S v Marquaye (B7/12/2024) [2024] GHADC 752 (28 October 2024)

IN THE DISTRICT COURT HELD AT BAATSONAA ON MONDAY THE 28TH DAY OF OCTOBER, 2024 BEFORE HER WORSHIP MABEL N.L. AHELE DISTRICT COURT MAGISTRATE C/C NO: B7/12/2024 THE REPUBLIC VRS JONATHAN MARQUAYE ACCUSED -PRESENT PROSECUTION - INSPECTOR FRANK MORGAN DORVI FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION JUDGMENT 1. The Accused person was arraigned before this Court with the charge of Defrauding by False Pretense contrary to Section 131 of the Criminal Offences Act, 1960 (Act 29). 2. Particulars of Offence: JONATHAN MARQUAYE, Unemployed, in September, 2023 at Spintex in the Greater Accra Region and within the jurisdiction of this court, with the intent to defraud did obtain the consent of one Michael Oduro to part with cash in the sum of GHC 15,000.00 by means of certain false pretenses to wit; by falsely pretending that if the said amount is given to you, you could secure him a parcel of land and upon such false representation you succeeded in obtaining the said amount from the said Michael Oduro and you knew the statement to be false at the time it was made. 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 1 of 11 3. FACTS OF THE CASE The facts as presented by the prosecution recount that, the complainant Michael Oduro is a caterer and lives at Spintex while the Accused, Jonathan Marquaye is unemployed and lives at Spintex. In September, 2023, the Accused went to the complainant to inform him that he has a piece of land he wants to sell at Dodowa. The Accused told the complainant that, the said land was given to him by his father John Lutterodt, now deceased and that he needs money to travel to the United States of America. The Accused further intimated that, he wants the complainant to give him an amount of GH₵25,000.00 and take the land. The complainant demanded for the documents covering the land from the Accused and the Accused gave him an indenture and collected cash in the sum of GH₵5,000.00. The complainant after that went to the Lands Commission to make a search on the said land. While waiting for the search report, the accused person went to the complainant and collected an additional GH₵10,000.00. The Accused after collecting the said amount led the complainant along with a surveyor to Dodowa to show the complainant the land. Whilst the surveyor was picking the coordinates on the land, a man came to them and told them the land does not belong to the Accused only, but rather, belonged to the Accused and his siblings hence, the Accused could not sell the land. Subsequently, and as a result of this confrontation, the complainant communicated to the Accused that he was no longer interested in buying the land and that he wanted a refund of his money which the Accused promised to pay back in three (3) days. On 30th October, 2023, a complaint was made to the police and the Accused was arrested. The accused admitted to the offence in his statement. After 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 2 of 11 investigations, he was charged with the offence herein and put before this Honourable Court. 4. The Accused person on arraignment before the Court pleaded not guilty to the offence charged, hence this trial. 5. EVIDENTIAL BURDEN It is a trite learning under Article 19(2) (c) of the 1992 Constitution that, every one charged with a criminal offence is presumed innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any Court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. Presumption of innocence serves to emphasize that the prosecution has the obligation to prove each element of the offence beyond reasonable doubt and the Accused bears no burden of proof except provided by a statute. Section 11(2) of the Evidence Act, 1975 (NRCD 323) states that, in a criminal action the burden on the prosecution of facts essential to the guilt requires the prosecution to produce sufficient evidence so that the Court can find the guilt of the Accused proved beyond reasonable doubt. It is further stated under Section 13(1) of the Evidence Act, 1975 (NRCD 323) that; “In any civil or criminal action the burden of persuasion as to the commission by the party of a crime which is directly in issue requires proof beyond a reasonable doubt.” 6. In the case of GLIGAH & ATISO V THE REPUBLIC [2010] SCGLR 870, it was held that “whenever an accused person is arraigned before any court in a criminal trial, it is the duty of the prosecution to prove essential ingredients of the offence charged against the accused person beyond any reasonable doubt. See RAHIM IBRAHIM & 3 OR, V THE REPUBLIC (CRIMINAL APPEAL NO, H2/2/201, 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 3 of 11 DATED 18TH JULY,2017. Thus, before the prosecution can secure conviction of an accused person on any criminal charge, the prosecution is obliged under the law to establish the guilt of the accused beyond reasonable doubt by proving all the essential ingredients of stealing. 