REPUBLIC VRS. JANADO (D6/054/24) [2024] GHACC 389 (29 April 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON MONDAY, THE 29TH DAY OF APRIL, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/054/24 THE REPUBLIC VRS STEPHEN JANADO ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGE The Republic v. Stephen Janado Page 1 of 25 The accused person herein was arraigned before this court charged with two counts of Defrauding by False Pretences contrary to section 131 of the Criminal and Other Offences Act, 1960 (Act 29) and one count of Forgery of Other Document contrary to section 159 of the Criminal and Other Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty after the charges had been read and explained to him in Twi, being his choice of language. FACTS The facts of the case as presented by the prosecution are that complainants Mahnud Fadr and Shamun Jafar are plumber and barber respectively residing at Kade Zongo in the Eastern Region and Madina. Accused person Stephen Janado is unemployed living at Bechem in the Bono Region. During the month of October, 2023, PW1 had wind of accused person based in Dubai. PW1 then called accused person to help him travel to Kuwait since he has been able to travel to Dubai. Accused person who had since returned to Accra in August, 2023 failed to disclose to PW1 that he is back home and now base in Bechem. Accused person constantly used his Dubai SIM number +971521596584 to communicate with PW1 claiming he was still based in Dubai. Accused person further told PW1 that he could secure him a Kuwaiti Visa and ticket at the cost of GH¢18,700.00. PW1 became convinced and made payment to accused person through MTN mobile money. Accused person upon receipt of the money sent copies of the visa and ticket to PW1 through Whatsapp. PW1 upon receiving the documents quickly informed PW2 about how accused person had secured him a Visa and ticket to travel to Kuwait. PW2 also became interested and spoke to accused person who again promised to secure the same Visa and ticket for him to also embark on his journey to Kuwait. Accused person The Republic v. Stephen Janado Page 2 of 25 charged PW2 an amount of GH¢18,400.00 for the Visa and ticket to which he paid via MTN mobile money. Accused after receiving PW2’s money sent him documents through Whatsapp as the Visa, ticket, and Police clearance form. PW2 after receiving the documents discovered it to be fake. PW2 quickly informed PW1 about his findings and he also became alarmed. On 26/12/2023, PW1 and PW2 reported the case to Police for investigation. On same day accused person was subsequently arrested at the Kotoka International Airport to the station for investigation. During investigation, accused person admitted committing the offence in his caution statements given to Police and stated having given the monies collected from PW1 and PW2 to his accomplice one Mintah now at large. Accused person could not lead Police to the arrest of his accomplice. After investigation he was charged with the offences. The prosecution called two (2) witnesses in proving its case. EVIDENCE OF PW1 PW1, Detective Inspector Gabriel Gumah (investigator herein) told the court in his evidence that on 26/12/2023, complainants Shamum Zafar and Mahnud Fadr reported a defrauding by false pretences case against accused person and same referred to him for investigation. That he commenced investigation after the report and proceeded to Kotoka International Airport and got the accused person arrested to the station to assist investigation. That he took cautioned statement from the accused person in the presence of an independent witness and tendered same in evidence as exhibit ‘L’. According to PW1, investigation revealed that complainants and accused person come from the same hometown at Kade Zongo in the Eastern region. That complainant Shamum Jafar happens to be a former classmate and a childhood friend to the accused person. During the year 2022, accused person travelled to Dubai and returned in August, 2023 without the knowledge of the complainants and went to stay at Bechem in the Bono The Republic v. Stephen Janado Page 3 of 25 Region. Complainant Mahmud Fadr upon getting wind of accused person embarking on his journey to Dubai called him on phone to seek for his assistance to also help him travel to Kuwait. Accused person with an intent to defraud complainant Mahmud Fadr kept using his Dubai number +971521596584 to constantly communicate with complainant Mahmud Fadr posing to still base in Dubai and can help complainant within a short time to travel to Kuwait. Accused person succeeded in convincing Mahmud Fadr and collected cash the sum of GH¢18,700.00 and sent him Kuwait visa, ticket, and Police Clearance form to enable him travel. PW1 continued that Mahmud Fadr got complainant Shamun Jafar informed about his dealings with accused person which made Shamun Jafar also develop interest in embarking on the same journey to Kuwait and also began communications with the accused person with the same Dubai