Quattara and Another v The Republic (BON/SYN/HC/FI5/012/2025) [2025] GHAHC 177 (26 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON WEDNESDAY THE 26TH DAY OF MARCH 2025 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURTJUDGE SUITNO. BON/SYN/HC/FI5/012/2025 1. HASSANEQUATTARA 2. EMMA(ATLARGE) V THEREPUBLIC JUDGMENT Convict /Appellant present ElizabethAnyeming,AssistantStateAttorneyforthe Republic /Respondent present ElijahOforiBaduholding brief ofMensahBoakyeDavid for the Convict /Appellant 1 INTRODUCTION This is a criminal appeal against the conviction and sentence of the Appellant for Conspiracy with one other (at large) to commit crime to wit; Count 1: Defrauding by False Pretence by means of Fictitious Trading contrary to section 23 (1), 131 and 135 of the Criminal Offences Act, 1960 (Act 29) and Count 2; Defrauding by False Pretence by means of Fictitious Trading contrary to sections 131 and 135 of the Criminal Offences Act, 1960 (Act 29). The Appellant being self – represented pleaded guilty simpliciter to count 1 and not guilty to count 2. Prosecution withdrew count 2 against the Appellant. Her Honour Philomina Ansaah Asiedu sitting at the Circuit Court Dormaa Ahenkro convicted and sentenced the Appellant to three years imprisonment on count 1 and discharged the Appellant on count 2 which was withdrawn by prosecution. Being aggrieved by his conviction and sentence the Appellant per his Counsel filed the Petition of Appeal on 20th August 2024 pursuant to leave granted to the Appellant on thesame date. GROUNDS OF APPEAL The grounds ofappealareas follows; i. That theAppellant waswronglyconvicted by the Courtbelow 2 ii. The facts /evidence do notsupport thecharge iii. The learned trialJudge oughttohaveenterednotguilty forthe convict EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW Sections23(1), 131and 135ofthe Criminal OffencesAct, 1960(Act 29)provides that; 23.Conspiracy (1) 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 aconspiracyto commitor abet the criminal offence. 131.Defrauding by false pretence (1)A personwho defrauds any other person by a falsepretencecommits asecond degree felony. 135.Fictitioustrading Where a person orders, or makes a bargain for the purchase of goods or things by way of sale or exchange, and after obtaining the goods or the things, that person defaults in payment of the purchase money or in rendering the goods or things to be rendered by that person by way of an 3 exchange, that person commits the criminal offence of defrauding or attempting to defraud by falsepretences if (a) at the time of giving the order or making the bargain, that person intended to make that default;and (b) the order was given or the bargain was made with intent to defraud and not in the course of a trade carried on ingood faith. In the case of King v. Gyan [2017-2020] 1 Supreme Court of Ghana Law Report (SCGLR) 912@ 913theSupreme Courtheld as follows; “the principle that “an appeal is by way of rehearing” meant that, in coming to its judgment, an appellate Court had to examine the relevant pieces of evidence on the record including exhibits, oral or written submissions of counsel to ascertain whether the trial Court below or the first appellate Court was justified in arriving at a finding of fact or law in the judgment. That principle was distinct from the process of hearing an appeal where the bench might invite parties or their Counsel to address the Court on points raised by either of the parties or their counsel or the Court itself. Consequently, an appellate Court had to examine the record of proceedings by scrutinizing pieces of evidence on record to ascertain whether the judgmentwas supported by the evidence. In arriving at its judgment an appellate court could draw its own inferences from the established facts and couldeither affirm the judgmentfor differentreasons or vary it. 4 I have carefully examined the record of appeal including the charges preferred against the Appellant, the facts supporting the charges, the conviction and sentence of the Appellant and the submissions of both Counsel for the Appellant and Counsel for the Republic. I have taken notice that Counsel for the Appellant did not argue ground (iii) and I therefore consider the said ground as abandoned by theAppellant. I would like to argue ground (i) That the Appellant was wrongly convicted by the Court below and ground (ii) The facts / evidence do not support the charge, together. The facts supporting the charges of conspiracy and defrauding by false pretence by means of fictitioustrading are that; THEFACTS The Complainant is a trader resident and native of Myera near Sampa. A1, the Appellant doubles as a tailor and trader resident and native of Cote D’voire. During the month of February 2024 the Complainant received a contract to supply a company with old stock of cashew nuts. The Complainant approached A1 through one Augustine of Drobo and later A1 led the Complainant to Cote D’ivoire to purchase 1, 914 kilograms of cashew nuts valued at Ghs 18,000.00 together with its associated transportation cost. Through A1’s persuasion the Complainant handed over the cashew nuts to A2 and A2 paid Ghs 4,500.00 to the Complainant on 8th March 2024 but A2 failed to complete payment and his whereabouts is unknown. 