7. WHAT ARE THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF DEFRAUDING BY FALSE PRETENCES The elements of the offence are set out under the Criminal Offences Act, 1960 (Act 29) per section 132 of Act 29 which defines the offence as; “A person defrauds by false pretenses if, by means of a false pretense, or by personation, that person obtains the consent of another person to part with or transfer the ownership of a thing.” Section 133 of Act 29 provides further explanation for the ingredients of the offence thus: “(1) A false pretense is a representation of the existence of a state of facts made by a person, with the knowledge that the representation is false or without the belief that it is true, and made with an intent to defraud. (2) For the purpose of this subsection (1) (a) a representation may be made either by written or spoken words, or by personation, or by any other conduct, sign, or means of whatsoever kind; (b) the expression "a representation of the existence of a state of facts" includes a representation as to the non-existence of anything or condition of things, and a representation of any right, liability, authority, ability, dignity or ground of credit or confidence as resulting from any alleged past facts or state of facts, but does not include a mere representation of any intention or state of mind in the persons making the representation, nor any mere representation or promise that anything will happen or be done, or is likely to happen or be done; 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 4 of 11 (c) a consent shall not be deemed to have been obtained by a false representation as to the quality or value of a thing, unless, the thing is substantially worthless for the purpose for which it is represented to be fit, or to have been substantially a different thing from that which it is represented to be; and (d) subject to the foregoing rules, if the consent of a person is in fact obtained by a false pretense, it is immaterial that the pretense is such as would have had no effect on the mind of a person using ordinary care and judgment.” 8. In the case of DANIEL KWASI ABODAKPI V. THE REPUBLIC, CA CRIMINAL APPEAL NO.H2/6/07 20TH JUNE 2008, Kanyoke J.A (Presiding), delivering the lead judgment of the Court said in relation to the elements of the offence of defrauding by false pretenses at page 30 of the judgment as; “Therefore, under section 133 of the Criminal Code, 1960 (Act 29) for the prosecution to succeed in proving the offence of defrauding by false pretenses they are required by law to prove the following: (1) That the accused made a representation of the existence of a state of facts. (2) That the representation was made either by written or spoken words or by impersonation. (3) That the representation was made with the knowledge that it was false or made without the belief that it was true. (4) That the representation was made with intent to defraud. (5) That the representation was made by the accused (or by a person) and that by that representation, he obtained the consent of another person to part with something. 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 5 of 11 The above was reiterated by Afia Serwaa Asare-Botwe (Mrs.) J (as she then was) in the case of THE REPUBLIC V. WINFRED OSEI OWUSU (2017) JELR 107133 (HC). 9. Also, in the case of OKYERE AND ANOTHER V THE REPUBLIC [1972] 1 GLR 99-109, Hayfron-Benjamin J (as he then was) stated at pp. 107 as follows; “the courts in Ghana have always treated the presumption of innocence of Accused person with respect. Where therefore the burden of proof has without statutory authority been placed on to the accused, that fact alone resulted in the quashing of the conviction”. Therefore, in the instant case, it is the prosecution that carries burden of proof. As alluded to earlier, it is trite law that the standard of proof in criminal cases is proof beyond reasonable doubt. Thus, proving that the Accused person defrauded the complainant by making a false representation to the complainant and by reason of that false representation, the complainant gave his consent to part with the money. 10. THE CASE Prosecution in proving its case called two witnesses, namely the complainant named Mr. Micheal Oduro (PW1) and Investigator Fatima Umaro (PW2). I will briefly summarize the testimonies of the prosecution witnesses. 11. PW1(complainant), testified in evidence-in-chief that, in September 2023, the accused person came to him at his restaurant and told him that he has a plot of land at Dodowa which was given to him by his father, John Lutterodt, now deceased. That the Accused wanted to sell the said land at a cost of GH₵25.000.00 to enable him travel to the United States of America. PW1 further testified that he demanded for the documents covering the land from the Accused person. The Accused gave him an indenture and collected cash in the sum of GH₵5,000.00. To verify the authenticity of the documents given by the Accused, he went to the 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 6 of 11 Lands Commission for a search to be conducted. According to PW1, while waiting for the search report, the Accused person collected an additional GH₵10,000.00. The Accused, after collecting an amount of GH₵15,000.00 led PW1 along with a surveyor to Dodowa and showed him the alleged land. Whilst the surveyor was picking the coordinates on the land, a man came and informed PW1 that the land does not belong to the Accused person alone but he and his siblings. In light of this development, PW1 indicated to the Accused person that he was no longer interested in buying the land and wanted his money refunded to which the accused person promised pay back in three (3) days but refused to pay. 12. PW2 is the investigator, DWP/INSP. Fatima Umaru. She testified that she got to know the complainant and the Accused when a case was reported and referred to her for investigation. She further testified that, on the 30th day of October, 2023 the complainant called at the station and reported that the Accused came to him some months back and demanded for GH₵25,000.00 to give him a piece of land his late father left for him. The complainant gave the Accused an initial deposit of GH₵10,000.00 and later paid GH₵5,000.00 to the Accused. The complainant after paying the money to the Accused was handed a document of a land bearing the name of the Accused person's late father but not the Accused person's name. The Accused was later arrested and brought to the Baatsonaa Divisional CID. She further testified that the Accused admitted collecting the said money from the complainant in his caution statement in the presence of an independent witness. That her investigation revealed that, the said land which the Accused wanted to sell to the complainant does not belong to him alone as his late father left for the Accused and his siblings but the Accused wanted to sell same without the consent of his siblings. Prosecution tendered in the following Exhibits in support of its case; Exhibit ‘A’ – Statement of Complainant to the Police, Exhibit ‘B’ - Investigation 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 7 of 11 caution statement of the Accused person and Exhibit ‘C’ - Charge statement of the Accused person. 13. DEFENCE OF THE ACCUSED After the close of Prosecution’s case, the Accused was called upon to open his defense. Accused person elected to testify on oath after his rights were read out to him. It was his defense that, the said land was given to him by his late father, and that it was his inheritance. When he told PW1, who was his friend, about his intention to sell the land, PW1 asked him to bring him the indenture to show that there was indeed such a land in existence. According to the Accused, upon giving the indenture to PW1, he and PW1 conducted a search at the Lands Commission to verify the authenticity of the indenture. After the search, PW1 asked to be taken to the location of the land whilst he takes steps to change the name on the indenture to his name. The Accused said, it was at this point that he demanded that PWI pays part of the purchase price of GH₵ 55,000.00. It was his testimony that PW1 gave him GH₵5,000.00 and not GH₵15,000.00 as claimed by PW1. According to him, PW1 called him a week after to tell him that he (PW1) was on the land and a caretaker was claiming that the said land did not belong to the Accused alone but belonged to the Accused and his siblings and therefore, the Accused cannot sell the land. Accused further stated that, PW1 then claimed a refund from him because he decided not to buy the land anymore. He further testified that although the indenture bears his late father’s name, it does belong to him alone. He further testified that he does not share the said land with his siblings. 14. ANALYSIS OF EVIDENCE Did the Accused make a representation of the existence of a state of facts? There is sufficient evidence on record to answer the above question in affirmative as it was 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 8 of 11 categorically stated on the Exhibits ‘B’ and ‘C’ of Prosecution. More so, Accused did not dispute it in any way in his defense. And it is obvious that a representation was made by the Accused to the complainant. Was the representation made with the knowledge that it was false or made without the belief that it was true? There is no evidence on record to prove that the Accused knew he was making a false statement to the complainant when he told him that the land in question belonged to him and was given to him by his father. The Accused, in cross examining PW2 cast doubt as to the claim that the Accused did inherit the land from his late father. The Accused sought to make it clear that the person who informed PW1 that the land does not belong to the Accused was not a relative. Clearly, the caretaker who is a material witness to put the issue at rest that the land was not given to the Accused alone by his late father but to him and his siblings was not called by the prosecution. In the Supreme Court case of TETTEH V. THE REPUBLIC [2002] DLSC1272, it was held that a witness is a material if his/her testimony will, one way or the other, help to resolve an issue the Court is to determine. It is my candid opinion that, if the caretaker or the so-called cousin had been called as a witness by the prosecution to testify on the issue of the ownership of the land, then one way or the other, the element on false representation by the Accused to the Complainant would have been determined by the Court. 15. Again, PW1 in his evidence-in-chief testified that, after paying the purported sum of GH₵15,000.00 to the Accused and receipt of the indenture from the Accused, he went to the Lands Commission to conduct a search. Clearly, if PW1 parted with some money to the Accused upon the conduct of his search at the Lands Commission, then a reasonable inference can be made that he parted with money when the representation by the Accused was confirmed. It does not lie in his 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 9 of 11 mouth to say that the Accused made a false representation to obtain his consent to part with the alleged GH₵15,000.00 after such a confirmation of the existence of the land at the Lands Commission. 16. Was the representation made with intent to defraud? I find no evidence on record pointing to intend by the Accused to defraud the complainant especially when he the Accused himself gave the site plan to the complainant to conduct his search at the Lands Commission to ascertain the existence of the land. There no evidence in proof of the claim that the Accused made the representation, knowing or believing it to be untrue. Since proof of this fact would have been the ultimate determinant of the intention of the Accused, the prosecution’s failure to provide any evidence on it means they have been unsuccessful in convincing this Court that the Accused person’s statement that he had a land he wanted to sell was made with the intent to defraud. PW2 who testified that her investigation revealed that the said land which the Accused wanted to sell to the complainant does not belongs to him alone as his late father left for the Accused and his siblings adduce no evidence of such a revelation. 17. In the case of OSEI V. THE REPUBLIC [2009]24 MLRG 203, C.A; it was held, confirming the long-held view that “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Court would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible, but not at all probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 18. CONTRADICTIONS IN THE PROSECUTION’S EVIDENCE The complainant in his evidence-in-chief stated that he parted with a total sum of GH₵15,000.00, to the Accused. However, in the Complainant’s written statement 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 10 of 11 to the Police, thus Exhibit “A” of Prosecution, he claims that he made an initial payment of GH₵3,000.00 and thereafter, GH₵100,000.00 and another GH₵2,000.00. To make matters worse, PW2 also testified that the Complainant made an initial payment of GH₵10,000.00 and a subsequent payment of GH₵ 5,000.00. The prosecution failed adduce any evidence of such payments made by the complainant to the Accused when the Accused denied those payments made to him. 19. It is settled law that a party or a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his/her evidence cannot be regarded as being of any importance in the light of his previous contradictory statement, unless he/she is able to give reasonable explanation. See GYABAAH V. THE REPUBLIC [1984-86] 2 GLR 461. 20. On the totality of the evidence adduced at the trial, I find that the prosecution has failed to discharge their burden of proof in their case as required of them by the provisions under sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323). 21. The Court finds that the prosecution has not successfully proved the guilt of the Accused regarding the charge of defrauding by false pretense beyond reasonable doubt. 22. Accordingly, the Accused person is hereby acquitted and discharged. SGD H/W MABEL N. L. AHELE (MAGISTRATE) 28/10/2024 28-10-2024 THE REPUBLIC VS JONATHAN MARQUAYE - JUDGMENT Page 11 of 11