Yovuyibor & Anor. v A-G & Anor. [1993-94] 2 GLR 343.

ARCHER, ADADE, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU BAMFORD ADDO, CHARLES HAYFRON-BENJAMIN AND AMPIAH JJSC.

JUDGMENT OF AMUA-SEKYI JSC.

Amua-Sekyi JSC. 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.”

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.

Section 8(1), (2) and (3) of the transitional provisions of the Constitution, 1992 read as follows:

“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.

(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.

(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.”

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.

Section 8(1) of the transitional provisions of the Constitution, 1992 caters for both of these categories of public officers. It provides that a person who before the coming into force of the Constitution, 1992 held or was acting in an office shall be deemed to have been appointed to hold or act in the equivalent office under the Constitution. Section 8 (2) of the transitional provisions of the Constitution, 1992 caters for the first category only by requiring those holding appointments for fixed periods to vacate their offices in accordance with the terms of their engagement. Section 8 (3) of the transitional provisions of the Constitution, 1992 caters for the second category by requiring those holding pensionable appointments to retire if their offices should be abolished or they are removed from office. The view that section 8 (2) of the transitional provisions of the Constitution, 1992 applies to pensionable officers is erroneous and must be rejected.

It was also contended that article 199(1) of the transitional provisions of the Constitution, 1992 prescribes an upper limit beyond which no branch of the public services may keep a person in pensionable service, but does not prevent any such branch from prescribing a lower retiring age for its members. If this were so, it would defeat the constitutional

provision which was intended to lay down a uniform retiring age for members of the public services. From the above, I am of the opinion that as public officers holding pensionable appointments, the compulsory retiring age of the plaintiffs is 60 years and that their purported retirement from the Police Service at the age of 55 years is a breach of article 199(1) and a nullity. I would grant them declarations to that effect and order that they be reinstated forthwith.

JUDGMENT OF ARCHER CJ

Archer CJ. I have beforehand had the privilege of reading the opinion just delivered by my brother Amua-Sekyi JSC and I agree with his reasoning and conclusions that the plaintiff should succeed and that the declaration sought should be granted.

JUDGMENT OF ADADE JSC

Adade JSC. I agree with the opinion just read by my brother Amua-Sekyi JSC. I will also grant the declarations sought by the plaintiffs, in particular, a declaration that:

“(4) By the provisions of article 199(1) of the Constitution, 1992 the plaintiffs not having voluntarily retired are still serving officers within the Ghana Police Service.”

JUDGMENT OF FRANCOIS JSC

Francois JSC. I also indorse the view that upon a proper construction of the constitutional provisions, the plaintiffs’ retiring age is 60 and not 55. Any other construction would lead to absurdities.

JUDGMENT OF AIKINS JSC

Aikins JSC. I agree with the interpretation put on subsections (1) and (2) of section 8 of the transitional provisions specified in the First Schedule to the Constitution, 1992 by my learned brother Amua-Sekyi JSC, as well as the conclusions arrived at by him. I would, however, like to say one or two words in support.

The two parties have reached a consensus that until the coming into force of the Constitution, 1992 the Police Service Act, 1970 (Act 350) as amended by the Police Service (Amendment) Decree, 1974 (NRCD 303) and the Police Service (Administration) Regulations, 1974 (LI 880) regulated the compulsory retiring age of police officers which was fixed at 55 years.

However, as the plaintiffs assert that on the coming into force of the Constitution, 1992 on 7 January 1993 they as public officers are by the provisions of articles 190(1) and 199(1) to retire at the age of 60 years, the defendants contend that the Police Service in existence before 7

January 1993 “continued as the Police Service of Ghana only by virtue of section 8 of the transitional provisions schedule to the Constitution and is regulated by those provisions for purposes of retirement . . .” In other words, they contend that as police officers the plaintiffs are to vacate their offices at the expiration of their period of office, ie at the age of 55 years.

I would like to point out that LI 880 ceased to regulate the compulsory retirement ages of members of the Police Service when regulation 24 thereof was revoked by the Police Service (Administration) (Amendment) Regulations, 1974 (LI 992), whose notification was gazetted on 13 December 1974. However, what was contained in the said regulation 24 was re-enacted by the Police Service (Amendment) Decree, 1974 (NRCD 303) by section 3 thereof.

The two different interpretations put on section 8(2) of the transitional provisions of the Constitution, 1992 by the parties appear to take their root from the cloudy or obscure language of the section. It reads:

“(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.”

(The emphasis is mine.)

