COMMISSIONER OF POLICE v. GAITUAH [1961] GLR 789

DIVISION: IN THE SUPREME COURT

DATE: 22ND DECEMBER, 1961

BEFORE: SARKODEE-ADOO, ADUMUA-BOSSMAN AND

CRABBE, JJ.S.C.

CASES REFERRED TO

(1) Prince’s Case (1868) L.R. 1 C.C. 150

(2) Moynes v. Cooper [1956] 1 Q.B. 439; [1956] 1 All E.R. 450; 40 Cr. App. R. 20

NATURE OF PROCEEDINGS

APPEAL against conviction for stealing £G160, the property of the government contrary to section

287(1) of the Criminal Code, 1960 (Act 29) by Judge Jiagge in the Circuit Court, Accra, on the 23rd February, 1961. The facts are fully set out in the judgment.

COUNSEL

Apatu-Plange for the appellant.

K. Dua Sekyi with him Sarkodee for the respondent (the State).

JUDGMENT OF ADUMUA-BOSSMAN, J.S.C.

Adumua-Bossmand J.S.C. delivered the judgment of the court. 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. 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. 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. 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. 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] of [1961] GLR 789 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.

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. 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. 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. 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. It is significant that there is no complaint that the monthly payments for those months have been misappropriated.

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.

In such a case, according to Mr. Lamptey, a representative of the Ministry of Education:

“The normal procedure where a teacher employed with an 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 that particular teacher. When my Ministry is satisfied that the claim is genuine, then the upgrading is approved”.

Having regard to the position so explained as above, the appellant having obtained his final B.Sc. degree wrote a letter to the headmaster which concluded as follows: “I shall be very grateful if you will cause the difference in my salary resulting in my graduation to be paid to me as early as possible” (exhibit A2).

[p.793] of [1961] GLR 789

He had worked at any rate up to the end of August, 1957, before leaving for St. John’s Grammar School, and that period had to be considered for the purposes of salary at the upgraded rate.

The headmaster upon receipt of the appellant’s letter wrote in his turn to the Ministry of Education as follows:

“Sir,

Mr. A. K. Gaituah

Salary Conversion

1. I have the honour to inform you that Mr. A. K. Gaituah (a member of my staff) was successful in the B.Sc. Examination held in June, 1957.

2. Mr. Gaituah joined the staff in January 1957, and his salary grading has been £G220 p.a.

3. According to the WAUGH Report, his salary should now read £G680.

4. The result was published in August 1957.

5. Kindly let me have confirmation of his salary grading as per paragraph three above, and also the date from which arrears should be paid.

Yours obediently,

(Sgd.) E. L. O’Reilly-Wright

Headmaster.”

The reply from the Ministry (exhibit B) was in the following terms:

“Sir,

Salary Grading – Mr. A. K. Gaituah

1. Mr. Gaituah’s success in the final B.Sc. examination has earned him an advancement in salary, with effect from 11th June 1957, the last date of the examination.

2. His new salary grading as from this date therefore, is £680 per annum on the scale £G680 x £G30

– £G980 (Table II – Category I). 3. It would appear that Mr. Gaituah is entitled to some arrears of salary as a result of the re-grading, and it is suggested that a claim for the arrears involved be submitted on a separate payment voucher.

(Sgd.) D. Dodoo for Ag. Permanent Secretary

The Headmaster,

O’Reilly Educational Institute,

Accra.”

The suggestion contained in the letter from the Ministry (exhibit B) that “a claim for the arrears involved be submitted on a separate voucher”, should be specially noted. What happened thereafter was explained by Mr. Asamoah, who deposed that between June, 1957, and February, 1958, he was in charge of the accounts of “approved schools” which included the O’Reilly Institute and responsible for passing salary vouchers, and in that capacity received exhibit C1 in the form of an estimate of the salaries of the staff of the O’Reilly Institute for the month of January, 1958. In it was included an item of claim for the difference in salary due to the appellant by reason of the upgrading of his salary from £G200 to £G680 per annum, amounting to £G40 for the month of January 1958. Continuing his explanations Mr. Asamoah said:

