YAARI VRS THE ATTORNEY GENERAL & MINISTER & ANOTHER (C13/60/2021) [2024] GHAHC 186 (31 January 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON WEDNESDAY THE 31ST DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. C13/60/2021 BOMBAAR YAARI PLAINTIFF VRS 1. THE ATTORNEY GENERAL & MINISTER DEFENDANTS OF JUSTICE & ATTORNEY GENERAL 2. GHANA EDUCATION SERVICE JUDGMENT COMPULSORY RETIREMENT OF PLAINTIFF BEFORE ATTAINING SIXTY (60) PLAINTIFF’S CLAIMS YEARS The Plaintiff’s claims against the Defendants jointly and severally per his writ of summons filed on 15th June, 2021 are for; a. A declaration that, the termination of the employment of the Plaintiff by retiring him prior to his statutory age is unlawful. b. A declaration that the decision of the Ghana Education Service (G.E.S) to compulsory (sic) retire the Plaintiff nine (9) years prior to his statutory retirement age is unlawful. 1 c. An order of the Court directed at the G.E.S to re-instate the Plaintiff and pay all his outstanding salaries, entitlements and or his benefits. d. Monetary compensation to the Plaintiff for the unlawful termination of his employment by compulsory (sic) retiring him prior to his statutory retirement age. Before mounting this action against the Defendants, the Plaintiff caused his lawyer to write to the Defendants about his intention to mount this action pursuant to the State Proceedings Act, 1998 (Act 555) per exhibit “M” Statutory Notice of Intention to Commence Suit against the Ghana Education Service under Section 10 of the State Proceedings Act, 1998 (Act 555). THE PLAINTIFF’S CASE The Plaintiff’s Writ of Summons, Statement of Claim, Reply, Witness Statement and Cross -Examination was essentially merged. The Plaintiff’s case is that he is a teacher by profession. The 2nd Defendant is a government institution mandated to provide quality formal education to all children of school going age in Ghana. The Plaintiff gave his date of birth as 26th March, 1968 born at Tanchara in the Lawra District of the Upper West Region of the Republic of Ghana. Neither birth certificate nor baptismal certificate was obtained at his birth because he came from a pagan home and his parents were not formally educated. He obtained his basic education at Tanchara Primary and Middle Schools from 1974 to 1984 per exhibit “H” a Letter dated 15th June, 2020 from Tanchara – Kunyukuo M.A Primary School, signed by Buunaaim John Vianey, Headteacher. He was admitted to Sunyani Technical Institute and completed in the year 1989. In 1991 he was admitted to Nusrat Jahan Ahmadiyya Training College in Wa and he successfully obtained his professional Certificate “A”, a four year course from 1991 to1994 per exhibit 2 ‘H1”, a letter dated 17th June, 2020 from Nusrat Jahan Ahmadiyya College of Education, Wa, letter of attestation Mr. Bombaar Yaari which confirms the Plaintiff’s registration number as 2800/1995 signed by Saeed Salih Vice Principal of the College. On 1st October, 1994 the 2nd Defendant posted him to Zabrama Roman Catholic Primary School as a teacher in the Atebubu District where he taught from 1994 to 2002. He was issued with Staff number 0315516 per exhibit “A” a letter dated 1st October, 1994 confirming his posting as newly trained teacher by the G.E.S to Zabrama Roman Catholic Primary School signed by Demuyakor C.K District Director of Education, Atebubu. On 30th August, 1996 the 2nd Defendant confirmed his appointment as teacher per exhibit “B” a letter from G.E.S confirming appointment of Plaintiff as teacher on 30th August, 1996 signed by Demuyakor C.K District Director Atebubu. He was subsequently transferred to Sunyani, Benu Nkwanta Roman Catholic School where he taught until 2016. He was transferred to Nanketewa Roman Catholic School where he was teaching until his employment was unlawfully terminated by the 2nd Defendant. In the year 2012 during the biometric registration when he presented his personal details to be captured, he found out that his date of birth has surprisingly been altered from 26th March, 1968 to 26th March, 1959 per the records of the 2nd Defendant. Upon drawing the attention of the officials conducting the biometric registration, his date of birth was corrected to 26th March, 1968 after providing the relevant documents and his biometric certificate bears his date of birth as 26th March, 1968. However, in the year 2018 he found his name in the list of teachers due for retirement posted by the 2nd Defendant, exhibit “C”. He petitioned the Director General of the Ghana Education Service (G.E.S) through the Regional Director of the Ghana Education Service Brong Ahafo Region for his date of birth to be rectified per exhibit “D” a letter dated 1st February, 2018. On 25th March, 2020 the head of Legal Unit of the 2nd Defendant responded to his petition and asked him to fulfill the conditions demanded from him previously per exhibit “L” dated 25th March, 2020, signed 3 by Cynthia Storph - Tagoe (Mrs.) Head of Legal Unit, Ghana Education Service for the Director - General. The Regional Director forwarded a document to him entitled “Evaluation of Application for Correction of Date of Birth containing some conditions or documents which he should provide before his date of birth could be changed per exhibit “E” dated 26th March, 2018 and exhibit “E1” both signed by Peter Attafuah, Regional Director B/A. To remedy the situation, he wrote to G.E.S Atebubu Amanten District office where he was first employed by the 2nd Defendant for copies of his personal records but he was informed that his records could not be traced as same were destroyed by termites per exhibit “G” a letter dated 2nd July, 2020 from the G.E.S Atebubu, B/A signed by John Kodwo Amissah, Municipal Director. He further wrote to the Tanchara – Kunyukuo M/A Primary School where he was admitted as a pupil from 1974 – 1984 for copies of his personal records. Per exhibit “H” dated 15th June, 2020, the head teacher, Buunaaim John Vianey, informed him that his records could not be traced as well as all documents and academic records of the school which were destroyed by a storm which unroofed the school some years ago. Exhibit ‘H1” dated 17th June, 2020 from Nusrat Jahan Ahmadiyya College of Education, Wa indicated that with the lapse of time the Plaintiff’s records could not be traced because termites destroyed most of their valuable records. The Plaintiff contends that he could not get all the documents required because birth certificate was not obtained when he was born. According to the Plaintiff his baptismal certificate bears his date of birth as 26th March, 1968. His SSNIT account where he regularly contributes bears 26th March, 1968 as his date of birth. His personal documents in his possession bears his date of birth as 26th March, 1968; per exhibit “J” birth certificate dated 4th November, 2002, exhibit “J1”, Electoral Commission of Ghana Voter Identity Card issued on 7th July, 2020, exhibit “J2”, Government Subvented Employees/Cap 30 Pensioner’s Biometric Registration dated 11th 4 July, 2012, exhibit “J3”, Social Security and National Insurance Trust (SSNIT) identity card, exhibit “J4”, Teachers Fund Statement of Account and exhibit “J5” Baptismal Testimonial dated 26th December, 1990. He forwarded the above documents to the Regional Director but he rejected them. It is the Plaintiff’s case that the 2nd Defendant forcefully retired him per exhibit “F” a letter dated 19th December, 2018 from the Municipal Education Office Sunyani, with the heading “Compulsory retirement” signed by Theresa Kyere - Boakye Mrs., Municipal Director, Sunyani. Per exhibit “F” his retirement was to take effect from 1st April, 2019. The Plaintiff contends that he is unable to receive his retirement benefits from SSNIT because per their records he is supposed to retire on 26th March, 2028. According to the Plaintiff the action and inaction of the 2nd Defendant has rendered him unemployed and occasioned financial difficulties on him. The Plaintiff’s case is that the 2nd Defendant will not reinstate him nor correct the anomaly concerning his date of birth unless compelled by the Court to do so for which reason he filed this suit claiming against the Defendants jointly and severally the reliefs endorsed on his writ of summons. The Plaintiff maintained in his reply to the Defendants’ statement of defence that his employment was unlawfully terminated by the 2nd Defendant as he was not due for retirement and that his retirement age is supposed to be in the year 2028. For the avoidance of doubt, the Plaintiff’s witness statement was admitted as his evidence in chief and he tendered the following documents referred to supra and marked by the Court as exhibits to support his case; 1. Letter dated 1st October, 1994 confirming Plaintiff’s posting as newly trained teacher by the G.E.S to Zabrama Roman Catholic Primary School signed by Demuyakor C.K District Director of Education, Atebubu, exhibit “A”. 