Opuni-Agongo trial: Articles 139, 145 need Supreme Court interpretation – Lawyers tell retired Justice Honyenuga

Retired Supreme Court judge, Justice Clemence Jackson Honyenuga has been asked to refer to the Supreme Court for interpretation, a constitutional crisis arising from an article he is deriving his powers from to continue sitting on a case at the High Court even though he is on retirement.

The provision in question, Article 145(4) states: “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 about proceedings that were commenced before him previous to his attaining that age”.

However, the bone of contention is: who has the mandate to extend the retirement of a superior court judge appointed by the president: is it the president who is the appointing authority or the Chief Justice who is the administrative head of the judiciary?

The former COCOBOD Chief Executive, Dr Stephen Opuni and businessman Seidu Agongo as well as Agricult Ghana Limited, are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.

The case is currently being heard by Justice Clemence Honyenuga, as an additional High Court judge, who officially retired as a Supreme Court judge on September 4, 2022 when he attained the age of 70.

The retired judge dismissed a motion asking him to step aside because he has attained the compulsory retirement age. The judge had initially relied heavily on a letter from the Chief Justice extending his stay in office based on article 144 (11), which he told the court on July 28, 2022.

Justice Honyenuga later admitted misreading the constitution. He, therefore, for the first time, read the purported letter from the Chief Justice in court on November 14, which then corrected the error, stating that his stay on the case is rather based on article 139 (1) (c).

But counsel for Dr Opuni, Samuel Codjoe insisted that the Chief Justice acted unconstitutionally when he asked the retired judge to continue to hear the case.

“When therefore the CJ gave the warrant, even if it is not under Article 144 (11), he acted unconstitutionally, he usurped the powers of the president,” Mr. Codjoe stressed.

Counsel further argued, “it is only the person who has the power to appoint who can grant an extension. The Chief Justice has no power to appoint a Supreme Court judge”.

But the Director of Public Prosecution, Yvonne Attakora Obuobisa opposed the application, noting that it has no basis in law.

She argued that the Chief Justice has the power under the constitution to grant the extension to Justice Honyenuga to sit for a limited period.

“My lord the power of the Chief Justice to do so is found in Article 139 (1) (c).”

She also cited Article 145 (1) (2) and (4) and argued, “my lord in a very simple term, this means your lordship on attaining the age of 70, you may continue in office for a period not exceeding six months…”

Even though Article 145 (4) was silent on who should give the extension, the director of public prosecution told the court that the framers of the constitution had the Chief Justice in mind.

Justice Honyenuga dismissed the application asking him to step aside and stated that Article 145 must be read in conjunction with Article 139.

His ruling prompted counsel for Dr. Opuni to file a subsequent application asking the court to stay proceedings and a referral of articles 139(1) (c), 145(4) of the 1992 Constitution for interpretation and a determination of whether or not it is the President and not the Chief Justice who has the power to extend the tenure of office of superior court justices who have attained the mandatory retirement ages under Article 130 (2) of the 1992 Constitution and under the inherent jurisdiction of the court

Counsel for Seidu Agongo also filed affidavit in support of the application, whilst an affidavit in opposition was filed by the prosecution who had earlier waived its right to file affidavit in opposition.

Meanwhile, the court has ordered parties in the case to file their written submissions on or before Monday, November 28, 2022. Sitting was adjourned to December 1, 2022.

Excerpts of affidavit by Dr. Opuni

That the learned judge in the proceedings of the 28^th day of July, 2022, stated unequivocally in court that pursuant to Article 144 (11) of the 1992 Constitution, he had been granted a limited time by His Lordship the Chief Justice to conclude the case upon attaining the retirement age of seventy (70) years on the 4^th day of September 2022.

That by an application dated the 7^th day of November,2022, I applied to this Honourable Court for an order to set aside the Court’s order dated the 28^th day of July,2022 on the grounds that having retired as a Supreme Court judge, the Chief Justice did not have the power to extend the tenure of office of his lordship Justice Clemence Jackson Honyenuga to continue hearing the matter for that limited period. Attached hereto as exhibit OP1 is a copy of the said application and counsel informs me that at the hearing of the application he shall extensively refer to same.

That the Prosecution through Stella Ohene Appiah, a Principal State Attorney filed an affidavit in opposition dated the 9^th day of November,2022 in which she stated in paragraph 8 that the Chief Justice under the Constitution,1992 has the power to extend the tenure of office of his lordship Justice Clemence Jackson Honyenuga to determine the case within a limited time. Attached hereto as OP2 is a copy of the affidavit in opposition filed by the Prosecution in opposition to my motion.

