Republic vrs Yakubu (D6/56/2024) [2025] GHACC 101 (15 April 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON TUESDAY THE 15TH DAY OF APRIL 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.) CIRCUIT COURT JUDGE CASE NO: D6/56/2024 THE REPUBLIC VRS ISSAH YAKUBU JUDGMENT FACTS On the 23rd October, 2023 the accused person was arraigned before this court and charged with the offence of defrauding by false pretence contrary to section 131 (1) of the Criminal Offences Act, 1960 (Act 29). The case of the prosecution is as follows: “Complainant John Addai is a businessman residing at Lapaz, Accra. Accused Issah Yakubu is also a businessman resident at Spintex, a suburb of Accra. During the month of November, 2022, the complainant met the accused person at Cantonments and during their conversation accused introduced himself as someone who imports vehicles and their parts. The complainant showed interest in purchasing some caterpillar parts. Accused promised to import the caterpillar parts for him at a lower cost. Accused demanded and collected an amount of One Hundred and Eighty-Two Thousand Ghana Cedis (GH₵182,000.00) from the complainant under the pretext of securing him with the caterpillar parts. Accused after collecting the money went into hiding. On 21/03/2023, accused was arrested and handed over to the Cantonments Police. Accused admitted the offence and paid an amount of GH₵30,000.00 during interrogation. Accused again absconded after he was released on police enquiry bail. The bail bond was estreated on the surety and the case is before the Circuit Court eleven. Accused was 1 later arrested at Tema in a similar offence and sentenced to 12 months IHL. After investigation, accused was charged with the offence as stated on the charge sheet and brought before court. THE CHARGE The charge preferred against the accused person and on the basis of which he stands trial in this instant case is as follows: “STATEMENT OF OFFENCE DEFRAUDING BY FALSE PRETENCE CONTRARY TO SECTION 131 (1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE ISSAH YAKUBU: BUSINESSMAN, AGE 33 YEARS: During the month of November, 2022 at Cantonments in the Greater Accra Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of one John Addai to part with the cash the sum of GH₵182,000.00 by means of certain false pretences to wit: by falsely pretending that if the said amount is given to you, you could import caterpillar parts from abroad for him which you knew at the time of making it to be false.” THE PLEA The self-represented accused person pleaded not guilty to the charge after it has been read and explained to him in Twi language. The accused person having pleaded not guilty to the charge puts the facts of the prosecution in issue and thereafter, the prosecution assumed the burden to prove the guilt of the accused person. THE BURDEN ON THE PROSECUTION AND THE DEFENCE In our criminal jurisprudence, it has always been the duty and obligation of the prosecution, from the outset of the trial, to prove and substantiate the charge levelled against the accused person to the satisfaction of the Court unless in a few exceptions. 2 Under the Evidence Act, 1975 (NRCD 323), the burden of proof is divided into two parts, that is the burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence. The burden of persuasion is provided for under section 10 (1) of the Evidence Act, 1975 (NRCD 323) as follows: “10 (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. The burden of producing evidence is also provided under section 11 (1) of the Evidence Act, 1975 (NRCD 323) thus: “11 (1). For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him in the issue”. Again, in criminal proceedings, what constitutes the facts in issue depends on any relevant presumptions and the allegations involved. In the present case for example, where the accused person is charged with defrauding by false pretence, the allegation may be that the accused person made a representation to the complainant which representation was false and made with the intent to defraud the complainant. Since the prosecution is asserting the above facts constituting the ingredients of the offence of defrauding by false pretence, it is incumbent on it to establish that belief of the accused person’s guilt in the mind of this Court to the requisite degree prescribed by law. In other words, the prosecution has the burden of persuasion to establish the guilt of the accused person. When the prosecution has adduced the evidence to establish the essential ingredients of the offence of defrauding by false pretence which will cumulatively prove