Otu v S (CR/0261/2025) [2025] GHAHC 148 (26 May 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 26TH DAY OF MAY 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/0261/2025 RAPHAEL NII OTU CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant herein was arraigned before the Adentan Circuit Court on the 11th day of July 2024 wherein he was charged with two counts of defrauding by false pretense contrary to Section 131(1) of the Criminal Offences Act 1960 (Act 29). The appellant pleaded guilty with explanation to both counts and the trial judge upon hearing the explanation of the appellant found that the explanation confirms the guilt of the appellant and proceeded to convict him on both count one and two. Upon conducting a pre- sentence hearing, the appellant herein was sentenced to two years imprisonment on count one and twelve months imprisonment on count two; sentence was to run consecutively. It is 1 against this conviction and sentence that the appellant filed the instant petition of appeal on the 24th of February 2025 and amended same which was filed on the 9th of April 2025. GROUNDS OF APPEAL The grounds of appeal filed are as follows: 1. That the conviction was wrong as the explanation of the Appellant amounted to a defence. 2. That the sentence of Two (2) years in respect of Count One (1) and Twelve (12) months in respect of Count Two (2) are harsh and excessive having regard to the circumstances of the case. 3. That the two (2) offences were all embodied on the same charge sheet and based on the same transaction and as such the sentence should have run concurrently and not consecutively. 4. That the prison sentence without the option of a fine was harsh and excessive. FACTS OF THE CASE The facts of the case as given by the prosecution is that the complainant Paul Thomas is an Engineer and resides in Accra. The 2nd Complainant Joseph Mensah is a sprayer and lives at Salem Estate, Accra whilst accused Raphael Nii Otu is unemployed and also lives at Salem Estate Accra. During the month of June 2024, the accused who is a caretaker in the house of one Georgina Fenny contacted both complainants who needed a room to rent and told them that the owner of the house needed money urgently therefore, the owner had asked him to rent her 2-bedroom house located at Salem Estate for two (2) years. Both Complainants became interested, and complainant Paul Thomas parted with amount of 2 GH¢11,400.00 while Complainant Joseph Mensah also paid GhC3,600.00 respectively for 2 years to the accused. However, accused after collecting the said amount informed the complainants that the owner of the property had changed her mind and would no longer rent out the place to them. Investigations revealed that, the owner of the house did not contract the accused to rent out the properties on her behalf. Meanwhile, accused has since failed to refund the amount collected from the complainants. A report was made to Police where accused was arrested, and statement was obtained from him. After investigation, accused was charged with the offence and put before the court. RESOLUTION OF THE APPEAL GROUND ONE: THE CONVICTION WAS WRONG AS THE EXPLANATION OF THE APPELLANT AMOUNTED TO A DEFENCE. In the written submission of counsel for the appellant filed on the 2nd of May 2025, he submitted that the explanation of the accused was equivocal- capable of both an innocent and a guilty interpretation. Counsel for the Republic/Respondent on her end argued that the explanation of the accused person shows a clear case of defrauding by false pretence and his explanation does not give a sufficient cause to the contrary. According to S. A Brobbey in his book “Trial Courts and Tribunal of Ghana” page 78-79 “whenever an accused pleads guilty to a charge but adds words in explanation indicating that he might have a defence to the offence charged, the trial court is under a legal obligation to enter a plea of not guilty on his behalf for the case to be contested on its merits. His Lordship Dennis Dominic Adjei JA in the case of Clifford Broni Bediako v The Republic [16/12/2010] SUIT NO. H2/1/2010 opined that “By practice where an accused person 3 pleads guilty but offers an explanation the words of explanation shall be recorded as nearly as possible in the words used and the court shall enter a plea of not guilty for the accused where the explanation negates the commission of the crime and proceed to hear the case. Where the explanation admits the commission of the offence, the court shall record the plea of guilty and then proceed to convict the accused. Plea is taken when the case is about to start and at that time prosecution had not adduced any evidence for the court to determine whether it creates a doubt in the case for the prosecution…The test carried out after a plea with explanation is whether or not it constitutes an admission or commission of the offence or it constitutes a defence and a plea of not guilty should be entered. If the explanation offered by the Appellant constitutes a defence, the court is enjoined by law to proceed with the hearing of the matter. It is not the duty of the court to believe or disbelieve the explanation because it is not evidence.” In the instant case, the appellant after the charges were read and explained in the English Language pleaded guilty with explanation. The explanation of the appellant was that “I am 28 years old. I needed money to repair my door before my madam will discover. Mr. Paul Thomas gave me the money to fix