REPUBLIC VRS YEBOAH (D6/140/2022) [2024] GHACC 163 (15 January 2024)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON MONDAY, 15TH DAY OF JANUARY 2024, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS), CIRCUIT COURT JUDGE CC NO.: D6/140/2022 THE REPUBLIC V AUGUSTINE YEBOAH ACCUSED PERSON JUDGMENT Accused person stands charged before this court one count of defrauding by false pretence contrary to Section 131 of the Criminal Offences Act 1960, Act 29 (hereinafter referred to as Act 29). Accused person pleaded not guilty to the offence. Brief facts as per the facts sheet attached to the charge sheet are as follows: “Complainants in the case are Helena Appiah a Prophetess of Mispa Gad Bible Ministry at Odumase Aduaniyede, a suburb of Obuasi and twelve others. The accused person Augustine Yeboah is a driver and lives in Amasaman, Accra. In December, 2021 complainant Helena Appiah got to know the accused person through one of her church members by name Kwabena Boakye. Accused who was not hearing from his brother in Spain got to know that he was dead through a vision from the complainant. Accused then made a representation to the complainant that he was a travel agent who had assisted a lot of people to travel abroad including a "Kumawood" actress Rose Mensah popularly known as "Kyeiwaa" He further 1 made a representation to the complainant that he was the son to the former chairman of the Electoral Commission Dr. Kojo Afari Gyan and that there was a travel package for interested persons to the United States of America at the cost of Twelve Thousand Ghana Cedis (12,000.00). Upon the representation made, complainant became convinced and informed her church members. Twelve of them also showed interest. Complainant then organized the people for the accused person to have a conference with them in Obuasi where he agreed to accept an amount of seven thousand Ghana cedis from each person (GHC 7,000.00) instead of the Twelve Thousand Ghana Cedis (12,000.00) earlier charged. In total, the accused person collected an amount of One Hundred and Thirteen Thousand Five Hundred Ghana Cedis (113,500.00) from the complainant and her twelve members for travel documents and the attire for their trip to the United States of America. The accused person after collecting the said amount promised exactly a week to deliver the necessary documents but he failed and started giving flimsy excuses to the complainants. The case was reported to the Police and the accused person was arrested. Investigations conducted revealed that there was no travel package for the complainants and that the accused person was not in the position of assisting them to travel abroad as at the time he collected the amount involved in the case. It was further revealed that the accused person is not related the former Chairman of the Electoral Commission. Also, the representation he made to the complainants that he assisted "Kyeiwaa" to travel abroad was found to be false. After investigations, he was charged with the offence contained in the charge sheet and he is before this honourable court.” Article 19 (2) (c) of the 1992 Constitution of the Republic of Ghana presumes 2 everyone innocent until the contrary is proved or he/she pleads guilty. In every criminal prosecution, when an accused person denies an offence, prosecution assumes a statutory obligation to prove the guilt of the accused beyond reasonable doubt. Section 11(2) of the Evidence Act, 1975, NR of Act NRCD 323 (hereinafter referred to as NRCD 323) with specific reference to criminal cases reads “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 could find the existence of the fact beyond reasonable doubt.” Section 13(1) of the Evidence Act 1975 NRCD 323 provides the extent of proof or the burden on the prosecution in a criminal action thus: In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. Section 22 of the NRCD 323 further emphasis this principle of law and provides that as follows: ‘in a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt...’ TAMAKLOE VS THE REPUBLIC (2011) SCGLR 29 at 46 provides that, where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is sine qua non to securing 3 conviction, unless the same statute places a particular burden on the accused. In other words, 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 person beyond any reasonable doubt. The burden of proof 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.” See the case of Gligah & Anr. v The Republic [2010] SCGLR 870. Prosecution called in support of their case the investigator of the case D/Sgt Agnes Effah as their sole witness. PW1 tendered in evidence the following exhibits; i) Investigation caution statement of Accused dated 11th February, 2022 marked exhibit A ii) iii) iv) Exparte application to D/C Kaneshie, Accra filed on 12th April, 2022 For disclosures of information on GCB account marked exhibit B Exparte application to D/C Kaneshie, Accra for disclosures of MTN number information marked exhibit C v) Order for disclosure of information dated 11th may, 2022 by H/W Kuffour marked exhibit D vi) Order for disclosures of information director at MTC Ghana by H/W Adomako Kwakye marked exhibit E vii) Letter from GCB bank statement of Augustine Yeboah attached marked exhibit F viii) Charge sheet of accused dated 11th February, 2022 marked exhibit G 4 Accused also testified solely and did not call any witness. Accused did not tendered in evidence any exhibit. Section 131 (1) of Act 29 provides as follows; “ A person who defrauds any other person by a false pretence commits a second degree felony.” Defrauding is defined under Section 132 of Act 29 as “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.” What amounts to false pretence is further defined under Section 133 (1) of Act 29 as “ a representation of the existence of a 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. In the case of REPUBLIC VRS SELORMEY [2001-2002] 2 GLR 424, the ingredients of the offence of defrauding by false pretence were reiterated thus: “Therefore 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 evidence, the following: 1. That the accused person made a representation either by written or spoken words or any other means whatsoever. 