the guilt of the accused person, the court at the end of the case of the prosecution will have to decide whether the prosecution has discharged the obligation on it to establish the requisite degree of belief in the mind of the court that the accused person in fact and 3 indeed is guilty of the offence of defrauding by false pretence. Except in few instances, the measuring rod or the standard of proof for determining that the evidence adduced by the prosecution has attained the requisite degree is provided under sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323). Sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323) provide as follows: “10 (2). The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. 22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact”. If this Court decides that the prosecution has failed to prove each essential ingredient of the offence of defrauding by false pretence beyond reasonable doubt at the end of the prosecution’s case, the accused person will have to be acquitted for he will be deemed to have “no case to answer”. But if this Court decides that each essential ingredient has been proved beyond reasonable doubt, then the accused person will have to be called upon to put up his defence, because there will be an established presumption of guilt (a prima facie case) which he must rebut, if he does not want the presumption to stay, thus rendering her liable for a conviction. To use the language of section 11 (1) of the Evidence Act, 1975 (NRCD 323), the accused person will have on him the burden of introducing sufficient evidence to avoid a ruling against him that he is guilty of the offence charged. In other words, he has the burden of producing evidence. The apex court in the case of Asante No (1) v The Republic [2017-2020] I SCGLR 143- 144 explained the burden on the prosecution as follows: 4 “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See: Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408.” However, proof beyond a reasonable doubt does not mean beyond a shadow of doubt as was stated by Lord Denning in the case of Miller vs. Minister of Pensions (1974) 2 ALL ER 372 AT 373 thus: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof beyond every possibility. Lord Justice of the King’s Bench from 1822-1841, Charles Kendal Bushe also explained reasonable doubt thus: “…the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of all the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party; preoccupied by prejudice or subdued by fear.” See also: Osei v. The Republic [2002] 24 MLRG 203, CA 5 Abodakpi v. The Republic [2008] 2 GMJ33 Republic v. Uyanwune [2001-2002] SCGLR 854 Dexter Johnson v. The Republic [2011] 2 SCGLR 601 Frimpong A.K.A. Iboman v. Republic [2012] 1 SCGLR 297 Again, it must be emphasized that the proof by the prosecution can be direct or indirect. It is direct when the accused person is caught in the act or has confessed to the commission of the crime. Thus, where the accused person was not seen committing the offence, his guilt can still be proved by inference from surrounding circumstances that indeed, he committed the said offence. See: Logan vs Lavericke [2007-2008] SCGLR 76 Headnote 4 Dexter Johnson vs The Republic [2011] 2 SCGLR 601 AT 605 State vs Anani Fiadzo (1961) GLR 416 SC Kamil vs The Republic (2010) 30 GMJ 1 CA Tamakloe vs The Republic (2000) SCGLR 1 SC Bosso vs The Republic (2009) SCGLR 470 The guilt of the accused person is sufficiently proved if the tribunal of fact is convinced that he committed the offence though there remains a lingering possibility that he is not guilty. The above is the general law on the burden of proof on the prosecution as provided for in the Evidence Act, 1975 (NRCD 323). When the prosecution has established a prima facie case against the accused person, the accused person assumes the burden of producing evidence. This burden as indicated is different from the burden of proving the issue, which is on the prosecution. The difference between the burden on the prosecution and the burden on the accused is mainly in the standard of proof. Whereas the prosecution has to prove the essentials of the crime to a standard beyond reasonable doubt, the accused 6 only has the burden of adducing evidence to create a reasonable doubt in the mind of the court regarding the prosecution’s case which is deemed prima facie to have been established beyond reasonable doubt. Once this doubt had been created, the accused will be considered as having discharged his burden of producing evidence to the appropriate standard of proof. Having established the requisite burden that the prosecution ought to discharge and the burden on the accused person, it is very important to note that one fundamental legal principle pertaining to criminal trials in our jurisdiction as contained in paragraph (c) of clause (2) of article 19 of the Constitution is that: “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke vs The Republic [2012] 2 SCGLR 1105 at 1122 per Akuffo JSC as follow: “…the citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt.’’ An accused person therefore in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty. Bosso vs The Republic (2009) SCGLR 470 ANALYSIS OF THE OFFENCE OF DEFRAUDING BY FALSE PRETENCE Section 131 (1) of the Criminal Offences Act, 1960 (Act 29) which creates the offence of defrauding by false pretence provides that any person who defrauds another person by false pretence shall be guilty of a second-degree felony. 7 Section 132 of the Criminal Offences Act, 1960 (Act 29) defines the offence of defrauding by false pretence as follows: “a person is guilty of defrauding by false pretence if by any false pretence, or by personation, he obtains the consent of another person to part with or transfer the ownership of anything.” The law further defines false pretence under section 133 (1) of Act 29 as: “ 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. A representation may be made either by written or spoken words or by personation or by any other conduct, sign or means of whatsoever kind.” The representation may be made in writing or spoken words or by presentation, or by other conduct, sign or means of any kind. The representation as to the state of facts may also include a representation as to any right, liability, dignity or ground or confidence but excludes a mere representation of an intention of state of mind or promise that anything will happen or be done or likely to happen or be done. See: section 133 (2) of Act 29. Furthermore, where an accused person succeeds in obtaining the consent of a person by false pretence, the fact that the pretence is not of a kind that would not have an effect on the mind of a person using ordinary care and judgment is inconsequential and not a defence. See: section 133 (2) (d) of Act 29 and the case of Republic v. Osei Wusu (Winfred) Unreported Suit No. FT/0036/2016). In the case of Adobor v The Republic [2007] GHACA 5 (20th December, 2017), CA, the court held that: 8 “to constitute an offence of fraud by false pretence, the accused should have made a representation which to his knowledge is false, the representation should be made to a person who believed it and as a result was induced to part with or transfer the ownership of the thing.” The court further defined “induce” as to persuade, to prevail upon another person to believe something and act upon it. Thus the victim must have been persuaded to accept the representation made to him as true and act upon it to his detriment. From the definition of false pretence, it follows that, three sub-ingredients are embedded therein each of which must prove to secure a conviction as stated in the case of The Republic v. Woyome (Alfred Agbesi) Suit No. H2/17/15. CA decided on 11th March, 2016 CA are that: i. a representation made that is false, ii. made without the belief that it was true, and iii. made with intent to defraud. ANALYSIS OF THE EVIDENCE TO PROVE THE CHARGE OF DEFRAUDING BY FALSE PRETENCE The prosecution called two (2) witnesses in support of its case. The case for the prosecution was presented mainly by the complainant John Addai as the first prosecution witness (PW1) and supported largely by Detective Sergeant Innocent Avinu of Cantonments Divisional CID, Accra as the second prosecution witness (PW2). The prosecution also tendered in evidence several exhibits namely: the caution statement of the accused person as exhibit “A”, the charged statement of the accused person as exhibit “B”, an order for disclosure of information as exhibit “C” and MTN Mobile Money statement of one Christiana Ohene as exhibit “D” series respectively. The first prosecution witness (PW1) stated that sometime in November 2022, he came into contact with the accused person during which he told him that he deals in cars 9 and that he could import a car from Dubai for him at an affordable price. It is the evidence of PW1 that the accused person then showed him a photograph of a Totyota Fortuner on his mobile phone that he claimed he could buy at the cost of sixty thousand Ghana cedis (GH¢60,000.00) from Dubai for him. According to PW1, he agreed to the accused person’s proposal for the purchasing of the Toyota Fortuner in