|
Criminal
law - Conviction and
sentence - Attempted rape -
Expert evidence - Acquitted and
discharged -Criminal and other
Offences Act, 1960 (Act 29) -
Failure of the prosecution to
call a vital witness - Whether
or not the prosecution has
proved the accused persons
guilt, beyond reasonable doubt.
HEADNOTES
The
appellant was at all times
material to the cause of events
giving rise to his arraignment
before the High Court, Wa, on
one count of rape contrary to
section 97 of the Criminal and
other Offences Act, 1960 (Act
29) a teacher at the Kanton
Senior High School at Tumu in
the Upper West Region. In that
capacity the appellant on the 28th
day of July, 2009 requested the
complainant and victim of the
rape charge Rashida Kanton
Ibrahim, a student of the same
school to come to his apartment
for some pullovers which the
appellant claimed he had seized
from the students earlier at an
entertainment programme in his
capacity as the entertainment
master of the school. These
pullovers also included one
seized from the complainant and
the appellant therefore invited
the complainant to follow him to
his apartment for her pullover
and the others at about 9.00 am
on the said 28/7/2009. The
complainant later alleged that
the appellant had raped her and
asked her to wash herself before
they returned to school. From
the evidence on record, the
appellant informed one of her
friends called Kashifa, also a
student of the same school about
the said rape incident. But
surprisingly, this student and
friend was never called as a
witness. Eventually, the
complainant informed her parents
in the evening of the same day,
following which a report was
made to the Headmaster of the
school. As the appellant denied
the rape charge allegations
before the Headmaster and the
parents of the victim at the
school, a report was made to the
Police as a result of which the
appellant was arraigned and
tried summarily before the High
Court, Wa, on one count of rape,
Feeling dissatisfied and
aggrieved with the decision of
the High Court, the appellant
unsuccessfully appealed against
the High Court decision
HELD :-
if as in this case, the lower
court embarks upon an
interpretative role which is
likely to have far reaching
consequences such as has
happened in this case, i.e.
having an effect on the system
of trial the appellant must
have, which is summary or
indictable, reference must be
made to the Supreme Court. Under
the circumstance, this court,
pursuant to sections 31 (1) (a)
and (b) of the Courts Act, 1993
(Act 459) hereby allows the
appeal by the appellant against
the judgment of the Court of
Appeal dated 28th
February 2013. Accordingly the
conviction and sentence of the
appellant by the Court of Appeal
of even date is set aside on the
following grounds:
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Criminal and other
Offences Act, 1960 (Act 29)
1992 Constitution.
Constitution 1969
Criminal procedure
Act 30
Agyekum v Boadi [2000]
SCGLR 282,
Electoral Commission Act,
1993 (Act 451)
CASES REFERRED TO IN JUDGMENT
Frimpong @ Iboman v Republic
[2012] 1 SCGLR 297
Gligah&Anr. v The Republic
[2010] SCGLR 870
Amartey v The State [1964] GLR
256 S.C
Darko v The Republic [1968] GLR
203
Sasu v White Cross Insurance
Company Limited [1960] GLR 4.
Republic V
Maikaikan [1971] 2 GLR 473
Republic
v Maikankan and others, [1971] 2
GLR 473 SC
Republic
v Asiamah [1971] 2 GLR 478 SC
Gligah&Anr.v
The Republic [2010] SCGLR 870
Sasu v
White Cross Insurance Co. Ltd.
[1960] GLR 4,
Oppong v Attorney-General
[2003-2004] 1 SCGLR 376 per
Bamford AddoJSC
Republic v Special
Tribunal Ex-parte Akosah [1980]
GLR 592 C.A
Republic v High Court,
Accra , Ex-parte
Attorney-General, Balkan Energy
& Others – Interested Parties
[2012] 2 SCGLR
Republic v Maikankan &
Others [1971] 2 GLR 473
Republic v High Court
(Fast Track Division) Accra,
Ex-parte Electoral Commission
(Mettle Nunoo & others –
Interested Parties ) [2005-2006]
SCGLR 514
Republic
v High Court, (Commercial
Division) Accra; Ex-parte
Attorney-General, Balkan Energy
Ghana Ltd. & Others, (Interested
Parties) 2011 2 SCGLR 1183
Courts
(Amendment) Act 2003, Act 620
Act 646
BOOKS REFERRED TO IN JUDGMENT
You and Your
Health”,Volume 2 New Edition,
ShryockHardinge,
Taylor on Evidence (12th
Ed.) Vol. 1.,para. 58
Public Elections
Regulations, 1996 (C.I.15)”
DELIVERING THE LEADING JUDGMENT
VICTOR
DOTSE JSC:
COUNSEL
MR. MUJEEB RAHMAN AHMED ESQ.
WITH HIM DR. FRANK ANKOBEA AND
JANET FRIMPONG FOR THE
APPELLANT
MR. WILLIAM KPOBI ESQ. (C.S.A)
WITH HIM JOAN KING (S.S.A) FOR
THE RESPONDENT.
JUDGMENT
------------------------------------------------------------------------------------------------------------------------------------------------
VICTOR DOTSE JSC:
On the 18th
day of March 2015, this court by
a unanimous decision allowed the
appeal herein against the
decision of the Court of Appeal
dated 28/2/2013 and set aside
the conviction and sentence
imposed on the appellant by the
said Court of Appeal judgment
and accordingly acquitted and
discharged him of his conviction
for attempted rape and sentence
of 7 years. We however reserved
our reasons for the said
decision which we indicated
would be filed on or by the 2nd
day of April 2015.
We now
proceed to give our reasons for
our said decision as follows:
We begin
this opinion by an observation
of the times and life of Sir
Isaac Newton, that great 17th
Century English Mathematician
and Philosopher who has given
the world some natural laws of
physics which apply to human
beings, just as they apply to
the movement of bodies in the
universe. And we are sure
everyone is familiar with one of
these laws, and that is, “for
every action, there is an equal
and opposite reaction.” This
in real terms means that for
every action one takes, there is
an opposite reaction and a price
to pay for it. This could be
positive or negative.
How does
the above statement by Sir Isaac
Newton apply to the
circumstances of this case?
Well, if only the
Accused/Appellant/Appellant,
hereafter referred to as the
Appellant had not requested the
victim of the rape charge,
Rashida Kanton, PWI to follow
him to his bungalow for her
seized pullover among others
that he had seized from the
students, the chain of events,
culminating in the conviction of
the Appellant by the High Court,
Wa, and the subsequent
confirmation of same by the
Court of Appeal, would not have
resulted into the instant appeal
by the appellant to seek a
reversal of that conviction and
sentence to 7 years I.H.L. Fact
of the matter is that, the
career of the appellant as a
teacher has been brought to a
pre-mature end by his lack of
discretion.
FACTS OF THE CASE
The
appellant was at all times
material to the cause of events
giving rise to his arraignment
before the High Court, Wa, on
one count of rape contrary to
section 97 of the Criminal and
other Offences Act, 1960 (Act
29) a teacher at the Kanton
Senior High School at Tumu in
the Upper West Region. In that
capacity the appellant on the 28th
day of July, 2009 requested the
complainant and victim of the
rape charge Rashida Kanton
Ibrahim, a student of the same
school to come to his apartment
for some pullovers which the
appellant claimed he had seized
from the students earlier at an
entertainment programme in his
capacity as the entertainment
master of the school. These
pullovers also included one
seized from the complainant and
the appellant therefore invited
the complainant to follow him to
his apartment for her pullover
and the others at about 9.00 am
on the said 28/7/2009.