2. That the said representation was in regard to the existence of a state of facts. 3. That the said representation was false or made without the belief that it was true. 4. That by that false representation the accused caused another to part with a thing...” In the case of BLAY VRS THE REPUBLIC [1968] GLR 1040 Archer J (as he then was) in holding 5 stated “to defraud was to deprive by deceit or to induce a 5 cause of action by deceit.” Its been held in the case of ASANTE & ORS V THE STATE [1968] GLR 804, that for the prosecution to succeed on a charge of fraud by false pretences under Act 29, Sections 132 and 133 it was not enough for the prosecution to prove that the representation was false, they should go further to prove that the consent to part with ownership was in fact obtained by false pretence. According to the evidence of PW1, a petition dated 24/1/2022 was presented by complainant Helena Appiah on her behalf and twelve other persons. Per the petition, accused person has visited her church in Obuasi and thereafter approached her for a conversation during which he intimated to her that he was a travel and tour agent who could assist her travel to the United States of America but after collecting sums of money from her and 12 others whom she mobilized, accused had failed to do so. She stated that Accused further stated to complainant that he is the son of the former Chairperson of the Electoral Commission of Ghana, Dr Kojo Afari Gyan and also an assistant to the General Secretary of the National Development Congress. She testified further accused then asked complainant to reach out to other people who are interested to travel to America. Complainant therefore mobilized 12 church members and on two occasions they met with accused person. Accused asked each person to pay GHC7,000 each amounting to GH91,000 and additional payments for plane tickets and executive dress making the total amount received by accused Ghc113,500 and collected their passports in addition. According to PW1, complainant informed her that on 8/12/2021, she sent one Frederick Asante to deposit GHC42,000 into GCB bank account number 1691010006356 East Legon branch belong to accused person. She arrested accused person with the help of one of the victims who lured accused to meet and collect money. PW1 then took 6 the investigation caution statement i.e exhibit A, dated 11/02/2022 from accused in which he admitted making the representation. According to PW1, she filed two motions expartes i.e exhibits B and C supra at the Kaneshie District Court for an order directed at GCB bank and MTN bank for statements and details of the accounts of Accused held with them. The court granted her applications and the orders were respectively issues as per exhibits D and E supra. The GCB bank statement of accused PW1 received pursuant to the service of the court order tendered in evidence as exhibit F confirmed complainants statement that she caused one Frederick Asante to pay GHC42,000 into the accounts of accused on the 8/12/2021. She had however not received the momo statement from MTN in respect of payments paid to accused through his number 0547988224. She thereafter took the Charge statement of accused i.e exhibit G. In exhibit A and G both dated 11/02/2022, accused stated that he informed complainant he would be travelling to Spain for the funeral of his deceased brother whose death was revealed to him by the complainant and asked her to come along with him if she was interested. He further stated that at that period he had received an offer from one Mr. Appiah who claimed to recruit people to travel abroad and had United States of America offer going for $13,000 per person. He stated that he told complainant about the offer and quoted the price to be $15,000 including tickets and instructed them to buy executive suits for their finger print at the embassy and asked them to pay GHC1,500 for same. Accused in exhibits A and G admitted that complainant and the other 11 persons had gathered paid various sums of money amounting to GHC155,000 on various occasions into his commercial bank account number 1691010006356, East Legon branch which he forwarded to Mr. Appiah but the later the said Mr. Appiah claims to be in Dubai and has relocated from where he knows him to live. Accused person in cross- examining PW1 did not challenge this evidence. This representation turned out 7 not to be true. Accused person made this statement without the belief that it was true. All four essential ingredients of the offence of defrauding by false pretences stands established and the burden shifts on accused person to raise doubt in the case of prosecution by either establishing that the representation he made was an existing fact or same was made with the belief that it was true. Accused in his evidence on oath however denied making any representation to complainant about assisting her to travel. Accused stated that he was a Petrol Tanker Driver before his arrest and has a brother in abroad who sends his second hand vehicles and appliances to sell. According to accused, his brother imported cars with the brand name Ford and he advertised same