Constitutional law - 1992
Constitution - Interpretation -
Articles 145(1) and (3) -
Articles 127 and 58(2) -
Voluntary retirement - Judicial
Council - Disciplinary
Committee - Misconduct -
impeachment - Justice of the
High Court - Whether or not His
Excellency the President is
bound to accept a request of a
Superior Court Judge to
voluntary retire from the
Judicial Service at a time
impeachment proceedings are
pending against the said judge;
- Whether or not a Superior
Court judge upon attaining the
compulsory retiring age is
amenable to impeachment
proceedings; - Whether or not
inordinate delay in pending
impeachment proceedings should
deny the benefits to a retired
judge upon attaining the
compulsory retirement age.
HEADNOTES
The facts of this case are
devoid of controversy and
relatively simple. The plaintiff
was before his appointment to
the High Court in 2003 a private
legal practitioner. He served at
various stations where he
exercised the functions of a
High Court Judge. In 2010, the
honorable Lady Chief Justice
received a complaint against him
alleging judicial impropriety
for delivering a judgment in
December 2009 and subsequently
purporting in March 2010 to
render a different and or
separate judgment in respect of
the same case. Upon receipt of
the complaint, the Chief Justice
referred the matter to a Justice
of the Court of Appeal to
conduct further investigations
into the allegation. The
investigation confirmed the
allegation which in its nature
raised a case of misconduct
against the plaintiff who from
the evidence that unfolded
before the investigating judge
had delivered four separate
judgments on diverse dates in
the same action. Accordingly,
the Chief Justice referred the
findings to the Judicial Council
which also tasked its
Disciplinary Committee to
inquire into the matter., the
Judicial Council accepted the
findings of its Disciplinary
Committee and in accordance with
the provisions of the
Constitution petitioned His
Excellency the President for the
removal of the erring judge from
office as a justice of the
superior court. After going
through the petition, the
President acting under article
146(3) of the constitution
referred the matter to the Chief
Justice to determine if there
was a prima facie case against
the plaintiff. Having been
satisfied that the allegation
disclosed a prima facie case of
misconduct against the
plaintiff, the Chief Justice
proceeded to set up a committee
as she was enjoined so to do by
article 146(4) on 11 January
2011 to impeach the plaintiff.
Following receipt of the letter
notifying him of the
constitution of a committee to
impeach him, the plaintiff on 17
January 2011 while being
stationed at Akim Oda as a judge
of the High Court wrote to the
Chief Justice giving notice of
his desire to voluntarily retire
from the Judiciary on the
grounds that he had been elected
to be installed as the paramount
chief of Assin Foso Traditional
Area. the Judicial Service wrote
to the plaintiff to direct his
letter for voluntary retirement
to the President. In the said
letter, the plaintiff was
notified that his applications
to go on quinquennial leave as
well as casual leave were
refused. On 18 March 2011, the
Judicial Secretary on behalf of
the Chief Justice acknowledging
that plaintiff had voluntarily
retired from the Judicial
Service with effect from 01
March 2011, requested him to
vacate his official
accommodation and also hand over
his official car. This was
followed by another
correspondence of some
importance dated23 February
2012, by which the Judicial
Secretary acting on behalf of
the Chief Justice notified the
plaintiff that his name had been
deleted from the list of the
Judicial Service. The plaintiff
was, however, paid salary
arrears covering 2008, 2009 and
2010 at which times he was an
active judge in the Judicial
Service.
