S v Khartey and Others (CC/ B1/51/21) [2025] GHACC 51 (12 March 2025)

CORAM: HERHONOUR BERTHA ANIAGYEI(MS) SITTINGAT THECIRCUIT COURT ‘A’ OF GHANA HELDAT KOFORIDUA ONMONDAY, 12TH MARCH, 2025 SUITNO: CC/ B1/51/21 THEREPUBLIC VRS 1. DSP OTUMI KHARTEY 2. NO 47810ABDUL-RAHMAN MAHAMA 3. ATAAWU JUSTICE NKRUMAH @ NANA SIKA R U L I N G The accused persons were arraigned before this Court on the 9th of August, 2021 on twentyfive(25)countsofconspiracytodefraud,abetmentofcrimeanddefraudingbyfalse pretences. On count one, they are charged with conspiracy to commit crime to wit defrauding by false pretences contrary to section 23 (1) and 131 (1) of the Criminal OffencesAct,1960,Act29. The particulars of offence are that between the months of February 2018 and June 2019, atKoforiduaintheEasternCircuitandwithinthejurisdictionofthisCourt,they didagree Page1of27 to act together with a common purpose to commit crime to wit; defrauding by false pretences. On count two, A2 alone is charged with the offence of abetment of crime to wit defrauding by false pretences contrary to sections 20 (1) and 131 (1) of the Criminal OffencesAct,1960,Act29. The particulars of offence are that between the months of February 2018 to June 2019 at Koforidua in the Eastern Circuit and within the jurisdiction of the Court, he did counsel and purposely facilitate the commission of a crime by oneJusticeNkrumah @Kwarteng @NanaSikatowitdefraudingbyfalsepretences. On count three, A1 is also charged with abetment of crime to wit defrauding by false pretencescontrarytosections20(1)and131(1)oftheCriminalOffencesAct,1960,Act 29.The particulars of offence arethat between the months ofFebruary2018 toJune 2019 atKoforiduaintheEasternCircuitandwithinthejurisdictionoftheCourt,hedid aid and purposely facilitate the commission of a crime by one Justice Nkrumah @ Kwarteng @ NanaSikatowitdefraudingbyfalsepretences. Oncountsfourtotwentyfive, A3is chargedwithdefrauding byfalsepretencescontrary to section131(1)oftheCriminalOffencesAct,19G0(Act29). The particulars of offence for counts four, five and six are that between the months of February 2018 and January, 2019; January 2019 to June, 2019 and February 2019 to June 2019 in the aforementioned place within the jurisdiction of the Court, with intent to defraud, did by means of false pretences, namely by representing toone Philip Boateng, Page2of27 Pearl Akorli Delali and Obeng Gyamfi Ransford that he had influential contactswithin theGhanaPoliceServiceandcouldsecuretherecruitmentofanephewof Philip Boateng, a step nephew of Pearl Akorli Delali by name Eric Amartey and ObengGyamfiRansford into the Ghana police service, did obtain their consent to part with a total cash sum of Four Thousand and Nine Hundred Ghana Cedis (GH¢4,900.00) Four Thousand and Six Hundred Ghana Cedis (GH¢4,600.00) andSixThousand andFiveHundredGhana Cedis (GH¢6,500.00)respectivelywhichstatementhewellknewatthetimeofmakingittobe false. On counts seven to twenty five, the particulars are that for various periods between February 2018 to June 2019 at the aforementioned place and upon the same false representation, he did obtain the sum of Three Thousand andFive Hundred Ghana Cedis (GH¢3,500.00) from Ofori Francis, Four Thousand Ghana Cedis (GH¢4,000.00) from Owusu Kwabena, Five Thousand and One Hundred Ghana Cedis (GH¢5,100.00) from Owusu YeboahRichard, Six ThousandandOneHundredGhanaCedis(GH¢6,100.00)from Sarfo Kwabena, Six Thousand and One Hundred Ghana Cedis (GH¢6,100.00) from Agaza JonasandFiveThousandandSevenHundredGhanaCedis(GH¢5,700.00)fromRichmond Awuah. Further that he did obtain the sum of Five Thousand Seven Hundred Ghana Cedis (GH¢5,700.00) from Charles Fosu, Six Thousand and One Hundred Ghana Cedis (GH¢6,100.00) from Asante Theophilus, Four Thousand and Six Hundred Ghana Cedis (GH¢4,600.00) from Dwumfuor Derrick, Four Thousand and Four Hundred Ghana Cedis (GH¢4,400.00) from Appiah Emmanuel, Seven Thousand Ghana Cedis (GH¢7,000.00) from Adutwum Emmanuel, Six Thousand and Two Hundred Ghana Cedis (GH¢6,200.00) fromAbban Karenand Beatrice Nkansah and Three Thousand and Five Hundred Ghana Cedis (GH¢3,500.00)fromBoansiSamuel. Page3of27 Also that he did obtain the sum of Four Thousand and Six Hundred Ghana Cedis (GH¢ 4,600.00)fromMonica Amankwaa Wise, Five Thousand and One HundredGhanaCedis (GH¢5,100.00) from Benefo David, Four Thousand Ghana Cedis (GH¢4,000.00) from Asare Isaac, Four Thousand and Five Hundred Ghana Cedis (GH¢4,500.00) from Barnabas K. Agyekum, Five Thousand Ghana Cedis (GH¢ 5,000.00) from Regina Aning and Seven Thousand and Six Hundred Ghana Cedis (GH¢ 7,600.00) from Evans Wiredu Poku. All the accused persons pleaded not guilty to their respective charges. Prosecution withdrew count one and three against A1 and he was discharged. Prosecution thus proceededagainstA2andA3only. Accused persons by their plea of not guilty had cast upon prosecution the burden of proof and persuasion. 