ARHIN ALIAS PALL MALL vs. THE REPUBLIC [1995-96] GLR 190

NATURE OF PROCEEDINGS

APPEAL to the Court of Appeal by the appellant, a prison officer who supplied pistols and ammunition to remand prisoners who used them in breaking out of jail, from his conviction by the National Public Tribunal of the offence of abetment of an attempt 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) and his sentence of 25 years’ imprisonment. The facts are sufficiently stated in the judgment of Forster JA.

COUNSEL

Atta Akyea for the appellant.

Mrs Ofori Dwumah, Principal State Attorney, for the Republic.

JUDGMENT OF FORSTER JA.

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

[p.193] of [1995-96] GLR 190

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.

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:

“(1) the honourable tribunal erred in convicting the petitioner when the evidence adduced by the prosecution was not sufficient to support the charge; and (2) the sentence imposed on the accused is harsh and excessive.”

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.

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

[p.194] of [1995-96] GLR 190 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.

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:

“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.”

It is from this evidence that must be determined the question whether those who supplied the weapons to the jail-breakers knew of any other purpose for which the fire arms were to be used. It seems to me that the answer must be no. The witness was not by his evidence, a collaborator or a confederate in crime with the jail-breakers. Except that they decided to confide in him, he could not have known of the criminal object or the purpose for which they needed the firearms. It is quite evident therefore that the appellant and non-appellant, if indeed they supplied the jail-breakers with the fire arms, could only have known that the purpose of their procurement was to facilitate their

[p.195] of [1995-96] GLR 190 liberation from the Ussher Fort jail.

There was however a belated attempt by the witness to lend support to the charge of abetment of preparation to overthrow the government. After the witness had mentioned that on the day of the jail-break the chief prison officer was shot and wounded, he said: “We thought it was a jail-break, which had been planned but it was on that Sunday that I was told it was going to be a coup.” This piece, an obvious addendum to his evidence that there was going to be a jail-break, seems to me clearly to lack veracity or any weight at all. The source of this vital information was not disclosed. At best, it was inadmissible hearsay and bears all the hallmark of gossip, which the witness must have picked up when, as it turned out, the jail-breakers, after their successful escape, proceeded further to the Nsawam Prisons and then to Broadcasting House where they made “certain announcements.”

I am convinced then that the only evidence of the purpose for which the fire arms were procured by the appellant and non-appellant for the use of the remand prisoners was to assist them to break jail. As to an attempt to overthrow the Government of Ghana, no evidence was adduced to prove that fact. It is in the opening statement of the prosecution that mention was made of the escapees having stormed the Broadcasting House and occupied it for sometime after making certain announcements. They were later flushed out. That of course was not evidence.

In their judgment the tribunal approached the appellant’s knowledge (inferred) as follows: “Was it reasonably foreseeable that if some of these persons (who would surely be sentenced to death if convicted) had the chance to escape with weapons in hand, there was the possibility of their trying to free their detained colleagues, and attempting another coup? The answer is a very simple one. A person who stood a high risk of imminent death is capable of going to any lengths and it is highly risky and dangerous to put dangerous weapons and ammunition into the hands of such a person. When the first and second accused decided to debase themselves by facilitating the escape of such persons by giving them weapons, they knew or ought to have known that they could go to any length even to the point of preparing and endeavouring to overthrow the government. They cannot now be heard to say that they did not know or

[p.196] of [1995-96] GLR 190 reasonably foresee that the weapons they supplied to those desperate dissidents could be used in preparing or endeavouring to overthrow the government”

While I am prepared to agree that these desperate and dangerous men with two pistols and ammunition were obviously a danger to the community as they made their way to Togo, I cannot impute to the two officers the knowledge or the reasonable apprehension of the possibility of these men, armed with the pistols, first overcoming the security at this country’s medium security prisons at Nsawam and much less making their way back to Accra and to Broadcasting House, overpowering the military guards, gaining access to broadcasting equipment and proceeding to make certain announcements, as was alleged in the prosecution’s opening statement. Although, there was no evidence of any attempt to overthrow the government, I think the tribunal might have rightly taken judicial notice of that fact which by the grace of the media became a fact so notoriously known that no offer of proof was necessary.

