The Fast Track High Court Friday fixed next Friday, May 24, 2013, for the hearing of arguments in the motion for stay of execution of its order that the state should pay the monthly pension of the former Auditor-General, Mr Edward Dua Agyeman, with effect from June 2012.
The hearing, which was to be heard Friday, had to be adjourned because the Attorney-General was yet to be served with the affidavit in opposition filed last Wednesday.
In March this year, the court, in its judgement, also 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 fulfillment of a constitutional obligation owed him by the Republic, since he was appointed under Article 71 (1) of the 1992 Constitution.
Not satisfied with that decision, the Attorney-General had since filed an appeal to challenge the decision and consequently the instant application.
According to the Attorney-General, the appeal had a great chance of success and that being the case the decision ought to be stayed.
Furthermore, she contended that Mr Agyeman would be unable to refund the money paid to him should the appeal succeed.
The affidavit in opposition filed on behalf of Mr Agyeman said the Attorney-General had not shown any exceptional circumstances to warrant the stay of execution of the judgement of the court.
It also said the judgement was based on firm evidence adduced at a trial in which the Attorney-General neglected to lead any evidence, for which reason the appeal had no chance of success.
Similarly, it said the Attorney-General had not demonstrated how Mr Agyeman would be unable to refund any money paid to him in the unlikely event of the appeal succeeding and that the plaintiff was not a man of straw.
According to the court, by the injection of Article 71(1), Mr Agyeman’s salaries, allowances, facilities and privileges 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.
The court granted nine of the 10 reliefs sought by Mr Agyeman and awarded costs and damages totaling 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.
The court 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 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 Agyeman sued the Attorney-General through his lawyer, Mr Godfred Yeboah Dame, 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 Mr 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 Agyeman instituted the action and requested for reliefs which were granted by the court.
The plaintiff’s case 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, pursuant to an appointment by the President of the Republic of Ghana, and also as Deputy Auditor-General (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 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 Auditor-General was not a “political appointee” and as such Article 187 of the Constitution, which established the position of 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.
Source: Daily Graphic
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