IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: PWAMANG JSC (PRESIDING)
DARKO ASARE JSC
ADJEI-FRIMPONG JSC
DZAMEFE JSC
MENSAH JSC
BARTELS-KODWO JSC
ACKAAH-BOAFO JSC
WRIT
NO. J1/08/2025
11TH FERUARY, 2026
SYLVESTER KOW WILLIAMS ……….. PLAINTIFF
VRS
THE ATTORNEY-GENERAL ………… DEFENDANT
JUDGMENT
MENSAH JSC:
Per a writ issued in the registry of this court, the plaintiff who describes himself as a citizen of the Republic of Ghana, interested in upholding constitutionalism and defending the 1992 Republican Constitution of Ghana, seeks the under-listed reliefs:
1. A declaration that upon a true and proper interpretation of article
190 (1)(b) of the 1992 Constitution and Statutory Corporation
(Conversion to Companies) Act, 1993 (Act 461) the Plaintiff’s
employment with Ghana Telecommunications Company Limited
(Ghana Telecom) from 16th June 1995 to 16th August 2008,
constitutes employment in the public service.
2. A declaration that upon a true and proper interpretation of articles
190(1)(b) of the Constitution 1992 and Statutory Corporation (Con-
version to Companies Act, 1990 (Act 461) Ghana Telecommunica-
tions Company Limited, was part of the public service from the
period, 16th June 1995 to 16th August 2008.
3. A declaration that upon a true and proper interpretation of articles 155(1)(b), 199(4) of the Constitution 1992, section 7 of Legal Service
Act, 1993 (Act 320) and regulation 91(1)(b) of Legal Service Regulations, 2014, (LI 2210) the plaintiff had served more than twenty
(20) years in the public service at the time of his exit from the Legal
Service on 5th December 2020.
4. A declaration that, upon a true and proper interpretation of articles 155(1)(b), 190(1)(b) 199(4), 145(2)(b) of the Constitution, 1992, section 7 of Act 320 and regulation 91(1)(b) of Legal Service Regulations, 2014 (LI 2210), the plaintiff is entitled to be paid monthly pension.
5. A declaration that, upon a true and proper interpretation of articles 155(1)(b) 190(1)(b), 199(4), 145(2)(b) of the Constitution, 1992, section 7 of Legal Service Act, 1993 (Act 320) and regulation 91(1)(b) of Legal Service Regulations, 2014 (LI 2210), a lawyer of the Legal Service may retire at any time after attaining the age of sixty (60) years.
6. A declaration that, upon and proper interpretation of articles 155(1)(b), 190(1)(b) 199(4) 145(b) of the Constitution, 1992, section 7 of Legal Service Act, 1993 (Act 320) and regulation 91(1)(h) of Legal Service Regulations, 2014 (LI 2210), a lawyer of the Legal Service who is granted additional years to work after attaining the age of sixty (60) years is deemed to have retired at the end of the additional years granted.
7. A declaration that upon a true and proper interpretation of articles 155(1)(b), 190(1)(b), 199(4), 145(2)(b) of the Constitution 1992 and section 7 of Legal Service Act, 1993 (Act 320) and regulation 91(1)(b) of Legal Service Regulations, 2014 (LI 2210), a lawyer of the Legal Service who is granted additional years to work after attaining the age of sixty (60) years, is entitled to be paid gratuity, the calculation of which shall take into account the additional number of service after attaining sixty (60) years.
8. A declaration that the cessation of the plaintiff’s monthly pension by the defendant and the Controller and the Accountant General’s Department is unlawful, unconstitutional and void.
9. An order directed at the defendant to ensure the resumption of the payment of plaintiff’s monthly pension by the Controller and Accountant-General’s Department, commencing April 2022 inclusive.
10. An order directed at the defendant to ensure the payment of interest at the prevailing simple interest rate on each month of non-payment of plaintiff’s pension, commencing April 2022 till date of final payment.
11. Costs.
Key background:
Giving chronological account of his employment history, plaintiff claims he began his career with the erstwhile Posts & Telecommunications Corporation as an Assistant Legal Officer on 01/09/1989. Subsequently in June, 1995 the Telecommunications Division of the Corporation was converted into a public company limited by shares upon the promulgation of the Statutory Corporation (Conversion to Companies) Act, 1993 (Act 461). Plaintiff opted to stay with the Ghana Telecommunications Company Limited (Ghana Telecom) and rose through the ranks to become the Chief Legal Manager on July 1, 2001. He voluntarily retired from the employ of Ghana Telecom in March 2009 after which he was engaged by the Attorney General’s Department as a Principal State Attorney.
