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PROF. KLUDZE, J.S.C.:
(Read the Opinion of the Court)
The Applicant is asking us for
two reliefs, either cumulatively
or in the alternative. In either
case, the result will be to
disqualify Mr Justice D. K.
Afreh, Justice of the Supreme
Court, from sitting as an
Additional Judge of the High
Court.
In seeking to disqualify Mr
Justice Afreh, the Applicant
argues that on a proper reading
of Article 145(2)(b) of the
Constitution, he is not
competent to sit in the High
Court because he has passed the
age of 65 which is the
prescribed maximum age for High
Court Judges.
The Applicant also argues that,
in any event, having attained
the age of 70 years in March, Mr
Justice Afreh cannot continue to
sit in any Court except for a
six month period to complete
cases which had been commenced
before him pursuant to Article
145(2) of the Constitution. In
support of this second ground,
the Applicant says that,
although Mr Justice Afreh had
dealt with some interlocutory
matters in their case, the
proceedings had not actually
commenced before him within the
intendment of Article 145(4) of
the Constitution.
As regards Mr Justice Afreh"s
capacity to sit as an Additional
Judge of the High Court, the
Applicant's contention is that,
Article 145(2)(b) squarely
catches him and disqualifies
him. We are accordingly urged to
read Article 145(2)(b) of the
Constitution. In our opinion,
Article 145(2)(b) of our
Constitution is unambiguous and
allows for no argument. It
expressly states that a Judge of
the High Court must retire on
attainment of 65 years of age.
It means that a High Court Judge
must vacate his office upon
attainment of 65 years,
otherwise, excepting for the
grace period of six months to
wind up cases by virtue of
Article 145(4), anything done by
him thereafter is a nullity. It
also implies that a person who
is 65 years or older cannot be
appointed to the office of Judge
of the High Court. Therefore,
the Applicant extrapolates from
these valid premises to contend
that, as Mr Justice Afreh had
attained the age of 65, his
designation as an Additional
Judge of the High Court by the
Chief Justice is in
contravention of a clear and
undebatable provision of the
Constitution, to wit Article
145(2)(b) thereof. The logic of
the Applicant's position is
that, if Mr Justice Afreh was
not qualified to hold the office
of a High Court Judge by reason
of his age, the Chief Justice
cannot appoint him as an
Additional Judge of the High
Court where he is
constitutionally prohibited from
sitting. We agree with the
Applicant that if Mr Justice
Afreh is disqualified from
sitting in the High Court, the
Chief Justice or the President
of the Republic of Ghana must
not be allowed to circumvent the
Constitution by installing him
there under a different guise.
The maxim of the law is what
Coke stated ages ago that quando
a liquid prohibetur fieri ex
dirceto prohibetur et obliquum:
when a thing is prohibited, it
cannot be done either directly
or indirectly with the purpose
of achieving the prohibited
result. The maxim applies even
more forcefully when the
prohibition is mandated by the
Constitution. The Constitution
is the fundamental law of the
land and every authority is
bound by its explicit
provisions, such as Article
145(2)(b). Therefore, the
question is whether the
designation of Mr Justice Afreh,
who is admittedly over 65 years
old, to sit as an Additional
Judge of the High Court, is an
attempt to circumvent the age
restriction imposed on High
Court Judges. If it is such an
attempt to do directly or
indirectly what the Constitution
forbids, we must declare it to
be unconstitutional and accede
to the Applicant's prayer by
issuing an order of prohibition
to stop him from so sitting.
The foregoing argument, however
ingenious, is fallacious. As we
understand it, Mr. Justice Afreh
is not being appointed a High
Court Judge. Therefore, Article
145(2)(b), which sets a
mandatory retirement age for
Justices of the High Court, does
not apply to him. In our
opinion, the case falls under
Article 139(1) of the
Constitution. It says:
"139. (1) The High Court shall
consist of:—
(a) The Chief Justice;
(b) Not less than twenty
Justices of the High Court; and
(c) Such other Justices of the
Superior Court of Judicature as
the Chief Justice may, by
writing signed by him, request
to sit as High Court Justices
for any period."
That Article empowers the Chief
Justice to request, in writing
signed by him, a Justice of the
Superior Court of Judicature to
sit in the High Court. The only
requirement of this
constitutional provision is that
the person so requested must be
a Justice of a Superior Court.
