DONKOR vs. THE REPUBLIC [1974]DLHC2274

Date	1974-08-23
Suit No.
Citation No.	[1974]DLHC2274

EDWARD WIREDU J.

AMPIAH FOR THE APPELLANT.

DAWSON ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1974]DLHC2274
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">DONKOR <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">THE REPUBLIC <o:p></o:p>[HIGH COURT, CAPE
COAST]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 2 GLR 254<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
23 AUGUST 1974.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMPIAH FOR
THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>The
appellant aged about eighteen years became pregnant by one Gariba Sadick who
according to her had been her boy friend for two years prior to the date of her
arrest. The evidence is not clear as to the date of her conception but the
undisputed facts however show that there was some interference with the
pregnancy on the instructions of the said Gariba as a result of which on 16
November 1973, the appellant aborted and the baby was found in a public
latrine. Following a report made to the police not long after the appellant had
left the public latrine, she was traced to a friend’s house where she was
arrested and taken first to the Cape Coast District Police Station in a
semi-conscious state and later to the Cape Coast General Hospital where the
placenta was removed. Police investigations show that they were contemplating
preferring charges against Gariba for being responsible for the abortion but
events turned against the appellant who on 4 February 1974, was arraigned
before the Cape Coast District Court Grade I charged with the offence of
concealment of the body of a child under section 62 of the Criminal Code, 1960
(Act 29).<o:p></o:p><o:p>&nbsp;</o:p>The
particulars of offence brought against the appellant read as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Salamatu
Donkor: unemployed. For that you on 16 November 1973, at Ashanti Road, Cape
Coast in the central magisterial district and within the jurisdiction of this
court, did conceal the body of a still-born baby which you delivered by
throwing it into a pit latrine with the intent to conceal the fact of its
birth.”<o:p></o:p><o:p>&nbsp;</o:p>In the
court below the prosecution presented no evidence beyond the following: (a)
that the appellant was pregnant, (b) that she was delivered of a baby, (c) that
the baby was later found abandoned in a public latrine and (d) that the
appellant was later traced to the house of a friend in a semi-conscious state
where she was arrested. The appellant in the court below did not deny any of
the facts testified by the prosecution as stated above but explained that on
the day of the incident she went to the latrine when something dropped from her
after which she started bleeding. She became frightened so she decided to walk
to a friend’s house with a view to informing her of what had happened and that
she was waiting for the friend who was then in the house when she started
feeling pains and was dizzy. She did not see anything again until she later
found herself in the hospital.<o:p></o:p><o:p>&nbsp;</o:p>The trial
learned magistrate on these facts, found her guilty of the offence, convicted
her and sentenced her to a term of six months’ imprisonment with hard labour.
It is from this decision that the present appeal has been brought to this court
on three main grounds, namely: (1) that the judgment cannot be supported by the
evidence adduced in court; (2) that the learned magistrate failed to consider
the defence adequately; and (3) that the sentence is harsh and inconceivable
having regard to the circumstances of the case. Even though Mr. Ampiah, counsel
for the appellant, had a great deal to complain about the facts as found by the
trial learned magistrate, his main complaint as was submitted on the first two
grounds which were argued together was that the trial magistrate had erred in
calling on the appellant to put up her defence after the close of the
prosecution’s case when the evidence at that stage fell short of a prima facie
case.<o:p></o:p><o:p>&nbsp;</o:p>In
developing his arguments on this point learned counsel submitt</main>