Davor and Another v The Republic (CC15/032/2024) [2025] GHAHC 180 (6 May 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 6TH DAY OF MAY 2025 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURTJUDGE SUITNO. CC15/032/2024 KWAMEDAVOR& 1OTHER VS THEREPUBLIC JUDGMENT HUMANTRAFFICKING/EXPLOITATIVELABOUR/ CAUSINGHARM This is an appeal against the conviction of the accused person (A1) on 30th January, 2023 and his sentence on 8th February, 2023 by His Honour Sylvester Nii OkineAblorh sitting at the Circuit Court Sunyani. The Appellant Kwame Davor, the 1st accused person therein was arraigned before the Circuit Court Sunyani with one other on the following charges. 1 COUNT 1 STATEMENTOF OFFENCE CONSPIRACY TO COMMIT CRIME TO WIT; HUMAN TRAFFICKING contrary to section 23 (1) of the Criminal Offences Act, 1960 (Act 29) and section 2(1) and (2) of the Human Trafficking Act, 2005 (Act 694) as Amended by the Human Trafficking (Amendment)Act, 2009(Act 784). PARTICULARSOF OFFENCE 1.KWAME DAVOR, AGE 45 YEARS, FISHERMAN MARRIED 2. HUTOR MARGAI AMUDZI, AGE 51 YEARS FISHERMAN, MARRIED: For that you on and about May, 2021 at Yeji in the Bono East Region and within the jurisdiction of this Court, did agree and acted together with common purpose to transport one David Hutor, then 13 years from Woe Anloga in the Volta Region for the purpose of using him for fishing on the VoltaLake. COUNT 2 STATEMENTOF OFFENCE HUMAN TRAFFICKING CONTRARY TO SECTION 2(1) and (2) of the Human Trafficking Act, 2005 (Act 694) as Amended by the Human Trafficking (Amendment) Act, 2009(Act784). 2 PARTICULARSOF OFFENCE MUTORMARGAI AMUDZI,AGE 51YEARS, FISHERMAN, MARRIED: Forthat youonand aboutMay,2021atYeji, in theBono East Regionand within the jurisdiction ofthis Court,did give outone David Hutoraged then13yearsfromAnloga toYejito engageinfishing. COUNT 3 STATEMENTOF OFFENCE HUMAN TRAFFICKING CONTRARY TO SECTION 2(1) and (2) of the Human Trafficking Act, 2005 (Act 694) As Amended by the Human Trafficking (Amendment) Act, 2009(Act784) PARTICULARSOF OFFENCE KWAME DAVOR, AGE 45 YEARS, FISHERMAN, MARRIED: For that youduring the month of May 2019 at Issaka Akura near Yeji in the Bono East Region and within the jurisdiction of this Court, did receive one David Hutor then aged 13 years for the purposesofusing him for fishing onthe VoltaLake 3 COUNT 4 STATEMENTOF OFFENCE USE OF TRAFFICKED PERSON CONTRARY TO SECTION 4 OF THE HUMAN TRAFFICKING ACT, 2005 (ACT 694) As Amended by the Human Trafficking (Amendment)Act, 2009(Act 784). PARTICULARSOF OFFENCE KWAME DAVOR, AGE 45 YEARS, FISHERMAN, MARRIED: For that you between May 2019 and January 2022, at Issaka Akura near Yeji, in the Bono East Region and within the jurisdiction of this Court did use one David Hutor, AGED 16 years for fishing onthe Volta Lakewith theknowledge ofthesaid David Hutorbeing trafficked. COUNT 5 STATEMENTOF OFFENCE EXPLOITATIVECHILD LABOUR: Contrary to sections 87and 97 ofthe Children’sAct, 1998(Act 560) 4 PARTICULARSOF OFFENCE KWAME DAVOR, AGE 45 YEARS, FISHERMAN, MARRIED: For that you between May, 2017 and January 2022 at Issaka Akura near Yeji, in the Bono East Region and within the jurisdiction of this Court, did use David Hutor now 16 years, Atsu and Etse, also now aged 15 years for fishing on the Volta Lake, an act that is dangerous to the healthofthesaid David Hutor,Atsuand Etse COUNT 6 STATEMENTOF OFFENCE CAUSINGHARM: Contraryto section 69oftheCriminal OffencesAct, 1960(Act 29) PARTICULARSOF OFFENCE KWAME DAVOR AGE 45 YEARS, FISHERMAN, MARRIED; For that you in the year 2020at IssakaAkura near Yejiin theBono East Region and within the jurisdiction ofthis Court, did fail to supply necessaries of life to and to take David Hutor aged now 16 years who was under your care to a medical centre to receive medical treatment when mud mix fell into his left eye during the time you asked him to help you to build a mud house foryour second wife leading topermanent damage ofthe left eye. 5 CONVICTION ANDSENTENCEOF THE APPELLANTIN THECIRCUIT COURT TheAppellant was convicted on counts 1, 3, 4, 5 and 6 after a full trial.At page 24 of the record thetrial Judge statedas follows; BYCOURT; I have heard the mitigation plea of the 1st accused. I am also minded to consider the fact that A1 was always punctual in Court even though his place of abode is distant from Sunyani. Accordingly, A1 is sentenced to prison term of 5 years on count (sic) 1, 3, 4 and 6. On count 5 he issentenced to 2years inprison. All sentences shallrun concurrently. Further, A1 is ordered to compensate each of the children in the sum of Ghs 10,000.00. A2 who is presently at large is sentenced to a prison term of 8 years each on counts 1 and 2. All sentences torunconcurrently. GROUNDS OF APPEAL Feeling dissatisfied by his conviction and sentence and upon being granted leave for extension of time to file appeal on 28th May, 2024, the