The Republic v Agyei and Others (CC NO.:124/2023) [2024] GHADC 800 (4 November 2024)

IN THE DISTRICT COURT SITTING AT WAMFIE ON THE 4TH DAY OF NOVEMBER, 2024 BEFORE HIS WORSHIP EUGENE OBENG- NTIM,ESQ. CC NO.:124/2023 THE REPUBLIC VRS 1. YAW AGYEI 2. KWAME ASARE 3. MENSAH JACOB NOBLE 4. PAA KWASI 5. ATTA CHEWA ---- AT LARGE 6. BAAH ---- AT LARGE RULING Charge The 3rd accused person, Mensah Jacob Noble and five others, were charged with conspiracy to commit crime under section 23(1) and defrauding by false pretence under section 131(1) of the Criminal Offences Act,1960,Act 29. The 1st and 4th accused persons pleaded guilty and were accordingly convicted and sentenced. The 5th and 6th accused persons remain at large. The 3rd accused person pleaded not guilty, necessitating the conduct of trial by the prosecution. Page 1 of 17 Facts According to the prosecution, in early march, 2023, the 4th accused person called the complainant on phone that the 1st accused had 2,000 teak trees on offer for sale. The complainant expressed interest and sent a witness to the house of the 1st accused at Wamanafo who detailed the 4th and 5th accused to inspect the teak. That, on 17th March, 2023, the complainant insisted on inspecting the teak but 1st and 4th accused declined on grounds that it was forbidden to visit the farm on Friday. The witness and 1st accused agreed on GH¢ 80,000 at GH¢ 40 per tree. The 1st accused agreed and prepared a contract of sale after which an amount of GH¢ 40,000 was paid with the understanding that the balance would be paid after the completion of documents at the Forestry Commission. The facts continued that after the 1st accused had received the GH¢ 40,000 , he went into hiding and switched off his phone. The complainant reported the case to the police on the 20th March, 2023 and 1st accused was traced to his hideout at Mmregyaa near Kojo Kumikrom. 1staccused admitted swindling the complainant and admitted that he was part of a syndicate. He then mentioned the other accused persons, including the 3rd accused, as his accomplices. The 2nd accused admitted the offence and also received GH¢ 1,500 as his share. The 3rd accused denied his involvement. Evidence of Prosecution Prosecution called two witnesses; the 1st accused person, Pw2 and the investigator, Pw3. The 1st accused person,Pw2, Yaw Agyei, who had earlier pleaded guilty and had been convicted by the court, testified as a witness for the prosecution. In his witness statement to the court filed on 25th August, 2023, he testified that the 3rd accused requested him to accompany him to Wamanafo to bargain over teak they intended to sell to a merchant from Sunyani. Page 2 of 17 At Wamanafo, 3rd and 4th accused persons took them to the house of Atta’s father where 3rd accused introduced him to a man he claimed to be an uncle of 5th accused. They inspected the teak at Apito but he and the 2nd accused stayed behind. The merchant showed interest and, after a bargain, they agreed on GH¢ 80,000 after which he received an initial deposit of GH¢ 40,000 which was handed over to the 4th accused person. According to Pw2, the money was shared and he received GH¢ 4,000 from the booty via mobile money. The witness continued that the 3rd accused demanded GH¢ 1,000 but he refused. The 5th accused later informed him that there was a disagreement over the sharing of the money and requested for a refund of GH¢ 2,500 which he did. Pw2 concluded that the 3rd accused introduced him and implicated him in the fraudulent act. The other witness of the prosecution, Pw3, the investigator testified that on 20th March, 2023 at about 11:00 am, the complainant and a teak dealer based in Kumasi, John Yamptep, reported a case of defrauding by false pretence to the police and he was called upon to investigate. He continued that Yaw Agyei, Kwame Asare, Paa Kwasi, Atta Chewa and others had defrauded the complainant of GH¢ 40,000 under the pretext of selling 2,000 teaks belonging to Yaw Adjei. That Pw2, the 1st accused person using his stool name, Nana Kwadwo Yeboah entered into an agreement titled “an agreement between Nana Kwadwo Yeboah and Goreeb Company Limited” on 17th March, 2023 which was witnessed by one Agyei Frimpong for Nana Kwadwo Yeboah and Kofi Ntim for John Yamptep. Pw3 further added that the 1st accused was arrested on 11th May, 2023 and admitted being part of a fraudulent syndicate whose members included the other accused persons. He also admitted receiving GH¢ 40,000 from John Yamptep and sharing them among themselves. He concluded that when the 2nd accused was arrested he admitted receiving GH¢ 1,500 while the 3rd accused denied his involvement in the transaction. Page 3 of 17 Pw3 tendered the following: Cautioned and Charged statements of the