REPUBLIC VRS. NORTEY (D5/19/19) [2024] GHAHC 464 (22 November 2024)

IN THE CIRCUIT COURT HELD IN ACCRA, 28TH FEBRUARY ROAD, ON FRIDAY THE 22ND DAY OF NOVEMBER 2024 BEFORE JUSTICE ELLEN OFEI-AYEH (MRS.)(JUSTICE OF THE HIGH COURT) SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE SUIT NUMBER:D5/19/19 REPUBLIC V DAVID EASMON NORTEY REPRESENTATION: ASP DENNIS TEKPETEY ESQ. FOR THE PROSECUTION LIMANN A. MOHAMMED ESQ. FOR THE DEFENCE JUDGMENT By an amended charge sheet filed on 3/8/2020, the accused person was charged with one count of forgery of an official document, contrary to section 158, one count of uttering a forged document contrary to section 169 of Act 29, and one count of stealing all contrary to section 124(1) all of the Criminal Offences Act, 1960, Act 29. He was also charged with one count of Money Laundering contrary to section 1(1) of the Anti-money Laundering Amendment Act, Act 874, 2014. He pleaded ‘Not Guilty’ to the charges. The facts of the case, as presented by the prosecution, are that on 25th September 2018 an accused person who claimed to have been given a purported power of attorney by his late mother forged the documents of that property into the name of three administrators making it their bonafide property and entered into a tenancy agreement with Standard Chartered Bank Oxford St. branch and collected cash the sum of thousand U.S$ 367, 943.22 the Cedis equivalent of GHC1,769,807. He deposited the money into his account number 01001170486007470434 with the Standard Chartered Bank Page 1 of 18 Opeibea house branch. On 29th September 2018 the accused person issued a postdated cheque with face value of 353,961.20 to be cashed by Agnes Ankara the daughter of Victoria Okailey Okantey. Agnes who was not pleased with the disbursements made by the accused person insisted that the children of the eight beneficiaries of the late Simon Mensa Okantey must have their share but the accused person objected to her request. She therefore informed the head of the family Alhaji Okantey who summoned the meeting of all the family members of the late Simon Mensa asking the accused person to disburse the money according to the number of the children of the late Simon Mensah Okantey but he refused. A report was made to the police. Police wrote to the land title registry requesting for Vesting Assent covering the alleged gifted property, affidavit in support of letters of administration in court used in registering plot number GA. 19090 VOL. 10/Folio 445 and the beneficiaries in the registration. Land title registry could not provide the said information. They, therefore wrote officially to the accused person to surrender the original certificate covering the property within 14 days but the accused refused. An order was sought from the District Court and served on the accused person on 19 June 2019 to surrender this certificate as requested by the and title registry to enhance investigation but he failed to do so . Investigations disclosed that the accused person forged a purported power of attorney and entered into two years tenancy agreement with Standard Chartered Bank OSU and succeeded in collecting the sum of USD 367,943.22 the cedis equivalent of GHc1769,807.00 and deposited same in his personal account at Standard Chartered Bank Opeibea Branch. Investigation into the purported Power of Attorney actually shows that the purported power of attorney was issued in 2014 but stamped in 2017. The said purported power of attorney was given by two of the administrators and not signed by one, Victoria Okailey Okantey. The signature of Rebecca Okaikor Nortey nee Okantey was forged by the accused person because it did not reflect the true signature on other documents executed by the said Victoria Okailey Okantey the ported power of attorney was given authorizing the accused person to represent the two administrators in the land matter at the High Court but was fraudulently used to execute a lease agreement between the accused person and Standard Chartered Bank. The accused person claims that the said property was gifted to the three administrators. On 2nd June 2020, when the last Will and testament Page 2 of 18 of Rebecca Okaikor Nortey nee Okantey was read at the Probate and Administration division of the High court, paragraph 13 of the will and testament stated as follows. ‘’I direct my executors and trustees to ensure the collection of my portion of the income from my father's Estate( House number F-655 OSU RE, Accra, now being used by Standard Chartered Bank Ghana Limited).’’ This confirms that the said property belongs to the late Simon Mensa Okantey and not gifted to the three administrators as claimed by the accused person. between September 2018 and June 2019 the accused person withdrew an amount of GHC266,950.00 for his personal use. Until July 2019 the accused person was put before court.......’’ The accused person in his defence denied the allegations levelled against him, claiming that he is the lawful attorney of the administrators of the Estate of the three legally registered absolute property owners, Rebecca Nortey, Comfort Okantey and Victoria Okantey, in H/N F665/1 Re Osu Oxford Street, and thus had the authority to receive the rents payable from the Rent income and share accordingly. The Prosecution called three out of the four witnesses it offered. At the close of the case of the prosecution, the accused person was called upon to answer count 3 and count 4 only. The accused person was acquitted on counts 1 and 2 as the prosecution had failed to make out a prima case sufficiently against him. The prosecutor herein has filed a 27 paged closing Address on 27/11/2024 that bears a stamp impression of the Office of the Attorney General, yet he failed to indicate his rank at the office of the office he purports to represent. The document bears some pieces of information which was not borne out by the evidence on record, specifically in the summary of the testimonies of the prosecution witnesses. The defence counsel has also filed on 20/11/2024 written addresses for consideration. In a criminal case, the prosecution bears the burden of proof to establish the guilt of the accused person beyond reasonable doubt by virtue of sections 11(2) and 13(1) of Page 3 of 18 the Evidence Act, 1975 (NRCD 323). The accused person is under no obligation to mount a defence throughout the trial to prove his innocence until the court calls upon him/her to open the defence to raise reasonable doubt as regards his/her innocence. See Mallam Ali Yusif v The Republic (2003-2004) SCGLR 174 SC on the burden of persuasion and the evidential burden. Therefore, all the accused person needs do is to raise reasonable doubt in his defence, and this is the standard of proof required in Criminal Trials. Woolmington v Director of Public Prosecution [1935] AC 462 is the locus classicus on this principle where the Appeal Court of England per Sankey LC expressed the view that “….while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.” The Court is also guided by the decision in Ali Yusif Issah (no 2) v The Republic, supra which relied on the decision in Miller v Minister of Pensions (1947) 1 All ER 372, where Lord Denning held that, ‘proof beyond reasonable doubt doesn’t mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful positions to deflect the course of justice. If the evidence is so strong to leave only a remote possibility, in his favour which can be dismissed with the phrase, ‘it is possible’ but not the least probable the case is proved beyond reasonable doubt. But nothing short of that shall suffice.’ In respect of the third count of offence, Section 124(1) of Act 29, (1960) provides that: “A person who steals commits a second-degree felony.” Section 125 of Act 29, (1960) defines stealing as; “A person steals who dishonestly appropriates a thing of which that person is not the owner”. Section 122(6) of Act 29/60 defines appropriation as; “Appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that Page 4 of 18 thing or of the benefit of the right or interest in the thing, or in its value or proceeds or part of that thing.” In order to succeed, the prosecution would have to establish beyond reasonable doubt; “(i) That the person charged must not be the owner of the thing allegedly stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” The particulars of offence contain that; For that you on the 25th day of September 2018 at Osu in the Greater Accra Circuit and within the jurisdiction of this court did dishonestly appropriated cash the sum of USD367,943.22 THE Cedis equivalent of GHC1,769,807.00 the property of the beneficiaries of the late Simon Mensah Okantey family. To appreciate the evidence led, without reproducing the full testimonies of the witnesses, briefly, PW1, Philip Korletey testified that the late Simon Mensah Okantey who was his grandfather, who had owned a property on the Osu Oxford Street, Osu died intestate on 25th April 1943. He added that the eight children of his late grandfather, after several incidents which ended up at the police station, took steps to formalize their father’s estate property. It was agreed that the three older siblings of the three wives of the late S. M Okantey applied for Letters of Administration to administer the deceased’s estate. The eight children therefore registered the property which bore the names Rebecca Okaikor Okantey, Mrs. Rebecca Okaikor Nortey and others. PW1 described the accused person as the son of his mother’s sister, Rebecca Okaikor Nortey nee Okantey whose father was the late Simon Mensah Okantey. He added that the accused person’s mother died in 2018. Whereas Comfort Okailey Okantey died before 2014 and Victoria Okailey Okantey is alive but very old. He testified that it was his aunty Victoria Okailey Okantey who informed him that the said property occupied by Standard Chartered Bank belonged to the Okantey Family. Notably, this aunty, Victoria Okailey Okantey, did