REPUBLIC VRS. NYAMPONG (B7/01/2024) [2025] GHACC 9 (23 January 2025)

IN THE CIRCUIT COURT ‘B’ KOFORIDUA IN THE EASTERN REGION OF THE REPUBLIC OF GHANA HELD ON WEDNESDAY THE 23RD DAY OF JANUARY 2025 BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE ___________________________________________________________________ CC NO. B7/01/2024 THE REPUBLIC Versus. SAMUEL OFFEI NYAMPONG —————————————————————————————————————— JUDGMENT —————————————————————————————————————— The accused person was arraigned before the Court on a charge of Defrauding by False Pretence contrary to section 131(1) of the Criminal Offences Act, 1960 (Act 29). He is alleged to have taken cash of GHC78,200 from the complainant under the pretext of supplying her with One thousand Seven Hundred (1,700) bags of cement within a period of two weeks but failed to do so. Alarmed, the complainant reported the case to the police on 12th May 2022 leading to the arrest of the accused person. He is alleged to have admitted the offence and said that he used the money received from the complainant to pay his debts. An amount of GHC20,000.00 was recovered from the accused person during investigations. It is trite in our criminal jurisprudence as in this case, that the accused person bears no burden to prove his innocence. It is trite that a person who accuses another of wrongdoing bears the burden to prove the guilt of the other person. The prosecution Page 1 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 who accused the accused person of wrongdoing bears the burden to prove the guilt of the accused person by adducing sufficient evidence. And the standard of proof is proof beyond reasonable doubt. It is only after Prosecution has adduced sufficient evidence in proof of the guilt of the accused person that the accused person may be called upon to open his defence (See sections 11 and 13 of the Evidence Act 1975 (NRCD 323, Tamakloe v. The Republic (2011) SCGLR 29, Frimpong @ Iboman [2012] SCGLR 279), In which case the accused person will be required to adduce sufficient evidence to raise a doubt as to his guilt as provided under section 11(3) of NRCD 323 that, “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt”. Section 131(1) of Act the Criminal Offences Act (Act 29) under which the accused person has been charged provide as follows. “Section 131(1)—Defrauding by False Pretence. A person who defrauds any other person by a false pretence commits a second-degree felony. Section 132—Definition of Defrauding by False Pretence. A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing. Page 2 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 In a recent decision by the Supreme Court on a charge of conspiracy to defraud by false pretences in the case of RICHARD KWABENA ASIAMAH vs. REPUBLIC [2020] DLSC 9911 the Court speaking through Torkono JSC as she then was stated thus; “The criminal enterprise of defrauding by false pretence requires these people to agree to get a third person, to give consent to part with or transfer the ownership of a thing. They may obtain the consent directly or through personation of another person. For the charge of achieving this purpose by false pretence to succeed, these two or more people should have represented the existence of a state of facts, with the knowledge that such representation is false, or without the belief that it is true. They should also have made this false representation with an intent to defraud.” So for the prosecution to succeed on a charge of defrauding by false pretence against the accused person herein, they must satisfy the court that on the evidence, the accused person made a false pretence ( a representation of an existing fact which he knew at the time of making it to be false or without belief in its truth) that by means of the false pretence, or personation, he obtained the consent of another person (the complainant herein) to part with or transfer the ownership of a thing (cash of GHC78,200.00), the subject matter of the charge. In discharging this burden, Prosecution called three witnesses: the complainant Madam Margaret Antwiwaa (hereinafter referred to as PW1) her daughter Mercy Coleman (hereinafter referred to as PW2) and the investigator of the case No. 7444 D/CPL Dora Afrifa-Donkor as the third prosecution witness (PW3). All the prosecution witnesses relied on their respective witness statements filed on their behalf before this Court. Page 3 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 In PW1’s testimony she said she has known the accused person for some time now and she has been conducting business with him. According to her, about two years prior to the incident in May 2021, accused person represented to her that he was a cement dealer and could supply her with cement, she agreed, and they have been working together. She said on 12th May 2021 and June 2021 she paid GHC78,200 to the accused person for the supply of 1,700 bags of cement and these payments were made either with the knowledge or in the presence of her daughter, Mercy Coleman. Accused person failed to supply the cement or refund the money despite numerous promises by him to do so. In PW2’s testimony she confirmed