The Republic Vrs Seglah & Another [2023] GHACC 131 (27 June 2023)

IN THE CIRCUIT COURT HELD AT KPANDO ON TUESDAY 27TH DAY OF JUNE 2023, BEFORE HIS HONOUR FRANCIS ASONG OBUAJO ESQ., THE CIRCUIT COURT JUDGE. ================================================== SUTI NO. CC/16/2023 THE REPUBLIC VRS 1. SEGLAH KOMLA 2. EDO KOFI HLORKA ACCUSED PERSONS PRESENT IN CPOURT THE PROSECUTOR D/INSPT. HENRY ODOI DOKU PRESENT. JUDGMENT First accused person was brought to this court charged with abetment of a crime to wit defilement of child contrary to section 20 (1) and 101 of the criminal offences of 1960, Act 29. The Second accused person was charged with defilement of girl contrary to section 101 of Act 29. Both of them pleaded not guilty to their respective offences charged. The brief summary of the facts from the prosecution states that, the complainant Victoria Kporha age 48 and the daughter victim Forgive Edo Sosu of 14 years of age in class six at Torkor E. P. Primary School. The victim and the mother live in the same house with A2 while A1 is a toilet attendant and friend to A2. A2 sent his love proposal to the victim through A1 and she agreed to same. A2 since the acceptance Page 1 of 16 of her proposal has been giving Five Ghana Cedis (GHȼ 5.00) to the victim daily for her upkeep. On the1 8/08/2022, the victim visited her maternal grandmother at the road side near Torkor Harbour. A1 approach her and told her A2 wanted to meet her at his place. The victim then rushed to the public toilet and met A1’s wife Ame Wegbe. A few minutes later both A1 and A2 arrived. A1 then offered A2 one of the single rooms attached to the toilet where A2 and the victim spent the night and A2 had multiple sexual intercourse with the victim. A2 on the next day left the victim under the care of A1 and the wife. On the 20/08/22 at about 7:00am A2 gave GHȼ35.00 at the victim through the wife of A1to travel to her father at Aframplains Madagaster when he realized that victim’s parents were looking for her. It was while the victim was in the canoe about to set off that someone inform her elder brother who came to pick her back to the house. On the 21/08/22 at about 12:00am A2 met the victim outside while she went to urinate, told her to follow him to A1’s place with her dress and she obliged but after calling A1 on his phone to open the gate for them on getting there. A2 left the victim there and went away. The victim went to sleep in a wooden kiosk close to the public toilet where she was found by her parents at about 2:00 am and she mentioned A1 and A2 as those attending to her. For their not guilty plea, the prosecution has taken upon themselves the onus of leading credible evidence to prove the elements of the offences charged beyond reasonable doubt to secure their conviction at the trial as required under section 11 (2) and 13 (1) of the Evidence act, 1975 (NRCD 323). It was held in the case DOMENA VRS COMMISSIONER OF POLICE (1964) GLR 563 at 568 SC that: … “Our law is that by bringing a person before a court on criminal charge, the prosecution takes upon themselves the onus of proving all the elements which constitue the offence, to establish the guilt of accused beyond reasonable doubt and Page 2 of 16 that onus never shifts. There is no onus on accused person except in a special cases where the statute creature the offence so provides” At the trial, the prosecution called four (4) witnesses who gave evidence against the accused persons. The evidence of PW1 Victoria Kporha a 43-year-old trader of Kpando Torkor under oath is that, the victim was a 14-year-old girl who lives with her in the same compound with A2 who is a fisherman. A1 is a public latrine attendant at Torkor Harbor and a friend of A2. She added that she got home at about 2:00pm form prayers on the 18/08/2022 and her landlord informed her that the victim left the house at early hours of the day and has not returned. She did not find the victim for three days. So on the 20/08/2022, she caused announcement to be made at the center of Torkor and started looking for the victim form house to house. Adding further that she went to A1’s working place to search for her but A1 and wife said to her they did not know the whereabouts of the victim. That same morning at about 7:00am a neighbour spotted the victim in Agbenyuifiamor’s canoe ready to cross the river to go to her biological father at Aframplains and contacted her. PW1 then informed Bless Kumashie who rushed there