REPUBLIC VRS. ACQUAYE (CR/0527/2022) [2024] GHAHC 449 (18 December 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 18TH DAY OF DECEMBER 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0527/2022 THE REPUBLIC VRS REXFORD NII KPAKPO ACQUAYE JUDGMENT The accused person herein was arraigned before this court on the 15th of June 2022 on a charge sheet filed at the Registry of this court on the 9th of June 2022 wherein, he was charged with six (6) counts of defrauding by false pretences contrary to Section 131(1) of the Criminal Offences Act, 1960 Act 29 and a single count of money laundering contrary to Section 1(2) (C) of the Anti-Money Laundering Act 2020 Act 1044. On the 13th of July 2022, the accused person pleaded not guilty to all the charges after same were read and explained to him in the English Language. This court then proceeded to admit the accused person to bail and then ordered the prosecution to file disclosures and 1 witness statements of all witnesses they would call at the trial. The prosecution complied with the court’s orders and filed disclosures on the 6th of October 2022 and witness statements of their witnesses on the 29th of November 2022. The court therefore adjourned for case management to be conducted and for the trial to commence. After the filing of the witness statements, the accused person appeared in court on the 6th of December 2022 and thereafter failed or refused to appear in court again. The court issued a bench warrant for the arrest of the accused person which could not be executed. The prosecution therefore on the 5th of July 2023 filed an application praying for an order of this court for the trial of the accused person to be conducted in absentia. This court on the 20th of July 2023 granted the application and ordered for the trial of the accused person to proceed in his absence. This procedure of the court is statutorily backed. The constitution 1992 provides for the criminal trial of an accused person to be conducted in his presence unless he behaves in a way making that impossible. Article 19(3)A of the Constitution 1992 provides that: “The trial of a person charged with a criminal offence shall take place in his presence unless (a) he refuses to appear before the Court for the trial to be conducted in his presence after he has been duly notified of the trial. In the case of Bonsu Alias Benjillo vrs The Republic [1999-2000] 1 GLR 199 holding 1 the court opined that: “since the first and fifth accused persons had been notified of the charges of drug offences against them and their trial had started in their presence in the circuit tribunal but they had absconded upon the grant of bail to them and they had refused thereafter to attend their trial, they had demonstrated by their conduct that they were not prepared to appear for any trial, and the transfer of the case to the Regional Tribunal, a higher court, would not have changed their intention not to attend their trial. Since they had been notified of their trial in accordance with the provisions of article 19(3)(a) of the 2 Constitution, 1992 the mere transfer of their cases to the Regional Tribunal could not be said to have altered the fact that they had earlier been notified of their trial, nor should that be allowed to nullify the earlier notification given to them. Since by their own conduct of leaving the jurisdiction, they had refused to stand trial and had intentionally prevented service of any further documents on them, they could not be allowed to benefit from their misconduct. Accordingly, they would be held to have known of their trial in absentia at the time of their notification.” FACTS OF THE CASE According to the prosecution, the complainant, Sumakainu Aminu (PW1), is a Supply officer at The Trust Hospital, Osu. The accused was a tenant of the complainant at her residence at Pantang. The accused introduced himself to the complainant as Kofi Ayensu, a nursing training teacher at the 37 Military Hospital who had just been transferred to Pantang Hospital. During his stay in the house, the accused informed the complainant that he could help her to buy an auctioned car, with the assistance of his Godfather, one Captain Felix Otoo, who is the deputy officer in charge of auctioned vehicles at the Flagstaff House. The accused convinced the complainant, and she showed interest in purchasing an auctioned Toyota Corolla vehicle. The accused requested for a photocopy of her identification card and an allocation fee of GH¢1000, which she complied with. The complainant discussed the accused's offer with her brother and colleagues and they all expressed interest in purchasing auctioned vehicles from the accused. The accused tasked the complainant to collect the identification cards of all the people who were interested and