KONADU AND OTHERS vs. YIADOM AND OTHERS [1995-96] 1 GLR 8

CASES REFERRED TO

(1) Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor [1993- 94]1 GLR 478, SC.

(2) Afranie II v Quarcoo [1992] 2 GLR 561, SC.

(3) Seifah v Forfie (1957) 3 WALR 274, PC.

NATURE OF PROCEEDINGS

APPLICATION to set aside a decision of the Supreme Court dismissing an application for a review of the judgment against the defendant-applicants on the ground that one of the judges who sat on the matter was disqualified on account of having attained seventy years, the compulsory retiring age for justices of the Supreme Court. The facts are sufficiently stated in the ruling.

COUNSEL

J K Agyeman for the defendant-applicants.

Obeng-Manu for the plaintiff-respondents.

JUDGMENT OF ADJABENG JSC.

The applicants were the defendants in a chieftaincy matter brought against them in the Kumasi Traditional Council. The plaintiff-respondents (hereinafter referred to as the respondents) sought a declaration that the purported nomination of the fourth defendant- [p.10] of [1995-96] 1 GLR 8

applicant was null and void as he was not a royal of the Pankrono stool. Judgment was given in favour of the respondents. The applicants appealed to the Ashanti Regional House of Chiefs which affirmed the decision of the Kumasi Traditional Council. Not satisfied, the applicants again appealed to the National House of Chiefs, and this time they won. The respondents, with the leave of the judicial committee of the National House of Chiefs, appealed to this court against the decision of the National House of Chiefs.

This court on 28 July 1993, by a majority decision of three to two allowed the respondents’ appeal. On 11 August 1993 the applicants filed an application for the review of this decision. This application was not heard until 18 October 1994. A ruling was then given on 25 October 1994, dismissing the application for review.

The applicants are, in the present application, invoking the inherent jurisdiction of this court to set aside the ruling given in the application for review. They do this on two grounds. First, they contend that Mr Justice Francois who sat on the application was not competent to sit thereon as he had then retired as a justice of the Supreme Court. They also contend that the application was not a part-heard matter so as to bring it within the scope of article 145(4) of the Constitution, 1992. The court was in the circumstances improperly constituted, and so its proceedings on 18 October 1994, and the ruling on 25 October 1994, when Mr Justice Francois sat, were all null and void and must be set aside. Secondly, the applicants contend that the Rules of Court Committee not having prescribed the grounds and conditions for review as required under article 133(1) of the Constitution, 1992, it was wrong for the Supreme Court to proceed to hear the application for review.

In arguing the application, counsel for the applicants submitted that a review is a fresh matter, and cited in support the decision of this court in the case of Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor [1993-94] 1 GLR 478, SC. Counsel referred particularly to the opinion of Mr Justice Francois in which the learned judge said at 494 that “. . . review, starts a new cycle.”

As regards the second ground of the application, counsel submitted that the practice direction on review has been superseded by the Constitution, 1992. He relies also on the opinion of my brother, Hayfron-Benjamin JSC in the case of Afranie II v Quarcoo [1992] 2

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GLR 561, SC in which my learned brother expressed the opinion that practice directions have no statutory force. It must be pointed out that the learned judge, however, said therein that these directions are guides. At 623 of the report he said:

“Thus while I still hold that these practice directions have no statutory force I will maintain that they remain guides to the courts and the legal profession on matters of practice and procedure.”

(The emphasis is mine.)

It seems to me that this second ground canvassed by the applicants’ counsel cannot avail him in this application. It was pointed out by counsel for the respondents that article 133(1) of the Constitution, 1992 on which the applicants’ counsel relies does not make it mandatory that the rules of court should prescribe any conditions. Article 133(1) of the Constitution, 1992 reads: “ 133.(1) The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court.” (The emphasis is mine.) Again, it was submitted by the respondents’ counsel that the existing practice is still in force as it is covered by decided cases on the matter which form part of the existing law: see article 11(1) of the Constitution, 1992.

I could not agree more with the respondents’ counsel, especially when the applicants’ counsel did not seem to see any deficiency in the practice when he filed and argued his review application. The application cannot therefore be sustained on this ground.

The other ground, however, raises a more serious issue. The argument here is that Mr Justice Francois had retired at the time the application was argued and the ruling thereon was given; and so he should not have sat on it as he was no longer a justice of the Supreme Court. Counsel for the respondents contests this ground on the basis that the review application was not a fresh matter, and that article 145(4) of the Constitution, 1992 gave the retired justice power to sit and decide the application which had been filed before he retired. Article 145(2) of the Constitution, 1992 requires that:

“(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

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Court of Appeal, on attaining the age of seventy years . . .”

(The emphasis is mine.) It is clear from article 145(2)(a) of the Constitution, 1992 quoted above, that a justice of the Supreme Court, on attaining the age of 70, shall vacate his office. The only modification made in respect of this mandatory requirement is given in article 145(4) of the Constitution, 1992 which provides as follows:

“(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.”

(The emphasis is mine.)