HELD :-
The plaintiff has also claimed damages
for hardship, inconvenience and
undue embarrassment suffered by
him on account of the matters
which led to the issue of the
action herein. We think that the
finding by the Chief Justice of
a prima facie case which finding
is presumed to have been
regularly exercised means that
but for the delay resulting in
his retirement, the committee
would have gone through the
disciplinary proceedings set in
motion in respect of the
allegations levelled against
him. As the impeachment
proceedings are provided for by
the constitution, its initiation
cannot create a cause of action
in damages and accordingly, we
are unable to accede to his
request for damages which claim
is accordingly dismissed. In our
opinion the plaintiff’s
constitutional right as a
compulsorily retired superior
court judge is his entitlement
to gratuity and pension. The
plaintiff has also sought an
order for commercial interest on
the gratuity and pension to
which he is entitled but we are
of the view that since the
complaint leading to the
initiation of disciplinary
proceedings against him are
derived from the constitution,
he has not been unlawfully
deprived of his entitlements to
render it a good ground for the
award of interest which serves
as compensation for keeping his
entitlements away from him. The
result is that plaintiff’s
action succeeds on reliefs 3, 4,
5 only.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ANIN-YEBOAH JSC:
COUNSEL
GODFRED YEBOAH DAME ESQ. FOR THE
PLAINTIFF.
HELEN A. A. ZIWU (MRS) ESQ.
CHIEF STATE ATTORNEY WITH HER
WILLIAM KPOBI ESQ. CHIEF STATE
ATTORNEY FOR THE DEFENDANT
ANIN-YEBOAH JSC:
The plaintiff herein, a retired
justice of the High Court, has
by his amended writ of summons
dated the 9/4/2015 sued the
Attorney-General for the
following reliefs:
i.
A declaration that upon a
true and proper interpretation
of Articles 145(1) and (3) as
well as Articles 127 and 58(2)
of the Constitution, 1992, the
purported rejection by the
President of Ghana of the
plaintiff’s notice of voluntary
retirement as a justice of the
Superior Court is
unconstitutional, unlawful and
of no effect.
ii.
The declaration that upon
a true and proper interpretation
of Articles 145(1) and (3) as
well as Articles 127 of the
Constitution, 1992, the notice
issued by the plaintiff to the
president informing the
president of plaintiff’s
voluntary retirement from the
Judicial Service with effect
from March, 2011 was valid and
the president was obliged to
accept same.
iii.
A declaration that the
committee set up under Article
146 of the Constitution to
investigate plaintiff having
failed to discharge its mandate
and some members of the said
committee having either died or
retired as Justices of the
Superior Courts, lack the
constitutional capacity to
investigate any compliant
against plaintiff.
iv.
A declaration that the
plaintiff having compulsorily
retired as a High Court Judge
since 7th December
2011, is not subject to the
processes prescribed for the
removal of a Justice of the
Superior Court under Article 146
of the Constitution.
v.
A declaration that the
purported withholding of the
plaintiff’s gratuity and
retirement benefits since 1st
March 2011 is unconstitutional.
vi.
An order compelling the
payment of plaintiff’s gratuity
and retirement benefits with
interest thereon at the
commercial rate from 1st
March, 2011.
vii.
General damages for
hardship, inconvenience and
undue embarrassment suffered by
plaintiff.
viii.
Any further order(s) as to
this Honorable Court may seem
meet.
The facts of this case are
devoid of controversy and
relatively simple. The plaintiff
was before his appointment to
the High Court in 2003 a private
legal practitioner. He served at
various stations where he
exercised the functions of a
High Court Judge. In 2010, the
honorable Lady Chief Justice
received a complaint against him
alleging judicial impropriety
for delivering a judgment in
December 2009 and subsequently
purporting in March 2010 to
render a different and or
separate judgment in respect of
the same case. Upon receipt of
the complaint, the Chief Justice
referred the matter to a Justice
of the Court of Appeal to
conduct further investigations
into the allegation. The
investigation confirmed the
allegation which in its nature
raised a case of misconduct
against the plaintiff who from
the evidence that unfolded
before the investigating judge
had delivered four separate
judgments on diverse dates in
the same action. Accordingly,
the Chief Justice referred the
findings to the Judicial Council
which also tasked its
Disciplinary Committee to
inquire into the matter.