the door. He wanted to stay in one of the rooms. He paid me GHC11,400. The day he was to move in, my madam returned so I could not allow him to occupy the house. I told him I will pay him his money back. But I have used GHC6,000 to repair the door and the GHC5,400, I have used it to build my food joint. I took GHC3,600 from Joseph Mensah to use to set up my food joint.” Section 131 of the Criminal Offences 1960 (Act 29) provides that: “A person who defrauds any other person by a false pretence commits a second degree felony.” Section 132 of Act 29 defines the offence of defrauding by false pretence. It provides that: “A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” 4 From the definition of the offence of defrauding by false pretence as provided for in Section 132 of Act 29 and stated supra, the ingredients which the prosecution must prove in order to succeed in obtaining a conviction are: (a) that the accused person made a false pretence or impersonated another (b) that by means of the false pretence or personation the accused obtained the consent of another to part with or transfer the ownership of the thing, subject matter of the charge. Going by the law and the ingredients the prosecution is to prove, the explanation given by the accused person with regards to count one (1) does not disclose a defence. That is because per the particulars of the offence of count one (1) read out to the appellant before he pleaded to the charge, he is alleged to “with intent to defraud did obtain the consent of Paul Thomas to part with cash an amount of GHC 11,400 by means of false pretences to wit, by falsely pretending that if the said amount was given to you, you could secure a two bedroom self-contain to him for two years and upon such false representation you succeeded in obtaining the said money from him which statement you well knew at the time of making it to be false”. Thus by explaining that Mr. Paul Thomas gave him the said money for his stay in the room which he admitted does not belong to him and because his Madam the owner of the room returned, he could not let Paul Thomas stay in the room as he represented, then same is an admission of the offence as rightly found by the trial circuit judge. With regards to count 2 also, he admitted taking the money from Joseph Mensah to set up a food joint. Counsel for the Republic submitted that “the explanation is not clear whether he took the money for the room or for the food business. We concede that the Appellant’s explanation for count two does not amount to a guilty plea.” It is the view of this court that the explanation given by the appellant with regards to count two did not constitute an admission to the offence of defrauding by false pretences. As noted above, the ingredients the prosecution must prove with regards to the offence the appellant was charged with was restated in the 5 case of REPUBLIC v SELORMEY [2001-2002] 2 GLR 424 that “Therefore for the prosecution to succeed in proving the charges of fraud by false pretences against the accused person, the law requires that the prosecution must prove by evidence, the following: (a) That the accused person made a representation either by written or spoken words or any other means whatsoever. (b) That the said representation was in regard to the existence of a state of facts. (c) That the said representation was false or made without the belief that it was true. (d) That by that false representation the accused caused Ecobank to pay out of government funds lodged with the bank, the sum of $1,297,500 to one Dr Boadu. Thus, the appellant by explaining that he took money from the complainant for a food joint without more cannot be an admission of guilt of the offence he has been charged with. As such the trial judge should have entered a plea of not guilty for the appellant and proceed to hear the matter. This ground of appeal succeeds in part. GROUND THREE: THAT THE TWO (2) OFFENCES WERE ALL EMBODIED ON THE SAME CHARGE SHEETS AND BASED ON THE SAME TRANSACTION AND AS SUCH THE SENTENCE SHOULD HAVE RUN CONCURRENTLY AND NOT CONSECUTIVELY. Section 302 of the Criminal Procedure Act, 1960 (Act 30) provides that: “With respect to cases where one act constitutes several criminal offences or where several acts are done in execution of one criminal purpose, the following provisions shall have effect: (a) where a person does several acts against or in respect of one person or thing, each of which is a criminal offence but the whole of which acts are done in execution of the same design, and in the opinion of the Court before which that person is tried, form one continuous transaction, that person 6 may be punished for the whole of the acts as one criminal offence, or for anyone or several of those acts as one criminal offence, and all the acts may be taken into consideration in awarding punishment, but that person is not liable to separate punishments as for several criminal offences; and (b) where a person by one act assaults, harms or kills several persons, or in any manner causes injury to several persons or things, that person is punishable only in respect of one of the persons so assaulted, harmed or killed, or of the persons or things to which injury is so caused, but in awarding punishment the Court may take into consideration all of the intended or probable consequences of the criminal offence.” Section 303 (1) of the Criminal Procedure Act 1960, (Act 29) provides “(1) The Court may pass on a person convicted, at one or more trials