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: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecutiontoprovehisguiltbeyondreasonabledoubt,meaningtheprosecution hasthe burdentoleadsufficientadmissibleevidencesuchthatonanassessmentofthe totality of theevidenceadducedinCourt,includingthatledbytheaccusedperson,the Courtwould believe beyond a reasonable doubtthattheoffencehasbeencommitted andthat it is the accusedwhocommittedit.Apartfromspecificcasesofstrictliability offences,thegeneral rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accusedpersonmaytestify and call witnesses to explain his side of the case where at the close of the case of the prosecutionaprimafaciecaseismadeagainsthim,heisgenerallynotrequiredbythelawto proveanything. He is only to raise a reasonabledoubt inthe mind of the Court as to the Page4of27 commissionofthe offence and his complicity in itexcept wherehereliesonastatutoryor specialdefence.See:Sections11(2)13(1),15(1)ofthe EvidenceAct, 1975(NRCD323)and COPvAntwi[19G1]GLR408.” The accused persons, by pleading not guilty to the charges, are deemed to have joined issues with the Republic and cast themselves upon the Constitutional guarantee in Article 19 (2) (c) of the 1992 Constitution which presumes them innocent until proven guilty. They have thus earned unto themselves therighttoholdanycardsthey mayhave totheirchestandwatchinsilenceasprosecutionseekstoproveitscaseagainstthem. Unlike King Arthur’s sword, the presumption of innocence of an accused person as guaranteed under the 1992 Constitution, is not caste in concrete. That guarantee is that they are presumed innocent until prosecution has been able to lead evidence to establishtheir guiltbeyondreasonabledoubt. That being so, Prosecution may lead credible and positive evidence to upset that presumption. A Court thus commences a criminal trial where an accused has pleaded not guilty on the rebuttable presumption that the accused person is innocent until proven guilty. The onus lies on Prosecution to lead evidence to establish a prima facie case against the accused persons by the close of their case. It is only then, that Prosecution would be deemed, prima facie to have upset the presumption of innocence in favour of the accused and theywouldinturnbe calleduponnottoprovetheirinnocence, buttoraise a reasonabledoubtastotheirguilt. Prosecution in discharging its burden of proof called four witnesses: Philip Boateng, Detective Sergeant Hayford Lartey, Detective Sergeant Alex Duodu and Detective Page5of27 SamuelFofie. EVIDENCEOFPW1 According to PW1, A3 is his neighbour. A3 informed him that he knew some“big men” at the Regional Police headquarters in Koforidua and these men had recruited some people he had presented to them into the Ghana police service. PW1 says he expressed interestin havinghisnephewbynameEmmanuelAsamoahrecruitedintotheGhanapolice service and A3 told him he would have to pay Two Thousand and Five Hundred Ghana Cedis(GH¢2,500.00). He informed his sister and together with his nephew, they all came to Koforidua to meet with A3 who took them to the Koforidua Regional Police Headquarters after they had paidhimtheagreedTwo Thousand and Five Hundred Ghana Cedis (GH¢2,500.00).They also handed over his nephew’s birth certificate and examination results to A3. Upon getting to the Regional Police Headquarters, the accused person made them wait and proceededtoenterwithonlyhisnephew. Accused later assured them that his nephew would be recruited. Later, his nephew received several callsfromanunknownnumberabouttherecruitmentprocessandwentfor an interview as well as a medical examination. They paid Six Hundred Ghana Cedis (GH¢600.00)toA3forthe medicalexam. Further, they paid Seven Hundred Ghana Cedis (GH¢700.00) to A3 who requested the sameinordertohavesomeoneat WAECworkonsomeissueswithhisnephew'sresults. Hisnephewlaterreceivedan appointmentletterandtheyhadtopayOneThousandGhana Page6of27 Cedis (GH¢1,000.00) to A3 for the purpose of purchasing items that his nephew needed fortraining. He travelled to Accra with his nephew to meet A3 who said there would be a vehicle to convey his nephew and others to the Pwalugu training school. Three days later, his nephewcalledandsohepresumedthatallwaswellandhedidnothearfromhimagain. He continued that news of his nephew’s recruitment spread and other people contacted him to express their interest in joining the police service. That he in turn introduced them to A3 who took various sums of money from them. One of these people by name Emmanuel Appiah wanted to join the military and A3 confirmed that his “big man” couldsecurehisenlistment. PW1 continued that he introduced five (5) people who all wanted to join the military to A3. They were Owusu Yeboah Richard, AgazaJones, TheophilusAsante, David Benefo and Sarfo Kwabena. Each of them paid Four Thousand and Five Hundred Ghana Cedis (GH¢4,500.00)toA3asfeesfortheirrecruitment. That all thesefive(5)peoplelaterinformedhimthattheyhadreceivedcallsfromaprivate number about their recruitment. Later,healsoreceivedacallfromaprivatenumberandthepersonassuredhimthathewas