REPUBLIC VRS. GYAMFI (D4/016/23) [2024] GHACC 338 (7 October 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON THURSDAY, THE 20TH DAY OF MARCH, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/061/24 THE REPUBLIC VRS BRIGHT OPARE APPIAH ACCUSED PERSON PRESENT INSPECTOR VIVIAN TAMEA GYABAAH HOLDING THE BRIEF OF ASP STEPHEN AHIALE FOR THE REPUBLIC PRESENT BERNARD KWAASI ADDO-KWAFO, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT THE CHARGE The accused person herein was arraigned before this court charged with Defrauding by False Pretence contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). The Republic v. Bright Opare Appiah Page 1 of 18 THE PLEA The accused person pleaded not guilty after the charge had been read to him. The accused person having pleaded not guilty to the charge, the prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. FACTS The brief facts of the case as presented by the prosecution are that, the complainant Francis Agyekum is a taxi driver resident at Ablekuma whilst, accused person Bright Opare Appiah aged 41 years is Aviation Security Officer at the Kotoka International Airport (KIA) and also resident at Ogbojo. In November 2023 a witness in this case told the complainant that, there is a travelling opportunity to Canada and that if he is interested and he said yes. A week later, the complainant and the witness met the accused person at Landing restaurant located at the Kotoka International Airport and after the meeting the accused person told the complainant that, he can help him to process the necessary documents to travel to Canada and that, the whole process will cost him GHS100,000.00 but he has to pay GHS30,000.00 first for the documentation and when he arrives in Canada and start working, then he pays the remaining of GHS70,000.00 of which the complainant agreed. On 4th January 2024 the accused person demanded and collected cash the sum of GHS35,000.00 from the complainant for documentation. After the accused person collected the money from the complainant, he promised him that he will travel on 15th December 2023 but failed to honour his promise. When he was contacted, he told the complainant that the date has been changed to first week in January 2024 but on the said date, the travelling could not come on. When the accused person was contacted, he told the complainant that the date has been changed again to the ending of February 2024. It was at this point he detected to have been defrauded and reported the case to the Police for investigation. On 15th January 2024 Police had information that, the accused person The Republic v. Bright Opare Appiah Page 2 of 18 was arrested by Legon Police for committing similar offence. Accused person was brought to the Station to assist investigation. During investigations, Police escorted the accused person to his place of abode where a thorough search conducted therein revealed victim's Frances Agyekum Ghanaian passport and that of Thirty-Two (32) others. The accused admitted the offence in his caution statement and promised to refund the money to the complainant but failed. After investigations accused person was charged with the offence as mentioned on the charge sheet to appear before this honorable Court. The prosecution called three witnesses in support of its case. EVIDENCE OF THE PROSECUTION WITNESSES From the evidence in chief of PW1, he gave his name as Michael Randolph, that he is a driver residing at Kotobabi. He continued that somewhere November 2023, one Isaac told him he has an information that someone was securing Canada visa with work and accommodation and the amount involved was GHS100,000.00, but one only needs to pay GHS30,000.00, and all your documents will be secured for you. That according to Isaac, when you get to Canada, you will work and pay the balance within six months. He told Isaac he was interested and Isaac took him to Michael Awaitey and Michael Awaitey also took him to the accused person. According to PW1, the accused person told him exactly what Isaac told him that the total amount was GHS100,000.00, but he only needs to pay GHS30,000.00 and pay the remaining balance when he gets to Canada. He further testified that he subsequently went to the Accra mall together with Isaac and Michael Awaitey to meet the accused person, where he gave GHS15,000.00 to Michael Awaitey and he in turn handed over same to the accused person. That two weeks later, he met the accused person again at Osu Frankies, with Michael Awaitey and gave him another GHS15,000.00. That the accused person however claimed The Republic v. Bright Opare Appiah Page 3 of 18 it was left with one person for the number of people going, to be complete. That he told the accused person that he has a sister that he would wish to add her to it. That the accused person told him time was not on their side, but if he can raise GHS5,000.00 within three days, he can assist them and include his sister. That the accused person came to his work place and collected the GHS5,000.00. PW1 continued that he went to hand over his sister's passport to the accused person in his house; and gave his own passport to the accused person on the very first day he met the accused person before he started making payments to him. That he was looking forward for the biometric appointment and the accused person told them it will be in December 2023. That when December 2023 came, the accused person said January 2024 and he later gave them 25th February 2024. That he realized his sister was pregnant, along