FACULTY OF LAW

THE DIARY
A collection of notes, articles, and cases
treated under Constitutional Law, Legal
Systems and Legal Methods basically for
First Year Law Students. Also comes with
past questions

2011 - 2012

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 TABLE OF CONTENTS
General information
Table of abbreviations iv
Table of Ghanaian cases v - vii
Table of foreign cases viii - x
Solving problem questions xi - xv
How to brief cases xvi– xvii

PART A; CONSTITUTIONAL LAW 1-146

 Nature and Scope of Constitutional Law
 Concept of Constitutional Supremacy
 Constitutionalism
 Rule of Law
 Exercise of Discretionary Power
 Principles of Separation of Power
 Judicial Review
 Judicial Independence
 Constitutional Evolution of Ghana (up to 1960)
 Constitutional Interpretation
 Commissions of Inquiry
 Traditional Constitutional Governments - Chieftaincy

PART B; LEGAL SYSTEMS 147- 206

 The Ghana Legal System
 Jurisdiction of a Court
 Rules of Natural Justice
 Customary Law
 Legal Aid
 Judicial Personnel; Appointment and Tenure of Office
 Litigation and Alternative Dispute Resolution

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PART C; LEGAL METHODS 207 – 342
 Law in Social Context
 Legal Systems
 The Common Law Concept
 Equity
 Judicial Precedents
 Interpretation of Statute
 Maxims / Canons of Statutory Interpretation
 Rules on Interpreting Statute

 Retrospective Legislation
 Presumption Against Retrospective Legislation
 Pending Actions and Changes in Law

 Presumptions
 Delegated Legislation or Subsidiary Legislation
 Remedies
 Damages
 Injunctions
 Rescission
 Rectification
 Specific Performance
 Quantum Meriut

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GENERAL INFORMATION
This is an almost complete notes on constitutional law, legal system and legal methods and
this notes was done for LL.B, years 1 (part time) and 2 (full time undergraduates). It also
contains the briefs and necessary portions of some of the cases stated in the study guides. It
also has the necessary articles of the Constitution and sections of other relevant legislations
inserted. THIS CANNOT BE SAID TO CONTAIN ALL WHAT IS NEEDED FOR THE
COURSES, because, the lecturers may add certain materials necessary and it is always
necessary to look up references given in the notes. ATTENDANCE TO LECTURES is
also very important in order to have a good understanding of the course. This note, being
the writer’s personal notes, is not intended to be published.
COMPILER.

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 TABLE OF ABBRIVIATIONS

JSC……………. Justice of the Supreme Court

JA……………... Justice of the Court of Appeal
J……………….. Justice of the High Court
MR ……………. Master of the Rolls
All ER…………. All England Report
AC…………….. Appeal Cases
KB…………….. Kings Bench
QB…………….. Queen’s Bench
SC……………... Supreme Court
GLR…………… Ghana Law Report
Art…………….. Article (as used in the constitution)
GBR…………... Ghana Bar Report
CJ……………... Chief Justice
Ch…………….. Chancery Division (a court division in England)
RGL…………... Review of Ghana Law
UGLJ…………. University of Ghana Law Journal
CC…………….. Current Cases

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 TABLE OF GHANAIAN CASES
1. Adofo v Attorney General
2. New Patriotic Party v Attorney General (31st December case)
3. NPP v Ghana Broadcasting Corporation
4. NPP V Electoral Commission
5. Dei Darke X11 (1991) 2 GLR SC 318
6. In re Oppong (Decd); Mensah v Bediako (1991) 2 GLR 357
7. Tsatsu Tsikata (No 1) v Attorney-General (No 1)
8. Tuffour v Attorney General
9. Re Akoto
10. Republic v High Court; Ex parte Agyei
11. Agyei Twum v Attorney General
12. New Patriotic Party v Inspector General of Police
13. Osman v Darko
14. Republic v Volta Region Chieftaincy Committee and Another, Ex parte Asor
15. Republic v committee of Inquiry (R. T. Briscoe) (Ghana) ltd. Ex Parte R. T. Briscoe (Ghana)
Ltd.
16. Republic v PNDC Secretary, Ex Parte Oti
17. Republic v Otu Ex part Attorney General
18. Gbedemah v Awoonor Williams
19. Darkwa v the Republic
20. Akainyah v The Republic
21. Inkumsah v The Republic
22. Quayson v Attorney General
23. Kwpong v GCMB
24. Akosua Bedaabuo v Yaa Hima (1948-51) DC Land 232
25. Sfarijiani v Bassil (1973) 2 GLR 260
26. Dochie v State (1965) GLR 208
27. Mahama v Kotia (1989-90) GLR

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28. Bilson v Apaloo (1981) GLR 15
29. Fattal and Another v Minister for Internal Affairs and Another
30. Republic v Liberty Press Ltd (1968) GLR 123
31. Kyereme v Adu (1962) 1 GLR 540, (1987-88) 1 GLR 137.
32. Foli v the State
33. Adjei Twum v Attorney General (2005-06) SC GLR 732
34. Ghana Commercial Bank v Commission on Human Rights and Administrative Justice (2003-
04) SC GLR 91
35. Appiah v The Republic (1997-98) 1 GLR 219
36. Kunadu v Yiadom (1995-96) 1 GLR 8
37. Republic v High Court, Koforidua (1998-99) SC GLR 91
38. Charmant v Mensah (1982-83) GLR 65
39. Republic v Adansi Traditional Council (1972) 2 GLR 126
40. Ghanatta v Board of Trustees (1993-94) 1 GLR 316
41. Anin v Ababio (1993) 1 GLR 509
42. Akati v Nartey (1980) GLR 218
43. Watara v Republic (1974)2 GLR 24
44. Accra Heart of Oak v Ghana Football Association (1982-83) GLR 11
45. Aboagye v Ghana Commercial Bank (2001-2002),
46. Akosua Bedaabuo v Yaa Hima (1948-51) DC Land 232
47. Saawa v Dumah (1991) 1 GLR 452
48. kpe koro v the republic (1980) GLR 580
49. Yakubu v Attorney –General (1993-94) 1 GLR 307
50. Ghana Bar Association v Attorney General and Another (1995-96) 1 GLR 598
51. State v Yankey (1966) GLR 208
52. Ellis and Woode family v Raffour (1975) 2 GLR
53. Anaman v Osei Tutu (1976) 1 GLR 111 @ 114
54. Vanderpuye v Nartey (1977) 1 GLR 428
55. Blay-Morceh v Ghana AirwaysCorporation (1972) 2 GLR 254-261
56. Frafra v Boakye (1976) 2 GLR 332
57. Awuni v WAEC
58. Republic v fast track high court, Ex-Parte CHRAJ (Richard Anane as interested party)
59. Bank of Ghana v Labone Weavers Enterprises Ltd

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60. Nyameneba v The State (1965) GLR 723

TABLE OF FOREIGHN
1. Mahon v Air New Zealand
2. Philips v Bury
3. Australian case of Accident Compensation Commission v Detar
4. Trapp v Mackie
5. Basil v Honger
6. Powell v Kempton Park Race Course
7. St. Paul’s v the Dean
8. Sigsworth, Re, Bedford v Bedford (1935; Ch 89)
9. Smith v Hughes [1960] 2 All E.R. 859
10. Bank of England v Vagliano
11. Paton v British Pregnancy Advisory Services Trustees
12. Harbley v Bexenealy.
13. Bay v Browning (1878)10 Ch 294
14. la Roche and Company v Secretary of State for Trade and Industry (1975) AC 295
15. American Cynamine Company v Ethicon Ltd (1975) AC 396
16. Anton Pillar v Manufacturing Processes Ltd (1976)Ch 65
17. Solle v Butcher
18. Lumley v Wagner and De Francisco v Barnum (1840) 45 Ch 480
19. Ryan v Mutual Tontine West Minster Chambers Association (1893) 1 Ch 116
20. Lavery v Persell (1888) 39 Ch 508
21. Brownsea Heaven v Poole Corporation (1958) 1 Ch 595
22. Associated Provincial House Ltd v Wednesbury Corporation (1948) 1 KB 223
23. Council for Civil Service Union v the Minister for the Civil Service (1984) AC 374
24. Marbury v Madison
25. Nottinghamshire County Council v Secretary of State for the Environment (1986) AC 240
26. R v Panel on Take-Over and Mergers, ex parte Datafin plc
27. R v Advertising Standards Authority Ltd ex parte The Insurance Service pls (1989)
28. R v Football Association ex parte Football League (1993) 2 All ER 833

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29. R v Home Secretary ex parte Brind (1991) 1 AC 696
30. R v St. Pancras Vestry (1890) 24 QBD 371
31. R v Hillington LBC, ex parte Royco Homes Ltd (1974) QB 720
32. Walsh v Lonsdale.
33. Boyer v Warbey
34. Australian Blue Metal Ltd v Hughes
35. United scientific Holdings Ltd v Burnley Borough Council
36. Seager v Copydex Ltd
37. Argyll (Duchess) v Argyll (Duke)
38. Penn v Lord Baltimore
39. Webster v Cecil (1861) 30 Beav 62
40. Patel v Ali (1984) Ch 283
41. Lazard Bros and Co. Ltd. v Fairfield Properties (Mayfair) Ltd. (1977) SJ 793
42. Penn v Lord Baltimore (1750) 1 Ves Sen 444
43. Magor & St Mellons RDC v Newport Corporation (1952))
44. Joscelyn v Nissen (1972) QB 86
45. Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd [1953] 2 QB 450
46. A Roberts & Co v Leicestershire CC [1961] Ch. 555 [1961] 2 W.L.R. 1000
47. Commission for the New Towns v Cooper (GB) Ltd [1995] Ch 259, 280
48. Attorney General of Anambra State v Attorney General of Bornu State (1993) 1 WA SCR 78
49. Long v Lloyd

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 SOLVING PROBLEM QUESTIONS IN LAW

INTRODUCTION

Problem-based questions in law are intended to test your ability to identify and apply the relevant
legal principles to a given hypothetical factual scenario. The key to achieving a good grade in
answering a problem question is to:

(a) demonstrate your knowledge of the law by identifying the actual legal issues behind the facts of
the problem being posed and;

(b) demonstrate your understanding of the law by applying the relevant law to the facts in question.

