REPUBLIC VRS KWESI ORLEANS THOMPSON (D6/356/2022) [2023] GHACC 1053 (24 May 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 24TH DAY OF MAY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. D6/356/2022 THE REPUBLIC VRS KWESI ORLEANS THOMPSON ============================================================================== RULING ============================================================================== The accused was arraigned before this court on two counts of 1. Defrauding by False Pretences: Contrary to section 131(1) of the Criminal Offences Act 1960 (ACT 29). 2. Issue of False Cheque: Contrary to section 313A (1) of the Criminal Offences Act 1960 (ACT 29). The law provides under sections 173 and 174 of the Criminal and Other Offences Procedure Act, Act 30 as follows: 173. Acquittal of accused when no case to answer 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 the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174. The defence (1) 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 the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement. (2) The Court shall then hear the accused if the accused desires to be heard and the evidence the accused may adduce in defence. By this provision, it is the responsibility of the court at the end of the case of the prosecution to make a determination if a prima facie case has been made for the accused to be asked to open his defence before the Court. The principle for the determination as established by case law, is that, at the close of the case of the prosecution, the Court must determine whether a prima facie case has been made by looking at: a. There had not been sufficient evidence to prove the essential element in a crime. b. The evidence adduced by the prosecution had been so discredited as a result of cross examination that no reasonable tribunal could rely on the evidence. c. When the evidence was so unreliable that no reasonable tribunal could safely convict upon it. d. The evidence was evenly balanced, that is to say, that the evidence was susceptible to two likely explanations-one consistent with guilt, the other consistent with innocence. Where any of these exists, the court should acquit but where they are absent, then a prima facie case has been made. Therefore, at the close of the case for the prosecution the evidence led should be capable of displacing the presumption of the innocence of the accused. If this is done, then the court is justified to call on the accused to open his defence. See Tsatsu Tsikata v The Republic (2003-2005) 2 GLR 294, Ali Kassena v The State (1962) 1 GLR 144 and Apaloo v The Republic (1975) 1 GLR 156. The case of the prosecution is that the complainant in this case Ruth Lily Agbozo is a marketer whilst the accused is unemployed. Both the complainant and accused person reside at Adenta and members of Impact Project Music Ministry. In March 2019, the accused person made the complainant to believe that he has a high yielding investment scheme and asked the complainant also to invest in it for a monthly return of 20% interest on her principal. He also told the complainant that he has been awarded oil contract in Angola and needed One million USD and asked the complainant to invest in that venture. Due to these representations, complainant gave USD 23,500.00 equivalent to GHC 186,355.00 and GHC 22,000.00 to the accused person to invest same for her but failed to invest as he promised the complainant and all efforts made by her to retrieve the said amount from the accused person proved futile. The complainant then reported the case to the police and the accused was arrested. During investigation the accused person stated in his caution statement that he invested the complainant’s money on online investment platform but could not give any evidence to show that he actually invested the said money on any online investment platform. The accused person however agreed to refund the money and paid GHC 22,000 and USD 1700 out of the USD 23, 500. After investigation the accused was arraigned before the court. The accused pleaded not guilty to the charges and therefore it is the duty of the prosecution to prove the guilt of the accused as mandated by section 11 of the Evidence Act, 1975, NRCD 323 which states: “In a criminal action, the burden of producing evidence when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt”. See Oteng v The State (1966) GLR 355. Section 131(1) of the Criminal Offences Act, 1960 (Act 29)1 provides that, “a person who defrauds any other person by a false pretence commits a criminal offence.” Section 132 of Act 292 also provides that, “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. “ In section 132 of the Act, false pretence is defined as the representation of 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 the truth and made with the intention to defraud. Therefore, the prosecution has to prove that the accused made a representation to the complainant that at the time of making the representation he knew it was false and he made it with intention to defraud. Section 133 also provides that false pretence 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 is true and made with intent to defraud. In the case of Kuma v The Republic3 [1970] CC 113, It was held, Per Azu Crabbe and Anin J. A (as they were), that: for the prosecution to succeed on a charge of defrauding by false pretences, it must be proved that: (i) there was a mis-statement or personation by the accused which in law amounts to a false pretence, (ii) that the falsity of the pretence was known to the accused, (iii) that the accused thereby obtained the consent of another person to part with or transfer the ownership of anything and (iv) that the accused acted with intent to defraud. 1 Act 29, s 131(1). 2 Act 29, s 132. 