Dubai. The accused person provided MTN mobile number 0541155359 to him which is a mobile money account and directed that he should effect payment to him through that medium. It is further the evidence of PW1 that, upon his instructions, his son Michael Addai transferred an amount of sixty thousand Ghana cedis (GH¢60,000.00) to the mobile money account provided by the accused person. PW1 continued that after making payments for the purchasing of the Toyota Fortuner, he was in need of a caterpillar parts and the accused person claimed that he could get the parts for him from Dubai as well at a cost of fifty two thousand Ghana cedis (GH¢52,000.00). PW1 stated further that his son Michael Addai effected the transfer of forty-seven thousand seven hundred Ghana cedis (GH¢47,700.00) on the 8th December, 2022 from Access Bank Ghana, Sefwi Wiawso branch to the mobile money account number 0541155359 provided by the accused person. On the 22nd December, 2022 another transfer of forty thousand Ghana cedis (GH¢40,000.00) was effected from the said Access Bank to the said mobile money account. On the 29th December 2022 a transfer of fourteen thousand Ghana cedis (GH¢14,000.00) was effected from Joaddai Company Limited and on the 3rd of February, 2023 another transfer of one thousand one hundred and ten Ghana cedis (GH¢1,110.00) was effected from the said company to the said mobile money account to the accused person for the purchasing of the car and the spare parts. It is also the evidence of PW1 that the total transfer made to the accused person amounted to one hundred and twelve thousand Ghana cedis (GH¢112,000.00). Some months later, after the accused person had received the one hundred and twelve thousand Ghana cedis (GH¢112,000.00) via mobile money, he informed him that the goods he imported from Dubai had arrived at the Tema Harbour, Ghana and that he needed an additional seventy thousand Ghana cedis (GH¢70,000) to pay for the duties and same 10 was paid to him. According to PW1 later, the accused person came to his house demanding for an additional twenty-eight thousand Ghana cedis (GH¢28,000.00) for the clearing of the purported goods hence he became suspicious about the accused person’s attitude and demanded for the refund of the total sum of one hundred and eighty-two thousand Ghana cedis (GH¢182,000.00) he collected from him. The accused person agreed to refund same and requested to get the money for him from the car. He called the police to arrest the accused person. The accused person was arrested and he refunded thirty thousand Ghana cedis (GH¢30,000.00) out of the one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) he collected from him. It is the evidence of the second prosecution witness (PW2) the investigator in this case that on the 21st March, 2023 PW1 called and reported that sometime in December, 2022, the accused person collected an amount of one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) from him under the pretext of buying a Toyota Fortuner and caterpillar parts from Dubai for him and upon receipt of the said money, failed to honour his obligations. The accused person who was arrested by PW1 was handed over to police and he was re-arrested and detained for investigations. PW1 submitted his statement. He obtained an investigation cautioned statement from the accused person. The accused person refunded thirty thousand Ghana cedis (GH¢30,000.00) out of the one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) he collected from PW1 for the importation of a Toyota Fortuner, caterpillar parts and clearing of same at the ports. The said thirty thousand Ghana cedis (GH¢30,000.00) was handed over to PW1. After the accused person was released on police enquiry bail but he failed to report thereafter. The surety for the accused person Mustapha Ibrahim was served with forfeiture of recognizance to show cause why the bail sum of two hundred thousand Ghana cedis (GH¢200,000.00) he entered into dated 22nd March, 2022 should not be estreated by the presiding judge at Circuit Court “11’. In October, 2023, whilst the application for forfeiture for recognizance was pending at Circuit Court ‘11, the accused person was arraigned before Circuit Court ‘’3’’ for 11 stealing and sentenced to one (1) year imprisonment. At the Court, the accused person was arrested upon a bench warrant issued for his arrest by Circuit Court ‘’11. The accused person was charged with the offence as stated on the charge sheet and he volunteered a charged statement. On the 9th October, 2023 disclosure of information was filed on MTN number 0541155359 which the accused person