S v Heman-Mawusi (CR/0259/2025) [2025] GHAHC 144 (20 June 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY THE 20TH DAY OF JUNE 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR /0259/2025 THE REPUBLIC VRS JOHNNY HEMAN-MAWUSI RULING The accused person/appellant herein was arraigned before the Circuit Court Accra on the following charges: COUNT ONE: forgery of other documents contrary to Section 159 of the Criminal Offences Act 1960 (Act 29) COUNT TWO: Uttering forged document contrary to Section 169 of the Criminal Offences Act 1960 (Act 29) 1 COUNT THREE: Possessing forged document contrary to Section 166 of the Criminal Offences Act 1960 (Act 29) COUNT FOUR: Stealing contrary to sections 124(1) of the Criminal Offences Act 1960 (Act 29). At the close of the case of the prosecution on the 21st of July 2023, counsel for the accused person prayed to the court to file a submission of no case for the accused person. On the 15th of October 2024 the Circuit Court trial judge ruled that the prosecution has been able to prove a prima facie case against the accused person requiring him to open his defence. It is against this ruling that the instant appeal was filed on the 28th day of October 2024 seeking the ruling of the trial circuit court to be set aside and an order for the accused person to be acquitted and discharged. FACTS OF THE CASE The complainant in this case, Eleanor Quist is a retiree resident at Osu, Accra. Accused Johnny Heman-Mawusi is an electrical technician resident at Mataheko, Accra. In the early 2000s, accused stayed with the late Paulina Quist who was the head of Quist family and was in charge of family properties including a house and other landed properties at Tudu, Accra. The Accused whilst staying with Paulina Quist gave her a helping hand in the house. In the year 2004, the late Paulina Quist rented out a house at Tudu to a Nigerian called Sunday Chukwurah for his business. Since the deceased was old, complainant Eleanor Quist was collecting the rent for her. Paulina Quist died on 24th March 2011 and after her final funeral rites, complainant Eleanor Quist discovered an Agreement Receipt dated 9th April 2009 with face value of GH¢24,800.00 prepared by the accused purported to have been signed by the late Paulina Quist and witnessed by Samuel Nartey. The Agreement Receipt indicated that accused handed over cash of 2 GH¢24,800.00 to the deceased as rent advance for a period of ten years with effect from 1st January 2008. On 27th March 2012, witness Emmanuel Bannor a family member became suspicious of the signature of the deceased on the Agreement Receipt and petitioned Director - General/CID. The deceased's pension identity card which contained her authentic signature together with the suspected forged Receipt Agreement were submitted to the Police Forensic Science Laboratory, Accra for forensic examination and report. The report from the Forensic Science Laboratory indicated that the alleged signature representing deceased Paulina Quist on the Agreement Receipt was forged. On 3rd November 2016, complainant Eleanor Quist petitioned the Director -General/CID with photocopies of the laboratory Report as an exhibit for investigation into the fraudulent transaction. Suspects Samuel Nartei Nartey and Johnny Heman-Mawusi whose names and signatures were on the Agreement Receipt were invited by the Police, for questioning. Suspect Samuel Nartei Nartey in his cautioned statement to the Police, denied ever signing such document. On 13th December 2016, accused Johnny Heman- Mawusi in his cautioned statement to the Police, admitted that he prepared the Agreement Receipt. He however alleged that he was in the house with the late Paulina Quist when Samuel Nartei Nartey who has been paying rent advance to the deceased brought final amount for a period of ten years with effect from 1st January 2008 and he prepared the Agreement Receipt and they all signed including the deceased. On 7th April 2017, the Agreement Receipt and specimen signature of suspect Samuel Nartei Nartey were forensically examined by the Police Forensic Science Laboratory. On 12th June 2017, a report from the Police Forensic Laboratory indicated that the alleged signature representing Samuel Nartei Nartey on the photocopy of the agreement receipt dated 9th April 2009 marked 'A' could not have been authored by him. Investigations 3 revealed that accused forged the Rent Agreement Receipt and stole GHC24,800.000 belonging to Paulina Quist. After investigations, accused was charged with the offense. GROUNDS OF APPEAL The grounds of appeal filed by the appellant are that: A. The learned judge erred when he held that the prosecution had made a prima facie case in respect of all the counts against the accused person. B. That the learned judge erred by inviting the accused person to open his defence on all the counts he was charged even though the prosecution had failed to make a prima facie case against the accused person. C. The learned judge erred by holding that a prima facie case had been made when the prosecution did not know who the complainant was in the case. D. Further grounds of appeal will be filed on receipt of the ruling in failing to consider the reasons for the submission of no case. Even though it was stated in the notice of appeal that further grounds will be filed upon receipt of record of the ruling, no further ground of appeal was filed at the time of writing this ruling. Since no additional grounds have been filed, it is to be taken that the above constitute the only grounds of appeal for determination in this appeal. RESOLUTION