The Republic Vrs Atuimah [2023] GHADC 501 (3 April 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON MONDAY 3RD APRIL, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B18/117/22 THE REPUBLIC V ATUIMAH VALERIUS JUDGMENT INTRODUCTION 1. On 7th July, 2022 the accused was arraigned before this court for the below offence: STATEMENT OF OFFENCE Defrauding by false pretence: contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Atuimah Valerius, Manager of Farmapp, Age 27yrs: For that you in the month of October 2021 at Holy Cross Cathedral Church, Tamale in the Northern Region and within the jurisdiction of this court, with intent to defraud did obtain the consent - 1 - of Wisdom Abi to part with cash the sum of GHS3,050.00 by means of certain false pretence to wit falsely pretending that if the said money was given to you, you could invest in your investment portfolio which could yield 30% interest in three months and upon such false representation, you succeeded in obtaining the said amount from the said Wisdom Abi which statement you well knew at the time of making it to be false. FACTS OF THE CASE 2. The facts of the case given by the prosecution are that in October 2021, accused informed the complainant, Wisdom Abi, that his Farmapp investment portfolio yields 30% in three months. Based on this, complainant and accused met at Holy Cross Cathedral Church, Tamale and accused received cash sum of GHS3,050.00 for the said investment. Upon receiving the said money, accused reassured the complainant that in three months his capital and interest will be ready for redemption. The investment was for 1st October, 2021 and to mature on 31st December, 2021, which both agreed. At the end of the date of investment, accused informed complainant that he had labour challenges so he, therefore, pleaded for two months extension with 10% penalty which was agreed by complainant. The two months extension elapsed but accused continued to give excuses. A complaint was lodged and accused was arrested. After investigations, accused was charged and arraigned before this court with the above offence. 3. Accused in court, however, pleaded not guilty to the above charge. DEFINITION OF THE OFFENCE 4. With respect to defrauding by false pretence, section 132 of Act 29 explains that a person defrauds by false pretences if, by means of a false pretence, or by personation - 2 - that person obtains the consent of another person to part with or transfer the ownership of a thing. Section 131 of Act 29 provides that a person who defrauds any other person by a false pretence commits a second degree felony. BURDEN OF PROOF 5. By a plea of not guilty, the accused puts himself in charge of the court, meaning that his guilt has to be proved beyond reasonable doubt. It is settled law that a person is presumed innocent until the contrary proved, see article 19(2)(c) of the 1992 Constitution. 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 the person was guilty, has been provided for in ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323). In Gligah & Atiso v The Republic [2010] SCGLR 870, the Supreme Court, per Dotse JSC re-emphasized this point thus: “…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 beyond reasonable doubt. The burden is, therefore, on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story.” 6. Thus, whereas the prosecution carries that burden to prove the guilt of the accused beyond reasonable doubt, there is no such burden on accused 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, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374, COP v Isaac Antwi [1961] GLR 408. METHODOLOGY - 3 - 7. With accused pleading not guilty to the charge, it is settled law that the prosecution must prove the whole of its case against accused, beyond reasonable doubt. 8. The prosecution in support of its case called two witnesses: Wisdom Abi (Complainant/PW1) and No. 46927 D/Cpl. Aneh Raphel Awewuvi (PW2). Prosecution also tendered in evidence: Exhibit A – Investigation cautioned statement of accused dated 23/05/22 Exhibit B – Charged cautioned statement dated 30/06/22 Exhibit C – Copy of the agreement between complainant and Farmapp The Prosecution’s Case 9. PW1’s evidence is that on 16th September, 2021 the accused contacted him regarding an investment with Farmapp. He added that he was convinced to invest GHS3,050.00 to which he was expected to earn 30% as interest from 1st October, 2021 to 31st December, 2021. However, after 31st December, 2021 accused failed to carry through his promise. According to him, accused complained that he had labour challenges and due to that pleaded for two months extension with 10% penalty. PW1 averred that he agreed. But after the two months extension, accused kept giving him excuses. Hence, he reported the matter to the Sagnarigu police. 10. PW2, Aneh Raphel Awewuvi, corroborated the evidence of PW1. He added that accused is the CEO of Farmapp Co. which is into farming. He stated further that he visited the farm site but the whole place was bushy, ‘no farm was seen’. According to him, accused indicated that the farm business is insured, but when he (PW2) demanded for the insurance policy, accused failed to deliver it. He then caused - 4 - accused to be charged with the above offence and arraigned before this court. He tendered in evidence the aforementioned exhibits. 