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On 17-01-11,
Sylvia Francois, the Chief
Executive Officer of Chateaux
Homes which is a registered
limited liability company in
Ghana and authorized to carry on
business as real estate
developer, invoked the original
jurisdiction of this court for
the enforcement of her
fundamental human rights
pursuant to article 33 (1) of
the 1992 Constitution and Order
67 of the High Court (Civil
Procedure) Rules, 2004 (C. I.
47). The respondents to the
application are D.S.P. Amos
Yelisong, the Nima Divisional
Crime Officer of the Ghana
Police Service, Detective
Sergeant Jiwah, an investigator
at the Nima Divisional CID of
the Ghana Police Service, and
the Inspector-General of Police
(the 1st , 2nd and 3rd
respondents, respectively).
Article 33 (1) of the 1992
Constitution provides as
follows: "Where a person alleges
that a provision of this
Constitution on the fundamental
human rights and freedoms has
been, or is being or likely to
be contravened in relation to
him, then, without prejudice to
any other action that is
lawfully available, that person
may apply to the High Court for
redress." In applying to the
High Court for redress, the
procedure to be followed is
provided in Order 67 of C. I.
47. Order 67 has as its title
"Enforcement of Fundamental
Human Rights". And rule 1
provides as follows: "A person
who seeks redress in respect of
the enforcement of any
fundamental human right in
relation to the person under
article 33(1) of the
Constitution shall submit an
application to the High Court."
The rest of the rules of Order
67 of C.I. 47 provides for the
procedure to be followed in
making the application, the
hearing and the remedies
available, etc. In paragraph 20
of the Applicant's affidavit in
support of her application she
states her right which has been
violated as follows: "That I am
advised by Counsel and verily
believe same to be true that by
reason (of) my arrest, detention
and grant of bail by 1st and 2nd
Respondent(s), my fundamental
human and constitutional right
of personal liberty has been
violated in a most unacceptable
manner and not in accordance
with law." (my emphasis). The
facts upon which the applicant
relies for her application are
contained in paragraphs 8 to 19
of her affidavit which I would
summarise hereunder. Sometime in
2006, two ladies, namely, Mrs.
Abiola BabaIola and Ms. Moji
Rhodes, approached Chateaux
Homes and sought to buy two
serviced plots each within the
company's proposed Chateaux
Homes Estate, a gated community
within the Burma Camp/Cantonment
part of Accra. By letters dated
01-01-2007, Chateaux Homes made
the offer to the two ladies and
they accepted same and made part
payments. Chateaux Homes
thereafter ran into some
difficulties with its grantors
which has occasioned a delay in
transfer of the land for the
project into its name and as a
result it has not been able to
deliver the serviced plots as
agreed to its clients, the two
ladies. On 28-12-2010, the
applicant received a phone call
from one Divine who claims to be
a staff of the Operations Unit
at the Castle, Osu, demanding
payment of the sums paid by the
ladies to Chateaux Homes. No
amount of explanation by the
applicant to the effect that
there is a binding contract
between Chateaux Homes and its
two clients could calm the said
Divine down and the latter
issued threat to the applicant
that she would soon be shown
where power lies. On 12-01-2011,
sergeant Jiwah (2 nd
respondent), acting on the
instructions of D.S.P. Amos
Yelisong (the 1st respondent),
caused the arrest and detention
of the applicant at the Nima
Police Station on an allegation
by the two clients of Chateaux
Homes that the applicant had
defrauded them. The 1st and
2ndrespondents then admitted the
applicant to bail and ordered
her to pay five thousand United
States dollars (US $5,000.00) to
them as down payment for
refunding the monies paid to
Chateaux Homes by the said two
lady clients despite her
protestations. As a result of
persistent threats by the 1st
and 2 nd respondents, the
applicant was compelled to pay
the said US $5,000.00 to the 1st
and 2nd respondents the
following day, 13-01-2011. It
is, therefore, the case of the
applicant that as there is a
binding contract between
Chateaux Homes and its clients
with remedies for enforcement of
same to the parties to the
contract at civil law, the
conduct of the 1st and 2nd
respondents has, thus, turned
the Ghana Police Service into a
debt collection agency though
the service is not established
for debt collection purposes.
