REPUBLIC VRS ABUBAKARI (UE/BLG/DC/B7/98/2020) [2024] GHADC 649 (9 December 2024)

*HWMNJ@DC/BLG-09/12/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON MONDAY, THE 9TH DAY OF DECEMBER, 2024 CASE NO: UE/BLG/DC/B7/98/2020 THE REPUBLIC VRS. AFIRUWA ABUBAKARI TIME: 09:02AM ACCUSED PERSON PRESENT INSP. BONIFACE DUVOR FOR INSP. BALIKI ISSAKA FOR THE REPUBLIC PRESENT MOHAMMED TIAMIYU, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT Introduction 1. The accused person was brought or arraigned before this court on the 22nd day of January, 2020 and charged for the offences of Fraudulent Breach of Trust and Issue of False Cheque contrary to sections 128 and 313A of the Criminal Offences Act, 1960 (Act 29) as amended. The accused person pleaded not guilty to the charges against her. 2. After the close of prosecution’s case, prima facie or sufficient case was not made against the accused person in respect of count one-Fraudulent Breach of Trust. Hence, she was acquitted and discharged in respect of count one. *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 1 of 15 *HWMNJ@DC/BLG-09/12/2024* However, there was a sufficient case or prima facie case against the accused person in respect of count two-Issue of False Cheque and she was called upon to open her defence accordingly. Facts of Prosecution’s Case 3. The facts of the case as presented to the court by the prosecution and attached to the charge sheet filed on 22/01/2020 is that the complainant, Lydia Abanga and accused person are business partners residing at estate and Atulbabisi in Bolgatanga respectively. Complainant deals in wholesale of provisions and other goods. During the month of April 2019, accused person who was one of the regular customers of the complainant informed the complainant that her uncle one Mohammed who is a contactor of school feeding program in Bolga had given her a contract to supply food stuffs to secondary schools in the Upper East Region and the schools will pay in two months after taking delivery of the food stuffs. Accused person managed to convince the complainant to supply the food stuffs to the schools through her. On 05/05/2019 accused person took delivery of 50 bags of sugar, 100 bags of rice, 50 bags of beans, 100 gallons of cooking oil, 20 bags of gari, 50 bags of bread flour valued GH₵112,000.00 from the complainant in the name of Sandema Senior High School. On 10/05/2019, accused person took another delivery of 50 bags of sugar, 100 bags of rice, 50 bags of beans, 100 gallons of cooking oil 20 bags of gari and 50 bags of bread flour valued GH₵112,000.00 from complainant in the name of St John Bosco College of Education, Navrongo. On 02/07/2019, accused person took delivery of 100 bags of rice, 100 bags of sugar, 50 bags of maize, 50 bags of millet, 50 bags of beans and 100 gallons of cooking oil valued GH₵131,000.00 from the complainant in the name of Fumbisi Senior HIGH making the total value of goods supplied to her as *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 2 of 15 *HWMNJ@DC/BLG-09/12/2024* GH₵355,000.00. On 25th December 2019, accused person issued a cheque of GH₵224,000.00 dated 06/01/2020 for the complainant to withdraw the money from Ghana Commercial Bank (GCB) Account number 9011180000130. Complainant deposited the cheque into her Nara Rural Bank Account number 4021220642041 to clear same but there was no money in the accused person’s account and a report was made to the police. On 14/01/2020, accused person was arrested. Accused person in her cautioned statement stated that one Mohammed who is supposed to pay the money had travelled to Dubai and subsequently gave cell phone number 02444022425 to police as the contact number of Mohammed. During the month of December 2019, the aforesaid schools paid cash the sum of GH₵355,000.00 being the total cost of the food stuffs supplied to the accused person. The accused person subsequently used the complainant’s money to establish a metal refinery business at Sokabisi a suburb of Bolga and did not travel to Dubai. On 22/01/2020, Fuad Musah Awuni whose name was mentioned to police by the accused person as “Mohammed” was also arrested and it was established that accused person only used Mohammed as a cover to dishonestly appropriate the complainant ‘s money and has no hand in how accused person spent the money. After investigation accused person was charged with the offence as per the charge sheet. Burden of Proof 4. The accused person herein pleaded not guilty to the charges against her; hence, the burden is on the prosecution to prove its case by admissible and credible evidence, every ingredient of the above stated offences beyond reasonable doubt. In the case of Republic vrs. Adu-Boahen and Another *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 3 of 15 *HWMNJ@DC/BLG-09/12/2024* (1993–94) 2 GLR 324 -342, the Supreme Court per Kpegah JSC, stated as follows: 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. Since no admissions are made or may be made, unlike civil cases, the prosecution, when a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt. Thus, it is the duty of the prosecution to prove the guilt of the accused person. Article 19 clause (2)(c) of the 1992 Constitution of Ghana provides that: “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.” The proof required is proof beyond reasonable doubt. The Evidence Act, 1975 (NRCD 323), outlines this in subsections 11(2) and 13(1) and Section 22 as follows: 11(2) “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 could find the existence of the fact beyond a reasonable doubt. 