REPUBLIC VRS. NYARKO AND OTHERS (D2/26/2022) [2024] GHACC 344 (28 February 2024)

IN THE CIRCUIT COURT, 28TH FEBRUARY ROAD, ACCRA SITTING ON WEDNESDAY THE 9TH DAY OF OCTOBER 2024, BEFORE JUSTICE ELLEN OFEI- AYEH (MRS.) SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE. CASE NUMBER D2/26/2022 THE REPUBLIC V 1. ADJOA NYARKO 2. NANA OSEI ( At Large) 3. CHARLES KWAME DAMOAH (At Large) REPRESENTATION: ASP. RAYMOND ACKOM FOR THE REPUBLIC BABA JAMAL M.A (ESQ.) FOR THE DEFENCE JUDGMENT The 1st accused person who is the subject of this trial has been charged with two counts of offences namely conspiracy to commit a crime contrary to section 23(1) and two counts of Defrauding by False Pretenses contrary to Section 131(1), all of the Criminal Offences Act 1960(Act 29). On count one the particulars of offence relating to the offence of conspiracy are that; 1.Ádjoa Nyarko , 2. Nana Osei (at Large), 3. Charles Kwame Damoah (At Large) sometime in the year 2020 at Accra in the Greater Accra Region agreed together with a common purpose to defraud Nana Yaw Barima. On Count Two relating to the offence of Defrauding by False Pretences, 1.Ádjoa Nyarko, 2. Nana Osei (at Large), 3. Charles Kwame Damoah (At Large) sometime in the year 2020 with intent to defraud Nana Yaw Barima obtained the consent of Nana REPUBLIC V ADJOA NYARKO & 2 ORS 1 Yaw Barima to part with cash the sum of GHC129,000.00 by representing to Nana Yaw Barima that you could facilitate or secure employment in the Ghana Revenue Authority(GRA) for the relatives of Nana Yaw Barima , a representation you knew to be false at the time of making it. On Counts 3 and 4 the accused person was acquitted and discharged on basis that there was no case to answer. The 1st accused person shall hereafter be referred to as the accused person for ease of reference because the 2nd and 3rd accused persons are at large. The brief facts of the case as presented by the prosecution are that, the 1st Accused person is a hairdresser and lives at Wenchi in the Brong Ahofo Region. The 2nd and 3rd Accused persons are currently on the run. Sometime in September 2021 Nana Yaw Barima and Collins Atta Oteng (hereinafter referred to as Complainant) reported to the police that sometime in the year 2020, accused person and his accomplices demanded and received cash the sum of GH¢139,000.00 with the promise of securing and or facilitating employment for some relatives of the complainant into the Ghana Revenue Authority (GRA) but failed. On receipt of the complaint, Police launched investigations into the matter which led to the arrest of the Accused person at Asankare, in the Ashanti Region. During interrogation, the accused person admitted that she received sum monies from the Complainant the complainants to secure employment for natives of the Asante Akyem. The accused person further indicated that she handed over the monies upon receipt to the 2nd and 3rd Accused persons to facilitate the purported employment. Meanwhile efforts are being made to locate the 2nd and 3rd Accused person to assist police investigations. On 16/9/2024 the defence counsel filed his written addresses. Thus, prosecution assumed the burden of proof to prove the allegations made. In a criminal case, the prosecution bears the burden of proof to establish the guilt of the accused person beyond reasonable doubt as per sections 11(2) and 13(1) of the Evidence REPUBLIC V ADJOA NYARKO & 2 ORS 2 Act, 1975 (NRCD 323) and also as was stated in the case of Bruce-Konuah v. The Republic [1967] GLR 611 – 617. Section 23(1) of the Criminal Offences Act, (1960) defines conspiracy as; “(i) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” In the Supreme Court decision in Francis Yirenkyi v The Republic Suit number J3/ 7/2015, which was relied upon in the ruling in the Republic v Eugene Baffoe Bonnie & 4 Others, suit number CR/904/2017 delivered on 12th May 2020 which held that, prosecution must in a charge of conspiracy, prove the following ingredients of offence; 1. There were at least two or more persons, 2. That there was an agreement to act together, 3. That the sole purpose for the agreement was for a criminal enterprise and 4. That it is immaterial if the two or more persons had a previous agreement to act together or not. Section 132 of the Criminal offence Act 1960, Act 29 defines the offence of Defrauding by False pretence as follows; “A person defrauds by false pretence if by means of any false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing” The prosecution would have to prove beyond reasonable doubt the following essential ingredients; 1. That the person charged made a representation as to the existence of facts in writing, words or by impersonation that was false or with the knowledge that it was false or without belief that it was true. 2. That by means of the false pretence or impersonation he obtained the consent of another person to part with or transfer the ownership of the thing or subject matter of the charge. 