Republic v Coulibaly and Another (D2/001/24) [2024] GHACC 417 (5 November 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 5TH DAY OF NOVEMBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D2/001/24 THE REPUBLIC VRS 1. COULIBALY CHEICK 2. OUODRAGOSIS (AT LARGE) 1ST ACCUSED PERSON ABSENT 2ND ACCUSED PERSON (AT LARGE) A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE FIRST ACCUSED PERSON JUDGMENT The Republic v. Coulibaly Cheick & Ouodragosis at large Page 1 of 13 THE CHARGES The first accused person herein was arraigned before this court charged together with the second accused person who never appeared before this Court throughout the entire proceedings of this case. The charges are Conspiracy to commit crime to wit Defrauding by False Pretences and Defrauding by False Pretences contrary to sections 23(1) and 131(1) of the Criminal Offences Act, 1960 (Act 29) respectively. The trial therefore was in respect of the first accused person who will be subsequently referred to as the accused person in this judgment. THE PLEA He pleaded not guilty to the charges after they had been read and explained to him in French, being his language of choice. Therefore, the prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that the complainant Samou Lawane Akim a Togolese is a trader living at Maamobi whilst accused Coulidray Cheick an Ivorian is also a trader living in Abidjan and 2nd accused Ouedraogosis now at large. During the month of May 2023, the accused and his accomplice Ouedraogosis have agreed to secure Schengen and Canada visas for the complainant and seven of his relatives for a fee of Sixteen Million One Hundred Thousand CFA equivalent to GHS303,539.26. During the period of 17th June 2023 to the 21st of July 2023 the accused and his accomplice collected the amount mentioned above and eight Togolese Passports to secure the visas for the complainant and his relatives. The accused later handed over the eight passports to the complainant with fake visa. On the 3rd of August 2023, the The Republic v. Coulibaly Cheick & Ouodragosis at large Page 2 of 13 complainant with the assistance of his friends arrested the accused person from his hide out at Tesano and brought him to the Kotobabi Police station and formal report made. Accused in his investigative caution statement admitted the offences and said he collected One Million Five Hundred Thousand CFA from the complainant to secure him and his seven relatives Schengen and Canadian visas but failed to deliver. Accused was charged with the offence whilst efforts are being made to get the accomplice now at large arrested and bring him to book. The prosecution called two (2) witnesses in proving its case. EVIDENCE OF THE PROSECUTION WITNESSES The evidence of PW1 Samaou Lawane Akim is basically to the effect that he started communicating with A2 from 8th June 2023 and A2 told him he has a friend in Ghana who owns a company that can easily facilitate travelling to USA, Canada or any of the European countries. According to A2, visa to any of these countries should be ready within two weeks and it is express service. That he charged him CFA 3.5 million for each applicant for Schengen and CFA 4.5 million for Canada. Upon his request, he sent to him, through whatsapp, soft copies of seven passports of his brothers and himself that they wish to travel, some to Canada and others to Europe. That A2 then asked him to bring the applicants to Ghana with their original passports and passport sized photographs and cash for the processes. That he arrived in Ghana on 13th June 2023, at about 7:00 pm, with four of his brothers and A2 instructed him to look for a hotel and lodge in, but he also said he needed to see him that night. According to PW1 he met A2 where A2 demanded and collected an amount of CFA 720,000.00 that night with the explanation that he was going to give it to the owner of the company who is securing the travelling documents for him and his people. That he later The Republic v. Coulibaly Cheick & Ouodragosis at large Page 3 of 13 found out the person A2 was referring to as the owner of the company is Coulibaly, who is A1 in this case. That A1 also started dealing with them in respect of their visa application where he was made to pay for all the photographs and the fingerprints, they did for him and his boys. That the two accused persons demanded for CFA 5,000,000.00 and he paid before they took their photographs and fingerprints. That the accused persons demanded more money from him and also took money from him to buy plane tickets. That he was there when they paid for tickets at Morocco Airlines. That one of the accused persons made a phone call and made him to speak to someone and the person told him on the phone that he is the overall boss and his boys will be travelling that evening but when the time was due for them to travel and they got to the airport the accused persons were nowhere to be found and their numbers were not connecting again and their passports were with accused