REPUBLIC VRS. BADDOO (D6/051/24) [2024] GHACC 383 (27 September 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 27TH DAY OF SEPTEMBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/051/24 THE REPUBLIC VRS JOSEPH NII AKAI BADDOO ACCUSED PERSON PRESENT CHIEF INSPECTOR JOSEPHINE OWUSUAA AMOAH HOLDING THE BRIEF OF A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT The Republic v. Joseph Nii Akai Baddoo Page 1 of 20 THE CHARGE The accused person herein was arraigned before this court charged with Defrauding by False Pretence contrary to section 131 of the Criminal and Other Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty after the charge had been read and explained to him in Ga, being his language of choice. FACTS The facts of the case as presented by the prosecution are that the complainant Amoah John is a driver and lives at Ahaji Tabora whereas Joseph Nii Akai Baddoo, is a chief at Englishie Amanfrom "Sunset one” and lives at Lomnava. In August 2021, the complainant bought a piece of land from the accused at Papase for an amount of GHS15,000.00 but made payment of GHS11,000.00 and was issued with an official receipt. The accused told the complainant to start work on the land before paying the remaining money. Later the complainant went to the site to develop the land but found out that the said land belongs to a different person and was driven away by land guards. The accused again took the complainant to two different places at "Sunset” Amanfrom and gave him a different land and told him to buy materials and put on the said land which the complainant did by buying stones and sand which amounted to GHS5,000.00 making the total sum of GHS16,000.00 to enable him start his work but the story remained the same as the complainant could not develop the place because other people claimed ownership, on the third attempt the accused himself was at the site with the complainant but both of them were driven away by land guards. The accused tried again on the fourth time but the complainant refused and realized that, the accused had no land but rather had The Republic v. Joseph Nii Akai Baddoo Page 2 of 20 defrauded him. The complainant then demanded for his money and all efforts proved futile. Complainant then reported the case to Israel Police and accused was arrested. In his cautioned statement, accused admitted the offence stated on the charge sheet, he then told Police that he has shared the money with his boys and made part payment of an amount of GHS1,000.00 to the Police and same amount was released to the complainant. Accused has since been charged and put before this honourable court. EVIDENCE OF THE PROSECUTION WITNESSES PW1, who is also the complainant in this case testified that somewhere in the year 2021, the accused person sold a full plot of land to him at the cost of GHS15,000.00. That he made a part payment of GHS11,000.00 remaining a balance of GHS4,000.00; and the accused person then told him to pay the remaining after he has started something on the plot. According to PW1, he went to deposit sand and stones on the land to commence the work but he was stopped by some people that he could not develop the land, because the said land belongs to someone else. When he informed the accused person, he did not say anything or even confront the people. That the accused person then went to allocate a different piece of land to him and instructed him to start work on it and he started work on the land but he was stopped again. It continued for the third time and when the accused person wanted to give him a different place he refused and demanded for his money, because he realized that he does not have any land to sell to him. That he lost all the stones and the sand he deposited on the plot which amounted to GHS5,000.00. He therefore reported the case to the police. PW2 the investigator herein Detective Corporal Dorothy Anuri-Yeng of Israel police station told the court in her evidence that on the 23rd August 2023, the complainant, John Amoah came to the station and reported a case of defrauding by false pretences against the accused person and same was referred to her for investigation. That the accused person was subsequently arrested and a cautioned statement was obtained from him. The Republic v. Joseph Nii Akai Baddoo Page 3 of 20 That the accused person admitted having collected an amount of GHS11,000.00 from the complainant under the pretext of granting him a piece of land but failed. She tendered his cautioned statement in evidence as exhibit ‘A’. PW2 continued that, investigations into the matter revealed that the accused person, in the month of August 2021, purported to have granted a piece of land to the complainant at Papase at the cost of GHS15,000.00. PW2 repeated the facts as presented by the prosecution as being what was revealed during her investigations. She tendered the charge statement of the accused person in evidence as exhibit ‘B’. Thereafter, the prosecution closed its case. After the close of the case of the prosecution, the Court examined the evidence of the prosecution witnesses to determine whether or not 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 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. EVIDENCE OF THE ACCUSED PERSON The accused person in his evidence testified that his name is Joseph Nii Akai Baddoo. That he lives at Lomnava at Alhaji, and he is a driver. He continued that on 23rd August 2023, Mr. John Amoah, the complainant reported him for defrauding him under the guise The Republic v. Joseph Nii Akai Baddoo Page 4 of 20 of giving him a land. That Mr. John Amoah bought a land from one of his boys who is called Salese; and he did not know anything about it. That Mr. John Amoah did not get the land he bought from Salese. According to the accused person, when he became a chief, Salese came to him with a problem. He then asked Salese to get Mr. John Amoah a plot of land at Sunset Amanfro and he did. That Mr. John Amoah said he did not like the land given to him by Salese at Sunset Amanfro and he later demanded for his money which he paid an amount of GHS11,000. That the complainant then said he had deposited sand and stones on the said plot of land at Sunset Amanfro which he knew nothing about. That the complainant brought him to Court to pay him for the land which he has already paid him for. That the complainant also asked him to pay for the sand and stones which he deposited an amount of GHS2,000. That he later realised that Mr. John Amoah had never deposited any sand and stones on the site. The accused person thereafter closed his defence. LEGAL ISSUES The legal issue to be determined is as follows: Whether or not the accused person, with the intent to defraud, did obtain the consent of Amoah John to part with cash the sum of GH¢16,000.00 and by falsely representing that if the said amount was given to him, he could secure him a piece of land, 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 Republic v. Joseph Nii Akai Baddoo Page 5 of 20 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 prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. 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, The Republic v. Joseph Nii Akai Baddoo Page 6 of 20 3. The representation should be made with the intention to defraud. After a careful examination of the evidence adduced at the trial, I made the following findings of facts and observations: From the evidence adduced by the prosecution witnesses, PW1 told the court that the accused person sold a full plot of land to him at the cost of GHS15,000.00 where he paid GHS11,000.00 to him as part payment. PW1 also testified that he deposited sand and stones on the land to commence work but he was stopped by some people that he could not develop the land, because the said land belongs to someone else. According to PW1 when he informed the accused person, he did not say anything or even confront the people; and the accused allocated a different piece of land to him but he was stopped again when he started work on it. That it continued for the third time and when the accused person wanted to give him a different place he refused and demanded for his money, because he realized that he does not have any land to sell to him. That he lost all the stones and the sand he deposited on the plot which amounted to GHS5,000.00. From the evidence on record, it is not in doubt that the accused person took the complainant’s GHS11,000 to sell a plot of land to him and he actually allocated a plot of land to the complainant. The accused person did not deny the said assertion. The case of the prosecution is that the accused person knew very well that he did not have any land to sell to the complainant at the time of taking his money but he took the said money by falsely representing to him that he could secure him a piece of land. From the evidence on record, the accused person actually took the complainant’s money and allocated a land to him on three different occasions but it later turned out that those different lands did not belong to the accused person. Therefore, the question any The Republic v. Joseph Nii Akai Baddoo Page 7 of 20 reasonable man will ask is, which land did the accused person have available to sell to the complainant when he took his money? The accused person in his evidence testified that the complainant bought a land from one of his boys who is called Salese; and he did not know anything about it. That the complainant did not get the land he bought from Salese. That when he became a chief, Salese came to him with a problem and he then asked Salese to get the complainant a plot of land at Sunset Amanfro and he did. That the complainant said he did not like the land given to him by Salese at Sunset Amanfro and he later demanded for his money which he paid an amount of GHS11,000. That the complainant then said he had deposited sand and stones on the said plot of land at Sunset Amanfro which he knew nothing about. The accused person claims in his evidence that he did not know anything about the land transaction between the complainant and the said Salese, then why did he make refund to the complainant as he claims? On the issue of the sand and stones that were allegedly deposited