REPUBLIC VRS ASARE (7/40/2022) [2023] GHADC 1143 (16 November 2023)

IN THE DISTRICT COURT HELD AT DAMBAI ON FRIDAY 16TH NOVEMBER, 2023 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE. CASE NO: 7/40/2022 THE REPUBLIC VRS MICHAEL ASARE ACCUSED PERSON PRESENT COMPLAINANT PRESENT ASP A. A. RAZACK FOR THE PROSECUTION PRESENT JUDGEMENT The accused person herein was arraigned before this Court charged with the offence of Defrauding by false pretences contrary to Section 131 of the Criminal and Other Offences Act, 1960 (Act 29). The accused person pleaded not guilty after the charge had been read out and explained to him. By this plea Michael Asare puts himself in charge of the Court. Thus his guilt has to be proved beyond reasonable doubt by the prosecution. At common law the rule is that a person was presumed innocent until the contrary was proved or he pleaded guilty. This position has constitutional reinforcement under Article 19(2) (c) of the 1992 Constitution which enacts: “(2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proved or has pleaded guilty.” FACTS OF THE CASE The facts of the case as presented by the prosecution were that, the accused is a school mate of a son of the complainant and the complainant got to know the accused through his son. Sometime in the year 2022, the accused visited the complainant in his house and overheard the complainant telling someone on phone about his intention to buy a car. After the said conversation the accused told the complainant that he has a friend by name Moses who is an auctioneer and works at the Customs Service in Accra and he could get the said friend assist the complainant buy confiscated vehicles at less expensive prices. The complainant expressed interest in the deal so the accused led him to the customs bounded warehouse in Tema and conducted him round some packed vehicles. After the inspection the complainant expressed interest in a Hyundai mini bus and a VW saloon car. The accused made the complainant wrote an application for the purchase of the two vehicles and he again led the complainant to the Customs Head Office in Accra where the accused purportedly submitted the application to the Commissioner of Customs through his friend Moses. The accused then told the complainant that the cost of the two vehicles was GH¢45,000.00. That is GH¢23,000.00 and GH¢22,000.00 for the Hyundai Mini bus and the VW saloon car respectively. The complainant gave the accuse cash of GH¢600.00 and paid 44,400.00 to the accused through mobile money and bank transfer into cell phone number 0207143016 and 0549719850 provided by the accused. The accused later told the complainant that the prices of the vehicles have increased so the complainant needed to add GH¢3,500.00 which the complainant did. The accused further collected an amount of GH¢3,500.00 from complainant as facilitation fee, bringing the total sum to GH¢52,000.00. After receiving all the above stated sum from the complainant the accused failed to deliver the vehicles but instead started playing tricks on the complainant and given several excuses as to why the vehicles were not being delivered to him. The complainant who became suspicious personally sort audience with the Commissioner of Customs but was shockingly told that the transaction was fraudulent because the Customs does not sell confiscated vehicles through the mode the accused took him through and that his outfit does not have any record of the supposed transaction. When the complainant made attempt to retrieve his money from the accused the accused told him that he has paid the money to his friend Moses and Moses has in turn paid same to Customs through the Agricultural Development Bank (ADB). To buttress his point, the accused gave to the complainant ADB deposit slips which he claim confirms the transaction. The case was reported to the police leading to the arrest of the accused. During investigation the accused was taken to the Customs Head Office in Accra to lead the Police to the said Moses he claimed was the one assisting him to acquire the vehicle but he could not do so and could also not show the police which particular office he submitted the application for the purchase of the vehicle to. Further investigation at the ADB Head office in Accra revealed that the deposit slips the accused gave to the complainant were fake. The accused was charged with the offence and arraign before this Court. In proving its case, the prosecution called three (3) witnesses, the complainant, the complainant’s son and the Investigator as (PW1, PW2 and PW3) respectively. PW1 in his witness statement filed on 14/06/2022 confirmed the facts as presented by the prosecution and added that, it was a loan he raised and gave to the accused for the purchase of the vehicles and that the accused was with him when he applied for the loan. PW2 was Martin Senyo, complainant’s son. In his witness statement filed on 14th June, 2022 he stated that he is a student of the