IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMAASI - A.D 2018
IN THE MATTER OF THE REPUBLIC - (Plaintiff)
THE CIRCUIT COURT, KUMASI EX-PARTE KWABENA MENSAH - (Defendant)
DATE: 5 th NOVEMBER, 2018
CASE NO: D16/104/18
JUDGES: JUSTICE FRANCIS OBIRI
MARY MARGARET ADJEI-TWUM FOR APPLICANT
FRANKLINA OPOKU FOR RESPONDENT
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 them.
Applicant counsel again submitted that, Act 653 binds all courts in Ghana including the trial court.
Therefore, the trial judge should not have sentenced the applicant to 7 years IHL but 3 years IHL.
Consequently, the trial judge exceeded her jurisdiction when she sentenced the applicant to 7 years IHL. Counsel cited a number of authorities to buttress her arguments. The State on the other hand filed her statement of case and submitted as follows: First, the trial judge sentenced the applicant to the minimum prison term under section 101 of Act 29. Secondly, the court was vested with jurisdiction to sentence the applicant to 7 years IHL as the court did, therefore, the trial judge did not exceed her jurisdiction.
The State Attorney further argued that, it is only Magistrates who can impose three years sentences and not judges. With respect to the learned StateAttorney, this argument is not sanctioned by any law. This is because; sentence after conviction is backed by statute. Therefore, even if a High Court hears a case of misdemeanour, it cannot impose more than 3 years sentence if the accused is not known. The maximum sentence a District Court Judge can impose is two years IHL and nothing more if the accused is not known. The State Attorney further argued that, where a young offender who is eighteen years is involved in an offence, Act 653 lends support to the trial court to apply the applicable law in sentencing the young offender. The State Attorney however failed to cite any authority to support the above assertion she made.
Learned State Attorney further argued that, the trial court did not exceed her jurisdiction. Therefore, certiorari will not lie to quash the decision of the court dated 12th August 2016. Counsel further contended that, the remedy open to the applicant if any is appeal and not certiorari. Counsel also argued that, a similar case came before the Court of Appeal and the court held that, a court seized with summary jurisdiction was acting within its parameters when it imposed a prison term allowed by law. The State Attorney cited an unreported case of Yaw Marfo vrs The Republic. She however failed to give the citation of the case. She also failed to furnish the court with a copy of the case since same is not reported. Counsel concluded her submission that, the trial judge did not exceed her powers when she sentenced the applicant to 7 years IHL.
It is now my duty to examine the arguments made for and against the grant of the application.
First of all, the invocation of the jurisdiction of the High Court in this application is supported by both the 1992 Constitution, the Courts Act, 1993 (Act 459) and the High Court Civil Procedure rules 2004 (CI 47).
Article 141 of the 1992 Constitution provides:
“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers”.
Again, Section 16 of the Courts Act, 1993 (Act 459) provides:
“The High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority: and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers”. The High Court Civil Procedure Rules, 2004 (C I 47) under Order 55 also regulate application for judicial review. However, since this is an application in a criminal case, the emphasis will be on the Constitution and the Courts Act, 1993. However, an application which is grounded on the Courts supervisory jurisdiction must be confined or restricted to the decision and or the order complained of by the applicant.
See: Republic V High Court, General Jurisdiction 5, Accra Exparte Minister for Interior & Anor (2018)122 GMJ 63 SC. It is well settled that, Certiorari will be granted to quash a decision of a court, an adjudicating body or an administrative body under the following conditions:
(a) where there is lack of jurisdiction
(b) where there is excess of jurisdiction
(c) where there is breach of natural justice rule
(d) where there is an apparent error on the face of the record
(e) Where the judgment or the order is illegal or improper.
See: Republic V High Court Accra, Ex-parte Salloun (2011) 1 SCGLR 774
Republic V High Court, Accra Ex-parte Hanawi (Owusu &Owusu Interested party) (2013-2014) 2 SCGLR 116 Enekwa & Ors. V Kwame Nkrumah University of Science and Technology (2009) 2 SCGLR 242 Republic V High Court (Commercial Division, Accra) Exparte Electoral Commission (Papa Kwesi Nduom Interested party) (2017)111 GMJ 210 SC Republic V High Court (Human Rights Division) Ex-parte Akita (Mancell Egala& Attorney General Interested Parties) (2010) SCGLR 374 Republic V High Court Koforidua, Ex-parte Ansah Otu (Koans Building Solutions Ltd – Interested Party (2009) SCGLR 141. However, it is trite that, certiorari looks to remedy past errors unlike prohibition which looks to the future. The main issue in this application is whether the trial judge exceeded her jurisdiction when she sentenced the applicant to prison for 7 years IHL.