on one of the said lands by the complainant and that he lost same because the land the accused purportedly sold to him did not belong to him, PW1 testified that the said sand and stones he deposited amounted to GHS5,000.00 which was repeated by PW2 in her evidence. The accused person tendered exhibits ‘1’ and ‘1A’ being receipts of a trip of sand and trip chipping in the name of Mrs. Helena Amoah after he requested for PW1 to bring the said receipts to court under cross examination. There is no explanation on record by the prosecution, as to how come the receipts bear another person’s name and not the complainant’s name. Moreover, under cross examination, the investigator testified that she does not have any evidence to prove to the court that the said sand and stones had been used by someone else. There is also no sufficient evidence by the prosecution on the deposit of the said sand and stones on any of the lands allocated to the complainant by the accused person The Republic v. Joseph Nii Akai Baddoo Page 8 of 20 and same used by another person. The court is therefore unable to attach any probative value to the said receipts, as well as the allegation by the prosecution on the said sand and stones, consequently the court hereby disregards same. PW2 basically repeated the facts of the case which is also similar to the evidence of PW1. She tendered the caution statement of the accused person which reads as follows: “I am a chief at Englishie Amanfrom sunset 1 but reside at Lomnava. The complainant was introduced to me by one of my boys by name Salesa, Salesa told me he sold a plot of land to the complainant when I was not a chief at the time, and now the land was taken away from him because he failed to develop the place for a very long time. Salesa then ask me if they could give him a different plot of land that was when I became the chief of sunset. I then came in and I told them to find him one plot at sunset which he was given but the complainant called me on phone that he was stopped by the land guards from working. However, I met him at Amanfrom Junction where the complainant made payment of an amount of GHS11,000.00 to me and I also issued a receipt to him. The complainant couldn’t work on the land then I went to give him a different place which he told me again that he was digging his foundation when he was stopped again by the land guards that the land belongs to someone. I then went to see them myself and I was told that they will not allow him to work because one guy by name Oshipi claimed ownership of the land and that it was George who gave it to him and George is one of the Directors of Sunset. I personally called George and he confirmed it to me. Meanwhile, the land is a two plot and we ask him to take next one but he said the place is a water log area he doesn’t want. I then told him I will get the Directors and the elders informed. The Director was asking if we could find a place for him but he said he was no longer interested. I then ask him to give me time to refund his money to him. Hence my arrest”. [Emphasis provided] The Republic v. Joseph Nii Akai Baddoo Page 9 of 20 From the caution statement of the accused person, he indicated that the complainant made payment of an amount of GHS11,000.00 to him and he also issued a receipt to the complainant. He added that the complainant could not work on the land then he went to give him a different place which he told him again that he was digging his foundation when he was stopped again by the land guards that the land belongs to someone. That he then went to see them himself and he was told that they will not allow him to work because one guy by name Oshipi had claimed ownership of the land and that it was George who gave it to him and George is one of the directors of Sunset. That he personally called George and he confirmed it to him. Akamba JSC in the case of Ekow Russel v. The Republic [2016] 102 GMJ 124 SC, stated as follows: “... A confession is an acknowledgment in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without fear, intimidation, coercion, promises or favours ...” (Emphasis provided) The charge statement of the accused person has same contents as his caution statement which were taken from the accused person in compliance with all the relevant provisions of section 120 of the Evidence Act, 1975 (NRCD 323) applicable to the taking of confession statements and which was designed to protect accused persons. In the case of State v. Owusu & Anor [1967] GLR 114, the court held in its holding 1 that: The Republic v. Joseph Nii Akai Baddoo Page 10 of 20 “an extra-judicial confession by an accused that a crime had been committed by him did not necessarily absolve the prosecution of its duty to establish that a crime had actually been committed by the accused. It was desirable to have, outside the confession, some evidence, be it slight, of circumstances which made it probable that the confession was true. From the evidence adduced in the instant case, there was sufficient corroboration which confirmed that the confession of each accused was true.” Indeed, under cross examination