REPUBLIC VRS ESSOUN (08/2023) [2024] GHACC 194 (30 January 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON TUESDAY 30TH DAY OF JANUARY, 2024 BEFORE H/H DORINDA SMITH ARTHUR, CIRCUIT COURT JUDGE. __________________________________________________________________ SUIT NO. 08/2023 THE REPUBLIC VRS BERNARD OKATAKYIRE ESSOUN JUDGMENT I. INTRODUCTION [1] The Accused person was arraigned before this Court for the offences of Defrauding by False Pretences and Fraudulent Land Transaction Contrary to Section131 of the Criminal Offences Act, Act 29, 1960 and Section 277(2)(a) of the Land Act, 2020 (Act 1036). [2] The accused person pleaded not guilty to the charges preferred against him for which reason the prosecution assumed the burden of proof and must prove the charges against the accused person beyond reasonable doubt in accordance with Section 11(2) of the Evidence Act 1975 NRCD 323 which states that; “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt.” Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. Page 1 of 16 See the case of Ampabeng vs. Republic [1977] 2 GLR 171 CA The prosecution in order to discharge the burden placed upon them called three witnesses and tendered in evidence twelve exhibits. II. THE PROSECUTION CASE [3] The summary of prosecution’s case is that one Samba Yahaya, the first complainant (PW1), a business man lives at Mempeasem a suburb of Cape Coast and Thompson Kingsley Collins (PW2), the second complainant is a military officer stationed at 37 military hospital, Accra, and PW3 is the police investigator D/Cpl Opoku Mensah. [4] PW1 together with PW2 and his uncle saw a parcel of land at Amamoma near UCC. The accused claimed to be the owner of the land and he requested for five to seven thousand per plot of land so he gave Twelve Thousand Cedis cash (Ghc12, 000) to the accused person in the presence of one Joseph Thompson. According to PW1 he wanted to buy four plots of land so when later he met accused at Cape Coast Teaching hospital, accused demanded for One Thousand Cedis and he gave the same to him making the money he paid to accused for the land to be Thirteen Thousand Cedis (Ghc 13,000). He said accused brought some document to him for his signature with the excuse that his relatives at Takoradi, Accra and Cape Coast have to sign before he can give out the land documents to him. PW1 continued that he did not hear from accused again but he went on the land and realised that the pillars on the land have been removed and new pillars mounted bearing different names. He was also informed that the family had installed a new head of family who will insist on his documents before he can have the land so he reported the matter to the police. Page 2 of 16 [5] PW2 was at Lebanon when his mother called and informed him about the land. Accused was living at his grandfather’s house and he used to call and give PW2 pressure about the land. PW2 expressed interest but asked accused to wait till his return to Ghana and if he cannot wait he can sell the land. Accused waited for PW2 to return to Ghana and together with PW2’s mother and uncle they went and inspected the four plots of land at Amamoma. PW2 gave accused Twelve Thousand Ghana Cedis (Ghc 12,000) cash in the presence of PW1, and his uncle Joseph Thompson. Accused brought some land documents for PW2 to sign in September 2017 which he did and accused was also given Ghc 500 to enable accused reach his family members who are at Takoradi and Kumasi for their signatures. Accused could not be traced thereafter until on 18/09/2020, PW2’s mother called him on phone that accused has been arrested and was at Bakano police station. PW3 tendered in evidence all the exhibits and added that accused was arrested on 18/09/2020 and he admitted the offence of defrauding by false pretense and voluntarily made a statement to that effect. III. DEFENCE [6] Accused person testified from the dock and stated that he is a draftsman and the land in question is his as he and his siblings bought it from Ebasie family of Amamoma. He said the family has three different lands at different places. He said he worked on two of the lands for the family so the family gave him four plots of land as his pay for the work he did. He continued that the family sold some of the lands to people and he bought some with his siblings from the family. According to him, during President Kuffour’s time, the university and surrounding towns had some misunderstanding and they informed the land and forestry minister. They went to see one Mr. Pobi who gave them a letter to be given to Dr. Odame Larbi and Dr Larbi instructed the government Page 3 of 16 surveyors to send him the inventory report. The report delayed so when it finally came, four of his land fell on the university land but the land in dispute is not part of the university lands. He said his elder brother died and the complainants said they do not want the lands anymore so he pleaded with them to give him some time to refund the money. He pleaded with the court to give him the chance to refund the monies to the complainants. He did not call a witness. IV. EVALUATION OF EVIDENCE, FINDING OF FACTS AND APPLICATION OF LAW 1. THE CHARGE OF DEFRAUDING BY FALSE PRETENCE [7] In Section131 of Act 29/60, the offence of defrauding by false pretence is a second- degree felony. The offence is defined in Section132 that: “a person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything”. And according to Section133 (1) of Act 29/60, false pretence means: “a representation of the existence of a state 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 an intent to defraud”. [8] Thus in the case of KUMA VRS THE REPUBLIC [1970] C.C. 113, the Court of Appeal stated the ingredients of the offence as: (a) that there was a misstatement or personation by the accused which in law amounts