The Halbury’s Laws of England (3rd edition) volume 9 at pages 350-351 defines the term jurisdiction as follows: “The authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limit of this authority is imposed by statute, charter or commission under which the court is constituted, and may be extended or restricted by like means”.
See: Yeboah V Mensah (1997-98) 2 GLR 245 SC 9 Edusei V Attorney General (1996-97) SCGLR 1 Edusei (No 2) V Attorney General (1997-98) SCGLR 753
This definition will guide this court to determine whether the trial judge lacked jurisdiction or exceeded her jurisdiction when she sentenced the applicant to seven (7) years IHL after his conviction. In this case, there is no doubt that, the applicant at the time of his conviction and sentence was 18 years old. This was stated by the prosecution and can be found on the charge sheet which is contained in the record of proceedings and marked as exhibit A1. There is also no issue about his conviction of the offence. The issue is about his sentence.
The applicant was tried by the Circuit Court. It is also undisputed that, the Circuit Court has jurisdiction to try the offence of defilement.
It is provided under Section 43 of the Courts (Amendment) Act, (2002) Act 620 as follows:
“43: A Circuit Court has original jurisdiction in all criminal matters other than treason, offences triable on indictment and offences punishable by death.”
See: Republic V Circuit Tribunal Koforidua, Ex-parte Nana Anku Dodozah Dedieye II (2006) 4 MLRG 165 CA. 10
The offence of defilement of a child under 16 years of age does not come under any of the exceptions listed under section 43 of Act 620.
It appears, the two main statutes which has led to this conundrum are Act 29 as amended by the Criminal Code (Amendment) Act, 1998 (Act 554) and the Juvenile Justice Act, 2003 (Act 653).
Section 102 (2) of Act 29 provides:
“A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent, commits a criminal offence, and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty five years”.
It is provided under section 46 (1) of Act 653 as follows:
“Where a juvenile or young offender is ordered to be sent to a center, the detention order shall be the authority for the detention and the period shall not exceed;
(d) three years for a serious offence.
It is also provided under section 46 (8) of Act 653 as follows:
(8) The following offences are considered to be serious offences
(d) indecent assault involving unlawful harm;
(e) robbery with aggravated circumstance;
(f) drug offences; and
(e) offences related to firearms.
The interpretation section of Act 653 which is section 60 defines a young offender as “young offender means a young person who has been convicted of an offence for which the Court has power to impose a sentence of imprisonment for one month or upward with the option of a fine”.
It also defines young person as “young person” means a person who is eighteen years or above eighteen years but is under twentyone”.
The above provisions in Act 29 and Act 653 are the point of departure between the applicant and the respondent.
The Juvenile Justice Act, 2003, (Act 653) was assented to on 28th October 2005 and notified in the Gazette on 31st October 2003. On the other hand, the Criminal Offences Act, 1960 (Act 29) came into force on 1st February 1961. Chapter six of Act 29, is on sexual offences. The chapter was substituted by section 11 of the Criminal Code (Amendment) Act, 1998 (Act 554). This means that, section 101(2) of Act 29 under which the applicant was tried and convicted predates Act 653. The two Acts were passed by parliament of the Republic of Ghana. They were both laid before parliament. Secondly, they were published in the Gazette on the day they were laid before parliament and came into force at the expiration of number of days after been laid before parliament.
See: Baah V Attorney General (2012) 49 GMJ 57 CA Nii Bortey & Ors. V Electoral Commission of Ghana & Ors (2011) 36 GMJ 55 SC. Nii Tetteh Opremah & Ors. V Electoral Commission & Attorney General (2012) 41 GMJ 150 SC.
Again, Act 29 is a general legislation whereas Act 653 is a specific legislation which deals with juveniles and young offenders in some cases. The long title of Act 653 provides “An Act to provide a juvenile justice system, to protect the rights of juveniles, ensure an appropriate and individual response to juvenile offenders, to provide for young offenders and for connected purposes”. What therefore is the effect of the two legislations which appear to conflict with each other? The law is settled that, specific laws or specific legislation override general laws or general legislation on the same subject matter. Where there are inconsistencies or conflict between specific legislation or special legislation and that of a general legislation, the specific law is deemed to have impliedly repealed the general law or general legislation.
See: In Re Parliamentary Election for Welensi Constituency, Zakaria V Nyimakan (2003-2004) SCGLR 1 Yeboah J.H. Mensah (1998-99) SCGLR 42.
