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Constitutional law – Judges –
Pension – Superior Court judges
entitled to pension without
perquisites such as allowances,
facilities free use of
state-owned car and residential
accommodation – Constitution
1992, arts 71 and 155.
Statutes – Interpretation –
Marginal note – Marginal note
may serve as aid to construction
in appropriate cases.
The plaintiff sought a
declaration in the Supreme Court
that as a retired justice of the
High Court, he was entitled
under the Constitution 1992 to a
pension equal to his salary at
his retirement, a gratuity and
other allowances, facilities and
privileges, ie, such perquisites
as a car, bungalow or adequate
monetary provision in lieu
thereof.
Held:
(1) the word “salary” in article
155(1) was to be given its
ordinary meaning because it was
neither ambiguous nor equivocal.
So construed, it excluded the
facilities and privileges
claimed but the plaintiff was
entitled to a pension equal to
the salary payable for the time
being to a justice of the
Superior Court from which he
retired, in addition to any
gratuity. Barnard v Gorman
[1941] AC 378, Tuffuor v
Attorney-General [1980] GLR
637, Wuaku v Attorney-General
[1994-95] GBR 263,
Osei-Hwere v Attorney-General
[1994-95] GBR 261, referred
to.
(2) Although the marginal note
did not form part of an
enactment, in appropriate
situations it could serve as an
aid to interpretation.
Nicholson v Fields (1862) 31
LJ Ex 223 referred to.
Cases referred to:
Barnard v Gorman
[1941] AC 378, [1941] 3 All ER
45, 165 LT 308, 57 TLR 681, 105
JP 379, HL.
Nicholson v Fields
(1862) 31 LJ Ex 223, (1862) 7
H&N 810, 44 Digest (Repl) 207.
Osei-Hwere v Attorney-General
[1994-95] GBR 261, SC.
Tuffuor v Attorney-General
[1980] GLR 637, SC.
Wuaku v Attorney-General
[1994-95] GBR 263, SC.
ACTION in the Supreme Court by
the plaintiff for declaration of
his retirement entitlements as a
judge of the Superior Court of
Judicature.
D O Lamptey
for the plaintiff.
Amidu,
Deputy Attorney-General (with
him Mrs Adusah-Amankwah
and Gyesi Afrifa) for the
defendants.
AIKINS JSC.
In this case the plaintiff is
seeking two reliefs, namely,
‘(i) a declaration that as a
retired judge of the High Court
under the Constitution 1992 he
is entitled to a pension
equivalent to the salary payable
to him immediately before his
retirement, a chauffeur driven
car, a furnished bungalow,
allowances, facilities,
privileges and retiring benefits
or awards; and
(ii) a declaration that the
defendants have no legal or any
other right to seize or
dispossess the plaintiff of his
service car, and throw plaintiff
out of his bungalow No 7 Windy
Ridge, Takoradi, which form part
and parcel of allowances,
privileges, retiring benefits or
awards under plaintiff’s service
conditions.’
In addition the plaintiff is
also asking for:
“(i) an order of perpetual
injunction restraining the
second defendant from
interfering with the plaintiff’s
possession of car with
registration No ADF 3817, and
(ii) the plaintiff’s occupation
of bungalow No 7 Windy Ridge,
Takoradi, or in the alternative,
(iii) commensurate provisions
for the plaintiff in these
respects.”
The plaintiff claims that he was
appointed a High Court judge on
3 April 1986 after he had served
in a pensionable capacity in the
public service for 33 years 2
months, and retired after 7
years 10 months service as a
judge of the High Court. In
effect, he says that he has
served for 41 years in the
public service at least 7 years
of which were as a justice of
the Superior Court of
Judicature. No details of the 33
years 2 months he says he served
in the public service before
being appointed as a High Court
judge are given, but the
defendants admit the plaintiff’s
claim in paragraph 3 of the
statement of the defendant’s
case filed on 6 February 1994.
The plaintiff does not also say
when he retired as a judge of
the High Court nor whether he
actually attained the age of
sixty years before going on
retirement, but avers in
paragraphs 4 and 5 of his
statement of case in the manner
following:
“4. Plaintiff retired as a
Justice of the High Court of
Judicature under the provisions
of the Constitution 1992,
article 155 of the Constitution
1992 which states as follows:
‘155(1) Notwithstanding the
provisions of this Chapter, a
Justice of the Superior Court of
Judicature who has attained the
age of sixty years or above,
shall, on retiring, in addition
to any gratuity payable to him,
be paid a pension equal to the
salary payable for the time
being to a Justice of the
Superior Court from which he
retired where -
(a) he has served
for ten continuous years or more
as a Justice of the Superior
Court of Judicature; or
(b) he has served
for twenty years or more in the
public service at least five
continuous years of which were
as a Justice of the Superior
Court of Judicature; and upon
retirement under this clause, he
shall not hold any private
office of profit or emolument
whether directly or indirectly.
(2) For the avoidance of doubt,
the pension paid to a person
under clause (1) of this article
shall be subject to the same
changes and increases as the
salary of a serving Justice of
the Superior Court of
Judicature.
(3) A Justice of the Superior
Court of Judicature may, in lieu
of retiring under clause (1) of
this article, retire if he has
attained the age prescribed as
retiring age for public officers
generally and shall be paid
retiring awards based on his
total public service, including
service as a Justice of the
Superior Court of Judicature,
but otherwise at the same rate
as is, for the time being
applicable to the public service
generally.
5. Plaintiff has satisfied the
condition(s) required under the
said article 155 of the
Constitution 1992 and is
therefore entitled to all the
benefits envisaged under the
said article.”
These two paragraphs have been
admitted by the defendants in
their statement of case filed on
2 June 1994 as per paragraph 3
thereof. The court therefore
accepts the said averments as a
basis for the computation of the
plaintiff’s pension and
gratuity. In effect the
plaintiff contends that having
retired after the coming into
force of the Constitution 1992,
the provisions of the
constitution apply to his
conditions of service, and that
by article 155(1) of the
constitution he is entitled to
be paid a pension equal to the
salary payable for the time
being to a Justice of the
Superior Court from which he
retired, and a gratuity. He
further contends that the salary
mentioned in article 155(1)
ought to be defined as in
article 71(3) which includes
allowances, facilities and
privileges. Plaintiff further
submits that on a proper
construction of article 71(3)
the said facilities and
privileges can only mean
non-monetary perquisites such as
the use of state-owned car and
state-owned bungalow or
commensurate provisions for
these state-owned facilities.
Though the defendants admit that
the plaintiff retired under the
Constitution 1992 and was
therefore entitled to be paid a
pension equal to the salary
payable for the time being to a
Justice of the Superior Court,
in addition to gratuity, they
contend that article 71(3) of
the constitution merely served
as a guide to the committee
referred to in article 71(1) to
determine the emoluments and
retirement benefits of the
categories of officers named
therein, but does not define the
word “salary” as appears in
other provisions of the
constitution. They contend
further that the plaintiff is
not entitled to the use of his
official car and bungalow on
retirement.
Article 71 of the constitution
states a follows:
“71 (1) The salaries and
allowances payable, and the
facilities and privileges
available, to -
(a) the Speaker and Deputy
Speakers and members of
Parliament ;
(b) the Chief Justice and the
other Justices of the Superior
Court of Judicature;
(c) the Auditor-General, the
Chairman and Deputy Chairman of
the Electoral Commission, the
Commissioner for Human Rights
and Administrative Justice and
his Deputies and the District
Assemblies Common Fund
Administrator;
(d) the Chairman, Vice-chairman
and the other members of-
(i) a National Council of Higher
Education howsoever described;
(ii) the Public Services
Commission;
(iii) the National Media
Commission;
(iv) the Lands Commission; and
(v) the National Commission for
Civic Education;
being expenditure charged on the
Consolidated Fund, shall be
determined by the President on
the recommendations of a
committee of not more than five
persons appointed by the
President, acting in accordance
with the advice of the Council
of State.
