Claim: It is a criminal offense, punishable by law in Ghana to take money on the basis of a promised visit and not show up.
More context needed. The criminal law Act 29 Section 130 criminalises fraud on the basis of false pretense; however, the case suggested in this claim is dependent on many factors.
A post in circulation by Ghanaian social media users suggests that men, who find themselves in situations of sending transport money to a lady to visit them without the lady fulfilling the promise or refunding the money are eligible to file a case against such ladies for defrauding by false pretense.
A Google reverse Image Search revealed that the photo accompanying the post is a photo of Nigeria’s Dolapo Badmus, former spokesperson of the Lagos State Police Command, although the law cited in the claim pertains to Ghana’s criminal code, Act 29 Section 132.
What does Act 29 Section 132 of Ghana’s criminal law say?
According to Section 131 of the Criminal Law, a person is guilty of defrauding by false pretence if “ by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything.”
Section 133 further explains false pretence to be the “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.”
Such representations can be through written or spoken word:
“(2) For the purpose of this section—
(a) 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;
(b) the expression “a representation of the existence of a state of facts” includes a representation as to the non-existence of any thing or condition of things, and a representation of any right, liability, authority, ability, dignity or ground of credit or confidence as resulting from any alleged past facts or state of facts, but does not include a mere representation of any intention or state of mind in the persons making the representation, nor any mere representation or promise that anything will happen or be done, or is likely to happen or be done”.
A person who defrauds by false pretence, according to Section 131 of the Act, is guilty of second degree felony.
So can you be jailed if you fail to show up after ‘bagging’ the money?
Dubawa spoke to Zakaria Tanko Musah, a legal practitioner and lecturer at the Ghana Institute of Journalism (GIJ) and Patrick Larweh Kpalam, a private legal practitioner who explained that issues like this would be generally case dependent. It is not a one cap fits all.
Some cases, like those below, are quite clear cut.
Take for example, the case of Mark Adjei, an unemployed person with disability who was convicted and fined by a Circuit Court at Goaso in the Asunafo North Municipality of Brong-Ahafo Region for defrauding one Salifu Halidu. Adjei pretended to be a travel agent who procured visas for individuals interested in traveling to Australia. He made away with Halidu’s money while pretending to be a travel and tour agent.
This is similar to the case of The Republic Vrs Stephen Kwabena Opuni, Seidu Agongo And Agricult Ghana Limited, where Stephen Kwabena Apuni, Seidu Agongo and Agricult Ghana Limited defrauded COCOBOD of some large sum of money by false pretense.
Other cases of defrauding by false pretense, however, are not so clear-cut and as such, would require that the ingredients of the offense are looked at to ascertain judgement.
It is important, therefore, to first make this clear – not all agreements are contracts. Contracts are agreements that give rise to obligations which are enforceable or recognized by law.
What makes an agreement a contract and enforceable by law?
- An offer
- Intention to create legal relation
- The capacity of parties and
- Lawful consideration.
An agreement that doesn’t give room for legal obligation, like the one suggested in this claim, renders a contract void and invalid. The following is an example.
“Agreements of moral, religious or social nature, for example, Goodnuff promises Fafali to party together at Abigail’s house or to buy Fafali a Mercedes Benz after breaking her virginity are not contracts because they are not likely to create a duty enforceable by law for the simple reason that the parties never intended that they should be attended by legal consequences.”
However, in some cases, as for every action there is a defense, if it can be clearly proven that the party, in this particular case, the woman who was given money on the promise of visitation, does in fact meet the requirements of the definition of defrauding by false pretense, then yes , a case is viable.
It must also be proven that no other conditions prevented the person from showing up as agreed and that it was a valid contract with all the requirements having been met.
Additionally, the conduct and representation of the lady to the man (or woman) must fit into the definition of defrauding by false pretense. Was there an agreement for the lady to take the money and show up to his house? If there is a contractual agreement to send the money on the premise of you visiting and you don’t show up, you have parted away with the person’s money and would then be liable.
Some stories of online scammers fit this scenario. Much like this BBC report on the world of Ghana’s internet fraudsters which tells the tale of a young man who pretends to be a woman online to dupe foreign nationals of money and other similar stories.
In order to file viable cases on the basis of defrauding by false pretense in cases similar to what the claim in question suggests, certain criteria need to be met. Such cases are also considered on their individual basis, with considerations made on the ingredients of the case.