed. The appellants never defrauded him by making any misrepresentations to the complainant that made him pay the €200,000. It is his obligation in the contract he himself signed. From the facts given by prosecution himself, vis-à-vis the evidence on record, nothing shows that the appellants misled or defrauded the complainant into paying the €200,000. We do not see any conspiracy here involving the appellants to defraud the complainant. The contract signed clearly states that Bar Party will ship the gold and not to buy the gold. Secondly, the contract again clearly state that the complainant will pay €200,000 to Bar Party and the reason for the payment was clearly stated in the contract and in the complainant’s own statement to the police when he lodged his complaint to the police. From the evidence before us, the complainant at the police station made a report against the Directors of Ocean Link Mining Limited and not the Bar Purity represented by the appellants. C/Insp Adaba in the station diary recorded that the complainant on the advice of his counsel agreed to settle the accounts of Bar Purity to know the outstanding amounts. All these show that the appellants never made any false representation to the complainant to defraud him. On the 2kg gold, the complainant was clear he received same in Dubai and the Ary refinery paid the value of the gold to his company DLR, the tune of $63,000. He also said the 2kg gold shipped by Bar Purity was genuine and he and 3rd accused brought the assay report from the Dubai refinery to the appellants. It is trite learning that in criminal trial, the onus is always on the prosecution to prove the charges against the accused beyond reasonable doubt and it is never the duty of the accused to prove their innocence. A court ought not to convict upon circumstantial evidence unless guilt it is in the irresistible conclusion that can be drawn from that evidence. Put in another form, there should not be conviction upon circumstantial evidence unless guilt is the only inference which can be drawn from the facts. Therefore, where circumstantial evidence is consistent with guilt as well as with innocence, the court must acquit – Dunkona v. The State [1964] GLR 364 It was the principle of the law that in order to justify a conviction the evidence adduced against the accused should attain a degree of certainty – Moshie v. The Republic [1976] 2 GLR 311. 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 – Caswell v. Powel Bal Ltd. [1940] AC 152 CT 169. We are not conferring any “sainthood” title onto the appellants, but every criminal case must be determined on the evidence available before the trial court. There is not a scintilla of doubt in our minds that on the totality of evidence before this court that prosecution could not establish any element of the charge of conspiracy against the appellants. There are also several doubts, inconsistencies and contradictions in the prosecution case which will innure to the favour of the appellant. There was no element of conspiracy proven against the appellants. If there was any conspiracy at all to defraud the complainant, then it was by his own compatriots, the 3rd and 4th accused who led him to the 5th, 6th and 7th accused persons in Ghana. We are of the view this is one contract gone bad and if the complainant thinks he has the legal right can sue the seller for damages for breach of contract. Ultimately interpretation of contracts or documents of any kind must give effect to the intent of the parties. The courts were duty bound to give effect to the parties written intentions – Gorman & Gorman vrs Ansong [2012] 1 SC GLR 174. On the totality of the evidence before us, we hold that the learned trial Judge erred in convicting the appellants for conspiracy. The conviction is hereby set aside. Defrauding by false pretence: Defrauding by false pretence is committed under Section 131 (2) of Act 29 where an accused person who by means of false pretence or by personation obtains or attempts to obtain the consent of another person to part with or transfer ownership of a thing based on a false representation that he was acting on the instructions, orders of request of the President of the Republic of Ghana or a member of the cabinet. The essential ingredients of the offence were that: - i. ii. The person shall by means of a false pretence or personation., it shall be used to obtain or attempt to obtain consent of another person. For the other person to part or transfer ownership of a thing, the parting or transfer must be based on false representation made by written, spoken, sign language or in any other means whatsoever. The ingredients for defrauding by false pretence are that a person shall make a false representation or by a personation either by written, spoken or sign language or any other means whatsoever; the said representation was made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was false or made without the belief that it was true; as