13(1) 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. *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 4 of 15 *HWMNJ@DC/BLG-09/12/2024* Section 22: In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt and thereupon in the case of a rebuttable presumption the accused need only raise a reasonable doubt as to the existence of the presumed fact”. 5. The Supreme Court in a unanimous decision in the case of Abdulai Fuseini v The Republic, reported in [2020] Crim LR, page 331 reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows:- “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means “proof of the essential ingredients of the offence charged and not mathematical proof.” Emphasis supplied 6. In the case of Miller Vrs Minister of Pensions [1947] 2 ALL ER 372 at 373 Lord Denning (as he then was) explained proof beyond reasonable doubt as follows: “It need not reach certainty but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of 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 *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 5 of 15 *HWMNJ@DC/BLG-09/12/2024* reasonable doubt, but nothing short of that will suffice.” Emphasis supplied 7. In the case of Dexter Eddie Johnson Vrs the Republic [2011] SCGLR 601 Dotse JSC discussed the principle of proof beyond reasonable doubt in some detail and cited the case of Woolmington Vrs DPP [1934] AC 462 where Lord Sankey made the following statement: “Throughout the web of the English Criminal Law, the golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt – if at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner – the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” See the case of: Commissioner of Police Vrs Isaac Antwi [1961] GLR 408 where the Woolmington principle was applied. 8. See also the following cases on the burden of proof in criminal cases: Frimpong @Iboman v The Republic [2012] 1 SCGLR 297, Gligah & Anr v The Republic [2010] SCGLR 870, Tetteh v The Republic [2001-2002] SCGLR 854, Francis Yirenkyi v Republic [2017-2020] 1 SCGLR 433 at 457 and 464-466, just to mention a few. The Ingredients of the Offence of Issue of False Cheque, Evaluation of Evidence and Legal Analysis *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 6 of 15 *HWMNJ@DC/BLG-09/12/2024* 9. Section 313A(1) of the Criminal Offences Act, 1960, Act 29) provides that: 313A. Issue of false cheque (1) A person who ….. (b) issues a cheque in respect of an account with a bank when that person does not have a reasonable ground, the proof of which lies on that person, to believe that there are funds or adequate funds in the account to pay the amount specified on the cheque within the normal course of banking business, or (c) with intent to defraud stops or countermands a cheque previously issued by that person, commits a criminal offence and is liable to a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment; not exceeding twelve months or to both the fine and the imprisonment, and in the case of a subsequent criminal offence to a fine not exceeding one thousand penalty units or to a term of imprisonment not exceeding five years. (2) A person shall not be convicted of a criminal offence by virtue of subsection (1) (b) in respect of a cheque which is presented for payment later than three months after the date specified on the cheque for payment. (3) Where a person is convicted of a criminal offence by virtue of subsection (1) (c), the Court may, if satisfied that there are adequate funds in the account of that person in respect of which the cheque in question was issued to meet the amount specified on the cheque, order the bank in question to honour the cheque, and a bank complying with the order is not liable to a claim in respect of that act. (4) In this section, (a) the words “cheque” and “issue” have the meaning respectively assigned to them in sections 72 and 97 of the Bills of Exchange Act, 1961 (Act 55); (b) a reference to the issue of a cheque includes a reference to the issue of a cheque to the Republic. *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 7 of 15 *HWMNJ@DC/BLG-09/12/2024* 10. From the above provision, the elements that the prosecution must prove in order succeed in this case are that: (a) a cheque was issued to the complainant by the accused person, (b) the cheque was presented at the date written on the cheque or anytime shortly thereafter during the normal banking business and (c) the cheque was not honoured or cleared upon presentation due to lack of sufficient funds. 11. In the instant case, the prosecution in an attempt to prove its case called three witnesses. It is the prosecution case that on or about 22nd day of December, 2019 the complainant issued a Ghana Commercial Bank cheque No. 000026 for an amount ofGHc224,000.00 to be withdrawn by the complainant on 06/01/2020 when she had no grounds to believe that she had adequate funds in her account to the amount specified on the cheque within the normal course of banking business. 12. PW1- Fuad Mensah Awuni Evidence of PW1 is basically in support of count one-Fraudulent Breach of Trust for which Prosecution was unable to establish its elements whereupon the accused was acquitted and discharged. 