In this context, it means that
the person requested by the
Chief Justice to sit in the High
Court, of which he would
otherwise not be a member, must
be a Justice of the Court of
Appeal or of the Supreme Court.
The Applicant, however, is
asking us to hold that Article
139(1)(c) must be read subject
to Article 145(2). In other
words, we are being invited to
add a proviso to Article 145(2)
of the Constitution to say
something to the effect that
"'the person so requested shall
not be 65 years or older." We
know of no authority that
confers the power on this Court
to amend the Constitution of
Ghana. We must decline the
invitation.
In conferring authority on the
Chief Justice to request
Justices of the Court of Appeal
and the Supreme Court to sit in
the High Court, the framers of
the Constitution must be
presumed to know that, having
regard to the retiring age
prescribed for members of those
two courts, the Justices
receiving the request may have
passed the retiring age for High
Court Judges. The Constitution
nevertheless permits those
Justices to sit in the High
Court. It does not add any
proviso as to the age of any
person qualified to be so
requested. The only requirement
is that the Justice required to
sit in the High Court be a
Justice of the Superior Court of
Judicature.
We cannot, under the cloak of
constitutional interpretation,
re-write the Constitution of
Ghana. Even in the area of
statutory interpretation, we
cannot amend a piece of
legislation because we dislike
its terms or because we suppose
that the lawgiver was mistaken
or unwise. Our responsibility is
greater when we interpret the
Constitution. We cannot and must
not substitute our wisdom for
the collective wisdom of the
framers of the Constitution.
Where the words of a statute are
unclear or ambiguous, it is only
then that we must try to apply
the well-known canons of
construction to ascertain and
enforce the law. Where the words
of a statute are clear, our duty
is to enforce the statute as
written. That is a fundamental
rule of constitutional and
statutory interpretation. We
intend to be faithful to that
principle and that tradition of
jurisprudence. We must not
insert our own words or remove
words from the legislation in
order to arrive at a conclusion
that we consider desirable or
socially acceptable. If we do
that, we usurp the legislative
function which has been
consigned to the legislator.
That is a prescription for
tyranny of the judicial branch
and a harbinger of
constitutional crisis, if not
chaos and anarchy.
In the present case, the
constitutional provision in
Article 139(1) is clear and
unambiguous. If we tinker with
the words, we may very well
create our own self-induced
absurdity and internal
incoherence. That Article makes
the Chief Justice a member of
the High Court; but it does not
say that the Chief Justice can
only be a member of the High
Court if he happens to be under
65 years of age. In our opinion,
the Chief Justice, regardless of
his age, remains a member of the
High Court and may sit as a High
Court Judge for as long as he
holds the office of Chief
Justice. We do not question the
wisdom of that provision. That
is what our Constitution says.
If we impose an age limit on
Justices of the Superior Court
of Judicature who are requested
to sit in the High Court,
although the Constitution itself
imposes no such limit, we must
also impose an age limit of 65
years on a Chief Justice who is
a member of the High Court by
virtue of his office. We do not
have the power to do that; and
it would lead to internal
inconsistency of the
Constitution if we were to
embark upon such an adventure.
There are other parts of the
Constitution which would be
reduced to absurdity if we were
to take the Applicant's view
that all who perform the
functions of a High Court must
be below the age of 65. Under
Article 137 (3) of the
Constitution, the Court of
Appeal, when it disposes of an
appeal from the High Court,
"shall have all the powers,
authority and jurisdiction
vested in the court from which
the appeal is brought." This
means that the Court of Appeal,
when it determines an appeal,
has all the powers of the High
Court. For this reason the Court
of Appeal may make appropriate
orders without remitting the
case back to the High Court. For
the purpose of exercising the
powers of the High Court, it is
not a constitutional requirement
that all the members of the
Appeal Court panel must be below
65 years. The Applicant is
asking us to interpret the
Constitution in such a way that
a decision of the Court of
Appeal, to the extent that it
involves the exercise of the
powers of the High Court as
mandated under Article 137(3),
shall be void if even one of the
three-member panel is 65 years
or older. Similarly, if a High
Court Judge aged 62 years, on
appeal, under Article 140 (5),
exercises the powers of a
Magistrate who as a judicial
officer must retire at age 60
under Article 150(2), the
decision of the High Court Judge
is not void or without
jurisdiction.
