Adobor vrs The republic (H2/12/ 07) [2007] GHACA 5 (20 December 2007);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

ACCRA-GHANA

____________________________________________

 

 

CORAM:      R. C. OWUSU JA. (PRESIDING)

APALOO JA

BAFFOE-BONNIE

 

CRIMINAL APPEAL

NO.  H2/12/ 07

                                                                               20TH DECEMBER, 2007

 

 

 

NANA S. K. GRAY @ ADOBOR                     …                APPELLANT

 

VRS.

 

THE REPUBLIC                                           …                RESPONDENT

______________________________________________________________

 

 

J U D G ME N T

 

OWUSU, J.A: The Appellant herein was arraigned before the Circuit Court, Tema on one count of Defrauding  by false pretence contrary to  section 131 of the Criminal Code of 1960 (Act 29).

 

He pleaded guilty with explanation. After he has offered his explanation, the court proceeded to sentence him holding that:

“The explanation of the accused does not disclose a defence. The explanation is a Judicial Confession of guilt and it shows the accused has committed the offence charged. His plea shall remain as GUILTY.”

 The  court therefore entered a plea of “GUILTY” for him. He was thereafter sentenced to 6 years Imprisonment in Hard Labour.

 

From the record, he was sentenced without being convicted on the plea of guilty entered for him by the court.

 

The Appellant was arrested upon information received by the police Community 2, Tema that he was posing as a Barrister at Law and representing various people in Tema. His explanation upon his arraignment was that he studied Law in Toronto University Law School in Canada and graduated with L.L.B in the year 2000. In 2005 he returned to Ghana and at the time of his arrest, he was serving as a National Service personnel in the Ministry of Health. That having studied in Canada, a commonwealth country, he assumed that he could practice Law in Ghana, another Commonwealth Country. He told the court he was not aware of the post call studies in Ghana.

 

He appealed against his conviction and sentence by the trial court to the High Court and applied for bail pending appeal.

 

When the application for bail came on for hearing, His Lordship K. A. Acquaye sitting in the High Court decided to hear the appeal itself and dealt with the application as an appeal against the sentence.

 

The appeal was favourably considered and the sentence of 6 years I.H.L. imposed by the trial court was set aside and in its place 2 years I.H.L substituted.

 

Still dissatisfied with his conviction and sentence, he has appealed to this court on grounds among others that:

“The learned Judge omitted and therefore failed to address the issue of the charge on which the appellant was convicted not being in conformity with section 112 of Act 30/60 and this being defective to the point that it could be said that the appellant’s conviction was void”.

“The learned Judge failed to hold that the facts furnished by the police which cannot support conviction as outline as section 13(1) of the courts’ Act (Act 459) notwithstanding the plea of guilty.

 

The Appellant appeared in person. On these two grounds, the learned Principal State Attorney, Lamptey (Ms) who appeared for the Republic, was called upon to support the conviction. In the spirit of the profession, she honourably conceded that the conviction, on the facts and the particulars of offence as laid in the charge sheet, cannot be supported.

 

Under section 131 of the Criminal Code, 1960,

“Whoever defrauds any person by any false pretence shall be guilty of a second degree felony”.

 

The offence is defined under section 132:

“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.”

 

The particulars of the offence as laid out in the charge sheet are as follows:

“NANA S.K. GRAY @ SAMUEL ADOBOR LAWYER for that you n the 25th day of August, 2006 at Tema in the Tema Circuit and within the Jurisdiction of this court did represent yourself as a Lawyer, a representation you well know to be false at the time of making it.

 

Section 112 of the Criminal procedure Code, 1960 requires that:

“a charge, complaint, summons, warrant, or any other document laid, issued or made for the purpose of or in connection with proceedings before a court for an offence shall be sufficient if it contains a statement of the offence with which the accused person is charged together with the particulars necessary for giving reasonable information as to the nature of the charge……………..”.

 

Under section 171(2) of the same Act, “In stating the substance  of the charge, the court shall state  particulars of the date, time and  place of the commission of the alleged offence, the person against  whom or the thing in respect  of  which it is alleged to have been committed, and the section of the  enactment creating  the offence.”

 

To constitute an offence of fraud 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 the ownership of anything.

 

To induce is to persuade, to prevail upon another person to believe something and act upon it. In the case of false pretence, the victim must have been persuaded to accept the representation made to him as true and to act upon it to his detriment.

See the case of Robbles Vs THE STATE [1964] G.L.R 584 at 585.

 

The particulars as laid out in the charge sheet do not indicate that the representation made by the accused that he is a lawyer was made to any body who was induced to part with or transfer the ownership of something. These are essential ingredients of the offence charged, particulars of which are necessary for giving reasonable information as to the nature of the offence charged to the accused.

 

It is not enough to ground a charge of fraud by false pretence merely on a representation made by the accused no matter how false the representation is, without more.

The particulars laid out in the charge sheet cannot ground a charge of fraud by false pretence and the Appellant’s plea of guilty was wrongly accepted by the trial court.

 

His appeal against conviction is therefore allowed. The conviction is hereby quashed together with the sentence of 2 years I.H.L substituted by the High Court. He is accordingly acquitted and discharged. 

 

 

 

 

 

(SGD)          R.C. OWUSU (MS)

JUSTICE OF THE APPEAL

 

 

 

APALOO J.A.         I agree                                               

(SGD)          R. K. APALOO

JUSTICE OF THE APPEAL

 

 

 

 

 

BAFFOE-BONNIE J. A.    I also agree                 

(SGD)         P. BAFFOE-BONNIE

                                                                   JUSTICE OF THE APPEAL

 

 

COUNSEL

CYNTHIA LAMPTEY (PSA) FOR THE RESPONDENT

APPELLANT IN PERSON