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Constitutional law – Judges –
Tenure – Whether six months
stay-over after retirement age
part of tenure of service.
Judges – Retirement – Benefits –
Whether retired judge entitled
to perquisites of office –
Constitution 1992, article
155(1) and (2), 71(3),
Constitution 1969, article
52(2), Constitution 1979,
article 58(3).
The plaintiff rose through the
High Court and the Court of
Appeal, to the Supreme Court in
1987. On attaining the then
compulsory retirement age of 65
years on 29 December 1991, the
Government, acting under the
Judiciary (Retiring Ages) Law
1986 (PNDCL 161) s 1(2),
extended his term of office for
one year expiring on 29 December
1992. He stayed over a period of
six months to deliver his
outstanding judgments, during
which the Constitution 1992 came
into force. He claimed, relying
upon article 128(2) of the
Constitution 1992 that his
stay-over period formed part of
his tenure for the calculation
of his pension under article 155
of the Constitution 1992. He
claimed also the continued
enjoyment of such perquisites of
office, as free furnished
residential accommodation, a
chauffeur-driven car owned and
maintained by the State, free
fuel allocation entertainment
allowance and duty allowances,
domestic servants to be paid by
the State and free medical care.
Held:
(1) The six months stay over by
a retired judge under section
1(2) of PNDCL 161 to deliver his
outstanding judgments did not
count as pensionable service.
The plaintiff’s service ended on
29 December 1992.
(2) Under article 71 of the
Constitution 1992, the
emoluments of Superior Court
judges were to be determined by
the President on the
recommendation of a committee
appointed under the
constitution. Under article
155(1) such a judge was entitled
to gratuity and pension equal to
his salary for the time being.
In 1991 Government decided that
certain allowances payable to
public officers be consolidated
with their basic salaries, and
the consolidated salary became
the proper basis for computing
gratuities of all public
officers, including judges.
(3) The perquisites paid to
judges in office did not form
part of their salaries for the
computation of their pension
under article 155. Article 52(2)
of the Constitution 1969 defined
‘salaries’ for the purposes of
that article only to include
allowances. Article 58(3) of the
Constitution 1979, for its
purposes and except as otherwise
provided in the Constitution,
defined the word to include
retiring benefits or awards. For
the purposes of article 71(3) of
the Constitution 1992, and
except as otherwise provided the
word was defined to include
allowances, facilities and
privileges. All three
constitutions obviously intended
a wide meaning of the word to
enable the committee to
determine allowances, facilities
and retiring benefits or awards.
The wider meaning could however
not be applied elsewhere in the
Constitution 1992 because the
definition of the word was
prefaced by the words “for the
purposes of this article” thus
restricting its application to
the article only. If a general
application of the word in the
constitution were intended the
word would have been defined in
the interpretation provision in
article 295. Indeed article
127(4) and (5) provide that the
salaries, allowances, gratuities
and pensions payable to judges
should be charged on the
Consolidated Fund and not be
varied to their disadvantage,
thus avoiding the compendious
meaning urged on the court. The
pension entitlement of a retired
judge of a Superior Court under
article 155 did not include the
perquisites claimed.
(4) Having served in the
Superior Court for more than ten
years, the plaintiff was
entitled under the Constitution
1969 to receive, besides
gratuity, an annual pension
equal to his gross annual salary
as at the date of his
retirement. Under the Pensions
(Amendment) Law 1986 (PNDCL
162), his pension would be
revised upwards whenever the
salary of serving judges of the
Supreme Court was raised. He was
not entitled to retain the use
of his official residence or
official car or be paid
allowances in lieu thereof.
ACTION by the plaintiff, a
retired judge, in the Supreme
Court for his retirement
benefits.
da Rocha
for the plaintiff.
M Amidu
Deputy Attorney-General (with
him Mrs Adusa-Amankwah
and Gyasi-Afrifa) for the
defendants.
AMUA-SEKYI JSC.
