<p class="mb-5" id="contentDlCitation" hidden>[1994]DLSC863</p> <div class="restriction-wrapper"> <div class="container-lg"> <div class="row"> <div class="col-md-12 restricted-content"> <div class="restricted-content-img-wrapper"> <div class="lock-icon bounce-7"> <img class="" src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png" alt="Subscription based content"> </div> </div> <a href="https://www.dennislawgh.com/login" class="btn btn-primary btn-lg" style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> Login to Read Full Case </a> </div> </div> </div> </div> <main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center; mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt; mso-border-shadow:yes"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-fareast-font-family:"Book Antiqua";mso-bidi-font-family:"Book Antiqua"; color:#00B0F0">WUAKU<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center; mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt; mso-border-shadow:yes"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-fareast-font-family:"Book Antiqua";mso-bidi-font-family:"Book Antiqua"; color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center; mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt; mso-border-shadow:yes"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-fareast-font-family:"Book Antiqua";mso-bidi-font-family:"Book Antiqua"; color:#00B0F0">ATTORNEY-GENERAL AND ANOTHER<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center; mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt; mso-border-shadow:yes"><b><span style="font-size: 10pt; line-height: 115%; font-family: "Book Antiqua", serif;">[SUPREME COURT, ACCRA]<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center; mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt; mso-border-shadow:yes"><b><span style="font-size: 10pt; line-height: 115%; font-family: "Book Antiqua", serif;">[1993-94] 2 GLR 393<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right; mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt; padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size: 10pt; line-height: 115%; font-family: "Book Antiqua", serif;">Date: 19 July, 1994<o:p></o:p></span></p> </div><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><b><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">COUNSEL</span></b><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">:<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="margin-bottom:5.0pt;mso-pagination:none;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size: 10pt; line-height: 115%; font-family: "Book Antiqua", serif;"><o:p> </o:p></span></p> </div><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><b><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">CORAM</span></b><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">: <o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="margin-bottom:5.0pt;mso-pagination:none;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">ABAN CJ, AMUA-SEKYI, AIKINS, CHARLES HAYFRON-BENJAMIN AND AMPIAH JJSC.</span><span style="font-size: 10pt; line-height: 115%; font-family: "Book Antiqua", serif;"> <o:p></o:p></span></p> </div><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center; mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt; mso-border-shadow:yes"><b><u><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">JUDGMENT OF AMUA-SEKYI JSC.<o:p></o:p></span></u></b></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">(delivered the judgment of the court). After the overthrow of the Nkrumah regime, the judiciary came in for much criticism for the role it had played while the previous government was in power. It was said that it had departed from its traditional role as an independent arm of government and had become a willing tool of repression in the hands of the executive. It was also said that some of the appointments to the bench had been politically motivated in that persons with known sympathies for the regime had been favoured over those who exhibited an independent frame of mind. Worse still, it was said that some of the judges had become so depraved and demoralized that they habitually took bribes. The answer of the new administration was the wholesale dismissal of judges—cleaning the Augean stables, as it were—and appointing new ones to take their place. But it was soon realized that merely changing personnel would not be enough: what was required was a reappraisal of the role of the judge in the body-politic and the creation of the conditions necessary for the proper exercise of his functions. Among the measures proposed were that the judges should be well-paid so as to make them less open to manipulation and corrupt influences, and that they should be assured of a comfortable old age when they retire.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">The Constitution, 1969 which was promulgated in 1969 sought to achieve these ends in two ways: first, by setting up a special body to determine the salaries of the judges and other public officers who needed to be protected from political interference, and, secondly, by providing, in the case of the judges, that those who had served for a certain number of years shall enjoy enhanced retiring awards. These provisions will be found in articles 52 and 117(2) and (4) of the Constitution, 1969. Under article 52(1) of the Constitution, 1969, the salaries, pension, gratuity and other allowances that should be paid to the judges and certain other public officers were to be “. . . determined by the President acting in consultation with the Council of State on the recommendations of a committee appointed . . . by the President acting in consultation with the Council of State.” Article 117(2)(a) of the Constitution, 1969 provided that a judge of the superior court of judicature who had attained the age of sixty years and retired after serving as a judge for ten years or more shall, in addition to receiving gratuity, “. . . be paid a pension which is equivalent to the salary he was entitled to immediately before retiring. . .” This was, however, conditional on his not holding any private office of profit or emolument. Article 117(4) of the Constitution, 1969 also provided that any judge of the superior court of judicature who had not attained the age of sixty years but had completed twenty years’ service in the public service out of which at least ten years were as a judge might, if he chose, retire on gratuity and normal pension.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">When the opportunity came in 1979 to write a new Constitution, article 52 was reenacted as article 58 of the Constitution, 1979. This time, it was provided that the salaries, retiring benefits or awards of the judges were to 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.” However, the suggestion that article 117(2) and (4) of the Constitution, 1969 be likewise repeated met with fierce opposition. Although the proposal was at first accepted by the members of the Constituent Assembly, memories of the past had by then become rather dim and the need to make special provision for the judges all but lost on them. Critics said it was unfair to give preferential treatment to the judges. With many a sarcastic comment, the members roundly rejected the proposal. The formulation was, however, retained for the benefit of the judges then at post. It will be found in the First Schedule, Part III, section 3(2) and (3) of the transitional provisions of the Constitution, 1979, and section 3(4) of the Constitution, 1979 made it clear that it was not to apply to any person appointed as a judge after the new Constitution, 1979 had come into force.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">As time went on, people began to have second thoughts when it was realized that with the frequent, changes in salary to make up for rapid losses in the purchasing power of the cedi a judge who had retired on his salary found after a few years that he was receiving by way of pension much less than other public officers. The perverseness of the existing law had become obvious, and when a retired judge brought an action in the courts to have the anomaly adjudicated upon, the government resolved that judges who had retired on their salaries would benefit from increases in the salaries of those of their colleagues who were still at post. The Pensions (Amendment) Law, 1986 (PNDCL 162) gave effect to this decision.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination: none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow: yes"><span style="font-size: 12pt; line-height: 115%; font-family: "Book Antiqua", serif;">Under article 71 of the Constitution, 1992 the salaries, allowances, facilities and privileges of serving judges, and the retiring benefits or awards they are to receive when they leave office, are to 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.” Under article 155(1) of the Constitution, 1992, two categories of judges who had attained the age of sixty years shall, on retiring, be paid in addition to gratuity, a pension “equal to the salary payable for the time being to a justice of the superior court from which he retired”: those who had served for at least ten continuous years as a judge of the superior court of ju</main>