accused person which were marked Exhibits “A” and “B”. The prosecution closed his case after the last witness of prosecution had been cross examined by the counsel for the 3rd Accused person. Counsel for the 3rd accused filed a written submission to address the court on a submission of no case to answer by the 3rd accused. Applicable Statutes and Case Laws The Burden of Proof- The Evidence Act, 1975 (NRCD 323) The Republic, having charged the 3rd accused of committing the offences has the burden to lead evidence to establish that 3rd accused committed those offences at the close of the case of prosecution. This position is supported by various provisions in the Evidence Act, 1975 (NRCD 323) S.10(1) provides that: (1) for the purposes of the Act, the burden of prosecution means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323) also provides as follows: ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid ruling on the issue against that party. (4) In the other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non existence’ Page 4 of 17 Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is ascertain. In the case of COP v Antwi [1961] GLR 408, the Supreme Court reaffirmed the principle that throughout a criminal trial it is the prosecution that bears the burden of proof to prove a case made against the accused. This is what the court said at page 412: “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases.“. In the case of Richard Banousin v The Republic criminal Appeal No. J3/2/2014 dated 18th March, 2014, Dotse JSC noted in the following words: "The Prosecution has the burden to provide evidence to satisfy all the elements of the offence charged". The prosecution, in discharging the burden, must prove the charges beyond reasonable doubt as per section 13(1) which provides in a 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. From the above authorities, the combined effect of judicial decisions and statutory provisions supra is that the burden is on prosecution to lead sufficient evidence to persuade the Court beyond reasonable doubt that; Page 5 of 17 i. the accused persons, including the 3rd accused, agreed and acted together to defraud the complainant and ii. The accused persons, including the 3rd accused succeeded in defrauding the complainant of the amount 40,000 by false pretences. It is only when the prosecution has proved the charges beyond reasonable doubt at the close of his case that the burden would shift to the 3rd accused person. Submission of no case to answer Submission of no case is a fundamental concept in criminal matters statutorily provided in the Criminal and Other Offences (Procedure) Act, 1960(Act 30). This is provided under sections 173 and 174 of Act 30. Section 173 of Act 30 provides that:“where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.” Then Section 174(1) provides that: "At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence." Page 6 of 17 The combined effect of the above provisions is that if at the close of the prosecution’s case, the prosecution is unable to lead prima facie evidence to prove the elements of the offence, then the court is under a mandatory duty to relieve the accused person from opening his defence. The accused shall accordingly be acquitted and discharged. The accused person will only be called upon to open his defence if the evidence led by the prosecution at the close of its case, prima facie, proves all the elements of the offence. In a situation where the Court, in the absence of a prima facie evidence, still calls upon the accused person to open his defence, that would occasion a substantial miscarriage of justice. What constitutes a submission of no case has received judicial pronouncements. The Supreme Court in the case of Asamoah and Another Vs Republic 2017 GHASC 13 succinctly summarised the principles in the following terms: "The underlying factor behind the principle of submission of no case to answer is that an accused should be relieved of the responsibility of defending himself when there is no evidence upon which he may be convicted. The grounds under which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial by indictment may be restated as follows: a. there had been no evidence to prove an essential element in the crime; b. the evidence adduced by the prosecution had been so discredited as a result of cross-examination; or c. The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it. d. The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt, and one with innocence. Page 7 of 17 To succeed with the submission of no case to answer by the 3rd accused person, it should be established that either the evidence adduced by the prosecution had been so discredited as a result of