the one who had assisted his nephew to get enlisted into the Ghana police service. The personthentoldhim that he had seven(7) slotsto recruit people intothe police service. Basedonthis,PW1 saysheorganizedseven (7)peopleinthepersonsofOwusuKwabena, KarenAbban,Helena,LawrenceOseiWiredu,BarnabasK.Agyekum, ReginaAning and Page7of27 anotherperson.Oneofthepeoplebyname YawAdusiPokuinsistedonmeeting the big manandhetoldA3whereuponA3informedhimthatthesamewouldprove difficult. A3 however suggested that they could meet with one of the big man’s subordinates. That he, A3 and Lawrence met with the said subordinate who he later found out was called Rahman (after A3 had mentioned his name) and is A2. A2 asked the said LawrencetoshavehisbeardashewouldsoonbejoiningEmmanuelfortraining.Theyalso paidLawrence’smoneytoRahman. Again, he went with Karen and her relatives to meet with A3 and A2. A2 informed them that he had been tasked to receive the money and they paid him Six Thousand Ghana Cedis (GH¢6,000.00). TheypaidthesaidmoneytoA2andalsohandedhimKaren'sdocuments.That the seven (7) people kept updating him on the status of their enlistment until they received their appointment letters. He later reported with them to police headquarters in Accra and theywereaskedtowaitforbusesthatwouldtakethemtotheirtraining schoolin Kumasi. PW1 continues that he left them but received acallfromthemaround10:30pmthat the bus never showed up. When he tried to ring A3, his phone was switched off. That A3 calledhimafterthree (3) daysand assured him that theseven(7)personswouldreceivea callandwhentheydid,theyshould say they were ingroup“HF”.Theylaterconfirmed to himthattheyhadindeedreceivedsuchacall. However, he later went home upon the invitation of his sister and she told him that his nephew, Emmanuel Asamoah had never gone to any police training school but was staying in a guest house at Akwadum all this while. He contacted his nephew and later lodgedacomplaintatthepolicestationandA3wasarrested. Page8of27 Inall,abouttwentyone(21)personswereluredbyA3withhisnephew'sapparentsuccess andthesepeoplepaidvarioussumsofmoneytoA3tohelpthemgainemploymentin the securityservices. EVIDENCEOFPW2 PW2 testified in his capacity as one of the investigators in this case. According to him, PW1 reported a case of defrauding by false pretences involving himself and about twenty one (21) other people as the victims. He mentioned A3 as the suspect and said A3 had represented to him that he had been mandated by a certain senior police officer to bring persons who had an interest in enlistment into the Ghana Police Service or the Ghana Militaryforprotocolenlistment. HecontinuedthathearrestedA3whomentionedA1astheseniorpoliceofficerwho had chargedhim tobring peoplefor the recruitment. A3 mentioned thatA1 had purchaseda motorcycle for him for that purpose. Although the motorcycle was indeed purchased by A1forA3,A1claimedthatitwastoassisttheaccusedpersontoworkasaninformant. He continued that A3 indicated that he had given the monies he received from the victims to A1 and led police directly to A1’s office at the Regional Police headquarters whereA1wastheOperationsofficerfortheEasternRegion.A3pointedtotheoffice and saidthatiswherehehadbroughtthemoneytoA1andalsobroughtsomevictims. Further, their investigations gathered that A3 had brought one Emmanuel Asamoah to A1’s office where A3 gave an amount of Two Thousand and Five Hundred Ghana Cedis (GH¢2,500.00)andabirthcertificateofthesaidEmmanuelAsamoahtoA1. Page9of27 According to him, A1 was interrogated and he said he had only interacted with A3 as an informant.However,anitemizedbillobtainedduringinvestigationsshowedthatA1had interactedwithA3severallyfordifferentlengthsoftime. ThatfurtherinvestigationledtothearrestofA2asanaccompliceduetoevidencethat A2 had met A3 twice at Chris Cafetoreceivemoneyanddocumentsfromtwoofthe victims andhadalsometEmmanuelAsamoahforsomedocuments. That A2 denied any involvement and said he had only met A3 at the said cafe when he wentintopurchase food andagainwhenhewasinthecompanyofothers.Hetendered in evidencethestatementofPW1,EmmanuelAsamoahandsomeotherallegedvictims. He again tendered in evidence the investigation and further investigation caution statement of A3, the investigation caution statement of A2, the charge caution statement of A3 and A1 as well as the itemized bill indicating conversations between A1 and A3. He finallytenderedinevidencehisownstatement. EVIDENCEOFPW3 PW3testifiedasoneoftheinvestigatorsinthecase.HisevidenceisthatPW1reportedacase of defrauding by false pretences to him in February, 2020 at the Effiduase police station. That PW1 mentioned A2 and A3 as wellas another person whomhe referred to as MP as thosewhohadcommittedtheoffence. He continued that he invited A2 and obtained an investigation caution and later a Page10of27 charge statement from him. He also obtained statements from other victims who indicatedthattheyhadpaidmoneytoA3inthecompanyofA2. EVIDENCEOFPW4 In his evidence in chief, he said