and brought the victim home. It was there the victim disclosed to her how she was indoors with A2 at A1’s single room attached to the public latrine he offered to A2 and he has sexual intercourse with her on multiple occasion. PW1 went on to state that at about 2:00 am on 21/08/2022 she woke up and saw the victim was not on her bed and PW1’s mobile phone could not be found. She and the Husband and the victim’s uncle went straight to A1’s place at the public latrine and upon getting there, they called her mobile phone and at belled in one of the single rooms A1 offered A2 and the victim. They later found the victim and A2 sleeping on bare floor in a wooden kiosk but A2 managed and escaped. With the help of one Eric A1 was apprehended there as he Page 3 of 16 came to open the gate for them. The victim side bag containing her dress were retrieved. They then came home and got A2 arrested and handed over to Kpando police station. Police medical form was given to her to take the victim to hospital and the doctor informed PW1 that the victim had been defiled with abnormal creamy discharge at the introitus. A2 admitted the offence in his cross examination of PW1. Evidence of PW2 the victim Forgive Mommy Do Sosu under oath, was beside her mother PW1 said she know the two accused persons and live in the same house with A2 at Kpando Torkor. She tendered her witness statement into evidence which is similar to that of PW1 that she is a 14 years old pupil of class six. PW2 said a week prior to leaving home, A2 sent A1 to extend his love proposal to her which she accepted. A2 initially gave her GHȼ35.00 and subsequent gave her GHȼ5.00 on daily basis. About 2:00pm on the 18/08/2022 she visited her grandmother who sells Kenkey at the road side near the Torkor Harbour. A1 approached her and said A2 wanted her at A1’s working place at the Public Latrine and she obliged. PW2 added that she met A1’s wife without A1 and she asked her to wait for A1 and A2. Few minutes time A1 and A2 arrived and A1 offered them a single room attached to the toilet where they both spent the night and A2 had sexual intercourse with her on multiple counts. She spent three days with A1 and the wife for which A2 came to have sexual intercourse with her during the day but never spent the night with her. On the 20/08/2022 at about 7:00am, A2 gave GHȼ35.00 to A1’s wife to send her to her father Mr. Sosu at Aframplains and was in a Madagaster boat about to take off before her senior brother Bless Kumashie came to take her back home and she narrated what happened between her and A2 to her mother. PW2 further stated that at about 12:00am of 21/08/2022 she came out to urinate and met A2 who asked her to go for her dress and purse and go with him to A1’s place Page 4 of 16 and she obliged and A1opened the gate for them on getting there at the phone call of A2 to him. After A2 took her purse dress, and her mother’s mobile phone she carried into the single room. A2 came for her to sleep in nearby woodern kiosk in front of A1’s public latrine. At about 2:00am same night, PW1, PW3, her step father Atsigbe Adika and Fo Edo came to find her and A2 sleeping in the Kiosk but A2 managed and escaped. One Eric, a Community Police at Torkor was contacted and he came to the scene to arrest A1, but in the process of closing the gate A1 scaled the wall at the back of the and took his heels but was captured after a chase. A2 was also arrested in his house and were handed over to the police. Police medical form was given to them to attend hospital which they did and was examined by DR. Sebuabe at Marquart hospital. During cross examination A2 admitted he had sexual intercourse with PW2. PW3 Bless Kumashie a welder at Kpando Torkor tendered his witness statement into evidence, which evidence is very closed and similar in form and content with that of PW1 and PW2 and I will rely on those evidence and not reproduce same evidence here. The investigator D/PW/INSPT. LILIAN AMA SIMPINEY-ADRI tended her witness statement into evidence as PW4. She told this court that accused persons were referred to her for investigation on the offence of defiling the victim. On the same day 21/08/2022, police medical form was issued to the complainant send the victim PW2 to the hospital for examination and treatment. The endorsed medical form from Margaret Marquart Hospital in Kpando by DR. Sebuabe who examined her shows the victim had been defiled with abnormal creamy discharged in the