cross-examination by counsel for 3rd accused or that the it was so manifestly unreliable that the court could not safely convict the 3rd accused upon it or it was evenly balanced in the sense that it was susceptible to two likely explanations,one consistent with guilt of the 3rd accused, and the other his innocence. The court would therefore evaluate the evidence of the prosecution based on the test referred to supra to ascertain whether a prima facie case has been established against the 3rd accused to warrant him to be called upon to open his defence. The accused persons, including the 3rd accused, were charged with the offences of Conspiracy under section 23(1) and Defrauding by False Pretences under section 131(1) of act 29. Before dealing with the charges, it is important for the court to draw the attention of the prosecution to the legal requirement imposed on prosecution where a co-accused, who may be described as an accomplice, has been called upon by the prosecution to testify against a fellow accused. Who is, in law, an accomplice? The court in the case of Commissioner of Police v. Dwamina 1 WALR at page 57 per Smith Ag.J, as he then was, defined an accomplice as: i. persons who are' particeps criminis' in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in cases of misdemeanours); ii. on a trial for larceny, receivers as regards the thieves from whom they receive the goods; Page 8 of 17 iii. where a person is charged with a specific offence on a particular occasion and evidence is admissible and has been admitted of his having committed crimes of the identical type on other occasions, as proving system of intent or negativing accident, parties to such other offences. In Pearce v. The Republic [1968] GLR 211–226, Archer J., as he then was, provided a distinction between an accomplice and an accused person who testifies for himself and implicates a co-accused. His Lordship at page 215 stated that I understand the law where prisoners are tried jointly and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given the incriminating evidence is not placed in the position of an accomplice...Where however one co-prisoner gives evidence against another co-prisoner and his evidence for that purpose becomes evidence for the prosecution against that co-prisoner, then that co-prisoner who gave that evidence is placed in the position of an accomplice. Similarly, in the case of Amukyi v. The Republic [1982-83] GLR 1010- 1016 TWUMASI J. as he then was, at pages 1016 stated that the true law as I understand it is that the trial court can act on the evidence of a co-accused where the co-accused is called as a prosecution witness against another co- accused. In such a case the co-accused giving evidence for the prosecution becomes an accomplice and the law relating to the evidence of accomplices would accordingly apply. The decision of the prosecution to call 1st Accused, Yaw Agyei, Pw2, who has been convicted by the court, to testify against the 3rd accused, makes 1st accused an accomplice within the meaning of the law and the law relating to the evidence of an accomplice would accordingly be applied. Page 9 of 17 What then is the law relating to an accomplice? In the case of Daniels v. The Republic [1973] 1 GLR 31-33, the High Court per Quashie-Sam, J. as he then was held that where a prosecution witness is held to be an accomplice to the charge, the court must warn itself as to the danger of convicting on the uncorroborated evidence of the accomplice, and where matters which cannot be treated as corroboration are treated as being so, the court may quash the conviction. Where no corroborative evidence exists the solution is not to treat one piece of evidence as corroboration of itself. His Lords continued at page 33 thus “The kind of corroboration required is not confirmation by independent evidence of everything the accomplice relates, as his evidence would be unnecessary if that were so. What is required is some independent testimony which affects the prisoner by tending to connect him with the crime; that is, evidence, direct or circumstantial, which implicates the prisoner, which confirms in some material particular not only evidence given by the accomplice that the crime has been committed, but also the evidence that the prisoner committed it. The prosecution has called the 1st accused person, Yaw Agyei who is an accomplice to the commission of a crime of conspiracy to defraud and defrauding by false pretences to testify against his co-accused the 3rd accused. The court would hold that a prima facie case has been established against the 3rd accused person to require him to be called upon to open his defence based on the testimony of Pw2 only when it is satisfied that the testimony of