S v Khartey and Others (CC/ B1/51/21) [2025] GHACC 51 (12 March 2025)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘A’ OF GHANA HELD AT KOFORIDUA ON MONDAY, 12TH MARCH, 2025 SUIT NO: CC/ B1/51/21 THE REPUBLIC VRS 1. 2. 3. DSP OTUMI KHARTEY NO 47810 ABDUL-RAHMAN MAHAMA ATAAWU JUSTICE NKRUMAH @ NANA SIKA R U L I N G The accused persons were arraigned before this Court on the 9th of August, 2021 on twenty five (25) counts of conspiracy to defraud, abetment of crime and defrauding by false pretences. On count one, they are charged with conspiracy to commit crime to wit defrauding by false pretences contrary to section 23 (1) and 131 (1) of the Criminal Offences Act, 1960, Act 29. The particulars of offence are that between the months of February 2018 and June 2019, at Koforidua in the Eastern Circuit and within the jurisdiction of this Court, they did agree Page 1 of 27 to act together with a common purpose to commit crime to wit; defrauding by false pretences. On count two, A2 alone is charged with the offence of abetment of crime to wit defrauding by false pretences contrary to sections 20 (1) and 131 (1) of the Criminal Offences Act, 1960, Act 29. The particulars of offence are that between the months of February 2018 to June 2019 at Koforidua in the Eastern Circuit and within the jurisdiction of the Court, he did counsel and purposely facilitate the commission of a crime by one Justice Nkrumah @ Kwarteng @ Nana Sika to wit defrauding by false pretences. On count three, A1 is also charged with abetment of crime to wit defrauding by false pretences contrary to sections 20 (1) and 131 (1) of the Criminal Offences Act, 1960, Act 29. The particulars of offence are that between the months of February 2018 to June 2019 at Koforidua in the Eastern Circuit and within the jurisdiction of the Court, he did aid and purposely facilitate the commission of a crime by one Justice Nkrumah @ Kwarteng @ Nana Sika to wit defrauding by false pretences. On counts four to twenty five, A3 is charged with defrauding by false pretences contrary to section 131 (1) of the Criminal Offences Act, 19G0 (Act 29). The particulars of offence for counts four, five and six are that between the months of February 2018 and January, 2019; January 2019 to June, 2019 and February 2019 to June 2019 in the aforementioned place within the jurisdiction of the Court, with intent to defraud, did by means of false pretences, namely by representing to one Philip Boateng, Page 2 of 27 Pearl Akorli Delali and Obeng Gyamfi Ransford that he had influential contacts within the Ghana Police Service and could secure the recruitment of a nephew of Philip Boateng, a step nephew of Pearl Akorli Delali by name Eric Amartey and Obeng Gyamfi Ransford into the Ghana police service, did obtain their consent to part with a total cash sum of Four Thousand and Nine Hundred Ghana Cedis (GH¢4,900.00) Four Thousand and Six Hundred Ghana Cedis (GH¢4,600.00) and Six Thousand and Five Hundred Ghana Cedis (GH¢6,500.00) respectively which statement he well knew at the time of making it to be false. On counts seven to twenty five, the particulars are that for various periods between February 2018 to June 2019 at the aforementioned place and upon the same false representation, he did obtain the sum of Three Thousand and Five Hundred Ghana Cedis (GH¢3,500.00) from Ofori Francis, Four Thousand Ghana Cedis (GH¢4,000.00) from Owusu Kwabena, Five Thousand and One Hundred Ghana Cedis (GH¢5,100.00) from Owusu Yeboah Richard, Six Thousand and One Hundred Ghana Cedis (GH¢6,100.00) from Sarfo Kwabena, Six Thousand and One Hundred Ghana Cedis (GH¢6,100.00) from Agaza Jonas and Five Thousand and Seven Hundred Ghana Cedis (GH¢ 5,700.00) from Richmond Awuah. Further that he did obtain the sum of Five Thousand Seven Hundred Ghana Cedis (GH¢5,700.00) from Charles Fosu, Six Thousand and One Hundred Ghana Cedis (GH¢6,100.00) from Asante Theophilus, Four Thousand and Six Hundred Ghana Cedis (GH¢4,600.00) from Dwumfuor Derrick, Four Thousand and Four Hundred Ghana Cedis (GH¢4,400.00) from Appiah Emmanuel, Seven Thousand Ghana Cedis (GH¢7,000.00) from Adutwum Emmanuel, Six Thousand and Two Hundred Ghana Cedis (GH¢6,200.00) from Abban Karen and Beatrice Nkansah and Three Thousand and Five Hundred Ghana Cedis (GH¢3,500.00) from Boansi Samuel. Page 3 of 27 Also that he did obtain the sum of Four Thousand and Six Hundred Ghana Cedis (GH¢ 4,600.00) from Monica Amankwaa Wise, Five Thousand and One Hundred Ghana Cedis (GH¢5,100.00) from Benefo David, Four Thousand Ghana Cedis (GH¢4,000.00) from Asare Isaac, Four Thousand and Five Hundred Ghana Cedis (GH¢4,500.00) from Barnabas K. Agyekum, Five Thousand Ghana Cedis (GH¢ 5,000.00) from Regina Aning and Seven Thousand and Six Hundred Ghana Cedis (GH¢ 7,600.00) from Evans Wiredu Poku. All the accused persons pleaded not guilty to their respective charges. Prosecution withdrew count one and three against A1 and he was discharged. Prosecution thus proceeded against A2 and A3 only. Accused persons by their plea of not guilty had cast upon prosecution the burden of proof and persuasion. The apex Court in the case of Asante No (1) v