Appellant filed his petition of appealon5thJune, 2024.His groundsofappealare that; (a) The verdict cannot be supportedhaving regardto theevidence onrecord 6 (b) The trial Judge failed to adequately consider the evidence of the Appellant when he glossed overthe evidence oftheAppellant. (c) The sentence is harshin thecircumstance ofthematter. (d)That theconviction be set aside GROUND(A) Thattheverdict cannot besupported havingregard totheevidence onrecord Counselfor the Convict Appellant’s submissionon ground (A) Counsel for the Appellant argued in a written submission filed on behalf of the Appellant that from the facts and evidence on record there was no agreement between theAppellant andA2 to commit a criminal offence becauseA2 sent his son David Hutor to the Appellant for him to be brought up properly because of the absence of David’s mother and A2’s heart condition. That A2 took the above decision in consultation with his mother – in – law and the Appellant’s father. Counsel therefore argued that two personswere involved, theAppellant andA2 and they agreed together thatA2 will give his son toA1 and not for any criminal enterprise. Therefore, a charge of conspiracy was 7 not made against the Appellant and A2 for A1 to be convicted and sentenced for the offence of conspiracy. Explaining conspiracy, Counsel cited the case of Republic v. Baffoe Bonnie & Others (Suit No. CR/90/2017) (Unreported) dated 12 May 2020 by Kyei Baffour J.A which held that to establish conspiracy prosecution must prove that there were at least two or more persons, who agreed to act together for the sole purpose of committing a criminal offence. Counsel argued that although the Appellant and A2 agreed toact together,theydid nothavethe intent tocommit crime. Submissionof Counsel for the RepublicRespondenton ground (A) Counsel for the Republic argued that the conviction of the Appellant based on the evidence on record satisfied the standard of proof beyond reasonable doubt required in criminal cases. According to the Republic upon consideration of the entire record, it came to the conclusion that the conclusions reached by the trial Court were supported by the evidence adduced by the parties which are grounded in law. Counsel contends that the essence of conspiracy per section 23 of the Criminal Offences Act 1960 (Act 29) and the case of State v. Otchere [1963] 2 Ghana Law Report (GLR) 463, is the agreement, not the success or completion of the unlawful act. According to Counsel, the unlawful act in this instance is the trafficking of the victims contrary to section 2(1) of the Human Trafficking Act, 2005 (Act 694) as Amended by Act 784. Counsel noted that prosecution discharged its burden of proof that the Appellant and his accomplice acted together to transport the victim, David Hutor from Woe near Anloga in the Volta Region to Yeji in 8 the Bono East Region to engage him in fishing. Counsel argued with reference to the record that the victim, David Hutor, 13 years old was transported from his village in Woe to Issaka Akura into the Appellant’s custody to be engaged in fishing which is a criminaloffence. That the argument that the victim was placed in the custody of theAppellant for proper upbringing is merely an afterthought and Counsel prayed the Court not to entertain that assertion. Counsel argued that the evidence on record showed in accordance with section 2(1) of the Human Trafficking Act as amended that David Hutor, 13 years old and Atsu and Etse, 8 years old were transported from their villages and placed in the care oftheAppellant who engagedthemin fishing. The evidence onrecord also showed that the Appellant remitted David Hutor’s father periodically for the work done by the victim. According to Counsel, the Appellant engaged in the trafficking of the victims from their villages, Woe and Tegbi respectively to Issaka Akura and subjected them to exploitation by forcing them to engage in fishing and that the conduct of the Appellant aligns with the elements of section 2(1) of the Human Trafficking Act as amended. According to Counsel, there is no evidence on record to show that the victims were given to the Appellant for their proper care but for their exploitation to engage in fishing which involves physically demanding and dangerous tasks such as diving into the lake to retrieve fishing nets at their tender ages as minors which placed them at significant risk ofharm. 