The Republic V Abusuapanyin Cudjoe and 3 Others [2023] GHADC 70 (2 June 2023)

CORAM: HER HONOUR (MRS.) ROSEMARY EDITH HAYFORD, SITTING AS ADDITIONAL DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON 2ND JUNE, 2023 __________________________________________________________________ COURT CASE NUMBER 29/2019 THE REPUBLIC V 1. ABUSUAPANYIN FRANCIS CUDJOE 2. OPANYIN KOJO KUMFO 3. JOHN LARBI 4. BROTHER KOJO ------------------------------------------------------------------------------------------------------------- TIME: 9:35 AM 3RD ACCUSED PERSON - PRESENT 4TH ACCUSED PERSON - PRESENT CHIEF INSPECTOR JENNIFER BOAKYE ACHEAMPONG FOR PROSECUTION F. F. FAIDOO FOR THE ACCUSED PERSONS ___________________________________________________________________ JUDGMENT The Accused Persons herein were charged with three offences; Conspiracy to commit crime contrary to section 23(1) of Act 29; Fraudulent Land Transaction under section 34(a) & b of the repealed Land Registry Act, 1962, Act 122 and Non-Confirming Land Allocations and Transactions contrary to section 105 (2) and (3) of Local Government Act 936 of 2016. According to the particulars of offence on count one, in the year 2014, at Whindo in the Western Magisterial District and within the jurisdiction of this court, the accused persons did agree to act together with a common purpose to commit a crime to wit: Fraudulent Land Transaction and Non-confirming Land Allocation. Per the particulars for the charge of Fraudulent Land Transaction, on the aforementioned date at Whindo, within the jurisdiction of the court, the accused persons knowing that they are not the rightful owners and also have no title to a portion of land located at Whindo belonging to Nana Kwapong Aboah did fraudulently lease the said land to some unknown developers. For count 3 the particulars are as follows: In the year 2014, at Whindo within the Magisterial District and within the jurisdiction of this court, the accused persons subdivided an approved planned scheme land which does not belong to them or have no title and sold same to people for developing. The accused persons pleaded not guilty to the charges after they were read and explained to them in fante. The 1st Accused Person in the course of the trial differently constituted changed his plea and was convicted and sentenced. Subsequently, he became the second prosecution witness when the case was started de novo. BRIEF FACTS Per the alleged facts, the complainant Nana Kwampong Aboah II privately known as Sandy A. Mensah is a Land Administrator living at Anaji whilst accused person Abusuapanyin Francis Kudjoe is the family head of the Ebiradze family of Kwesimintsim. Accused person Opanyin Kojo Kumfo is an elder of the family whilst accused persons John Larbi alias Brother Kwame and Brother Kojo also known as Kunzuah, now at large are members of the family. In the year 2014, accused persons headed by late Abusuapanyin Ekow Begoro approached the complainant to assist in ensuring that their family land at Whindo is legally registered by way of statutory declaration at Lands Commission, Sekondi as well as properly plan same by the Town and Country Planning Department. The complainant engaged all the professionals and the job was executed. The complainant was then paid by way of plots. The plots given to the complainant were demarcated and the family including the accused Opanyin Kojo Kumfo executed the deed in favour of the complainant. Again, the complainant bought some of the plots for his wife, Madam Gladys and some friends and registered them as well. The complainant thereafter cleared all the trees and paid the family members who were having their farm on the land and began to develop same. A few years after the demise of Abusuapanyin Ekow Begoro, accused Ebusuapanyin Francis Kudjoe who succeeded him as the family head and the other accused persons turned themselves as land guards threatening the complainant and his people with cutlasses and raining insults at them anytime they visited the land to work. The complainant on 16/07/2018, reported the incident to police. The houses of the accused persons were severally visited but the police met none of them. Accused Abusuapanyin Francis Kudjoe and Opanyin Kojo Kumfo were contacted severally on the phone to report at the station to assist with investigations but they failed. Criminal summons were therefore served on them to appear before this honourable court. On 28/08/2018, A1 and A2 were in court leaving A3 and A4. The court granted the two bail and ordered the arrest of the other two. The same day, three of the accused persons reported at the station leaving A4 who is now at large. Accused persons in their caution statements told police they preferred speaking at the court to the police. After investigations, accused persons were charged with the offences stated on the charge sheet and brought before this court. The Evidence Act, 1975 (NRCD 323) imposes a strict and uncompromising statutory obligation on the Prosecution to adduce such admissible, relevant, intelligent and incontrovertible evidence to establish its case beyond reasonable doubt as the accused persons have pleaded not guilty to the charges, two (2) basic things must