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JUDGMENT
The events which have provoked
this action may be stated as
follows: By a letter from the
office of the President, dated
20th March, 2000 and addressed
to the Plaintiff, the plaintiff
was informed as follows:
“H.E. the President has accepted
the recommendation of the
Judicial Council, given in
accordance with L.I.319, Section
28(2) of the Judicial Service
Regulations, 1963 and has
directed your immediate
redeployment out the Judicial
Service for displaying a high
degree of incompetence in the
discharge of your duties”.
By his writ herein, the
Plaintiff seeks from this Court
a declaration that his removal
from the Judicial Service as a
Judicial Officer by the
President, for the reasons
stated, is contrary to Article
151(1) of the Constitution. In
his Statement of Case in support
of his claim, the Plaintiff, who
until the said letter held the
position of 2nd Deputy Judicial
Secretary, contended that:—
a. The effect of the President’s
letter was to remove him from
his judicial office
b. Such removal was in
punishment for allegations made
against him and which he was not
given any opportunity to be
heard in his defence, contrary
to Section 25 of the Judicial
Service Act.
c. Since the coming into force
of the Constitution, the
provisions of Regulation 28(2)
of the Judicial Service
Regulations either ceased to
apply for the purposes of
removing a judicial officer, or
its application must be with
such modifications as are
necessary to bring those
provisions in conformity with
Article 151 of the Constitution
d. By virtue of Article 151, it
is only the Chief justice who
has the power to remove a
Judicial Officer from office and
such removal may only be upon
the grounds and pursuant to the
process stipulated therein.
The Honourable Attorney-General,
in his Statement of Case,
contended that the holding of
the position of 2nd Deputy
Judicial secretary did not make
the Plaintiff a Judicial
Officer, since the position of a
Judicial Officer is a creature
of the law and is one which
cannot be created outside
Article 161 of the Constitution
of Section 32 of the Judicial
Service Act. He further
contended that:—
a. Regulation 28(2) of the
Judicial Service Regulations is
not inconsistent with Article
151 and remains applicable for
the purposes of removing a
Judicial Officer against whom
allegations are made.
b. The Plaintiff was given the
opportunity to defend himself.
c. The Plaintiff is not a
Judicial Officer and, thus, he
cannot avail himself of Article
151
In his reply to the Defendant’s
Statement of Case the Plaintiff
further contended that his
appointment by the Chief Justice
as 2nd Deputy Judicial Secretary
was pursuant to the powers of
the Chief Justice under Article
148 and that by the terms of
such appointment, he was a
Judicial Officer. Moreover, he
contended that:—
a. The definition of Judicial
Officer in Section 32 of the
Judicial Service Act had been
replaced the definition given by
Article 161 and, therefore, the
term office of the Judicial
Secretary includes his deputies.
b. By virtue of Article 127(1)
the President has no power to
interfere with the
administration of the Judiciary
and cannot remove the holder of
a Judicial Office on the ground
of incompetence.
c. He had not been given all
opportunity to defend himself
against all charges made against
him and, in particular, he is
yet to be afforded the chance to
respond to issues raised in an
audit report which is still a
matter pending before the Public
Accounts Committee of
Parliament.
Although the parties in their
Memorandum of Agreed Issues
posed 9 issues as arising for
determination herein, it is
clear that the most fundamental
of these are:—
1. Whether or not the act of the
President in removing the
plaintiff from the Judicial
Service is contrary to Articles
151 and 127 of the Constitution
and therefore null and void, and
2. Whether or not, as a matter
of interpretation of Article
161(b), the appointment of the
Plaintiff under Article 148 as
2nd Deputy Judicial Secretary in
the Office of the Judicial
Secretary made him a Judicial
Officer.
A positive answer to these
questions would obviate the need
to determine any of the
remaining issues set out in the
Memorandum of Issues, including
that of whether or not the
Plaintiff was afforded a hearing
before his removal by the
President.
Article 148 to 151 of the
Constitution deal with the
appointment, retirement and
removal of Judicial Officers.