The
complainant later alleged that
the appellant had raped her and
asked her to wash herself before
they returned to school. From
the evidence on record, the
appellant informed one of her
friends called Kashifa, also a
student of the same school about
the said rape incident. But
surprisingly, this student and
friend was never called as a
witness.
Eventually, the complainant
informed her parents in the
evening of the same day,
following which a report was
made to the Headmaster of the
school. As the appellant denied
the rape charge allegations
before the Headmaster and the
parents of the victim at the
school, a report was made to the
Police as a result of which the
appellant was arraigned and
tried summarily before the High
Court, Wa, on one count of rape
which stated thus:
“Statement of offence
Rape contrary to section 97 of
the Criminal Offences Act, 1960
(Act 29)
Particulars of
Offence
Richard Banousin, Teacher
For that, you on the 28th
day of July 2009 at Tumu in the
Upper West Region had carnal
knowledge of one, Rashida Kanton
Ibrahim without her consent.”
At the
trial before the High Court, the
complainant testified as PWI,
her father as PW2, the medical
officer Dr. Gomez who attended
to her as PW3, Lance Corporal
Theophilius Awihere, the
Policeman who initially received
the complaint and commenced
investigations as PW4, and
finally, Detective Lance
Corporal Charles Lartey who
completed the investigations as
PW5.
The
appellant when he was asked to
open his defence, elected to
speak from the dock and made a
statement thereby denying the
Republic/Respondent/Respondent
hereafter referred to as
Respondent from cross-examining
him.
CONVICTION AND SENTENCE
After the
trial and addresses by counsel,
the learned trial Judge Koomson
J, presiding over the High Court
at Wa, on the 29th
July 2010 convicted the
appellant on the offence of rape
as charged and sentenced him to
a term of 7 years in the
following words:-
“On the whole of the
evidence adduced in the case, I
am convinced that the
prosecution has proved beyond
reasonable doubt that the
accused person had sexual
intercourse with PW1 without her
consent. I therefore hold that
the guilt of the accused had
been proved by the prosecution.
In the circumstances
I find the accused person guilty
of the offence charged and
convict him accordingly.
In sentencing the
accused I have taken into
consideration the fact that the
accused is a first offender.
Regard has also been given to
the fact that accused is the
breadwinner of his family.
Regard has further been given to
the fact that the accused has
been expelled from the school
where he was teaching. Abuse
of students by their teachers in
our schools however must not be
tolerated. Teachers are to be
role models to students. They
are to inculcate in them a good
sense of morality.
If teachers are allowed to take
advantage of students then, this
nation has a bleak future as the
children who are the future
leaders of this country would be
morally abused by the time they
leave school. All efforts should
therefore be made to halt sexual
abuse of our children in the
various schools. On this note, I
hereby sentence the accused
person to a term of 7 years
imprisonment I.H.L.”
APPEAL TO COURT OF APPEAL AND
IT’S DECISION
Feeling
dissatisfied and aggrieved with
the decision of the High Court,
the appellant unsuccessfully
appealed against the High Court
decision. The Court of Appeal on
28th February 2013
dismissed the appeal as
follows:-
“There is evidence of intention
to rape and the appellant
attempted it but was resisted.
In s.153 (1) of Act 30/60, it is
provided that when a person is
charged with an offence he may
be convicted of having attempted
to commit that offence although
the attempt is not separately
charged.
That being so in the absence of
any positive evidence of the
ingredient of actual carnal
knowledge, to wit penetration of
the vagina, we set aside the
conviction of the appellant of
rape.
In its place, we find him
guilty of attempted rape and
convict him. And since the
provisions of s. 18 (2) of Act
29/60 made the punishment for an
attempted crime for which a
person has been convicted the
same as the punishment for a
crime which has been completed,
i.e. actually committed, we
maintain the seven (7) years IHL
imposed on the appellant by the
trial court.
We therefore confirm the
conviction of the appellant on
the charge as varied, and
dismiss the appeal.”
APPEAL TO SUPREME COURT
Feeling
again aggrieved and dissatisfied
with the decision of the Court
of Appeal, the appellant has
appealed to this court, with the
following as the grounds of
appeal.
GROUNDS OF APPEAL
1. The Court of Appeal
lacks the jurisdiction to
interprete the 1992 constitution
which jurisdiction it
erroneously assumed and
exercised same in its judgment
of 28th February 2013
contrary to the clear provisions
of the Constitution 1992’.
2. The judgment of the
Court of Appeal is a nullity as
same was given contrary to clear
provision of statutes and
binding judicial dicta.
3. The Court of Appeal
erred when it held that the only
offences triable on indictment
are those mentioned in article
19 (2) (a) of the 1992
Constitution.
4. The Court of Appeal
was wrong in law when it held
that the offence of rape was not
an indictable offence.
5. The Court of Appeal
erred as it failed to consider
the fatal effect of the failure
of the prosecution to call a
vital witness to its case.
6. The Court of Appeal
erred when it held that the
accused person was guilty of
attempted rape contrary to the
law and evidence on record.
7. That judgment is
against the weight of the
evidence on record.
Burden of Proof
In order
to appreciate the resolution of
the issues that have been
identified as a bench mark in
this appeal, it is considered
worthwhile to set out in general
and specific terms, the duty
that rests on the prosecution to
prove the guilt of the appellant
beyond reasonable doubt.
It is the
duty of the prosecution to prove
the guilt of the accused beyond
reasonable doubt in all criminal
cases.
A
corolary to the above rule is
based on the fact that an
accused is presumed innocent
until he is proven guilty in a
court of law. This the
prosecution can only do if they
proffer enough evidence to
convince the Judge or jury that
the accused is guilty of the
ingredients of the offence
charged. The Prosecution has the
burden to provide evidence to
satisfy all the elements of the
offence charged – in this case
rape. The burden the prosecution
has to prove is the accused
persons guilt, and this is proof
beyond a reasonable doubt. This
is the highest burden the law
can impose and it is in contra
distinction to the burden a
plaintiff has in a civil case
which is proof on a
preponderance of the evidence.
What
“beyond a reasonable doubt”
means is that, the prosecution
must overcome all reasonable
inferences favouring innocence
of the accused. Discharging this
burden is a serious business and
should not be taken lightly. The
doubts that must be resolved in
favour of the accused must be
based on the evidence, in other
words, the prosecution should
not be called upon to disprove
all imaginary explanations that
established the innocence of the
accused. The rule beyond a
reasonable doubt, can thus be
formulated thus:-
“An accused
person in a criminal trial or
action, is presumed to be
innocent until the contrary is
proved, and in case of a
reasonable doubt, he is entitled
to a verdict of not guilty.”
See
article 19 (2) (c) of the
Constitution, 1992
See cases
like the following:
1.
Frimpong @ Iboman v Republic
[2012] 1 SCGLR 297
2.
Gligah&Anr. v The Republic
[2010] SCGLR 870
3.
Amartey v The State [1964] GLR
256 S.C
4.
Darko v The Republic [1968] GLR
203, especially holding 2
This
presumption therefore places
upon the prosecution the burden
of proving accused/appellant
guilty beyond a reasonable
doubt. Reasonable doubt is not a
mere possible doubt, because
everything relating to human
affairs and depending on moral
evidence, is open to some
possible or imaginary doubt.