vagina. PW4 added that she visited the crime scene at the single room apartment attached to the public latrine at the Harbour where A1 offered A2 and PW2 for three days. And he had sexual intercourse with PW2 on multiple occasions. She took Page 5 of 16 photograph of the crime scene for evidential purposes. She took caution and charge statement from the accused persons. PW4 tended the caution statements of A1 and A2 into evidence without objections as exhibits A and A1 respectively. Charged statements of A1 and A2 admitted into evidence as exhibits B and B1 in that order without objection. Endorsed police medical form of PW2 admitted into evidence as exhibit C, while the National Health Insurance Scheme (NHIS) of PW2 admitted into evidence as exhibit D to establish the age of the victim. A2 did not cross examine PW4 when allowed to do so. After the prosecution closed her case on PW4, accused persons were called upon to open their defense as prima facie case had been made over the elements of the offences charged against them. DEFFENCE OF THE ACCUSED PERSONS A1, after they were educated on their right in opening their defense and the implications of each, elected to make a statement from the accused box. A1 said he did not offer any room to A2 to have sexual intercourse with PW2. A2 gave evidence under oath that it was A1 who proposed love to PW2 for him. After that, it was A1 who called on phone one evening that PW2 had come to his place so he should come and he obliged. A1 then offered them one room and he slept in the same with PW2. He added that he woke up early the next day went for fishing. It was then A1 asked him of the victim and he told A1 the victim said she will not go until the market day. It was on the market day when the victim was leaving that they were arrested at down and handed over to the police. During cross examination from the prosecutor A2 admitted that he spent three (3) days with PW2 in the room A1 offered them and knew that PW2’s parent were Page 6 of 16 looking for her. A2 equally admitted he had sexual intercourse PW2 only twice for the said 3 days. Accused persons did not call any witnesses in their defense as they closed their cases. Exhibited A taken on the 21/08/2022. A1 admitted that A2 is his friend but denied that A2 brought PW2 to his place of work to spent 3 days where he has sexual intercourse with PW2. A1 denied knowing A2 or ever seeing her anywhere until the day of his arrest. However, his further statement to the police on same day, A1 said on Thursday 18/08/2022 at about 7:00 pm A2 came to him at the latrine with PW2 to request for a room as PW2 is the girlfriend, as they live in the same house he could not have sexual intercourse with there due to the presence of her parents and he obliged. A2 and PW2 stayed there till Sunday 20/08/2022 when he asked them to go home. While PW2 was lodging in the room he offered them A2 comes to visit PW2 each day and spent long hours with her. Exhibit A1 caution statement of A2 taken on the 21/08/2022. Says he lives in the same compound with PW1 and PW2 and PW2 accepted his love proposal to her. So he gave her GHȼ5.00 on two occasions but could not have sexual intercourse with her. A2 took PW2 to A1’s place at the public latrine and introduced her to A1. On the 18/08/2022 at about 10:00am A1 called him to say PW2 had visited him at the public latrine at Torkor Harbour so he should come. At about 4:00pm he went for to bath and returned to A1’s place and he offered them one of the single rooms. At about 11:00pm he had sexual intercourse with PW2 and left her under the care of A1 and went home. On the 19/08/2022, he went again to have sexual intercourse with the victim. On the 20/08/2022, he went to PW2 at A1’s place and told A1 to tell PW2 to go home as the Page 7 of 16 parents were looking for her. PW2 left A1’s place at about 12:00pm on board a canoe to go to Aframplains where she was arrested by PW1 and took her home. Exhibit ‘C’, endorsed police medical form from Dr. Sebuabe of Margaret Marquart Catholic Hospital Kpando on the 22/08/2022 upon examination of victim’s vagina with speculum shows a creamy discharge at the introitus. (Vagina), No vaginal wall laceration or abrasion seen. Had her menstruation (period) a week earlier before examination, Exhibit “D” NHIS card of PW2 shows her date of birth as 02/07/2008, issued on the 18/10/2022. THE LAW Section 20 (1), (2) and (3) of Criminal Offense Act, Act 29/60 under which