be looked at: a) b) That the Prosecution’s evidence must not raise any doubt as to the commission of the crime. That each and every element of the offence which the accused is charged with which is a sine qua non and/or a condition precedent to securing conviction must be adequately proved. See: Apaloo v. The Republic (1975) 1 GLR 156 The statutory obligation of the prosecution becomes very strict particularly when the case of the prosecution is specifically denied by the accused person. See: sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323). In the Supreme Court case of Richard Banousin v. The Republic (Criminal Appeal No. J3/2/2014 dated 18th March, 2015), JVM Dotse, JSC expounded the law on the burden of proof in criminal matters as follows: “It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases. A corollary to the above rule is based on the fact that an accused is presumed innocent until he is proven guilty in a court of law. This the prosecution can only do if they proffer enough evidence to convince the Judge or jury that the accused is guilty of the ingredients of the offence charged. The prosecution has the burden to provide evidence to satisfy all the elements of the offence charged… The burden the prosecution has to prove is the accused person’s guilt and this is proof beyond a reasonable doubt. This is the highest burden the law can impose and it is in contra distinction to the burden a plaintiff has in a civil case which is proof on a preponderance of the evidence. What “beyond a reasonable doubt” means is that the prosecution must overcome all reasonable inferences favouring innocence of the accused. Discharging this burden is a serious business and should not be taken lightly. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond a reasonable doubt can thus be formulated thus:- “An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.” … Reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt.” The prosecution in their bid to discharge the burden placed upon them called four (4) witnesses and tendered twenty-five (25) exhibits in evidence while the 3rd and 4th accused persons gave evidence and did not call any witness. The 2nd Accused person passed on in the course of the trial. The Prosecution also filed witness statements for two other witnesses but the same were struck out as withdrawn. In this judgment, the evidence of all the witnesses together with the exhibits tendered by the prosecution and the accused persons’ defence will be discussed as I go along. The issues to be determined are 1. Whether or not accused persons agreed to act together with a common purpose to commit a crime 2. whether or not the accused persons fraudulently sold land they did not have title to, belonging to another person to other persons 3. Whether or not accused persons subdivided an approved planned scheme which did not belong to them and sold same to other developers I shall discuss issues two and three first as their determination will help resolve the issue one above. The accused persons were charged under Section 34 (a) and (b) of Land Registry Act, 1962 (Act 122). This Act however has been repealed by the Land Act 2020, Act 1036 but Section 282(2) of the same Land Act saved section 34 (a) and (b) of Act 122. It provides as follows: “34. Offences for fraudulent transactions A person who knowingly (a) purports to make a grant of a piece of land to which that person does not have title, or (b) purports to make a grant of a piece of land without authority, commits the offence of a second-degree felony and is liable in addition to any other punishment that may be imposed, to pay an amount of money equivalent to twice the value of the aggregate consideration received by that person. To constitute the offence therefore the elements that are required to be proved by the prosecution are: 1. That the Accused Persons leased or granted a piece of land to another person 2. That the land leased does not belong to the Accused persons or they do not have title to the said land or that the Accused Persons are not the rightful owners of the land. 3. That said land belongs to another person instead of them. 4. That the accused persons fraudulently leased land that does not belong to them to another developer. It is the evidence of PW1, who is also the complainant, that sometime in 2014 A2 and Elders of Abiradze family of Kwesimintsim and Apremdo headed by Abusuapanyin Ekow Bogoro and others approached him to assist them to ensure that their land at Whindo was legally registered by way of a statutory Declaration. Further to ensure that their land was properly planned by the town and country department of Sekondi Takoradi Metropolitan Assembly (STMA) and the plot demarcated and pillared by surveyors. Exhibit A, the document showing the entire area was tendered. PW1 avers he engaged the relevant professionals and the said job was executed. The family paid for his services and those professionals by way of plots and the same was documented and registered at Lands Commission. PW1 tendered Exhibits B and C in support. According to PW1 he also purchased some of the land from the family and supported same with Exhibit D. PW1 avers that the accused persons