also to collect their monies for him, which she complied with. The complainant gathered a total of GHC 457,000 from her friends and family being the sum purchase prices for various vehicles and gave same to the accused person in the presence of her sister Nimatu Aminu. To win their trust, the accused delivered a Hyundai Elantra and a Toyota Corolla to the 3 complainant and victim Gifty Pieterson. He however used deceitful means to take the cars back from them. In all, the accused collected a total of GH¢562,000 from the complainant and nineteen others. The complainant paid GH¢457,000 to the accused person comprising her GHC 20,000 for a 2015 model Hyundai Elantra for herself, GH¢32,000 for a 2015 model of Honda CRV for Francis Asumadu, GH¢30,000 for a 2015 model of Honda CRV for Antwi Jennifer Afrakumaa, GH¢35,000 for a 2015 model of Toyota Highlander for Richard Kofi Sereboe, GH¢19,000 for a 2015 model of Toyota Corolla for Vanessa Thompson, GH¢7,000 for a KIA Picanto for Osei Agyemang, GH¢18,000 for a 2015 model Toyota Corolla for Daniel Annor. Obed Mensah paid GH¢25,000 for a Honda Accord, Theresa Gorman paid GhC 12,000 for a Toyota Yaris, Isaac Owusu Asiedu paid GH¢54,000 for three 2015 model of Toyota Corolla, Robert Welback Jr, Richard Akwasi Asare and Nana Akwasi Anokye paid GH¢24,000 for three KIA Picanto cars, Humphrey Agyemang paid GH¢18,000 for a 2015 model of Toyota Corolla, Faisal Aminu paid GH¢104,000 for two Toyota Highlander cars, one Toyota Camry and one Toyota Yaris, Kalamullah Musah paid GH¢15,000 for a Toyota Corolla, Jemima Buanyame paid GH¢24,000 for two Toyota Yaris cars and Lauretta Shardow paid GH¢18,000 for a 2015 model Toyota Corolla. Abigail Mekpah and Felix Danyo paid GH¢1,000 each as processing fees for two Toyota Corolla cars. All these monies were paid to the complainant for various brands of auctioned cars which she handed over to the accused person. On 30th January 2019 the accused person collected GH¢15,000 from victim Gifty Pieterson to secure her a 2015 model of a Toyota Corolla. On that same day, he collected GH¢35,000 from victim Sarah Gyesi Fordjour-Nartey to secure her a Toyota Highlander. On 6th February 4 2019 he collected an amount of GH¢18,000 each from victims Yaw Baffour Asare, Cornelius Bonnie and Joseph Nargeh Ogum for 2015 model of Toyota Corolla cars. The accused collected GH¢1,000 from complainant Florence Nyamekye as processing fees for Toyota Corolla. After collecting the monies, the accused person told the complainant and the other victims to meet him at Safe Bond car park at the Tema Harbour for the delivery of their vehicles on 7th February 2019. On the fateful day, they gathered there and waited for the accused, but he did not show up. BURDEN OF PROOF The Constitution 1992 Article 19 (2) (c) presumes everyone 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 the 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 is called upon to give his side of the story.” See the case of Gligah & Anr. v The Republic [2010] SCGLR 870. Section 11(2) of the Evidence Act NRCD 323 provides that: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt” In the case of Darko v The Republic [1968] GLR 203, especially holding 2 the court held that: 5 “This presumption therefore places upon the prosecution the burden of proving accused/appellant guilty beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt.” In this case that the accused person is being tried in absentia, the burden of the prosecution is not lightened at all. In the case of Kwakye v Attorney-General [1981] GLR 944 this principle was reiterated to wit: “Trial in absentia means that a person is tried in his absence. But his absence notwithstanding, there is a trial all the same. In other words, the relevant evidence to establish guilt is given and received by the court all the same.” COUNT ONE (1), TWO (2), THREE (3) FOUR (4), FIVE (5) AND SIX (6) THE OFFENCE OF DEFRAUDING BY FALSE PRETENCE 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.” 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: 6 (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. In the case of Republic vr Selormey [2001-2002] 2 GLR 424 the ingredients of the offence were stated thus: (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. Also in the case of Kuma v The Republic (1970) CC 113 the court of appeal summarized the essential ingredients of the offence of defrauding by false pretences as follows: 1) that there was a misstatement or personation by the accused person which in law amounts to a false pretence 2) that the falsity of the pretence was known to the accused 3) that the accused thereby obtained the consent of another person to part with or transfer the ownership of anything 4) that the accused acted with intent to defraud In the