GENERAL COMMENTS AND ANALYSIS OF
THE EVIDENCE ON RECORD
In this
respect, it is necessary to
refer to the evidence of the
complainant in detail and make
the necessary comparisons and
analysis as follows:-
PWI – Rashida Ibrahim Kanton -
Victim of alleged rape
“On the 28/7/2009
about 9.00am. I was in my
classroom. I was revising my
notes. The accused person came
to our classroom. The accused
asked me to follow him to
collect my pullover. I also
followed him to his house on the
school campus. The accused asked
me to sit down whiles he fetches
the pull-overs. I sat down. The
accused brought the pullovers
and sat by me. He started asking
me whether some of the students
and teachers have proposed to
me. I told him no one has
proposed to me. He then placed
his hand on my laps and started
kissing me. I wanted to leave
the room but the accused rushed
and locked the door. The accused
then locked the door. The
accused then started pulling me
and in the process my school
uniform got torn. The accused
pulled me to his bedroom. He
removed his trousers leaving his
white boxer shorts on. He pushed
me unto his bed and had sex with
me.
After this the
accused person told me I should
not tell anyone. The accused
asked me to take an ablussion
can and go and wash down myself.
I did so. The accused gave me
the pullovers and opened the
door. We went back to the
school. I went to my class. I
was crying. One of my friends
asked me why I was crying. I
went outside with my friend and
I told her what the accused did
to me. She advised me to report
the matter to our headmistress.
I told her I would rather tell
my parents. In the evening I
called my parents and told them
what the accused did to me. They
came to the school that evening
to see the headmaster. I
reported the case to the
headmaster. The Headmaster asked
us to go and come the next
morning. The next morning we
went to the headmaster’s office.
The accused person was present.
I narrated the incident to them.
The accused denied having sex
with me. We therefore reported
the matter to the Police. I was
given medical forms to attend
hospital. I went to hospital. I
have the school uniform which
got torn when the accused pulled
me. I want to tender it in
evidence.”
From the
above evidence, the following
stand out clear:-
1. That the appellant,
requested complainant to
accompany her to his house for
pullovers, which she obliged.
2. That the appellant
engaged in some amorous
conversations and conduct with
the complainant.
3. That at a stage, the
complaint’s uniform got torn due
to some harassment of her by the
appellant.
4. The appellant locked
the door on the complainant and
pushed her to the bed.
5. The appellant
requested complainant to wash
herself with an ablussion can,
which she did.
6. Thereafter, they went
back to the campus and she
confided in one of her friends
what the appellant had done to
her.
7. Contrary to her
friend’s advice, she reported
the incident to her parents,
instead of the school
authorities which led to the
Headmaster being informed by her
parents.
8. The appellant denied
having had sex with the
complainant before the
Headmaster and thereafter the
incident was reported to the
Police.
It is
also critical at this stage to
refer briefly to portions of the
evidence of the father of the
complainant Ibrahim Luri, PW2,
as well as that of Dr. Royale
Gomez, PW3, the medical officer
who examined the complainant and
issued a report on her behalf.
PW2 – Ibrahim Luri, father of
PWI- Evidence in Chief.
“The next day we went
there. The headmaster invited
some teachers and the accused.
PWI was made to narrate the
incident again. The accused was
made to narrate his side of the
incident. His narration
tallied with what PW1 said
except that the accused said his
penis did not enter the vagina
of PWI. We left the school
and reported the matter to the
Police. PWI was made to narrate
the incident to the Police. She
was given a medical form to
attend hospital. We took her to
the hospital. She was examined
by two Cuban Doctors. A report
was issued and we sent it to the
Police. The accused was arrested
by the Police.
Q. Did you say your
daughter called you at 8.30 pm
on that day
A. It was after 8.30pm
that she called
Q. Can you give us the
time?
A. I only know it was
after 8.30p.m
Evidence of PW3 – Dr. Royale
Gromez
“My name is Dr.
Royale L. Gomez. I live at Tumu.
I am a medical officer attached
to the Tumu Hospital.
On the 29/7/2009 I
concluded a medical examination
on one Rashida Kanton Ibrahim. I
issued a medical report. I have
the report and want to tender it
in evidence.
By Court: Medical
Report tendered and marked as
Exhibit “B”.
I did not see any
signs of violence on the body of
the girl. I conducted a
vaginal examination and found
the hymen broken. It was not
recently broken. If it were
recent there would have been
signs. I did not find any sperm
inside or outside. I
conducted a pregnancy test and
scan but they were all negative.
Q. From your
findings can you conclude that
there was a penetration of the
vagina of the victim?
A.
I cannot say
Q. Infections of the
gland is very common
A. Yes
Q. That is all”
It is
interesting to observe that,
after PW3 had testified and was
cross-examined, the learned
trial put asked the following
question to the medical officer.
By
Court:- “From your
examination, did you find the
girl to be very active sexually?
A: Yes”
This
question and answer is very
revealing. This is because
during cross-examination, the
complainant was asked the
following questions to which she
answered as follows:-
Q. “Before
28/7/09 you might have had sex
before
A. I never had
sex before this date
Q. Put. You
are not being truthful
A. I am
truthful
Q. Before the
said date, were you a virgin?
A. Yes”
If one
juxtaposes the above testimony
of the complainant with what the
medical officer said about the
sexual activeness of the
complainant and the fact that
the hymen of the complainant was
not recently broken and went on
to state that, “if it were
recent there would have been
signs”,we are minded to be
very cautious in the credibility
to attach to portions of the
complainant’s evidence.
In making
the above observation, we are
not unmindful of the caution
that exists when an expert
testimony such as was proffered
by the medical officer is being
considered. See case of Sasu
v White Cross Insurance Company
Limited [1960] GLR 4. We
will revert to this case later
in the judgment.
On the
part of the appellant, it is on
record that, his caution charged
statement was tendered into
evidence whilst he also made a
statement from the dock. In view
of the comments that had been
made in respect of the
appellant’s case and that of the
complainant, it is considered
prudent to state in extenso
these two pieces of statement or
evidence.
Caution statement of the
appellant
Suspect states in
English Language and same is
recorded down in the presence of
an independent witness as
follows:-
“I am a teacher at
Kanton Senior High School,
yesterday 28/7/09 after an
interaction with Senior High
School IC, I invited Kanton
Rashida one of my pupil students
to come with me for collection
of seized students items in my
possession.
Because of my very
good relationship with her, she
obliged and went with me to the
house. In my house, we had a lot
of chats and in the course of
the discussion, I encourage her
to be a good girl.
I placed my hand on
her laps and she informed me
that the father told her not to
have anything to do with any man
sexually. At this moment she got
up and in the process I tried
calming her down to sit down, I
held her uniform and she moved
away with force and out of that
the thread got loose and that
part of the uniform got opened.
She told me if I persist she
would tell the father so I told
her to relax and that were going
out soon to campus. I gave her
ablussion can to wash her face
at the bathroom. After washing
her face; we went out with the
seized items. I never had sex
with her.”
Statement from the
dock by the Appellant
“Accused: By the
rules of engagement of the
teaching service, we are
required to find out from
students why they perform
poorly. Under this rule I
conducted some examination for
Rashida’s class. She was the
only one who failed. I invited
her to the staff common room to
find out why she performed
abysmally. There after she
became very close to me as a
master and student. She was
pleased to find out I have taken
time to find out about her
progress in her academic
pursuit. One weekend she visited
me at my place and brought me a
book entitled “The History of
Gold Mining”. I asked her why
she brought the book to me and
she said it was a gift to thank
me for all the good things I
have been doing for her
regarding her studies. On my 30th
birthday she gave me a present.