5 2. Letter from G.E.S confirming appointment of Plaintiff as teacher on 30th August, 1996 signed by Demuyakor C.K District Director Atebubu exhibit “B”. 3. List of retirees published by the G.E.S in the year 2018 exhibit “C”; Number: Name: Sex: Position: 242509 Mr. Yaari B. Bombaar Male Assistant Director II SSNIT Number: KO56803260012 Date of birth: 26th March, 1959 Year: Station: Region: 2019 Nanketwaa RC Primary Sunyani West 4. Letter dated 1st February, 2018 written by the Plaintiff to Director General of G.E.S through the Regional Director and Municipal Director of G.E.S, Sunyani signed by the Plaintiff, exhibit “D”. 5. Letter from G.E.S Brong Ahafo Region to the Plaintiff dated 26th March, 2018; with the heading; “Correction of Date of Birth Mr. Bombaar Yaari Reg. No. 2800/95. STAFF ID 242509” signed by Peter Attafuah, Regional Director B/A, exhibit “E”. Attached to exhibit “E” is “Evaluation of application for correction of date of birth”, signed by Peter Attafuah Regional Director B/A, exhibit “E1”. 6 6. Letter dated 19th December, 2018 from the Municipal Education Office Sunyani, with the heading; “Compulsory retirement” signed by Theresa Kyere - Boakye Mrs., Municipal Director, Sunyani, exhibit “F”; With reference to the Director – General’s 2019 GES Retiree List for the Brong Ahafo Region, we wish to inform you that you are due to retire compulsorily from the Ghana Education Service with effect from 1st April 2019. Please report at the Directorate for a checklist for the processing of your pension and gratuity not later than three (3) months to the date of your retirement. It is to be noted that your name will automatically go off the payment voucher when your date is due. On behalf of the Director – General, we wish to express our profound appreciation to you in various ways you have contributed to the development of education in the Municipality and Brong Ahafo as a whole. 7. Letter dated 2nd July, 2020 from the G.E.S Atebubu, B/A with the heading; “Re: Application for personal records form/card completed on first entry into the service”, signed by John Kodwo Amissah, Municipal Director, exhibit “G”. 8. Letter dated 15th June, 2020 from Tanchara – Kunyukuo M. A Primary School with the heading; “Records of Admission Mr. Bombaar - Yaari REGD. NO. 2800/1995” signed by Buunaaim John Vianey, Headteacher, exhibit “H”. 7 Letter dated 17th June, 2020 from Nusrat Jahan Ahmadiyya College of Education Wa, with the heading; “Letter of Attestation Mr. Bombaar Yaari REG. No. 2800/1995” signed by Saeed Salih Vice Principal for the Principal, exhibit “H1” 9. Exhibit “J” series; Certified copy of entry in register of births of the Plaintiff dated 4th November, 2002 with Plaintiff’s date of birth as 26th March, 1968, exhibit “J”. Electoral Commission of Ghana Voter Identity Card in the name of Bombaar Yaari with his date of birth as 26th March, 1968 issued on 7th July, 2020, exhibit “J1”. Government Subvented Employees/Cap 30 Pensioners Biometric Registration dated 11th July 2012 in the name of Bombaar Yaari with his date of birth as 26th March, 1968, exhibit “J2”. Social Security and National Insurance Trust (SSNIT) Identity Card in the name of Bombaar Yaari with his date of birth as 26th March, 1968, exhibit “J3”. Teacher’s Fund Statement of Account from 1/5/1998 – 30/12/2008 in the name of the Plaintiff with his date of birth as 26th March, 1968, exhibit “J4”. Baptismal Testimonial of the Plaintiff with the Plaintiff’s age as 26th March, 1968, exhibit “J5”. 10. Letter written by Plaintiff to the Director General of Ghana Education Service through the Regional and Municipal Directors of Ghana Education Service Bono Region dated 2nd December, 2019, with the heading; “Re – Petition to the Director 8 General (Ghana Education Service) on the Pre- Retirement of Mr. Bombaar Yaari REG – No: 2800/95 STAFF ID: 242509 signed by the Plaintiff, exhibit “K”. 11. Response from Head of Legal Unit of the 2nd Defendant dated 25th March, 2020, Re: Petition to the Director General (Ghana Education Service) on the Pre-retirement of Mr. Bombaar Yaari STAFF ID NO.: 242509, Regd No. 2800/95, signed by Cynthia Storph – Tagoe (Mrs.) Head of Legal Unit, exhibit “L”. 12. Letter to the 1st Defendant about Plaintiff’s intention to commence suit against G.E.S under section 10 of the State Proceedings Act, 1998 (Act 555) dated 24th February, 2021 signed by Ansah Ankomah, Counsel for Plaintiff, exhibit “M”. 13. The Plaintiff tendered exhibit “N” series through the Defendant’s witness which the 2nd Defendant produced pursuant to Court Order dated 8th December, 2023, per letter dated 20th December, 2023 signed by Peter Kumi Regional Manager through the Defendant’s witness. The said exhibits included the Plaintiff’s personal records which captures his date of birth in the 2nd Defendant’s custody from the Catholic Educational Unit Office, Sunyani as 26th December, 1968 as follows; Exhibit “N1” is a covering letter signed by Counsel for Defendants and filed on 11th January, 2024. Exhibit “N2” is a letter dated 20th December, 2023 from the G.E.S Catholic Education Unit B/A signed by Peter Kumi (Mr.) Regional Manager. 9 Exhibit “N3” is “G.E.S Personal Particulars Application for Study Leave” which has the Plaintiff’s date of birth as 26th December, 1968. The form was filled on 14th April, 1998 when the Plaintiff was 29 years old. Exhibit “N4” is “Personal Record of Members of Ghana Education Service Teaching and Non - Teaching Personnel” dated 14th April, 1998 which has the Plaintiff’s date of birth as 26th December, 1968. Exhibit “N5” is “Ghana Education Service Personal Particulars Application for Study Leave” dated 16th June, 1997 with Plaintiff’s date of birth as 26th December, 1968 when the Plaintiff was 29 years old. Exhibit “N6” is “Ghana Education Service Posting of Newly – Trained Teachers – September 1994” with Plaintiff’s date of birth as 26th December, 1968. Exhibit “N9” SSNIT Statement of Account with Plaintiff’s date of birth as 26th March, 1968. Exhibit “N11”, “Personal Record of Members of the Ghana Education Service Teaching and Non - Teaching Personnel” dated 17th December, 2007 with Plaintiff’s date of birth as 26th March, 1968. Exhibit “N12”, “Personal Record of Members of the Ghana Education Service (Teaching and Non – Teaching Personnel” dated 27th August, 2014 shows the Plaintiff’s date of birth as 26th March, 1968. 10 Exhibit “N14”, “Ghana Education Service Performance Appraisal of Heads of Basic Schools” has the Plaintiff’s date of birth as 26th March, 1968. Exhibits “N7”, “N8” and “N10”, are part of exhibits the Plaintiff tendered as exhibits “J2”, “J5” and “J” in support of his case. It is therefore not necessary to repeat them. The Plaintiff testified without calling a witness. THE DEFENDANTS’ DEFENCE The Defendants entered appearance to the suit on 23rd June, 2021 through their Counsel who filed their statement of defence on 22nd July, 2021. The Defendants’ statement of defence, witness statement and cross – examination was essentially merged. Apart from admitting the 2nd Defendant’s mandate, the Defendants denied the Plaintiff’s claims regarding his date of birth, the fact that he is a trained teacher and the schools he was previously posted to. It is the 2nd Defendant’s case that the personal records in their data base has the Plaintiff’s date of birth as 26th March, 1959 per exhibit “2” Extract from 2018 Retiree List. According to the 2nd Defendant details of employees are captured based on documentary evidence employees provide during the biometric registration which is solely done by the Ministry of Finance. According to the Defendants it is a common practice of the 2nd Defendant to publish the year before, list of retirees who are due for retirement which the 2nd Defendant did per exhibit “2”. The Defendants contend that the Regional Director of education at the Regional Directorate does not have the mandate to approve, change or correct the date of birth of staff of the 2nd Defendant. What the Regional Directorate can do is to forward documents provided by employees who want to correct their dates of birth to the Director General in accordance with the criteria set by the Public Service Commission per exhibit “11” 11 dated 23rd January, 2018 from the Public Service Commission with the heading “New criteria provided for the correction of Date of Birth by the Public Service Commission” signed for the Secretary by Kwesi Ohemeng - Agyei Director RIME/HRMIS