Dambai College of Education (DACE) where the accused is also a student. According to PW2 he became friends with the accused whilst they were on campus and he personally introduced the accused to the complainant. PW2 said sometime in April 2022 the complainant told him that he has been calling the accused on phone but the accused have not been picking his calls, so he (PW2) should also call the accused and see whether he will respond. PW2 again said he called accused several times on his phone but the accused refused to answer his calls. However, the accused sent him text message later (Exhibit “F”) and asked him to plead with complainant on his behalf because, complainant gave him some money to transact some business for him but unfortunately he has spent GH¢12,000.00 from the said money and was duped of the rest of the money. PW2 added that he was not privy to the transaction between complainant and the accused till he was informed by the accused. PW3 the investigator no. 10559 PW/Constable Diana Sumara in her witness statement also recounted the facts of the case and the steps she took in the course of her investigations. She duly tendered in evidence the cautioned and charge statements of the accused person, a Ghana Commercial Bank (GCB) statement of account of the complainant’s company (Bosatsu Comp Ltd), mobile money transaction history of cell phone number 0249109130 (Bosatsu Ltd.), three ADB deposit slips dated 22nd, 24th and 25th February, 2022, text messages dated 16th and 21st April, 2022 between the accused and PW2 relative to this case and a whatsApp chat between the accused and a friend of the accused in respect of this case without any objection and same marked as Exhibits A, B, C series, D series, E series, F and G respectively Thereafter, the prosecution closed its case. THE CASE OF THE DEFENCE The accused person in opening his defence told the court that he got to know the complainant through the complainant’s son (PW2), sometime in February, 2022. According to accused he and complainant begun having conversation and phone chats on religion and other related matters and in one of such conversations the complainant told him of his intention to purchase a car. Accused said he told complainant that he had a friend by name Moses who works with the Customs and his friend could help complainant buy a confiscated car at Tema. According to accused the complainant agreed to his suggestion so the complainant met him in Sogakope and they went to Tema together where they met a certain man by name Orga at a bounded warehouse. Accused said after Orga conducted them round the vehicles in the warehouse, the complainant said he was not interested in any of the said vehicles, so he called his friend Moses and Moses spoke with some security officers at the Atlas Bounded warehouse and they were given passage in. Accused said after inspecting the vehicles the complainant expressed interest in a Hyundai mini bus and a VW saloon car, so, he together with the complainant went to the Customs Head office in Accra where he made the complainant write an application and same was submitted to the customs office upon the direction of Moses. Accused further stated that Moses later told him that the cost of the Hyundai mini bus was GH¢23,000.00 whilst the saloon car was GH¢22,000.00 which the complainant agreed to pay. According to accused Moses later on same day gave them an ADB account number to pay the money into so the complainant went to GCB bank and withdrew some money. However, the complainant told him that he had to return to Dambai on same day to deal with some urgent matters so he entrusted the money to him to pay into the account given to them by Moses. Accused said unfortunately when he got to the bank it was late and the bank had close, so he called Moses and Moses asked him to send the money to him so that he could effect the payment the next day. Accused further said he called complainant to inform him about the request Moses made but the complainant told him that since Moses was the accused person’s friend, if he trust Moses then he could send the money to him. Accused said he did not send the money to Moses but rather met Moses the next day at the Customs Head Office and handed over the money to him. Accused again stated that Moses later made the payment into the ADB account and sent him copies of the deposit slips and he in turn later forwarded same to complainant. According to accused whilst waiting for the auction processes to be carried through by Moses for him to deliver the vehicles to the complainant he got a call from Moses that the prices of the vehicles had been increased by GH¢3,500.00 and there was also the need for the complainant to pay a facilitation fee of additional GH¢3,500.00. Accused stated that he informed the complainant and complainant sent him the money and he sent same to Moses but Moses gave him GH¢12,000.00 out of the complainant’s money to keep and that he will come for it