Pw2 has been corroborated. Count 1: Conspiracy to commit a crime to wit: Defrauding by False Pretence For the prosecution to succeed, he has the onus to prove the ingredients of conspiracy. Page 10 of 17 It is an the inchoate offence of conspiracy created under Section 23(1) of the Criminal Offences Act, 1960 (Act 29) thus: “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 a previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.” In the unreported case of Republic v Eugene Baffoe-Bonnie and 4 others, SUIT NO. CR/904/2017 dated 12th May 2020, Eric Kyei Baffour J.A sitting as an additional High Court judge set out the elements of the offence of conspiracy in the following terms: "For prosecution to be deemed to have established a prima facie case, the evidence led without more, should prove that: i. that there were at least two or more persons; ii. that there was an agreement to act together and iii. that sole purpose for the agreement to act together was for a criminal enterprise." The prosecution must establish that there was an agreement among the accused persons to act together and the sole purpose for the agreement to act together was to engage in a criminal enterprise of defrauding the complainant, John Yamptep. The facts as presented by the prosecution is that after the 4th Defendant had introduced 1st accused to the complainant for the purchase of 2,000 trees of teaks and had visited the farm, the parties agreed on GH¢ 80,000, after which 1st accused prepared a contract of sale. An amount of GH¢ 40,000 was paid with the understanding that the balance would be paid after the completion of documents at the Forestry Commission. The 1st accused on receipt of GH¢ 40,000, went into hiding and switched off his phone. Page 11 of 17 The testimony of the 1st accused, Pw3, who had turned prosecution witness, was that the 3rd accused introduced him to the transaction and he received the GH¢ 40,000 as initial payment out of the agreed sum of GH¢ 80,000. That he received GH¢ 4,000 as his share and that the 3rd accused implicated him in the fraudulent act. Counsel for the 3rd accused challenged Pw2 on his testimony by asserting when he cross examined him that 3rd accused was not part of the meeting and that Pw2 rather implicated 3rd accused without any basis. Counsel for the 3rd accused, after tendering through Pw2, his cautioned statement which was marked Exhibit “1”; asked the following questions which solicited answers from him: Question: In your cautioned statement to the police, you never mentioned the 3rd accused in the alleged crime. Answer: Not true Question:the person you mentioned that you claimed to have accompanied you is one Atta. Answer: Not true. Question:You and your accomplices took complainant to a certain house which you claim you were living in, is that the case. Answer:not true. Counsel also tendered a picture , Exhibit “2” which was allegedly taken at a house Pw3 claimed to be living and continued the cross examination: Question: can you see yourself in the picture? Answer: yes Page 12 of 17 Question: you decided to implicate 3rd accused person because you suspected he tipped off the police Answer: Not true. The 3rd accused wanted to create a problem for me. Question:Your decision to implicate him was based on revenge. Answer: No. He wanted to create a problem for me. Question: you claimed a picture was taken by Atta, was 3rd accused in that picture Answer: No. He was not present. He told me to sit in for him at the meeting and I told him that we would take a picture. The cautioned statement, Exhibit “1”, of Pw2 dated 12th May, 2023 taken after his arrest by the police, did not mention the 3rd accused as a participant in the planning and execution of the crime. Interestingly, his witness statement to the court dated 25th August 2023 mentioned the 3rd accused as the mastermind of the scheme to defraud the complainant. The sudden inclusion of the 3rd accused in the offence by the testimony of Pw2 in court, raises serious questions over the credibility and the veracity of the testimony of Pw2. The position is supported by the fact that the 3rd accused person was not present at the place and time that the picture of the accused persons, Exhibit “2” was taken. The reason provided by the 1st accused person, Pw2, under cross examination was that the 3rd accused instructed him to represent him since he was in Accra. The credibility of the prosecution witness, Pw2, was also put into question when, on the face of the record of his conviction by the court for the offence of defrauding by false pretenses, the subject matter of this submission of no case, he denied ever being convicted. The following ensued when Pw2 was cross examined by the counsel for the 3rd accused