AGBEVOR vs. ATTORNEY-GENERAL [1999-2000] 2 GLR 186

CASES REFERRED TO

(1) Tait v Ghana Airways Corporation (1970) 2 G & G 527.

(2) Republic v Special Tribunal, Ex parte Akosah [1980] GLR 592, CA.

(3) Aduamoa II v Adu Twum II [1990-2000] 2 GLR 409, SC [2000] SCGLR 165.

(4) National Media Commission v Attorney-General [1999-2000] 2 GLR 577 SC; [2000] SCGLR 1.

ACTION for a declaration that the removal of the plaintiff, a judicial officer, from the Judicial Service by the President is contrary to article 151(1) of the Constitution, 1992. The facts are sufficiently set out in the judgment delivered by Sophia Akuffo JSC.

N Kudjawu for the plaintiff.

S Y Anim, Chief State Attorney, for the defendant.

Akuffo JSC. Delivered the judgment of the Ag CJ, Adjabeng JSC and herself at the invitation of Edward Wiredu Ag CJ. The events which have provoked this action may be stated as follows: By a letter from the office of the President, dated 20 March 2000 and addressed to the plaintiff, the plaintiff was informed as follows:

“His Excellency the President has accepted the recommendation of the Judicial Council, given in accordance with LI

[p.189] of [1999-2000] 2 GLR 186

319, section 28(2) of the Judicial Service Regulations, 1963 and has directed your immediate redeployment outside the Judicial Service for displaying a high degree of incompetence in the discharge of your duties.”

By his writ herein, the plaintiff seeks from this court a declaration that his removal from the Judicial Service as a judicial officer by the President for the reasons stated, is contrary to article 151(1) of the Constitution, 1992. In his statement of case in support of his claim, the plaintiff, who until the said letter held the position of second deputy judicial secretary, contended that:

“(a) The effect of the President’s letter was to remove him from his judicial office;

(b) such removal was in punishment for allegations made against him and which he was not given any opportunity to be heard in his defence, contrary to section 25 of the Judicial Service Act, 1960 (CA 10);

(c) since the coming into force of the Constitution, 1992 the provisions of regulation 28(2) of the Judicial Service Regulations, 1963 (LI 319) either ceased to apply for the purposes of removing a judicial officer, or its application must be with such modifications as are necessary to bring those provisions in conformity with article 151 of the Constitution, 1992; and (d) by virtue of article 151, it is only the Chief Justice who has the power to remove a judicial officer from office and such removal may only be upon the grounds and pursuant to the process stipulated therein.”

The Honourable Attorney-General, in his statement of case, contended that the holding of the position of a deputy judicial secretary did not make the plaintiff a judicial officer, since the position of a judicial officer is a creature of the law and is one which cannot be created outside article 161 of the Constitution, 1992 or section 32 of the Judicial Service Act, 1960 (CA 10). He further contended that:

“(a) Regulation 28(2) of the Judicial Service Regulations, 1963 (LI 319) is not inconsistent with article 151 of the Constitution, 1992 and remains applicable for the purposes of removing a judicial officer against whom allegations are made.

[p.190] of [1999-2000] 2 GLR 186

(b) The plaintiff was given the opportunity to defend himself.

(c) The plaintiff is not a judicial officer and, thus, he cannot avail himself of article 151 of the Constitution, 1992.”

In his reply to the defendant’s statement of case, the plaintiff further contended that his appointment by the Chief Justice as second deputy judicial secretary was pursuant to the powers of the Chief Justice under article 148 of the Constitution, 1992 and that by the terms of such appointment, he was a judicial officer. Moreover, he contended that:

“(a) The definition of ‘judicial officer’ in section 32 of the Judicial Service Act, 1960 (CA 10) had been replaced by the definition given by article 161 of the Constitution, 1992 and, therefore, the term ‘office of the Judicial Secretary’ includes his deputies.

(b) By virtue of article 127(1) the President has no power to interfere with the administration of the judiciary and cannot remove the holder of a judicial office on the ground of incompetence.

(c) He had not been given all opportunity to defend himself against all charges made against him and, in particular, he is yet to be afforded the chance to respond to issues raised in an audit report which is still a matter pending before the Public Accounts Committee of Parliament.”