knowing accused person as Wofa Yaw and that she was present when the amount of GHC78,200 was paid to the accused person in May and June 2021 for the supply of 1,700 bags of cement. She also admitted during cross- examination that her mother the complainant has been doing legitimate business with the accused person for some time now and he has on several occasions successfully supplied cement consignments to PW1’s business. The investigator No. 7444 D/Cpl Dora Afrifa-Donkor (PW3) testified that on 12th May 2022, a petition for assistance was received from the Complainant in which she stated that the accused person approached her in her shop at Aburi in the Eastern Region and caused her to believe that he worked with GHACEM and could supply her with 1,700.00 bags of cement within 2 weeks. According to her, her investigations revealed that the accused person after receiving the GHC78,200.00 from the complainant used the money to pay his debts and failed to produce the bags of cement. In support of their case, prosecution tendered in evidence the following exhibits. Exhibit ‘A’ being Police Witness Statement of PW1 dated 12th May 2022) Page 4 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 Exhibit ‘B’ being Police Witness Statement of PW2 Exhibit ‘C’ being investigation cautioned statement of the accused person dated 19th May 2022 Exhibit ‘D’ being charged statement of accused person dated 19th May 2022 Exhibit ‘E’ being Police statement of the Investigator Prosecution closed its case after the evidence of PW3. Section 5(2)(a) of the Practice Direction on Disclosures and Case Management in Criminal Proceedings, 2018 it is provided that “at the close of prosecution’s case, the Court shall on its own motion or on a Submission of No case to Answer, give a reasoned decision as to whether the Prosecution has or has not led sufficient evidence against the accused person as to require the accused person to open his defence”. On this basis, I proceed to evaluate the evidence adduced by Prosecution in support of the charge of defrauding by false pretence against the accused person. In exhibit A (Police Witness Statement of PW1 dated 12th My 2022) the complainant stated that “He (AP) walked into my shop about 3years ago and told me he is a Cement dealer and can supply me with cement since I sell cement. I agreed and we have been working together as my supplier until 12th May 2021 when he took an amount…….” The accused person in his investigation cautioned statement dated 19th May 2022 (Exhibit C) admitted taking the money in issue from the complainant whom he has known and been doing business of supplying her with trucks of cement for two years now, but he has failed to supply this particular one because he used the money for other things aside what they agreed on including payment of his debts and that he is in the process of arranging for the supply of the consignment. Page 5 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 From the evidence before the Court, prosecution has been able to establish that the accused person received the amount of GHC78,200.00 from the Complainant in May and June 2021 with the promise to supply her with 1,700 bags of cement which he has failed to supply. PW1 parted with the money based on the representation by the accused person to supply her with 1,700 bags of cement. Aside these, the key elements of the offence which must be proved by prosecution to establish the offence of defrauding by false pretence against the accused person are that the accused person knew that the said representation was false at the time it was made and that it was made with the intent to defraud. The investigator of the case (PW3) whilst under cross examination, testified that during her investigations she discovered that “the accused person used to work as a GHACEM agent but as at the time of investigations, he had been sacked from that office for a long time. There was a case earlier in the same unit about him. Through that case, we settled that he was no longer working with GHACEM because of the same fraudulent acts”. PW3 however could not say with certainty when the accused person’s engagement with GHACEM allegedly ended, thereby leaving room for speculation. And in a criminal trial as this where the human rights and liberties of the accused person is at stake, the court cannot work with or rely on speculations. During cross-examination on 20th December 2024, PW3 answered when asked; “Q10: So, you will agree with me that by your answer you do not know when and if at all the accused’s agency contract ended with GHACEM. A: I do not agree because I state again that as at the time I was investigating the case accused person was not a supply agent for GHACEM. Page 6 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 Q 11: I put it to you that at the material time of this transaction in May 2021, accused person was working with GHACEM.” A: My Lady, No. I have no idea” (emphasis supplied) Then later at page 38 of the record of proceedings, “Q18: I confirm to you hence that per the quality of investigations conducted, you couldn’t have established that the accused person was not in a position to supply the cement in