number. Accused person upon getting in touch with Shamun Jafar promised to secure him Kuwait Visa and ticket within two weeks. Accused person convinced complainant Shamun Jafar and collected cash the sum of GH¢18,400.00 under the pretense of securing him the Visa and ticket. That the complainant after paying the money to accused person through Mobile Money thereafter received the Kuwait Visa and ticket from accused person’s WhatsApp. Complainant Shamun Jafar later verified the documents and was informed that the documents sent to him by accused person were fake. Complainant Shamun Jafar became alarmed of the development and informed complainant Mahmud Fadr and they reported the case to Police for investigation. PW1 further told the court that during investigation Police retrieved the respective Kuwait tickets, visas and Police clearance forms from the complainants and tendered same in evidence as exhibits ‘C’ – ‘H’. That letters requesting for verification of the Kuwait tickets, visas and police clearance forms were forwarded to the respective institutions on 10/01/2024, he tendered same in evidence as exhibits ‘A’ and ‘B’. That they received letter of response from Kuwait Embassy in respect of the verification of the visas and ticket indicating it to be fake. He tendered same in evidence as exhibit ‘J’. He also tendered in The Republic v. Stephen Janado Page 4 of 25 evidence, a response received from the police CID headquarters in relation to the police clearance form as exhibit ‘M’. PW1 concluded that at the close of investigation the accused person was charged with the offences before this court and he tendered the cautioned and charged statements of the accused person in evidence as exhibits ‘K’, ‘K1’, ‘L’ and ‘L1’. EVIDENCE OF PW2 PW2 who is one of the two complainants herein told the court in his evidence that his name is Shamun Jafar and he is a barber residing at Madina. That the accused person was his junior high school classmate at Kade. He continued that somewhere November 2023, Mohammed Fadr, his brother told him that the accused person had told him that there was a company in Kuwait that needed workers and that the accused person had secured a Kuwait visa for him. That he requested for the accused person's contact and same was given to him. He called the accused person and he told him he should pay GH¢5,000.00 for him to secure the Kuwait visa for him within two weeks so he paid him the money through mobile money. That two weeks later, the accused person sent him a document on his phone which the accused claimed was his visa. That the accused person then told him he needed to buy plane ticket and he charged him GH¢7,000.00 which he first paid him GH¢5,000.00 and later paid him GH¢2,000.00 to complete the GH¢7,000.00 he charged him. According to PW2, the accused person then demanded and collected GH¢1,700.00 from him again and said it was for his medicals. That he paid this money too through mobile money on another number. That the accused person again collected GH¢200.00 from him that it was for the police report and he paid this money too to another mobile money number. That he later went to the Kuwait embassy and was told the medicals certificate given to him by the accused person was fake so he should go and do another one. That according to the embassy the medical report was supposed to be in an envelope and he The Republic v. Stephen Janado Page 5 of 25 is not supposed to see, which he told the accused person. That the accused person again demanded for another GH¢1,000.00 to secure another police report for him which he paid, also to a different number he provided. That he requested for another GH¢3,000.00 for visa connection and he paid. That he demanded for another GH¢500.00 to speed up the visa process which he paid as well. According to PW2, in all he paid a total of GH¢18,400.00 to the accused person. That the accused person was demanding another money and he said he does not have money again. That he called a family brother in Dubai to complain to him about the accused person and the family brother told him the accused person had returned to Ghana from Dubai for the past five months. Meanwhile, all this while that the accused person was taking monies from him, he told him he was in Kuwait. That upon advice, he lured the accused person to Kotoka International Airport and had him arrested and was eventually brought to court. 