Republic Vrs Gyan [2023] GHACC 421 (13 April 2023)

IN THE CIRCUIT COURT HELD AT TEPA ON THURSDAY THE 13TH DAY OF APRIL 2023 BEFORE HER LADYSHIP JUSTICE GWENDOLYN MILLICENT OWUSU, A JUSTICE OF THE HIGH COURT SITTING AS AN ADDITIONAL CIRCUIT JUDGE 96/2020 THE REPUBLIC VRS CHRISTIAN OHENE GYAN PROSECUTION: CHIEF INSPECTOR CHARLES AGOVI ACCUSED PERSON PRESENT AND SELF REPRESENTING JUDGMENT The accused was arraigned before this court on a charge of defrauding by false pretences contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). The particulars of the offence are that Christian Ohene Gyan, the accused is a pastor aged 31 years. During the month of July 2019, at Tepa in the Ashanti Circuit and within the jurisdiction of this court, with intent to defraud did obtain the consent of one Abena Pokuah to part with cash the sum of eleven thousand and eighty seven Ghana cedis (GHC 11,087.00) by means of certain false pretences to wit: if the said amount is given to you, you could uncover an ancestral gold for her in her cocoa farm situated at Subompang near Tepa and upon such false representation, you succeeded in obtaining the said amount from the said Abena Pokuah which statement you well knew at the time of making it to be false. Accused pleaded not guilty to the charge. The Brief Facts of prosecution’s case are that, complainant Abena Pokuaa is a farmer and a resident of Tepa. Accused Christian Ohene Gyan is a pastor and lives at Goaso. Complainant alleged about a year ago, her mother the late Yaa Donkor revealed to her in a dream that she has hidden an ancestral gold in a portion of her cocoa farm situated at Subompang near Tepa. During the month of July 2019, complainant consulted accused and told him of what her late mother has revealed to her in her dream and asked accused to pray over it if it’s true there is an ancestral gold hidden in her cocoa farm. Few days later, accused went to complainant and told her he had prayed and God had confirmed to him that it is true that there is an ancestral gold hidden in her farm as revealed to her by her late mother. That he could help complainant uncover the ancestral gold, hence collected various sums of money from the complainant and her son, one Regan Gyasi who is domiciled in USA to the tune of eleven thousand and eighty seven Ghana cedis (GH₵ 11,087) under the pretext of buying anointing oil and some stuff which he would use to perform the rituals before uncovering the ancestral gold for her. About two weeks later, accused brought some of the items and they went to the farm late in the night. Accused after prayers dug the soil for some hours and returned home. They did that for three days. On the third day, accused again after prayers, dug the soil and uncovered the ancestral gold in a pot which they brought home in the company of one Appiah Kubi, son of the complainant and they placed same in the complainant’s room after which accused returned to Goaso. Days later, accused went to complainant’s house, and with the consent of complainant, dug hole in her room and buried the pot in it. Accused on another day, went to the complainant’s house, removed the pot and brought out some of the gold, washed same and showed it to the complainant and her son Appiah Kubi after which he went and placed it back into the pot. Days later, accused again went to the complainant’s house with food in the absence of complainant, asked her son Appiah Kubi to grind pepper for him and the boy did same for him. After the boy had finished grinding the pepper, accused again asked complainant’s son to bring him a table for him to eat on it and the table was brought to him. After accused finished eating and left, the complainant who was not at home then, returned home and detected that the pot containing the ancestral gold, buried in her room had been stolen. She immediately called accused on phone and asked him of the whereabouts of the pot. Accused told complainant he has spiritually relocated the pot containing the ancestral gold to a different place. Complainant then asked accused to come and show her where he has spiritually relocated the pot to but to no avail. Since then accused went into hiding. On the 6th day of December 2019, the complainant assisted by some residents of Goaso, arrested accused from his hideout at Goaso and handed him over to police Goaso for the necessary actions. Accused then was handed over to police Tepa for investigations since the case emanated from Tepa. Investigations caution statement was obtained from accused in the presence of an independent witness and later admitted to police enquiry bail. After police investigations, accused was formally charged with the offence as stated on the charge sheet and brought before this honourable court. Per Section 131 of Act 29, (1) Whoever defrauds any person by any false pretence shall be guilty of a second degree felony. (2) A person who by means of a false pretence or by personation obtains or attempts to obtain the consent of another person to part with or to transfer the ownership of a thing by a false representation of acting in accordance with the instruction, orders or a request of the president or member of the cabinet commits a second degree felony under subsection (1) and is liable to a term of imprisonment of not less than ten years and not more than twenty-five despite section 296 of the Criminal and Other Offences (Procedure) Act 1960 (Act 30) Section 132 defines Defrauding by False Pretence as follows: “A person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything.” Section 133 of Act 29 further explains that: A false pretence is a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true, and made with an intent to defraud. It further states that for the purpose of the section, a representation may be