An action has been brought in the Supreme Court against the Chief Justice and the Attorney General to determine whether Justice Theodore Adzoe, a Justice of the Supreme Court, is subject to a decision of the Judicial Council to "retire" him on medical grounds.

The action, filed on Friday, 31st March 2006 in the Supreme Court, was initiated by the wife of the "retired" Justice of the Supreme Court, Mrs. Joana Abla Adzoe in her capacity as "a citizen of Ghana" who seeks "a true and correct interpretation" of various provisions of the 1992 Constitution.

According to the Statement of Case filed by Counsel for the Plaintiff, John Opoku, Mr. Justice Theodore Adzoe was duly appointed a Justice of the Supreme Court of Ghana with effect from 26th July, 2000 and therefore is a Justice of the Superior Court of Judicature who can only be removed subject to the procedure specified in Article 146 of the Constitution.

Mrs. Adzoe is claiming a court declaration that on a true and correct interpretation of Articles 146 (2) and 154 of the 1992 Constitution, the purported decision of the Judicial Council to "retire" Justice Theodore Adzoe, Justice of the Supreme Court of Ghana, "on medical grounds" with effect from 1st January, 2006 is null and void and of no effect.

Additionally, plaintiff is seeking a further declaration that the direction to Justice Theodore Adzoe "to give vacant possession of your bungalow and other properties of the Service on or before 1st January, 2006" and the president's approval to retire Justice Adzoe on medical grounds as recommended by Judicial Council are null and void and of no effect among others.

The Statement further referred to a letter dated November 30th 2005, signed by the Judicial Secretary, an administrative official under the Chief Justice, in which it was conveyed to Justice Adzoe, a purported decision of the Judicial Council at its meeting held on 23rd November, 2005 to "retire" him "on medical grounds, in accordance with Article 146(1) of the 1992 Constitution and the Judicial Service Regulations 1983 (L.I. 53(1), with effect from 1st January, 2006."

The plaintiff claimed that the purported decision of the Judicial Council amounted to an attempt to remove Justice Adzoe as Justice of the Superior Court and in that circumstance was null and void, since it violates Article 146, which establishes the only lawful procedure for the removal of a Justice of the Superior Court of Judicature.

According to plaintiff, instead of the letter from the Judicial Secretary referring to Article 146(2) of the 1992 Constitution, it referred to "Judicial Service Regulations, 1983 (L.I. 53)" which do not in any case exist.

The existing Judicial Service Regulations of 1963 (L.I. 319), in Regulation 53(1), deal with retirement for medical reasons of "a holder of a judicial service post on pensionable terms" which is defined in the Regulations.

In this instance, a Justice of the Superior Court of Judicature is not included.

The Statement of Case claims that the Chief Justice acted in violation of his oath of office according to which: "I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana" (Constitution, Second Schedule).

According to counsel for the plaintiff, upon Justice Adzoe responding to the letter of November 30th 2005 from the Judicial Secretary pointing out that the constitutional provisions for the removal of a Justice of the Superior Court of Judicature were being infringed, a further letter was sent by the Judicial Secretary, dated January 17, 2006, notifying him that "even though the [Judicial] Council did not agree with your interpretation of the provisions, under the constitution, it decided to put the matter to rest by forwarding the Medical Report of the Medical Board, together with the decision of the Council, to the President for his consideration." This new letter went on to state; "The President has approved the recommendations of the Judicial Council and has consequently directed that you are retired from the Service on Medical grounds".

Additionally, on the issue of notice, it has been decided that your retirement should take effect three (3) months from the date of the President's decision on January 5, 2006, by which time you are expected to vacate the official residence". The next paragraph of the letter then stated: "your retirement, therefore, takes effect from 5th May, 2006."

The Statement of Case noted that the interpretation of the Judicial Council of the provisions of Article 146 of the Constitution, on the basis of which they sought "to put the matter to rest " in the manner the letter stated, "is erroneous and ought to be declared as such." According to the Mrs. Adzoe, the Judicial Council "misled the President regarding the constitutional procedure for the removal of a Justice of the Superior Court of Judicature" and, further, the sending of an unconstitutional decision of the Judicial Council "to the President for his consideration", is itself unconstitutional and, therefore, null and void and of no effect.

Neither the Judicial Council nor the President could thus validate the null act of the Judicial Council in purporting to remove Justice Adzoe.

Advancing in her arguments, plaintiff also indicated that the President was misled into believing there was legal authority in the Judicial Service Regulations for the purported retirement of Justice Adzoe. Based on all this, plaintiff contended that "the action of the President in purporting to approve "recommendations of the Judicial Council" for the "retirement" of Justice Adzoe when the Judicial Council has no power to make such recommendations and the President has no power to consider, much less approve them, is null and void and of no effect, being in violation the provisions of the Constitution, particularly Article 146(2) and Article 154 as well as Article 127(1)."

Counsel for plaintiff emphasised that without compliance with the procedure provided for in Article 146 of the constitution in respect of the removal of a Justice of a Superior Court of Judicature, as is recently being done in respect of the Chief Justice himself, the President has no power to remove a Justice of the Superior Court of Judicature or to approve a recommendation for removal of such Justice.

According to plaintiff's claim, there has been no compliance with the procedure provided for in Article 146 in the case of Justice Adzoe and until recourse is made to those provisions and a decision to remove him lawfully reached under the terms of that provision, Justice Adzoe remains in office as Justice of the Supreme Court with all the entitlements of that office as stipulated in Article 127 (5) of the Constitution.