AMPOFO vs. THE STATE [1967] GLR 155

CASES REFERRED TO

(1) R. v. Curvan (1826) 1 Mood. 132; 168 E.R. 1213.

(2) Christie v. Leachinsky [1947] A.C. 573; [1947] L.J.R. 757; 176 L.T. 443; 63 T.L.R. 231; 111 J.P.

224; [1947] 1 All E.R. 567; 97 L.J. 369, H.L.

(3) Lewis (John) & Co., Ltd. v. Tims [1952] A.C. 676; [1952] 1 T.L.R. 1132; 116 J.P. 275; 96 S.J.

342; [1952] 1 All E.R. 1203, H.L.

(4) R. v. Roberts, Manchester Guardian, 25 March 1953.

(5) McArdle v. Wallace [1964] Crim.L.R. 467, D.C.

(6) Davis v. Lisle [1936] 2. K.B. 434; [1936] 2 All E.R. 213; 105 L.J.K.B. 593; 155 L.T. 23; 100 J.P.

280; 52 T.L.R. 475; 80 S.J. 409; 30 Cox C.C. 412.

(7) Kenlin v. Gardiner [1967] 2 Q.B. 510; [1967] 2 W.L.R. 129; [1966] 3 All E.R. 931; 131 J.P. 191;

110 S.J. 848, D.C.

NATURE OF PROCEEDINGS

APPEAL against the judgment of a district court wherein the appellant was tried and convicted of two counts of assaulting and obstructing police officers in the lawful execution of their duties contrary to section 205 of the Criminal Code, 1960 (Act 29). The facts are sufficiently set out in the judgment.

COUNSEL

K. A. Sarpong for the appellant.

J. O. Amui, Assistant State Attorney, for the State.

JUDGMENT OF ARCHER J.

The appellant was convicted on two counts of assaulting two police officers at Swedru on 25 August 1966 while acting in the execution of their duties contrary to section 205 of the Criminal Code, 1960 (Act 29). The appellant who was sentenced to three months’ imprisonment with hard labour appealed against the conviction on the ground that the learned magistrate failed to appreciate the true interpretation of section 205 of the Criminal Code and convicted the appellant wrongly. He also appealed against sentence.

[p.157] of [1967] GLR 155

The facts are briefly as follows: The appellant, who was at the time the wholesale keeper of the Ghana National Trading Corporation, was in his store when a price inspection superintendent, the second prosecution witness, came in and inspected his goods. When the second prosecution witness came, labourers were loading rice onto a truck. Earlier in the morning, the second prosecution witness had seen the district manager of the G.N.T.C. at Swedru and he had been informed that there was no rice in stock. But later when the second prosecution witness saw rice being loaded onto the truck at the wholesale store, he became suspicious and reported the matter to the police. The police inspector at the Swedru Police Station instructed Police Corporal Abannoh, the first prosecution witness, and Police Constable Busanga, the third prosecution witness, the complainants and the victims of the alleged assault, to accompany the price inspection superintendent to the wholesale store. When these three gentlemen arrived, Corporal Abannoh, the first prosecution witness, informed the appellant that the police inspector wanted him, together with the goods being loaded, at the police station because there was a report against him by the price superintendent. According to Corporal Abannoh, the appellant told him that he was not going and that Corporal Abannoh should inform the police inspector. The corporal then told the appellant to follow him to the police station but the appellant refused to go. The price superintendent then showed his identity card and added that he had been delegated by the government to inspect prices in the district. At this stage, Corporal Abannoh in his evidence stated as follows:

“The accused said that the superintendent should go away with his foolish government. I then told the accused that in view of what he said I have arrested him…I went and tapped him by the left shoulder to follow me to the police station. The accused held me by the tunic with his left hand and gave me a blow on the chest. The accused pushed me inside the wholesale and Police Constable Awuni came to my aid. A civilian, Yaw Botchway, came to my aid when I was in the wholesale. When Yaw Botchway entered the wholesale, the accused held Police Constable Awuni Busanga by the shirt and the shirt got torn.”

When the price superintendent gave his version of the incident, the following was recorded as his evidence:

“When we went to the wholesale the first prosecution witness told the accused that he was wanted at the police station. I requested the accused to produce his invoices covering the goods and he refused to produce them. I took out my identity card and I showed it to the accused, but still he refused to produce

[p.158] of [1967] GLR 155 the invoices. I told him that since he is resisting I would cause him to be charged with obstructing me in the course of my duties. The accused then asked me what powers I have got. Then I said I had the power of the government. The accused then said what government and what has that government done for us. The accused then said, `Foolish government, go away.’ The first prosecution witness then said if you have spoken against the government then I have arrested you. The first prosecution witness then tapped the accused on the shoulder and asked him to go with him to the police station. The accused then started pushing the first prosecution witness into the wholesale. Then Awuni came and asked the accused to be patient.”

