REPUBLIC VRS DANQUAH & ANOTHER (13/2024) [2024] GHACC 285 (12 July 2024)

IN THE CIRCUIT COURT HELD AT DORMAA AHENKRO ON FRIDAY THE 12TH DAY OF JULY, 2024 BEFORE HER HONOUR PHILOMINA ANSAAH ASIEDU ESQ., CIRCUIT COURT JUDGE Court Case No: 13/2024 THE REPUBLIC VRS DANQUAH KOFI SMITH & OR Accused person is present D/Insp. Emmanuel Asare for the Republic – present JUDGMENT The Accused person per the charge sheet is charged with the offence of Defrauding by False Pretence contrary to Section 131(1) of the Criminal Offences Act, 1960 (Act 29). The brief facts of the case attached thereto are as follows: The complainant in this case is a businessman and a residence of Sunyani whereas the accused person is an electrician and a residence of Dormaa Ahenkro. In June 2021 the complainant approached the accused person and asked him to assist his junior brother travel Abroad. The accused person then offered to help the complainant with the help of the co accused person (A2) at a cost of GH¢40,000. The complainant then made an initial deposit of GH¢20,000 to the accused persons. He subsequently paid another amount of GH¢9,500. After paying a total amount of GH¢29,500 to the accused persons, the accused persons failed to acquire the said travelling document to him. They have also failed to 1 refund all his monies to him and he has received only GH¢10,000 out of the total monies he paid to them. The accused persons, A1 was arraigned before the court after investigations. A2 is at large. The Section 131(1) of Act 29 provides as follows: “A person who defrauds any other person by a false pretense commits a second-degree felony” False pretence is also defined in Section 133 of Act 29 to mean: “1) a false pretence is a representation of the existence of a state of facts made by a person, with the knowledge that the representation is false or without the belief that it is true, and made with an intent to defraud. Section 11(2) of the Evidence Act NRCD 323 provides that the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact, beyond a reasonable doubt. In the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 374, per the Dictum of Lord Denning, the meaning of reasonable doubt was clarified as follows: “it need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of 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 2 sentence, “of course it is possible but not the least probable, the case is proved beyond reasonable doubt.” In the case of Oteng v The State [1966] GLR 352 at 354, the Supreme Court held that one significant respect in which our criminal law differs from our civil law is that while in civil law a Plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain a conviction upon mere probabilities. The accused person pleaded not guilty to the offence and the burden to produce evidence at this point is the obligation on the prosecutor to produce sufficient evidence in support of the charge against the accused person to obtain a conviction. The prosecution in doing this called two witnesses in the person of Anti Daniel (the complainant) and No. 10179 PW/L/CPL E. Abekah (the case investigator) and their evidence adduced is as follows EVIDENCE OF ANTI DANIEL (PW1) PW1 is a businessman residing at Dumasua near Sunyani. PW1 stated that somewhere in June 2021, he met the 1st accused person and discussed with him about his intention of sending his younger brother overseas. According to PW1, the 1st accused person promised that he could assist him by acquiring travelling documents for his brother and mentioned one Alex Ankama (A2) as his partner. PW1 further stated that the 1st accused person asked him to pay an amount of GH¢37,000.00 for the whole process, of which the 1st accused person collected an amount of GH¢20,000.00 of which he sent to him. PW1 further averred that on 14/07/2022, he sent an additional GH¢9,500.00 to the 2nd accused person through mobile money. PW1 sent a total sum of GH¢29,500.00 to the accused persons but they failed to acquire the travelling documents for 3 his brother and all efforts made by him to recover the money proved futile and the case was reported to the police. EVIDENCE OF NO. 10179 PW/L/CPL E. ABEKAH (PW2) PW2 was the case investigator and that on the 27th April, 2023, a case of defrauding by false pretense was referred to her to investigate. PW2 said she obtained PW1’s statement and PW1 stated that the 1st accused person and 2nd accused person (now at large) collected an amount of GH¢29,500.00 from him under the pretext of acquiring travelling documents for his younger brother. She arrested 1st accused person and took his investigation caution statement of which A1 revealed he had given the said money to A2 who resides in Accra. According to PW2, he asked the Crime Officer to give A1 signal to Accra for A2 to be arrested but A1 after travelling to Accra claimed he did not see A2. She later received instructions to charge A1 for Court. PW2 tendered in evidence 2 exhibits: Exhibit A – Investigation Cautioned Statement; Exhibit ‘B’ – Charge cautioned statement. Again in Section 13(2) of NRCD 323 “… In a criminal action, the burden of persuasion as to the fact of guilt requires only that the Accused raise a reasonable doubt as to guilt.” In the case of Republic v Selormey [2001-2002] 2GLR 424 the court held that on the charges of defrauding by false pretences to succeed the prosecution must prove by evidence a) That the accused person made a representation either by written or spoken words or any other means whatsoever. b) That the said representation was in regard to the existence of a state of facts 4 c) That the said representation was false or made without the belief to be true that it was true. The prosecution at the end of the day should be able to prove that it was the accused person that personally or through someone obtained the consent of the accused person and by that consent succeeded in parting with his money or a thing for his benefit EVALUATION OF EVIDENCE Throughout the trial it was not in contention that it was the complainant that approached the accused person and asked of his help to provide travelling documents for his younger brother. The accused person also in an answer to this clearly told the complainant that it was the co accused person who was personally in charge of the transaction. This is seen in the exhibit a thus the investigation caution statement of the accused and I quote: But I