Amanquah v S (CR/0457/2024) [2025] GHAHC 131 (6 February 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 6TH DAY OF FEBRUARY 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/0457/2024 JOSHUA AMANQUAH @ COBY CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant herein was arraigned before the Kwabenya Circuit Court Accra on the 23rd of December 2021 on a count of defrauding by false pretences contrary to Section 131(1) of the Criminal Offences Act 1960 (Act 29). The accused person pleaded guilty with explanation and the court after listening to the explanation of the accused person found that same does not disclose a defence and as such proceeded to convict him on the guilty plea. The accused person was sentenced to a term of imprisonment of ten (10) years IHL. It is against this sentence that the appellant filed the instant petition of appeal on the 26th of August 2024. 1 GROUNDS OF APPEAL 1. The conviction was wrong in law and unmerited 2. The sentence was too harsh. 3. That the court did not consider so many factors before passing the sentence. FACTS OF THE CASE Complainant Yaw Twumasi is a Businessman resident at Dome Pillar 2'. Accused Joshua Coby Amanquah is a driver and resident at Agona Swedru. Accused's mother one Nelly Amanquah who resides in Canada, has a four bedroom house under construction at Dome Pillar '2'. Accused in March 2020, engaged the services of one Bawa, an Estate Agent to dispose off the said property. Accused told the said Bawa he has his mother's consent to dispose the property. Accused also communicated to neighbors around, that the said house is available for sale therefore inviting prospective buyers. Complainant who lives about 200 meters from the said house happened to hear the said communique and contacted Accused for a meeting which was held at Achimota Mile '7'. Bawa who was present at the said meeting and posed as an agent told complainant, Accused has the consent of his mother to dispose off the property. Accused gave complainant a foreign number being 00447520608545 supposed to be his mother's number. Complainant proceeded to have series of phone conversations with the said woman who posed as accused’s mother. Accused with the aid of one Mr. Agbeve forged a Power of Attorney supposedly coming from accused mother, Miss Nelly Amanquah, giving Accused her consent to dispose of the property. Accused and complainant bargained and arrived at GH¢220,000.00 which complainant paid in two installments of GH¢100,000.00 and GH¢120,000.00. Complainant began developing the house to his specification when he 2 was confronted by one Michael Agyeman, a nephew to Miss Nelly Amanquah. He told complainant that the said house is not for sale. A complaint was lodged by complainant at the station and accused was arrested. Accused admitted selling the house without the mother' consent and further told Police he gave the said Mr. Agbeve GH¢40,000.00 and Bawa also took GH¢10,000.00 from the proceeds for their roles in disposing off the property. He then purchased a Kia morning taxicab and Toyota Corolla saloon car for GH¢30,000.00 and GH¢38,000.00 respectively. The said vehicles have been retained for further action. Accused was charged and put before Court. RESOLUTION OF THE GROUNDS OF APPEAL The first ground of appeal is that the conviction was wrong in law and unmerited. On this ground, counsel for the appellant submitted in his written submission filed on the 14th of January 2025 that the subject matter of the offense which is the house was handed over to the complainant and that if for anything at all, the matter was between the appellant and his mother. He submitted further that “the appellant truly needed to protect the interest of the buyer. If the matter comes to proof that she did not give the appellant expressed permission to sell the property, then it was strictly a matter of mistrust between a mother and a son and not a matter of defrauding of a third party” From what transpired in the courtroom at the lower court, the issue as to proof of the offence of defrauding by false pretence beyond reasonable doubt is not a matter that can be raised at the appeal. That is because the accused person when called upon to plead, pleaded “guilty with explanation”. 3 The appellant having done so then the issue that can be raised is whether the words used in explanation discloses any reasonable defence and if it does whether the plea was voluntary and unambiguous. 