Also, the Inspector-General of
Police (the 3rd respondent), who
is the head of the police
service and is responsible for
exercising general day-to-day
supervision over the operation
and administration of the police
service, has neglected and
failed to effectively carry out
his responsibilities over men
and women working under him such
as the 1st and 2nd respondents
and they have become tools in
the hands of the two ladies for
debt collection purposes and for
the harassment of innocent
citizens, such as the applicant,
in the process. The respondents
have thus violated the
applicant's fundamental human
and constitutional right to
personal liberty so, by way of
redress, she seeks the following
reliefs from this court: "a. A
declaration that by 1st , 2nd
and 3rd Respondents collection
of the sum of five thousand
United States dollars (US $
5,000.00) from Applicant for the
benefit of Mrs. Abiola Babalola
and Ms. Moji Rhodes on the
13-01-2011, they have turned the
Ghana Police Service into a debt
collection agency. b. A
declaration that the Ghana
Police Service is not a debt
collection agency. c. A
declaration that the agreements
as executed between Chateaux
Homes and Mrs. Abiola Babalola
on one hand and Chateaux Homes
and Ms. Moji Rhodes on the other
hand are enforceable contracts
which do not give rise to any
criminal liabilities on the part
of the Applicant. d. A
declaration that the applicant
is not a party to the respective
contracts executed between Mrs.
Abiola Babalola and Chateaux
Homes as well as Ms. Moji Rhodes
and Chateaux Homes and is
therefore not liable for the
refund of any sums paid to
Chateaux Homes. e. An order for
the recovery of the sum of five
thousand United States dollars
(US $ 5,000.00) from
Respondents. f. Interest on the
sum of five thousand United
States dollars (US $ 5,000.00)
at the prevailing commercial
rate. g. An order of prohibition
directed at 1st ,2nd and 3rd
Respondents, their agents,
workmen, successors in office,
privies, hirelings or any of
them howsoever described,
restraining them from inviting,
arresting, detaining and/or
investigating Applicant under
whatever guise, pretence, or
description in respect of the
contracts executed between
Chateaux Homes and Mrs. Abiola
Babalola on one hand and
Chateaux Homes and Ms. Moji
Rhodes on the other since the
said contracts are enforceable
by the respective parties to
same and do not give rise to any
criminal liability on the part
of Applicant. h. General
damages. i. Costs." In two
affidavits in response to this
application, sworn to by the 1st
respondent, the respondents do
not dispute that Chateaux Homes,
acting by its Chief Executive
Officer, the applicant, entered
into a contract with Mrs. Abiola
Babalola and Ms. Moji Rhodes by
which the former offered each of
the latter two serviced plots
and for which each made
part-payments. The respondents
do not also deny that Chateaux
Homes ran into some difficulties
with its grantors which
occasioned a delay in the
transfer of the land to it as a
result it was not able to
deliver the serviced plots to
its two clients. The
respondents, further, do not
dispute that one Divine, on
28-12-2010, rang the applicant
and claimed he was a staff of
the Operations Unit at the
Castle, Osu, and demanded
payment of the money the two
ladies paid to Chateaux Homes
amidst threats to show the
applicant where power lies if
she fails to do so. The
respondents contend that, on
07-01-2011, a complaint of
defrauding by false pretences
involving the applicant was
lodged with the Nima Divisional
CID on behalf of the two ladies,
who are Ghanaians living in
Nigeria. The details of the
complaint lodged were that, in
December 2006, the two ladies
claimed they were introduced to
the applicant as someone who was
offering land for sale. The
ladies said the applicant
informed them that she was
building an estate known as East
of Eden and showed them some
land at Burma Camp. After they
visited the land, the applicant
showed them some detailed plans
on the project so, based on this
representation, the complainants
expressed interests in buying
two plots each within the
proposed estate. They said
further that the applicant sold
the land to them at the cost of
US $30,000.00 per plot and, on
01-01-2007, gave them contract
letters. As at the time of the
report, Mrs. Abiola Babalola had
paid US $40,000.00 while Ms.
Moji Rhodes had paid US
$50,300.00 to the Applicant.
