An Accra Circuit Court has acquitted and discharged Akosua Adjepong, a Highlife Musician who was accused of conspiring with one Frank Agyemang to defraud a businessman of GH¢105,000.00 over a land deal.
Agyemang aka Killer Boss was also acquitted and discharged. The Court presided over by Mrs Priscilla Mireku Dapaah in its ruling held that the prosecution was unable to prove a prema facie case against Akosua and Agyemang.
Read full case below;
IN THE CIRCUIT COURT HELD IN ACCRA ON THURSDAY THE 11TH DAY OF AUGUST, 2020 BEFORE HER HONOUR PRISCILLA DAPAAH MIREKU (MRS.), CIRCUIT COURT JUDGE.
SUIT NO. D2/5/2018
THE REPUBLIC
VS.
FRANK AGYEMANG BADU
AKOSUA ADJEPONG
[CIRCUIT COURT, ACCRA]
RULING ON SUBMISSION OF NO CASE TO ANSWER
The accused persons were arraigned before this Honourable Court on the 10th Day of October, 2017 on a charge of conspiracy to commit crime to wit; fraudulent transaction of land contrary to Section 23(1) of the Criminal Offence Act, 1960 (Act 29) and fraudulent transaction of land contrary to Section 34(a) of Land Registry Act 1962 (Act 122).
The accused persons pleaded not guilty to both charges after the charge sheet was read and explained to them in a language of their choice.
BRIEF FACTS;
The prosecution per their brief facts attached to the charge sheet depose that; the complainant is a trader, living at New Bortianor. A1 is a building Contractor and lives at Weija. A2 is a musician and lives at Tuba, all in Accra. During the month of February 2017, the complainant wanted a parcel of land by the roadside to display his vehicle for sale. In the process, he contacted A2 for assistance. A2 said she had one plot of land for rental purpose, but complainant said he wanted an outright sale. Later, A2 introduced A1 to complainant as her brother who has one plot of land opposite the West Hills Mall to sell. Complainant after inspecting the land expresses interest, but demanded genuine documents for the verification at the Lands Commission. A2 assured complainant that the land was a genuine one and that so far as she was concerned, A1 was the rightful owner of the land. A1 and A2 took complainant to the Lands Commission and went into one of the offices, came out with someone to confirm to the complainant that the land belong to A1, and upon this, the complainant became convinced. A1 and A2 then bargained with complainant and arrived at GHC160,000.00 for which complainant made cash payment of GHC105,000.00. Complainant further released one Toyota Rav 4 vehicle valued at GHC100,000.00 to A1, so that A1 would also add a plot of land located behind the West Hills Mall to him. When A1 and A2 produced the land document, the document was in the name of one Dora Amoasi Okyere and not A1 as they stated earlier. When complainant went to work on the land, one Jonathan Kojo Asante came to claim ownership of the land with original documents to the land. Complainant tried to locate the accused persons for his money, but to no avail. He reported the case to the police and A1 and A2 were arrested and released on bail to produce the said Dora Amoasi Okyere, but the accused persons failed to report to the police. A1 however released the Toyota Rav 4 to his uncle to be given to the police. The accused persons were accordingly served with criminal summons to appear before this Honourable Court.
ISSUES BEFORE THE COURT;
- Whether or not the accused persons conspired to make a grant of land to the complainant in which they had no title.
- Whether or not the accused persons made a grant of one plot of land lying at Weija to the complainant of which they had no title.
- Whether or not the prosecution has established a prima facie case for the accused person to answer.
DISCISSION OF THE LAW AND EVALUATION OF THE EVIDENCE;
Section 23(1) of Act 29 states that,
“if two or more persons agree or act together with a common purpose for or in a committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”
Section 34(a) of Land Registry Act, 1962 (Act 122) provides that,
“A person who knowingly purports to make a grant of a piece of land to which that person does not have title commits the offence of a second degree felony and is liable in addition to any punishment that may be imposed, to pay an amount of money equivalent to twice the value of the aggregate consideration received by that person.”
The accused persons have been charged with the aforementioned offences which they have pleaded not guilty. According to Article 19(2)(c) of the 1992 Constitution of the Republic of Ghana, a person charged with a criminal offence shall – be presumed to be innocent until he is proved or has pleaded guilty.
It is trite that the onus is on the person alleging a crime has been committed to prove the guilt of the accused person unless otherwise provided by law. Thus, the burden of proof is on the prosecution to prove the guilt of the accused persons and Section 11(2) of the Evidence Decree, 1975 (NRCD 323) provides that,
“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 facts beyond reasonable doubt.”
Section 13 subsection 1 of NRCD 323 also provides,
“In any 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.”
The prosecution has the onus to prove the guilt of the accused person beyond reasonable doubt and anything short of it will go to the benefit of the accused persons.
In the case of Gliga &Atiso vs The Republic [2010] SCGLR 870 at holding 1 at 871 the Supreme Court held that:
“In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.”