the line, and he told the accused person who said they have to take her out. The accused person then said he will be refunding the GHS5,000.00 he paid in respect of his sister to him. That subsequently he could not reach the accused person on phone so he went to his house but he was not in the house. That he eventually spoke to the accused person on phone and he gave him a date to meet him and collect the money but that did not happen as he did not see the accused person. He concluded that he later learnt that the accused had been arrested at the Legon police station; and he went there to make a report with the Airport police. PW2, who is the investigator herein testified that he is D/Inspr. Raymond Akanke stationed at Airport District CID, Accra. He continued that on 15/01/2024, at about 4:20pm whiles on duty the complainant came to the Police Station and reported that, the accused person demanded and collected cash the sum of GHS35,000.00 from him under the pretext of securing him Canadian Visa but failed to honour his promise. That in the course of investigation Police had information that, accused person was arrested by The Republic v. Bright Opare Appiah Page 4 of 18 Legon Police for committing similar offence. That on same day he was brought to the station to assist investigation. That he took a cautioned statement from the accused person. He tendered in evidence as exhibit ‘A’. According to PW2, investigation established that, accused person indeed demanded and collected cash the sum of GHS35,000.00 from the complainant under the pretext of securing Canadian Visa for him but failed. That the accused person claimed during investigation that, he used the complainant's money for documentation in relation to the Visa but failed to produce any document to the Police. That he was also not able to show anything to Police to indicate that, he was in position to secure Visa for anybody. That investigation was extended to the accused person’s residence at Ogbojo and thorough search in his place of abode led to the retrieval of about Thirty-Five (35) passports including the complainant's own. That at the close of investigation, accused person was charged with the offence and a charge statement was obtained from him. He tendered the charge statement of the accused person in evidence as exhibit ‘B’. PW3, Michael Awaitey testified that he is a security guard working with A5 Security company and a resident at Pig Farm, Accra. That somewhere in September 2023, he went to perform duty with Bright Opare Appiah, the accused person in this case, who works with Aviation Security at a post called 32B. That whiles performing their various duties, the accused person told him that he has an uncle at the Jubilee House who is doing traveling documents and visas for people who want to travel to Canada. The accused person also said the people will be working in one company there. That he told him he is already working on his own documents to travel to the United States of America but he introduced some friends, in the persons of Doreen Aitee, Michael Randolf and Francis Agyekum to the accused person. That the accused person told them the cost of the traveling was GHS100,000.00 and he demanded GHS30,000.00 to start the process. That the accused person said the remaining balance will be deducted whilst the people are The Republic v. Bright Opare Appiah Page 5 of 18 working for a period of six (6) months after which they can decide to stay with the company or get a different work. That the accused person also told them that, the applicants will be travelling by 15th December 2023 to Canada. He again told them that, the works available are caring for the aged, cleaning, driving and teaching for which they will be working for ten (10) hours each day and that the first three works mentioned above pays $15 per hour whilst the teaching work pays $20 per hour. That Doreen Aitee, paid GHS30,000.00, Michael Randolf paid GHS35,000.00 and Francis Agyekum also paid GHS20,000.00 to the accused person. That when the 15th December 2023 was approaching, the accused person called all of them and changed the date to the second week of January 2024. He again changed the date later to the ending of February 2024 and told them that 20th January 2024 is when the people he had introduced, will be doing their fingerprints at the Canadian embassy. That about a week to the 20th January 2024, they called the accused person severally but they could not get him and they visited his place of abode and they were told by a young man that he had been arrested to the Legon police station by others he had taken money from to get them documents to travel. That they got to know the accused person was using the same method to fraudulently take monies from unsuspecting victims. Prosecution thereafter closed its case. After the close of the case of prosecution, the Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then made a finding that the prosecution had made out a prima facie case against the accused person; and he was called upon to enter into his defence. In view of the above, the Court found that the accused person had a case to answer. The court however explained the rights of the accused person to him that he can decide to The Republic v. Bright Opare Appiah Page 6 of 18 remain silent, make an unsworn statement from the dock or give evidence on oath. The court also reminded the accused person of the charge against him. The accused person elected to give evidence on oath. EVIDENCE OF THE ACCUSED PERSON In