9 Counsel submitted that the Appellant apart from engaging David Hutor in fishing also engaged him in a project by constructing a house for his wife which falls under prohibited acts under section (4) of the Human Trafficking Act. Counsel contends that on a charge of exploitative labour, prosecution had to prove that the victims being children were subjected to exploitative labour and deprived of their health, education and development. With reference to sections 84 and 97 of the Children’s Act, 1998 (Act 560), Counsel argued that the evidence on record showed that the Appellant subjected the victims to exploitative labour, neglected their education and endangered their health and development. Counsel argued that when David got injured while working for the Appellant and mud entered his eyes, instead of the Appellant seeing to the health and well-being of the victim, he neglected the victim and caused damage to the victim’s eyes. Counsel therefore prayed the Court that prosecution proved beyond reasonable doubt that the Appellant engaged the children in human trafficking, prohibited acts and exploitative labour contrary to the Human Trafficking Act and the Children’s Act. That the trial Court rightly convicted the Appellant of the offence of conspiracy to commit human trafficking and that the conviction of the trial Court should not be disturbed because theverdict supportstheevidence onrecord. 10 BYCOURT; Appeal is by way of rehearing and there is a myriad of authorities on the subject. The case of Ackah v. Pergah Transport Limited [2010] Supreme Court of Ghana Law Report(SCGLR) 728@ 731holding (2)the Courtheld that; Even if the findings of the trial court were based solely on the demeanour and credibility of the witnesses, it was still the primary duty of an appellate court in respect of judgment based on findings of fact, to examine the record of proceedings in order to be satisfied that the said findings were supported by the evidence on the record. The Appellate court in so doing was in the same position as a trial court to make its own inferences from the established facts as an appeal was by way of rehearing. Inthecase ofThe Republicv. Bank of Ghana and 5Others Ex –Parte Benjamin DuffourCivil AppealNo. J4/34/2018(6thJune, 2018) theCourtstated asfollows; “Where an appellant contended that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that that was in fact so. The argument that an appeal is by way of rehearing and therefore the appellate court was entitled to make its own mind on the fact and draw inferences from them might be so, but an Appeal Court ought not under any circumstances interfere with findings of fact by the trial judge except where they are clearly shown to be wrong, or that the judge did not take all the circumstances and evidence into account, or had misapprehended some evidence or had drawn wrong inferences without any 11 evidence in support or had or had not taken proper advantage of having seen or heard in support of the witnesses”. Section 23ofthe Criminal Offences Act, 1960(Act 29)provides that; 23.Conspiracy (1) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits aconspiracyto commitor abet the criminal offence. The case of Republic v. Ernest Thompson & Others [2021] Ghana Supreme Court (GHASC) 169 (17 March 2021) the Supreme Court gave the new formulation of conspiracy asfollows; “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concertor deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence”. “In the new formulation, this court noted that the only ingredient that had been preserved is “the agreement to act to commit a specific crime, to commit or abet commission of that crime”. The effect of the new formulation of the offence of conspiracy as defined by this court is that the persons mustnot only agreeor act, butmustagreeto acttogether for acommon purpose”. 12 Before the trial Court convicted and sentenced the Appellant, it stated at pages 10 and 11ofthe judgment asfollows; At the close of prosecution’s case, the court determined that the prosecution had successfully established a prima facie case against the accused. Accordingly, accused persons were given opportunity to make their defence against the prosecution’s case. Accused testified and called witnesses to testify on his behalf to raise a reasonable doubt against the prosecution’s case. In all of the evidence the accused only sought to justify how he came to live with the children, and the fact that he had the consent of the parents of these victims to work with the children when they wereold enough. Hecontends that heremits the parents regularly. A1 testified and called witnesses. In his evidence he states that he had an agreement with the parents of the victims, and that he did not take the children on his own volition. That he did not intend to keep the children out of school deliberately, he remits the parents of the children monthly; and also sent the injured child to the pharmacy when he got injured in the eye. Section 1(4) of the Human TraffickingAct 2005provides that when childrenare trafficked, the consentof the child, parents or guardians of the child cannot be used as a defence in prosecution under this Act, regardless of whether or not there is evidence of abuse of power, fraud or deception on the part of the trafficker or whether the vulnerability of the child was taken advantage of. Based on the above provisions, the defence of an agreement does not inure to the benefit of A1 in this matter. 