Justice Honyenuga: Opuni fails to remove retired judge from case

The High Court in Accra has dismissed an application by former Chief Executive Officer of the Ghana Cocoa Board (COCOBOD), Dr Stephen Opuni, which sought to remove the retired judge from continuing to preside over his case.

Dr Opuni, acting through his lawyers, had argued that the Chief Justice was not clothed with the power to extend retired Justice Clemence Honyenuga’s tenure by six months to continue hearing the case.

Context

Justice Honyenuga, a Supreme Court judge presiding over the case at the High Court judge, was due for retirement in September 2022.

Prior to his statutory retirement at age 70 for Supreme Court Justices, the Chief Justice, Justice Kwasi Anin Yeboah, supposedly in accordance with Article 145 of the 1992 Constitution, gave the retired judge six more months to conclude the case, which has been before the court since 2018.

Article 145(4) of the Constitution 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 in relation to proceedings that were commenced before him previous to his attaining that age”.

According to the lawyers of Dr Opuni, the appointing authority, which is the President, was the only person clothed with the power to extend Justice Honyenuga’s tenure and not the Chief Justice.

Ruling

However, in a ruling last Monday, Justice Honyenuga dismissed the application on grounds that the Chief Justice exercised his administrative power as the head of the judiciary when he extended his (Honyenuga’s) tenure in accordance with Article 145 of the 1992 Constitution.

Dr Opuni together with businessman, Seidu Agongo, are on trial for allegedly causing over GH¢217 million financial loss to the state in the supply and purchase of lithovit liquid fertiliser.

The two are before an Accra High Court slapped with 27 charges, including causing financial loss to the state, defrauding by false pretences, conspiracy to commit crime, abetment of crime, money laundering, and corruption by public officer and contravention of the Public Procurement Authority Act.

Application

Moving the motion counsel for Dr Opuni, Samuel Codjoe submitted that the Chief Justice engaged in an “unconstitutional act” when he extended the tenure of Justice Honyenuga.

Counsel added that the power to extend the tenure of a Supreme Court could not be exercised by the Chief Justice who was not the appointing authority.

“The only person who can grant an extension to the tenure of your lordship as contained in Article 145(4) is the President and not the Chief Justice,” he said.

Counsel added that although the Chief Justice was the administrative head of the judiciary, he could not grant an extension to the tenure of a judge who had attained the mandatory constitutional retirement age, hence the Chief Justice usurped the powers of the President.

Opposition

The Director of Public Prosecutions, Yvonne Atakora Obuobisa, opposed the application.

“The appointment and removal from office of a justice of the superior court is different from an extension to a judge previously hearing a case to continue with the matter for a limited period of time, and the Constitution handles them differently,” she said.

She added that in Articles 144 and 146 of the 1992 Constitution, the drafters of the Constitution said it was the President who appointed and removed Justices of the superior court.

“Nowhere in Article 139 or 145(4) is the President mentioned, and if the drafters intended for the President to give an extension, they would have stated so,” she added.

The presiding judge in dismissing the application indicated that the Chief Justice as the administrative head of the Judiciary had the power under the Constitution to extend the service of a retiring judge for the six-month period.

The case has been adjourned to November 16, 2022, for the trial to continue.