The Republic Vrs Noah [2023] GHADC 506 (21 July 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON FRIDAY 21ST JULY, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B18/53/23 THE REPUBLIC V OSEI NOAH JUDGMENT INTRODUCTION 1. On 27th January, 2023 the accused was arraigned before this court for the below offences: COUNT ONE STATEMENT OF OFFENCE Defrauding by false pretence: contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE - 1 - Osei Noah, Age 37yrs, Trader: For that you during the month of January 2023 at Tamale in the Northern Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of one Eric Frimpong to part with cash the sum of GHS300.00 by means of certain false pretences to wit falsely pretending that if the said money was given to you, you could help get him enlisted into the Ghana Army and upon such false representation, you succeeded in obtaining the said amount from the said Eric Frimpong which statement you well knew at the time of making it to be false. COUNT TWO STATEMENT OF OFFENCE Falsely pretending to be a public officer: contrary to section of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Osei Noah, Age 37yrs, Trader: For that you during the month of January 2023 at Tamale in the Northern Region and within the jurisdiction of this court, not being a public officer, did pretend to be a public officer by introducing yourself to Eric Frimpong as a military captain and medical doctor stationed at 6BN Kamina Barracks, Tamale which you well knew not to be true. - 2 - FACTS OF THE CASE 2. The facts of the case given by the prosecution are that in January 2023 accused introduced himself to the complainant, Eric Frimpong, as being a military doctor with the rank of Captain stationed at 6BN Kamina Barracks, Tamale. Accused later informed the complainant that he could get him enlisted into the Ghana Army and so demanded for GHS200.00 to buy the enlistment forms to begin the process. Complainant then gave the accused the said money. Accused also requested for soft copies of complainant’s school certificates, ID card and passport picture which same were sent via accused person’s whatsapp number 0593626469. Later, accused demanded an additional GHS500.00 to continue the process. Due to the persistent demands of the accused, complainant suspected an ill motive and therefore consulted a military friend on the matter. Complainant was then informed that accused was defrauding him. As a result, the military friend informed the Military Police and accused was arrested. During interrogation, accused admitted the aforementioned offences and subsequently arraigned before this court. 3. Accused when arraigned before this court, however, pleaded not guilty to the above charges. DEFINITION OF THE OFFENCES 4. With respect to the defrauding by false pretence, section 132 of Act 29 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. Section 131 of Act 29 also provides that a person who defrauds any other person by a false pretence commits a second degree felony. - 3 - 5. Section 237 of Act 29 stipulates that a person who pretends to be or acts as a public officer, juror, or to be a messenger of or to hold any authority from the President, or a Minister or a Court, and who is not lawfully authorised to act in that capacity or not holding that authority, and in or under colour of such assumed character does or attempts to do, or procures or attempts to procure, any other person to do or abstain from doing an act commits a misdemeanour, unless the person shows: (a) that the pretence or act was made under a mistake of law or of fact; or (b) in the case of a person acting as a public officer, that the pretence or the act was in good faith for the public benefit. BURDEN OF PROOF 6. 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.” 7. It is important to state that 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. - 4 - This doubt, however, 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 8. In the instant case, accused pleaded not guilty to the charge. As noted above, the prosecution must prove the whole of its case including the identity and knowledge of offence against the accused, beyond reasonable doubt. In Owusu-Ansah v The State [1964] GLR 558 the court held that, “…the prosecution is bound to prove each count separately beyond reasonable doubt and that proof in support of one count cannot be deemed to be proof of the other counts where the evidence in support of the other counts leaves room for doubt.” 9. The prosecution in proving its case against the accused filed three witness statement. How it called only two witnesses: Eric Frimpong (PW1) and D/Sgt. Dennis Boateng (PW2). Prosecution sought to tender in evidence the investigation cautioned statement but same were objected. After a mini-trial, the objection was upheld and the statement marked as Exhibit R. The prosecution, however, tendered in evidence the following exhibits: a. Exhibit A – Whatsapp conversation between Accused and the Complainant. b. Exhibit A1 – Copy of Complainant’s WASSCE Private Result Slip c. Exhibit A2 – Copy of Complainant’s BECE Certificate d. Exhibit A3 - Copy of Complainant’s Birth Certificate e. Exhibit A4 – Picture of Complainant’s Ghana Card and Voter ID Card f. Exhibit A5 – Picture of Complainant’s passport size picture g. Exhibit A6 – A Statutory Declaration by Complainant confirming his date of birth - 5 - h. Exhibit A7 – Copy of Complainant’s WASSCE Certificate The Prosecution’s Case 10. PW1’s evidence is that accused was introduced to him by his uncle and that accused could help him join the military. He stated that accused then informed him that he is a medical doctor with the rank of a Captain and as such he could assist. Based on this, accused collected GHS200.00 to buy the military forms. Also, accused took GHS100.00 to buy guinea fowl for the work he was doing. Further, accused also requested and received his (PW1’s) waist size, school certificates, and other documents via whatsapp number 0593626469. PW1 added that it was when accused demanded for an additional GHS500.00 that he became suspicious. As a result, he called a friend, Michael Kwaku Kunyame, who is an officer at the Air Force Command, Tamale. According to PW1, Mr. Kunyame then informed him that the accused was defrauding him. With the help of this friend, the accused was arrested and sent to the police station. 