13 On the charges of using trafficked children, putting the children to harzardous labour and causing harm the (sic) A1 could not raise any reasonable doubt against the prosecution’s case. Onall the chargeslaid against the (sic)A1,he is unable to raise any reasonable doubt. At page 17 of the record, the Appellant noted that the children (victims) were living with him. The twins Atsu and Etse were working together and later Kwamevi Hutor (David Hutor) joined them in the fishing expedition. At Page 19 of the record, the Appellant stated that the mother of the children gave the children to him to stay with him and work and not to go to school. This clearly shows that the parents of the victims consented to the Appellant engaging their under aged children in fishing. The evidence shows that the twins and David engage in fishing with one other person making them four. As rightly held by my brother, the trial Court, the consent of the parents of the children for the children to live with the Appellant to be engaged in fishing does not constitute a defence under section 1 (4) of the Human Trafficking Act which provides that; “Where children are trafficked, the consent of the child, parent or guardian of the child cannot be used as a defence in prosecution under this Act, regardless of whether or not there is evidence of abuse of power, fraud or deception on the part of the trafficker or whether the vulnerability of the childwas taken advantage of”. It is useful to note that the offence of human trafficking has been proscribed and therefore any consent given in furtherance of the offence is void. The Appellant’s first 14 witness DW1 testified at page 20 of the record that the Appellant brought the children from their hometown to live with him for some time and to learn a trade. PW1 testified atpage (6) ofthe record and notedthat his fathercame topick himfromYejitolivewith the Appellant. He was taken to Issaka Akura and he was with the twins Atsu and Etse and they started fishing. His father did not inform him about why he was taking him to the Appellant but when he got to the Appellant, the Appellant told him that he would be fishing. He fished for the Appellant with the twins for six (6) years. Prosecution’s witness, PW2 testified at page (9) of the record that theAppellant came for him and his twin brother from their mother to send them to school but he instead took them to Yeji on the Volta Lake to engage in fishing. From the evidence of theAppellant and DW1 on one hand and the evidence of PW1 and PW2 on the other hand, it is clear that the Appellant got the victims with the consent of their parents; David Hutor with the consent ofhis father,A2andAtsuand Etse withthe consent oftheir mother,Dumevi. I have already noted above that such consent is void. Therefore, the element of agreement between the Appellant and the parents of the victims was established. The Appellant further stated that the children were givento him to work, not to go to school and he actually confirmed that Atsu and Etse were fishing with him before Kwamevi Hutor joined later. There is therefore no doubt that theAppellant and the parents of the victims knowing very well that the Appellant is a fisherman, gave their underaged children to him to engage the said children in fishing. Therefore, the elements of 15 conspiracy that is agreement by the parents of the victims and the Appellant to act together for a common purpose of engaging the under aged children at 13 and 8 years respectively in fishing was established by prosecution contrary to Counsel for the Appellant’s submission that the Appellant and parents of the victims had no intent to commit crime. They had the intention knowing that the children are under age and consenting to the Appellant to engage them in fishing. In the Court’s view, the conviction and sentence of the Appellant and A2 for conspiracy is supported by the evidence onrecord. The evidence on record did not support the Appellant’s claim that David Hutor was brought to him for proper upbringing. In the Court’s view proper upbringing of a child would include enrolling the child in school and providing the necessaries of health and life for the child. That even if the child was to assist a parent or guardian in his trade, it should not involve acts thatwould exploit the child and expose the child to danger such as diving into the lake to disentangle a fishing net and engaging in building projects leading to damage to the child’s eye. PW1 noted at page (7) of the record that during their fishing expeditionthey take alongametaltied toarope which is thrown into the lake to aid the fish to enter the net. When the net gets stuck in the lake, he dives into the lake to untie