REPUBLIC VRS. SAPPOR (D6/81/2023) [2024] GHACC 173 (11 June 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON TUESDAY, 11TH JUNE, 2024 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT

COURT JUDGE CASE NO: D6/81/2023

THE REPUBLIC

VRS

FREDERICK SAPPOR

ACCUSED PERSON PRESENT

CHIEF INSPECTOR JONAS LAWER FOR THE REPUBLIC PRESENT NELSON OWUSU ANSAH, ESQ. HOLDING THE BRIEF OF YAW DANKWAH, ESQ.

FOR THE ACCUSED PERSON PRESENT

JUDGEMENT The Accused person who is an Estate Developer was first arraigned before this Court on the 1st November, 2022 charged with the offence of Defrauding by False Pretences contrary to section 131(1) of the Criminal Offences Act, 1960 (Act 29). Upon his arraignment before this Court, the Accused person pleaded Not Guilty to the charge after same was read and explained to him.

THE FACTS OF THE CASE 1 The complainant, Eva Asare is an Accountant based in Canada whereas the Accused person is an Estate Developer and resides at North Odorkor. Sometime in the year, 2019, the complainant declared to the Accused person of her intention to acquire serviced plots of land for the construction of apartment. The accused person informed the complainant of the availability of serviced plots of land located at Community 25, Tema being offered for sale. He informed the complainant that the price for two plots of land was GH¢170,000.00. The complainant sent the money to the Accused person to purchase the land for her. The accused person later informed the complainant that he had secured the land and was registering same for her. He promised to mail the leased documents and receipt of payment to the complainant in Canada after registration of the land with the Lands Commission. The accused person assured the complainant that the land was secured and would want to put up the apartment for her. The accused person demanded and collected GH¢5,000.00 from the complainant for the development of structural and architectural building plan and also to secure building permit from Tema Metropolitan Assembly. During the month of April, 2021, the husband of the complainant visited Ghana for short holidays and decided to see the land. The accused person took him to a parcel of land

at Community 25, Tema. Thereafter, the complainant gave the accused person GH¢29,974.00 to construct a fence wall around the land. In January, 2022, the husband of the complainant again came to Ghana and decided to see the project. The accused person then informed him that he had lost all the investment as the land had been affected by litigation. The accused person added that his grantors would construct the fence wall on the replaced land by themselves. The accused person demanded and collected GH¢124,619.00 to construct a storey building foundation and to cast concrete floor slab on the replaced land. Some few weeks after collecting the money, the accused person informed the complainant that the replaced land was also affected by litigation and was being replaced with another land. The complainant realizing that she had been defrauded, came to Ghana, and reported the case to the police. Investigation established 2 that the accused person did not obtain any Building Permit from TMA for the complainant after collecting money for it. The prosecution put forward, two (2) witnesses to testify in support of its case. The testimony of PW1 confirmed the facts as presented by the prosecution. PW1 tendered in evidence, the following exhibits: i. ii. iii. iv. v. Breakdown of rent income and expenditure sent by Accused person; Structural Designs of the building; Photographs of the

building; UNFCU Payment Receipt; Bill of Quantities. PW2 (Detective Inspector Kwabena Akowua) tendered in evidence, the Cautioned and Charge Statements of the Accused person without any objection. At the close of the case of the prosecution, the Court determined that the prosecution had made out a prima facie case against the Accused person. The Court therefore invited the Accused person to enter into his defence.

THE CASE OF THE DEFENCE In opening his defence, the Accused person testified himself and called two (2) witnesses to testify in support of its case. The defence filed a Witness Statement for the Accused person and same for three (3) other witnesses but however, called two (2) of them to testify in this case. The Accused person told the Court that he came into contact with the complainant through one, Jerry Sosu. The complainant asked him to get her two plots of land to build 3 a twin storey apartment building for the purpose of rental at Community 25 Area. The Accused person approached his grantors namely Sly Martey and Isaac Annobah with the request to buy two plots of land and they took him to two plots of land at the Community 25 Area, which he showed interest and told the complainant about it. The complainant sent money to the Accused person to purchase land, which the Accused person paid to his grantors and given four copies of an indenture. The Accused person engaged an architect who developed the building plan. The Accused person constructed a fence wall around the parcel of land. The husband of the complainant came to inspect the plot of land with the full wall build and took away the indentures to Canada for the complainant to endorse. After the husband of the complainant left, someone came to claim ownership of one of the plots he had fenced, and therefore lodged a