Project Manager, Public Services Commission, Accra. The Defendants’ case is that the Plaintiff failed to provide the necessary documents required for the correction of his date of birth per exhibit “12” dated 26th March, 2018, signed by Peter Attafuah Regional Director in response to Plaintiff’s letter dated 1st February 2018 and exhibit “12A” evaluation report from the committee tasked to evaluate application for correction of date of birth also signed by Peter Attafuah Regional Director. The Defendant tendered the Plaintiff’s letter dated 1st February, 2018 for change of his date of birth with seven (7) documents attached as exhibit “3” series. The Plaintiff by a letter dated 6th August, 2019, per exhibit “13” wrote to the Director General explaining why he could not produce the requisite documents for the correction of his date of birth. According to the Defendants the Plaintiff came to the Regional Education Directorate in the year 2019 to explain that he does not have the necessary documents required for the correction of his date of birth so the Regional Director should write a letter to the Director General to give him audience. The Regional Director per letter dated 26th March, 2018 responded to the Plaintiff’s letter dated 1st February, 2018 and attached a copy of an evaluation report from the Committee tasked with evaluating applications for correction of date of birth and copied the Plaintiff per exhibits “12” and “12A”. The Defendants contend that per another letter dated 2nd December, 2019 the Plaintiff again wrote to the Director General through the Regional Director explaining why he could not produce the requisite documents for correction of his date of birth, exhibit “14”. It is the Defendants’ case that per records available to the 2nd Defendant the Plaintiff was due for retirement. The Defendants contend that the failure of the Plaintiff to produce the necessary records for correction of his date of birth as prescribed by the Public Service 12 Commission should not impute liability on the 2nd Defendant. They attached exhibit “11”, New Criteria for the correction of Date of Birth per letter dated 23rd January, 2018 by the Public Service Commission and noted that the Plaintiff could not produce documents to be issued within a specific time frame as required by the Public Service Commission although he provided a Baptismal Testimonial, Birth Certificate, SSNIT records and Personal Record Form. The 2nd Defendant’s case is that it has not treated the Plaintiff unjustly and that any financial difficulties the Plaintiff is facing following his retirement is not its doing but rather due to the failure of the Plaintiff to provide the documents required for the correction of his date of birth within a specific time frame. The Defendants contend that owing to the Plaintiff’s failure to provide documents that conform with the Public Service Commission criteria for correction of date of birth, G.E.S could not grant Plaintiff’s application for the correction of his date of birth. The 2nd Defendant contends that per further records procured from the Catholic Educational Unit Office Sunyani pursuant to Court order, the personal records of the Plaintiff gave his date of birth as 29th December, 1968. According to the 2nd Defendant per records available to the G.E.S the Plaintiff was due for retirement and he was duly retired from active service and therefore he cannot be reinstated. It is the Defendants’ case that the Plaintiff is not entitled to his reliefs being sought. For the avoidance of doubt the Defendants testified through the Public Relations Officer of the 2nd Defendant Bono Region, Luke Mensah who had the witness statement of the Defendants admitted as their evidence in chief and attached the following documents marked by the Court as exhibits to support the 2nd Defendant’s case. 1. Exhibit “1” is Personal Record of Members of the Ghana Education Service (Teaching and non - teaching personnel). 13 2. Extracts from 2018 Retiree list which states the Plaintiff’s date of birth as 26th March, 1959, exhibit “2”. 3. Plaintiff’s letter with 7 documents attached dated 1st February, 2018 with the heading; “Correction of Date of Birth” addressed to the Director General G.E.S through the Regional and Municipal Directors of G.E.S Sunyani – exhibit “3”. Apart from the Statutory Declaration, exhibit “7” dated 3rd February, 2012 deposed to by the Plaintiff the rest of the attachments to exhibit “3” notably exhibit ”4” Government Subvented Employees Cap 30 Pensioners Biometric Registration, exhibit “5”, baptismal testimonial of Plaintiff , exhibit “6”, birth certificate of Plaintiff, exhibit “8”, SSNIT statement of Account of Plaintiff, exhibit “9”, Posting of Newly Trained Teachers - September 1994, exhibits “10A” and “10B” Teacher’s Fund Statement of Account of Plaintiff were tendered by the Plaintiff. Exhibit “3” stated as follows; Through (sic) the biometric registration exercise indicated that I was born in 1959. On the contrary my actual date of birth is 26th March, 1968. I was asked to bring the necessary documents for the correction which I did. However, my recent checked (sic) at the Ghana Education Service headquarters indicates that the mistake is not corrected yet. I am therefore applying through your office for my date of birth to be corrected from 1959 to 26th March, 1968….” 4. New criteria provided for the correction of Date of Birth by the Public Service Commission Accra dated 23rd January, 2018 and signed for the Secretary by Kwesi 14 Ohemeng - Agyei Director RIME/HRMIS Project Manager, Public Services Commission, Accra, exhibit “11”. 5. Letter dated 26th March, 2018 by Peter Attafuah Regional Director in response to Plaintiff’s letter dated 1st February, 2018 exhibit “12”. “Evaluation of Application for correction of date of birth, Bombaar Yaari REG. NO. 2800/95 STAFF ID 242509” signed by Peter Attafuah Regional Director B/A, exhibit “12A”. 6. Plaintiff’s letter to the Director General G.E.S dated 6th August, 2019 with the heading; Petition to the Director General (Ghana Education Service) on the Pre- retirement of Mr. Bombaar Yaari REG. NO. 2800/95 STAFF ID 242509 signed by the Plaintiff, exhibit “13”. 7. Plaintiff’s letter dated 2nd December, 2019 to the Director General of G.E.S through the Regional and Municipal Directors of G.E.S Sunyani signed by the Plaintiff, exhibit “14”. 8. Letter dated 25th March, 2020 from G.E.S Headquarters with the heading; “Re: Petition to the Director General (Ghana Education Service) on the pre- retirement of Mr. Bombaar Yaari STAFF ID NO. 242509, REGD NO.; 2800/95” signed by Cynthia Storph – Tagoe (Mrs.) Head Legal Unit for the Director General, exhibit “15”. 15 9. Exhibit “16” dated 24th February, 2021, “Statutory Notice of Intention to commence suit against G.E.S under section 10 of the State Proceedings Act, 1998 (Act 555)”. 10. The Defendants produced further documents from the Catholic Education Unit of the Ghana Education Service Brong Ahafo. The Plaintiff tendered the said document through the Defendants’ witness. Same is captured as exhibit “N” series of the Plaintiff. It is the Defendant’s case that the Plaintiff is not entitled to his reliefs. The Defendants testified through the Public Relations Officer of the 2nd Defendant without calling a witness. BY COURT; Before the Plaintiff mounted this action against the Defendants, he complied with section 10 of the State Proceedings Act, 1998 (Act 555) by giving the requisite notice to the 1st Defendant. The said section states as follows; 10(1) A person who intends to institute civil action against the Republic shall serve on the Attorney-General a written notice of that intention at least thirty days before the commencement of the action. (2) The notice under subsection (1) shall be served by the claimant or by the lawyer or agent of the claimant (a) on the Attorney-General or an officer of the Attorney-General’s Department, or (b) in a case where action is to be commenced in a Region, on an officer of the Attorney-General’s Department in that Region. 16 (3) The notice shall indicate the cause of action, the name and address of the intended claimant and the relief sought. ISSUES SET DOWN FOR TRIAL The issues set down for trial by the Court differently constituted on 29th November 2021 are as follows; 1(a)Whether or not the Plaintiff is entitled to the reliefs which he is seeking. (b) Whether or not the retiring of the Plaintiff prior to his statutory age is unlawful. (c) Whether or not the Plaintiff has attained the retirement age. (d) Whether or not the SSNIT account bears 26th day of March 1968 as his actual date of birth. (e) Any other issue raised by the pleadings. ADDITIONAL ISSUE 1(i) Whether or not the Plaintiff was duly retired. It is trite law that the Court is not bound by the issues set down for trial by the parties provided the issues adopted by the Court would effectively resolve all the issues raised by the parties. For the sake of expediency, I would summarize the issues set down for trial into two issues namely; 1. Whether or not the retirement of the Plaintiff prior to his statutory age of sixty (60) years by the 2nd Defendant is unlawful. 