KWAME OFORI ALIAS KOOLEGE vs. THE REPUBLIC [2010]DLHC8251

Date	2010-03-01
Suit No.	COURT CASE NO. D16\|23\|10
Citation No.	[2010]DLHC8251

HIS LORDSHIP JUSTICE JACOB B. BOON

WILLIAM KUSI FOR THE APPELLANT

ANITA WAASE FOR THE REPUBLIC

[2010]DLHC8251
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													<main id="main" class="content" style="min-height: 60rem" >KWAME OFORI
ALIAS KOOLEGE<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

COURT
CASE NO. D16|23|10&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
1ST MARCH, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>WILLIAM
KUSI FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

ANITA
WAASE FOR THE REPUBLIC&nbsp; <o:p></o:p>

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The accused
person, hereinafter called the appellant, is a forty – four year old taxi
driver, and a resident of Aboabo Kese New Town. He was convicted on a charge of
defiling a fourteen year old female contrary to section 101(2) of the Criminal
and Other offences Act, 1960 (Act 29) and sentenced to a prison term of
thirteen years by a Kumasi circuit court presided over by His Honour R.M.
Kogyapwah.<o:p></o:p><o:p>&nbsp;</o:p>The appellant is
aggrieved by the conviction and sentence and has, thus, appealed to this court
for redress. His counsel has urged the court to set the conviction aside
because in his opinion section 199 (2) of the Criminal and Other Offences (procedure)
Act, 1960 (Act 30) was not complied with by the trial judge, or in the
alternative, the thirteen year prison term slapped on the appellant be reduced
to the minimum allowed by the law, that is, seven years.<o:p></o:p><o:p>&nbsp;</o:p>At the trial
court, the appellant, who was unrepresented, pleaded guilty with explanation. The
court then adjourned the case for ruling on the explanation of the appellant at
the next adjourned date, but directed the prosecutor to ensure that complainant
and the victim were present in court at the next adjourned date. For avoidance
of doubt, the complainant is an aunt of the victim.<o:p></o:p><o:p>&nbsp;</o:p>At the adjourned
date, the trial court ruled that the explanation of the appellant did not
amount to a defence of the charge of defilement. Accordingly, he was convicted
and the sentence now under attack imposed on him.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the
appellant, Mr. William Kusi, argued three main grounds at the hearing of this
appeal. One of the grounds was the age of the victim. He contended that the age
of the victim was not established at the trial court, and he was of the opinion
that as in a charge of defilement, age of the female allegedly defiled, was
vital, failure by the prosecution to clearly establish the age must be fatal to
its case. In the instant case, the age of the victim was stated on the charge
sheet to be fourteen years. In presenting the facts at the trial court, the
prosecution indicated that in the course of its investigations, a medical
officer was consulted to help determine the age of the victim because the
complainant could not produce her birth certificate. According to the
prosecution, the medical officer at Komfo Anokye Teaching Hospital was of the
opinion that the victim is between fourteen and fifteen years old. Mr. William
Kusi, agued that the opinion of the medical officer was not supported by any
document, and he therefore urged the court to hold that the prosecution failed
to prove the age of the victim.<o:p></o:p><o:p>&nbsp;</o:p>In response to
this argument, Miss Anita Waase for the prosecution contended that the age of
the victim was not in issue at the trial court. In her opinion, the charge read
to the appellant contained the age of the victim and the age of fourteen years stated
therein was within the confines of the law of defilement as provided in Act 29
of 1960. She argued that the appellant did not challenge this age, and it
should be held that he accepted the age as presented by the prosecution.<o:p></o:p><o:p>&nbsp;</o:p>I do agree with
the prosecution that the age of the victim was not in contention at the trial
court. It is true that the facts as presented by the prosecution at the trial
circuit court indicated that a medical officer at Komfo Anokye Teaching
Hospital was contacted for his opinion on the age of the victim. This was in the
course of police investigations before the appellant was arraigned. At the
trial, the charge sheet indicated the age of the victim to be fourteen. The
charge was read and explained to the appellant before his plea of guilty with
explanation was recorded. Thereafter, the facts of the case were presented to
th</main>