REPUBLIC VRS ARMAH & ANOTHER (D2/352/2023) [2023] GHACC 717 (6 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON WEDNESDAY, 6TH DECEMBER, 2023 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D2/352/2023 THE REPUBLIC VRS 1. OBED ARMAH 2. RICHARD WORNYOH ACCUSED PERSONS PRESENT INSPECTOR DANIEL OFORI APPIAH FOR THE REPUBLIC PRESENT ANDREW K. VORTIA, ESQ. LED BY NIIBI AYIBONTE, ESQ. FOR THE ACCUSED PERSONS PRESENT RULING ON WHETHER OR NOT THE PROSEUCTION HAS ESTABLISHED A PRIMA FACIE CASE HAD BEEN MADE OUT AGAINST THE ACCUSED PERSONS On the 3rd July, 2023, the Accused persons were first arraigned before this Court, charged with the following offences: i. ii. Conspiracy to commit crime to wit Defrauding by False Pretences, and Defrauding by False Pretences contrary, to sections 23(1) and 131 of the Criminal Offences Act, 1960 (Act 29). The Accused persons pleaded Not Guilty to the charges after same had been read out and explained to them. THE BRIEF FACTS OF THE CASE The complainant in this case is a pastor and lives at La. The accused persons are mechanics and a contractor and all live in Gbawe. During the month of August, 2008, the complainant wanted a plot of land to buy and discussed it with his wife. The complainant’s wife introduced him to the Accused person at Gbawe. The complainant contacted the 1st Accused person and he also took him to the 2nd Accused person, who claim to be the owner of the land. The Accused persons took the complainant to Gbawe Zero house area and showed him two plots of land at the price of GH¢15,000.00 per plot which the complainant agreed and paid GH¢30,000.00 for the two plots of land. The complainant then gave the 1st Accused person a further GH¢5,000.00 to the 1st Accused person to buy building materials to put up a single room on the land for him. The 1st Accused person after collecting that money failed to buy the materials. The complainant later found out that the land belongs to a different person and not the Accused persons. The complainant demanded for his money but the Accused persons failed to refund the money. The complainant pursued the Accused persons for about ten (10) years for his money but to no avail. In 2018, the complainant reported the matter to the La Police and the Accused persons were arrested. At the trial, the prosecution called two (2) witnesses to testify in support of its case. The testimony of the complainant (Emmanuel Odoi) who is PW1 in this case confirmed the facts as presented by the prosecution. PW2 (Detective Inspector Francis K. Chanimbe) investigated the case. PW2 relied on his Witness Statement together with the exhibits attached. At the close of the case of the prosecution, the defence counsel informed the Court that he wanted to file a written submission of no case to answer. Accordingly, the Court granted counsel leave to file his written submission of no case to answer to reach this Court not later than 24th November, 2023. As the time of reading this ruling, the defence counsel had not filed any process yet in this Court. That notwithstanding, this Court went ahead to determine whether or not the prosecution has established a prima facie case against the Accused person herein. At this stage of the trial, this Court is enjoined to determine whether or not a prima facie case has been made out against the Accused person to warrant him to enter into his defence. Sections 173 and 174(1) of the Criminal offences (Procedure) Act, 1960 (Act 30) provides: “173 Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement.” In the case of Michael Asamoah & Another vrs The Republic [2017] DLSC 2628 @ page 4, the Supreme Court speaking through Adinyira JSC stated the law on submission of no case as follows: “The grounds upon which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial on indictment may be restated as follows: There had been no evidence to prove an essential element in the crime; a) The evidence adduced by the prosecution had been so discredited as a result of cross- examination; or b) The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it; c) The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt and one with innocence. See also the cases of Tsatsu Tsikata vrs The Republic [2003-2004] SCGLR 1068; Affail vrs The Republic [1975] 2 GLR 69; Apaloo and Others vrs The Republic [1975] 1 GLR 156-192; State v. Ali Kassena [1962] 1 G. L. R. 144, S. C.” This being a criminal case, the prosecution bears the burden of proof to establish the guilt of the accused person beyond reasonable doubt as per sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323) and also as was stated in the case of Bruce-Konuah v. The Republic [1967] GLR 611-617, where 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.” THE LAW AND EVALUATION OF EVIDENCE The Law on