The Republic [2017-2020] I SCGLR 143-144 explained the burden on the prosecution as follows: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in Court, including that led by the accused person, the Court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the Court as to the Page 4 of 27 commission of the offence and his complicity in it except where he relies on a statutory or special defence. See: Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [19G1] GLR 408.” The accused persons, by pleading not guilty to the charges, are deemed to have joined issues with the Republic and cast themselves upon the Constitutional guarantee in Article 19 (2) (c) of the 1992 Constitution which presumes them innocent until proven guilty. They have thus earned unto themselves the right to hold any cards they may have to their chest and watch in silence as prosecution seeks to prove its case against them. Unlike King Arthur’s sword, the presumption of innocence of an accused person as guaranteed under the 1992 Constitution, is not caste in concrete. That guarantee is that they are presumed innocent until prosecution has been able to lead evidence to establish their guilt beyond reasonable doubt. That being so, Prosecution may lead credible and positive evidence to upset that presumption. A Court thus commences a criminal trial where an accused has pleaded not guilty on the rebuttable presumption that the accused person is innocent until proven guilty. The onus lies on Prosecution to lead evidence to establish a prima facie case against the accused persons by the close of their case. It is only then, that Prosecution would be deemed, prima facie to have upset the presumption of innocence in favour of the accused and they would in turn be called upon not to prove their innocence, but to raise a reasonable doubt as to their guilt. Prosecution in discharging its burden of proof called four witnesses: Philip Boateng, Detective Sergeant Hayford Lartey, Detective Sergeant Alex Duodu and Detective Page 5 of 27 Samuel Fofie. EVIDENCE OF PW1 According to PW1, A3 is his neighbour. A3 informed him that he knew some “big men” at the Regional Police headquarters in Koforidua and these men had recruited some people he had presented to them into the Ghana police service. PW1 says he expressed interest in having his nephew by name Emmanuel Asamoah recruited into the Ghana police service and A3 told him he would have to pay Two Thousand and Five Hundred Ghana Cedis (GH¢ 2,500.00). He informed his sister and together with his nephew, they all came to Koforidua to meet with A3 who took them to the Koforidua Regional Police Headquarters after they had paid him the agreed Two Thousand and Five Hundred Ghana Cedis (GH¢ 2,500.00). They also handed over his nephew’s birth certificate and examination results to A3. Upon getting to the Regional Police Headquarters, the accused person made them wait and proceeded to enter with only his nephew. Accused later assured them that his nephew would be recruited. Later, his nephew received several calls from an unknown number about the recruitment process and went for an interview as well as a medical examination. They paid Six Hundred Ghana Cedis (GH¢600.00) to A3 for the medical exam. Further, they paid Seven Hundred Ghana Cedis (GH¢700.00) to A3 who requested the same in order to have someone at WAEC work on some issues with his nephew's results. His nephew later received an appointment letter and they had to pay One Thousand Ghana Page 6 of 27 Cedis (GH¢1,000.00) to A3 for the purpose of purchasing items that his nephew needed for training. He travelled to Accra with his nephew to meet A3 who said there would be a vehicle to convey his nephew and others to the Pwalugu training school. Three days later, his nephew called and so he presumed that all was well and he did not hear from him again. He continued that news of his nephew’s recruitment spread and other people contacted him to express their interest in joining the police service. That he in turn introduced them to A3 who took various sums of money from them. One of these people by name Emmanuel Appiah wanted to join the military and A3 confirmed that his “big man” could secure his enlistment. PW1 continued that he introduced five (5) people who all wanted to join the military to A3. They were Owusu Yeboah Richard, Agaza Jones, Theophilus Asante, David Benefo and Sarfo Kwabena. Each of them paid Four Thousand and Five Hundred Ghana Cedis (GH¢4,500.00) to A3 as fees for their recruitment. That all these five (5) people later informed him that they had received calls from a private number about their recruitment. Later, he also received a call from a private number and the person assured him that he was the one who had assisted his nephew to get enlisted into the Ghana police service. The person then told him that he had seven (7) slots to recruit people into the police service. Based on this, PW1 says he organized seven (7) people in the persons of Owusu Kwabena, Karen Abban, Helena, Lawrence Osei Wiredu, Barnabas K. Agyekum, Regina Aning and Page 7 of 27 another person. One of the people by name Yaw Adusi Poku