REPUBLIC VRS GOODMAN ADAMS (D6/327/2022) [2023] GHACC 1044 (18 May 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 18TH DAY OF MAY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. D6/327/2022 THE REPUBLIC VRS GOODMAN ADAMS =================================================================== RULING =================================================================== THE OFFENCE CHARGED The accused was arraigned before this court on one count of “Issue of False Cheque: Contrary to section 313A (1)(b) of the Criminal Offences Act 1960 (ACT 29). THE LAW ON SUBMISSION OF NO CASE AND ACCUSED TO OPEN HIS/HER DEFENCE 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, at the close of the case for prosecution, the court has a responsibility to make a determination if a case has been made against the accused for him to answer before the court. THE PRINCIPLES FOR THE DETERMINATION OF SUBMISSION OF NO CASE The principle is that at the close of the case of the prosecution, the Court must determine whether or not a prima facie case has been made against the accused. and that will necessitate the court to acquit and discharge an accused person or order the accused to open his defence. The four principles developed through case is that when: 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 the accused 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 when any of the above does not exist. If that is the case, then the court is justified in calling 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. PARTICULARS OF THE OFFENCE The particulars of the offence is: “Goodman Adams, Age 35 yrs., Distributor:- For that you on the 20th Day of January 2021 in Accra in the Greater Accra Circuit and within the jurisdiction of this court, did issue First Atlantic Bank Cheque No. 065451 with face value of GHC 113,300.00 to be drawn by Selassey Kofi Adjorkatse at the said Bank, Community 1 Branch, Tema on 20/05/2020, when you had no grounds to believe that you had adequate funds in your account to pay the amount specified in the cheque, within normal course of Banking business. FACTS OF THE CASE The case of the prosecution is that Complainant Selassey Kofi Adjokatse is an internal auditor at the Ministry of Defence and resides in Tema. Accused Goodman Adams is a Trader, a resident of Tse Addo, Accra. The complainant is a friend to the accused person. During the month of April 2019, accused approached the complainant for financial assistance to invest in his trade. Complainant advanced GHC 30,000.00 to the accused which he paid back as agreed. During the month of January 2021, the accused again approached the complainant for financial assistance for his business. Complainant told the accused he did not have money but could seek help from his friends. Complainant later informed the accused that his friend was ready to lend him the money at the rate of 10% monthly interest. Accused agreed and collected cash, the sum of GHC 272, 526.00. During the month of February 2021, the accused issued the First Atlantic Bank Cheque No. 065451 with face value of GHC 113,300.00 to be drawn by the complainant on 20/05/2021. However, the cheque was presented on 21/05/2021 but it was dishonoured. Complainant reported a case to Police and accused was arrested for investigation. Accused in his caution statement admitted the offence and stated that, he wrote a letter to the bank to stop the cheque. During the investigation, the court ordered the disclosure of information which was obtained and served on the bank. Report from First Atlantic Bank indicated that, accused does not have sufficient funds in his account. Further investigation revealed that the account was not functional, that since the account was opened on 24/02/2017, it has only GHC 1,000 with few transactions effected. From the above report, it seems that, accused opened the said account as a cover up to defraud unsuspecting victims. After investigation accused was charged with the offence and put before the Honourable Court. PRINCIPLES OF LAW The accused pleaded not guilty to the charge 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 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 did not have sufficient funds in his account to satisfy the value of the cheque. It must be noted that the accused was charged under section 313A (1)(b) under Act 29 and not section 313A (1) (c) In COP v Danquah (1962) 2 GLR, 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.” HEARING OF THE CASE In the case before the Court, the Prosecution in proving their case called 2 witnesses. PW1 – Selassey Kofi Adjokatse, the complainant per the facts of the case. PW2, the Investigator. PW1 said in his evidence that the accused approached him for financial assistance, which was a toll on him, so he spoke to some friends of his and consequently one Justina Frimpong offered some amount of money, to the tune of GHC 103,000.00 to him which he handed it over to the accused on the 20th November 2020. PW1 said sometime in February 2021, the accused gave him a cheque he issued in the name of Justina Frimpong for an amount of GHC 113,300 in the name of Justina Frimpong to be paid on 20th May 2021. PW1 said on 19th May,2021, the accused sent him a WhatsApp message not to present the cheque to the bank for payment but upon the instruction of Justina Frimpong he paid the cheque into her account, but the cheque was dishonoured. PW1 said the accused made several promises to settle his indebtedness towards Justina Frimpong but has refused, neglected and failed to keep his promises, leading to Justina Frimpong giving him countless pressure to pay her back her money. PW1 concluded that