I have been in charge of the
School’s entertainment for long.
On one entertainment
night I got into the
entertainment hall and realized
that a lot of the students were
improperly dressed. I directed
the prefect on duty to
confiscate the improper dresses.
Unfortunately, Rashida’s own was
part of collection. After the
collection, I took the
clothing’s to my place. Since
then Rashida kept pressuring me
for her dress. I asked her to
wait till the end of the term.
She reminded me of her dress at
the end of the term. I was due
for an African Peer Review
Workshop in Tamale so I asked
her to follow me after class to
my place for the dresses. When
we got to my place I released
the dresses to her and asked her
to pick her own and release the
rest to her colleagues.
Thereafter we left for school
together. On the following day
29th I was in my room
watching a programme on T. V.
when the headmaster sent a
messenger to call me. At the
headmaster’s office he informed
me that he has received a
complaint from Rashida and her
parents that I raped her. He
also indicated that the parents
were prepared to pursue the
matter to its logical
conclusion. He asked that there
should be a concession if only I
should agree that I raped her
for the matter to be settled at
his office. The headmaster
impressed upon me that I should
admit so that the matter would
be solved. The headmaster became
angry and indicated that he will
take the matter from the
parents and make sure that I am
punished for my intransigence. “
What
stands out clear is that, from
the very beginning of this
incident, that is to say from
the headmaster’s office, to the
Police Station and the Court,
the appellant has consistently
denied having any sex with the
complainant.
We had
set out supra, some common
threads that run through the
complainant’s story and that of
the appellant.
The issue
that the appellant did not have
sex with the complainant has
been confirmed by the medical
officer’s evidence. This fact is
very crucial in the sense that
the Prosecution have failed to
call a vital and material
witness, and that is the friend
of the complainant, Kashifa. As
will be explained later in this
judgment, the issue of
corroboration sometimes in
matters of rape like the instant
one is very important and could
tilt the scales of justice one
way or the other.
One may
ask, why did the complainant,
not report the incident that was
alleged to have happened in the
morning of 28/7/09 to anybody
except her friend Kashifa, even
then, it was upon enquiries. It
was even much later that night
after 8.30pm that the
complainant informed her parents
on phone.
From the
narration of the evidence on
record, it is quite apparent
that the appellant and the
complainant know each other
fairly well, such that the
complainant even gave the
appellant a book that her father
bought for her.
In real
terms, the only point of
divergence and this is the crux
of the matter is whether the
appellant had any sexual act,
with the complainant. In this
instance, the least degree of
penetration would suffice. But
this is the point the Court of
Appeal has captured in their
judgment that there was no
evidence of any such
penetration. The Court per Ayebi
J.A stated as follows:-
“The vexed issue in
this appeal is whether or not
the prosecution has proved the
carnal knowledge, to wit
penetration of PWI by the
appellant beyond all reasonable
doubt. In the written submission
of the appellant grounds (1) (2)
and (3) of the appeal were
argued together. Various issues
were raised and argued to show
that the Republic failed to
discharge the burden of proof as
required by the law.
As I noted early on,
the issue which arose out of the
three grounds of appeal which
call for determination is
whether the prosecution has
succeeded in proving that the
appellant penetrated the vagina
of PW1 to any degree. This
is the reason for ground (2) of
the appeal that the trial judge
erred in law when he failed to
resolve doubt in favour of the
accused.
From the submission
of the appellant, the doubt I
believe refers to the uncertain
evidence of the medical doctor.
We need to remind ourselves that
the evidence of the medical
doctor like all expert evidence
is opinion evidence. It does not
decide the issue it is offered
to prove. It only assists the
trial Judge in making a finding
on the issue by considering it
alongside other evidence on
record.”
We have
already quoted the Court of
Appeal, wherein they substituted
the offence of attempted rape
for that of rape and therefore
maintained the conviction and
sentence.
STATEMENTS OF CASE BY LEARNED
COUNSELS’ FOR THE PARTIES
We have
perused the erudite and thought
provoking statements of case
filed by learned counsel for the
parties, namely, Mujeeb Rahman
Ahmed for the appellant and
learned Chief State Attorney,
William Kpobi for the
Republic/Respondent.
We note
with appreciation the content of
their submissions and the
invaluable assistance they have
offered this court.
We have
also taken note of the many
decided cases referred to us as
well as the various
constitutional and statutory
provisions that were relied upon
by them in stating their rival
positions.
We also
observe with appreciation, the
very serious issues touching one
of the core criminal procedural
rules of practice that the said
statements of case has brought
to the attention of this court
for determination. This includes
the issue as to whether the
trial of the offence of rape as
contained in sections 97, 98 and
99 of Act 29 is on indictment or
summary.
We take
note of the fact that, learned
counsel for the appellant argued
his statement of case on the
basis of the grounds of appeal
filed, except to observe that
grounds 2 and 5 have not been
argued and must be deemed to
have been abandoned.
On the
other hand, learned counsel for
the Respondent, the learned
Chief State Attorney formulated
some three issues, and although
those three issues could have
been further reformulated into
two issues, we have decided to
use the said formulation by the
learned Chief State Attorney as
a benchmark for our analysis and
decisions. These issues are as
follows:
1.
Whether an offence labeled as a
first degree felony can be tried
summarily.
2.
Whether the prosecution adduced
enough evidence to corroborate
the ingredient of carnal
knowledge in the offence of rape
that the appellant was charged
with
3.
The issue of constitutionalism,
(i.e. whether it is the Supreme
Court that must interprete any
provision of the Constitution
1992 in any proceedings in
courts below the Supreme Court
where an issue of constitutional
interpretation arises).
We now proceed to deal with these
issues, seriatim.
ISSUE I – WHETHER AN OFFENCE
LABELLED AS FIRST DEGREE FELONY
CAN BE TRIED SUMMARILY
1. Since the arguments
of learned counsel in respect of
this issue have already been
recounted elsewhere in this
judgment, we proceed to our
discussions and analysis of
same.
Undoubtedly, it is the Criminal
and other Offences (Procedure)
Act, 1960 Act 30 that regulates
the conduct and procedure of
criminal prosecution in Ghana.
In this respect, it is
imperative to refer to section 1
(1) and (2) of Act 30 which
provides as follows:-
1(1) “A criminal offence under
the Criminal Offences Act, (Act
29) 1960 shall be enquired into,
tried and otherwise dealt with
in accordance with this Act.”
1(2) “An offence under any other
enactment shall, subject to that
enactment be enquired into,
tried and dealt with in
accordance with this Act.”.
We are
therefore of the firm conviction
that, it is to Act 30 that one
must look, in order to determine
how an offence created under Act
29 is to be tried. This
provision is however subject to
the Constitution 1992 which is
the Grundnorm and from which all
enactments derive their
validity, reference article 2
(1) (a) and 11 (1) of the
Constitution 1992.
The net
effect of this is that, unless,
the statutory provision on the
mode of trial of an offence of
Rape, which is an offence
created under Act 29, is
inconsistent with any provision
of the Constitution 1992, the
procedure outlined for the trial
of that offence as a first
degree felony and an indictable
offence pursuant to Act 30 must
be deemed to be valid and
applicable at all times.
Section 2
(2) of Act 30 provides thus:-
“An offence shall be
tried on indictment if
(a)
It is punishable by death
or it is an offence declared
by an enactment to be a first
degree felony, or
(b)
The enactment creating the
offence provides that the mode
of trial is on indictment.”
