THE REPUBLIC vs. EMMANUEL KWABENA GAINSFORD [2012]DLHC4198

Date	2012-12-13
Suit No.	CASE NO. FTRM/75/12
Citation No.	[2012]DLHC4198

HIS LORDSHIP JUSTICE P. BRIGHT MENSAH

NANA ADOMA OSEI (ASSISTANT STATE ATTORNEY) LED BY MRS

EVELYN KEELSON PRINCIPAL STATE ATTORNEY FOR THE PROSECUTION.

J.K. YEBOAH FOR THE ACCUSED PERSON.

[2012]DLHC4198
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>EMMANUEL KWABENA
GAINSFORD<o:p></o:p>[HIGH
COURT (FINANCIAL DIVISION 1), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CASE NO. FTRM/75/12&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13TH DECEMBER, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NANA
ADOMA OSEI (ASSISTANT STATE ATTORNEY) LED BY MRS. EVELYN KEELSON, PRINCIPAL
STATE ATTORNEY FOR THE PROSECUTION.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

J.K.
YEBOAH FOR THE ACCUSED PERSON.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE P. BRIGHT MENSAH<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The
Accused stands charged with 2 counts of Conspiracy to commit crime, contrary to
S. 23(1) of Act 29 and 2 counts of Defrauding by false pretences, contrary to
S. 131 of Act 29, respectively.<o:p></o:p>Upon
his arraignment before this court he pleaded not guilty to each count.&nbsp; By this plea Emmanuel KwabenaGainsford put
himself in charge of the court, meaning that his guilt has to be proved beyond
reasonable doubt.That common law rule that a person was presumed innocent until
the contrary was proved or&nbsp; he pleaded
guilty is reinforced byArticle 19(2)(c) of the 1992 Constitutionwhich enacts:<o:p></o:p>&nbsp;“(2)&nbsp; A
person charged with a criminal offence shall <o:p></o:p>&nbsp;(c) be presumed to be innocent until he is
proved or has pleaded guilty.”<o:p></o:p>The
mandatory requirement that the guilt of the person charged ought to be
established beyond reasonable doubt and the burden of persuasion on the party
claiming that a person was guilty, has been provided for in Ss 13 and 15 of the
Evidence Act, 1975 (NRCD 323). Significantly, whereas the Prosecution carries
that burden to prove the guilt of the Accused beyond reasonable doubt, there is
no such burden on him to prove his innocence.&nbsp;
At best he can only raise a doubt in the case of the Prosecution.&nbsp; But the doubt must be real and not fanciful.<o:p></o:p>BRIEF
FACTS OF CASE<o:p></o:p>The
relevant facts are that sometime in April, 2011 someone called Frederick Sappor
(a witness in the case) on his phone and introduced himself as an estate agent
who knew a land owner who was offering for sale, his piece of land at the
Airport Residential Area.&nbsp; Because he did
not have the ‘financial muscle’ to purchase the land at the price being
offered, Frederick Sappor informed his brother-in-law, a Daniel Mensah (a
businessman based in Tema) about it.&nbsp;
Daniel expressed interest in purchasing it.<o:p></o:p>Subsequent
to that Daniel Mensah, together with Sappor met the Accused and others and
settled on the selling price as US$450,000.&nbsp;
It was further agreed that a down payment of $15,000. be made at that
meeting.&nbsp; Additionally, 70% of the
selling pricewas to be paid before documentation.It is alleged that when that
part of the money was paid to Emmanuel Gainsford and his cohorts they went into
hiding and all their phones went dead.&nbsp;
Phone calls could not get to them each time an attempt was made to call
them.&nbsp; It became plain therefore that the
Accused person and his accomplices had duped Daniel Mensah and his
brother-in-law, Frederick Sappor.&nbsp; The
matter was reported to the Police and with somedifficulty,the Accused was
traced to his hide out at a hotel in the Volta Region whereupon he was
arrested.After investigations EmmanuelGainsford was charged with the offences
cited supra.<o:p></o:p>ISSUES
FOR TRIAL:<o:p></o:p>The
defence raises the following Issues for the consideration of, and determination
by the court:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp; Whether or not Emmanuel KwabenaGainsford
did conspire with the estate agent ie Collins Amoateng to defraud Daniel Mensah
(the buyer);<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp; Whether or not the Accused succeeded in
defrauding Daniel Mensah.<o:p></o:p>Before
proceeding to address the Issues herein, it may be appropriate to chronicle the
pieces of evidence as offered both by the Prosecution and the Defence.<o:p></o:p>THE
CASE FOR THE PROSECUTION<o:p></o:p>It
is the case of the Prosecution that Emmanuel KwabenaGainsfordand his
accomplice, Collins Amoateng conspired together to defraud and indeed succeeded
in defrauding the complainant, Daniel Mensah various sums of money under the
pretext of selling a plot of land in the Airport residential area which
otherwise the complainant would not have parted with the money but for the
false pretence.<o:p></o:p>It
is noted that in an attempt to prove their case against the Accused person, the
Prosecution called 4 witnesses, namely: a) Frederick Sappor (PW1); b) Joseph
Mensah Wiseman Aggrey Jnr (Accountant with Menergy International (Gh) Ltd; c)
Elizabeth EfuaOtoo (a Banker with Ecobank) and d) Detective C/Insp. Samuel
Asare (Police Investigator).<o:p></o:p>In
his sworn testimony, Frederick Sappor (PW1) said that on 09/04/11 he
persistently got calls on his mobile phone.&nbsp;
He did not want to pick the calls but on persuasion of his dear wife he
eventually picked the last call.&nbsp; The
caller introduced himself to him as a Collins Amoateng, a supposedly estate
agent.&nbsp; That estate agent informed him
that a certain landlord was offering his plot of land at the Airport
Residential area.&nbsp; According to him, he
did not have the financial capacity to do so himself so he discussed the issue
with his brother-in-law, Daniel Mensah who owns a company called Men</main>