insisted on meeting the big man and he told A3 whereupon A3 informed him that the same would prove difficult. A3 however suggested that they could meet with one of the big man’s subordinates. That he, A3 and Lawrence met with the said subordinate who he later found out was called Rahman (after A3 had mentioned his name) and is A2. A2 asked the said Lawrence to shave his beard as he would soon be joining Emmanuel for training. They also paid Lawrence’s money to Rahman. Again, he went with Karen and her relatives to meet with A3 and A2. A2 informed them that he had been tasked to receive the money and they paid him Six Thousand Ghana Cedis (GH¢6,000.00). They paid the said money to A2 and also handed him Karen's documents. That the seven (7) people kept updating him on the status of their enlistment until they received their appointment letters. He later reported with them to police headquarters in Accra and they were asked to wait for buses that would take them to their training school in Kumasi. PW1 continues that he left them but received a call from them around 10:30 pm that the bus never showed up. When he tried to ring A3, his phone was switched off. That A3 called him after three (3) days and assured him that the seven (7) persons would receive a call and when they did, they should say they were in group “HF”. They later confirmed to him that they had indeed received such a call. However, he later went home upon the invitation of his sister and she told him that his nephew, Emmanuel Asamoah had never gone to any police training school but was staying in a guest house at Akwadum all this while. He contacted his nephew and later lodged a complaint at the police station and A3 was arrested. Page 8 of 27 In all, about twenty one (21) persons were lured by A3 with his nephew's apparent success and these people paid various sums of money to A3 to help them gain employment in the security services. EVIDENCE OF PW2 PW2 testified in his capacity as one of the investigators in this case. According to him, PW1 reported a case of defrauding by false pretences involving himself and about twenty one (21) other people as the victims. He mentioned A3 as the suspect and said A3 had represented to him that he had been mandated by a certain senior police officer to bring persons who had an interest in enlistment into the Ghana Police Service or the Ghana Military for protocol enlistment. He continued that he arrested A3 who mentioned A1 as the senior police officer who had charged him to bring people for the recruitment. A3 mentioned that A1 had purchased a motorcycle for him for that purpose. Although the motorcycle was indeed purchased by A1 for A3, A1 claimed that it was to assist the accused person to work as an informant. He continued that A3 indicated that he had given the monies he received from the victims to A1 and led police directly to A1’s office at the Regional Police headquarters where A1 was the Operations officer for the Eastern Region. A3 pointed to the office and said that is where he had brought the money to A1 and also brought some victims. Further, their investigations gathered that A3 had brought one Emmanuel Asamoah to A1’s office where A3 gave an amount of Two Thousand and Five Hundred Ghana Cedis (GH¢2,500.00) and a birth certificate of the said Emmanuel Asamoah to A1. Page 9 of 27 According to him, A1 was interrogated and he said he had only interacted with A3 as an informant. However, an itemized bill obtained during investigations showed that A1 had interacted with A3 severally for different lengths of time. That further investigation led to the arrest of A2 as an accomplice due to evidence that A2 had met A3 twice at Chris Cafe to receive money and documents from two of the victims and had also met Emmanuel Asamoah for some documents. That A2 denied any involvement and said he had only met A3 at the said cafe when he went in to purchase food and again when he was in the company of others. He tendered in evidence the statement of PW1, Emmanuel Asamoah and some other alleged victims. He again tendered in evidence the investigation and further investigation caution statement of A3, the investigation caution statement of A2, the charge caution statement of A3 and A1 as well as the itemized bill indicating conversations between A1 and A3. He finally tendered in evidence his own statement. EVIDENCE OF PW3 PW3 testified as one of the investigators in the case. His evidence is that PW1 reported a case of defrauding by false pretences to him in February, 2020 at the Effiduase police station. That PW1 mentioned A2 and A3 as well as another person whom he referred to as MP as those who had committed the offence. He continued that he invited A2 and obtained an investigation caution and later a Page 10 of 27 charge statement from him. He also obtained statements from other victims who indicated that they had paid money to A3 in the company of A2. EVIDENCE OF PW4 In his evidence in chief, he said that PW1 reported a case of defrauding by false pretences by A3 to him at the Koforidua Regional Police headquarters in July, 2019. Upon his arrest, A3 led police to rescue a nephew of