We are
also mindful of the following
constitutional provisions in
articles 19 (2) and 125 (1) &
(2) of the Constitution 1992
which state respectively as
follows:
19 (2) “A
person charged with a criminal
offence shall
(a)
in the case of an offence
other than high treason or
treason, the punishment for
which is death or imprisonment
for life, be tried by a judge
and jury….”
125 (2)
“Citizens may exercise popular
participation in the
administration of justice
through the institutions of
public and customary tribunals
and the jury and assessor
systems.”
The above
are therefore clear indicators,
that the Constitution 1992 has
given tacit approval and
endorsement of the jury and
assessor systems of citizen
participation in the
administration of justice in the
country.
It also
re-emphasises that, the
Constitution 1992, has provided
a mandatory trial on indictment
in respect of cases punishable
by death or life imprisonment.
For all other offences and the
procedure for the such trials,
it is to the relevant criminal
procedure rules in Act 30 that
one must look to.
It was
basically due to the above that,
the Supreme Court, when
confronted with a similar
situation in 1971, in the opt
quoted case of Republic V
Maikaikan [1971] 2 GLR 473,
held that, under section 243, of
Act 30, the trial of offences
other than those punishable with
death or life imprisonment is by
a court with aid of assessor,
unless the court for stated
reasons, directs that the
accused be tried by a jury.”
Bannerman
C.J, in delivering the opinion
of the court further stated as
follows:-
“Article 20 (2) (a)
of the Constitution, is not in
conflict with provisions made
for the trial of offences as
contained in the Criminal
Procedure Code, 1960 (Act 30) or
any other law.”
The
provisions in article 20 (2) (a)
of the Constitution 1969 are in
parimateria to the provisions of
article 19 (2) (a) of the
Constitution 1992.
That
being the position, we are of
the view that there is in fact
no conflict between article 19
(2) (a) of the Constitution 1992
and section 2 (2) (a) of Act 30.
Section
97 of Act 30 imposes a minimum
of 5 years and a maximum
sentence of 25 years for anyone
who is convicted of committing
the offence of rape.
It is
important to observe that, even
though, this amendment of
section 97 was done by Act 554,
(section 11 thereof) the
classification of rape as a
first degree felony has been
maintained.
It is to
be further noted that, the
submissions of learned Chief
State Attorney, Mr. William
Kpobi to the effect that, the
amendment of section 97 of Act
29, which created the offence of
rape, reduced the punishment to
various terms of imprisonment
with a lower and upper limit,
led to the offence of rape no
longer being an indictable
offence in view of article 19
(2) (a) of the Constitution
1992.
This
submissions not only erroneous
but also misleading and fails to
take into account the dominant
nature of Act 30 as a procedure
rule of practice in criminal
prosecutions of this nature.
This is so because, it has to be
noted that, Act 30 contains the
procedure rules of practice in
respect of all criminal trials
under offences created pursuant
to Act 29. Other offences
created under other enactments
may be tried under Act 30
provided the offence creating
enactment provides accordingly.
We have
already stated that rape is an
offence created under Act 29.
Rape is still a first degree
felony, and under section 2 (2)
(a) of Act 30, an offence shall
be tried on indictment if it is
declared to be a first degree
felony. It is to be noted that
since no specific legislation
has been made for the trial of
rape offences, it is to Act 30,
and the provisions in section 2
(2) (a) thereof that regulate
the trials of offences charged
under section 97 & 98 thereof of
Act 29.
Article
19 (2) (a) of the Constitution
1992 did not prohibit the trial
of the first degree felony cases
as indictable offences like rape
which do not carry death or life
imprisonment sentence.
A clear
reading of the said article 19
(2) (a) of the Constitution
gives the clearest impression
that, the Constitution was only
making exceptions for the trial
of high treason and treason, for
which a different mode of trial
has been provided for under the
Constitution 1992. In this
respect, it may be instructive
to refer to article 139 (2) (a)
(b) (c) and (d) of the
Constitution which provides as
follows:
2. The High Court shall
be constituted by
(a)
by a single Justice of the Court
(b)
by a single Justice of the Court
and jury; or
(c) by a single Justice
of the Court with assessors; or
(d) by three Justices of
the Court for the trial of the
offence of high treason or
treason as required by article
19 of this Constitution.”
The above
clearly re-emphasises the fact
that, the High Court is
differently constituted as and
when the need arises. It is
constituted as
(i)
a single Justice
(ii)
with a single justice with
jury
(iii)
with a single justice with
assessors
(iv)
with three justices for
the trial of the offence of high
treason.
It is to be further noted that,
whenever the Court is
constituted by a Judge with
either a jury or assessors, for
the trial of a criminal offence
under Act 29, or any other
enactment, the relevant
procedure rule of practice is
Act 30.
See section 203 of Act 30 which
mandatorily provides that a
reference in an enactment to an
offence as indictable shall be
construed as indications that
the offence is to be tried in
accordance with Part V of Act 30
which deals with Trials on
Indictment.
Section 204 of Act 30 also provides
that trials on indictment shall
be by a jury or with the aid of
assessors as contained in Part V
of Act 30.
The submission by the learned Chief
State Attorney Mr. William
Kpobi, that the rationale for
the amendment of rape and other
kindred offences in section 97
and 98 of Act 29 was to
expeditiously adjudicate such
cases even though desirable is
not supported by law, any rule
of interpretation or rule of
practice.
For example, the following sections
of Act 29, deal with specific
offences as follows 48 with
attempted murder, 50 on
manslaughter, 70 with use of
offensive weapon and section 172
(2) with intentionally and
unlawfully causing damage to any
property or likely to cause
danger to life are all
classified as first degree
felonies.
From criminal law practice, it has
been fairly and firmly well
established that, all the above
offences to wit, attempted
murder, manslaughter, use of
offensive weapons, rape etc, are
all indictable offences and are
tried with a Judge and jury.
Even though we deprecate and
frown upon the length of time
that it normally takes to
prepare a Bill of Indictment and
bring accused persons to trial,
we also observe the recent
lightening speed with which the
Attorney-General’s Department
has been able to prepare the
Bill of Indictment in a rape
case in less than three months.
Whilst complimenting the staff
of the A. G. for a good work
done, it is also our firm
conviction that we cannot
sacrifice statutory rules of
procedure for purposes of
expedition and sacrifice the
former on the altar of the
latter.
In view of the above analysis of the
rival contentions of learned
counsel in their respective
statements of case on the above
issue, we come to the following
conclusions:-
1. That, the offence of
rape in section 97 of Act 29 is
still an indictable offence and
cannot with respect be tried
summarily by a Judge of the High
Court sitting without a jury as
was done in this case.
ii. That article 19 (2)
(a) of the Constitution 1992
does not prohibit the trial of
other criminal offences that do
not carry death or life
sentence.
See cases
like:
Republic v Maikankan and others,
[1971] 2 GLR 473 SC
Republic v Asiamah [1971] 2 GLR
478 SC
ISSUE 2 – WHETHER THE
PROSECUTION ADDUCED ENOUGH
EVIDENCE TO CORROBORATE THE
INGREDIENT OF CARNAL KNOWLEDGE
IN THE OFFENCE OF RAPE THAT THE
APPELLANT WAS CHARGED WITH
The
determination of this issue has
become very crucial because of
the decision of the Court of
Appeal, which in essence
overturned the findings of fact
by the learned trial Judge that
there was carnal knowledge of
the victim, but in the end
convicted the appellant of the
offence of guilty of attempt to
commit rape pursuant to section
153 (1) of Act 30 and sections
18 (1) and (2) of Act 29.