a result of the false representation the accused person caused the other person to part with or transfer ownership of a thing – See i. Republic v. Selormey [2001/2] GLR 24 ii. Sarpong. The Republic [1981] GLR 790 From the definition of the offence, there is no evidence before us that the appellants made any false representation to the complainant for which he lost ownership of anything. It was a contract he signed and the role Bar Purity is to play were stated clearly in the contract. The appellants are just to ship the gold but not to supply or buy gold for the complainant. The contract specified the amount to be paid to the shipper. The appellants were not party to the contract. Assuming the parties chose another shipper, the buyer would still have paid them money. I said earlier that every case especially criminal cases must be judged on the facts and evidence available to the trial court for that particular case. We are not suggesting that what prosecution is alleging cannot be possible, it can but then every case must be looked at on its own merits. There is the need for certainty and to take the case out of the realm of conjecture. Prosecution was bound to prove the case against the appellants beyond reasonable doubts and not for the accused to establish their innocence. Finally, on this ground of appeal, we ask, was the defence of the accused acceptable, and if not was it reasonably probable? To us, their defence was acceptable and also very reasonably probable even if it’s not acceptable. The explanation they offered for the 2kg gold, the metal account, the money deposited in it which prosecution failed to check from other members of the trade if that is the trade practice, how their bank account came to be used etc. All these explanations offered by the appellants in the circumstances of the case are all acceptable and also reasonably probable. The justice to be dispensed is justice within the law and not one on sympathy. Judicial sympathy however plausible, can never be elevated to become a principle of law – Frimpong & Anor vrs. Nyarko [1988/89] SC GLR 734 at 742 per Wiredu JSC (as he then was) We think the trial Judge erred in convicting the appellants for the offence of defrauding by false pretenses since they never made any false representation to the complainant to be able to defraud him. That conviction is hereby set aside. COUNT 3: Statement of Offence: Money laundering contrary to Section 1 of the Money Laundering Act, 2008, Act 749 The particulars are that the appellants on 22nd day of July, 2015 by means of false pretence acquired two hundred and sixteen thousand, US Dollars ($216,000) – Section 1 (1) of the Anti-Money Laundering Act, as amended states; - 1. “(1) A person commits an offence of money laundering if the person knows or ought to have known that property is or forms part of the proceeds of unlawful activity and the person a. Converts, conceals, disguises or transfers the property. b. Conceals or disguises the unlawful origin, disposition, movement or ownership of rights with respect to the property; - or c. Acquires, uses or takes possession of the property. 2. For the purposes of this Act, unlawful; activity means conduct which constitutes a serious offence, financing of terrorism, financing of the proliferation of weapons of mass destruction or other transnational organized crime or contravention of a law regarding any of these matters which occurs in this country or elsewhere” The learned trial High Court Judge on this charge said the accused persons would assume a burden, in this case, to show that the proceeds of the charge of fraud levelled against them which was paid into their account was lawfully obtained as far as they are concerned. The court delivered itself further; “It is my view therefore that once a proper case has been established for the offence of conspiracy to defraud and defrauding by false pretences and the sum of USD216,000 has been lost, a case of money laundering was made, the justification for the funds put forward by the accused person are unmeritorious. In the circumstances, I hold that the prosecution has been able to establish and prove beyond reasonable doubt the offence of money laundering against the accused persons under count three of the charge sheet. 