later. Accused said three days later Moses called him to meet him at the Accra mall and when he went, Moses asked of the GH¢12,000.00 and he returned it to him. Accused stated that after a while the complainant started mounting pressure on him for the vehicles but anytime he calls Moses his phone was off and he tried every means possible to locate Moses but without success and it was then he realised he was duped. The accused person did not call any witness and hence brought his case to a close after his evidence in chief. The legal issue to be determined in this case in the view of this court is whether the accused person herein did defraud the complainant by falsely representing to him that when he pays him GH¢52,000.00, he could buy for him two vehicles. APPLICABLE LAW Section 11(2) of the Evidence Act, 1975 (NRCD 323) states: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt.” The general principle of law in every criminal case as stated in the case of Asare v. The Republic [1978] GLR 193-199, per Anin J. A. was that: “There was no burden on the accused to establish his innocence, rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt.” Section 132 of Act 29 provides: “A person defrauds by false pretences if, by means of a false pretences, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” Section 133 (1) of Act 29 provides: A false pretence is a representation of the existence of the state of facts made by a person, with the knowledge that the representation is false or without the belief that it is true, and made with an intent to defraud. (2) For the purpose of subsection (1), (a) A representation may be made by written or spoken words, or by personation, or by any other conduct, sign, or means of any kind; (b) The expression “a representation of the existence of a state of facts” includes a representation as to the non-existence of a thing or a condition of things, and a representation of any right, liability, authority, ability, dignity or ground or credit or confidence as resulting from an alleged past fact or state of facts, but does not include a mere representation of an intention or a state of mind in the person making the representation, nor a mere representation or promise that anything will happen or will be done, or is likely to happen or to be done; The above suggest that to succeed on a charge of defrauding by false pretence, the prosecution must prove the following essential elements: 1. That the accused made a false pretence or impersonated another perso 2. That by means of that false pretence or personation the accused obtained the consent of another person. 3. To part with or transfer the ownership of a thing. EVALUATION AND ANALYSIS OF EVIDENCE From the evidence adduced in this case the accused admitted making some representations to the complainant. He also admitted that the complainant parted with or transferred to him GH¢52,000.00. However, what is in conflict is whether the representation made by the accused was false or whether there was an intention by the accused to deprive the complainant of his money (GH¢ 52,000.00) In the case of Asiedu v. The Republic [1968] GLR pgs 1-8, Amissah J. A. stated and I quote: “An intent to defraud is an essential element of the offence of defrauding by false pretences whether the method of fraud adopted was personation or a false representation”. Also, in Republic v. Victor Selormey [10/12/2001] Suit No. FTCR 3/2001, the accused was charged inter alia with two counts of fraud by false pretences. The Court held that for the prosecution to succeed in proving the charges of fraud by false pretences against the accused person, the law requires that the prosecution must prove by credible evidence the following: (a) That the accused person made a representation either by written or spoken words or any other means of whatsoever kind. (b) That the said representation was in regard to the existence of a state of facts. (c) That the said representation was false or made without the belief that it was true. (d) That by the false representation the accused caused the victim to part with something of value. From the above, prosecution must prove that the person who parted with or transferred the ownership of the thing in question would not have done so but for the false pretence or personation. The element of inducement is very important. The victim must have been persuaded to accept the false pretences or personation by the accused as true and to have acted upon it to his detriment. What this also means is that if it is shown that the complainant was not induced by the false pretence, or personation by the accused, the accused is entitled to an acquittal. In the instant case, the complainant’s evidence is that in February, 2022 the accused visited him in his house and over heard him on phone discussion his intention of buying a car, the accused later told him that he could assist him acquire confiscated/auction vehicles through a friend at moderate