the accused deliberately issued the cheque in February 2012 to deceive him for which he took steps on the 10th August 2021 to report at Accra Regional Police command for assistance. PW1 tendered exhibits A and B before the court. Exhibit A – Personal Loan Agreement and exhibit B was a copy of the dud cheque issued to the accused. Prosecution called PW2 afterwards and PW2 said, on 10/08/2021, the complainant called at the Regional CID, Accra and reported that accused Goodman Adams issued him with First Atlantic Bank Cheque No. 065451 with the face value GHC 113,300.00 dated 20/05/2021 and when the cheque was presented on its maturity date, it was dishonoured. PW2 corroborated the evidence of PW1 and stated further that on 21/05/2021, the cheque was presented but it was dishonoured, and investigations unmasked that, there were not enough funds in the accused account to pay the face value of the cheque. PW2 tendered exhibit C – H before the court. Exhibit C – Investigation Caution Statement of Accused dated 11/08/2021. Exhibit D – Charge Statement of Accused dated 30/08/2021. Exhibit E – Copy of letter stopping cheque by the accused. Exhibit F – Copy of Statement of Account by Accused. Exhibit G - Statement of Justina Frimpong Exhibit H – WhatsApp communication between the parties. After this the prosecution closed their case and this was after both witnesses had been cross-examined by the Defence Counsel. ANALYSIS OF THE CASE During the hearing of the case from the prosecution, PW1 was the complainant and he tendered exhibit A and B which were the personal loan agreement and copy of the dud cheque issued by the Accused. Exhibit A was however not an agreement between the complainant PW1 and the accused, but it was an agreement between one Madam Justina Frimpong and the accused and the complainant, PW1 name was on it as the witness. From exhibit A the said Madam Justina did not sign. Exhibit B, which was also tendered by the PW1, the complainant was also written in the name of Justina Frimpong, and it was a “Stock Trade Company Limited” company cheque signed by the accused. From this it means that the cheque was issued to the said Justina Frimpong and not the Complainant/PW1 as the particulars of the offence appeared to suggest. The complainant PW1 in his witness statement, paragraph 8, stated “Sometime in February 2021, the accused gave me a cheque he issued in the name of Justina Frimpong for an amount of GHC 113, 300.00 in the name Justina Frimpong to be paid on 20th May, 2021”. During Cross Examination this is what transpired between the complainant PW1 and the Counsel for the accused: Q9. Tell the court why you are here to testify. A. Issuance of dud cheque my Lord. Q10. Take a look at exhibit B, on exhibit B you would agree with me that there is nowhere in exhibit B that says that the cheque was returned because there is insufficient funds. A. Yes, My Lord Q11. Take a look at the person to whom the cheque was issued to, that is not you. A. Yes, my Lord. Q12. The person whose name is on the cheque did not make any complaint to the police. A. Yes, my Lord. Q13. So, it is true is it not that the cheque for which you are here to testify is not a subject of complainant to the person whom it was issued to. A. Yes, my Lord, however, the agreement signed upon which this cheque was issued to the name on the cheque has my name on it. That agreement was between myself and the accused person. Q14. The agreement you are referring to is exhibit A is that correct. A. Yes, my Lord. Q15. Take a look at exhibit A you will agree with me that there is no name on the lender, correct. A. Yes, my Lord that was a mistake. Q17. And as a matter of fact, your name is there as a witness is that correct. A. Yes, my Lord. From the responses of PW1 it is obvious that the agreement was not between himself and the accused as he stated before the court. From exhibit A the agreement was purported to be between the accused and the said Justina Frimpong even though it was not executed by the said Justina Frimpong. The complainant PW1 was further cross examined about the agreement and this is what he said: Q25. And as a very experienced auditor working for the Ministry of Defence a prestigious position, a contract which is not executed by both parties is nullity is that correct. A. No My Lord I am aware that contract are not only in document but also verbal and through other forms of communication i.e. Whatsapp, email, which I have evidence to those as well. Q26. But you never stated in you witness statement that in this particular transaction was an oral agreement. A. Respectfully paragraph 3 of my witness statement it reads (witness reads). All these were verbal, it was not documented he calls me anytime and I go round chasing money for him. 27. So per your paragraph 3 you are saying that the verbal agreement was between you and the accused person, is that correct. A. It is not correct. It was between me, the accused and other lady. This evidence contradicts the evidence on record as the contract per exhibit A was between the accused and the Lady called Justina Frimpong whose name was on the cheque and the complainant before this court, PW1 signed as a witness. From his answers which he changed when he was confronted by Counsel for the accused, he now changes his answer from the contract between him and the accused to the contract between him, the accused and the other lady and also says the contract was also verbal. The complainant PW1 was also confronted by Counsel for the accused with respect to the case of the accused, as he stated in his investigation caution statement to the police (exhibit C), that the accused