Constitutional law – Public Services – Retirement – Police officer a public officer not to be retired before attaining 60 years – Constitution 1992, article 190(1).

Constitutional law – Public Officer – Reinstatement –  Court may order public officer wrongfully retired to be reinstated – Constitution 1992, article 199(1).

The plaintiffs, superintendents of police employed in the Ghana Police Service claimed that their retirement was unconstitutional. They sought a declaration in the Supreme Court that by the provisions of article 199(1) of the Constitution 1992, they, not having voluntarily retired were still serving officers within the Ghana Police Service. They contended that the compulsory retiring age for public officers under article 199(1) of the Constitution 1992 was 60 years and that their retirement compulsorily at 55 years was wrongful. The defendants contended that under section 8 of the transitional provisions of the Constitution 1992, the Police Service continued to be governed by the Police Service Act 1970 (Act 350), the Police Service (Amendment) Decree 1974 (NRCD 303) and the Police Service Regulations 1974 (LI 880) which required all police officers to retire at the age of 55 years. They contended further that under section 8(2) of the transitional provisions of the Constitution 1992 a person who before the coming into force of the constitution would have been required under the law in force to vacate his office at the expiration of his period of service should vacate his office at the expiration of that period.

Held: (1) Prior to the Constitution 1992, the Police Service did not form part of the public services. Article 190(1) of the Constitution 1992 restored the Police Service as a public service. There were two types of employees in the public services: those holding appointments for fixed periods usually computed in years, and those holding permanent appointments, unlimited in terms of years. To the latter category belonged the mass of employees who could look forward to a lifetime engagement in a public office. They were the career officers in the various public services who, subject to the needs of the public services, and their own competence and good behaviour could expect to be in employment until the prescribed retiring age.

(2) Section 8(1) of the transitional provisions retained a person who held a public office before the coming into force of the constitution. He was deemed to have been appointed to the equivalent office. Public officers with fixed appointments were required under section 8(2) of the transitional provisions to vacate their offices in accordance with the terms of their engagement upon the coming into force of the constitution. Under section 8(3), public officers holding pensionable appointment were to retire if their offices were abolished or they were removed from office. The contention that the plaintiffs could be retired under section 8(2) was erroneous. Jiagge v Inspector-General of Police, 26 March 1990, SC referred to.

Case referred to:

Jiagge v Inspector-General of Police, 26 March 1990, SC.

ACTION by the plaintiffs in the Supreme Court for wrongful retirement from the Ghana Police Service.

Sam Okudzeto (with him Amegatcher, Abena Boafo and Jacob Aryee) for the plaintiffs.

Dr Asamoah, Ag Attorney-General, (with him Martin Amidu, Deputy Attorney-General, Mrs Adusa-Amankwah and Avah) for the defendants.

AMUA-SEKYI JSC. The question of the compulsory retiring age for police officers was discussed by this court in Jiagge v Inspector-General of Police, 26 March 1990, when the plaintiff, Jiagge challenged a ruling in 1980 by the Police Council that article 162(1) of the Constitution 1979 which had raised the compulsory retiring age for public officers from 55 years to 60 years did not apply to members of the Police Service. The court held that the Council was right and dismissed the action. The reason was this: whereas under the Constitution 1969 the Police Service had, by article 142, been retained as part of the public services, the Constitution 1979 had deliberately taken it out of the public services. The court found this intention in article 154(1) where the Police Service had been omitted from the list of public services, and article 172(1), which after repeating article 142 of the Constitution 1969 that there shall be a Police Service, left out the all-important words “which shall from part of the Public Services of Ghana.”

Article 190(1) of the Constitution 1992 restored the Police Service to its place within the public services. It is this fact that has brought the present plaintiffs to court. The 1st plaintiff, Yovuyibor is a superintendent of police, as is the 2nd plaintiff Bonuedi. They say that as the compulsory retiring age for public officers under article 199(1) is 60 years, the compulsory retiring age for members of the Police Service is no longer 55 years but 60 years, and that their premature retirement at the age of 55 years is wrongful and a breach of the constitution. The answer of the defendants is that under section 8 of the transitional provisions, the Police Service continues to be governed by the Police Service Act 1970 (Act 350), the Police Service (Amendment) Decree 1974 (NRCD 303) and the Police Service Regulations 1974 (LI 880) which, they contend, require all police officers to retire at the age of 55 years.

Section 8(1), (2) and (3) of the transitional provisions read as follows:

 “8(1) A person who immediately before the coming into force of this constitution held or was acting in an office in existence immediately before the coming into force of this Constitution, shall be deemed to have been appointed as far as is consistent with the provisions of this Constitution, to hold or act in the equivalent office under this Constitution.

(2) A person who before the coming into force of this Constitution would have been required under the law in force to vacate his office at the expiration of a period of service shall, notwithstanding the provisions of subsection (1) of this section, vacate his office at the expiration of that period.