it. If he is unable to untie the net the Appellant beats him. The Appellant told him that he pays his father Ghs 500.00. He had an eye 16 problem while helping the Appellant’s wife to build their house. Mud entered his left eyeinthe processand whenhe complained to theAppellant he beats orscoldshim. The victims, PW1, testified that in one week, they go to fishing from Tuesdays to Sundays, threetimes a day; morning, afternoon and evening. PW2 stated that they goto fishing three or four times and sometimes they go in the afternoons and evenings. PW2 stated that they throw the net into the lake to catch the small fish. When they are unable to catch fish the Appellant abuses them that they are wizards. The investigator, PW3 testified at pages (13) to (16) of the record that upon receiving the complaint he proceeded to Issaka Akura, an overbank village near Yeji and met the victims, David Hutor, Atsu and Etse and rescued them. The Appellant admitted the offence in his investigation cautioned statement and said that the mother of the victims assisted him to traffic the twins to Issaka Akura and he got David Hutor from his father. Further investigations showed that A2 obtained Ghs 400.00 from A1 before giving his child to A1. His investigations showed that the victims go on the lake for fishing between 5am and 8am in the morning, 12 noon to 1:00pm in the afternoon and 5pm to 7pm in the evening. They onlyrest onMondays. In the light of the above, the Court holds the view that even if the aim of the father of David Hutor was for the Appellant to properly bring up David, the conduct of the Appellant defeated the said aim. The fact that the Appellant paid David’s father an amount of Ghs 500.00 defeats the purpose because it is not reasonable for a person who 17 is bringing up another person’s child properly to give money to the father of the child that he is bringing up properly. The reverse should rather be the case that the father of the child who is being brought up properly would rather support the Appellant with money among others. The Court is of the view that the Appellant and A2 agreed together that the victims be transported from their villages and be given to A1 for A1 to engage them in fishing and that the agreement between A1 and A2 to commit crime is evidenced by A1 paying money to A2 for the Victim’s services to him. The Conduct of A1 and A2 therefore fits into the definition of human trafficking in Section 1(1) of the Human Trafficking Act as amended by recruiting, transporting the victims from their villages, transferring and harbouring them and trading with them in fishing for six (6) yearsand giving paymentsofGhs 500.00toDavid Hutor’sfather. Section 4 of the Human Trafficking Act, 2005 (Act 694) as Amended by the Human Trafficking (Amendment)Act, 2009(Act784) provides that; Tobe concerned with an aspectof trafficking inthis Actmeans (a) To send to, take to, consent to the taking to or to receive at any place any person for the purposesof trafficking; or (b) Toenter into an agreement whether written or oral, to subject any party to the agreement or subjectany other person to trafficking 18 In the light of the above the Court holds a contrary view that the offence of conspiracy was made out against the Appellant and A2 and that the trial Court rightly convicted theAppellant for conspiracy. GROUND(B) The trial Judge failed to adequately consider the evidence of the Appellant when he glossedover theevidence oftheAppellant Counselfor the Appellant’s submission on ground(B) Counsel submitted that since the Appellant was not represented by Counsel, the trial Judge should haveadequately considered the evidence oftheAppellant and his witness. According to Counsel, evidence led by the Appellant on 19th October, 2022 was to the effect that the Appellant lived with the victims, Atsu and Etse when they were very young and he helped in circumcising them. His mother bathed one of them and his step mother bathed the other. On 22nd November, 2023, DW1 led evidence that the children lived with the Appellant for a considerable number of years before they started fishing which means that the Appellant lived with the children as their guardian / uncle and that the Appellant did not deliberately exploit the children. According to Counsel the trial Judge failed to consider the fact that the victims had been with the Appellant from their childhood and they were in his care but not for purposes of exploitation. That the 19 trial Judge would have reached a different conclusion if he had taken the family ties betweenthe victims and theAppellant into consideration. Submissionof Counsel for the Republicon ground (B) Counsel for the Republic argued that theAppellant’s claim that the children were given to him by their parents for their proper upbringing would not inure to his benefit because there is no evidence on record regarding