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 ruled 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. The Republic v. Stephen Janado Page 6 of 25 EVIDENCE OF THE ACCUSED PERSON The accused person in his evidence told the court that he lives at Kade Zongo in the Eastern Region. That he was asked by the 1st Complainant in the person of Mahmud Fadr to assist him in getting a visa. He declined and told him of his intention to let someone else assist him to which he agreed. That in relation to acquiring the visa for Mahmud Fadr, he informed him that he had little money on him. He told Mahmud Fadr that he helped someone who also wanted a visa to travel; however, the person was disqualified when it got to medicals. That Mahmud Fadr went to the person he tried helping whose name is Eric Quaye to confirm whether what he told him was true. Eric Quaye confirmed what he had earlier told Mahmud Fadr as true. Eric Quaye even showed the visa and clearance form (for which he was disqualified) to Mahmud Fadr. He continued that Mahmud Fadr informed him that, he was visiting his mother at Benin to assist him with some money. After a week, he sent him a message that he had received some money from his mother and asked him to give him the agent’s number. That he gave the agent’s number to Mahmud Fadr and further added that the agent was in Ghana and was called Christian Mintah. That Mahmud Fadr sent him a screenshot of the very first transaction of GH¢5,000.00 after a week of dealing with the agent, Christian Mintah. After a week, Christian Mintah sent him a visa in PDF format through WhatsApp and he sent it to Mahmud Fadr. He then asked Mahmud Fadr to check whether the visa was correct. Mahmud Fadr informed him that he already sent the visa to his brother who confirmed that it was correct. He added that his brother asked him to find out from him, the price of the ticket. He then sent a screenshot of Mahmud Fadr’s message to the agent. That the agent, Christian Mintah told him that he already informed Mahmud Fadr that price of the ticket was GH¢7,000.00. Mahmud Fadr then sent the amount of GH¢7,000.00 to Christian Mintah, the agent. Christian Mintah, the agent, informed Mahmud Fadr that he will do the medicals and police clearance for him after he sent the ticket to Mahmud The Republic v. Stephen Janado Page 7 of 25 Fadr. Mahmud Fadr also paid an amount of GH¢1,700.00 for a hospital report to the agent. Mahmud Fadr was told by the agent to pay an amount of GH¢200.00 for police clearance. However, he paid GH¢50.00 to the agent because he said that was the only amount he had on him. That he later sent GH¢150.00 to Christian Mintah to top up the GH¢50.00 to make a total of GH¢200.00. After, Christian Mintah, the agent sent him the police clearance and hospital report, through WhatsApp. He also sent them to Mahmud Fadr and told him to send the police clearance, hospital report, the visa, and the ticket to that Embassy. That Mahmud Fadr informed him that he was told that the police report was fake, and that the hospital report was supposed to be put in an envelope when he went to the Embassy. According to the accused person, after three days, he received a message from his friend called Shamum Jafar and he told him that Mahmud Fadr informed him he had secured a visa for him and he told Shamum Jafar that he should verify from Mahmud Fadr, because he did not secure the visa for him, but he introduced him to someone to assist him. He then connected him to the agent, and they discussed the cost involved. After one week, Shamum Jafar sent him a message that he had acquired ticket and visa, police clearance form and hospital report. Christian Mintah, who is the agent, sent him the same message. He then told Shamum Jafar to go to the Embassy to check whether the documents procured by the agent were genuine. That Shamum Jafar after the checks from the Embassy told him the Police report was fake and that the Hospital report should have been placed in an envelope. He then called the agent and told him all that happened, but he, Christian Mintah told him he called the person who prepared the police report, but he did not respond. The agent, Christian Mintah pleaded with him to tell Shamum Jafar and Mahmud Fadr that they should go and do the Police Clearance form, the Hospital report again so that even when the visa and the ticket expires, he can renew their ticket and visa and send it to them. That as he was chatting with the agent, and the two complainants, a friend called him and told him The Republic v. Stephen Janado Page 8 of 25 that the items he left in Dubai had been sent to a colleague to be received at the Kotoka International Airport. When he got to the Airport, a lady came to ask him whether he was the one called Stephen Janado and he said yes. After one minute, a man came to introduce himself as a C.I.D from Lapaz container that the complainant had come to report that he had defrauded him. That he was shocked and told him that he had not defrauded anyone, but he insisted he followed him to his car and when he got there, he would know the person who lodged the complaint. When he got to the car, it was his friend, Shamum Jafar. That was when he told him the visa the agent prepared for him was fake. He then told him if he had told him earlier, he would have caused the arrest of the agent prior to his arrest. That when they took him to Lapaz container CID office, he pleaded for bail, but the police refused because the complainant said unless he pays all the money, he should not be given bail. He then told the police that the monies were not with him, and the complainant was aware. The accused person