ABAKAH vs. ATTORNEY-GENERAL AND ANOTHER [1993-94] 1 GLR 325

CASES REFERRED TO

(1) Nicholson v Fields (1862) 7 H & N 810; 31 LJEx 223; 10 WR 304.

(2) Barnard v Gorman [1941] AC 378; [1941] 3 All ER 45; 110 LJKB 557, HL.

(3) Tuffour v Attorney General [1980] GLR 637, CA sitting as SC.

[p.327] of [1993-94] 1GLR 325

(4) Wuaku v Attorney General [1993-94] 2 GLR 393, SC.

(5) Osei-Hwere v Attorney General, Supreme Court, Accra, 19 July 1994 unreported.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a retired High Court judge, seeking from the Supreme Court, inter alia, a declaration that under the Constitution, 1992 he was entitled to the use of his official car and bungalow which form part of his allowances, privileges, retiring benefits or awards as a retired justice of the superior court. The facts are sufficiently stated in the judgment of the court.

COUNSEL

D O Lamptey for the plaintiff.

Martin Amidu, Deputy Attorney-General (with him Mrs. Adusa-Amankwah, Chief State Attorney and M N Afrifa-Gyasi, Principal State Attorney) for the defendants.

JUDGMENT OF AIKINS JSC

Delivered the judgment of the court. In this case the plaintiff is seeking two reliefs, namely:

“(1) a declaration that as a retired judge of the High Court under the Constitution, 1992 he is entitled to a pension equivalent to the salary payable to him immediately before his retirement, a chauffeur driven car, a furnished bungalow, allowances, facilities, privileges and retiring benefits or awards; and (2) a declaration that the defendants have no legal or any other right to seize or dispossess the plaintiff of his service car, and throw the plaintiff out of his bungalow No 7 Windy Ridge, Takoradi which form part and parcel of allowances, privileges, retiring benefits or awards under the plaintiff’s service conditions.”

In addition the plaintiff is also asking for:

“(i) an order of perpetual injunction restraining the second defendant from interfering with the plaintiff’s possession of car registration No ADF 3817;

(ii) the plaintiff’s occupation of bungalow No 7 Windy Ridge, Takoradi; or in the alternative (iii) commensurate provision for the plaintiff in these respects.”

The plaintiff claims that he was appointed a High Court judge on 3 April 1986 after he had served in a pensionable capacity in the public service for 33 years and two months, and retired after seven years and ten months’ service as a judge of the High Court. In effect, he says that he has

[p.328] of [1993-94] 1GLR 325 served for 41 years in the public service at least seven years of which were as a justice of the superior court of judicature. No details of the 33 years and two months he says he served in the public service before being appointed as a High Court judge are given, but the defendants admit the plaintiff’s claim in paragraph (3) of the statement of the defendants’ case filed on 6 February 1994.

The plaintiff does not also say when he retired as a judge of the High Court nor whether he actually attained the age of 60 years before going on retirement, but avers in paragraphs (4) and (5) of his statement of case in the following manner:

“(4) The plaintiff retired as a justice of the High Court of Judicature under the provisions of article 155 of the Constitution, 1992 which states as follows:

155. (1) 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; or (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 or profit or emolument whether directly or indirectly.

(2) For the avoidance of doubt, the pension paid to a person under clause (1) of this article shall be subject to the same changes and increases as the salary of a serving Justice of the Superior Court of Judicature.

(3) A justice of the Superior Court of Judicature may, in lieu of retiring under clause (1) of this article, retire if he has attained the age prescribed as retiring age for public officers generally, and shall be paid retiring awards based on his total public service, including service as a Justice of the Superior Court of Judicature, but

[p.329] of [1993-94] 1GLR 325 otherwise at the same rate as is, for the time being applicable to the public service generally.

(5) The plaintiff has satisfied the condition(s) required under the said article 155 of the Constitution, 1992 and is therefore entitled to all the benefits envisaged under the said article.”

These two paragraphs have been admitted by the defendants in their statement of case filed on 2 June 1994 as per paragraph (3) thereof. This court therefore accepts the said averments as a basis for the computation of the plaintiff’s pension and gratuity.

In effect the plaintiff contends that having retired after the coming into force of the Constitution, 1992 the provisions of the Constitution apply to his conditions of service, and that by article 155(1) of the Constitution, 1992 he is entitled to be paid a pension equal to the salary payable for the time being to a justice of the superior court from which he retired, and a gratuity. He further contends that the salary mentioned in article 155(1) of the Constitution, 1992 shall be defined as in article 71(3) of the Constitution, 1992 which includes allowances, facilities and privileges. The plaintiff further submits that on a proper construction of article 71(3) of the Constitution, 1992 the said facilities and privileges can only mean non-monetary perquisites such as use of state-owned car and state-owned bungalow or a commensurate provision for these state-owned facilities.

