Constitution of Supreme Court panels by the Chief Justice
"The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary." Thus, for as long as the Chief Justice is in office, the right to constitute panels of the Supreme Court is exercisable by him as one of the administrative incidents of his office. Indeed, his is not only a right, but also an obligation, to constitute such panels. The difficulty of compulsorily taking away this function of the Chief Justice, in relation to a particular case, is evidenced by the fact that no endeavour to do so has so far succeeded in the history of our courts since independence.
Continuity of judicial office on a new Constitution
Similarly clause (8) of article 127 declares in no uncertain terms that a justice of the Superior Court of Judicature (that one composite institution) holding office as such immediately before the coming into force of the Constitution shall continue to hold the office he was holding as if he had been appointed by the processes laid down in the Constitution. In the case of a justice of the High Court or a justice of the Court of Appeal, he shall be considered to have been appointed upon the advice of the Judicial Council by the President even though no such advice has been tendered and no appointment made. He is only required to take the oath under clause (9) to complete the process of his appointment.
The law is that where a matter is determined judicially, it is only a body with judicial power that can pronounce on it as being valid, invalid, void or otherwise. It is the Court of Appeal in the exercise of its judicial power which can acquit the Appellant or the Supreme Court in the exercise of its supervisory powers under Article 132 of the Constitution which may quash the conviction. By virtue of Article 125 (3) of the Constitution which provides that judicial power of Ghana shall be vested in the judiciary and exercised exclusively by the Judiciary, no other person or body including the President nor Parliament can exercise judicial power.
Jurisdiction of the High Court under article 140(1)
The High Court enjoys, under the Constitution, an incremental, as opposed to a reductive, jurisdiction and unless one can point to a provision in the Constitution which curtals the jurisdiction of the High, it cannot be correctly argued that the High Court lacks jurisdiction to entertain and pronounce upon a particular civil matter.
Status of the Chief Justice as Head of the Judiciary
There is a fallacy in this argument. The Chief Justice is sui juris. As has already been demonstrated the Chief Justice under our system of government is appointed as such. He could be a member of any of the courts before such an appointment. He could be appointed straight from the bar. His appointment would be that of the Chief Justice all the same. When so appointed he becomes the Head of the Judiciary. In his capacity as the Chief Justice he automatically becomes a member of each of the courts established by the Constitution. He is not a Chief Justice by virtue of his being a member of a particular court. He is a member of the Supreme Court, the Court of Appeal and the High Court of Justice, because he is the Chief Justice. This is the system as it existed immediately before the coming into force of the Constitution, 1979. That is still the system existing today.