A problem question sets you a task. This is usually to 'Advise X or 'Advise the parties on their rights
and liabilities (if any) in respect of the issues raised’ by the question. It is, therefore, important when
answering problem questions to ensure that you address the question and always complete this task.
For example, 'in conclusion', you should always 'advise X' or 'advise the parties’ in question on their
rights and liabilities in respect of the specific issues raised by the problem.

Planning your answer is particularly important because problem questions frequently contain a number
of different issues and they can sometimes involve a number of potential claimants and defendants. It
is also important to remember that there is not necessarily a ‘right’ answer to a problem but there is a
correct approach. One approach that students find helpful is to use the AIRAC mnemonic by
following the steps listed below.

Area of law

Identify the legal issue(s)

Rule - define and explain the legal rule and/or principle
Apply the rule/principle to the facts in question
Conclusion which sums up the advice to the party/parties

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Identify the legal issue(s).

Identify clearly the factual issues on which advice is sought. This important stage in your answer
involves identifying what the question is about from a legal point of view. As you are reading
through the question you must take care to spot and make a note of these issues and any defences
which may be available. At this point you might discover a party who has no recognizable legal claim
or a claimant who does have a claim but who will have no legal remedy or reduced damages because
the facts show that the defendant will be able to establish one of the defences. Each of the separate
issues identified as you read through your examination paper should be isolated and dealt with
separately in your answer.

Once you have decided on the questions from an examination paper that you intend to attempt, before
you start writing out your answer, for each of these questions you should:

(a) outline the issue/s and the loss/damage suffered in each case

(b) identify the potential claimants and defendants and

(c) list any defences that might be applicable. Not only will this approach give your answer a
clear structure, it will also provide you with a helpful reference point as you work through
your answer. This can be particularly helpful in an exam situation, where time management is
important, to ensure that you don’t spend a disproportionate amount of your time on any one
question.

Rule - define and explain the legal rule and/or principle

Identify the principles of law which are relevant to the issue(s) and explain the legal principles, giving
authority (case law or statute, as appropriate). Identifying the relevant law is a filtering process and
this process should include discussion of any areas where the state of the law is in doubt. On the basis
of this process any irrelevant law should be filtered out at this stage and only the law which is
pertinent to your answer should be retained.

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Apply the rule/principle to the facts in question

The law must be applied to support your discussion. It is at this stage that you must focus on
constructing a logical argument and make a sensible attempt to apply the law to the factual issues. At
this stage you should also identify any additional factual information about the problem which a court
would need to come to a firm conclusion.

Conclusion

You should conclude your answer with a short paragraph containing your advice. If you have worked
through your answer in a logical order there will be no need for a lengthy conclusion. You should note
that in summarizing the advice it will not usually be possible to come to a firm conclusion about the
outcome of a dispute since there is likely to be additional factual information required. In some cases,
the uncertain state of the law would make the outcome impossible to predict with certainty, even if all
the factual information was available. You should distinguish clearly between areas of factual
uncertainty and areas of legal uncertainty. Lengthy discussion of possible alternative factual scenarios
will only be appropriate if necessary to explain different possible outcomes of the application of the
relevant legal principles to the facts, otherwise such discussion will not earn marks but will instead be
a waste of precious time.

Common errors in answering problem questions

 Failing to read the question properly

During examinations many students underperform because, in their haste, they either fail to
read the question correctly or to follow instructions.

 Telling ‘the story’ of the case

In using case law authority, it is not usually necessary to tell ‘the story’ of the case. Discussion
of the facts of the cited case will only be relevant if the student wishes to point out that the
facts are so similar to the case in question that it would seem impossible to distinguish them

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 or, alternatively, if you wish to point to some difference between the two fact situations which
makes it possible that the two could be distinguished.

 Failing to consider the position of all the parties in a dispute

Issues should be explored from all sides and advising a particular party will involve
considering the arguments which the opposing party or parties will employ.

 Restating the question

Students sometimes lose precious time rewriting the facts in the question and if you find
yourself doing this remember that you are not earning marks.

To become really competent at answering problem questions practice is essential. Like learning to ride
a bicycle, to become really competent at answering problem questions you will need to practise: the
more you do, the sooner it will become second nature to you. One of the most valuable ways of getting
this practice is to prepare written answers to tutorial questions for use in class discussion

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 HOW TO BRIEF CASES

Facts:

Summarize the facts of the case. List only the essential facts that you need to understand the holding
and reasoning of the case.

NB The facts of the case is the story which makes up the case which resulted in it being sent to
court for adjudication. The holding of the case is the judgement in summery of what the court
adjudicated. Reasoning of the court refers to how the judge/s came up with their holding, that
is, the thinking of the court that resulted in their final jugement

Procedure:

Most of the cases that you'll read in the faculty and law school will be appellate court decisions. In this
section, you want to list what happened in the lower court(s). Do not go into too much detail. One or
two sentences are sufficient for this section.

Issue(s):

What is/are the question(s) facing the court? Form the issue questions in a way that they can be
answered by yes or no.

Holding:

How did the court answer the issue question(s)? YES/NO?

Reasoning:

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This is the most important section of your case brief. Here you want to list the reasoning of the
majority in reaching its decision. You can actually be quite detailed in this section. List what the law
was before this case was decided and how the law has changed after this decision. Law professors love
to discuss the reasoning of a case in class discussions.

Concurring/dissenting opinions:

Even though the concurring and dissenting opinions are read, they are rarely briefed. However, there
are some cases (e.g. Youngstown Sheet & Tube Co. v. Sawyer) where the concurring or dissenting
opinions end up becoming more important than the majority's opinions. In such cases, you should add
this section to your case brief.

Comments/Critic:

This mainly involves your own views about the decision given by the court in the light of the concept
giving you.

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 NATURE AND SCOPE OF CONSTITUTIONAL LAW
INTRODUCTION

This topic mainly deals with the nature and scope of constitutional law as a whole, the various
definitions of constitution as given by some authors and scholars, and lastly, the types of constitutions

DEFINITION

The term constitutional law has been a subject of various definitions. According to Hood et al
(constitutional and administrative law, 5th edition), constitutional law is the law relating to the
constitution of the state. The key features of this definition are the employment of terms such as law,
state and constitution. One may ask, how holistic is this definition vis-a-vis our understanding of the
meaning of the term? The definition assumes that, the study of constitutional law is fixed on
conceptual phenomenon called the constitution. It is essential then that we attempt an understanding of
the contexts in which the authors here employed the concept.

WHAT IS A CONSTITUTION

The authors employed the word constitution in two senses namely, the abstract and the concrete
senses. In the abstract sense, the constitution is the system of laws, customs and conventions, which
defines the composition and powers of organs of the state and regulate organs to one another. On the
other hand, they define the constitution in the concrete sense to mean the document in which the most
important laws of the constitution are authoritatively stated. In this sense, theauthors conclude that the
United Kingdom has no constitution in the concrete sense.

How helpful is this dichotomy to our understanding of constitutions. What is the effect of a country
having a constitution in the abstract sense but not the concrete sense? Further, we are not sufficiently
clear on whether the document must refer to itself as a constitution to qualify as a constitution in the
concrete sense. Or will it qualify so long as it embodies the most important laws notwithstanding the

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nomenclature or designation employed? Whatever it may be called, it is submitted that this definition
may be confusing. The question that readily comes to mind is whether constitutional law pertains in
military regimes since these regimes almost invariably rule without constitutions in the normative
sense.
Another definition worth considering is that given by Sir Ivor Jennings. He defined a constitution as
the document in which are set out the rules governing the composition, powers and methods of
operation of the main institutions of government and the general principles defining the relationship
between the state and the citizens. The emphasis on a single monolithic document is apparent. Of
significance is his stress on the creative and distributive role of the constitution concerning the powers
of government. It should however be noted that most constitutions do not spell out in full, all the
powers and functions of government. The constitution merely provide for powers of the organs of
government only in broad and general terms. As noted earlier, there appears to be an over-emphasis on
the constitution being found in a single document. The difficulty of Jennings’ definition is that it
conflicts with the widely held view that the United Kingdom’s constitution is scattered in various
documents such as the Magna Carta, Bill of Rights, Act of Settlement, etc.