persons so they returned to Togo. PW1 continued his evidence to the effect that in all, the accused persons took excess of CFA 20,000,000.00 from him in cash. The mobile money transfers that he did to them also amounted to about GHS21,000.00 and monies he spent on his boys’ transport fares, lodging, feeding and the accused persons’ feeding, hotel bills and their transport fares is estimated at CFA 3,000,000. That the accused persons made him pay for every little thing after taking all these monies from me. That when A1 was arrested with the passports, two of the passports were having Canada visa and six were having Schengen visa and they sent the passports to the Ghana Immigration service at airport where they were told the visas in all the passports are all fake. That the officers also told them that they needed a resident permit in Ghana before they can apply for visas in Ghana. PW1 tendered the said eight visas in evidence as exhibits ‘A’ to ‘H’. PW2, the investigator herein D/C/Inspr Gloria Kpoh also testified that during her investigations it came to light that the complainant, Samou Lawane Akim, is a Togolese The Republic v. Coulibaly Cheick & Ouodragosis at large Page 4 of 13 national who formed a whatsapp group with his family and friends. One of the group members, Julian, who is a footballer based in Guinea informed the complainant that he has a brother based in Ghana called Ouodragosis who is into travel and tour and can assist any of the group members who wishes to travel to Canada or Europe. The complainant expressed interest in the information and informed the group members. Ouodragosis’ contact was given to the complainant and he spoke with him. That Ouodragosis is A1 in this case and is currently at large. Complainant and A1 had a discussion and A1 charged the complainant CFA 4million for Canada visa and CFA 3.5 million for Schengen visa per person. That upon the instructions of A1, the complainant brought a total of eight people to Ghana from Togo, including himself. A1 then took the complainant and his people to A2 and introduced A2 as his partner. That A1 and A2 then took an amount, in excess, of sixteen million CFA, equivalent to about GHS303,539.26, from the complainant on various occasions and at various instances and giving various reasons for taking the monies. A1 and A2 made the complainant pay for their transportation, feeding, lodging and any other expenses incurred by both accused persons. That investigations revealed that the two accused persons took the complainant and the other applicants to Marina mall and Movenpick hotels where visa processing and fingerprints were allegedly done for them. Meanwhile, when investigations were extended to both the Marina mall and the Movenpick hotel, it was established that the accused persons and other accomplices only rented some offices at the two locations for a short period and had left the place after taking monies from the complainant. That it was also revealed that the accused persons took the complainant and some of the applicants to the Kotoka International Airport on some occasions with the pretense that they were travelling out, but on each occasion, the accused persons ended up taking monies from the complainant. The complainant then realized that the accused persons were deceiving him and taking monies from him so he made a report to the police. The The Republic v. Coulibaly Cheick & Ouodragosis at large Page 5 of 13 accused persons then called the complainant again for more money and it was only A2 who showed up with a sack to collect the money and he was arrested. That, eight passports belonging to the complainant and his colleague applicants were retrieved from A1. Meanwhile it came to light that the said passports were all having various visas, but when the visas were inspected for authenticity, it came out that all the visas were fake visas. That A1 and A2 also took monies from the complainant to buy plane tickets for four of the applicants, but failed to do so. That during investigations, A2 admitted the offense, but claimed he only took CFA 2million from the complainant. PW2 tendered the caution and charge statements of A1 as exhibits ‘J’ and ‘K’. Thereafter, the prosecution closed its case. EVIDENCE OF THE ACCUSED PERSON In opening his defence, the accused person testified that he is a trader and lives at Kuntuse. That during his stay in Ghana as a business man, I got to know about a man called Boss Boss who spoke to him about visa business. That he got interested in the business because he wanted to travel and since he did not have money, he spoke to his acquaintances, relatives and friends about the said business. That he spoke about the business to a friend of his called Oue’draogo who came with the complainant called Samaou. That both Oue’draogo and Samaou came to him and they went to Boss Boss to start the visa procedure so we started getting the visas. That the three of them were together that is Oue’draogo, Samaou and himself when Samaou gave him an amount of 1.5 million CFA at Movenpick Hotel and he later gave the money to Boss Boss. According to A1 other transactions in respect of the visa happened without his knowledge. That since Samaou was doubting their visa business he made the police arrest HIM. That at the police station, Mr. Samaou informed the police that, he gave him an amount of 16 The Republic v. Coulibaly Cheick & Ouodragosis at large Page 6 of 13 million CFA but that was not true, that he admitted at the police station that, Samaou gave him 1.5 million CFA instead of 16 million CFA. That he wanted to give him back the money but he refused. That since he refused to take back the 1.5 million CFA, he gave him, the matter was brought to Court. LEGAL ISSUES The legal issues to be determined are: 1. Whether or not the 1st accused person herein did conspire with the 2nd accused person (at large) to defraud the complainant by false pretence. 2. Whether or not the 1st accused person herein and A2 at large did obtain the consent of the complainant to part with the sum of 16 million CFA equivalent to GHS303,539.26 to secure him and seven of his relatives Canadian and Schengen visas, which statement he well knew to be false at the time of making it. BURDEN AND STANDARD OF PROOF The fundamental rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2) and 13(1). In the case of Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person... When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the The Republic v. Coulibaly Cheick & Ouodragosis at large Page 7 of 13 prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. Again, in the case of Kugblenu vrs. The Republic [1969] CC 160 CA, Ollenu JA stated the law as follows: “It is trite law that the onus upon the prosecution is to prove their case beyond all reasonable doubt. This applies to all material issues and matters, which form the pivot of the case of the prosecution or the pillar or foundation of the case upon which the case rests. If the prosecution leads evidence which creates uncertainty, they have failed and the accused should be acquitted”. Therefore, the prosecution has a statutory duty to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. ANALYSIS Section 23(1) of Act 29 provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” In law, Conspiracy consists not merely in the intention of two or more persons, but also in the agreement of two or more persons to do an unlawful act or to do a lawful act by an unlawful means. And a person could be charged with conspiracy to commit a crime whether he was involved in the conspiracy before the act (accessory before the fact) or after the act (accessory after the fact). What is material is whether there was a common design by the parties to commit the crime. The Republic v. Coulibaly Cheick & Ouodragosis at large Page 8 of 13 To found conviction for conspiracy, the prosecution has the duty to establish the following ingredients: 1. That the offence involved two or more persons; 2. That those persons agreed to act together; and 3. That they acted together with a common purpose, i.e. to commit a crime or do an unlawful act or a lawful act by an unlawful means. In the case of Faisal Mohammed Akilu v. The Republic [2017-2018] SCGLR 444 the Supreme Court per Yaw Appau JSC stated the current Ghanaian Law on Conspiracy as follows; “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 together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”. Section 132 of Act 29 provides: “A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” From the above, the elements of defrauding by false pretences are as follows: 1. The use of false pretence or personation, 2. To obtain the consent of another person, 3. So that the person parts with or transfers the ownership of something. The Republic v. Coulibaly Cheick & Ouodragosis at large Page 9 of 13 Section 133 of Act 29, in defining defrauding by false pretences, lays out the following ingredients: 1. Representing the existence of a state of fact, 2. Either with the knowledge that such representation is false or without the belief that it is true, 3. The representation should be made with the intention to defraud. After a careful examination of the evidence led at the trial, I made the following findings of facts and observations: From the evidence adduced by the PW1, A2 who is currently at large made representations to him that him he has a friend in Ghana who owns a company that can easily facilitate travelling to USA, Canada or any of the European countries. That A2 also told him visa to any of these countries should be ready within two weeks and it is express service. From PW1, he came to Ghana with the other persons based on what A2 told him and made payments of money to A2. That A2 later introduced him to A1 who also dealt with him and both made him pay a total of CFA 20,000,000.00 plus in cash; and mobile money transfers about GHS21,000.00 to the accused persons. That he was later told by Ghana Immigration Service at airport that