LORD PHIDELIS SAKAH (APPELLANT) vs. THE REPUBLIC (RESPONDENT) [2019]DLCA7766

Date	2019-02-07
Suit No.	SUIT NO H2/6/2018
Citation No.	[2019]DLCA7766

ADJEI JA (PRESIDING)

TORKORNOO JA

GAISIE JA

EFFA DEDE ESQ. FOR THE APPELLANT

MATHEW AMPONSAH (CSA) WITH HIM AWERE OPANYINYENA SSA FOR THE REPUBLIC RESPONDENT

[2019]DLCA7766
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													<main id="main" class="content" style="min-height: 60rem" >LORD PHIDELIS SAKAH<o:p></o:p>(APPELLANT)<o:p></o:p><span lang="EN-US" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL, ACCRA]<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">

SUIT
NO H2/6/2018&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 27TH FEBRUARY,
2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EFFA
DEDE ESQ. 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">

MATHEW
AMPONSAH (CSA) WITH HIM AWERE OPANYINYENA SSA FOR THE REPUBLIC RESPONDENT <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:0cm 0cm 1.0pt 0cm">

ADJEI
JA (PRESIDING), TORKORNOO JA, GAISIE JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>ADJEI,
J.A:<o:p></o:p>The
Appellant was tried by the Circuit Court, Tema on a charge of&nbsp; defilement of a child contrary to section
101(1) of the Criminal Offences Act, 1960 (Act 29).&nbsp; The trial Circuit Court convicted the
Appellant on 18th November, 2011 and sentenced him to the maximum
prison term of twenty-five years. The Appellant, dissatisfied with the
conviction and sentence imposed on him, sought the leave of the High Court to
appeal against same. The High Court dismissed the appeal against conviction and
granted the&nbsp; appeal against sentence&nbsp; in part. The High Court set&nbsp; aside&nbsp;
the twenty-five&nbsp; years term of
imprisonment&nbsp; imposed on the&nbsp; Appellant and&nbsp;
substituted&nbsp; it for fifteen
years&nbsp; in hard labour. The Appellant, dissatisfied
with the judgment of the&nbsp; High Court,
appealed to this Court against both the conviction and sentence.<o:p></o:p>The
Appellant, who was self-represented, filed the ground of appeal to this Court
and the Court shall look at the substance of the appeal rather than form in
order not to perpetuate injustice against the Appellant. The combined effect of
the grounds of appeal against conviction are that the Appellant was denied the
right to cross examine the medical officer who examined the victim, the two
gentlemen who arrested him for having defiled the victim, and the two other friends
of the victim;&nbsp; and secondly, &nbsp;that the judgment&nbsp; is unreasonable and&nbsp; cannot be supported having regard&nbsp; to the evidence&nbsp; on record. The Appellant in ground (b) which
has been numbered as (i), (ii), (iii), (iv), and (v) &nbsp;appeals against the sentence and makes a plea
in mitigation of the sentence.<o:p></o:p>The brief
facts of the case were that the Appellant introduced himself to the victim, Eva
Otoo, a twelve year old class three pupil of Baatsona Primary School, located
off the Spintex road, as a teacher of the same primary school. However, the
Appellant was then unemployed and not a teacher. The Appellant took the victim
to an uncompleted storey building within the&nbsp;
school’s&nbsp; vicinity&nbsp; and sexually abused her on a table. The
Appellant put the victim on&nbsp; the table, covered
her face and&nbsp; mouth with his
handkerchief, and tied the handkerchief at the back of her head. He raised her
up, raised her school uniform, removed her pants, and sexually abused her. The
Appellant abused the victim a second time and she became scared of him. He made
an attempt to abuse her a third time but the friends of the victim alerted&nbsp; two gentlemen&nbsp;
who caused the arrest&nbsp; of the
Appellant&nbsp; in the said&nbsp; uncompleted storey building.<o:p></o:p><o:p>&nbsp;</o:p>The
victim, her mother, and a police woman who investigated the matter testified
for the prosecution. The Appellant also testified and was cross examined. It is
against the conviction by the Circuit Court, affirmed by the High Court, which
the Appellant is seeking to set aside.<o:p></o:p>We
address the first part of the ground of appeal which is an appeal against conviction
on the basis of a denial of the right to a hearing. The Appellant alleges that
he was not given the opportunity to cross examine the medical officer who
examined the victim. The medical report issued by the Medical Officer was
tendered as exhibit ‘c” without any objection.<o:p></o:p>The
Appellant throughout the trial did not inform the trial&nbsp; Circuit Court to&nbsp; summon the Medical Officer to attend
Court&nbsp; to give evidence. Section 58 of
the Courts Act, 1993 (Act 459)&nbsp; clothes Judges
and&nbsp; Magistrates &nbsp;either on their own motion or on the
application of a party to summon&nbsp; a
person to attend court to give evidence or to produce a document in his/her
possession. It provides thus:<o:p></o:p>“In
proceedings, and at any stage&nbsp; of the proceedings,
a court , either </main>