Jma v Republic

The court held that not every defect in a charge invalidates a conviction. Section 382 CPC cures errors, omissions or irregularities unless they occasion a failure of justice. The appellant, who lived in the same homestead as the seven-year-old complainant, understood the charge, cross-examined witnesses and mounted a spirited defence; the omission of 'unlawful' did not prejudice his defence. For a child of that age no sexual act could be lawful, so the defect was minor.

The court noted that Achoki involved attempted rape under the then section 141 of the Penal Code, an offence involving adults able to consent. In contrast, defilement of a girl under fourteen requires no proof of lack of consent; the sole defence is reasonable belief as to age or marriage. Because the complainant was seven and this was unchallenged, the proviso defence was unavailable and the reasoning in Achoki did not compel invalidity here.

Section 144(1) as it stood before Act No 5 of 2003 prescribed a maximum of five years imprisonment with hard labour with or without corporal punishment. The 15-year term imposed was three times that maximum and therefore illegal. The court substituted the lawful maximum, declining to impose corporal punishment as the two courts below had not exercised that discretion and it ran from the date of conviction.