prices. The accused then led him to the Atlas bounded warehouse in Tema, where he inspected some vehicles and expressed interest in two of the said vehicles. The complainant further testified that the accused made him wrote an application for the purchase of the vehicles and the application was purportedly submitted to the Commissioner of Customs by the accused through his supposed friend. The accused requested and collected various sums of monies amounting to GH¢52,000.00 and gave him bank deposit slips suggesting that the money had been deposited in the official account of the Customs. But the accused never got the vehicles for him as agreed. In his evidence the accused admitted he represented to complainant that he could assist him by the confiscated vehicles at less expensive prices through his friend Moses. The accused also confirmed that the complainant paid a total of GH¢52,000.00 to him for the purposes of buying the confiscated vehicles for complainant but he failed to do so. Below are excerpts of what transpired on 05/10/2023 when the accused came under crossed examination by prosecution. Q. So your case is that you have received some money from the complainant not so A. Yes. Q. The total amount you received from the complainant per the charge sheet is GH¢52,000.00 is that correct A. Yes. Q. Your reason for collecting the above stated money from the complainant was to assist him by confiscated/auction vehicles not so. A. Yes, and I made the complainant understood that I was not the sole person responsible for the allocation of the vehicles. Q. You have failed to buy the vehicles for the complainant as you promised to do. A. Yes, I have not delivered the vehicles but the fact is that I have no control over the allocation of the vehicles or the transaction. Q. So if you were not in sole control over the process why did you solely received the money from the complainant. A. That was because the complainant told me he was comfortable dealing with me. Q. After failing to deliver on your promise you also failed to refund the money to the complainant not so. A. That is true but it was not deliberate. From the above encounter it is crystal clear that the accused did not only represented to plaintiff that he could assist him by confiscated/auction vehicles, but also persuaded and obtained the sum of GH¢52,000.00 from complainant but failed to buy the said vehicles for the complainant as agreed. In PW2’s evidence he stated that even though he was the one who introduced accused to the complainant he was not privy to the transaction between them. However, after the deal between the two hit the rocks, complainant told him that he has been calling accused on his cell phone but the accused was not responding to his calls and that he PW2 should also call the accused on his phone to see whether he will respond. But when he called accused he refused to pick the phone call but rather sent him a text message. The said text messages between PW2 and accused (Exhibit “F”) is quite revealing and for the sake of clarity I reproduce same below: PW2- “…I know very well that you’re even planning to leave this country. Don’t try it, my humble advice or else you’ll end up your life. Accused- And what makes you think GH¢52,000.00 will be the reason for me leaving this country…. And what makes you believe I am still in the country. I was duped, but I used GH¢12,000 for my own personal stuffs…. the time I realised it, I could not explain it to him whatever transpired…because explaining to him will land me in Police custody. Rather I wanted to get the money intact before taking any actions, so I need to lie to cover up to some extent. From the above, the accused did not only confirm that complainant has paid some money to him, but also clearly stated that he used complainant’s money for his “personal stuffs” instead of buying the two cars for him as agreed. The accused in his own words also stated that he lied to the complainant in order to cover up. Again Exhibit “G” which is a whatsApp chat between accused and a common friend of the accused and PW2 also throws more light on the fact that the accused was out to defraud the complainant. Below are the relevant portions of the said chat. Accused-“Now is like if the money is paid everything will be gone. Friend- Yh sure. Accused- Cos I don’t know what they want to tell me but their next call is what gonna pick up. Friend- Your name and pic are all in groups Accused- But money is not meant to sit down…we invest before doing what its purpose is. Friend- The man is also having big men. Accused- I suspect he has reported to Dambai and Accra Police. I will call SM to see what’s going on when I get credit. For big men, my brother forget it everybody has big men oooooo Excuse me to say…if he is not greedy will he fall into this category… If it is not my Dad I am gone long ago…” The content of exhibit “G” supra which was tended in evidence without objection further bares testimony that the