PW1 who had been staying at a guest house. A statement was taken from the victim as well as A3. A3 mentioned his accomplice as a member of parliament by name Debrah and gave out a telephone number for the said person which proved incorrect. A search on the website of Ghana’s parliament also did not show any member of parliament by that name. He then charged A3 and obtained a charge statement from him. A3 later made a further statement which was a confession statement. That A3 had mentioned A1 as his accomplice, mentioned his name and rank and led police directly to A1’s office at the Regional Police headquarters. He continued that A3 later stated that the person he was referring to as Debrah was actually A1 because he believed that A1 could protect him if he did not mention his name. The victim Emmanuel Asamoah also led police to A1’s office and pointed out the same as where A3 had brought him. That A3 also mentioned having visited a chop bar with A1 and a friend by name Atta Kwadwo. Atta Kwadwo corroborated this in the course of investigations. A3 also mentioned some police personnel who saw him going to A1’s office and those police Page 11 of 27 personnel corroborated A3’s statement. PW4 continued that when A1 gave his statement, he indicated that he had only communicated once with A3 as an informant. That call records retrieved from a telecommunication network established that A1 had indeed been calling A3 and had placed eighteen (18) calls to A3 between January to June, 2018. That A3 also stated that A1 had purchased a motorbike for him to aid his quest of bringing unsuspecting victims and also meeting him when necessary with documents and money. That although A3 indicated sending money to A1’s phone via mobile money, a thorough search of the vendors he disclosed did not indicate any money transfers to A1’s phone number. Other victims later emerged and PW2 was put in charge of that investigation. He tendered in evidence the statement of PW1, that of Emmanuel Asamoah and the investigation and further investigation caution statement and charge statement of A3. He further tendered in evidence photographs of A1’s office as identified by A3 and Emmanuel Asamoah as well as the statement of Atta Kwadwo. Page 12 of 27 PW4 also tendered in evidence the statements of the police officers who saw A3 frequenting A1‘s office, the call records indicating communication between A1 and A3 and his own statement. Prosecution closed its case after this. CONSIDERATION BY COURT It is a legal known that Prosecution bears the evidential burden of establishing all the elements of the offence they have charged the accused persons with. In the case of Richard Banousin v. The Republic, Crim., Appeal No j3/2/2014 delivered on 18th March, 2014, the reverent Justice of the Supreme Court; Dotse JSC says that “the prosecution has the burden to provide evidence to satisfy all the elements of the offence charged’’. In Gligah M Atiso v. The Republic [2010] SCGLR 870 @ 879 the Court held that “Under article 19(2)(c) of the 1992 Constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any Court in any criminal trial, it is the duty of prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person would be called upon to give his side of the story.” Section 173 of the Criminal Procedure and Other Offences Procedure Code, 1960 (Act 30) provides that; "If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him." Page 13 of 27 The Court is thus obligated at the close of prosecution’s case to consider the evidence on record and determine whether it meets the standard of a prima facie case before calling on any of the accused persons to open their defence. The Court must make this determination whether or not counsel for the accused person files a submission of no case. In the case of Tsinowope v The Republic [1989-90] 1 GLR 114 at p117, the Court of Appeal per Osei-Hwere J. A restated the position that “It is a question of law for the trial judge to decide on this matter and not one of fact for the jury.” The law has long been settled as to the factors for a Court to consider in deciding whether or not a case is made out against the accused sufficiently to require him to make a defence. In the Supreme Court case of Asamoah & Anor. v. The Republic [2017-2018] 1 SCGLR, 48C, Adinyira JSC speaking for the apex Court, stated that “the underlying factor behind the principle of submission of no case to answer is that, an accused person should be relieved of the responsibility of defending himself when there is no evidence upon which he may be convicted. The grounds under which a trial Court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial by indictment may be restated as follows; a) b) c) d) There had been no evidence to prove an essential element in the crime The evidence adduced by the prosecution had been so discredited as a result of cross examination; or The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it The evidence was evenly balanced in the sense that it was susceptible to two likely Page 14 of 27 explanations, one consistent with guilt, one with innocence. See the celebrated case of The State v. Ali