11. Mr. Kunyame was not called to testify, although he filed a witness statement. Accordingly, the said witness statement is struck out. 12. PW2, on his part, corroborated the evidence of PW1. He contended that upon his investigations, accused admitted to collecting the GHS300.00 and the documents, all in attempt to getting complainant enlisted into the Ghana Arm Forces. He then caused accused to be charged with the offences and arraigned before this court. 13. 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. - 6 - Accused Person’s Defence 14. Accused stated that the charges against him are simply a fabrication by the complainant to avoid paying a debt owed him. He explained that the complainant owes him GHS5,220.00. When he confronted complainant, the complainant assured him that he needed to correct his bank records in order to access the funds therein to pay. As a result, the complainant sent to him the softcopies of the statutory declaration and ID Cards. With regards to the certificates, accused stated that the complainant mistakenly sent those to him. He stated further that when he had informed complainant that he was in Tamale, complainant then arranged with two men to arrest him and sent him to Kamina Barracks. There he disputed the charges against him and was sent to the police station. At the police station, he was charged with the above offences and arraigned before this court. He maintained that he never promised the complainant to enroll him into the Ghana Army or represented to complainant that he is a military officer with the rank of a Captain. ANALYSIS OF FACTS AND LAW 15. Before I proceed with analyzing the facts and law in respect of the charges against the accused, let me rehash the decision in Owusu-Ansah v The State (supra) where the court held that, “…the prosecution is bound to prove each count separately beyond reasonable doubt and that proof in support of one count cannot be deemed to be proof of the other counts where the evidence in support of the other counts leaves room for doubt.” In this instant case, the prosecution is required to prove each count separately, thus defrauding by false pretence and falsely pretending to be a public officer. Count one 16. I will start with the count one, defrauding by false pretence, the court in COP v Dwamina [1965] 1 WALR 55, held that in a charge of defrauding by false pretence, - 7 - 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 case of The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 and Kuma v The Republic [1970] CC 113. 17. From the evidence, prosecution contended that accused informed the complainant (PW1) that he could get him enlisted into the Ghana Army and so demanded and received GHS200.00 to buy the enlistment forms. Thereafter, accused took Exhibits A1 to A7 via whatsapp number 0553626469. Furthermore, accused demanded and received GHS100.00 to buy guinea fowl in aid of his work. According to PW1, he became suspicious of the actions of the accused when accused demanded for an additional GHS500.00. So he contacted his military friend, Mr. Kunyame who informed him that the accused was defrauding him. Hence, the accused was arrested. 18. Accused, however, contended that he did not received any money from PW1. However, he received Exhibits A1-A7 from PW1. According to him, PW1 gave him Exhibit A6, the statutory declaration, when he demanded for his GHS5,220.00. As to why PW1 added the school certificates, birth certificate and others, he has no idea. To - 8 - him, it was a mistake, PW1 sent it in bulk. Below is what ensued when accused was under cross-examination: “Q: You demanded from complainant his certificate to process his enlistment form and he sent it via whatsapp to you, is that correct? A: I did not demand for his certificate, he owes me GHS5,220.00 and complainant said he would take it from the bank for me. He went to swear the statutory declaration and sent it to me as proof that he had challenges with his bank account name. For the certificates, it was a mistake that he added them. 19. From Exhibit A6, the statutory declaration regards confirmation of date of birth. Exhibit A6 never referred to any bank or account name. From the evidence, it was revealed that PW1 has the same date of birth on his Ghana Card and Voters ID Card, thus 30th April, 1998. However, his BECE Certificate, Exhibit A2, stated 9th January, 1998 as his date of birth, hence Exhibit A6 confirming that he is the same person. I find that Exhibits A1 to A7 never regarded any challenges at PW1’s bank. The name of the bank was never mentioned, neither the account name or number. No sufficient evidence was also led regarding the GHS5,220.00. What goods were purchased, when did it accrue, and all that never came up. I find the attempt to raise doubt in the prosecution’s case as simply fanciful, see Miller v Minister Of Pensions (supra) and COP v Isaac Antwi (supra). I am therefore clear in my mind that the accused took Exhibits A1-A7 with the purpose of getting PW1 enlisted into the Ghana Army. In Richard Kwabena