REPUBLIC VRS. GIWAH (D6/003/23) [2024] GHACC 385 (2 September 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON MONDAY, THE 2ND DAY OF SEPTEMBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/003/23 THE REPUBLIC VRS MAMOUD GIWAH ACCUSED PERSON ABSENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGE The Republic v. Mamoud Giwah Page 1 of 15 The accused person herein was arraigned before this court charged with the offence of Defrauding by False Pretence contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty after the charge had been read to him. 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 Muhammad Nazir is an entrepreneur residing at Korle-Gonnor, Accra. Accused person Mamoud Giwah is a travel agent residing at Alajo. During the month of October 2022 complainant met the accused person at an Internet Café at Kotobabi and during their interaction, accused told him that he is a travel agent and that he could obtain a traveling document to any country in Europe. Complainant showed interest and told his friends about it. His friends also showed interest and he collected various sums of money totaling USD6,500, cedi equivalent of GHS5,000.00 at the time and gave to the accused. Accused later gave him three Canadian passports and one Seychelles passport which he had obtained for his friends. Accused told the complainant that they could only travel to these countries through Mali and he gave them a contact of his agent in Mali who would assist them. He asked them to pay USD8,000, cedi equivalent of GHS80,000.00 to the agent in Mali. During the month of December 2022, two of complainant's friends by name Fauzan Musah and Godwin Musah went to Mali and paid the USD8,000 to accused's agent in Mali for them to facilitate their travel to Canada with the passports but were told at the airport that the passports were fake. They informed the accused and he promised to The Republic v. Mamoud Giwah Page 2 of 15 refund their money but has since failed to do so. Complainant later came to the Police Station and lodged a complaint and the accused person was arrested. The prosecution called three (3) witnesses in proving its case. EVIDENCE OF THE PROSECUTION WITNESSES PW1, Muhammad Nazir testified that he met the accused person at an internet café at Kotobabi a suburb of Accra. After series of meetings and discussions, he had an agreement with the accused person whereby he promised to secure visas from various countries such as Canada, United States of America and a host of other countries in Europe. That initially they started with only one person by which the accused person charged him an amount of two thousand dollars. After this, he brought another person whom he paid one thousand and five hundred dollars for. That in the course of the transactions, the accused assured him of his chances in getting all the visas which he claimed were being processed. In reliance on the said promises, he brought in additional people paying additional money all for the accused person to secure them visas. That he paid an amount of six thousand five hundred dollars in total to the accused person under the pretext of securing visas for some three persons. According to PW1, the accused person subsequently provided them with certain documents which he told them to use to travel to Mali and meet his agent who according to him will facilitate the travel arrangement with two of the victims. That the accused person asked the victims to pay an amount of GHS80,000.00 to his agent in Mali called Sunday. When everything was set, the accused person instructed the two victims to travel to Mali where according to him, his agent Sunday has verified every document that they would be travelling with. The Republic v. Mamoud Giwah Page 3 of 15 PW1 continued that the two victims returned from Mali and told him that they were refused to travel to their various destinations as officials in Mali told them the documents, they were holding which was given to them by the accused person were all fake. 0n hearing this, he contacted the accused person who promised to refund all monies involved to him. However, since then, the accused has been giving him excuses and relocated from where he knew he was residing. He therefore reported the matter to the Tesano police and he was arrested. PW2, Musah Fauzan told the court in his evidence that during the month of December 2022 his mother gave him a Canadian passport which she told him that the complainant had acquired for him. That the complainant had also acquired one for one Godwin Musah; and told them that they would only be able to travel to Canada with the passports through Mali and that the accused person has people there who would assist them. That he later called the accused person on phone and the accused assured them that he knows the people in Mali and that he has been working with them for twenty-one years so they should go. That the accused instructed them to pay USD4,000 each to the people in Mali for their flight ticket and other expenses. That he together with Godwin Musah and his father travelled to Mali during the month of December, 2022 and met the people where they took them to a hotel where they lodged. PW2 continued that the people took USD150 each from them to get them Mali visa on arrival with the Canadian passport. That they also collected USD100 from them to check the authenticity of the Canadian passports. That the people later collected the USD4,000 each from them to buy the flight ticket for them where they brought two Air Maroc tickets and they were scheduled to travel to Canada on 31st December 2022 at 2:00am. On the 31st day of December 2022 at about 12:00am, they went to the Mali airport but they were not allowed to enter the airport. They were later informed by an Immigration officer who The Republic v. Mamoud Giwah Page 4 of 15 inspected their passports that the passports were fake and he advised them to leave the airport else if the authorities found out, they could be arrested. That they then went back to their hotel and the people promised to refund their money to them but they failed to do so. That they informed the accused and he promised to talk to them to refund their money. That they waited in Mali for some days hoping that the people will refund their money but they did not so they returned back to Ghana. PW3, the investigator herein Detective Corporal Hubert Klenam Dzakpasu stationed at the Tesano police station testified that on 15/02/2023 the complainant assisted by police arrested and brought to the Tesano Police Station the accused and reported that during the month