of any two or more offences, a separate sentence in respect of which section 302 imposes certain restrictions in regard to punishment, and the separate sentences, if sentences of imprisonment, shall run concurrently and not consecutively, and, if sentences of fines, shall not operate in a manner that imposes the fines cumulatively.” In the case of Frimpong @ Iboman v Republic [2012] 1 SCGLR 297 His Lordship Dotse JSC stated thus: “It has generally been accepted that if a person is convicted in respect of several counts emanating from one grand design or criminal conduct, sentence in respect of those counts must run concurrent because the criminal act arose out of one transaction. See case of Tetteh Asamadey a.k.a Osagyefo & Another v C.O.P [1963] 2 GLR 400. In the case of Commodore a.k.a Kayaa v The Republic [1976] 2 GLR 471 the court was called upon to make a determination whether the trial court was right in imposing consecutive sentences on the appellant. In this respect, the court considered the combined effect of sections 302 (a) and 303 of Act 30, the Criminal and other Offences Procedure Act, 1960. What are the facts in the Commodore Case? The appellant Commodore was convicted on two 7 charges of conspiracy to commit robbery and dishonestly receiving proceeds from robbery. The prosecution alleged during the trial that the acts supporting the two charges were acts done in execution of one criminal design or purpose and formed one continuous transaction. He was given a consecutive sentence. It was held on appeal that since the alleged acts supporting the two charges were acts done in the execution of the same criminal design or purpose and formed one continuous transaction, the combined effect of sections 302 (a) and 303 of Act 30 required the sentences to run concurrently. See also Adomako v The Republic [1984-86] 2 GLR 766 which applied the same principle in the Commodore case. The principle might very well be re-stated that where in a trial of a person in respect of more than one count and those counts arise in respect of only one common criminal design and or purpose, forming part of a grand criminal design, sentence upon conviction in respect of the various counts must be made to run concurrent by virtue of the combined effect of section 302 (a) and 303 of the Criminal and other Offences Procedure Act, 1960 Act 30. In the instant case, the acts of the accused person arise in respect of one common criminal design and or purpose; in this case the intent to defraud these two victims to part with different sums of money. The common criminal design was to rent out the rooms of the complainant without her consent and as such represented to the complainants that he had the authority of the complainant to rent out the rooms. The trial court therefore ought to have imposed sentences to run concurrently. This ground of appeal succeeds and same is upheld. GROUND 2 AND 4: THAT THE SENTENCE OF TWO (2) YEARS IN RESPECT OF COUNT ONE (1) AND TWELVE (12) MONTHS IN RESPECT OF COUNT TWO (2) ARE HARSH AND EXCESSIVE HAVING REGARD TO THE CIRCUMSTANCES OF THE 8 CASE AND THAT THE PRISON SENTENCE WITHOUT THE OPTION OF A FINE WAS HARSH AND EXCESSIVE. As this appellate court has found that the conviction for the second count cannot stand as the trial judge should have entered a plea of not guilty and proceed to hear the case, this court would be considering the sentence of two years imprisonment for count one which I have found the conviction as valid and proper within the meaning of the law. Section 131 of Act 29/60 provides that: “(1) A person who defrauds any other person by a false pretence commits a second degree felony. Section 296 (5) of the Criminal Procedure Act 1960 (Act 30) provides that: “A person convicted of a criminal offence under any of the following sections of the Criminal Offences Act, 1960 (Act 29), that is to say, sections 124, 128, 131, 138, 145, 151, 152, 154, 158, 165, 239, 252, 253, and 260 is liable to a term of imprisonment not exceeding twenty-five years.” From the aforequoted provisions of the law, the trial judge had the discretion to impose a sentence of not more than twenty-five years. The trial court having imposed a sentence of two (2) years imprisonment was clearly within the confines of the law. Contrary to the assertion of counsel for the appellant, the offence of defrauding by false pretences is a second degree felony with a term of imprisonment fixed by law. It is therefore mandatory for a trial judge to impose a custodial sentence and the judge may decide to sentence the person to a fine in addition to the prison sentence. The offence the accused person was charged with therefore is an offence punishable by imprisonment. 9 The sentence to the mind of this appellate court is not harsh or excessive considering the amount of money involved and the fact that none of the monies were retrieved. Flowing from the above, the appeal succeeds in part. The conviction and sentence of the appellant on count one is hereby affirmed. The conviction of the Appellant on count two is hereby set aside as the trial judge ought to have entered a plea of not guilty for the appellant and proceed to hear the matter. Consequently, the sentence of twelve (12) months for count 2 is hereby set aside. The appeal therefore succeeds in part. PARTIES: APPELLANT PRESENT COUNSEL: EUNICE DARKOH FOR THE APPELLANT PRESENT JENNIFER AFRIYIE YENTUMI FOR THE REPUBLIC/RESPONDENT PRESENT (SGD) MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 10