KWABENA ABOAGYE vs. THE CONTROLLER & ACCOUNTANT GENERAL AND THE ATTORNEY-GENERAL [2011]DLSC2665

Date	2011-03-14
Suit No.	CIVIL APPEAL NO. J4/31/2011
Citation No.	[2011]DLSC2665

ATUGUBA AG. CJ [PRESIDING]

DATE-BAH JSC

ANSAH JSC

BONNIE JSC

AKOTO-BAMFO [MRS.] JSC

APPELLANT APPEARS IN PERSON.

CECIL ADADEVOH [WITH HIM APPIAH OPARE] FOR THE RESPONDENTS.

[2011]DLSC2665
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													<main id="main" class="content" style="min-height: 60rem" >KWABENA ABOAGYE<o:p></o:p>vs.<o:p></o:p>THE CONTROLLER &amp;
ACCOUNTANT GENERAL AND THE ATTORNEY-GENERAL<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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">

CIVIL APPEAL NO. J4/31/2011&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 14TH
MARCH, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>APPELLANT APPEARS IN
PERSON.<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">

CECIL
ADADEVOH [WITH HIM APPIAH OPARE] FOR THE RESPONDENTS.<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;
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ATUGUBA AG. CJ [PRESIDING], DATE-BAH JSC, ANSAH JSC,
BONNIE&nbsp; JSC, AKOTO-BAMFO [MRS.] &nbsp;JSC<o:p></o:p>

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

</div><o:p>&nbsp;</o:p>DR.&nbsp; S.&nbsp; K.&nbsp;
DATE-BAH JSC:<o:p></o:p>The
plaintiff is a trained teacher who was employed by the Government of Ghana,
through the Ghana Education Service, an agency of the Ministry of Education, in
1966.&nbsp; After serving in the Ghana
Education Service till 1968, he was granted study leave without pay to study
for an undergraduate degree at the University of Ghana, Legon.&nbsp; Upon completion of his degree in 1971, he was
employed at the Ministry of Finance and Economic Planning from June to August 1971,
at the Ghana Water and Sewerage Corporation from September 1971 to June 1976,
at the National Investment Bank from May 1976 to October 1978 and, finally, at
the Ghana Cocoa Marketing Board, from November 1978 to October 1979.&nbsp;&nbsp; The plaintiff’s last employer in the public
service was the Ghana Cocoa Marketing Board, which terminated his employment
because of a reorganization that the corporation had undertaken.<o:p></o:p>On
attaining the retiring age of sixty in 2002, the plaintiff applied to the Ghana
Education Service (‘GES’)for the payment of his pension and end-of-servive
benefits.&nbsp; Because the Ghana Cocoa
Marketing Board had not redeployed him after his termination, the plaintiff
applied in 2005 to the Head of the Civil Service through the Director-General
of the GES for condonation of break in service.&nbsp;
The plaintiff averred in his Statement of Claim that the Head of Civil
Service granted the condonation of break in service through a letter dated 12th
April 2005, thus making the plaintiff’s service continuous from 1966 to 10th
November 2002.&nbsp; The actual text of the
letter of condonation did not, however, support this assertion since that
letter written by one W.K. Kemevor, on behalf of the Head of the Civll Service,
and which was delivered to the High Court in compliance with Order 21 of the
High Court (Civil Procedure) Rules 2004 (CI 47) relating to discovery of
documents stated that (at p. 34 of the Record):<o:p></o:p>“I wish to
convey approval for the condonation of the break, which occurred in the service
career of Mr. Kwabena&nbsp; Aboagye from 1971
to 1980 when he worked with the Ministry of Finance and Economic Planning, the
Ghana Water and Sewerage Corporation, the National Investment Bank and finally
the Ghana Cocoa Marketing Board.<o:p></o:p>Consequently,
Mr. Kwabena Aboagye’s service career is made continuous for pension purposes
from 1966 to 1980.”<o:p></o:p>The
main controversy in this case relates to whether the condonation extends to
2002, as averred by the Plaintiff, or whether it extends only to 1980, as
expressly indicated in Mr. Kemevor’s letter of 12th April, 2005.<o:p></o:p>The
plaintiff’s case, as set out in his Statement of Claim, was that: the
condonation granted him extended to 10th November, 2002; that upon
receipt of the condonation letter, he had written to the Chief Treasury Officer
of the Controller and Accountant-General’s Department to process his retirement
benefits for payment; that the First Defendant had written to the plaintiff’s
previous employers and had been given written responses about the current
position, equivalent salary scales of the plaintiff for computation of the
plaintiff’s pension and end-of-service benefits; that the advice of the
Attorney-General, when sought by the First Defendant, was that the plaintiff’s
pension was to be paid with any advantageous increases due to the plaintiff,
but the first defendant, had failed to pay the plaintiff.&nbsp; The plaintiff further contended that when he
lost his employment with the Government of Ghana as a result of the
reorganization of his particular office, he was not redeployed, even though he
was available for redeployment.&nbsp; The
plaintiff averred that he had written several petitions on this matter,
including to the President of the Republic.&nbsp;
He denied that, as falsely claimed by the first defendant, he had
already claimed benefits from his previous employers.&nbsp; He further contended that even if he had
collected his provident fund benefits from his previous employers, he would
still be entitiled to his pension and other end of service benefits.&nbsp; The plaintiff claimed that on the coming into
force of the Social Security and National Insurance Trust Law, he had opted in
writing to remain a pensionable employee under the Chapter 30 (Cap 30)
scheme.&nbsp; It was his case, therefore, that
he was entitled to retire fr</main>