It is evident from the story of the price superintendent that he did not see the appellant give the corporal a blow on the chest apart from pushing him into the store. When Constable Awuni Busanga came to the witness-box, his version was as follows:

“The first prosecution witness told the accused that he was being wanted at the station by the inspector. The accused told him that what kind of inspector wanted to see him and he replied that it was the inspector in charge of Swedru. The accused told the corporal that he would not go today and he would not go tomorrow.

The accused then walked into his store. The second prosecution witness said that he would go and have a reinforcement to come and arrest the accused. The accused then asked by what power? The second prosecution witness said that by power conferred on him by the government. The accused then replied, `What kind of government has power to come and arrest me.’ The first prosecution witness then went and tapped him on the shoulder and told the accused to be patient and to go with him. The accused then pushed the first prosecution witness and gave him two blows. I then went to them and asked the accused to be patient. He then held me by the neck and tore my shirt.”

Then in cross-examination, Constable Awuni said when the accused was beating the first prosecution witness (that is Corporal Abannoh) too much, “I set in to separate them.”

I wish to confess at this stage of my judgment that I have taken this answer in cross-examination cum grano salis because it is inconceivable and unimaginable in Ghana for a fellow policeman to stand by and to allow an unarmed, skinny civilian to beat another policeman too much in the other policeman’s view and presence [p.159] of [1967] GLR 155 before stepping in to separate them. I cannot take this acid for an infant’s milk. Whereas Corporal Abannoh said that the appellant gave him one blow on the chest before pushing him into the store, Constable Awuni said, the appellant gave Corporal Abannoh two blows after pushing him. But that is not the end of the prosecution’s evidence. Yaw Botchway, who has never been to school, said he was present when this incident took place. He stated that when the price superintendent produced his identity card and showed it to the accused, the accused said, “Fucking government. What has the government done for you?” I may remark here that Yaw Botchway by this piece of evidence not only betrayed his illiteracy but indicated his particular predilection and infatuation with the use of four-letter words. Two prosecution witnesses, i.e. the first prosecution witness and the second prosecution witness, said the appellant used the words “foolish government” yet this witness, who has never been to school through no fault of his, said on oath that the appellant said “Fucking government.” Then Yaw Botchway continued as follows:

“The first prosecution witness then said that he had abused the government and that the accused should follow him to the police station. The accused then turned round and held the first prosecution witness. The accused dragged the first prosecution witness into the wholesale and I followed them. The first prosecution witness’s hat then fell on the ground. The third prosecution witness then said that he would not stand to see the first prosecution witness being beaten up and so he stepped in. The accused held him by the shirt and his shirt got torn.”

Then in cross-examination Yaw Botchway said the accused held the first prosecution witness and pushed him backwards and forwards. I wish to observe that here is another dream and another story likely to occur only in the world of fantasy. Alas! a police corporal was converted into a pendulum in a grandfather clock and pushed backwards and forwards by an unaided civilian.

Kwesi Nkum, the fifth prosecution witness, said he saw the appellant holding the first prosecution witness by the front part of his shirt and so he rushed to the police station to make a report. In cross-examination Kwesi Nkum said the appellant dragged the policeman into the wholesale. The first, second, third and fourth prosecution witnesses stated that the appellant dragged the first prosecution witness into the wholesale. The incident commenced in the yard by the stationary vehicle when the first prosecution witness asked the appellant to accompany him to the police station. The appellant refused to go. But the prosecution went on to say that after the refusal, the appellant dragged the corporal into the wholesale

[p.160] of [1967] GLR 155 store. For what purpose? I do not know. Why should a person who has refused to accompany the police to the police station, go further to drag one of the policemen into his store? Is this reasonably probable? Surely all that the appellant could have been expected to do was to refuse to go and then walk away into his store. The appellant’s own story is as follows:

“When they finished loading the goods into the truck, the first prosecution witness held my trousers and asked me to follow him to the station. The second prosecution witness said to me that if I did not allow him to exercise his powers given to him by the government he would send me to the police station. I told him that we all form the government. I asked what sort of government he was talking about. The first prosecution witness then told me that I have abused the government. He then held the back of my trousers and I told him that this is not the correct way of arresting a person. Another policeman not in uniform also came and held me by the trousers. I then endeavoured to free myself from their grip. Later they released me from their grip to go and serve a customer. A few minutes after that the inspector arrived with policemen holding truncheons. The inspector held me by the trousers and we walked to the police station.”

