SEEDI V. COMMISSIONER OF POLICE

Baker, Ag. C.J. In this appeal the only ground which contains any substance is the following:- That there was material irregularity in the proceedings in the trial in that the learned District Magistrate passed sentence on the appellant with- out recording any verdict of guilty against him.”

It is a fact that the record of the case contains no finding of guilt or otherwise and all the judgment states and which is signed by the trial Magistrate is as follows:- “9 months H.L. £100 or six months. Sentences consecutive. £80 to be returned to the accused.”

Against this judgment the appellant appealed, his principal ground being therefore-mentioned ground 3 of his present appeal. The Appellate Judge quite properly found there was no substance in the other two grounds of appeal.

With regard to the said ground 3 the Appellate Judge came to the following conclusion:- It is true that the Magistrate omitted to write the words ‘Found Guilty or ‘ Guilty’, but I hold that the fact of sentencing the appellant clearly shows that the Magistrate found the appellant guilty of the only charge upon which he was tried. If there had been two or more charges, it could have been contended that the sentence was ambiguous.

“When a Magistrate under the Gold Coast Laws tries a case in his summary jurisdiction, he acts both as Judge and jury; acting in both capacities at one and the same time it would be unreasonable to contend that the same man would, as a Jury, acquit, and as Judge sentence an accused person on the same charge on the same evidence and at the same time.

“The omission to write the words' Found Guilty or Guilty' can be (Page 30)

nothing else than a mere clerical error apparent on the face of the record. I therefore order that the word’ Found Guilty’ be entered on the record.”

Counsel for appellant upon the hearing of this appeal submitted that due to the trial Magistrate making no finding his client should have been found not guilty and been acquitted, the sentence passed being a miscarriage of justice and that there being no finding it was not within the power of the Appellate Court to cure the defect.

It is well established that this Court is bound by the record of the case and in this appeal we have a record of a trial Magistrate, which does not impose a finding but imposes a sentence.

There was only one charge and the Magistrate passed a sentence quite consistent with a finding of guilt under the said charge, yet we are now asked in the absence of a finding to quash the conviction. It may well be that in certain cases there may be a defect or an omission to which an objection might be raised which goes to the jurisdiction which would be fatal to the conviction-see Ohene Moore v. Akesseh Taye (1)

In our present case, however, the omission is one of procedure and might be described as a mere technicality and which in our opinion cannot be considered j as fatal and is within the power and duty of the Court to remedy so that substantial justice may be done see Kojo Pan v. Atta Fua (2).

This Court, in a case where there had been an omission by the trial judge, Commissioner of Police v. Samuel Lagos, (3), gave the following decision:- “The only error in this case in the Supreme Court is that the learned judge omitted, obviously by an oversight, formally to order that the findings and sentence be reversed before ordering the retrial. We accordingly substitute for the order made by the learned judge in the Supreme Court, “the following order .It is ordered that the finding and sentence be reversed and the appellant be retried on the new charge by another Magistrate.”

It is abundantly clear and obvious to us, as it must be to everyone that the Magistrate having imposed a sentence he did in fact find the appellant guilty and it is quite within the bounds of possibility when delivering his judgment he actually said so.

In a case where there is such an omission as this one, which was undoubtedly an oversight, to consider it fatal we are of opinion would be straining the law of procedure to such an extent that it would amount to a miscarriage of justice and we accordingly dismiss the appeal.

Appeal dismissed.