The other issue canvassed before
us is that, in any event, when
Mr Justice Afreh turned 70 on
March 25, 2003, he attained the
mandatory retirement age as a
Justice of the Supreme Court
and, therefore, could not
continue as an Additional Judge
of the High Court. The reason is
that only a Justice of the
Superior Court of Judicature can
be requested to sit as an
Additional Judge of the High
Court. It is conceded that under
Article 145(4), Mr Justice
Afreh, after his 70th birthday
may, if authorised, remain in
office to complete cases pending
before him. An affidavit from
the Judicial Secretary exhibited
a letter from His Lordship the
Chief Justice, Mr Justice E. K.
Wiredu, dated 25th March, 2003,
authorising Mr Justice Afreh to
remain in office for a period of
six months to enable him deliver
judgments in cases before him.
See Exhibit 2 attached to the
affidavit of the Judicial
Secretary. In response, the
Applicant argues that the Chief
Justice has the authority under
Article 145(4) to authorise a
Judge who had attained the
retirement age to remain in
office for further six months,
but only for the limited purpose
of completing pending cases.
Such authority cannot be granted
to try fresh cases.
From the above premise, the
Applicant seeks Prohibition
against Mr Justice Afreh to stop
him from hearing the case
intituled Speedline Stevedoring
Co. Ltd. v. S. M. Kotei and
Another, because hearing had not
commenced before him prior to
his 25th birthday. The Applicant
attached Exhibit "A", being the
proceedings in that case, in
proof that Mr Justice Afreh did
not begin to hear testimony in
the case until 27th March, 2003,
two days after he had turned 70.
The Applicant argues, therefore,
that this was not a case the
trial of which had commenced
before the Judge's compulsory
retirement date. If that is
true, Mr Justice Afreh lacked
the capacity and therefore, the
jurisdiction to try the case as
an Additional Judge of the High
Court.
The thrust of the Applicant's
case is that the trial did not
commence before the Judge's 70th
birthday on March 25, 2003,
because the first witness was
not called until March 27. The
Applicant quoted a Statement by
Mr Justice Afreh on page 4 of
his Exhibit "A", being the
proceedings of 14th March, 2003,
which can be interpreted, and
which he interprets, to mean
that trial had not begun and
would begin at a future date.
That future date, as Exhibit "A"
shows, was March 27th, two days
after Mr Justice Afreh's
birthday. For this reason, the
Applicant and also the
Respondent and Interested Party
have expended effort in
disputations as to when a trial
can be said to have commenced.
In popular parlance, we often
speak of "part-heard" cases.
These are usually cases in which
the court has received testimony
from some of the witnesses. They
are said to be part-heard
because the trial has not been
completed and judgment has not
been delivered. It is presumably
because of this conception or
misconception that all parties
have endeavoured to show that
the case of Speedline
Stevedoring Co., Ltd. v. S. M.
Kotei and Another did not become
part-heard until March 27, two
days after Mr Justice Afreh
turned 70, when the first
witness (P.W. 1) was called to
testify. If the dispensation for
retiring Justices was to permit
them to complete "part-heard"'
cases, we might devote greater
attention to the events that
have been related with regard to
the course of proceedings in
that case.
The constitutional dispensation,
however, does not concern
"part-heard" cases. In terms of
Article 145(4) of the
Constitution, a retiring Justice
may be permitted to remain in
office for a further period of
six months "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." It does not speak of
"part-heard" or "part-tried"
cases. The word "trial" and its
cognate forms is a terminology
of choice fastened upon by the
Applicant. It does not appear in
Article 145(4) of the
Constitution. Its use obfuscates
the analysis and establishes
nothing as a matter of law.
In our opinion, the operative
words are "proceedings that were
commenced" before the Judge
previous to his attainment of
the retiring age. In our
judgment, the word
"proceedings," if it be a term
of art, encompasses any material
progress in the adjudicatory
process before the Judge or
Court. It may not be part-heard
in the sense of taking partial
testimony. If the Judge or Court
is seized of the matter and has
made rulings or determinations
or given directives, whether
these be interlocutory or not,
we would conclude that
proceedings have commenced
before that Judge or that Court
within the intendment of Article
145(4). That may not be
sufficient to constitute
"proceedings" in other aspects
of the law, depending on the
language that we are to construe
or apply. Under Article 145(4),
however, the word used is
"proceedings" commenced before a
Judge. The word is plain and
admits of no ambiguity. We will,
therefore, not embark upon any
exhaustive enquiry to ascertain
its meaning.
