REPUBLIC vs. MASSAH [1986]DLHC988

Date	1986-06-25
Suit No.
Citation No.	[1986]DLHC988

ADJABENG J.

S. K. ACQUAH ASSISTANT STATE ATTORNEY FOR THE REPUBLIC.

K. OSAE BRENU FOR THE RESPONDENT.

[1986]DLHC988
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

REPUBLIC <o:p></o:p>

{HIGH COURT, SEKONDI} <o:p></o:p>

[1984-86] 2 GLR 640<o:p></o:p>

DATE:
25 JUNE 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S.
K. ACQUAH, ASSISTANT STATE ATTORNEY, FOR THE REPUBLIC. <o:p></o:p>

K.
OSAE BRENU FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADJABENG J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADJABENG J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;“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’.”<o:p></o:p>No
affidavit in opposition was filed by the respondent.<o:p></o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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 inferred therefrom
that it is founded on a conviction or judgment, and there is a valid conviction
or judgment to sustain the same.”<o:p></o:p><o:p>&nbsp;</o:p>Now, the
question which arises for determination in this application is whether what is
sought to be amended herein is an order. If it is an order, counsel for the
respondent impliedly argues, this court can amend it. If it is not an order but
part of the judgment then the court cannot amend it. Now what is to be amended
in the judgment or order of 14 December 1984? It is this: “acquit and
discharge.” the applicant wants the court to delete the word “acquit” so that
the sentence reads as follows, “I would allow this appeal and discharge the
appellant.”<o:p></o:p><o:p>&nbsp;</o:p>Now, is
the sentence in which the words in question occur part of the judgment or is it
an order? The sentence is: “I would allow this appeal and acquit and discharge
th</main>