2. Whether or not the Plaintiff is entitled to his reliefs. The Court will conveniently discuss the two issues enbloc. The Plaintiff’s case is that he is a teacher by profession born on 26th March, 1968 at Tanchara in the Lawra District of 17 the Upper West Region of the Republic of Ghana. Neither birth certificate nor baptismal certificate was procured at his birth because he came from a pagan home and his parents were not formally educated. He obtained his basic education at Tanchara primary and middle schools from 1974 to 1984. He tendered exhibit “H” dated 15th June, 2020 a letter from the head teacher of Tanchara Kunyukuo M/A Primary School Babile – Lawra in the Upper West Region addressed to the Director General of the Ghana Education Service. The letter confirms that the Plaintiff was admitted in the said school as a pupil in 1974 and he completed in 1984 but his records of admission could not be traced because the school was unroofed by a storm some years ago which destroyed all documents including academic records of the school. In 1991 he was admitted to Nusrat Jahan Ahmadiyya Training College in Wa and he successfully obtained his professional Certificate “A”, a four year course in 1994 per exhibit “H1” dated 17th June, 2020 from the Vice – Principal of Nusrat Jahan Ahamadiyya College of Education Wa with the heading; “Letter of Attestation Mr. Bombaar Yaari – Reg. No. 2800/1995” to certify that the Plaintiff was admitted to the Nusrat Jahan Ahamidiyya Muslim Teacher Training College, Wa in 1991 and completed successfully in 1994. However, with the lapse of time the Plaintiff’s records could not be found because their archives room was infested by termites which destroyed most of their valuable records in the college. On 1st September, 1995 the appointment of the Plaintiff as a certified Teacher was confirmed by a letter dated 30th August, 1996 with the heading; “Confirmation of Teacher Appointment – 1995”. The District Director of G.E.S Atebubu, Demuyakor C. K signed the letter, exhibit “B”. The Plaintiff was subsequently transferred to Sunyani, Benu Nkwanta Roman Catholic School where he taught until 2016. Thereafter he was transferred to Nanketewa Roman Catholic School where he was teaching until his employment was unlawfully terminated by the 2nd Defendant. On 1st October, 1994 the 18 2nd Defendant posted him to Zabrama Roman Catholic Primary School as a teacher in the Atebubu District where he taught from 1994 to 2002 and he was issued with Staff number 0315516 per exhibit “A”. The Plaintiff attached exhibit “A” with the heading; Posting of Newly Trained Teachers dated 1st October, 1994. The said letter indicates that the Plaintiff was posted to Zabrama RC Primary School as class teacher. The letter was signed by the District Director of Education Atebubu, Dumeyakor C.K. He tendered exhibit “G” a letter dated 2nd July 2020 from the Municipal Director Atebubu –Amanten, signed by John Kodwo Amissah in response to the Plaintiff’s letter dated 30th June, 2020 requesting for the Plaintiff’s personal records. The heading of the letter is; “Re: Application for Personal Records Form/Card Completed on First Entry into the Service”, states as follows; With reference to your letter dated 30th June, 2020 on the above subject matter, I am sorry to inform you that upon thorough searched (sic), your personal record form could not be traced/found. Perhaps, it was among the old documents that were destroyed by the termites some years ago. It is my humble appeal that, whoever (sic) requesting for this, should give you the necessary assistance since you were a teacher at Zabrama R/C Primary from 1994 to 2002, which was then, under Atebubu District. According to the Plaintiff his personal records bear his date of birth as 26th March, 1968. He tendered certified copy of a birth certificate he procured years after his birth on 4th November 2002 as exhibit “J” with his date of birth as 26th March, 1968. Government/Subvented Employees/ Cap 30 Pensioners Biometric Registration, exhibit “J2” bears his date of birth as 26th March, 1968. Social Security and National Insurance Trust (SNNIT) identity card of the Plaintiff exhibit “J3” has SSNIT number of the Plaintiff as K056803260012 and his date of birth as 26th March, 1968. Baptismal Testimonial obtained years after his birth, exhibit “J5” with his date of birth as 26th March, 1968. Exhibit “J5” confirms that the Plaintiff was born at Tanchara on 26th March, 1968 and 19 baptized on 26th December, 1990. He was admitted to Sunyani Technical Institute and completed in the year 1981. In the year 2012 during the biometric registration when he presented his personal details to be captured, he found out that his date of birth has surprisingly been altered from 26th March, 1968 to 26th March, 1959 per the records of the 2nd Defendant. Upon drawing the attention of the official conducting the biometric registration, his date of birth was corrected to 26th March, 1968 after producing the necessary documents requested by the officials. However, in the year 2018 he saw his name among the list of teachers due for retirement per exhibit “C”. He wrote to the then Director General of the Ghana Education Service through the Regional Director of the Ghana Education Service Brong Ahafo Region for his date of birth to be rectified. The Regional Director forwarded a document to him entitled “Evaluation of Application for Correction of Date of Birth containing some documents which he had to provide before his date of birth could be changed. He could not get all the documents required. It is the Plaintiff’s case that the 2nd Defendant forcefully retired him even though he was not due for retirement. Following his petition to the Director General of the 2nd Defendant to draw his attention to injustice being meted out to him, on 25th March, 2020 the head of Legal Unit of the 2nd Defendant responded to his petition and asked him to fulfill the conditions demanded from him previously. Exhibit “K” the Plaintiff’s petition to the Director General of G.E.S is titled; “Re – Petition to the Director General (Ghana Education Service) on Mr. Bombaar Yaari Reg. No. 2800/95 ID: 242509” dated 2nd December, 2019 through the Regional and Municipal Director of G.E.S, Sunyani Bono Region. The Plaintiff pleaded with the Director General to consider his petition as he could not tell who changed his date of birth to 1959 instead of 1968. It is the Plaintiff’s case that he is unable to receive his retirement benefits from SSNIT because per their records he is supposed to retire on 26th March, 2028. According 20 to the Plaintiff the action and inaction of the 2nd Defendant has rendered him unemployed and occasioned financial difficulties on him. The Plaintiff’s case is that the 2nd Defendant will not reinstate him nor correct the anomaly concerning his date of birth unless compelled by the Court to do so for which reason he filed this suit claiming against the Defendants jointly and severally the reliefs endorsed in his writ. The Defendants basically denied the Plaintiff’s claims in their statement of defence. They contend that details of personal record of employees are captured by documentary evidence employees provide during the biometric registration which is solely done by the Ministry of Finance. According to the Defendants it is a common practice of the 2nd Defendant to publish the year before, list of employees who are due for retirement and the 2nd Defendant complied by posting exhibit “2”, “Extract from 2018 Retiree List”. The Defendants contend that the Regional Director of education at the Regional Directorate does not have the mandate to approve, change or correct the date of birth of staff of the 2nd Defendant. What the Regional Directorate can do is to forward documents provided by the employees who want to correct their dates of birth to the Director General in accordance with the criteria set by the Public Service Commission. According to the Defendants the Plaintiff failed to provide the necessary documents required for the correction of his date of birth. He went to the Regional Education Directorate in the year 2019 to explain that he did not have the necessary documents required for the