This seeming difficulty of holistically defining what a constitution is has led to situations where jurists
have attempted defining it by distinguishing it from ordinary law. Thus, in the view of Bryce, it began
in a formal agreement. Other attempts have dwelt on the speciality of amendment. In the view of H.W.
Horwill, constitutions are said to be a higher form of law, in that, the law (or some of it) are out of
reach of the legislature (compare articles 289 and 3(1), and section 37 of the 1992 constitution of
Ghana). How accurate is this especially as in some countries the constitution is so flexible that it can
be amended in an ordinary way by the legislature. This notwithstanding, note must be given to section
37 and article 3(1) of the constitution, 1992, regarding the non-amendable provisions. Similarly,
Keeton also notes that a constitution is that which can be altered only by a solemn act, of a special and
occasional nature which is distinct from the processes applicable to ordinary legislation. It is clear that
this definition focuses more on the possibility of amendment if any. (This represents a classification of
constitutions)

Finally, Munro notes that a constitution is the body of rules and arrangements relating to the
government of a country. This definition avoids the pitfall of limiting itself to a particular
document.However written a county’s constitution may be, not all the essential rules of governance
are comprehensively spelt out in it. It is significant in this regard that the much touted locus classicus

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of a written constitution in the world (the United States constitution) contains only broad outlines of
rules and regulations. On the other hand, it fully accommodates the school of thought that the British
system has a constitution, since by and large, the British administration is regulated by a body of rules

We can then conclude that by a constitution, we mean a document that has the force of law, enacted by
the people that take precedence over all the other laws.

TYPES OF CONSTITUTIONS

Constitutions are variously classified and among these are written and unwritten, flexible and rigid,
federal and unitary, monarchical and republican constitutions.

1. Written or unwritten constitution

The emphasis of this particular classification is on whether the constitution can be found in
a single monolithic document or not. Whereas a written constitution is said to be contained
in one document an unwritten constitution is said to be manifested in scattered laws by which
the framework of government is defined or established. Examples of countries with written
constitution are; Ghana, United States of America, Nigeria etc. A perfect example of countries
with unwritten constitution is Britain.

2. Federal and unitary

This classification is based on the centralization or devolution of constitutional powers.
The former disperses power to semi-autonomous parts whereas the latter concentrates political
or governmental power in the hands of the central government. An example of a federal
constitution is that of Nigeria. Again, Ghana’s constitution is of a unitary nature.

3. Monarchical and republican

Monarchical constitutions are constitutions that are based on a regime headed by a
monarchy whereas republican constitutions are constitutions with elected leaders. This
classification is therefore based on the electability of political leaders or otherwise. Thus in
a monarchy, political power is exercised on the basis of a membership of a particular royal
family whereas in a republican system, legitimate political power is exercised only upon the

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 conferment of such power through the ballot box. A perfect example of a state with
monarchical constitution is England. For republican constitutions, we have the 1992 fourth
republican constitution of Ghana. Nigeria also has a republican constitution.

4. Flexible or rigid constitution

This classification is done on the basis of the difficulty or otherwise of amending the
constitution. Whereas flexible constitutions are relatively easier to amend, rigid constitutions
involve elaborate processes for amendment which may include a popular referendum. An
example of a rigid constitution is the 1992 republican constitution of Ghana. The British
constitution is the flexible type.

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 CONCEPT OF CONSTITUTIONAL SUPREMACY

INTRODUCTION

This topic will first of all deal very briefly with what parliamentary supremacy, which is in contrast
with constitutional supremacy, is and its characteristics. The concept of constitutional supremacy will
also be dealt with. The last leg will deal with analysing the concept of constitutional supremacy under
the 1992 constitution in the light of decided cases

PARLIAMENTARY SUPREMACY

Parliamentary Supremacy means that parliament is supreme. It is also called legislative supremacy
because the legislature is not a body created by the Constitution, neither is the power of the legislature
limited by the Constitution. Legislature exercises an unlimited and supreme power in law making.
Such legislative supremacy is possible only where the Constitution is unwritten and flexible.

Three essential features of parliamentary supremacy are;

1. There is no law which parliament cannot change or modify.
2. There is no distinction between constitutional law and ordinary law.
3. There is no body which can declare the law passed by the parliament illegal or inconsistent.

CONSTITUTIONAL SUPREMACY

Constitutional supremacy means that the Constitution is supreme and that parliament can exercise its
functions only within the bounds of the Constitution. Constitutional supremacy is possible only where
the constitution is written and rigid.

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It is also argued that constitutional supremacy is also called judicial supremacy in the sense that the
judiciary (the highest court of the land), interpretes the constitution and has power to declare
unconstitutional and invalid laws passed by parliament.

Professor Hood Philips says that, “To say that a Constitution is supreme is to describe its relation to
the legislature’s power to alter the Constitution is either limited or non-existent.”
Actually a constitution with constitutional supremacy not only defines the power of the legislature, it
defines and establishes the principal organs of the state. It is a source of their authority. It prescribes
the manner in which their functions are to be exercised. The three organ of the state cannot do
anything beyond the constitutional limitations. If any organ does anything in violation of the
constitutional limitations then the court can declare the action null and void and of no effect and this
paramount power of the court is given by the Constitution itself. The Constitution has sanctity over
everything in the realm. This position is called Constitutional Supremacy.

Characteristics of Constitutional Supremacy

1. The Constitution is written.
2. The Constitution must be rigid.
3. There must be, in the constitution, either express or implied, a declaration that this
Constitution shall be the supreme law and any other law inconsistent with this Constitution
shall be void.
4. The parliament is created by the Constitution itself and it exercises its legislative power within
the bounds of the constitutional limitations.
5. There is distinction between constitutional law and ordinary law.

CONSTITUTIONAL SUPREMACY AND THE 1992 CONSTITUTION

Ghana as a country returned to constitutional rule with the promulgation of the 1992 fourth republican
constitution. This constitution, is to a large extent, written, and has a cumbersome procedure for its
amendment. It must be noted that the constitution asserts its supremacy over all institutions of the state
and over all persons and all other laws made, unlike the United Kingdom, where parliament, an
institution of state, is supreme. With this, all actions of the institutions of state and authorities, must
conform with the dictates of the constitution

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Articles 1(2) and 2(1) are the provisions which deal with the supremacy of the constitution. Article
1(2) provides;
“This Constitution shall be the supreme law of Ghana and any other law found to be
inconsistent with any provision of this Constitution shall, to the extent of the
inconsistency, be void.”

Article 2(1) also provides in a very clear and unambiguous language that;
“A person who alleges that-
(a) An enactment or anything contained in or done, under the authority of
that and any other enactment; or
(b) Any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this constitution, may bring
an action in the Supreme Court for a declaration to that effect.”

It is also worthy to note that, the constitution itself establishes the various organs of government and
allocates to them powers and defined scope of authority. Parliament itself is established by the
constitution under chapter ten of the constitution, the executive under chapter 8 and the judiciary under
chapter 11. The powers of these organs of state are all defined and must be exercised within the
constitutional parameters.

The judiciary, and for that matter, the Supreme Court, has been given the responsibility, under article 2
in general to see to the enforcement of this supreme law. It must be noted that there has been quite a
number of times that the judiciary has assiduously performed the task of assessing the constitutionality
or otherwise of acts of the executive and enactments of parliament by using the constitutional
yardstick.

The Constitution and Parliament

It must be noted that, article 2(1) provides a sharp contrast to what pertains in parliamentary
supremacy where parliament cannot be questioned or their acts said to be inconsistent with any other
law. In such situations, as existing in the United Kingdom, parliament is said to have limitless
legislative powers. Article 2(1) serves as a substantive limitation on parliament’s power to make ‘just’
any law. It must be noted that all laws made by parliament must necessarily pass the constitutional

22
litmus test or else will be void. For this reason Dr. Date Bah JSC, in delivering the unanimous decision
of the Supreme Court in the case of Adofo v Attorney General held;
“this constitutional provision unequivocally and authoritatively establishes a doctrine of
supremacy of the constitution in the Ghanaian jurisdiction. The doctrine implies that the
supremacy of parliament is limited and that enactments by parliaments and those of
previous legislatures are subject to the supremacy of the constitution”

The Supreme Court, also in New Patriotic Party v Attorney-General (31st December Case) Aikins
JSC (as he then was), in his opinion in support of the majority decision was clear about legislative or
parliamentary actions using the constitutional litmus test as provided under article 1 (2). He said:
"In my view, even though Parliament has the right to legislate, this right is not without
limit, and the right to enact a law that June 4 and December 31 should be declared
public holidays cannot be left to linger in the realm of public policy. Such legislation
must be within the parameters of the power conferred on the legislature, and under
article 1(2) of the Constitution,1992 any law found to be inconsistent with any provision
of the Constitution(the supreme law) shall, to the extent of such inconsistency, be void.”