Section
153 (1) of Act 30 provides as
follows:-
“A person charged
with an offence may be convicted
of having attempted to commit
that offence although the
attempt is not separately
charged.”
We shall
revert to a fuller discussion of
this section later in this
judgment.
The vexed
issue in this appeal is
therefore whether or not the
prosecution has proved the
carnal knowledge, to wit
penetration of PWI by the
appellant beyond all reasonable
doubt. In the written submission
of the appellant grounds (1) (2)
and (3) of the appeal were
argued together. Various issues
were raised and argued to show
that the Republic failed to
discharge the burden of proof as
required by law.
In
offences like rape, defilement
and indeed in respect of any of
the sexual offences, use of
language must be brutally frank
in order to depict and establish
the essential ingredients of the
offence charged.
In the
case of rape for example, what
must be proven are the
following:-
1. That the victim, in
this case Rashida has been
carnally known.
2. That the person who
had carnal knowledge of the
victim is the accused in this
instance, the appellant.
3. That the victim
(Rashida) was carnally known
against her wish, that is to
say, she did not consent to the
sex.
4. That the victim is
aged 16 years or more.
How did
the prosecution lead evidence on
these vital ingredients? It has
to be noted that, section 98 of
the Criminal and other Offences
Act, 1960 Act 29 defines rape as
follows:-
“Rape is the carnal knowledge
of a female of sixteen years or
above without her consent.”
It is
from the above definition that
the essential ingredients of the
offence of rape have been
identified and listed supra.
Section
99 of Act 29 provides what in
law will be considered as proof
of carnal knowledge in the
following terms:-
“Whenever, upon the
trial of any person for an
offence punishable under this
code, it is necessary to prove
carnal knowledge or unnatural
carnal knowledge, the carnal
knowledge or unnatural carnal
knowledge shall be deemed
complete upon proof of the least
degree of penetration.”
In this
instance, it will not matter
whether there was emission of
semen into the vagina of the
complainant (victim) or not.
Since the offence with which the
appellant has been charged is
rape, defined as carnal
knowledge of the victim,
evidence must be led to show
that there was some degree of
penetration into the female
organ designed naturally and
biologically for that purpose.
We have
indeed elsewhere in this
judgment recounted all the
relevant pieces of evidence on
the carnal knowledge of the
victim as was testified to by
herself as PW1, PW3, the medical
officer and also what the
appellant himself stated in his
cautioned statement and evidence
from the dock. The relevant
portion of the evidence of
P.W.1, reads thus:
“The accused pulled
me to his bedroom. He removed
his trousers leaving his white
boxer shorts on. He pushed me
unto his bed and had sex with
me.”
The above
is all the evidence on the
material charge of rape. As a
matter of fact, this evidence
lacks clarity in several
respects as to whether the
appellant indeed had sex with
the complainant.
For
example, did the appellant
undress the complainant forcibly
before the sexual act? If that
is so, where is the evidence?
On the
contrary, did the appellant just
push her into the bed and
started having sex with her with
the boxer pants on and her own
uniform and underwears on?
Again,
the prosecution should have been
really brutally frank with the
evidence on this aspect of the
charge since this is the crux of
the matter. For example, how the
appellant managed to penetrate
into the female organ of the
complainant ought to have been
led to establish credibility for
the prosecution’s case. The size
of the male organ, the degree of
penetration if any, all ought to
have been stated in evidence
It is the
female sex organs called the
vulva and vagina that are
normally penetrated into during
any sexual act which can qualify
to be carnal knowledge under
sections 98 and 99 of Act 29.
The complainant has not led any
evidence as to whether there was
any degree of penetration into
the vulva and the vagina. It is
noted that, it is“the vulva
that consists of the external
genital area and includes the
clitoris and other vital
sensitive nerve receptors.”
The
vagina on the other hand “is
a soft tissue tube, which
extends downwards and forwards
from the cervix of the uterus to
its external opening at the
Vulva.” Reference “You
and Your Health”,Volume 2 New
Edition, ShryockHardinge, page
433.
No
evidence whatsoever has been led
by the prosecution to establish
how the appellant penetrated
into the complainant’s sexual
organs.
However,
if we compare the evidence that
was led by the victim of the
rape case in the case of
Gligah&Anr.v The Republic [2010]
SCGLR 870, the stark reality
unfolds that, the prosecution in
the instant case failed the
test. This is what the evidence
in the Gligah case states on the
rape incident.
“That day I was
hawking with my second-hand
clothes in front of the Central
Police Station to Kantamanto.
Whilst going, the accused
persons called me… After I went
to them to have a look at my
things, they spoke something in
Ga and since I have not been in
Accra for long, I did not
understand what they were
saying. All of a sudden, they
opened a door and they pushed me
inside the room. The second
accused closed the door so I was
left with the first accused in
the room. In the room I saw two
foams on the floor; one has been
covered with a red cloth and the
other one with a plain cloth.
The first accused then pushed me
down on the foam, knelt down on
my thighs, removed my pant and
had sex with me. He had sex with
me four times; whilst he, the
second accused, called him and
said “Charley do it fast,
officer will come.” So he
stopped and went out. He did not
even give me anything to clean
myself; whilst the second
accused also came in and had sex
with me once. After they had
finished, they opened the door
for me and packed my things for
me and asked me to go.”
The
graphic details of how the rape
incident took place really gives
a birds eye view account by the
complainant in the Gligah case
which is a far cry from what we
have in the instant case. The
victim in the Gligahcase,
continued her evidence in the
reported case as follows:-
“I really cried but
there was nobody to help because
the windows were all closed.
So I went to Kantamanto to tell
my friend Salome that two
policemen have slept with me and
she said: No! Cynthia, let’s go
to them.”
If one
considers the consistency of the
appellant in his denial of the
act of rape, ranging from the
Headmasters office to the Police
Station and the Court, the
prosecution need to have done
more to establish the
ingredients of the offence
charged.
There is
no cogent evidence on record
that the complainant has been
carnally known on the 28th
of July, 2009, let alone it
being done by the appellant.
The
medical report and the evidence
led by PW3, Dr. Royale Gomez,
speaks volumes and should not
have been wished away. For
example, PW3 was emphatic that
he found the hymen of the
complainant already broken.
He added
that, it was not recently broken
and if it had been recently
broken, there would have been
signs. Again PW3 stated that, he
could not state whether there
was any penetration of the
vagina of the victim.
Then the
ultimate question from the
learned trial Judge destroyed
any credibility that the
complainant had. This is
because, during the
cross-examination of the
complainant, she was emphatic
that prior to 28/7/2009, she had
never had sex before and that
she was a virgin. This was the
question from the Court:-
Q:
From your examination, did you
find the girl to be very active
sexually?
A:
Yes
Even
though the appellate court tried
to underscore the importance of
the above question and its
effect, the significance of the
question and answer lies in the
demolition of the credibility of
the complainant that she had
sought to establish for herself
as a virgin to wit, “someone
who has never had sex”.
It is
correct as the Court of Appeal
stated that, the sexual activity
or inactivity of the complainant
has nothing to do with the
offence of rape, and to this we
agree.
But the
crux of the matter is the
probative value that will be
placed on the testimony of the
complainant vis-à-vis that of
the medical officer, and by
necessary implication the
offence of rape with which the
appellant has been charged.