These provisions fall under
Chapter 11, which is concerned
with the Judiciary, in whom the
judicial power of Ghana is
vested. The underlying concept
upon which Chapter 11 is founded
is that of assuring and
safeguarding the Independence of
the Judiciary. Consequently,
the Committee of Experts, in its
Report on Proposals for a Draft
Constitution of Ghana, at
paragraph 252, included amongst
the principles that must be
reflected in the Constitution to
assure the realization of this
concept, the following
principle—
“4. The Judiciary should be
assured full financial and
administrative autonomy. This
means that the governmental
structure should not subordinate
the Judiciary to any Government
Department or Ministry for the
purposes of presenting or
realizing its administrative or
financial requirements”.
In pursuance of this principle,
Article 127(1) stipulates thus:—
“In the exercise of the judicial
power of Ghana, the Judiciary,
in both its judicial and
administrative functions,
including financial
administration, is subject only
to this constitution and shall
not be subject to the control or
direction of any person or
authority”. (emphasis ours)
It is also towards the
achievement of this end that the
Constitution, in Article 148,
vests the power to appoint
persons to hold or act in a
judicial office in the Chief
Justice, acting on the advice of
the Judicial Council. Such
appointments are, however, made
subject to the approval of the
President. Where such an
officer is to be removed from
office, on the other hand,
Article 151 expressly stipulates
that this may be done by the
Chief Justice and:—
“…on grounds only of stated
misbehavior, incompetence or
inability to perform his
functions arising from infirmity
of body or mind and upon a
resolution supported by the
votes of not less than
two-thirds of all members of the
Judicial Council”.
This Article also stipulates
that such an officer shall be
entitled to be heard in his
defence by himself or a lawyer
or other expert of his choice.
It is clear from the letter
issued to the Plaintiff, from
the Office of the President that
his ‘redeployment’ was intended
as a disciplinary measure for
his incompetence in the
discharge’ of his duties. What
is most obvious in Article 151
is the absence of any reference,
whatsoever, to the President,
whether in a directive or an
approving capacity, or in any
otherwise. Clearly, therefore,
under the Constitution, the
President is not the
disciplinary authority for the
removal of any Judicial Officer.
The language of this Article is
so crystal clear and entirely
unambiguous that there can be
absolutely no justification for
reading any other words or
meaning into it. Consequently,
to the extent that any portion
of the Judicial Service Act or
the Judicial Service Regulations
give any power of removal or
discipline of a Judicial Officer
to any person other than the
Chief Justice, those provision
must, pursuant to Article 11
(6), be read with such
modifications, adaptations,
qualifications and exceptions as
are the necessary to bring them
in conformity with the
Constitution.
The Defendant, however,
contended that the Plaintiff is
not a Judicial Officer. Under
Article 161, ‘judicial office’
is defined as:—
“a. the office of a person
presiding over a lower court or
tribunal howsoever described;
b. the office of the Judicial
Secretary or Registrar of the
Superior Courts;
c. such other offices connected
with any court as may be
prescribed by constitutional
instrument made by the Chief
Justice acting in accordance
with the advice of the Judicial
Council and with the approval of
the President”.
And a ‘judicial officer’ is
defined as a person holding a
judicial office.
Thus there is not doubt that the
holder of the office of Judicial
Secretary is a judicial officer.
The question, however, is
whether, by virtue of this
status of the Judicial
Secretary, a person appointed to
function as his deputy should
also be deemed to be a Judicial
Officer. The term ‘deputy’; is
a term of science and not merely
one of art. In the 5th Edition
of Stroud’s Judicial Dictionary
the following definition is
given:—
“…he that occupieth in another
man’s right, whether it be
office or any other thing; and
his forfeiture or misdemeanour
shall cause the officer, or him
whose deputy he is, to lose his
office or thing”.
Furthermore, the Revised 4th
Edition of Black’s Law
Dictionary, defines the term in
the following manner:-
“A substitute; a person duly
authorised by an officer to
exercise some or all of the
functions pertaining to the
office, in the place and stead
of the latter. One appointed to
substitute for another with
power to act for him, in his
name or behalf”.