told him that I cannot do it. But further stated to him that I have someone who can do it and further asked him if he was interested…further that I gave him the contact number of Alex Ankamah. That from there he started dealing with the complainant” The accused person elaborated on the above assertion when he mounted the witness box by further testifying. “I told him I did not do that but I know a certain man who can do it. So I could introduce the man to him and he said he was interested. So I gave the number of the said man to him. He later came to me that he has spoken to the man and the man said he should bring his passport to me. So I gave the passport to someone to be sent to the man in Accra by bus. Three (3) weeks afterwards, the man working on the visa that I sent the passport to called to inform me that he is done with the visa. Then I called Daniel to inform him and he said ‘Yes’ and the said man has even called him. I did not hear anything from them again. After about a month ago, Daniel called me that he has reached Accra but the man is not responding to his calls. So I 5 asked Daniel why I had not been hearing from him and he said it is because he has been communicating with the man personally for some time now. I then told him to let my try and get in touch the said man but he did not pick my call. Later that same morning at about 9:00am, the said man (2nd accused person) returned my call and told me that he was asleep, thus the reason he missed my call. Then I told him it was Daniel who was looking for him and he then continued that Daniel was even with him as he is speaking to me. After it, I did not hear from both of them again.” This means that the complainant after establishing contact with A2 even at a point in time went to visit him in Accra. Reading the evidence further reveals that the complainant did visit A2 in Accra on two different occasions. The complainant’s actions meant he wanted to fully convince himself that co accused A2 introduced to him was not a fallacy. He also did this to verify that A1 has indeed led him to a right person. The prosecution as far as the court is concerned could not discredit the evidence of the accused. The accused by the above submission did not make any false representation to the complainant. It is obvious that A1 intimated to the complainant from the onset that his co accused person, A2 was in charge of the process. On the issue of whether the money or thing was parted and was it for the benefit of the accused. On the payment of the second installment payment of GH¢9,500.00, PW1 admitted having personally sent it to A2 mobile money accounts. With regard to the first payment ie GH¢20,000.00 the court made a finding that both the complainant and accused person went to the bank to deposit the money in the accounts of A2. There is no doubt that the money was deposited in A2’s accounts. PW 1 only went with the accused to the bank to witness the payment of the money. This during the trial came out that the complainant made these payments after his return trip from Accra to meet A2. That means after his physical encounter with A 2 in addition to the phone 6 conversation they established, he became very much convinced that A2 existed. The accused person in leading such evidence created doubt in the minds of the court on the case of the prosecution. The prosecution could not again discredit this kind of information during gross examination. The prosecution failed to lead evidence to prove that the accused person personally parted with the money and benefited from it. At this point, the court will not resist the fact that all evidence led so far was pointing at A2 who is at large. Though PW 1 personally dealt with A2, A1 alone was charged to produce him. He was issued with a warrant to produce him but all to no avail. A1 rather returned with an amount of GH¢10,000.00 been a refund of part of the money from A2. During the trial the prosecution cross examined the accused person as follows: Q After you were granted bail the police gave you an extract to go and arrest the said 2nd accused person. A That is correct. Q Did you cause the arrest of the 2nd accused person. A I did not see him. Q Do you remember that you came back from Accra and said the extract was invalid. A Yes, that is correct. So they called the crime officer in charge of Dormaa Ahenkro and showed him how the investigator should do a proper one for me and they asked me to come back. Q How long did it take you to take the extract to Accra. A On that very day. Q Then I am putting it to you that nothing can make an extract invalid. A For that, I do not know what goes into an extract. I was just told that it was invalid. 7 Q So I am putting it to you that you met the said 2nd accused person in Accra but you failed to effect his arrest. A That is not correct. I found it a bit worrying why PW 1 was not also charged or issued with a warrant to arrest A2, because at this point in time it was the investigation stage and it was clear that PW 1 also knew the house of A2 in Accra. Therefore, all the parties should have been charged to look for A2. I am not surprised he returned with the money and not A2 and it is his word against that of the prosecution and the prosecution could not prove otherwise too. The prosecution failed to prove the case of defrauding by false pretence against A1. Clearly the charge of conspiracy to commit the crime of defrauding by false pretence could have been more appropriate against the A1. The prosecution failed to prove their case beyond reasonable doubt. The accused person succeeded in creating a lot of doubt in the case of the prosecution. In the case of MILLER V PENSIONS [1972] 2 ALL ER 372, Lord Denning stated as follows: “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favor which can be dismissed with the sentence of course it is possible but not the best probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” The accused person will therefore have to be discharged in this instant case. 8 I want to conclude by adding that I understand the plight of the complainant and his attempt to hold A1 responsible since A2 cannot be traced anymore. We must all be cautious in dealing with people holding themselves out to be ‘connection men’ out there. The due process should be followed to acquire a visa. The accused person is acquitted and discharged. (SGD) H/H PHILOMINA ANSAAH ASIEDU CIRCUIT COURT JUDGE 9