YOVUYIBOR AND ANOTHER vs. ATTORNEY- GENERAL AND ANOTHER [1994]DLSC866

Date	1994-07-26
Suit No.
Citation No.	[1994]DLSC866

ARCHER JSC

ADADE JSC

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS JSC

EDWARD WIREDU JSC

BAMFORD-ADDO JSC

CHARLES HAYFRON-BENJAMIN JSC

AMPIAH JSC

SAM OKUDZETO (WITH HIM AMEGATSE ABENA BOAFO AND ARYEE) FOR THE PLAINTIFFS.

DR. OBED ASAMOAH AG ATTORNEY-GENERAL (WITH HIM MARTIN AMIDU DEPUTY ATTORNEY-GENERAL MRS ADUSA-AMANKWA CHIEF STATE ATTORNEY AND AVAH PRINCIPAL STATE ATTORNEY) FOR THE DEFENDANTS.

[1994]DLSC866
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">YOVUYIBOR AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ATTORNEY- GENERAL AND ANOTHER<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 2 GLR 343<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">

</div>COUNSEL:<o:p></o:p>SAM OKUDZETO (WITH HIM AMEGATSE, ABENA BOAFO AND ARYEE) FOR THE
PLAINTIFFS.<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">

DR. OBED ASAMOAH, AG ATTORNEY-GENERAL (WITH HIM MARTIN AMIDU,
DEPUTY ATTORNEY-GENERAL, MRS ADUSA-AMANKWA, CHIEF STATE ATTORNEY AND AVAH,
PRINCIPAL STATE ATTORNEY) FOR THE DEFENDANTS. <o:p></o:p>

ARCHER, ADADE, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU
BAMFORD-ADDO. CHARLES HAYFRON-BENJAMIN AND AMPIAH JJSC<o:p></o:p>

</div>JUDGMENT OF AMUA-SEKYI JSC.<o:p></o:p>The question of the compulsory retiring age for police officers
was discussed by this court in Jiagge v Inspector-General of Police, Supreme
Court, 26 March 1990, unreported when the plaintiff, Jiagge, challenged a
ruling of 1980 by the Police Council that article 162(1) of the Constitution,
1979 which had raised the compulsory retiring age for public officers from 55
years to 60 years did not apply to members of the Police Service. The court
held that the council was right and dismissed the action. The reason was this:
whereas under the Constitution, 1969 the Police Service had, by article 142,
been retained as part of the public services, the Constitution, 1979 had
deliberately taken it out of the public services. The court found this
intention in article 154(1) of the Constitution, 1992 where the Police Service
had been omitted from the list of public services, and article 172(1) of the
Constitution, 1979 which, after repeating article 142 of the Constitution, 1969
that there shall be a Police Service, left out the all-important words “which
shall form part of the Public Services of Ghana.”<o:p></o:p>Article 190(1) of the Constitution, 1992 restored the Police
Service to its place within the public services. It is this fact that has
brought the present plaintiffs to court. The plaintiff, Yovuyibor, is a
superintendent of police, as is the plaintiff Bonuedi. They say that as the
compulsory retiring age for public officers under article 199(1) of the
Constitution, 1992 is 60 years, the compulsory retiring age for members of the
Police Service is no longer 55 years but 60 years, and that their premature retirement
at the age of 55 years is wrongful and a breach of the Constitution, 1992. The
answer of the defendants is that under section 8 of the transitional provisions
of the Constitution, 1992 the Police Service continues to be governed by the
Police Service Act, 1970 (Act 350), the Police Service (Amendment) Decree, 1974
(NRCD 303) and the Police Service Regulations, 1974 (LI 880) which, they
contend, require all police officers to retire at the age of 55 years.<o:p></o:p>Section 8(1), (2) and (3) of the transitional provisions of the
Constitution, 1992 read as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“8. (1) A person who immediately before the coming into force of
this Constitution held or was acting in an office in existence immediately
before the coming into force of this Constitution, shall be deemed to have been
appointed as far as is consistent with the provisions of this Constitution, to
hold or act in the equivalent office under this Constitution. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) A person who before the coming into force of this Constitution
would have been required under the law in force to vacate his office at the
expiration of a period of service shall, notwithstanding the provisions of
subsection (1) of this section, vacate his office at the expiration of that
period. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) This section shall be without prejudice to any powers
conferred by or under this Constitution or any other law not being inconsistent
with any provision of this Constitution, upon any person or authority to make
provision for the abolition of office, for the removal from office of persons
holding or acting in any office and for requiring those persons to retire from
office.”<o:p></o:p>The defendants justify the decision to retire the plaintiffs by
relying on section 8(2) of the transitional provisions of the Constitution,
1992. The question is whether they are right. It is to be observed that there
are two types of employees in the public services: those holding appointments
for fixed periods, usually computed in years; and those holding permanent
appointments, ie appointments for periods not limited in terms of years. To the
former category belong persons holding contract appointments. These contracts
are usually of two years’ duration, but they may be for as long as five years.
To the latter category belong the mass of employees who by the terms of their employment
can look forward to a lifetime engagement in one public office or the other.
These are the career officers in the various public services who, subject to
the needs of the public services, and their own competence and good behaviour
can expect to be kept in employment until they reach the prescribed retiring
age.<o:p></o:p>