The plaintiffs interpret this to mean that the section applies to those officers holding appointments for fixed periods (ie contract officers), whereas the defendants interpret the section to refer to both officers holding appointments for fixed periods and those holding permanent appointments (ie career officer). I agree with the interpretation put on the section by the plaintiffs. The situation is clarified by a reappraisal of the early constitutional enactments of this country.

It seems to me that the framers of the Constitution, 1969 also had in mind the two categories of officers in the Police Service (ie those on limited engagement and those on permanent engagement) when subsection (2) of section 9 of the transitional provisions to that Constitution was being drafted. The subsection referred both to officers who were required to vacate their office at the expiration of a period, and to those who had to vacate their office on the attainment of a particular age (ie those looking forward to a life-time engagement). Normally the appointment of officers is not made conditional upon the attainment of

a specific age of the appointee, as in the case of officers on permanent appointment.

Section 9(2) of the transitional provisions of the Constitution reads:

“(2) Any 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 any period or on the attainment of any age shall, notwithstanding the provisions of the preceding subsection, vacate his office at the expiration of that period or on the attainment of that age.”

(The emphasis is mine)

Section 9 (1), as in the case of section 8(1) of the transitional provisions to the Constitution, 1992 deals with the reappointment of existing officers on the coming into force of the Constitution, 1969.

It is clear from the language of subsection (2) above that the provision deals with (i) persons holding office which would expire at the end of a stated period, and (ii) persons holding office which would come to an end on the attainment of a specific age. This provision was subsequently altered by the framers of the Constitution, 1979. They dropped the second category of serving officers from the subsection, and the amended version which is subsection (2) section 7 of that Constitution reads as follows:

“(2) A person who before the coming into force of this Constitution would have been reqired 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.”

(The emphasis is mine.)

Here the subsection referred only to officers on limited engagement. The Police Service did not form part of the public service as defined in article 154(1) of the Constitution, 1969 and so even though the compulsory retirement age of public officers was fixed at 60 years, this did not affect the compulsory retirement age of police officers.

Section 7(2) of the Constitution, 1979 was reproduced verbatim in the Constitution, 1992. And with the inclusion of the Police Service in the public services of Ghana by article 190(1) of the Constitution, 1992 and the wholesale reproduction of article 162(1) of the Constitution, 1979 in article 199(1) of the Constitution, 1992 the compulsory retiring

age of police officers was automatically change to 60 years. This new condition cannot therefore, by any stretch of imagination, be said to be affected by section 8(2) of the transitional provisions of the Constitution, 1992 which, as I have said earlier, affects only officers on limited engagement.

In the result, I also hold that as public officers holding pensionable appointments, the compulsory retirement age of the plaintiffs is 60 years, and that their purported retirement from the Police Service at the age of 55 years is a breach of article 199(1) of the Constitution, 1992, and is therefore a nullity.

JUDGMENT OF EDWARD WIREDU JSC

Edward Wiredu JSC. I am also of the view that the plaintiff must succeed and are entitled to the reliefs sought as are contained in the orders of this court about to be read.

I have had the advantage of reading beforehand the resourceful opinion just read by my brother Amua-Sekyi JSC and I agree with his exposition as to the true meaning of the language of section 8(1) and 8(2) or the transitional provisions of the Constitution, 1992 as expressed in his adroit opinion. I wish however to contribute further on the issue raised by making the following observations.

To me section 8(1) of the transitional provisions of the Constitution, 1992 has given recognition to the rebirth of the Police Service as a public service by the Constitution, 1992. A rebirth which has elevated it from a paramilitary or a force into a civilian public service by article 190(1)(a) under chapter fourteen of the Constitution, 1992.

The born-again personnel of the service have seen a new horizon. That is, all personnel of the service who led or were acting in an office in existence immediately before the coming into force of the Constitution, 1992 on 7 January 1993 had their “retiring ages raised from 55 to 60 years” as provided under article 199 of the Constitution, 1992.

This, in my respectful view, is the message conveyed by the language of section 8(1) of the transitional provisions of the transitional provisions of the Constitution, 1992. To construe section 8(1) in the way the defendants are urging would mean that no employee in any of the services listed under article 190(1) of the Constitution, 1992 with the exception of members of the legal class some of whom enjoy up to 65 years under the existing law, ie Legal Service Law, 1993 (PNDCL 320) can benefit from the provisions of section 8(1). The benefit created by its provision cannot enure to the benefit of any public office holder who “held or was acting in an office in existence” within the language of that