A1 has been changed provides: “(1) A person who, directly or indirectly instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilitates, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offense by any other person, whether known or unknown, certain or uncertain commits the criminal offense of abetting that criminal offense and of abetting the other person in respect of that criminal offense. (2) A person who abets a criminal offense shall, if the criminal offense is actually committed in pursuance of, or during the continuance of the abetment, be deemed to have committed that criminal offense. (3) A person who, abets a criminal offense is, if the criminal offense is not actually committed, Page 8 of 16 (a) liable to imprisonment for life where the criminal offense abetted was punishable by death, and (b) in any other case the abettor is punishable in the same manner as if the criminal offense had been actually committed in pursuance of the abetment” It was held in the case of COMMISIONNER OF POLICE VRS SARPEY AND NYEMEKYE [1961] GLR 756-760 at 758 SC that: “In order to convict a person of aiding and abetting, it is incumbent on the prosecution to prove that accused did any one of the acts mentioned in subsection (2) of section 20. Under subsection (2) a person who abets a crime shall be guilty if the crime is actually committed; (a) in pursuance of abetment, that is to say before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say the abetment must be contemporaneous in place, time and circumstance with the commission of the offense. In my view, an act constituting on abetment in law must precede or it must be done at the very time when the offense is committed”. With the above provision and principles of the law as espoused in the decided case, the prosecution lead evidence to show that accused person herein actually aided and abetted the other person (A2) to either commence and or complete the commission of the crime in issue. Page 9 of 16 The evidence of the victim (PW2) which was corroborated by A2 of the hearing was that it was A1 who proposed love to PW2 for A2 which PW2 accepted. Another evidence of PW2 that was corroborated by A2 was that on the 18/08/2022 she visited her grandmother who sells Kenkey at the Torkor Harbour and A1 approached her and invited her to the public latrine where he worked that A2 wanted to see her and she obliged but met only the wife A1 there who told her to wait for A1 who came in later with A2. On this part A2 said it was A1 who called him on phone that PW2 had come to his workplace so he should come and he obliged. Both A2 and PW2 gave evidence that it was A1 who offered them one of the single rooms attached to the public latrine where they lodged in and A2 had sexual intercourse with PW2. Section 7 (1) of Evidence Act 1975 (NRCD 323) on corroboration provides; “(1) Corroboration consist of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defense.” In the case of THE REPUBLIC VRS YEBOAH [1968] GLR 248 holding 1 that: “The evidence of victim on oath in law needed no corroboration but it was prudent rule of practice to work for corroboration from some extraneous evidence which confirmed her evidence in some particular, implicating the accused. Apart from the fact that the evidence of a victim in sexual offense must be corroborated, there was the added fact that the victim was a young person… the evidence of a young person must as a rule of prudence be well corroborated before being acted upon by the Court.” It is my candid opinion, the evidence of PW2 has been well corroborated by A2 on this material fact that A1 actively aided A2 in proposing love to PW2. It was the same A1 that personally called PW2 to his work place at the public latrine before inviting A2 over and went ahead and offered them a room where A2 had sexual Page 10 of 16 intercourse with PW2. I hereby find as a fact that A1 was actively instrumental in proposing love to PW2 on behalf of A2 and at a later date on the 18/08/2022 was able to lure PW2 into his work place at the public latrine, called A2 who was then busy preparing food for his fishing. A2 came over to A1’s place to have sexual intercourse with PW2 and kept her under the care and match of A1. It is there my final finding that the prosecution have established beyond reasonable doubt that A1 aided and abetted this act which action preceded the sexual intercourse and was contemporaneous in, place, time and circumstance with