that PW1 reported a case of defrauding by false pretencesbyA3tohimattheKoforiduaRegionalPoliceheadquartersinJuly,2019. Upon his arrest, A3 led police to rescue a nephew of PW1 who had been staying at a guest house. A statement was taken from the victim as well as A3. A3 mentioned his accomplice as a member of parliament by name Debrah and gave out a telephone number for the said person which proved incorrect. A search on the website of Ghana’s parliamentalsodidnotshowanymemberofparliamentbythatname. He then charged A3 and obtained a charge statement from him. A3 later made a further statement which was a confession statement. That A3 had mentioned A1 as his accomplice, mentioned his name and rank and led police directly to A1’s office at the RegionalPoliceheadquarters. He continued that A3 later stated that the person he was referring to as Debrah was actuallyA1becausehebelievedthatA1couldprotect himif he did not mention his name. The victim Emmanuel Asamoah also led police to A1’s office and pointed out the same as whereA3hadbroughthim. That A3 also mentioned having visited a chop bar with A1 and a friend by name Atta Kwadwo. Atta Kwadwo corroborated this in the course of investigations. A3 also mentioned some police personnel who saw him going to A1’s office and those police Page11of27 personnelcorroboratedA3’sstatement. PW4 continued that when A1 gave his statement, he indicated that he had only communicated once with A3 as an informant. That call records retrieved from a telecommunication network established that A1 had indeed been calling A3 and had placedeighteen(18)callsto A3 between January toJune, 2018.ThatA3alsostatedthatA1 had purchasedamotorbikeforhimtoaidhisquestofbringingunsuspectingvictimsand alsomeetinghimwhennecessarywithdocumentsandmoney. That although A3 indicated sending money to A1’s phone via mobile money, a thorough search of the vendors he disclosed did not indicate any money transfers to A1’s phone number. Other victims later emerged and PW2 was put in charge of that investigation. He tendered in evidence the statement of PW1, that of Emmanuel Asamoah and the investigationandfurtherinvestigationcautionstatementandchargestatementofA3. He further tendered in evidence photographs of A1’s office as identified by A3 and EmmanuelAsamoahaswellasthestatementofAttaKwadwo. Page12of27 PW4 also tendered in evidence the statements of the police officers who saw A3 frequenting A1‘s office, the call records indicating communication between A1 and A3 and his ownstatement. Prosecution closed its case after this. CONSIDERATIONBYCOURT It is a legal known that Prosecution bears the evidential burden of establishing all the elements of the offence they have charged the accused persons with. Inthe case ofRichard Banousin v. The Republic, Crim., Appeal No j3/2/2014 delivered on 18th March, 2014,the reverentJusticeoftheSupremeCourt;DotseJSC saysthat“theprosecutionhastheburden toprovideevidencetosatisfyalltheelementsoftheoffencecharged’’. In Gligah M Atiso v. The Republic [2010] SCGLR 870 @ 879 the Court held that “Under article 19(2)(c) of the 1992 Constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person is arraignedbeforeany Courtin anycriminaltrial,itisthedutyofprosecutiontoprove the essential ingredients of the offence chargedagainsttheaccusedpersonbeyondany reasonabledoubt.Theburden ofproofisthereforeontheprosecutionand itisonlyafteraprimafacie case has beenestablished by theprosecutionthattheaccusedpersonwouldbecalledupontogivehissideofthestory.” Section 173 of the Criminal Procedure and Other Offences Procedure Code, 1960(Act 30)providesthat;"Ifatthe close of theevidenceinsupportofthecharge,it appears to the Court that a case is not made out against the accused sufficiently to requirehim tomakeadefence,theCourtshall,astothatparticularcharge,acquithim." Page13of27 TheCourt is thus obligated atthecloseofprosecution’scasetoconsidertheevidenceon record and determinewhetheritmeetsthestandardofaprimafaciecasebeforecalling onanyoftheaccusedpersonstoopentheirdefence. TheCourtmustmakethisdeterminationwhetherornotcounselfortheaccusedperson files a submission of no case. In the case of Tsinowope v The Republic [1989-90] 1 GLR 114 at p117, the Court of Appeal per Osei-Hwere J.A restated the position that “It is a question oflawforthetrialjudgetodecideonthismatterandnotoneoffactfor thejury.” The law has long been settled as to the factors for a Court to consider in deciding whetherornotacaseismadeoutagainsttheaccusedsufficientlytorequirehimtomakea defence. In the Supreme Court case of Asamoah & Anor. v. The Republic [2017-2018] 1 SCGLR, 48C, Adinyira JSC speaking for the apex Court, stated that “the underlying factor behind the principleofsubmissionofnocasetoansweristhat,anaccusedperson should be relieved oftheresponsibilityofdefendinghimselfwhenthereisnoevidence uponwhichhemaybeconvicted.ThegroundsunderwhichatrialCourtmayupholda submissionofnocaseasenunciatedinmanylandmarkcaseswhetherunderasummary