REPUBLIC VRS. APPIAH (D6/572/2017) [2024] GHACC 169 (27 May 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON MONDAY, 27TH MAY, 2024 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D6/572/2017 THE REPUBLIC VRS DAVID BRUCE APPIAH ACCUSED PERSON PRESENT CHIEF INSPECTOR JONAS LAWER FOR THE REPUBLIC PRESENT SHADRACH TETTEH, ESQ.FOR THE ACCUSED PERSON PRESENT RULING TO DETERMINE WHETHER OR NOT THE PROSECUTION HAS ESTABLISHED A PRIMA FACIE CASE AGAINST THE ACCUSED PERSON The Accused person herein has been standing trial before this court for the past seven (7) years. This case suffered two (2) de novo hearings. The Accused person was first arraigned before this Court in the year 2017 charged with the offence of Defrauding by False Pretences contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). The Accused person pleaded Not Guilty to the charge when same was read out and explained to him in the language (English) he understands. FACTS OF THE CASE Somewhere in November, 2016, the Accused person showed to the complainant, a two- bedroom house located at Teshie-Nungua with plot No. 9 OWL Lane as his property. The Accused person informed the complainant that the property cost GH¢160,000.00. The complainant showed interest and paid cash, the sum of GH¢1,000,300.00 to the Accused 1 person through his Barclays Bank account at Ridge, Accra. On the 4th May, 2017, the complainant decided to visit the said house at Teshie-Nungua for renovation work to be carried out. To his amazement, he saw different people carrying out renovation on the house. When the complainant confronted the people renovating the house, they told him that the place did not belong to the Accused person. The complainant demanded for a refund of his money on sensing danger. The Accused person promised refunding the money but failed after several attempts. The complainant therefore lodged a complaint to the police. The prosecution put forward two (2) witnesses to testify in support of its case. The testimony of PW1 (Prince Kumordzie) confirmed the facts as presented by the prosecution. PW1 tendered in evidence, the following exhibits: i. Communication between Winnifred Agartha and David Bruce Appiah; ii. Authorization letter from Winnifred Agartha iii. Bank Pay-In-Slips indicating payments made by complainant into Accused person’s Access and Barclays Bank Accounts; and iv. Email communication between the complainant and Accused person. PW2 (Detective Inspector Richard Amemor) investigated the case. PW2 tendered in evidence, the Cautioned and Charge Statements of the Accused person as well as a Criminal Summons. At the close of the case of the prosecution, the Court was enjoined by law to determine whether or not the prosecution had established a prima facie case against the Accused person. 2 THE LAW ON SUBMISSION OF NO CASE Sections 173 and 174(1) of the Criminal offences (Procedure) Act, 1960 (Act 30) provides: “173 Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement.” In the case of Michael Asamoah & Another vrs The Republic [2017] DLSC 2628 @ page 4, the Supreme Court speaking through Adinyira JSC stated the law on submission of no case as follows: “The grounds upon which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial on indictment may be restated as follows: There had been no evidence to prove an essential element in the crime; a. The evidence adduced by the prosecution had been so discredited as a result of cross- examination; or b. The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it; c. The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt and one with innocence. See also the cases of Tsatsu Tsikata vrs The Republic [2003-2004] SCGLR 1068; Affail vrs The Republic [1975] 2 GLR 69. 3 Furthermore, from the above authorities, this Court is not expected to do anything beyond a determination of whether or not a prima facie case has been made against the accused person. In doing so, one has to consider whether or not the evidence so far adduced has been so discredited as a result of cross-examination that it would be unreasonable to continue with the trial, or whether an essential ingredient or element of the charges against the accused person has not been established by the evidence so far adduced. In the case of Atsu vrs The Republic [1968] GLR 716 @719 CA, the Court stated; “As a general rule, evidence from the defence is not taken until the court has held that the prosecution has established a prima facie case. This is based upon the well-known principle that it is the prosecution which has an onus to prove the guilt of the person they accuse of an offence, and not the accused who should establish his innocence, the accused should therefore not show his hands until the need arises.” “It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution provides prima facie evidence from which the guilt of the accused may be presumed, and which therefore calls for an explanation by the accused.” THE LAW AND EVALUATION OF EVIDENCE Defrauding by false pretences Section 131(1) of Act 29 provides: “A person who defrauds any other person by a false pretence commits a second degree felony.” Section 132 of Act 29 provides the definition for Defrauding by False Pretences. It states: 4 “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.” THE PARTICULARS OF OFFENCE for which the Accused person has been charged reads: “DAVID BRUCE APPIAH: For that you on the 4th day of May, 2017 at Ridge in the Greater Accra Region and within the jurisdiction of this court, with intent to defraud, did obtain the consent of one Prince Kumordzie to part with cash the sum of One Hundred Thousand, and Three Hundred Ghana Cedis (GH¢1,000,300.00) by means of certain false pretence to wit; by falsely pretending that if the said amount was given to you, you could sell to him two bedroom house and upon such false representation, you succeeded in obtaining the said amount from the said Prince Kumordzie, which statement you knew at the time of making it to be false.” From section 132 of Act 29, 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. In the case of Republic vrs Selormey [2001-2002] 2 GLR 424, the