have turned themselves into land guards and have been terrorizing plot owners. They have also illegally subdivided the plots into half and quarter plots and have been selling them to people for development. PW1 says he reported the matter to the police. Under cross examination, PW1 stated that the family impressed upon him to buy the school plot/site, however, the accused persons have parceled the school plot/sites into quarter plots and therefore have distorted the use of that site as a school site, they have even sold the access road. He avers the Accused Persons sold the plot he purchased, that is PT Nos. 117 – 126. He further says his wife bought 6 plots and same have been sold by the Accused Persons. The burden, therefore, was on the Prosecutor to prove that the Accused Persons indeed sold the said plots of land that do not belong to them. Under cross-examination, PW1 mentioned that the Accused Persons sold the land to one Prudence Afful and Paul Ocran, yet this is not supported by any evidence besides the mere averments. Those persons that PW1 claimed Accused Persons sold the land to were never called to corroborate his evidence. PW1 also indicated that he had found all these people but there was no evidence of that before this court having been strongly denied. Again, PW1 mentions actions in various courts involving the Accused Persons and those they sold the land to, however, nothing of the sort was presented in court. There was no document or lease, in effect no evidence that mentions or shows that the Accused Persons sold land to these people PW1 mentioned were tendered in court. Further, under cross-examination, PW1 said he found some people on the land who said Accused Persons sold the land to them however, they were never called. PW1 further mentioned other people like Mr. & Mrs. Asamoah Darko, Dr. Danso who according to him had their lands sold by the Accused Persons. The accused person vehemently denied this claim yet none of these people was called in court by the prosecution. When he was pushed under cross-examination that his evidence does not suggest so, PW1 indicated that his evidence was the complaint he made to the police. But the law is that the onus is on the prosecution to establish all the ingredients of the offence by leading sufficient evidence, however, the prosecution failed as only mere averments were made and in the midst of the denial by the accused persons, more evidence should have been led to establish the fact. PW1 further informed the court that as a result of that he even instituted a civil action in another court and when it was denied, no proof was made available to the court. Counsel for the accused persons seems to suggest that because PW1 could not show his receipt for payment, there was no sale of the land to him. But Exhibits C & D clearly shows that there was a transaction between PW1 and the family then represented by the former Ebusuapanyin. It must be noted that Accused Persons do not deny this fact, their contention is that PW1 even though had been paid in land by the family, used his power to register more lands in his name. It must be noted that even though this allegationwas made, the Accused Persons also could not establish this fact, no evidence to that effect was tendered to establish same. PW2 claims to be the Ebusuapanyin and a member of Abiradze family of Apremdu. Accused Persons are also members living in Kwesimintsim. He says he was informed by A1, Kojo Kumfo sometime in 2015 that the family owns about 200 acres of land at Whindo which the complainant wants to take, and that he was able to convince him that the land was theirs and he joined the Accused Persons to sell some of them. He stated that the matter was reported at the police station and subsequently, this action was instituted at the Sekondi court. According to him in the course of the trial, he was informed by some elders of the family that some portions of the land claimed by the Accused Persons actually belonged to the complainant (PW1). The said elders said it was PW1 who worked on the whole land for the family and the family in turn sold some plots to PW1 which proceeds were used to build the family house in Kwesimintsim, based on this he pleaded guilty and was convicted and sentenced to pay a fine. PW2 stated that the land belongs to PW1 who acquired it legally from the family and that the Accused Persons are just using foul means to claim land from PW1. Under cross-examination, PW2 who claims that the Accused Persons did not tell him the truth regarding the land, stated that he as Ebusuapanyin had sold only 2 plots of land, however, the 2 plots that he sold were not part of PW1’s plot that the family gave him. Below is what transpired at pages 35 & 36 of the record of proceedings: Q. You know that it is only the Ebusuapanyin who can sell family land together with his elders. A. I am aware but when I assumed the throne as head of family, my predecessors had sold all the lands. Q. So ever since your purported appointment, you have never sold any land? A. I have sold family land. Q. How many plots of land have you sold since your purported appointment? A. 2 plots X X X Q. Those two plots you claim to have sold, you believe