Although the parties in their memorandum of agreed issues posed nine issues as arising for determination herein, it is clear that the most fundamental of these are: (1) Whether or not the act of the President in removing the plaintiff from the Judicial Service is contrary to articles 151 and 127 of the Constitution, 1992 and therefore null and void, and (2) whether or not, as a matter of interpretation of article 161(b) of the Constitution, 1992, the appointment of the plaintiff under article 148 as second deputy judicial secretary in the office of the Judicial Secretary made him a judicial officer. A positive answer to these questions would obviate the need to determine any of the remaining issues set out plaintiff was afforded a hearing before his removal by the President.

Articles 148 to 151 of the Constitution, 1992 deal with the appointment, retirement and removal of judicial officers. These provisions fall under chapter 11 which is concerned with the Judiciary, in whom the judicial power of Ghana is vested. The

[p.191] of [1999-2000] 2 GLR 186 underlying concept upon which chapter 11 of the Constitution, 1992 is founded is that of assuring and safeguarding the independence of the Judiciary. Consequently, the committee of experts in its Report on Proposals for a Draft Constitution of Ghana at para 252 at p117, included amongst the principles that must be reflected in the Constitution, 1992 to assure the realisation of this concept, the following principle:

“5 The Judiciary should be assured full financial and administrative autonomy. This means that the governmental structure should not subordinate the Judiciary to any Government Department or Ministry for the purposes of presenting or realizing its administrative or financial requirements.”

In pursuance of this principle, article 127(1) of the Constitution, 1992 in stipulates thus:

“127. (1). In the exercise of the judicial power of Ghana, the Judiciary, both its judicial and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.”

(The emphases are ours.) It is also towards the achievement of this end that the Constitution, 1992 in article 148, vests the power to appoint persons to hold or act in a judicial office in the Chief Justice, acting on the advice of the Judicial Council. Such appointments are, however, made subject to the approval of the President. Where such an officer is to be removed from office, on the other hand, article 151 of the Constitution, 1992 expressly stipulates that this may be done by the Chief Justice and: “. . . on grounds only of stated misbehaviour, incompetence or inability to perform his functions arising from infirmity of body or mind and upon a resolution supported by the votes of not less than two-thirds of all members of the Judicial Council.”

This article also stipulates that such an officer “shall be entitled to be heard in his defence by himself or a lawyer or other expert of his choice.”

It is clear from the letter issued to the plaintiff from the office of the President that his redeployment was intended as a disciplinary

[p.192] of [1999-2000] 2 GLR 186 measure for his “incompetence in the discharge” of his duties. What is most obvious in article 151 is the absence of any reference whatsoever to the President, whether in a directive or an approving capacity, or in any other wise. Clearly, therefore, under the Constitution, 1992, the President is not the disciplinary authority for the removal of any judicial officer. The language of this article is so crystal clear and entirely unambiguous that there can be absolutely no justification for reading any other words or meaning into it. Consequently, to the extent that any portion of the Judicial Service Act, 1960 (CA 10) or the Judicial Service Regulations, 1963 (LI 319) give any power of removal or discipline of a judicial officer to any person other than the Chief Justice, those provision must, pursuant to article 11 (6) of the Constitution, 1992, be read with such modifications, adaptations, qualifications and exceptions as are necessary to bring them in conformity with the Constitution.

The defendant, however, contended that the plaintiff is not a judicial officer. Under article 161 of the Constitution, 1992, “judicial office” is defined as:

“(a) the office of a person presiding over a lower court or tribunal howsoever described;

(b) the office of the Judicial Secretary or Registrar of the Superior Courts;

(c) such other offices connected with any court as may be prescribed by constitutional instrument made by the Chief Justice acting in accordance with the advice of the Judicial Council and with the approval of the President.”

And a “judicial officer” is defined as a person holding a judicial office. Thus there is not doubt that the holder of the office of Judicial Secretary is a judicial officer. The question, however, is whether, by virtue of this status of the Judicial Secretary, a person appointed to function as his deputy should also be deemed to be a judicial officer. The term “deputy” is a term of science and not merely one of art. In Stroud’s Judicial Dictionary (5th ed) the following definition is given: “. . . he that occupieth in another man’s right, whether it be office or any other thing; and his forfeiture or misdemeanour shall cause the officer, or him whose deputy he is, to lose his office or thing.” Furthermore, Black’s Law Dictionary (4th ed) defines the term in the following manner:”

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“A substitute; a person duly authorised by an officer to exercise some or all of the functions pertaining to the office, in the place and stead of the latter. One appointed to substitute for another with power to act for him, in his name or behalf.”