the visas in all the passports are fake. From the evidence of PW2, she referred to A1 as A2, and vice versa; and that made her testimony inconsistent with that of PW1. She added that during her investigation, it came to light that the said passports were all having various visas, but when the visas were inspected for authenticity, it came out that all the visas were fake visas. However, the prosecution did not lead any evidence to establish that the said visas were fake. In any case, the testimony of PW1 and PW2 are not consistent as to which of the accused persons made the representation to secure the said visas for the complainant The Republic v. Coulibaly Cheick & Ouodragosis at large Page 10 of 13 upon which the complainant came to Ghana and started making payments in respect of that. Moreover, A1 denied taking the said money from the complainant save the 1.5 million CFA he admitted but the prosecution could not lead any evidence on the payment of such money by the complainant to the accused persons, not even an iota of evidence on the said mobile money transfers the complainant claimed in his testimony. In the absence of evidence from the relevant authorities that the said visas are fake, the court is unable to make a finding that the accused person knew he could not procure the visas which is the basis for the charge of defrauding by false pretence against the accused person. The fact that the accused admitted to receiving 1.5 million CFA from the complainant cannot warrant a conclusion that the visas which he had undertaken to procure were fake. In the candid opinion of this court, there ought to be clear evidence in proof of that element. It is only after proof that the visas are fake that the court can hold that the accused person made a representation without believing in the truthfulness of the representation. From a careful examination of this case, I find that the investigation conducted in this case was not detailed at all, as the investigator ought to have extended investigations to the relevant authorities empowered to issue such visas to verify the authenticity or otherwise of the said visas instead of just coming to court to assert same without any proof whatsoever except to tender the said visas in evidence. The accused person having pleaded not guilty, the onus of proof beyond reasonable doubt was on the prosecution to lead cogent evidence to establish their allegation. The Republic v. Coulibaly Cheick & Ouodragosis at large Page 11 of 13 Upon a careful consideration of the entire evidence on record, and with the inconsistencies in the evidence of PW1 and PW2 amidst lack of evidence that the said passports are fake, and having also considered the defence of the accused person, I hereby find that the evidence on record cannot ground a conviction against the accused person herein as the court has some real doubts in its mind as to the guilt of the accused person of the offences he has been charged with. The prosecution has not been able to prove beyond reasonable doubt from the evidence on record that the accused person conspired with A2 at large, to defraud the complainant and indeed defrauded the complainant by false pretence. In the case of Dexter Johnson v. The Republic [2011] SCGLR 601, Dotse JSC had this to say about the standard of proof in criminal matters: “Our system of criminal justice is predicated on the principle of the prosecution, proving the facts in issue against an accused person beyond all reasonable doubt. This has been held in several cases to mean that, whenever any doubts exist in the mind of the Court which has the potential to result in a substantial miscarriage of justice, those doubts must be resolved in favour of the accused person”. The learned judge continued that: “I believe this principle must have informed William Blackstone’s often quoted statement that ‘Better than ten guilty persons escape than one innocent suffer’ which was quoted and relied upon by me in the unanimous decision of this Court in the case of Republic vrs Acquaye alias Abor Yamoah II, ex-parte Essel and Others [2009] SCGLR 749 @ 750”. The Republic v. Coulibaly Cheick & Ouodragosis at large Page 12 of 13 CONCLUSION Crabbe J.S.C. in the case of The State v. Sowah and Essel [1961] GLR 743-747, S.C. held that: “A judge must be satisfied of the guilt of the crimes alleged against an accused person only on consideration of the whole evidence adduced in the case; and only then can he convict”. On the totality of the evidence on record, I am not satisfied of the guilt of the accused person herein as I find that the prosecution has not been able to prove beyond reasonable doubt that the accused person actually conspired with the other person at large to defraud the complainant and further defrauded the complainant by false pretence. Accordingly, the accused person herein, Coulibaly Cheick is hereby acquitted and discharged. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Coulibaly Cheick & Ouodragosis at large Page 13 of 13