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KUMASI WEST LOCAL COUNCIL v. OWUSU


  • New
  • 1962-03-21
  • HIGH COURT
  • 1 GLR 194-195
  • Print

DJABANOR, J.


Summary

Tort?-Money in custody of employee for safe-keeping?-Allegation that money stolen?-Proof of theft.

Headnotes

The plaintiffs sued the defendant for an amount of G1,325 which the defendant, their treasurer, alleged was stolen from his safe on the 30th JuIy, 1958.

Judgement

Action for recovery of G1,325 from an employee/treasurer.

The plaintiff in this case claimed from the defendant the recovery of the sum of G1,325, being money belonging to the plaintiff of which the defendant has been the custodian.

The facts are not in dispute. On or about the 29th July, 1958, the defendant, the treasurer of the plaintiff council, withdrew a large sum of the plaintiffs' money, from the bank for the purpose of paying wages and salaries of the plaintiffs' employees. He made some payments on the 30th July, but by the close of work on that day a large amount of money still remained with him unused. Since by that time the banks had closed he locked this amount, together with other of the plaintiffs' moneys and documents, in the plaintiffs' safe in his office at the treasury. Next morning [p.195] an amount of G1,325 had disappeared from the safe. Upon inspection by the police it was found that the door of the office was not broken into, nor any window, nor indeed the safe itself. A key must have been used to gain access to the office and into the safe. The defendant admitted that he kept the keys. After police investigation no charge was preferred against anybody. But during the investigation the defendant suggested to the police that he suspected one Gyawu, a native of Nkawie-Toase, and formerly an employee of the plaintiff council, of the burglary. The grounds of the defendant's suspicion was that in 1955 Gyawu relieved him as treasurer while he was undergoing a course at Accra, and that it was likely that Gyawu made a duplicate key to the safe which he could have kept and used on the night of the 30th July to steal the money. It was learnt that Gyawu was at Nkawie-Toase on the night of the burglary. He was contacted by the police and his movements investigated, but he too was not charged with any offence.

In my opinion whether as bailee or as servant it is for the defendant to prove that the money had been stolen. If he is able to do this it will afford him a good defence to the claim: see Coldman v. Hill.1 The evidence adduced by the defendant to prove this leaves me with the impression that somebody used the key to the treasury office to open the door, used the safe key to open the safe, took the amount missing from the safe, scattered G27 on the floor, opened one of the windows opening outside and which had bars in it, and came out again. In my opinion the burglary was staged. If the money was stolen by a real thief who used the door to get in, he would not need to open the window which he would not in any case use for his escape. Again if the burglary was not staged I do not see the necessity for wasting time in scattering G27 of carefully packed money on to the floor. Why did not the thief take that too? It would save him time to take it, rather than to scatter it. He scattered it only to give a certain colour to the theft. Furthermore, I do not think that it is probable that Gyawu came and stole the money. It is suggested that he must have made duplicate keys to the safe when he acted as treasurer some three years previously, and that he had the motive to put trouble on the defendant's head. If he had the keys all these three years, during the greater part of which he was with the council, and knew that money was kept in the safe at the end of every month, why was it that he never burgled the treasury until this particular night? He must have been in Nkawie-Toase on many nights within those three years, not only the night of the burglary. In my opinion the suspicion against Gyawu is very slight and it is only a suspicion. As I have stated I do not think the alleged burglary was genuine. That being so I hold that the defendant has not discharged the burden of proof cast upon him, and upon the authorities he must be held liable to the plaintiffs.

There will therefore be judgment for the plaintiffs for G1,325, with costs assessed at 50 guineas.

Decision


Plaintiff / Appellant

T.A. Totoe

Defendant / Respondent

Enoch Edusei

Referals

Coldman v. Hill [1919] 1 K.B. 443
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