3. That the false pretence was made with the intent to defraud REPUBLIC V ADJOA NYARKO & 2 ORS 3 See the ingredients of Defrauding by False pretenses discussed in the decision in Phillip Assibit Akpeena v the Republic (2020) DLCA 8571 where their Lordships reliance on Daniel Abodakpi v The Republic, Appeal H2/6/07 delivered on 20th June 2008. Section 133(1) of Act 29 (1960) defines False Pretence as, “A false pretence is a representation of the existence of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true and made with intent to defraud.” Section 132 read together with section 133 (1) of the Criminal Offences Act, 1960, Act 29 has been explained by His Lordship Justice Dennis Dominic Adjei C.A. at page 308 of his book; Contemporary Criminal Law in Ghana, 2017, as ‘the false pretense must necessarily involve a false representation of an existing fact. A mere promise of an event in the future cannot be a ground for defrauding by false pretense, unless it is coupled with a false statement of an existing fact. A mere representation that that something may happen or is likely to happen does not amount to fraud by false pretense unless it is accompanied by a false statement of an existing fact.’ PW1, Barima Nana Yaw Kissi testified that in a conversation with Janet Nyarko a.k.a Maame Adjoa Nyarko, that is, the accused person, she made him believe that Col. Damoah of C.E.P.S is her boyfriend and that she would convince him to assist him to get jobs for the Youth in his area. He added that in March 2021, the accused person told him that Col. Damoah was ready to receive the CVs of the said youth and she demanded GHC3000.00 for the facilitation of the CV’s to get employment. In Late June 2021 someone with telephone number +233571852557, describing himself as Col. Damoah called to confirm and demanded GHC4,200.00 from him. He testified that several transactions were made to the said Col. Damoah which the accused person assured him was genuine. He began to get suspicious and upon investigation it revealed that he was not the real Col. Damoah, he met another fake Col. Damoah, which resulted in other fraudulent transactions which is not the subject of the present trial. He testified that REPUBLIC V ADJOA NYARKO & 2 ORS 4 ultimately he got into touch with the real Col. Damoah and the matter was reported to the police. He testified that payments were made via mobile money transactions having transferred a total of GHC129,000.00 to the accused person’s MTN mobile number +233244945989, through momo agent numbers 0546028782 and 0550167425, and his number 0244364226, all of MTN PW1 tendered into evidence photocopies of WhatsApp conversation as Exhibit ‘A’. Under cross-examination and question 38, he responded that all monies were sent to Adjoa; the accused person to be sent to Col. Damoah. PW1 had this to say under cross-examination, Q37 Did you do any basic checks before transferring money to Accused person? A No, I have stated that all I did was based on trust with someone who had lived in my house for 2years and was trying to secure job for people in my own village and I do call her about what Col. Damoah is saying and she will say she is aware, give it to him. PW2, the investigator, 47487 D/Corp Musah Jesinto testified by a witness statement filed on 15th February 2022 and adopted as evidence in Chief and relied on the following exhibits, tendered without any objections. Order for disclosure of information to MTN- Exhibit ‘B’ Order for Search Warrant- Exhibit ‘C’ Cautioned Statement of Adjoa Nyarko-Exhibit ‘D’ Charge Statements of Adjoa Nyarko- Exhibit ‘’E’ and ‘E1’ Statement of Berima Yaw Kissi- Exhibit ‘F’ Mobile Money Statement- Exhibit ‘G’ REPUBLIC V ADJOA NYARKO & 2 ORS 5 PW2 testified that he was handed a case docket with Exhibit Tecno Canon 12 by the police Intelligence Directorate of the Ghana Police Service. Together with the cautioned statement and charge statement he obtained the mobile wallet statement of the accused person’s MTN numbers 0244073613 and 0244945989. He testified that upon an Order of the Court, MTN Ghana delivered to him the mobile wallet statement of the stated phone numbers and upon analysis of the data, he confirmed and concluded that the MTN number 0244945989 was registered in the name of Regina Nyarko and the complainant transferred an amount of GHC11,000.00 From His Personal Phone Number to A1’s phone number. He added that Alirwatu Issah Kpemor transferred GHC4,444.00 on behalf of the complainant to the A1. GHC14,310.00 was transferred from MTN Merchant Thomas Osei to A1 on behalf of the complainant. GHC24,800.00 was transferred to A1’s number by Merchant Eric Adokplovi on behalf of the complainant. In all