The applicant Mr Okiya Omtatah, an interested party in this matter, filed a notice of preliminary objection on May 31, 2016.
He argued that the Supreme Court has no jurisdiction to entertain the present matter since all the judges of the court have either supported or opposed the contention that judges appointed under the repealed Constitution should retire upon attaining the age of 70.
He submitted that by provision of Article 50(1) of the Constitution, the jurisdiction of a court can only be exercised where the court is impartial and that if the court is partial, it is stripped of its jurisdiction.
Elaborating on this issue, Omtatah submitted that a court cannot exercise jurisdiction where doing so would violate the enjoyment of the absolute right to a fair trial and that jurisdiction must be declined where a court is so conflicted that it cannot be impartial.
It is trite law that a preliminary objection must be on a pure point of law and it must be on the assumption that all the facts pleaded by the other party are correct. A preliminary objection cannot be raised if ascertainment of the facts is required or if what is sought by it, is the exercise of judicial discretion.
The second ground of objection is based on the contention that this court is stripped of jurisdiction by Article 50(1) since it is partial. The issue of lack of impartiality of this court calls for ascertainment of facts.
It is an issue to be determined by this court once cogent evidence is tendered to that effect, hence it would be more appropriately canvassed during the hearing of the application on merit.
However, it must be pointed out that this court derives its jurisdiction from Article 163 and not Article 50. As such, the basis of this ground of objection is misplaced.
The third ground is based on Articles 50(1) and 73(1), which Omtatah argues make it mandatory for the judges to disqualify themselves since they have taken sides on the subject matter of the suit before the court.
Any finding to vacate the conservatory orders at this preliminary stage is premature and not within any legal procedure that I know of.
I am inclined to make the following orders: The preliminary objection is hereby dismissed and the parties to proceed to be heard inter partes on the main application as a matter of course.