In the same 31st December Case, Amua-Sekyi JSC also in support of the majority decision said:
"Parliament now has no uncontrolled right to pass laws on public holidays, any more
than it has to declare a 'one party' state, or make a party leader President for life or
crown him Emperor. As the fundamental or basic law the Constitution, 1992 controls all
legislation and determines their validity. It is for the courts, as the guardians of legality,
to ensure that all agencies of the State keep within their lawful bounds.”

The constitution and executive actions

Also a number of executive actions have also been declared void by the Supreme Court when they
were found to be inconsistent with the constitution, 1992. This manifested itself in the case of Agyei
Twum v Attorney General, where the president’s action of appointing a committee under article 146
(6) to look into a petition brought before him under the same article for the removal of the then Chief
Justice, George Kingsley Acquah, was said to be unconstitutional since there was no prior
establishment of a prima facie case.

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QUESTION
The issue of non-justiciable political question flouts the doctrine and principle of constitutional
supremacy under the 1992 constitution. With the aid of decided cases and relevant statutory and
constitutional provisions, fully discuss this statement
Past question, May 2008

CONSTITUTIONALISM

INTRODUCTION

Constitutionalism can be defined as the limitation that is placed on the exercise of political and
constitutional powers. Constitutionalism is not equivalent or co-extensive to constitutional rule. There
can be situations where there is constitutional rule but no constitutionalism. So many people have
argued that the 1960 constitution of the first republic of Ghana gave too much powers to the president
to the extent that he could curtail individual’s freedom by detaining an individual without trial for the
time period he so wishes. It also made him a life president. By the same constitution (amended), he
made Ghana a one party state. So in this vein, the conclusion therefore was that, though Ghana was
under a constitutional rule, looking at the almost limitless powers given the president under the 1960
constitution, there was no constitutionalism.

CONSTITUTIONAL LIMITATIONS.

1. Institutional limitation
These are limitations that are placed on the exercise of an institution’s powers or by one
institution serving as a limitation on yet another institution’s power. This manifests itself
through the principles of separation of power and checks and balances. A perfect example is
that, under Article 2 (a) and(b) of the fourth republican constitution of Ghana, 1992, the
Judiciary is vested with the power of Judicial Review and with this power the Judiciary can
declare null and void any action by the Executive or the Legislature which is found to be
inconsistent with any provision of the constitution.

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 Another example is that Parliament is given power to vet and approve ministerial appointees
made by the President and this serves as a check on the powers of the Executive. The Executive
President, likewise, has the power of veto, and with this, bills made by Parliament must be
signed by the President before they can become law. This also serves as one check on
Parliament.

2. Substantive limitation

These are real or actual limitations that are placed on the exercise of legal powers by substantive
laws of the state. They are normally in the form of prohibitions but could also be couched in the
form of mandatory injunctions. For instance Article 1(2) of the Constitution, 1992, states;
“the constitution shall be the supreme law of Ghana and any other law that is
found to be inconsistent with any provision of this constitution shall, to the extent
of the inconsistency, be void”.

This is a clear example of substantive limitation, and with this provision, not even the law
making body, Parliament, can make laws which are inconsistent with the constitution and will
stand. Case:NPP v Attorney General (1993-94)2 GLR 35. The facts of this case are that, On
31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was
overthrown in a coup d’état. Subsequently, the military regime which took over the reins of
government, the Provisional National Defence Council, declared 31 December a statutory
public holiday. Accordingly, each year the anniversary of the coup was celebrated, inter alia,
by personnel of the security forces with military parades, route marches and carnivals
throughout the country. These activities were financed with public funds. On 7 January 1993
the reign of the PNDC came to an end with the assumption of power by a civilian government
which had been elected into office under the Constitution, 1992. When on 19 December 1993
the government announced that 31 December 1993 would be a public holiday and should be
celebrated and observed as such, the plaintiff, one of the registered political parties in the
country, claiming that the celebration would be unconstitutional, brought an action under
article 2(1) of the Constitution 1992 against the Attorney-General for a declaration that the
public celebration of the coup d’état of 31 December out of public funds was inconsistent with
or in contravention of the letter and spirit of the Constitution, 1992 particularly articles 3(3)-

25
 (7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the
celebration and refrain from carrying out the celebration with public funds.

In giving judgement for the plaintiff, Aikins JSC, in his concurring opinion held;
Parliament now has no uncontrolled right to pass laws on public holidays, any
more than it has to declare a “one-party state, or make a party leader President
for life or crown him emperor. As the fundamental or basic law the Constitution,
1992 controls all legislation and determines their validity. It is for the courts, as
the guardians of legality, to ensure that all agencies of the State keep within their
lawful bounds.

He said further;
In my view, even though Parliament has the right to legislate, this right is not
without a limit, and the right to enact a law that 4 June and 31 December should
be declared public holidays cannot be left to linger in the realm of public policy.
Such legislation must be within the parameters of the power conferred on the
legislature, and under article 1(2) of the Constitution, 1992 any law found to be
inconsistent with any provision of the Constitution (the [p.138] supreme law)
shall, to the extent of such inconsistency, be void. This constitutional criterion is
what is used to test the validity or otherwise of all statutes or laws, and it is
against this criterion that PNDCL 220 must be tested.

3. Procedural limitation

This type of limitation concerns its self with restrictions or limitations that are placed on the
exercise of political and constitutional power through the insistence on due process. Under
procedural limitation there is a requirement that certain mandatory procedures be fulfilled in
the exercise of power and that non compliance with these procedures will make the power
exercised a violation of the constitution. For example, before a justice of the superior court of
judicature is removed from office, the president will have to follow the procedure laid down in
article 146 of the constitution. The constitution also lays down the various procedures the
president and other appointing authorities must go through before appointments of certain
public officers are made. For example, the president can only appoint someone as minister

26
 only when the person has had a prior approval of parliament. This manifested itself in the case
of Mensah v Attorney General where, by a unanimous decision, the Supreme Court held that
any minister to be appointed, whether new or retained must necessarily go through
parliamentary vetting and approval. See the case of Ex parte Bannerman (2 G&G). These
laid down procedures are put in place to protect those who stand to lose or suffer from vested
interests.

THE RULE OF LAW.

INTRODUCTION

This is a legal concept which is essentially to the effect that the exercise of governmental powers must
be regulated by the laws of the country. Under the various writings of Aristotle, John Locke, A.V
Dicey, we can summarise the whole concept of rule of law into five main headings;

1 The supremacy of the law.

The law must be supreme to everybody in the state and must regulate every action of
individuals in a state. Vis-a-vis the government and the law, the law is supreme and that any
action of government which is inconsistent with the law, will be null and void. See Article
1(2) of the constitution, 1992. The said article provides;
“This Constitution shall be the supreme law of Ghana and any other law found
to be inconsistent with any provision of this Constitution shall, to the extent of
the inconsistency, be void.”

Compliance with the law maximizes governmental legitimacy and that non compliance with
the law delegitimizes a government.

2 Equality before the law.

There must be equal treatment to all persons by the law. It implies two things;
 All persons are under the law.

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  There is an avoidance of discrimination (i.e. treating similarly situated people
differently on the basis of race, colour, ethnicity, religion, gender etc.)

For this reason, article 17(1) (2) and (3) provides;

“(1) All persons shall be equal before the law
(2) A person shall not be discriminated against on grounds of gender, race,
colour, ethnic origin, religion, creed or social or economic status.
(3) For the purposes of this article, “discriminate” means to give different
treatment to different persons attributable only or mainly to their
respective descriptions by race, place of origin, political opinions, colour,
gender, occupation, religion or creed, whereby persons of one description
are subjected to disabilities or restrictions to which persons of another
description which are not granted of persons of another description are not
made subject or are granted privileges or advantages which are not
granted to persons of another description.”

3 Predictability of the law.

This presupposes that the law must be made in advance of the action or conduct that is sort to
be regulated. Predictability of the law forbids retrospective legislation. See article 19 of the
constitution, 1992. The said article provides in clause 5;
“A person shall not be charged with or held to be guilty of a criminal offence
which is founded on an act or omission that did not at the time it took place
constitute an offence.”

4. Certainty of the law.

This presupposes that the law must be easily ascertained. This simply means that laws must be
published after they have been passed, laws should be written with reasonable clarity to avoid
unfair enforcement and also laws must avoid contradictions. With the certainty of the law,
people may not be punished arbitrarily since they can easily access the law to know whether
their conducts fall within the confines of the law. In this regard, the 1992 constitution of
Ghana has provided some articles to achieve the aim of certainty of the law. An example is
article 106(11)which provides;

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 “Without prejudice to the power of Parliament to postpone the operation of a
law, a bill shall not become law until it has been duly passed and assented to in
accordance with the provisions of this Constitution and shall not come into force
unless it has been published in the Gazette.”