to a false pretence. (b) that the falsity of the pretence was known to the accused or accused had no belief in the truth of the representation he made Page 4 of 16 (c) that the accused thereby obtained the consent of another person to part with or transfer the ownership of anything, and (d) that the accused acted with intent to defraud. [9] So in order to ground a conviction prosecution is required to proof beyond reasonable doubt all the four ingredients of the crime of defrauding by false pretences and these will be determined together as they are intertwined. The first is for the court to determine whether there was a misstatement or personation by the accused which in law which amounts to a false pretence. [10] Here, prosecution is to lead cogent evidence to prove that accused made a statement to the complainants but that statement was false or that accused represented himself to the complainants that he was the owner of the parcel of lands and went ahead, collected monies from them and sold the lands to them. [11] Here, it is very important that the prosecution proves that the representation made by the accused is about or relates to an existing fact or state of facts but not a mere representation of any intention or state of mind or what will happen in the future. In R VRS ODOI [1942] 8 WACA 156 AT P.159 the test as to whether a representation relates to an existing state facts is laid down thus: “is any existing fact alleged as an inducement to part, such alleged existing fact being untrue to the knowledge of the accused?”. [12] In the Supreme Court of the Colony of Gambia case of CHIEF SUPERINTENDENT OF POLICE VRS CEESAY AND GOMEZ [1956] 2 WALR 87, the court laid down the principle that: “in a charge of defrauding by false pretences, the false pretence must be proved to be a false representation of an existing fact in order to support Page 5 of 16 conviction but it is settled principle of law that a false pretence as to an existing fact coupled with a promise to do something in the future or a statement of intention as to future conduct is sufficient”. [13] Here, PW1 and PW2 provided evidence that it was accused who made the representation to them that he and his family own the parcel of land at Amamoma. Accused negotiated with them, went with and showed the land to them, and upon such he collected in total Ghc 25,000 from PW1 and PW2 with additional Ghc 500 towards his transportation. [14] The prosecution also has the obligation to prove that the representation made by the accused of the existing state of facts is false. This is because an accused can only be convicted of false pretences when it is proved that he made the representation of the existence of a state of facts with knowledge at the time he made it that the representation was false or that he made the representation without belief in the truth. [15] According to prosecution witnesses, accused made oral representation to the complainants and that representation made has been proven to be false due to the search conducted on the land from the Lands Commission dated 10th August, 2022. From the search report, the land “falls within Government Land acquired with LS No. 19/72 dated 7th March, 1972 for University College of Cape Coast.” [16] From the date the university acquired the land, accused person could not have bought or acquired the same land from any person and the court can safely infer that he knew of the falsity of his representation when he made same to the complainants. He knew the land does not belong to him or his siblings that is why he refused to return the indenture to them. when they asked him for the site plan, he only showed it to them but refused to grant them copies. Page 6 of 16 [17] Also, he refused to give the site plans to them so that they cannot have any document for the search. The entire evidence with the exhibits shows clearly that accused acted with intent to defraud the complainants. Under cross examination the accused asked PW1 among others the following questions: Q. Why did you request for a site plan? A. I requested to find out if indeed you have a document covering the land. Q. Why did you use a copy of the site plan to conduct a search at Lands Commission? A. You gave me an indenture for us to sign and it was that indenture we took to Lands to conduct the search and that was when we got to know that the land in dispute is not for you. [18] The questions posed depict clearly that accused person is the very person who dealt with PW1 and that he was the one who gave a document to PW1 supposedly covering the land. [19] Prosecution tendered in evidence official receipts of “Supreme Edukor Architecture Engineering and Interior Furniture Consultant” for PW1 and PW2 given by accused person. The receipts are dated 01/07/2017 bearing the sum of Twelve Thousand Ghana Cedis each and issued to PW1 and PW2 with the description that the money received are part payment of four plots of land at Amamoma. [20] Prosecution also tendered in evidence two “Deed of Transfer” documents purporting to transfer plots of lands at Amamoma from Mr. Benneth Gyan Edukor and others to PW1 and PW2. These documents corroborated the evidence of prosecution to the effect that accsued person made representation to PW1 and PW2 that he and his Page 7 of 16 siblings owns plot of land at Amamoma and he sold four plots of land to PW1 and PW2. These documents leaves no doubt in the court’s mind that the accused made representation to PW1 and PW2 and those representation were false and accused person knew at the time he made such representation that they were false. Therefore, prosecution was able to prove the first and second elements of the offence of defrauding by false pretence. [21] I then move to the last element which says that accused through his representation obtained the consent of the complainants to part with or transfer the ownership of anything to him. Here, the accused person informed the complainants about the land and from PW2 he kept pressuring him to bring the money but PW2 told him to wait till he returns from peace keeping at Lebanon. He showed them the land, showed them a site plan, and was able to convince them. Accused person thereby obtained the consent of the complainants to part with Ghc 25,000 for the purchase of four plots of land for him and even had Ghc 500 extra from PW2 to enable him send the documents to his family members at Takoradi and Kumasi to sign the documents for them. This evidence is corroborated by the official receipts and the deed of transfer accused person gave to PW1 and PW2 as stated above. Under cross examination accused asked PW2 among others the following questions: Q. I suggest to you that after collecting the money from you, I gave you the land. A. The land you showed me does not belong to you. You refused to return the indenture I had signed with my witness to me and I never saw you again. Q. How much was agreed on for a plot of land. A. Each plot was for Ghc 6000. Page 8 of 16 Q. How many plots of land did you buy from me? A. I bought two plots of land from you. Q. How many plots did you tell me you wanted? A. I expressed interest for two plots of land and I paid for them. Q. Your answer that you bought two plots of land is not true as you requested for 4 plots, 2 for you and 2 for your brother. A. I expressed interest for 2 plots and I paid for 2 plots. My brother also expressed interest in 2 plots himself. The above excerpts show clearly that accused person collected money from PW2 and the money was for plots of land he was selling to PW2. [22] The next element is whether accused had the intention to defraud the complainants when he sold the lands to them and collected the monies. Intent generally refers to the mental aspect behind an action. The concept of intent is often the focal point of Criminal Law and is generally shown by circumstantial evidence such as the acts or knowledge of the accused. The learned author P.K. Twumasi in his book Criminal Law in Ghana- p77 stated that: “The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common law which has been accepted as an important principle of our criminal law.” Page 9 of 16 [23] Here, the intention of accused person can only be inferred from proven facts that he thought of an idea, planned how to carry out that idea, and he carried out what he thought and planned. From the evidence of prosecution, accused informed PW1 that he is the owner of a parcel of land at Amamoma. He also informed the mother of PW2 and he spoke with PW2 concerning the same. He pressured PW2 for the money and PW2 told him to wait for him to return from his peace keeping at Lebanon or that he can sell the land. He waited for PW2 to return, went with PW1 and PW2 to the land with other relatives, showed them the land, negotiated with them for the price of the land and collected the monies from them. All these facts are proven that accused thought of selling the lands he does not owe and he carried out his thoughts. The only conclusion the court can arrive at is that accused acted with intend to defraud PW1 and PW2 and this could be inferred from the proven facts. [24] Flowing from the evidence, the court can safely infer that accused through his false representation was able to obtain consent from PW1 and PW2 to give him Ghc 25,500 and that he had the intention to defraud the complainants and he carried out his fraudulent intention. Thus prosecution was able to prove all the elements of defrauding by false pretence against accused person beyond reasonable doubt. Having so determined, I turn to the charge of fraudulent land transaction. 2. THE CHARGE OF FRAUDULENT LAND TRANSACTION [25] The offence of Fraudulent Land Transaction contrary to Section 277(2)(a) of the Land Act 2020 (Act 1036) provides that: A person who (a) purports to make a grant of land to which that person has no title, Page 10 of 16 commits an offence and is liable on summary conviction to a fine of not less than seven thousand five hundred penalty units and not more than fifteen thousand penalty units or to a term of imprisonment of not less than seven years and not more than fifteen years or to both. [26] From the section above, prosecution will have to prove that accused purported to grant the complainants land which he has no title. Thus the elements to be proven beyond reasonable doubts are: 1) That accused person purports to make a grant of land to the complainants. 2) That accused person has no title to the land. [27] These elements have already been proven from the first charge same will be reiterated. The first element is that accused person purports to make a grant of land to the complainants. Here, prosecution testified that accused person showed a parcel of land to the complainants and tendered in evidence photocopies of the land. The photographs also show the pillars placed on the land, which have been removed and new ones mounted. [28] Also, prosecution tendered in evidence the transfer of deed document that accused person gave to the complainants. These exhibits show clearly that accused purported to sell the land at Amamoma to the complainants. Therefore, the court can safely infer that that accused through his actions of showing the land to the complainants, negotiating with them for the price of the land, collecting the monies from the complainants, giving them receipts covering the transaction, and giving them a deed of transfer purported to sell the land to the complainants. [29] The next element is for prosecution to lead cogent evidence to show that accused person does not have title to the land. This is proven as the search from the Land Page 11 of 16 Commission show that