5 According to the facts further investigations revealed that the accused persons conspired to defraudthe investigator. Counsel for theAppellant submitted that theAppellant was charged with conspiracy to commit crime to wit Defrauding by False Pretence by means of Fictitious Trading contrary to Sections 23 (1), 131 and 135 of the Criminal Offences Act 1960 (Act 29). It is Counsel’s submission that putting two distinct charges in one count is contrary to section 109 of Act 30 which provides that each distinct offence against an accused person should have a separate charge or count. Counsel argued that such a charge is bad for duplicity with reference to “Criminal Procedure and Practice in Ghana at page 221” by Justice Dennis Dominic Adjei (JA). Counsel therefore prays that the conviction of the Appellant should be set aside. In response, Counsel for the Republic argued that aconviction should not merely be set aside because the charge is defective unless such a defect occasioned substantial miscarriage of justice per section 406 of Act 30.According to Counsel, the appellate Courts in rehearing cases are geared toward the interest of justice ratherthan dwelling ontechnicalities such asadefectivecharge. Fromthe charges levelled against theAppellant althoughit involves aninchoate offence, conspiracy, there are two substantive offences instead of one which are Defrauding by False Pretence perSection131ofAct 29and Fictitious Trading per section135ofAct 29. 6 Section 109 (1) and (2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30)statesthat; 109.Joinderofcharges (1)For each distinctoffence of whicha person isaccusedthere shall, subjectto subsection(2), be aseparate charge or count. (2)Charges or counts for offencesmay be joined inthe same complaint, charge sheet, or indictmentand tried atthe same timeif the charges or counts are foundedon the same facts, or form or are a partof a seriesof offencesof the same or asimilar character. The record of appeal shows that the accused person was self – represented at the trial Court and that although the charges were read out and interpreted to him, the record of appeal did not state the language in which the charge was interpreted to the Appellant but stated; “in the language of his choice”. It is possible that the Appellant did not understand the charge because the language ofhis choice is notstated. In Justice Dennis Dominic Adjei’s book Criminal Procedure and Practice in Ghana at pages 220 and 221 he discussed section109ofAct 30and achargethatis badfor duplicity.He stated that; “As discussed above, a person who is charged with an offence shall neither be prejudiced nor suffer injustice by lumping of two or more offences under one count. Indeed, where an accused person pleads guilty to one count which contains two or more offences, it may make the trial 7 unfair. On the other hand, when an accused person pleads not guilty to a count containing two or more offences, it becomes difficult for the accused to prepare his or her defence as he or she will find it difficult to respond to two or more distinct offences under one count. At common law, a charge which was bad for duplicity was treated under two main headings which are; whether it shall render the proceedings illegal or irregular.The test that was adopted to determine whether a charge was to be declared illegal or irregular or bad for duplicity was whether ithas prejudiced or occasioned injustice to the accused. The position of the courts has been that where two different offences were lumped in one count as a single offence, the charge shall be bad for duplicity but will not render the proceedings or any decision emanating from it illegal unless there was evidenceto show that the accusedsufferedinjusticeor was prejudiced by the charge. Having heard both Counsel and having considered the authority cited above and considering the fact that the Appellant was self - represented at the trial Court and therefore he is not likely to understand the proceedings, by allowing him to plead to a charge which has two distinct offences in it instead of one, I would agree with Counsel for the Appellant that it occasioned substantial miscarriage of justice to the Appellant. From the record of appeal there is nothing to show that the Appellant was known which means that he was a first offender and I am convinced that the fact that count 1 had two distinct offences might have influenced the trial Judge’s sentence of three years imprisonment. Shewould havegivenalesser sentence if the substantive chargewas one. Inthatregard, Iagreethat theconviction waswrong in law. 8 Regarding the charge of conspiracy, Counsel for the Appellant argued grounds (i) and (ii) of the appeal together. He noted after citing applicable authorities including the case of Kingsley Amankwah @ Spider vs. The Republic (Criminal Appeal No. J3 /04/2019) (2021) Unreported SC dated 21st July 2021 that the Court held that in the old formulation of conspiracy a person could be guilty of conspiracy in the absence of any prior agreement but in the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement. The position of Counsel is that from the charge sheet there is no evidence that A1 agreed to act together for a common purpose of committing the crime with A2 at large. That the charge of defrauding by false pretence was not made out and same collapses because A2 made an initial deposit of Ghs 4, 500.00 but when he could not pay the balance the Appellant was said to have conspired with him. Counsel argued that if the Appellant’s representation to the