As part of the factors inhibiting the effective realisation of certainty of the law is the
ambiguity and legalistic language of the law thereby making its understanding difficult even
sometimes to persons of legal background.
It must also be noted that case law dilutes the certainty of the law since under the guise of
interpretation, the judiciary may in substance change some clear elements of the law. An
example is the case of Adjei Twum v Attorney General and Akwetey where a prior
establishment of a prima facie case was not provided under article 146(6) as a prerequisite for
a committee to be established to start the impeachment processes of the Chief Justice. The
Supreme Court, under the guise of interpretation, assumed power and imported prima facie
where in fact there was none. See article 146(6).

5. Respect for human rights

The rule of law believes in the respect for fundermental human rights. The proponents of rule
of law advocated that, the state must respect human rights as a valued obligation. The respect
for human rights flows as a natural consequence of the obligation to rule through law. The
main essence of this is to prevent tyranny. In this respect, every state that upholds the tenets of
the rule of law compulsorily must include in their constitutions (whether in the abstract or
concrete sense) real provisions that seek to uphold and guarantee human rights.

QUESTION
To what extent is the concept of Rule of Law reflected in the 1992 constitution. your answer must
reflect relevant decided cases.
Past question, November/December, 2007

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 THE EXERCISE OF DESCRETIONARY POWER

INTRODUCTION

Discretionary power can be operationally defined as the power to choose between alternatives, usually
conferred by law. Discretionary power dilutes the certainty of the law because it offers the official of
the state the power to make choices.

IMPORTANCE OF DESCRETIONARY POWER

 It offers flexibility in the exercise of governmental power

 It ensures that institutions have a measure of flexibility and it enables them to take into
account new situations
 It keeps law abreast with the changing pace of society.

The basic mode for the exercise of discretionary power in Ghana is the constitution and statutes and
the second mode is through judicial review.

THE CONSTITUTION

The constitution confers and constricts the exercise of discretionary powers

NB conferment here means to create, to establish or to permit.

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The constitution creates a wide range of circumstances where discretionary power is conferred.
Examples of such situations are as follows;
 Appointment and dismissal of certain public officers. E.g. the appointment of ministers and
their dismissal by the president. See article 78(1) and article 81(a).
 Initiation of judicial proceedings by the attorney general i.e. article 88 (3) and(5)
 Allocation of funds
 Sanctions and benefits etc

Discretionary power is liable to abuse. Because of this, for a lot of people, discretionary power is the
conferment of absolute power. Under the constitution therefore, discretionary power is limited or
fettered. This means that, the constitution itself provides baselines or boundaries or thresholds for the
exercise of discretionary power, beyond which acts of discrimination may be declared null and void.

Article 296 provides “Where in this Constitution or in any other law discretionary power is
vested in any person or authority -

(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased
whether by resentment, prejudice or personal dislike and shall be in accordance with
due process of law; and

(c) where the person or authority is not a judge or other judicial officer, there shall be
published by constitutional instrument or statutory instrument, regulations that are not
inconsistent with the provisions of this Constitution or that other law to govern the
exercise of the discretionary power.”

The exercise of discretionary power must be fair and candid and that, failure to do this will constitute a
breach.

Article 296 of the 1992 fourth republican constitution of Ghana, establishes a positive duty and
counter balance it with a negative obligation. To have a clearer picture, read article 296 in conjunction
with article 23
See also; Awuni v West African Examination Council (2003-2004) SC GLR 471

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Tema Development Corporation v Atta Baffour (2005-2006) SC GLR 121

Case; Associated Provincial House Ltd v Wednesbury Corporation (1948) 1 KB 223.

This case established a baseline for the exercise of discretionary power which is known as the
Concept of Reasonableness. Under this Concept, the exercise of discretionary power is only deemed
to be valid and lawful if it is deemed to be reasonable. Thus a decision maker must reach a conclusion
that could be deemed to be reasonable by another competent decision maker in that same position and
having to make the same decision. In his judgement, Green M.R. wrote;
“For instance, a person entrusted with a discretion must, so to speak, direct himself
properly in law. He must call his own attention to the matters which he is bound to
consider. He must exclude from his consideration matters which are irrelevant to what
he has to consider. If he does not obey those rules, he may truly be said, and often is said,
to be acting "unreasonably." Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the powers of the authority.
Warrington L.J. in Short v. Poole Corporation[1926] Ch. 66, 90, 91 gave the example of
the red-haired teacher, dismissed because she had red hair. That is unreasonable in one
sense. In another sense it is taking into consideration extraneous matters. It is so
unreasonable that it might almost be described as being done in bad faith; and, in fact,
all these things run into one another.”

In effect what Green MR, is saying is that, where a decision maker in making a decision take into
account things he ought not to take into account, the decision will be deemed to be unreasonable.
Where he also fails to take into account things that he ought to take into account, the decision will be
deemed be unreasonable

See also the case of Council for Civil Service Union v the Minister for the Civil Service (1984) AC
374. Lord Diplock’s dictum establishes three main tests; Illegality, Irrationality and Procedural
impropriety
He wrote;

“Judicial review has I think developed to a stage today when without reiterating any
analysis of the steps by which the development has come about, one can conveniently
classify under three heads the grounds upon which administrative action is subject to

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 control by judicial review.The first ground I would call "illegality," the second
"irrationality" and the third "procedural impropriety." That is not to say that further
development on a case by case basis may not in course of time add further grounds. I
have in mind particularly the possible adoption in the future of the principle of
"proportionality" which is recognised in the administrative law of several of our fellow
members of the European Economic Community; but to dispose of the instant case the
three already well-established heads that I have mentioned will suffice.

By "illegality" as a ground for judicial review I mean that the decision-maker must
understand correctly the law that regulates his decision-making power and must give
effect to it. Whether he has or not is par excellence a justiciable question to be decided,
in the event of dispute, by those persons, the judges, by whom the judicial power of the
state is exercisable.

By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury

unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at it. Whether a decision falls
within this category is a question that judges by their training and experience should be
well equipped to answer, or else there would be something badly wrong with our judicial
system. To justify the court's exercise of this role, resort I think is today no longer
needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C.
14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an
inferred though unidentifiable mistake of law by the decision-maker. "Irrationality" by
now can stand upon its own feet as an accepted ground on which a decision may be
attacked by judicial review.”

The principle of reasonableness is uniquely practiced in the United Kingdom. Other European
countries go by the proportionality test. Under this test, the court will examine the effect of the
decision on the right of the person affected vis a vis
the public purpose sought to be promoted by the decision.

Read the following cases;

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Ghunter Youngstown Sheet and Tube Company v Sawyer
Nixon v Sirica / Nixon v the U.S.
Tuffuor v Attorney General (1980) GLR 637
Asare v Attorney General (2003-2004) SC GLR 823

QUESTION
Discuss the criteria laid down by the English House of Lords in decided cases for court review of the
exercise of discretionary power and indicate their usefulness to the application of concept of Rule of
Law in general and in particular article 296 of the constitution of Ghana, 1992 in particular.
Past question, November/December, 2007

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 CONCEPT OF SEPARATION OF POWERS
INTRODUCTION

The concept was developed during the Aristotelian era. As a modern concept, it may be traceable to
John Locke, who in his 17th Century book “the Second Treatise of Civil government”, wrote:
“The three organs of state must not get into one hand. It may be too great a temptation
to human frailty, apt to grasp at power, for the same persons who have the power of
making laws, to have also in their hands the power to execute them, whereby they may
exempt themselves from obedience to the laws they make, and suit the law, both in its
making and execution, to their own private advantage”.

Locke’s separation of powers seems to deal with regulating the exercise of legislative and executive
power. Locke’s statement shows no recognition of the judiciary’s role in the curtailment of human
frailty of grasping power, i.e. interpreting both executive and legislative acts.

The second leg of Locke’s treatise, that is, equality before the law (not allowing exemption from the
law) seems similar to Dicey’s rule of law, by ensuring that makers of the law are themselves amenable
to it.

MONTESQUIEU AND SEPARATION OF POWER

Separation of Power was further developed by a French jurist, Montesquieu (1689-1755).

Montesquieu’s writing was based on his exposition with British constitution of the early 18th Century.

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To Montesquieu;
1. There are three organs of government.
2. Each of these three functions should be vested in one organ of government with no overlap
(separation of functions.)
3. Each organ should act as a check on the other (check and balances.)
4. To concentrate more than one function in any one organ of government is a threat to
individual liberty.

Montesquieu, unlike Locke, recognized the role of the judiciary as an organ of government, having a
separate function.
There is nothing to indicate that Montesquieu, apart from separation of functions, intended separation
of personnel as well. Unlike Locke, whose emphasis was on separation of personnel, Montesquieu was
more inclined towards institutional separation.

WADE AND PHILIPS – CONSTITUTIONAL AND ADMINISTRATIVE LAW

– ON SEPARATION OF POWERS.

Concept of separation of powers means at least three things:

1. That the same persons should not form part of more than one of the three organs of
government, for e.g. that ministers should not sit in parliament – (how do we reconcile this
with the British system of fused government, if Montesquieu indeed was inspired by the
British Constitution).