concluded that the very day he was arrested, Shamum Jafar and Mahmud Fadr called the agent, and the agent told them the money is with him. The accused person called one witness as DW1. In his testimony to the court, DW1 gave his name as Boateng Shadrack. That he lives at Kade, and deals in phones and computer repair. He continued that he knows the accused person as his bosom friend, and does not know the prosecution witnesses. According to DW1 all that he knows about this matter is that the accused person is his bosom friend and he does not hide anything from him. That the accused person travelled and came back; one of his friends that they all went to school together with, approached him and informed the accused person that he wanted to travel and that he wanted someone to help him obtain a visa. So, the accused person told him that he cannot prepare a visa, but he knows someone who can procure a visa for him. That the accused person gave the said friend an agent’s number to call him and inform him that he the said friend wants to The Republic v. Stephen Janado Page 9 of 25 travel. That the said friend and the agent had further interactions which the accused person was not aware of. It later got to a point that the said friend had to pay some money to the agent. The said friend later sent GH¢5,000.00 to the agent and the agent sent a screenshot of the paid money to the accused person to inform him that the said friend had started the process of procuring the visa application. That from there the accused person did not know about any negotiation between the said friend and the agent apart from the GH¢5,000.00 that was sent as a screenshot to the accused person. That the agent sent a picture of the visa application that was procured for the said friend and the accused person showed it to him as evidence that the visa had been procured for the said friend. So the accused person told the said friend to go to the Embassy to verify if the said visa was genuine. When he went to the Embassy, the only problem was that the police report was not genuine. Meanwhile the accused person had told him that he was expecting his things coming from outside so he would go for them and he heard that the accused person had been arrested over the case before this court. Since then when they call the agent, they do not reach him. His phone is off. Due to that he became aware that the accused person is innocent with the charge against him. The accused person thereafter closed his defence. LEGAL ISSUES The legal issues to be determined are as follows: 1. Whether or not the accused person, with the intent to defraud, did obtain the consent of Mahmud Fadr and Shamum Jafar to part with cash the sum of GH¢18,700.00 and GH¢18,400.00 respectively by falsely representing that if the said amount was given to him he could secure Kuwait Visas for them, which statement he well knew at the time of making it to be false. The Republic v. Stephen Janado Page 10 of 25 2. Whether or not the accused person with intent to evade the requirement of the law, forged CID form 195 dated 5th December, 2023 in the name of Shamun Jafar. 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”. 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, The Republic v. Stephen Janado Page 11 of 25 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 prosecution witnesses during the year 2022, accused person travelled to Dubai and returned in August, 2023, without the knowledge of the complainants and went to stay at Bechem in the Bono Region. Upon knowing of accused person travel to Dubai, the complainants called him on phone to seek for his assistance to also help them travel to Kuwait. That the accused person kept using his Dubai number +971521596584 to constantly communicate with complainants posing to still base in Dubai and can help complainants within a short time to travel to Kuwait. Accused person succeeded in convincing Mahmud Fadr and collected GH¢18,700.00 and sent him a Kuwait visa, ticket, and Police Clearance form to enable him travel. That the accused person also convinced Shamun Jafar and collected GH¢18,400.00 under the pretense of securing him the Visa and ticket. That the complainant after paying the money to accused person through Mobile Money thereafter received the Kuwait Visa and ticket from accused person’s WhatsApp. That he later verified the documents and was informed that the documents sent to him by accused person were fake. The Republic v. Stephen Janado Page 12 of 25 Relevant part of the cross examination of PW1 by accused person on 13th February 2024 is as follows: “Q: When you were writing my statement did I tell you the money is with me or it is with someone else. A: You said you took the money and gave it to one Mintah whom you could not lead police to him for his arrest. Q: When you arrested me you informed me to tell Mintah to meet us at a hotel within a specific time but when you picked me for us to meet Mintah it was late and Mintah had left the hotel, is this true or not? A: That is