Learned
Chief State Attorney, for the
Republic/Respondent stated very
strongly that the evidence of
the medical officer P.W.3, like
all expert evidence is opinion
evidence. In that respect,
learned counsel submitted that
this does not decide the issue
it is offered to prove. He
stated further that, it only
assists the trial courts in
making a finding on the issue by
considering that opinion
alongside other evidence on
record. This undoubtedly is a
core of statement of the law and
the Court of Appeal stated same
in their judgment
Whilst we
have taken the above admonition
into account, we accept the
evidence of the medical officer
for the following reasons:
In
accepting the evidence of the
medical officer as expert
evidence, we have been mindful
of the caution by the Supreme
Court in the case of Sasu
v White Cross Insurance Co. Ltd.
[1960] GLR 4, at pages 5
& 6 where the court stated thus:
“expert evidence is to be
received with reserve, and does
not absolve a Judge from forming
his own opinion on the evidence
as a whole.”
The above
case was an appeal against the
decision of Ollennu J, (as he
then was) where he was of the
view that,
“In my opinion, that expert
evidence, given by those two
highly qualified automobile
engineers, is not only
scientifically sound but
practically real.”
However,
in reversing Ollennu J’s
decision and sounding the
caution on expert evidence, it
is important to re-examine the
basis upon which that caution
was made.
VanLare
JA, who delivered the judgment
of the Court of Appeal, drew
inspiration from the following:-
“It may be useful in
these circumstances to refer to
what appears in Taylor on
Evidence (12th Ed.)
Vol. 1.,para. 58 at p.59 as
follows:-
“Perhaps the
testimony which least deserves
credit with a jury is that of
skilled witnesses. These
witnesses are usually required
to speak, not to facts, but to
opinions, and when this is the
case, it is often quite
surprising to see with what
facility, and to what an
extent, their views can be made
to correspond with the wishes or
interests of the parties who
call them. They do not, indeed
willfully misrepresent what they
think, but their judgments
become so warped by regarding
the subject in one point of
view, that, even when
conscientiously disposed, they
are incapable of forming an
independent opinion. Being
zealous partisans, their Belief
becomes synonymous with Faith as
defined by the Apostle, for it
too often is but “the substance
of things hoped for, the
evidence of things not seen”. To
adopt the language of Lord
Campbell, skilled witnesses come
with such a bias on their minds
to support the cause in which
they are embarked that hardly
any weight should be given to
their evidence.” emphasis
However,
in the instant appeal, the
reverse is the case. This is
because PW3 was a prosecution
witness. In line with the
quotation referred to supra, he
ought to have been deemed to
support the case of the
prosecution, but he turned out
to have given an objective and
unbiased expert testimony. Under
these circumstances, we feel
quite comfortable to make the
necessary deductions and
conclude that it is safe to rely
on the expert evidence of PW3.
This is
especially so when we consider
the medical officers report in
the Gligah case which
established quite clearly that
there was some penetration by a
firm male organ.
Evidence of the medical officer
who examined the victim in the
Gligah case, Dr. Christian
Boamah as captured on page 881of
the report
V/v –
multiple abrasions (L) labia
majora and posterior, hyper
centre vaginal mucosa, vaginal
discharge with probable semen.
No active bleeding…”
Explaining the above report, the
second prosecution witness
stated in her evidence (on page
15) as follows:-
“I dwelt on the
vagina examination and I said
the multiple abrasions, which
means small small tears, small
lacerations. I said it was on
the left outer lip that is what
we call labia majora and then
posterior, that is, you look at
the outer lip deeper inside,
noticed there is small abrasions
there. Then I said the inner
vagina was red and I stated that
there was a vagina discharge
with a probable semen… but what
is most important is the
spermatocytes in the swab that I
took.”
Concluding her testimony, the
medical officer in the Gligah
case stated her opinion as
follows:-
“In this specific
case all that I can say is that,
it could have been caused by
a very firm male organ, which
later discharged some sperms.”
The
evidence of the victim of the
rape charge in the Gligah v
Republic case was brutally frank
and very convincing.
For
instance, words like “the
first accused then pushed me
down on the foam, knelt down on
my thighs, removed my pant and
had sex with me” are all
pointers of proof of the rape in
the Gligah case which is absent
in this case.
There are
more instances of such frankness
which were confirmed by the
evidence of the medical officer
which we have just referred to.
For
example, the medical report was
conclusive that there were
multiple abrasions which he
described as “small, small
tears or lacerations in the
vagina”. This is consistent
with the story of the victim
that the 1st accused
had sex with her four times,
meaning in ordinary parlance
that the accused therein had
four discharges during the act.
Secondly,
the medical report confirmed
that the type of injury caused
to the vagina and its various
parts could have been caused by
a very firm male organ which is
consistent with the story of the
victim.
Finally,
we consider the effect of the
provisions of section 153 (1)
and (2) of Act 30, which
provides that persons accused of
an offence, in this case rape,
may be convicted of attempted
rape although the attempt to
commit the offence is not
separately charged. In this
appeal, this is the section upon
which the Court of Appeal based
itself when it rather convicted
the appellant of the offence of
attempted rape, despite the fact
that the real offence of rape
has been proven and held by them
not to have been established.
We have
already referred to the
essential ingredients of the
offence of rape and also
referred to section 18 (1)& (2)
of Act 29 which deals with
attempt to commit crimes.
Whilst
conceding that the Court of
Appeal acted within its remit
when they used section 153 (1)
of Act 30 to convict the
appellant of attempt to commit
rape, we hold and rule that
there was absolutely no evidence
upon which the court could have
so held.
There was
no evidence of penetration, not
even romance or foreplay by
appellant on the complainant
resembling what we described as
brush work in the Gligah case.
This
conclusion by the Court of
Appeal is indeed very surprising
in view of the fact that,
learned Chief State Attorney,
had invited the Court of Appeal
to consider applying section 159
(1) of Act 30, which provides as
follows:-
Where a person is
charged with rape, unnatural
carnal knowledge or defilement
and the original charge is not
proved, that person maybe
convicted of the lesser offence
of indecent assault although not
charged with that offence.”
We are of
the view that, the Respondent
indeed must have realized the
weakness of their case hence the
attempt to take cover under
section 159 (1) of Act 30. We
are indeed dismayed that the
Court of Appeal went beyond this
invitation and substituted the
offence of attempt to commit
rape instead of the offence
charged. We must confess that we
have strained our minds so hard
without appreciating the
relevance of the Court of Appeal
decision to convict for
attempted rape when there was no
evidence.
Once
there was no such evidence, the
fact that the complainant is 16
years and above and complains of
having been raped amounts to her
oath against that of the
appellant without any other
corroborative evidence.
See the
cases of
1.
Gligah v The Republic, already
referred to
2.
Amartey v The State [1964] GLR
256 SC
3.
Darko v Republic [1968] GLR 203
Under the
circumstances, we have no
hesitation in holding that the
issue of whether the prosecution
adduced sufficient evidence to
establish and or corroborate the
ingredient of carnal knowledge
of the complainant has not been
proven. In this respect
therefore, it is our contention
that, the substitution by the
Court of Appeal, of an offence
of attempted rape, on the
appellant, and convicting him of
same and maintaining the
sentence of 7 years is wrong in
law and is accordingly set
aside.
ISSUE 3 - THE ISSUE OF
CONSTITUTIONALISM, (I.E. WHETHER
IT IS THE SUPREME COURT THAT
MUST INTERPRET ANY PROVISION OF
THE CONSTITUTION 1992 IN ANY
PROCEEDINGS IN COURTS BELOW THE
SUPREME COURT WHERE AN ISSUE OF
CONSTITUTIONAL INTERPRETATION
ARISES.)