When one reads this explanation, the only conclusion one can draw is that there was a struggle when the appellant attempted to free himself. In his examination-in-chief, the price superintendent said he “did not take part in the struggle.” These are his words. We also have the evidence of the third prosecution witness Constable Awuni to the effect that the appellant said, “What kind of government has power to come and arrest me?” which was a harmless non-abusive statement and which can be compared with and equated with the appellant’s own harmless version—”I asked what sort of government he was talking about.”

There is no doubt that the police have statutory powers to arrest and those powers are clearly stated in section 10 of the Criminal Procedure Code, 1960 (Act 30). I shall quote from that section a few relevant provisions:

“10. Any police officer may, without an order from a Court and without a warrant, arrest— (a) any person whom he suspects upon reasonable grounds of having committed a felony or misdemeanour;

(b) any person who commits any offence in his presence,

[p.161] of [1967] GLR 155

(c) any person who obstructs a police officer while in the execution of his duty,…”

Then inter alia “(i) any person whom he finds in any highway, yard, verandah, building or other place during the night and whom he suspects upon reasonable grounds of being about to commit a felony or misdemeanour;

(j) any person whom he has reasonable cause to believe is about to commit a felony or misdemeanour where there is no other practicable way of preventing the commission of the offence.”

The same Criminal Procedure Code in section 3 provides that:

“In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.”

Then section 6 provides: “The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.” And finally for the purposes of my judgment I quote section 7 of the same Code:

“Except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest, and, if the police officer or other person is acting under the authority of a warrant, shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.”

In the present appeal, it seems to me that the first prosecution witness, the second prosecution witness and the third prosecution witness originally went to the appellant’s wholesale store to invite him to the police station to see the inspector of police as a result of a complaint or report made by the second prosecution witness, the price superintendent. The appellant was never informed of the nature of the report and when he refused to go, the police had no authority to arrest him without a warrant. He was therefore at liberty to decline the invitation to go to the police station without being told what criminal offence he had committed. The second prosecution witness, the price superintendent also said when the appellant refused to produce the invoices covering the goods, he warned the appellant that he would be charged for obstructing him in his duties. This

[p.162] of [1967] GLR 155 warning was not heeded assuming the price superintendent was privileged by statute to give that warning. The question is what caused the arrest, if any? None of the prosecution witnesses testified to the effect that the appellant was arrested because he refused to go to the police station. The first prosecution witness said that he arrested the appellant because the appellant said “the price superintendent should go away with his foolish government.” The first prosecution witness therefore claimed that as this exclamation was made in his presence and to his hearing, a criminal offence had been committed in his presence and that he was entitled to arrest the appellant without warrant by virtue of section 10(b) of the Criminal Procedure Code. The second prosecution witness, the price superintendent and the fourth prosecution witness, Yaw Botchway confirmed that the first prosecution witness said he had arrested the appellant because he had spoken against the government. Nevertheless another police officer, Awuni, the third prosecution witness said that when the appellant said “What kind of government has power to come and arrest me?” the first prosecution witness then went and tapped him and told the accused to be patient and to go with him. The third prosecution witness did not say that the first prosecution witness by tapping the appellant informed him that he had been arrested for making that harmless statement.

Here is a situation in a criminal trial in which serious conflicts in the prosecution’s case started rearing their absolving heads to the detriment of the prosecution but to the benefit of the accused. There is a conflict whether the statement made by the appellant in reference to the government caused any arrest at all. There is also another conflict in what the appellant actually said. The third prosecution witness’s version was a harmless statement. The first and second prosecution witnesses gave different versions but both confirmed the use of “foolish government” by the appellant. Then of course, we have Yaw Botchway, the fourth prosecution witness introducing into what he heard four-letter words like “fucking government” and what have you. Since it was impossible to agree on what the appellant said, it was impossible to say whether the appellant had used abusive words—which utterance amounted to a criminal offence. There was therefore no evidence before the trial magistrate that a criminal offence had been committed in the presence of the first prosecution witness so as to generate the exercise of his powers to enable him to arrest the appellant without a warrant. If the appellant had committed no criminal offence in the presence of the first prosecution witness, then the appellant could not lawfully be arrested without a warrant and he was entitled to liberate himself from any restraint put on his liberty and freedom of movement without justification.