the commission of the act on PW2. On the evidence on A1 at the trial, I attach no weight to same and reject it as he gave conflicting evidence on exhibit A. He denied knowing PW2 and never offered any room to A2 and PW2 to have sexual intercourse. He later confessed partly to knowing PW2 and that A2 came to request for a room at his work place with PW2 as his girlfriend and he obliged them. It is my finding on the evidence from PW2, A1 and A2 that, PW2 was never forced into this act from the commencement to the time she was taken to A1’s place of work where she was kept for three days while A2 had multiple sexual intercourse with her. It is also in evidence that even after PW2 was taken home after spending three days with A2 in A1’s work place, PW2 in the night of 21/08/2022 followed A2 out to A1’s work place. This acts of PW2 shows she was willing and interested in the sexual intercourse that was taking place with her. It is therefore my conclusion that the prosecution has established the guilt of A1 over the charge brought against him. A1 will be convicted on this offense on condition that the victim was under 16 years old at the time of the carnal knowledge. Section 101 of Act 29/60 provides: Page 11 of 16 (1) For the purpose of this Act, defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age. (2) A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offense and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty-five years” It was held in GLIGAH AND ATISO VRS THE REPUBLIC [2010] SC GLR at 870 at 876 per DOTSE JSC that: “carnal knowledge” is the penetration of a woman’s vagina by a man’s penis in irrespective of the degree of penetration. The evidence of carnal knowledge is explained under section 99 of Act 29 that carnal knowledge or unnatural carnal knowledge is complete on proof of the least degree of penetration”. Black’s Law Dictionary (9th Ed) at page 241 defines “carnal knowledge” as sexual intercourse especially with an underage female. From the foregoing, the elements of this offence which the prosecution must lead credible evidence to proof beyond reasonable doubt are: (a) (b) That someone had sexual intercourse with the victim (PW2) That the accused person herein (A2) who had the said sexual intercourse with the victim (c) That at the time of the said sexual intercourse with PW2, she was below the age of sixteen years. The evidence of the victim (PW2) was that A2 had sexual intercourse with her for the three days that she spent with A2 in the single room A1 provided for them from the 18th to 20th August 2022. This evidence was not challenged by A2. On his Page 12 of 16 part A2 admitted under cross examination in his defense that he had carnal knowledge of the victim on those three days stated by PW2. This evidence at the trial constitute an admission that A2 in fact had carnal knowledge of PW2. Prior to this evidence at the hearing, A2 in exhibit A1 his caution statement taken on the 21/8/22 had made extra-judicial confession that he had carnal knowledge of the victim. Also the endorsed police medical form as in exhibit ‘C’ equally lend credence to the fact that same sexual activities had taken place as a finding from the examination of PW2’s vagina. It is my candid view that the prosecution has led evidences at the hearing beyond the confession statement made by A2 in exhibit A1 as required. It was held in the case of the STATE VRS OWUSU AND ANOTHER [1967] GLR 114-121 that: “an extra judicial confession by an accused person that a crime had been committed by him did not necessarily absolve the persecution of its duty to establish that a crime had actually been committed by the accused. It was desirable to have, outside the confession, some evidence, be it slight of circumstances which made it probable that the confession was true”. It is my candid view that beyond exhibit A1 that constitute extra-Judicial confession from A2 that he had carnal knowledge of PW2 the evidence adduced by the prosecution at the hearing is sufficient corroboration which confirmed that A2 truly had carnal knowledge of PW2 on the said dates. To this end is my finding of fact that A2 as at the 18th to the 20th August 2022 lodged into a single room that A1 provided at Torkor Harbour with PW2 and had multiple sexual intercourse her. One of the elements of the offence that is left to be proven is how old was PW2 at the time A2 had carnal knowledge of her. At the hearing all the prosecution witnesses mention