not true, I never went to any place to search for Mintah because he said he does not know where Mintah lives. Q: When you arrested me I called Mintah in your presence and Mintah told us where to locate him at Ashongman and you informed me that the place is too far. When we were ready to go, we called Mintah on the way but his phone was off. Is it true or not? A: That is true but I never said the place is too far. In the course of you leading us to the said Mintah we called and his number did not go through.” From the cross examination of PW1 by the accused person, the said Mintah could not be reached when the investigator made the attempt to locate him after the accused person had allegedly spoken to him on the phone. Therefore the police could not conduct The Republic v. Stephen Janado Page 13 of 25 investigation to ascertain that there was indeed one Mintah in existence who the accused person is claiming that he received the complainants’ money and dealt with the complainants. From the evidence of PW2 the accused person told him to pay GH¢5,000.00 for him to secure the Kuwait visa for him within two weeks so he paid him the money through mobile money. That two weeks later, the accused person sent him a document on his phone which the accused claimed was his visa. It can be gathered from the evidence of PW2 that the accused person subsequently told him to pay several amounts of money towards the ticket, medicals and police report through mobile money numbers the accused person asked him to pay to. However it later turned out that the documents the accused person sent to PW2 to help him travel were fake. According to PW2, in all he paid a total of GH¢18,400.00 to the accused person. That all this while that the accused person was taking monies from him, he told him he was in Kuwait but it later turned out that he was in Ghana. From the evidence on record, the accused person created the impression that he could assist the complainants to secure Kuwait visa and directed them to make payment to mobile numbers he provided however, the visas the accused person forwarded to the complainants were fake. Relevant part of exhibit ‘L’ being the caution statement of the accused person dated 26th December 2023 is as follows: “... I then charged and collected cash the sum of GH¢18,700.00 from Fad and gave same to Minta who said he lives a Kasoa. Minta later sent me the visa through whatsapp and I also re-sent same to Fad together with the ticket. Within that period Fad told me complainant Jafat was also interested to travel and needed a visa together with a ticket to Quate. I again collected cash the sum GH¢17,700.00 from Jafat and gave same to Mintah. Mintah later sent me the visa, ticket and police report form in respect of Jafat and I resent same to Jafat. The Republic v. Stephen Janado Page 14 of 25 After some days later Jafat called to inform me the police medical report was fake. Upon getting the report I also informed Mintah who did not give me any meaningful answer and based on that I asked Jafat to personally go and get the police report himself to which he did. All along I have made it known to Jafat that I’m still based in Dubai in order not to discourage them with the transaction. I never knew the documents produced by Mintah was fake. I am currently based in Bechem in the Bono Region. I don’t know the place of Mintah. We only communicate on phone.” The accused person gave a further caution statement dated 1st January 2024 which is in evidence as exhibit ‘L1’ and he admitted that he collected monies in bits from the complainants as visa and ticket money where the said Mintah sent him the visa and ticket through his Whatsapp and he resent same to the complainants. The accused person’s defence is that it was one Mintah who sent him the visa and he also forwarded same to the complainants. there is no evidence before this court suggesting that indeed there is any Mintah who exists as the accused person having made these assertions about the said Mintah in the face of evidence on record being exhibits ‘J’ and ‘M’ that the criminal check and the visa he forwarded to the complainants are fake. The accused person therefore had a duty to lead sufficient evidence on a balance of probabilities to support his defence but there is no iota of evidence on record that indeed the said Mintah even exists given the overwhelming evidence adduced by the prosecution that the visa and criminal check from the CID which the accused person sent to the complainants are not genuine. From the evidence on record the accused person also deceived the complainants that he was in Dubai for them to be encouraged that he is in a position of assisting them to The Republic v. Stephen Janado Page 15 of 25 procure the said visa for which he made them pay monies for, when he was actually in Bechem in the Bono Region in Ghana. From the investigation caution statements of the accused person which were duly tendered in evidence without any objection from the accused person, he admitted having taking the amount of GH¢18,700.00 and GH¢17,700.00 from the complainants respectively and claims he gave same to one Mintah for the purpose of securing Kuwait visas for the complainants which visas accused person sent to the complainants but investigations from the Kuwait Embassy revealed that the said visas are fake. These caution statements 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. 