Asiamah v The Republic (supra) the Supreme Court stated that, in proof of the criminal enterprise of defrauding by false pretence it requires the complainant to consent to part with or transfer the ownership of a thing. The accused person would have represented the existence of a state of facts, with an intent to defraud. In COP v Dwamina (supra) the court held that but for the false pretence the complainant - 9 - who parted with his money or thing would not ordinarily have done so. From the evidence, I find that accused represented to PW1 to get him enlisted into the Ghana Arm Forces, that was why he received Exhibits A1-A7, to which he (accused) knew very well that his representations were false. I also find that he received the GHS200.00 for the enlistment forms and GHS100.00 for the guinea fowl. In effect, find that prosecution was able to prove beyond reasonable doubt that accused with intent to defraud did obtain the consent of complainant (PW1) to part with his money and documents with intent to get him enlisted into the Ghana Arm Forces, and I so hold. Accused is, therefore, convicted on count one. Count Two 20. Now regarding the second count, falsely pretending to be a public officer. The particulars of offence states, ‘Osei Noah … not being a public officer, did pretend to be a public officer by introducing yourself to Eric Frimpong as a military captain and medical doctor stationed at 6BN Kamina Barracks, Tamale which you well knew not to be true’, contrary to s. 237 of Act 29. In proof of this offence, s. 238 of Act 29 requires prosecution to show, ‘(a) a statement purporting to be signed by a person in the name of the President, Minister or Court, declaring that the accused was not at a stated time or period a messenger of or did not hold an office or authority under the President, Minister or Court, (b) a statement purporting to be signed by the Chairman of the Civil Service Council declaring that the accused was not a civil servant, or (c) a statement purporting to be signed in the name of any local or other statutory authority, declaring that he was not an officer of that authority shall, without further proof, (as) prima facie evidence of the matters so declared.’ Hence, prosecution was to establish that they found accused in a military uniform or holding anything and/or declaring himself as a Captain or Medical Doctor of the Ghana Arm Forces and for - 10 - that a statement signed by a Commander of the Barracks, indicating that accused is not who he claims he is. 21. From the evidence, prosecution stated that accused represented to the complainant (PW1) that he was a military captain and medical doctor stationed at 6BN Kamina Barracks, Tamale. PW1 and PW2 under cross-examination stated that they have never seen accused in military uniform or on duty or being in a medical practice, but accused simply informed them that he is a military captain and medical doctor stationed at 6BN Kamina Barracks. Accused, however, denied the assertions of the prosecution. Below is an extract of what ensued when PW2 under cross-examination: “Q: From your investigation, I am a military officer? A: No. But that is what you told the complainant and made him to believe. Q: You alleged that I am a doctor, what did your investigations show? A: Investigation showed that you are not a doctor but that is what you made complainant to believe. Q: You also alleged that I am a captain at the military, what did your investigations say? A: Investigations say that you are not a captain but that is what you made complainant to believe that you are a captain and military officer.” 22. As earlier pointed out what is required of prosecution is to establish that they found accused in a military uniform or holding anything and/or declaring himself as a - 11 - Captain or Medical Doctor of the Ghana Arm Forces and for that a statement signed by a Commander of the Barracks, indicating that accused is not who he claims he is. From the evidence, I find that the prosecution simply relied on the assertion of PW1 to the effect that accused is a military captain and medical doctor stationed at 6BN Kamina Barracks, Tamale. This accused denied. Prosecution, however, failed to prove beyond reasonable doubt that it found accused holding himself in that capacity and for that matter accused is to be found guilty in the offence of falsely pretending to be a public officer. Accordingly, accused is acquitted and discharged on count two. SENTENCING 23. Having heard the accused person, prosecution and Abraham N. Damtar Esq., as a friend of the court, on pre-sentencing hearing, see p. 433 of the Record of Proceedings, I note the prevalence of people defrauding others with the intend of getting them enrolled into the security services. The desperation for jobs make these people highly susceptible to the canning activities like that of the accused herein. I also note that accused has been in lawful custody since 27th January, 2023. I further note that the amount involved is GHS300.00. Also, accused is a first time offender. He is married with 5 children and the bread winner. In effect, I hereby fine the accused 50p.u. and in default shall serve a jail term of 1month in respect of count 1, defrauding by false pretence. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. SULEMANA MOHAMMED HOLDING THE BRIEF OF C/INSP. EUNICE APASNABA FOR THE REPUBLIC - 12 - ACCUSED APPEARED IN PERSON Reference: 1. Article 19(2) of the 1992 Constitution 2. ss. 131, 132, and 237 of the Criminal Offences Act, 1960 (Act 29) 3. ss. 11(2), 13(1), 15, 22 and 120 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 10. The State v Agyemang, Asem & Boamono [1962] 2 GLR 67 11. Kuma v The Republic [1970] CC 113 - 13 -