JUDGMENT OF AKUFO-ADDO C.J.
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:
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“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.”
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.
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.
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.
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:
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