The prosecution has closed its case and it is the court’s duty to determine whether they have made a prima facie case against the accused persons to answer. The court must therefore determine whether the prosecution has proved all the essential ingredients of the offences of conspiracy and fraudulent transaction of land.
The essential ingredients for the offence of conspiracy are as follows;
- That two or more persons agreed or acted together with a common purpose;
- That the purpose was to commit or abet a crime; and
- Whether the agreement or act was with or without any previous concert or deliberation.
The essential ingredients or elements for fraudulent transaction of land are also as follows;
- That a person knowingly purports to make a grant of a piece of land
- That he has no title to that said piece of land to make the said grant.
The prosecution in proving their case called three (3) witnesses to testify against the accused persons and they are as follows; Jonas Asamoah the complainant (herein after referred to as PW1), Jonathan Kwadwo Asante (herein after referred to as PW2) and the investigator D/C/Insp. Awuni (herein after referred to as PW3).
The summary of PW1’s evidence is that, he needed a plot of land to purchase; he approached A2 who in turn introduced him to A1 as she was not selling her land. That he conducted a search on the said land which showed the land belonged to another. According to PW1, A2 then took him to the Land Commission the following day, went inside and came out with another who assured him that the land in question belongs to A1. That based on that assurance, he made some payments to the accused persons and gave out his unregistered Toyota Rav 4 to A1. PW1 further led evidence that, A1 informed him the land was given to him by one Dora who is yet to transfer interest of the land to him so he will rather informed Dora to transfer the land directly to PW1. It is also PW1’s case that, A1 told him to get his own surveyor to prepare a new site plan for him and before the site plan was ready, A2 delivered to him 2 copies of an indenture prepared in the name of Dora Amoasi Okyere to him. That, after the site plan was prepared he gave same to A1 and afterwards was not hearing from both accused person. According to PW1 he decided to go on the land to do something and that was when one man called Mr. Asante came to claim ownership of the land. That he informed A2 about everything and A2 assured him that she will see to it that A1 gets the document to him. That the accused persons afterwards refuse to pick his calls and when he realized the situation was beyond him, reported the matter to the police.
PW1 tendered a search report dated 20th September, 2015 marked as Exhibit ‘A’ as proof of the document A1 gave him to conduct a search at the lands Commission, Exhibits ‘B’, ‘F’ and ‘H’ as proof of payment made to the accused persons, a site plan dated 27th March 2017 marked as Exhibit ‘C’ as proof of the site plan his surveyor prepared, Exhibit ‘D’ the indenture dated 1st March 2012 which A2 gave to him, Exhibit ‘E series’ communication between him and A2, Exhibit ‘G’ and agreement between the parties.
On the cover face of Exhibit ‘D’ which A2 allegedly gave to PW1, it is a deed of assignment between Dora Agowah Okyere and PW1 and his wife. However, the said agreement indicates that it is an agreement between Dora Amoasi Okyere and PW1 and his wife. The oath of proof also mentions Dora Agowah Okyere. For the purposes of Exhibit ‘D’ it can be inferred that, the agreement was between Dora Amoasi Okyere not Dora Agowah Okyere.
From the evidence before this honourable, there is no contention to the fact that A2 introduced PW1nto A1 for the sale of a piece of land. That at all material time, A2 was of the known of payments PW1 made to A1. PW1 testified that, A2 assured him the land was for A1 even when his first search showed otherwise and it was on the assurance of A2 that he continue to deal with A1.
Per exhibit ‘H’ series which are communication between A2 and PW1, A2 was encouraging and pressing on PW1 to make payments to A1 who she calls her brother. Thus, A2 did not just introduce PW1 to A1 but also facilitated in the sale of the land at Weija.
If A1 and A2 thus sold the land in question to PW1, the question to be answered is whether they had title to do so.
PW1 gave evidence that A2 claimed the land belongs to A1 and it was when they showed him the document of the land that he saw the name of Dora Amoasi Okyere. It was later that A2 explained to him that Dora gave him the grant of land but was yet to transfer ownership to him.
During cross examination of PW1 by A1’s counsel who later withdrew from representing him due to ill health, PW1 was asked what was his bases for paying the money if he was not told of Dora Amoasi Okyere being the owner of the land, he answered, “the bases of paying monies for the land was that when I reported what I found out from Lands to A2 and that because of that I am not interested anymore, A2 told me that she wants to be sure of what I was saying. So the next day both A1 and A2 and I went to the Lands Commission and when we got to Lands A2 entered an office and came out with a certain man to convince me.”
It is interesting to note that, a search result given to PW1 for the purported search had a different name on the site plan attached to it. PW1 did not however tender any search result to buttress his claim of his first search conducted At the Lands Commission.
Under further probing, PW1, when asked, “But she told you the search result shows that the land belongs to Dora Amoasi Okyere?” PW1 answered, “yes my lord. But the land in question that I’m buying doesn’t belong to Dora Amoasi Okyere. That was what I was made known.”