provided to PW1 for receipt of the monies and it was granted by the court. The request was sent to MTN Ghana Limited where account statements of MTN mobile money number 0541155359 were furnished to the police. It was established in the MTN mobile money statement that PW1 sent an amount of forty seven thousand seven hundred Ghana cedis (GH¢47,700.00) on the 8th December, 2022 and forty thousand Ghana cedis (GH¢40,000.00) on the 22nd December, 2022 from Access Bank Ghana, Sefwi Wiawso branch to the accused person. It was also observed that PW1 sent an amount of fourteen thousand Ghana cedis (GH¢14,000.00) on 29th December 2022 and one thousand one hundred and ten Ghana cedis (GH¢1,110.00) from Joaddai Company Limited to the accused person. In this case, after the court had ruled that, a prima facie case has been made against the accused person, he exercised his option to open his defence. Indeed, the accused person had the burden of producing evidence, sufficient enough in the light of the totality of the evidence to raise a reasonable doubt as to whether he made a representation to PW1 which said representation was false and made with the intent to defraud PW1 sometime in November, 2022. See: sections 10 (1), 11 (2) and 3 of the Evidence Act, NRCD 323 See also: Ali Yusif (No.2) v The Republic [2003-2004] SCGLR 174 holding (2) The accused person testified under oath, but he did not tender in evidence any exhibit. It is the defence of the accused person that sometime in the year 2022, he had a case at Cantonments Police Station and was placed behind bars where PW1 was also at the cells and that was how he got to know him. According to the accused person, in the 12 course of their interaction at the Cantonments Police Station, PW1 asked about the work he does and he told him that he imports mobile phones and cars from Dubai to Ghana to sell. In the course of their interaction at the Cantonments Police Station, PW1 asked him about the phone business and he explained everything to him. It is the evidence of the accused person that whilst at the Cantonments Police cells, his shop attendant visited him and informed him that somebody had brought phones to his shop to sell to him. As at that time, he had no money to buy the said phones so he spoke to PW1 and PW1 called someone who brought sixty five thousand Ghana cedis (GH¢65,000.00) to the police station. He also called his shop attendant to go for a loan of one hundred and fifty thousand Ghana cedis (GH¢150,000.00) which he added to the sixty five thousand Ghana cedis (GH¢65,000.00) that PW1 gave to him and he used same to pay for the phones. After purchasing the phones, his shop attendant went and sold the phones and brought the entire amount of two hundred and thirty one thousand Ghana cedis (GH¢231,000.00) to the police station and he deducted the one hundred and fifty thousand Ghana cedis (GH¢150,000.00) loan from it and PW1 called someone who came to collect the sixty five thousand Ghana cedis (GH¢65,000.00) and he gave PW1 Ten Thousand Ghana Cedis (GH¢10,000.00) out of the profits that they realized and he also gave his shop attendant five thousand Ghana cedis (GH¢5000.00) and kept the rest for himself. It is further the evidence of the accused person that when PW1 was granted bail, PW1 used to come to the Cantonments Police station. In the course of their conversation, PW1 intimated to him that he wanted caterpillar parts to purchase. According to the accused person, he has a website that he used to check for spare parts on. PW1 gave him the model number of the caterpillar parts he wanted and he (the accused person) used same to search on the website and got the price. PW1 came to the Police station to have an interaction with him and he told PW1 that he knew one agent by name Adu Emmanuel in Dubai. Together with PW1, they called Adu Emmanuel and Adu Emmanuel told them that he could go to the seller’s place in Dubai and buy the caterpillar parts for them. PW1 agreed and took Adu Emmanuel’s contact details, and he sent Adu Emmanuel one hundred and two 13 thousand one hundred Ghana cedis (GH¢102,100.00). As at the time, he also had a car that Adu Emmanuel was to ship to him. He called Adu Emmanuel and he told him that he had shipped the caterpillar parts together with his car to Ghana. He waited and waited but the car and the caterpillar parts were not forth coming and so he called Adu Emmanuel and he said their goods will come. In the course of this transaction, PW1 said that he needed a Samsung Galaxy phone Z flip 3 and Adu Emmanuel bought it and sent it via air. When the phone arrived, he called a motor