ARTHUR vs. THE REPUBLIC [1976]DLHC358

Date	1976-04-14
Suit No.
Citation No.	[1976]DLHC358

SARKODEE J.

DAWSON FOR THE APPELLANT.

MRS. ALBERTA OTOO FOR THE REPUBLIC.

[1976]DLHC358
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													<main id="main" class="content" style="min-height: 60rem" >ARTHUR <o:p></o:p>vs.<o:p></o:p>&nbsp;THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, SEKONDI]<o:p></o:p>[1976] 2 GLR 250<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
14 APRIL 1976.<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">

DAWSON 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">

SARKODEE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>In this
appeal against the judgment of the District Court Grade I, Tarkwa, the accused
then aged 22 years was convicted of the charge of assault on a girl and was
sentenced to eighteen months’ imprisonment with hard labour.<o:p></o:p><o:p>&nbsp;</o:p>Beatrice
Cudjoe, a dental nurse, lived with her daughter then aged three years at the
hospital quarters, Tarkwa. The accused, a co-tenant, used to visit the house of
Beatrice Cudjoe and play with her and her daughter. At about 12.30 p.m. on 30
October 1975, Beatrice was at the dental clinic with her daughter when the
accused went to her and with the knowledge of Beatrice took the child away. The
accused returned the child to her mother at about 12.45 p.m. just when Beatrice
had closed from work and was about to go home. She immediately went home with
her daughter. Soon after they had reached home the child told her mother she
would go to the toilet. The mother gave her a chamber pot on which she sat; she
then called her mother and told her she was bleeding from the anus. Her mother
examined her and found blood in her pants; she saw blood oozing out of her
vagina. The mother asked the child what had happened to her and she answered:
“That the accused had inserted his finger into her vagina and that accused had
promised her toffee if she would not tell me of that.” The mother immediately
took the child to the hospital and at 1.30 pm. the doctor took the child to the
theatre repaired a broken hymen and treated a contusion of the outer entrance
of the urinal tract; the outer part of which was swollen and bulging. He then
admitted the child for five days. Immediately after the treatment at the
theatre the mother reported the case to the police who then arrested and
charged the accused.<o:p></o:p>Three
main grounds of appeal were argued, namely:<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">“(1) The
evidence of the case does not support the offence charged.<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">&nbsp;(2) The learned trial magistrate erred in
admitting the evidence of the first prosecution witness and relying on it
solely to convict the accused. <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">(3) The
sentence of eighteen months’ imprisonment with hard labour is excessive.”<o:p></o:p><o:p>&nbsp;</o:p>In
support of the first ground learned counsel for the appellant submitted that in
an assault charge the substitution of the name of the person alleged to have
been assaulted by a different name makes the charge bad, and that this is so
fundamental as to throw out the charge. Learned counsel went on, it is not a
mere technicality and cannot be cured by evidence. He concluded that on that
ground alone the accused ought to have been acquitted and discharged.<o:p></o:p>I think
it will be useful to set out the charge in full:<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">“The
Republic v. Thomas Assuah Arthur Statement of Offence: Assault contrary to
section 84 of Act 29/60. PARTICULARS OF OFFENCE:<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">Thomas
Assuah Arthur: auto mechanic: For that you on 30 October 1975, at Hospital
Quarters, Tarkwa in the jurisdiction of this court, did assault one Beatrice
Cudjoe without lawful excuse. (Sgd.) Inspector E. Agbovi Prosecuting Officer.”<o:p></o:p>