The editors of the latter dictionary go on to explain that a deputy may do an act and sign his own name and thereby bind the person for whom he is acting. The position of a deputy is, therefore, not a trifling one. Rather, it necessarily carries with it responsibilities and consequences which significantly affected the substantive position, as well as the rights and obligations of the employer-institution. A person appointed into a position the profile of which is such that, on a day-to-day basis, he is required and expected to function as a judicial officer must necessarily be considered as judicial officer, if such an appointment is to achieve the desired outcomes for which such an appointment was made. It is, therefore, clear that the Judicial Council made no mistake when it recommended the appointment of a deputy judicial secretary under article 148 of the Constitution, 1992.

Consequently, it is our view that, on a true and proper interpretation of article 161(b) of the Constitution, 1992 in particular, a deputy judicial secretary is a judicial officer. As such, he may be removed from his position as a disciplinary measure, only accordance with the dictates of article 151. Thus, the act of the President in removing the plaintiff from the Judicial Service is in contravention of articles 151 and 127 of the Constitution, 1992 and is, therefore, null, void and of no effect whatsoever.

The corollary to the defendant’s adamant contention that the plaintiff is not a judicial officer is, presumably, that the President had the power to remove him from the Judicial Service. We wish to emphasise, however, that even if our conclusion had been that the position of deputy judicial secretary is not a judicial office, the framework and underlying principles of chapter 11 of the Constitution, 1992 would still have compelled us to conclude that the act of the President in removing the plaintiff is against of the Constitution, 1992, particularly article 127 thereof. This is because the removal, whether by way of termination or redeployment, of an ordinary employee of the Judicial Service as a disciplinary measure, is clearly an administrative function and, hence, completely outside the purview of presidential powers or the

[p.194] of [1999-2000] 2 GLR 186 powers of the executive arm of government or any institution other than the Judiciary.

Finally, we cannot conclude this judgment without commenting on the constitutional impropriety of the conduct of the Judicial Council in making recommendations to the President for the removal of a judicial officer. The Judicial Council is a creature of the Constitution, 1992 and, pursuant to article 153, its membership includes not less than twelve persons each of whose professional background necessarily entails formal training in law. As such, therefore, the council could not be unaware of the fundamental principles driving chapter 11 and, in particular, the provisions of article 151(1) of the Constitution, 1992. Hence, it is our view that the ultimate responsibility for the unconstitutional act of the President, in purporting to remove the plaintiff as a judicial officer, must be placed squarely at the door of the Judicial Council, which in this instance, dismally failed in the performance of its functions.

Kpegah JSC. I agree that the plaintiff is a judicial officer by virtue of his office and by the mode of his appointment. My lords, “justice”, they say, “must be done even if the heavens fall.” The heavens need not rumble, let alone fall as a result of this case. This is a case which, in my honest view, should not have come to this court if only the Judicial Council had lived up to expectation and properly discharged its constitutional responsibilities.

The letter which provoked this suit was signed by the Secretary to the President, Mr Jimmy Amissah. It states as follows:

“His Excellency, (HE) the President has accepted the recommendation of Judicial Council, given in accordance with LI 319, section 28(2) of the Judicial Service Regulations, 1963 and has directed your immediate redeployment outside the Judicial Service for displaying a high degree of incompetence in the discharge of your duties.

2. The Public Service Commission has, in a separate letter, been requested to take the necessary steps to put the decision into effect.”

That the President took this action on “the recommendation of Judicial Council” devastates me. The President should expect and indeed deserves quality professional legal advice from the Judicial Council because it is a body which is dominated by what can be

[p.195] of [1999-2000] 2 GLR 186 described as the creme de la creme of the legal profession in this country. To recommend to the President the type of action typified in the letter quoted above is to needlessly mislead and embarrass the President and I am saddened by it. I say so because the council was recommending to the President to do an act which is in clear violation of article 127(1) of the Constitution, 1992 which guarantees, in very robust language, the independence of the Judiciary in its administrative matters. For the avoidance of doubt, I beg to quote the said provision:

“127. (1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions . . . is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.”

This provision completely insulates the judiciary from the type of directive emanating from the secretary to the President’s letter.

The second point I find disturbing about the recommendation of the Judicial Council is that it has not only undermined its own authority under article 151(1) of the Constitution, 1992 but also that of the Chief Justice, the disciplinary authority for judicial officers. He alone can punish such officers (for example, removal from office) upon the resolution of not less than two-thirds of all the members of the council. I am doubtful whether any member of the council ever adverted his or her mind to the law regulating disciplinary proceedings against a judicial officer. For future guidance, I feel obliged to state the current position after the Constitution, 1992 came into effect. Disciplinary proceeding in the Judicial Service is governed by the Judicial Service Act, 1960 (CA 10) and the Judicial Service Regulations, 1963 (LI 319), Section 18(1) of CA 10 makes the President the disciplinary authority for judicial officers. Section 18(1) states: “Subject to the provisions of this section, the President shall be the disciplinary authority for all judicial officers. . .” Subsequent amendments did not depart from the practice of making the person or body of persons exercising executive power the disciplinary authority for judicial officers. See, for example, the Judicial Service Act, 1960 (Amendment) Decree, 1966 (NLCD 39). The Judicial Service Act, 1960 (CA 10) and the Judicial Service Regulations, 1963 (LI 319), being existing laws must be read in terms of article 11(6) of the Constitution, 1997; that is to say “with any modifications, adaptations, qualifications and exceptions necessary to bring it (sic) into [p.196] of [1999-2000] 2 GLR 186 conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.”

By article 151(1) of the Constitution, 1992, therefore, the President is no longer the disciplinary authority for a judicial officer but rather the Chief Justice. This is what article 151(1) says:

“151. (1) A person holding a judicial office may be removed from office by the Chief Justice on grounds only of stated misbehavior, incompetence or inability to perform his functions arising from infirmity of body or mind and upon a resolution supported by the votes of not less than two-thirds of all members of the Judicial Council.”

Section 28(2) of LI 319 under which the President purported to have acted is no longer applicable. More importantly, the Judicial Council cannot make any recommendation to a President under this subsection for the removal of any judicial officer even when the President could properly be said to be the disciplinary authority. The President’s power is limited to a direction as to the type of inquiry to be held, that is whether formal or summary, when an allegation of misconduct is levelled against a judicial officer.

But assuming, without admitting, that section 28(2) of LI 319 is still applicable, any claim that a recommendation can be made under the said section to the President for the redeployment of a judicial officer outside the Judicial Service, and by implication an assertion on behalf of the President of his authority to so direct, is legally unpardonable. This is what section 28(2) of LI 319 says:

“(2) Where an allegation is made against a judicial officer . . . the Chief Justice may cause the case to be reported to the President for direction as he may desire to give and upon the directions of the President an inquiry, formal or summary, as the case may be, shall be instituted by the Chief Justice.”

My lords, I cannot comprehend how section 28(2) can be cited in justification of a recommendation from the Judicial Council that a judicial officer be removed from office; and how a claim can be made on behalf of the presidency that the President has power to order the removal of the said officer despite articles 127(1) and 151(1) of the Constitution, 1992.

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The position now, as I see it, is that where an allegation is made against a judicial officer like the plaintiff, it is the Chief Justice who decides if an inquiry is to be held, and also directs the type of inquiry, formal or summary, to be held. Written charges are then served on the officer involved. He is then put before the appropriate inquiry officer to enable the accused officer “to be heard in his defence by himself or by a lawyer or other expert of his choice.”: see article 151(2) of the Constitution, 1992. It is after this that a report will be submitted to the Chief Justice as to the committee’s findings. He is then obliged to put the matter before the Judicial Council in accordance with article 151(1) of the Constitution, 1992, if a major penalty of the type meted out to the plaintiff is anticipated. This procedure which ensures a fair hearing has been short-circuited in this case and, cannot see how the finding that the plaintiff is being removed “for displaying a high degree of incompetence in the discharge of your (sic) duties.” can be legally justified. On the contrary, there is evidence from the Chief Justice and accepted by the Judicial Council to the effect that: “Mr Agbevor is competent, honest, hard-working and respectful. He is innovative and untiring in his work.” This was the Chief Justice’s own testimonial before the Judicial Council.

My Lords, there is everything to be said against the letter of the President under consideration and there is nothing favourable to be said for the Judicial Council’s recommendation to the President to remove a judicial officer from the Judicial Service either. I agree that the letter is an unnecessary intrusion into the administration of the Judiciary and infringes article 127(1) of the Constitution, 1992. Also, the President has no power to sanction any judicial officer and his letter to the plaintiff directing his removal from the Judicial Service is contrary to article 151(1) of the Constitution, 1992.

Atuguba JSC. I agree with the well-reasoned judgment read by my learned and respected sister Sophia Akuffo JSC. I desire however to add a few words of my own.