the land does not belong to the accused person or his family but rather the Government of Ghana for the University College of Cape Coast now, the University of Cape Coast. Hence, prosecution was able to satisfy the court with credible corroborative evidence that the land does not belong to accused person and as such he does not have title to the land. [30] From the evidence of prosecution, the court finds as a fact that accused person used pretences to collect so much money from PW1 for the alleged fetish priest who happened to accused person himself and also under the pretence of marrying the complainant collected extra money from her which he did not refund. Therefore, prosecution was able to prove sufficiently all the ingredients of defrauding by false pretence and fraudulent land transaction against accused person beyond reasonable doubt. [31] In TSATSU TSIKTA V. THE REPUBLIC [2003-2005] 1 GLR 296, the court held that “the standard of proof of the prosecution must be attained at the close of its case in order to warrant an accused person to be called upon to make a defence was not proof beyond reasonable doubt because that was the ultimate burden that the prosecution assume in the entire case. [32] This burden of introducing evidence was shifted to the accused person when he was called to open his defence or to raise a reasonable doubt and this is emphatically covered under Section 17 of the Evidence Act NRCD 323. See also COMMISSIONER OF POLICE VRS ANTWI (1961) GLR 408. [33] Moreover in the case of ALI YUSIF ISSA (NO.2) VRS THE REPUBLIC [2003- 2004] SCGLR 174 where it was held that; “…even though an accused person was not required to prove his innocence during the course of the trial he might risk of non- Page 12 of 16 production of evidence and or non-persuasion to the required degree of belief particularly when he was called upon to open his defence.” [34] In LUTERRODT V COMMISSIONER OF POLICE [1963] 2 GLR 429, the court held that “where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court shall proceed to examine the case for the defence in three stages: 1. If the explanation of the defence is acceptable, then the accused should be acquitted. 2. If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, it is should find it to be, the court should acquit the defendant and 3. Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case i.e prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not it should acquit.” [35] Moreover, Section 13 of NRCD 323 enjoins the accused person to only raise doubt concerning the case of the prosecution. Subsection 2 of the said section provides as follows: Except as provided in section 15 (3), in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt. Page 13 of 16 Did accused person create doubts in prosecution’s case? [36] Accused person testified from the dock so he was cross examined. He state that, he and his siblings bought it from Ebasie family of Amamoma. He said the family has three different lands at different places. He said he worked on two of the lands for the family so the family gave him four plots of land as his pay for the work he did. [37] Here, accused person did not tender in evidence any document that was allegedly given to him by the said family he acquired the land from and he did not call any witness to corroborate his assertions. Because accused testified from the dock, he denied prosecution from finding out from him through cross examination the correctness or otherwise of his assertions. [38] He also mentioned that when the government surveyors brought the inventory, part of his land fell on the university land but the land in question did not fall on the side of the university. His evidence is not supported by the search document on record as the land he sold to the complainants belongs to the university. The court thereby cannot put much weight on the evidence of the accused as it lacks credibility considering the evidence so led and the proven facts on record. [39] I have considered accused person’s caution statement, charged statement and testimony and find that accused person failed to discharge the burden of persuasion placed on him and he was not able to raise a reasonable doubt as to his guilt as required of him under Section 13(2) and 14 of NRCD 323 supra. Page 14 of 16 V. DISPOSITION [40] I have considered the totality of the evidence adduced by the defence and prosecution and I am satisfied that the prosecution proved beyond reasonable doubt the charges of defrauding by false pretences and fraudulent land transaction against accused person. I hereby find accused person guilty for the offences of Defrauding by False Pretences and Fraudulent Land Transaction Contrary to Sections 131 of Act 29/1960 and 277(2)(a) of the Land Act, 2020 (Act 1036) and convict him. V1. PRE SENTENCING HEARING [41] I have considered the totality of the evidence of how accused fraudulently collected monies from the complainants. He took advantage of his close association with the complainants as being their grandfather tenant to defraud them. I have also noted that accused person is a first time offender even though he has other criminal cases before the court regarding similar charges. I have also noted that accused person has not refunded any of the money he took from the complainants. [42] I hereby sentence accused person for the first charge – defrauding by false pretences – to five years IHL and for the second charge – fraudulent land transaction- accused is sentenced to pay a fine of Eight Thousand (8000) Penalty Units in default serve Eight Years IHL. Sentence to run concurrently. Accused is also ordered to refund to the complainant the amount of Ghc 25,500. Page 15 of 16 H/H DORINDA SMITH ARTHUR. CIRCUIT COURT JUDGE ACCUSED PERSON PRESENT. PROSECUTOR: C/INSP. SAMUEL AMOAKO PRESENT. Page 16 of 16