The following judgment was delivered:-
YATES, J.
This is an appeal from a conviction by A. J. Ainley, District Magistrate, Accra, whereby the appellant was convicted under section 3 of Cap. 6 of carrying on a business of auctioneer without a licence, and fined £10. Section 22 of the same Ordinance exempts Public Officers acting under a statutory authority from penalties, and the sole question here is whether the appellant is a public officer.
The appellant is a messenger to the Tribunal of the Omanhene of Akwapim. Section 45 of the Native Administration Ordinance, Cap. III, gives power to the Tribunal to seize and sell properties under writs of Fi. Fa.: and all writs of Fi. Fa. issued out of the Tribunal are directed to the Tribunal messenger, vide the form of the writ set out on page 329 of Volume III, which form was made under regulations made by the Governor with the approval of the Legislative Council, and have the force of law.
On the 27th May, 1935, the appellant sold, by public auction at Adeisu, the house and land of one Kwabena Donkor, seized under a writ of Fi. Fa., which was directed to him; subsequently he was
Io (2)
summoned and fined under section 3 of Cap. 6. It is clear the appellant did what he did under a statutory duty within the meaning of section 22 of Cap. 6, and the question remains: Is he or is he not a public officer?
Public officer is defined by section 3, sub-section (32), of the Interpretation Ordinance, No. 6 of 1935, the material words being as follows:- "Public Officer shall include every officer invested " with or performing duties of a public nature, whether under the "immediate control of the Governor or not." This definition follows very closely the definition of public officer laid down by Lawrence, J., in R. v. Whitaker, (1914) 3 K. B. p. 1283, at p. 1296, and is as follows:- "A Public Officer is an officer who discharges " any duty in the discharge of which the public are interested, " more clearly so if he is paid out by a fund provided by the public." It can, I think, be safely said that the appellant would come within this definition and also within the first part of sub-section (32) of section 3 of the Interpretation Ordinance, and it only remains whether or not he is under the immediate control of the Governor or not. This sentence I interpret as meaning whether under the immediate control of the Governor or under his indirect control.
Native Tribunals appoint and dismiss messengers without any reference t
