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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.