Furthermore, where a general enactment covers a situation for which a specific provision is made by some other enactment, it is presumed that, the situation was intended to be dealt with by the specific enactment. See: Republic V (High Court, Fast Track Division) Accra, Exparte PPE Ltd & Paul Juric (Unique Trust Financial Services Ltd. Interested party) (2007-2008) 1 SCGLR 188 Kuenyehia V Archer (1993-94) 2 GLR 525 SC New Patriotic Party V Rawlings & Anor. (1993-94) 2 GLR 193. It must be noted that, parliament was aware of section 101 of Act 29 which prescribes punishment for defilement to range from 7 years to 25 years, but went ahead to pass Act 653 and included section 46 which deals with juveniles and young offenders in respect of serious offences which include defilement. It is also a general presumption that, the law maker is presumed to be knowledgeable and competent when it comes to law making. It is also a general presumption that, the law maker is right and does not make mistakes in the laws she makes. As I have also indicated, Act 29 predates Act 653. It is therefore my view that, section 46 of Act 653 which is later in time has amended section 101 of Act 29 in respect of juveniles and young offenders with regards to serious offences. To amend is to alter or vary. The effect of amendment is to bring about variation, alteration, or change. It presupposes the continued existence of the old law but with variations or alterations. See: Nii Bortey & Ors. V Electoral Commission of Ghana & Ors (Supra).
One would also observe that, Act 653 provides the procedure in dealing with juveniles and young offenders when such a person has infringed a provision or section under Act 29 or any other law which prescribes a criminal offence. It is therefore my opinion that, in sentencing the applicant, who was a young offender at the time of his conviction, the relevant law the trial judge should have used was Act 653 which is a specific legislation regulating juveniles and young offenders and not Act 29 which is a general legislation. It is therefore, my humble view that, the trial judge had jurisdiction to try the applicant for defilement but she did not have jurisdiction to sentence him under section 101 (2) of Act 29. She should have 15 sentenced him under section 46 of Act 653. This therefore, has resulted in lack of jurisdiction which certiorari will lie to quash. The decision of the trial judge was made on 12th August 2016. It is more than two years, but it is the law that, where a decision of a court is patently void, time limitations do not apply. Where the decision sought to be quashed is a nullity as in this case. See: Republic V High Court, Ex-parte Speedline Stevedoring Ltd. (Dolplyne interested Party) (2007-2008) 1 SCGLR 102.
Republic V The High Court Accra, Ex-parte The Charge D’affaires Bulgarian Embassy (2016) 100 GMJ 194 SC Republic V High Court Accra, Ex-parte Chartered Institute of Bankers (2011) 2 SCGLR 941 The Courts cannot and must not substitute our wisdom for the collective wisdom of the Constitution or statute. The courts undertake to be faithful to the principle and the tradition of jurisprudence.
The courts must not insert words or remove words from legislations in other to arrive at a conclusion that we consider desirable or socially acceptable. If the courts do that, we would usurp legislative functions which have been consigned to the legislator. That may be recipe for the tyranny of the judiciary branch and harbinger of constitutional crises if not chaos and anarchy. See: Republic V Fast Track High Court Accra, EX-parte Daniels (2003-2004) SCGLR 304 Commission on Hman Rights and Administrative Justice V Attorney General & Baba Camara (2012) 36 MLRG 177 SC. Before I conclude, I wish to address an issue raised by the learned State Attorney as to a similar issue which has been decided by the Court of Appeal in the case of Yaw Marfo V The Republic. First of all, counsel did not give the citation of the case or a copy of the case to the court. This would have aided this court to know whether the issue(s) in that case is/or are similar or the same as the issues in this case. Secondly, it is trite that, the Court of Appeal decision binds this court. However, a Court of Appeal decision which is against a statutory provision will not bind this court.
See: Republic (No.2) V National House of Chiefs, Ex-parte Akrofa Krukoko II (Enimil iv Interested Party) (2010) SCGLR 134 Young V Bristol Aeroplane Co. Ltd (1944) 2 ALL ER 293 CA
Thirdly, even if the issue in the case of Yaw Marfo V The Republic (unreported) is similar or the same as the issue in this case, the said decision cannot override a statutory provision which is Act 653. The law is settled that, where there are calls on the court as to which authority to comply with, obeisance is due to statute rather than a decision of a higher court however exaltedIn other words, where a statute conflicts with a case law, the provision in the statute prevails.See: Baah V Attorney General (supra) Edusei V Diners Club Suisse SA (1982-83) GLR 809
My humble view is that, even if the issue in Yaw Marfo V The Republic case falls on all fours with the issue in this case, same will not bind this court because it is against the provisions in a statute, which is Act 653.
In conclusion, for the reason that, the Circuit Court Kumasi presided over by her Honour Comfort Tasiame lacked jurisdiction to sentence the applicant, a young offender to seven years for serious offence, the application for an order of Certiorari succeeds. The sentence passed by the Circuit Court Kumasi, presided over by her Honour Comfort Tasiame on 12th August 2016 is ordered to be brought up to this court to be quashed and same is hereby quashed. However, in consonance with section 46 (1) (d) and (8) of Act 653, the applicant is sentenced to 3 years IHL from 12th August 2016.
The application therefore succeeds.
(HIGH COURT JUDGE)