S v Frempong (B8/01/2024) [2025] GHADC 235 (5 June 2025)

IN THE DISTRICT COURT B, SITTING AT KOFORIDUA ON THURSDAY THE 5TH DAYOFJUNE, 2025,BEFOREHERWORSHIPYVONNENELLYAMAADJADI. CC. NO. B8/01/2024 TIME:10:28HRS THE REPUBLIC V. GODFREDODUROFREMPONG Parties:Accused PersonPresent. ComplainantAbsent. JUDGMENT The Accused person was arraigned before this Court differently constituted on 14th December, 2023, charged with the offence of forgery of other documents contrary to Section159(a) ofThe Criminal OffencesAct, 1960(Act 29). He pleaded not guilty and setinto motion theproceedings whichhaveled to this day. In the case of The Republic vs. Stephen Opuni & 2Ors(H2/25/2023) [2023] GHACA 120 (3 July 2023) the Court of Appeal ruled, and this ruling was affirmed by the Supreme Court that a criminal trial must not be started de novo at all cost. The trial judge has a discretion to either adopt or not to adopt proceedings for continuation, depending on the nature and status the case has reached and the peculiar circumstances of the case. On the authority of that case, proceedings were adopted on the 6th of February, 2025 since the case had travelled to the stage where the Accused Person was set to open his defence after filing his witness statement when I became thepresiding magistrateinthis court. Case of the Prosecution The facts ofthe case and prosecution’scase can be summed upas follow: 1|Page The Complainant in this matter, Dr. Osei Poku had been insuring the vehicles of Boafo Herbal Center of which he is the Chief Executive Officer with Vanguard Assurance Company Limited. This he did through the Accused Person who is an insurance agent of Vanguard Assurance. In November 2016, the Accused person allegedly insured vehicle with registration number ER 729-16 and is said to have issued the transport officer of Boafo Herbal Center Edward Osei, with a Vanguard Assurance Company Limited sticker with the serial number 4535497 which was set toexpire on7thNovember,2017. As fate would have it, on 19th January, 2017 the vehicle in question was involved in an accident. The sticker turned out to be fake when the accident victim sought to claim compensationfromVanguardAssurance CompanyLimited. Defence of the Accused: The Accused admitted that from 2010 to 2017, he was the insurance agent who worked on the fleet of cars owned by the Complainant’s company.His case is that he issued a sticker to the complainant on 7th November, 2016 for the vehicle with registration number ER 729-16. However, the complainant did not make payment as promised so he was not issued with a receipt and insurance certificate for the transaction. As a result, the transaction was not captured in Vanguard Assurance’s system. Prosecution called onfour witnesses tobuild their case against theAccused Person. 1. PW1, Dr. Osei Poku’s testimony was not different from the narration of the factsofthe case. 2. PW2, Edward Osei testified that he went to the Accused Person to insure the vehicle with registration number ER 729-16 and was issued a sticker with serial number4535497by the accused person. 3. PW3, Eunice Boateng’s testimony hinged on the fact that she shared office space with the Accused person and was present when the transport officer EdwardOseicame toinsure the vehicle atthe centerofthis insurance fiasco. 2|Page 4. PW4, Wetse Ebenezer testified that he was a former employee of Vanguard Assurance and was not the one who issued the sticker at the heart of this forgery. 5. PW5, No.46318 D/CPL Evans D. Tettey, testimony was based on his investigationsinto the matter. The Prosecutionrelied onthe following exhibits: ExhibitA-charged cautioned statement ofaccused person Exhibit B-investigationcautioned statementofaccused person Exhibit C-letter fromvanguard assurance Exhibit D-photocopyofinsurance sticker allegedlyforged by accused person Exhibit E-letterrequesting assistance frompolice to VanguardAssurance TheAccused testified onhis own behalfand did notcall anyotherwitness. TheLaw onEvidence Section 11(1) of the Evidence Act, 1975 (Act 323) states that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him onthe issue. In the same Act, section 11(2) states that 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 could find the existence of the fact beyond a reasonable doubt. In the case of Commissionerof Police vrsIsaac Antwi [1961]GLR 408Korsah CJ stated that: “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the 3|Page accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt asto his guilt, he must be acquitted”. Section 11(3) states that in a criminal action the burden of producing evidence when it is on the accused as to any fact the converse of which is essential to guilt, it requires the accused to produce sufficient evidence so that on all the evidence, a reasonable mind could haveareasonable doubtas toguilt. Section 13(1) provides that in any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. In Banousin v. The Republic [2014] GHASC 10 (18th March 2014), it was decided discharging this burden of persuasion is a serious business and should not be taken lightly. What beyond reasonable doubt means is that the prosecution must overcome all reasonable inferences favouring innocence of the accused. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond areasonable doubt canthus be formulated: “An accused person in a criminal trial or action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt, he is entitled to a verdict of not guilty”. The above is in relation to Article 19(2) (c) of the 1992 Constitution which says an accused personis presumed tobe innocent until he is proved or haspleaded guilty. Section 13(2) states that except as provided in Section 15(3), in a criminal action the burden of persuasion when on the accused as to any fact the converse of which is essential toguilt, requires onlythe accused to raise areasonable doubtas toguilt. Section (15) provides that unless and until the burden of persuasion is shifted, a party claiming that a person is guilty of crime or wrong doing has the burden of persuasiononthatissue. 4|Page ANALYSIS The Accused Person was charged with the offence of forgery of other documents according tosection159(a) ofAct 29.Section159stated in full reads: “Apersoncommits amisdemeanor who forgesadocument, (a) Withintent todefraud orinjure anotherperson,or (b) Withintent toevade therequirements ofthe law,or (c) Withintent tocommit, or tofacilitate thecommission ofacriminaloffence.” For the purposes of this case, the focus will remain on the ingredient or element of this crime. Prosecution is required to prove in section 159(a) regarding the offence of forgerythe intent todefraud orinjure anotherperson. In the case of RABBLES v. THE STATE [1964] GLR 580-587, the Supreme Court held that “Mere falsification of a document does not constitute the crime of forgery. Under our Code, sections 159 and 164, falsification or alteration of a document can only constitute the offence of forgery if it is done with one or other of the intents mentioned in thesaid sections159 and164.The intent relied upon bytheprosecution in the present case as alleged in counts 1 and 2 is to defraud. Therefore, in order to convict the court must be satisfied beyond reasonable doubt that the object or purposewith which thealterationor falsification wasmade, is todefraud.” Before the Court establishes whether prosecution was able to discharge this burden placed on it by the laws of the land, there is the need to establish whether it was proven by the prosecution that the sticker allegedly issued by the Accused was forged by him. This will lead to the resolution of the issue at the crux of this matter, which is whether or not the sticker issued by the Accused person in respect of vehicle with registrationnumber ER729-16 wasforged byhim. The sticker itself was not tendered into evidence. A photocopy of it was admitted into evidence and marked as Exhibit D. On this Exhibit D, the words “NATIONAL 5|Page INSURANCE COMMISSION GHANA NIC” are within the darker outer circle. Within the lighter shade ofthe inner circle, fromthe topis theletters “VAC” which is followedby anexpiry date “7-11-20”which appearstobe handwrittenwithamarker. The vehicle registration number “ER 729- 16” also appears to be written by a marker. The final markonthe photocopied stickeris “S/No. 453549/BB”. It must be noted that, the Accused Person did not deny issuing the sticker at any point in time. What then was the basis of Prosecution’s claim that the sticker was forged? PW5 D/CPL Evans Tettey in paragraph 4 of his witness statement which was adoptedas his Evidence-in-Chief statedthus: “That the said insurance was detected to be fake and not captured in the System of Vanguard Assurance Company despite same being prepared by the said insurance agentsuspect Godfred OduroFrempong”. When PW5 CPL Evans Tettey was under cross-examination by the Accused Person, thefollowing exchange ensued onthe 9thday ofMay,2024: Q: So, in respect of this case when the complainant brought the sticker did you check to see if itwas fake or not? A: The sticker was accompanied with a letter from the insurance company which confirmed itwas fake. Ialso wrote tothe same companyfor confirmation. Q: That is not true because the letter accompanying the sticker did not state