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 supplied) From the evidence before this court, the investigation caution statements of the accused person is not very 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 visa for the complainants at the time of taking their money but he still went ahead and collected their The Republic v. Stephen Janado Page 16 of 25 money that he knows someone who could assist them but did not make arrangements for the complainants to even personally meet that someone who he claims to be called Mintah. The defence of the accused person that he made the complainants deal directly with the said Mintah is an afterthought because he never mentioned that in his statements to the police at the time of his arrest. The evidence of DW1 is also a hearsay as he personally did not witness anything in this case except what the accused person had told him to come and tell the court. The court therefore is unable to attach any weight or probative value to the said testimony. The accused person is not a credible witness because he stated in his caution statement that during the month of August 2023, he returned from Dubai and through which he met one Mintah in the plane. That he had a conversation with Mintah in the plane where he disclosed to him that he is a visa agent and people in the plane too testified to the effect that he is an agent who could facilitate or acquire visa for interested people; and they exchanged contact upon arrival and departed. He ended that he does not know the place of Mintah and they only communicate on phone. He also stated further that he does not know the whereabouts of Mintah and cannot trace him though he has some of his belongings in his (accused person’s) room at Bechem. Meanwhile he stated under cross examination that when the complainant said they wanted a visa he told them he could not help them so he will introduce them to a friend of his because his was done by somebody so he will introduce them to that person. If the accused person met the said Mintah on the plane when he was returning from Dubai to Ghana and they exchanged contacts, the reasonable question to be asked is how did the same person become the person who helped the accused person get a visa to The Republic v. Stephen Janado Page 17 of 25 travel to Dubai as he claims he told the complainant that his was done by somebody so he will introduce them to that person. The said person he claims he introduced the complainants to, is the Mintah he mentioned as having met him in the plane at the time he had already travelled to Dubai and was returning to Ghana. So how does someone the accused person only got to know upon his returning to Ghana be the one who helped him with his visa when he was earlier leaving Ghana to Dubai? This goes to tell that the accused person is credible therefore not worthy of belief and his evidence on record is equally unworthy of belief. It is not reasonably probable that the accused person who stated in his caution statement that the said Mintah is the one he gave the money to, for the procurement of the Kuwait visas for the complainant, did not have any information about him, if indeed there existed such a person. 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: “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 has someone who can assist in securing visa for the complainants and made the complainants pay the The Republic v. Stephen Janado Page 18 of 25 amounts of GH¢18,700.00 and GH¢17,700.00 respectively as he admitted in his caution statement when he knew very well that what he told the complainants was not true and rather sent fake visas to the complainants. The accused person’s explanation on how he sent the fake visas to the complainants is not convincing enough to exonerate him from the offence of fraud. From the evidence of the prosecution witnesses, the accused person represented facts to the complainants and made them pay the above amounts of money he admitted in his caution statements knowing very well that the statement he made to the complainants that, when the said monies are paid, it will secure all the necessary documents to take the complainants to Kuwait was false statement because he sent them fake visas and now claiming that he did not know the visas were fake but has not adduced any satisfactory evidence about the said Mintah he claims sent him the said visas to be forwarded to the complainants. On the question of false representation, it is apparent from the evidence of the prosecution witnesses that the accused person falsely made representations to the complainant as stated above and as a result of this they were induced to pay the said money as charged 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 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: The Republic v. Stephen Janado Page 19 of 25 "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 it is not reasonably probable that there exists any Mintah who could help with the process of securing Kuwait visas for the complainant since the accused person could not substantiate his assertions about the said Mintah on a balance of probabilities. 