MR. JUSTICE KWAME ANSU-GYEABOUR (RTD) vs. THE CHIEF JUSTICE AND THE ATTORNEY GENERAL [2019]DLSC8749

MR. JUSTICE KWAME ANSU-GYEABOUR (RTD) vs. THE CHIEF JUSTICE AND THE ATTORNEY GE... [2019]DLSC8749

Date	2019-12-19
Suit No.	WRIT NO J1/ 12/ 2018
Citation No.	[2019]DLSC8749

ANIN YEBOAH JSC(PRESIDING)

BENIN JSC

APPAU JSC

PWAMANG JSC

MARFUL-SAU JSC

DORDZIE JSC

KOTEY(PROF) JSC

SOLOMON OPPONG-TWUMASI FOR THE PLAINTIFFS

ELFREDA DENKYI (CHIEF STATE ATTORNEY) FOR THE DEFENDANTS.

[2019]DLSC8749
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													<main id="main" class="content" style="min-height: 60rem" >MR. JUSTICE KWAME ANSU-GYEABOUR (RTD)<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>THE
CHIEF JUSTICE AND THE ATTORNEY GENERAL<o:p></o:p>(DEFENDANTS)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">WRIT NO J1/ 12/ 2018&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 19TH DECEMBER, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SOLOMON OPPONG-TWUMASI FOR THE PLAINTIFFS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ELFREDA DENKYI (CHIEF STATE ATTORNEY) FOR THE
DEFENDANTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ANIN YEBOAH JSC(PRESIDING), BENIN JSC, APPAU JSC,
PWAMANG JSC, MARFUL-SAU JSC, DORDZIE JSC, KOTEY(PROF) JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The plaintiff herein was a Superior Court Judge and
a retired justice of the High Court. He retired from office on the 1st
day of May, 2015 as per article 145 (2)(b) of the Constitution, 1992. The said
article reads: “(2) A Justice of the Superior Court or a Chairman of a Regional
Tribunal shall vacate his office, (b) in the case of a Justice of the High
Court or a Chairman of a Regional Tribunal, on attaining the age of sixty-five
years”. This means plaintiff had reached the compulsory retirement
age of sixty-five (65) years as at 1st May 2015, so by operation of
law as obligated by the Constitution, 1992, he had immediately ceased to be a
Justice of the High Court subject only to extension as permitted under article
145 (4) of the Constitution, 1992. This clause (4) of article 145&nbsp; provides: “Notwithstanding that he has attained
the age at which he is required by this article to vacate his office, a person
holding office as a Justice of the Superior Court or a Chairman of a Regional
Tribunal may continue in office for a period not exceeding six months after
attaining that age, as may be necessary to enable him to deliver judgment or do
any other thing in relation to proceedings that were commenced before him
previous to his attaining that age”. <o:p></o:p>The grant of extension for six more months and not
more under the above provision, normatively, is not automatic but permissible,
subject to approval by the Chief Justice (1st defendant herein) who
is the head of the Judiciary. Plaintiff’s retirement, which obligated him to
vacate office, commenced immediately on 1st May, 2015 when the 1st
defendant had earlier on turned down his request dated 10th April
2015, praying her to invoke article 145 (4) in his favour, to enable him
deliver some judgments then pending before him. <o:p></o:p>The
quintessence of the matter before the Court<o:p></o:p>The gravamen of plaintiff’s writ is that he has
constitutionally retired under article 145 (2)(b) of the Constitution, 1992
after working continuously for about twelve (12) years as a superior court
judge and therefore qualifies for pension under article 155 of the
Constitution, 1992. However, the 1st defendant has wrongfully and
unconstitutionally withheld his gratuity and end of service benefits since his
retirement on 1st May, 2015.&nbsp;
The ground upon which the 1st defendant purported to do that
was that there was a pending impeachment proceeding against him before his
compulsory retirement became due and until his fate under that process was
determined, he would not be paid his retirement benefits. This unconstitutional
conduct of the 1st defendant, as plaintiff termed it, has deprived
him of his legitimate livelihood. His writ, invoking the original jurisdiction
of this Court, was therefore to seek redress on the following reliefs:<o:p></o:p><ol style="margin-top:0cm" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l2 level1 lfo1">A declaration that plaintiff, having worked as a High Court Judge
 and retired compulsorily, he could not be a subject of any constitutional
 procedures set out for the removal of a Justice of the Superior Court
 under article 146 of the Constitution, 1992;<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l2 level1 lfo1">A declaration that the withholding of plaintiff’s gratuity and
 retirement benefits on the orders of the 1st defendant since 1st
 May 2015, is unconstitutional;<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l2 level1 lfo1">An order compelling the 1st defendant to cause to be
 issued to the plaintiff a retirement letter in line with official judicial
 service practice and for a further order for the payment of plaintiff’s
 retirement benefits to him;<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l2 level1 lfo1">General damages for emotional and financial stress caused to the
 plaintiff due to the unconstitutional conduct of the 1st
 defendant;<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l2 level1 lfo1">Any further orders(s) the Court deems fit.<o:p></o:p></li>
</ol>The 1st and 2nd defendants
filed a joint statement of defence. Their main defence was that plaintiff was
facing impeachment proceedings prior to his retirement to determine whether or
not he could be removed from office wi</main>