his proper upbringing of the children. Also, the Appellant’s attempt to dispute the ages of the children will also not inure to his benefit because the evidence on record shows that the children were young when he engaged them in fishing. Counsel noted that the Appellant testified at page (18) of the record that the children were young when they were brought to him. His witness DW1 also testified that the victims wereveryyoung when theywere broughtto theAppellant and that it was the Appellant who had them circumcised. There is therefore no doubt about the tender ages of the children as confirmed by the Appellant’s own witness, DW1. BYCOURT; From the record the Appellant testified on 19th October, 2022 from pages (17) to (20) of the record. He stated that the parents of the children gave the children to him. Before 20 David Hutor came to him the twins were already with him. The twins were four (4) years when they were first brought to him but Kwame was a bit older when he was brought to him and he had the twins circumcised. His mother bathed one and his step mother bathed the other. The children remained with him for a while before they startedfishing and that he has beenfishing withthe children for three (3) years when he was arrested, not six (6) years as stated by the children. Kwame Hutor fished with him for three (3) years six (6) months before he was arrested. The twins were four (4) years old when they were brought to him. He lived with them for six (6) years before he startedfishing withthem. That he started fishing with the twins when they were ten (10) years old. According to the Appellant, the children do not dive into the lake because that is for adults and that they only scoop water that enters the canoe and throw it back into the sea. He claimed that when the mud entered David’s eye, he was sent to the pharmacy twice. He noted that he did not send the twins to school because their mother gave them to him to work not to go to school. He has two daughters but they do not engage in fishing because they are girls and that girls are not engaged in fishing. He claims he does not benefit financially from the labour of the victims. The evidence of the Appellant as rightly found by the trial Court did not raise any reasonable doubt in prosecution’s case. He admittedthat he engaged thetwins infishing when theywereten(10) yearsold. Bylaw, 21 a child below eighteen (18) years is not supposed to be engaged in exploitative labour. Section 87ofthe Children’sAct1998(Act 560)statesthat; “(1)A personshall notengage a child in exploitative labour. (2)Labour isexploitative of achildif itdeprives the childof its health, educationor development”. From the evidence of the Appellant he did not enroll the children in school because their parents said they should live with him to work. In the light of the above law, the Appellant exploited the children because he did not enroll them in school. The record also shows that after the Appellant engaged David Hutor in the construction of their house and mud fell into David’s eye, he did not consider it important to seek proper medical attention for David but said that David was taken to the pharmacy two (2) times. The Court holds the view that the eye being a very delicate organ of the human body, treating it at the pharmacy was not enough and that the Appellant should have taken the child to a specialist to treat the eye. His failure to do so caused damage to the eye of the child. The Appellant therefore exploited the children in the light of section 87 of the Children’s Act quoted supra. The record shows that the Appellant engaged the twins in apprenticeship at ten years and David Hutor at thirteen (13) years and both ages fall below the minimum of fifteen (15) years for a child to commence apprenticeship after completion of basic education. The record shows that the children 22 were not enrolled in school by the Appellant which violates section 98 of the Children’s Act asfollows; ThisAct applies tochildapprentices inthe informal sector. 98.Minimum age forapprentices “The minimum age at which a child may commence an apprenticeship with a craftsman is fifteen years or after completion of basic education”. It is useful to add that the engagement of children in fishing is considered as hazardous labour in section91ofthe Children’s Act, 1998(Act 560)whichprovides asfollows; 91.Minimum age forhazardousemployment “(1)The minimum age for the engagementof aperson inhazardous work is eighteenyears. (2)Work is hazardous when itposes a dangerto the health, safety or morals of a person. (3)Hazardous work includes (a)going tosea, (b)mining and quarrying, (c)porterage of heavy loads, 23 (d)manufacturing industries where chemicalsare producedor used, (e)work in placeswhere machinesare used,and (f)work inplaces suchas bars, hotels and places of entertainmentwherea person may be exposed