2. That one organ of government should not control or interfere with the work of another. For
example, the judiciary should be independent of the executive and ministers should not be
responsible to legislature.
3. That one organ of government should not exercise the functions of another. For example,
ministers should not have legislative or judicial power.

Separation of powers is essentially geared towards reducing the quantum of power exercised or
exercisable by the various arms of government. Generally, government is divided into;
 Legislation –which deals with law making
 Execution –which deals with administration or implementation

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 Adjudication – which deals with the administration of justice

Separation of powers essentially proposes that, the power of government shall be kept separate or
divided. That is, there should be division of the various arms of government with the view of reducing
the quantum of powers that are reposed in each organ. It advocates that, no organ of government
should be made too powerful because it exercises too much power. Separation of power seems to
avoid or avert this tendency by;
 Dividing power
 Dissilting power
 Fragmenting power;so that one organ of government does not wield or exercise too much
power.

The principle advocates three kinds of separation under constitutional systems. These are;
 Organic or institutional separation
 Personnel separation
 Functional separation

1. ORGANIC OR INSTITUTIONAL SEPARATION

For the avoidance of autocracy, dictatorship, etc, the various organs of government should be
kept separate from each other and compartmentalised in a manner that creates various
branches of government with each function of government representing a branch of
government. So many modern governments have the;
Legislative organ i.e. the legislative branch
Executive organ i.e. the executive branch
Judicial organ i.e. the judicial branch

In terms of compartmentalisation of organic separation, the focus is on organs or institutions

of state representing the various functions of government. Every government essentially
perform three main functions; the function of legislation, that is each government make laws;
the function of implementation, that is when these laws are made they have to be
implemented, and; the function of adjudication, that is when in the process of implementation
there are breaches, the breaches must be remedied through adjudication. Virtually, every

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 government is mainstreamed into three dynamic roles, i.e. law making, law implementation,
and the adjudication of law or the administration of justice. Under no circumstances should
there be one organ performing more than one organic function.

2. PERSONNEL SEPARATION

Under the personnel separation, the position here is that, under no circumstances should there
be one person belonging to more than one organ of government. In other words, the officials
of government must
belong to one organ at a time so that there will not be one personnel belonging to more than
one organ because if one belongs to more than one organ, presumably, one will exercise more
than one governmental function and exploit one’s power for his personal advantage and to the
overall disadvantage of the state. So in effect, there should be one person to one organ and one
person to one function. Therefore, under personnel separation, it is wrong to belong, for
example, to the executive and the legislature at the same time.

3. FUNCTIONAL SEPARATION

This type of separation is basically to the effect that, no organ of government should perform
more than one organic function so that, for example, there will not be a legislature performing
executive functions nor will there be a judiciary which will perform legislative function.

There are two main goals that proponents of the principle of separation of power seem to advocate.
These are;
 That the principle of separation of power is supposed to achieve efficiency
 Also it is supposed to prevent tyranny.

1 To Achieve Efficiency
This goal can be likened to the Smithanian principle of division of labour in economics. Here,
Adam Smith who propounded the theory of division of labour, said that, when there is
division of labour, there is maximisationof output because there is efficiency. What
proponents of separation of powers are saying therefore is that, separation of power achieves
efficiency, because separation of powers involves division of labour. Each organ is supposed

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 to focus on one thing, that is, the legislature is supposed to make laws, therefore, should not be
bothered about implementing the law. The executive is supposed to implement the law and
likewise should not worry about what laws to make. The judiciary are also not to be bordered
about law making and implementation because theirs is to adjudicate. In such a situation, we
will have each organ being excellent in its own field. That division encourages efficiency
because there is specialisation as opposed to generalisation

2 Prevention of Tyranny
This appears to be the major goal of the principle of separation of powers. Experience in
governance has shown that, immediately a person is made too powerful, there is a tendency
that the person will become a dictator. Generally, people have the tendency to abuse,
whenever they have too much power. Whenever the same person can make the law,
implement the law and administer justice, there will be no justice and invariably, that person
will become a dictator. Therefore when there is one person who does not combine all three
functions, then, tyranny will be prevented.

FORMS OF SEPARATION OF POWER

Separation of power can be identified in two forms;

 classical/strict form
 flexible form

In the classical or strict form of separation of powers, the various organs of government should be kept
separate from each other. This comprise organic separation, functional separation and personal
separation

The flexible form is a contemporary notion of separation of power. The flexible notion advocates what
is known as checks and balances. In other words, separation of power is always mediated by the
principle of checks and balances. The simple reason is that, government does not function in a
disparate manner. Government is itself, a collection of organic entities that collaborate and this
collaboration between organic entities is designed to ensure that government act in a coordinated

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manner because, government has one basic motive and this motive is to ensure that the welfare of its
people is maximised.

Under the principle of checks and balances, there is an advocacy for a relationship between the various
organs of government based on institutional corporation and collaboration, with the view of ensuring
that the organs of government functionin close ties with each other. This is designed to ameliorate the
impact of the principle of separation of powers which, if carried to its logical conclusion, will lead to a
breakdown of government. The principle here is that when government is made to function as if it
were made up of organs that are strictly compartmentalised, the government will break down.
Secondly, if organs of government are made to follow strict separation of power, there will be
conflicts. For example, when there is a strict form of separation of power, legislature can decide that
since theirs is law making, they will make any law they like. The executive may also decide that they
will not implement laws made by the legislature because they have the function of implementation.
The judiciary, likewise, may also decide to strike down laws made and implemented as
unconstitutional. To avoid these potential conflicts between the various organs of government, it is
proposed that the various organs of government rather cooperate and collaborate. This is what the
flexible form of separation of powers seek to achieve

PRINCIPLE OF CHECKS AND BALANCES

Checks and balances promotes what is known as reciprocal checks, by which one organ checks or
oversees the functions of another or other organs. That is the principle of reciprocity.

The principle of checks and balances brings up two main concepts;

 interdependence (see the case of youngstownsheet tube and co v Sawyer)
 reciprocity

Interdependence
This concept advocates that the various organs of government and personnel operates in an
interdependent way through mutual dependence on each other’s competences or power. This implies
that, one organ depends on the functions and powers of the other for the completion or attainment of
its goals.Interdependence therefore implies cooporation or collaboration and abhors disfunctional
separation or autonomy. It upholds functional autonomy where it is for good purposes.

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 Reciprocity
It reflects a “give and take” affaire. It implies that each organ checks another and another checks the
other. This is therefore known as cyclical checks because of its cyclical nature i.e. A checks B, B
checks C, C checks A, among others.
Cases to read
 Dames and Moore v Raegan 453 U.S. 654 1981
 U.S. V Curtiss- Wright Corporation 299 U.S. 304 1936
THE 1992 CONSTITUTION and SEPARATION of POWERS

The constitution reflects a flexible notion of the principles of separation of powers because it contains
the broad principle of separation of powers by establishing various organs that are separate. Under the
1992 constitution, each of the three primary constitutional functions are vested each, in a distinct
organ –
1. Legislative power vested in Parliament comprising 230 members - Art 93(2).
2. Executive power vested in the president assisted by cabinet – Art.58 (1).
3. Judicial power vested in the superior and other inferior courts - Art 125(3).

There are various provisions in the constitution that make room for checks and balances. The various organs
are separated, but the constitution establishes one broad framework of government and in that broad
framework of government, there is cooporation, collaboration, checks, and oversight. There is an
approval system which serves as oversight - where one organ must approve before the other can
undertake or embark on its duties or functions. There are therefore all kinds of collateral or reciprocal
checks and balances that are designed to instil some degree of flexibility and avoid rigidity. This
flexibility is designed to ensure that, the government functions as a collective entity. There are various
provisions in the constitution that make use of the principle of checks and balances.

Relationship between the Executive and the Legislature

The President is elected separately from the legislature for a four year term. The President does not
depend on Parliamentary support for his continuance in office, as he enjoys certainty of tenure. The
Constitution provides in detail the distinct powers and functions of the executive president. (For
provisions relating to the executive refer Articles 57-88). The President is assisted in his functions by

41
a cabinet. Unlike USA, where members of Congress cannot hold Ministerial appointment, the 1992
Constitution makes it obligatory for a portion of the cabinet members to be Members of Parliament
(see Article 78(1)). There is thus a certain amount of fusion of legislative and executive personnel.

The President and legislature

The President is not part of parliament. He is expected to deliver a Sessional Address at the
beginning of a session and on the dissolution of parliament (Article 67). However, some members of
his cabinet are also Members of Parliament. Bills are usually initiated by the executive.
Parliament by its own internal procedure considers bills and may approve or reject a bill. After the
approval of a bill it requires the assent of the president to become an Act of Parliament.Thus an Act of
Parliament is a bill that has been approved by Parliament and assented to by the president. The
President may refuse to assent to a bill passed by parliament (veto - refers to Art 106 for detailed
legislative procedure). Where the president refuse to assent to a bill passed by Parliament, Parliament
may by 2/3 majority vote overturn the veto. In this case, the President shall assent (Article 106 (10)).