complaint at Devtraco Police Station. The Accused quickly informed his grantors of the development and they told him they were going to replace the land for him. They eventually took the Accused person to a second plot of two plots in the same neighbourhood and promised to erect a fence wall around it to compensate him for the amount spent on erecting the fence wall around the first plot, which they did. The Accused purchased 6,000 pieces of six inches concrete blocks and two trips each of chippings and sand on one of the plots. The Accused person proceeded to dig a four feet deep foundation of one of the apartment buildings on the other plot. The husband of the complainant came to Ghana a second time and it was at this point that he told him that the first plot of land had been affected by litigation but the plot had been replaced. After the husband of the complainant had left for Canada, a second person who was a doctor came with the police claiming ownership of the two plots of land. According to the Accused person, he lodged a complaint a Devtraco Police Station against his grantors and realised he had been defrauded. 4 DW1 (Alex Kwaku Boateng) testified as the manager of the block factory that supplied blocks to the Accused person to construct a fence wall around a plot of land at Community 25. DW2 (Nilimocha Balijah) testified as a labourer who was engaged by the Accused person to dig a foundation for a four-storey building at Tema Community 25. So, he organized other labourers to do the work. The legal issue that emerged for determination at the end of the trial is whether or not the Accused person defrauded the complainant by false pretence.

BURDEN OF PROOF The common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2)(c) of the 1992 Constitution which provides that a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in sections 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. In the case of Republic vrs Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: 5 “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 ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”.

THE LAW AND EVALUATION OF THE EVIDENCE Section 132 of Act 29 provides: “A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” From the above, the elements of defrauding by false pretences are as follows: 1. 2.

3. The use of false pretence or personation, To obtain the consent of another person, So that the person parts with or transfers the ownership of something. In the case of The Republic vrs Selormey [2001-2002] 2 GLR 424, the Court stated the following ingredients in an offence of defrauding by false pretences: “A person shall make a false representation or by a personation either by written, spoken or sign language or any other means whatsoever; the said representation was made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was false or made without the belief that it was true; as a result of the false representation the accused person caused the other person to part with or transfer ownership of a 6 thing.” See also Sarpong vrs The Republic [1981] GLR 790, Adobor v. The Republic [2008] 19 MLRG 23 CA. Section 133 of Act 29 in defining false pretence, lays out the following ingredients: 1.

2. Representing the existence of a state of fact, Either with the knowledge that such representation is false or without the belief that it is true, 3. The representation should be made with the intention to defraud. The Particulars of Offence under which the Accused person was charged reads: “FREDERICK SAPPOR, AGED 50, ESTATE DEVELOPER: For that you during the year, 2019 at Community 25, Tema in the Greater Accra Region and within the jurisdiction of this Court with intent to defraud, did obtain the consent of Eva Asare to part with cash, the sum of GH¢329,593.00 by means of certain false pretences to wit; by falsely pretending that if the said amount was given to you, you could buy two serviced plots of land, fence it and put up a storey building foundation structure on it for the said Eva Asare and upon such false representation you succeeded in obtaining the said amount from the said Eva Asare which statement you well knew at the time of making it to be false.” What kind representation did the Accused person make to the complainant? • The Accused person represented to the complainant that he could get her parcel of land at Community 25 behind Devtraco Estate to buy. • As a result of that the complainant paid a total of GH¢170,000.00 for the purchase of two (2) plots of land. • The Accused person gave an indenture to the complainant covering the two (2) plots of land. 7 •

The Accused person assured the complainant that the land was secured, and so she asked him to start a project on it by starting the foundation of the apartment for her. • The Accused demanded and collected GH¢5,000.00 for the structural and architectural building plan and to also secure a building permit from the Tema Metropolitan Assembly. • The complainant gave to the complainant, the sum of GH¢29,974.00 to construct a fence wall around the replaced land after the Accused person had informed her that the previous land was affected by litigation. • The Accused person demanded and received the sum of GH¢124,619.00 to construct a storey building foundation or footing on the replaced land. Did the Accused person make the above representation with the knowledge that such representation is false or without the belief that it is true? Was there also an intention on the part of the Accused person to defraud the complainant? In the case of Welham v. Director of Public Prosecutions [1961] A.C. 103, the House of Lords held, as stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 2043 at p. 753 that: ‘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 ………………….’. In the case of Asiedu v. The Republic [1968] GLR 1-8, Amissah