OF THE GROUNDS OF APPEAL The grounds of appeal filed all seek to challenge the ruling of the court which found that the prosecution has proved a prima facie case against the accused person and 4 proceeded to call upon him to enter into his defence. This appellate court will therefore be determining all the grounds of appeal together. The requirement that a case be made against an accused is also referred to as establishing a prima facie case. This implies that, the prosecution by the close of its case should have been able to introduce credible and sufficient evidence on all the essential elements of the offence charged so as to rebut the presumption of innocence granted to the accused person by Article 19 (2) (c) Constitution 1992. The Supreme Court in the case of MICHAEL ASAMOAH & ANOR V THE REPUBLIC (2017) SCGLR AT PAGE 4 per Adinyira (Mrs) JSC stated the instances where it can be said that the prosecution has not proved a prima facie case to be that: a). There had been no evidence to prove an essential element in the crime. b). The evidence adduced by the prosecution had been so discredited as a result of cross- examination. c). The evidence was so manifestly unreliable that no tribunal of fact could reasonable convict upon it. d). The evidence was evenly balanced in the sense that it was susceptible to two (2) likely explanations, one consistent with guilt and one with innocence. With this background and standard, I proceed to examine the record of appeal to find out whether the prosecution has been able to prove a prima facie case against the accused person and also whether the accused person/appellant has been able to demonstrate that, any or all of the above grounds exist for upholding that a submission 5 of no case has been established by him in this case the principle being that an appeal is by way of re-hearing with the appellate court having all the powers of the trial court. The settled principle of law is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the appellate court finds that the court below arrived at the right conclusion based on the evidence and the law, the appellate court does not disturb its judgment. On the other hand, the judgment of the lower court attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A, Apaloo v R (1975) 1 GLR 156 COUNT ONE: forgery of other documents contrary to Section 159 of the Criminal Offences Act 1960 (Act 29) The particulars of offence of count one is “Johnny Heman-Mawusi; Electrical Technician: On the 9th of April, 2009 at Accra in the Greater Accra Circuit and within the jurisdiction of this court, you forged certain document to wit; an agreement Receipt dated 9th April 2009 with face value of GH¢24,800 purported to have been paid to Paulina Quist now deceased for rent advance for ten years with effect from 1st January 2008 which you knew not to be genuine” Section 159 of Act 29/60 provides that A person commits a misdemeanour who forges a document— (a) with intent to defraud or injure another person; or (b) with intent to evade the requirements of the law; or (c) with intent to commit, or to facilitate the commission of, a criminal offence. Per Section 164(1) of Act 29/60 (1) A person forges a document if that person makes or alters the document, or a material part of 6 the document, with intent to cause it to be believed— (a) that the document or the part has been so made or altered by a person who did not in fact so make or alter it; or (b) that the document or the part has been so made or altered with the authority or consent of a person who did not in fact give the authority or consent; or (c) that the document or the part has been so made or altered at a time different from that at which it was in fact so made or altered. The ingredients the prosecution must prove therefore are that: 1. That the accused made or altered the whole of a document or any material part thereof 2.That the accused must have had the intent that the document or any material part thereof so made or altered be believed to have made or altered by any person who did not in fact make or alter it or cause it to be believed to be what it in fact is not. 3.That the accused must have had intent to defraud or injure any person, or with intent to evade the requirements of the law or with intent to deceive. P. K Twumasi in his book Criminal Law in Ghana outlined the ingredients of the offence of forgery. He stated therein that: “ To succeed in proving a charge of forgery against any person the prosecution must establish the following matters: (i)that the accused made or altered the whole of a document or other thing subject matter of the charge or any material part thereof (ii) that the accused must have had the intent that the document or other thing or any material part thereof so made or altered be believed to have been made or altered by any person who did not in fact make or alter it, or cause it to be believed to be what it in fact is not 7 (iii) that the accused must have had intent to defraud or injure any person, or with intent to evade the requirements of the law or with intent to commit or facilitate the commission of any crime ( in the case of forgery of any document whatsoever) or with intent to deceive (in the case of forgery of official or judicial document)” His Lordship Justice Dennis Adjei in his book Contemporary Criminal Law in Ghana at page 377 opined that “the essential ingredients of the offence are that (1) the person has intent to commit forgery; (2) the person is in possession of a document or stamp (3) the document or the stamp is forged, counterfeited or falsified; or (4) the person knows that it is not genuine. Where the first two ingredients which are condition precedent in proving the offence of possession forged documents have been proved, the prosecution is required to prove either the third or fourth ingredient in addition to both. The third and fourth ingredients are in the alternative. Failure to prove that either the accused person had intent to commit forgery and had in his possession a document or stamp which has been forged, counterfeited or falsified; or the person knows that the document or stamp is not genuine will result in the acquittal of the accused person” The prosecution called three witnesses with respect to the case. According to the PW1, after the death of Paulina Quist in March 2011, and after the burial, she detected that Sonny Cargo and Transport Service had another tenancy contract in respect of the subject property different from the one executed in the year 2008. This agreement according to her was for a period of ten years starting from 9th April 2009. This agreement was signed by the accused person, the late Paulina Quist and Samuel Nartei Nartey. She states that she became suspicious because the agreement which had a six year duration had not been exhausted and there was also no evidence that the balance had been paid so there was no need for a new tenancy agreement. Her claim was that a forensic examination was done on the said receipt using the signature of the late 8 Paulina Quist on a Civil Service Pensioner’s identity Card and the report indicated that the signature of the deceased on the receipt was a forged one. PW2 Samuel Nartei Nartey testified per his witness statement and stated that he was the general manager for the company Sunny Cargo and they negotiated the six year rent agreement. With respect to the receipt in question, he testified that same was not prepared by him and his signature on same is forged. Per the evidence led on record, it seems to me the evidence of the prosecution to the fact that the said receipt was forged came from PW2 Samuel Nartey that his signature on the receipt was forged and also the forensic examination report which concluded that “it is highly probable that the alleged signature representing Samuel Nartei Nartey on the photocopy Agreement receipt dated the 9th of April 2009 marked “A” could not have been authored by him” The prosecution’s evidence also centered around the caution statement of the accused person dated the 13th December 2016 and the charge statement dated the 28th of June 2017 where the accused person admitted that when PW2 brought the sum of GH¢24,800 to the late Paulina Quist, he prepared a receipt and Samuel Nartey signed as well as the deceased and himself. In that statement however, the accused person informed the police that the said receipt was not forged but that he prepared same, signed it and PW2 also signed the document. He further outlined the circumstances which led to the receipt being prepared. Firstly it is important to remind ourselves that the forensic report is the work of the expert and in seeking to compare signatures, the Courts of this land have counted on 9 the invaluable support of signature experts. It is therefore provided by Section 112 of the Evidence Act, 1975, Act 323 that “where the subject of the testimony is sufficiently beyond common experience that the opinion or inference of an expert will assist the Court or tribunal of fact in understanding evidence in the action or in determining an issue, a witness may give testimony in the form of an opinion or inference concerning a subject on which the witness is qualified to give expert testimony”. Section 112 of Act 323 carefully stated the extent of use of the expert opinion or evidence, to wit,” assist the Court or tribunal of fact in understanding evidence in the action or in determining an issue”. I believe this underpins the trite learning that, experts give evidence and do not decide cases and that, their evidence at best aids or assists the court to decide on the issues before it and not to conclusively bind the Court to decide a case in a particular way. The Supreme Court thus held in the case of FENUKU V JOHN TEYE 2001-2002 SCGLR 985 that: “The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions.” It was also held in Sasu v White Cross Insurance Co Ltd [1960] GLR 4 that “expert evidence is to be received with reserve and does not absolve a judge from forming his own opinion on the evidence as a whole”. Thus, on the authorities, a trial judge like myself is not bound by the evidence of an expert but is to form her own opinion on the evidence. However, a trial judge must give good reasons if it decides to reject the expert evidence. Such reasons for rejecting the evidence must be from the record and must clearly support such rejection. 