trialortrialbyindictmentmayberestatedasfollows; a) Therehadbeennoevidencetoproveanessentialelementinthecrime b) Theevidenceadducedbytheprosecutionhadbeensodiscreditedasaresultof crossexamination;or c) The evidence was so manifestly unreliable that no reasonable tribunal could safelyconvictuponit d) The evidence was evenlybalancedinthesensethatitwassusceptibletotwolikely Page14of27 explanations,oneconsistentwithguilt,onewithinnocence. See the celebrated case of The State v. Ali Kassena [19C2] 1 GLR 144 in which the Practice Direction issued by the Queens Bench Division in England [19C2] 1 E.R 448 (Lord ParkerCJ)wasapprovedandthecaseofTsatsuTsikatav.TheRepublic [2003- 2004]SCGLR 10C8).See alsothecase ofSarpong v. TheRepublic [1978]GLR 790. To begin with, A3 is before this Court on 23 counts with 22 of these counts being defrauding by false pretences involving twenty two (22) complainants. Of the twenty two (22) complainants, onlyone, Philip Boatengtestified in this Courtas PW1. The remaining twenty one (21) did not appear in Court to testify even though they are all alive and there is no evidence of their incapacitation. The reasons for their absence from prosecution’ssubmissionsappeartobealackofinterestinthecase.PW2 hadtenderedsomeoftheirstatementstothepoliceinevidenceasEXHIBITSH,J,Kand L. Although four of these statements as given at the police station were tendered in evidence as EXHIBITS H, J, K and L, I find that as the declarants were all alive and could have appeared in Court to testify and undergo cross examination by the third accusedpersontotesttheweightoftheirevidencebutchosenottodoso. Iattachvery littleweightifatalltotheirstatementsastenderedinevidence. Itiselementarythatevidenceisweighedandnotcounted. In the case of Frimpongv. The Republic (2012/ GHASC, VOL 3 – 18th January 2012,), it was held by the Supreme Court speaking through Dotse JSC “that evaluating evidence in a criminal trial is not based on the quantity of witnesses called at a trial in proof of the case of the prosecution or the defence, but the quality of the evidence that the witness(es) profferat the trial’’. Page15of27 In weighing the evidence against A3 on counts five to twenty five, I find that the evidence cannot be relied upon to sustain a conviction in this case. This is because although PW1purportstohaveknowledgeofthetransactionsinvolvingalltheother twentycomplainants, he mentionedsix peoplein paragraph40ofhisevidenceinchief, one person in paragraph 41 and five people in paragraph 34 ofhis evidence in chief. Thesetogetherwith his nephew; Emmanuel Asamoah add uptothirteen(13)persons and nottwentyone (21). EveniftheCourtistotakethatevidenceatfacevalue,whenthisisevaluatedinlightof theevidenceofPW2andPW4whoinvestigatedthiscaseandwhoseevidenceasIwould elaborateonlater, pointtothefactthatA3wasactingonbehalfofA1andindeedknew A1asaseniorpoliceofficer,thenhisevidencecompletelylosesweight. That being so, the evidence of prosecution on these chargesbecomes subject to far too manyquestionswhichwereleftunansweredbyprosecutionduetotheabsenceofthe complainants.Ithusfind atthe close of the prosecution's case that I cannotrelyonthe evidenceonrecordtosustainthechargesontherespectivecounts. Atthecloseof the prosecution's case, I hold that they have failed toestablishaprima facie case against A3 on counts five to twenty five. He is accordingly acquitted and discharged on count five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,sixteen, seventeen,eighteen,nineteen,twenty,twentyone,twentytwo,twenty three,twentyfourandtwentyfive. Oncount one, onacharge ofconspiracy tocommit theoffence ofdefrauding byfalse pretences, the applicable section of the Criminal Offences Act, 19C0 (Act 29) is Page16of27 section23(1).Itprovidesthat“wheretwoormorepersonsagreetoacttogetherwitha commonpurposefororincommittingorabettingacriminaloffence,whetherwithor without a previous concert or deliberation, each of them commits a conspiracy to commitorabetthecriminaloffence”. The erudite Torkornoo JSC (as she then was) in reading the decision of the Supreme Court in the case of Asiamah Vrs Republic (J3 6 of 2020) [2020] GHASC 64 (04 November 2020) held that “The elements of conspiracy as just stated were outlined in Republic v. Baffoe Bonnie and 6 Others (Suit No. CR/904/2017) (unreported) dated12May 2020by KyeiBaffourJA sitting as an additional justice of the High Court in these words: ‘For prosecution to be deemed to have established a prima faciecase,theevidenceledwithoutmore,shouldprovethat: 1. Thattherewereatleasttwoormorepersons 2. Thattherewasanagreementtoacttogether 3. That the purpose for the agreement to act together was for a criminal enterprise. The offenceofConspiracyissuchthatonceapersonhasagreedwithanothertocommit or abet the commission of an offence, the offence has been made out. This is so even whereoneofthe parties resiles from the actual commission or abetment ofthe offence. Again, the persons need not have had a previous concert or deliberation prior to agreeingtoacttogether. Inthiscase,inordertoestablishthefirstoffence,Prosecutionmustprovethat 1. Theaccusedpersonsagreedtoacttogether 2. The agreement to act together was for the common purpose of Page17of27 undertaking the criminal enterprise todefraudthecomplainants. In Commissioner of Police v. Afari M Addo [19C2] 1 GLR 483, it was held by Azu Crabbe JSC that “it is rare in conspiracy cases for there to be direct evidence of the agreementwhichis the gist of thecrime. Thisusuallyhastobeprovedbyevidenceof subsequentacts,doneinconcert,andsoindicatingapreviousagreement.’’ The Supreme Court, through Appau JSC, stated in the case of Akilu v. The Republic [2017-2018] SCGLR 444 at 451 that : “Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting togetheror in concert, theprosecutionistaskedwiththedutytoproveorestablishthe roleeachof theallegedconspiratorsplayedinaccomplishing’’(emphasismine) This position of the law was reiterated by the Supreme Court in the oft cited case of Azametsi M Others v. The Republic [1974] 1 GLR 228, where the Court held that it was not always easy to prove agreement by evidence, but it could be inferred from the conductofandstatementsmadebytheAccusedPersons. Astheoffenceofabetmentwithwhich A2alonestandsaccusedofoncounttwo,forms partoftheoffenceofconspiracy,Iwouldconsiderbothcountsoneandtwotogether. Oncountone,thesum of prosecution’s evidence is thatthetwoaccusedperson’sacted together when A2 and A3 met with some alleged victims on two occasions, collected moneyfromthemupontheunderstandingthatthemoneywouldbegiventoasenior police officer for the purpose of recruiting the alleged victims into the Ghana police service. Page18of27 ForA3,prosecution’sevidenceastotheroleheplayedwastorecruittheallegedvictims whilst for A2, from the evidence, his specific role was to meet with the victims and assure them that he was meeting with them upontheinstructionsoftheseniorpolice officerwhowasinchargeofensuringtheirrecruitment. However, I takenote thattheparticularsofoffenceforcounttwoarethatA2counselled A1 and in so doing facilitated his commission of the offence of defrauding by false pretences. According to the 2nd edition of the Black's Law Dictionary, to counsel someonemeanstoadvisethem. Imuststate here that nowhere in prosecution’s extensiveevidencediditleaddirector circumstantialevidenceto establish how A2counselledA3andbysodoingabettedhim inthecommissionofthisoffence. Theevidenceonrecord by prosecution is that A2 and A3metwithsomeofthevictims ontwooccasionsatChriscafewhereA3havingrepresentedtothesaidvictimsthathe knewabigmanin the Ghana Police Service whocouldenlistthemintothe saidservice, introducedA3astheerrandboyofthesaidbig/seniorpoliceofficer. ThatA2in turn spoketothevictimsandaskedoneofthemtoshaveoffhisfacialhairas he would soonbe joiningtheGhanaPoliceService andthenproceededtoreceivemoney andtheeducationalcertificatesofthesevictimsforonwarddeliverytohisboss. The sum ofprosecution’s evidence throughitswitnesses, particularlyPW1 was thatby theiractionsandstatements,A2andA3hadmadehimtobelievethatA3knewacertain bigmanintheGhanaPoliceservicewhocouldenlistpeopleintotheserviceandA2wasa subordinateofthesaidseniorpoliceman. Theseinchoate offences would be better addressed if I consider them together withthe substantive offence of defrauding by false pretence. Section 132 defines the offence of Page19of27 defrauding by false pretences to be thus; “a person is guilty of defrauding by false pretences if, by means of any false pretence,orbypersonationheobtainstheconsentof anotherpersontopartwithortransfertheownershipofanything”.TheProsecutionin ordertosucceedonachargeofDefraudingbyFalsePretencesinthisparticularcaseneed to provethat; 1. Theaccusedmadeafalsepretence 2. That by means of the false pretence, the accused obtained the consent of the complainant to part with or transfer their ownership of a thing or property (money) 3. Theaccuseddidsowithanintentiontodefraud. By false pretence, the prosecution must prove that the accused, knowing that a statement or representationhewasmakingwasfalse,madesuchafalserepresentationto thecomplainantwiththeintentionthatheshouldrelyonthesaidfalsestatement. Prosecution must go on to prove thatthecomplainantreliedonthefalsestatementto hisdetriment.Thismeansthathewasinducedbyvirtueofhisbeliefinthatstatementto part withhismoney. On the last element ofan intention to defraud, Section 1(c) of the Criminal Act, 1960 (Act 29) provides that for the purposes of any provision of this Code by which any forgery, falsification, or other unlawfulactispunishableifusedordonewithintentto defraud, an intent to defraud means an intent to cause, by means of such forgery, falsification,orotherunlawful act, any gain capable ofbeingmeasuredinmoney,orthe possibility of any such gain, to any person at the expense or to the loss of any other person. Page20of27 Onthefirstelementofa false pretence,prosecution’s evidenceappearstohavewobbled somuchthatevenafterbeinggivenaseat,itstillcouldnotbestabilized.Theevidenceis quite confusing. I say so because according to prosecution in