11. At the end of the Prosecution’s case, the Court found that a prima facie case had been established against accused and therefore called upon accused to open his defence. Accused Person’s Defence 12. Before I proceed with the defence of accused, it is important to mention that accused caused to be filed five witness statements, but he withdrew the witness statements of Moses Kpenye and Lansah Abel Awal. In effect, in addition to himself testifying, accused called Nyadia Hamza (DW1), Nathalie Kouroma (DW2) and Osuman Mensah Maxwell (DW3) as witnesses. 13. Accused testified that Farmapp is a limited liability company and that he did not personally enter into a contract with complainant. According to him, investors including the complainant entered into a contract with Farmapp, to which Farmapp is a separate legal entity which can sue or be sued. He indicated that complainant was introduced to Farmapp through a friend. He added that complainant entered into a contract with the company on 1st October, 2021 for the 2021/2022 farming season. Copy of the contract was tendered as Exhibit 1. He explained further that on receipt of the investors’ money, which included the complainant, he bought farm inputs and engaged labourers. Exhibits 2 and 6 series are copies of the said farm input receipts. Exhibit 3 is copy of labour expenditure. Exhibit 4 is a list of some of the investors. He added that the company gives general and personal mails regarding the welfare of the business. Exhibit 5 is a letter to complainant regarding the challenges the company had regarding the ‘Irrigation Farms Cabbage’. Exhibit 7 series are copies of statement of account, Crop Proposal Form with Ghana Agriculture Insurance Pool and - 5 - certificate of registration of Farmapp Hub Enterprise. Exhibit 8 is a document with pictures of some of investors at the farm land. 14. According to accused, as at June 2022 when the investigator visited the farm site, it was clear that the land had been farmed. He explained, however, that the 2021/2022 yield was not as expected. He attributed the poor yield to an act of God. He averred that as a result, investors did not receive their expected returns. However, the complainant was paid GHS2,535.00. Thus, GHS400.00 he, accused, personally paid before this case was instituted since the complainant was pressuring him for money and the GHS2,135.00 was the insurance cover (70% of the investment) that the company manager paid to complainant through the investigator after the case had been instituted. To accused, payment of the insurance cover as a result of the poor yield meant that complainant had been paid in full. Accused, therefore, maintained that he did not defraud the complainant by any false pretences. 15. Nyadia Hamza, DW1, indicated that she is an employee of Farmapp. She confirmed that the complainant was to receive 30% of the investment as interest per the agreement. However, due to the poor yield all investors were informed, including the accused, and that the 70% insurance premium was to be paid. She added that complainant could not wait for the insurance cover that was why the matter was reported to the police. To her, accused did not defraud the complainant and that this prosecution is actuated by malice. She stated that complainant was actively involved in the business and that the cabbage seedlings were purchased from complainant’s work. - 6 - 16. DW2, Nathalie Kouroma, in her witness statement stated that she is an investor. She tendered in evidence Exhibit 9, which is a copy of her agreement with Farmapp. Exhibit 9, from the evidence, is similar to Exhibits C and 1. 17. Osuman Mensah Maxwell testified as DW3. It is important to mention here that the prosecution caused to be struck out paragraph 13 of DW3’s witness statement for bad drafting. In brief, DW3 stated that Farmapp farmed during the 2021/2022 farming season, but the harvest was poor. He confirmed that the GHS2,135.00 was paid to the investigator in his presence and the GHS400.00 to the complainant via momo by the company. ANALYSIS OF FACTS AND LAW 18. The court in COP v Dwamina [1965] 1 WALR 55 held that in a charge of defrauding by false pretence, the rule is that there ought to be proof that but for the false pretence the person who parted with his money would not ordinarily have done so. The essential ingredients of the offence of defrauding by false pretence are stated in the recent case of Richard Kwabena Asiamah v The Republic [2020] DLSC 9911 where the Supreme Court speaking through Her Ladyship Torkornoo JSC held that, “the criminal enterprise of defrauding by false pretence requires …people to…consent to part with or transfer the ownership of a thing. They may obtain the consent directly or through personation of another person. For the charge of achieving this purpose…, these …people should have represented the existence of a state of facts, with the knowledge that such representation is false, or without the belief that it is true. They should also have made this false representation with an intent to defraud.” See also the cases of The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 and Kuma v The Republic [1970] CC 113. - 7 - 19. From the evidence, it is not in doubt that the complainant gave accused the GHS3,050.00. Subsequently, parties signed Exhibit C. Exhibit C was entered into on 1st October, 2021 and the delivery or ending date was 31st December, 2021. The issue at stake, however, is that after 31st December, 2021 the complainant was not paid the expected/guaranteed return of 30%. According to prosecution, complainant is entitled to the guaranteed interest and principal and that failing to carry through the said agreement, the accused has defrauded the complainant. Accused contended that due to the poor harvest, complainant is only entitled to 70% of his investment, which is the insurance premium. And that since that has been paid during the course of this trial, then there is not case pending. 