Agbanu Vrs the Republic (CC22/01/2024) [2024] GHAHC 243 (15 May 2024)

IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON WEDNESDAY, THE 15TH DAY OF MAY, 2024 BEFORE HIS LORDSHIP JUSTICE DANIEL MENSAH, ESQ., JUSTICEOF THE HIGHCOURT. ========================================================= SUITNO: CC22/01/2024 THOMAS KOFI AGBANU = APPELLANT VS THEREPUBLIC = RESPONDENT ========================================================= PARTIES: APPELLANTINLAWFUL CUSTODY COUNSEL: MR. LORD AGBAVOR, ESQ., HOLDING BRIEFFOR MR. SENANU AFAGBEFORAPPELLANT – PRESENT. ========================================================= JUDGMENT The present appeal filed by the appellant is against his conviction and sentenced by theCircuit Court,Sogakope dated 8thDecember, 2022. In the said judgment the appellant who had been charged with defilement contrary to section 101 of Act 29(60) had been found guilty, convicted and sentenced to seven (7)yearsin hardlabour. It is against the said conviction and sentence that the present appeal has been filed onbehalf ofthe appellant. Both Counsel for the appellant and the republic agree that the conviction and sentence of the appellant cannot stand due to the absence of a critical element of the charge. That relatestothe absence ofcarnalknowledge ofthevictim by the appellant. I have taken pains to read the entirety of the record of appeal vis a vis the submissionby bothcounsel and Iam in complete agreement withthem. The only evidence on that score was Exhibit “A” being the Medical Report issued by theMedical Doctoronthe victim. ~ 1 ~ The said Medical Form did not in any way link the appellant to the commission of the offence. What the said Medical Form establishes is the fact that the hymen of the victim was not intact. But aside that one could not say for a fact that the victim had been carnally known by the appellant. In fact, anybody could have broken the hymen. Itis in this vein thatin my view theappeal succeeds. I would set aside the judgement of the Circuit Court and in its place come to the conclusionthatthe appellant is notguilty oftheoffence. In that regard, the evidence on record do not support the conviction. I would set aside the said conviction and order the immediate release of the appellant from custody. Order to be served on the prison authorities where the appellant is being held for their necessarycompliance. [SGD] H/LJUSTICE DANIELMENSAH JUSTICEOF THE HIGH COURT. ~ 2 ~