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June 25, 1986
HIGH COURT
GHANA
CORAM
JUDGMENT OF ADJABENG J.
This is an application under section 408 of the Criminal Procedure Code, 1960 (Act 30), for an order amending apparent defects in the order made by this court on 4 December 1984, in the criminal appeal No. 55/84 entitled Musah Massah v. The Republic.
The facts of the case are that Musa Massah was on 11 July 1984 convicted by the District Court Grade I, Takoradi of the offence of stealing and was sentenced to a fine of ¢2,000 or in default, eighteen months' imprisonment with hard labour after he had pleaded guilty to the charge. Against this decision Musah Massah appealed to this court on the main ground that he did not appreciate or understand the charge or procedure. This court allowed the appeal and ordered that the appellant be retried by the Circuit Court, Takoradi. This court, however, before making the order for retrial recorded the following, "I would allow this appeal and acquit and discharge the appellant." This application was therefore brought for an order to amend the order “acquitting and discharging" the appellant who is now the respondent herein. Paragraphs 3, 4 and 5 of the affidavit in support of the application state as follows:
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“3. That after submissions by both counsel for the appellant and the Republic respectively, the court ordered that the appellant should be retried at the Circuit Court, Takoradi.
4. However, it has transpired that his lordship when making the order inadvertently added that the appellant had been ‘acquitted and discharged.’
5. I am therefore of the opinion that the part of the order ‘acquitting and discharging’ the appellant was given 'per incuriam’.”
No affidavit in opposition was filed by the respondent.
At the hearing, counsel for the respondent opposed the application. Counsel argued that this court had no jurisdiction to amend its judgment and that the amendment sought was not in respect of an order as is provided for under section 408 of Act 30 but that the "motion is a ploy" to have the court amend its judgment "which it cannot do" according to counsel. Section 408 of Act 30, provides:
“408. The Court may at any time amend any defect in substance or in form in any order or warrant, and no omission or error as to the time and place, and no defect in form in any order or warrant given under this Code shall be held to render void or unlawful any act done or intended to be done by virtue of such order or warrant, provided that it is therein mentioned or may be inferre
AI Generated Summary
Justice Adjabeng addressed an application by the Republic under section 408 of the Criminal Procedure Code, 1960 (Act 30), to correct a defective directive in criminal appeal No. 55/84 concerning Musah Massah. Massah had been convicted by the District Court Grade I, Takoradi, on a guilty plea to stealing and fined ¢2,000 or, in default, sentenced to eighteen months’ imprisonment with hard labour. He appealed, asserting that he did not understand the charge or procedure. This court allowed the appeal and ordered a retrial in the Circuit Court, Takoradi, but it also recorded the phrase “I would allow this appeal and acquit and discharge the appellant.” On the amendment application, Massah filed no affidavit but opposed at hearing, arguing the court lacked jurisdiction to alter its judgment. Relying on section 408 and Stroud’s Judicial Dictionary (citing R v. London Justices), the court held that “acquit and discharge” was an order, not part of the judgment, and deleted “acquit.” The application was granted.