By Louise Jobe
Principal Magistrate Muhammed Krubally has handed Lamin Mboge, Chief Executive Officer (CEO) of Gam Housing Estate Agency a 2-year jail term for obtaining money by false pretence.
CEO Mboge was charged on Tuesday, 23 February 2021 with obtaining money by false pretence contrary to section 288 of the Criminal Code. The particulars of the offence alleged that Lamin Mboge on or about 5 May 2020 at Brufut fraudulently induced the complainant, with the intent to defraud, and received an amount of Three Million Dalasi (D3, 000,000).
The brief fact revealed that the convict (Lamin Mboge) entered a signed agreement with the complainant (Yahya Ceesay) in which Mboge agreed to sell his registered landed property located in Brusubi to the said Complainant for a total sum of Four Million Five Hundred Thousand Dalasi (D4,500,000). The complainant, in accordance with the agreement duly signed thereof made a part payment of Three Million Dalasi towards the aforementioned agreement in order for CEO Mboge to transfer title in his name. CEO Mboge, subsequently having received part payment from Yahya Ceesay, has been unable to neither transfer title of the property nor provide a refund of the complainant’s amount paid to him. The land in question also had third party issue.
Mboge pleaded not guilty in response to the charge of obtaining money by false pretense.
The prosecution in proving its case called three witnesses and tendered some exhibitis. Exhibit “A” which was a copy of a cheque of D500,000 issued to the accused Lamin Mboge by PW1 (Yahya Ceesay) dated 5 May 2020 and the same was paid to CEO Mboge and comes with attached receipt issued by the accused. Exhibit “B” was a sale agreement between Lamin Mboge and Yahya Ceesay dated 5 May 2020. Exhibit “C” is a bank statement showing an amount of Two Million Dalasi paid into Lamin Mboge’s account from Yahya Ceesay with four receipts from GT Bank (Exhibit F). Exhibit “D” was a bank statement indicating bank transfer of D500000 to Gam Housing. Exhibit “E” was a witness statement of the complainant dated 3 July 2020. Exhibit “F” was four cheques on different dates issued to PW1 via Guarantee Trust Bank.
At the close of the prosecution’s case, CEO Lamin Mboge gave unsworn evidence in court. He stated that his defense for denying the charge is premised on the fact that the transaction between him and the complainant is contractual and since the complainant violated clause 5(b) of the contractual terms, civil matter should have been instituted against him but not criminal where both parties may remedy the breach as stated in their sale agreement. The accused told the court that he relied on clause 6 of their agreement, stating that it is agreed that payment should have been made to his own account (Lamin Mboge) but instead the complainant made the payment through his company account which is completely different from him. As a result, his defense is that he is not the right person to be sued and instead the company should have been sued for obtaining money by false pretense. In his defense, the accused stated that, the property was in his name and it was his right to proceed and sell his property since valid title was in his name and pursuant to one high court decision, only person with valid title may transfer. He added that fraud is obtained during the time of sale, and at the time of sale the property was in his name.
Mboge testified that the cheques referred to by the prosecution were forcefully obtained from him and that the cheques are irrelevant to the matter at hand. He further stated that the matter at hand is obtaining money by false pretense and not bounce cheques.
During cross examination, it was established that the landed property in question is in another court in which Abdoulie Cole, the first purchaser of the landed property sued Lamin Mboge and the Sheriff Division. That case was registered around 2022. It was further established that the monetary transaction between the accused and the complainant in this case was some time in 2019 or 2020. The prosecution then put it to the accused, Lamin Mboge, that the land in question he clandestinely sold to the Complainant, Yahya Ceesay belonged to Abdoulie Cole at the time which is why Abdoulie Cole instituted an action against the accused before the High Court. The accused’s response to the above during cross examination was that, he cannot agree because the time of signing the first agreement with the complainant, the said property was registered in his name and at that time there was no encumbrance or third party claim. The Prosecution further put it to the accused that, in his defense, the accused had no opportunity to produce ownership evidence relating to the property confirming that the property was registered in his name at the time he entered into the contract with the complainant. The accused person’s response to this was that, the prosecution already tendered as that was what he remembered. The Prosecution, again, put it to him that he already sold out the said property to Abdoulie Cole and continue to receive money from Yahya Ceesay which the accused knew to be true thereby defrauding the complainant, Yahya Ceesay. The accused reacted stating that is incorrect.
The accused in proving his case with respect to the charge, informed the court that he wishes to present at least 3 witnesses or more. Eventually the accused was only able to call one (1) witness, DW1 and the other witnesses DW2, and DW3 were subpoenaed by the court upon application made by the accused. As a result, the following were tendered as exhibit: Exhibit “A” is a document from Social Security and Housing Finance Corporation from the Seller, Lamin Mboge. Exhibit “DLS1”- a search letter dated 5th May 2020 with serial number 392/2020 KD. Exhibit “DPAL”- a Power of Attorney with serial number 348/2020 PA. Exhibit “DDA1”- a deed of assignment with serial registration number 392/2020 KD.