To be able to determine the correctness of the foreseeability test adopted by the tribunal here, the question that need be asked is: whether or not the crime committed was a reasonably proximate consequence of the crime of jail-break procured or facilitated? Could the crime of an attempt to overthrow the government, allegedly committed by the jail-breakers when they secured their liberty beyond the prison gates, be considered as growing out of the known enterprise? I do not think so. The substantive offence of an attempt to overthrow the Government of Ghana did not fall within the scope of the unlawful object for which the pistols were supplied, that is facilitating the jail-break by these desperate men. For it would not be reasonably foreseen as a necessary or rational consequence of the violent jail-break.

It seems to me that no reasonable and dispassionate tribunal could have come to the conclusion that, by supplying the pistols to the remand prisoners who had declared as their intention their escape from the prisons, the abettors must be held responsible for any inconceivable criminal act committed by the prisoners after they had broken out of jail and however far away the place of the commission and however unrelated to their declared purpose for procuring the weapons. I think that the only probable and proximate result of the supply of the weapons or such as the appellant could have reasonably foreseen was

[p.197] of [1995-96] GLR 190 that in the course of breaking jail and seeking their freedom by flight to Togo, they would not hesitate to use the fire arms, if their progress was in any way obstructed. An attempt by the escaped prisoners to overthrow the government was decidedly too remote and conjectural a possibility for the abettors to have reasonably known or foreseen, as a probable result of the prisoners’ quest for freedom. It was a risky, dangerous and unrelated adventure, entirely unrelated to their declared object of breaking jail. And in my opinion, therefore, the tribunal erred in holding that the appellant, on the facts as made known to him by the prisoners, could have foreseen that the escapees would upon gaining their freedom, also immediately attempt to overthrow the government.

The appellant is not however entitled to acquittal upon my conclusion that the evidence did not support the offence charged against him. There is evidence that the pistols were supplied by the appellant and the other officer. The appellant knew that the weapons were meant to be used in the jail-break. In his statement to the police, he said:

“I took the pistol which was black in colour to the prisons the next morning. I took the pistol without ammunition to Corporal Braimah in his cell . . . Adabugah on the receipt of the pistol told me that they had some of the pistols and were waiting for the last one, being the one I took to him. He told me they were going to use the pistols to break out of the prisons.”

It is quite clear then that the appellant, even by his confession alone, admitted abetting the jail-break and also the commission of any offence that naturally arose from and was proximate to the jail-break. There is evidence on record that the escapees shot and wounded a chief prison officer who attempted to prevent their escape. He was hospitalised for one month.

Further, as the evidence showed, 11 June 1983 was the original day set for the jail-break. But according to the first prosecution witness, “it would not work because according to Corporal Adabugah, those to assist them to make the trip would come from Lome and that they could not make the trip. The date was therefore postponed to 19 June 1983.”

It was also disclosed that after the jail-break, those who were able to

[p.198] of [1995-96] GLR 190 escape from the confrontation with the security personnel at Broadcasting House eventually reached the safety of Lome and joined other dissidents.

As already concluded infra, the evidence does not support the offence of abetment of an attempt to overthrow the Government of Ghana. In these circumstances however, the Court of Appeal need not necessarily acquit and discharge the appellant. For in terms of section 13(21) of PNDCL 78:

“(21) Where a Public Tribunal upon the sum of evidence disclosed is satisfied that an offence has been committed under this Law which is not the offence charged, it shall notify the accused of this, and may proceed to convict the accused of that other offence unless the accused shows cause why he should not be convicted.”

In the course of the hearing of this appeal, the probability of applying the provision quoted above was raised by counsel for the respondent.

