The import of section 109 supra is that an erroneous ruling by a Court that a document offered in evidence is not subject to stamping at all or if subject to stamping, that sufficient stamp duty has been paid, will not of itself invalidate a decision of the Court. Consequently, a decision which took into account such wrongly adjudged and admitted documents shall not be reversed, set aside or otherwise interfered with, on the sole ground that the document was subject to stamping or that the full stamp duty was not paid, or that the document was not subject to stamping.
Section 11(6): time for appealing from the High Court
Rules 15 of the Court of Appeal Rules, 1997 (C.I. 19) makes provision for the filing of Notice for Variation of judgment in civil appeals and shall be filed within one month after service of the Notice of Appeal on the respondent. There is no such provision made for a Respondent in criminal appeal and a Respondent who wish to file an appeal against the decision of the High Court to the Court of Appeal shall file it in the form of appeal and not cross appeal as the Attorney-General did in the instant appeal and must be filed within the time prescribed for appeal. Section 11(6) of the Courts Act,1993 (Act 459) provides that a party who desires to appeal against a judgment delivered by the High Court to the Court of Appeal shall give Notice of Appeal or Notice of an Application for leave to appeal within one month of the decision appealed against. The Attorney-General filed his Notice of Appeal against the sentence imposed on the Appellant for an enhancement barely one month three weeks from the date of the delivery of the judgment without the leave of the Court, and indeed, there was no appeal pending in the eyes of the law. The Notice of Appeal filed by the Attorney-General on 8th August, 2008 without the leave of the Court is incompetent and same is struck out as such.
Section 31(1): when a criminal appeal must be allowed
Section 31(1) of the Courts Act 1993 (Act 459) provides as follows: “Subject to subsection (2) an appellate court on hearing an appeal in a criminal case shall allow the appeal if the appellate court considers That the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or That the judgment in question ought to be set aside as a wrong decision on a question of law or fact, or That there was a miscarriage of justice And in any other case shall dismiss the appeal.”
Subject to subsection (2), an appellate Court on hearing an appeal in a criminal case shall allow the appeal if the appellate court considers a. That the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or b. That the judgment in question ought to be set aside as a wrong decision on a question of law or fact, or c. That there was a miscarriage of justice and in any other case shall dismiss the appeal
Section 31(2): technicality or defect in the charge
I am of the respectful view that it is not every finding based on an error of law that is fatal to a ruling or verdict. In my respectful opinion, where the error is harmless, or even if serious, it is counterbalanced by evidence so overwhelming to override the error and no substantial wrong or miscarriage of justice resulted, it should not affect the decision.
It goes to show the legislative intendment that an appeal should not be allowed merely on account of what appears to be a technical objection or defect in the charge sheet where evidence has been led to support what is being objected to. If the charge sheet said the theft took place in 1980 but the evidence showed that the theft took place in or about 1986 it causes no miscarriage of justice since the appellant does not dispute that the car in question was given to him and that he was the one who took it to Kumasi in 1980 and that since then it has not been returned to the council. He also does not plead alibi. He had every opportunity to contest the prosecution’s story. It is my view, therefore, that the objection is untenable and ought to be dismissed. Also, as long as the statement of offence disclosed the offence with which he is charged, an appeal based on a defective particulars of offence cannot hold.