correction of his date of birth so the Regional Director should write a letter to the Director General to give him audience. The Regional Director complied and wrote to the Director General and copied the Plaintiff. The Defendants tendered exhibits “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9” and “10” to support their case. Exhibit “2” is the Extract from 2018 Retirees List. Exhibit “3” is the Plaintiff’s letter with 7 documents attached dated 1st February, 2018 to the Regional Director of 21 Education for change of his date of birth. Exhibit “11” is the New criteria provided by the Public Service Commission for amending records at G.E.S for correction of date of birth of public servants, dated 23rd January 2018. Exhibits “12” and “12A” is the Regional Director’s response to the Plaintiff’s letter dated 26th March, 2018 with an evaluation report from a committee tasked with evaluating applications for correction of date of birth of employees of the 2nd Defendant. The Defendants tendered a letter the Plaintiff wrote exhibit “14” dated 2nd December, 2019 to the Regional Director explaining why he could not produce all the requisite documents for correction of his date of birth. Exhibit “15”, is a letter dated 25th March, 2020 by the Head of Legal Unit of the 2nd Defendant in response to Plaintiff’s letter dated 2nd December, 2019 asking the Plaintiff to provide the requisite documents. The Defendants contend that owing to the Plaintiff’s failure to provide documents that conform with the Public Service Commission criteria for correction of date of birth of employees of the 2nd Defendant, G.E.S could not grant Plaintiff’s application for the correction of his date of birth. According to the Defendants the failure of the Plaintiff to produce the necessary records for correction of his date of birth as prescribed by the Public Service Commission should not impute liability on the 2nd Defendant and that the 2nd Defendant has not treated the Plaintiff unjustly. The Defendants’ case is that any financial difficulties the Plaintiff is facing following his retirement is not their doing but rather due to the failure of the Plaintiff to provide the documents required for the correction of his date of birth. It is the Defendants’ case that per records available to the 2nd Defendant the Plaintiff was due for retirement and he was accordingly retired by the 2nd Defendant and that the Plaintiff is not entitled to the reliefs claimed and therefore he cannot be reinstated by the 2nd Defendant. 22 The Plaintiff’s case is that the 2nd Defendant retired him nine years earlier than his retirement and that his retirement was unlawful. The Defendants contend that the Plaintiff was due for retirement and that the 2nd Defendant never altered the Plaintiff’s records. The Plaintiff attached exhibit “F” a letter dated 19th December, 2018 signed by Theresa Kyere – Boakye (Mrs.) Municipal Director Sunyani addressed to the Plaintiff which states the Plaintiff’s retirement date as 1st April, 2019. The Defendants however could not produce any document in their custody to confirm that the Plaintiff was due for retirement on the date they retired him on 1st April, 2019. The Defendants’ witness tendered the retirees list as exhibit “2” (exhibit “C” by Plaintiff) which states the plaintiff’s personal details as follows; Number: Name: Sex: Position: 242509 Mr. Yaari B. Bombaar Male Assistant Director II SSNIT Number: KO56803260012 Date of birth: 26th March, 1959 Year: Station: Region: 2019 Nanketwaa RC Primary Sunyani West The only document the 2nd Defendant had was the retirees list which was prepared by the 2nd Defendant who put the date of birth of the Plaintiff at 26th March, 1959 but the 2nd Defendant could not trace 26th March, 1959 to the Plaintiff. Among the documents the 2nd Defendant had in its custody that it tendered and documents the Plaintiff tendered, there was no document to confirm that the Plaintiff gave the Defendants 26th March, 1959 as 23 his date of birth. All documents the Plaintiff tendered in Court in support of his case, none of the documents bear 1959 as his date of birth. The Court is therefore of a maximum conviction that the date 1959 based on which the Plaintiff was retired by the 2nd Defendant did not emanate from the Plaintiff. The Defendants did not tender any document emanating from the Plaintiff with 1959 as the Plaintiff’s date of birth. Since the 2nd Defendant prepared exhibit “C” which does not match with any of the documents tendered by the parties in support of their cases the Court is of a maximum conviction that the date 26th March, 1959 was a mistake that emanated from the 2nd Defendant. The 2nd Defendant relied on exhibit “C” which it authored to retire the Plaintiff. The Plaintiff did not prepare the retirees list exhibit “C” but the 2nd Defendant did. The Court’s conclusion is that since the retirees list emanated from the 2nd Defendant without any trace to the Plaintiff, the error regarding the Plaintiff’s date of birth as 26th March, 1959 emanated from the 2nd Defendant who must therefore correct that error. Counsel for Defendants argued in an address filed on behalf of the Defendants that the Plaintiff’s document provided from the Teacher’s Fund from 1st June, 1998 to 31st December, 2014 being one of Plaintiff’s own documents attached to his letter dated 1st February, 2018, included exhibit “3”. According to Counsel, exhibit “3” has the Plaintiff’s date of birth as 26th March, 1959, a document coming from the Plaintiff not from the 2nd Defendant. The Court takes notice that exhibit “3” dated 1st February, 2018 was written by the Plaintiff but it is not claiming that the Plaintiff was born in 1959 as claimed by Counsel for Defendants. For the avoidance of doubt the letter dated 1st February, 2018 addressed to the Director General of the Ghana Education Service states as follows; Through (sic) the biometric registration exercise indicated that I was born in 1959. On the contrary my actual date of birth is 26th March 1968. I was asked to bring the necessary documents 24 for the correction which I did. However, my recent checked (sic) at the Ghana Education Service headquarters indicates that the mistake is not corrected yet. I am therefore applying through your office for my date of birth to be corrected from 1959 to 26th March 1968….” From the content of the letter it is not true that the Plaintiff gave his date of birth as 26th March, 1959 as claimed by Counsel for Defendants. Counsel referred to several cases on burden of proof and stated that when the Plaintiff realized the error in his date of birth in 2012, he should have taken the necessary steps to correct it by following the laid down procedure by the Public Service Commission. Upon the Plaintiff’s failure to take the necessary steps his date of birth in the 2nd Defendant’s records is 26th March, 1959 and the 2nd Defendant accordingly retired him per that date. Counsel added that a change of date of birth of the Plaintiff during the biometric registration did not reflect in the 2nd Defendant’s system because it was done by the Ministry of Finance. The Plaintiff did not rectify his record until 2018 when the Public Services Commission (PSC) provided new method for rectifying date of birth with effect from the year 2017. Counsel argued that apart from the documents the Plaintiff provided which could not meet the Public Service Commission criteria the Plaintiff could have provided his passport issued twenty five (25) years after his birth, educational records at elementary or secondary school, educational certificate with birthdates, personal record forms completed on first entry into G.E.S but the Plaintiff could not provide any of the above documents. The Plaintiff’s case according to Counsel is that his personal records from the college of education and his card from his date of first entry into the 2nd Defendant’s institution were destroyed by termites. Counsel for Defendants argued that the Public Service Commission Act of 1994 is to provide appropriate systems and procedures for the management of personal records within the public service. What the Plaintiff should have done according to Counsel is to have petitioned the Public Services Commission that issued the directive for them to consider his reasons for not meeting their directive. 