We all appreciate the difficult nature of the duties of the police but in this particular case, the police officers concerned together with the price superintendent should have acted reasonably. The price superintendent did not reveal the crime which he suspected the appellant was about to commit; the police officers wanted the appellant to leave the wholesale store unlocked and go to the police station without giving the appellant the opportunity of informing his superiors of his movements. The only inference which one can draw from the prosecution’s evidence and from the appellant’s own explanation is that there was a struggle and he tried to free himself.

Section 205 of the Criminal Code, 1960 (Act 29), under which the appellant was charge reads:

“Whoever— (a) assaults, obstructs, molests, or resists, or aids or incites any other person to assault, obstruct, molest, or resist any public or peace officer, or any person employed by a public or peace officer, acting or proceeding to act in the execution of any public office or duty or in the execution of any warrant or legal process; or (b) uses any threatening, abusive, or insulting language, or sends any threatening or insulting message, or letter, to any peace officer in respect of his duties, shall be guilty of a misdemeanour.”

In the present appeal, the two policemen were peace officers who had been sent to the wholesale store by their superior officer to invite the appellant to the station. They were there therefore in the execution of their duty. They had no mandate from the superior officer to arrest the appellant if he refused to go. Indeed, it appears from the evidence of the first prosecution witness, the second prosecution witness and the fourth prosecution witness that the first prosecution witness said he had arrested the appellant not because he refused to go but because he had made an exclamation or remark which the first prosecution witness thought amounted to a criminal offence in his presence. In my view, as there was a conflict in the evidence for the prosecution as to what offence the appellant committed before the attempted arrest, I can say on authority that the arrest was illegal and if it was illegal then the appellant was entitled to free himself. Thus in the very old case of R. v. Curvan (1826) 1 Mood. 132, Curvan had been arrested without warrant, for insulting a man on a road. The constable was acting on a complaint which had been made to him but the alleged offence did not, of course, justify Curvan’s arrest without a warrant. He escaped, and later one Wally a private person, on whom the constable had called for assistance stopped

[p.164] of [1967] GLR 155 him and attempted to arrest him, threatening him with a stick. Curvan, after warning Wally that he would stab him if he did not let him go, cut him in the face with a knife. He was subsequently tried on an indictment one count of which charged him with feloniously cutting Wally “with intent to obstruct, resist and prevent the lawful apprehension and detainer of the prisoner, for a certain offence, for which he was then liable by law to be apprehended and detained…” He was convicted on this count. Holroyd J. who tried the case reserved it for the opinion of the judges who held that the original arrest was illegal; and that the recaption would also have been illegal; and therefore the case would not have been murder if death had ensued, and consequently the prisoner was entitled to an acquittal. I have cited this case to illustrate that even where an offence has been committed, it is illegal to arrest the offender without a warrant, if the alleged offence did not justify arrest without a warrant. The offence in that case was a misdemeanour and the constable had no power to arrest without a warrant at common law.

Here in Ghana section 10 of the Criminal Procedure Code does not make any distinction. Section 10(b) enables a police officer to arrest, without an order from a court and without a warrant, any person who commits any offence in his presence. The emphasis is on “any offence” whether it is a felony or misdemeanour. Any offence does not mean any offence according to the idiosyncracies and iconoclastic notions of any police officer, but an offence known to the law, that is a criminal offence or other offence created by other statute or enactment. It follows therefore that if no offence known to the law has been committed, then the police officer cannot arrest without warrant and the person sought to be arrested can resist arrest. Thus Lord du Parq in Christie v. Leachinsky [1947] A.C. 573 at p.601, H.L. stated:

“If when a charge which does not justify arrest has been expressly made the person charged is entitled to resist apprehension, I find it impossible to suppose that the law will hold the arrest good if it subsequently appears that … a felony had been committed. The right to resist is, as I have tried to show, always limited by the duty to submit to arrest by an officer of the law even though the reason for arrest is not at once stated.”

Then he goes on, on the same page.

“But if a reason has been stated which is, on the face of it, insufficient to justify arrest without warrant, no man could safely defend his liberty if some other ground for the arrest, which the officer had deliberately chosen to conceal from him,

[p.165] of [1967] GLR 155 could subsequently be brought forward by way of justification.”

In the present appeal therefore, the police officers could not have arrested the appellant merely for the harmless exclamation he made whereas in fact the true reason for the arrest was his refusal to go to the police station on a mere suspicion reported by the price superintendent which the police officers had concealed from the appellant.