rider who went to the airport, picked it up and gave same to PW1’s brother because PW1 at that time, had been re-arrested and he was at the Nima police station. He was also admitted to bail and upon his release, he visited PW1 at the Nima Police Station. Two months later, PW1 was admitted to bail and he went to his house to greet him. Later, PW1 called him that the caterpillar parts had kept long and that he was no longer interested in same. In view of that, he told PW1 that then he will inform the agent. He called Adu Emmanuel but he could not reach him. He tried to get in touch with him for about a week but he could still not get in touch with him. It was not only PW1’s money that was with Adu Emmanuel but several people had also sent monies to him. Pressure started mounting on him and PW1 called him on 1st of February, 2023 to send him an amount of ten thousand Ghana Cedis (GH¢10,000.00) which he complied. On the 16th March, 2023, PW1 called him again to send him money and he sent him five thousand Ghana Cedis (GH¢5,000.00). The accused person stated further that because he reported the case at several airports and Interpol, he was there when an agent by name Isaac called him to inform him that Adu Emmanuel had shipped some phones to Ghana and even sent him the waybill of those phones. He went to the airport and as soon as Adu Emmanuel’s brother took delivery of the phones, he also seized the phones from him and sent them home. Adu Emmanuel’s brother gave him Adu Emmanuel’s other number and he called him and told him that he had seized the phones and that he is giving him five days to refund the monies he had received or else, he will sell the phones and repay the people that he collected the monies from. He waited for seven days, and when he did not hear from Adu Emmanuel, he sold 14 the phones and shared the proceeds to those that they owed. He took thirty thousand Ghana Cedis (GH¢30,000.00) to PW1’s house to give same to him. He was sitting down with PW1, when PW1 called the police to arrest him. He gave the thirty thousand Ghana Cedis (GH¢30,000.00) to the police. I am now enjoined by holding (3) in the case of Lutterodt v the Commissioner of Police [1964] 2 GLR 429 SC at 480 to examine the defence of the accused person as follows: “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 for the defence in three stages: (1) Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and (3) Finally, quite apart from the defendant's explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” I now wish to determine whether the accused person is innocent or liable. I have already indicated that, it is the prosecution that is to prove his guilt. Firstly, the particulars of the offence provides that the accused person collected cash the sum of one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) from PW1 under the pretext of securing for him caterpillar parts. Excerpts are as follows: 15 “PARTICULARS OF OFFENCE ISSAH YAKUBU: BUSINESSMAN, AGE 33 YEARS: During the month of November, 2022 at Cantonments in the Greater Accra Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of one John Addai to part with the cash the sum of GH₵182,000.00 by means of certain false pretences to wit: by falsely pretending that if the said amount is given to you, you could import caterpillar parts from abroad for him which you knew at the time of making it to be false.” The facts as attached to the charge sheet also states that the accused person collected an amount of one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) from PW1 under the pretext of securing for him caterpillar parts. The facts as attached to the charge sheet provides in parts: “During the month of November, 2022, the complainant met the accused person at Cantonments and during their conversation accused introduced himself as someone who imports vehicles and their parts. The complainant showed interest in purchasing some caterpillar parts. Accused promised to import the caterpillar parts at a lower cost. Accused demanded and collected an amount of One Hundred and Eighty-Two Thousand Ghana Cedis (GH¢182,000.00) from the complainant under the pretext of securing him with the caterpillar parts.” Interestingly, PW1 and PW2, testified that the one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) was for the purchase of a Toyota Fortuner and caterpillar spare parts. Excerpts from PW1’s evidence-in-chief are as follows: “3. Sometime in November 2022, I came into contact with Accused person during which he misrepresented to me that he deals in cars and he could import from Dubai for me at an affordable price. He then showed me a photograph of the Toyota Fortuner on his mobile phone that he claimed he could buy at the cost of GH¢60,000.00 from Dubai for me. 16 4. I agreed to Accused person’s proposal for the purchasing of the Toyota Fortuner in Dubai. He provided MTN number 0541155359 to me, which serves as mobile money account and directed I should effect payment to him through that medium. 