13. PW2-D/Inspector Eric Negble testified among others that investigation revealed that accused person issued a Ghana Commercial Bank (GCB) cheque number 000026 for an amount of GH₵224,000.00 to be withdrawn by the complainant on 06/01/2020 but the cheque could not go through due to insufficient money in her account number 9011180000130. He tendered in evidence the Caution Statement of the accused person, Further Caution Statement of the Accused person and Charged Statements of the Accused person are admitted in evidence as Exhibits A, B and C and C1 respectively. *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 8 of 15 *HWMNJ@DC/BLG-09/12/2024* The Invoices for Supply of Goods are admitted in evidence as Exhibit D series (D, D 1 and D2), Photographs of the Cheque Issued and accused person standing in front of her alleged a metal refinery business as well as raw materials are admitted in evidence as Exhibit E series (E, E1 and E2 respectively). 14. PW3- Lydia Abanga testified in respect of issue of False Cheque that on 06/10/2020 she collected a Ghana Commercial Bank Cheque from accused person to cash an amount of GH₵224,000.00. She stated that she deposited the cheque in her account number 1220000643041 at Naara Rural Bank on the 06/01/2020 which is supposed to be cleared in three days but the cheque was dishonest for lack of sufficient fund in accused person’s account. 15. The prosecution witnesses maintained during cross examination by the counsel for accused person that the accused person issued a False Cheque to the complainant. 16. Upon the close of prosecution’s case the court found that there was a prima facie or sufficient case against the accused person in respect of count 2- Issue of False Cheque for her to be called upon to open her Defence. The court therefore called on the accused to make a defence and reminded the accused of the charge against her. The court also informed the accused of her right to give evidence personally on oath or to make a statement. It must be noted that at this juncture, the duty of the accused person is not to prove her innocence but to raise a reasonable doubt concerning her guilt. Sections 11(3) and 13(2) of the Evidence Act 1975, (NRCD 323) provides as follows: “Section 11(3) 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 *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 9 of 15 *HWMNJ@DC/BLG-09/12/2024* 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. Section 13(2) 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.” See also the case of Woolmington vrs. Director of Public Prosecutions [1935] AC 462 at 481, where Sankey LC noted in as follows: …while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the Prisoner to prove his innocence, and it is sufficient for him to raise a doubt as to his guilt; he is not to satisfy the jury of his innocence. 17. Also, this court is mandated to examine the defence or explanation of the accused in three stages or apply what is usually referred to as the “three tier test” principle. Thus in the Republic vs. Francis Ike Uyanwune [2012]DLCA8143, Dennis Adjei, J.A.: The accused person must give evidence if prima facie case is established else he may be convicted and if he opens his defence the court is required to satisfy itself that the explanation of the accused person is either acceptable or not. If it is acceptable the accused person should be acquitted and if it is not acceptable the court should probe further to see if it is reasonably probable. If it is reasonably probable, the *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 10 of 15 *HWMNJ@DC/BLG-09/12/2024* accused person should be acquitted but if it is not and the court is satisfied that in considering the entire evidence on record the accused person is guilty of the offence, the court must convict him. This test is what is usually, referred to as ‘three tier test’. See also the case of Lutterodt vs. Commissioner of Police [1963]2 GLR 429. 18. The accused person in her evidence in chief on 7th October, 2024 testified in relation to the issue of false cheque as follows: “…. All these while, the complainant was under arrest and this was part of her bail conditions. In order to fulfill this condition for complainant to get her liberty, the complainant with the tacit support of the Police Commander at the time, convinced me to issue the cheque for them to be sure that if we are paid the complainant would pay Uniliver. On the same day, I had to travel to the mining site at Gbane to look for some machine to buy so I directed Fuad Musah Awuni (PW1) who was very close friend to my husband to go and get my cheque book from my daughter (son) from my room. PW1 went to my daughter (son), picked the cheque book and wrote the cheque in his own handwriting which was shown to Uniliver Company limited because it was an arranged thing just to let the complainant get her liberty at the material time, all of us knew it was not supposed to be presented at that time. Having attained her liberty, the complainant subsequently travelled to Nigeria and when I called to tell her that the money was paid, she said I should keep the cheque which was used to pay us for the goods supplied till she returns from Nigeria. I suggested to the complainant to let us use the money to do another business which did not turn out well hence my indebtedness to her. I did not issue any false cheque, what the complainant is using against me now she pleaded with me to issue in order to secure her bail and the fact that I did not write the cheque attest to the fact that it was an arranged thing and both Complainant and PW1 are part of the plan as accomplices.” *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 11 of 15 *HWMNJ@DC/BLG-09/12/2024* 19. Also, the accused person stated in her Charged Statement she gave to the police on 20th January 2020 (Exhibit B) as follows “I invested the complainant’s money into a business at Yikene. I used to buy scraps and I bought a machine which refines the scraps into something called harmer. The harmer is used by gold miners. I cannot remember the exact cost of the refinery machine because I bought separate machines which were later join together to make complete machine. My profit target is (was) GHC10,000.00 but I have not commenced business. I issued the cheque to the complainant to withdraw GHC224,000 from GCB account on 06/01/2020 because I thought I will get my daily profit target of GHC10,000.00 which I will deposit into the bank account for her (complainant) to withdraw. I am pleading with the police to give me one month for me to work and pay the complainant.” 