Complainant that A2 could offer a good price for the cashew nuts was not true A2 would not have made the initial deposit. Therefore, the Appellant’s representation to theComplainant wasinanhonest belief and the said representations weretrue. Regarding the charge of fictitious trading Counsel for the Appellant argued that the facts do not support the charge because the Appellant did not receive any goods nor defaulted in payment for any goods. A2 was the one who received the goods and defaulted in payment for the goods. The Appellant can therefore not be said to have traded fictitiously. It is therefore wrong in law for the Appellant to be charged with 9 engaging in fictitious trading. For the above reasons, Counsel submitted that the facts do not support the charge levelled against the Appellant and that the conviction and sentence of the Appellant was wrong in law and same occasioned substantial miscarriage of justice to the Appellant. Counsel did not argue ground (iii) of the appeal and therefore the Court considers the said ground as having been abandoned by the Appellant. Counsel for the Republic submitted that appeal is by way of rehearing and that the Appellate Court’s concern is to ensure justice and not to merely consider procedural irregularities. With reference to the case of Dexter Johnson v. The Republic [2011] SCGLR 601 the Supreme Court noted that the Appellate Court has the power to maintain the conviction, set it aside, acquit and discharge the Appellant or increase the sentence. With reference to the definition of conspiracy and defrauding by false pretence and fictitious trading under section 23(1), 131 and 135 of Act 29, Counsel agreed withtheAppellant’s Counselthatthe facts donot supportthe charge. That the facts do not establish the existence of an agreement between theAppellant and A2 to defraud the Complainant. That the Complainant approached the Appellant voluntarily and facilitated his travel to Cote D’ivoire to purchase cashew nuts. The charge of Defrauding by False Pretence through Fictitious Trading was not also supported by the facts. The evidence shows that A2 was the one who bought the cashew nuts. The Appellant did not engage in any fraudulent misrepresentation. 10 Counsel submitted that the appeal therefore succeeds because the conviction of the Appellant is not supported by the evidence and therefore the conviction should be set aside. I have heard both Counsel and upon my perusal of the record of appeal I did not find any scintilla of evidence to show that the Appellant conspired with A2. The facts indicate that “further investigations revealed that the Appellant conspired with A2 to defraud the Complainant”. Nothing was said about how the Appellant conspired withA2, where they met, their means of communication or any conduct that suggests that they agreed to act with a common purpose. In the Court’s view, notwithstanding the fact that the Appellant pleaded guilty simpliciter, prosecution by saying that further investigations revealed that the Appellant and A2 conspired is not sufficient. From the facts the Appellant was approached by the Complainant through oneAugustine at Drobo. There is no evidence that the Appellant on his own volition went to the Complainant. The facts further states that the Appellant and the Complainant travelled to Cote D’voire to buy the cashew nuts. The Appellant did not demand anything from the Complainant fromthe facts. What he did was to tell the Complainant who was to supply the cashew nuts to a company that she had a contract with, thatA2 could offer a better deal. There is nothing on record to show that theAppellant prior to proposingA2 to the Complainant had any agreement with A2. There is also no record that the Appellant benefited from the 11 cashew nuts that A2 did not complete payment for. From the conduct of the Appellant from the facts, he had an honest belief that A2 could purchase the cashew at a good price and when he presented A2, the Complainant accepted him and accepted the money. The issue about conspiracy and fictitious trading only came in after A2 could not complete payment. In the light of the record of appeal which I have carefully examined and having read the arguments of Counsel for theAppellant and Counsel for the Republic, I could not have agreed more with them that the facts as proffered by prosecution did not support the charges of Conspiracy to commit crime to wit; Defrauding by False Pretence by means of Fictitious Trading levelled against the Appellant and one otherat large. In the light of the foregoing, I am convinced that the Appellant was wrongly convicted by the trial Court and that the facts and evidence on record did not support the charges levelled against the Appellant. In the circumstance, the Court holds a maximum conviction that the conviction and sentence of the Appellant occasioned substantial miscarriageofjustice to theAppellant. The appealtherefore succeedsin itsentirety. In the circumstance, the Court hereby sets aside the conviction and sentence of the Appellant to three years imprisonment on30thApril, 2024 for the offences of Conspiracy to commit crime to wit; Defrauding by False Pretence by means of Fictitious Trading by Her Honour Philomina Ansaah Asiedu sitting as Circuit Court Judge at Dormaa Ahenkro. 12 Consequently,theAppellant is herebyacquitted and discharged. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 26TH MARCH, 2025 13 14