AMPIAH, J.S.C. (PRESIDING) · KPEGAH, J.S.C. · ADJABENG, J.S.C. · ACQUAH,
J.S.C. · AKUFFO, J.S.C. · AMPIAH, J.S.C.: THE SUPREME COURT OF JUSTICE ACCRA CA 13/98 FRANK ANNOR BOYE -DOE ) .. .. .. APPELLANT VRS. 1. ISAAC TEYE ) .. .. .. RESPONDENTS 2. NII ASHONG OMABOE ) This is an appeal from the decision of the Court of Appeal, a ffirming the decision of the High Court. The appeal was heard and a djourned to 31st March, 2000 for judgment. The court realised later that a legal point which had been raised when an a pplication for stay of execution was brought and which legal issue had more or less influenced the granting of an o rder 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 reasonab le opportunity to be heard under Rule 6(8) of the Supreme Court Rules, 1996 (C.I. 16). Counsel for the parties have a ccordingly submitted their a rgument for consideration in the appeal. Her Lordship Miss Justice Aryee, from the official records of the Judi cial Service, retired from the Service on 12th September, 1992. Article 145(2) of the Constitution 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 a ttaining 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 a ttaining the age of sixty -five years; or (c) upon his removal from office in a ccordance with a rticle 146 of this Constitution". Sub -clause (4) of this a rticle however, provides that — "(4) Notwithstanding that he has a ttained the age at which he is required by this a rticle to vacate his office, a person holding office as a Justice of a Superior Court or Ch airman of a Regional Tribunal may continue in office for a period not exceeding six months after a ttaining 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 a ttaining that age" (emphasis supplied). This provision a llows 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 hi m to deliver judgment or do any other thing in relation to proceedings that commenced before him previous to his a ttaining that age. It is not the intention of the framers of the Constitution that the retiring judge should automatically continue for the ma ximum period of six months; the retiring judge may be givenless than the six months but any period given him shall not exceed six months. The evidence
www.zuclibrary.org ZUC Law Platform -Shaping the Future of Law. 3 before us shows that the judgment of the High Court was delivered outside the constitutionally permissive period, a lbeit 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 a side the judgment of both the Court of Appeal and the High Court together with all costs a warded, if any. We would order that the case be remitted to the High Court to be expeditiously tried de novo. Since th is legal issue disposes of the appeal, we do not think it is necessary for us to go into the other grounds of appeal. SIGNED. A.K.B. AMPIAH JUSTICE OF THE SUPREME COURT.
SIGNED. F.Y KPEGAH JUSTICE OF THE SUPREME COURT. E.D.K. ADJABENG JUSTICE
OF THE SUPREM E COURT. G.K. ACQUAH JUSTICE OF THE SUPREME COURT. S.A.B.
AKUFFO (MISS) JUSTICE OF THE SUPREME COURT.
COUNSEL
