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AMPIAH, J.S.C.:
This is an appeal from the
decision of the Court of Appeal,
affirming the decision of the
High Court. The appeal was heard
and adjourned to 31st March,
2000 for judgment. The court
realised later that a legal
point which had been raised when
an application for stay of
execution was brought and which
legal issue had more or less
influenced the granting of an
order of stay of execution, had
not been repeated in the
subsequent submissions made
during the hearing of the
substantive appeal by either
party. Since we considered that
issue to be fundamental to the
resolution of the appeal, we
gave the parties reasonable
opportunity to be heard under
Rule 6(8) of the Supreme Court
Rules, 1996 (C.I. 16). Counsel
for the parties have accordingly
submitted their argument for
consideration in the appeal.
Her Lordship Miss Justice Aryee,
from the official records of the
Judicial Service, retired from
the Service on 12th September,
1992.
Article 145(2) of the
Constitution provides,
"(2) A Justice of a Superior
Court or a Chairman of a
Regional Tribunal shall vacate
his office—
(a) in the case of a Justice
of the Supreme Court or the
Court of Appeal, on attaining
the age of seventy years; or
(b) in the case of a Justice of
the High Court or a Chairman of
a Regional Tribunal, on
attaining the age of sixty-five
years; or
(c) upon his removal from
office in accordance with
article 146 of this
Constitution".
Sub-clause (4) of this article
however, provides that—
"(4) Notwithstanding that he
has attained the age at which he
is required by this article to
vacate his office, a person
holding office as a Justice of a
Superior Court or Chairman of a
Regional Tribunal may continue
in office for a period not
exceeding six months after
attaining that age, as may be
necessary to enable him to
deliver judgment or do any other
thing in relation to proceedings
that were commenced before him
previous to his attaining that
age" (emphasis supplied).
This provision allows a retired
Superior Court judge who
otherwise would have retired at
the compulsory retiring age, to
continue in office for a period
not exceeding six months as may
be necessary for him to deliver
judgment or do any other thing
in relation to proceedings that
commenced before him previous to
his attaining that age. It is
not the intention of the framers
of the Constitution that the
retiring judge should
automatically continue for the
maximum period of six months;
the retiring judge may be given
less than the six months but any
period given him shall not
exceed six months.
The evidence before us shows
that the judgment of the High
Court was delivered outside the
constitutionally permissive
period, albeit by another judge
who was a sitting judge. Outside
the six months period no judge
had jurisdiction to deliver the
judgment on behalf of the
retired judge. Since the
judgment was delivered about two
years after the judge had
retired, the proceedings after
the six months period were a
nullity: delivering that
judgment by a sitting judge
could not validate the otherwise
unlawful proceedings.
Accordingly, we would allow the
appeal and set aside the
judgment of both the Court of
Appeal and the High Court
together with all costs awarded,
if any. We would order that the
case be remitted to the High
Court to be expeditiously tried
de novo.
Since this legal issue disposes
of the appeal, we do not think
it is necessary for us to go
into the other grounds of
appeal.
SIGNED.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT.
SIGNED.
F.Y KPEGAH
JUSTICE OF THE SUPREME COURT.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT.
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT.
S.A.B. AKUFFO (MISS)
JUSTICE OF THE SUPREME COURT.
COUNSEL
Mr. Felix Quartey for Appellant.
Mr. Philip Addison for
Respondent. |
