Magistrate Mark Ngegba Sentences Guinean Citizen Over $425,000 Scam

Pademba Road Magistrate’s Court No. 1, Freetown, 1^st December 2022: Principal Magistrate, His Worship Magistrate Mark Ngegbahas today sentenced Tenin Madeleine Mansare, a Guinean business woman, for Obtaining Money by False Pretences contrary to Section 32 (1) of the Larceny Act,1916.

It is alleged that on dates between 8th September 2021 and 29th November 2021, Accused Tenin obtained the sum of Four Hundred and Twenty-five Thousand United State Dollars (USD 425,000), equivalent to Four Million Seven Hundred and Thirty-two Thousand Three Hundred and Seventy-five New Leones (NLe 4,732,375) by falsely pretending that she will supply Fifteen Thousand metric tons of cement to Star Light Company, represented by Ewdeebak Bhurani.

On arraignment and when the charge was read out and explained to her, the accused pleaded not guilty to the offence.

Read the full Judgment delivered by Magistrate Mark Ngegba:

C/S 1717/2022

IN THE MAGISTRATE COURT NO. 1 HOLDEN AT

MAGISTRATES COURTS

PADEMBA ROAD FREETOWN

BETWEEN: –

THE INSPECTOR-GENERAL                             COMPLAINANT

OF SIERRA LEONE POLICE

VS

TENIN MADELEINE MANSARE                       ACCUSED

JUDGEMENT DELIVERED BY SENIOR MAGISTRATE MARK NGEGBA ON THE           DAY OF DECEMBER 2022

1. The accused, Tenin Madeleine Mansare is charged with the offence of Obtaining Money by False Pretences contrary to Section 32 (1) of the Larceny Act 1916.
2. It is alleged that on dates between 8^th September 2021 and 29^th November 2021, the accused obtained the sum of Four Hundred and Twenty-five Thousand United State Dollars (USD 425,000), equivalent to Four Million Seven Hundred and Thirty-two Thousand Three Hundred and Seventy-five New Leones (Nle 4,732,375) by falsely pretending that she will supply Fifteen Thousand metric tons of cement to Star Light Company, represented by Ewdeebak Bhurani.
3. On arraignment and when the charge was read out and explained to her, the accused pleaded not guilty to the offence.
4. I remind myself before proceeding any further that the prosecution had the responsibility to prove beyond reasonable doubt that the offence alleged was committed by the accused and that any such doubt arising from the facts must be held for the benefit of the accused. This means that the prosecution must prove every element of the offence to secure the conviction of the accused.
5. Three prosecution witnesses testified on oath and were each cross-examined by the defence.
6. I have summarized the evidence presented by the prosecution as contained in the court records as follows:
7. Ewdeebak Bhurani testifying as the PW1 said the accused met him and discussed a cement contract that was made between her and the PW1’s father in September 2021 for which she had received an initial deposit of Two Hundred Thousand United States Dollars (US$ 200,000). According to the PW1, there was a delay in the production of a Bank Guarantee that the accused requested for. Because of the delay, the accused demanded that the contract price be increased by One Hundred Thousand United States Dollars (US$100,000) and requested for an additional Two Hundred and Twenty-five Thousand Dollars (US$ 225,000) for her to pay for the ship that will transport the cement to Freetown. The additional amount was paid through bank transfer at Vista Bank and the contract was changed and signed on 10^th December 2021. The PW1 said that the contract stipulated that the accused should supply the cement between 45 to 60 days and that he gave her the Bank Guarantee that she requested for. The accused then travelled and they kept communicating via WhatsApp texting in which the accused kept promising him that the cement will soon arrive. According to the testimony of the PW1, the accused on the 15^th of January, 2022, sent him a photo of the ship being loaded with the cement for onward delivery to Freetown. After that, the accused kept giving him one excuse to the other and when he could not receive the cement, he decided to report the case to the police. The PW1 tendered his mobile phone through which he and accused communicated as Exhibit ‘A’, printed WhatsApp messages as Exhibit B1-8 and bank transfer documents as Exhibit ‘C1-6’. During cross-examination, the PW1 said that accused informed him in March 2022 that boats were difficult to get as a result of the Russian-Ukraine war. The PW1 tendered the signed contracts marked Exhibit ‘D1-4’, ‘E1-2’and ‘F1-4’.
8. Edward Sorie Conteh testified as the PW2. He is a Solicitor Clerk for the Associating Counsel, Mr. Bagalie Monorma Bah Esq. He said that on 10^th December 2021, his boss called him to witness an agreement between the PW1 and the accused in respect of a cement transaction.
9. Abdul Mohamed Kamara, the PW3 is the police investigator. He explained the investigation process and tendered the accused’s record of interview as exhibit ‘G1-19’ and the charge statement as ‘H1-4’.
10. At the close of the prosecution’s case the accused elected to open her defence and she alone testified in her defence. The evidence from the defence as contained in the records could be summarized as follows:

According to the accused, she is the one in charge of Sisa Sarl Group in Sierra Leone and Guinea. She said that she entered into contract with Star Light Company on 9^th September 2021 through its representative the PW1. The said contract was tendered as Exhibit ‘J1-2’ and the photocopy as ‘K1-2’. She said that when Star Light contacted her to import cement for them from Guinea to Sierra Leone, she told them that it will be too expensive and so she suggested that it could be better done from Turkey or Egypt and volunteered to do the inquiry. She said that when they held the second meeting, she informed the PW1 and team that the cost of cement per ton from Egypt is 130 dollars and ten thousand tons will cost One Million Three Hundred Thousand United States dollars (US$ 1,300,000). She said that the PW1 asked if she could credit them but she said it will be difficult because she pays for the cement. The accused said that she then went on to request an initial payment of the Leones equivalent of Two Hundred Thousand dollars (US$ 200,00) at an exchange rate of Eleven Thousand One Hundred and Thirty-Five old Leones (Le11,135) from the PW1 plus a Bank Guarantee. The accused said that the balance was to be paid after 60 days of the arrival of the cement in Freetown and that the PW1 and his company initially refused to have the contract formalized by a lawyer when she requested for that. She said that the PW1 paid the sum of USD$ 200,000 into her account after they had signed the contract on 9^th September 2021 and did not hear anything from them again until October when Sisa Company wrote a letter to remind them about the Bank Guarantee. The said letter, dated 10^th October 2021 was tendered and marked Exhibi ‘J’. According to her, another reminder letter was sent on 17^th November 2021 on the same subject of the Bank Guarantee and it was tendered as Exhibit ‘K’. The accused said that after she had contacted the PW1 and his Company including going to their office at Ecowas Street, the PW1 went ahead and deposited the sum of Two Hundred and Twenty-Five Thousand (USD$ 225,000) dollars into the Sisa account without her knowledge instead of giving her the Bank Guarantee that was requested. She said that she then went on to explain to the PW1 that they still needed to give her the Bank Guarantee even after the payment of that amount. She said that she was only able to receive the bank guarantee after Christmas which she tendered and it was marked ‘L1-2’. After she had received the Bank Guarantee she travelled to Egypt to put in the order for the cement but was told that because it was a festive period she could not get the order delivered until February. She then returned to Freetown and went to her bank to ask for a loan of One Million One Hundred and Seventy Thousand United States dollars (USD$ 1,170,000), out of which she paid Eight Hundred Thousand United States Dollars (USD$800,000) to the cement factory in Egypt, One Hundred and Sixty-Three Thousand dollars (USD$ 163,000) for shipment and One Hundred and Seven Thousand dollars USD$ 107,000) to the shippers.  She tendered Exhibit M1-4 as evidence of the payment of the 107,000 dollar, Exhibit ‘N1-2’ as evidence of the payment of the 163,000 dollars and Exhibit O1-5 and evidence of the payment of the 800,000 dollars to the cement company. According to the accused, it was after these payments that shipment problems resulting for the Russian-Ukraine war surfaced. She said that her broker then told her that they will no longer be able to work on the agreed price and demanded an additional Four Hundred Thousand United States dollars (USD$ 400,000) more to be added to the 270,000 already paid. She accepted to pay the additional amount when she contacted Bollore and found out that they were asking for Eight Hundred and Twenty United States dollars (USD$ 820,000) for a vessel on condition that she will only pay when the cement was on sea but the brokers refused, so she went to Italy to negotiate with them. When she could not succeed for two months, her lawyer wrote to Star Light on 18^th May 2022 to assure them of their commitment to the contract. She tendered the letter marked Exhibit ‘P’. She then went to London to get another shipper for Six Hundred and Fifty Thousand United States dollars (USD$ 650,000) and made a reservation for 25^th June 2022. Letter of reservation was tendered as Exhibit ‘Q’. It was at that point that she realized that the Bank Guarantee will expire on 4^th June and wrote to Star Light on 2^nd June to request an extension of the Guarantee. The said letter is marked Exhibit ‘R’. According to her the intermediary at Star Light in response asked for the boat contract. She told them that it could not be made available without the Bank Guarantee. When she could not receive any word from them from 1^st to 20^th June, she came to Freetown and had a meeting with the PW1 and Star Light. According to her, she represented to them that everything regarding the coming of the cement depended on the availability of the Bank Guarantee and that the price of cement had increased. She said that the accused agreed to negotiate a new price on her request, on condition that the ship should first be on the high seas and the Bill of Lading delivered before any such negotiations. During cross-examination, the accused said she did not have the loan documents from the Sierra Leone Commercial Bank because they were in her office. She said she was unable to supply the cement because the Bank Guarantee was not given to her. She agreed that the Bank Guarantee was dated 9^th December instead of the earlier stated date of after 25^th December. She further confirmed that the payment to the cement factory in Egypt through the Sierra Leone Commercial Bank was done by a Letter of Credit and referred to Exhibit O1-5 as the said Letter of Credit and acknowledged that it expired since the month of May. She said it had been renewed but said she did not have the renewal document in court.