Legislative Control of the Executive

a. The president has the prerogative of nominating persons as ministers. However, nominees are
subject to vetting and approval by parliament. (Article 78(1)). See Mensah v AG (1996 -
1997) SCGR 320.

b. The Executive has the power to initiate all fiscal policies, but only Parliament has power to
authorize the use of money and raising of taxes (Articles 174 and 178).

c. The Executive negotiates and enter into treaties on behalf of the country. Treaties and loan
agreements entered into by the Executive requires Parliamentary ratification, (Art 75 (treaty),
Article 181 (loans)).

d. Parliament has the power to begin impeachment proceedings against the President on stated
grounds in Article 69. Parliament can also vote to censure Ministers for misconduct (Article
82).

The Judiciary and Legislature

42
Unlike the executive and the legislature where there is some amount of fusion of personnel, there is a
distinct separation of both personnel and functions of the Judiciary and the Legislature. Though the
two are separate, the judiciary is dependent on the legislature for the approval of appointments to the
superior courts including the Chief Justice. Judges of the Supreme courtare appointed by the President
and vetted by parliament (Article 144). Even though the constitution guarantees the financial
independence of the judiciary, Parliament controls the release of money to the judiciary

The judiciary has power to declare an Act of Parliament unconstitutional (Article 2). Also under the
principle of implied repeal, the judiciary may amend or repeal an existing law which is inconsistent
with a latter one.

Judiciary and Executive.

There is separation of both personnel and functions, though with regards to functions, there are
administrative tribunals and quasi-judicial bodies that exercise some form of judicial power, e.g.
CHRAJ, Commission of Enquiry.

In spite of its financial independence, the executive controls the purse of the Judiciary. Judges of the
Superior Courts are appointed by the President. Judges may also be removed on stated grounds by the
President acting upon a recommendation of a committee (Article 146). The President also exercises
the prerogative of mercy which is the highest form of judicial decision (Article 72).

CONCLUSION:

The 1992 Constitution can be said to provide an appreciable level of separation of functions and
personnel of the three organs of government. However, there are various provisions promoting check
and balances, ensuring co-operation and interdependence.

Finally, Edward Wiredu JSC, wrote in the case of Ghana Bar Association v Attorney General that;
“The scope and extent of the doctrine of the separation of powers, in my respectful view,
and, as I understand it, under the Constitution, 1992 is to ensure that each arm of state
in the performance of its duties within the framework of the Constitution, 1992 is to act
independently and should not be obstructed in the exercise of its legitimate duties or be
unduly interfered with [by the Constitution]. In other words, all arms of the State are
answerable or responsible to the Constitution, 1992. It is also to ensure the smooth

43
 administration either judicial, legislative or executive governance of the State whilst
checks and balances are provided to ensure strict observance by each arm of state of the
provisions of the Constitution, 1992.”

Also, Kpegah JSC, in the same case gave an intelligent account of the history and on how the
constitution reflects on the doctrine of separation of power. He said;

“In 1960, Ghana had a Constitution, 1960 which, for the first time, introduced the
American concept of the doctrine of separation of powers as an important doctrinal
underpinning of our Constitution—the separation of powers between the executive, the
legislature and the judiciary. This was also to be the case with the Second Republican
Constitution, 1969; although this Constitution provided for a ceremonial President in
favour of a Prime Minister. In the case of the Third Republican Constitution, which was
introduced in 1979, the presidential system of government was reintroduced with the
same concept of separation of powers underpinning it. In the Constitution, 1992 which is
the fourth in our history and under which we currently operate, the presidential system
of government was retained and the framers consciously and meticulously allocated state
authority among the executive, the legislature and the judiciary. The doctrine of the
separation of powers is indicated in the discrete manner each branch of government is
dealt with in chapters eight, ten and eleven of the Constitution, 1992.

This principle, as was pointed out in the Memorandum to the Draft Proposals for the
1979 Constitution of Ghana, which is still relevant, requires that the executive, the
legislative and the judicial powers of state should be assigned to separate institutions and
organs with each having power to check the power of the others in order to ensure that
they do not encroach on one another's sphere of competence. Such an arrangement is
necessary so that, in the words of President Woodrow Wilson, there can be "effective
check on power by power."

In the same Memorandum on the 1979 Constitution at para 49, p 19, it was pointed out
as follows:

". . . the principle does not require that the executive, legislative and judicial organs of
State should operate in complete isolation from, or open conflict with, one another. On

44
 the contrary, they are expected to work in harmony to the end that the various functions
of government will complement each other."

So a careful reading of our Constitution, 1992 reveals that the separation is not intended
to be airtight; very often, there is overlapping of powers as an aspect of check and
balances. For example, the power of the Supreme Court to strike down a legislation
which is inconsistent with any provision of the Constitution; the power of the President
to appoint the members of the superior courts, in some cases, with approval of
Parliament. So also the procedure for the impeachment of the President and his vice: a
combination of co-operation between the judiciary and the legislature. As to the
jurisprudential implications or derivatives of the doctrine of the separation of powers, I
hope to deal with it later

The Ghanaian Constitution, 1992 has been influenced not only by our past experiences
but also by thinkers like Montesquieu, in the allocation of state power to the three
branches of government—the executive, the legislature and the judiciary. The adoption
of the concept of separation of powers by the framers of our Constitution, 1992 aims not
only at the prevention of the exercise of arbitrary power with its attendant tyranny, but
also aims at the promotion of efficiency and avoidance of friction or conflict between the
various arms of government. See the case of Tuffuor v Attorney-General (supra) where
the Court of Appeal sitting as the Supreme Court declined jurisdiction to examine
proceedings in Parliament and consequently struck out the Speaker of Parliament as the
first defendant. And in the case of Youngstown Sheet & Tube Co v Sawyer (The Steel
Seizure Case), 343 US 579 at 635 (1952), Justice Jackson said of the concept of the
separation of powers:

"While the Constitution diffuses power the better to secure liberty, it also contemplates
that practice will integrate the dispersed powers into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy but reciprocity."

See:
NPP v EC (No.2) SC, (1995) GBR 4
NPP v EC (No. 1) (1997) GBR 1
J. H. Mensah v AG (1996 – 1997) SCGR 320

45
Asare v Attorney General.

QUESTION
The theory of separation of powers as provided for under the constitution fails to effectively balance
the powers of government. In short, it creates a very powerful executive in the midst of other weak
organs. How true is this statement.
Past question, November/December, 2007

46
 JUDICIAL REVIEW

INTRODUCTION

Judicial review as a concept is not isolated. It is somehow related to separation of powers,

constitutionalism and rule of law. All these concepts together with judicial review have one basic
distinct function, that is, to ensure that restraints are put on governmental powers in order to secure the
rights and liberties of the citizens.

WHAT IS THE MEANING OF JUDICIAL REVIEW

 Judicial review in relation to the constitution.
This type deals with the review of legislative and executive actions. This is a constitutional
arrangement in which the judiciary has been given power to review the actions of the other
organs of government to ensure that they stay within their remits.

 Judicial review in relation to administrative actions

In another sense, judicial review may be understood to be the procedure by which the courts
are given the power to determine the legality of decisions made by a wide variety of
administrative bodies set by legislation which affects the public.

Judicial review as understood in the second sense properly comes within the ambit of a branch of law
known as administrative law. SeeAwuni v WAEC, where the Supreme Court quashed an
administrative decision by WAEC to cancel the entire results of Awuni and others who sat for the
SSSCE examination because the decision was not fair and there was a breach of the audi alterim
partem rule of Natural Justice.

47
Also seeRepublic v Fast Track High Court, Ex-Parte CHRAJ (Richard Anane as interested
party) where the Supreme Court held that CHRAJ could not commence investigations into abuse of
power without formal complaint.

QUESTION
 Why judicial review/ why should we endow few members of the society (the judiciary and
even most at times, the supreme court) the power to review the decision of lawfully
constituted authority of people who have been elected.

 Where should the power of judicial review be located? Should it be in the highest court (i.e.
the Supreme Court) or any other court within the judicial hierarchy?

JUDICIAL REVIEW (IN THE FIRST SENSE) AS PRACTISED IN

OTHER JURISDICTIONS

Judicial Review in United States of America

Judicial review is not explicitly stated in the United States constitution. However, it was implied by
the United States Supreme Court and this came about in the famous case of Marbury v Madison. In
this case, Chief Justice Marshal in his logical and contextual analysis, held that, it was within the
thinking of the framers of the constitution (the federalist) that the United States Supreme Court should
have the power of judicial review.

In United States however, unlike Ghana, Judicial review can be exercised by even the lower courts
(what is known as the circuit courts) but its decision will have effect only at that level. Most of the
important constitutional pronouncements are made by the Federal Supreme Court and have effect over
the whole country or federation.

48
Because the power of judicial review in the United States is implied, to prevent a confrontational
cause between the executive and the legislature on one side, and the judiciary on the order, it made
sense for the judiciary not to abuse this power in other to avert a constitutional crisis where the other
organs may decide not to comply with the decision of the courts. The Supreme Court, in order not to
abuse the power of judicial review, placed restraints on the exercise of this power.