(The editors of the latter
Dictionary go on to explain that
a deputy may do an act and sign
his own name and thereby bind
the person for whom he is
acting.)
The position of a deputy is,
therefore, not a trifling one.
Rather, it necessarily carries
with it responsibilities and
consequences with significantly
affected the substantive
position, as well as the rights
and obligations of the
employer-institution. A person
appointed into a position the
profile of which is such that,
on a day-to-day basis, he is
required and expected to
function as a Judicial Officer
must necessarily be considered
as Judicial Officer, if such an
appointment is to achieve the
desired outcomes for which such
an appointment was made. It is,
therefore, clear that the
Judicial Council made no mistake
when it recommended the
appointment of a Deputy Judicial
Secretary under Article 148.
Consequently, it is our view
that, on a true and proper
interpretation of Article
161(b), in particular, a Deputy
Judicial secretary is a Judicial
Officer. As such, he may be
removed from his position as a
disciplinary measure, only in
accordance with the dictates of
Article 151. Thus, the act of
the President in removing the
Plaintiff from the Judicial
Service is in contravention of
Article 151 and 127 of the
Constitution and is, therefore,
null, void and of no effect
whatsoever.
The corollary to the Defendant’s
adamant contention that the
Plaintiff is not a Judicial
Officer is, presumably, that the
President had the power to
remove him from the Judicial
Service. We wish to emphasise,
however, that even if our
conclusion had been that the
position of Deputy Judicial
Secretary is not a Judicial
Officer, the framework and
underlying principles of Chapter
11 of the Constitution would
still have compelled us to
conclude that the act of the
President in removing the
Plaintiff is against of the
Constitution, particularly,
Article 127 thereof. This is
because the removal, whether by
way of termination or
redeployment, of an ordinary
employee of the Judicial
Service, as a
disciplinary measure, is clearly
an administrative function and,
hence, completely outside the
purview of Presidential powers
or the powers of the Executive
arm of government or any
institution other than the
Judiciary.
Finally, we cannot conclude this
judgment without commenting on
the Constitutional impropriety
of the conduct of the Judicial
Council in making
recommendations to the President
for the removal of a Judicial
Officer. The Judicial Council is
a creature of the Constitution
and, pursuant to Article 153,
its membership includes not less
than twelve persons each of
whose professional background
necessarily entails formal
training in law. As such,
therefore, the Council could not
be unaware of the fundamental
principles driving Chapter 11
and, in particular, the
provisions of Article 151(1).
Hence, it is our view that the
ultimate responsibility for the
unconstitutional act of the
President, in purporting to
remove the Plaintiff as a
Judicial Officer, must be placed
squarely at the door of the
Judicial Council, which in this
instance, dismally failed in the
performance of its functions.
(E.K. WIREDU)
JUSTICE OF THE SUPREME COURT
(E.D.K. ADJABENG)
JUSTICE OF THE SUPREME COURT
(S.A.B. AKUFFO) (MS.)
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree that the plaintiff is a
judicial officer by virtue of
his office and by the mode of
his appointment. My Lords,
“justice”, they say, “must be
done even if the Heavens fall”.
The heavens need not rumble, let
alone fall as a result of this
case. The is a case which not in
my honest view, should have come
to this court if only the
Judicial Council had lived up to
expectation and properly
discharged its Constitution,
responsibilities.
The letter which provoked this
suit was signed by the Secretary
to the President, Mr. Jimmy
Amissah. It states as follows:
“H.E. the President has accepted
the recommendation of Judicial
Council, given in accordance
with L.I.319, Section 28(2) of
the Judicial Service
Regulations, 1963 and has
directed your immediate
redeployment outside the
Judicial Service for displaying
a high degree of incompetence in
the discharge of your duties.
2. The Public Service
Commission has, in a separate
letter, been requested to take
the necessary steps to put the
decision into effect”.
That the President took this
action on “the recommendation of
Judicial Council” devastates me.