of the accused person, he confirmed that he allocated a land to the complainant. He also confirmed that he took the complainant to the supposed land for him to dig a foundation; and in his presence the complainant was prevented from digging the foundation. He also testified under cross examination that the guys later informed him that, that land had been given out. The accused person testified under cross examination that the lands he gave to the complainant were his, yet he also testified under the same cross examination that the owners of the land are the Sunset people, and he was enstooled as Sunset chief so he has access to sell the land. The accused person did not adduce sufficient evidence to establish the said assertion in his defence that he has access or capacity to sell the lands that belong to the Sunset people. Relevant part of the cross examination of the accused person by the prosecutor is as follows: “Q: It is fact that you allocated a land to the complainant, not so? A: Yes, I did. The Republic v. Joseph Nii Akai Baddoo Page 11 of 20 Q: As it stands the land you supposedly sold to the complainant, he did not get it, I put it to you. A: No, he got the land and he waited for some months before he went to the land to work and that is why those guys at the site stopped him. Q: You agree with me that you cannot be stopped from working on your own land. A: Yes. Q: It is a fact that you took the complainant to the supposed land for him to dig a foundation, is that correct? A: Yes, my lady. Q: And it is also a fact that in your presence the complainant was prevented from digging the foundation, not so? A: Yes, that particular land was given to one guy that I did not know by a guy called George. So, the guys informed me that, that land was already given out. Q: In your previous answer that you cannot be prevented from working on your own land this is a confirmation that the land does not belong to you. A: No, the place has been given to a certain people, they are the directors of Sunset before I was enstooled as a chief on that site. Q: When you supposedly declared your assets did it include lands? The Republic v. Joseph Nii Akai Baddoo Page 12 of 20 A: Yes, my lady. Q: So was the said land or lands that you allocated to the complainant, part of the land you declared as your assets? A: Yes, my lady. Q: I put it to you that you are not being truthful to this Court. A: I am being truthful. Q: You are not being truthful because the name Sunset has always been mentioned in this Court, they are the owners of the land. A: Sunset, they are the owners of the land and I was enstooled as Sunset chief. So, I have access to sell the land. Q: So, you agree with me that you are not being truthful when you claimed in your answer that, that land was part of your assets you declared when you became a chief? A: Yes, my lady, it is part of my assets. Q: This land, is it a family land, a stool land or an individual’s land? A: It is a stool land given to a group of people called Sunset. The Republic v. Joseph Nii Akai Baddoo Page 13 of 20 Q: So, I put it to you that in that case you have no right to sell that land. A: I have right to sell the land.” From the entire evidence on record, I find the evidence in chief of the accused person as being inconsistent with his own testimony under cross examination. I also find that the accused person is the one who took the complainant’s money that he will sell a piece of land to him but all the different lands he gave to the complainant did not belong to him as the owners of the said lands prevented the complainant from working on those lands. In the absence of any cogent evidence to substantiate the said assertion by the accused person when he sought to give evidence to explain why he took the complainant’s money that he will sell a land to him but could not get any land to sell to him, I find that the accused person did not have any land to sell to the complainant, however he falsely represented to the complainant that he can secure him a land and therefore took the said amount of GHS11,000.00 from the complainant. From the evidence on record, the investigation caution and charge statements of the accused person are not too different from the case of the prosecution on the issue of the accused person knowing very well that he was not in the position to secure a piece of land for the complainant at the time of taking his money but he still went ahead and collected his money that he could sell to him a piece of land. 