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March 30, 2023
HIGH COURT
GHANA
CORAM
The appellant, Samuel Ntem Dzigbordi, appeals against the conviction and sentence
imposed on him on 22 September 2020. The Circuit Court , Kpando presided over by His
Honour Nana Brew imposed a sentence of 10 years imprisonment on appellant, having
convicted appellant after trial on defilement of a child under 16 years.
I have read the submissions of Counsel for both Appellant and Respondent and I will
allow the appeal to the extent that the conviction and sentence of 10 years for defilement
is set aside and substituted with a conviction of Indecent Assault and a sentence of
eighteen(18) months imprisonment .These are the reasons for coming to that conclusion.
The appellant was charged on one count as follows:
STATEMENT OF OFFENCE
Defilement: contrary to section 101 of the criminal offences Act 29/60 as amended by
section 11 of act 554
PARTICULARS OF OFFENCE
Samuel Ntem Dzigbordi @ CARPON: Aged 22: commercial rider: on the 28th day of June
2020 at about 2.00 pm at Alavanyo Agorxoe in Kpando Circuit and within the jurisdiction
of this court, you carnally know one MARY NTEM ATTAWA.
The Appellant pleaded not guilty to the charge when he was arraigned before the Court
on 4 September 2020. After a full trial, he was convicted and sentenced to 10 years IHL.
It is against this conviction and sentence that the appellant has appealed to this Court for
redress. Pursuant to an order for extension of time within which to appeal, the Appellant
on 19 January 2023 filed a Notice of Appeal (which should have a Petition since this is a
criminal case). The ground of appeal as found in the Notice of Appeal are as follows:
1. That the conviction and sentence of the Appellant is wrong in law as the
honourable judge erred in holding that an allegation of insertion of finger into the
vagina of the victim amounts to defilement.
2. The conviction and sentence cannot be supported by the evidence on record.
Briefly, the facts of the case are as follows: The victim aged 7 is a kindergarten- two pupil
at Alavanyo Agorxoe Basic School. The appellant is a 22 year old commercial motor rider
residing in the same town. The appellant is related to the victim but resides in a separate
house with his stepmother. On 28 June 2020 at about 2.00 pm, the complainant who is the
mother of the victim sent her to appellant’s stepmother who sells foot wears to collect a
new pair of slippers she had ordered from the market. The victim on reaching met only
the appellant
AI Generated Summary
On appeal from the Circuit Court at Kpando, the Ghana High Court, per Justice Ayitey Armah-Tetteh, re-evaluated the trial record for Samuel Ntem Dzigbordi, a 22-year-old commercial rider convicted of defiling seven-year-old Mary Ntem Attawa and sentenced to ten years. After outlining the appellate standard of rehearing, the court found the victim’s age was proved but held the prosecution failed to establish carnal knowledge as defined by statute and clarified by Gligah & Atiso: the evidence showed only insertion of a finger into the child’s vagina. Applying sections 154(2) and 159(1) of Act 30, the court substituted a conviction for indecent assault under section 103 and imposed an eighteen-month sentence, effective from the original conviction date.