5. Upon my instructions, my son, Michael Addai transferred money on different occasions to the said mobile money account amounting to GH¢60,000.00, the purchasing price of the so- called Toyota Fortuner. 6. After payment for the purchasing of the purported Toyota Fortuner, I was in need of caterpillar spare parts to buy and Accused person claimed he could get the parts for me from Dubai as well. The spare parts are rollers, segments and links for which accused person gave it cost as GH¢52,000.00” Additionally, PW2 also at paragraph 3 of his witness statement stated that the one hundred and eight two thousand Ghana cedis (GH¢182,000.00) was for the purchase of a Toyota Fortuner and Caterpillar spare parts. PW2 in his witness statement stated in part: “3. On 21st March 2023, Complainant called and reported that sometime in December 2022 that Accused person collected an amount of GH¢182,000.00 from him under the pretext of buying Toyota Fortuner and Caterpillar spare parts in Dubai for him and upon receipt of the money, failed to honour his obligation. 10. Investigations established that sometime in December 2022, Accused person misrepresented to Complainant that he could import Toyota Fortuner and Caterpillar spare parts in Dubai for him at the cost of GH¢60,000.00 and GH¢52,000.00…..” Secondly, PW1 stated in his-evidence in chief that the total amount of money transferred by PW1 into the mobile money account number 0541155359 as allegedly provided by the accused person was one hundred and twelve thousand Ghana cedis (GH¢112,000.00) for the purchase of the Toyota Fortuner and the caterpillar parts. PW2 also stated that an amount of one hundred and twelve thousand Ghana cedis (GH¢112,000.00) was transferred from Access Bank, Ghana, Sefwi Wiawso and Joaddai Company Limited to MTN number 0541155359 as provided by the accused person and as per exhibits “D” series for the purchase of the Toyota Fortuner and 17 caterpillar parts. Surprisingly, the sum total of the monies transferred to MTN mobile number 0541155359 as per exhibits “D” series is one hundred and two thousand, eight hundred and ten Ghana cedis (GH¢102,810.00) and not one hundred and twelve thousand Ghana cedis (GH¢112,000.00) as claimed by the prosecution witnesses. Thirdly, whilst the particulars of the offence, the facts as attached to the charge sheet, the evidence of PW1 and PW2 state that a total amount of One hundred and eighty two Ghana cedis (GH¢182,000.00) was given to the accused person, the totality of the evidence on the record together with the exhibit “D” series show that a total of one hundred and seventy two thousand, eight hundred and ten Ghana cedis (GH¢172, 810.00) was allegedly paid to the accused person personally and through the momo account number 0541155359. From the above, there are serious inconsistencies in the case of the prosecution and this court finds that they are serious inconsistencies which cannot be treated with a pinch of salt. There are serious doubts as to the whether an amount of one hundred and eight two thousand Ghana cedis (GH¢182,000.00) was paid to the accused person and whether the said one hundred and eighty two Ghana cedis (GH¢182,000.00) was for the purchase of caterpillar parts on one hand or for the purchase of caterpillar parts and a Toyota Fortuner on another hand or for the purchase of a Toyota Fortuner, caterpillar parts and the clearing of same at the ports in another vein. As stated supra P.K. Twumasi in his book Criminal Law in Ghana page 128 and 129, explained the law concerning discrepancies in the case of the prosecution in the following words: “Where there are discrepancies (or inconsistencies or contradictions) in the testimonies of the prosecution witnesses, it is the duty of the judge to direct himself or the jury or assessors to the discrepancies and to tell them that such discrepancies are not fatal to the prosecution’s case unless they go to the very root of the matter in issue. A discrepancy in the case of the 18 prosecution is fatal only when it cannot be reconciled with the rest of the evidence or when it is material or goes to the root of the matter in issue.” See: Mensah vs The State [1963] 1 GLR 26. The learned author was however quick to add that