The plaintiff claims that after joining the Attorney General’s Department, he was promoted to the grade of Chief State Attorney on 20/11/2012 and remained on the post until he was informed of his retirement on 05/12/2018. However, he was offered to work for additional two (2) more years, which offer plaintiff accepted. Eventually, plaintiff exited the defendant’s service on 05/12/2020 after the expiry of the 2-year extension and received monthly pension until April 2022 when the Controller & Accountant General’s Department informed the plaintiff he was not qualified to be paid monthly pension pursuant to Article 155 of the 1992 Constitution. In the result, the Controller & Accountant General’s Department ceased paying plaintiff a monthly pension and till date has not paid it. Pursuant to ceasing paying the plaintiff his monthly pension, the Controller & Accountant General sought a legal opinion from the Attorney General, on the issue. The Attorney General having reviewed the facts, gave a legal opinion in a letter authored 13/09/2022, stating that the plaintiff was not entitled to monthly pension. In the opinion of the Attorney General, the basis for the plaintiff not being entitled to a monthly pension was that he served in the Public Service for a period of 16 years, 1 month and 40 days short of the mandatory 20-year service required for the payment of pension under Article 155(1)(b) of the 1992 Constitution. The plaintiff, however, disputes the claims of the Attorney General.
It is on account of plaintiff’s disagreement with interpretation the Attorney General puts on the provisions of the 1992 Constitution, particularly Article 155(1)(b) that plaintiff was not entitled to monthly pension, that he issued the instant writ, seeking the judicial reliefs herein referred to.
Summary of plaintiff’s statement of case:
Anchoring his submissions on Article 2(1)(a)&(2) of the 1992 Constitution Plaintiff first, argues that the capacity in which he brings the instant action is that he is a citizen of Ghana. In support, he cites case law, Amidu (No. 2) v Attorney-General, Isofoton & Forson (No. 2) [2013-2014] 1 SCGLR 167 and Adjei-Ampofo v Accra Metropolitan Assembly & Attorney General (No.1) [2007-2008] SCGLR 11.
Next, plaintiff submits, the period of his employment with the erstwhile Ghana Posts & Telecommunication, Ghana Telecommunications Company Ltd (now Ghana Telecom) and the Office of the Attorney General all put together work out to be 31 years, 3 months and 9 days, giving the breakdown as follows:
i) 5 years and 9 months with Ghana Posts & Telecommunications
Corporation;
ii) 14 years with Ghana Telecom;
iii) 11 years and 9 days with the Attorney General’s Department.
It was his case that when the Telecommunications Division of the Ghana Posts & Telecommunications Corporation was converted into a Public Company Limited by shares on 16th June 1995 he continued to work thereat until he exited on 31/03/2009. Though Vodafone became a shareholder in the Ghana Telecom at the time of its incorporation in 1995, Government of Ghana was the only shareholder. There was no profit sharing with any other shareholder. Accordingly, the grounds upon which the defendant based its definition of Ghana Telecom as a commercial venture at the time of its incorporation was completely non-existent, plaintiff stated.
Plaintiff submits further that Ghana Telecom was a public company limited by shares upon its incorporation since it was wholly owned by the Government of Ghana. However, its conversion into a public company limited by shares did not make it automatically a commercial venture within the interment of Article 190(1)(b). Plaintiff argues further that to become a commercial venture will depend on some factors such as the object of the company as well as the members behind the company. Plaintiff emphasized that Ghana Telecom for the period, 16/06/1995 to 28/08/2008 continued to be a public service although on 16th August 1995 it was incorporated as a public company limited by shares with Government of Ghana (GoG) until Vodafone (a private entity) took shares in Ghana Telecom.
As regards his retirement, plaintiff referred us to Articles 199 and 154 of the Constitution, S. 5 of the Legal Service Act, 1993 (PNDCL 320) and the 2nd Schedule as well as paragraph (b) of clause (1) of Article 155 and submitted that pursuant to the provisions of those laws, plaintiff was entitled to retire as a Justice of the High Court. Plaintiff attained 60 years in 2018 but his employment was extended for additional 2 years. Plaintiff contends, however, that in the language of Article 145(2)(b) of the Constitution and Section 7 of PNDCL 320 the law permits him to retire at the maximum age of 65 years. It was his case that the conditions of service of lawyers in the Legal Service having been linked to that of the Judiciary, the defendant in his legal opinion to the Controller & Accountant General that the extension he should not be taken into account, has no basis in law as the Attorney General failed to take into account the laws herein referred to.