 (3) This section shall be without prejudice to any powers conferred by or under this Constitution or any other law not being inconsistent with any provision or this Constitution, upon any person or authority to make provision for the abolition of office, for the removal from office of persons holding or acting in any office and for requiring those persons to retire from office.”

The defendants justify the decision to retire the plaintiffs by relying on section 8(2). The question is whether they are right.

It is to be observed that there are two types of employees in the public services: those holding appointments for fixed periods, usually computed in years; and those holding permanent appointment, that is, appointment for periods not limited in terms of years. To the former category belong persons holding contract appointment. These contracts are usually of two years’ duration, but they may be for as long as five years. To the latter category belong the masses of employees who by the terms of their employment can look forward to a lifetime engagement in one public office or the other. These are the career officers in the various public services who, subject to the needs of the public services, and their own competence and good behaviour can expect to be kept in employment until they reach the prescribed retiring age.

Section 8(1) of the transitional provisions caters for both of these categories of public officers. It provides that a person who before the coming into force of the constitution held or was acting in an office shall be deemed to have been appointed to hold or act in the equivalent office under the constitution. Subsection 2 caters for the first category only by requiring those with fixed appointments to vacate their offices in accordance with the terms of their engagement. Subsection (3) caters for the second category by requiring those holding pensionable appointment to retire if their offices should be abolished or they are removed from office. The view that subsection (2) applies to pensionable officers is erroneous and must be rejected.

It was also contended that article 199(1) prescribes an upper limit beyond which no branch of the public services may keep a person in pensionable service, but does not prevent any such branch from prescribing a lower retiring age for its members. If this were so it would defeat the constitutional provision which was intended to lay down a uniform retiring age for members of the public services.

From the above, I am of the opinion that as public officers holding pensionable appointments the compulsory retiring age of the plaintiffs is 60 years and that their purported retirement from the Police Service at the age of 55 years is a breach of article 199(1) and a nullity. I would grant them declarations to that effect and order that they be re-instated forthwith.

ARCHER CJ. I have beforehand had the privilege of reading the opinion just delivered by my brother Amua-Sekyi JSC and I agree with his reasoning and conclusion that the plaintiffs should succeed and that the declaration sought should be granted.

ADADE JSC. I agree with the opinion just read by my brother Amua-Sekyi JSC. I will also grant the declaration sought by the plaintiffs, in particular, a declaration that “by the provisions of article 199(1) of the Constitution 1992, the plaintiffs not having voluntarily retired are still serving officers within the Ghana Police Service.”

FRANCOIS JSC. I also endorse the view that upon a proper construction of the constitutional provisions, the plaintiffs retiring age is 60 and not 55 years. Any other construction would lead to absurdities.

AIKINS JSC. I agree with the interpretation put on section 8(1) and (2) of the transitional provisions specified in the First Schedule to the Constitution 1992 by my learned brother Amua-Sekyi JSC as well as the conclusions arrived at by him. I would, however, like to say one or two words in support.

The two parties have reached a consensus that until the coming into force of the Constitution 1992 the Police Service Act 1970 (Act 350) amended by the Police Service (Amendment) Decree 1974 (NRCD 303) and the Police Service (Administration) Regulations 1974 (LI 880) regulated the compulsory retiring age of police officers which was fixed at 55 years.

However as the plaintiffs assert that on the coming into force of the Constitution 1992 on 7 January 1993 they as public officers are by the provisions of articles 190(1) and 199(1) to retire at the age of 60 years, the defendants contend that the Police Service in existence before 7 January 1993 “continued as the Police Service of Ghana only by virtue of section 8 of the transitional provisions scheduled to the constitution and is regulated by those provision for purpose of retirement¼” In other words, they contend that as police officers the plaintiffs are to vacate their office at the expiration of their period of office, ie at the age of 55 years.

I would like to point out that LI 880 ceased to regulate the compulsory retirement age of members of the Police Service when regulation 24 thereof was revoked by the Police Service (Administration) (Amendment) Regulations 1974 (LI 992), whose notification was gazetted on 13 December 1974. However, what was contained in the said regulation 24 was re-enacted by the Police Service (Amendment) Decree 1974 (NRCD 303), section 3.

The different interpretations put on section 8(2) of the transitional provisions by the parties appear to take their root from the cloudy or obscure language of the section. Section 8(2) reads:

“A person who before the coming into force of this Constitution would have been required under the law in force to vacate his office at the expiration of a period of service, shall, notwithstanding the provisions of subsection (1) of this section, vacate his office at the expiration of that period.” (Emphasis supplied.)

The plaintiffs interpret this to mean that the section applies to those officers holding appointment for fixed periods (ie contract officers), whereas the defendants interpret the section to refer to both officers holding appointment for fixed periods and those holding permanent appointments (ie career officers). I agree with the interpretation by the plaintiffs. The situation is clarified by a re-appraisal of the early constitutional enactment of this country.

