REPUBLIC VRS YIDANA (18/2020) [2024] GHACC 105 (13 February 2024)

IN THE CIRCUIT COURT HELD AT TECHIMAN ON TUESDAY 13TH FEBRUARY, 2024 BEFORE H/H SAMUEL DJANIE KOTEY ESQ. SITTING AS A CIRCUIT COURT JUDGE CC: 18/2020 THE REPUBLIC VRS ISSAH YIDANA JUDGMENT The accused person is facing a charge of defrauding by false pretences contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). When the charges were read and interpreted to the accused person in his chosen language, he pleaded not guilty. According to the alleged facts of the case narrated by the prosecution at the trial, accused person is a businessman who resides at Mamprusi-line here in Techiman. It is alleged that the accused heard that the complainant had expressed his desire to travel abroad in search of greener pastures so he approached the complainant and offered to help him achieve his dream. According to the prosecution, the accused demanded an amount of Ghc 25,000.00 from the complainant to enable him secure a visa to travel to Singapore. Complainant is said to have duly paid the said sum to the accused. It is alleged by the prosecution that the accused had promised the complainant that he will be able to secure the Singaporean visa for him to travel on. The prosecution maintains that the accused failed to deliver on this promise to the complainant after receiving the money he demanded from the complainant to enable him deliver on that promise. Because the accused is said to have failed to fulfil his promise to the complainant, he was arrested and charged before the court for the offence earlier stated. As I have already revealed, the accused did not accept culpability and denied committing the offence. Under the Evidential laws of Ghana when a criminal charge is brought against a person and he or she pleads not guilty, the prosecution becomes burdened with the responsibility of proving to the court by way of evidence that the accused person is guilty or that the accused has committed the offence as they allege. The language of section 11(3) of the EVIDENCE ACT, 1975 (NRCD 323) is very unambiguous. It provides that the person alleging the commission of a crime is the one that carries the burden of proving that allegation. Since it is the prosecution that is alleging that the accused has committed the crime, it is his burden to prove that to the satisfaction of the law. To achieve this, the evidence that the prosecution has presented before the court up till the date of this judgment must prove beyond reasonable doubt that the accused did commit the crime of defrauding the complainant by false pretences. The evidence from both prosecution and the accused will be evaluated by this court and measured up against the ingredients of the offence the accused has been charged with in order to determine whether those ingredients that make up the offence have been established by the prosecution. The evidence of the prosecution on each ingredient of the offence must rise above reasonable doubt. In other words, the evidence that the prosecution presents must prove that the accused did commit the offence beyond any doubt that can reasonably engage the mind of the court after considering the case of the prosecution vis-à-vis the defence put up by the accused person. You will find this in section 13(1) of the same NRCD 323. Ingredients of the offence From sections 132 and 133 of section of ACT 29 the prosecution has to show that: The accused person obtained the consent of the complainant to part with money; That the consent of the complainant was obtained through false pretences or personation by the accused. What constitutes false pretences has also been defined under section 133 of the same Act 29 to mean a false representation of facts with intent to defraud the complainant. Putting section 132 and 133 together to define the offence, the prosecution is required to prove by positive evidence that the accused person made a false representation of the existence of fact to the complainant which influenced the complainant to part with his money to the accused person. This is what constitutes the offence of defrauding by false pretences as charged. Evidence of the prosecution on the charge The prosecution invited the complainant in the case to come and testify. His evidence before the court was that the accused person offered to help him to travel abroad. He also told the court that the accused person told him that he will get the complainant to travel within two weeks and further assured him that if he is not able to deliver on that promise, he will refund any money he pays to him for the said journey. The complainant further testified that he paid the accused the sum of GHc 25,000.00 based on the assurances that the accused had given to him. According to the complainant, the accused has failed to get him to travel abroad as he promised. The second witness for the prosecution was Boahen Fosu Patrick Ibrahim. He told the court that he led the complainant to go and see the accused person. According to his accounts, when he met the accused person, he offered to help the complainant to travel abroad. The common expression that runs through the testimonies of both the complainant and the second witness for the prosecution was ‘help the complainant to travel abroad’. That is the expression that the prosecution wants to pin the accused down with. The prosecution contends that when the accused person told the