RICHARD BANOUSIN v. REPUBLIC
February 28, 2013
COURT OF APPEAL
GHANA
CORAM
- AYEBI J.A. (PRESIDING)
- IRENE DANQUAH (MRS.) J.A.
- TANKO AMADU J.A
Areas of Law
- Criminal Law and Procedure
- Evidence Law
- Constitutional Law
February 28, 2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by Justice E.K. Ayebi, arises from an appeal by a Kanton Senior High School teacher convicted of rape against his student, Rashida Kanton Ibrahim, by the Wa High Court. The appellant challenged both jurisdiction—arguing rape must be tried on indictment under Act 30—and evidential sufficiency, focusing on lack of proof of penetration. The court first held that Article 19(2)(a) of the 1992 Constitution supersedes section 2(2) of Act 30, limiting mandatory jury trials to offences punishable by death or life imprisonment; rape, carrying a term of years, may be tried summarily. Turning to the merits, the court found the medical evidence inconclusive on penetration and deemed circumstantial evidence insufficient to prove carnal knowledge beyond reasonable doubt, though the appellant’s cautioned statement evidenced sexual advances and intent. Applying Act 30 section 153(1) and Act 29 section 18(2), the court varied the conviction to attempted rape while maintaining the seven-year sentence, and dismissed the appeal as varied, with Justices Irene Danquah and I.O. Tanko Amadu concurring.
AYEBI J.A.
This is an appeal from the judgment of the Wa High Court filed on 27th August 2010. The records show that on 17th February 2010, the appellant was arraigned before the said court on the charge of rape contrary to section 97 of the Criminal Offences Act, 1960 (Act 29). The particulars state that on 28th day of July 2009 at Tumu in the Upper West Region, appellant had carnal knowledge of Rashida Kanton Ibrahim, without her consent.
On 29th July 2010, the trial High Court found the appellant guilty of the charge, convicted him and then sentenced him to a term of seven (7) years imprisonment with hard labour. In his petition, appellant prayed this court to quash his conviction and sentence and then acquit and discharge him.
It would appear the appellant filed the petition of appeal himself and the grounds alleged are:
1. The learned trial judged erred in law and on the facts/evidence by his failure to hold that the prosecution has failed to prove the basic ingredient(s) of the offence charged beyond reasonable doubt.
2. The learned trial judge erred in law when he failed to resolve doubts in favour of the accused person.
3. The judgment cannot be supported having regard to the evidence on record.
Later an additional ground was filed that:
4. The trial court lacked the jurisdiction to try the offence of rape summarily, as the offence is an indictable one.
Since this additional ground challenges the jurisdiction of the trial High Court to adjudicate a rape case, it must be dealt with first. The rationale is that “jurisdiction is always a fundamental issue in every matter that comes before any court and even if it is not questioned by any of the parties, it is crucial for a court to avert its mind to it to assure itself of a valid outcome” – see Bimpong-Buta vrs The General Legal Council [2003/04] SCGLR 1200.
It is appellant’s case that in section 97 of Act 29/60 as amended, the crime of rape is a first degree felony. And according to s.2(2) of the Criminal Procedure Act, 1960 (Act 30) any offence punishable by death or declared by any enactment to be a first degree felony shall be tried on indictment. Specifically therefore, s.204 of Act 30/60 stipulates that trials on indictment shall be by a jury or with the aid of assessors.
It is submitted for the appellant that since rape is a first degree felony, the appellant should have been tried on indictment by a judge sitting with a jury or with the aid of assessors. So therefore the trial