where the contradictions are irreconcilable; the accused person must be acquitted. In the opinion of this court, the inconsistencies in the evidence of the prosecution case are crucial or decisive. In this instant case, my examination of the totality of the evidence on record together with exhibit “D’’ series reveal irreconcilable contradictions. The above contradictions go into the root of the matter in issue which is whether or not during the month of November, 2022 at Cantonments in the Greater Accra Region and within the jurisdiction of this court, the accused person collected cash the sum of one hundred and eighty two thousand Ghana cedis (GH₵182,000.00) from PW1 under the pretext of getting him caterpillar parts as per the particulars of the offence. The above inconsistencies are colourful and have created serious doubts as stated above and these doubts should inure to the benefit of the accused person. It is therefore the opinion of this court that putting all the analysis above together, the instant case, is a classic example of a case which should not have crossed the prosecution’s boundary into the territory or domain of the defence after the close of the prosecution’s case due to the inconsistencies that discredit the prosecution’s case altogether and the doubts created. The prosecution who had the burden to prove that the accused person during the month of November, 2022 at Cantonments in the Greater Accra Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of PW1 to part with the cash the sum of one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) by means of certain false pretence to wit: by falsely pretending that 19 if the said amount is given to him, he could import caterpillar parts from abroad for him failed to prove same in accordance with section 13 of the Evidence Act, 1975 (NRCD 323) which provides as follows: “In a civil action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” In the case of Sabbah v The Republic [2009] SCGLR 728, the Supreme Court in applying sections 11 and 13 of the Evidence Act, NRCD 323; the burden of producing evidence and proof of crime respectively held that a valid conviction shall be premised on grounds that the guilt of the accused person has been proved beyond reasonable doubt and where there is a doubt it shall be resolved in favour of the accused person. The law as decided in Miller v Minister of Pension [1947] 2 AER 373 and now a trite law is that proof beyond reasonable doubt does not amount to proof beyond a shadow of doubt. Based upon the testimonies of the above witnesses, the prosecution’s case has been so discredited during cross-examination that it is so manifestly unreliable that no reasonable tribunal could safely convict upon it. The evidence adduced by the prosecution failed to take the case out of the realm of conjecture and the evidence on record is best described as insufficient. For prosecution to succeed on such a charge against the accused person, it is incumbent on prosecution to prove all the essential ingredients of the offence charged and connect the complexity of the accused person to the offence but prosecution woefully failed to do so. The prosecution also woefully failed in leading sufficient evidence beyond all reasonable doubt to establish that the accused person during the month of November, 2022 at Cantonments in the Greater Accra Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of PW1 to part with the cash the sum of one hundred and eighty two thousand Ghana cedis (GH¢182,000.00) by means 20 of certain false pretence to wit: by falsely pretending that if the said amount is given to him, he could import caterpillar parts from abroad for him. On a full and careful consideration of the charge and after hearing the witnesses of the prosecution and defence together with the exhibits, and the applicable laws as enunciated above, this Court is of the considered view that the charge of defrauding by false pretence contrary to section 131 (1) of the Criminal Offences Act, 1960 (Act 29) preferred against the accused person cannot be supported by the evidence on record. The accused person Issah Yakubu is accordingly acquitted and discharged of the offence of defrauding by false pretence contrary to section 131 (1) of the Criminal Offences Act, 1960 (Act 29). CONCLUSION The accused person is acquitted and discharged of the offence of defrauding by false pretence contrary to section 131 (1) of the Criminal Offences Act, 1960 (Act 29). CHIEF INSPECTOR TEYE-OKUFFO FOR THE REPUBLIC PRESENT SELF-REPRESENTED ACCUSED PERSON PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 21