On 16 September 2010, the
Judicial Council accepted the
findings of its Disciplinary
Committee and in accordance with
the provisions of the
Constitution petitioned His
Excellency the President for the
removal of the erring judge from
office as a justice of the
superior court. After going
through the petition, the
President acting under article
146(3) of the constitution
referred the matter to the Chief
Justice to determine if there
was a prima facie case against
the plaintiff. Having been
satisfied that the allegation
disclosed a prima facie case of
misconduct against the
plaintiff, the Chief Justice
proceeded to set up a committee
as she was enjoined so to do by
article 146(4) on 11 January
2011 to impeach the plaintiff.
The membership of the committee
was as follows:
1.
Dr. Justice S. K. Date-Bah
(Supreme Court Judge)
-- Chairman
2.
Mr. Justice G. M. Quaye (Court
of
Appeal)
-- Member
3.
Mrs. Justice Cecilia H. Sowah
(Justice of the High Court)
-- Member
4.
Prof. Kofi Anyidoho, English
Department,
University of
Ghana
-- Member
5.
Mr. Iddrisu Egala, Chartered
Accountant and Chairman
of Central Tender Review
Board
-- Member
Following receipt of the letter
notifying him of the
constitution of a committee to
impeach him, the plaintiff on 17
January 2011 while being
stationed at Akim Oda as a judge
of the High Court wrote to the
Chief Justice giving notice of
his desire to voluntarily retire
from the Judiciary on the
grounds that he had been elected
to be installed as the paramount
chief of Assin Foso Traditional
Area. The said letter makes
interesting reading and is
quoted fully hereunder as
follows:
“I hereby give notice of my
intention to go on voluntary
retirement from the Judicial
Service commencing from the
31st of March, 2011.
I have been elected to be
installed the Paramount Chief of
Afutuakwa (Assin Foso)
Traditional Area in the Central
Region of Ghana. The
installation and swearing of
oath of allegiance will be on
the 21st of February
2011, immediately followed by
confinement. The outdooring is
scheduled for Monday 7th
March, 2011. I have already
asked for twenty-one (21)
working days casual leave in
another letter.
My decision to go on early
voluntary retirement is informed
by the fact that I have only
nine months to reach my
retirement age, and these few
remaining months will not change
my circumstances in any way
because even if I should retire
on 7th December, 2011
when I would be sixty-five (65)
years old, I would have worked
for nine (9) years and still
would not be entitled to retire
with full benefits.”
A copy of this letter was
forwarded to the President by
the Chief Justice. The crux of
the letter from the Chief
Justice dated 01 March 2011
reads:
“It will be recalled per my
letter dated 21st
January, 2011, that I informed
Your Excellency about a
Five-Member Committee that had
been set up in terms of Article
146 of the 1992 Constitution,
under the Chairmanship of
Justice S. K. Date-Bah, to
investigate a complaint against
Justice Frank Amoah. The
committee has since held two
meetings and is expected to sit
again on 8th March,
2011”
After receipt of the Chief
Justice’s letter referred to in
the preceding paragraph, the
President responded on 08 March
2011 to the plaintiff’s request
to go on voluntary retirement,
the gist of which states as
follows:
“I regret to inform you that
His Excellency the President is
unable to grant your request of
voluntary retirement, due to the
notice of impeachment for
misconduct served on your by Her
Ladyship the Chief Justice.
Beside, you failed to give
adequate notice of your
intention to retire voluntarily
from the judiciary as required
per Article 45(4) of the
Constitution.”
The plaintiff responded to the
president’s letter on 24 March
2011 by which he sought to
explain his decision to retire
in order to occupy the Assin
Foso stool. Thereafter, the
plaintiff never had any letter
from the President on his
request to voluntarily retire.
On 26 March 2013, the plaintiff
wrote to his employers to
enquire about his gratuity and
salary arrears. The response to
his letter was that in view of
the refusal of the President to
accept his voluntary retirement,
the Judiciary was unable to
accept his request.