However, despite several
representations to the ladies
which are false and based on
which the money was paid, the
applicant failed to transfer the
land to them. The applicant was
continually telling them that
her lawyers were processing the
documentation and that once the
documents were available she
would transfer the titles of the
allocated plots to them. In late
December, 2009, the applicant
informed the two ladies that she
had put the funds in a fixed
deposit account and that she
would liquidate the said money
in February, 2010, and refund
their money. At the end of
February, 2010, the applicant
could not refund the money and,
after several phone calls which
the applicant failed to pick,
the ladies visited her office at
Kanda to demand payment. The
applicant, again, promised to
refund the money and later sent
a message through the one who
introduced the ladies to the
applicant that she was working
at selling one of her properties
to refund the money. After
persistent demands by the ladies
for their money yielded no
results, the ladies lodged a
complaint with the respondents
alleging fraud especially since
the receipts for the part
payments were issued as far back
as 20-07-2008 and led
respondents to arrest the
applicant. She was cautioned for
defrauding by false pretences
and she gave a statement in the
presence of her four lawyers and
was subsequently charged with
the offence of defrauding by
false pretences. The respondents
continue that the applicant was
released on bail in the sum of
GH¢60,000.00 with three sureties
including her sister, Georgette
Francois. At no time was she
asked to make any payment of
money. It was the applicant's
sister and surety, Georgette
Francois, who came to the police
station and after some private
talk with the applicant admitted
that it was a "bad case" and
pleaded with the respondents to
wait for some time and not send
the case to court and rather
pleaded with one of the ladies
to allow the applicant refund
the money. The applicant's
sister and the lady then agreed
on the payment of US $10,000.00
a month. The next day,
13-01-2011, the applicant in the
presence of Georgette Francois,
on her own volition gave the
respondents US$ 5,000.00 as
part-payment of the agreed US
$10,000.00 for the month of
January, 2011 which the 2nd
respondent received and labeled
it and retained it as evidence.
The respondents, following from
the above, deny being debt
collectors. They also say that
even though the transaction may
have started as a contract,
there is enough evidence to
sustain a charge of defrauding
by false pretences. The
respondents contend that all
their actions in this matter
have been professional and have
not in anyway violated the
fundamental human rights of the
applicant. The respondents,
therefore, pray that the
application be refused. Now, the
application by the applicant in
the instant case is that her
fundamental human right to
personal liberty was violated by
the respondents as a result of
her arrest, detention and grant
of bail in a most unacceptable
manner and not in accordance
with law. Article 14 of the 1992
Constitution of Ghana protects
the personal liberty of every
person in Ghana. The relevant
provisions of Article 14 states
as follows: "14. (1) Every
person shall be entitled to his
personal liberty and no person
shall be deprived of his
personal liberty except in the
following cases and in
accordance with procedure
permitted by law - (g) upon
reasonable suspicion of his
having committed…a criminal
offence under the laws of Ghana.
(5) A person who is unlawfully
arrested, restricted or detained
by any other person shall be
entitled to compensation from
that other person." The
indisputable facts of this case
are that a complaint of
defrauding by false pretences
was lodged at the Nima
Divisional Police Headquarters
against the applicant on 07-01-
2011. The police took up
investigations of the case and,
on 12-01-2011, they arrested the
applicant, cautioned her and she
volunteered a statement in the
presence of her lawyers,
numbering four. The police,
specifically the 1st and 2nd
respondents, after
investigations charged her with
the offence of defrauding by
false pretences contrary to
section 131 of the Criminal
Offences Act, 1960 (Act 29). The
applicant deposed in paragraph
20 of her affidavit in support
of her application that “…by
reason (of) my arrest, detention
and grant of bail by the 1st and
2nd respondent(s), my
fundamental human and
constitutional right to personal
liberty has been violated in a
most unacceptable manner and not
in accordance with law." To
support her case that her right
to personal liberty had been
violated, the applicant deposed
that one Divine, on 28-12-2010,
called her on phone and claims
to be a staff of the Operations
Unit at the Castle, Osu, and
demanded that she refunded the
monies the two ladies paid to
Chateaux Homes or else she would
soon be shown where power lies.
Then in just about two weeks
later, exactly on 12-01-2011,
she was arrested by the police
on the allegation that the two
ladies had reported that she
(applicant) had defrauded them.
Furthermore, the police after
her arrest threatened and
ordered her to refund the money
the two ladies paid to Chateaux
Homes and successfully collected
US$5,000.00 from her. The
respondents did not deny that
Divine at Castle, Osu, had
earlier demanded the applicant
to refund the money to the two
ladies. They, however, contend
that the applicant voluntarily
offered to refund the money she
collected from the two ladies
and made a part-payment of
US$5,000.00. I would come to the
issue whether the applicant paid
the US$5,000.00 out of duress or
voluntarily. Before that,
however, I would deal with the
most crucial issue which is
whether or not the respondents
(police) arrested and detained
the applicant "upon reasonable
suspicion of his having
committed ... a criminal offence
under the laws of Ghana"
(article 14 1(g) of the
Constitution). (my emphasis). I
have already stated the
complaint that the respondents
received before they proceeded
to arrest and detained the
applicant and later released her
on bail. Both the applicant and
respondents are agreeable that
there was a contract evidenced
in writing, between Chateaux
Homes and each of the two ladies
for the purchase of two serviced
plots. For the avoidance of
doubt I would quote portions of
paragraphs 4 and 5 of the offer
letter dated 01-01-2007. These
provisions state as follows: “4.