Plaintiff reiterated, he was appointed Chief State Attorney on 20/11/2012 and on 05/12/2018 when he attained 65 years, he had served 6 continuous years as a Chief State Attorney and that his employment having been extended for additional 2 years, he worked for 8 continuous years. The defendant, therefore, erred when he misapplied the word “continuity” in arriving at the conclusion that the plaintiff did not qualify to be paid monthly pension.
In conclusion, plaintiff submitted that having worked in the Public Service in total, for 31 years, 3 months and 9 days which far exceeds the mandatory minimum period of 20 years prescribed under Article 155(1)(b) of the 1992 Constitution and regulation 91(1) of L.I 2210, he came into the category of public officers entitled to enjoy monthly pension. Accordingly, by the true and proper interpretation of Articles 190(1)(b), 199(4), 145(2)(b), 155(1)(b), section 7 of PNDCL 320 and regulation 91(1) of L.I 2210, he was entitled to monthly pension, the plaintiff added.
Summary of defendant’s statement of case:
Defendant specifically denies claim of the plaintiff. It is the contention of the defendant that plaintiff has not satisfied the mandatory requirement of 20 years of service in the public service as enshrined in Article 155(1)(b) of the 1992 Constitution. Accordingly, the plaintiff is not entitled to retire on monthly pension.
Defendant argues that the plaintiff’s employment with Ghana Telecom does not qualify as service in the public service under Article 190(1)(b) of the 1992 Constitution. Defendant reiterates that Ghana Telecom after its conversion to a public company limited by shares in 1995, was no longer part of the public service because it ceased to be a public corporation as stipulated in Article 192 of the Constitution.
The defendant additionally maintains that the Controller & Accountant General’s Department acted lawfully and in accordance with the 1992 Constitution in aborting the monthly pension payments to the plaintiff. Defendant denies the plaintiff’s assertion that cessation of the monthly pension payments is unconstitutional or unlawful. The defendant, therefore, argues that actions of the Controller & Accountant General is consistent with the provisions of the Constitution and relevant laws of the country.
Defendant contends further that the instant matter does not fall within the jurisdiction of this court under Articles 2 and 130 of the Constitution because the matter by its nature, does not involve the enforcement or interpretation of the Constitution. All that the plaintiff seeks to do by the instant action is to invite the court to interpret that he has served a total of 31 years in the public service and is, therefore, entitled to retire on his full salary. The reliefs, to the defendant, do not involve any controversy warranting any constitutional interpretation and do not also raise any issue invoking the court’s original jurisdiction.
Premising his argument on the basis that the plaintiff’s action lacks any interpretative element, defendant referred us to Articles 2(1) and 130(1) of the 1992 Constitution and case law that include cases as: R v Special Tribunal; Ex parte Akosah [1980] GLR 592; Ghana Bar Association v Attorney General & anr (Abban Case) [2003-2004] 1 SCGLR 250 and Osei-Boateng v National Media Commission & Appenteng [2012] 2 SCGLR 1038, in support.
In defendant’s view, the plaintiff’s action is essentially a labour dispute, over contractual or statutory rights that typically falls within the domain of the Labour Division of the High Court specialized in dealing with labour related disputes, including matters concerning pension rights, among others. This court has continuously restrained itself from assuming jurisdiction over matters where a plaintiff has resorted to invoking the original jurisdiction of the court in situations where no genuine issue of interpretation or enforcement of rights arises. The defendant, therefore, invites this court to dismiss the instant suit for lack of jurisdiction. Defendant acknowledges plaintiff’s standing as a citizen to seek redress for constitutional violations in terms of Article 2(1). Nevertheless, defendant argues the plaintiff’s claim must still meet the threshold of Article 130 of the Constitution.