complainant sent GHC96,489.00 to A1. He testified that no records were however found of transfer of funds between A1, A2 and A3. Under cross-examination, the investigator was challenged in respect of Exhibit ‘D’ that the complainant took her number 0244073613 from Nana Effah, and that was the number being used by the complainant. The accused person has denied the allegations made by the prosecution in its entirety. Notably, Exhibit ‘A’ which was not challenged bears the phone number +233 244945989 described as Col. Damoah Girl, Wankyi by the complainant on his phone. However, Exhibit A1 to A27 has been challenged that they do not emanate from the accused person's phone records. The prosecution has also been challenged that the phone was not put into evidence. When it comes to weight the court must consider the manner in which the electronic evidence was obtained. PW2 was challenged that Exhibit ‘G’ was never confirmed by the accused person to belong to her. Exhibit G, which is the MTN momo statement, bears as follows, Subscriber name a: Regina REPUBLIC V ADJOA NYARKO & 2 ORS 6 Surname: Nyarko This name was registered under 233244945989. As earlier stated reference was made to the mobile number contained in Exhibit D – cautioned statement as 0244073613. I find as a fact from the response of PW1 (supra) at question 37 of cross-examination, and the responses of the accused person at question 15, that the accused person did live with the complainant for at least two years and it is reasonably probable that they were having an amorous relationship. I also find as a fact that the accused person gave Mr Damoah’s number to the complainant. By Exhibit ‘D’ it is also a fact that Charles Damoah was also a former boyfriend of the accused person. The subscriber information, obtained through a court order in Exhibits ‘B’ and ‘C’ and Exhibit E1 describes the accused person as Adwoa Nyarko @ Regina. At no point did the defence challenge the description of her name by way of spelling or identity. In During cross-examination, the accused person further admitted that she is also called Regina Nyarko, and her Ghana Card bears that name. She also admitted that her MTN number 0255945989 registered in the name of Regina Nyarko belongs to her and she registered it during the registration period. I find undisputed and as a fact that Exhibit G contains the MTN subscriber information and the momo account of the accused person. Section 7(2) of the Electronic transactions Act 1998 provides In assessing the evidential weight of an electronic record the Court shall have regard to (a) the reliability of the manner in which the electronic record was generated, displayed, stored or communicated, (b) the reliability of the manner in which the integrity of the information was maintained (c) the manner in which its originator was identified, and (d) any other facts that the Court may consider relevant. REPUBLIC V ADJOA NYARKO & 2 ORS 7 There is a vacuum that exists between Exhibit ‘A’, and the rest of Exhibit ‘A’ series. In respect of Exhibit A series, the dates do not follow in sequence, and by virtue of the mode of the electronic evidence, having been so challenged no weight can be given to same, and shall therefore be given no weight. In her defence, the accused person testified that the complainant is her ex-boyfriend and the charges levelled against her are false. She testified that she believes that this allegation is intended to punish her because she has decided not to have anything to do with the complainant again. She testified that she had lived with the complainant for 3 years and he asked her to assist him in obtaining government contracts and so she told him that the only person she knows is Mr. Charles Kwame Damoah at Burmah Camp and for that matter, she gave out his number to complainant and he began to communicate with him. Under cross-examination at question 15, she responded that the complainant is Barima Nana Yaw Kissi . Q15 In paragraph 2 of your witness statement, you have stated that you know the complainant who used to be my boyfriend. Are you referring to Wofa Atta, @ Oteng or Barimah Nana Yaw Kissi? A I am referring to Barimah Nana Yaw Kissi. Her testimony is consistent with Exhibit D save for the name she is referring to. It is my humble view that the accused person has not been truthful to the court. In any case, if these names refer to two distinct persons, then Col. Damoah played a role in the events that unfolded as described by the prosecution. The accused person testified that she thereafter left for her hometown at Wenchi and lost her phone including her contacts. She testified that the complainant contacted her by a phone call that he wanted to send pictures of his work to help her convince Mr. Damoah for which she told him that she didn’t have a WhatsApp phone. He therefore