REPUBLIC VRS AMPEA (D6/607/2016) [2023] GHACC 709 (13 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON WEDNESDAY, 13TH DECEMBER, 2023 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D6/607/2016 THE REPUBLIC VRS DOMINIC AMPEA ACCUSED PERSON PRESENT ASP SETH FRIMPONG FOR THE REPUBLIC PRESENT JUDGEMENT The Accused person has been standing trial since 2016. He was arraigned before this Court for the offence of Defrauding by False Pretences contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). The Accused person pleaded Not Guilty to the charge when same was read and explained to him. THE FACTS OF THE CASE Sometime in July, 2009, the accused person with intent to defraud prospective visa applicants informed one Shamsudeen Isahaq, a witness in this case, that he was capable of securing visas for people with intent to travel to USA or Canada. Based on this false representation, the witness also informed the complainant who expressed interest and paid §4,500 on behalf of his brother Basist Abubakari to enable the said brother to travel to Canada. Because the accused person has no capacity to acquire the visa, he could not secure the visa for the complainant’s brother. He requested for extra money by falsely pretending that if the money was paid to him, he could secure a visa for the complainant himself to travel to USA. Upon such false representation, the accused person succeeded in obtaining an amount of §4,500 from the complainant. Since the accused person’s claims were false, he could not get any visa for the complainant. A report was made to police and the accused person was arrested. The accused person claimed to have refunded GH¢6,000.00 to the complainant but the latter denied having received same. The prosecution called two (2) witnesses to testify in support of its case. PW1 (Detective Lance Corporal Prince Agyemang) investigated the case. PW1 relied on his Witness Statement and tendered in evidence the Cautioned and Charge Statements of the Accused person and marked as Exhibits ‘A’ and ‘B’ respectively. The testimony of PW2, the complainant (Baba Imam Ishaq) confirmed the facts as presented by the prosecution. PW2 tendered in evidence, GCB Xpress Money Transfer Transaction and two (2) written Agreements and same were marked as Exhibits ‘C’, ‘D’ and ‘D1’ respectively. At the close of the case of the prosecution, the Court determined that prima facie had been made out against the Accused person. Accordingly, the Court called upon the Accused person to enter into his defence. THE CASE OF THE DEFENCE The Accused person filed a witness statement on the 17th November, 2023 and relied on same as his Evidence-In-Chief. The Accused person testified as a farmer from Breman Asikuma in the Central Region of Ghana. The Accused person told the Court that if indeed the complainant paid USD4,500 to him, then he should show proof of receipt. According to the Accused person, he never told the complainant that there was a chance for acquiring US Visa for him and that he had to pay additional USD4,500 to make it USD9,000. It is the case of the Accused person that on the 16th July, 2009, he entered into an agreement with the complainant regarding his travel to Canada. That on the 2nd November, 2009, he again entered into an agreement with the complainant in respect of his travel to the United States. According to the Accused person, there is no evidence that the complainant paid any USD for accommodation and lodging. The Accused person further told the Court that all monies would be paid in case he was able to obtain the required US or Canadian Visas. The Accused person added that he agreed that the complainant paid GH¢3,600.00 for his brother but he later told him his brother had secured some connection in Saudi Arabia so he wanted to cancel the trip to Canada. So, he refunded GH¢3,600.00 to the complainant. The Accused person told the Court that he mentioned in his Cautioned Statement that the Passport of Imam was with Nana Yaw, the person who was to do the Visa and that he managed to collect same from him and now in his custody. The Accused person concluded his evidence by saying that he owed the complainant USD200. The legal issue that emerged for determination after the end of the trial was whether or not the Accused person defrauded the complainant by false pretences. Sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323) and also the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, where Korsah CJ stated: “Burden of proof is …. used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense, it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt….”. In the case of Bruce-Konuah vrs The Republic [1967] GLR 611 – 617, Amissah J. A. stated thus: “Barring the well-known exceptions, an accused is under no obligation to prove his innocence. The burden of proof of the accused person's guilt is on the prosecution.” In the case of Woolmington v. The Director of Public Prosecutions, Lord Sankey stated: “No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law … and no attempt to whittle it down can be entertained”. THE LAW AND EVALUATION OF EVIDENCE The Law on Defrauding by False Pretences: Section 131(1) of Act 29 provides: “A person who defrauds any other person by a false pretence commits a second degree felony.” Section 132 of Act 29 provides: “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.” From the above, the elements of defrauding by false pretences are as follows: 1. 2. 3. The use of false pretence or personation; To obtain the consent of another person; So that the person parts with or transfers the ownership of something. In the case of Republic vrs Selormey [2001-2002] 2 GLR 424, the court stated the following ingredients in an offence of defrauding by false pretences: “A person shall make a false representation or by a personation either by written, spoken or sign language or any other means whatsoever; the said representation was made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was made in regard to the existence of a state of facts to obtain the consent of another person; the said representation was false or made without the belief that it was true; as a result of the false representation the accused person caused the other person to part with or transfer ownership of a thing.” See also Sarpong vrs The Republic [1981] GLR 790; Adobor vrs The Republic [2008] 19 MLRG 23 CA. Section 133 of Act 29, in defining false pretence, lays out the following ingredients: 1. Representing the existence of a state of fact, 2. Either with the knowledge that such representation is false or without the belief that it is true, 3. The representation should be made with the intention to defraud. In the case of Adobor vrs The Republic [2008] 19 MLRG 23 CA per R. C. Owusu J. A. (as she then was), the Court of Appeal held that: “To constitute an offence 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 believed it and as a result was induced to part with or transfer with or transfer the ownership of anything”. In his Witness Statement to the Court, the Accused person stated that he collected the sum of GH¢3,600.00 from the complainant but later refunded same when he was told that the complainant’s brother who wanted the USA Visa had secured travel connection to Saudi Arabia. The Accused person added that he owed the complainant the sum of USD200. However, in his Cautioned Statement given to the police on the 18th April, 2016, he said: “In the year 2009, Imam Ishaq was introduced to me by one Mr. Shams that he wanted to be helped to secure visa to either USA or Canada. Agreement was reached that initial deposit of 300Ghc was to be made for documentation. Also, a registration fee of GH¢50 which was not refundable. And two Hundred Dollars was paid which could be deducted from the charge of four thousand dollars when visa had been secured. There was delay on the part of the man and things did not go on well as arranged. Therefore, he decided not to make the trip any longer. He later on brought his brother rather to make the trip. The next arrangement was for Mr. Imam to pay an amount of GH¢4,000 for the transaction to take place. However, he paid a told of GH¢3,600. 1st payment = 1,280) 2nd payment = 1,800, the 3rd payment was GH¢600. He back to say that the brother whom he was securing the visa for had got another connection and had travelled to Saudi Arabia and therefore wanted the programme to be cancelled. In this regard 1st payment of GH¢2,000 was made to him Imam at my house in the presence of my wife and one of my children. A second 2nd payment of another GH¢2,000 was advanced to him. I paid another GH¢1,000 to Imam also at my house in the presence of my wife and children. The last payment made to Imam GH¢1,000 also at my house in the presence of my wife and children. All the payments made to Iman was made known to one Mr. Hafiz whom he brought to help retrieve the money. So far I have advanced GH¢6,000 to Imam. This is because he claimed to have paid §2,000 to me.” In the case of Brempong II v. The Republic [1995-96] 1 GLR 350 per holding 5, the Court of Appeal stated that: “In law, for conflicts and inconsistencies in evidence to influence a decision, they had to be material and also destroy proof of an element of the offence or totally discredit the witnesses so as to make their testimony unreliable……………”. Also, in the case of Kuo Den alias Sobti v. The Republic [1989-90] GLR 203, the Supreme Court in a charge of murder explained at page 213 that where there are material inconsistencies in the defence put up by the accused person, there was sufficient justification for the jury to reject the defence. The above inconsistencies in the testimony of the Accused person are too material and thus totally discredited and therefore unreliable. More so, the Accused person did not call his wife or any of the said children he said witnessed the payment of money to the complainant. The Accused person did not also call the alleged person who was to secure the Visa for the complainant. At the trial, the prosecution tendered in evidence, two agreements and marked as Exhibits ‘D’ and ‘D1’, and contents respectively show below: “AGREEMENT Agreement is made today 16th July, 2009 between Mr. Dominic Ampea and ABUBAKARI ABDUL in respect to travel to Canada. (1) That an initial deposit of ¢300.00 paid by the client (ABDUL BASIT) as registration fee. (2) The registration fee is refundable in case things couldn’t materialize. (3) The total amount to be paid shall be §4,500 on the receipt of the visa.” (4) All money paid shall be deducted from total sum mentioned above………” “AGREEMENT Agreement is made today, 2nd Nov., 2009 between Mr. Dominic Ampea (Agent) and Baba Ishaq Hassan (Client) in respect to travel to United States of America. (1) That initial deposit of ¢300 as registration (¢50.00), processing (¢250.00) and §200 (U. S. A. DOLLARS) as accommodation and lodging fees paid by the Client. (2) The total amount to be paid shall be §6,200.00 on the receipt of the visa. (3) All the monies paid shall be deducted from the sum mentioned above except the registration fee. (4) The monies paid is refundable except the registration fee, in case things could go through …………” Under cross examination, the Accused person maintained that he did not the sum of USD9,000 from the complainant and that the agreement was that this amount was to be paid after the Visa had been secured. As assuming without admitting that, that was the case, then why did the Accused person collect monies from the complainant more than what is contained in the agreement. From the available evidence before this Court, the Accused person is a farmer. Also, from Exhibits ‘D’ and ‘D1’, it is obvious that it was the Accused person himself who entered into an agreement with the complainant and signed both agreements. Archer J. (as he then was) in the case of Blay vrs The Republic [1968] 1040-1050 stated: “In a charge of defrauding by false pretences, if the evidence showed that the statements relied on consisted partly of a fraudulent misrepresentation of an existing fact and partly of a promise to do something in future, there was sufficient false pretence on which a conviction could be based”. The Court finds that the complainant relied on these false statements made by the Accused person and ended up parting with cash the sum of USD9,000. Upon a careful evaluation of the totality of the evidence adduced in the trial, the Court finds that the prosecution has been able to prove its case beyond reasonable doubt. There is sufficient justification to reject the defence put forward by the Accused person. The Court finds the Accused person guilty of the offence of Defrauding by False Pretence and he is accordingly convicted. SENTENCING: In sentencing the Accused person, I take into consideration of the fact that he is a first time offender and advanced in age. As confirmed by the prosecution, the Accused person has lost his wife. The Court will therefore give him the opportunity to reform. In the circumstance, I hereby sentence the Accused person to serve a prison term of One (1) day imprisonment. In addition, he will pay a fine Three Hundred (300) Penalty Units and in default serve a prison term of Eighteen (18) months. FINAL ORDER: The Accused person shall refund the sum of USD9,000 to the complainant, Baba Imam Ishaq. …………………….....…. ISAAC ADDO CIRCUIT COURT JUDGE 13TH DECEMBER, 2023 9