3 Kuma v The Republic [1970] CC 113. Similarly pursuant to S.133 of Act 29 and as affirmed in the case of ABODAKPI v THE REPUBLIC [2008] 2 GMJ 33, for the prosecution to succeed in proving the offence of defrauding by false pretences, they are required 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 and that by that representation he obtained the consent of another person to part with something. The accused again was charged with the offence of issuance of false cheque and it is stated under Section 313A of the Criminal Offences Act,1960, Act 29 as follows: 313A. Issue of false cheque (1) A person who (a) without reasonable excuse, the proof of which lies on that person, issues a cheque drawn on a bank with which that person does not have an account, or (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. Prosecution has to prove that at the time of signing the cheque the accused had sufficient funds in his account to satisfy the value of the cheque. In COP v Danquah (1962) 2 GLR 144, the Court said, “The evidence proves conclusively that the pretence made by the appellant was false to his knowledge, when he represented that he had money then in the bank, or, at least reason- able hope that there would be money available to the bank, to pay the amount called for by the cheque, on the occasion he obtained the £G10 in exchange for what turned out to be a spurious cheque which was dishonoured on presentation.” In the case before the Court, the Prosecution in proving their case called 2 witnesses PW1, the Complainant, Ruth Lily Agbozo and PW2, the Investigator. PW1 gave evidence that the accused informed her of some lucrative investments he had done and encouraged her to do so and even though she was hesitant to commit herself into any investments, PW1 said the accused repeatedly spoke to her about the said investment and guaranteed personally to with his own money in case the investment went wrong. PW1 gave further evidence that the accused gave her further representation, which was later found to be false as the accused told her that he has been awarded an oil contract in Angola through his father’s friend and she believing that the accused will invest the money in the said oil business, she gave her various sums of money for both local and international investments which the accused promised to pay back in 12 months’ time with interest. PW1 gave further evidence that after the period of 12 months, the accused failed to pay the money and also reneged on all the deadlines for the payments. PW1 said further that for the past 2 years the accused has given her 10 different deadlines to make payments, but all proved futile. The witness said she filed a petition with the Director General CID to conduct investigation into fraudulent representation and when the accused was arrested, he admitted to the police that he did not invest her money in the oil business as he made her to believe but rather into bitcoin. PW1 concluded her evidence by saying that the accused during investigations issued three Access Bank Cheques with serial numbers 000003, 000004 and 000005 with total cheque value of 12,000 USD as part payment and when she presented the cheques for payments, they were dishonoured. PW1 ended her evidence that her case is that the accused person with intent to defraud her made a certain false representation to her that he could invest her money into profitable investment with high yielding interest and under such false representations defrauded her of USD 23,500 and GHC 22,000.00. PW1 was cross examined after her evidence in chief. PW2 gave evidence that on 23/02/2022, the Financial Forensic Unit received a petition through the Director General CID from a Law Firm Edfields Attorneys on behalf of the complainant (PW1) for investigation into a defrauding by false pretence case against the accused. PW2 said he arrested the accused and took an investigation caution statement from the accused and the accused confessed to the crime. PW2 said on 4/01/2022, accused person submitted six Access Bank postdated cheques covering the total sum he defrauded the complainant to him to be given to the complainant. PW2 said the cheques were to be cashed on different dates indicated on the cheques and the said cheques were handed over to the complainant. The investigator said when the cheques were dishonoured, and he informed the accused he did not say anything. PW2 in conclusion stated that investigations disclosed that the accused person made a false representation to the complainant that he has both local and international investment with high returns and convinced the complainant to invest in them. PW2 said the accused alleged that he invested the money in Bitcoin trade which got crashed but he could not provide any evidence of Bitcoin trade he undertook during the investigation and also exhibited no knowledge in Bitcoin business. The prosecution through the witnesses tendered before the court: Exh. A – Investment Agreement Exh. B – Petition against the accused Exh. C – Investigation Caution Statement Exh. D – Further investigation caution statement Exh. E – Charge Statement Exh. F Series – Cheques written by the accused including the once presented by the complainant. During the proceedings the defence also tendered exhibits 1 and 2 through the complainant PW1 and they were admitted into evidence. Exh. 1 – writ of summons and statement of claim at the High Court between the complainant and the accused. Exh. 2 – Email communications between the complainant and one Abigail Orleans Thompson who is supposed to be the wife of the accused person. During the trial the prosecution witnesses produce oral and documentary evidence to support the case of the prosecution. Exhibit A was signed by both the accused and the complainant which indicates the various amount of money that the accused received from the complainant. During the cross examination of the complainant, PW1, the evidence of PW1 with respect to monies received by the accused was not challenged by the defence. PW1 in her evidence paragraph 20 stated, “That during the investigation of this case accused person issued three Access Bank cheques with serial numbers 000003, 000004 and 000005 with total face value of USD 12,000.00 as part payment to refund the money to me through the investigator but when I presented the said cheques for payments, they were dishonoured”. This evidence by the complainant PW1 was not challenged at all during cross examination by the defence. Prosecution tendered exhibits C and D before the court which were admitted into evidence without any objection from the defence. Exhibit C was the investigation caution statement of the accused and D was the further investigation caution statement. From exhibit C the accused in his statement agreed to the figures that have been put across by the prosecution. In exhibit D the accused stated in his further investigation caution statement, and I quote “I was put before the Commander of F. F. U. and I explained to her how I lost the investment through online forex trading. I was asked by the Commander if I had evidence to show the loss of the investment, but I said No I don’t, as the website had crushed. Based on this, I promised the Police that I ‘ll refund the complainants monies being USD 23, 500 and GHC 22,000 by 29th of October 2021”. From this documentary evidence which is before the court and the totality of the evidence of the prosecution, both oral and documentary, I am of the opinion that the prosecution has been able to make a case against the accused before the court. I therefore come to the conclusion that a prima facie case has been made against the accused with respect to the two charges brought against him and he will be called upon to open his defence. HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE.