COMMISSIONER OF POLICE vs. GAITUAH [1961]DLSC10223

Date	1961-12-22
Suit No.	G L R 789 - 797
Citation No.	[1961]DLSC10223

ADUMUA-BOSSMAN J.S.C.

APATU-PLANGE FOR THE APPELLANT.

K. DUA SEKYI WITH HIM SARKODEE FOR THE RESPONDENT (THE STATE).

[1961]DLSC10223
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													<main id="main" class="content" style="min-height: 60rem" >COMMISSIONER
OF POLICE<o:p></o:p>vs.<o:p></o:p>GAITUAH<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">G L
R 789 - 797&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
22ND DECEMBER, 1961<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APATU-PLANGE FOR THE APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

K. DUA SEKYI WITH HIM
SARKODEE FOR THE RESPONDENT (THE STATE).<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SARKODEE-ADOO JSC,
ADUMUA-BOSSMAN J.S.C, CRABBE J.S.C.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;ADUMUA-BOSSMAN,
J.S.C.<o:p></o:p>&nbsp;Adumua-Bossmand J.S.C. delivered the judgment
of the court.&nbsp; There is no dispute about
the events leading to the prosecution of the appellant. The appellant in and
about February, 1957, when he had then passed only the intermediate (but not
the final) examination for the degree of Bachelor of Science of the University
of London, was engaged as a teacher at the O'Reilly Educational Institute in
Accra (which will hereafter be referred to shortly as the Institute) at the
monthly salary of £G16 3s. 4d.&nbsp; The
Institute was what is officially described as an "approved"
educational institution, which means, for the purposes of our case, that the
Government through the Ministry of Education, was shouldering the
responsibility of payment of salaries of teachers employed and working at the
institution.&nbsp; It is, however, a question
of considerable importance which arises for consideration and determination
whether, having regard to the evidence available on record, the position is
that sums made available by the government for payment of salaries of teachers
remain government funds even when admittedly paid to the school for payment out
as salaries, so that a teacher has the ownership or property (dominium) in the
money passed or transferred direct from the government to him when he receives
his pay; or whether when the sum is paid to the school which applied for it,
the sum becomes the property of the school, although of course the school must
apply it in payment of salaries, and it is the school's ownership which is
passed or transferred to a teacher when he receives payment.<o:p></o:p>&nbsp;Continuing, however, with the events leading
up to the prosecution, when the appellant was employed in February 1957, as
already said, he was working there when on the 27th May, and the 3rd, 4th, 7th
and the 11th June, 1957, he sat for an examination in certain subjects for the
final degree of B.Sc. (Lond.) and had to wait for some time for the result.
When the result had not yet come out, somewhat improperly, the appellant
stopped teaching at the Institute on the 31st August, 1957, and applied by
letter dated the 1st September, 1957, to the principal and proprietor of a private
school, St. John's Grammar School, which was receiving no financial aid from
Government, for employment as a teacher in that school, and managed to secure
the engagement on the same day at the higher salary of £G22 10s. per month, as
per the principal's minute on the appellant's letter of application admitted as
exhibit F.&nbsp; He thereupon commenced
working at the school as from the 1st September and worked to the end of the
month before it seems to have occurred to him to give [p.792] notice of
resignation to the Institute to which he addressed a letter dated the 30th
September, 1957, giving notice to resign at the end of October, "owing to
the smallness" of his salary. There is evidence from the acting headmaster
of the Institute at the time of the prosecution, that in leaving as he did
without notice, he should have paid a month's salary to the Institute; the
amount, however, was not claimed from him, but rather an agreement seems to
have been effected by the headmaster at the time that as the appellant was
waiting for the result of his examination for the B.Sc. degree, his name would
not be erased from the staff list but that some one should be found to teach in
his place, taking the salary payable by the government in his name until the
result of the examination became known, when, if he proved successful, he
should then return to the Institute.<o:p></o:p>&nbsp;The arrangement was undoubtedly irregular in
that it should have been brought to the notice of the Ministry and approval
thereof sought and obtained but that was not done.&nbsp; Nevertheless, as far as the appellant is
concerned, it is difficult to attribute to him any dishonest intention or
conduct in agreeing that his name should remain on the staff list of the
Institute so that if he should be successful at the B.Sc. final examination, he
might return to join the staff.&nbsp; Be that
as it may, this irregular arrangement was put into effect, another person, one
Mr. Blankson of Accra was secured who commenced teaching in place of the
appellant and worked for the months of September to December inclusive, a
period of four months.&nbsp; At the end of
each month, the headmaster of the Institute made out a voucher whereby he
submitted the names of all the teachers in the Institute, including the name of
the appellant instead of that of Mr. Blankson who was the person actually
teaching during those months, and when he received the bulk grant from the
government for the payment of his staff, he got the appellant to sign against
his name on the voucher as having received the monthly salary, but in truth and
in fact paid it to Mr. Blankson.&nbsp; It is
significant that there is no complaint that the monthly payments for those
months have been misappropriated.<o:p></o:p>&nbsp;Early in January, 1958, the result of the
final B.Sc. examination came out with the appellant as one of the successful
candidates, and he thereupon returned to the Institute as arranged with the
headmaster.&nbsp; In such a case, according to
Mr. Lamptey, a representative of the Ministry of Education:<o:p></o:p>&nbsp;"The normal procedure where a teacher employed
with an&nbsp;&nbsp;&nbsp;&nbsp; Intermediate degree qualifies
and obtains a (final) degree is that the headmaster of the school immediately
informs the Ministry of Education and requests an upgrading of the salary of
th</main>