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 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.” The appellant after the facts of the case had been read in the English Language told the court that “when we started to transact with complainant, I didn’t have much knowledge about it so it was one Bawa who helped me to take the money from Yaw Twumasi, the complainant herein”. The trial court found that “the explanation doesn’t disclose a defence” and rightly so because it was in essence an explanation of the people who assisted him in taking the money from the complainant. The trial court then proceeded to inform him of the 4 consequences of the plea and then proceeded to convict the accused person. The learned State attorney in her written submission filed on the 22nd of January 2025 surmised that “His explanation was to the effect that when they started the transaction with the complainant, he did not have much knowledge about it so he was assisted by Bawa who helped him to take the money from the complainant. He clearly admitted the offence and his explanation further confirmed that he conspired with Bawa as the prosecution told the court. The trial judge rightfully convicted the Appellant.” It is the view of the court that the plea of the accused person being a judicial confession, the prosecution was therefore not obligated to lead evidence to prove the charge of defrauding by false presences. Further to that the record shows that the charge was read and explained to the appellant in the English Language, the facts was also read in the English Language, and this was after the appellant had indicated that he had been furnished with the charge sheet and brief facts. The guilty plea was therefore voluntary. Even though the appellant was not represented by counsel at the trial court, the record of appeal demonstrates that he understood the proceedings and also participated in the trial. The law is that when an accused person appears before the court, the law permits an accused person to defend himself before the court in person or by a lawyer of choice. Article 19 (2) f of the Constitution 1992 provides that: “A person charged with a criminal offence shall be permitted to defend himself before the Court in person or by a lawyer of his choice;” It is not therefore the case that an accused person must necessarily have legal representation before a trial proceeds. An accused person can elect to defend the suit by himself and in such cases, the court notes that the accused person is self-represented. In 5 the instant case, the accused person elected to defend himself. This ground of appeal fails and same is dismissed. GROUND 2 AND 3: The sentence was too harsh and that the court did not consider so many factors before passing the sentence. The above stated two grounds of appeal are on sentencing and would therefore be addressed together. 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 ten (10) years IHL was clearly within the confines of the law. The question of sentence is a matter of discretion with all courts. Thus the decision of the court as to the length of sentence to impose from within the statutory limits is an exercise of the court’s discretion. Andoh J in Komegbe and Others v The Republic (1975) 2 GLR 170 referring to the statement of Lord Halsbury L.C. in Sharp v Wakefield (1891) A.C. 173 at 179 defined judicial discretion as: 6 " ... Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion ... according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself" Thus where a court has to exercise its discretion, same must not be arbitrary but fair. The constitution has provided a guide as to the exercise of that discretion. Article 296 of the 1992 Constitution enjoins that the discretionary power shall be deemed to imply a duty to be fair and candid and shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law. In complying with due process of the law our courts always act upon the principle that the sentence imposed must be commensurate with the gravity of the offence. The appropriate sentence to be imposed should depend on the nature of the offence, the offender that is the convict and the entire circumstances of the case. The court therefore is to consider both mitigating and aggravating factors. From the record of appeal, the trial judge in sentencing the appellant stated that she had considered the fact that the appellant did not waste the time of the court, that he had shown remorse, was a first time offender and he had refunded the sum of GH¢12,000. The court also ordered that the two vehicles which are Kia Morning and Toyota Corolla that the appellant used the proceeds of his crime to acquire should be restored to the complainant to defray some of the money. The price of those two vehicles were stated as GH¢30,000 for the Kia Morning and GH¢38,000 for the Toyota Corolla. Therefore in determining this appeal for reduction of the sentence, I have considered the entire circumstances of the case particularly the facts supporting the case and the fact that a part of the money paid was retrieved and the two vehicles ordered to be 7 given to the complainant and I set aside the sentence of ten (10) years IHL and substitute a sentence of seven (7) years IHL. The sentence is to commence on the 23rd of December 2021 when the appellant was sentenced. PARTIES: APPELLANT PRESENT COUNSEL: OSUMAN MOHADEEN FOR THE APPELLANT PRESENT ENAM LOH-MENSAH FOR JENNIFFER AFRIYIE YENTUMI FOR THE REPUBLIC/RESPONDENT PRESENT (SGD) MARY M.E YANZUH J. HIGH COURT JUDGE 8