not testify, and this information Page 5 of 18 clearly constitutes hearsay. He alleged that the Power of Attorney the accused person was relying on was falsified and was fraudulently used to execute the tenancy agreement. He testified that one of the donors, Victoria Okailey Okantey is alive and she did not sign the Power of Attorney as claimed by the accused person. Clearly, this is another piece of hearsay, which contravened section 117 of the Evidence Act, Act 323. The said person could have testified. He also testified that the accused person's mother Rebecca Okaikor Nortey nee Okantey, granted a Power of Attorney to one Jerry Nii Okai Okantey in 2011 and the signature is different from that which is on the Power of Attorney, neither has it been revoked. PW1 has also submitted that the signature is different from the last Will and testament of Rebeca Okaikor Nortey. He also testified that the Power of Attorney is fraudulent because it was stamped in 2017 while the document was dated 2014. He alleged that by this Fraudulent Power of Attorney, the accused person received the sum of USD 367,943,22 and the Cedi equivalent GHC1,769, 807 and deposited same into his personal account and made use of the proceeds. I have already found by an earlier ruling that the charge of forgery could not be proved as the elements of the offence which ground the charges were absent. PW2, Joseph Akwetey Quartey also testified that the late Simon Mensah Okantey was his grandfather, and corroborated what PW1 had testified to. He also relied on the grant of Letters of Administration to Rebecca Okaikor Okantey @ Rebecca Okaikoh Nortey, Comfort Okailey Okantey and Victoria Okailey Okantey as applicants/ Administrators representing all the children of the deceased intestate, and this was admitted as Exhibit B. Exhibit C discloses a newspaper publication of the list of Registers at the Land Title Registry dated May 2003, The Spectator, and Exhibit D is an Indenture. In exhibits C and D the land is described as lying and being situated at Christianborg, Osu- Accra and containing an approximate area of 0 . 22 acres and as contained in the schedule. Clearly none of the house numbers mentioned by the parties have been referred to in exhibits C and D. Perhaps due to morndenizatition Page 6 of 18 As stated by PW1, he testified that in 2018, his aunty informed him and his siblings that the property was handed over to the Okantey family after suit number BFA 42/11 was determined being a court case in respect of the Estate of Simon Mensah Okantey and Mrs. Victoria Ofei. PW1 and PW2 placed reliance on Exhibits E and Y, the tenancy agreement between David Easmon Nortey and Standard Chartered Bank which bears the date of 25th September 2018. Notably, the commencement part of the document describes the said Easmon Nortey, as the Lawful attorney of Rebecca Okaikoi Nortey, Comfort Okailey Okantey and Victoria Okantey as registered proprietors in common. (Emphasis supplied) The Power of Attorney in Exhibit E makes no mention of the name Comfort Okailey Okantey. Prosecution has relied on Exhibit E; which is a photocopy of the Power of Attorney and which does not bear the mark of Victoria Okailey Okantey. On the face of Exhibit K; the rent income Split, rent receivable is the sum of USD 367, 943.22 , converted in Ghana cedis bears the equivalent of GHC @ 4.81Cedis : US$1.00 the Cedis equivalent of GHC1, 769,807; net rent received 85% at GHC1,504,336.00 and deposited same in accused’s personal account at Standard Chartered Opeibea Branch. PW1 did not state how much of the sum received from Standard Chartered Bank, the accused person has stolen. The sum stolen is described in the particulars of the offence as USD 367,943.22 the equivalent GHC 1,769,807.00 belonging to the Simon Mensah Okantey family. The prosecution has also relied on Exhibit FF. Notably, it is only a photocopy of the certified judgment in suit number H1/116/06 between Rebecca Okaikoi Okwatey and 2 Ors v Mrs Victoria Ofei. What prevented the prosecution from obtaining a certified copy from the Court of Appeal? The back page has not been certified. Exhibit EE was not certified. I place no reliance on these Exhibits. Exhibit 4, which is the statement of Agnes Ankrah given to the Police, contains a statement that she is the daughter of Victoria Okailey Okantey, it was tendered through PW3. It contains a statement that she received a cheque with number Page 7 of 18 0100117048600 with a face value of GHC353,961.00 from the accused person, which was a subject matter of which a family meeting was convened. PW3, D/C/Inspector Charles Owusu Ansah, testified that the sum of GHC266, 950.00 cannot be accounted for by the accused person. This is less the sum contained in the particulars of the offence. This is not consistent with the figures on the particulars of offence and what is being proved. It is trite learning that the quantum sum stolen does not matter in a charge involving dishonesty. All that is