On the question whether plaintiff qualifies to be entitled to a monthly pension, defendant argues the plaintiff does not. Defendant referred us to Article 155(1) of the Constitution and Section 5 of the Legal Service Act, 1993 (PNDCL 320) and Rule 91(1) of the Legal Service Regulations, 2014 (L.I 2210) and submitted that by computation of his service record, the plaintiff at the rank of Chief State Attorney served for only 6 years, falling short of the constitutionally mandated ten (10) years for retirement on his consolidated salary. Defendant insists, to qualify for retirement under Article 155(1)(b) and Regulation 91(1) of LI 2210, the plaintiff was required to have served a minimum of twenty (20) years in the public service, five (5) of which must have been on his rank to qualify for retirement on consolidated salary. On record, the plaintiff’s total period of service in the public service amounted to only fourteen (14) years, nine (9) months and nine (9) days and that falls short of the mandatory threshold. The defendant insists the period excludes his two-year post-retirement contract as it is not classified as contributory years for the purposes of calculating pension.
At p. 13, (paragraph 29) of defendant’s statement of case, he submits:
“The defendant further submits that the plaintiff’s period ofemployment with Ghana Telecom now Vodafone (Telecel), can-not be considered as service within the public service for pur-poses of computing pension entitlement under the Constitution. It is the defendant’s position that Ghana Telecom ceased to be part of the public service upon it conversion to a public company limited by shares on June 16, 1995. Consequently, any period served by the plaintiff with Ghana Telecom subsequent to this conversion cannot be recognized as public service under Article 190 of the 1992 Constitution.”
Defendant did emphasize that the plaintiff’s claim of cumulative service of 31 years cannot include his time at Ghana Telecom as it does not legally qualify as public service employment. The eligibility criteria for pension under Article 155(1)(b) are strict and unambiguous, requiring a direct connection to public service employment as defined under the 1992 Constitution, defendant added.
Joint memorandum of issues by the parties:
Pursuant to the rules of this court, ie Rule 50 of C.I 16, the parties jointly filed the following issues for the consideration of the court, and determination:
1. Whether or not the plaintiff’s claims raise any genuine or real issues of constitutional interpretation and/or enforcement within the exclusive original jurisdiction of the Supreme Court under Articles 2(1) and 130(1) (a) of the 1992 Constitution.
2. Whether or not upon a true and proper interpretation of Article 155(1)(b) of the 1992 Constitution and Statutory Corporation (Conversion to Companies) Act, 1993 (Act 461), the plaintiff’s employment with Ghana Telecommunications Company Limited from 16th June 1995 to 16th August 2008, constitutes service in the public service of Ghana.
3. Whether or not upon a true and proper interpretation of Articles 145(2)(b), 155(1)(b), 190(1)(b) and 199(4) of the 1992 Constitution and Regulations 91(1)(b) of LI 2210, a legal officer of the Legal Service who is granted additional years of service after attaining the age of sixty (60) years is deemed to have retired at the end of the extended period.
4. Whether the cessation of the plaintiff’s monthly pension by the
Controller and Accountant General’s Department was unconstitutional and unlawful and therefore, void.
Resolution:
To begin with, Article 130(1)(a) of the Republican Constitution of Ghana vests the Supreme Court with original exclusive jurisdiction to interpret and enforce the Constitution. It is enshrined in that provision of the law as follows:
“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in –
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”
It is equally stipulated in Article 2(1) of the 1992 Constitution that:
“(1) A person who alleges that –
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”
Now, for a person to qualify to invoking the original jurisdiction of the court in terms of Article 130 of the Constitution, for interpretation of provisions of the constitution and to seek its enforcement as enshrined in Article 2(1), that person must either be a citizen of Ghana or a juristic person, duly recognized by law as having rights and duties comparable to natural persons.
It is not in any serious dispute that the plaintiff in the instant suit is a Ghanaian citizen and thus qualifies to seek redress in this court bordering on interpretation of some provisions of the Constitution. It is acknowledged that a suit filed in the Supreme Court exercised under Article 2(1) of the Constitution is a challenge to an enactment or anything contained in or under the authority of that other enactment or a law that is inconsistent with a provision of the Constitution. However, it is fairly settled that a Constitution is a living organism, thus interpretation of its provisions has to be broad. Broadly speaking, therefore, the interpretation is extended to any public act or private act that in the eyes of the law, is seen to be inconsistent with any provision(s) of the Constitution. It is in the light of this legal proposition that the Supreme Court speaking through the most respected and learned jurist, Date-Bah JSC in Amidu (No. 2) v Attorney General, Isofoton S.A & Forson (No. 2) [2013-2014] 1 SCGLR 167 postulated as follows:
“We would re-affirm this position. The plaintiff, as a citizen of
Ghana, is entitled as of right to challenge in the Supreme Court
any act or omission of any person which is inconsistent with or
in contravention of, a provision of the Constitution, even if the
Attorney General is also in court against the same defendant
in a civil case………” [emphasis added]
We do, therefore, find and hold that the plaintiff as a citizen of Ghana has the capacity to mount the instant action in the Supreme Court.