The President should expect and
indeed deserves quality
professional legal advice from
the Judicial Council because it
is a body which is dominated by
what can be described the CRÈME
DE LA CRÈME of the legal
profession in this country. To
recommend to the President the
type of action typified in the
letter quoted above is to
needlessly mislead and embarrass
the President and I am saddened
by it. I say so because the
Council was recommending to the
President to do an act which is
in clear violation of Article
127(1) which guarantees, in very
robust language, the
independence of the Judiciary in
its administrative matters. For
the avoidance of doubt I beg to
quote the said provision.
“127(1) In the exercise of the
judicial power of Ghana, the
Judiciary, in both its judicial
and administrative functions, …
is subject only to this
Constitution and shall not be
subject to the control or
direction of any person or
authority.”
This provision completely
insulates the Judiciary from the
type of directive emanating from
the Secretary to the President’s
letter.
The second point I find
disturbing about the
recommendation of the Judicial
Council is that is has not only
undermined its own authority
under article 151(1) of the
Constitution, but also that of
the Chief Justice, the
disciplinary authority for
Judicial officers. He alone can
punish such officers (for
example, removal from office)
upon the resolution of not less
than two-thirds of all the
members of the council.
I am doubtful whether any member
of the Council ever adverted his
or her mind to the law
regulating disciplinary
proceedings against a judicial
officer. For future guidance I
feel obliged to state the
current position after the
constitution came into effect.
Disciplinary proceeding in the
Judicial Service is governed by
the Judicial Service Act, 1960
(C.A. 10) and the Judicial
Service Regulations, 1963 (L.I.
319). Section 18(1) of the
Judicial Service Act, 1960 (C.A.
10) makes the President the
disciplinary authority for
judicial officers. Section
18(1) states:
“Subject to the provisions of
this section, the President
shall be the disciplinary
authority for all judicial
officers….”
Subsequent amendments did not
depart from the practice of
making the person or body of
persons exercising executive
power the disciplinary authority
for Judicial Officers. See, for
example, the Judicial Service
Act, 1960 (AMENDMENT) Decree,
1966 (N.L.C.D. 39).
The Judicial Service Act, 1960
(C.A. 10) and the Judicial
Service Regulations, 1963 (L.I.
319) being existing laws must be
read in terms of Article 11(6)
of the Constitution; that is to
say “with any modifications,
adaptations, qualifications and
exceptions necessary to bring it
(sic) into conformity with the
provisions of this Constitution,
or otherwise to give effect to,
or enable effect to be given to,
any changes effected by this
Constitution”.
By Article 151(1) of the
Constitution, therefore, the
President is not longer the
disciplinary authority for a
judicial officer but rather the
Chief Justice. This is what
Article 151(1) says:
“A person holding a judicial
office may be removed from
office by the Chief Justice on
grounds only of stated
misbehavior, incompetence or
inability to perform his
function arising from infirmity
of body or mind and upon a
resolution supported by the
votes of not less than
two-thirds of all members of the
Judicial Council”.
Section 28(2) of the Judicial
Service Regulations 1963 (L.I.
319) under which the President
purported to have acted is no
longer applicable. More
importantly, the Judicial
Council cannot make any
recommendation to a President
under this subsection for the
removal of any Judicial Officer
even when the President could
properly be said to be the
disciplinary authority. The
President’s powers is limited to
a direction as to the type of
inquiry to be held, that is
whether formal or summary, when
an allegation of misconduct is
leveed against a Judicial
Officer.
But assuming, without admitting,
that section 28(2) of L.I. 319
is still applicable, any claim
that a recommendation can be
made under the said section to
the President for the
redeployment of a Judicial
Officer outside the judicial
service, and by implication an
assertion on behalf of the
President of his authority to so
direct is legally unpardonable.
This is what Section 28(2) of
L.I. 319 says:
“Where an allegation is made
against a judicial officer, …
the Chief Justice may cause the
case to be reported to the
President for direction as he
may desire to give and upon the
directions of the President an
inquiry, formal or summary, as
the case may be, shall be
instituted by the Chief Justice”
My Lords, I cannot comprehend
how the above provision can be
cited in justification of a
recommendation from the Judicial
Council that a judicial officer
be removed from office; and how
a claim can be made on behalf of
the presidency that the
President has power to order the
removal of the said officer
despite Articles 127(1) and
151(1) of the constitution.
The position now, as I see it,
is that where an allegation is
made against a judicial officer
like the plaintiff, it is the
Chief Justice who decides if an
inquiry is to be held, and also
directs the type of inquiry,
formal or summary, to be held.
Written charges are then served
on the officer involved. He is
then put before the appropriate
inquiry officer to enable the
accused officer “to be heard in
his defence by himself or by a
lawyer or other expert of his
choice.”
See article 151(2) of the
constitution. It is after this
that a report will be submitted
to the Chief Justice as to the
Committee’s findings. He is
then obliged to put the matter
before the Judicial Council in
accordance with Article 151(1)
if a major penalty of the type
meted out to the plaintiff is
anticipated.
This procedure which ensures a
fair hearing has been
short-circuited in this case and
I cannot see how the finding
that the plaintiff is being
removed “for displaying a high
degree of incompetence in the
discharge of your (sic) duties.”
Can be legally justified.
On the contrary there is
evidence from the Chief Justice
and accepted by the Judicial
Council to the effect that “Mr.
Agbevor is competent, honest,
hard working and respectful. He
is innovative and untiring in
his work.”
This was the Chief Justice own
testimonial before the Judicial
Council.
My Lords, there is everything to
be said against the letter of
the President under
consideration and there is
nothing favourable to be said
for the Judicial Council’s
recommendation to the President
to remove a judicial officer
from the Judicial Service
either. I agree that the letter
is an unnecessary intrusion into
the administration of the
Judiciary and infringes Article
127(1) of the Constitution.
Also, the President has no power
to sanction any judicial officer
and his letter to the plaintiff
directing his removal from the
Judicial Service is contrary to
Article 151(1) of the
Constitution.
(F.Y. KPEGAH)
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I agree with the well-reasoned
judgment read by my learned and
respected sister Sophia Akuffo.
I desire however to add a few
words of my own. I was at first
minded to demonstrate a
distinction between this action
and other actions in which the
original jurisdiction of this
court has been explained, such
as TAIT V. GHANA AIRWAYS
CORPORATION (1970) 2 G & G 527,
REPUBLIC V. SPECIAL TRIBUNAL, EX
parte AKOSAH (1980) GLR 592 C.A.
AND BAFFOUR KWAME FANTE ADUAMOA
II & ORS. V. NANA GYAKORANG ADU
TWUM II, S.C. 9th February
2000. However the propriety of
the plaintiff’s action in this
court is so clear that I need
not do so and presumably that is
why no one has even thought it
necessary to raise the issue.
Of course such failure to raise
the issue would not preclude
this court from suo motu doing
so, were this matter not
squarely within our
jurisdiction.
Next, I would hold that the
President under the Constitution
cannot be the disciplinary
authority in respect of the
plaintiff’s post as Deputy
Judicial Secretary in anyway,
because, in addition to the
reasons given on that score in
the judgment read by my sister
Sophia Akuffo, J.S.C., Article
297(a) of the 1992 constitution
provides as follows:
“297. In this Constitution and
in any other law—
(a) The power to appoint a
person to hold or to act in an
office in the public service
shall include the power to
confirm appointments, to
exercise disciplinary control
over persons holding or acting
in any such office and to remove
the persons from office.” (e.s.)
x x x
“public service’ includes
service in any civil office of
Government, the emoluments
attached to which are paid
directly from the Consolidated
Fund or directly out of moneys
provided by Parliament and
service with a public
corporation”. (e.s.)
