ARHIN ALIAS PALL MALL vs. THE REPUBLIC [1995]DLCA537

Date	1995-01-26
Suit No.
Citation No.	[1995]DLCA537

ESSIEM JA

FORSTER JA

ACQUAH JA

ATTA AKYEA FOR THE APPELLANT.

MRS OFORI DWUMAH PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC.

[1995]DLCA537
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ARHIN ALIAS PALL MALL<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1995-96] GLR 190<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 26
JANUARY 1995<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ATTA AKYEA FOR THE APPELLANT.<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">

MRS OFORI DWUMAH PRINCIPAL
STATE ATTORNEY FOR THE REPUBLIC. <o:p></o:p>

ESSIEM, FORSTER AND ACQUAH JJA<o:p></o:p>

</div>JUDGMENT OF FORSTER JA.<o:p></o:p>Jackson Duodu and Emmanuel Arhin alias Pall Mall were at the
material time in 1983, lance corporals in the Ghana Prison Service. Their duty
post was the Ussher Fort Prisons, Accra. In June 1983, among the inmates of the
prisons, were Corporals Adabugah, Akademah, Braimah and Tekpor. They had been
remanded in custody pending their trial in connection with a charge of an
attempt to overthrow the then Provisional National Defence Council (PNDC)
administration committed on 23 November 1982. While they were in custody, they
managed to escape and with the active collaboration of the two prison officers.
Once they were at large, the escapees—military men—mounted an operation to
overthrow the PNDC Government. The two prison officers were tried at the National
Public Tribunal and convicted on a charge of abetment of preparation to
overthrow the Government of Ghana contrary to section 20(1) of the Criminal
Code, 1960 (Act 29) and sections 9(1)(g) and 16 of the Public Tribunals Law,
1984 (PNDCL 78). They were sentenced to 25 years’ imprisonment with hard
labour.<o:p></o:p>On 9 June 1989 Emmanuel Arhin (hereinafter called the appellant)
appealed to the National Appeal Tribunal, having first obtained leave to appeal
out of time. His appeal which was pending when the Constitution, 1992 came into
force, was transferred to the Court of Appeal by the Chief Justice pursuant to
section 7(4) of the transitional provisions of the Constitution, 1992. In his
appeal, the appellant challenged his conviction and sentence on the grounds
that:<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">“(1) the honourable tribunal erred in convicting the petitioner
when the evidence adduced by the prosecution was not sufficient to support the
charge; and <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">(2) the sentence imposed on the accused is harsh and excessive.”<o:p></o:p>Arguing the first ground of appeal, Mr Atta Akyea contended that
the evidence produced by the prosecution did not support the charge, in that
the evidence even if believed did not establish that the appellant and the
non-appellant were aware that the persons they aided intended, upon gaining
their freedom, to engage in any activity or preparation to overthrow the
Government of the PNDC.<o:p></o:p>The evidence established that the two prisons officers made
available to the remand soldiers two pistols and ammunition which they knew
were meant to be used by the soldiers in their bid to escape from custody. In
the process of subduing resistance to their plan, one of the soldiers shot and
wounded the chief prison officer who attempted to prevent their escape. Having
thereafter gained their freedom, the soldiers continued to the Nsawam Medium
Security Prisons where they succeeded in freeing some prisoners. Back in Accra,
they stormed Broadcasting House and occupied it for sometime until they were
flushed out. Some of those who escaped capture went into hiding in Lome, in the
Republic of Togo. The evidence left no doubt that the appellant and the other
officer were aware that the fire arms which they supplied to the remand
prisoners were intended to be used in the jail-break.<o:p></o:p>The most material witness for the prosecution was the first
prosecution witness, Warrant Officer Class One Stephen Agbeli of the Ghana
Army. He was at the material time a remand prisoner at Ussher Fort. He was then
on trial at the military tribunal for an offence of having “recruited some
people to kill an unknown person.” He testified that he met the appellant and
the non-appellant as officers at Ussher Fort, as well as Corporals Akademah,
Adabugah, Braimah and Tekpor, who were standing trial for their involvement “in
an attempted coup” at the tribunal. In his evidence, he said:<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">“One day, they came back from the tribunal and told me that one
Corporal Opoku Ware, a member of the tribunal, sent a message to them that they
would all be killed and so he would be running away from the country. So they
should also try to have a jail-break, if not they would all be killed. It was
then decided to have a jail-break. Before then I was in the same cell with
Corporal Akademah. One day he told me that they had requested assistance to
bring them a weapon and the prison officer involved was Emmanuel Arhin (Pall
Mall), the second accused in this case. Another was Lance Corporal Duodu the
first accused.”<o:p></o:p>