REPUBLIC VRS. GALLANT AND OTHERS (GR/KB/CCT/B1/28/2022) [2024] GHACC 367 (31 July 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON WEDNESDAY THE 31ST DAY OF JULY, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/B1/28/2022 THE REPUBLIC VRS GALLANT KWAME & 2 OTHERS ACCUSED PERSON (A1) PRESENT A2 & A3 AT LARGE CHIEF INSPECTOR GERSHON TOGBE ACHONDO FOR PROSECUTION PRESENT COUNSEL FOR ACCUSED (A1) GIFTY FOSUAA OBENG ADDO HOLDING THE BRIEF OF NANA OWUSU GYEDU PRESENT JUDGMENT Accused and two other persons were charged with conspiracy to commit crime namely, defrauding by false pretence contrary to sections 23 (1) and 131(1) of the Criminal Offences Act, 1960 (Act 29) and defrauding by false pretence, contrary to section 131(1) of Act 29. He pleaded not guilty to both charges. INGREDIENTS OF THE OFFENCES Section 23(1) of Act 29 provides that “If two or more people agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the crime as the case may be.” Defrauding by false pretence is also a second degree felony, per section 131 of Act 29. Per section 132 of Act 29, 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.’ 1 Thus, for the charge of defrauding by false pretence to succeed, prosecution must prove the following ingredients of the offence; i. That the accused made a representation or false pretence either by written or spoken words or any other means or personated another person ii. That the representation or false pretence was in regard to the existence of a state of facts iii. that he knew that representation to be false at the time he made it or had no reason to believe in the truth of the representation iv. that by means of the false pretence or representation he obtained the consent of the complainant to part with or transfer ownership of property or money to the accused See the cases of ASIEDU V THE REPUBLIC [1968] 1 GLR and REPUBLIC v VICTOR SELORMEY [2001-2002] 2GLR 424. BURDEN OF PROOF The prosecution has the burden to prove the guilt of the accused person beyond reasonable doubt as provided in sections 11(2) and 13 (1) of the Evidence Act, 1975 (NRCD 323). This is the foremost duty on prosecution, that is to lead evidence to satisfy the Court of the guilt of the accused and the standard that the evidence should reach should be higher than the one expected in a civil trial. Accused person is however under no burden at all to prove that he is innocent. Per section 11(3) of NRCD 323, he is only required to raise reasonable doubt regarding his guilt. See also ALI YUSUF ISSA (No. 2) V THE REPUBLIC [2003-2004] SCGLR 174. FACTS The facts as given by prosecution are that the complainant in this case is the Manager of Concord Oil located at Zongo Junction, Madina. The accused person resides at Teshie and claims to be the C.E.O of GAS-EL Company Limited, located at Teshie. On 27th July, 2022 at about 12:00 p.m., the accused showed up at the complainant‟s place of work and met the C.E.O of the company (Concord Oil) who knew the accused person for five (5) years now as someone who passes by at his office to collect pocket money sometimes. The accused person then brought a discussion concerning how he could be able to supply Concord Oil with diesel within three (3) working days. The C.E.O directed the accused person to the complainant (Manager) because he does not 2 trust his words. Upon meeting the complainant, the accused directed that an amount of GH¢117000 should be deposited into one Kwesi Yeboah‟s Stanbic Bank account for the supplier, one Richard Tamaklo of Tema to deliver 45000 litres of diesel as promised. The money was deposited into the said account and the accused person went further to do an undertaking to that effect and opted to stay in the house of the C.E.O. Concord Oil until the arrival of the diesel but failed. On 29th July, 2022, the accused person was marched to the Madina Police Station and a case made against him. In the course of investigations, it came to light that the accused does not have any physical structure as an office in doing business. Investigation is ongoing to arrest his accomplices and put before Court. THE EVIDENCE Prosecution called three witnesses in an attempt to discharge its burden as follows; Samuel Yaw Owusu (PW1), Martin Owusu Asante (PW2) and the investigator in the case, D/Inspector Obed Antsie. The following documents were tendered in evidence; i. The statement of PW1 to the police, dated 30th July, 2022 as Exhibit „A‟ ii. The statement of PW2 to the police, dated 30th July 2022 as Exhibit „B‟ iii. The investigative cautioned statement of accused dated 29th July, 2022 as Ex „C‟ iv. The charged cautioned statement of accused dated 31st July 2022 as Ex „D‟ v. Photocopy of Concord Oil Payment Voucher No. 00089 marked as Exhibit „E‟ vi. Photocopy of ADB Cheque No. 000189 1010154272301 dated 27th July, 2022 with the face value of GH¢117,000.00 marked as Exhibit „F‟ vii. A letter from the Office of the Registrar of Companies marked as Exhibit „G‟ viii. A copy of the written undertaking made by the accused person marked as Exhibit „H‟ ix. Photocopy of the Ghana Card of the accused person attached to his undertaking marked as Exhibit „J‟ At the end of the case for prosecution, the Court invited the accused to open his defence as the Court found a prima facie case made against him. 3 EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW The elements to be established in conspiracy as stated in Republic v. Baffoe Bonnie and Others (Suit No. CR/904/2017) (unreported) dated 12 May 2020 are that there were at least two or more persons, there was an agreement to act together and the sole purpose for the agreement to act together was for a criminal enterprise. Per section 23 of Act 29, where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them commits conspiracy to commit or abet the criminal offence. Nonetheless, the two or more persons accused of the crime must agree to act together with a common purpose. Conspiracy is an intentional conduct, as stated by Marful-Sau J.A, sitting as an additional High Court Judge in the case of REPUBLIC V AUGUSTINA ABU AND OTHERS, (Unreported) Criminal Case No. ACC/15/2013. Hence, prosecution must prove an agreement to act together for an unlawful purpose, as stated in AGYAPONG V THE REPUBLIC [2015] 84 GHANA MONTHLY JUDGMENTS, 142, CA. In the case before this Court, three persons have been charged with the offence of conspiracy, out of which two of them are at large. Was there an agreement to act together, and if so, was it for the sole purpose to commit a crime? Are there any overt acts to portray same? From the evidence before the Court, A2 and A3 are only mentioned in Exhibit „A‟ as persons to whom money was paid for the supply of the diesel. Beyond this, nothing more is said about A2 and A3, who were not present during the trial and whose names were provided by A1. What if such persons do not exist at all? Or if they existed, can it be said that they agreed with A1 to defraud the complainant and in what way? I find a lot of unanswered questions in this regard and thus, cannot find for conspiracy. In respect of defrauding by false pretence, prosecution must prove the ingredients as outlined earlier. A false pretence is a representation of the existence of a state of facts with the knowledge that the state of facts being represented is false or that the accused at the time of making it did not believe that to be true. 4 What was the nature of the representation made by the accused? Did the accused know the falsity of the representation? In other words, was there any intent by accused to defraud the complainant? In the case of BLAY v THE REPUBLIC [1968] GLR 1040 it was held that to defraud was to deprive by deceit or induce a cause of action by deceit. Accused represented to complainant that he could supply Concord Oil with diesel within three working days and for which reason, an amount of GH¢117000 should be deposited into one Kwesi Yeboah‟s Stanbic Bank account for the supplier, one Richard Tamaklo of Tema to deliver 45000 litres of diesel as promised. Per Exhibit „G‟, the company of the accused, GAS-EL ENERGY LIMITED was incorporated on 24th May, 2022. The nature of business of the company is buying and selling of petroleum products, lubricant and services. Then, on 27th July, 2022, he shows up at the complainant‟s place to supply 45000 litres of diesel to his company. He then signs an undertaking that upon failure to deliver the diesel on the same date, he should be handed over to the police for recovery. This is barely two months after the incorporation of the company. Moreso, he provides an account number into which an amount of GH¢117,000.00 should be paid, a person who is not well known to him, as he stated under cross- examination. According to the accused, the person he knows is Mr. Tamakloe but this happens in the industry. All these seek to create doubts about the genuineness of the accused person in this transaction, hence an indication of deceit. In his defence, accused person informs the Court that he started dealing with Concord Oil since 2007, when they were known as Universal Oil Company. This evidence was not successfully challenged by prosecution. Also, his suggestion that in the industry, payment of money can be made into an account of a person not personally known was not disputed by prosecution. I have also noted that Exhibit „E‟ refers to payment of an amount of GH¢117000.00 being GRA for 45,000.00 litres of AGO from Gallant Kwame. This boils down to the oath against oath principle. The principle, as stated in AMARTEY V THE STATE [1964] 256-262 is that; 5 “Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider firstly, the version of the prosecution applying to it 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 three tier test was re-enunciated in the case of THE REPUBLIC V FRANCIS IKE UYANWUNE [2013] 58 GMJ 162. There is also the need to apply the three tier test in view of Article 19 (2) (c) of the 1992 Constitution, which presumes everyone innocent until the contrary is proved. The evidence led by prosecution through its witnesses, whom I find credible, establishes that an amount of GH¢117,000.00 was paid in respect of diesel that was not supplied as agreed. I disbelieve the story of the accused in his defence and therefore have to consider whether the story is reasonably probable. Having analysed the evidence in this regard, I find the story of the accused person reasonably probable, which should inure to his benefit. On the basis of the above, I find the accused person not guilty of the charges leveled against him. Accordingly, accused person is acquitted. Her Honour Mawusi Bedjrah Circuit Judge 6