for sale whilst using it to and from work. A neighbor he lives with in the vicinity saw this car and said he had been driving a Reverend minister who wanted a car to buy. He therefore took pictures of same and sent it to the said Rev. Minister. The Rev. Minister showed interest and they agreed on GH¢55,000.00 as the purchase price. According to accused he asked her to make a deposit since several people had shown interest in the car and she asked for his account number, which he gave to her. Four days later however, she called that she had shown the car to the church members and they said the car is too small. Afterwards he didn’t hear from her again. From the evidence in chief of accused, he denies making the representation to complainant that he could assist her and others travel abroad. However in exhibits A and G, accused admits making a representation to complainant and 12 others that he could assist them travel abroad through one Mr. Appiah upon making payment through him. This admitted representation is a representation 8 to the existence of that state of facts which turned out to be untrue. Accused further admits that based on this representation, he received a total sum of Ghc155,000.00 from complainant and others. In determining whether or not the defence of accused on oath is reasonable, the statements of accused made to the police and the court on oath are considered by the court. It is worth noting that the content of exhibits A and G i.e the statements given to the police by accused and his evidence on oath are inconsistent. It has been held in the case of STATE V OTCHERE supra and BUOR V THE STATE [1965] GLR 1, SC that the evidence of a witness during trial which is found to be contradictory of a previous written statement given by him should not be given much weight. In the case of AKOWUAH V COP [1963] 2GLR 390 however, it was held that in such cases, the question of whether any credence should be given to such evidence should be left to the trial court. I shall therefore analyse the evidence of accused to see if its reasonable Accused on oath contends that he dealt with complainant in respect of a car through the instrumentality of a neighbour and not travelling representation, a fact prosecution vehemently challenged. Although accused person is not under any obligation to call witnesses in his defence, where the burden of proof shift, accused has the burden to lead evidence sufficient to create doubt in the case of prosecution’s case. Section 13(2) of the NRCD 1975 provides that “Except as provided in section 15 (3), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential 9 to guilt, requires only that the accused raise a reasonable doubt as to guilt.” (See also Commissioner of Police v Antwi (1961) GLR 408 SC.) Accused person herein did not call the said neighbour whom he claimed engaged him about the purchase of the vehicle he had displayed for sale to corroborate his evidence. This piece of evidence therefore stands uncorroborated and disputed. Accused stated further under cross-examination that although he gave his bank account to complainant, he did not hear from her again. This evidence on the face of other evidence on record cannot be true. Exhibit F discloses that accused person had GHC7,238 only in his account prior to complainants deposit of GHC42,000 into his GCB account through Frederick Asante on 8/12/2021. Thereafter accused person withdrew a total of GHc29,100 under 20 different transactions. Accused person clearly became aware of the deposit of GHC42,000 in his account hence his constant withdrawal from the account. Again, as stated supra accused in exhibits A and G confessed to having made a representation to complainant and twelve (12) others that he could assist them travel abroad at a price, a statement he made without the belief that it was true and due to this representation received a total of GHc155,000 from them. The confession of accused to the offence defrauding by false pretences as contained in exhibit A and G corroborates the evidence of Pw1. It has been held in the case of State v. Otchere, supra that “A confession made by an accused person of the commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused.” Also in the case of Billa Moshie v. The Republic [1977] 2 GLR, 418, CA, in its holding 2 stated: 10 “A conviction could quite properly be based entirely on the evidence of a confession by a prisoner, and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness” This confession statement satisfies all the four essential ingredients of the offence of defrauding by false pretences. The court has no reason to doubt the genuineness of exhibit A and G. The defence of accused person fails to raise reasonable doubt in the mind of the court as to his guilt in respect of the offence of defrauding by false pretences which he stands charges with. Conclusion Prosecution therefore has successfully proved beyond reasonable doubt at the close of their case the guilt of accused person. The court therefore finds Accused person guilty and accordingly convicts him forthwith on the charge of defrauding by false pretence. SENTENCING The court in sentencing accused takes into consideration the age of accused i.e 34 years, his plea for leniency as mitigation factors. As aggravating factor, the court considers the modus operandi and industry accused put into defrauding complainant and others as well as the fact that non of the amount defrauded has been refunded by accused. Accordingly, accused is sentence to a five (5) years imprisonment I.H.L. 11 ACCUSED PRESENT (SELF REPRESENTED) D/C/INSP AMOAH RICHARD FOR PROSECUTION PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT 1 JUDGE) 12