Kassena [19C2] 1 GLR 144 in which the Practice Direction issued by the Queens Bench Division in England [19C2] 1 E. R 448 (Lord Parker CJ) was approved and the case of Tsatsu Tsikata v. The Republic [2003- 2004] SCGLR 10C8). See also the case of Sarpong v. The Republic [1978] GLR 790. To begin with, A3 is before this Court on 23 counts with 22 of these counts being defrauding by false pretences involving twenty two (22) complainants. Of the twenty two (22) complainants, only one, Philip Boateng testified in this Court as PW1. The remaining twenty one (21) did not appear in Court to testify even though they are all alive and there is no evidence of their incapacitation. The reasons for their absence from prosecution’s submissions appear to be a lack of interest in the case. PW2 had tendered some of their statements to the police in evidence as EXHIBITS H, J, K and L. Although four of these statements as given at the police station were tendered in evidence as EXHIBITS H, J, K and L, I find that as the declarants were all alive and could have appeared in Court to testify and undergo cross examination by the third accused person to test the weight of their evidence but chose not to do so. I attach very little weight if at all to their statements as tendered in evidence. It is elementary that evidence is weighed and not counted. In the case of Frimpong v. The Republic (2012/ GHASC, VOL 3 – 18th January 2012,), it was held by the Supreme Court speaking through Dotse JSC “that evaluating evidence in a criminal trial i s not based on the quantity of witnesses called at a trial in proof of the case of the prosecution or the defence, but the quality of the evidence that the witness(es) proffer at the trial’’. Page 15 of 27 In weighing the evidence against A3 on counts five to twenty five, I find that the evidence cannot be relied upon to sustain a conviction in this case. This is because although PW1 purports to have knowledge of the transactions involving all the other twenty complainants, he mentioned six people in paragraph 40 of his evidence in chief, one person in paragraph 41 and five people in paragraph 34 of his evidence in chief. These together with his nephew; Emmanuel Asamoah add up to thirteen (13) persons and not twenty one (21). Even if the Court is to take that evidence at face value, when this is evaluated in light of the evidence of PW2 and PW4 who investigated this case and whose evidence as I would elaborate on later, point to the fact that A3 was acting on behalf of A1 and indeed knew A1 as a senior police officer, then his evidence completely loses weight. That being so, the evidence of prosecution on these charges becomes subject to far too many questions which were left unanswered by prosecution due to the absence of the complainants. I thus find at the close of the prosecution's case that I cannot rely on the evidence on record to sustain the charges on the respective counts. At the close of the prosecution's case, I hold that they have failed to establish a prima facie case against A3 on counts five to twenty five. He is accordingly acquitted and discharged on count five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty one, twenty two, twenty three, twenty four and twenty five. On count one, on a charge of conspiracy to commit the offence of defrauding by false pretences, the applicable section of the Criminal Offences Act, 19C0 (Act 29) is Page 16 of 27 section 23 (1). It provides that “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”. The erudite Torkornoo JSC (as she then was) in reading the decision of the Supreme Court in the case of Asiamah Vrs Republic (J3 6 of 2020) [2020] GHASC 64 (04 November 2020) held that “The elements of conspiracy as just stated were outlined in Republic v. Baffoe Bonnie and 6 Others (Suit No. CR/904/2017) (unreported) dated 12 May 2020 by Kyei Baffour JA sitting as an additional justice of the High Court in these words: ‘For prosecution to be deemed to have established a prima facie case, the evidence led without more, should prove that: 1. 2. 3. That there were at least two or more persons That there was an agreement to act together That the purpose for the agreement to act together was for a criminal enterprise. The offence of Conspiracy is such that once a person has agreed with another to commit or abet the commission of an offence, the offence has been made out. This is so even where one of the parties resiles from the actual commission or abetment of the offence. Again, the persons need not have had a previous concert or deliberation prior to agreeing to act together. In this case, in order to establish the first offence, Prosecution must prove that 1. 2. The accused persons agreed to act together The agreement to act together was for the common purpose of Page 17 of 27 undertaking the criminal enterprise to defraud the complainants. In Commissioner of Police v. Afari M Addo [19C2] 1 GLR 483, it was held by Azu Crabbe JSC that “it is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert, and so indicating a previous agreement.’’ The Supreme Court, through Appau JSC, stated in the case of Akilu v. The Republic [2017-2018] SCGLR 444 at 451 that : “Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing’’ (emphasis mine) This position of the law was reiterated by the Supreme Court in the oft cited case of Azametsi M Others v. The Republic [1974] 1 GLR 228, where the Court held that it was not always easy to prove agreement by evidence, but it could be inferred from the conduct of and statements made by the Accused Persons. As the offence of abetment with which A2 alone stands accused of on count two, forms part of the offence of conspiracy, I would consider both counts one and two together. On count one, the sum of prosecution’s evidence is that the two accused person’s acted together when A2 and A3 met with some alleged victims on two occasions, collected money from them upon the understanding that the money would be given to a senior police officer for the purpose of recruiting the alleged victims into the Ghana police service. Page 18 of 27 For A3, prosecution’s evidence as to the role he played was to recruit the alleged victims whilst for A2, from the evidence, his specific role was to meet with the victims and assure them that he was meeting with them upon the instructions of the senior police officer who was in charge of ensuring their recruitment. However, I take note that the particulars of offence for count two are that A2 counselled A1 and in so doing facilitated his commission of the offence of defrauding by false pretences. According to the 2nd edition of the Black's Law Dictionary, to counsel someone means to advise them. I must state here that nowhere in prosecution’s extensive evidence did it lead direct or circumstantial evidence to establish how A2 counselled A3 and by so doing abetted him in the commission of this offence. The evidence on record by prosecution is that A2 and A3 met with some of the victims on two occasions at Chris cafe where A3 having represented to the said victims that he knew a big man in the Ghana Police Service who could enlist them into the said service, introduced A3 as the errand boy of the said big/senior police officer. That A2 in turn spoke to the victims and asked one of them to shave off his facial hair as he would soon be joining the Ghana Police Service and then proceeded to receive money and the educational certificates of these victims for onward delivery to his boss. The sum of prosecution’s evidence through its witnesses, particularly PW1 was that by their actions and statements, A2 and A3 had made him to believe that A3 knew a certain big man in the Ghana Police service who could enlist people into the service and A2 was a subordinate of the said senior police man. These inchoate offences would be better addressed if I consider them together with the substantive offence of defrauding by false pretence. Section 132 defines the offence of Page 19 of 27 defrauding by false pretences to be thus; “a person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything”. The Prosecution in order to succeed on a charge of Defrauding by False Pretences in this particular case need to prove that; 1. 2. The accused made a false pretence That by means of the false pretence, the accused obtained the consent of the complainant to part with or transfer their ownership of a thing or property (money) 3. The accused did so with an intention to defraud. By false pretence, the prosecution must prove that the accused, knowing that a statement or representation he was making was false, made such a false representation to the complainant with the intention that he should rely on the said false statement. Prosecution must go on to prove that the complainant relied on the false statement to his detriment. This means that he was induced by virtue of his belief in that statement to part with his money. On the last element of an intention to defraud, Section 1(c) of the Criminal Act, 1960 (Act 29) provides that for the purposes of any provision of this Code by which any forgery, falsification, or other unlawful act is punishable if used or done with intent to defraud, an intent to defraud means an intent to cause, by means of such forgery, falsification, or other unlawful act, any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or to the loss of any other person. Page 20 of 27 On the first element of a false pretence, prosecution’s evidence appears to have wobbled so much that even after being given a seat, it still could not be stabilized. The evidence is quite confusing. I say so because according to prosecution in its particulars of offence, A3 falsely represented to PW1 that he had influential contacts or “big men” within the Ghana police service who could recruit persons interested in the service. PW1 was emphatic in his evidence in chief and under cross examination by A3 that A3 had not stated that he could personally recruit people into the Ghana police service but rather that he had top police officers who could do so. As prosecution was laying its claim on the fact that this representation was false, it bore the burden of leading evidence that A3 did not indeed know any influential person or “big man” within the Ghana Police service at the