person; Question: it was as a result of your deceit which led to your conviction by the court Page 13 of 17 Answer: No. Question:Have you been convicted by the court on this matter and if so why Answer: I did go to the farm that is why I was convicted Question: I am putting it to you that the court convicted you for defrauding the complainant together with your accomplices Answer: Not true. The court, from the foregoing, is of the view that, not only is the testimony of Pw2 unreliable but that he is also not credible. His silence over the participation of 3rd accused in the commission of the crime in his cautioned statement and his sudden allegation in his witness statement to the court that 3rd accused is the mastermind of the scheme, is an afterthought intended to implicate 3rd accused as an accomplice to the crime. Indeed the court is inclined to believe the contention of the counsel for the 3rd accused person that Pw2 is out to implicate the 3rd accused because he was suspected to have tipped off the police. From the evaluation of the evidence, the court finds that 3rd accused was not present at the time and place and did not participate in the planning and procurement of the complainant to agree to the payment of GH¢ 80,000 and release of GH¢ 40,000 as part payment for the purchase of 2,000 teak trees. The court also finds that the 3rd accused did not participate in obtaining GH¢ 40,000 from the complainant with a promise of supplying the complainant with 2,000 teak trees. The the court has earlier stated that for prosecution to succeed with the offence of conspiracy against the 3rd accused person, prosecution must establish that there was an agreement among the accused persons to act together and the sole purpose for the agreement to act together was to engage in a criminal enterprise of defrauding the complainant, John Yamptep. Page 14 of 17 Since the court had earlier established that the 3rd accused was not present at the time and place and did not participate in the planning and procurement of the complainant to agree to the payment of GH¢ 80,000, prosecution has failed to establish that there was an agreement among the accused persons, including the 3rd accused, to act together with the sole purpose of defrauding the complainant, John Yamptep. Count 2 Defrauding by false pretence Section 131 of Act 29 provides that whoever defrauds any person by any false pretence shall be guilty of a second degree felony. Section 132 Defines Defrauding by False Pretences as where a person 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. Explanation of defrauding by false pretence? His Lordship Archer J. as he then was in the case of Blay v. The Republic [1968] GLR 1040-1050, at page 1048 defined it as to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action. His Lordship continued: 'intent to defraud' means an intent to practise a fraud on someone and would there include an intent to deprive another person of a right, or to cause him to act in any way to his detriment or prejudice, or contrary to what would otherwise be his duty, notwithstanding that there was no intention to cause pecuniary or economic loss. Page 15 of 17 For the prosecution to succeed, he must establish that the accused persons, including the 3rd accused, by means of any false pretence, or by personation, did obtain the consent of the complainant, John Yamptep, to part with the sum of GH¢ 40,000. The court has established that the 3rd accused did not participate in obtaining the complainant to part with the sum of GH¢ 40,000 with the promise of supplying him with 2,000 teak trees. Prosecution has, therefore, failed to establish the offence of defrauding by false pretences against the 3rd accused person. Conclusion The court, after evaluation of the evidence and the applicable laws, is of the view that not only is the evidence adduced by the prosecution discredited as a result of cross-examination by counsel for the 3rd Accused but also that it is manifestly unreliable and therefore unsafe to be relied upon to convict. The prosecution has, therefore, failed to prove the charges of conspiracy to commit crime and defrauding by false pretences against the 3rd accused, thereby failing to establish prima facie case in line with section 174 of Act 30/60 to require the court to call upon him to open his defence. Consequently, the court, in line with section 173 of Act 3O/60 would acquit and discharge the 3rd accused person. Order The 3rd accused person, Mensah Noble Jacob, is accordingly acquitted and discharged of the offences of conspiracy to defraud and defrauding by false pretences under sections 23 and 131(1) of the Criminal Offence Act,1960,Act 29. Eugene Obeng-Ntim (District Magistrate) Page 16 of 17 Page 17 of 17