EBENEZER HAVOR VRS THE REPUBLIC (d16/07/2019) [2024] GHAHC 404 (16 October 2024)

1 16-10-2024 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD AT NKAWKAW - EASTERN REGION ON TUESDAY THE 16TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE. ------------------------------------------------------------------------- SUIT NO. D16/07/2019 EBENEZER HAVOR VERSUS THE REPUBLIC ----------------------------------------------------------------------------------------- PARTIES Appellant absent. LEGAL REPRESENTATION Zennaira Adum Atta Esq. for the Respondent present Francis Osei Nsiah Esq. for Appellant absent. ----------------------------------------------------------------------------------------- JUDGEMENT ----------------------------------------------------------------------------------------- This is an appeal launched by the appellant herein, against the Judgment of the Circuit Court, Mpraeso in the Eastern Region delivered on the 171h day October 2018 and presided over by her Honour Mariam S. Sinare [as she then was]. The charge upon which the appellant was convicted and sentenced was defilement contrary to Section 101 [1] of the Criminal Offences Act 1960; (Act 29). The appellant pleaded guilty to the charge of defilement on the day of trial. The trial Judge, accordingly, convicted him on his own plea and sentenced him to 7 years 2 imprisonment in hard labour. The appellant, obviously being dissatisfied and aggrieved with the judgment has exercised his right of appeal to this court on the following grounds: GROUNDS OF APPEAL 1. The judgement cannot be supported having regard to the evidence on record, The Honorable Circuit Court Judge erred when he convicted the accused/ Appellant. 2. The whole trial, conviction and sentence was wrong in law 3. Additional grounds will be added upon receipt of full record of proceedings. RELIEFS SOUGHT FROM THE COURT i] The conviction and sentence imposed on the Appellant be quashed ii] In the alternative the sentence be reduced and commuted to a fine. It should be noted that, Counsel for the Appellant did not file any Additional grounds of Appeal. SUMMARY OF FACTS Complainant Richard Adiekor is a miner residing at Takoradi in the Western Region. Victim aged 14 is a class six pupil of Blessing Primary School, Sempoa and a younger sister of the complainant living with their mother who sells kenkey at Sempoa. Appellant aged 19 is an Okada rider residing in the same vicinity with the victim. On 22/6/2018 about 9:30am, victim was going round in Sempoa town selling her mother‟s kenkey. The Appellant then took advantage of the situation and lured her into his room and had sexual intercourse with her. After a month later, victim began to fall sick and was taken to Sempoa Health Centre for treatment and examination. The victim got pregnant. Initially, she denied but latter accepted and mentioned the appellant‟s name as the one who had sexual intercourse with her. The complainant was informed 3 on phone about victim‟s condition and he rushed down and on 29/9/18, a case of defilement was lodged at Abetifi DOVVSU. Police medical report form was received indicating that victim was sexually assaulted. Appellant was arrested and after necessary investigation, he was charged and arraigned before court. As already noted, the Appellant pleaded Guilty at the court below and was sentenced to 7 years IHL. The Appellant was granted bail by this court differently constituted on the 17/2/21. It should be noted that at the Appellate court, counsel for the Appellant filed a motion to adduce fresh evidence which Application was granted by this court differently constituted on the 11/1/21. However, even though counsel filed an affidavit dated 25/7/23 sworn by the father of the victim, he did not avail the said deponent to be cross- examined even though respondent put in a request to cross examine him. On the 26/7/23 the court made an order for a witness statement to be filed by the victim‟s father [deponent] to enable him to be heard yet the order was flouted. SUBMISSION OF COUNSEL FOR THE APPELLANT: Counsel filed his written submission 3/7/2021 before this court differently constituted and once there is no other written submission on record, I presume that this is what the Appellant is relying on for this Appeal. A] In his written submission Counsel contended that, the father of the victim deposed in an Affidavit that the victim was 16 years at the time of the incident and that the investigator did not verify the age of the victim from the parents. B] Counsel argued that since the victim is 16 years, the charge of Defilement against the Appellant was and is not sustainable. That the ingredients of the offence of defilement were absent and cannot be supported by section 101 of Act 29 /60. 4 Counsel relied on the case of Ampah Vrs. The Republic [1976] 1 GLR 403 and argued further that, when the essential element or ingredients of an offence is/are not proved to the satisfaction of the court, the court is bound to acquit and discharge the Appellant . Counsel contended that, the Age of the Victim was not proved and that the trial court overlooked a very important requirement which would have sustained the offence, which is the age of the victim. SUBMISSION OF COUNSEL FOR THE REPUBLIC FILED ON 19/6/23: A] Learned Counsel argued that in an Application to lead fresh Evidence the 1st criteria which an applicant is to establish was whether the evidence sought to be adduced was neither in possession of the Applicant or was not obtainable by the exercise of reasonable diligence or human ingenuity before impugned decision was given by the lower court. Counsel referred to POKU VRS. POKU [20072008] 2 SCGLR pg. 996. According to Respondent, the information of the age of the victim has at all material times been in possession of the Appellant or the father of the victim at the time of the trial. B] Counsel argued that, the appellant did not exhibit NHIS Card, birth certificate, weighing card, or any information from the school Register of the victim to buttress his case. C] Counsel further argued that the father of the victim could have attached relevant documents to his Affidavit to prove the age of the victim but this did not happen. She concluded that, the judgment of the lower court should not be disturbed. The Apex court in Ghana has stated in a plethora of respected decisions that, an appeal is by way of rehearing. See the case of Tuakwa V. Bosom, [2001-2002] SCGLR 66. 