of October 2022 the accused collected USD6,500; cedi equivalent of 65,000 at the time from him to obtain traveling document for some three persons to Canada and Seychelles. That he later gave him two Canadian passports and one Seychelles passport. That when the people were about to travel with the passports, they were told that the passports were fake. PW3 continued that he rearrested the accused and took investigation caution statement from him. That he wrote a letter to the embassy of Canada and Seychelles with copies of the passports that the accused had issued to the complainant for authentication. That even though the accused person claimed to be a travel and tour agent, he could not produce any document to support his claim. That his investigation revealed that the accused person deceived the complainant that he could obtain passport of any country of his choice and succeeded in collecting GHS65,000.00 from him when he knew very well that he could not do that; and later gave complainant two Canadian passports and one Seychelles passport which he knew were all fake. PW3 tendered in evidence photocopies of two Canadian passports and one Seychelles passport, investigation The Republic v. Mamoud Giwah Page 5 of 15 caution statement of the accused and charge statement of the accused as exhibits ‘A’ to ‘E’ respectively. Thereafter, the prosecution closed its case. EVIDENCE OF THE ACCUSED PERSON In opening his defence, the accused person testified that he is a travel agent. And was given a job to do by the complainant which he did three passports for him, and he knew very well he is not the one doing it. That he told him there was a man in Greece called Cosmos he is the one who has been doing the passports so any money paid to him, he sent to Cosmos. That the complainant is very aware. The accused person continued that after that he provided him with the passports which are Seychelles passport and two Canadian passports, he gave him an option that if he wants to use the passport to travel, he cannot use it in Ghana. That it is either he pays at the airport and they will board them to any of their destinations. The accused person called one witness as DW1. In his testimony to the court, DW1 gave his name as Kwame Manu. That he stays at Achimota and is a businessman. He continued that he has known the accused person for five years ago. That he has done passport for three or four of his cousins and they are outside the country right now. That the clients he gave him to do passport for have also been successful, so when he told him that he has got a case in Court, he told him he knows and to him he is a good person and he knows he has done so many passports for people. So, he has to come and help him testify. LEGAL ISSUE The Republic v. Mamoud Giwah Page 6 of 15 The legal issue to be determined is whether or not the accused person herein did defraud the complainant by falsely representing to him that if he pays USD6,500 which was equivalent to GHS65,000.00 to him, he could obtain for him a traveling document to Canada and Seychelles, 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 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”. The Republic v. Mamoud Giwah Page 7 of 15 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 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. 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, he met the accused person at an internet café and after a series of discussions, he agreed with the accused person to secure visas from various countries as Canada, USA and a host of other countries in Europe. That based on The Republic v. Mamoud Giwah Page 8 of 15 the accused person’s assurances and promises he paid an amount of USD6,500 for him to secure visas for some three persons. That the accused person subsequently provided them with certain documents which he told them to use to travel to Mali to meet his agent who will facilitate the travel arrangement with two of the victims. That the two victims returned from Mali that they were refused to travel to their destinations as the officials in Mali told them that the documents they were holding were fake. That he reported the matter to the police station after the accused who promised to refund all monies involved to him had been giving him excuses. From the evidence of PW2, he and another person Godwin Musah were given Canadian passports and were to travel through Mali. That the accused person instructed them to pay USD4,000 each to the people in Mali for their flight ticket and other expenses where they were given two Air Maroc flight tickets and were scheduled to travel to Canada on 31st December 2022 at 2:00am but when they got to the airport on the said date, they were not allowed to enter the airport as they were told by the immigration officer who inspected their passports that same were fake. That they returned to Ghana after the people failed to refund their money to them. PW3 also testified that in the course of his investigations, he wrote a letter to the embassies of Canada and Seychelles to find out about the authenticity of the said passports the accused had issued to the complainant. That his investigation revealed that the accused person deceived the complainant that he could obtain passport of any country of his choice and succeeded in collecting GHS65,000 from him when he knew very well that he could not do that. That the Canadian and Seychelles passports the accused gave to the complainants were all fake. The Republic v. Mamoud Giwah Page 9 of 15 However, the prosecution did not lead any evidence to establish that the said passports were fake. In any case, PW1 and PW3 testified about two different issues. Whilst PW1 told the court that the accused person promised him to secure visas for some three persons upon payment of the said USD6,500 to him; PW3 testified that his investigation revealed that the accused person deceived the complainant that he could obtain passport of any country of his choice and succeeded in collecting GHS65,000 from him. The question which needs an answer from the prosecution is, what did the accused person take the said USD6,500 from the complainant for? Was it to obtain visas or passports? This is because whilst PW1 the complainant is saying visas, PW3 the investigator is saying passports as his investigation revealed. The particulars of the offence the accused person is charged with, states that the accused person obtained the consent of the complainant to part with USD6,500; cedi equivalent of GHS65,000.00 by falsely pretending that, if the said amount was given to him, he could