In Speedline Stevedoring Co.,
Ltd. v. S. M. Kotei and Another,
the Exhibit "A," tendered by the
Applicant, convinces us that the
Judge, Mr Justice Afreh, was
seized of the matter and the
proceedings had commenced before
him prior to March 27, 2003,
when he took evidence from the
first witness. For instance, on
14th March, 2003, Mr Justice
Afreh had made an order for
discoveries. He listened to and
dismissed a preliminary
objection by one of the parties,
for which he gave reasons later.
Other matters were dealt with.
Our impression, which may be
wrong, is that it was Counsel
for the Applicant whose conduct
contributed in no small measure
in the delay in taking evidence.
As appears from the Applicant's
Exhibit "A," his Counsel did not
seem to have even an address for
the service of process which was
returned when sent to a Hotel.
Whether or not these antics were
intended to slow down the
proceedings, in anticipation of
the retirement of Mr Justice
Afreh, it certainly did have at
least that partial result. It
seems to us that in the
circumstances the strictures
against the progress of the case
are not in the best taste.
After the motion had been filed,
the Applicant sought leave to
amend by asking for an Order of
Certiorari to quash the
proceedings of 5th May, 2003, of
the said Fast Track High Court
presided over by Mr Justice
Afreh. The Applicant refers us
to Article 130(2) of the
Constitution to buttress his
claim. By virtue of Article 132
of the Constitution read in
conjunction with Article 161,
the Supreme Court has the
supervisory jurisdiction to
quash the proceedings of the
High Court, which includes the
Fast Track Court. The gravamen
of the claim, as we understand
it, is that, once the issue of
competence and jurisdiction of
the Fast Track High Court was
pending at the Supreme Court,
the Fast Track High Court, in
obedience to the mandate of
Article 130(2) is obliged to
"stay the proceedings." Having
not stayed the proceedings, the
Fast Track High Court, as the
argument presumably goes, was
acting without or in excess of
jurisdiction. That would be a
basis for jurisdiction in the
Supreme court to quash the
proceedings in the Fast Track
High Court of 5th May, 2003,
since prior to that date the
Applicant had filed a Motion in
the Supreme Court. That is a
misconception based upon a
misreading of Article 130(2) of
the Constitution. The Article
only provides that where a Court
other than the supreme Court is
confronted by a genuine issue of
"matters relating to the
enforcement and interpretation
of this Constitution ... that
court shall stay the proceedings
and refer the question of law
involved to the Supreme Court
for Determination. "That is not
the factual, legal or procedural
situation presented by this
case. The Fast Track High Court
did not consider that a question
of enforcement or interpretation
arose which had to be determined
by the Supreme Court. The
presiding Judge was apparently
prepared to proceed with the
case, and a dissatisfied party
would have a right to appeal in
respect of that issue.
Therefore, the Fast Track Court
did not refer the question to
the Supreme Court. It was the
Applicant who invoked the
jurisdiction of the Supreme
Court by way of Motion to
interpret the relevant
provisions of the Constitution.
That being the case, the Fast
Track High Court is not
obligated by the constitutional
provision in Article 130(2) to
stay its proceedings. A Motion
for other relief, in this case
an order of prohibition, does
not automatically operate to
stay proceedings in the Court
whose proceedings are being
challenged. It is only when the
trial Court refers the question
of law to the Supreme Court that
the Constitution enjoins it to
stay its proceedings until the
matter is determined by the
Supreme Court. A Motion for an
order of prohibition does not
come within the ambit of Article
130(2), and the Fast Track High
Court is perfectly within the
law to continue with its
proceedings until and unless
there is an order from a higher
court. That being our view, we
consider that the application
for certiorari to quash the
proceedings of the 5th May,
2003, in the Fast Track High
Court is wholly misconceived.
The amendment ought not to have
been brought. Article 130(2)
under which the Applicant
purports to invoke our
jurisdiction is clear and does
not require much effort to
understand. It does not relate
to the present case. We would
dismiss the amended claim also
as being without any merit.
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
W. ATUGUBA
JUSTICE OF THE SUPREME COURT
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
PROF. A.K.P KLUDZE
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. Amponsah Dadzie with him Mr.
Agyenim-Boateng for the
applicant.
Mr. Ambrose Derry, Deputy
Attorney-General with Madam
Mercy Kwa for the Respondent.
Nene Amegatcher with Mr.
Adadevor and Mr. Foley for the
Interested Party.
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