IN THE MATTER OF THE REPUBLIC v. KWABENA MENSAH, EX PARTE
2018
HIGH COURT
GHANA
Areas of Law
- Criminal Law and Procedure
- Constitutional Law
- Administrative Law
2018
HIGH COURT
GHANA
AI Generated Summary
The applicant, then 18, was convicted of defilement and sentenced to 7 years IHL by the Circuit Court Kumasi. He sought certiorari to quash this sentence, arguing it should have been imposed under Act 653 and not Act 29. The High Court quashed the 7-year sentence, emphasizing that specific legislation (Act 653) should override the more general Act 29 and sentenced him to 3 years IHL. The court held that the lower court exceeded its jurisdiction. Various cases and statutes were cited to support the High Court's decision, establishing principles on the supervisory jurisdiction of the High Court, conditions for certiorari, and the precedence of specific legislation over general legislation.
JUDGMENT
On 7-6-18, the applicant filed motion on notice seeking to invoke the supervisory jurisdiction of this court for an order to quash the decision of the Circuit Court Kumasi, dated 12th August, 2016 which was made by her Honour Comfort Tasiame, Circuit Court judge. The background facts of the substantive case indicate that, the applicant who was aged 18 years as of 2016, was arraigned before the Circuit Court Kumasi, on a charge of defilement of a child under 16 years of age contrary to section 101 (2) of the Criminal and Other Offences Act, 1960 (Act 29).
He pleaded not guilty to the charge and the case went through trial.
At the conclusion of the trial, he was convicted and sentenced to 7 years I.H.L. on 12th August, 2016. The applicant was convicted for having sex with the victim Serwaa Dwabeng a female age the sentence allowed by the relevant provision under the Juvenile Justice Act, 2003 (Act 653).
(10) That I am again advised and verily believed same to be true that, this Honourable Court can exercise it supervisory jurisdiction to quash the sentence imposed on me.
The State opposed the application by filling affidavit in opposition on 20-6-18. The relevant paragraphs are as follows:
(3) That the court sentenced him to the minimum prison term for the offence of defilement which is seven years.
(4) That the trial court did not exceed its jurisdiction and consciously stayed within the parameters established by law.
(5) That the applicant is only seeking to supplant the proper avenue that can fully address his grievance with this application.
Counsel for the applicant and the State filed their respective statements of case.
Counsel for the applicant argued that, the applicant was 18 years at the time of his conviction.
However, the trial judge overlooked the age and sentenced him to 7 years IHL.
Counsel for the applicant contended that, the applicant should have been sentenced under sections 46
(d) and (8) of Act 653 and not under Act 29. Applicant counsel therefore submitted that, the trial judge did not have jurisdiction to sentence the applicant to 7 years IHL upon conviction.
The applicant counsel further contended that, the applicant was a young offender and therefore should have been sentenced under section 46 (1) (d) and 46 (8) of Act 653. Counsel for the applicant also argued that, the words stated under sections 46 (1) (d) and 46 (8) of Act 653 are plain and unambiguous. Therefore, their ordinary meaning should be given to