Subsequently, in a letter dated
15 February 2011, the Judicial
Service wrote to the plaintiff
to direct his letter for
voluntary retirement to the
President. In the said letter,
the plaintiff was notified that
his applications to go on
quinquennial leave as well as
casual leave were refused. On 18
March 2011, the Judicial
Secretary on behalf of the Chief
Justice acknowledging that
plaintiff had voluntarily
retired from the Judicial
Service with effect from 01
March 2011, requested him to
vacate his official
accommodation and also hand over
his official car. This was
followed by another
correspondence of some
importance dated23 February
2012, by which the Judicial
Secretary acting on behalf of
the Chief Justice notified the
plaintiff that his name had been
deleted from the list of the
Judicial Service. The plaintiff
was, however, paid salary
arrears covering 2008, 2009 and
2010 at which times he was an
active judge in the Judicial
Service.
The plaintiff complains in these
proceedings that all efforts to
effect the payment to him of his
gratuity and retirement benefits
have proved futile wherefore on
20 February 2014 he took out the
instant action for redress based
on the circumstances which have
been narrated earlier on in this
judgment. His contention is that
ever since the impeachment
proceedings were commenced
against him, one of the members
in the person of His Lordship
Justice G. M. Quaye had died in
2011 and the chairman Dr Justice
S. K. Date-Bah had also
subsequently retired with no
substitutions being made in
their stead resulting in the
proceedings being stalled. The
plaintiff also contends that
having attained his compulsory
retiring age of 65 on 07
December 2011, he has ceased to
be a judge by virtue of the
operation of article 145 of the
Constitution and is therefore
not subject to disciplinary
proceedings in the nature of
impeachment.
In the course of the pendency of
the action herein, the plaintiff
sought leave and obtained leave
to amend his writ. As stated
earlier, the facts on which the
action herein is grounded are
not in dispute and present for
our determination what may be
described as the consequences of
law flowing from such admitted
facts. While the plaintiff is of
the view that following his
compulsory retirement, he is not
subject to impeachment
proceedings, the learned
Attorney- General holds a
contrary opinion and in
particular asserts that he
cannot retire from the Judicial
Service with retirement benefits
which he claims in the action
herein. The question which
arises from the contention of
the learned Attorney-General is
whether it is permissible in law
for the plaintiff’s entitlement
to gratuity to be withheld by
the defendant because of the
stalled impeachment proceedings.
Although several issues emerged
from the facts and memorandum of
issues settled by the parties,
we are of the opinion that the
crucial issues for our
determination in the action
herein are:
i.
Whether or not His
Excellency the President is
bound to accept a request of a
Superior Court Judge to
voluntary retire from the
Judicial Service at a time
impeachment proceedings are
pending against the said judge;
ii.
Whether or not a Superior
Court judge upon attaining the
compulsory retiring age is
amenable to impeachment
proceedings;
iii.
Whether or not inordinate
delay in pending impeachment
proceedings should deny the
benefits to a retired judge upon
attaining the compulsory
retirement age.
We commence with the resolution
of the above issues by making
reference to article 145 (3) of
the 1992 for guidance. The said
article reads:
“A justice of the Superior Court
of Judicature or a Chairman of a
Regional Tribunal may resign his
office in writing signed by him
and addressed to the President.”
We are of the opinion that the
requirement of notification to
the President is to enable him
as the appointing authority to
take steps to ensure that the
judge seeking to resign does not
have any pending disciplinary
proceedings against him before
going on voluntary retirement.
This provision, in our view
accords not only with principle
but common sense as well. The
only question which arises from
the said provision is whether
the President as has been
complained to us in these
proceedings by the plaintiff can
refuse to give accession to the
decision by a superior court
judge to resign. We think that
as the date the plaintiff
notified the President of his
intention to resign there was
disciplinary proceedings pending
against him, the President was
not bound to accept same. We are
equally of the opinion that had
the President accepted the
letter of resignation, its
effect would be to undermine the
carefully drafted disciplinary
provisions in relation to
superior court judges under the
constitution. Accordingly, we
are unable to yield to the
plaintiff’s argument that the
refusal was wrong; we hold that
the President acted within the
scope of the constitution and
cannot therefore be said to have
conducted himself
unconstitutionally.