they belong to PW1, is that it? A. Those two do not form part of PW1’s land, PW1’s land about 10 plots are separate plots given to him by my predecessors. Q. Have you sold any of the 10 plots you claim your predecessors gave PW1? A. No. However, in PW2’s witness statement, he stated at paragraph 10 as follows: “10. He was able to convince me to believe that the land is ours and joined Accused Persons to sell some of them”. There seems to be some contradiction here, in one breath, Accused Persons convinced him and they sold some of the plots, in another he did not sell any apart from the 2 plots that he says were not for PW1, yet PW2 could not show to the court the exact land he sold with the Accused Persons. I do not find the evidence of PW2 credible, it was merely based on hearsay. He said some elders told him that. PW2 even though stated that he was the Ebusuapanyin of the family could not tell the total number of plots that his family sold to PW1 or that registered in his name. Again, he stated that the family sold the land to PW1 in 2014, however, Exhibit C clearly shows that it was in 2005 and not 2014. PW2 now changes his story that he was then not the Ebusuapanyin in charge and that he was only told. However, what he claims he was told is totally different from what PW1 himself said in respect of the acquisition. It is noteworthy that even though PW2 made an averment that the Accused Persons are selling PW1’s lands or has sold to others yet he could not tell the court the said land that had been sold or the people Accused Persons sold same to. PW3, Nana Nware Ezia is the Gyasehene of Apremdo. She stated that her family gave some farmlands to the Accused Persons and their family members which were land converted to residential after pleas from them. According to her, the Accused Persons came with the complainant. The family confirmed to her they had given the complainant 16 plots to compensate for the work done and that the complainant also personally bought some of the land. PW3 stated that the complainant later went to inform her that the Accused Persons have divided the plots into half and quarter plots and selling same to people. She said she reported the Accused Persons to the police for selling some plots they gave her. From the evidence of PW3, she did not have first-hand knowledge that the Accused Persons sold the complainant’s land save what was told her by the complainant, not that she saw it herself. That is purely hearsay evidence, which is inadmissible. PW3 could not tell the people the Accused Persons sold the land to or produce any documents/evidence to that effect. She told the court that A4 has sold her personal land. She had already reported the matter to the police station. Whether this assertion is true or not is not a matter before the court so I shall refrain from commenting on same. The investigator was the next witness called, even though his witness statement was labelled as PW6. He was the 4th witness called therefore same is relabeled as PW4. He stated that when the matter was reported at the police station, he was detailed to conduct the investigation on 16/07/2018. He stated that on 20/07/2018, he visited the land in contention at Whindo, inspected the place, interviewed some persons around and took some pictures. He avers that that same day he visited the house of the Accused Persons but did not meet them so he issued an accused summons, same was granted and served on them. Subsequently, the Accused Persons appeared in court and they were handed over to the police. PW4 stated that Accused Persons gave their statements to the police and they were asked to be charged. PW4 tendered their caution and charge statements in evidence as Exhibits G – M. PW4 further stated he took pictures at the complainant’s site and tendered Exhibits E, F, F1-F9 as proof. PW4 further indicated that he chanced upon a land document prepared by the Accused Persons to one Cecilia Appiah Sagoe which could not go through at the Lands Commission, Sekondi for registration as the said land appeared to have been registered in the name of John Mensah, same was tendered as Exhibit O and O1. PW4 also tendered Exhibit P a site plan bearing the name of Prudence Afful that he claimed was prepared by the Accused Persons in respect of plot number 117 into quarter plots. I have looked at the Exhibits tendered by the investigator. In respect of Exhibits E, F, F1-F9, these are pictures supposedly taken on the land of the complainant, on the back of all the exhibits are for example the following inscription: “a number of cement blocks packed on the complainant’s land leased to someone by the Accused Persons. On another “building under construction on complainant’s land sold by the Accused Persons”. “A building at the lentil level at the complainant’s land sold by the Accused Persons”. The complainant’s land being sold to developers by the Accused Persons. This runs through all the Exhibits. The investigator could not tell the court the persons the Accused Persons sold the land to, “The developer” or “someone” does not mean anything. Neither could the investigator show nor prove that these Accused Persons indeed were the persons who sold or authorized the