wrote to the bank to stop the cheque, and this was his response: Q33. Are you aware that the accused person stopped the cheque by writing to the bank and also informing the lady Justina in question that she should not present the cheque because cash is available and that was the agreement between the accused and Justina, are you aware of that? A. Yes, my Lord. Respectfully that was the day before I presented the cheque and the lady said no and that was why the lady directed me to present the cheque. From the evidence that is before the court presented by the prosecution to make a case against the accused, there is no documentary evidence that the cheque was presented by the said Justina Frimpong whose name was on the cheque and same was dishonoured because there was lack of funds. From exhibit B, which had the front and back page of the cheque, there is no indication of “returned to drawer” as is usually done by the Banks. Prosecution tendered exhibit F, which was the account statement, which cheque was issued by the accused. From this exhibit there was no transaction of returned cheques with the accompanied penalty which is usually charged by the banks when a cheque is dishonoured for lack of funds. Rather there is a transaction on the 19th of May 2021 indicating stop cheque charge and the transaction was a debit of GHC 7.5. This affirms the case of the accused per his statement to the police that he wrote to the bank to stop the cheque. Prosecution also provided a letter signed by the accused to the bank to stop the cheque which also goes to affirm the case of the defence that the cheque was stopped by the accused. And during cross examination of the investigator PW2 when she was asked about the reason the cheque was not paid in Q29, 30, 31 and 32 she referred to exhibit F. And as stated from exhibit F the reason per the document why the cheque was not paid was not as a result of lack of funds but was as a result of the fact that the accused had stopped the cheque and the account has accordingly been charged by the bank. And this was done before the cheque was presented by the complainant to the bank. The evidence before the court is therefore that the cheque was stopped by the accused and not dishonoured as a result of the fact that there was lack of funds. PW1 during the cross examination also admitted to the fact that some of the money has been paid and also admitted that this same case is pending before court 7. And from the records there was no explanation to this situation why the case is in this court and also before court 7. Q36. Before you came to this honourable court this matter is before circuit Court 7 is that correct. A. Yes My Lord. Q37. Of the same fact, same content, same cheque, same bank and same parties correct. A. Yes my Lord. Q38. And you will agree with me that an amount of GHC 5000 was paid on 27th July 2022 to the Inspector Nana Akomeah. A. Yes, My Lord. When PW2 was also cross examined, she contradicted the evidence of the complainant, PW1, and her own case before the court. Q10. Did your investigation also reveal that the accused forewarned the complainant not to present the cheque as it has come to his notice. A. Yes, but I do not know if the notice was given before or after the cheque was presented. Q11. I am suggesting to you that it was brought to his attention, and he was told not to present it and he went ahead to present it. I am suggesting to you. A. I do not agree with you. From the evidence and record of proceedings, the principles as enunciated above as developed by case law over the years, if one of the principles exist then there is a ground for the court as provided under section 173 of Act 30 to uphold the ground for submission of no case or come to the conclusion that no case has been made against an accused, which also necessitates the accused to be acquitted. Therefore, in summary, the prosecution could not call the right witnesses and could not produce the necessary evidence to prove the ingredients of the offence brought against the accused person. It is trite law that the onus of proof which is always on prosecution if that onus is not successfully discharged a submission of no case should be upheld. See Donkor vrs The State (1964) GLR 598 SC and Nyarko vrs The State (1963) 2GLR 59 SC. In the case of Mali vrs The State (1965) GLR 710-715, holding 4, it was held that, “where at the end of the case for the prosecution the court requires further evidence before it can decide on the issues raised in the case for the prosecution, the irresistible inference is that the prosecution has failed, and the accused should be acquitted”. Also, in the case of Logan & Laverick v The Republic (2007-2008) 1 SCGLR 76 @ page 87, the Court stated, “In the instant appeal, it is clear that there is no evidence on record to support conviction. Section 173 is mandatory; the operative word is “shall”, thereby giving no option to the trial court where a case is not made out against the accused sufficiently to require to him to make a defence. There being no such evidence, the trial court erred in calling upon the appellants to make a defence”. CONCLUSION Therefore, submission of no case will be upheld, in line with all the authorities supra, as essential elements of the offences has not been proven, the evidence of the prosecution has been discredited and no reasonable tribunal could rely on the evidence. The evidence was also unreliable for any tribunal to convict on same. In the circumstance, the accused person will be accordingly acquitted on the charge brought against him as required by the law. HIS HONOUR KWABENA KODUA OBIRI- YEBOAH, CIRCUIT COURT JUDGE. 13