accused had evinced a clear scheme to defraud the complainant as he stated in his own words that the complainant was “greedy” and that was why he fell to his tricks. The accused boasted of having ‘big men’ and also indicated he planned leaving the jurisdiction but for his father. This pieces put together leaves one with no doubt that the accused intended to deprive the complainant of his money. In his evidence the accused stated that he paid all the money he received from the complainant to Moses his supposed friend. He further stated that Moses also paid the money into the Customs account at ADB. To justify his claim the accused gave to the complainant ADB deposit slips (Exhibit “E” series). It is significant to state that officials at the ADB head Office in Accra did indicate to the investigator of this case that exhibit “E” series were fake and does not emanate from their outfit. The accused under cross examination admitted that he was taken to the ADB head office by the police in the course of their investigation and that the officer indeed confirm that the above exhibits were fake. The following again ensued between prosecution and accused on 05/10/2023. Q. You remember that in the cause of the investigation the police took you to the ADB Head Office in Accra. A. Yes. Q. And the bank officials indicated that the deposit slips (Exhibit E series) were fake. A. Yes. Q. So I put it to you that all that you told this Court is meant to deceive the Court. A. That is not true. Furthermore, contrary to the assertion of the accused that his friend Moses, paid cash into the purported official account of Customs, the Commissioner of Customs per the evidence on record indicated that the transaction was fraudulent, as confiscated vehicles were not sold through payment of cash or by cash transaction but rather through bankers draft. It is therefore obvious that the accused and his supposed fried never used the money for the intended purpose or paid the money into any account whatsoever. A further scrutiny of exhibit “E” series (ADB deposit slips) clearly shows that the customer name therein is BUREAU OF NATIONAL INVESTIGATION and not CUSTOMS SERVICE as the accused wants this court to believe. At any rate, as at February, 2022, there was no institution in Ghana called Bureau of National Investigation. The name Bureau of National investigation was changed into National Investigation Bureau (NIB) long before the transaction between the accused and the complainant took place. For the foregoing, I am absolutely convinced that Exhibit “E” series are nothing but forged documents designed by the accused to aid him in his fraudulent deals on unsuspecting members of the public. The case of Ansah-Sasraku v. The State [1966] GLR 294 held that inducement was an essential requirement to the charge of defrauding by false pretence. To succeed the prosecution must prove that the complainant was induced by the false representation of the accused to part with some property or some interest in a property. In the unreported decision of the Court of Appeal in Adobor v. The Republic (H2/12/07) GHACA 5 (20TH December 2007), Owusu J. A said: “To constitute an offence of fraud by false pretence, the accused should have made a representation which to his knowledge is false, the representation should be made to a person who believe it and as a result was induced to part with or transfer the ownership of anything. To induce is to persuade, to prevail upon another person to believe something and act upon it. In the case of false pretence, the victim must have been persuaded to accept the representation made to him as true and to act upon it to his detriment.” In the instant case, I find from the record that, at the time the accused represented to complainant that he could help him buy confiscated vehicles, the accused knew he did not have that capacity and he also knew that his statement was false, yet, he persisted and persuasion the complainant to part with the GH¢52,000.00. The money was received by the accused himself and there is no evidence that it was passed on to the supposed Moses or any other person as he claim. The accused therefore received the moneys with a clear intent to defraud the complainant. It is significant to state that apart from the evidenced establishing the guilt of the accused person, his own caution statement given to the Police on 06/05/2022 upon his arrest was enough admission to the charge sufficient to ground a conviction. In the said caution statement (Exhibit “A”) which was made in accordance with section 120 (3) of the evidence Act 1975 (NRCD 323). I reproduced the relevant portions of Exhibit ‘’A” as follows: “It is true I took an amount of GH¢52,000.00 from Mr. Emmanuel Apawudza (complainant) but it is not true I have forged any document. In February, 2022 the complainant told me he wanted to by a small car for his personal use. I contacted a friend of mine who works at the customs. He sent me pictures of a