KINGDON, C.J.. NIGERIA, PETRIDES ,C.J., GOLD COAST AND BANNERMAN, J. DECISION UPON PRELIMINARY OBJECTION.
In this case the appellant was convicted in the Court of the District Magistrate, Tarkwa, and appealed to the Divisional Court of the Western Province. That Court ordered the appellant to be re-tried “ on the new charge” before another Magistrate. The appellant has further appealed to this Court. Upon the appeal being called counsel for the respondent has submitted that the appeal is not properly before the Court and should be struck out He argues that in fact there is nothing before the Court, because the appellant has not made his appeal in the form of a petition as required by section 315 of the Criminal Procedure Ordinance (Cap. 10), which he points out applies by virtue of the provisions of section 325 to appeals presented to this Court by a person aggrieved by a decision of the Supreme Court in its appellate jurisdiction under Part VIII of the Ordinance.
Whilst we agree with him that the correct form in which to make such an appeal is by petition as prescribed in section 315 of the Criminal Procedure Ordinance, and that the forms given in Appendix C to the West African Court of Appeal Rules, 1937, are inapplicable, we do not agree with his argument that there is nothing before us. We have before us an appeal, albeit in the wrong form, filed in pursuance of the right conferred by section 324 of the Ordinance, and filed within the time prescribed by section 325. But counsel for the Crown further argues that since section 315 imposes a statutory requirement as to the form of the petition, failure to comply with it is fatal and must involve the striking out of the appeal. As we understand the decisions of the Privy Council upon questions of this nature, a failure to comply with statutory provisions will fall into one of two categories. The objection may be in limine, that is to say it may go to the jurisdiction, as it did in the case of Ohene Moore v. Akesseh Tayer (1 W.A.C.A. 243 (in this Court) and 2 W.A.C.A. 43 (in the Privy Council), in which event it is fatal, or it may be merely a matter of procedure or a mere technicality as in the case of Kojo Pon v. . Atta Fua (P. C. 1874-1928, p. 95). In the latter event the objection is not fatal and it is within the power and duty of the Court to do substantial justice.
We have therefore to decide into which category the present objection falls. We think that the fact that the provision which has been disregarded is contained in an Ordinance and not in rules or regulations makes no difference in this case because the Ordinance purports to be a procedure ordinance. Actually some of its sections do much more than merely prescribe procedure. Section 324 is a case in point; that section actually confers a right of appeal and it is from it that this Court derives its jurisdiction to hear appeals such as the present; on the other hand some of the sections deal with matters of procedure pure and simple and we think that section 315 is such a section. It follows that, in our view, an objection based on a failure to comply with its provisions is not an objection which lies in limine, and the failure does not operate to deprive this Court of jurisdiction to hear the appeal, or the appellant of his right to appeal conferred by section 324.
For these reasons we decided to give the appellant an opportunity to amend the form of his appeal so that it is in the form of a petition. JUDGMENT. In our view the statement of the powers of the Supreme Court under section 319 (1) (a) (i) of the Criminal Procedure Code as set out in the case of C. O. P. v. Ayiku (5 W.A .C.A. 89) applies to this case and we have no doubt that under the provisions of that section the Supreme Court (and on appeal therefrom, this Court) has power to order a re-trial, as one of the alternatives to acquitting Samuel or discharging the accused, after reversing the finding and sentence.
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 finding and sentence be reversed, before ordering the re-trial. 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 that the appellant “be re-tried on the new charge by another Magistrate.