complainant he could help him travel abroad, he (accused) did not believe in the truth of his own statement at the time he made it. It was also attributed to the accused that he promised to secure a travel visa for the complainant to travel outside the country. In the testimony of the complainant, the accused person went with him to get his medical examination conducted ostensibly in pursuit of the said travel. It was revealed under cross examination that the complainant’s passport got missing whiles arrangements were being made to get him the visa. The complainant said under cross examination that the he did not report the case of his missing passport to the police. Counsel for the accused person suggested that the failure by the complainant to report the missing passport to the police is the reason the accused was not able to fulfil his promise to help the complainant secure a visa to travel. The question remains whether or not the accused person made a false representation to the complainant regarding the complainant’s desire to travel abroad. Counsel further suggested to the complainant whiles cross examining him that it was agreed that if the accused is unable to assist the complainant travel overseas, then the money paid to him will be refunded to the complainant. The complainant agreed with the suggestion. In the evidence of the accused person, he did not promise to procure a visa for the complainant to travel. Rather, he led him to a travel agent to help him with his plans to travel to Singapore. According to the accused person, the complainant dealt directly with the said agent and even gave his passport to the said agent. He testified that the complainant was the one who came to inform him that the agent has informed him that his passport is missing. He admitted under cross examination that the complainant paid the money to him and he went with him to Accra and gave same to the travel agent. The first witness for the accused person was his wife. She told the court that when the complainant came to see the accused person in his house, she was present. She said that when the complainant had explained to him that he wanted to travel abroad, the accused gave him an agent’s number to call. She said that after the complainant had been given the number of the person, he stepped outside the room and spoke with the person on phone after which he returned to the accused in the room to ask him to escort him to Accra. The witness then told the court that the accused went with the complainant that evening to see the said agent in Accra. This witness admitted under cross examination that the complainant paid a total of Ghc 25,000.00 to the accused person. The evidence of the first witness for the accused was corroborated by the testimony of the 2nd witness for the accused person who also happens to be the son of the accused person. Evaluation of the evidence. As earlier stated, according to the complainant, the accused person promised to help him travel abroad. The expression of one’s desire to assist another person is pursuit of a dream should not ordinarily result or amount to false representation if that intention fails to materialize. In this case the accused person is said to back the expression with action. The actions by the accused said to have backed his expression are that he led the complainant to go for medical examination which is said to have been relevant for the travel. The accused person is also said to have also taken the passport of the complainant for the visa. Beyond that, the accused also received the sum of Ghc 25,000.00 from the complainant also as payment for the said help that the accused person intended to give to the complainant. With all these actions taken by the complainant in concert with the accused, it cannot be said that the accused merely offered to help the complainant. If the accused had just offered help to the complainant without the attendant actions as has been reported to the court and duly mentioned in this judgment, the court would not have been able to find that the accused had made a representation to the complainant that could land him in the trouble of false representation. Here, however, the attendant actions by the accused and the complainant with the concert of the accused meant that the accused meant and or intended to be understood by the complainant to mean that he was capable of delivering on that promise. If one offers to help another person and fails to provide that help, that will not result in false representation. However if that offer of help is the basis upon which the offeree (the person to whom the offer was made) undertakes some act which is detrimental to him and that act is beneficial to the offeror (the person who made the offer), then that offer for help becomes a promise the offeror is bound to deliver. The accused started off with an offer to help. However, he received some monies from the complainant because of that offer of help. He also received the passport of the complainant because it was necessary to deliver on that promise. The actions of the accused therefore cannot be determined by just the offer to help. The offer of help taken together with the other attendant actions by the complainant which inured to the benefit of the accused amounts to a representation made by the accused in terms of the law to the complainant. Whether or not the representation is false The representation