As one of our first ten clients,
we give you a guarantee…A full
refund of any money paid to us,
should the project fail to
commence within 4 months from
date of payment. 5. All relevant
documents covering the land will
be made out in your name, and
handed over to you when you have
made full payment for the
requested plots. ..." (Exhibit
SF). The two ladies accepted the
offer and made part-payments
before a misunderstanding arose
and they reported the case to
the police and the applicant was
arrested. The respondents case
is that the applicant was
arrested for defrauding by false
pretences contrary to section
131 of the Criminal Offences
Act, 1960 (Act 29). So, the
question is whether the contract
between the two ladies executed
with Chateaux Homes, whose Chief
Executive Officer is the
applicant, could be a basis for
arresting the applicant on
reasonable suspicion of
defrauding by false pretences.
The offence of defrauding by
false pretences is defined in
section 132 of Act 29 as
follows: "A person is guilty of
defrauding by false pretences
if, by means of false pretence,
or by representation he obtains
the consent of another person to
part with or transfer the
ownership of anything." Section
133(1) of Act 29 defines false
pretence. It states as follows:
"A false pretence is a
representation of the existence
of a state of facts made by a
person, either with the
knowledge that such
representation is false or
without the belief that it is
true, and made with an intent to
defraud." Section 133(2) (a) of
Act 29 provides that "a
representation may be made
either by written or spoken
words, or by personation, or by
any other conduct, sign, or
means, of whatsoever kind." And
section 134 of Act 29 explains
personation as "a false pretence
or representation by a person
that he is a different person,
whether that different person be
living or dead or be a
fictitious person, and a person
may be guilty of personation
though he gives or uses his own
name, if he does so with intent
that he may be believed to be a
different person of the same or
of a similar name." The
respondents received a complaint
from the two ladies who showed
them the written offer and
acceptance and receipts of
part-payment. These documents
obviously showed the contract
between the ladies and Chateaux
Homes. The terms are clearly
spelt out in the offer letter
(Exhibit SF) especially in
paragraphs 4 and 5 referred to
earlier. So, with all the above
evidence at the disposal of the
police wherein lies the
ingredients of defrauding by
false pretences as spelled out
clearly in sections 132, 133 and
134 of Act 29 to support the
action of the respondents in
arresting, detaining and later
bailing the applicant? - See
Hemans v. Coffie [1996-97] SCGLR
596. In other words, there was
no evidence at all, to the
knowledge of the respondents,
that the applicant had committed
the offence of defrauding by
false pretences. The respondents
cannot be heard to say that they
arrested the applicant "upon
reasonable suspicion of his
having committed a criminal
offence under the laws of
Ghana." It, therefore, means
that the respondents violated
the applicant fundamental and
constitutional right to personal
liberty guaranteed under Article
14 of the 1992 Constitution by
her arrest and detention on
12-01-2011. I now return to the
question of whether the
applicant paid the US$5,000.00
under duress or voluntarily. The
applicant paid this money in the
police station when she was
wrongfully arrested in respect
of a contract Chateaux Homes
executed with two clients. The
respondents claim it was the
applicant's sister, Georgette
Francois, who pleaded for a
settlement of the case and the
US$5,000.00 was paid. The
respondents have no authority to
accept that the case be settled.
Indeed, this only goes to show
that the interest of the
respondents was by fair or foul
means ensure that the applicant
refunds the money paid by the
two ladies. They were not
enforcing the criminal law. I
would accept the applicant's
case that she was threatened and
ordered by the respondents to
refund the said money. This
certainly, is not the legitimate
functions of the respondents as
condemned by the Supreme Court
in Hemans v. Coffie (supra) the
facts of which are similar to
this case. In that case, a
building contractor became
indebted to a number of people.
The debt arose partly from
building materials bought on
credit for his contract works
and partly from advances paid by
his clients to undertake some
extensions on their buildings.
The contractor defaulted in
meeting his obligations under
the building contracts. The
creditors reported him to the
police on a complaint of fraud.