required is dishonest appropriation to be proved. See Obeng @ Donkor v The State 1966 GLR 259. PW3, relied on the Rent Income Split; Exhibit K and bank statements; Exhibits Q series and Exhibit BB. The current account with number 0100117048600, Standard Chartered Bank , Opeibea House, bearing the name of David Easmon Nortey; the accused person is Exhibit Q series. The commencing date in the statement in Exhibit Q series is 2/5/2019. Exhibit BB is a request for the Bank Statement of David Easmon Nortey, commencing from 13/12/2018 with a balance brought forward GHC1,504,335.86 and on 7/6 2019, the balance stood at GHC1,241,82. Exhibit Q series – Bank statement of David Easmon Nortey and Exhibit BB read together disclose that the end of the statement of the accused person on 30/9/2019 is GHC815, 525.82. I also must state that the judgment statement of Exhibit ‘EE’ was not certified, and cannot be considered a certified true copy of the Judgment of a High Court. Did the accused person dishonestly appropriate the said proceeds? And where are the remaining funds? In his defence, the accused person relied on a 172-paragraphed witness statement of which some paragraphs were expunged due to intemperate language. He testified that the Power of attorney which he has tendered as Exhibit 35 is the Original of Exhibit E. In my humble view, it bears semblance to Exhibit E in all aspects except that it contains a mark of Victoria Okailey Okantey unlike in its replica Exhibit E. Exhibit E without doubt a photocopy of a document. One needs not to be an expert analyst Page 8 of 18 of documents to realize that Exhibit 35 is most probably the original of Exhibit E’ and notably the mark is faint. It gives the reason why a mark would be absent on a photocopy since the original mark is faint blue. I find as a fact therefore that Exhibit 35 is the original of Exhibit E which the prosecution was unable to produce. In his defence, the accused person testified at paragraph 17 of his witness statement that Rebecca Okaikor Nortey (nee Okantey) his late mother passed away in 2012. How then did she sign Exhibit 35, i.e. Exhibit E on 7/12/2014? That was two years after her death. Under cross-examination, he mentioned that it was in 2018. The prosecution cross-examined him making reference to her having travelled to the USA in 2014-2016 thereabout. Further under cross-examination, the accused person responded at questions 251 to 254 that indicates that in December 2017 Eugenia Marku Tulasi was employed to take care of his mother. I therefore find as a fact that the accused persons mother was alive in 2017. It is trite that when a donor of a power of attorney dies or withdraws the power, the power of attorney is extinguished. Again, it is trite learning that, even upon the death of one of the two or more Donors of a Power of Attorney, it does not revoke the Power. See Dzanku v Afalenu (1968) GLR 792 AT 793. The accused person also testified that Victoria Okantey, the other donor is alive but mentally incapacitated. In effect, Section 19 of the Courts Act, Act 459 should be applicable if the said donor is mentally incapacitated as it certainly would affect the validity of the Power of Attorney. Yet I am minded to limit myself to the charges before me. The accused person insists that the Okantey family are not beneficiaries of the house; H/No F665/1 R/E Osu Oxford Street for which the rent proceeds were obtained from Standard Chartered Bank. He further explained in his defence that Letters of Administration was granted in the year 2000 to Rebecca Nortey (Nee Okantey) Victoria Okantey and Comfort Okantey with respect to S. M Okantey’s Estate HNo. 615/1 near Osu cemetery, as contained in Exhibit B. Paragraph 5 of Exhibit B provides as part of the affidavit of Victoria Okailey Okantey as follows; Page 9 of 18 5. That at the time of his death, the accused had his fixed place of abode at H/No F615/1 Osu Accra which within the jurisdiction of the court By the reference to H/No 615/1 Osu, it is my humble view that it is different from the description given to the other house; which is H/ No F665/1 R/E Osu Oxford Street, claimed by the accused person. It doesn’t mean deceased did could not have owned other properties. And if he did, certainly there would have been an inventory of his properties. Where is the inventory? He testified that these three women were absolute proprietors in common sharing equally, the property at RE H/No F664/1 and not the property alleged by the accused person. He therefore alleged that the Power of Attorney in Exhibit 35 gave him the requisite authority to collect the said rent from the lessees, as it was in respect of the property at R.E, Oxford Street, H/No F665/1. Exhibit 35 provides a. To represent us to institute any legal proceedings to recover landed property at R.E H/No F665/1 with deed registry No. 1656/1959 and AC 5267/58 b. To pray the court for financial and all other reliefs deemed appropriate c. To give evidence , swear