made either by written or spoken words, or by personation, or by any other conduct, sign, or means of whatsoever kind. The expression "a representation of the existence of a state of facts" includes a representation as to the non-existence of anything or condition of things, and a representation of any right, liability, authority, ability, dignity or ground of credit or confidence as resulting from any alleged past facts or state of facts, but does not include a mere representation of any intention or state of mind in the persons making the representation, nor any mere representation or promise that anything will happen or be done, or is likely to happen or be done; a consent shall not be deemed to have been obtained by a false representation as to the quality or value of a thing, unless, the thing is substantially worthless for the purpose for which it is represented to be fit, or to have been substantially a different thing from that which it is represented to be; and subject to the foregoing rules, if the consent of a person is in fact obtained by a false pretence, it is immaterial that the pretence is such as would have had no effect on the mind of a person using ordinary care and judgment. BURDEN OF PROOF The prosecution had the burden to prove that the accused person has perpetrated the said offence. This is so because in our criminal law jurisprudence, it is the prosecution which carries the burden of proof, the standard of which is proof beyond reasonable doubt as reflected in the statement of Lord Sankey in Woolmington v. DPP [1935] UKHL 1 that “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 of England and no attempt to whittle it down can be entertained”. It was held in Dexter Johnson v. the Republic [2011] 33 GMJ 68 S.C that prosecution would have to discharge this burden by leading evidence satisfactorily to prove that the accused person committed the offences he has been charged with. Any doubt in the prosecution’s case should inure to the benefit of the accused person. Section 11(2), (3) and (4) of the Evidence Act refers to the burden on prosecution to prove the guilt of the accused person beyond reasonable doubt. Section 11(2) states that “in a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to the guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond a reasonable doubt”. This is in consonance with Article 19 (2) (c) of the 1992 Constitution which provides: “A person charged with a criminal offence shall be presumed to be innocent until he is proved or had pleaded guilty”. According to prosecution, accused collected certain sums from PW1 and her children to perform rituals to purify some ancestral gold buried in the farm of PW1. Accused after collecting all the said sums, and allegedly digging out a pot that supposedly contained the said gold, had same buried again in the room of PW1, as part of the said purification rituals, and later, the said gold could not be found. During cross examination of PW1 by the accused, the accused insisted that he had performed the said rituals and unearthed the said ancestral gold and given same to PW1. However, it was one of PW1’s sons, who testified as PW5, who had stolen the said gold. He thus maintained that he had performed the said rituals for which he had collected their monies and so does not owe them anything. Prosecution called one ten-year old girl, PW2 to the witness stand, and according to her, she lives with her grandmother who does divination. She said that sometime back, her grandmother had received a phone call from a man who said he was coming to see her but had lost his way, so her grandmother had given the phone to her to talk to him and go and meet him to bring him home. The man came in a military top and black trouser, and he had been informed that her grandmother knows of powerful places for the conversion of gold. Her grandmother told the man to go and come the next day. The man left and came the next day, and was in full military apparel. Her grandmother asked who owns the gold and the man said it belonged to the woman who had caused the arrest of the accused (PW1). Her grandmother then told the man that she will not assist him if the gold belongs to someone. A week later, the man together with PW1 and my grandfather came to my grandmother. The man told my grandmother to ask PW1 whether she was willing to give them a share should they give her the gold to change, and PW1 agreed she will, and they left. During cross-examination, accused sought to deny that the said man had ever come to hold any such discussions with the grandmother of PW2. Accused rather admits that the man had been to their house but it was only to retrieve documents that he the accused had given to the mother of PW2 for safe keeping. Prosecution also called the said Maame nurse through whom PW1 got to know the accused to testify as PW3. She told the court that initially, the accused was called Sabato, and they all believed him to be spiritually powerful. He organized prayers at the J.H.S. premises which attracted a lot of congregants, including PW1. One day, PW1 came to her and told her that accused had extracted gold which was gifted to her by her grandmother so if all goes well, she will come to give her some since it was through her that she got to know the accused. Later, PW1 came to tell her she had called accused severally but accused refuses to answer her calls, so I should call him to come and share the gold and give her share to her. PW3 said after PW1 left, she called the accused who told her that had she, PW3 not implored him, he will never have paid any heed to PW1 because her husband had insulted him that he was a thief. PW3 further stated that she does not know whether accused came to give PW1 the gold or not, until PW1 informed her that she