It must be pointed out that even
under the common law, an
employee who tenders his
resignation to his employer is
obliged to do so as the employer
may hold him accountable for any
wrong done during his tenure. We
note that the constitution does
not expressly confer on the
President the power to reject or
accept the resignation of a
judge but implicit in the power
conferred on him to be notified
by the superior court judge who
intends to resign his office is
the power to either accept or
reject such a request. Reference
is made in this regard to
article 297 (c) by which it is
provided thus:
“In this Constitution and any
other law where a power is given
to a person or authority to do
or enforce the doing of an act
or thing, all such powers shall
be deemed to be also given as
are necessary to enable the
person or authority to do or
enforce the doing of the act or
thing.”
A combined and purposive reading
of articles 144(5) and 145(3)
makes it tolerably clearer that
the President as the appointing
authority may either accept or
refuse to accept any such
request addressed to him. We
think that any other
interpretation will render the
provision useless and
ineffective and defeat the
presumption that it was inserted
to achieve a purpose. The
meaning of the articles urged on
us by the defendant arises from
a disjunctive reading of the
provisions and we accordingly
reject same.
We next turn our attention to
the issue relating to whether
having reached the compulsory
retiring age, the plaintiff is
still subject to disciplinary
proceedings contemplated against
superior court judges in article
146. We pause here to observe
that the point for our
determination that arises from
this issue is one which belongs
to an area that has not been
decided previously but mindful
of our oath as judges and
guardians of the constitution,
we must adopt an interpretation
that will be in conformity with
the letter and spirit of the
constitution and above all
enhance public confidence in the
administration of justice. We
also note that inherent in the
office of a judge is
responsibility and
accountability as well as the
constitutional requirement of
high moral caliber contained in
articles 128(4), 136 (3) and 139
(4).
We have carefully given thought
and consideration to the various
articles in the constitution to
which reference has been made in
the course of this judgment and
have come to the opinion that
article 146 of the constitution
deals with persons who are in
the employment of the Judiciary
as judges and does not apply to
judges who have retired by
operation of law compulsorily.
We are of the view that as
impeachment proceedings are for
the purpose of removing a
serving judge from employment on
clearly stated constitutional
grounds, it is unreasonable to
impute to the law-maker that the
provision was intended to apply
to retired judges as well. A
judge who has compulsorily
retired is clearly outside the
scope of article 146. The
operative words which describe
the consequence of impeachment
as provided in article 146 “shall
be removed from office”
render any other interpretation
of the consequences of
retirement on the impeachment
process not only unreasonable
but an abuse of language.
We now turn our attention to the
continuing withholding of the
plaintiff’s gratuity by the
defendant because of the pending
disciplinary proceedings which
on the facts of this case have
been stalled for more than three
years now. On the facts of this
case, the committee was
constituted in 2011 but to date
notwithstanding the
unavailability of two members no
explanation has been offered by
the defendant for the inability
of the constituting authority to
have the committee reconstituted
before the plaintiff retired
compulsorily. We have noted
from the proceedings before us
that the delay in proceeding
with the investigation is not
attributable to any act or
omission of the plaintiff such
as to disentitle him from
seeking to benefit from his own
wrong doing. We are of the
opinion that as the proceedings
have stalled for quite a
considerable length of time
without any explanation
resulting in the plaintiff
acquiring an accrued right by
virtue of article 145 (2) (b) as
a compulsorily retired superior
court judge and now properly
belongs to the category of
pensioners and entitled to
retiring awards. We are of the
view, however, that if the
proceedings were on-going before
the retirement of the plaintiff,
his retirement cannot bring them
to an end as the matters giving
rise to the proceedings would
have arisen during his tenure.