supposed persons or developers on the land. No evidence whatsoever was led except the mere averments. The investigator indicated in his witness statement that he interviewed some persons around, but he does not tell the court who these persons are and the findings of his investigation from these supposed persons he interviewed. Furthermore, a critical study of Exhibit O has nothing to do with Cecilia Appiah Sagoe who the investigator claims the Accused Persons sold the land to. Exhibit O is a letter with the heading Ebiradze Ebusua Tekyi Kwow Family of Apremdo, Kwesimintsim, Apremdo dated 18th September, 2019 addressed to the Head of PVLMD Lands Commission, Sekondi in respect of the registration of Plot No. 96 at Whindo. This letter was signed by Ebusuapanyin Kow Begoro (Head of Ebiradze Family of Kwesimintsim). It must be noted that Ebusuapanyin Kow Begoro has not been charged in this court, in fact, he is deceased. Exhibit O does not bear the names of either of the Accused Persons. The same would apply to Exhibit O1 which the investigator claimed was prepared by the Accused Persons to one Cecilia Appiah Sagoe when she tried to register land that was leased to her by the Accused Persons. Exhibit O1 is a letter from Lands Commission addressed to Cecilia Appiah Sagoe and the subject was captured: “RE: Application for processing and Registration on Plot No. 96 Situate at Whindo”. Indeed, the content as stated was correct as stated by PW4. Lands Commission stated that the Registration could not go through because the land forms part of a lease dated 10th November, 2005 and made between Ebusuapanyin Kow Begoro of Ebiradze family at Kwesimintsim and Kofi Mensah (PW1) for a term of 99 years from the date of lease. It must however be noted that this said letter was copied to Ebusuapanyin Cobbina Boye, head of family of Nsona Family of Whindo. It is noteworthy that none of the Accused Persons is known by that name. Again, a look at Exhibit O2, a site plan with the name Cecilia Appiah Sagoe and it is signed. PW4 stated that it was given to the said person by the Accused Persons however, same is denied by the Accused Persons. The same would apply to Exhibit P, the supposed site plan bearing the name Prudence Afful. The Accused Persons vehemently denies the claim of any sale to the named person. The burden was then on the prosecutor to have led cogent evidence. What is even surprising is that none of the persons the prosecutor claimed the Accused Persons sold the land to was called to testify in this matter. These were key witnesses and failure to call a material witness may result in a ruling being given against a person for the reason that he has failed to establish that case: See NRCD 323, s11 Owusu V Tabiri [1987 -88] 1 GLR 287” Under cross-examination, the following questions were put to PW4 the investigator: “Q. In your paragraphs 14 & 15, you mentioned Appiah Sagoe and Prudence Afful as persons the Accused Persons sold the land to, is that correct? A. That is correct. Q. These persons are alive, they are not dead, is that correct? A. I cannot tell whether they are alive or dead. Q. You also did not meet either of them during your investigation. A. No.” Clearly from the above, it is evident that PW4 as investigator failed to conduct a proper investigation to establish whether or not the Accused Persons indeed sold the complainant’s land to other persons. The Accused Persons’ defence was that the family authorized PW1 to demarcate and register their family land. They rewarded PW1 with 10 plots, however, PW1 registered over 60 plots in various names and registered over 20 in the name of his wife. Indeed, much as the Accused Persons could not prove this, there is no burden on them to do same, the burden is rather on the prosecutors to prove the guilt of the Accused Persons beyond reasonable doubt. However, they failed to do so. They failed to prove that the Accused Persons indeed sold PW1’s land to others. It is my considered view that the prosecutor failed to gather enough information to satisfy the element of fraudulent land transaction. In the case of Commissioner of Police v Antwi (1961) GLR 408, SC, it was held that the Accused Person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt, indeed same was done. I accordingly find the Accused Persons not guilty of the charges of conspiracy to commit crime and fraudulent land transaction. They are hereby acquitted and discharged on these counts. Regarding count 3, no evidence whatsoever was led by the prosecution to establish this count. The offence stated in count 3 – Non-conforming land allocations and transactions: contrary to section 105(2) and (3) of Local Government Act 936 of 2016 states that “The Minister responsible for Works and Housing may, in consultation with the Minister responsible for the Environment, by legislative instrument, prescribe national building regulations to be complied with by a District Planning Authority in the making of a by-law for the district. Building permits and unauthorised buildings” Clearly, the charge does not support or have any bearing on the facts of the case, I so find and I accordingly strike it out. (SGD) H/H ROSEMARY EDITH HAYFORD (MRS) ADDITIONAL MAGISTRATE 16