had gotten accused arrested. PW4 corroborated the testimony of PW1. During cross-examination, the court was informed of how accused had brought out some supposed gold from the pot, and when PW4 wanted to take a picture of it, accused had objected on grounds that he has not yet completed the purification yet. Accused two days later came and took out something similar, gave same to PW4 to go and change for them to know how much can be realized. PW4 said he declined and reminded accused that he himself had told them that he has not yet finished with the purification process. This, he said, was because he had noticed that the one removed by the accused previously was markedly different from what he had brought out. Accused at this point denied ever seeing any gold with his eyes, and yet, he insisted later on that the monies they claim he collected from their mother, he had used them to do their work for them before he left. PW5 testified to the court that he had taken two pieces of the said gold from the pot but the accused had collected same from him. Here, the accused asserts that it was PW5 who stole the said gold, and called his brother who resides in another country to come for it. When PW6, the investigator testified, he told the court that throughout his investigations and the search conducted at the house of the accused, he never saw any gold. It was only three (3) metallic objects that was given to him by the complainant on 08/12/19 at about 18:15 hours which he had no idea whether they were gold or not and it has since been in the custody of the police, which he showed to the court. At the close of prosecution’s case when the court ruled that a prima facie case had been made against the accused and called on the accused to open his defence, accused in his defence testified that, PW1 had approached him that her son in the U.S.A. was facing problems and they needed his help and he helped them. As to what problems, and what help, he did not say. Accused also told the court that one day, the said son of PW1 who was in the U.S.A. called him to introduce himself, thanked him and started sending him money as appreciation of the prayers offered to him in the U.S.A. but it was never disclosed to him that the monies were for unearthing gold until one day, precisely on 17/08/ 19 when PW1 told him she had had a dream in which her mother told her there was gold hidden in the farm and she wanted him to assist her to remove it. Days later, PW1 came with her family members and they went to the farm where he prayed and did some rituals but the family members went back home because they did not trust the story of PW1. According to the accused, he fasted and prayed for three (3) days and on the third day, the said pot was discovered and PW4 carried it home around 12 midnight. He returned to Goaso and later received a call from PW1 that they had dug a hole in her room and buried the pot. He came to inspect it together with PW1 and PW4, after which he left for a church service in Kumasi. PW1 kept calling while he was in Kumasi but he could not pick her calls because he was at work. A week later when he finished with the service in Kumasi, he came to the house of PW1 and realized that the pot had been tampered with. PW1 then said it could be her son PW5 and when PW5 was confronted, he admitted that he had taken some gold from the pot to take to his friends at Achirensua. Accused further stated that whatever work he was engaged by PW1 to do, he had done it perfectly, and it was never the case that he knew he could not do the work PW1 had asked him to do. He says further that it was due to the negligence of PW1 that her son PW5 stole the gold, and had so admitted before this court in his testimony. In the accused’s own statements to the police which were tendered in court without any objections from him, he had stated in exhibit “C”, his investigation cautioned statement given to the police on 09/12/19 that after 3 days of digging, they found a pot containing mud, which was carried home by PW4. In the same exhibit, he had stated that PW1 called him several times to come and help her pray over the gold but he told her that he cannot come because of the programme. He said PW1 kept calling him and he had called PW3 to inform PW1 to stop calling him until he is done with his programme. The accused in exhibit “C” said he could not come until after the programme. However, in his witness statement, he said he could not answer the calls of PW1 because he was busy working. If there was no gold, and it was mud, what exactly then was the accused going to pray over after his programme, and why? Was the accused going to pray over the mud in the pot so it will convert to gold? In this same exhibit, accused says that when he noticed that someone had tampered with the pot and PW5 was summoned, PW5 said he had taken two metals from the pot to send to his friends at Achirensua to work on it for him. Again, in this same exhibit, accused narrates how PW1 called to say she had consulted a fetish priest who told her that accused had stolen the gold, and subsequently, PW1 came to him with some men who beat him up, removed his mobile phone and some monies on him, and sent him to the Goaso Police Station. In exhibit “D”, his further investigation cautioned statement given on 20/04/20 to the police, accused had stated that PW1 after church service one day, approached him that her son who is domiciled in the U.S.A. was facing some problems and she wants accused to pray for him and so he agreed. He says the said son later called him on phone and they established a good relationship. He was there one day when the said son sent e-cash to his mobile money. He continued to say that it is true that he has collected various sums of money from PW1, PW4, and the said