June 2, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
A Member of Parliament for Asikuma Odoben Brakwa invoked the Supreme Court’s original jurisdiction seeking declarations that the Auditor-General’s retirement age should be pegged at 70 like a Justice of the Court of Appeal and that section 10(4) of the Audit Service Act, 2000 (Act 584) is unconstitutional. Despite the Attorney-General’s concession favoring a 70-year retirement age, the Court scrutinized the matter and split sharply. The majority held there is no constitutional lacuna: Article 199(1) establishes a default retirement age of 60 for public officers unless otherwise expressly provided, and the Constitution only equates certain Article 70 officeholders (e.g., CHRAJ, PSC, EC, NCCE) to judicial terms where it explicitly says so. The omission of a specific age for the Auditor-General was found deliberate, not inadvertent. Section 10(4) of Act 584, aligning with Article 199(4) by allowing limited post-retirement engagement, was upheld as constitutional. Consequently, the plaintiff’s claims were dismissed. A minority led by the Chief Justice would have read an implicit 70-year retirement age into the Constitution via purposive interpretation and struck down section 10(4).
J U D G M E N T
WOOD (MRS), CJ:-
Rarely do we find parties in litigation in agreement over issues of fact, let alone issues of law. The norm is for each side to dig their heels and refuse to move away from their respective entrenched positions. Not surprisingly, an open admission that an opponent is entitled to a relief sought is hardly heard of. For which reason, none of those useful procedures provided under the rules of court, for the expeditious but altogether just resolution of disputes, hardly work in our jurisdiction. Thus, applications for summary judgment or judgment on admissions, motions to have claims or defences struck out on grounds of non disclosure of a reasonable claim or a defence-procedures for achieving judicial economy-are usually met with stiff opposition. Indeed, getting parties who are before the superior courts to the Alternative Dispute Resolution (ADR) table may be likened to the biblical proverbial expression of having a camel pass through a needle’s eye. These largely account for the cumbersome legal procedures and tortuous court room trials, which culminate in the frustratingly long delays faced by court users.
Constitutional litigation instituted under articles 2 (1) and 130(1) of the 1992 Constitution is quite common in our jurisdiction. But, understandably, the framers of the Supreme Court Rules, C. I. 16, did envisage that some actions brought under our original jurisdiction, might nevertheless be uncontested, hence the rule 48 of the C. I. 16, which provides:
“(1) A defendant upon whom a writ and statement of the plaintiff’s case are served shall, if he wishes to contest the case….”
Uncharacteristically, the defendant in this instant case has presented us with a refreshing change. The defendant, the Honourable Attorney-General, represented by Mr. Cecil Adadevoh, Senior State Attorney, has adopted the approach which in judicial proceedings, we would commend as an honourable step. Speaking for myself, I wish we would have more of such responses from litigants in the ordinary cases which flood our courts on daily basis. It will relieve many from the drudgery of having to shuffle in and out of our court-rooms for months or sometimes years on end to have their simple cases adjudicated.
Notwithstanding this commendable step, it is the duty of a court and indeed sound judicial practice, for a court to subject an admission or concession on a point of law to close judicial scrutiny, before endorsing it as good law. Such judi