(2) The salaries and allowances
payable, and the facilities
available, to the President, the
Vice-President, the Chairman and
the other members of the Council
of State; Ministers of State and
Deputy Ministers, being
expenditure charged on the
Consolidated Fund, shall be
determined by Parliament on the
recommendations of the committee
referred to in clause (1) of
this article.
(3) For the purpose of this
article and except as otherwise
provided in this Constitution,
“salaries” includes allowances,
facilities, and privileges and
retiring benefits or awards.”
It will be seen from the
language of this article that
the thrust of the article is the
determination of certain
emoluments of the persons named
therein, including the Chief
Justice and other Justices of
the Superior Court of
Judicature, by the President on
the recommendation of a
committee appointed by him. This
is clearly indicated by the
marginal note to the article.
Even though the marginal note
does not form part of the
enactment, in appropriate
situations it can serve as an
aid to interpretation: See
Nicholson v Fields (1862) 31
LJ Ex 223 at 236. The marginal
note here guides the
ascertainment of the real
intention of the framers of the
constitution, that is to say,
the article is geared towards
the determination of emoluments
by the President as recommended
by the committee and nothing
more, with the result that the
definition of “salary” in clause
(3) is restricted to that clause
to assist the committee in its
work.
In our view the word “salary” in
article 155(1) must be given its
ordinary meaning since it is
neither ambiguous nor equivocal,
its meaning being quite plain.
The word must be given its true
and appropriate construction
according to the context and the
language of the provisions of
the constitution in which it
occurs: see Barnard v Gorman
[1941] AC 378 at 384, HL, per
Viscount Simon LC which was
applied in Tuffour v
Attorney-General [1980] GLR
637 at 659-660. The Advanced
Learner’s Dictionary of Current
English, 2nd edition,
defines “salary” as “a monthly
or quarterly payment for regular
employment on a yearly basis, eg
a salary of £800 per annum.” And
Funk and Wagnall’s Standard
Dictionary (International
Edition) defines “salary” as “a
periodic allowance as
compensation for official or
professional service.” It
defines “pay” as “what a worker
receives, and is usually
estimated on a weekly, monthly,
or annual rate.”
It follows therefore that given
its natural, ordinary every day
meaning the word salary as used
in article 155(1) excludes
facilities and privileges
contained in the definition of
“salary” in article 71(3) which,
as I have said earlier, is
restricted to what the committee
appointed by the President is
expected to consider in its
deliberations.
In the circumstance it is our
judgment that the plaintiff is
not entitled to the use of his
official car and bungalow or
their commensurate equivalents
as claimed. He is however
entitled to be paid a pension
equal to the salary payable for
the time being to a Justice of
the Superior Court from which he
retired, in addition to any
gratuity payable to him. In
consonance with the judgment of
this court delivered today in
Wuaku v Attorney-General
[1994-95] GBR 263, SC and
Osei-Hwere v Attorney-General
[1994-95] GBR 261, SC, the
plaintiff’s retiring award must
be based on his gross basic
consolidated salary at the date
of retirement.
In the result this court grants
only the first part of relief
sought by the plaintiff, namely,
a declaration that having
retired as a judge of the High
Court after the Constitution
1992 had come into force the
plaintiff is entitled to a
pension equivalent to the salary
payable to him immediately
before his retirement in
addition to any gratuity that is
payable to him. The remaining
requests enumerated in relief 1
together with relief 2 are
refused. The request for an
order of perpetual injunction is
also refused.
(sgd) ABBAN JSC
(sgd) AMUA-SEKYI JSC
(sgd) HAYFRON-BENJAMIN JSC
(sgd) AMPIAH JSC
Claim granted in part.
Michael Jojo Acquah, Legal
Practitioner |