court stated the following ingredients of an offence of defrauding by false pretences: “A person shall make a false representation or by a personation either by written, spoken or sign language or any other means whatsoever; the said representation was made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was 5 made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was false or made without the belief that it was true; as a result of the false representation the accused person caused the other person to part with or transfer ownership of a thing.” See also Sarpong vrs The Republic [1981] GLR 790; Adobor vrs The Republic [2008] 19 MLRG 23 CA. Section 133 of Act 29, in defining false pretence, 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. What form of representation did the Accused person make to the complainant? According to PW1, the Accused person represented to him that he was in charge of property that was being offered for sale. That the Accused person and the one who introduced the Accused to the complainant (Joycelyn Mensah) agreed that he pays a commitment fee of USD500, and this was paid to the Accused person through Joycelyn Mensah. The negotiated price of the property stood at GH¢160,000.00. The Accused person provided documents covering the house for a search and verification. When PW1 was cross examined by the defence counsel on the 31st October, 2023, PW1 confirmed and admitted that he was aware the property did not belong to the Accused person, and that the Accused person was only acting as the lawful attorney for his step mother by name Winnifred Agartha Appiah. The Accused person also provided documents covering the property to PW1 to conduct a search. After conducting the search, PW1 became convinced and parted with cash to the Accused person. Thereafter, 6 the Contract of Sale Agreement (Exhibit ‘1’) was executed. The following is part of what transpired during cross examination of PW1 by the defence counsel on the 31st October, 2023: Q. You will agree with me that the Accused person never represented to you that the house belongs to him? A. Yes My Lord. Q. You will also agree with me that at all material times during the transaction for the sale of the house, you knew the accused person was acting as the lawful attorney of his step mother, Winnifred Agartha Appiah? A. Yes My Lord. Q. Did the Accused person give you any document to conduct a search prior to you purchasing the house? A. Yes, it is a basic requirement. Q. Did you conduct the search and investigations? A. Yes, I did, that was the reason I parted with cash to the accused person. Q. Did you sign a contract for the purchase of the house in question? A. Yes My Lord. Q. Have you presented the contract in court? A. Yes My Lord, when the case started. Q. Do you have a copy of that document with you? A. No My Lord for now. Q. But it is in your possession? A. Yes My Lord. Q. You will be able to present same in court, not so? A. Yes My Lord. 7 Did the Accused person make these representations with the knowledge that such representations are false or without the belief that they are true? Was there also an intention on the part of the Accused person to defraud the complainant? From the answers given by PW1 under cross examination, the Court does not find intention on the part of the Accused person to defraud PW1. The prosecution has also not established that the said principal (Winnifred Agartha Appiah) does not exist. Exhibit ‘1’ was duly signed by the parties. The Commencement of Exhibit ‘1’ reads: “THIS CONTRACT OF SALE is made the 15th day of July, 2015 between AGATHA WINIFRED APPIAH acting through her lawful attorney DAVID BRUCE APPIAH whose postal address is P. O. Box DC959 Dansoman, Accra in the Greater Accra Region of Ghana (hereinafter called “the Vendors”) which expression shall where the context so requires or admits include his personal representatives, heirs, successors and assigns) of the one part and Prince Kumordzie of Accra (hereinafter referred to as “the Purchaser”) which expression shall where the context so requires or admits include his personal representatives, heirs, successors and assigns of the other part.” The prosecution also tendered in evidence, a Power of Attorney as Exhibit ‘B’. Per Exhibit ‘B’, Winnifred Agatha Appiah is the Principal, whereas the Accused person is the Attorney, and the latter was authorised to sell the property situate and lying at Teshie- Nungua Housing Estate known as Plot No. 9, Owl Lane. From the above, it is clear the Accused person acted as the lawful attorney of Winnifred Agartha Appiah. In the case of Apaloo & Others vrs The Republic [1975] 1 GLR 156-192, Azu Crabbe C.J. quoting extensively the case of State v. Ali Kassena [1962] 1 G.L.R. 144, S.C. outlined situations under which a submission of no case may be made as follows: “The circumstances in which a submission of no case may successfully be made are: 8 (a) when there has been no evidence to prove an essential element in the crime charged; and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it …” From the entirety of the evidence adduced at this stage of the trial, the court finds that the element of false pretence has not been established by the prosecution. In the circumstances, the Accused person herein, David Bruce Appiah is hereby acquitted and discharged. I cannot end this judgement without commenting on the defence lawyers who have been in this case since 2017. From our records, six (6) different lawyers have been in this case as defence lawyers. This case would not have suffered de novo trials if the previous lawyers in the matter had been diligent. I commend Shadrach Tetteh, Esq. (counsel for Accused person) for his industry in bringing out the real issues needed to dispose of this case when he cross examined PW1. In his absence, the lawyer who held his brief (James Nana Yeboah) did a poor work. Instead of following the footsteps of the substantive lawyer, he rather put forward a case to say that PW1 breached his part of the agreement and that, PW1 did not pay the commitment fee, which the court found to be irrelevant. (SGD.) ISAAC ADDO CIRCUIT COURT JUDGE 9