REPUBLIC vs. JUDICIAL SECRETARY; EX PARTE TORTO [1987]DLCA1194

Date	1987-12-19
Suit No.
Citation No.	[1987]DLCA1194

ANIN JA

ANNAN JA

CHARLES CRABBE J. A.

B. J. DA ROCHA FOR THE APPELLANT.

E. N. MOORE FOR THE RESPONDENT.

[1987]DLCA1194
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>JUDICIAL SECRETARY; EX PARTE TORTO<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 444<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
19 DECEMBER 1978<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

B. J. DA ROCHA FOR THE APPELLANT.<o:p></o:p>

E. N. MOORE FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ANIN, ANNAN AND CHARLES CRABBE JJ. A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>The
appellant was sued in his official capacity as Judicial Secretary by the
respondent, who was at all times material to this suit a circuit court judge
stationed at Kumasi. The salient facts emerging from the supporting affidavits,
exhibits and statement are briefly that on 17 August 1978 the respondent
received a letter (exhibit A) dated 2 August 1978 from the office of the
appellant reminding him that “the statutory retiring age for judicial officers
other than judges of the superior courts is 55;” that according to official
records he would attain that age on 8 October 1978; and that he should
therefore retire from the service with effect from that date.<o:p></o:p><o:p>&nbsp;</o:p>In his
reply dated 1 September 1978 (exhibit 2) the respondent countered that the
mandatory retiring age for officers in his category was 60 and not 55.
Buttressing himself on regulation 48 (1) of the Judicial Service Regulations,
1963 (L.I. 319), he challenged the appellant to cite his authority for
insisting upon the lower retiring age of 55; and warned that he would go to any
lengths to vindicate his rights and that, pending a satisfactory reply, he
would “continue to remain in harness.”<o:p></o:p><o:p>&nbsp;</o:p>The
appellant obliged with an explanation of the legal position in his reply dated
15 September 1978 (exhibit B). While conceding that L.I. 319 is still in force;
and that regulation 48 (1) thereof permits the respondent to retire at 60
“unless the President otherwise directs, “ the appellant emphasised that “the
truth is that the President has otherwise directed.” By a letter dated 26
February 1971, the government with the sanction of the President reduced the
retiring age of all civil servants and all public servants from 60 to 55 years.
This directive was communicated by him to all judicial officers and non-professional
officers:<o:p></o:p>“in the
Judicial Service by his circular letter No. RCS/9149 dated the 4th March, 1971.
As an expression of national policy on duration of Public service, this
directive had been uniformly applied to all officers in the Judicial Service.
There is no intention to discriminate against you in particular and no reason
exists for doing so.”<o:p></o:p>In the
penultimate paragraph of exhibit B, the appellant conceded further that the
government circular, in so far as it relates to the Judicial Service was not
backed by any legislative instrument; nevertheless, under regulation 48 (1) of
L.I. 319 the President’s directive could take any form, oral or written. Even
though the directive had been written and circularised among the officers
concerned, it was nevertheless felt that as regulation 48 (1) stands at
present, it may well mislead, especially if the circular is unknown to some of
the officers concerned. For this reason, it was intended “to invite the
government to consider whether its textual wording conforms with its present
policy on retirement of public officers.”<o:p></o:p><o:p>&nbsp;</o:p>In the
concluding paragraph of exhibit B, the respondent was reminded of his impending
retirement on 8 October 1978 and requested to wind up his affairs with the
service by that date. This official request evoked from the respondent two more
letters (the first dated 20 September 1978 and the second undated) criticising
the official view point and reiterating his earlier argument that under the
relevant law—regulation 48 (1) of L.I 319—he is not obliged to retire until the
age of 60; and finally giving notice that he would fight the matter in the
courts “to the bitterest end.”<o:p></o:p><o:p>&nbsp;</o:p>The
sequel to the war of words was the present action instituted by the respondent
on 2 October 1978 in the Accra High Court for an order of certiorari to quash
two official letters received by him (exhibits A and 11); and for an order
prohibiting </main>