the age of the victim as Fourteen (14) years at the time A2 had Page 13 of 16 sexual intercourse with her from the 18th to 20th August 2022. PW1 PW3 and PW4 all stated the age of PW2 as 14 years at the time of the incident and that she was a class six pupil at Torkor E. P Primary School. PW4 tendered the NHIS of PW2 into evidence as exhibit D to proof the date of birth of PW2. Exhibit D issued on the 18/10/22 captured PW2 date of birth as 02/07/2008 that makes the victim barely 14 years six weeks old at the time of the incident. A close reading of exhibit ‘D’ shows that same was issued on the 18/10/22 barely two (2) months after A2 had sexual intercourse with the victim. By these it creates a certain doubt that the date of birth as stated on exhibit D has been deliberately skewed by the complainant and the prosecution after the incident to put PW2’s age within the legal age required with the use of NHIS herein. It is contained in exhibit ‘C’ the endorsed medical form that PW2 ended her menstrual period a week prior to the sexual intercourse. That piece of information is highly indicative of the fact that she is not that type of a young girl that can easily be taken to be under sixteen years. Per her physical development. At the hearing, PW2 appeared to be physically grown up that will make it difficult to presume her to be under 16 years of age. This observation of PW2 equally leaves room for her age to be properly proven than the exhibit ‘D’ provided by the prosecution. The prosecution could have used the birth certificate, baptismal card, the weighing card and even the school admission record of the victim to establish the age of the victim rather that Exhibit ‘D’ tendered in evidence. On that basis as a foregoing with regard to the date of issuance of exhibit ‘D’, two months after this incident same could not be used and relied upon as proof of her age. I therefore reject exhibit ‘D’ as proof of PW2’s age. My refusal to presume that the victim is under 16 years of age also stems from how the victim who appeared in Court on the 24/1/2023 barely five (5) months after the incident was physically grown and all physical features such as the breast appears to be fully developed. One cannot Page 14 of 16 conclusively presume that the victim was 14 years of age at the time of the incident, as she could be 14 years at the time and also be sixteen 16 years. Notwithstanding the fact that A2 did not challenge the age of the victim as adduced by the prosecution having rejected exhibit ‘D’ therefore, it was left with the bare assertion of the victim’s age as 14 years could not constitute prove of same. See T. K. SERBEH AND CO. LTD VRS MENSAH (2005-2006) SC GLR 341 at 360. In the case of MANTEY AND ANOTHER VRS THE STATE [1965] GLR 229-234 it was held at holding 2 that: “Where there are inconsistencies and conflicts in the evidence at a criminal trial the trial judge must explain in detail how he reached his findings of fact and not rely merely on the demeanour of the accused. Where facts of an accused’s conduct are capable of both innocent and criminal interpretations, a court is bound to take the innocent interpretation unless there is some definite evidence or circumstance which completely exclude that interpretation” In line with the principle of law espoused in this case of which I have already explained how in the absence of a better documentary evidence to prove the age of the victim, the conduct of A2 per the facts are capable of both innocent and criminal interpretations I hereby take the innocent interpretation for A2. It is therefore my candid view that the prosecution failed to prove the age of PW2 which is a necessary requirement in this offense. I hereby found A2 not guilty as charged. A2 is therefore acquitted and discharged on this offence. I can only sympathize with the poor victim for the way she was abducted from the parents on the dates of the incident, under which provision accused persons could have successfully prosecuted. A2 having been acquitted on the substantive offence of defilement upon which A1 was charged for aiding and abetting as considered earlier, he equally in my candid Page 15 of 16 view stand to benefit from the innocent interpretation that A2’s conduct was subjected to. I hereby found A1 on that basis not guilty over the offence of Abetting A2 in defiling PW2. A1 is equally acquitted and discharged. SGD. FRANCIS ASONG OBUAJO CIRCUIT COURT JUDGE. 27/6/2023 Page 16 of 16