20. From Exhibit 7B, Farmapp Hub Enterprise is registered on 5th July, 2021 as a sole proprietorship. Hence, the accused shall cease, forthwith, describing himself/itself as a limited liability company. Also, from Exhibit C which covers this present action, I find that the said agreement is defective. First, the Memorandum of Understanding is between “Farmapp Ghana” (not the same as Farmapp Hub Enterprise) on the one part and the Investor (complainant) on the other part. However, details therein refers to a Farmer (a company or an association called Safam Farmer Group) who also signed the agreement. From the evidence, it is clear that at the time of negotiating the agreement at Holy Cross Catholic Church the said Safam Farmer Group or its representative was not present. Notwithstanding this, complainant signed Exhibit C so it is binding on him. Secondly, the executory period of Exhibit C was from 1st October, 2021 to 31st December, 2021. Paragraph 14 of Exhibit C states that the Farmapp Ghana was, ‘to provide investors with bi-weekly information/reports of farm progress, market performance, outlook and requirements.’ However, Exhibit 5 was written on 17th May, 2022, a date way after the period for executing Exhibit C. It means that Farmapp did not provide its investors with the timely information - 8 - regarding its progress or challenges. This is a breach. Exhibit 5 was issued some few days to the complainant had reported the matter to the police. Clearly, accused is trying to cover up his lapses. Lastly, accused contended that there was a poor yield due to an act of God. However, in Exhibit 5, accused made reference to ‘perished produce, pest infections, land tenure issues etc’. I wonder if these will suffice as an act of God. Definitely not. 21. As earlier pointed out, the law is that to sustain an action in defrauding by false pretence, there ought to be proof that but for the false pretence the person who parted with his money would not ordinarily have done so. The accused may have obtained the consent directly or through personation of another person and that the money or property was given to the accused or any person or entity acting for and/or on behalf the accused. It is clear from the above that the accused is using his sole proprietorship business, Farmapp Hub Enterprise, to convince investors/sponsors to put in their money and guaranteeing them a return. Hence, failing to carry through his promise, the complainant reported the matter to the police. - 9 - 22. From the evidence, accused took the GHS3,050.00 from the complainant and guaranteed him 30% interest for the period 1st October, 2021 to 31st December, 2021. He failed to carry through this promise and when criminal action was instituted, accused began to cover up. Exhibit 5 cannot also inure to his benefit since the poor yield for the period under consideration cannot be attributed to an act of God. Same was not communicated, if any, to the complainant as stipulated in Exhibit C. The payment of the GHS2,535.00 either by the accused or his business or business manager will have no effect, save for consideration during mitigation. 23. On the totality of the evidence, I am satisfied that prosecution has succeeded in proving beyond reasonable doubt the charge of defrauding by false pretence against the accused person and I so hold. PRE-SENTENCING HEARING 24. Having heard from Abraham N. Damtar Esq., as a friend of the court and prosecution on mitigation, see pages 233-234 of the Record of Proceedings, I note that the accused is a first time offender. Accused is, therefore, fined 125p.u and in default shall serve a jail term of 5months. Again, accused is to compensate the complainant, Wisdom Abi, in the sum of GHS1,430.00 being the outstanding debt owed the complainant. 25. The prosecution is equally advised to pull the breaks on the business of the accused person as he appears to be guaranteeing returns, a looming problem similar to that of DKM and other investment portfolios which affected many people in this country. CONCLUSION - 10 - 26. In brief, I am satisfied that prosecution has succeeded in proving beyond reasonable doubt the charge of defrauding by false pretence against the accused person. Accused is, therefore, fined 125p.u. and in default shall serve a jail term of 5months. Again, accused is to compensate the complainant, Wisdom Abi, with the amount of GHS1,430.00 being the outstanding debt owed to the complainant, forthwith. 27. The prosecution is equally advised to pull the breaks on the business of the accused person as he appears to be guaranteeing returns, a looming problem similar to that of DKM and other investment portfolios which affected many people in this country. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. A. R. DAWUD FOR THE REPUBLIC ACCUSED APPEARED IN PERSON References: 1. Article 19(2)(c) and (d) of the 1992 Constitution 2. ss. 131 and 132 of the Criminal Offences Act, 1960 (Act 29) 3. ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323) 4. Gligah & Atiso v The Republic [2010] SCGLR 870 5. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 6. COP v Isaac Antwi [1961] GLR 408. 7. Owusu-Ansah v The State [1964] GLR 558 8. COP v Dwamina [1965] 1 WALR 55 9. Richard Kwabena Asiamah v The Republic [2020] DLSC 9911 - 11 - 10. The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 - 12 -