PW1 in his evidence had earlier said that A1 told him he got the land from Dora Amoasi Okyere and he will ask her to transfer the land directly to him. PW1 further testified under cross examination by A1’s counsel that, “the purpose of my going to Land was to verify indeed the land I’m buying belongs to Dora Amoasi Okyere.”
It is safely to infer that, at all material time, PW1 knew or had knowledge of the fact that the land was registered in the name of Dora Amoasi Okyere and not the first accused person and it is for this reason he went to the the Lands Commission to verify same and the documents A2 given to him executed in Dora’s name.
In the case of Yeboah v. The Republic (consolidated) [1972] 2 GLR 281, it was held that the guilt of the accused must be proved with that degree of certainty required by law. Where the evidence for the prosecution contains such conflicts and discrepancies as to mar that degree of certainty, a conviction cannot properly base on that evidence.
At one breath PW1 says he was not told of Dora Amoasi Okyere having title to the land and in another breath says he knew of her and went to the Lands Commission to ascertain whether indeed she had title to the said land.
PW1 under cross examination further confirmed that he was given two copies of indenture after he made part payment and was assured he will get the remaining two indentures when he is done with payment for the land.
According to PW1 one Mr. Asante claims ownership of the land when he went on the land to work on it and the said Mr. Asante is PW2. PW2 per his evidence also claims acquiring the land from another who trace his title from Dora Amoasi Okyere and tender a statutory declaration made by Dora Amoasi Okyere in respect of the land in August 2008 marked as Exhibit ‘M’ and an indenture proving that the land in question belongs to Dora Amoasi Okyere marked as Exhibit ‘L’. According to PW2 he was given these documents to continue registration of the land at Lands Commission has registration of the land in Dora’s name has already commenced. PW2 did not however tender any document that shows that there was a transfer of title from Dora Amoasi Okyere to him. The mere possession of the aforementioned documents raise a rebuttable presumption of ownership.
Counsel for the accused persons, alleged that the said documents tendered by PW2 was a forgery and was not executed by Dora Amoasi and put same to PW2 which he denied. Counsel prayed for the document to be examined by the police forensic department to enable determine whether the said signature on Exhibits ‘M’ and ‘L’ belongs to Dora Amoasi Okyere which this court granted same. The forensic department however wrote to the court that, they could not conduct the said exercise as they did not have any mother document with Dora’s signature to compare the two.
It is trite that he who asserts must prove especially when the said assertion is denied (see the case of Zambrama v. Segbezi [1991] 2 GLR 221). And as there is no evidence before this court that Exhibits ‘M’ and ‘L’ are forgery this Court will rely on same until proven otherwise.
However, PW2 having Exhibits ‘M’ and ‘L’ in his possession are not enough proof to show that he is the owner of the subject matter as the prosecution did not lead further evidence to prove that assertion. It only supports the claim that the land is registered in the name of Dora Amoasi Okyere and that she is the true owner of the land.
Also the alleged signature of Dora Amoasi Okyere on Exhibits ‘D’, ‘M’ and ‘L’ looks similar with similar features like authored by the same person.
As already discussed, PW1 knew the land was registered in Dora Amoasi Okyere name but dealt with A1 and A2 because A1 assured him that Dora had made a grant to him. A grant A1 alleges has not yet been transferred on a document to him so will direct Dora to do so to PW1 which he did same by Exhibit ‘D’.
So from the evidence before this court, PW1 at all material time knew title of the land was vested in Dora Amoasi Okyere whiles he dealt with A1 and A2.
The evidence on record also shows that PW1 was given possession of the subject matter and took possession of the land but the evidence also shows that he did not have a quiet enjoyment of the land. If he did, the issue of A1 having title to make the grant of land to PW1 will not be an issue before this Honourable Court.
All the prosecution’s witnesses testified that when the accused persons were asked to produce the said Dora Amoasi Okyere, they could not do so at the police station. PW2 who claims also to be the owner of the land and allegedly had Dora’s documents processing registration of the land also did not produce the said Dora.
The onus is on the prosecution to prove beyond reasonable doubt that the accused persons did not have title to make the grant of land to PW1. Rather at the end of their case, they failed to prove that the accused persons conspired and did not have title to make the said grant of land to PW1.
In the case of In the case of the State v. Ali Kassena [1962] I GLR 144, SC it was held that,
A submission of no case will be upheld where the court takes the view that the evidence adduced by the prosecution is incapable of substantiating of founding a conviction because
- The prosecution has not led any evidence to prove an essential element or ingredient of the charge, or
- The evidence adduced by the prosecution is so contradictory or so discredited as a result of cross examination or so manifestly unreliable that no reasonable court could safely convict on it.
The prosecution failed to establish a prima facie case for the accused persons to answer. They failed to prove that the accused persons did not have authority from Dora Amoasi Okyere to dispose of the land to PW1. The accused persons are hereby acquitted and discharge.
It is my humble view per the evidence before this court that, the issue between PW1, PW2 and the accused persons are civil in nature.
H/H PRISCILLA DAPAAH MIREKU (MRS.)
CIRCUIT COURT 11, ACCRA
11TH AUGUST, 2020