its particulars of offence, A3falselyrepresentedtoPW1thathehadinfluentialcontactsor“bigmen”withinthe Ghanapoliceservicewhocouldrecruitpersonsinterestedintheservice. PW1wasemphaticinhisevidenceinchiefand under cross examinationbyA3 thatA3 hadnotstatedthathecouldpersonallyrecruitpeopleintotheGhanapoliceservicebut ratherthathehadtoppoliceofficerswhocoulddoso. Asprosecutionwaslayingitsclaimonthefactthatthisrepresentationwasfalse,itbore the burdenofleadingevidencethat A3 did notindeed knowanyinfluentialpersonor “bigman”withintheGhanaPoliceserviceatthetimehewasmakingthisrepresentation. Yet,prosecution’sevidenceappearstodotheexactoppositeofthis. The evidence of PW1, PW2, PW3 and PW4 all point to the fact that A3 indeed knew A1who by virtueofhisrankasaDeputySuperintendentofPoliceandthedirectorin charge of operations of the Eastern Regional Police Command as evidenced by EXHIBITS Q series (which were tendered in evidence by PW2 and PW4) would be consideredasabigmanwithinthepoliceserviceintheEasternRegion. Prosecution’sown evidence further manifests that A3 didnotonlyknowA1butprima facieappearstohave beenacting as his agentin the recruitmentofpersons. Thisprima facie evidence is inferred from prosecution’s evidence to the effect that A1 gave a motorbikeforA3forhisown use eventhoughhe is notaservicemanandalsothatone Atta Kwadwo per EXHIBIT P1 corroborated A3’s claim of having a cordial Page21of27 relationshipwithA1extendingtothemhavinglunchatachopbartogether. A3’s intimate knowledgeand dealings with A1 is again put ondisplayby prosecution’s further evidence that the nephew of PW1 pointed A1’s office as the office to which A3 had taken his educational certificates as well as the sum of Two Thousand and Five hundredGhanaCedis(GH¢2,500.00)foronwarddeliveryto the“big man”. In addition tothis,prosecutionledevidencetoprovethatA3 knewA1notbywayof anacquaintancebutinamoredetailedmanner.TheevidenceofPW2andPW4arethat per EXHIBIT “D” and “S” series the call records obtained from Vodafone telecommunication’s company bear out the claim of A3 that he was in regular communication with A1. A1 and A3 had communicated eighteen (18) times on that particular telephonenumberwithinaperiodoflessthaneighteen(18)months. Allthese evidence from prosecutions own witnesses make it manifestly evident that A3 didnotmake afalserepresentationaboutknowinganinfluentialmanwithintheGhana Police Service Eastern Regional Command and more importantly that he knew an influentialmaninthepersonofA1. When these pieces of evidence are added to EXHIBITS P2 and P3 which are the statements of policemen indicating (particularly per EXHIBIT P2) that A3 was regularlyseenatthe premisesoftheEasternRegionalPoliceheadquarters;sometimesin thepresence ofotherpersonsanduponquestioningindicatedthathehadcometosee A1andindeedheadedtoA1’s office,thenthequestionthat anyreasonablemanwould ask is, how can the evidence on record lead to an inference that A3 made a false representation that he knew an influential policeman who could recruit interested personsintotheGhanaPoliceserviceandmilitary? Page22of27 TheevidenceonrecordratherpointstoareasonableinferencethatA3indeedknewthe saidinfluentialmaninthe personof A1 and thuswas notmakingafalsepretence.This inference is further buttressed by the answers of prosecution witnesses under cross examination by learned counsel for A2 and A3 himself. PW2, PW3 and PW4 are all policemenwhoinvestigatedthismatter. Under cross examination, they had made it explicitly clear by their words and demeanour that they had come to the conclusion per their investigations that A3 did notonlyknowbutwasworkingwithA1. Prosecution isnotmountingitscaseonaclaimthateventhoughA3knewaninfluential “big”policeman,hehadfalselyclaimedthatthesaid“bigman”couldrecruitinterested people into the Ghana police service and neither had it sought to lead evidence on the same. ProsecutionhadalsonotledanyevidencethatA3hadcausenottobelieveA1coulddo what he represented and yet had gone ahead to make this representation to other personsincluding PW1. Prosecutions’ claim and to which it led contrary evidence is that A3 had falsely represented that he knew influential people in the Ghana Police Service who could recruitinterestedpersonsintotheserviceandthemilitary. Since prosecution had established that indeed A3 knew a DSP and director of operations of the Eastern Regional Police Command and who is a senior police officer in thepersonofA1andhad fromalltheevidenceonrecord,primafacieactedasanagent Page23of27 ofA1forthepurposeofrecruitinginterestedpersonsintotheGhanaPoliceServiceand hadgivenmoneysreceivedforthatpurposetoA1,itstandstosaythatprosecutionhas failed in establishing an essential element of both count one and count four which is thatA3madeafalsepretence. WithregardtoA2,asalreadyindicated,prosecutiondid notleadascintillaofevidence in proof of their claim that he counselled A3 to commit the offence. According to PW1 undercrossexaminationbylearnedcounselforA2,A2receivedmoneyinhiscapacityasa subordinate for onward