DENYO v. THE STATE [1966] GLR 474

Division: HIGH COURT, HO

Date: 10 JUNE 1966

Before: SOWAH J.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence for abduction. The facts are sufficiently set out in the judgment.

COUNSEL

Boye for the appellant.

Turkson for the respondent.

JUDGMENT OF SOWAH J.

The appellant was on 15 January 1966 charged with the offence of abduction of an unmarried female under the age of eighteen years contrary to section 91 of the Criminal Code, 1960,1 and was convicted and sentenced to six months’ imprisonment with hard labour. The appellant who is 21 years of age was not represented at his trial and denied the charge of detaining the girl in his house, though he admitted making love to her on several occasions during their brief love affair. From the record of proceedings he did not appear to appreciate the essence of the charge against him as he appeared to think that the girl’s willingness was an answer to the charge. As said before he was sentenced to six months’ imprisonment, a sentence which I consider was out of all proportion to the offence considering the ages of the girl and the accused. [p.475] of [1966] GLR 474

Fortunately for the appellant when the case came on appeal, Mr. Boye volunteered to appear for him as the appellant was not in a position to brief counsel. An application for leave to adduce fresh evidence was then made and granted. The fresh evidence was that the girl who was said to be a school girl was in fact married and has a child by a chief. The evidence that the girl was married was denied by the prosecution but the prosecution admitted that the girl has a child who is two years old.

I consider that the essential elements in the offence are as follows:

(a) That the girl was under the control or possession of the complainant at the time of the offence;

(b) That she was taken out of the control against the will of the complainant;

(c) That the girl was under eighteen years of age at the time of the offence;

(d) That the girl was unmarried; and

(e) Finally that she was taken out with the intent of having sexual intercourse with her. In this case both the girl and her mother said she was seventeen years old but the fact that the girl has a child nearly two years old should have called for a stricter proof of her age.

It is my view that when such a charge is brought the prosecution must prove strictly the age of the girl for it is a most essential element in the offence. It may well be said that strict proof would be difficult in this country where births are not registered, especially in the rural areas; if this is so, then for a witness to come to court and allege that a girl is seventeen years old is to indulge in guesswork. I consider that the evidence that the girl was seventeen years old at the time of the offence is not satisfactory and not up to the standard of proof required in such a case.

Accordingly I will allow the appeal, set aside the conviction and sentence, and acquit and discharge the appellant.

DECISION

Appeal allowed.

S. K. T.