opening his defence, the accused person herein testified that his name is Bright Opare Appiah, and he lives at Achimota, Accra. That he works with the Airport Security, at the Kotoka International Airport, Accra. That he knows the complainants in this matter. The accused person further testified that he met a man by name Solomon Adams with phone number 0205140453 sometime in 2023 in his line of duty. That Solomon brings people through the airport as his business is getting visa and other documents for them to travel. That he saw him bring different people not less than 10 times and he believed that was indeed the business he does. That on one occasion, he told him (accused) if he knows anyone interested in travelling, he should let him know so he could assist in the preparation of documents and if everything goes through, he will try and give accused person a token. According to the accused person he was excited about the opportunity to make some extra income and informed his colleagues at work of his encounter with Solomon, and it was based on this that one of his colleague workers introduced the complainants herein to him. That he informed the complainants about his encounter with the man and called him to inform him they were interested. That he mentioned how much it will cost them and directed that he accused person takes the money as he was busy so he will pass by and take it so he can begin the process. That the complainants knew he was not doing the visa and other documents himself, but he was only acting in the stead of Mr. Solomon and to take the money on his behalf. The accused continued that after some time, it was all excuses upon excuses from him and all these excuses was relayed to the complainants. That the complainants began to The Republic v. Bright Opare Appiah Page 7 of 18 demand their money from him (accused), and he made these demands known to Mr. Solomon. That he acted believing and having grounds to believe that Mr. Solomon could do these documents, and he did not receive any financial benefit from these transactions hoping that when everything goes through, he will get something. That when the police arrested him, he informed the police and gave Mr. Solomon’s name and number to them but the police were not interested in him. That Mr. Solomon needed to be charged by the police for the offence and not him (accused) since he was only receiving monies for him. That he called him from the cells after some days in custody to inform him to make the monies available as he was in police custody; and Mr. Solomon informed him that he will come to the police station and that never happened until he was arraigned before court. That the complainants knew he was acting for Mr. Solomon, and he was only to receive money on his behalf. That he prays this Honourable court discharges him of the offence as he did not benefit in any way from this transaction. The accused person did not call witness, and closed his defence thereafter. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the accused person, with the intent to defraud, did obtain the consent of one Michael Randolph to part with cash the sum of GHS35,000.00 by falsely pretending that if the said amount is given to him, he could secure him Canadian Visa which statement he well knew at the time of making it to be false. 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). The Republic v. Bright Opare Appiah Page 8 of 18 In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held in its holding 1 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 was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. In the case of Osae v. The Republic [1980] GLR 446, the Court held that: “although it was settled law that where the law cast the onus of proof on the accused, the burden on him was lighter than on the prosecutor, and the standard of proof required was the balance of probability, if at any time of the trial, the accused voluntarily assumed the onus of proving his defence or some facts as happened in this case, the standard he had to discharge was on a balance of probabilities.” Considerably, whereas the prosecution carries that burden to prove the guilt of the accused person beyond reasonable doubt as per sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323), there is no such burden on the accused person to prove his innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful. The Republic v. Bright Opare Appiah Page 9 of 18 ANALYSIS 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. 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. The House of Lords, in Welham v. Director of Public Prosecutions [1961] A.C. 103, held, as stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 2043 at p. 753 that: “Intent to defraud’ means an intent to practise a fraud on someone and would therefore include an intent to deprive another person of a right, or to cause him to act in any way to his detriment …” The Republic v. Bright Opare Appiah Page 10 of 18 In the case of Asiedu v. The Republic [1968] GLR 1-8, Amissah J.A. stated: “An intent to defraud is an essential element of the offence of defrauding by false pretences whether the method of fraud adopted was personation or a false representation”. Archer J. (as he then was) in the case of Blay v. The Republic [1968] GLR 1040-1050 stated: “In a charge of defrauding by false pretences, if the evidence showed that the statements relied on consisted partly of a fraudulent misrepresentation of an existing fact and partly of a promise to do