REPUBLIC VRS SUMAILA RAZAK MUSTAPHA & 4 ORS. (D2/64/2021) [2023] GHACC 1108 (13 July 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 13TT DAY OF JULY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. D2/64/2021 THE REPUBLIC VRS SUMAILA RAZAK MUSTAPHA ASANTE NYARKO @ FAISAL @ LARGE JAMEL @ LARGE NANA DUAH @ LARGE OSEI KWADO @ LARGE JUDGMENT The 1ST accused was arraigned before this court on count 1: Conspiracy: Contrary to section 23(1) of the Criminal Offences Act 1960 (ACT 29) and 2: Defrauding by false pretences contrary to section 131 (1) of the Criminal Offences Act 1960, (Act 29). The case, involving all the accused persons, was first called before the court on 28/10/2020, where on that day, the prosecution indicated before the court that apart from A1 all the other accused persons were at large. The plea of the accused A1 was taken before the court and he pleaded not guilty to the two charges brought against him. On the 26/04/21, CMC was conducted before the court and the prosecution announced to the court that they will call two witnesses, that is Paul Nyarko and the Investigator, Detective Sergeant Teye Martey. It must be put on record, that, the other accused persons who are at large since the case was called, before the court, were never produced before the court by the prosecution. After the accused pleaded not guilty, the prosecution, then had the responsibility to prove the guilt of the accused A1 beyond reasonable doubt. The case of the prosecution per the facts attached to the Charge Sheet in summary is that the complainant is a Banker and resident of East Legon. The accused person is a trader and resident of Brekusu. The complainant also assists in the running of an NGO at Winneba. In July 2019, the NGO needed a bus for their operations. The complainant saw a coastal bus displayed on Tonaton and he contacted the number displayed under it which happened to be Asante Nyarko alias Faisal an accomplice now at large. The said Asante Nyarko then directed the complainant to the accused as a garage owner. The accused contacted and gave directions to the complainant to proceed to their garage at Spintex. The complainant on seeing the Toyota Coaster Bus became interested and told the accused he wishes to buy the bus. The complainant and the accused agreed on a price of GHC 223,500. The complainant and a witness in this case went to the garage with a mechanic and tested the condition of the bus which apparently was in a good condition. On 4/07/2019, the accused and his accomplices Asante Nyarko @ Faisal went to the complainant Office at Ridge and cash the sum of GHC 100,000 paid to them as part payment of the Coaster bus showed to them earlier. On the 22/07/2019, the accused and his accomplices Asante Nyarko alias Faisal went to the complainant office and took the balance of GHC 123,500. The complainant then agreed to go for the bus on Monday as it was a weekend. On the said day the complainant went to the garage to take the bus but was told by the real owners of the garage that they do not know anything about the transaction he had with the accused and his accomplices. The accused and his accomplices then switched off their phones and went into hiding. On 3rd October 2020, accused was arrested on similar offence by the CID/Headquarters. The accused was identified and was handed over to the regional/CID, Accra for investigation. The accused in his caution statement admitted the offence and mentioned names as his accomplices who are charged together with him. The accused subsequently led Police to the garage where they did the transaction. 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. The question for determination by the Court is “Did A1 commit conspiracy and Defrauding by False Pretences with the other accused persons against the complainant? THE CHARGE OF CONSPIRACY According to Section 23(1) of the Criminal Offences Act, 1960 (Act 29), where two or more persons agree to act together with a common purpose for or in committing a criminal offence, whether with or without a previous concert or deliberation, each of them shall be guilty of the offence of conspiracy. Conspiracy therefore involves two or more persons acting together with a common purpose with a previous agreement. It is trite learning that to succeed, the prosecution has to establish the essential element of the offence, which is, the accused persons agreed with a common purpose to acted together in committing the offence. The element of agreement may be inferred by the conduct of the parties, or any express declarations made by them and such agreement to act must be with a common purpose. In AZAMETSI AND OTHERS V THE REPUBLIC (1974) 1GLR 228, the facts of the case illustrated what transpired at a meeting held at 10pm by fishermen deliberating on the sacrifice of the victim for a bumper harvest. The evidence of an agreement was glaring on the face of the record. See also Blay v The Republic (1968) GLR 1040-1050. Conspiracy does not limit itself in space or time as postulated in the case of STATE V OTCHERE that an agreement to act with a common purpose may be reached by different people and at different times. In COP v AFARI the Supreme Court held that the law of conspiracy as contained in section 23 (1) of Act 29 is wider in scope and in content than the English law on that subject. That in Ghana, the offence of conspiracy consists not only in the criminal agreement between two minds, but also acting together in furtherance of a common criminal objective. For instance, “In the case of BLAY V THE REPUBLIC (1968) GLR 1040 the court held that since one could only conspire with a human being and not with a spirit, his conviction by the court of conspiracy could not stand”. THE CHARGE OF DEFRAUDING BY FALSE PRETENCES 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.” 1 Act 29, s 131(1). 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 the 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. See also the Republic v Selormey (2001-2002) 2 GLR 424. The prosecution proving their case before the court with respect to the charges brought against the accused person, that is the charge of conspiracy and defrauding, called two witnesses. Prosecution Witness 1 (PW1) was Paul Nyarko, a banker and a resident of Mempeasem, East Legon, who was assisting one Courtney Garland, Managing Director 2 Act 29, s 132. 