Bakary Sanneh, the first defence witness said he is a retired civil servant who witnessed something pertaining to the transaction between the accused and the complainant. He testified that sometimes the accused gave him a power of attorney to follow up his cases and other things. He stated that he remembered that one time the accused went to Lands Office in his presence to terminate a deal between himself (i.e the accused) and one Mr Cole because the accused had a new buyer herein Yahya Ceesay.
Magistrate Krubally cited the provisions of S.287 and S. 288 of the Criminal Code. Section 287 of the Criminal Code defined false pretense as:
“A representation made by words, writing or conduct, of a matter or fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretense”
Section 288 of the criminal code further provides that:
“A person who by any false pretense, and with intent to defraud, obtains from another person anything capable of being stolen commits a misdemeanor, and is liable on conviction to imprisonment for a term of three years.”
The Principal Magistrate said the key elements in determining false pretense under S.287 and S.288 are: False representation (fraudulent misrepresentation), Intention to deceive and Reliance by the complaint (obtaining i.e anything capable of being stolen).
“Giving regards to the fact that all the ingredients of obtaining money by false pretense pursuant to S. 288 of the Criminal Code has been proven. I hereby, state that the accused is guilty for the offense of obtaining money by false pretense within the meaning of S. 288 of the Criminal Code. I therefore, hereby find the accused herein Lamin Mboge guilty of the offense with which he stands charged and I shall convict him accordingly.”
After convicting him, here was what Lamin Mboge said in his plea of mitigation: “Giving the fact that I am a first time offender, I am a responsible man taking care of two kids and also operating business wherein a lot of people owe the business and I have been trying very hard to recover. Furthermore, I have put up a lot of efforts to negotiate with the complainant herein, but such efforts proved futile because the complainant does not accept any payment plan. The laws of this country provides for compensation to be settled on agreement or by installment. The fact that I have proof of a property handed over to me by a closed relative to sell and settle the complainant, I am able to have a credible customer willing to pay for same more than what the complainant is asking for, but his condition was the process of transfer must be completed before he can effect payment. I therefore guarantee to this honourable court to temper justice with mercy by giving me the chance to conclude sale which is basically the process of completing the transfer within a period of one month. I shall do my best to settle the complainant’s balance of two million eight hundred thousand dalasi. It will be impossible for me to complete that sale process if I am not at my (sic) freedom to complete the sale process and settle the complainant, it will be very important giving the fact that the interest of the complainant is only to receive his money back.
This court has power to award compensation and it has the power to give me up to one month to be able to settle the complainant in full. At the same time, I will be grateful if the court can allow court bail to continue whiles I am in the process of settling the complainant. More so, payments I am expecting from people apart from the sale of the property will be impossible for me to receive if I am not at liberty. Therefore, I shall be very grateful to this court to consider that the interest of the complainant is to have his money to be recovered. I shall also be grateful again if the court considers that and give option of fine, that the minimum level be considered to enable me pay same because I have been going through serious financial difficulties by finding it difficult to receive moneys from people. I think this court is a reasonable one.
Finally I urge the court to consider my application to settle any compensation within the stated period of one month and the fact that compensation shall be paid to the plaintiff, clearly indicates that it is in the interest of justice for the court to order for compensation or it will be must appropriate.”
In passing his sentence, Principal Magistrate Krubally said: “Giving regard to all these circumstances above from the well couched mitigating circumstanced by the Accused makes me preface the following remarks below; “That is, from the year 2020 up to date now 2023, why didn’t the accused really give the victim’s money back to him? Instead he leaves him to continuously suffer daily economic losses with his family and business? More so, it is indeed very intolerable for one to obtain money from the other by false pretence which the accused knew he was doing at the time he was dealing with the complainant. It is of criminal nature that this court as court of justice shall never entertain. With regard to the accused application for fine, well since it is a statutory jurisdiction and discretion pursuant to section 29 3) of the criminal code, I hereby grant same and so order that pursuant to the said section 29 3). I order that he (the accused herein Lamin Mboge) pays a fine of D50,000 Dalasis in default to serve one year in prison.
Now pursuant to the application of the prosecution on compensation stating that since the victim herein Yahya Ceesay suffers huge economic losses which is indisputable, pursuant to Section 145 of the Criminal Procedure Code to be read together with Section 31 2 of the Criminal Code, I hereby grant such application and so order that the said Accused herein Lamin Mboge compensates the said victim herein called Yahya Ceesay the sum of Two Million Eight Hundred Thousand Dalasis in default to serve Two Years in prison. The sentence terms herein made against the said Accused shall run concurrently.”