that it was fake. Iputittoyou. A: The letter suggested that the said sticker was not captured in their system so obviously you have issued them with aforgeddocument. Q: That is not true because the insurance company did not state that the sticker was fake. I putitto you. A: Itis nottrue. Wehave tendered adocumentas our exhibitand we canrefer to it. 6|Page The letter from Vanguard Assurance Company Limited which was referred to in the exchange reproduced above is Prosecution’s Exhibit C, which is a letter from Vanguard Assurance Company Limited, dated 27th September, 2023 and addressed to Raphael B. K. Aboagye Chambers. It was authored by Edem Gobah of the Claims Unit and had in copy Suleman Musah Esq., of Amoako Adjei Law Consult. The second paragraphreads: “We have information from our insured that at the time of the accident, (08/11/2016 -07/11/2017) he did not have insurance with us and so he had to personally pay the injured victim” Can the information above be construed to mean that the sticker was forged? It is the humble opinion ofthis court thatthe answertothis question, is no. The letter written to Vanguard Assurance by the Police during investigations was admitted into evidence as Exhibit E. It is dated 9th October, 2023 with the heading “REQUESTFORASSISTANCE”. Curiously, the prosecution did not deem it fit to tender the response to this letter from Vanguard Assurance if said letter is in existence, a letter which supposedly confirms that the sticker was forged according to the testimony of PW5 under oath. The allegation that the sticker was “fake” was repeated in paragraph 9 of the witness statement of PW1 who is also the complainant in this matter. No evidence was tendered through the witness to sway the burden of persuasion away from the Prosecution. The mere repetition of a fact does not make it conclusive evidence of same, see Hammondvrs. Odoi(1982/83) GLRat1215: “Where a party has pleaded facts but led no evidence in support of the facts, the facts merelypleaded cannot be the foundation for judgmentonthe merits”. Even though that case was a civil one, it is relevant because the stakes of proof in a criminalmatterare veryhighaspreviously discussed inthe preceding paragraphs. 7|Page For something to be declared fake, there should have been an original to compare it to. To make matters worse for the Prosecution, PW4, Wetse Ebenezer a former employee of Vanguard Assurance, who was an underwriter of insurance for the company at the end of his stay there, stated in paragraph 9 of his witness statement whichwasadopted ashis Evidence-in-Chief: “Upon my critical evaluation of the handwriting style on the said sticker, I realized same was issued from Vanguard Assurance Company at the Koforidua Driver and Vehicle Licensing Authority (DVLA)Agentoffice”. Pw4 was not called in as an expert witness by prosecution. He however testified about his experience as a former employee of Vanguard who knew how things should have transpired and sought to explain that once the transaction was not captured in the system, it was because the agent had not forwarded payment to the company. This the accused person rebutted by saying he was not paid for this transaction. The onus then shifted to prosecution to prove that money had exchanged hands. This burden they failed to discharge. The court places a lot of weight on this testimony coming from the prosecution’s own witness, regarding the authenticityofthe sticker in question. Althoughit is the opinion of the court that prosecution did not shift the needle of the burdenofpersuasion untothe accused person, it is necessaryto refertohis defence. By law, an accused person is not required to put up a defence. Having elected to do so, the Accused person filed a witness statement but did not present any exhibits to be tendered. His defence is summarized supra and the court will not rehash same. The defence has however produced reasonable doubt as to the guilt of the accused person to the mind ofthe court. 8|Page It is the view of this court, upon evaluating the totality of the evidence on record, and upon considering the testimony of prosecution’s witnesses and that of the accused and on the strength of RABBLES v. THE STATE cited earlier, the case of the prosecution fails because they could not establish that the sticker was forged by the accused person. There is no need to discuss whether the element of intent to defraud which is critical to this charge was proven by the prosecution because the charge itself was not proven beyond reasonable doubt. The court therefore acquits and dischargesthe accused person. H/WYVONNE NELLYAMA ADJADI MAGISTRATE 9|Page