toimmoral behaviour”. Furthermore, by engaging David in the construction of the Appellant’s house which caused damage to David’s left eye and the Appellant’s failure to seek specialist care for the victim’s eye which caused the left eye of the victim to be damaged, the Appellant cannot be held for causing harm because he did not intentionally cause harm to David’s eye but he omitted to prevent the harm and to treat David’s eye properly when he sustained the injury while working for him. The Appellant therefore failed in his duty of care over David who was in his custody by not providing him with the necessaries of health and life including proper medical treatment for his eye. The Appellant therefore violated section78ofthe Criminal Offences Act,1960Act 29which provides that; 78.Duty to preventharm to another person Aperson isunder aduty for preventing harm to another person (a) ifthe firstmentionedperson is under a duty,as mentioned insection 79,to supply aperson with the necessaries of health and life; 24 In the light of the above, the Court holds the view that the trial Court adequately considered theAppellant’s evidence on record before arriving at its decision contrary to Counsel for theAppellant’s claim that he did not.Although the Court acknowledges the fact that the victims lived with theAppellant for considerable number of years as noted by Counselfor theAppellant, theCourtholdsacontrary view that the Appellant deliberately exploited the victims by engaging them in fishing at their tender ages of ten (10) years in respect of the twins and thirteen years in respect of David Hutor which is contrary to law as discussed above. In the circumstance, the trial Court was not obliged to consider any family ties between the Appellant and the victims. For the foregoing reasons, I hereby conclude that the trial Judge did not gloss over the evidence of the Appellant but it adequately considered the evidence of the Appellant before it convicted the Appellantand imposeda sentence of five (5)years imprisonmenton him. GROUND(C) Thatthesentence is harsh in thecircumstance ofthematter Counselfor the Appellant’s submission on ground(C) Counsel argued that the rationale for considering mitigating factors in sentencing is to avoid too harsh or too lenient sentence. The trial Judge would arrive at a fair sentence by considering not only the circumstances of the offence but also the specific 25 circumstances of the offender. Counsel cited the case of Yakubu Salifu v. The Republic [2015] Judy Electronic Law Report (JELR) 63899 (High Court) and the case of Obeng Gyebi vs. The Republic [2021] JELR 109033 Supreme Court Suit No. J3/02/2021 both cases held to the effect that trial Courts must consider mitigating factors in sentencing accused persons rather than ignore such factors. Taking into consideration mitigating factorsamountsto properexercise ofthe Court’s discretion ratherthanignoring them. If mitigating factors are ignored it opens the flood gates for the Appellate Court to interferewiththe sentence. According to Counsel, the Appellant did not waste the Court’s time by pleading guilty to the charges except that his explanation disclosed a defence and based on that the trial Judge entered a plea of not guilty for him. The Appellant lived in Yeji and the trial was held in Sunyanibut theAppellant attended Courtonalladjournments without delaying the trial while A2 absconded. According to Counsel, special circumstances in this case are that theAppellant did not have a guilty mind and he received the victims and lived with them from birth which said victims are his family members. The Appellant was a first offender which the Court should have considered because there is no evidence on record regarding previous conviction of the Appellant. With reference to the case of Frimpong alias Iboman vs. The Republic [2012] 1 Supreme Court of Ghana Law Report (SCGLR) 297 the Court held to the effect that a first offender must be given a second 26 chance especially when the applicable law provides for a minimum sentence to be imposed. Submissionof Counsel for the Republicon ground (C) Counsel submitted that the sentence imposed on the Appellant are in accordance with law and that the sentences imposed on counts three (3) and four (4) are minimum sentences prescribed by statute. Therefore, the Court has no discretion to impose a lesser sentence. That the sentence imposed on A1 is neither harsh nor excessive but is commensurate with the offence committed and the law. Counsel prayed the Court to uphold the sentence of the trial Court. That the appeal should be denied in its entirety because it is devoid ofmerit. BYCOURT; Insentencing theAppellant, the trialCourtstated asfollows; I have heard the mitigation plea of the 1st accused. I am also minded to consider the fact that A1 was always punctual in Court even though his place of abode