case of Mensah vrs the Republic [1978] GLR 404 Taylor J as he then was stated that “if A., by means of false pretences or by personation obtains the consent of another person to part with or transfer the ownership of anything he will be guilty of defrauding by false pretences;” 7 Section 133(1) and (2) b of Act 29 defines what constitute false pretence. It provides that: “133. (1) A false pretence is a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true, and made with an intent to defraud. For the purpose of this section: (2)(b) the expression ‘a representation of the existence of a state of facts’ includes a representation as to the non-existence of any thing or condition of things, and a representation of any right, liability, authority, ability, dignity or ground of credit or confidence as resulting from any alleged past facts or state of facts, but does not include a mere representation of any intention or state of mind in the persons making the representation, nor any mere representation or promise that anything will happen or be done, or is likely to happen or be done.” P.K Twumasi in his book Criminal Law in Ghana at page 334 stated that: “The onus always rests with the prosecution to prove that the accused person made a representation of the existence of a state of facts. In order words, the accused must be proved to have made an allegation that a certain state of affairs existed as a fact” At page 338 he stated further that: “In a charge of defrauding by false pretences the onus lies on the prosecution to establish that the representation made by the accused of the existence of a state of facts is false” At page 339, he went further to state that: “A person can therefore be guilty of false pretences only when it is proved that he made a representation of the existence of a state of facts with knowledge at the time he made it that the representation was false or that he made the representation without belief in its truth; but a person’s knowledge or belief in a state of affairs at the time he makes the representation of an existing fact 8 cannot be proved by direct evidence; it can only be inferred from other facts proved in the case against him” Per the charge sheet, the accused person is said to have represented to the victims that if they paid certain sums of money, he would be able to provide them with various brands of auctioned vehicles. PW1 Sumakinu Aminu testified per her witness statement which she relied on that the accused person informed her that he had helped three daughters of one Captain Felix Otoo. who was the deputy in charge of auction sales of cars at the Flagstaff house get into nursing training school so he had become very close to him and assisted him on a part-time basis and that he could help her acquire an auctioned vehicle from the said Captain Felix Otoo. She stated that the accused called the said Captain Felix Otoo in her presence and asked that he help her get one auctioned vehicle. She said that the accused person gave the telephone to her and asked that she speaks with Captain Felix Otoo. She narrated further how the accused person collected monies paid by Gifty Pieterson, Sarah Gyesi Fordjour Nartey, Yaw Baffour Asare, Cornelius Bonnie and Joseph Nargeh Ogum and others with the representation that he would get auction vehicles for them. She stated that the accused person as part of his plan and to win her confidence, brought her a Toyota Corolla for Gifty Pieterson and Hyundai Elantra for herself which the accused person himself drove to her workplace. This convinced more people to believe the deal. She said that as more of her colleagues saw the car, they were convinced about the authenticity of the deal and they expressed interest. The accused came to the hospital too and met with her colleagues who wanted to make enquiries about the whole process and then collected monies from them for the supply of auctioned vehicles. She testified that one evening when she got home the vehicle which the accused gave to her was not parked at home and the accused person explained to her that Captain Otoo had agreed to give her the Hyundai Sonata 2017 model that she had earlier requested and she would get the car when her colleagues received 9 theirs, so he had sent the Elantra to another person. She testified that 2:00am on 8th February 2019 while she was sleeping, the accused called her and told her that he had to use the Toyota Corolla, which he had brought for Gifty, to pick up some people who had travelled from Takoradi to be part of the auction from Madina Zongo Junction. The accused person thereafter asked her and her colleagues to meet him at the Tema Port for the auctioned vehicles. It was at the Tema Port that they realised that they had been swindled. She said that she and the Police