5 Since this is an appeal against conviction of the appellant by the Circuit Court, Ayinam, this court in the exercise of its appellate jurisdiction is required to rehear the appeal by analyzing the facts and evidence and come to a conclusion supported by the evidence on record and the law to affirm or quash the decision of the trial court. By way of relief, the appellant is seeking the conviction and the sentence to be quashed. It should be noted that, counsel for the Appellant abandoned Ground 3. This is because, no argument was proffered in respect of sentence, see Adams Addy and Another Vrs. Solomon Mintah Ackaah [j4/19/2021] [2021] unreported SC 14th April 2021] Kulendi JSC. In law the Appeal against sentence is deemed abandoned. Again, no additional grounds of Appeal was filed as postulated by counsel in the Petition of Appeal. After perusing the Petition of Appeal, charge sheet and the written submissions filed by both Counsel for the appellant and the Respondent, one main issue ought to be tabled for consideration which in my view will also assist the court to determine the argued ground of Appeal which is against Conviction. SOLE ISSUE FOR DETERMINATION: Whether the conviction and subsequent sentence of the Appellant is unreasonable and wrong in law and cannot be supported having regard to the evidence on record. By way of refreshing our minds, it is necessary that I reproduce what the offence creating section states. Section 101 [2] of the Criminal Offences Act, Act 29 as amended states: “DEFILEMENT OF A CHILD UNDER 16 YEARS OF AGE 6 [1] For the purposes of this Act defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age. [2] Whoever naturally or unnaturally carnally knows any child under sixteen of age either with or without the consent of the child commits a criminal offence and is liable on summary conviction to a term of imprisonment not less than seven years and not more than twenty-five years.” The gravamen of the appellant‟s appeal hinges on the main issue; whether the conviction and subsequent sentence of the appellant is unreasonable and cannot be supported having regard to the evidence on record. I must reiterate that, when a petition is filed and the appellant set the omnibus ground of appeal that the judgement cannot be supported by the evidence on record, then it is an invitation to the appellate court to look at the entire record of appeal to find out whether the conviction and subsequent sentence of the trial Judge are justified in law. See: • Eunice Adu v. The Republic [2023] Suit No. H2/17/2021 Delivered on 19th January, 2023 CA. • Nkrumah v. Attaa [1972] 2 GLR 13 CA. • Apaloo v. Republic [1975] 1 GLR 156. • Amankwah v. Republic (4 of 2016) [2021] GHASC 88 (21 July 2021). I will now proceed to deal with ground (i) (ii) of the Petition of Appeal together as counsel for appellant did in his submission under the sole issue set for determination by the court. I must state again that as an Appellant Court, I am seized with jurisdiction to consider the entire record of appeal to do justice in the matter once there is an apparent error of law or miscarriage of justice to prevent travesty of justice. 7 The record of appeal in this Appeal is quite brief and I wish to reproduce it as below: The charge sheet contains the following: STATEMENT OF OFFENCE DEFILEMENT; CONTRARY TO SECTION 101 (2) OF THE CRIMINAL OFFENCES ACT 1960 (29) PARTICULARS OF OFFENCE: HAVOR EBENEZER: UNEMPLOYED, AGED 19: On the 22nd day of June, 2018 about 9:30am at Sempoa-Kwahu in the Eastern Circuit and within the jurisdiction of this court, did have carnal knowledge of Mary Agbemenya aged 14. The facts of the case as read by prosecution has already been summed up elsewhere in this judgement. The Appellant pleaded guilty on the 11th day of October 2018 before Her Honour Miriam S. Sinare [as she then was] on one count of Defilement. On record, Counsel for the Appellant prayed for the court to grant his Client bail after he had Pleaded guilty but the trial court went ahead to convict and sentenced him in the following words. “By Court- The accused person is convicted on his own plea. He is sentenced to 7 years IHL”. „ It should be noted that this High court differently constituted in his own wisdom granted the convict/Appellant bail pending the Appeal. ADDRESSING THE ISSUE. Whether the conviction and sentence of the Appellant is unreasonable and wrong in law and cannot be supported having regard to the evidence on record. 