Introduction

The continuous abuse of debtors by certain police officers, as well as, in more severe cases, the false or wrong accusations and arraignments of debtors in court as though they had committed a crime, have made this article necessary. Such Police officers are acting illegally, and those responsible need to be held accountable and punished.

Creditors must file a civil suit rather than pressurising the Police to institute criminal action against their debtors to recover their money. This article also aims to inform citizens on their rights in the event that they find themselves in a similar circumstance.

In 2021, I had the opportunity of meeting Emmanuella Mensah, an inmate of the Nsawam Female Prisons. She was slapped with nine charges (eighteen counts) relating to the same offence, that is, defrauding by false pretence and subsequently sentenced on all counts of the charges.

I was touched by her story and decided to appeal her conviction and sentence because I knew her conviction is not just wrong in law but a miscarriage of justice. As of the time I started her appeal in June 2022, she had spent exactly three years in prisons.

Emmanuella was a single parent of three (3) in her 50s and this was her story:  At the invitation of a friend to join her in the palm oil industry, she relocated from Kumasi to Kade. As a middlewoman in the industry, her job was to purchase palm oil on credit from the producers, sell it and pay off her debt.

Her palm oil business was prosperous for almost three years, but in April 2019, one of her supposedly ‘loyal’ customers swindled her and absconded with over 100 gallons of palm oil Emmanuella had bought from several producers. When she informed them of her predicament due to her default in repayment, they avoided trading with her. As a result, she returned to her family in Kumasi.

In June 2019, some of her creditors lured her to return to Kade for a discussion on her debt to ascertain the way forward and see how best they could assist her.

She arrived on a Friday, and while in a meeting with some of her creditors, she was arrested and sent to the Police Station. She was cautioned, charged and arraigned before court that same day. In court, she pleaded guilty and guilty with explanations depending on the facts to the offence of defrauding by false pretence.

She was convicted and sentenced on 9 counts. She was again arraigned in court on Monday to continue with the remaining sentencing.

Emmanuella, an illiterate, was not represented, not informed of her rights and was advised by the Police when she was arrested to plead guilty to her charges in court so that the Magistrate will show her mercy and discharge and acquit her which led her to pleading guilty to all her charges and giving explanations to her plea, in some cases, to an offence she had no idea of.

She was immediately convicted and the Magistrate did not consider her explanations. She was sentenced between 90 days to 2 years imprisonment with hard labour for all nine (9) charges (18 counts) and given 18 different sentences totaling 21 years, 4 months imprisonment IHL and fined on all the amounts contained in the charge sheet.

As of the time of her sentence, her last child was in primary six. Unfortunately, she died in prison custody on 5^th March 2023, two days after the Appellate Court had given a date for the judgment of her appeal.

Let us analyse whether or not the charges of defrauding by false pretence preferred against Emmanuella were appropriate. 

Section 132 of the Criminal Offences Act, 1960 (Act 29) defines defrauding by false pretence as ‘a person defrauds by false pretence 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.’

The ingredients of defrauding by false pretences.

1. a person by false pretence or personation
2. obtains or attempts to obtain the consent of another person to part with or transfer the ownership of a thing.

The action of my client: 

There was an oral contract between my client and her creditors (complainants) that she will take their produced oil on credit and sell them and return their money to them after selling them.

Many  of  the oil producers patronised her services and gave her their gallons of oil to sell and return the money because she was a middle woman,. That is what resulted in the many complainants in her case because the gallons of palm oil were from different producers. Due to the swindling, she breached the contract for the 1^st time after years of doing business with her creditors.

After all search had failed, she left to her family in Kumasi. Prior to this incident, she usually visited her children in Kumasi and this her creditors were very much aware.

The question to be posed is whether her action constituted defrauding by false pretence or this was a clear breach of contract since she failed to pay for the oil she collected from them.

Let's analyze and ascertain if the charge of defrauding by false pretence was appropriate in her case.

1. Was there a false pretence or personation on the part of my client?

Section 133 of Act 29 defines a false pretence as follows:

(1) A false pretence is 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.

It is clear from the above that there was a verbal contract between my client and her creditors (complainants) in their trade that she takes their oil on credit and pay later. In what way did my client falsely pretend to the complainants whom she has a business relationship with?

Section 134 of Act 29 also defines personation as follows:

(1) Personation means a false pretence or representation by a person that that person is a different person, whether that different person is living or dead or is a fictitious person.

(2) A person may commit the criminal offence of personation although that person gives or uses that person’s own name, if that is done with intent of being believed to be a different person of the same or of a similar name.

In Emmanuella’s case, how did she falsely represent herself to her own customers or creditors (complainants)?

It is argued that in this country, the only grounds by which a person may be sent to prison are provided by the Ghana Constitution, 1992 and other Statutes such as Act 29.Those grounds do not include failure or inability to pay debts.

Article 19(11) of the 1992 Constitution states that ‘no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.’ There is no offence as inability to pay off debt.