20. The main thrust of the explanation regarding the cheque in her evidence in chief is that she issued the cheque for the complainant to be granted bail. But from the evidence on record, nothing shows the complainant was arrested by police and was in police custody. 21. Also, in Exhibit B, she claims she issued the cheque based on her targeted or projected profit from a business she had not commenced. Assuming without admitting that accused issued the cheque based on her targeted profits, this court is of the view that accused person after not meeting her profits targets should have communicated to the complainant not to present the cheque but nothing in the explanation of the accused shows she did that. 22. Be that as it may, there is a clear contradiction between the Accused person’s charged statement dated 20th January 2020 (Exhibit B) as well as Accused evidence or statement in court. Thus in her Charged Statement she claims she *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 12 of 15 *HWMNJ@DC/BLG-09/12/2024* issued the cheque to the complainant to withdraw GHC224,000 from GCB account on 06/01/2020 because she thought she would get her daily profit target of Gc10,000.00. However, in her evidence in chief she claims the cheque was issued by PW1 on her behalf in order to for the complainant to be admitted to bail. Under section 80 of the Evidence Act, 1975 (NRCD 323), matters which the court may take into consideration in determining the credibility of a witness include a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial. The law is well settled that a person whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit. Thus, in the case of Odupong v Republic [1992-93] GBR 1038 the Court of Appeal held on this principle as follows:- “The law was well settled that a person whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence would be of no probative value unless he gave a reasonable explanation for the contradiction.” See also Gyabaah v Republic [1984-86] 2 GLR 416 and Kuo-den alias Sobti v Republic [1989-90] 2 GLR 203 SC were referred to 23. The inconsistencies in accused person’s charged statement (Exhibit B) and the evidence by Accused person in court lead to the irresistible conclusion that she is not a credible person and her explanation is to be taken with a pinch of salt. The court therefore finds the explanation of the defence unacceptable or not reasonably probable and holds that the accused person issued a False Cheque to the complainant. Conclusion *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 13 of 15 *HWMNJ@DC/BLG-09/12/2024* 24. So, having examined the whole evidence of the prosecution and Defence on record, the court is of the considered opinion that the prosecution has discharged its burden of proof beyond reasonable doubt regarding the offence of Issue of False Cheque. Thus, the ingredients of this offence were proved beyond reasonable doubt. In other words, apart from the defence’s explanation, this court is satisfied on a consideration of the whole evidence that the accused person is guilty of issuing a false cheque. Accordingly, the accused person is hereby found guilty of issuing a false cheque contrary to section 313A of the Criminal Offences Act, 1960 (Act 29). The accused person is therefore convicted for the crime of Issue of False Cheque. Mitigation of Sentence and Sentence 25. The Counsel for accused person pleaded with the court to temper justice with mercy and be lenient to her. He submitted inter alia that accused person is a first time offender. See Counsel’s submission for mitigation of sentence at pages 391 to 395 of the Criminal Record Book, Volume 35. 26. Some of the principles that govern sentencing are: the seriousness of the offence, the premeditation with which the criminal plan was executed, the prevalence of the crime within the locality in particular and the country in general, the degree of revulsion felt by the law abiding citizens of the society, mitigating circumstances such as extreme youth, first offender and good character. See the cases of Kwashie v The Republic [1971]1 GLR 488, Adu Boahene v The Republic [1972]1 GLR 70, and Kamil v The Republic [2011] SCGLR 300. *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 14 of 15 *HWMNJ@DC/BLG-09/12/2024* 27. The law is that a person who issues a false cheque commits a criminal offence and is liable to a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment; not exceeding twelve months or to both the fine and the imprisonment Considering the circumstances of this case, plea of the counsel for accused person for mercy or leniency, the fact that the accused person is a first time offender, the fact that she spent some weeks in lawful custody when she was arrested, the general overcrowding in the prisons as well as principles governing sentencing, the Accused person is hereby sentenced to pay a fine of two hundred (200) penalty units (GHC2400.00) and in default four (4) months imprisonment with hard labour. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-THE REPUBLIC VRS. AFIRUWA ABUBAKARI (CASE NO. B7/98/2020)* Page 15 of 15