He was arrested and detained in
police cells. While in custody,
the police threatened and
pressurized him to sell his
house to pay off the debts
otherwise he would not be
released. To secure his release
from the police cells, he
succumbed to the pressure
exerted upon him by the police
and sold the house to the 1st
defendant. The Supreme Court,
unanimously, held, among others,
as follows: "(1) Originally
duress as a common law concept
was based on threats of criminal
activity: it consisted in
violence to the person or
threats of violence or
imprisonment whether actual or
threatened. The present position
was that to be capable of giving
rise to duress, the threat must
be illegitimate either because
what was threatened was a legal
wrong or because the threat
itself was wrongful (though what
was to be done was lawful) or
because it was contrary to
public policy. (2) Where one
obtained goods on credit and
defaulted in paying or received
money from people to do some
work but failed to do so, as in
the instant case, the default in
each case would amount to breach
of contract, the remedy of which
would lie in the civil courts
and not at police stations.
Neither situation would
constitute the offence of
defrauding by false pretences
under section 131 of Act 29. (3)
The duty of the police was to
protect the life and property of
the citizenry and not to act as
debt-collectors." In conclusion,
I would say that the evidence
clearly shows that the
respondents unjustifiably and in
violation of the applicant's
fundamental and constitutional
right to personal liberty
arrested and detained the
latter. They, also, coerced her
into paying US$5,000.00 to them
as part-payment for a purported
breach of contract under the
disguise that she defrauded two
ladies, the complainants. The
claim by the respondents that
they kept the money as evidence
is an after-thought and without
any merit. The applicant is,
therefore, entitled to the
reliefs she claims from this
court as follows: 1. A
declaration that the agreements
as executed between Chateaux
Homes and Mrs. Abiola Babalola
on one hand and Chateaux Homes
and Ms. Moji Rhodes on the other
hand are enforceable contracts
which do not give rise to any
criminal liabilities on the part
of the applicant. 2. A
declaration that the applicant
is not a party to the respective
contracts executed between Mrs.
Abiola Babalola and Chateaux
Homes as well as Ms. Moji Rhodes
and Chateaux Homes and is
therefore not liable for the
refund of any sums paid to
Chateaux Homes. 3. A declaration
that the Ghana Police Service is
not a debt collection agency. 4.
A declaration that by the
collection of the sum of US $
5,000.00 from applicant for the
benefit of Mrs. Abiola Babalola
and Ms. Moji Rhodes, the
Respondents have turned the
Ghana Police Service into a debt
collection agency. 5. An order
for the recovery of the sum of
five thousand United States
dollars (US $ 5,000.00) from
respondents. 6. Interest on the
sum of US $ 5,000.00 at the
prevailing bank rate from today
to the day of payment. 7.
General damages of GH 5,000.00.
8. An order of perpetual
injunction restraining the
respondents, their agents,
workmen, successors in office,
privies, hirelings or any of
them howsoever described, from
inviting, detaining and/or
investigating the applicant
under whatever guise, pretence,
or description in respect of the
contracts executed between
Chateaux Homes, on one hand, and
each of Mrs. Abiola Babalola and
Ms. Moji Rhodes, on the other,
since the said contracts are
enforceable by the respective
parties to same and do not give
rise to any criminal liability
on the part of applicant. I
would here reiterate the
sentiments of the Supreme Court
in Hemans v. Coffie, supra, on
12-03-1997, for it appears that
the message did not get to the
knowledge of the
Inspector-General of Police or
it was ignored. This is what the
Supreme Court said in the last
paragraph of the judgment, at
page 609: "We cannot conclude
this case without commenting on
the reprehensible conduct of the
police in this matter. We do not
know of any law which reduces
the police to debt collectors
instead of protectors of life
and property of the citizenry.
And we know of no law which
permits the police to arrest a
wife when they are looking for
her husband, a son when looking
for a father or vice-versa. Such
practice constitutes a negation
of the fundamental rights of the
individuals; and is unsupported
by law and the 1992
Constitution. It must therefore
be roundly condemned. This court
would direct the attention of
the Inspector- General of Police
to the prevalence of such
practice at police stations."
These sentiments were echoed by
the highest court of this land
more than fourteen years ago.
And yet, the conduct the Supreme
Court condemned is even now more
prevalent for, in this court
alone, there are about five or
more cases where police are
alleged to have engaged in debt
collection as part of their
duties in combating crime
instead of advising the
complainants in those cases to
take civil action. It is so
reprehensible. I hope that since
the Inspector-General of Police
is a party to this suit, unlike
in the Hamans v. Coffie, supra,
the conduct of the police
complained of would come to his
knowledge for him to take the
appropriate steps to reverse the
unfortunate trend. COUNSEL: 1.
Mr. Egbert Faibille Jnr. for
Applicant. 2. Stella Badu
(Principal State Attorney) (Nana
Akua Adjei with her) for the
Respondent. |