Proceeding further, we think that the common issue joined in this case is whether Ghana Telecom ceased to be part of the public service upon coming into force of Public Corporations (Conversion into Companies) Act, 1993 [Act {461] or it became a public company only when Vodafone Ltd bought shares in the Ghana Telecom. Whereas the plaintiff argues that even upon the Telecommunications Division of the erstwhile Posts & Communications Corporation being listed as a company under Act 461 the Government of Ghana was the sole shareholder and, therefore, was still part of the public service, the defendant, on the other hand, argues that Ghana Telecom ceased to be part of the public service upon the passage of Act 461. In that regard, defendant further submits, the period plaintiff continued to serve in the Ghana Telecom before joining the Office of the Attorney General cannot be counted as part of his service in the public service for purpose of calculating his monthly pension.
Now, the submission that even upon the coming into force of Act 461, it is only when a private entity buys shares in a public company listed under Act 461 that converts the entity [then a statutory corporation] under Article 190 of the Constitution into a company limited by shares, is a novel proposition and that calls for interpretation and determination by this court. [emphasis ours]
We do, therefore, disagree with submissions of the defendant that the instant case does not raise any constitutional interpretation.
The plaintiff has argued with great insistence that although Ghana Telecom became a commercial venture through the process of privatization with the passage of Act 461, it was only when Vodafone Ghana took shares in Ghana Telecom in 2008 that Ghana Telecom became a commercial venture and not prior to that date. Accordingly, plaintiff contends, from 16/06/1995 when Ghana Telecom was incorporated as a public company limited by shares with GoG as the sole shareholder 28/08/2008, Ghana Telecom continued to be part of public service. Accordingly, Article 90(1)(b)(b) was inapplicable to Ghana Telecom from 16th June 1995 to 28/08/2008. In plaintiff’s view, the opinion the defendant expressed in his letter Exhibit SW 7 is inconsistent with, and in contravention, of Articles 145(2)(b), 199(4) 155(1)(b) of the Constitution and Section 7 of PNDCL 320.
At this stage, it is worthwhile reproducing here below, the submissions at pp 15-16 of plaintiff’s statement of case that run as follows:
“………..…….when a public company limited by shares has private individuals as the shareholders or as part of the shareholders, the only motive would be for profit, unless of course it was founded for charitable works. In the case of Ghana Telecom, GoG was the only member and the sole shareholder, and it had been a service provider for telecommunication with the dominant motive of providing access to telecommunication services across the country. The issue of profit motive was lacking, hence the dominance of the GoG in its administration. All major decisions including budgets, external travels, projects and programmes etc had to be channeled through the sector Ministry for approval, since GoG had to approve the funding or guarantee any loan for any major project. Obviously, in contrast, Vodafone would not need the approval of the sector Ministry to undertake all these activities, even though GoG is a shareholder. And this partnership emphasizes the profit motive of the entity, contrary to its original composition. It was to move this phenomenon to a commercial set up that the process for privatization was initiated by the passage of Statutory Corporation (Conversion to Companies) Act, 1993 (Act 461). This Act did not make Ghana Telecom a commercial entity but prepared the way for achieving the commercial status, by way of among other things, opening it up for private participation.”
Plaintiff invites this court to adopt the purposive interpretation since the literalist approach to interpret what is a commercial venture is likely to produce a very unpalatable and absurd consequences. Citing examples of Public Service institutions as the Judicial Service, the District Assemblies and Health Service, plaintiff argues that those institutions charge fees for services rendered. Yet, those institutions charging fees per se do not make them commercial ventures in the eyes of Article 190(1)(b) of the 1992 Constitution.
Historically, the Statutory Corporations Acts of 1959 and 1961, brought into existence, about 50 statutory corporations either established by Acts of Parliament or by Executive Instrument under the Statutory Corporations Act. In an article, “The Death of the Statutory Corporations” February 28, 2019, [Source: Ghana Law Hub], the learned author makes the point that the establishment of Statutory Corporations was one of the means by which business was to be conducted through a corporate form. The statutory corporation as established by law, was distinct from a limited liability company and or, an unlimited company created under the Companies Code, Act 179 [now Companies Act]. With the coming into force of the Statutory Corporations (Conversions to Companies) Act, 1993 [Act 461] there was the clearest shift of focus of statutory corporation from doing business with preference to company limited by shares for the transaction of State-led profit-oriented enterprise.