J.A. stated and I quote: “An intent to defraud is an essential element of the offence of defrauding by false pretences whether the method of fraud adopted was personation or a false representation”. 8 It has not been disputed before this Court that the Accused person is an Estate Developer. The Accused person had also done some work for the complainant before this incident, though the complainant was not satisfied with the work done. The following is part of what transpired when the defence counsel cross examined PW1 on the Cross examination of PW1 on the 23rd August, 2023: Q. A. Q. Can you tell this court how you got to know the Accused person? I got to know him through a friend of his. The friend is called Jerry. Can you tell this court how many years you have had a relationship with the Accused person? A. I got to know the Accused person in 2019. So, I will say 3 years to 4 years. In 2022, I got to know that he had defrauded me. Q. If I understand you, you got to know the Accused person at least 3 years before the relationship turned sour? A. I got to know him only on phone in 2019. My first time of meeting him was on the Q. A. Q. 25/6/2022. You got to know the Accused person physically after 3 years? Yes, in 2022. Can you tell this court what transactions you asked the Accused person to perform on your behalf even though you had not seen him? A. I got to know him and I

asked him to renovate my house for me at Adjiriganor. When I came last year, meeting him I realized there was nothing he did on the house per the bill of quantities he sent me. He painted the house nicely. On picture you see the house nice. When I came, I detected he did not do anything on the house. One thing I forced him to redo is the kitchen counter. We agreed on a very quality kitchen not quartz. I paid him for US$2,000. It should have been granite 9 not quartz. When I came, I saw he used a wooden counter top used in the 1970s. So, we agreed on granite. I realized granite was too expensive so I will agree on quartz. When the Accused person opened his defence, he tendered in evidence, copious documentary evidence. There is evidence on record to establish that the complainant knew that the Accused person was buying the land from a third party, and not that he told the complainant that he had a parcel of land for sale. See excerpts of cross examination of PW1 by defence counsel on the 29th August, 2023: Q. At all material times, you knew the Accused person was buying the land for you from other people? A. He told me he was buying the land from a company that has bought a big land and they have serviced the whole area and they are selling the land to individuals. Q. Per your answer it means the Accused person had at no point represented to you as the grantor? A. He told me he

was buying the land from a company and the company will give me the papers. Q. I suggest to you that the grantors of the Accused person i.e., Sly Martey and Isaac Anabah handed the Accused person fraudulent indentures which he also handed over to you without any knowledge that it had been tainted with fraud? It is evident that the grantors of the subject matter land of this case are before the Circuit Court, Tema facing charges of Conspiracy to commit crime to wit Fraudulent Land Transaction and Fraudulent Land Transaction contrary to sections 23(1) of Act 29 and 277(2)(A) of Act 29 and the Land 10 Act, 2020 (Act 1036) respectively. The Accused person has also commenced a civil action against the said grantors at the High Court, Adenta. As rightly stated by the defence counsel in his written address at page 16, this case has no criminal element. This is what the defence counsel submitted to the Court: “It is clear that, the accused person was himself defrauded by his grantors, making this case fit squarely as a civil case and not a criminal one. The accused person went ahead to testify that, his grantors were currently in Court over the same set of facts. In fact, paragraph 16 of the witness statement of Chief Inspector Fulera puts a nail on the coffin of the case of the prosecution which is quoted verbatim as follows: “My investigation disclosed that, at the time the accused

persons were selling the plot to Frederick, they had no authority, and also know that another person was in possession of the said land”. From the totality of the evidence adduced at the trial, the Court finds that this entire case is one of a pure civil transaction that went bad. The Accused person was at worst, negligent in his land transaction with the said grantors. The Court finds that the intention on the part of the Accused person to defraud the complainant has not been established by the prosecution. In the circumstances, the Accused person herein, Frederick Sappor is hereby acquitted and discharged. (SGD.) ISAAC ADDO

CIRCUIT COURT JUDGE 11TH JUNE, 2024 11 12