sent GHC1200.00 to her for her to purchase a WhatsApp phone. She met the complainant at a funeral and based on what her friend told her about the complainant she stopped talking to him. She testified that the complainant through one of his boys called Nana REPUBLIC V ADJOA NYARKO & 2 ORS 8 Effah informed her that the complainant had intimated to him that he would not let her go free if she stopped seeing him and thereafter she was arrested with these false charges. She added that the complainant had been dealing with Mr Damoah directly. The name Nana Effah repeats itself in her testimony, just as in Exhibit ‘D’ In respect of Exhibit G which I have found as a fact to be the MTN momo statement of the accused person, the following dates are noted. 1. 28th June 2021 is a payment from account name Felix Quarco with phone number233557746168 to Regina Nyarko the sum of GHC2020.00 and a message- Nana Yaw Kissi. 2. 29/6/2021 is a is a payment from account name Felix Quarco with phone number 233557746168to Regina Nyarko the sum of GHC2300.00 and a message- Nana Yaw Kissi. 3. Other dates involving payments from Felix Quarco to Regina Nyarko with reference message Nana Yaw Kissi are as follows; a. 19/7/2021-GHC3740.00 b. 21/7/2021- GHC 1200.00 c. 2/8/2021- GHC3900.00 d. 3/8/2021- 1150.00 4. On the following dates, 6/7/2021, sums of GHC2500.00 and 1200.00 and GHC850.00 were sent to Regina Nyarko by sender; Eric Kwaku Adekplovi whose name was referred to by PW1 in his testimony. 5. On 7/7/2021, 12/7/2021, , 13/7/2021, 15/7/2021 and 16/7/2021, 21/7/2021 , 5/8/2021 the following sums were sent to the accused person by Eric Kwaku Adeplovi respectively, , GHC1200.00, GHC4300.00, GHC900.00 with GHC1300,00, GHC4200.00 , GHC900.00. GHC3900.00, GHC2800.00 with GHC750.00 The complainant has testified that his phone number is 233244364226. This has not been challenged or denied by the defence. On 23/7/2021, GHC450.00 was sent from the same REPUBLIC V ADJOA NYARKO & 2 ORS 9 number registered in the name of Nana Yaw Adofo Kissi, and further sums of GHC400.00, , GHC400.00, GHC500.00, GHC470.00, GHC1850.00, GHC6450,00 and GHC550.00 between July and August 2021 to the accused person. The following transpired during cross-examination of the accused person Q32 I put to you that Felix Quarcoo is the complainant’s worker? A I don’t know him. Q33 I put to you that the said GH¢2000.00 is on your MoMo records? A It is not true. Q34 On 29th June 2021, you received additional amount of GH¢2000.00 from Felix Quarcoo at the behest of PW1? A I don’t know him and never worked with him or had any transaction with him. Q35 Again on 1st July 2021, you received GH¢2700.00 at the behest of Thomas Osei? A I don’t know any of them all the names prosecution is mentioning, I don’t know them and don’t have any business transaction with them and I have not also asked them to pay any money to me in securing a job. Q36 I put to you that you received a total of GH¢129,000.00 through your MoMo number from complainant and his workers? A It is not true. Exhibit ‘G’ discloses further transfers and payment of monies by other persons and a reference of the transcation as ‘Nana Yaw Kissi’. I find as a fact that for the period June to August 2021 significant monetary transactions took place on the accused person's 1 REPUBLIC V ADJOA NYARKO & 2 ORS 0 momo account. What were these transactions for? Why was a reference of the transaction on the accused persons mobile money transaction history ‘Nana Yaw Kissi’ ? Notably, PW1 is referred to as Barima Nana Yaw Kissi. If those sums of money were wrongly sent to the accused person why did she not report the same to MTN mobile money? And was she only paid these sums to try to obtain a contract from Charles Damoah? I find as a fact that payments were made to the accused person on her phone number with momo account 233244945989. What explanation has she given, one that would be reasonably probable as a defence? The accused person testified that it was only GHC1200.00 that was sent to her by Momo from the complainant. Yet under cross-examination, at question 30, she admitted that a further GHC2000.00 was received from the complainant. She responded as follows; Q. 30 You will agree with me that certain payments were made onto your MTN 0244945989, by PW1 and his worker? A It is not true. What happened was that the complainant was my boyfriend and I lost my phone at his place of abode. Something happened when I was with him and I made my mind to record what happened. He acted smartly and took my phone, when it happened that my phone had gotten missing or lost, three days later he sent me GH¢1000.00 and later sent another GH¢2000.00 so I can purchase the phone. By this response, the accused person has certainly received more than GHC1200.00 in her testimony and cautioned statement. In her defence, the accused person testified that her phone got lost. That notwithstanding, her phone number continued to belong to her. If she did not use that number, or if it was inactive, the burden is hers to raise reasonable doubt, distinct from fanciful doubt by leading some form of evidence of that. I find as a fact that the complainant parted with sums of money by himself and through others using MTN mobile money, and it was not limited to GHC1200.00 claimed by the accused person. 