FRANK ANNOR BOYE-DOE vs. ISAAC TEYE & NII ASHONG OMABOE [2000]DLSC2346

Date	2000-07-12
Suit No.	CA 13/98
Citation No.	[2000]DLSC2346

AMPIAH J.S.C

KPEGAH J.S.C.

ADJABENG J.S.C.

ACQUAH J.S.C.

AKUFFO J.S.C.

MR. FELIX QUARTEY FOR APPELLANT.

MR. PHILIP ADDISON FOR RESPONDENT.

[2000]DLSC2346
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													<main id="main" class="content" style="min-height: 60rem" >FRANK ANNOR BOYE-DOE<o:p></o:p>vs.<o:p></o:p>ISAAC TEYE &amp; NII ASHONG OMABOE<o:p></o:p>[SUPREME
COURT OF JUSTICE]<o:p></o:p>CA
13/98<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 12TH
JULY, 2000.<o:p></o:p>

MR.
PHILIP ADDISON FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AMPIAH
J.S.C. (PRESIDING), KPEGAH J.S.C., ADJABENG J.S.C. , ACQUAH J.S.C., AKUFFO&nbsp; J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>AMPIAH,
J.S.C.:<o:p></o:p>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 31st 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 (C.I.
16). Counsel for the parties have accordingly submitted their argument for
consideration in the appeal.<o:p></o:p>Her
Lordship Miss Justice Aryee, from the official records of the Judicial Service,
retired from the Service on 12th September, 1992.<o:p></o:p>Article
145(2) of the Constitution provides,<o:p></o:p>"(2)&nbsp; A Justice of a Superior Court or a Chairman
of a Regional Tribunal shall vacate his office—<o:p></o:p>(a)&nbsp;&nbsp;
in the case of a Justice of the Supreme Court or the Court of Appeal, on
attaining the age of seventy years; or<o:p></o:p>(b)&nbsp;
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<o:p></o:p>(c)&nbsp;
upon his removal from office in accordance with article 146 of this
Constitution".<o:p></o:p>Sub-clause
(4) of this article however, provides that—<o:p></o:p>"(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" <o:p></o:p><o:p>&nbsp;</o:p>(Emphasis
supplied).<o:p></o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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: delivering that judgment by a sitting
judge could not validate the otherwise unlawful proceedings. Accordingly, we
would allow the appeal and set aside 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.<o:p></o:p>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.<o:p></o:p>SIGNED.<o:p></o:p>A.K.B.
AMPIAH<o:p></o:p>JUSTICE
OF THE SUPREME COURT.<o:p></o:p>SIGNED.<o:p></o:p>F.Y
KPEGAH<o:p></o:p>JUSTICE
OF THE SUPREME COURT.<o:p></o:p>E.D.K.
ADJABENG<o:p></o:p>