Emmanuel Noble Kor, whose lawyers incidentally are coming from the chambers of the Deputy Attorney General Dominic Ayine, is accusing the President of illegally varying gratuities of the country's superior judges.
In a writ to invoke the original jurisdiction of the Supreme Court, a copy of which was intercepted by Myjoyonline.com, the plaintiff is seeking seven reliefs including "an order of perpetual injunction restraining the government of Ghana from calculating and paying gratuity to any superior court judge on the basis of the unlawful formula contained in the letter of the Chief of Staff dated 4th January 2013."
In Ghana's jurisprudence, the President cannot be sued, therefore the plaintiff brought the case against the President's legal advisor- the Attorney General.
The plaintiff held that the President on January 4, 2015 caused to be written a letter varying the Prof Mariam Ewurama Addy-chaired Committee on emoluments, an action he deemed illegal.
Facts and Particulars
The Plaintiff chronicled the history of the salaries of Article 71 office holders are determined and concluded that "with the coming into force of the 1992 Constitution, Article 71 (1) thereof provided a mechanism for determining, inter alia, the gratuities of Superior court judges. Pursuant to the said article 71 (1) of the Constitution the president of Ghana at various times has set up committees to make recommendations for determining the salaries, allowances and retiring benefits if Article 71 holders including Superior Court judges."
In line with the article, the Greenstreet Committee was set up in 1993 and made recommendations under the Rawlings administration; the Kufuor administration also set up the Chinery-Hesse committee which also made its recommendations in 2008. The Mills administration set up the Ishmael Yankson committee which reviewed the work of the Chinery-Hesse Committee and concluded that the Chinery-Hesse Committee was "rushed through the approval system.... and the Committee, could therefore not recommend the Chinery-Hesse 2008 Reports for the implementation because of the uncertainties, ambiguities, and doubts surrounding the reports leading to lack of authenticity."
In 2010, the late John Mills again constituted the Prof Ewurama Addy committee which presented its report in March 2011 and made the recommendation that judges at the Superior Court will retire on their salary and have the gratuity computed with the formula as follows; period served ×GDP/per capital ×award points/100.
The case of the plaintiff
According to Noble Kor his bone of contention is the January 4, 2013 letter from the President to the Judiciary which posited that the President has accepted the recommendations of Ewurama Addy report except for the following variations: "gratuity shall be calculated as four months' consolidated salary for each year (or fraction) served ... the effective date of implementation in 7th January 2009."
He averred that the President without recourse to law and due process varied the gratuities of the judges.
"It is the case that whilst the President of Ghana pursuant to Article 71 (1) (b) has the power, in accordance with the advice of the council of state to:
(a) Reject all or part of the recommendations of the Committee and ask the committee to reconsider its recommendation or constitute another committee under Article 71 (1) to propose new recommendations; or
(b) Accept all or part of the recommendations."
He stated further that the President did not only lack the substantive authority in determining, inter alia, the gratuities of superior court judges, but also failed consult the Council of State as required by Law.
As part of the reliefs, Noble Kor wants the court to declare that "any procedure used to calculate the gratuity of superior court judges that uses four months for each year of completed service as contained in the letter signed by the Chief of Staff dated 4th January 2013 which procedure is not contained in the recommendations of the Prof Marian Ewurama Addy report is inconsistent with the law and should be considered as null and void."
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