affidavits and to do whatever is necessary until final determination of the suit. d. To compromise or settle the dispute if deemed necessary. e. This power of Attorney shall remain in force until the final determination of the Court Action This is the wording of the power granted to the accused person. If the prosecution does establish that the accused person acted outside the scope of the Power then criminal Intent must be proved in a criminal trial, and the Donor in a civil matter may decline to Ratify the actions of the Donee if fraud or crime is proved. Thus prosecution has a burden to prove Criminal mind and intent. A key issue has been raised, a challenge to the ownership of RE Oxford Street, H/No F 665/1. I also note that Exhibit 25 is a Power of Attorney executed by the executors of the will of the late Comfort Naa Okailey Okantey made authorizing the accused person on Page 10 of 18 30/12/2020 in respect of RE H/No F 665/1. This in my humble view satisfies the commencement part of the document that describes the said Easmon Nortey, as the Lawful attorney of Rebecca Okaikoi Nortey, Comfort Okailey OKantey and Victoria Okantey as registered proprietors in common. (Emphasis supplied). However Exhibit 25 was executed by the administrators of Comfort Okailey Okantey on 2nd December 2020. Suit number BFA/42/11 and GJ/0117/2020 in respect of landed property situated at R.E number F655/1 Osu Accra. These were filed was while the criminal trail had commenced. Meanwhile from the evidence on record, that would mean that the tenancy agreement was executed on 3/12/2018 at a time when the accused person had no authority to act on behalf of Comfort Okailey Okantey. That notwithstanding, the question remains, as to whether Exhibit 35; i.e Exhibit E which bears House number R.E H/No F665/1 was what the rent obtained from Standard Chartered Bank, was from. I find as fact that the Letters of Administration relied upon by PW1 in exhibit B is in respect of H/No 615/1 Osu whereas the Power of Attorney is in respect of R.E., H/No F665/1. Exhibit J at page 2 contains under paragraph 1, the Premises as House number F 665/1 Cantonments Road situated at Osu. Exhibit J is a tenancy agreement between Standard Chartered Bank and David Easmon Nortey. The witness to the signature of David Easmon Nortey – the accused person, is interestingly this same Agnes Ankrah. And it is no dispute that the accused obtained the proceeds of the tenancy agreement from this property. It therefore cannot be true as claimed by PW3 in his testimony that Agnes Ankrah had rejected the cheque given her, but rather she had taken it and called for a family meeting. Were the monies so collected in respect of the tenancy dishonestly appropriated? The accused person testified that the sum ofGHC1,769,807.00 is the Cedis equivalent of US$ 367,943.22 the gross rental amount and the sum of GHC1,504,336.00 was the net withholding Tax that the bank paid into his bank account. He added that the remaining GHC815, 525.82 is the balance in his bank account being monies that belong to the executors and beneficiaries of Comfort Okantey and Rebecca Nortey as Page 11 of 18 their net share of the Rental income. He added that he issued a cheque of GHC353, 961.00 to Agnes Ankrah tendered by the PW3. He relied on the copy of the cheque as Exhibit 27, which bears a date 29/8/2019 in the name of Agnes Ankrah. It has been submitted by the defence that Akweley Ankrah in Exhibit 35 is Agnes Ankrah. Yet I refer to Exhibit ‘4”, a statement given by Agnes Ankrah which amongst others states that ‘’On 29/4/2019 suspect David Easmon Nortey brought me a Standard Chartered Cheque No …….. I informed them about the cheque issued to me by suspect Easmon Nortey to my mother and siblings. My siblings mentioned above disagreed with his sharing and stated that the money should be shared according to the number of children of Simon Mensah Okantey. This prompted the aggrieved parties to report to the Police for investigation as to how he came by the money and its disbursement. They agreed on sharing by going according to PNDC Law 111. Clearly, Agnes Ankrah failed to corroborate her statement and further deny that she is not Akweley Ankrah. Under cross-examination, PW1 responded as follows, regarding Akweley Ankrah. Q134. You know as a fact that if any of the persons mentioned in Exhibit E are still alive? A. Victoria Okailey Okantey is still alive to the best of my knowledge Q135. What about Akweley Ankrah? A. I thought you were referring to the donors, Akweley Ankrah, I know she is alive. ……………. Q. 138. Is this Akweley Ankrah the same person who received part of the proceeds of the rent from the accused person? Page 12 of 18 A. I cannot tell. Q. But is she represented too as Agnes Ankrah? A. Yes, she is also known as Agnes Ankrah (Emphasis supplied) Under cross examination PW3 had this to say about Agnes Ankrah. Q62. You have been able to tell the court that you can distinguish tbetween two signatures. Look