something in future, there was sufficient false pretence on which a conviction could be based”. From the evidence on record, PW1 was introduced to the accused person by PW3 after the accused person told PW3 that he has an uncle at the Jubilee House who is doing traveling documents and visas for people to travel to Canada. As a result of this, the accused person told PW1 that the total amount was GHS100,000.00, but he only needs to pay GHS30,000.00 and pay the remaining balance when he gets to Canada. From the evidence on record, the accused person demanded and collected GHS35,000.00 from PW1 as PW1 wanted to add his sister to the travel plans. Again, from the evidence on record the accused person took the passports of PW1 and his sister but he could not do for them the purpose for which he took the said GHS35,000.00 from PW1. From the evidence on record, the accused kept on postponing the date for them to go for the biometric appointment until he was arrested by the police in a similar case. From the evidence of PW3, the accused person also told them that, the applicants will be travelling by 15th December 2023 to Canada but when the said date was approaching, the accused person kept changing the date. That they later learnt that the accused person was using the same method to fraudulently take monies from unsuspecting victims as he was arrested by the police. The Republic v. Bright Opare Appiah Page 11 of 18 PW2, the investigator herein also adduced evidence to the effect that investigation established that, the accused person indeed demanded and collected cash the sum of GHS35,000.00 from PW1 under the pretext of securing Canadian Visa for him but failed. That the accused person failed to produce any document to the Police that he was in the position to secure visa for PW1 or to show what he used the money for. That upon investigation police retrieved about 35 passports from the accused person’s residence at Ogbojo. PW2 also tendered the caution and charge statement of the accused person in evidence as exhibits ‘A’ and ‘B’. However, upon a careful scrutiny of the said exhibits which to an extent are confession statements, indicates that the taking of the said statements did not comply with the statutory mandatory provision under section 120 of the Evidence Act, 1975 (NRCD 323), this is because the said statements did not have the certification of any independent witness as required by section 120 of NRCD 323. Section 8 of the Evidence Act, 1975 (NRCD 323) on exclusion of evidence provides as follows: “Evidence that would be inadmissible if objected to by a party may be excluded by the Court on its own motion.” Flowing from the above and the court having relied on section 8 of NRCD 323, I hereby exclude exhibits ‘A’ and ‘B’ from the evidence adduced by the prosecution witnesses. Accordingly, the court will rely on the evidence adduced by the prosecution witnesses (save exhibits ‘A’ and ‘B’) as well as the evidence adduced by the accused person in his defence. The Republic v. Bright Opare Appiah Page 12 of 18 From the evidence on record, the evidence adduced by the prosecution witnesses stood unchallenged and therefore was able to raise a prima facie case against the accused person therefore the duty of the accused person who decided to give evidence on oath was to raise a reasonable doubt in the case of the prosecution. The evidence adduced by the prosecution witnesses established that the accused person indeed at the time of taking PW1’s money was not in the position to assist him obtain a Canadian visa but he still took the money. Therefore, it meant that indeed the accused person made a false representation to PW1 and succeeded in making PW1 part with his money. From his evidence on oath, the accused person admitted that he took PW1’s money but indicated that it was one Mr. Solomon who directed him to take the money as he was busy. When the accused person was given the opportunity to cross examine PW1 as well as the other prosecution witnesses, he did not ask them any question about this Mr. Solomon. The accused person also admitted under cross examination that he did not mention the said Mr. Solomon in whichever statement he gave to the police. The accused person further testified under cross examination that PW1 knows he is not the one to help him get the visa nonetheless he never asked PW1 any such question when he was available to be cross examined, even after the court had read PW1’s evidence in chief to him before he commenced his cross examination of PW1. I find that if indeed there was any Mr. Solomon anywhere who directed the accused person to take the said money from PW1, this important and material fact should not have escaped the accused person for him to have asked the prosecution witnesses The Republic v. Bright Opare Appiah Page 13 of 18 questions on that. The accused person rather asked PW1 under cross examination if there was any written agreement between him and PW1 concerning the visa. If the accused person who was speaking English throughout the trial could ask such a question, then clearly, he could have equally asked a question about the said Mr. Solomon if he actually existed. Moreover, the accused person did not adduce any evidence before this court to establish that he gave the money he collected from PW1 to the said Mr. Solomon. From the entire evidence on record, I find that the defence of the accused person about the said Mr. Solomon is an afterthought. This is also because the accused person was asked if he would call a