The
determination of this issue
admits of no controversy
whatsoever.
There is
absolutely no doubt that, the
Constitution 1992, has
exclusively reserved for the
Supreme Court the jurisdiction
of interpreting and or enforcing
the constitution as is provided
for in articles 2 (1) (a) (b)
and (2) and 130 (1) and (2) of
the Constitution 1992.
The
exclusivity of this
interpretative and enforcement
jurisdiction of the constitution
to the Supreme Court is so
special that except for the
Enforcement of Fundamental Human
Rights and Freedoms which have
been ceded to the High Court,
reference article 130 (1), all
other courts in Ghana below the
Supreme Court are enjoined to
stay proceedings in any matter
whenever an issue of
constitutional interpretation
arises before them, and refer
such a matter to the Supreme
Court for interpretation. See
article 130 (2) of the
Constitution 1992. There are a
legion of cases which support
this view, see the cases of
i.
Oppong v
Attorney-General [2003-2004] 1
SCGLR 376 per Bamford AddoJSC
ii.
Republic v Special
Tribunal Ex-parte Akosah [1980]
GLR 592 C.A
iii.
Republic v High
Court, Accra , Ex-parte
Attorney-General, Balkan Energy
& Others – Interested Parties
[2012] 2 SCGLR
iv.
Republic v Maikankan
& Others [1971] 2 GLR 473 – a
referral case to the Supreme
Court
v.
Republic v High Court
(Fast Track Division) Accra,
Ex-parte Electoral Commission
(Mettle Nunoo & others –
Interested Parties ) [2005-2006]
SCGLR 514
This latter case was a referral case
from the High Court to the
Supreme Court where it held
inter alia as follows:-
“In the instant case,
at the centre of the whole
controversy, lay the disputed
interpretation of important
constitutional provisions,
namely, article 45, 63 (9) and
64 (1) of the 1992 Constitution
section 2 of the Electoral
Commission Act, 1993 (Act 451)
and the Public Elections
Regulations, 1996 (C.I.15)”
vi.
Agyekum v Boadi
[2000] SCGLR 282, holding 2
thereof
We also
endorse the decision of
Bannerman C.J., in the Maikankan
case as follows:-
“A lower court is not
bound to refer to the Supreme
Court every submission alleging
as an issue the determination of
a question of interpretation of
the Constitution or of any other
matter contained in article 106
(1) (a) or (b). if in the
opinion of the lower court the
answer to a submission is clear
and unambiguous on the face of
the provisions of the
Constitution or laws of Ghana,
no reference need be made since
no question of interpretation
arises and a person who
disagrees with or is aggrieved
by the ruling of the lower court
has his remedy by the normal way
of appeal, if he chooses.”
The
Supreme Court speaking with
unanimity through our respected
sister Sophia Akuffo in the
earlier Balkan case, intitutled,
Republic v High Court,
(Commercial Division) Accra;
Ex-parte Attorney-General,
Balkan Energy Ghana Ltd. &
Others, (Interested Parties)
2011 2 SCGLR 1183, after
reviewing the laws and cases on
referral by lower courts to the
Supreme Court held as follows:-
“The Court would
therefore hold that the High
Court should have referred to
the Supreme Court the question
raised in the proceedings before
him concerning article 181 (5).
Having refused to do so, the
Judge had usurped the
jurisdiction of the Supreme
Court and breached the 1992
Constitution”.
From the
old and new cases, the position
might fairly well be stated
thus:-
Where the
constitutional provisions that
call for interpretation are
plain, precise, clear and
unambiguous and no real or
genuine issue of interpretation
arises, the lower court can
apply the provisions as they
are, or where those provisions
have already been interpreted by
the Supreme Court, then the
lower court must take guidance
from the interpretation of that
constitutional provision from
the Supreme Court’s
interpretation which is binding
on them anyway. Thus it is only
in cases where there are real
and genuine issues of
constitutional interpretation
that the Supreme Court will be
requested to perform its role.
We
however observein the instant
appeal that, the Court of Appeal
itself made the correct
observations that the said
article 19 (2) (a) of the
Constitution 1992 are clear,
precise and unambiguous but went
forward to hold that section 2
(2) (a) of Act 30 being
subordinate to article 19 (2)
(a) is inconsistent with the
constitutional provision in 19
(2) (a).
This
court having held that there is
infact no conflict between
article 19 (2) (a) and section 2
(2) (a) of Act 30, the Court of
Appeal was thus in error when
they held a contrary view.
At the
time that it occurred to the
Court of Appeal that a genuine
question of interpretation has
arisen, they should have stayed
further proceedings in the
matter and referred the issue
for constitutional
interpretation to this court.
In view
of our decision in this appeal,
it is considered superfluous to
undertake an excursion into the
status of Act 646 and section 43
of the Courts (Amendment) Act
2003, Act 620 as was contended
and argued in the statements of
case filed. We do not see that
it is necessary to draw any
pararels about those
legislations.
CONCLUSION
In view
of the matters stated supra, we
make the following decisions:-
1.
That under the state of existing
constitutional and statutory
legislation in Ghana, reference
article 19 (2) (a) of the
Constitution 1992 and sections 1
(1) & 2 and 2 (2) (a) of the
Criminal and other Offences
(Procedure) Act 1960, Act 30,
rape is still an indictable
offence and cannot be tried
summarily as was done in this
case.
2.
That the prosecution have failed
to discharge the burden of proof
that they have to establish in
proving the guilt of the
appellant beyond all reasonable
doubts, in other words that on
the strength of the evidence
adduced in the trial court, the
prosecution has failed to lead
sufficient evidence to justify
the conviction and sentence of
the appellant for an offence of
rape.
3.
That it is not every
constitutional provision that a
lower court must as of necessity
refer to the Supreme Court for
interpretation. Where the words
of the provision are plain,
precise, clear, unambiguous and
admit of no interpretation, a
lower court need not refer it to
the Supreme Court for
interpretation. Where however
the provision has previously
been decided by the Supreme
Court, the lower courts are
bound by that decision.
However, if as in this case, the lower
court embarks upon an
interpretative role which is
likely to have far reaching
consequences such as has
happened in this case, i.e.
having an effect on the system
of trial the appellant must
have, which is summary or
indictable, reference must be
made to the Supreme Court.
Under the circumstance, this court,
pursuant to sections 31 (1) (a)
and (b) of the Courts Act, 1993
(Act 459) hereby allows the
appeal by the appellant against
the judgment of the Court of
Appeal dated 28th
February 2013.
Accordingly the conviction and
sentence of the appellant by the
Court of Appeal of even date is
set aside on the following
grounds:
i.
that it is unreasonable
and cannot be supported having
regard to the evidence on
record;
ii.
that it is wrong in law
and fact and;
iii.
has resulted into a
miscarriage of justice.
The
appeal therefore succeeds.
(SGD)
V. J. M DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD)
V. AKOTO- BAMFO (MRS.)
JUSTICE OF THE SUPREME
COURT
COUNSEL:
MR. MUJEEB RAHMAN AHMED ESQ.
WITH HIM DR. FRANK ANKOBEA AND
JANET FRIMPONG FOR THE
APPELLANT
MR. WILLIAM KPOBI ESQ. (C.S.A)
WITH HIM JOAN KING (S.S.A) FOR
THE RESPONDENT.
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