643 ex-soldiers lose GH¢142m illegal deduction case against GAF

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The High Court in Accra presided over by Justice Kweku Tawiah Ackaah-Boafo has dismissed the case initiated by 643 ex-soldiers against the Ghana Armed Forces (GAF) over an alleged illegal deductions on an amount of GH¢142,000,071.00 government had released to them for their terminal benefits.

It was the case of the retired military personnel who were recruited in 1988 and 1989 respectively by the Ghana Armed Forces (GAF) that, they have worked for over 25 years and commenced their terminal leave in December 2014.

According to them, they occupied different positions in rank in the course of their service and that prior to their retirement the Chief of Defence Staff (1st Defendant) wrote to the Ministry of Finance and an amount of GH¢142,000,071.00 for their terminal benefits was released to be paid to them.

The Plaintiffs contended that having received the money the 1st Defendant made deductions which are illegal and not in compliance with the regulations of the Ghana Armed Forces.

The CDS who was sued together with the Attorney General’s Department argued that, the Plaintiffs are not entitled to their claim and pray the Court to dismiss the action “as frivolous, vexatious and mischievously calculated to tarnish the image of the Ghana Armed Forces”.

The High Court (General Jurisdiction) in its 36-paged judgement said the deductions made by the GAF (1st Defendant) from “the monies approved by the Government of Ghana for payment of gratuities and transport expenses were in accordance with the law and therefore same was not wrongful and/or illegal.”

The presiding judge Justice Ackaah-Boafo said while the court appreciate the gallant fight of the Plaintiffs through their resourceful Counsel, “the Defendant in equal measure assembled an impressive armada of exhibits to tilt the balance in their favour.”

“It is for that reason that I have come to the irresistible conclusion that the Plaintiffs main reliefs being reliefs (i) to (iv) are to be dismissed” on grounds that “the preponderance of the probabilities, the Defendants’ case is more probable than the Plaintiffs,” the court said.

Background

The Plaintiffs who were 643 retired military personnel said they were recruited in 1988 and 1989 respectively by GAF. They contended that, they all worked for over 25 years and commenced their terminal leave in December 2014. According to them, they occupied different positions as in rank in the course of their service.

The Plaintiffs said that, prior to their retirement the 1st Defendant wrote to the Ministry of Finance and an amount of GH¢142,000,071.00)for their terminal benefits was released to be paid to them.

The Plaintiffs further contended that having received the money the 1st Defendant made deductions which are illegal and not in compliance with the regulations of the Ghana Armed Forces.

They explained that the 1st Defendant failed to pay to them the amount it requested from government and approved to be paid to them.

They contended that they sought for an explanation from the 1st Defendant with regards to the method used in the payment of benefits because the amounts received were at variance with what the government authorized. It is also the case of the Plaintiffs that they did not receive a satisfactory response from the 1st Defendant.

Dissatisfied with the response, they instituted the present action for the orders stated in the Amended Writ of Summons.

Plaintiffs’ reliefs

The Plaintiffs per their case to the court were seeking a declaratory order that the deductions made on their entitlements as approved by the Government of Ghana was wrongful and/or unlawful.

They were also contending that the 1st Defendant used 5% rate and applied same for every year after fifteen years (15) and that was geared towards reducing their earnings.

According to them, the 5% ought to have been applied per month and not annually as per Clause 2 (c) of Article 206.77.

They sought an order directed at the Defendants to pay back to them; the deductions made as approved by the Government of Ghana and also apply the 5% rate monthly after 15 years of service.

The Plaintiffs also were seeking interest on the amounts deducted from their entitlements. In effect, the Plaintiffs are asking the Court to order the Defendants to recalculate and vary the amounts paid to them.

Defendants defence

In their joint-statement of defence by the 1st and 2nd Defendants, they vehemently denied the Plaintiffs’ claims.

The 1st Defendant, the Chief of Defence Staff in particular contested that the Plaintiff’s claim both in fact and the law, but conceded that before the Plaintiffs commenced their terminal leave they submitted a proposal of their benefits to the Ministry of Finance and same was approved.

It is the case of the Defendants however that, further to the approval they calculated the benefits of each of the Plaintiffs according to their circumstances and the Armed Forces Regulations and paid same to each individual Plaintiff together with the transportation allowance of each person in accordance with the distance of the person’s station and his hometown or choice of place of residence.

The Defendants argued that the gratuities of the Plaintiffs were calculated in accordance with Clause 2(a) of Article 206.77 of the Armed Forces Regulation as Amended by substitution of Section (3) (c) of L.I. 1332.

The Defendants further say Clause 2 (c) is not applicable because the word “after” was omitted in the amendment. To the Defendants even if Clause 2 (c) is applicable it can only be assessed based on the additional months or years at 5% per month and not the entire 15 year period as contended by the Plaintiffs.

The Defendants say the contention that all the Plaintiffs are each entitled to 5% of the monthly salary multiplied by twelve months for 15 years is misconceived and not based on the law.

The Defendants therefore say the Plaintiffs are not entitled to their claim and pray the Court to dismiss the action “as frivolous, vexatious and mischievously calculated to tarnish the image of the Ghana Armed Forces”. The Plaintiffs filed a reply to rebut the defence filed.

Orders

The court however ordered the 1st Defendant to review within 30 days all the Release Authority Forms of all the Plaintiffs and to provide answers to the questions asked at paragraph 66 of the judgment to the Court with immediate effect.

Paragraph 66 states; “The problem with the above calculation is what does “new” and “old” mean in the context of the calculation made on the release authority forms? As stated above, the old Regulation is not the applicable law but Section 3 (2) (c) of L.I. 1332. To that extent where did the figure “94,049.89” come from? And why did it change to “96,244.24”? Also, what happened to the difference between “106,127.07” which is the proper calculation based on the law and “94,049.89” being “12,077.18”? Where did that amount go? It does not show in the calculation and it is therefore important that the Defendants demonstrate what happened to that figure/amount.”

The court said, “any of the Plaintiffs, including 183996 – CPOL Prosper Dotse Kugbleafe, who the record show were under paid, the withheld monies are to be paid within 30 days after the review is concluded and the proof of same should be submitted to the Court.”

Justice Ackaah-Boafo also expressed the court’s admiration for the industry put in by both Counsel and the civil manner the trial was conducted.

For the servicemen, the judge said, “I wish to put on record that this my decision in no way discounts the service the Plaintiffs have rendered to the nation and humanity as a whole. Their service benefits etcetera cannot compensate for their overall contribution, which, no doubt, has contributed to the respect the Ghanaian military enjoys in the global environment, and I respect them for their service.”

Source: Starr FM