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.), paragraph 2043 at page 753 that: The Republic v. Joseph Nii Akai Baddoo Page 14 of 20 “Intent to defraud means an intent to practice 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 …” In the case of Asiedu v. The Republic [1968] GLR 1-8, Amissah J.A. stated thus: “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”. In the instant case, the accused person falsely represented the fact that he could secure him a piece of land and took the amount of GHS11,000.00 from the complainant as he admitted in his caution and charge statements, when he knew very well that what he told the complainant was not true and rather allocated other people’s land to him on different occasions. The accused person’s explanation as to being a chief of Sunset and therefore he has access to sell the lands belonging to the people of Sunset is not convincing enough to exonerate him from the offence of fraud because he could not establish that he had capacity to sell those lands to the complainant. It is therefore not surprising that the owners of those lands prevented the complainant from working on same, even in the presence of the accused person who could not do anything about it. On the question of false representation, it is apparent from the evidence on record that the accused person falsely made representations to the complainant as stated above and as a result of this, the complainant was induced to pay the said money as confirmed by the accused person. 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 The Republic v. Joseph Nii Akai Baddoo Page 15 of 20 of a promise to do something in future, there was sufficient false pretence on which a conviction could be based”. At page 1049 the court in the case of Blay v. The Republic (supra), stated: "If a man makes statements of fact which he knows to be untrue, and makes them for the purpose of inducing persons to deposit with him money which he knows they would not deposit but for their belief in the truth of his statements, and if he intends to use the money thus obtained for purposes different from those for which he knows the depositors understand from his statements that he intends to use it, then, although he may intend to repay the money if he can, and although he may honestly believe, and may even have good reason to believe, that he will be able to repay it, he has an intent to defraud.” In the instant case not only was the representation to the complainant false, the accused person took advantage of the deceit and defrauded the complainant as the evidence on record has indicated that the accused person did not have any land to sell to the complainant when he took his money for that purpose. After evaluating all the pieces of evidence adduced during the trial, I find that the evidence points to only one irresistible conclusion that the accused person defrauded the complainant by false pretence as discussed supra. 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: The Republic v. Joseph Nii Akai Baddoo Page 16 of 20 “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 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.” All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution. This, the accused person could not do as I find his evidence in chief to be an afterthought and same contradicts his testimony under cross examination which confirms his caution and charge statements where he made admissions establishing the essential elements of the offence he has been charged with as analyzed above. 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.” I also rely on the case of Lutterodt v. Commissioner of Police [1963] 2 GLR 429–440, where Ollennu JSC, delivering the judgment of the Supreme Court stated that: The Republic v. Joseph Nii Akai Baddoo Page 17 of 20 “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”. 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”. CONCLUSION From the evidence on record, 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 pretences; and I hereby convict him accordingly on of the offence of defrauding by false pretences. Pre-Sentencing hearing Court: Is there any plea in mitigation before sentence is passed? Accused person: I did not take his money with the intention of not giving him the land bit is because the people had encroached on the land which does not belong to them. A lawyer at the Bar makes a submission towards mitigation for the accused person that he is a first-time offender and has a family so the court should temper justice with mercy. Court: Is the accused person known? The Republic v. Joseph Nii Akai Baddoo Page 18 of 20 Prosecutor: No. SENTENCING In sentencing the accused person, the court takes into consideration the fact that he is a first-time offender and also considers his plea in mitigation as well as the submission made by a lawyer at the Bar towards mitigation of sentence on behalf of the accused person. The court has also considered the youthful age of the accused person. The court has further considered that the accused person has made payment of the amount he took from the complainant, to him. However, to serve as deterrent to the accused person and others in the jurisdiction of this court, that the courts do not tolerate such fraudulent actions, the court hereby sentences the accused person to serve a term of imprisonment of six (6) months in hard labour. The accused person shall in addition pay a fine of 400 penalty units. In default of the fine, the accused person shall serve a term of imprisonment of eighteen (18) months in hard labour. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Joseph Nii Akai Baddoo Page 19 of 20 The Republic v. Joseph Nii Akai Baddoo Page 20 of 20