Lord Porter in John Lewis & Co., Ltd v. Tims [1952] A.C. 676 at p. 691, H.L. said: “Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile … “ Again in R. v. Roberts as reported in the Manchester Guardian, 25 March 1953, Devlin J. (as he then was) told the jury:

“You may sometimes read in novels and detective stories, perhaps written by people not familiar with police procedure, that persons are sometimes taken into custody for questioning. There is no such power in this country. A man cannot be detained unless he is arrested.”

But it seems that in Ghana, the police may detain for questioning and the Attorney-General may give his fiat for detention for renewable periods of not more that 28 days. Nevertheless, I cannot do better than cite what Viscount Simon said in Christie v. Leachinsky [1947] A.C. 573 at pp. 587-588, H.L.:

“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

(4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie,

[p.166] of [1967] GLR 155 entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.”

Considering the whole evidence in this case it seems to me that when the first prosecution witness, the second prosecution witness and the third prosecution witness went to the wholesale store they did not inform the appellant of the true nature of the complaint which the second prosecution witness had made to the inspector. The appellant, was therefore entitled to refuse to go. After his refusal to go, the police officers had no right to remain in the wholesale store when the appellant asked them to go away with their government assuming even he used the word “foolish” or “fucking.” The officers thereafter became trespassers. Thus in McArdle v. Wallace [1964] Crim.L.R. 467, D.C., a constable was held to be acting in the execution of his duty when he entered a cafe to make inquiries regarding some property which he thought might have been stolen. He was told to leave but did not do so and was then assaulted. At the time of the assault he was no longer acting in the execution of his duty since he became a trespasser when he refused to leave for a constable can hardly have a duty to break the law: see also Davis v. Lisle [1936] 2.K.B. 434.

Furthermore, there is conflict in the evidence of the prosecution as to the exact words uttered by the appellant and therefore the prosecution failed to establish that before the arrest the appellant had committed an offence. A police officer can only arrest a person for an offence known to the law and not according to the moral code of the police officer. As the appellant had committed no offence, the arrest was illegal and the appellant was entitled to free himself from any restraint placed on his liberty. The purpose of the visit of the police officers to the wholesale store was to invite the appellant together with the goods to the police station to enable the inspector of police to interview the appellant to find out whether the alleged complaint or report made by the price superintendent amounted to an offence or whether the appellant was about to commit an offence which the police should prevent. When the appellant refused to go, the police officers could not use as justification for his arrest, conduct of the appellant which did not constitute a crime, to effect indirectly his presence at the police station for questioning. Thus in the recent case of Kenlin v. Gardiner [1966] 3 All E.R. 931 the Queen’s Bench Division consisting of Lord Parker C.J., Winn L.J., and Widgery J. heard an appeal from the conviction of two young schoolboys who

[p.167] of [1967] GLR 155 were calling on a number of premises when their conduct aroused the suspicion of two plain-clothes constables. When approached by the constables, the defendants concluded that they were not genuine police officers and one of the defendants made to run away. One of the constables caught hold of his arm and a struggle ensued. The defendants were later convicted of assaulting the constables in the course of their duty. The Divisional Court held, allowing the defendants’ appeal, that when the constable took hold of the boy’s arm he was not arresting him but desired to put a question to him to determine whether or not he had power to arrest him. Accordingly the constable’s action was an assault and, on that, the force used by the defendants was justified and their conduct was justified as self-defence.

In the present appeal before me, it appears that according to the evidence of Constable Awuni, when the appellant said, “What kind of government has power to come and arrest me?” the first prosecution witness then went and tapped him and told the accused to be patient and to go with him. Was the tapping a formal arrest as a result of the challenge thrown by the appellant by saying what kind of government had power to arrest him or was the tapping the result of an offence committed? On the evidence it may be said that as soon as the first prosecution witness tapped the appellant, he committed an assault on the appellant without justification and the appellant was entitled to resist the arrest in self-defence.

I have read the judgment of the learned district magistrate very carefully and it seems to me that he did not give proper attention to the evidence for the appellant and his witnesses. He merely dismissed their evidence as a concoction whereas there were fundamental principles affecting the liberty and freedom of the subject on the one hand and the powers of the police to arrest on the other hand.

For the reasons which I have already given, the appeal is allowed. The conviction is quashed and the sentence is set aside. The appellant is acquitted and discharged.

DECISION

Appeal allowed.

S. E. K.