May 2021. A: I cannot tell please.” (Emphasis supplied) It is worthy of note that the business transaction in issue occurred in May 2021, but it was not until the 12th day of May 2022 that a complaint was lodged with the C.I.D Headquarters following which the investigations started. The evidence before the Court does not establish with certainty that as of May 2021 when the transaction in issue was sealed between the complainant and the accused person, the accused person knew that he was not in a position to supply the 1,700 bags of cement as agreed. Or better put, that the accused person made a representation of an existing fact (his ability to supply the 1,700 bags of cement) which he knew at the time of making it to be false or without belief in its truth. And that this false representation was made with the intent to defraud PW1. The mere alleged admission by the accused person during investigations that he used the money or part of the money to pay his debts and his promise to refund same is not sufficient proof of an intention to defraud the complainant at the time the contract in issue was made in May 2021. Being a known supplier to the complainant, and a businessman, it is reasonably possible that he might have had other arrangements in place to supply the cement as he indicated in ‘Exhibit C’ which failed. Page 7 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 It is also worth noting that the accused person admitted taking the money and using it for other purpose but never admitted the charge levelled against him, which was stealing, as PW3 would want this Court to believe (see Exhibits C and D). The assertion by Prosecution (PW3) that she decided to charge the accused person with defrauding because of an earlier complaint against the accused person in another matter in their unit which investigation revealed that the accused person was no longer an agent of GHACEM was not substantiated by evidence before the court. Since this was the basis upon which PW3 concluded and charged the accused person with the offence in issue, the least Prosecution could have done, was to produce some other form of evidence (positive) in support of same since it is trite that mere assertion without more does not amount to prove especially when the accused person challenged this assertion during cross examination by counsel for the accused person. As earlier stated, prosecution bears the burden to adduce sufficient evidence to prove every element of the offence against the accused person beyond reasonable doubt. In Tamakloe v. The Republic (2011) SCGLR 29 it was held that, where a statute creates an offence, it is the duty of the prosecution to prove each element of the offence, which is a sine qua non to securing conviction, unless the same statute places a particular burden on the accused. The fundamental and the cardinal principle as to criminal burden of proof on the prosecution should not be shifted even slightly. It is only after the prosecution has established a prima facie case against the accused person that the accused person will be called upon to open his defence and at that stage, all the accused person must do is to raise a reasonable doubt in the evidence presented by the prosecution.” (See also The Rep. v Francis Ike Uyanwune [2013] 58 GMJ 162). Page 8 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 With the evidence before the court, this Court will miscarry justice if it calls upon the accused persons to open his defence as was held in Logan & Laverick v. The Republic [2007-2008] 1 SCGLR 77/76 as same falls short of the required standard of ‘beyond reasonable doubt’. Conclusion: Having failed to establish beyond reasonable doubt that the accused person made a false representation to the complainant in May 2021 as regard the supply of 1,700 bags of cement to PW1 based on which the PW1 gave him the GHC78,200.00 and that the said representation was made with intent to defraud, I hold that Prosecution has failed to establish a prima facie case against the accused person to answer. Mr. Samuel Yaw Offei Nyampong is accordingly acquitted and discharged of the offence of Defrauding by False Pretence proffered against him in accordance with section 173 of The Criminal and Other Offences Procedure Act, 1960 (Act 30) which provides that “Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit the accused.” SGD. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE Page 9 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25 Comment: I see this case as a business agreement (contract) that has gone wrong. And the Complainant may have recourse in a civil action for breach of contract and its related remedies. ------------------------------------------------------------------------------------------------------------- Mustapha Mahama (State Attorney) for State Prosecution Daniel Innocent Yao Gbenu for the Accused Person ------------------------------------------------------------------------------------------------------------- Page 10 of 10 ------------------------------------------------------------------------------------------------------- The Republic v. Samuel Ywa Offei Nyampong_ (CC NO. B7/01/2024) 23/01/25