number of cars and I showed them to him and he showed interest in them. So, he called me to meet him at Sogakope and we both went to Accra. I took him to Harbor and we met one Orga who is an auctioneer and after inspecting the cars the complainant told me he was not interested in any of them. He asked me if I can help him get auction car to buy. I then showed him some cars parked at the customs bounded warehouse and he chose two cars and I called Moses a customs personnel and told him the cars the complainant pointed out and he gave me the prices as GH¢23,000.00 for the Hyundai Starix and GH¢22,000.00 for Toyota Saloon and I told complainant and we both went to Accra Customs Division and wrote the application and submitted it at their Headquarters. After submitting the form Moses told me it will take one month for the processing to be ready and I told the complainant same. The complainant sent me the money and later Moses told me there was an increment of GH¢3,500.00 on the Hyundai and I told the complainant and he added same. I waited for the one month but afterwards I started calling Moses but his number could not be reached. I wish to state that I don’t know where Moses can be located. I don’t know where he lives, because we normally meet at the Mall or the reception…” I am of the considered view that Exhibit “A” is explicit and leaves no one in doubt that the accused did represented to the complainant that he could help him buy two auction vehicles, based on such representation succeeded in persuading the complainant to transfer and/or pay to him the said sum of GH¢52,000.00 with an intent to defraud him. It is significant to state that Exhibit “A” was not objected to by the accused when it was being tended in evidence as same was not obtained either by duress or promised or deceit. It is trite law that a confession made by an accused, relative to a crime for which he has been charged, is admissible against him if it was demonstrated by the prosecution that it was voluntarily obtained See The State v. Otchere [1963] 2 GLR 1-7. From the evidence adduced, the Court is of the conviction that the accused indeed committed the offence with which he has been charged. Prosecution has thus fully discharged the burden placed on them as all the ingredients in the offence of defrauding by false pretence have been proved. For the foregoing reasons, I find the accused guilty of the offence and he is convicted accordingly. In respect of sentencing, Accused have fervently prayed in mitigation of his sentence thus appealing to my conscience to leniently deal with him. In determining the length of sentence, the factors which the trial judge is entitled to consider are inter alia; 1) The intrinsic seriousness of the offence. 2) The degree of revulsion felt by law abiding citizens of the society for the particular crime 3) The premeditation with which the criminal plan was executed 4) The prevalence of the crime within the particular locality where the offence took place, or in the country generally and 5) The sudden increase in the incidence of the particular crime See: 1. Quashie & Another v. The Republic [1971] 1 GLR 488-496 2. Kamil v. The Republic [2011] 1 SCGLR 300 In the case of Quashie & Another v. The Republic [1971] 1 GLR 488-496 supra the learned Court of Appeal justices citing Hilbery J. with approval stated that: A sentencing must be intended to serve a purpose, and as Hilbery J. said in the Blake case; ‘This sentence… had a threefold purpose. It was intended to be punitive, it was designed and calculated to deter others; and it was meant to be a safeguard to this country.” I can therefore not pretend to be capable of propounding a better philosophy for sentencing than that enunciated supra by my respected seniors, except to say that with the likes of the accused in the mist of the society, no one, can claim to be safe, careful or diligent enough when you unfortunately encounter such deviant characters. It is an open secret that several persons including both the high and low place individuals within our society have fallen victim to this emerging trend of fraud. I dare say that some judges, magistrates, lawyers, police officers, doctors, teachers, traders, business moguls and even students have been victims to these style of scamming in one way or the other. Considering the seriousness of the offence, the revulsion felt by law abiding citizens of this offence, the prevalence of this offence, the expert, premeditated manner in which the accused planned and executed his agenda, I think I have a duty to protect society, property and businesses and to further deter other criminals of likeminded from venturing into this path. The Court shall accordingly sentence the accused herein, Michael Asare to eighteen (18) months prison term IHL. The accused is to forthwith, refund to the complainant, the GH¢52,000.00 he fraudulently obtained from him. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 16TH NOVEMBER, 2023.