ATTORNEY GENERAL vs. THE BANK OF WEST AFRICA [1965]DLSC1782

Date	1965-04-12
Suit No.
Citation No.	[1965]DLSC1782

MILLS-ODOI JSC

OLLENNU JSC

SIRIBOE J.S.C.

N. M. C. DODOO SENIOR STATE ATTORNEY FOR THE APPELLANT.N. M. C.

DODOO SENIOR STATE ATTORNEY FOR THE APPELLANT.

B. J. DA ROCHA FOR THE RESPONDENT.

[1965]DLSC1782
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													<main id="main" class="content" style="min-height: 60rem" >ATTORNEY GENERAL <o:p></o:p>vs. <o:p></o:p>THE BANK OF WEST AFRICA <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 245<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">

DATE:
12 APRIL 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

N. M. C. DODOO, SENIOR STATE ATTORNEY, FOR THE
APPELLANT.N. M. C. DODOO, SENIOR STATE ATTORNEY, FOR THE APPELLANT.<o:p></o:p>

B. J. DA ROCHA FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MILLS-ODOI J.S.C.<o:p></o:p>The
action out of which this appeal has arisen was brought by the
plaintiff-appellant (hereinafter referred to as “the employer”) to recover a
sum of £G664 4s. 5d. lodged by the Public Works Department (an erstwhile
Department of the Ghana Government now known as Ghana National Construction
Corporation) between November 1960 and March 1961 under a mistake of fact, in
the defendant-respondent’s bank (hereinafter shortly referred to as “the bank”)
to the credit of the account therein of a Mr. Paul Kenneth Johnson (hereinafter
referred to as “the employee”) who was engaged by the employer as a mechanical
engineer on contract. The facts are really not in dispute; they are simple,
straight-forward and free from any complexity. But much controversy arose as to
whether in law the employer’s cause of action was against the bank or against
the employee.<o:p></o:p><o:p>&nbsp;</o:p>The
contract which the employee had with the employer was for an eighteen months’
tour of duty with effect from 16 February 1957. On the completion of the said
tour of duty on 13 July 1960, the employee proceeded to the United Kingdom on
leave which was due to expire on 28 November 1960. It was the understanding
between the employer and the employee that on the expiration of the latter’s
leave he would return to Ghana for a further tour of duty, provided his
contract was renewed for such further tour. Through circumstances which are not
disclosed in the employer’s statement of claim, and which are not material to
the issue in this case, the renewal of the employee’s contract was delayed,
and, when eventually the offer for renewal was communicated to him in the
United Kingdom by the employer, he declined to accept it.<o:p></o:p><o:p>&nbsp;</o:p>By his
refusal to accept the offer for the renewal of the contract, the employee
ceased to be in the employer’s employment with effect from 29 November 1960.
Consequently, he ceased to be entitled to any salary or other emoluments from
the employer after 28 November 1960. But before the rejection of the offer for
the renewal of his contract was received by the employer, the latter, through
the then Public Works Department, had paid into the former’s account with the
bank, a sum of £G664 4s. 5d. the subject of fierce controversy in this case,
representing salary and other emoluments which would have been due to the
employee if his contract had not expired.<o:p></o:p><o:p>&nbsp;</o:p>By a
letter dated 19 June 1961, addressed to the bank, the employer gave the bank
full particulars of the mistake and demanded repayment of the said sum of £G664
4s. 5d., but the bank did not pay back the amount and, on 12 December 1961 the
employer brought this action. On 14 December 1961 a writ was served on the bank
and four days later an appearance was entered on their behalf by their
solicitors. On the same day as the appearance was entered (i.e. 18 December
1961), the bank filed a motion in the High Court, Kumasi, the court which was
seised with jurisdiction of the case, praying for relief by way of interpleader
summons to issue on the employer and on the employee. The bank maintained the
ground that as the employee’s account had been credited with the amount in
question and notice of it had also been given to him it would be unbusinesslike
to readily repay the said amount to the employer without any authority from the
employee. Paragraph (9) of the affidavit accompanying the motion above referred
to contained the following averments, “The defendants [the bank] are ready and
willing to pay or transfer into court the sum of £G664 4s. 5d. or to dispose of
the same as the court or the judge may direct pending the hearing and
determination of this action.” A copy of the motion and the affidavit thereto
attached were served on the employer on 28 December 1961. The motion was
however set down for hearing on 29 January 1962.<o:p></o:p><o:p>&nbsp;</o:p>On 3
January 1962 the bank, through their solicitors wrote a letter to the employer
saying that they had received instructions from the employee to repay the said
sum of £G664 4s. 5d. On the strength of the instructions the bank repaid into
the account of the employer the whole amount in dispute on 9 January 1962. On
29 January 1962 when the parties appeared before the judge of the High Court
for the hearing of the motion, the bank, through their counsel, withdrew the
application, on the</main>