at Exhibit Y, the signature of Agnes Ankrah, the agreement between the accused person and Standard Chartered bank. Look at the signature on Exhibit E. compare the two signatures and tell the court if they are similar. (Witness looks at the Exhibit) A. They look similar but with different names that is Akweley Ankrah in Exhibit E and Agnes Ankrah in Exhibit Y. He further insisted that if it were Agnes Ankrah she would have used Agnes instead of Akweley . The prosecution did not invite Agnes Ankrah to ascertain or deny the veracity of the cheque in Exhibit 27. PW3 under cross-examination told the court that Agnes Ankrah gave the cheque to the head of family and she didn’t know what happened or who cashed it. Yet at cross- examination PW3 responded as follows; Q94. Tell the court what Agnes Ankrah did with the money A. She gave the cheque to the head of the family and I don’t know what happened, the date was alleged to have been dated on the bank statement is 28th June 2019. I don’t know who specifically cashed it , whether head of family, Agnes Ankrah, etc. Page 13 of 18 Q95. You were able to ascertain that between the two persons, they had in their possession GHC353, 961.00 ? A. Yes. Q.96. This formed part of the Rent Income that the accused person received in his personal account from Standard Chartered Bank? A. Yes Once again, did the Prosecution invite Agnes Ankrah, Rebecca Okailey Okai Okantey, Alhaji Okantey, which latter has been described as the head of family among others whose statements were filed. The prosecutions reliance on theses statements contravenes the hearsay Rule and would have been exempted if the authors of the Statement had testified. By virtue of the evidence above particularly thes responses, I find as a fact that Agnes Ankrah is the same person as Akweley Ankrah, as contained in Exhibit E 35, and exhibit E. I also find as a fact that she received a cheque from the accused person in respect of the Rent Income split. The old position of the law that unstamped documents are admissible in criminal trials as found in page 323 of S.A Brobbey’s Trial Courts and . Tribunals. not lie particularly in this case since the determination of the admissibility of unstamped documents in the more recent case in Nii Aflah II v Benjamin K. Boateng 2023 JELR 110974 has taken over. No reliance shall therefore be given to the land Certificate in Exhibit N and Exhibit 14 and same is hereby expunged. The accused person also testified that the bank gave notice to terminate the tenancy after a year and a half, to leave out the third year of rent. The bank handed over the property and the third year of rent, $ 184,000.00 at 2021 to the said Okantey Family. He relied on a letter described as Exhibit 31, addressed from his Lawyer. It is trite learning that all the accused person needs to do is to raise reasonable doubt. His defence is consistent with his caustioned statement aand charge statement tendered by the prosecution as Exhibit T and CC respectively. The prosecution did not call any of Page 14 of 18 the Bank officials regarding the sums paid to the accused person or sums outstanding in respect of rent. But there is evidence on record that the accused person had no authority to portray himself as the lawful attorney of Comfort Okailey Okantey in the Rent agreements with Standard Chartered Bank. In his defence the accused person claimed in paragraphs 83 to 87 of his evidence in chief that Rebecca Okai was to represent Comfort Okantey and together with Agnes Ankrah they had meetings with the Bank. In my view this could constitute dishonesty of the accused person, yet in proving a Criminal or guilty mind, it would be negated by the presence of Rebecca Okai. It would also be negated by the presence of Akweley Ankrah during the execution process of the Rent agreement. Perhaps they acted foolishly or deliberately with a guilty mind. However, when these representatives and descriptions on the Rent Agreement are present, in my humble view it negates a guilty mind. In P.K Twumasi’s book, Criminal Law in Ghana, at page 313, he describes dishonest appropriation as an accused person having a guilty mind (Mens Rea) at the time he appropriated the thing. In short, it means that his state of mind was not consistent with innocence at the time of the appropriation. This relates also to the Charge of Attempt to commit a Crime. Having considered the evidence led by the accused person in his defence, and as the accused person is only to raise reasonable doubt in discharging its evidential burden, I rely on the case of Lutterot v C.O.P [1963] 2 GLR 429, S.C at holding 3, their Lordships set out the three-tier test a court must use to examine the case of the defence in Criminal cases, as follows; (3) In all criminal cases where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case of the defence in three stages; If the explanation of the defence is acceptable, then the accused should be acquitted, Page 15 of 18 If the explanation