Though the defendants admit that the plaintiff retired under the Construction, 1992 and therefore was entitled to be paid a pension equal to the salary payable for the time being to a justice of the superior court from which he retired, in addition to any gratuity payable to him, they contend that article 71(3) of the Constitution, 1992 merely serves as a guide to the committee mentioned in article 71(1) of the Constitution, 1992 to determine the emoluments and retirements and retirement awards of the categories of officers named therein, but does not define the word “salary” as it appears in other provisions of the Constitution, 1992. They further contend that in the result the plaintiff is not entitled to the use of his official car and bungalow on retirement.

Article 71 of the Constitution, 1992 states as follows:

“71. (1) The salaries and allowances payable, and the facilities and privileges available, to

(a) the Speaker and Deputy Speakers and members of Parliament;

(b) the Chief Justice and the other Justices of the

[p.330] of [1993-94] 1GLR 325

Superior Court of Judicature;

(c) the Auditor-General, the Chairman and Deputy Chairmen of the Electoral Commission, the Commissioner for Human Rights and Administrative Justice and his Deputies and the District Assemblies Common Fund Administrator;

(d) the Chairman, Vice-Chairman and the other members of 

(i) a National Council for Higher Education howsoever described;

(ii) the Public Services Commission;

(iii) the National Media Commission;

(iv) the Lands Commission; and

(v) the National Commission for Civic Education; being expenditure charged 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 the advice of the Council of State.

(2) The salaries and allowances payable, and the facilities available, to the President, the Vice-President, the Chairman and the other members of the Council of State; Ministers of State and Deputy Ministers, being expenditure charged on the Consolidated Fund, shall be determined by Parliament on the recommendations of the committee referred to in clause (1) of this article.

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

It will be seen from the language of this article that the thrust of the article is the determination of certain emoluments of the persons named therein, including the Chief Justice and other justices of the superior court of judicature, by the President on the recommendations of a committee appointed by him. This is clearly indicated by the marginal note to the article. Even though the marginal note does not form part of the enactment, in appropriate situations it can serve as an aid to interpretation: See Nicholson v Fields (1862) 31 LJEx 223 at 236. The marginal note here guides the ascertainment of the real intention of the framers of the Constitution, 1992, that is to stay the article is geared towards the determination of emoluments by the President as recommended by the committee and nothing more, with the result that the definition of salary

[p.331] of [1993-94] 1GLR 325 in clause (3) is restricted to that clause to assist the committee in its work.

In our view, the word “salary” in article 155(1) of the Constitution, 1992 must be given its ordinary meaning since it is neither ambiguous nor equivocal, its meaning being quite plain. The word must be given its true and appropriate construction according to the context and the language of the provisions of the Constitution, 1992 in which it occurs: see Bernard v Gorman [1941] AC 378 at 384, HL per Viscount Simon LC which was applied in Tuffour v Attorney-General [1980] GLR 637 at 695660, CA sitting as nd SC. The Advanced Learner’s Dictionary of Current English (2 ed), defines salary as “a monthly or quarterly payment for regular employment on a yearly basis, e.g. a salary of £800 per annum.” And the Funk and Wagnall’s Standard Dictionary (International ed), defines “salary” as “a periodic allowance as compensation for official or professional services.” It defines “pay” as “what a workers receives, and is usually estimated on a weekly, monthly, or annual rate.”

It follows therefore that given its natural, ordinary everyday meaning the word “salary” as used in article 155(1) of the Constitution, 1992 excludes facilities and privileges contained in the definition of “salary“ in article 71(3) of the Constitution, 1992 which, as I have said earlier, is restricted to what the committee appointed by the President is expected to consider in its deliberations.

In the circumstance it is our judgment that the plaintiff is not entitled to the use of his official car and bungalow or their commensurate equivalents as claimed. He is however entitled to be paid a pension equal to the salary payable for the time being to a justice of the superior court from which he retired, in addition to any gratuity payable to him. In consonance with the judgments of this court delivered today in Wuaku v Attorney-General [1993-94] 2 GLR 393, SC and Osei-Hwere v Attorney-General. Supreme Court, Accra, 19 July 1994, unreported the plaintiff’s retiring award must be based on his gross basic consolidated salary at the date of retirement.

In the result, his court grants only the first part of relief (1) sought by the plaintiff, namely a declaration that having retired as a judge of the High Court after the Constitution, 1992 had come into force the plaintiff is entitled to a pension equivalent to the salary payable to him immediately before his retirement in addition to any gratuity that is payable to him. The remaining requests enumerated in relief (1) together with relief (2) are refused.

The request for an order of perpetual injunction is also refused.

DECISION

Judgment for the Plaintiff in part.

D R K S