1st accused and 2nd accused are accordingly convicted on count three.” With the greatest respect to the learned trial Judge, we beg to differ on several issues in the courts holding. The main elements of money laundering are that, the person(s) knows the property is, or forms part of proceeds from unlawful activity, or ought to have known from the circumstances of the case that the property is or forms part of the proceeds of unlawful activity and that person converts, conceals or disguises the unlawful origin of the property or acquires, uses or taken possession of the property. See Anti-Money Laundering Act 2007 (Act 749) as amended by Amendment Act (Act 874) [2014]. For a person to be guilty of money laundering, the prosecution is required to prove that person knows or ought to have known that the property which is the subject matter of the crime is or forms part of the proceeds from unlawful activity and that person converts, conceals, or disguises or transfers or conceals the unlawful origin of the property or acquires and takes possession of same. In this appeal, the parties to the contract signed between Ocean Mining and DLR chose Bar Purity as the shipper and mentioned the specific roles to be played by them and the amount to be paid. The obligation was followed by the buyer to the latter. How will they know that the seller will not fulfil his obligation? How were they to know that the contract signed was an unlawful activity? How were they to know the contract signed by the parties constitute a serious offence, financing of a terrorist act or any act in contravention of a law? The bottom line of money laundering is that the origin of the money was obtained from proceeds of a crime and this may include offences such as terrorism, robbery, fraud, stealing, trafficking in narcotics, murder, slave dealing, slave trading, piracy, trafficking, genocide and hijacking – Dennis Adjei Contemporary Criminal Law in Ghana page 402 The law states the accused should know or ought to have known that the money has been obtained from unlawful activity. This duty is on prosecution to establish this beyond reasonable doubts against the appellants since it is an element of the crime. The gist of prosecution’s case as I tried to understand it is that the appellants know or ought to have known that the contract the parties signed which asked that USD216,000 be deposited with them for shipping was a crime and therefore unlawful. This is preposterous to say the least. Prosecution has not proved this assertion with positive and cogent evidence beyond reasonable doubt to our satisfaction especially when the defence raised a denial. There is copious evidence, uncontroverted that the complainant collected chunks of the USD216,000 he transferred into the appellants’ bank account. Exhibit “B” series complainant himself said he collected USD50,000 and USD20,000 on two occasions. That also adds up to USD90,000. The cost of the 2kg gold paid from the account was also paid back to complainant in Dubai worth USD63,000 as he said by himself in his statement to the police CID. PW1 and 3rd accused confirmed this assertion. Their statements corroborated the accused’s defence that complainant collected some of the money he deposited. Assuming the exact figure he collected is in dispute, that is neither here nor there, since complainant did collect part of the money. There is evidence uncontroverted that the complainant asked that both parties sit to sort out the amounts collected and what was left with the appellants. This was recorded in the police diary of action and confirmed by ASP Adaba (DW1). The law is that when the evidence of the opposing party’s witness corroborates the other party’s evidence, that evidence must be preferred by the trial court. In other words, whenever the testimony of a party on a critical issue is in conflict with the testimony of his own witness on that issue, it is not open to the trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence - (i) Atadi vrs Ladzekpo [1981] GLR 215 CA, (ii)Manu vrs Nsiah [2005/6] SG GLR 25 That being the case why will prosecution charge the appellants with the original figure of USD216,000? Why were they convicted for USD216,000 and sentenced on same when that was not the figure? The appellants in their defence said the complainant had USD12,000 left in the account before PW2 had an order to freeze the ir accounts. The complainant who transferred the money into the appellant’s bank account still had access to the money and collecting portions as and when he demanded and this he said himself. Why charge the appellants for money laundering of the same amount? We do not think the prosecution, just as we said for the 1st and 2nd counts, established this charge against the appellants. They are found not guilty of same and acquitted and discharged. The conviction by the trial High court on the charge is hereby set aside. On the totality of the evidence before us, we are of the view that prosecution failed to take the case out of conjecture and uncertainty and were not able to establish the same against the two appellants beyond reasonable doubts as required. We allow the appeal. The appellants are acquitted and discharged on all the charges. We set aside the conviction and sentence of the trial of the High Court. We hereby order the PMMC to restore the licence of Bar Purity to them and also to have their account with the bank de-frozen with immediate effect. sgd. SENYO DZAMEFE (JUSTICE OF APPEAL) sgd. N. C. AGBEVOR (JUSTICE OF APPEAL) sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) COUNSEL AUDREY TWUM FOR APPELLANTS STELLA OHENE APPIAH (PSA) FOR THE REPUBLIC/RESPONDENT 68