10 Indeed, the evidence of such an expert acquires greater weight and status where the expert also happens to be from a public body or is a public officer due to the presumption of due performance of official duties also termed as the presumption of regularity. Per section 37(1) of Act 323 this is a rebuttable presumption. The said section provides that, “it is presumed that an official duty has been regularly performed”. Such a rebuttable presumption per Section 20 of the Evidence Act, 1975, Act 323 “imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact." Therefore, the accused persons against whom it is invoked is entitled to lead evidence at this stage in the form of effective cross examination to refute the presumption that, there was in fact no due regularity or performance of the official or statutory duty in question. See Ghana Ports & Harbours Authority & Captain Zeim vrs Nova Complex [2007-2008] 2 SCGLR 806. At the trial, the expert who conducted the forensic examination did not testify. His work was rather admitted into evidence. The said forensic examination report was authored by a forensic Examiner with the Ghana Police Forensic Laboratory and even though he did not appear in court to testify, once the report has been admitted into evidence the accused person had the task to give the Court reasons to reject the expert report and not attach any weight to it and also rebut the presumption of regularity. In so doing, counsel for the accused person raised issues as to the contents of the report when the investigator PW3 who tendered the report was on the witness stand. This is what transpired under cross examination: “Q: Did you take his specimen signature? A: Yes, I did. 11 Q: What was the result? A: it was negative in respect of the signature on the receipt. Q: What was the degree of certainty and uncertainty? A: I am not an expert but the result was that it does not tally with signature on the receipt Q: So you are not an expert in forensic analysis? A: Yes Q: Are you able to interpret a forensic report? A: I can’t interpret.” It is the prosecution which alleges that the said signatures on the document was forged and based their allegations solely on the said work of the expert who failed to appear before the court to testify on the issues raised on the report during cross examination and must therefore suffer for that. It is trite learning that where fraud or forgery or any criminal act is alleged even in a civil suit same must be proved beyond reasonable doubt. As Ayebi J.A. stated in FORDJOUR VRS KAAKYIRE (2016) 85GMJ 61 @ 79 “In s. 13(1) of the Evidence Act, 1975 (NRCD 323), it is provided that in any civil or criminal action the burden of persuasion as to the commission by a Party of a crime which is in issue requires proof beyond reasonable doubt. The import of this provision of the law is that notwithstanding that fraud which is a crime under the criminal code is alleged in a civil suit, and the fraud is an issue, then it must be proved beyond a reasonable doubt. That is the standard required in criminal cases. The high standard of proof is required because to impute a crime to a person is a very serious matter which cast a slur on the image of the person accused”. 12 Even though at this stage the evidence led must be to the prima facie standard, as the report has been successfully challenged, this court cannot rely on it to make a finding that the aforementioned documents are forged. I am more fortified in this view and also inclined to accept the statement of the accused person in his caution and charge statement which formed part of the case of the prosecution that the said receipt was indeed signed by him, the PW2 and the deceased. I find so because of the evidence of the PW1 that she received the said receipt from the agent of the Sunny Cargo Limited Samuel Nartey PW2. The question that begs for an answer and which no answer was provided for was that, if indeed the accused person forged that receipt and if indeed the PW2 had no knowledge of the said receipt, then how did he come by the said receipt to give to the PW1. To the mind of this court, if he had not had any transaction with the accused person and the late Paulina Quist with regards to that transaction which birthed the said agreement receipt, he would have raised concerns about same when he came into possession of it. In fact contrary to the assertions of the PW1 that it was the PW2 who gave it to her, the PW2 in his evidence was emphatic that he had never seen that receipt before in his life. Per the evidence on record, it was the PW2 who was in charge of payment of rents with regards to the property in question. Therefore, since he was in charge of payments, and he had the said receipt in his possession, the logical conclusion is that he paid the said sum, had the receipt signed by the accused person, the deceased as well as the PW2 and took same away. The result of this is that the prosecution witnesses’ evidence were contradictory of each other. Aside the fact that their evidence was contradictory of each other, their evidence was riddled with inconsistencies. Firstly, the PW1 in one breath, informed the court that she received the said receipt agreement from the tenant Sunday Chwukurah and in another 13 breath, she informed the court that it was PW2 who gave the said receipt to her. Also contrary to the assertions of the PW1 that it was the signature of the late Paulina Quist, which was sent for forensic examination, the PW3 was emphatic that he never sent the signature of the late Paulina Quist for authentication. The settled position of the law is as stated in OBENG V BEMPOMAA (1992-93) GBR 1027 is that, “inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The case of the prosecution which centered around the story of the PW1 was filled with suspicions and speculations. She suspected and speculated that as there was an earlier tenancy agreement for six years there could not have been another tenancy agreement for ten years. This remained suspicions and speculations with no proof on record. The evidence led on record showed that she did not live with the deceased during that period and there is no evidence on record that the deceased ever complained of not receiving any such money from the company. The position of law was restated by the Supreme Court in Francis Yirenkyi v. The Republic [17/02/2016] CA