REPUBLIC v. FAST TRACK COURT, ACCRA

PROF. KLUDZE, J.S.C.:

(Read the Opinion of the Court) The Applicant is asking us for two reliefs, either cumulatively or in the alternative. In either case, the result will be to disqualify Mr Justice D. K. Afreh, Justice of the Supreme Court, from sitting as an Additional Judge of the High Court.

In seeking to disqualify Mr Justice Afreh, the Applicant argues that on a proper reading of Article 145(2)(b) of the Constitution, he is not competent to sit in the High Court because he has passed the age of 65 which is the prescribed maximum age for High Court Judges.

The Applicant also argues that, in any event, having attained the age of 70 years in March, Mr Justice Afreh cannot continue to sit in any Court except for a six month period to complete cases which had been commenced before him pursuant to Article 145(2) of the Constitution. In support of this second ground, the Applicant says that, although Mr Justice Afreh had dealt with some interlocutory matters in their case, the proceedings had not actually commenced before him within the intendment of Article 145(4) of the Constitution.

As regards Mr Justice Afreh"s capacity to sit as an Additional Judge of the High Court, the Applicant's contention is that, Article 145(2)(b) squarely catches him and disqualifies him. We are accordingly urged to read Article 145(2)(b) of the Constitution. In our opinion, Article 145(2)(b) of our Constitution is unambiguous and allows for no argument. It expressly states that a Judge of the High Court must retire on attainment of 65 years of age. It means that a High Court Judge must vacate his office upon attainment of 65 years, otherwise, excepting for the grace period of six months to wind up cases by virtue of Article 145(4), anything done by him thereafter is a nullity. It also implies that a person who is 65 years or older cannot be appointed to the office of Judge of the High Court. Therefore, the Applicant extrapolates from these valid premises to contend that, as Mr Justice Afreh had attained the age of 65, his designation as an Additional Judge of the High Court by the Chief Justice is in contravention of a clear and undebatable provision of the Constitution, to wit Article 145(2)(b) thereof. The logic of the Applicant's position is that, if Mr Justice Afreh was not qualified to hold the office of a High Court Judge by reason of his age, the Chief Justice cannot appoint him as an Additional Judge of the High Court where he is constitutionally prohibited from s