As the status of the plaintiff
arises from a constitutional
provision, we are bound to give
effect to it. The fact of his
compulsory retirement and the
legal consequences supersede
whatever constraint he may have
had by virtue of the pendency of
the impeachment process that was
put in place in January 2011 in
so far as the proceedings were
not on-going before the
effective date of his
retirement. The plaintiff has
had to wait since his compulsory
retirement on 07 December 2011
until 20 February 2014 when he
caused the action herein to be
issued on his behalf. Even when
the writ was issued and the
action progressed slowly towards
trial, no steps were taken by
the constituting authority to
have the disciplinary
proceedings completed. In the
meantime, the plaintiff’s
entitlements under the
constitution remain unpaid. We
are of the opinion that in the
absence of clear statutory
authority the plaintiff cannot
continue to have his gratuity
and benefits withheld from him.
We are also of the view that the
period of waiting that he has
had to endure while in the
reasonable expectation that the
proceedings will resume and be
concluded which is almost four
years previous to his compulsory
retirement is such that he
cannot continue to be deprived
of the benefits that have
accrued to him and accordingly
declare that he is entitled to
be paid his gratuity and other
benefits as provided in the
constitution. We are unable,
however, to make an order
compelling payment of his
entitlement to him as it is not
the business of our courts to
undertake execution on behalf of
parties. This is a fact too well
known to the plaintiff and we
are surprised that he has made
such a demand on us.
By relief 6, the plaintiff puts
the effective date for the
computation of his gratuity at
03 March 2011 when he served the
President with the notice under
article 145 but we are unable to
accept this for the reasons
earlier on referred to in this
judgment. In our view, the
effective date is when he
compulsorily retired-07 December
2011.
We would like to say that the
requirement of fair hearing
within a reasonable time
contained in article 19 (13) in
relation to adjudicating
authorities is equally
applicable to disciplinary
bodies set up by law and that
where there has been a
considerable delay such as
occurred in the action herein,
such a delay might be an
instance of breach of
fundamental human rights
remediable by an action for
appropriate redress. The facts
of this case have brought up the
issue of what to do with public
servants who have had
allegations of impropriety and
or misconduct raised against
them but not dealt with before
they compulsorily retire. We
think that our pension laws
should be amended to make
provision for such pending cases
to be dealt with whiles the
persons to whom the cases relate
are on retirement in order to
avoid creating escape routes
for erring public servants, a
situation which tends to
undermine respect for the law
governing employees in terms of
good conduct. We also recommend
that cases involving persons who
are about to retire be handled
expeditiously and concluded
before their retirement.
The plaintiff has also claimed
damages for hardship,
inconvenience and undue
embarrassment suffered by him on
account of the matters which led
to the issue of the action
herein. We think that the
finding by the Chief Justice of
a prima facie case which finding
is presumed to have been
regularly exercised means that
but for the delay resulting in
his retirement, the committee
would have gone through the
disciplinary proceedings set in
motion in respect of the
allegations levelled against
him. As the impeachment
proceedings are provided for by
the constitution, its initiation
cannot create a cause of action
in damages and accordingly, we
are unable to accede to his
request for damages which claim
is accordingly dismissed. In our
opinion the plaintiff’s
constitutional right as a
compulsorily retired superior
court judge is his entitlement
to gratuity and pension.
The plaintiff has also sought an
order for commercial interest on
the gratuity and pension to
which he is entitled but we are
of the view that since the
complaint leading to the
initiation of disciplinary
proceedings against him are
derived from the constitution,
he has not been unlawfully
deprived of his entitlements to
render it a good ground for the
award of interest which serves
as compensation for keeping his
entitlements away from him.
The result is that plaintiff’s
action succeeds on reliefs 3, 4,
5 only.
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE
SUPREME COURT
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
GODFRED YEBOAH DAME ESQ. FOR THE
PLAINTIFF.
HELEN A. A. ZIWU (MRS) ESQ.
CHIEF STATE ATTORNEY WITH HER
WILLIAM KPOBI ESQ. CHIEF STATE
ATTORNEY FOR THE DEFENDANT |