BOYE-DOE vs. TEYE AND ANOTHER [1999-2000] 2 GLR 399

BOYE-DOE v TEYE AND ANOTHER
[1999-2000] 2 GLR 399

Division: SUPREME COURT, ACCRA

Date: 12 JULY 2000

Before: AMPIAH, KPEGAH, ADJABENG, ACQUAH AND

AKUFFO JJSC

Courts—Superior court judges—Compulsory retirement—Delivery of judgment after—Constitutionally permissive period—Superior court judge permitted to continue in office for a period not exceeding six months after age of compulsory retirement to deliver judgments in relation to proceedings commenced before him previous to attaining that age—Proceedings commenced before compulsory retirement of superior court judge—Judgment delivered by sitting judge on behalf of retired judge after constitutionally permissive period of six months—Validity of judgment delivered—Constitution, 1992, art 145(2) and (4).

It is respectively provided by article 145(2) and (4) of the Constitution, 1992 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 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.

(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 to do any other thing in relation to proceedings that were commenced before him previous to his attaining that age.”

Held, allowing the appeal: the provision in article 145(4) of the Constitution, 1992 only allowed a 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 might be necessary for him to deliver judgment or do anything in relation to proceedings that commenced before him previous to attaining that age. Hence, it was not the intention of the framers of the Constitution, 1992 that the retiring judge should automatically continue for the maximum period of six months. The retiring judge might even be given less than six months, but any period given him should not exceed six months. In the instant case the evidence clearly showed that the judgment of the High Court was delivered outside the

[p.400] of [1999-2000] 2 GLR 399

constitutionally permissive period, albeit by another judge who was a sitting judge. However, outside the six month 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 was a nullity; and the delivery of that judgment by a sitting judge could not validate the otherwise unlawful proceedings.

APPEAL from the decision of the Court of Appeal affirming the decision of the High Court, wherein the Supreme Court after the close of hearing invited the parties under rule 6(8) of the Supreme Court Rules, 1996 (CI 16) to address a legal issue arising out of the fact that the judgment of the High Court was delivered by a sitting judge over six months after the compulsory retirement of the judge who tried the matter. The facts are sufficiently set out in the ruling of the court delivered by Ampiah JSC.

Felix Quartey for the appellant.

Phillip Addison for the respondent.

Ampiah JSC. Delivered the judgment of the court. 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 31 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 (CI 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 12 September 1992. Article 145(2) of the Constitution, 1992 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

[p.401] of [1999-2000] 2 GLR 399

(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.”

(The emphasis is mine.) 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, 1992 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; and delivery of that judgment by a sitting judge could not validate the otherwise unlawful proceedings. Accordingly, we would allow the appeal and set side 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.

Appeal allowed.

LSNA