is distant from Sunyani. Accordingly, A1 is sentenced to prison term of 5 years on count 1, 3, 4 and 6. On count 5 he is sentenced to2years inprison.All sentences shall runconcurrently. Further,A1 isordered tocompensate each of the childrenin the sumof Ghs 10,000.00. Section 1ofAct 694asamended statesasfollows; 27 “Human trafficking means the recruitment, transportation, transfer, harbouring, trading or receiptof personsfor the purpose of exploitation within and acrossnational borders by (a)the use of threats, force, or other forms of coercion, abduction, fraud, deception, abuse of power or exploitation of vulnerability (b)giving or receiving payments and benefitsto achieve consent” Section 2(1), (2) and (3) of the Human Trafficking Act, 2005 (Act 694) provides as follows; Prohibition of trafficking “2(1) A person shall not traffic another person within the meaning of section 1 or act as intermediaryfor the trafficking of aperson. (2)A personwho contravenes subsection (1) commitsan offenceand is liable on summary convictiontoimprisonment fora term of notless than five years. (3) For the purposes of this section, an intermediary is someone who participates in or is concerned with any aspect of trafficking under this Act who may or may not be known to the familyof the trafficked person”. In the Court’s view, the sentence imposed on the Appellant by the trial Court is not harsh because that is the minimum sentence for the offence. With reference to the case of Frimpong alias Iboman vs. The Republic [2012] 1 SCGLR 297 Counsel for the 28 Appellant argued that the Court held in that case to the effect that a first offender must be given a second chance especially when the applicable law provides for a minimum sentence to be imposed. It is instructive to note that the same Frimpong alias Iboman vs. The Republic [2012] 1 SCGLR 297 held that when a minimum sentence is imposed for an offence it would not inure to the benefit of a first offender because the Court cannot impose a sentence below the minimum sentence. In this case the minimum sentence in section2(2) and (4) ofAct 694is fiveyearsand for that matterthe Courtcannot impose a minimumsentence belowfiveyears. Counsel contends that the trial Court did not consider the special circumstances related to the offence under section (7) of the Human Trafficking Act, 2005 (Act 694) which makes room for a sentence lesser than the minimum sentence of five years if the minimumsentence appearstobe harsh Section 7ofthe Human Trafficking Act, 2005(Act 694)provides that; “Where a Court in sentencing a person convicted under section 3 or 4 finds that special circumstances related to the offence or the offender, and that the imposition of the minimum sentence in respect of the offence is harsh, it may sentence the accused to a lesser term of imprisonmentinaddition to afineof not lessthan fivehundredpenalty units”. It is important to state that this section applies to offenders who are charged under sections (3) and (4). Since the Appellant was charged under sections (2) and (4) of the 29 Act and not on sections (3) and (4) or section (4) alone, in the Court’s considered view, section (7) is not applicable to him. Furthermore, considering the fact that theAppellant was charged with three counts of human trafficking the Court does not find it reasonable toconsider him under section(7)oftheAct. In the circumstance the Court hereby affirms the conviction and sentence of the Appellant by the trial Court to five (5) years imprisonment on counts 1, 3, 4 and 6 and two (2) years imprisonmenton count(5). Allthe sentencesto runconcurrently. Further, A1 is ordered to compensate each of the children in the sum of Ten Thousand Ghana Cedis(Ghs 10,000.00). GROUND(D) Thattheconvictionbeset aside Counsel for the Appellant prayed the Court that since the verdict is not supported by the charge the Court may set it aside. That the trial Judge erred by concluding that the prosecution established the elements of conspiracy to commit crime to wit human trafficking, exploitative labour and causing harm. Counsel prayed the Court to overturn the conviction of the Appellant and acquit and discharge him in the light of the above. Counsel for the Republic submitted that ground (D) is not a proper ground of appeal but rather a form of relief the Applicant may seek. Counsel therefore did not address/discussthis ground. 30 BYCOURT; The Court holds the view that since the Court affirmed the conviction and sentence of theAppellant, ground (D) doesnot arise for the Court’sconsideration. CONCLUSION In the light of the foregoing the conviction and sentence of the Appellant by the Circuit Court, Sunyani presided over by His Honour Sylvester Nii Okine Ablorh is hereby affirmed. Consequently,the appealfails initsentirety and same is herebydismissed. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 6TH MAY2025 31