I was at first minded to demonstrate a distinction between this action and other actions in which the original jurisdiction of this court has been explained, such as Tait v Ghana Airways Corporation (1970) 2 G&G 527; Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA and Aduamoa II v Adu Twum II [2000] SGLR 165. However the propriety of the plaintiff’s

[p.198] of [1999-2000] 2 GLR 186 action in this court is so clear that I need not do so and presumably that is why no one has even thought it necessary to raise the issue. Of course such failure to raise the issue would not preclude this court from suo motu doing so, were this matter not squarely within our jurisdiction.

Next, I would hold that the President under the Constitution, 1992 cannot be the disciplinary authority in respect of the plaintiff ’s post as deputy judicial secretary in any way, because, in addition to the reasons given on that score in the judgment read by my sister Sophia Akuffo JSC, article 291(a) of the Constitution, 1992 provides as follows:

“297. In this Constitution and in any other law— (a) the power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove the persons from office.”

(The emphasis is mine.) Article 295(1) of the Constitution, 1992 defines “public service” as follows:

“295. (1) In this Constitution, unless the context otherwise requires—

‘public service’ includes service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation.”

(The emphasis is mine.) It is clear from articles 127(4) of the Construction, 1992, which charges the administrative expenses of the Judiciary upon the consolidated fund, and 190(1) which subsumes the Judicial Service as part of the public services, that appointments into the Judiciary or Judicial Service are appointments into the public service. That being so, as this court held in National Media Commission v Attorney-General [2000] SCGLR 1, as stated in the headnote, holding (3) f:

“The meaning of article 297(a) was that whoever had the power to appoint a person to an office in the public service, had power to confirm or to withdraw the said appointment and/or to take disciplinary measures against him. Consequently it was the National Media Commission, which was

[p.199] of [1999-2000] 2 GLR 186 entitled to exercise the powers set out in article 297(a) in relation to such chairmen, chief executives and other members of the governing body of public corporations managing state owned media.”

(The emphasis is mine.) Similarly, it is the Chief Justice, the appointing authority of the plaintiff, and not the President, who has disciplinary authority over him in terms of article 297(a) of the Constitution, 1992.

The defendant however, to some extent, ingeniously contends that the plaintiff as deputy judicial secretary is not a judicial officer. The definitions of “judicial office” and “judicial officer” as contained in article 161 of the Constitution, 1992 have already been set out in the judgment read by my sister Sophia Akuffo JSC and would not repeat them. It is however further provided in article 297 as follows:

“297. In this Constitution and in any other law— (h) words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants.”

(The emphasis is mine.) There is no doubt that the Judicial Secretary is a public officer. The expression “public officer” is not defined in the Constitution, 1992 but article 295(1) does define “public office” as follows:

‘“public office’ includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament.”

(The emphasis is mine.) It is clear that this is true of the office of Judicial Secretary (and of the plaintiff) by virtue of article 127(4) aforesaid which provides in full, as follows:

“(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.”

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(The emphasis is mine.) Whatever the expression ‘public officer’ is intended to mean, it must certainly include the holder of a public office and since the plaintiff and the Judicial Secretary, as I have endeavoured to show, supra, hold such an office, they are public officers within article 297(h) of the Constitution, 1992. There is no doubt that “the office of the Judicial Secretary” is referred to as such in article 161(b) of the Constitution, 1992 and also in section 3 of the Judicial Service Act, 1960, (CA 10). Section 3 of the latter provides as follows: “3. There shall be a Judicial Secretary, who shall be responsible to the Chief Justice for securing the general efficiency of the Judicial Service.” The effect of all this is that since the Judicial Secretary is a public officer designated as such by the Constitution, 1992 and CA 10; it follows that the words relating to “Judicial Secretary” in article 161(b), in terms of article 297(h) of the Constitution, 1992: “. . . applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants.”

That being so, since the Judicial Secretary is manifestly a judicial officer by reason of the provisions of article 161(b) of the Constitution, 1992 and the definition of “judicial officer” in that article, it follows that the plaintiff as deputy judicial secretary is included in the designation “Judicial Secretary” by reason of article 297(h) aforesaid and is consequently also a judicial officer. The words in article 161, in so far as they relate to the Judicial Secretary, do so in respect of him only virtute officii, and since they make him a judicial officer, they also make the plaintiff, his deputy, a judicial officer by reason of article 297(h) aforesaid.

In conclusion, I hold that the combined effect of articles 127, 148, 151 and 297 of the Constitution, 1992 is to constitutionally entrust a judicial officer such as the plaintiff into the exclusive industrial custody of the Chief Justice. I would therefore also uphold the plaintiff’s case.

Declaration upheld.

LSNA