[p.794] of [1961] GLR 789

“When I received exhibit C1 in view of the copy of letter on our file (exhibit B) I realised that accused was entitled to more arrears of pay than his headmaster was claiming for him—I instructed my assistant to work out the balance of arrears due to accused according to exhibit B. I instructed my assistant to add that figure and added details to the claim for arrears of salary on exhibit C. The details on which my assistant worked are on exhibit C2.” Reference to exhibit C2 discloses the claim by the Institute for salary at £G16 13 s. 4d. per month for September to December 1957 inclusive in the name of the appellant, and Mr. Asamoah therefore caused the arrears of salary due to the appellant to be calculated to include those months. The result was, according to Mr. Okunor, the officer of the Audit Department who audited the accounts of the Institute, that: “the total payments to the accused as shown on exhibit C1 was £G307 0s. 7d. This was for the period 1st July – 31st December, 1957; the second period was the month of January 1958. This means that a total arrears of £G307 0s. 7d. was paid to accused from 11th June, 1957 to 31st January, 1958. The difference in rate after accused’s graduation is £G40 per month. Calculated from 1st September, 1957 to 31st December, 1957 the total of difference in salary for accused is £G160”. It is this amount of £G160 which the appellant is charged with stealing.

The learned circuit judge (as she then was) after hearing all the evidence took the view and came to the conclusion that appellant:

“knew that he was not entitled to the money as worked out by the officer of the Ministry of Education who was misled by the P/Vs from O’Reilly’s Secondary School. Accused however accepted the money—£G160 in excess of what he knew he was entitled to . . . Accused’s behaviour fell short of that of an honest man. He took the £G160 knowing very well that he was not entitled to it. I find the charge proved, accused guilty, and I convict him accordingly”.

In taking the view expressed as above that appellant knew he was not entitled to the money, it would seem that the learned circuit judge (as she then was) had in mind and relied on the appellant’s own admission under cross examination when he said:

“Yes—I know that I was not entitled to any difference or arrears of salary from Government for the period 1st September, 1957 to 31st December, 1957 . . . I know that the Ministry would not have paid any salary arrears from 1st September, 1957 to 31st December, 1957 if it was known that I was teaching at St. John’s during that period”. It seems to us however that if those admissions are read and considered in the light of the explanations which the appellant gave to the police upon being questioned by them about this matter, firstly, when he said:

“On the receipt of my result that I had passed the (final) degree examination I applied for and received arrears of salary, resulting from my success in the examination. I did not realise until now that I had been overpaid the sum of £G160 (see exhibit G)”, and secondly, when he said:

“As I stated earlier in my previous statement, I did not realise until I was called to the police station that I had neither been informed by the auditors nor informed by the Headmaster of O’Reilly Secondary

School that I had been overpaid this amount of £G160 (see exhibit J).”

[p.795] of [1961] GLR 789

It does appear that appellant was admitting that at the time he was giving evidence in the course of the trial he knew – but not necessarily that at the time of the receipt of the amount he knew – that he was not entitled to the payment. Moreover, having regard to the irregular arrangement which the headmaster had made whereby he had kept the appellant’s name on the staff-list thereby getting the salary attached to the office for another person actually performing the duties of the office, it seems difficult to see how the appellant would feel sure that payment which was being made to him by the headmaster was not properly due to him. The point is that if the Ministry of Education in spite of the full knowledge at its disposal before the commencement of the appellant’s prosecution, that it was not he (the appellant) who having his name on the staff-list actually worked during the months of September to December inclusive but rather a substitute, one Mr. Blankson, nevertheless does not claim or suggest that the monthly payments of £G16 13s. 4d. for each of those four months claimed by the Institute and paid in the name of the appellant, were dishonest claims which the ministry paid by mistake because it thought the appellant was actually working – that is to say, if the ministry is not maintaining that those payments for those four months are not properly or legally due because the appellant himself did not work for them – then it seems difficult to see how or why the increased or upgraded payment resulting from the appellant’s success at the final B.Sc. degree examination is considered and described as a dishonest claim receipt of which is regarded by the learned trial circuit judge (as she then was) as showing a clear and unmistakable intention to steal.