time he was making this representation. Yet, prosecution’s evidence appears to do the exact opposite of this. The evidence of PW1, PW2, PW3 and PW4 all point to the fact that A3 indeed knew A1 who by virtue of his rank as a Deputy Superintendent of Police and the director in charge of operations of the Eastern Regional Police Command as evidenced by EXHIBITS Q series (which were tendered in evidence by PW2 and PW4) would be considered as a big man within the police service in the Eastern Region. Prosecution’s own evidence further manifests that A3 did not only know A1 but prima facie appears to have been acting as his agent in the recruitment of persons. This prima facie evidence is inferred from prosecution’s evidence to the effect that A1 gave a motorbike for A3 for his own use even though he is not a service man and also that one Atta Kwadwo per EXHIBIT P1 corroborated A3’s claim of having a cordial Page 21 of 27 relationship with A1 extending to them having lunch at a chop bar together. A3’s intimate knowledge and dealings with A1 is again put on display by prosecution’s further evidence that the nephew of PW1 pointed A1’s office as the office to which A3 had taken his educational certificates as well as the sum of Two Thousand and Five hundred Ghana Cedis (GH¢2,500.00) for onward delivery to the “big man”. In addition to this, prosecution led evidence to prove that A3 knew A1 not by way of an acquaintance but in a more detailed manner. The evidence of PW2 and PW4 are that per EXHIBIT “D” and “S” series the call records obtained from Vodafone telecommunication’s company bear out the claim of A3 that he was in regular communication with A1. A1 and A3 had communicated eighteen (18) times on that particular telephone number within a period of less than eighteen (18) months. All these evidence from prosecutions own witnesses make it manifestly evident that A3 did not make a false representation about knowing an influential man within the Ghana Police Service Eastern Regional Command and more importantly that he knew an influential man in the person of A1. When these pieces of evidence are added to EXHIBITS P2 and P3 which are the statements of policemen indicating (particularly per EXHIBIT P2) that A3 was regularly seen at the premises of the Eastern Regional Police headquarters; sometimes in the presence of other persons and upon questioning indicated that he had come to see A1 and indeed headed to A1’s office, then the question that any reasonable man would ask is, how can the evidence on record lead to an inference that A3 made a false representation that he knew an influential policeman who could recruit interested persons into the Ghana Police service and military? Page 22 of 27 The evidence on record rather points to a reasonable inference that A3 indeed knew the said influential man in the person of A1 and thus was not making a false pretence. This inference is further buttressed by the answers of prosecution witnesses under cross examination by learned counsel for A2 and A3 himself. PW2, PW3 and PW4 are all policemen who investigated this matter. Under cross examination, they had made it explicitly clear by their words and demeanour that they had come to the conclusion per their investigations that A3 did not only know but was working with A1. Prosecution is not mounting its case on a claim that even though A3 knew an influential “big” policeman, he had falsely claimed that the said “big man” could recruit interested people into the Ghana police service and neither had it sought to lead evidence on the same. Prosecution had also not led any evidence that A3 had cause not to believe A1 could do what he represented and yet had gone ahead to make this representation to other persons including PW1. Prosecutions’ claim and to which it led contrary evidence is that A3 had falsely represented that he knew influential people in the Ghana Police Service who could recruit interested persons into the service and the military. Since prosecution had established that indeed A3 knew a DSP and director of operations of the Eastern Regional Police Command and who is a senior police officer in the person of A1 and had from all the evidence on record, prima facie acted as an agent Page 23 of 27 of A1 for the purpose of recruiting interested persons into the Ghana Police Service and had given moneys received for that purpose to A1, it stands to say that prosecution has failed in establishing an essential element of both count one and count four which is that A3 made a false pretence. With regard to A2, as already indicated, prosecution did not lead a scintilla of evidence in proof of their claim that he counselled A3 to commit the offence. According to PW1 under cross examination by learned counsel for A2, A2 received money in his capacity as a subordinate for onward delivery to his superiors and he (PW1) asked A2 to make sure that his superiors did the work for which the money was paid. As learned counsel had rightly pointed out under cross-examination, PW1 had given four statements to the police. The first two did not mention A2 at all. It was the latter which mentioned A2. It is not