NO. J3/7/2015, the court per Dotse JSC stated that: “What is clear is that, mere suspicions, or a string of suspicions alone are not enough in drawing conclusions and inferences to support a conviction. A Court of law must be mindful of the dangers in acting on a string of suspicions without any real and genuine basis to sustain a conviction.” This court finds that there is no evidence on record that demonstrates that the accused person altered the said agreement receipt. Aside the fact that the prosecution could not prove that the Accused person altered the signature of the PW2 on the receipt agreement there is no evidence on record that even if the accused person altered same, 14 same was done with an intent to defraud. It is not just enough for the prosecution to prove the document was altered. The mens rea of the offence that same was done with intent to defraud ought to be proved. COUNT TWO: Uttering forged document contrary to Section 169 of the Criminal Offences Act 1960 (Act 29) Section 169 of the Criminal Offences Act 1960 Act 29 provides that: “A person who, with an intent mentioned in this Chapter, utters or deals with or uses, a document, or a stamp mentioned in this Chapter, knowing it is forged, counterfeited, or falsified, or knowing it is not genuine, commits a criminal offence and is liable to the like punishment as if that person had with that intent, forged counterfeited, or falsified the document or stamp.” I do not find any evidence on record that demonstrates that the accused /appellant used or dealt with the said document knowing same to be forged. COUNT THREE: POSSESSION OF FORGED DOCUMENT PK Twumasi in his book Criminal Law in Ghana at page 579 paragraph 2 explained the concept of possession. He stated that: “In Criminal law, possession which may be actual or constructive must be distinguished from custody. A person is said to be in actual possession of a corporeal thing if he has physical control over it with the intention of excluding all others except the rightful owner. Where however the thing is in the physical possession of another person over whom he has such control as to be able to order him to release it as and when he wants it, then the other person has mere custody of the thing while the person exercising such control over the thing is the real possessor in law. His possession becomes constructive” 15 Dilating on the first ingredient the prosecution must prove, he opined at page 368 of his book that the prosecution is to adduce evidence to establish either that the document or stamp was in the physical possession of the accused or that it was found in the possession of another person at the instance of the accused that person being either a servant or agent to the accused. The evidence is that the said document was not in the physical possession of the accused and neither was same found in the possession of another person at the instance of the accused person being a servant or agent of the accused person. COUNT FOUR STEALING: The law on stealing as per section 124 of Act 29 is that, “a person who steals commits a second degree felony.” The offence is then defined per section 125 to mean when that person “dishonestly appropriates a thing of which that person is not the owner." It was held in the case of the REPUBLIC VRS MALLAM ALI YUSUF ISA suit No FT /MISC 2007 as follows, “For the offence of stealing to be constituted, therefore the relations, acts and intention to be proved in connection with the thing are: (i) That the person charged must not be the owner of it. (ii) That he must have appropriated it and (iii) That the appropriation must have been dishonest. 16 . Thus in BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608-616 at page 610 it was said that: “ by the provision of Act 29, s. 125, the essential elements of the offence of stealing were that; (i) the person charged must have appropriated the thing allegedly stolen, (ii) the appropriation must be dishonest, and (iii) the person charged must not be the owner of the thing allegedly stolen. Consequently a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place”. Section 122(2) of the Criminal Offences Act 1960 Act 29 provides that: “An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away or dealing with a thing with the intent that some person may be deprived of the benefit of his ownership or of the benefit of his right or interest in the thing or in its value or proceeds or any part thereof” Therefore, it is not enough for the prosecution to prove that the accused person took, moved, obtained, carried away or dealt with the subject matter of which he has been charged with. They would have to proceed further to show that the aforementioned acts were done with the intent that some person may be deprived of the benefit of his ownership or of the benefit of his right or interest in the thing or its value or proceeds or any part thereof. There is no evidence on record that the accused person took, moved, obtained, dealt with the sum of GH¢24,800. It follows therefore that the prosecution failed to prove a prima facie case against the accused person/appellant and the trial judge ought not to have called upon him to enter 17 into his defence. The appeal succeeds. The result of the foregoing is that the accused person is acquitted and discharged. The ruling of this court is to be served on the trial circuit court. PARTIES: APPELLANT PRESENT COUNSEL: FRED ASARE DANQUAH FOR THE ACCUSED PERSON/APPELLANT PRESENT ESTHER FAFA TETTEH FOR THE REPUBLIC/RESPONDENT PRESENT MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 18