REPUBLIC v. JUDICIAL SECRETARY; EX PARTE TORTO
1978
COURT OF APPEAL
GHANA
CORAM
- ANIN
- ANNAN
- CHARLES CRABBE JJ. A
Areas of Law
- Administrative Law
- Civil Procedure
- Employment Law
1978
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
E. T. A. Torto, a circuit judge at Kumasi, sued the Judicial Secretary after receiving letters directing him to retire at age 55. Torto claimed regulation 48(1) of the Judicial Service Regulations (L.I. 319) allowed compulsory retirement only at 60 unless the President otherwise directed, and attacked reliance on a 1971 policy and a subsequent amendment. The government had, however, promulgated the Judicial Service (Amendment) Regulations, 1978 (L.I. 1168), which substituted “fifty-five years” for “sixty years” in regulation 48(1) and expressly deemed the amendment to commence on 26 February 1971. Applying the presumption of regularity and plain-meaning rules, the Court of Appeal held L.I. 1168 valid, unambiguous, and retrospective, concluded that Torto was obliged to retire at 55 as of 8 October 1978, and allowed the appeal, quashing the High Court’s orders and dismissing the application, with costs to the appellant.
JUDGMENT OF ANIN J.A.
The appellant was sued in his official capacity as Judicial Secretary by the respondent, who was at all times material to this suit a circuit court judge stationed at Kumasi. The salient facts emerging from the supporting affidavits, exhibits and statement are briefly that on 17 August 1978 the respondent received a letter (exhibit A) dated 2 August 1978 from the office of the appellant reminding him that "the statutory retiring age for judicial officers other than judges of the superior courts is 55;" that according to official records he would attain that age on 8 October 1978; and that he should therefore retire from the service with effect from that date.
In his reply dated 1 September 1978 (exhibit 2) the respondent countered that the mandatory retiring age for officers in his category was 60 and not 55. Buttressing himself on regulation 48 (1) of the Judicial Service Regulations, 1963 (L.I. 319), he challenged the appellant to cite his authority for insisting upon the lower retiring age of 55; and warned that he would go to any lengths to vindicate his rights and that, pending a satisfactory reply, he would "continue to remain in harness."
The appellant obliged with an explanation of the legal position in his reply dated 15 September 1978 (exhibit B). While conceding that L.I. 319 is still in force; and that regulation 48 (1) thereof permits the respondent to retire at 60 "unless the President otherwise directs, " the appellant emphasised that "the truth is that the President has otherwise directed." By a letter dated 26 February 1971, the government with the sanction of the President reduced the retiring age of all civil servants and all public servants from 60 to 55 years. This directive was communicated by him to all judicial officers and non-professional officers:
"in the Judicial Service by his circular letter No. RCS/9149 dated the 4th March, 1971.
As an expression of national policy on duration of Public service, this directive had been uniformly applied to all officers in the Judicial Service. There is no intention to discriminate against you in particular and no reason exists for doing so."
In the penultimate paragraph of exhibit B, the appellant conceded further that the government circular, in so far as it relates to the Judicial Service was not backed by any legislative instrument; nevertheless, under regulation 48 (1) of L.I. 319 the President's directive could take any form, oral or written. Even though the d