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. Section 159 of Act 29 on Forgery of other documents provides that: “A person commits a misdemeanour who forges a document, (a) with intent to defraud or injure another person, or (b) with intent to evade the requirements of the law, or (c) with intent to commit, or to facilitate the commission of, a criminal offence.” The Republic v. Stephen Janado Page 20 of 25 The prosecution adduced evidence to the effect that the police report being the CID Form 195 prepared in the name of Jafar Shamun is fake. Exhibit ‘M’ from the Police CID Headquarters dated 25th January 2024 indicates that the said document the accused person sent to the complainant is not genuine. The accused person admitted in his caution statements that Mintah sent him the visa, ticket and police report in respect of Jafat and he resent same to Jafat. As explained supra, the accused person could not give any satisfactory answer on his allegation of the said Mintah who he claims he asked him to send the said documents to the complainants through WhatsApp. Accordingly even though the accused person might have told the complainants that he has someone who will prepare the police report, he actually sent the said forged document to the complainants and could not provide adequate information on the said Mintah or produce him for interrogations on the forged document. The accused person was in control of the said forged document but he could not give satisfactory or persuasive explanation as to how he came by the said forged document. 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: “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.” The Republic v. Stephen Janado Page 21 of 25 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 his evidence is unworthy of belief and not probable; with him not being a credible witness coupled with the hearsay testimony of DW1. 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 J.S.C, delivering the judgment of the Supreme Court stated that: “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 Republic v. Stephen Janado Page 22 of 25 “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 offences he has been charged with. From the foregoing reasons, I pronounce the accused person herein, guilty of the offences of defrauding by false pretences and forgery of other document; and I hereby convict him accordingly on counts one, two and three. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Accused person: My wife is pregnant and also I have a child who is five years and I also have a father I am taking care of. I also have hernia where the CID took me to the hospital and I was told to have a treatment so I plead with the court for leniency. Court: Is the accused person known? Prosecutor: No, he is not known. The Republic v. Stephen Janado Page 23 of 25 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. The Court has also considered the youthful age of the accused person (28 years old). In accordance with Article 14(6) of the 1992 Constitution, time spent in custody pending trial is also considered. However to serve as deterrent to the accused person and others in the jurisdiction that the Courts do not tolerate such fraudulent actions, the Court hereby imposes the following sentences on the accused person: Count one: The accused person is sentenced to serve a term of imprisonment of thirty six (36) months in hard labour. The accused person shall in addition pay a fine of 500 penalty units. In default of the fine, the accused person shall serve a term of imprisonment of 24 months in hard labour. Count two: The accused person is sentenced to serve a term of imprisonment of thirty six (36) months in hard labour. The accused person shall in addition pay a fine of 500 penalty units. In default of the fine, the accused person shall serve a term of imprisonment of 24 months in hard labour. Count three: The accused person is sentenced to serve a prison term of twelve (12) months in hard labour. The sentences on all the three counts shall run concurrently. Restitution Order In accordance with section 147B of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the accused person is ordered to refund the amounts of GH¢18,700.00 and GH¢17,700.00 to the complainants herein respectively as he admitted in his caution statement. The complainants shall enforce this order through civil means. The Republic v. Stephen Janado Page 24 of 25 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Stephen Janado Page 25 of 25