So, at what point did Ghana Telecom become a commercial venture cutting its umbilical cord from its statutory corporation status?
It is materially important to note that per 190(1) of the 1992 Constitution, the Public Services of Ghana shall include the Civil Service, the Judicial Service, the Audit Service, the Education Service, the Prisons Service, the Parliamentary Service, the Health Service, the Statistical Service, the National Fire Service, the Customs, Excise and Preventive Service, the Internal Revenue Service, the Police Service, the Immigration Service; and the Legal Service.
The public service also includes: public corporations other than those set up as commercial ventures, public services established by this Constitution; and such other public services as Parliament may by law prescribe. The Interpretation Article of the Constitution, Article 295 defines “public corporation” as a corporation or any other body of persons established by an Act of Parliament or set up out of funds provided by Parliament or other public funds. Article 190(4) puts it:
“(4) For the purposes of this article “public corporation” means a public corporation established in accordance with article 192 of this Constitution other than one set up as a commercial venture”.
One key piece of legislation that has a strong urge on determination of this case is the Statutory Corporation (Conversion of Companies) Act, 1993 [Act 461]. The Long-title of Act 461 provides:
“An Act to provide for the conversion of specified statutory corporations into companies limited by shares; to provide for the vesting of the assets and liabilities of the statutory corporations and for other related matters.”
It is also enacted in S.1 of Act 461 that—
“1. A company under the Companies Code, 1963 [Act 179] shall be formed and registered after the coming into force of this Act, for the purpose of vesting in the company the assets, properties, rights, liabilities and obligations to which any of the statutory corporations specified in the Schedule to this Act was entitled or subject to immediately before the registration.”
Section 2(1) of Act 461 which provision of law we deem relevant to the discourse, also provides:
“(1) Where a company has been formed and registered under the Companies Code in pursuance of S. 1, the assets, properties, rights, liabilities and obligations of that statutory corporation shall by virtue of this section vest in the company referred to in this Act as the ‘successor company’.”
Section 3(1) of Act 461 equally enacts:
“The successor company shall issue —
(a) to the Republic; or
(b) to any person
such shares in the company as the Minister may, in consultation
with the State Enterprises Commission direct.”
The state of the law of interpretation is that the Long Title and Preamble to an enactment form part of the law and an aid to interpretation. See: Den v Urison 2 N.J.L 212 (1807). Indeed, if there was any lingering doubt as to whether long title and preamble did form part of our laws, Section 13 of the Interpretation Act, 2009 [Act 792] has put the matter to rest. For, that provision of the law is to the effect that the long title and the preamble form part of an Act intended to assist in explaining the intent and object of the Act. Thus, the current state of the law in Ghana is that the Long Title and Preamble form part of the law.
It is settled rule of construction of statutes that when the words are clear and unambiguous, the fundamental rule is that they need not be interpreted or construed. They are given effect to, per Tindal CJ in Alban v Pyke 134 ER 172 @ 174 as adopted and applied by this court in Koglex (No. 2) v Attieh (No. 2) [2003-2004] SCGLR 75 @ 85.
The parties in our present case have put varying interpretations on Articles 190, 192 and 155 of the 1992 Constitution as well as Act 461 and other pieces of legislation to support their respective submissions. It has been said the construction of a document or a statute would depend upon its pith and substance and not upon the labels that the parties may put on it. We have given active consideration to those pieces of legislation and internalized the cases cited by the parties in support of their respective cases. At this stage we turn to the Act 461, the fulcrum around which the whole case revolves. In this judgment, we have particularly resorted to Sections 1, 2 and 3 as well as the Schedule to the Act.