There was, in our view, a certain degree of obscurity and uncertainty as to the exact or proper legal position in which he stood by reason of his temporary withdrawal from the Institute. It may be, according to the relevant regulations of the ministry, that his name should not have been kept on the staff-list and a substitute made to work in his name so that even the monthly payments of £G16 13s. 4d. for the four material months were not proper payments at all; secondly, it may be that there was no official objection to the arrangement for a substitute but that in such a case no increased salary is payable during the period in which a substitute worked, which seems to be the position the ministry has accepted by their attitude on this prosecution; and the third alternative is that he may be entitled to the increased pay as he is permitted to have a substitute. The appellant’s evidence under cross-examination when he admitted that he knew he was not entitled,bshould not be read without reference to his previous statements put in evidence by the prosecution itself, that when he received payment he did not then know he had been overpaid, but should be read in the light of what he had come to know since the matter cropped up and after his interview with Mr. Okunor, the representative of the Audit Department, who told him he was not entitled to the increased salary because he worked in St. John’s School during the period.

[p.796] of [1961] GLR 789 The case falls to be considered from two stand points. Firstly, from the stand-point that ownership of the amount the subject-matter of the charge was at all material times vested in the government, and that the Institute to which it was paid for payment to the appellant (as was other amounts for other teachers) was merely an agent directed to distribute the monies without the Institute acquiring any interest or ownership upon receipt of the bulk grant from the government. Secondly from the stand-point that money became the property of the Institute when it applied for and received the bulk grant from the government, although, of course, it was earmarked and intended to be applied to the payment of salaries of teachers of the Institute. Consideration of the case from this latter stand-point arises having regard to the evidence of Mr. Lamptey-Mills, a representative of the Ministry of Education that:

“Financial aid to secondary schools are specific grants to the school. Each secondary school prepares estimates which were submitted to my Ministry for approval, and when approved, grants are made in respect of approved items. The amount paid to the school is vested in the Board of Governors. This applies to all other payments paid to the school. When an over-payment is made, government asks for its return.” Two sentences in the evidence above quoted need specially to be emphasised, they are that an

“amount paid to the school is vested in the school,” and that “this applies to all other payments paid to the school.” What appears on the vouchers (exhibits C1-C9) might also be noted. Exhibit C1, for example, purports to be “Payment Voucher— Higher Institutions (Personal Emoluments) O’Reilly Institute—Gross Amount Approved grant purposes £G319 10s. 7d.” It would seem therefore that as far as the Ministry was concerned it was a question of a bulk grant being paid to the O’Reilly Institute. Dealing with the case from the first stand-point it seems to us that the headmaster as an agent (or servant) of the government with authority to make payment to the appellant, cannot be said to be under any error or mistake as to the appellant’s entitlements, because he, more than anybody else, was in possession of the full facts of the case and did not pay over the money to the appellant under any mistake at all such as would negative his consent or intent that ownership should pass to the appellant. Through circumstances for which the appellant was not responsible the larger amount than he might strictly speaking have been entitled to had been calculated and was intended to be paid to pass the ownership therein to him. In those circumstances, it seems to us the dictum of Blackburn, J., in Prince’s case1(1) seems applicable when he said: “If the owner intended the property to pass, though he would not so have intended had he known the real facts, that is sufficient to prevent the offence of obtaining another’s property from amounting to larceny”.

[p.797] of [1961] GLR 789

In the later and perhaps better known case of Moynes v Cooper2(2) the case of the paying clerk handing over to a workman an envelope containing a larger amount than he was entitled to, in the course of the judgment of the Court of Appeal, Lord Goddard, C.J. said:

“What amounts to a `taking’ sufficient to amount to larceny was much discussed in R. v. Middleton (supra) and in our opinion it is the effect of that decision which is reproduced and enacted as the law.

Section 1(2) (i) of the Act of 1916, (Larceny Act 1916, 6 & 7 Geo. 5 c.50) provides: “the expression “takes” includes obtaining possession … (c) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained.”

Moynes v. Cooper therefore stresses two essential elements: (a) mistake on the part of the owner (a person having authority to deliver or pay over) and (b) taking animo furandi. Therefore, even if there is evidence from which the inference can be drawn that the appellant had animus furandi, it seems to us the other element namely mistake on the part of the headmaster who was agent for the government to pay the salary cannot be said to exist, and we are therefore of the opinion that the evidence fell short of establishing stealing. Turning next to consider the case from the second stand-point, it seems to us the evidence is then much more favourable to the appellant, for then the ownership of the money was not in the government at all but rather in the Institute, and the payment by the headmaster with a full knowledge of the circumstances of the case cannot constitute stealing on the part of the appellant.

The ground of appeal that the verdict cannot be supported having regard to the evidence is therefore in our view made out, and the appeal should be allowed.

DECISION

Appeal allowed.