Yovuyibor and another v Attorney-General and another

The question of the compulsory retiring age for police officers was discussed by this court in Jiagge v Inspector-General of Police, 26 March 1990, when the plaintiff, Jiagge challenged a ruling made 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) where the Police Service had been omitted from the list of public services, and article 172(1), 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 1st plaintiff, Yovuyibor is a superintendent of police, as is the 2nd plaintiff Bonuedi. They say that as the compulsory retiring age for public officers under article 199(1) 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. The answer of the defendants is that under section 8 of the transitional provisions, 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 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 h