Conspiracy: Section 23(1) of Act 29 provides: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” The new definition of Conspiracy introduced by the Law Review Commissioner has limited the scope of conspiracy in Ghana. For conspiracy to succeed in Ghana, the prosecution must prove that the persons agreed to act together with the common purpose to commit the offence. It is however not a defence for an accused person who is charged for conspiracy to state that he did not have a prior or previous concert or deliberation with the other accused persons to commit the offence where there is evidence that they agreed to act together to commit the offence. Therefore, to found conviction for conspiracy, the prosecution has the duty to establish the following ingredients: 1. That the offence involved two or more persons; 2. That those persons agreed to act together; and 3. That they acted together with a common purpose, i.e. to commit a crime or do an unlawful act or a lawful act by an unlawful means. The Law on Stealing: Stealing is defined at Section 125 of Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner”. In the case of The State vs. W. M. Q. Halm and Aryeh Kumi Crim. App Nos. 118/67 and 113/67, 7 August, 1969; (1969) CC155, the court per Akufo Addo, C. J., Ollennu, Apaloo, Amissah JJ. A and Archer J stated the three essential ingredients which prove a charge of Stealing under our criminal law as: “(i) That the person charged must not be the owner of the thing allegedly stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” See also Lucien vrs The Republic [1977] 1 GLR 351-359 at holding 2. Throughout the trial, the defence of the Accused persons has been the amount of money paid to them by the complainant and not existence of a parcel of land the ownership of which is invested in them or belonging to them upon which they sold same to the complainant. In the defence of the Accused persons when they cross examined the prosecution witnesses, they following is what transpired: Cross examination of PW1 by the defence counsel on the 12th September, 2023: Q. You and Accused person were paraded before the Crime Officer. Is that correct? A. That is correct. Q. The two accused persons disagreed ever collecting GH¢35,000.00 from you for the sale of land but GH¢9,300.00. A. It is not true. Q. Did you receive any receipt from the 1st and 2nd Accused persons on the GH¢35,000.00? A. They didn’t give me any receipt. When I asked them, they said they don’t have receipts to issue. Q. Did you allegedly the GH¢35,000.00 in one lump sum? A. I paid in instalments. Q. You want this court to believe that you paid a total of GH¢35,000.00 without any evidence of payment like receipts? A. All the payments I made to the Accused persons, I made entries on the back of an indenture they gave me. I paid GH¢3,000.00, GH¢3,000.00 and the first and second payments, I recorded all at the back of the indenture. Q. I put it to you that you could have exhibited the said indenture to your witness statement but you failed to do so. A. When I realized A1 and A2 had defrauded me, A2 sent A1 to come and tell me that the chief needed the indenture to change it for me. I told A1 he has seen that I had written the payments made at the back of the indenture. He requested for my passport picture and I also gave it to him. A1 took my indenture away. I told him to return the indenture but he refused so I don’t have it now. Q. I put it to you that what you just said is an afterthought. You never paid GH¢30,000 to A1 and A2. A. I have paid it to them through A2. He has been collecting the moneys from me. He comes to me at my workplace and place of abode. Q. Can you tell the court how many times A2 came to your workplace for money? A. About five times on a motorbike. Q. So will you agree with me that paragraph 9 of your witness statement says you paid GH¢1,000.00, GH¢2,000.00 and sometimes GH¢3,000.00. A. Yes My Lord until I made full payment. Q. I put it to you that A2 collected GH¢1,000.00, GH¢2,000.00, GH¢3,000.00 making GH¢6,000.00. The other two visits cannot amount to GH¢30,000.00. A. It is the market I said he came five times. Some of the moneys were paid at my place of abode and church. Q. Can you tell the court the year this alleged transaction took place? A. 8th August, 2008. Q. What is the location of the alleged land? A. Gbawe Zero. Q. How much was a plot of land selling at that time? A. I cannot tell because I don’t reside there. Q. I put it to you that land at Gbawe fifteen years ago could not have cost GH¢15,000.00. A. That was the figure or amount they quoted for me to pay. They priced the land at GH¢20,000.00 but I bargained for GH¢15,000.00. Q. The Accused person refunded GH¢9,300.00 to you at the police station being the amount they collected from you