25 The Court is of a contrary view. It was proper that the Plaintiff petitioned the Public Services Commission through the 2nd Defendant because the criteria was routed through the 2nd Defendant to ensure compliance among its employees. This is therefore not an issue because if it were an issue the 2nd Defendant would have referred the Plaintiff to the PSC. It is important to note that when the Plaintiff sought audience with the Director General of G.E.S through the 2nd Defendant for the anomaly regarding his date of birth to be corrected the 2nd Defendant gave a deaf ear to the Plaintiff and insisted that the Plaintiff provides the documents required by the PSC before his grievance could be addressed. A careful perusal of the PSC criteria which the 2nd Defendant tendered as exhibit “11”, the Court found that any three of the criteria would suffice. The requirements of the PSC titled; “Criteria for the Correction of Date of Birth” dated 24th January, 2018 signed by the Secretary of the Public Services Commission states as follows; The Commission wishes to remind you that the new criteria for the correction of date of birth, which were agreed upon at a stakeholders meeting on 17th July 2017, became operational on 1st September 2017. 2.Accordingly, any public servant who wants to apply for the correction of his or her date of birth must provide satisfactory documentary evidence from any three (3) of the seven (7) criteria provided below; i. ii. Birth certificate issued at most ten (10) years after birth Personal records form/card completed on first entry into the service iii. SSNIT records (Subject to discretion of MDA) 26 iv. Baptismal Certificate issued at most ten (10) years after birth v. vi. Passport issued at most twenty five (25) years after birth Educational Records (Elementary or Secondary School) vii. Educational Certificates with birthdates 3.The Commission, therefore (sic) to remind you to ensure that all applications for the correction of date of birth for any of your staff that are forwarded to the Commission for consideration meet these agreed criteria 3.Thank you for your usual and maximum cooperation. The Plaintiff’s assertion is that because his birth was characterized by illiteracy and his parents were pagans no birth certificate nor baptismal certificate was obtained upon his birth and the Court has no justifiable reason to doubt this assertion of the Plaintiff. When the 2nd Defendant insisted that he should comply with the PSC criteria before his grievance would be addressed, he did not rest on his oars as claimed by Counsel for Defendants. He sought for his early personal records from the schools he attended but to no avail. The heads of the said schools wrote letters to confirm that the Plaintiff attended those schools but his personal records could not be obtained as same were destroyed by storm and/or termites. Per exhibit “G” a letter dated 2nd July, 2020 from the Municipal Director Atebubu –Amanten, John Kodwo Amissah in response to the Plaintiff’s letter dated 30th June 2020, the heading of the letter is; “Re: Application for Personal Records Form/Card Completed on First Entry into the Service” is as follows; 27 With reference to your letter dated 30th June, 2020 on the above subject matter, I am sorry to inform you that upon thorough searched (sic), your personal record form could not be traced/found. Perhaps, it was among the old documents that were destroyed by the termites some years ago. It is my humble appeal that, whoever (sic) requesting for this, should give you the necessary assistance since you were a teacher at Zabrama R/C Primary from 1994 to 2002, which was then, under Atebubu District. The Plaintiff was informed that his records could not be traced as same was destroyed by a storm which unroofed the school, Tanchara – Kunyukuo MA Primary School Babile – Lawra in the Upper West Region some years ago and destroyed all documents including academic records per exhibit “H” dated 15th June, 2020 and signed by the Headteacher of the school. This state of affairs is rather unfortunate but the situation did not deter the Plaintiff. He took further steps to procure a birth certificate and baptismal certificate more than ten years after his birth which did not meet the PSC criteria. Obviously, a person who did not have birth certificate upon his birth cannot be expected to have a passport. The Plaintiff provided in addition to his birth and baptismal certificate, his voter identity card and most importantly his SSNIT identity card. The 2nd Defendant did not attach any importance to the Plaintiff’s SSNIT identity card which bears 26th March 1968 as the date of birth of the Plaintiff. This implies that per the records of SSNIT the Plaintiff’s date of birth is 26th March, 1968 not 26th March, 1959 which did not tally with any document the parties tendered as exhibits except exhibit “C” which emanated from the 2nd Defendant. The Plaintiff wrote to the Director General through the Regional Director on 1st February 2018 and attached documents bearing his date of birth as 26th March, 1968 to have his date of birth rectified namely; 1. Government Subvented Employee Cap 30 Pensioner’s Biometric Registration form, exhibit “J2” 28 2. Baptism testimonial, exhibit “J5” 3. SSNIT statement of account, exhibit “N9” 4. Certified copy of entry in register of births, exhibit “J” 5. Records from Teachers Fund, exhibit “J4" 6. Posting of newly trained teachers personal record form, exhibit “A” All the above documents bear the Plaintiff’s date of birth as 26th March, 1968. On 2nd December, 2019 the Plaintiff petitioned the Director General of the 2nd Defendant and drew his attention to injustice being meted out to him. Exhibit “K” the Plaintiff’s petition to the Director General titled; “Re – Petition to the Director General (Ghana Education Service) on Mr. Bombaar Yaari Reg. No. 2800/95 ID: 242509” through the Regional and Municipal Directors of Ghana Education Service, Sunyani Bono Region. The Plaintiff pleaded with the Director General to consider his petition as he could not tell who made his date of birth 1959 instead of 1968. On 25th March, 2020 the head of Legal Unit of the 2nd Defendant responded to his petition and asked him to fulfill the conditions demanded from him previously. From the above, it is clear that the Plaintiff made efforts to rectify his date of birth but his documents did not meet the criteria of the PSC. The 2nd Defendant who had the personal records of the Plaintiff in its custody at all material times which confirm that the Plaintiff was born in 1968 was indifferent. The Plaintiff attached exhibit “E”, “Correction of Date of Birth Mr. Bombaar Yaari Reg No. 2800/95 Staff ID 29 242509” and exhibit “E1”, an evaluation report of the 2nd Defendant to support his case. The report has the heading; “Evaluation of Application for Correction of Date of Birth Bombaar Yaari Reg No. 2800/95 Staff ID 242509” The report indicates that per GES standards, the Applicant’s birth certificate should have been issued on or before 1978 but the birth certificate the Applicant provided was issued on 5th (sic) November 2002 with certificate number 111327 with the Applicant claiming his date of birth as 26th March, 1968. The report indicated that the Applicant’s SSNIT statement of account showed 26th March, 1968 as his date of birth which supports the Applicant’s claim and his date of enrolment as 1st October, 1994. That the Applicant provided his baptismal certificate dated 26th December, 1990 instead of before 1978. The Committee found that out of seven documents the Plaintiff provided only three documents namely the SSNIT statement which met the requirement, the Plaintiff’s birth certificate and baptismal certificate did not meet the requirement that they should be issued within a specific period. The Committee noted that an assessment of the Applicant’s documents indicates that from the preliminary evaluation of the committee the Applicant did not qualify to effect a change to his date of birth per G.E.S standards. 30 The evaluation committee members were indicated on the document as (3) Asare Thompson head of HRMD who signed the report and (4) Emmanuel Osei Amponsah Regional Accountant. The Court got the impression that there were other members of the committee at least numbers (1) and (2) because it is not proper to number the members of the committee from (3) without stating numbers (1) and (2). The Regional Director, Peter Attafuah signed the letter but the Regional Accountant did not sign creating the impression that the Committee’s work was not complete. Although the committee evaluated the Plaintiff’s documents there is no evidence that the committee invited the Plaintiff to hear him formally. From the said exhibits it appears that the committee considered just the documents the Plaintiff tendered instead of considering other documents the Plaintiff provided to the 2nd Defendant when he was first employed by the 2nd Defendant. The Court is of a considered view that the committee only did a superficial work and swept the Plaintiff’s issue under the carpet just because the three documents he produced out of the seven documents required did not meet the PSC criteria. The evaluation committee’s report in the Court’s view did not do due diligence. It is therefore not surprising that the numbering of the committee members started with (3) and ended with (4) and the person numbered (4) did not sign the report. It is the Court’s view that the committee should not have limited themselves to only the PSC criteria since the 2nd Defendant had the Plaintiff’s personal records in their custody at all material times. Furthermore, although the committee was not conducting hearings, it would have been proper for the committee to have invited the Plaintiff to hear him regarding the documents he submitted which was not the case. On 17th October, 2023 it took the resilience of Counsel for the Plaintiff to file a motion under Order 21 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) praying the Court to order the 2nd Defendant to produce records in its custody bearing the date of birth of the Plaintiff before the 2nd 31 Defendant upon being ordered by the Court on 8th December, 2023, produced the said personal records which was tendered as exhibit “N” series by the Plaintiff through the Defendants’ witness. Order 21 Rules (10) and (11) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) provides as follows; Order for production to Court 10. At any stage of the proceedings in any cause or matter the Court may, subject to rule 12 (1), order any party to produce to the Court any document in the party's possession, custody or power relating to any issue in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit. Production to be ordered only if necessary 11. (1) An order for the production of any document for inspection or to the Court shall not be made under any of these Rules unless the Court is of opinion that the order is necessary either to dispose fairly of the cause or matter or to save costs. (2) Where, on an application under this Order for production of a document for inspection or to the Court, privilege from the production is claimed or objection is made to the production on any other ground, the Court may inspect the document to decide whether the claim or objection is justified. The Plaintiff’s record from the Catholic Education Unit, Brong Ahafo per letter dated 20th December, 2023, signed by the Regional Manager Peter Kumi, filed on 11th January, 2024 with fourteen (14) pages and certified as true copy are as follows; 32 1. “Ghana Education Service Personal Particulars - Application for Study Leave in Building Technology for three years at the Sunyani Polytechnic” dated 14th April 1998 has the Plaintiff’s date of birth as 26th December 1968, exhibit “N3”. 2. “Regional Records of Members of the Ghana Education Service (Teaching & Non- Teaching Personnel)” dated 14th April 1998 indicates 26th December 1968 as the Plaintiff’s date of birth, exhibit “N4”. 3. “Ghana Education Service Personal Particulars - Application for study leave for Diploma” dated 16th June 1997. Gives the Plaintiff’s date of birth as 26th December 1968, exhibit “N5”. 4. “Ghana Education Service - Posting of Newly Trained Teachers – September 1994”, has the Plaintiff’s date of birth as 26th December 1968, exhibit “N6”. Documents Plaintiff tendered to support his case which were in 2nd Defendant’s custody, produced by the Defendants pursuant to Court order. 5. “Government/Subvented Employees/Cap 30 Pensioners Biometric Registration” has the Plaintiff’s date of birth as 26th March, 1968. 6. Baptismal Testimonial of Plaintiff has his date of birth as 26th March, 1968. 7. Social Security and National Insurance Trust Statement of Account has the Plaintiff’s date of birth as 26th March, 1968. 33 8. Birth Certificate of the Plaintiff obtained on 4th November, 2002 has his date of birth as 26th March, 1968. 9. “Record of Teaching and Non - Teaching Staff of Employees of Ghana Education Service” has the Plaintiff’s date of birth as 26th March, 1968. 10. “Personal record of teaching and non - teaching staff of Ghana Education Service” has Plaintiff’s date of birth as 26th March, 1968. 11. Posting of Newly Trained Teachers - September 1994 has the Plaintiff’s date of birth as 26th March, 1968. 12. “Performance Appraisal of Heads of Basic Schools 2008 – 2009” has the Plaintiff’s date of birth as 26th March, 1968. It is instructive to note that most of the personal records of the Plaintiff in the 2nd Defendant’s custody which had the Plaintiff’s date of birth as 1968 pre - dated the PSC criteria which was issued years later in 2017 and therefore the said criteria could not be applied to the Plaintiff retrospectively to his disadvantage. According to Counsel for Plaintiff in his address, the Plaintiff’s case is that the Defendants forcefully retired him even though he was not due for retirement. Counsel submitted that the Plaintiff led sufficient evidence to establish that he was born on 26th March, 1968 and maintained same under cross - examination. The Plaintiff proved that all efforts to retrieve his personal records from the schools he was initially posted proved futile. According to Counsel the Plaintiff adduced sufficient evidence and attached numerous documents to prove that he 34 is entitled to the reliefs sought. Counsel noted that during cross – examination of Defendant’s witness a lot of inconsistencies and inaccuracies were established. Counsel contends that the personal records of the Plaintiff which the 2nd Defendant was compelled to produce by Court order, exhibit “N” series did not capture the Plaintiff’s date of birth as 1959. That the Defendants’ assertion that the Plaintiff was born on 26th March, 1959 is a bare assertion as the Defendants could not provide any scintilla of evidence to back their assertions. According to Counsel the Defendants failed to lead evidence to prove their assertion and therefore judgment must be entered in favour of the Plaintiff. In the light of the Defendant’s failure to support its assertions by evidence they proffered, Counsel prayed the Court to rule against the Defendants. Counsel argued on the strength of the case of Joseph Essel Biney vs. ECG Civil Appeal No. H1/33/2020 dated 10th February, 2021 and submitted that the date of birth of a person as shown on his birth certificate is presumed to be conclusive unless rebutted by cogent evidence. Counsel submitted that since the Defendants failed to rebut that presumption then the date of birth of the Plaintiff on his birth and baptismal certificates are accurate and authentic. Counsel submitted that since the 2nd Defendant retired the Plaintiff when he was not due for retirement, his retirement was wrongful, unconstitutional and a nullity. Counsel argued that per article 199 (1) of the 1992 Constitution a public officer is supposed to be retired upon attaining sixty (60) years. That the case of Yovuyibor and Another vs. Attorney General and Another [1993 – 94] 2 Ghana Law Report (GLR) 343 supports the fact that a public officer shall retire upon attaining sixty (60) years. Therefore, the premature retirement of the Plaintiff is wrongful and breaches the 1992 Constitution. According to Counsel, the letter dated 19th December, 2018 that retired the Plaintiff prematurely is not only unlawful but also unconstitutional. Counsel noted that all documents provided by the Defendants show that the Plaintiff will be due for retirement 35 in the year 2028. Counsel contends that should the Court hold in favour of the Defendants, the Plaintiff will have no retirement benefits to live on since in the records of SSNIT the Plaintiff is not due for retirement. The Defendants contend that the date of birth of the Plaintiff cannot be adjusted or rectified by an individual but by the Public Service Commission. Counsel for Defendants noted that upon an order of the Court exhibit “N” series from the Municipal Education Unit were provided from the Catholic Education Unit Sunyani. Exhibits “N3” to “N6” provides the date of birth of Plaintiff as 26th December, 1968 and all the said documents bear the Plaintiff’s signature while documents tendered by the Plaintiff bears 26th March, 1968 and therefore the Plaintiff has been inconsistent. The Plaintiff’s evidence of his date of birth do not conform with the required documents by the Public Service Commission. Counsel prays for the Plaintiff’s case to be dismissed with punitive cost. It is the Court’ considered view that at all material times that the Plaintiff lodged a complaint with the 2nd Defendant about the mistake regarding his date of birth based on which he was retired compulsorily nine years earlier than his actual retirement