son in the U.S.A. to the tune of seven thousand Ghana Cedis (GHC 7000.00) but the said amounts were given to him on various occasions for him to pray for them on spiritual grounds, and not under the pretext of uncovering an ancestral gold for them, and further stated that he was ready to refund the cash of GHC 7000.00 to them. During the entire trial, a lot was said about this pot of gold that was unearthed, and its subsequent disappearance. However, the real issue on trial before this court is whether or not the accused person has defrauded PW1 by false pretences. PW1 approached the accused to help her to unearth a pot of ancestral gold because the accused was believed to be spiritually powerful. In fact, from the evidence on record, accused had successfully managed to create that belief in the mind of PW1 and some others. Accused wants this court to believe that he never took any monies from PW1 and her children to unearth the said pot of gold. In fact, he claims per his paragraph 3 that it was never disclosed to him that the monies were to unearth the said gold. He wants this court to believe that he played no role, be it encouragement in any form to get PW1 and her children to advance to him the sums he collected from them but during cross- examination, he actually concedes that he had told PW1 that there was gold buried at the farm. From a portion of the cross-examination of the accused by the prosecution, this is what ensued: Q. Can you tell the Court what exactly PW1 told you at that time A She told me that she had dreamt that her mother told her that there is a pot of gold buried at a portion of the cocoa farm, so we went to the farm with her family Q. You will agree with me that when PW1 informed you about the dream, you said you will pray over it and seek guidance. Is that correct? A That is true Q. You will also agree with me that after seeking God’s guidance you confirmed to PW1 that actually there was a pot of gold hidden in the farm of PW1’s late mother at Subonpang A That is so When the accused had managed somehow to get PW1 and some congregants to believe in his spiritual prowess, is the accused saying that he did not know that by his affirmation that there was indeed some ancestral gold buried at the farm, which he could help unearth, he was inducing them to give in to his demands so as to be able to access the said ancestral gold? Throughout the entire trial, the accused person kept shifting his stance as he felt it suited him so to do. At some point, he says the monies were given to him in appreciation of prayers he had conducted for the sons of PW1 but never took any monies from them to unearth any gold; then at some points, he concedes to taking the monies for the spiritual purification of the said gold, which task he executed perfectly and so owes them nothing. In one breath, accused says there was never any gold, and then in another breath, he says there was gold but it has been stolen by PW5: Q. I put it to you that you told PW1 that the occult in Israel had informed you that PW4 has removed some of the gold from the pot A That is not true. We realized he had taken some when we went to check on the pot of gold Q. I am also putting it to you that the day the pot containing the gold disappeared, you came to the house of P W 1 with a polythene bag containing ‘Konkonte’ A I do not eat konkonte. When I went there was when her son Bright had taken the gold and I never went back there again. When the accused asserts that there was never any gold, how can he assert that PW5 had stolen same? The responses and the assertions of the accused are fraught with so many inconsistencies that they cannot be accepted however angle the court looks at it from. This court is of the view that the accused preyed on the beliefs of PW1 and his children to exploit them for his own benefit. He identified their vulnerability, and used that avenue against them. From the evidence before the court, I am unable to accept the explanations given by the accused, neither do I find his explanations reasonably probable. Considering the evidence in its entirety, I am of the view that the accused person failed to lead credible evidence to raise a reasonable doubt in the case of the prosecution against him as to his guilt as required under sections 11(3) and 13(2) of the Evidence Act, 1975, (NRCD 323). I find from the evidence before the court that prosecution has been able to prove the charge against the accused person beyond reasonable doubt. I reject the explanation offered by the accused person as not being reasonably probable and find him guilty as charged, and convict him accordingly. SENTENCE Under section 296 (5) of the Criminal Procedure Act, 1960 (Act 30), the offence of defrauding by false pretences under section 131 of Act 29 is a second degree felony that attracts a punishment not exceeding twenty-five (25) years’ imprisonment. This court being the trier of facts, after considering the demeanour and conduct of the accused person who has no remorse whatsoever for his conduct, the manner in which the offence was perpetuated (modus operandi), the emotional and psychological effect on the complainant and her entire family, relies on the dictum in the case of Adu Boahen v. The Republic (1972) GLR 70, CA which states at page 78 thus: “Where the Court finds an offence to be grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence. Once the Court decides to impose a deterrent sentence, the good record of the accused is irrelevant”. Accordingly, looking at everything that transpired, and guided by the Ghana Sentencing Guidelines, this court hereby sentences the convict to eighteen (18) years’ imprisonment in hard labour. The convict has a right of appeal. SGD H/L JUSTICE GWENDOLYN MILLICENT (JUSTICE OF THE HIGH OWUSU COURT)