lost on me that contrary to police practice as explained by PW4, PW1 had managed to lodge two complaints at different police stations within the same jurisdiction against different persons in respect of the same transaction. He had initially lodged a complaint against A3 at the Regional Police Headquarters and that was investigated by PW4. This was in July, 2019. He did not mention A2 in his statement and further statement. His nephew had also given a statement and did not mention A2. Then in February 2020, PW1 had proceeded to Effiduase police station which itself is jurisdictionally under the regional command to make a complaint against A2 and A3 in respect of the same transaction. He was assisted in the latter by A1 who was at the time standing trial before this Court together with A3 on the complaint that the very same PW1 had made to the police in July, 2019. Page 24 of 27 Under cross examination by A3, PW2 had answered that it was A1 who named A2 as A3’s accomplice. This was after A1 had denied knowing A3. The question here is if A1 did not know A3, how did he know that it was A2 and A3 who were acting together with a common purpose to commit the crime of defrauding by false pretences by which reason, he led PW1 to make the complaint at Effiduase police station. It begs the Court’s imagination as to why A1 who had been arraigned before this Court with A3 after PW4’s investigations would lead PW1 to a different police station to make a complaint when whatever issues PW1 wanted to be addressed could have been stated to the initial investigator- PW4 at the same police station. As an accused person at the time, A1 by leading PW1 to make another complaint at a different police station was clearly interfering with investigations and prosecution’s witness. To further muddy the waters, PW3 who is the investigator from the Effiduase police station testified and under cross examination by learned counsel for A2, answered that he did not conclude his investigations and so cannot conclude whether or not A2 took any moneys from anyone under the pretext of securing a job for him. Most significantly, he further answered that he cannot conclude whether A2 assisted or in any way helped A3 in collecting monies from the complainants for the promise of a job in the forces. On his part, PW4 was emphatic under cross examination that his investigations did not find A2 culpable. Indeed, his investigations did not even extend to A2 because he was not a suspect. Page 25 of 27 The basis of A2 being arraigned before this Court is based on investigations by the Effiduase police. According to PW3, the investigations were not conclusive of A2’s complicity in this matter. Since prosecution had no concrete evidence as to how A2 had conspired with A3 to commit this offence and how he also abetted him, the question that any reasonable man would ask is why was he arraigned before this Court? The whole episode smacks of an attempt by A1 to use his superior rank to change the trajectory of this case- contrary to known police investigative procedures as explained by PW4 under cross examination. It appears that he had been allowed to succeed. The investigations were not synchronized and so this Court has different accounts of incidents from different police stations against each of the accused persons without any attempt to harmonize investigations. PW2, PW3 and PW4 all appeared to be unwilling witnesses who readily admitted to the rather bizarre state of affairs of this investigation. PW4 agreed with A3 under cross examination that PW1 had connived with A1 who was at the material time facing charges before this Court to make the complaint at the Effiduase police station. At the close of the prosecution's case, I find that on count one, its evidence is not reliable and cannot sustain a conviction. On count two, I further find that prosecution has failed to establish by positive evidence any evidence of how A2 abetted A3 in the commission of the offence of defrauding by false pretences. On count four, which is a substantive charge of defrauding by false pretence, I find that prosecution has failed to establish the first element of the offence. I would not proceed to consider if it has established the other elements as that would be an exercise in futility Page 26 of 27 that would hardly amount to a judicious use of judicial time. This is because prosecution must establish all of the requisite elements of the offence and not some. Thus, having failed to establish the first element, it stands to say that even if it establishes the other elements, it cannot be held that it has discharged its obligation to establish all the elements of the offence. I find that prosecution has failed to establish a prima facie case against the two accused persons. Accordingly, on count one and count two, I hereby proceed to acquit and discharge A2 and on count one and four, I hereby proceed to acquit and discharge A3. Prosecution, you have a right of appeal. (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) EMILY ADDO-OKYIREH (CHIEF STATE ATTORNEY) FOR THE REPUBLIC YAW ODURO- ASANTE FOR DOLLAH DJABA MENSAH FOR A2 Page 27 of 27