It is instructive that when Sections 1, 2 and 3 of Act 461 are jointly construed and read together with the Long Title, it becomes plainly obvious that Ghana Telecom obtained its status as a public company limited by shares upon promulgation of the Statutory Corporations (Conversion into Companies) Act, 2009 [Act 461] and not when Ghana Telecom sold off shares to Ghana Vodafone or when Ghana Vodafone acquired shares in the company. [emphasis ours]
The law, particularly Section 3 of Act 461 permits a statutory corporation that has been converted into a public company limited by shares to acquire assets and sell shares of the company to the Republic or any other person upon the direction of the Minister of Finance in consultation with the State Enterprises Commission, among other obligations. Thus, the plaintiff stretching the interpretation far to urge on us that it is only when Ghana Vodafone acquired shares in Ghana Telecom that Ghana Telecom became a public company shall lead to an absurdity.
The position of the law remains steady and firm that in construing a statute, it is legitimate for the court to refer to an earlier decision of a court that has pronounced on and or given judicial interpretation to some provisions of the Act in question, as a guide. Put differently, when a court is faced with a provision in an enactment that has already been authoritatively interpreted upon, it is legitimate for the previous decision to be followed to ensure consistency and predictability. Thus, we find as a useful guide and apply an earlier decision of this court in Irene Tettey-Enyo v Electricity Company of Ghana Ltd, Civil Motion No. J7/02/2023 dated 26/04/2023 (unreported) to the present case before us.
The Irene Tettey-Enyo v Electricity Company of Ghana Ltd [supra] was a case where the Supreme Court was called upon to review the decision of the ordinary bench. The main issue turned essentially on whether upon coming into force of Act 461, the Electricity Company of Ghana Ltd [the Applicant in the Review Application] continued to be part of the Public Service. This court ruled:
“It is not disputed that the conversion was effected and now the applicant is a company limited by shares with the shares vested in Government. By this conversion, it is plain that the Government decided to change the status of the applicant and for it to operate in accordance with the provisions of the Companies Act for companies limited by shares. This, in our opinion, was to turn the applicant and the other State owned enterprises listed in the Schedule from public corporations simpliciter to commercial ventures owned by the State. By this change, the applicant is required by law, annually, to prepare profit and loss accounts and whenever dividend is declared by the board of directors, to pay it to Government as the shareholder. These, for us, are clear indications that the applicant is intended by the State to operate as a commercial venture and to make profit………” [emphasis underscored]
It is beyond dispute that the Schedule to Act 461 is listed the Telecommunications Division of the erstwhile Posts & Telecommunications Corporation as one of the statutory corporations converted into a state company limited by shares.
Pwamang JSC in Irene Tettey-Enyo v Electricity Company of Ghana Ltd [supra], having reviewed the facts against the provisions of the Statutory Corporations (Conversion to Companies), Act 1993 [Act 461] and the Companies Act, 2019 (Act 992) on account of a company limited by shares, and the relevant provisions of the 1992 Constitution, eloquently and classically stated the law as follows:
“………..Therefore, on a true and proper interpretation of the provisions of the statutes that apply to the applicant, we hold that it is set up as a commercial venture and does not form part of the Public Services of Ghana under article 190 of the Constitution. We have considered this court’s earlier decisions referred to us by the respondent but we do not find that any of them was concerned with the issue that arises in this case, which is whether the state-owned enterprises that were turned into companies limited by shares are members of the public services.” [emphasis underscored]
We have carefully perused, examined and scrutinized the totality of the facts/evidence in our present case, the respective statements of case the parties filed, and have internalized the cases cited to us.
Now, having regard to the change of emphasis in doing business, occasioned by the changes in the law, it cannot be over-emphasized that the Statutory Corporations (Conversion to Companies) Act, 1993 [Act 461] changed the corporate spirit of those statutory corporations listed in the Schedule to the Act that included the Telecommunications Division of the erstwhile Posts & Telecommunications Corporation (P & T Corporation) and converted them into companies limited by shares. Undoubtedly, the Statutory Corporations (Conversion to Companies) Act, 1993 [Act 461] provided the legal framework for the dissolution of the old corporations. With the registration of new companies under the Companies Code (Act 179), that marked a significant policy shift in Ghana’s state-led enterprise management.
Ghana Telecom after its conversion into a public company limited by shares in 1995, was no longer part of the public service because by operation of law, it ceased to be a public corporation as stipulated in Article 190(1)(b)&(4) and Article 192 of the 1992 Constitution and the schedule to Act 461. Thus, upon a true and proper interpretation of Article 190(1)(b) of the Constitution 1992 and Statutory Corporation (Conversion to Companies Act, 1990 (Act 461), Ghana Telecommunications Company Ltd ceased to be part of the public service from 1995.