witness, and his lawyer who was present in court answered in the negative. If there was any Mr. Solomon in existence who really directed the accused person to collect the money from PW1, and the accused person having a duty to substantiate his assertions in his defence to be able to raise a reasonable doubt as to his guilt; and his lawyer who was in court when the accused person closed his defence through him, would have made the necessary application to compel the attendance of the said Mr. Solomon in court to testify in the instant case particularly as to the assertions of the accused person in his defence. It is not reasonably probable that if there was any such Mr. Solomon in existence who directed the accused person to collect the said money from PW1, the accused person and his lawyer would decide to waive all options available to them to enable the accused person prove the said assertion in his defence. In the case of Amartey v. The State [1964] GLR 256-262 @ 260, Ollennu JSC stated the following principle: The Republic v. Bright Opare Appiah Page 14 of 18 “To do justice, the court is under a duty to consider firstly, the version of the prosecution applying it to all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.” This court does not believe the story of the accused person and further finds that the defence of the accused person is too convenient to be reasonably probable. The defence of the accused person is a clear afterthought as he did not substantiate his assertion in his defence or even made any effort to substantiate same. After evaluating all the pieces of evidence adduced during the trial, I find that the evidence points to only one conclusion that the accused person defrauded PW1 by taking his GHS35,000.00 from him that he could assist him to secure a Canadian visa when he knew he was not in a position to do so. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides 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.” The Republic v. Bright Opare Appiah Page 15 of 18 Section 13(2) provides that: “Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” From the entire evidence before this court, the defence of the accused person could not raise a reasonable doubt as to his guilt, as same is found to be an afterthought. I support my decision with the dictum of Denning J. (as he then was) in the case of Miller v. Minister of Pensions [1947] 2 All E.R. 372 at p. 373 where he said: "Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.” Apaloo JA (as he then was) in the case of Asare & Others v. The Republic (No. 3) [1968] GLR 804-925 stated: “The offence of fraud by false pretences seeks to punish anyone who deceives another to his detriment and which deceit operated to the material advantage of the deceiver”. I also rely on the case of Lutterodt v. Commissioner of Police [1963] 2 GLR 429–440, where Ollennu J.S.C, delivering the judgment of the Supreme Court stated that: “If quite apart from the defendant’s explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict”. The Republic v. Bright Opare Appiah Page 16 of 18 CONCLUSION From the evidence before this court, I do find that the prosecution has been able to prove beyond reasonable doubt that the accused person is guilty of the offence he has been charged with. From the foregoing reasons, I pronounce the accused person herein, guilty of the offence of defrauding by false pretence and I convict him accordingly. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Counsel for accused person: The accused person is not known to this court. This is the first time he is having a brush with the law. The accused person is also a victim in this matter. The accused person is not healthy; we pray if the accused person will be given a fine. We also pray the court to consider the age of the accused person, he is 43 years. Court: Is the accused person known? Prosecutor: No, he is a first-time offender. SENTENCING In sentencing the accused person, the court takes into consideration the fact that he is a first-time offender and also considers the plea in mitigation made by counsel for the accused person. The court has also considered the age of the accused person being 43 years old. In accordance with Article 14(6) of the 1992 Constitution, time spent by the accused person in custody before he could fulfill his bail conditions, is also considered. The Republic v. Bright Opare Appiah Page 17 of 18 However, the court has equally considered the fact that PW1 has not retrieved his money from the accused person. The court has further considered the prevalence of the offence of defrauding by false pretence on visa issues in this jurisdiction. To serve as deterrent to the accused person and others in the jurisdiction that the Courts do not tolerate such fraudulent actions, the Court hereby imposes the following sentence on the accused person: The accused person is sentenced to serve a term of imprisonment of twenty-four (24) months in hard labour. The accused person shall in addition pay a fine of 200 penalty units. In default of the fine, the accused person shall serve a term of imprisonment of twelve (12) months in hard labour. Restitution Order In accordance with section 147B of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the accused person is ordered to refund the amount of GHS35,000.00 being the amount he took from PW1 herein (Michael Randolph), to him. PW1 shall enforce this order through civil means. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Bright Opare Appiah Page 18 of 18