ZANLERIGU vs. THE REPUBLIC [1967]DLHC1551

Date	1967-11-27
Suit No.
Citation No.	[1967]DLHC1551

AKUFO-ADDO C.J.

P. SWANIKER FOR THE APPELLANT.

ADJETEY STATE ATTORNEY FOR THE RESPONDENT.

[1967]DLHC1551
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													<main id="main" class="content" style="min-height: 60rem" >ZANLERIGU<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 680<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 NOVEMBER
1967<o:p></o:p>

</div>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">

P. SWANIKER FOR THE APPELLANT.<o:p></o:p>

ADJETEY, STATE ATTORNEY, 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">

AKUFO-ADDO C.J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AKUFO-ADDO C.J.<o:p></o:p>The
appellant, a colonel in the Ghana Army, and who at the material time was in
protective custody at the Ussher Fort Prison, Accra, was charged with, and
convicted of, abetment of smuggling a thing (i.e. a letter written by him) out
of prison without the authority of the prison superintendent. Particulars of
the offence as stated in the relevant count in the charge sheet read 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;“David Gbon Zanlerigu: For that you during the
month of July 1966, at Ussher Fort Prison, Accra in the Eastern Circuit and
within the jurisdiction of this court, procured a convict prisoner in the
commission of a crime, namely, conveying a letter out of Ussher Fort Prison
without authority from the Prison Superintendent to one Brigadier D. C. K.
Amenu.”<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was also charged on another count with conspiracy to smuggle a thing
(i.e. the same letter as aforesaid) out of prison. He was discharged on this
count, and an appeal against the discharge entered by the Republic was struck
out by me on 8 November 1967, for having been entered out of time.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was convicted on the other count and sentenced to five years’
imprisonment with hard labour which is the statutory minimum sentence
prescribed for the offence, and it is against this conviction and sentence that
the appellant has appealed.<o:p></o:p>The facts
are briefly these: On 24 February 1966, when the army staged a coup d’etat to
oust the then President from power, the appellant, a colonel in the army, was
in command of the Presidential Guard stationed at Flagstaff House, the
residence of the then President. When a contingent of the army staging the coup
attacked the said Flagstaff House the Presidential Guard under the command of
the appellant resisted the attack. The resistance was in course of time
overcome, and the appellant was subsequently, that is on 27 February 1966,
arrested and detained in the Ussher Fort Prison. It is not apparent from the
evidence what was precisely the nature of his detention. But on 18 April 1966,
while the appellant was still detained the National Liberation Council (that
is, the government) promulgated a Decree (i.e. the National Liberation Council
(Protective Custody) (Amendment) Decree, 1966 (N.L.C.D. 37)), whereby the
appellant was formally placed in protective custody.<o:p></o:p>The
evidence shows, and the learned trial judge found, that when the appellant was
first taken to the Ussher Fort Prison he was, in the words of the trial judge:<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">“housed
at the gate lodge and enjoyed several facilities and privileges not normally
open to prisoners; he received food from outside and visits by his wife. By
N.L.C.D. 37 dated 18 April 1966 the accused was formally placed under
protective custody, and, in the normal course of events, the privileges
accorded the accused ought to have ceased, but they continued to be enjoyed by
him until the end of June 1966.”<o:p></o:p><o:p>&nbsp;</o:p>Some time
in July 1966, an officer of the army, Brigadier Amenu, then Commander of the
Second Infantry Brigade Group, a personal friend of the appellant, who used to
be the appellant’s commander in the President’s Own Guard, received a letter
from the appellant. The letter was written on toilet paper and was posted by a
discharged prisoner at the appellant’s request. This was the letter that formed
the subject-matter of the charges brought against the appellant. The letter
bore no date, and although it reached Brigadier Amenu by post, enclosed in an
envelope, the envelope was not produced at the trial. Since the precise date on
which the letter was sent out became one of the material issues in the trial
one can only express surprise that the prosecution did not think it necessary
to produce the envelope. No explanation for its non-production appears on the
record.<o:p></o:p>