entered the accused's room which she rented to him and noticed that the accused had parked out of the house leaving behind his installed air-condition unit and photocopies of the identification cards of some of his victims. PW1 tendered into evidence two photos of the accused person as exhibit A and A1. PW2 D/Inspector Emmanuel Yewenyo relied on his witness statement filed on the 29th of November 2022 and testified that during the investigations, he noticed that nineteen persons from the Trust Hospital paid sums of monies for the auctioned vehicles to the accused person and listed all the names of the victims. He added that the accused person in all collected GH¢387,500 in total from the nineteen victims and also collected a total of GH¢130,000 from the PW1, Faisal Aminu and her brother in law Kamal for the purchase of various cars. PW2 confirmed the story of the PW1 and added that during the investigations, some of the victims failed to give a statement to him as they had instituted a court action against the PW1. He added that the accused person was arrested on the 19th of September 2019 from his hideout at East Legon where he was paying $1,000 as rent per month having paid a rent advance of $12,000. He said that his investigations revealed that the accused person had taken a total amount of GH¢517,500 from the victims. 10 His evidence continued that the accused person upon interrogations admitted that he collected monies from the victims upon promise that he will get them auctioned vehicles. In a further statement taken from the accused person, he denied taking GH¢562,000 from the victims and stated that he took only GH¢48,000 and he handed same over to Captain Felix Otoo. PW2 further stated that his investigations revealed that the accused person worked with one Emmanuel Asare Bentil who used the fake name Captain Felix Otoo and that the said Asare was not an officer of the Ghana Armed Forces neither did he work at Jubilee House. He said that the said Emmanuel was at large. He tendered into evidence the police witness statement of Gifty Pieterson as exhibit B, the statement of Yaw Baffour Asare as exhibit D and the statement of Sarah Gyesi Fordjour- Nartey as exhibit C wherein they confirmed the evidence of the PW1 and also narrated dealings they had with the accused person and his representation that he would be able to get auctioned vehicles for them. The cautioned statement of the accused person dated the 24th of September 2019 was admitted into evidence as exhibit W wherein the accused person recounted that the said Captain Otoo and one other person had swindled him and collected all the monies paid to him after pretending that they could get vehicles for the victims. In his charge statement dated the 9th of October 2019 exhibit X, he added that the said Captain Otoo came to the PW1’s house at Pantang to collect the money after he and the PW1 had taken their share of the monies and further stated that the only amount he took to the said Captain Otoo was GH¢48,000. From the above evidence on record, then it is clear that the accused person made a 11 representation of an existence of state of facts, that being that he is able to secure auctioned vehicles for the victims. The fact that the said representations were false or made without belief in its truth is also abundantly clear on the record as the accused person after collecting the various sums of money, vanished and was only found in a rented apartment which he had paid thousands of dollars for. In the case of YARO AND ANOTHER v. THE REPUBLIC [1979] GLR 10, it was held that the “intent to defraud” required to constitute the offence of defrauding by false pretence is, of course, nothing more than an intent to cause by such false pretence 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: see section 16 of the Criminal Code, 1960 (Act 29).” The evidence also shows that the accused person had the intent to defraud as by means of the false pretence he obtained the consent of the victims to part with the said sums of money. I find that the prosecution has been able to prove the guilt of the accused person on counts 1 to 6. COUNT SEVEN MONEY LAUNDERING Section 1(2/(c) of the Anti-Money Laundering Act, 2020 (Act 1044), under which the accused is charged, provides that; "A person commits an offence of money laundering if the person knows or ought to have known that a property is, or forms part of, the proceeds of unlawful activity and the person (c) acquires, uses or takes possession of the property knowing or suspecting at the time of receipt of the property that the property is, or forms part of the proceeds of unlawful activity". 