After the overthrow of the
Nkrumah regime, the judiciary
came under criticism for the
role that they had played while
the previous government was in
power. It was said that they had
departed from their traditional
role as an independent arm of
governance and had become
willing tools of repression in
the hands of the executive. It
was also said that some of the
appointments to the Bench had
been politically motivated in
that persons with known
sympathies for the regime had
been favoured over those who
exhibited an independent frame
of mind. Worse still, it was
said that some of the judges had
become so depraved and
demoralised that they habitually
took bribes. The answer of the
new administration was the
wholesale dismissal of judges -
cleaning the Aegean stables, as
it were, and appointing new ones
to take their place. But it was
soon realised that merely
dismissing personnel would not
be enough: what was required was
a re-appraisal of the role of
the judge in the body politic
and the creation of the
conditions necessary for the
proper exercise of his
functions. Among the measures
proposed were that the judges
should be well-paid so as to
make them less open to
manipulation and corrupt
influences, and that they should
be assured of a comfortable old
age when they retire.
The constitution which was
promulgated in 1969 sought to
achieve those ends in two ways:
first, by setting up a special
body to determine the salaries
of the judges and other public
officers who needed to be
protected from political
interference; and, secondly, by
providing, in the case of the
judges, that those who had
served for a certain number of
years should enjoy enhanced
retiring awards. These
provisions will be found in
articles 52 and 117(2)(4) of the
Constitution 1969. Under article
52(1), the salaries, pension,
gratuity and other allowances
that should be paid to the
judges and certain other public
officers were to be “determined
by the President acting in
consultation with the Council of
State on the recommendations of
a committee appointed…by the
President acting in consultation
with the Council of State.”
Article 117(2)(a) provided that
a judge of the Superior Court of
Judicature who had attained the
age of sixty years and retired
after serving as a judge for ten
years or more “shall, in
addition to receiving gratuity,
be paid a pension which is
equivalent to the salary he was
entitled to immediately before
retiring.” This was, however,
conditional on the judge not
holding any private office of
profit or emolument. Article
117(4) also provided that any
judge of the Superior Court of
Judicature who had not attained
the age of sixty years but had
completed twenty years’ service
in the public service out of
which at least ten years were as
a judge might, if he chose,
retire on gratuity and normal
pension.
When the opportunity came in
1979 to write a new constitution
article 52 was re-enacted as
article 58. This time, it was
provided that the salaries,
retiring benefits or awards of
the judges were to be determined
by “the President on the
recommendation of a committee of
not more than five persons
appointed...by the President
acting in accordance with the
advice of the Council of State.”
However the suggestion that
article 117(2) and (4) be
likewise repeated met with
fierce opposition. Although the
proposal was at first accepted
by the members of the
Constituent Assembly, memories
of the past had by then become
rather dim and the need to make
special provision for the judges
was but lost on them. Critics
said it was unfair to give
preferential treatment to the
judges. With many a sarcastic
comment, the members roundly
rejected the proposal. The
formation was, however, retained
for the benefit of the judges
then at post. It will be found
in the First Schedule, Part III,
section 3(2) and (3) of the
transitional provisions and
subsection 4 made it clear that
it was not to apply to any
person appointed as a judge
after the new constitution had
come into force.
As time went on, people began to
have second thoughts when it was
realised that with the frequent
changes in salary to make up for
rapid losses in the purchasing
power of the cedi a judge who
had retired on his salary found
after a few years that he was
receiving by way of pension much
less than other public officers.
The perverseness of the existing
law had become obvious, and when
a retired judge brought an
action in the courts to have the
anomaly adjudicated upon, the
government resolved that judges
who had retired on their
salaries would benefit from
increases in the salaries of
those of their colleagues who
were still at post. The Pension
(Amendment) Law 1986 (PNDCL 162)
gave effect to this decision.
Under article 71 of the
Constitution 1992, the salaries,
allowances, facilities and
privileges of serving judges,
and the retiring benefits or
awards they are to receive when
they leave office, are to 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.” Under article 155(1),
two categories of judges who had
attained the age of sixty years
should, on retiring be paid, in
addition to gratuity, a pension
“equal to the salary payable for
the time being to a Justice of
the Superior Court from which he
retired”; those who had served
for at least ten continuous
years as a judge of the Superior
Court of Judicature; and those
who served for twenty or more
years in the public service out
of which at least five
continuous years were as such a
judge. Then, clause 2 explains
that the pension “shall be
subject to the same changes and
increases as the salary of a
serving Justice of the Superior
Court of Judicature.” As before,
there is the prohibition on such
retired judges holding any
private office of profit or
emolument, but clause 3 gives
the judges the option of taking
normal pension and avoiding that
prohibition.
In the Constitution 1979, an
important change was made in the
law with regard to the payment
of pensions to all public
officers. This was the provision
in article 162(3) that the
pension payable to any person
shall not be subject to income
tax. This has been repeated in
article 199(3) of the present
constitution and means that any
judge who qualifies to retire on
his salary under the provisions
of the Constitution 1969 now
does so on the full salary of a
serving judge without any
deduction of income tax.
Sometime in 1991 it was decided
that certain allowances then
paid to public officers be
abolished and instead be paid to
them as part of their basic
salaries. The term “consolidated
salary” came in vogue to
designate the new salary
structure. The question then
arose as to whether gratuities
of retiring officers were to be
computed with the old, basic
salary or the new,
“consolidated” salary. After
some hesitation on the part of
the authorities, the matter was
resolved when the
Attorney-General advised that
gratuities be computed on the
basis of the “consolidated”
salary. A letter from the
Controller and
Accountant-General acknowledging
this fact has been exhibited in
these proceedings. It is
therefore now common ground that
the proper basis for computing
gratuities of all public
officers, including judges, is
the so-called consolidated
salary.
Apart from their basic or
consolidated salaries, judges of
the Superior Courts continue to
receive certain perquisites of
office, some of which are in
cash and others in kind. Among
these are the provisions of free
furnished residential
accommodation at their stations,
a chauffeur-driven car, which is
owned and maintained by the
State, and the provision of fuel
allocation for their use. They
are also paid entertainment
allowance and duty allowance,
and have domestic servants whose
salaries are paid by the State.
They receive free medical care.
A further question raised is
whether judges who have
qualified to retire on their
salaries are entitled to these
perquisites of office as part of
their retiring awards. It has
been argued that under the
Constitution 1992, they are so
entitled and that this can be
inferred from the constitutional
provisions. Arguing to the
contrary, the defendants say
that it is for the committee set
up under article 71 to determine
what retiring awards are to be
given to the judges.
A careful reading shows that
there is a shade of difference
between article 52 of the
Constitution 1969 on the one
hand, and article 58 of the
Constitution 1979 and article 71
of the Constitution 1992 on the
other. Article 52(2) states that
“for the purposes of this
article the expression
‘salaries’ includes pension and
gratuity and other allowances
payable.” Article 58(3) states
that “for the purpose of this
article, and except as
otherwise provided in this
[1979] Constitution, the
expression ‘salaries’ includes
retiring benefits or awards,”
and article 71(3) states that
“for the purposes of this
article, and except as
otherwise provided in this
[1992] Constitution,
‘salaries’ includes allowances,
facilities and privileges and
retiring benefits or awards.”
But the utility of inserting the
words “except as otherwise
provided in this Constitution”
in article 58(3) and 71(3) is
doubtful as nowhere in either
constitution is there any
provision that the expression
“salaries” be given the
narrower, and more usual,
meaning when used in relation to
the functions and powers of the
committee. However, it is clear
in all three constitutions that
the wider meaning was adopted in
the relevant provisions so that
the committee charged with
determining salaries might also
have power to determine
allowances, facilities and
retiring benefits or awards.
There are two sound reasons why
this broader, extended or wider
meaning cannot be applied to
other provisions of the
constitution; first, the
definition is prefaced by the
words, “for the purposes of this
article,” thus indicating that
it is to be restricted to that
article only; and, secondly, if
the intention had been that it
be applied to all provisions in
which the word “salary” is used,
the definition would have been
placed in article 295 which
deals with interpretation
generally. Thus, the compendious
use of the word has been
carefully avoided in article
127(4) and (5) of the
Constitution 1992, which
provides as follows:
“127(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.
(5) The salary, allowances,
privileges and rights in respect
of leave of absence, gratuity,
pension and other conditions of
service of a Justice of the
Superior Court or any judicial
officer or other person
exercising judicial power, shall
not be varied to his
disadvantage.”
It is the same with article 155.
When the article says that in
certain circumstances a judge,
on retiring, shall “be paid a
pension equal to the salary
payable for the time being to a
Justice of the Superior Court
from which he retired” the word
“salary” is a reference to the
salary only of a serving judge
and does not include the
allowances paid to him, the
facilities placed at his
disposal, or the privileges
accorded him.
Coming to the facts of this
case, the plaintiff, Wuaku was
appointed a judge of the High
Court in 1977. He was promoted
to the Court of Appeal in 1986,
and elevated to the Supreme
Court in 1987. On attaining the
then compulsory age of 65 years
on 29 December 1991 the
government of the Provisional
National Defence Council acting
under section 1(2) of the
Judiciary (Retiring Ages) Law
1986 (PNDCL 161), extended his
term of office for one year.
That period expired on 29
December 1992. He was not
granted any further extension of
his term of office. It is,
however, contended on his behalf
that having thereafter continued
in office for the purpose of
delivering judgment, that
period, extending to over six
months, should be regarded as
part of his tenure of office as
a judge. He relies on article
128(2) of the Constitution 1979
which like article 116(2) of the
Constitution 1969 and article
145(4) of the 1992 Constitution
permits a judge who has reached
the compulsory retiring age to
continue to perform the
functions of a judge in respect
of matters commenced before him
prior to his reaching that age,
and contends that since upon the
coming into force of the 1992
Constitution on 7 January 1993,
he had not delivered all his
outstanding judgments he must be
deemed to have retired
subsequent to the coming into
force of the constitution and
therefore article 155 is
applicable to him.
The submission loses sight of
the object and purpose of
permitting a judge who has
reached the compulsory age to
complete part-heard cases and
deliver judgments. The fact is
that if he were not allowed to
do so, all such cases would have
to be commenced afresh, causing
not only inconvenience to the
parities, but also leading to
extra financial outlay both on
their part and on that of the
State. The arrangement is for
the convenience of litigants and
the courts, and is not intended
in any way to benefit the judge.
It was otherwise with section
1(2) of PNDCL 161 which was
intended to confer a benefit on
the judge. That was why it
provided that any extension of a
judge’s tenure of office under
the Law should be regarded as
pensionable service. The period
during which the plaintiff
claims to have continued in
office for the purpose of
delivering judgments does not
count as pensionable service
because under the Law it was
only the Provisional National
Defence Council which could
cause a further extension of
service. As no such extension
was granted to him, the
plaintiff ceased to be a judge
of the Superior Courts on 29
December 1992.
As to his retiring awards, it is
clear that having served in the
Superior Court for more than ten
years, the plaintiff was
entitled under the 1969
Constitution to receive, besides
gratuity, an annual pension
equal to his gross annual salary
as the date of his retirement.
Under PNDCL 162, his pension was
to be revised upwards whenever
the salary of serving judges of
the Supreme Court was raised. As
to the other benefits claimed by
him, these must fail as neither
of the committees set up under
the 1969 or 1979 Constitution
made any recommendation that
retired judges should have any
of the perquisites of the office
of serving judges. We are
therefore bound to refuse the
claim of the plaintiff that he
is entitled to retain the use of
his official residence and
motor-vehicle or be paid
allowances in lieu thereof.
In the light of the above, the
following declarations and
orders are made: The plaintiff
Wuaku retired as a judge of the
Supreme Court on 29 December
1992 when the present
constitution came into force on
7 January 1993 he had ceased to
hold office as a judge; and
terms of his retirement are
governed by the Constitution
1969, the Pension Ordinance
1950, the Pension (Amendment)
Ordinance 1954 and PNDCL 161 and
162; he is entitled to have his
gratuity calculated on his basic
or “consolidated” salary as at
the date of his retirement;
while his annual pension amounts
to the gross annual salary of a
serving judge of the Supreme
Court and is not subject to tax;
he is not, additionally,
entitled to the perquisites of
office of a serving judge. His
retiring awards do not include
free residential accommodation
or the free use of a State-owned
motor vehicle and, accordingly,
these must be surrendered
forthwith.
(sgd) ABBAN JSC
(sgd) AIKINS JSC
(sgd) HAYFRON-BENJAMIN JSC
(sgd) AMPIAH JSC
Action dismissed.
S Kwami Tetteh, Legal
Practitioner |