On Issue 3 of the Joint Memorandum of Issues, plaintiff argues that by reason of Section 7 of the Legal Service Act, 1993 [P.N.D.C.L. 320], having retired as a Chief State Attorney and was granted extension of 2 more years, he was qualified to be paid monthly pension as a Justice of the High Court. His employment career started with the Posts & Telecommunications Corporation and upon his retirement, he moved to the Office of the Attorney General and Ministry of Justice and retired as a Chief State Attorney. In all, according to him, he worked for over 31 years cumulatively and thus qualifies to be retired as a Justice of the High Court. Thirty-one (31) years far exceed the mandatory minimum period of 20 years prescribed under Article 155(1)(b) of the 1992 Constitution and regulation 91(1) of L.I 2210 and comes into the category of public officers entitled to enjoy monthly pension, plaintiff has seriously urged on us.
It is material to point out that Section 7 of PNDCL 320 dealing with compulsory retirement in the Legal Service provides:
“A member of the Service may on attaining the age of sixty years continue in the Service unless the President otherwise determines and shall retire from the Service on attaining the age of sixty-five years.”
Significantly, salaries and benefits of officers in the Legal Service were pegged with the conditions of service prevailing in the Judiciary and the Judicial Service. It is provided in Section 5 of PNDCL 320 as follows:
“(1) The salaries and benefits attached to posts in the Service shall be the same as those applicable to posts in the Judiciary and the Judicial Service requiring equivalent professional experience.
(2) Subject to sections 6 and 7, the conditions of service relative to the posts listed in column one of the Second Schedule shall be the same as those of the corresponding Justice of the Superior Court of Judicature and any other persons holding the judicial offices listed in column three of that Schedule.”
On retirement of a Justice of the Superior Court, Article 155 of 1992 Constitution enacts:
“(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 of 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 otherwise at the same rate as is, for the time being applicable to the public service generally.”
When the provisions of Article 155(1) of the 1992 Constitution are read in conjunction with Sections 7 & 5 of PNDC 320, it puts it beyond any dispute that for a lawyer in the Legal Service to qualify to retire and be paid a monthly pension he shall work in the public service for twenty (20) years or more, at least five (5) continuous years of which must have been in the relevant qualifying office. Public service has been enshrined in Article 190 of 1992 Constitution. The plaintiff referred us to Wuaku v Attorney General & anr [1994-95] 1 GBR 262 and Osei Hwere v Attorney General [1994-95] 1 GBR 261, urging on us to hold that having retired as a Chief State Attorney and granted an extension, he was deemed to have retired at the end of the extended period.
We have internalized the cases the plaintiff cited in support of this proposition. We hold that, contrary to the plaintiff’s contention, the period of extension granted him does not count as pensionable service for purpose of calculating plaintiff’s retiring benefits. In Wuaku v Attorney General & anr this court held (Holding 1) that the six (6) 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.
In the instant case, we reiterate that the plaintiff’s employment with Ghana Telecommunications Company Limited from 16th June 1995 to 16th August 2008 does not constitute service in the public service of Ghana. It goes without saying, therefore, that the plaintiff’s employment with Ghana Telecom does not qualify as service in the public service under Article 190(1)(b) of the 1992 Constitution.
In answer to Joint Issue 3, therefore, we hold that upon a true and proper interpretation
Regulations 91(1)(b) of LI 2210, a legal officer employed in the Legal Service who is granted additional years of service after attaining the age of sixty (60) years shall not be deemed to have retired at the end of the extended period but on the due retiring date.
In conclusion, it is our judgment that plaintiff’s action fails and it is hereby dismissed. Consequently, we declare that the plaintiff is not entitled to be paid monthly pension under Article 155 of the 1992 Constitution. The cessation of the plaintiff’s monthly pension by the defendant and the Controller and the Accountant General’s Department is lawful and constitutional.
(SGD.) P. B. MENSAH
(JUSTICE OF THE SUPREME COURT)
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
(SGD.) Y. DARKO ASARE
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
(SGD.) J. BARTELS-KODWO
(JUSTICE OF THE SUPREME COURT)
(SGD.) K. T. ACKAAH BOAFO
(JUSTICE OF THE SUPREME COURT)
COUNSEL
PLAINTIFF IN PERSON.
LISA OBENG (ASSISTANT STATE ATTORNEY) FOR THE DEFENDANT LED BY SHARON OWOO (SENIOR STATE ATTORNEY)
