March 26, 2013 (Front page)
THE Fast Track High Court yesterday ordered the state to pay the monthly pension of the former Auditor-General, Mr Edward Dua Agyeman, with effect from June 2012.
It further directed that the amount should be equivalent to the salary of the current Auditor-General, which is also equivalent to that of a justice of the Court of Appeal.
According to the court, the gratuity and the pension due Mr Dua Agyeman were in fulfilment of a constitutional obligation owed him by the Republic, since he was appointed under Article 70 (1) of the 1992 Constitution.
Therefore, by the injection of Article 71 (1), the salaries, allowances, facilities and privileges of Mr Dua Agyeman were to be determined by the President, on the recommendations of a committee of not more than five persons appointed by the President, in accordance with the advice of the Council of State.
Granting nine out of 10 reliefs sought by the applicant, the court, presided over by Mr Justice Paul Uuter Dery, also awarded costs and damages totalling GH¢20,000 against the state.
The GH¢20,000 was awarded the plaintiff following his assertion that he had suffered “undue hardships” as a result of the state’s persistent refusal to accord to him his constitutional entitlements.
The state is expected to pay GH¢10,000 in general damages and GH¢10,000 in costs.
The plaintiff’s gratuity consists of three months’ salary for every year he served in the Audit Service.
Mr Justice Dery also declared that any review of the conditions of pension payable to a former holder of the position of Auditor-General, as will be determined by the report of any Presidential Committee on Emoluments of Article 71 Office Holders, was applicable to Mr Dua Agyeman.
However, the court declined to grant the plaintiff’s request for an order for the provision of free medical and dental facilities for plaintiff and his spouse.
Mr Dua Agyeman sued the Attorney-General through his lawyer, Mr Godfred Dame Yeboah, after several requests for the payment of his gratuity and pension, as conveyed by his letter of appointment, had failed.
The plaintiff retired from the Audit Service on May 19, 2010 and in response to his demand for the payment of his gratuity and pension, he received a letter dated October 18, 2010 and signed by a Deputy Chief of Staff, Dr Valerie Sawyerr, which informed him of the decision of the government not to pay him retirement benefits in accordance with Article 71 (1) of the 1992 Constitution.
According to the plaintiff, the letter indicated that he (Mr Dua Agyeman) was a political appointee and not a career staff of the Audit Service or any other public service and, therefore, did not qualify for pension.
Dissatisfied with the position of the government, Mr Dua Agyeman instituted the action and requested for reliefs which were granted by the court.
The reliefs granted by the court included a declaration that the plaintiff was entitled to the payment of gratuity and pension in accordance with the recommendations of the Reports on a Review of Facilities and Privileges of Article 71 Office Holders in 2008 (the Chinery Hesse Report).
An order was also granted for the payment of a monthly pension equivalent to the salary of the Auditor-General currently at post, with effect from May 2010 (when plaintiff retired) to June 15, 2012, the date of issue of the instant writ.
Also granted was interest on the amount at the prevailing bank rate and an order for the payment of a monthly pension (after 15th June, 2012) equivalent to plaintiff’s salary as adjusted from time to time in accordance with the salary of the Auditor-General at post, which is equivalent to that of a Justice of the Court of Appeal and was being paid to plaintiff’s predecessor.
Mr Justice Dery also granted a request for an order for the provision of one free chauffeur-driven vehicle with associated expenses to be borne by Mr Dua Agyeman.
Background to case
The contention of the plaintiff was that before being appointed as the substantive Auditor-General of the Republic of Ghana, he had, from April 12, 2001 to January 29, 2003, served as acting Auditor–General of the Republic of Ghana pursuant to an appointment by the President of the Republic of Ghana and also as Deputy Auditor-General of Ghana (from July 1, 1987 to 1989), as well as the Director of Administration of the Non-Performing Assets Recovery Trust (from 1990 to 1994).
Mr Dua Agyeman averred that the letter by which he was appointed as the substantive Auditor-General on January 30, 2003 indicated that other terms and conditions of his appointment would be communicated in due course.
“Further to the above, by a letter dated the 5th day of May, 2003 signed by the Minister of Finance and Economic Planning, full details of the terms and conditions attached to plaintiff’s position were duly provided to him and same included ‘Gratuity and pension as may be determined by the President, acting in accordance with the advice of the Council of State’,” the statement of claim said.
It argued further that the position of the Auditor-General of Ghana was not a “political appointee” and as such Article 187 of the Constitution, which established the position of the Auditor-General and his function, also stipulated that provisions of Article 146, relating to the removal of a Justice of the Superior Court of Judicature from office, shall apply to the Auditor-General.
The plaintiff argued that the Chinery-Hesse Committee Report was presented to the President of the Republic and same took effect while he was in office and upon his retirement, he was entitled to enjoy the facilities made available in the committee’s report.
“In the light of the above, plaintiff’s predecessor is being paid a pension consisting of his monthly salary at the time of his retirement (as adjusted from time to time in accordance with the salary of the Auditor-General currently at post, which is equivalent to that of a Justice of the Court of Appeal),” the plaintiff averred, and argued that such benefits were applicable to him.
After considering the plaintiff’s arguments, the court awarded his prayer, except his request for free medical and dental provision for him and his spouse.
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