8 In arguing out the two grounds of Appeal which were encapsulated into the sole issue above, counsel for the Appellant made it clear that per the record, the prosecution was unable to prove the essential element in the offence of defilement that is the age of the victim which is wrong in law and a travesty of justice. Counsel continued his argument by stating that the father of the victim attested to the age of the victim to be 16 years at the time of the commission of the offence. Counsel for the Republic disagreed with him and instead professed that, it was incumbent on the Appellant or his counsel and the father of the victim to attach prove of the age of the victim in the form of Birth certificate, weighing card but that did not happen. Respondent noted that the Appellant pleaded Guilty to the Offence of Defilement and so there was nothing to prove. I wish to add that a plea of guilty is a judicial confession to having committed the offence which precludes the necessity for a trial or proof of the charge by the prosecution. This is also the position held by the learned jurist S. A. Brobbey in his book, Practice and Procedure in the Trial Courts & Tribunals of Ghana 2nd Ed. pg 76. In the same book, the learned author JSC [retired] Brobbey indicated in page 79 para. 168 that, “where the conviction on a charge is condition upon another charge, caution should be exercised in convicting and particularly in sentencing an offender who pleads guilty on the former charge for such conviction and sentence may sometimes lead to an absurd judicial process else, there will be a gross miscarriage of justice.” In the case of Fiozo Vrs. The State [1965] GLR 28, the court in clear terms stated and held that, “although an appellant may have pleaded guilty, an appellant tribunal could entertain and hear an appeal against conviction if the records showed the following: 1] That the appellant who was not represented at the trial did not understand or appreciate the nature of the charge or charges, and did not intend to admit that he was guilty. 9 2] That upon the admitted facts he could not in law have been convicted of the office charged.” In the case before the court which is defilement, what is the position of the law? Section 101[1] states; “Defilement is the natural or unnatural carnal knowledge of a child under 16 years of age. [2] A person who naturally or unnaturally carnally knows a child under 16 years of age, whether with or without her consent, commits a criminal offence and is liable on summary conviction to a term imprisonment of not less than 7 years and not more than 25 years.” With the above, there is no doubt that age is a crucial ingredient in the offence or a charge of Defilement. Similarly, when age of the victim is a crucial ingredient that ought to be established in a charge like defilement, the court ought to be circumspect, else the defect will occasion miscarriage of justice, see the case of Akowuah vrs. Commissioner of Police [1964] GLR 475 SC. In fact, after the Appellant had pleaded guilty to the offence, minded that age is an essential element in an offence such as Defilement , it was incumbent on the learned trial judge to invite the Prosecution to satisfy the court with the relevant evidence of the age of the victim . Perusing through the record especially the facts of the case as read in the court below, prosecution did not state the date of birth of the victim, it was just the age of the victim which was stated as 14 years. Therefore, the trial judge had a primary duty to inquire into the date of birth of the victim before conviction. This could have been done by requesting the prosecution to satisfy him with the requisite information in respect of the age. This is because the 10 initial burden of proof rested on the prosecution, see the case of Asante vrs the Republic [2008]15 GMJ Pg. 81 @ 86-87. The Apex court has stated severally that our courts are not only courts of law but of also of justice. Therefore, our court must shun mechanical application of the law but rather purposive approach in other to achieve effective justice. See the case of Frimpong v. Nyarko [1998-99] SCGLR 734 at 747 and Mozama Disco Christo Church vrs. Jehu Appiah [ 2010] 27 MLRG 56 at 77. In the case of Homenya vrs. The Republic [1992] 2 GLR 305 Acquah J [as he then was] held that “the first and mandatory duty of the trial judge in a criminal trial is to examine the case of the prosecution to determine whether the prosecution had established all the essential ingredients of the charge against the accused person.” The supreme court held in the case of Kamaru Vrs. Paul Boateng [2022]176 G.M.J, the various circumstances where the Supreme Court will interfere with decisions of the lower appellate court one of which is “Where from the record of Appeal the findings of fact by the trial court are clearly not supported by evidence on record and the reasons in support of the findings are unsatisfactory” The Respondent in her argument in this appeal attempted to put the burden of proof on the Appellant and his counsel as well as the victim‟s father. I am however of the opinion that the Prosecution who had the initial burden of proof should have sought for an assistance from the victim‟s father to prove the ingredient of the offence before conviction. I have noted the defects in the Appellant case on the abduction of evidence such as the victim‟s father‟s failure to attach relevant documents to proof the age of the victim and his inability to make himself available for cross-examination. However, irrespective of the above challenges, justice will not be properly served if this court is to put the onus of proof of the age of the victim on the Appellant at this stage. This is because, the accused has nothing to prove at the trial but to raise doubt. 11 The prosecution who bore the burden of proof at the trial court must have established the age before the conviction of the Appellant. His failure to establish same is detrimental to the case of the prosecution and the Appellant is not in a position to assist them. From the above discussion, I hereby uphold all the two grounds of appeal (ground 1 and 2) which were discussed together. This is because, the date of birth of the victim was not established at the trial court and same led to travesty of justice. I therefore set aside the conviction and sentence imposed by the court below but since the Victim father per his affidavit in this Appeal seems to be in agreement with the Appellant on the victim’s age to be 16 years at the time of incident, I will not order for a retrial, Appeal succeeds. The appellant is to be released unconditionally. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE