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Constitutional law – Judges – Pension – Judge appointed Acting High Court judge while a circuit judge – Judge confirmed as substantive High Court judge – Whether tenure as acting High Court judge to be reckoned in computing pension – Constitution 1992, article 155(1).

Constitutional law – Judges – Gratuity – Constitutional requirement that salaries and allowances of justices to be determined by the President – President’s determination not announced – Whether judge may claim gratuity based on facilities and privileges pending determination – Meaning of “salary” – Constitution 1992, article 71(3).

Words and phrases defined – “Salary” – Constitution 1992, article 71(3).

The plaintiff, a District Magistrate Grade I in 1967 was promoted as a circuit judge and as Acting High Court judge till he was appointed a substantive High Court judge. Upon his retirement, the Chief Justice requested him to vacate his bungalow and surrender his car. He quit the bungalow and released the car under protest but instituted an action against the Attorney-General, the Chief Justice and the Controller and Accountant General for declarations that (a) he was entitled to a pension adjustable to reflect his salary as a serving Justice of the Superior Court of Judicature; (b) his gratuity was calculable on his last gross or enhanced consolidated salary before retirement; (c) his pension should reflect changes and increases for a serving Justice; (d) he was entitled to all allowances and facilities under articles 71(3) and 155(2) of the 1992 Constitution. He contended that in computing his years of service under article 155(1)(b) of the constitution, his service as a High Court judge ought to be reckoned, and relied on regulation 20 of the Pensions Ordinance (Cap 30) in support. He contended further that the computation of his salary should include facilities and privileges enjoyed by him as the definition of “salary” in article 71(3) included allowances, facilities, privileges and retiring benefits or awards.

Held: (1) Under article 155(1) of the 1992 Constitution a retiring Justice of the Superior Court of Judicature was entitled in addition to his gratuity to a pension equal to the salary payable for the time being to him as such provided he had served for ten continuous years or more as a Justice of the Superior Court of Judicature or had 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. The letter appointing the plaintiff as Acting High Court judge intimated that the appointment carried no guarantee for a permanent appointment. Thus the plaintiff retained his substantive post of as a circuit judge while he acted as a High Court judge. The two positions thus differed in their tenure and security. Claim (a) in the endorsement must therefore fail. The plaintiff not having served continuously for ten years as a Justice of the Superior Court was not entitled to pension.

(2) The plaintiff was entitled to gratuity based on his consolidated salary. By article 71(1) of the Constitution, 1992 the salaries and allowances of justices of the Superior Court of Judicature were determinable by the President on the recommendations of the committee appointed by the President acting upon the advice of the Council of State. “Salaries” in article 71(3) was differently defined for the guidance of the committee. Therefore to include facilities and privileges as salary would create difficulty in the computation of pension or gratuity where the facilities and privileges in issue were in kind. A facility such as a car or the bungalow was for the effective performance of duty but until the President had determined their inclusion as retiring benefits a claim could not be made as of right.

ACTION in the Supreme Court by a judge of the Superior Court of Judicature for declarations regarding his retirement benefits.

Joe Addae-Aboagye for the plaintiff.

Martin Amidu, Deputy Attorney-General, with him, Mrs Adusa-Amankwah, Chief State Attorney and Gyesi-Afrifa for the defendants.

AMPIAH JSC. The plaintiff was appointed a District Magistrate Grade I and in 1967 he was promoted to the circuit court bench. He was appointed acting High Court judge while he was still a circuit judge, on 18 August 1986 with effect from 8 July 1986. He acted in this position until 18 September 1990 when by a warrant of appointment dated 16 May 1991 he was elevated as a substantive High Court judge. In or about March 1993, he was retired from the Judicial Service having attained the compulsory retiring age of 65 years.

As part of his conditions of service, he was provided with a furnished accommodation and a chauffeur driven car, among other facilities for his free and personal use. Upon his retirement, the Chief Justice requested him to vacate his bungalow and release the car for use by a serving judge. He vacated his bungalow but released the car under strong protest. He contended that he was entitled to the use of the car upon his retirement as part of the facilities and privileges he was entitled to under the constitution. He contended

further that the period for which he acted as a High Court judge should be included in the calculation of his service as substantive High Court judge to qualify him for his retirement benefits or awards under article 155(1) and (2) of the 1992 Constitution. He contended further that in computing his pension, the salary must not only be the salary he was entitled to immediately before proceeding on retirement with the necessary changes and increases as that of a serving Justice of the High Court, but must also include all the allowances facilities and privileges he was enjoying while in the service. The Controller and Accountant General (the 3rd defendant herein) who has the responsibility of computing the retiring entitlements of the plaintiff could not agree with the plaintiff. The plaintiff has therefore taken this action for:

“(a) Declaration that on retirement the plaintiff shall be paid a pension which he was entitled to immediately before proceeding on retirement in March 1993 with the necessary changes and increases as the salary of a serving Justice of the Superior Court of Judicature; (b) a declaration that the computation of the plaintiff’s gratuity be calculated on the basis of the plaintiff’s last gross salary or enhanced consolidated salary before proceeding on retirement; (c) a declaration that the plaintiff’s pension payable shall be the same salary as if plaintiff were on the bench or alternatively with changes and increases as the salary of a sitting Justice of the Superior Court of Judicature; (d) a declaration that the plaintiff is entitled to enjoy all the allowances, facilities with articles 71 clause (3) and 155(2) of the 1992 Constitution; (e) an order or orders as may be appropriate in the circumstances to give effect to the declaration.”

This action has been brought under article 130(1) of the 1992 Constitution to invoke the original jurisdiction of the Supreme Court. Except where it is specifically stated, any reference to the constitution would mean the 1992 Constitution. Although by his letter of appointment as a High Court judge, the plaintiff’s conditions of service were to be governed by the relevant articles of the 1979 Constitution as saved by the PNDC (Establishment) Proclamation (Supplementary and Consequential Provisions) (Amendment) Law 1988 (PNDCL 42) the plaintiff having retired under the 1992 Constitution, his conditions of service, in no far as they are not varied to his disadvantage, are governed by the provisions of the 1992 Constitution and such other law or laws that are not inconsistent with or in contravention of the provisions of the constitution. Article 155(1) of the constitution provides:

“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; (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,” (Emphasis supplied.)

The plaintiff not having done a continuous service of ten years as a Justice of the Superior Court is not entitled to payment of pension equal to the salary payable for the time being to a serving Justice of the Superior Court under article 155(1)(a) of the constitution. He can claim only if he can bring himself under article 155(1)(b). The plaintiff claims to have been in the public service for a period of 30 years. This has not been challenged by the defendants. The first part of article 155(1)(b) is therefore satisfied. He was appointed a substantive Justice of the Superior Court ie a Justice of the High Court on 18 September 1990. Until he retired in March 1993 he had served as a Justice of the Superior Court for two years six months. The plaintiff acted as a Justice of the Superior Court from 8 July 1986 to 18 September 1990 - a period of four years. For the purposes of computing the period of “five continuous years” required under article 155(1)(b) of the constitution, the plaintiff has contended that the period for which he “acted ” as a Justice of the Superior Court be counted. If this is done, he would have served as a Justice of the Superior Court for a continuous period of six years eight months and this would qualify him for his entitlement under article 155(1)(b) of the Constitution 1992. In support of his contention, the plaintiff has relied on regulation 20 of the Schedule to the Pensions Ordinance, Cap 30 (1951) as amended. This states:

“20. Acting service in a pensionable office may, when continuous with permanent employment, be allowed to count as service qualifying for pension or gratuity, provided that the period of such acting service has not been taken into account as part of the public service of the previous holder of the office or as part of the officer’s other public service.” (Emphasis mine.)

The President may, acting in accordance with the advice of the Judicial Council, appoint a person who has held office as, or a person qualified for appointment as a Justice of the High Court to act as a Justice of the High Court where the office of a Justice of the High Court is vacant or for any reason a Justice thereof is unable to perform the functions of his office or if the Chief Justice advises the President that the state of business in the High Court so requires; vide article 127(10) of the 1979 Constitution; also article 144(a) of the 1992 Constitution. In his letter of appointment as acting High Court judge (exhibit A) it was made abundantly clear to the plaintiff that “this acting appointment carries no guarantee of permanent appointment and whether you will be substantively appointed or not will depend on your over all performance.”