It seems to me that the framers of the Constitution 1969 also had in mind the two categories of officers in the Police Service (ie those on limited engagement and those on permanent engagement) when subsection (2) of section 9 of the transitional provisions to that constitution were being drafted. The subsection referred both to officers who were required to vacate their office at the expiration of a period, and to those who had to vacate their office on the attainment of a particular age (ie those looking forward to a life-time engagement). Normally the appointment of officers is not made conditional upon the attainment of a specific age of the appointees, as in the case of officers on permanent appointment.

Section 9(2) reads:

“Any person who, before the coming into force of this Constitution, would have been required under the law in force to vacate his office at the expiration of any period, or on the attainment of any age shall, notwithstanding the provisions of the preceding subsection, vacate his office at the expiration of

that period or on the attainment of that age.” (Emphasis supplied.)

Subsection (1), as in the case of section 8(1) of the transitional provisions to the Constitution 1992, deals with the re-appointment of existing officers on the coming into force of the 1969 Constitution. It is clear from the language of subsection (2) above that the provision deals with persons holding office which would expire at the end of a stated period, and persons holding office which would come to an end on the attainment of a specific age. This provision was subsequently altered by the framers of the Constitution 1979. They dropped the second category of serving officers from the subsection, and the amended version reads as follows:

 “7(2) A person who before the coming into force of this Constitution would have been required under the law in force to vacate his office at the expiration of a period of service shall, notwithstanding the provision of subsection (1) of this section, vacate his office at the expiration of that period.” (Emphasis supplied.)

Here the subsection referred only to officers on limited engagement. The Police Service did not form part of the public service as defined in article 154(1) of the Constitution 1979 and so even though the compulsory retirement age of the public officers was fixed at 60 years, this did not affect the compulsory retirement age of police officers.

Section 7(2) of the Constitution 1979 was reproduced verbatim in the Constitution 1992. And with the inclusion of the Police Service in the public service of Ghana by article 190(1) of the constitution and the wholesale reproduction of article 162(1) of the 1979 Constitution in article 199(1) of the Constitution 1992, the compulsory retiring age of police officers was automatically changed to 60 years. This new condition cannot therefore, by any stretch of imagination, be said to be affected by section 8(2) of the transitional provisions which, as I have said earlier, affects only officers on limited engagement.

In the result I also hold that as public officers holding pensionable appointments the compulsory retirement age of the plaintiffs is 60 years, and that their purported retirement from the Police Service at the age of 55 years is a breach of article 199(1), and is therefore a nullity.

WIREDU JSC. I am also of the view that the plaintiffs must succeed and are entitled to the reliefs sought as are contained is the orders of this court. I have had the advantage of reading beforehand the resourceful opinion by my brother Amua-Sekyi JSC and I agree with his exposition as to the true meaning of the language of sections 8(1) and 8(2) of the transitional provisions as are expressed in his adroit opinion. I wish however to contribute further on the issues raised by making the following observations. To me section 8(1) has given recognition to the rebirth of the Police Service as a public service by the Constitution 1992, a rebirth which has elevated it from a para-military or a Force into a civilian public service by article 190(1)(a) under Chapter 14 of the constitution.

The born-again personnel of the Service have seen a new horizon. That is, all personnel of the service who held or were acting in the office in existence immediately before the coming into force of the constitution on 7 January 1993 had their retiring ages raised from 55 to 60 years as provided under article 199 of the constitution. This in my respectful view is the message conveyed by the language of section 8(1) of the transitional provisions. To construe section 8(1) in the way the defendants are urging would mean that no employee in any of the Services listed under article 190(1), with the exception of members of the Legal Service some of whom enjoy up to 65 years under the existing law in the Legal Service Law 1993 (PNDCL 320) can ever benefit from provisions of section 8(1). The benefit created by its provision cannot inure to a public office holder who “held or was acting in an office in existence” within the language of that section. It would also mean that within the same Service there would be two types of personnel: those appointed under the constitution and those continuing in office under the constitution, the former retiring at 60 and the latter retiring at 55. This would bring disparity between the personnel in their conditions of service. Such construction would lead to absurdity. It would also mean that section 8(2) is a caveat on section 8(1), a construction, which would make nonsense of 8(1) and therefore render it otiose.

I therefore accept the view that section 8(1) should be construed as concerning all personnel in the Service whose retiring ages are fixed and 8(2) to be referable to personnel in the public service with limited engagement and whose engagement are not referable to any retiring age but are governed by a “period of service” ie persons engaged on contracts or within specified periods.

If on the other hand the construction being urged by the defendants that section 8(2) qualifies the provision of section 8(1) were to be accepted in spite of the disparity and the absurdity that such construction would create, by admitting two types of personnel in the same Service ie those to be retired at 55 as sitting or continuing personnel and those to be appointed under the constitution to retire at 60 years, I will prefer to adopt a more liberal and benevolent construction by calling into play article 11(6) of Chapter 4 of the constitution which enjoins us to construe existing laws with such modifications, adaptations and qualification, necessary to bring them into conformity with the provisions of the constitution or otherwise give effect or enable effect to be given to any changes effected by the constitution. This approach would give meaningful uniformity and harmony to the operation of the constitution.