3 Kuma v The Republic [1970] CC 113. of Pearl House Ghana, a Non-Governmental Organization (NGO) that takes care of vulnerable girls to purchase Toyota Coaster bus for conveying of vulnerable girls under the care of Pearl House Ghana. PW1 gave evidence how he got in contact with the accused person A1 and A2 through tonnaton platform on the internet. PW1 gave evidence how Mr. Asante, who claimed to be the owner of the bus, directed him to meet the accused to view and inspect the said bus and how they went to inspect and examined the bus. PW1 gave further evidence as to how he led the transaction with the accused and how the money was paid and later they could not get the coaster bus for which they paid the money. PW1 gave further evidence how, through express clearance, he withdrew cash of GHC 100,000 and paid the same to the accused and the said MR. Asante. PW1 was given a copy of the bus documents for him to examine its genuineness and after two weeks went with a white man who was to purchase the bus for the orphanage, Pearl Home Ghana and met the accused person who conducted the donors round. PW1 tendered exhibit A – Photograph showing complainant, accused and other individuals. Exhibit A1, Photograph of the accused and assistant of the CEO, Clara. PW1 also tendered various exhibits including receipts of payments and bus documents which were giving to the complainant as exhibits B, D and C respectively, as well as bank statement showing the transaction of the money paid to the accused and accomplice as exhibit E. PW1 after his evidence was vigorously cross examined by counsel for the accused, the learned Andrews K. Vortia, Esq. Prosecution also called second Prosecution Witness (PW2) who was the investigator. PW2 gave evidence corroborating the evidence of the complainant PW1, and how the accused was arrested, and the case came to him for investigations. PW2 gave evidence that the accused person in his caution statement mentioned his accomplices as Asante Nyarko @ Faisal, A2, Jamel, A3, Nana Duah, A4 and Osei Kwadwo A5 now at large and how the accused led police to the garage at Spintex where the Toyota Coaster Bus was shown to the complainant before payments were made to the accused and his accomplices. PW2, the Investigator, also tendered investigation Caution Statement and Charge Statement of the accused A1 as exhibit F and G before the court. At the end of the case of the prosecution, the court came to the conclusion that a case had been made against the accused and was to open his defense. The accused mounted the witness box and gave evidence for himself and was cross examined by the prosecution before the court. The accused gave evidence that his friend Nyarko placed an advert on Tonaton.com and got a buyer who turned out to be the complainant. The accused said he was not involved in the negotiation and the payments were made to Nyarko, also called Asante Nyarko who issued receipts. The accused said Asante Nyarko gave him a commission of GHC 10,000. The accused concluded that he was not into any business transaction with the complainant and there had never been any telephone conversation with him. The accused, however, admitted during cross examination that he gave a statement to the police and everything in the statement was his true statement. This contradicted the accused own evidence before the court during the cross examination by the prosecution. The accused in his evidence strenuously without success tried to abdicate responsibility of himself from the commission of the offence and the charges brought against him. Because from his own evidence he knew that his friend did not have a bus, but he placed an advert for sale on Tonaton.com. He knew his friend did not have a bus, but when he was called to show the complainant a bus, he complied and showed them a bus, and at a later date, the accused was at hand, to show the people who were buying the bus for the orphanage, the bus for them to inspect same. The accused also led a mechanic to check the coaster bus to give the buyers a good report for the buyers to start making payment. Pictures, exhibit A and A1, shows the accused busy and happily conducting the buyers of the coaster bus round the bus with a beautiful smile, knowing very well that his supposed friend was not the owner of the bus. The accused was also with the said Asante Nyarko at all material times when money was paid. PW 1 in his response during cross examination (Q11 & Q12) said the accused was always with Mr. Asante Nyarko and was part of all the transactions and PW1 was dealing with both of them concurrently. The accused said in his witness statement that he was paid GHC 10,000 as commission. During cross examination, Q3 and Q4, the accused admitted that he met PW1 at a garage at Flowerpot, Spintex Road and showed him a coaster bus that the accused was selling. From the evidence before the court, the accused clearly conspired with the said Asante Nyarko to defraud the complainant and the buyers of the coaster bus which was for the benefit of the NGO at Winneba which needed it for its operations. The accused as indicated earlier on, contradicted himself per his evidence, his cross examination, the case he was putting across during cross examination of the prosecution witnesses, his own evidence before the court and the statement he gave to the police. The position of the law is A previous statement made by a witness to the police which was in distinct conflict with his evidence on oath was always admissible to discredit or contradict him and it would be presumed that the evidence on oath was false unless he gave a satisfactory explanation of the prior inconsistent statement. See Yaro and Another v The Republic (1979) GLR 10. From the evidence before the court the accused person has no defence to the action and, he was part of the conspiracy and had the intention to defraud. I find that the prosecution has proved its case against the accused person. I find the accused guilty of the offences charged and convicted accordingly on the two counts. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 9