• In addition to her testimony in court, I also read the accused’s statement to the police which was tendered as Exhibits ‘G1-19’. According to the accused, she came into contact with the complainant in August 2021 through one Ramatu Mat Kamara, whom she had told about her business of importing cement from Guinea and requested her to find customers for her. It was the said Ramatu Mat Kamara that linked the accused with her sister who subsequently linked the PW1 with the accused.
• The offence of obtaining money by false pretences is a statutory misdemeanor, contrary to Section 32 (1) of the Larceny Act 1916, in which a person by any false pretence with intent to defraud obtains from another any chattel, money, or valuable security, or to cause or procure any money to be paid or any valuable security, to be delivered to himself or any other person for the use or benefit or on account of himself or any other person.
• Paragraph 1592 at page 824, in the ‘Halsbury’s Laws of England’ 3^rd Edition, Volume 10 outlines four essential ingredients necessary for the offence to be proven. They are as follows: a. there must be a false pretence made by the accused to some other person of a matter of fact; b. there must be knowledge on the part of the accused that the pretence was false; c. there must be an obtaining of money, or chattel, or a valuable security, by means of such false pretence; and, d. there must be an intent to defraud.
• The false pretence must be of a fact that exists or has existed. The false pretence as to the existing or existed facts does not have to be done by statements made by the accused. As stated in paragraph B5.6 at page 403 in Blackstone’s ‘Criminal Practice’ 2007 and held in the cases of DPP v Stonehouse (1978) AC 55 and R v Williams (1980) Crim LR 589, “…it suffices if the accused ‘by words or conduct’ induces a false belief in the other person’s mind”. This was established by the accused’s admission both in her statement to the police that she requested Ramatu Mat Kamara to get customers for her and in her examination on oath in court that she represented to the PW1 that she could supply him cement. In R v Chadwick (1833) 6 C. & P. 181, it has been held that evidence of such false pretence could be in the form of a deed of contract signed between the accused and victim as in the instant case. The requirement for the making of the false pretence and the knowledge of that falsity were fulfilled by the conduct of the accused and the signing of the contracts.
• In all of the interactions, from her statement to the police and her testimony in court, there has been no question or doubt raised by the accused with respect to the obtaining of the total sum of the Leones equivalent of Four Hundred and Twenty-Five Thousand United States dollars (US$ 425,000). Her only contention, which I shall address in due course is that she failed to deliver the cement because the PW1 did not provide a certain Bank Guarantee.
• The intention to defraud may be inferred form the facts of the case. The facts show that the accused sent WhatsApp messages to the PW1, indicating that the cement had been shipped. In Exhibit B1-8 at page 2, photos of the cement being loaded into the ship were sent to the PW1 on Tuesday 25^th January 2022. At page 5, the accused texted the PW1 to say quote “the cement will be delivered on April 5, 2022”. At page 6, the accused texted to say “I know that you will have your cement in April as planned”.
• The text messages in Exhibit B1-8 defeats both arguments of the accused that the failure to supply the cement was a result of the PW1’s failure to provide the second Bank Guarantee and the effects of the Russian-Ukariane war on the market supply chain. The simply reason for this is that the messages suggests that the cement had been purchased and being shipped for the ports of Freetown long before the date the accused claimed to realize that the needed the Bank Gurantee on which the ordering and delivery of the cement depended. It further defeats the accused’s argument that she paid 800,000 dollars to the cement factory on 14 March 2022 because the photos indicating that the cement were being loaded into the ship for transportation to Freetown were actually sent on Tuesday 25^th January 2022, weeks before the date she claimed to have paid for the cement.
• All of these go far beyond prima facie evidence of the accused’s intention to defraud.
• The accused, by holding herself out as a businesswoman who supplies cement, thereby receiving the sum stated herein earlier, her failure to supply the cement and subsequently justifying that failure with unsubstantiated claims meets the requirements for the offence charged.
• In making the point emphatically that there may be an intention to defraud even though the accused does not intend ultimately to cheat the person from whom the money is obtained, Channell J said:

“If the defendant makes statement of fact which he knew to be untrue, and made them for the purpose of inducing persons to deposit with him money which he knew they would not deposit but for their belief in the truth of his statements, and if he was intending to use the money so obtained for purposes different from those for which he the depositors understood from his statement that he intended to use it, the…we have the intent to defraud, although he may have intended to repay the money if he could, and may even have good reason to believe that he may be able to repay it. …in such a case as that the false statement would not be honestly made, and this question as to the intent to defraud substantially comes to this: whether or not the statements were honestly made”. (italics added).

1. I have considered the evidence in its entirety and in light of the authorities cited, I hereby find the accused GUILTY of the offence charged.

____________________

Mark Ngegba

Senior Magistrate

Accused Tenin Madeleine Mansare was sentenced to 5 years imprisonment and sentencing to run consecutively.