REPUBLIC VRS AMJAD (B18/130/23) [2023] GHADC 742 (21 December 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 21ST DECEMBER, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B18/130/23 THE REPUBLIC V ABDULAI AMJAD JUDGMENT INTRODUCTION 1. On 8th June, 2023 the accused was arraigned before this court on the charge below: STATEMENT OF OFFENCE Defrauding by false pretence: contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE ABDULAI AMJAD, Health Worker: On 27th day of March 2022 at in the Northern Region and within the jurisdiction of this court, with intent to defraud did obtain the consent of one Mohammed Failu Hamza to part with cash the sum of - 1 - GHS10,000.00 by means of certain false pretence to wit falsely pretending that if the said money was given to you, you could secure some of his supporters a job at National Service Secretariat and upon such false representation you succeeded in obtaining the said amount from the said Mohammed Failu Hamza which statement you well knew at the time of making it to be false. FACTS OF THE CASE 2. The facts as narrated by the prosecution are that during the year 2022, the complainant Mohammed Failu Hamza was contesting for the Youth Organizer position of the New Patriotic Party for Tamale Central Constituency. Based on this, some of the youth in the Tamale Metropolis approached complainant for jobs. Accused informed the complainant that he was working at the National Service Secretariat and that he could offer these youth voluntary services so that they could be enrolled onto the National Service Scheme. As a result, the accused demanded GHS300.00 for each applicant and in the process took GHS10,000.00 from the complainant and directed the complainant to submit particulars of the said youth/applicants. Accused then processed the forms for 30 youth and gave each a pin code to go to the National Service Secretariat to register. But when the youth went to register, it was revealed that there was no registration going on at the Secretariat. The case was reported to the police and accused admitted the offence. Accused, therefore, was charged and arraigned before this court with the above offence. 3. Accused in court, however, pleaded not guilty to the above charge. DEFINITION OF THE OFFENCE 4. With respect to defrauding by false pretence, section 132 of Act 29 explains that a person defrauds by false pretences if, by means of a false pretence, or by personation - 2 - that person obtains the consent of another person to part with or transfer the ownership of a thing. Section 131 of Act 29 provides that a person who defrauds any other person by a false pretence commits a second degree felony. BURDEN OF PROOF 5. 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. The burden is, therefore, on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story.” 6. Thus, 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. But the doubt 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 - 3 - 7. With accused pleading not guilty to the charge, it is settled law that the prosecution must prove the whole of its case against accused, beyond reasonable doubt. 8. The prosecution in support of its case called two witnesses: Mohammed Failu Hamza (Complainant/PW1) and D/Insp. John Atsu Amegatsey (PW2). Prosecution also tendered in evidence: Exhibit A – Investigation cautioned statement of accused dated 21/3/23 Exhibit B – Charged cautioned statement dated 21/3/23 Exhibit C series – Copy of the NSS Enrollment Forms together with the Pin Codes Exhibit D – Copy of the agreement executed between the Complainant and the Accused dated 16/12/22. The Prosecution’s Case 9. PW1’s evidence is that in the year 2022, he was contesting for the Youth Organizer position of the New Patriotic Party for Tamale Central Constituency. As a result, some youth approached him for jobs. He added that the accused promised to offer him voluntary National Service programmes to be given to the youth. He added that accused claimed GHS300.00 for each youth/applicant. Consequently, accused took cash of GHS10,000.00 to generate the pin codes and forms. PW1 averred that the youth on receiving the pin codes were unable to register when they went to the National Service Secretariat, Tamale. The reason being that no registration was going on. PW1 added that he confronted the accused and accused promised to refund the money by installment. He stated further that the accused executed a repayment agreement dated 16/12/22 but has failed to go by the terms therein. Hence, he reported the matter to the police. - 4 - 10. The investigator, D/Insp. John Atsu Amegatsey (PW2), told a story similar as that of the evidence of PW1. He indicated that he investigated the matter and obtained Exhibits A and B from the accused. He then caused accused to be charged with the above offence and arraigned before this court. He also tendered in evidence Exhibits C series and D, aforementioned. 11. 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. Accused Person’s Defence 12. Accused testified for himself and called two witnesses, Alhassan Sadiq (DW1) and Mohammed Habib Bawa (DW2). Accused filed a witness statement dated 29/8/23. According to the accused, he is a health worker stationed at the Central Hospital, Tamale. He stated that complainant is his cousin, but they are not on talking terms. He explained that in 2022, complainant through DW2 impressed on him to purchase the national service pin codes. He stated further that he and DW1 were able to get the initial 20 pin codes at the cost of GHS6,000.00 from a contact at the National Service Secretariat. Subsequently, complainant paid for an additional 10 pin codes at GHS3,000.00. He added that complainant was unable to register the pin codes and so demanded for a refund of the money. He indicated that he was locked up, harassed and compelled to execute an agreement, Exhibit D, to pay the complainant the sum of GHS10,000.00. Accused stated further that despite signing the agreement, the harassment did not cease, hence he caused his lawyer to write to the investigator stating that the executed agreement had been terminated due to the subsequent harassments. - 5 - 13. Alhassan Sadiq (DW1) repeated the story of the accused. He added that he was present when DW2 pleaded with accused to get complainant the pin codes. He explained that complainant upon receiving the 30pin codes was unable to register it, hence complainant demanded for his money. DW1 admitted that he received the extra GHS1,000.00 for processing of the pin codes into forms. He added that complainant threatened to get him arrested if he failed to refund the money. As a result, PW2 informed him that complainant had reported the matter to the police and that he (DW1) was to refund the money. 14. DW2, Mohammed Habib Bawa, also in his witness statement narrated similar facts as that of accused and DW1. He added that accused informed him that there were pin codes available for sale and he also informed the complainant about same. He confirmed that complainant paid GHS9,000.00 for the 30 pin codes. ANALYSIS OF FACTS AND LAW 15. The court in COP v Dwamina [1965] 1 WALR 55 held that in a charge of defrauding by false pretence, 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 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 cases of The State - 6 - v Agyemang, Asem & Boamono [1962] 2 GLR 67 and Kuma v The Republic [1970] CC 113. 16. From the evidence, it is not in doubt that the complainant gave accused the GHS9,000.00. for the 30pin codes and GHS1,000.00 for processing of the forms. In fact, the complainant averred that he paid the money to the accused because accused was offering him pin codes to be given to the youth for voluntary services under the National Service Scheme. However, below is what ensued when complainant was under cross-examination: “Q: I am putting it to you that because of your relationship with the accused you have admitted you gave him money to help you out with your difficulty as an aspirant of a political party? A: Yes. I was aspiring to be a youth organizer of our party. Later I have come to realise that per our constitution at age 40 you cannot contest, so I withdrew. But before that I met most of our youth groups and they told me that they are looking for jobs and I informed them that they should let me get there first. So they said I should do something to prove that should I get there I will support them and because of my relationship with accused, he said he can get voluntary service for them. Then he took that money of GHS10,000.00 from me. So when I did not contest anymore that was when these issues arose; today, tomorrow and that is why we are here. Q: From what you have said and from the statement in your witness statement, you gave money to accused to help you get jobs for the youth? - 7 - A: That is not so. He was not offering the jobs, he was offering a voluntary service.” 17. The accused admitted that he had a friend at the National Service Secretariat that he contacted for the pin codes, see paragraphs 10 and 15 of his witness statement: “10. Habib and almost every member of our extended family knew I had friends at the National Service Secretariat. I had on previous occasions assisted some of them to get placed to do their national service. 15. At this point, Sadiq (DW1) and I took the money to my contact at NSS, …”. When the accused was cross-examined, below is what ensued: “Q: Kindly tell the court the reason or purpose of buying the pins? A: That is complainant’s business. So it got to a point he could not purchase or acquire the pins. Complainant met my brother, Abdullah Habib at a funeral and told him to assist him (complainant) to acquire the pins. My brother declined but complainant persuaded that it will in the long run benefit some of the family members.” 18. Both DW1 and DW2 admitted that complainant paid for the pin codes but denied knowledge or purpose of the pin codes. 19. From the above, it is clear that accused took monies from the complainant with intention of getting him pin codes for some youth to undergo voluntary service under the National Service Scheme. There is, however, a sharp twist to the above story. This is found in Exhibit D, the agreement executed between the complainant and the accused dated 16/12/22. Thus, prior to this case the complainant and accused executed Exhibit D and characterized the whole deal as a loan deal. Exhibit D states in part: - 8 - “(iii) The creditor and debtor have agreed to enter into a repayment agreement, subject to the terms and conditions evidenced hereby: … Money Advanced It is agreed between the parties that the creditor has advance to the debtor an amount of GHS10,000.00.” 20. Exhibit D never stated the purpose of the said money. Accused/Debtor therein was expected to pay GHS4,000.00 by 31/1/23, GHS3,000.00 by 28/2/23 and GHS3,000.00 by 31/3/23. It was when the accused/debtor failed to pay that is why complainant reported the matter to the police. And according to the accused, because he was harassed, he deems the said agreement as terminated. 21. The Supreme Court in Hemans v Coffie [1996-1997] SCGLR 595 held that, “The duty of the police was to protect the life and property of the citizenry and not to act as debt collectors.” In my opinion, since Exhibit D preceded this whole criminal action, the police should have referred the parties to resort to a civil action, no matter how clothed the contract was. However, it allowed itself to be used and to prefer criminal charge, in no less than defrauding by false pretence, against the accused. As at 21/3/23 the accused/debtor had up to 31/3/23 to make due all or the final amount. Yet, this case was treated as a crime. I find that considering the position of the complainant, prosecution allowed itself to be misled into to this action. 22. Despite the above, I find that there is a criminal enterprise here. The complainant is paying a public officer to secure him pin codes under the National Service Scheme, see sections 244, 245, 247 and 252 of Act 29 on bribery, corruption, extortion and - 9 - accepting/giving bribe, respectively. As prosecution rightly teased out, national service is for persons who have completed tertiary institutions and are mandated to serve. How then is the accused person acquiring, buying or selling pin codes to others, at a fee? Who pays to work for free? From the evidence, not only the accused is involved, but also DW1. Prosecution even stated that DW1 was lucky he was not charged. What prevented the prosecution in conducting a proper investigation in arresting all the perpetrators, more particularly the contact person at the National Service Secretariat? I find that prosecution just followed the whims and caprices of the complainant, being a political figure. I also find that complainant was desperate to woo the youth for his political ambition. This, he contacted the accused, who per his own statement, admitted as being known for doing those shady deals, see Exhibit A. 23. In effect, I find that the accused shall not go unpunished after admitting or confessing his criminal act, see Exhibit A. Accused was engaged in a criminal act of offering pin codes to which same was mandated for graduates of tertiary institutions. He knew the object of his act was illegal, but went ahead to take money from the complainant. DW2, indeed, stated that accused was the one who indicated that the pin codes were available for sale and he later informed the complainant, see paragraph 7 of his witness statement. I have painstakingly checked the website of the National Service Scheme, but found no voluntary service opportunities there. Any applicant must have an index number or student ID in order to apply. Those who are unable to do their service are given an opportunity to do so later, since it is mandatory. It baffles me not how accused and his cohorts generated those pin codes, see Exhibit C series. I believe the main person is at the Secretariat. I, therefore, hold that prosecution has succeeded in proving beyond reasonable doubt the charge of defrauding by false pretence. However, neither the complainant nor the accused is to benefit from this shady deal. - 10 - - 11 - PRE-SENTENCING HEARING 24. Having heard from counsel for the accused and the prosecution on mitigation, I note that the accused and his cohorts benefited an amount of GHS10,000.00 for something that did not exist. If same existed, it was an illegal act. Should this court award a fine, which I am only mandated up to 500p.u. (i.e. GHS6,000.00), then an injustice will be done. Similarly, it would be an injustice just to allow the accused to walk free, with a caution as prayed by his counsel. In the circumstance, the accused is hereby to pay a fine of 500p.u (GHS6,000.00) and in addition serve a jail term of 6months. Should accused fail to pay the 500p.u. he shall serve an additional jail term of 6months in that regard. The above is to serve as a deterrent to all persons who may engage in a similar act. 25. The complainant, Mohammed Failu Hamza, shall not benefit from this shady deal, clothed as a loan agreement in Exhibit D. He is not entitled to any compensation. 26. The prosecution is equally advised to pull the breaks on the activities of the accused person as he appears to be collecting monies from the desperate youth seeking job opportunities. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. A. R. DAWUD FOR THE REPUBLIC IAN A. ADAGWINE ESQ., HOLDING THE BRIEF OF SHEIKH-ARIF ABDULLAH ESQ., FOR THE ACCUSED - 12 - References: 1. Article 19(2)(c) and (d) of the 1992 Constitution 2. ss. 131 and 132 of the Criminal Offences Act, 1960 (Act 29) 3. ss. 11(2), 13(1), 15 and 22 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. Hemans v Coffie [1996-1997] SCGLR 595 - 13 -