before the case came to court. A. It is not true. They paid it in court, not at the police station. They collected more than that from me. Q. I put it to you that you demanded for your money at the police station and it was paid to you. A. It is not true. They made some payment to me at Court ‘7’ Room. (Emphasis mine) Cross examination of PW2 by the defence counsel on the 8th November, 2023 Q. The land that was given to the complainant, he didn’t develop it on time so another person went and developed it. He delayed for fifteen years. A. It is not true. Between the time the case was reported and the time they took the money is not even up to ten years. Q. One plot of land was GH¢6,000.00, so for two plots it was GH¢12,000.00. The complainant paid GH¢9,300.00. A. Investigations disclosed that land at the time in 2008 was between GH¢10,000.00 and GH¢20,000.00. Q. I put it to you that land sold at the time was not up to GH¢10,000.00. A. I interviewed some people around that time but I didn’t take statements from them. Andrew K. Vortia, counsel for Accused persons now present at 10:25am to continue with cross examination of PW2 Q. How much did the complainant tell you he gave to the Accused person? A. It was GH¢35,000.00. Q. Did he provide any evidence by way of receipt to confirm your assertion? A. The only records the complainant had was the indenture given to him by the Accused persons but the Accused persons came back for it. Q. The two Accused persons consistently denied the GH¢35,000.00 given to them in their statements. A. That is correct. Q. They went further to voluntarily release the amount they claim they took upon demand. A. There were inconsistencies in their denial. One said he received GH¢9,300.00, the other said GH¢650.00, which indicates that they were not consistent. Q. Was the alleged GH¢35,000.00 paid in bulk or by instalments? A. By instalments. Q. How many instalments were made? A. The first instalment was done at La. It was GH¢8,000. The second instalment was GH¢3,000.00. The others were paid in bits, at times GH¢1,000.00, GH¢2,000.00 etc. Q. Do you agree with me that a quantum of GH¢1,000, GH¢2,000.00, etc. does not add up. A. The instalment payments were agreed upon by the parties. Q. The complainant told this court he made five instalments. A. I cannot confirm that. Q. With five instalments made by the complainant with the highest being GH¢35,000.00 looks gargantuan. A. I disagree. Q. A1 and A2 have refunded all the amounts of GH¢9,300.00 to the complainant. A. They refunded GH¢9,300.00 but that is not the total. Q. I put it to you that the complainant didn’t pay GH¢35,000.00 to A1 and A2. A. He did pay to A1 and A2. This Court is not expected to do anything beyond a determination of whether or not a prima facie case has been made against the Accused person. In doing so, one has to consider whether or not the evidence so far adduced has been so discredited as a result of cross-examination that it would be unreasonable to continue with the trial, or whether an essential ingredient or element of the charges against the accused person has not been established by the evidence so far adduced. In the case of Atsu vrs The Republic [1968] GLR 716 @719 CA, the Court stated; “As a general rule, evidence from the defence is not taken until the court has held that the prosecution has established a prima facie case. This is based upon the well-known principle that it is the prosecution which has an onus to prove the guilt of the person they accuse of an offence, and not the accused who should establish his innocence, the accused should therefore not show his hands until the need arises.” On this same issue of establishing prima facie case, I will quote the venerable Justice (Rtd) S. A. Brobbey in his Book titled “The Essentials of the Ghana Law of Evidence” at page 55: “The law is well-settled that at the end of the case for the prosecution, only prima facie case can be made against the accused. This principle was well articulated in the case of The State v. Sowah and Essel ([1961] GLR 743) where it was held at page 745 that: “It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution provides prima facie evidence from which the guilt of the accused may be presumed, and which therefore calls for an explanation by the accused.” I have carefully examined the evidence of the two (2) prosecution witnesses and the answers elicited by the defence under cross examination. The Accused persons have some questions to answer and it is therefore apposite to call upon them to put their defence forward to the Court. In the circumstances, I hold that the prosecution has established a prima facie case against the Accused persons and they are called upon to enter into their defence. (SGD.) ISAAC ADDO CIRCUIT JUDGE 6TH DECEMBER, 2023 11