date, the 2nd Defendant had personal records of the Plaintiff in its custody bearing the Plaintiff’s date of birth as 26th December, 1968. The 2nd Defendant from all intents and purposes is an administrative official and an administrative official exercises discretionary power. Such discretionary power is to be exercised within the confines of articles (23) and (296) of the 1992 Constitution which states as follows; Article (23) of the 1992 Constitution of the Republic of Ghana; Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal. 36 Article (296) of the 1992 Constitution; Where in this Constitution or in any other law discretionary power is vested in any person or authority - (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power. Article 199 (1) of the 1992 Constitution provides that; (1) A public officer shall, except as otherwise provided in this Constitution, retire from the public service on attaining the age of sixty years. Per article 199 (1) of the 1992 Constitution a public officer is supposed to retire at the age of sixty (60) years. The Court is of a maximum conviction that the 2nd Defendant did not exercise its discretion fairly by limiting itself to only the criteria provided by the PSC. It had personal records of the Plaintiff at all material times regarding his date of birth in its custody which put the Plaintiff’s date of birth at 26th December, 1968. If the 2nd Defendant had considered the Plaintiff’s personal records in its custody, it would not have retired the Plaintiff prematurely and the Plaintiff would not have mounted this action. Instead, the 2nd Defendant hastily retired the Plaintiff with a wrong date of birth of 26th March, 1959 which is conspicuously a mistake from the 2nd Defendant since the said date did not appear on any of the exhibits the parties tendered in Court apart from the Retirees list. 37 The 2nd Defendant retired the Plaintiff per letter dated 19th December, 2018. His retirement was to take effect from 1st April, 2019 instead of the year 2028 and the Plaintiff has been jobless since 1st April, 2019. He is unable to access his pension benefits from SSNIT because SSNIT’s record has 26th March, 1968 as his date of birth. As far as SSNIT is concerned he has not retired and therefore he cannot access his retirement benefits. In the case of Mercy Kabukie Tettehfio vs. Ghana Highway Authority 2024 DLSC 17474 / Civil Appeal no. J4/01/2023 Dated 24th January, 2024, the Appellant sued for a declaration that the Defendant’s act to force her to retire prematurely is unlawful and unconstitutional and for a declaration that her date of birth is 21st May 1956. The facts indicate that the Appellant had 21st May, 1954, 21st May, 1955, and 21st May, 1956 as her dates of birth in the records of her employers which she provided to her employers. Her case was that she was born on 21st May, 1956. It was established that when the Appellant was employed by the Public Works Department, she filled her personal details and gave her date of birth as 21st May, 1954 in her own handwriting. The Defendant did not alter her date of birth. It was the Plaintiff who lied on her personal records when she was transferred from PWD to Ghana Highway Authority. The trial High Court held in the Appellant’s favour. Being aggrieved by the judgment of the High Court the Respondent appealed to the Court of Appeal which set aside the judgment of the trial High Court that the judgment did not support the evidence on record because the Appellant failed to establish her burden of proof. The Court of Appeal held that the Appellant was properly retired by the Respondent. The Appellant appealed to the Supreme Court which affirmed the judgment of the Court of Appeal. Distinguishing Mercy Kabukie’s case from the Plaintiff’s case, Mercy, from the judgment provided three dates of birth spanning 21st May, 1954, 21st May, 1955 and 21st May, 1956 and she was therefore found not to be consistent. In the Plaintiff’s case he is not the one who provided the 2nd Defendant with 26th March, 1959 as his date of birth. His record in 38 the custody of the 2nd Defendant in his own handwriting indicates 26th December, 1968 whereas his own records he tendered to support his case indicates 26th March, 1968 which is earlier than the date in the 2nd Defendant’s custody but within the same year. It is useful to note that in the case of the Plaintiff the year 1968 is consistent except with a few months’ variation. This state of affairs confirms the Plaintiff’s claim that he was born in 1968 and not 1959. The inconsistency of 26th March and 26th December in the Court’s view should not be applied to the Plaintiff’s disadvantage. Since the Plaintiff’s SSNIT identity card confirms that he was born on 26th March, 1968 the Court is of a considered view that 26th March, 1968 which is earlier in time than 26th December, 1968 should prevail. CONCLUSION In the light of the foregoing, the Court is of a fervent view that the premature retirement of the Plaintiff by the 2nd Defendant on 1st April, 2019 when the 2nd Defendant had personal records of the Plaintiff in its custody indicating that the Plaintiff was born on 26th December, 1968, is unlawful, unconstitutional and void. The Court is of a considered view that the 2nd Defendant retired the Plaintiff prematurely and unlawfully and the Plaintiff is therefore entitled to compensation. It is trite law that the essence of awarding compensation to the Plaintiff is to restore him to the position he would have been had the 2nd Defendant not retired him prematurely. This is otherwise known as “restitution in integrum”. In awarding the Plaintiff compensation the Court takes into consideration that the Plaintiff has been rendered jobless since 1st April, 2019 that he was retired prematurely. The Court further takes into consideration that the Plaintiff should have taken steps to mitigate his loss. Justice Yaw Appau, Justice of the Court of Appeal in a paper presented at an Induction Course for Newly Appointed Circuit Judges at the Judicial Training Institute Accra on Assessment of Damages, stated that; Damages are not awarded to over enrich a Plaintiff far beyond his actual losses. The reverse is also the case. The Plaintiff should not get far less than his actual loss. He cited the case of Royal Dutch Airlines & Another vs. Farmex 39 Limited [1989 – 90] GLR 623 @ 625. He noted that on the measure of damages for breach of contract, the principle adopted by the Courts was restitutio in integrum, that is if the Plaintiff has suffered damage not too remote he must as far as money could do it, be restored to the position he would have been in had the particular damages not occurred. What was required to put the Plaintiff in the position he would have been in was sufficient money to compensate him for what he had lost. In the circumstance, the Court finds it just to award the Plaintiff compensation for being retired prematurely by the 2nd Defendant. In awarding cost to the Plaintiff, the Court considered Order 74 of the High Court (Civil Procedure) Rules, 2004 (C.I 47). The Court considered the fact that this case has been pending since 15th June, 2021, cost incurred by the Plaintiff in filing processes in court, adjournments, reasonable cost of transport expenses incurred by the Plaintiff, cost awarded to the Plaintiff during the trial and the fact that the Plaintiff engaged Counsel to represent him since 15th June, 2021 to date. Consequently, the Plaintiff is entitled to all his reliefs claimed against the 2nd Defendant. The Court accordingly makes the following orders and accordingly declare in favour of the Plaintiff against the 2nd Defendant as follows; a. A declaration that, the termination of the employment of the Plaintiff by retiring him prior to his statutory retirement age is unlawful. b. A declaration that the decision of the Ghana Education Service (G.E.S) to compulsorily retire the Plaintiff nine (9) years prior to his statutory retirement age is unlawful. c. An order of the Court is hereby directed at the Ghana Education Service (G.E.S) to re-instate the Plaintiff by amending the Plaintiff’s personal records in its custody 40 to reflect the Plaintiff’s date of birth as 26th March, 1968 and pay the Plaintiff all his outstanding salaries, entitlements and or his benefits. e. The 2nd Defendant is hereby ordered to pay monetary compensation of Sixty Thousand Ghana Cedis (GH₵ 60,000.00) to the Plaintiff for compulsorily and unlawfully retiring the Plaintiff nine (9) years prior to his statutory retirement age. f. Cost of Sixty Thousand Ghana Cedis (GH₵ 60,000.00) is awarded in favour of the Plaintiff. JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 31ST JULY 2024 41