The offence of defrauding by false pretences, enshrined in Section 131 of Ghana’s Criminal Offences Act, 1960 (Act 29), has long served as a vital prosecutorial tool in combating fraudulent conduct.
Yet, the rigid application of this provision without sufficient scrutiny of the conduct of complainants has resulted in troubling implications.
The prevailing legal approach tends to assume that victims of fraud are invariably innocent and unsuspecting, with little or no role in enabling the deception.
This one-sided application of the law appears, in some cases, to reward willful ignorance or personal greed while failing to promote the kind of social vigilance that is indispensable in fraud prevention.
While fraudsters deserve to be held accountable, there is a growing need to reflect on how the law treats the role of complainants, particularly in an era marked by spiritual scams, dubious visa promises, and unrealistic investment schemes. In many cases, individuals willingly part with money or property under circumstances that should provoke caution.
Some complainants appear to act on impulse, failing to conduct basic checks or even ignoring glaring red flags in the process.
When the legal system treats such individuals as entirely blameless, it risks creating a culture that encourages recklessness and discourages critical thinking.
Section
Section 131 of Act 29 criminalises the act of defrauding by false pretences, while Section 132 defines “false pretences” as any false representation made knowingly or recklessly, whether by words, writing, or conduct, relating to past or present facts.
For a successful prosecution, the law requires proof that the accused made a false representation, that it was made knowingly or recklessly, that the complainant relied on it, and that the accused thereby obtained something of value.
Ghanaian courts have focused heavily on the fraudulent intent of the accused, often overlooking the nature of the complainant’s reliance and whether it was reasonable under the circumstances.
The assumption is usually that the complainant relied in good faith, with no real scrutiny of their prudence or lack thereof.
This uncritical posture promotes undesirable consequences.
When individuals receive full legal protection after acting with overt imprudence—such as transferring large sums of money for “foreign visas” from unverified agents or investing in schemes with clearly unrealistic returns—the law risks legitimising financial laziness.
Such leniency can also breed professional complainants who, whether out of desperation or speculative interest, engage in dubious transactions and later fall back on criminal prosecution when things go wrong.
Fraud, in many such cases, becomes less a unilateral act of deception and more a transactional dance between opportunism and delusion.
Criminal justice
The criminal justice system must resist the false binary that places individuals solely in the box of either perpetrator or victim.
Many fraud cases exist in shades of grey.
Some complainants knowingly participate in schemes they suspect are illegal or dishonest, hoping they might still benefit.
Others may overlook obvious irregularities, driven by the promise of personal gain.
Treating these actors as entirely innocent distorts the full picture of how fraud operates and who sustains it.
Contributory negligence is traditionally a civil doctrine; its moral underpinnings are increasingly relevant in criminal fraud.
Recognising the complainant’s contributory behaviour does not negate the fraudster’s culpability, but it could inform prosecutorial discretion, guide judicial sentencing, and shape public messaging around fraud prevention.
For example, a court could acknowledge that a complainant’s carelessness or greed was a significant factor, even as it convicts the accused of making the fraudulent representation.
Such acknowledgement may lead to alternative sentencing, reduced penalties, or even civil referrals where appropriate.
Comparative jurisprudence
Comparative jurisprudence supports this more contextual approach.
Courts in England and Wales have occasionally weighed the reasonableness of the complainant’s reliance.
The Canadian Supreme Court in R. v. Olan emphasised a holistic assessment of the circumstances, including the victim’s conduct.
In South Africa, the courts’ analysis of dolus eventualis—which includes foreseeability—often touches on the complainant’s failure to act with ordinary caution.
Ghanaian law could benefit from this broader lens, encouraging judges and prosecutors to go beyond a mechanistic checklist of elements and examine the fuller context of each case.
Ghanaian courts must continue to punish fraud, but must not become inadvertent enablers of economic irresponsibility.
The bench should be empowered to examine whether complainants acted with reasonable prudence, ignored obvious warning signs, or were, in some manner, complicit in the circumstances leading to their loss.
This need not undermine the integrity of the prosecution but can shape sentencing, compensation orders, or recommendations for civil recovery rather than criminal sanctions.
Improve
To improve the legal and policy framework, several steps are advisable.
The Attorney-General’s Department should develop prosecutorial guidelines that account for the complainant’s conduct in fraud cases.
Judicial education programmes should incorporate modules on balancing victim protection with civic responsibility.
Public education campaigns must encourage citizens to be sceptical of grand promises and to conduct basic due diligence before parting with money or property.
Finally, Parliament should consider amending Act 29 to provide for sentencing discretion where the complainant's conduct materially contributed to the fraudulent outcome.
Fraud is a grave offence, and fraudsters must face the consequences of their actions. But the fight against fraud must not shelter irresponsibility or reward intellectual laziness.
Recognising the role of the complainant in enabling fraud is not an act of blaming the victim; it is an affirmation of shared responsibility in a complex society.
Fraud thrives not only on lies but also on unchecked desire and unexamined trust. A mature legal system must be able to address all three.
The writer is a barrister & solicitor of the Supreme Court.