1 REPUBLIC V ADJOA NYARKO & 2 ORS 1 I have considered the entire evidence including the various sums of monies paid over the period to the accused person's MTN momo account which is by basic arithmetic a minimum of GHC48,000.00. I find her defence that she did not collect the funds reasonably improbable and that the funds were rather for the recruitment of persons with for GRA hence the sums and consistency in the payments over the period. Her defence that the complainant only wanted her assistance with contracts is not reasonably probable. I find as a fact that the accused person made a representation to the complainant, Barima Nana Yaw Kissi that she would convince one Colonel Damoah to assist him get jobs for qualified persons. And based on this assurance, these sums of money were paid to the accused person. Based on the amounts parted by the complainant to the accused person which cannot be explained, and the evidence on record, I find the representation made by the accused person was false. The prosecution must further prove that the accused person had an intention to defraud complainant. This may be proved by the statements of the accused person or his/her conduct. Certainly, the law does not rule out innocent intention on the part of the accused person who makes the false representation. From the evidence led, the accused person suggested Col. Damoah could help the complainant and she admitted that she gave the accused person Col. Damoah’s phone contact. How then did she end up receiving several huge sums of money from the complainant, which purpose cannot be explained or accounted for during that period of June 2021 to August 2021? Exhibit ‘D’ discloses that the said Charles Damoah is an ex- boyfriend to accused person. It is my humble view that the accused person knew that the said Charles Damoah did not have the capacity to recruit officers or deliver jobs. The testimony of the accused person does not constitute a defence and does not raise reasonable doubt, distinct from fanciful projections of a defence. I find the presence of agreement with Charles Damoah proved on the charge of conspiracy, and find the 1 REPUBLIC V ADJOA NYARKO & 2 ORS 2 accused person is guilty. I find the charge of Defrauding by False pretence has been proved beyond reasonable doubt. The accused person is guilty on counts one and two and convicted on both counts. PRE-SENTENCING After conducting a pre-sentencing hearing, and guided by the decisions in Kingsley Amankwah a.k.a Spider v The Republic (2021) DLSC 10793 at pages 30-33, per his Lordship Dotse JSC. relying on Banahene v Republic (2017-2018) SCGLR 606 in determining the length of a sentence and Kwashie v The Republic 1971 1 GLR . In Frimpong alias Iboman v The Republic [2012] 1 SCGLR 297, headnote (8), the Supreme Court affirmed the principles for imposing sentences upon a convicted person, namely in determining the length of sentence, the factors which should be considered by the trial judge were:- “(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the court found an offence to be grave, it must not only impose a punitive sentence, the good record of the accused would be irrelevant. I have also given due regard to Ghana Sentencing Guidelines. The maximum punishment for defrauding by false pretences is 25years imprisonment under section 296(5) of the Criminal Procedure Act, 1960, Act 30. I have considered the social background of the accused person. She is a first offender, it took a full trial to convict her. I have considered the prayer of the prosecution for a deterrent sentence, regarding 1 REPUBLIC V ADJOA NYARKO & 2 ORS 3 illegal acts of recruitment into the security service. I balance these factors, and as the accused person is a first offender, sentence her as follows: Count one – The accused person is sentenced to five (5) years imprisonment with Hard labour effective today Count two- the accused person is sentenced to five (5) years Imprisonment with hard Labour effective today. It is also ordered that the monies collected from the complainant, Barima Nana Yaw Kissi, be paid back to him within one month of this judgment. Both sentences are to run concurrently. The accused person has the right to appeal against the conviction and/or the sentence. …………SGD……………………. H/L Ellen Ofei-Ayeh( Mrs) (Justice of the High Court) 1 REPUBLIC V ADJOA NYARKO & 2 ORS 4