is not acceptable but reasonably probable, the accused should be acquitted. If quite apart from the defence’ explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict. Even if the Power of Attorney was proven fictitious or fraudulent, or there is absence of capacity by the accused person to Act for the late Comfort Okailey Okantey’s Estate, real questions arise as shown by the defence regarding a dispute of the root of title and ownership of the subject matter property, which undisputedly has resulted in the suit pending at the High Court as shown in Exhibit 2, a certified copy of the writ of summons filed on 2/6/2020 in the case of Philip Korletey & 2ors v David Easmon Nortey & anor. It is not for this court to determine root of title or ownership. The prosecution has failed to prove the key element of the offence; dishonest appropriation, distinct from a clear dispute of right to property/ ownership or to title, and its proceeds and for that matter, based on the findings of fact and the explanation given by the accused person on the belief that the stated property does not form part of the estate of S.M Okantey, his defence is reasonably probable and that is a dispute to be determined. The prosecution has failed to prove their case beyond reasonable doubt. The accused person is accordingly acquitted of the charge of stealing on this count . Count Four The accused person was charged under Section 1(1) of the Anti-Money laundering Act, 2020 Act 1044. It reads; 1(1) A person shall not engage in money laundering. The particulars of offence and facts shall enable the court ascertain which of subsections under 1(2) they seek to come under . The particulars contain the following; Page 16 of 18 ‘that you on the 25th September 2018 in Accra in the Greater Accra Circuit and within the jurisdiction of this court with intent to commit fraud resorted to fraudulent means to steal an amount of USD 367,943.22 the Cedis equivalent of GHC1,069.883.00 and deposited same into your personal account domiciled at Standard Chartered Bank which you knew or ought to have known, formed part of the proceeds of crime.’ Section 1(2) of the act provides that; a person commits an offence 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 (a) Converts, conceals, disguises or transfers the property for the purpose of (i) concealing or disguising the illicit origin of the property; or (ii) assisting any person who is involved in the Commission of the unlawful activity to evade the legal consequences of the unlawful activity; (b) conceals or disguises the true nature, source, location, disposition, movement or ownership of, or rights to the property; or (c) acquires, user 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. (3) where a person under investigation for money laundering is in possession or control of property which the person cannot account for, and which is disproportionate to the income of that person from known sources, that person shall be deemed to have committed an offence under subsection (2). Under section 1(2), what is required is for the prosecution to first and foremost prove that a. the accused person knows or ought to have known that the property is or forms part of the proceeds of unlawful activity. Followed by the remaining subsections under 1(2) and (3) of the Act. In his book; Contemporary Criminal Law in Ghana, 2017, G-Pak Publishing. Page 452, the learned author, Justice Dennis Adjei J.A, explained that the bottom line of money Page 17 of 18 laundering is that the origin of the money was obtained from the proceeds of a crime. Ranging but not limited to narcotics, terrorism, fraud, stealing, slave dealing etc. Defence counsel has cited a case of Republic v John Cobinna without a citation provided. Notably, there is the case decided upon by the Supreme Court, intitule John Cobbina v The Republic suit number J3/07/2019 delivered on 19/2/2020 where the John Cobbina with two others were charged with seven counts of offences which included Money Laundering. He was acquitted on the charge of Money laundering at the Court of Appeal and his conviction was affirmed on counts 6 and 7 being a charge of Falsification of accounts and a Charge of Stealing. I have read the submission of counsel for the defence on the dictum of Dzamefe J. A. as regards the proof of this charge, however without a citation, I place no reliance on it. Having made findings of fact and arrived at a decision under count three, the prosecution has failed to prove beyond reasonable doubt that the sum of GHC1,069,883.00 originates from the commissioning of a crime; or the crime of Stealing, or a crime involving dishonesty, being the proceeds of a crime. This charge became moot in the absence of a crime. The accused person has raised reasonable doubt in his defence. He is not guilty and is acquitted on this count. FINAL DECISION The accused person is acquitted on both counts. ………….SGD……………. ELLEN OFEI-AYEH (JUSTICE OF THE HIGH COURT) Page 18 of 18