While the plaintiff acted as a High Court judge he was still holding his substantive post of a circuit judge. It cannot be said that there is no distinction between an acting position and a substantive position. Both in their tenure and security the two positions are different. The parties themselves do not dispute that at a particular period the plaintiff only acted as a Justice of the Superior Court. What the plaintiff is contending is that since his appointment as a substance High Court judge is continuous with the period when he acted, the period of acting should be counted to enable him qualify for his entitlement under article 155(1)(b) of the constitution, hence his reliance on regulation 20 of Cap 30. To count a period of acting for purposes of computing the pension or gratuity is the discretion of the Controller and Accountant-General. Such discretion is however restricted. The period of acting cannot be counted:

“(i) where the period of such acting has been taken into account as part of the public service of the previous holder of the office or (ii) where the period of such acting has been taken into account as part of the officer’s other public service.”

There is no evidence that the plaintiff when acting was acting for a holder of that office. In calculating the period of his public service i.e. those 30 years, the plaintiff took into account the period when he acted, ie 4 years 2 months. Since the period of acting has thus been taken into account for purposes of his pension or gratuity, that period cannot be counted further for the purposes of qualifying under article 155(1)(b) of the constitution. The constitution is clear and unambiguous. The plaintiff must have served for 20 years or more in the public service, five continuous years of which must be in the Superior Court of Judicature; the plaintiff served for only 2 years 6 months as a justice of the High Court. His claim (a) therefore must fail and it is accordingly dismissed.

With regard to the plaintiff’s claim (b) there is some agreement that his consolidated salary should be used in computing the plaintiff’s gratuity. There is however no agreement as to the components of the consolidated salary. We can only declare that the plaintiff is entitled to a gratuity based on his consolidated salary as agreed upon. The plaintiff’s claim (c) depends on his being accepted as qualifying under article 155(1)(b) of the Constitution, 1992. Since we have found that he is not so qualified, he would only be entitled to pension as computed by the Controller and Accountant-General for other public officers who do not come under article (155(1)(b) of the Constitution, 1992. There is no dispute that on retiring as a Justice of the High Court and for that matter a Justice of the Superior Court, the plaintiff was entitled to allowances, facilities, privileges and other retiring benefits and awards as stipulated by the constitution. Article 71(1) of the 1992 Constitution provides that:

“The salaries and allowances payable, and the facilities available and privileges available, to -

(b) the Chief Justice and the other justices of the Superior Court of Judicature; …

being expenditure charge 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 he advice of the Council of State.”

We are all aware that such a committee has been appointed and its recommendations submitted to the President. We have however not been told of what the entitlements of the Chief Justice and the other justices of the Superior Courts are. Even though it is agreed that the computation of the plaintiff’s gratuity should be based on his consolidated salary, he contends that “salary” should include the other facilities and privileges envisaged under article 71(3) which states:

“3. For the purposes of this article, and except as otherwise provided in this Constitution “salaries” includes allowances, facilities and privileges and retiring benefits or awards.” (Emphasis mine.)

It is our considered opinion that “salaries” as defined under this article is only for the guidance of the committee appointed under article 71(1) in the recommendations to the President on the entitlements of the persons listed in the article. It is only under this article that “salaries” has been differently defined. In other parts of the constitution the word salary has been given its ordinary meaning; see article 127(4) and (5) of the constitution. To include facilities and privileges as salary would result in absurdity, as it would be impossible to compute pension or gratuity on facilities and privileges which are not determinable money wise. The use of a car or the occupation of a bungalow is only a facility which is accorded a serving Superior Court judge on his appointment to enable him to perform the functions of his office effectively. Until there is a determination that these facilities should form part of a retiring justice of the Superior Court’s benefits or awards, such a claim cannot be made as of right.

When a recommendation has been made and the President has determined the retiring benefits and awards of the justices of the Superior Court of Judicature the plaintiff may put up a claim since he has retired under the constitution. The plaintiff has also claimed that the pension payable to him shall be subject to the same changes and increases as the salary of a serving justice of the Superior Court. Since we have found that the plaintiff does not qualify to claim under article 155(1)(b) of the Constitution 1992, he will not be entitled to such changes in the salary of a serving Justice of the Superior Court of Judicature. Subject to the declaration sought in paragraph (b) of the plaintiff’s claim, all the other claims would be dismissed.