The National Public Tribunal appellate and review division, upon hearing a petition for appeal or review, may in terms of section 20(1)(a)(ii) of PNDCL 78: “alter the finding, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence;” This court, therefore, exercising the power of the appeal and review division of the National Public Tribunal, is equally competent to alter the finding of the trial tribunal substituting for the conviction of the offence charged, a conviction for any offence committed under PNDCL 78, if the evidence on record is capable of sustaining proof of that offence. In considering such appropriate offence, reference may be made to section 9 (2) of PNDCL 78. Under that provision, it is an offence for:

“(c) any person or group of persons who acted or omitted to act, in breach of any enactment or other laws of Ghana whereby . . . the security of the State was endangered or damage was caused to the welfare of the sovereign people of Ghana.”

As an officer of the Prisons Service, the appellant was duty bound to ensure that persons placed on custodial remand at the Ussher Fort Prisons continued to be so lawfully detained, until a court had ordered their release from custody. In the instant case, the act of assisting the

[p.199] of [1995-96] GLR 190 remand prisoners to break out of prison custody was violative of the lawful custodial remand order of the court. That act of the appellant was decidedly “in breach of (an) enactment”, being section 26(1) of PNDCL 78, under which provision a tribunal has the power to remand an accused person in custody or grant bail to such person. Thus, the first limb of section 9(2) (c) of PNDCL 78 is satisfied. Consequent upon the break out of jail and in the course thereof, the escapees caused unlawful harm to Joseph Kofi Buokura, a chief prison officer of the Prisons Service, then stationed at the Ussher Fort Prisons. It was the weapon supplied to the escapees by the appellant and his confederate that was used to inflict injuries on the officer, when he dutifully attempted to resist them. It is also in evidence that having succeeded in breaking out of the Ussher Fort Prisons, the escapees further went to the Nsawam Prisons and rescued other inmates from lawful custody, and in the process killed a prison officer. They then stormed the Broadcasting House and occupied it for sometime until they were flushed out.

These were the violent and criminal acts of the escapees who were assisted by the appellant. There is also evidence that these men who were on remand were all standing trial on a charge of attempt to overthrow the PNDC administration. They were thus dangerous men whose release from lawful custody posed a serious threat and danger to the security of the Ghanaian society. The fact that the appellant could not have reasonably foreseen or contemplated the violent escapades of the prisoners beyond the prison walls, is in respect of an offence under section 9(2)(c) of PNDCL 78, irrelevant. If it was known to the appellant that these were violent men, their subsequent acts were merely evidentiary to show that they indeed caused a danger to the security of the State or put such security in danger. Like the offence of leaving a ferocious dog at large, the violent attacks or savaging caused by the dog are not charged against the owner of the dog. The violence is merely tendered to prove that the dog was indeed ferocious. The violent escapades of the escapees are, in the instant case, evidence that conduced to the proof that they were a danger to the security of the State.

I have no doubt therefore that on the totality of the evidence, the appellant could have properly been convicted of the offence under section 9(2)(c) of PNDCL 78. In terms of sections 13(21) and 20(1)

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(a)(ii) of PNDCL 78, for the conviction for the Offence charged, this court would substitute a conviction of the Offence under section 9(2) (c) of PNDCL 78.

I think however that the sentence of 25 years’ imprisonment by the trial tribunal should not be disturbed. This court must show its unreserved abhorrence to such criminal conduct, especially when it is perpetrated by the very persons whose duty it is to protect and maintain the security of our prisons and ensure that dangerous and violent inmates thereof are not let loose upon the peace of the society. For thereby crimes of this nature would be encouraged, and the safeguards provided by law for security and order would be seriously impaired.

The appeal against the conviction succeeds in part, in the sense that this court would substitute a conviction of an offence under section 9(2)(c) of PNDCL 78 for the offence charged. The appeal against sentence is dismissed.

JUDGMENT OF ESSIEM JA.

I agree.

JUDGMENT OF ACQUAH JA.

I also agree.

DECISION

Appeal allowed in part.

JNNO