12 Section 1(2)(c) of Act 1044 is identical in substance with the offence as defined under the old law, the Anti-Money Laundering Act, 2008 (Act 749) as amended by Act 874. section 1 (1) (c) of Act 749 as amended, provides as follows; 1. (1) A person commits an offence of money laundering if the person knows or ought to have known that property is or forms part of the proceeds of unlawful activity and the person, … (c) acquires, uses or takes possession of the property.” The case against the accused person commenced sometime in 2019, when the old Anti- Money Laundering Act was in operation. However, the new law, Act 1044, saves the operation of the old law, Act 749. Section 64 (2) of Act 1044 provides that all regulations, orders, directions, appointments or any other act lawfully made or done under the old law, are deemed to continue in force. Section 64(3) of Act 1044 specifically provides that, Act 1044 does not affect the repealed Act 749 in its operation, to offences committed or proceedings commenced before the repeal. Section 63 of Act 1044 further provides that, “…unlawful activity includes a serious offence or any other similar offence or related prohibited activity punishable with imprisonment for a period of not less than twelve months serious offence is defined as “an offence for which the maximum penalty is death or imprisonment for a period of not less than five years”. In the case of The Republic vs. Mathias Appiah Bill @ Delali Vettel @ Robert Scott [2016] DLHC7654, the High Court, (Financial Division) espoused on the ingredients required for 13 proving money laundering under Act 749. The court reasoned that the prosecution must prove first that, a predicate ‘serious offence’ had been committed and thereafter prove that the accused person converted, concealed, acquired, used or possessed proceeds of that offence. The position of the law is that any money an accused person obtains through unlawful means is tainted money and in such cases the law is that an accused person intended to hide the origin of the said money and may therefore use same in the acquisition of property all in his/her bid to make same appear to be legitimate money. Therefore, under section 1 (2) of Act 749 as amended by section 1(2) of Act 874, unlawful activity means, conduct which constitutes a serious offence, financing of terrorism, financing of the proliferation of weapons of mass destruction or other transnational organised crime or contravention of a law regarding any of these matters which occurs in this country or elsewhere. In this instance since the accused has been charged with defrauding by false pretences contrary to Section 131(1) of the Criminal Offences Act, 1960 Act 29. The sentence for the offence the accused person is charged with when convicted is a term of imprisonment not exceeding twenty five years. Therefore, any proceeds or money obtained by the accused person through the offences he has been charged with can be said to be laundered money. In all cases of money laundering, the prosecution must prove that the accused undertook an unlawful activity to get money or proceeds from the crime. Even under Section 1(3) of Act 1044, the law presumes that where a person is being investigated for money laundering, and 14 it is established that he has in his possession or control property which the person cannot account for and which is disproportionate to his income or from known sources, then the person shall be deemed to have committed the offence of money laundering. Therefore, under section 1(3) of Act 1044, all that the prosecution must prove, is that the accused person’s property is disproportionate to his income. In that case, the evidential burden then shifts to the accused person to prove, that the property was obtained from legitimate sources. In the instant case, it is the contention of the prosecution that the said amounts of money the accused person took from the victims were money laundered and the court finds so as I have found that the accused person by means of a false representation obtained the consent of the victims to part with the sums of money stated on the charge sheet. The court finds that the prosecution has succeeded in leading evidence to prove the offence of money laundering against the accused person From the foregoing, I find that the prosecution has been able to prove the guilt of the accused person on counts 1-7 and I convict him on same accordingly. After conducting a pre-sentence hearing, the accused is sentenced to ten (10) years imprisonment on counts 1-7. The sentences will run concurrently. Accused is to refund the sum of GH¢562,000 to the complainant victim. A warrant of commitment is hereby issued. The accused upon his arrest will proceed to prison custody to commence his sentence forthwith. PARTIES: ACCUSED TRIED IN ABSENTIA 15 COUNSEL: DERRICK ACKAH-NYAMIKE FOR THE REPUBLIC PRESENT MARY M.E YANZUH J. HIGH COURT JUDGE 16