delivery to his superiors and he (PW1) asked A2 to make sure thathissuperiorsdidtheworkforwhichthemoneywaspaid. As learned counsel had rightly pointed out under cross-examination, PW1 had given four statements to the police.ThefirsttwodidnotmentionA2atall.Itwasthe latter which mentioned A2. It is not lost on me that contrary to police practice as explained by PW4, PW1 had managed to lodge two complaints at different police stations within the same jurisdiction against different persons in respect of the same transaction. HehadinitiallylodgedacomplaintagainstA3attheRegionalPoliceHeadquartersand that was investigated by PW4. This was in July, 2019. He did not mention A2 in his statement and furtherstatement. His nephew had also givenastatement anddid not mentionA2. Then in February 2020, PW1 had proceeded to Effiduase police station which itself is jurisdictionallyundertheregionalcommandtomakeacomplaintagainstA2andA3in respectofthesametransaction.He wasassistedinthelatterbyA1 whowasatthetime standing trial beforethis CourttogetherwithA3onthe complaint that theverysame PW1hadmadetothepoliceinJuly,2019. Page24of27 UndercrossexaminationbyA3,PW2hadansweredthatitwasA1whonamed A2as A3’s accomplice. This was after A1 had denied knowing A3. The question here is if A1 did not know A3, how did he know that it was A2 and A3whowereactingtogether withacommonpurposetocommitthecrimeofdefraudingbyfalsepretencesby which reason,heledPW1tomakethecomplaintatEffiduasepolicestation. It begsthe Court’simaginationastowhyA1whohadbeenarraignedbeforethisCourt withA3afterPW4’sinvestigationswouldleadPW1toadifferentpolicestationtomakea complaintwhenwhateverissuesPW1wantedtobeaddressedcouldhavebeenstatedto the initial investigator- PW4 at the same police station. As an accused person at the time, A1 by leading PW1 to make another complaint at a different police station was clearlyinterferingwithinvestigationsandprosecution’switness. To further muddy the waters, PW3 who is the investigatorfromthe Effiduase police stationtestifiedandundercrossexaminationbylearnedcounselforA2,answeredthat hedid notconcludehisinvestigationsand socannotconcludewhetherornotA2took anymoneysfromanyoneunderthepretextofsecuringajobforhim. Mostsignificantly,hefurtheransweredthathe cannotconcludewhetherA2assistedor inany way helped A3incollectingmoniesfromthecomplainantsforthepromiseofa jobin the forces. Onhispart,PW4was emphatic undercrossexaminationthathisinvestigationsdidnot findA2culpable.Indeed,hisinvestigationsdidnotevenextendtoA2becausehewas notasuspect. Page25of27 The basis of A2 being arraigned before this Court is based on investigations by the Effiduase police. According to PW3, the investigations were not conclusive of A2’s complicityinthismatter.SinceprosecutionhadnoconcreteevidenceastohowA2had conspired with A3 to commit this offence and how he also abetted him,thequestion thatanyreasonablemanwouldaskiswhywashearraignedbeforethisCourt? Thewholeepisode smacks of an attemptbyA1tousehissuperiorranktochangethe trajectory of this case- contrary to knownpolice investigative procedures as explained by PW4under crossexamination. It appearsthathe had been allowed to succeed. The investigations were not synchronized and so this Court has different accounts of incidentsfromdifferentpolicestationsagainsteachoftheaccusedpersons withoutanyattempttoharmonizeinvestigations. PW2,PW3 and PW4 allappearedtobeunwillingwitnesseswhoreadilyadmittedtothe rather bizarre state of affairs of this investigation. PW4 agreed with A3 under cross examination that PW1 had connived with A1 who was at the material time facing chargesbeforethisCourttomakethecomplaintattheEffiduasepolicestation. At the close of the prosecution's case, I find that on count one, its evidence is not reliableandcannotsustainaconviction.Oncounttwo,Ifurtherfindthatprosecution hasfailed toestablish bypositive evidence any evidence ofhowA2abettedA3inthe commissionoftheoffenceofdefraudingbyfalsepretences. Oncountfour,whichisa substantive charge ofdefraudingbyfalsepretence,Ifindthat prosecutionhasfailedtoestablishthefirstelementoftheoffence.I wouldnotproceed toconsiderif it has establishedtheotherelementsasthatwouldbeanexerciseinfutility Page26of27 thatwouldhardlyamounttoajudicioususeofjudicialtime. This is because prosecution must establish all ofthe requisite elements of the offence and not some. Thus, having failed to establish the first element, it stands to say that even if it establishes the other elements, it cannot be held that it has discharged its obligationtoestablishalltheelementsoftheoffence. I find thatprosecutionhasfailedtoestablishaprimafaciecaseagainstthetwoaccused persons. Accordingly, on count one and count two, I hereby proceed to acquit and dischargeA2andoncountoneandfour,IherebyproceedtoacquitanddischargeA3. Prosecution,youhavearightofappeal. (SGD) H/HBERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) EMILY ADDO-OKYIREH (CHIEF STATE ATTORNEY) FOR THE REPUBLIC YAW ODURO- ASANTE FOR DOLLAH DJABA MENSAH FOR A2 Page27of27