obtain him traveling document to Canada and Seychelles, a statement he well knew at the time of making it to be false. Therefore, from the charge sheet, the prosecution (just as the investigator testified before this court) is alleging that the accused took the said money from the complainant and told him he could obtain passports to Canada and Seychelles for him. Accordingly, the evidence by the complainant who is also PW1 that the accused person promised him of securing him visas from various countries as Canada, USA and a host of other countries in Europe is contrary to the particulars of offence of the charge against the accused person, and also inconsistent with the evidence led by PW3 who is the investigator herein. PW3 tendered the caution and charge statement of the accused person where the accused person stated that the complainant told him to do passports for him which he told him The Republic v. Mamoud Giwah Page 10 of 15 the price. That he did the passports which were checked when they got to Mali and the passports were okay. Under cross examination of PW1, the accused person told him he never discussed any visa issue with him, that it is only the passport they discussed but PW1 answered that they discussed visa issue and the accused finally provided passports too. However, PW1 further admitted under cross examination that the accused did the passports he gave him money to do; and that he also had information that the agent of the accused confirmed the passport was real but he could not justify. PW2 also admitted under cross examination that the accused person’s agent told them the passport was confirmed to be real. PW3 who is the investigator tendered photocopies of some passports with the names of some other people apart from that of PW2 and told the court under cross examination that he mistakenly filed Mustapha Musah’s copy of passport instead of the actual one. Also, when PW3 was asked how he knew the passports are fake, he answered that he wrote to the Canadian and Seychelles embassies but he did not receive any reply from them but the accused person himself admitted that the passports are fake. Below is the cross examination of PW3 by the accused person on 1st August 2023: “Q: How did you come across Mustapha Musah’s copy of passport? A: I have a lot of passports on my desk so I mistakenly filed that one instead of the actual one. Q: In your statement you said the passports are fake, how did you know they are fake? The Republic v. Mamoud Giwah Page 11 of 15 A: As I indicated in my Witness Statement, I wrote to the Canadian and Seychelles embassies but I did not receive any reply from them but you yourself admitted that the passports were fake. Q: I never admitted that the passports were fake, I put it to you. A: You wrote your own investigation statement and you did admit.” From the evidence before this court, the accused person did not admit in his caution statement that the passports were fake. For the avoidance of doubt, I reproduce the investigation caution statement of the accused person dated 13th March 2023 as follows: “I meet Mahammed at a Cafe in Abavana in Accra. So I was on phone talking to someone about a passport so after I finish and he told me he is interested to do the passport as I told him the price and after two weeks he call me no and he sent me 5,000ghc and I start to do the passport after 10 days the passport came out and I called him and he gave me 5,000ghc and the full amount was 20,000ghc. He said he will give me the balance when they are ready to travel and I agree after that he gave 5 more passports to do for him in all he gave me 60,000ghc. When they are ready to travel, he called me and I told him I use Nigeria to push people that the place is block but I heard of a place in Mali so if they can try and go is they can travel so they went and I heard ticket was brought and the passport was checked and the passport was ok to board they paid to them they could not go that’s all I know”. There is no admission by the accused person in the above caution statement that the passports were fake as PW3 stated in his answer under cross examination which is also reproduced supra. In his charge statement, the accused person relied on his former statement given to the police on 13th March 2023 which is the above caution statement. Therefore, it is misleading on the part of PW3, the investigator to testify under cross examination that the accused person admitted in his caution statement that the passports The Republic v. Mamoud Giwah Page 12 of 15 were fake. In the circumstances and from the evidence adduced by the prosecution witnesses on record, there is no evidence that suggests that the passports obtained by the accused person for the complainant were fake as the prosecution could not tender any document from the said embassies which confirms their assertion. Meanwhile the accused person denied the said allegation, therefore the onus of proof beyond reasonable doubt was on the prosecution to lead cogent evidence to establish their allegation. 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). Upon a careful consideration of the entire evidence on record, with the accused person having denied the complainant’s assertion that he did not give him money for visas but for passports which he provided, and with the inconsistencies in the evidence of PW1 and PW3 amidst lack of evidence that the said passports were fake, and having also considered the defence of the accused person which was able to raise some reasonable doubts in the case of the prosecution, I hereby find that the evidence on record cannot ground a conviction against the accused person as the court has some real doubts on its mind as to the guilt of the accused person of the offence he has been charged with and its particulars. The prosecution has not been able to prove beyond reasonable doubt from the evidence on record that the accused person indeed defrauded the complainant by false pretence when the complainant admitted under cross examination that the accused did what he gave him money to do for him. The Republic v. Mamoud Giwah Page 13 of 15 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”. 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 as I find that the prosecution has not been able to prove beyond reasonable doubt that the accused person actually defrauded the complainant by false pretence. The Republic v. Mamoud Giwah Page 14 of 15 Accordingly, the accused person herein, Mamoud Giwah is hereby acquitted and discharged. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Mamoud Giwah Page 15 of 15