that the accused is said to have made was that he could help the complainant to travel abroad. It is false because he was unable to deliver on that obligation or had no way of delivering on that obligation. Counsel for the accused insisted under cross examination of the complainant and the investigator that the reason the promise could not be delivered upon was because the complainant’s passport had gone missing and the process to acquire a new one was not taken by the complainant. He also makes a case based on the ignorance of the complainant to know that the accused was not a person who could have delivered on the promise to help him obtain a travel visa. To this last issue, the determination by the court, of the falsity of the representation is made having regards to the accused person and not the complainant. What it means is that an accused cannot take advantage of the foolishness or imbecility of a complainant to make him a promise which if it results in the complainant parting with money to him, turn around and claim that his promise was so unreal to be believed by any sane person. In other words, if an accused person promises heaven on earth to an imbecile who believes that promise and parts with his properties to the accused as a result of his lack of appreciation of the promise, that accused when caught and charged with defrauding by false pretences, cannot turn around and blame the condition of the accused as the cause of the offence. In the same way, if an accused person makes a promise to do something he cannot deliver upon to a complainant who believes him and parts with his money to the accused, the accused would be held to have falsely represented to the complainant and it would not matter that the promise made was not possible to deliver. This is the reason that in defining what amounts to a false representation in section 133 it was included that the facts represented by the accused person must either be known by him to be false when making it or that he made it without belief that it is true. The law does not impose a responsibility on the complainant to know better. In this case before me, the accused is not a travel and tour agent and does not work with a foreign embassy in Ghana as suggested by counsel for the accused, yet he offered to help the complainant secure a travel visa and on the basis of that promise, received the complainant’s passport and money. The complainant ordinarily ought to have known that the accused not being a travel and tour agent and not working with any foreign embassy in Ghana, cannot deliver on that obligation. But that ignorance is not a justification for the accused to escape with his false representation to the complainant. As I have already stated in this judgment, the determination of the falsity of the representation is based in the knowledge of the accused person and not on the ignorance of the complainant. From the foregoing, I have no doubts in my mind in coming to the conclusion that the accused made a false representation to the complainant that he could help him secure a visa to travel abroad. To the issue that the promise was not delivered upon because the complainant’s passport was missing and he had failed to take steps to procure another on; Counsel for the accused person insisted that the complainant ought to have made a report of the missing passport to the police so that he could have used the extract to apply for a new one. The accused person’s case was that the absence of complainant’s valid passport was the reason the promise was not delivered upon by the accused. In the evidence before me, however, the passport was in the custody of the accused when it got missing. The one who had custody of the passport when it got missing was the one who had the responsibility of going to report the case to the police not necessarily the holder of the passport. The person who had custody of the passport with the express permission of the passport holder had the responsibility to report the loss of it to the police. In this case, the accused was responsible for making the report and not necessarily the complainant. I am aware that the complainant being the holder of the passport can also make a report of his lost passport to the police but that can only be possible if the one who had custody of the passport has himself reported it to the police. The complainant is entitled to assume that the passport is with the accused person to whom he gave the passport. If the accused person who was entrusted with the passport, for some reason cannot account for it, then he must report to the police that he has lost something under his care. If he has failed to do that, he cannot expect the holder of the passport to run to the police to make a case that the passport he entrusted to the care of someone is gone missing in the hands of that person. That defence does not avail the accused person. There is no palpable defence from the accused for the offence he is found to have committed. The evidence from the prosecution without doubt shows that the accused person is guilty of the offence of defrauding by false pretences. The court finds from the evidence before it that the guilt of the accused person has been established beyond reasonable doubt. I find the accused person guilty of the offence of defrauding by false pretences. Accused person is hereby convicted of the offence as charged. SGD HH S.D. KOTEY