It is clear from Articles
127(4), which charges the
administrative expenses of the
Judiciary upon the Consolidated
Fund and 190(1), which subsumes
the Judicial Service as part of
the Public Services that
appointments into the Judiciary
or Judicial Service are
appointments into the public
service. That being so as this
court held in NATIONAL MEDIA
COMMISSION V. ATTORNEY-GENERAL,
26th January, 2000, S.C. as per
holding (3) of the headnote:
“The meaning of Article 297(a)
was that whoever had the power
to appoint a person to an office
in the public service, had power
to confirm or to withdraw the
said appointment and/or to take
disciplinary measures against
him. Consequently it was the
National Media Commission, which
was entitled to exercise the
powers set out in Article 297(a)
in relation to such chairmen,
chief executives and other
members of the governing body of
public corporations managing
state owned media”.(e.s.)
Similarly it is the Chief
Justice, the appointing
authority of the plaintiff and
not the President who has
disciplinary authority over him
in terms of Article 297(a) of
the Constitution aforesaid.
The defendant however, to some
extent, ingeniously, contends
that the plaintiff as Deputy
Judicial Secretary is not a
judicial officer. The
definitions of “judicial office”
and “judicial officer” as
contained in Article 161 of the
Constitution have already been
set out in the judgment read by
my sister Sophia Akuffo J.S.C.
and I would not repeat them. It
is however further provided in
Article 297 as follows:
“297. In this Constitution and
in any other law—
x x x
(h) words directing or
empowering a public officer to
do any act or thing, or
otherwise applying to him by the
designation of his office,
include his successors in office
and all his deputies and all
other assistants”. (e.s.)
There is no doubt that the
Judicial Secretary is a public
officer. The expression public
officer is not defined in the
Constitution but Article 295(1)
does define “public office” as
follows:
“ “public office” includes an
office the emoluments attached
to which are paid directly from
the Consolidated Fund or
directly out of moneys provided
by Parliament and an office in a
public corporation established
out of public funds or moneys
provided by Parliament”. (e.s.)
It is clear that this is true of
the office of Judicial Secretary
(and of the plaintiff) by virtue
of Article 127(4) aforesaid
which provides in full, as
follows:
“(4) The administrative expenses
of the Judiciary, including all
salaries, allowances, gratuities
and pensions payable to or in
respect of, persons serving in
the Judiciary, shall be charged
on the consolidated Fund”.
(e.s.)
Whatever the expression public
officer is intended to mean it
must certainly include the
holder of a public office and
since the plaintiff and the
Judicial Secretary, as I have
endeavoured to show, supra, hold
such office, they are public
officers within Article 297 (h)
of the Constitution.
There is no doubt that “The
Judicial Secretary” is referred
to as such in Article 161(b) of
the Constitution and also in
section 3 of the Judicial
Service Act 1960, (C.A. 10).
Section 3 of the latter provides
as follows:
“3. There shall be a Judicial
Secretary, who shall be
responsible to the Chief Justice
for securing the general
efficiency of the Judicial
Service”.
The effect of all this is that
since the Judicial Secretary is
a public officer designated as
such by the Constitution and the
Judicial Service Act 1960 (CA!O)
it follows that the words
relating to “Judicial Secretary”
in Article 161, in terms of
Article 297(h) of the
Constitution,
“… applying to him by the
designation of his office,
include his successors in office
and all his deputies and all
other assistants”. (e.s.)
That being so since the Judicial
Secretary is manifestly a
judicial officer by reason of
the provisions of article 161
(b) and the definition of
judicial officer in that
article, it follows that the
plaintiff as Deputy Judicial
Secretary is included in the
designation “Judicial Secretary”
by reason of Article 297(h)
aforesaid and is consequently
also a judicial officer. The
words in Article 161, in so far
as they relate to the Judicial
Secretary, do so in respect of
him only virtue officio and
since they make him a judicial
officer, they also make the
plaintiff, his deputy, a
judicial officer, by reason of
Article 297(h), aforesaid.
In conclusion, I hold that the
combined effect of Articles 127,
148, 151 and 297 is to
constitutionally entrust a
judicial officer such as the
plaintiff into the exclusive
industrial custody of the Chief
Justice.
I would therefore also uphold
the plaintiff’s case.
(W.A. ATUGUBA)
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Kudjawu for Plaintiff
Mr. S.Y. Anim, Chief State
Attorney for Defendant
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