According to article 145(4) of the Constitution, 1992, quoted above, a superior court judge or a chairman of a Regional Tribunal in such a situation can continue in office for a period not exceeding six months for the purpose only of doing the following: (a) to deliver judgment; or (b) to do any other thing in relation to proceedings that were commenced before him previous to his attaining that age. The question that must be answered here is this: was the application for review on which Mr Justice Francois sat after his compulsory retirement a proceeding that had been started before him before his retirement? The answer is no. This is because this application was never called in court and therefore the court never sat on it prior to the retirement of the learned judge. Moreover, it was decided by this court in Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor (supra), that an application for a review of a judgment is a fresh matter. The retired judge himself expressed an opinion in that case which is pertinent here. At 493 of the report, Francois JSC said:

“The review starts a new process with a new registration number. To my mind, it cannot earn the description of being ‘partly heard.’ It is not a direct continuation of a matter, but an indirect resuscitation of a past action.”

[p.13] of [1995-96] 1 GLR 8 Again, at 494 of the report, the learned judge continued thus:

“On the same basis this matter could not be said to be ‘pending.’ A matter which is concluded with a final judgment cannot be pending. The process of reopening to correct mistakes, which we call review, starts a new cycle.”

It is clear therefore that an application for review is a fresh matter and unless the learned retired judge had participated in any proceedings in relation thereto before retiring, he would not qualify to sit on it by virtue of article 145(4) of the Constitution, 1992 after his compulsory retirement. He was therefore wrong in sitting on the application and his participation in the hearing rendered the proceedings and the ruling given null and void as his disqualification made the court improperly constituted since only six qualified judges sat contrary to article 133(2) of the Constitution, 1992 which mandatorily required not less than seven.

Accordingly, the application ought to be granted on this ground.

JUDGMENT OF AMUA-SEKYI JSC.

I am of the same opinion. The following facts are not in dispute. The applicants were respondents in an appeal intituled Boakye Yiadom v Kwabena Konadu judgment in which was delivered on 28 July 1993 in favour of the appellants. Mr Justice Francois was a member of the court that heard the appeal and delivered the judgment. The applicants filed a motion for a review of the judgment. On 5 August 1994, Mr Justice Francois attained the compulsory retiring age of seventy years. When the motion for a review of the judgment came up for hearing on 18 and 25 October 1994 Mr Justice Francois sat as a member of the court. The court dismissed the application for a review of the judgment.

Two issues have now been raised: first, whether an application for a review of a judgment of the Supreme Court may be dealt with by the court in the absence of specific rules for the exercise of that jurisdiction; and secondly, whether a judge of the Supreme Court who has reached the compulsory retiring age may sit on an application for a review of a judgment of the court.

Article 133 of the Constitution, 1992 gives the Supreme Court constituted by not less than seven judges of the court, power to review decisions of the Supreme Court. The jurisdiction is to be exercised “on

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such grounds and subject to such conditions as may be prescribed by rules of court.” A look at the Supreme Court Rules, 1970 (CI 13) will show that they do not contain any rules on the exercise of the power of review. Clearly, it was envisaged that some such rules would be made and published after the Constitution, 1992 came into force. The question is whether until rules are made the power may nonetheless be exercised.

Rule 5 of the Supreme Court Rules, 1970 (CI 13) deals with situations not covered in the rules by providing that in all cases where the practice and procedure which shall apply have not been set out “the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter may require.” It may, therefore, be argued that while Mr Agyeman is right that the current situation is unsatisfactory, the court has power to determine on an ad hoc basis the practice and procedure to be followed on any application for a review. On this premise, it was proper for the court to follow existing practice as laid down in judicial circular No SCR/144/167 of 4 August 1988 in dealing with the application for a review.

By article 145(2) of the Constitution, 1992, a judge of the Supreme Court is required to vacate his office on attaining the age of 70 years. However, clause 4 of article 145 permits such a judge to continue in office for a maximum period of six months “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.” The provision confers no benefit on the judge; it is designed solely to facilitate the work of the court which might otherwise be disrupted by the sudden departure of a judge. Cases which have been commenced before him must be heard to a conclusion, and reserved judgments must be delivered. Otherwise, the cases would have to be heard afresh before a differently constituted court at great expense and inconvenience to both litigants and the courts. Beyond this, the law does not permit a judge who has vacated his office to intermeddle with cases in the courts.

The application for a review of the judgment was lodged in the registry of the Supreme Court at a time when Mr Justice Francois was in office as a judge. If the hearing had commenced before him prior to his attaining the compulsory retiring age, it would have been proper for him to complete the hearing and give a ruling. As it happened, the

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hearing did not begin until after he had attained the compulsory retiring age. He was therefore not qualified to sit on the application. The result must be that the proceedings and ruling on the application for a review are null and void: see Seifah v Forfie (1957) 3 WALR 274, PC.

JUDGMENT OF AIKINS JSC.

I agree

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

I agree

JUDGMENT OF AMPIAH JSC.

I also agree.

DECISION

Application allowed

J N N O