As a matter of fact, the Judicial Service circular dated 20^th May 2009 (Ref No. J4/Vol 6) directed that the Supreme Court ruled in Republic vrs High Court (Fast Track Division), Accra, Ex parte PPE Ltd and Paul Jurik (Unique Trust Financial Services Ltd Interested Party) [2007-2008] 1 SCGLR 188 that ‘no person ought to be imprisoned for non-payment of judgment debt. This decision is binding on all courts including the district courts. That circular and the decision in that case are cited as authorities for the proposition that summons to show cause and civil imprisonment are no longer applicable as part of execution processes in the District Courts. The effect of that circular and that decision is that a person cannot be sent to prison where he has been adjudged a debtor but is unable to pay his debts.’

What are the functions of the Ghana Police Service?

Chapter 14 of the 1992 Constitution indicates that the Police Service falls under the Public Services of Ghana. The Police Service Act, 1970 (Act 350) is the Statute regulating the activities of the Police Service in Ghana. Section 1 of the Act is about the functions of the Service which states that: ‘The Police Service as provided for by article 190 of the Constitution, shall prevent and detect crime, apprehend offenders, and maintain public order and the safety of persons and property.’

In as much as we praise the Police Service for their tireless efforts, there are some incompetent officers whose activities endanger citizens, especially some police officers in rural areas and remote towns such as Kade who think that there will be less or no supervision of their work.

In Emmanuella’s case, the police officers did a shoddy work without conducting any due diligent investigation on this matter. They were so much in a hurry to prosecute and punish this poor illiterate mother of three for no crime committed without seeking advise from the Office of the Attorney-General concerning her docket before arraigning her in court. Despite such challenges, the Police Service deserves commendation for the great job they do.

Power of the Police to Prosecute

Article 88(3) of the 1992 Constitution of Ghana states that ‘the Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.’

The source of authority of Police Prosecutors in the country to prosecute criminal matters is found under Section 56 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) which states that: ‘Subject to article 88 of the Constitution, the Attorney-General may, by executive instrument appoint generally, or for a specified class of criminal cause or matter, or for a specified area, public officers to be public prosecutors, and may appoint a legal practitioner in writing to be a public prosecutor in a particular criminal cause or matter.’

What the above provision means is that the Police Prosecutors, who are public officers, act on behalf and instructions of the Attorney-General therefore they cannot act on their own. That is why they are supposed to take advise from the Office of the Attorney-General in conducting cases.

They first of all need to forward the docket to the Office of the Attorney General for advise to ascertain if the matter merits the charge(s) preferred. My client lost her life just to satisfy some people’s wickedness. The complainants used both the police and the magistrate to punish this innocent woman and imposed just any charge on her knowing very well that she could not afford a lawyer, neither could she get assistance from the Legal Aid Scheme from Kade.

Abuse of power

Article 296 of the 1992 Constitution states that ‘where in this Constitution or in any other law discretionary power is vested in any person or authority that discretionary power shall be deemed to imply a duty to be fair and candid; the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law.’

It is judicial notice that some police officers apply resentment, personal dislike, capriciousness, etc in performing their functions especially when they are bribed by the complainant(s) or suspect(s) contrary to Article 296 of the Constitution at the deterrence of innocent poor citizens like Emmanuella. Police officers caught doing this should be severely punished because their actions could be fatal.

In conclusion, I end with the case, Hemans vrs Cofie [1997-98] 1GLR 144-158, which was similar to Emmanuella’s case. The plaintiff was a 68 year-old building contractor. Following a complaint by some people to the police that he had defrauded them, he was arrested by the police. Although he explained to the police that the debt had arisen as a result of his default in paying for some building materials he had collected from the complainants to execute some contract works, he was detained by the police until he could pay off the debt.

Yet, the police refused to grant him bail to look for money to pay off the creditors. After he had been kept by the police in the cells for eight weeks, he, in order to secure his release, succumbed to pressure exerted on him by the police and sold his house to the first defendant, who had been introduced to him by the police, for ¢4 million - the valuation put on the house by the purchaser.

The Plaintiff brought an action against the complainants (1^st and 2^nd Defendants) in the High Court where his action was dismissed and judgment was given to 1^st Defendant’s counterclaim for specific performance.

He appealed and the judgment of the High Court was reversed. The 1^st Defendant appealed to the Supreme Court and the Supreme Court held inter alia that, ‘where one obtained goods on credit and defaulted in paying or received money from people to do some work but failed to do the work, the default in each case would be breach of contract, the remedy for which lay in the civil courts, and not the police station. Neither situation amounted to the offence of defrauding by false pretences under section 131 of the Criminal Code, 1960 (Act 29) because false pretence as defined in section 133(1) of Act 29 had to involve false representation of an existing fact. Thus, a promise of an event in the future could found liability if it was coupled with a false statement of existing facts. But a mere representation that something would happen or was likely to happen did not amount to fraud by false pretences. Accordingly, the complaint lodged against the plaintiff, ie that he had received money from the complainants to do some work but had failed to do it, did not support a case of fraud to empower the police to arrest him and detain him in police cells. The police was empowered by the law to protect the life and property of the citizenry and not to act as debt collectors. The police had no lawful authority to arrest a wife when looking for her husband or a son when looking for the father or vice versa, as happened in the instant case. Since such practice constituted negation of the fundamental rights of the individuals involved under the law and the Constitution, it had to be roundly condemned.’