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JUDGEMENT
TORKORNOO (MRS.) JSC:- Article 133 of the 1992 Constitution provides the jurisdiction of the Supreme Court to review its decisions. It reads in
Power of Supreme Court to Review its Decisions
(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
(2) The Supreme Court, when reviewing its decisions under this article, shall be constituted by not less than seven justices of the Supreme Court
Rule 54 of the Supreme Court Rules 1996 C. I. 16 provides the extremely limited circumstances under which the Court may review its decisions
54. Grounds for Review
The Court may review any decision made or given by it on any of the following grounds –
a. Exceptional circumstances which have resulted in miscarriage of justice; b. Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given
Background
This is an application to review a decision of the ordinary bench of this Court dated 24th January 2023. The applicant before us is defending himself in a criminal trial in the high court before a Supreme Court judge sitting as an additional High Court judge. He applied for an order of perpetual injunction to restrain the judge from continuing to preside over the criminal trial on the grounds that (a) the learned judge had reached the compulsory retirement age of 70 years pursuant to article 145 (2) (a) of the 1992 Constitution, and so had ceased to be a judge and (b) that any extension to his tenure to continue sitting as an additional High Court judge by the Chief justice is unconstitutional and in breach of article 145 (2) (a). He also sought an order setting aside certain orders of the court.
Article 145 (2) (a) reads:
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;
The records supporting this application settle the position that the learned judge had been requested by the Honorable Chief Justice to continue in office for the purpose of completing proceedings that had been commenced before him prior to attaining the retirement age, including the trial of the applicant pursuant to Article 144 (11)
Article 144 (11) reads:
Notwithstanding the expiration of the peri