That the Prosecution further stated in the said affidavit in opposition that the extension granted his lordship Clemence Justice Jackson Honyenuga did not breach article 145 (2) (a) of the Constitution, 1992.

That at the hearing of the application on the 14^th day of November,2022, my counsel referred the Court to article 144 (11) of the Consitution,1992 which provision the court on the 28^th day of July,2022 stated was the basis of the extension of his tenure of office by the Chief Justice and submitted that the said article 144 (11) of the Constitution,1992 refers to persons appointed by the president of the Republic of Ghana under article 144 (9) of the Constitution and that the said provision does not grant any power to the Chief Justice to extend the tenure of office of superior Court justices upon their attaining the retirement age. At the hearing my counsel informs me that he will refer extensively to the proceedings of the said 14^th day of November 2022.

That my counsel further submitted that the constitutional provision dealing with the extension of the tenure of office of retired justices for a limited period is article 145 (4) of the constitution,1992 and not article 144 (11) of the constitution as contained in the order of the Honourable Court dated the 28^th day of July,2022.

That my counsel submitted that by virtue of article 144 (2) of Constitution,1992, the president as the appointing authority of superior court justices is the only person mandated under the constitution to extend the tenure of office of a retired justice under article 145 (4) of the Constitution,1992 for not more than 6 (six) months upon attaining retirement.

That the Prosecution through the Director of Public Prosecution (DPP) in her argument before the Honourable Court placed a rival meaning on article 145 (4) of the Constitution and argued that by virtue of article 139 (1) (c) of the Constitution,1992, it is the Chief Justice who has the power to extend the tenure of office of justices of the superior courts upon their attainment of the mandatory retirement age and not the President as argued by my counsel.

That my counsel in reply  disagreed with the submission of the DPP and submitted that other justices of the Superior Court of Judicature referred to under article 139 (1)( c) of the Constitution are existing justices of the Court of Appeal and the Supreme court who are requested by the Chief Justice in writing to sit as additional high court judges and not retired judges He further submitted that the Chief Justice therefore acted unconstitutionally when he extended the tenure of office of his lordship Justice Clemence Justice Jackson Honyenuga to sit on the matter after he had attained the age of 70 (seventy) years which is the mandatory retirement age of Supreme Court judges.

That I have been advised by counsel and verily believe same to be true that in so far as rival meanings have been placed on articles 139 (1) ( c) and 145 (4) of the Constitution,1992 by the parties, an issue of interpretation of the Constitution had arisen and the Honourable Court was bound by virtue of article 130 (2) of the Constitution, 1992 to stay proceedings and refer the matter to the Supreme Court for interpretation of same and a determination of whether or not it is the President and not the Chief Justice who has the power under the said provisions to extend the tenure of office of justices of the Superior Court of Judicature for the limited period stated in article 145 (4) of the Constitution,1992.

That despite the fact that an interpretation issue had arisen in the hearing of the application before the Honourable Court, the Court proceeded in its ruling on the 14^th day of November 2022 to usurp the exclusive power of the Supreme Court by interpreting the said provisions notwithstanding. The court held that reading articles 139 (1) (c) of the Constitution,1992 in conjunction with articles 145 (4) of the constitution,1992. The court held it is the Chief Justice of the Republic of Ghana and not the President who has the power to extend the tenure of office of justices of the Superior Court of Judicature upon the attainment of the mandatory retirement age for a limited period. At the hearing of this application, counsel informs me that he will refer extensively to the ruling of the court.

That I have been advised by counsel and verily believe same to be true that the court erred when it failed to stay proceedings in the matter and refer the matter to the Supreme Court for a determination as stated in article 130 (2) of the Constitution, 1992 and proceeded to hear and dismiss my application. This is more so when rival meanings have been placed on articles 139 (1) (c) and 145 (4) of the Constitution, 1992 by the parties on the determination of whether the Chief Justice has the power to extend the tenure of office of superior court judges for a limited period under article 145 (4) of the Constitution.

That I am further advised by counsel and verily believe same to be true that in instances where rivals meanings have been placed on any provisions of the constitution, the court has no discretion and is bound to refer the matter to the Supreme court which has the sole mandate to interpret any provisions of constitution.

That in the circumstances I pray that this Honourable Court in the exercise of its inherent jurisdiction set aside its ruling on the 14^th day of November,2022 as a nullity by virtue of a breach of article 130 (2) of the Constitution. This court should further stay proceedings in the case as stipulated under 130(2) of the Constitution refer articles 139 (1) (c) and 145 (4) of the Constitution,1992 to the Supreme Court for interpretation and a determination on whether or not it is the president and not the Chief Justice who has the power to extend the tenure of office of a superior court justice who has attained the mandatory retirement age.