Some of these restraints are;

 Locus standi (standing or the capacity to bring an issue to court). Before one can bring an
application to the United States Supreme Court for judicial review, the person must have an
interest in the case or the person must be the one affected by the decision of the organ that the
suit may be against.

 Also they developed the principle of ripeness or the principle of mootness, where the subject
matter of the complaint must have arisen.

 The political question doctrine, that is, the courts will avoid all invitations to enquire into
matters which are within the exclusive preserve of the other arms of government.

Judicial Review in France

Since 1958, France has been operating under what is known as the Constitutional Committee which
was made up of 13 members. The constitutional committee gradually became known as the
Constitutional Council. The membership comprises;
 The chairperson, who is also the President of the Republic.
 President of the National Assembly
 President of the Council of the Republic
 Three members selected by the Council of the Republic
 Seven other members selected by the legislature

Unlike the United States, the Constitutional Council lies outside the normal judicial structure. It has
the preventive power, that is, it has the power to declare unconstitutional all organic laws such as the
appointment and removal of high officials, the passage of financial bills, standing orders or the rules of

49
procedure in parliament. Unlike other jurisdictions like Ghana, the Constitutional Council meets or
conducts its business in camera.

In terms of standing, individuals do not have the right to take matters to the constitutional council but
rather, it is usually the government or a representative of the opposition who can invite the jurisdiction
of the Constitutional Council.

Judicial Review in Germany

Germany, just like France, but with a little difference, has what is known as the constitutional court.
This court is not a political body. It is purely judicial except that theirs is only concerned with
interpretation of the constitution. It is however not the final appellate court. The constitutional court
has the power to review the constitutionality of the actions of the executive and the legislature.

Between 1871 and 1918, constitutional theory reflected the will of the sovereign, the supreme
authority in the government and was therefore not favourably inclined to review by a court of law.
Only the question, whether a statute violated the Reich (i.e. the constitution of the federation) or
whether a federal statute was deemed proper to be exercised by the courts in the course of a civil or
criminal proceedings. This attitude however changed after the downfall of the German Empire and in
1921, the highest German Court called the Reichsjeriche in a leading civil action finally settled that
the courts had the power to declare federal and state statutes inapplicable on constitutional grounds

Judicial Review in Ghana

Judicial review has explicitly been provided for in the 1992 constitution under article 2(1) and article
130. Unlike the United States, there are no huddles towards the invocation of the power of judicial
review located or vested in the Supreme Court.

InNPP V Attorney General (1997-1998) 1 GLR 378-461,the plaintiff, a political party registered as a
body corporate, in an action against the Attorney-General invoked the original jurisdiction of the
Supreme Court under article 2(1) and 130 of the Constitution, 1992 for a declaration that the Council
of Indigenous Business Associations Law, 1993 (PNDCL 312) was inconsistent with and a

50
contravention of articles 21(1)(e), 35(1) and 37(2)(a) and (3) of the Constitution, 1992 and
consequently void. The Attorney-General, however, raised a preliminary objection to the action on the
grounds that only a natural person could bring an action under article 2(1) of the Constitution; and
articles 35(1) and 37(2)(a) and (3) which were part of the provisions of the Directive Principles of
State Policy under chapter 6 of the Constitution, 1992 were not justiciable. Furthermore, the Attorney-
General contended, inter alia, on the merits that since PNDCL 312 had been enacted upon the petition
of the associations specified in the schedule to the Law to enable them to freely operate under the
umbrella of a council similar to the Trades Union Congress, it was not in breach of their right to form
or join any association of their choice under articles 21(e) and 37(2)(a) of the Constitution.

Commenting on the issue of locus, Bamford Addo, JSC as she then was held;

“It is evident from this passage that a very wide effect was intended to enable all persons
to resort to judicial review for the enforcement of the Constitution, 1992. Therefore
under article 2(1) of the Constitution, 1992 other than the citizenship requirement, no
limitation is placed on the nature of persons who may invoke the original jurisdiction of
the Supreme Court. If this be the case then it seems to me that there would be no logical
reason for restricting the resort to the original jurisdiction of this court to only natural
persons. On the contrary, it would be more beneficial and in accordance with the
intention of the framers of the Constitution and in the public interest to open the door
widely to permit both natural and legal persons, like the plaintiff, access to the court. I
would think that corporate bodies by reason of their important place in society are most
suited both financially and otherwise to undertake the defence of the constitutional order
by resort to judicial review when the constitutional order is being threatened.”

There is also no requirement of proof of existence of personal interest. Judicial review can be
requested even where the applicant does not have an interest in the case (i.e. there is no locus standi).

In the case ofAgyei Twum v Attorney General (2005-2006) SC GLR 732, the plaintiff was a private
Ghanaian citizen who was not related in any way to the Chief Justice, George Kingsley Acquah and
was not affected in any way by the president’s inaction but in the interest of justice sued under article
2 (1) of the constitution, 1992.

See also Sam (2) v Attorney General (2001) SC GLR 305

51
JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS (THE SECOND
SENSE)

Judicial review represents the means by which the courts control the exercise of governmental power.
Government departments, local authorities, administrative tribunals, state agencies exercising powers
which are governmental in nature, must exercise their powers in a lawful manner. Judicial review is
designed to ensure that public bodies which exercise law-making power or adjudicatory powers are
kept within the confines of the power conferred.

Judicial review is concerned with the legality of the decisions made, not with the merits of the
particular decision. Accordingly, a court of law is to ensure that the exercise of any power which has
been delegated to Ministers, administrative and adjudicatory bodies, has been lawful, according to the
power given to that body by the Act of Parliament.

In UK Administrative Law, two very basic constitutional principles are paramount;

1. Parliamentary Supremacy and
2. Rule of Law

Parliamentary Supremacy implies that Parliament as the ultimate law-making body can, in theory
make or repeal any law as it wants. Judges cannot question the validity of primary legislation, and can
only challenge subordinate (delegated) legislation on limited grounds. Thus, in UK where a primary
statute creates an administrative body and gives it wide ranging powers, the courts cannot question the
validity of the body created or the purpose for which it was created. However, they can challenge the
actual operations of the agency on grounds such as excess of jurisdiction (ultra vires) or if intra vires,
acting unreasonably or against rules of Natural justice.

The Rule of Law: the 20th Century witnessed state intrusion in almost all social and economic lives of
citizens on matters from cradle to grave. Matters such as birth, death, housing, marriage etc are all
now subject to regulations.

In its most basic meaning, rule of law, means that everyone must act within the confines of the law.
When applied to an administrative body, it means administrative agencies must act within the confines
of its enabling Act; i.e. must not act ultra vires. Where a public officer or an administrative body has

52
exceeded its scope of authority (ultra vires), then judicial review shall be given to that effect. Among
the basis or grounds by which the power of judicial review of administrative actions can be exercised
are as follows;
 Where an administrative body or person given power does not go through the right procedure
when exercising such power
 Where an administrative power was exercised by taking into account irrelevant issues.
Administrative bodies have the duty to include all relevant considerations and exclude
irrelevant things
 Where an administrative body has made an error of law or has misinterpreted the law.
 Where there has been an abuse of discretionary power. See Articles 23 and 296.
 Where the principles of natural justice was not observed during decision making.

There are two main limitations on the exercise of administrative authority;

1. Express limits provided by an enabling or parent Act, and
2. Implied limits on power, which are limits read in by the courts which could be on reasons of
unreasonableness, acting for ulterior purposes, acting in contravention of rules of natural
justice, etc.

ADMINISTRATIVE JUSTICE in GHANA.

Unlike UK, where it is said that the exercise of the power of judicial review over administrative bodies
are discretionary, in Ghana, under Article 23 of the 1992 Constitution, administrative bodies and
administrative officials shall act fairly and reasonably and comply with the requirements imposed on
them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to
seek redress before a court of law. Thus in Ghana, administrative bodies are limited by;
1. Express provisions of their enabling Acts and
2. Rules of fairness and reasonableness.

DIFFERENCES BETWEEN APPEAL and JUDICIAL REVIEW:

Appellate court has the power to review a case and to substitute its own decision for that of the lower
court. Appeal may be made on both the law and the facts of the case, so that a full re-hearing may
take place. Judicial review by contrast, is concerned solely with the manner in which the decision-

53
maker has applied the relevant rules. It is thus procedural in nature. It is not for the court to substitute
its judgment for that of the decision-maker to which powers have been delegated, but has kept within
the rules laid down by statute and common law or the constitution.

THE IDEA of POLITICAL QUESTION and JUSTICIABILITY:

There are matters which the court, mindful of the doctrine of separation of powers, consider to be
purely of political nature and therefore reluctant to review. Matters such as the exercise of prerogative
of mercy or issues of national security, and matters of policy may be regarded as non-justiciable.
Thus, in the case of Nottinghamshire County Council v Secretary of State for the Environment
(1986) AC 240, it was held that the court should not intervene to quash guidance drafted by the
Secretary of State on the authority of Parliament, setting limits of public expenditure by local
authorities, unless and until a statute provides otherwise, or it is established that the Secretary of State
has abused his power. These are matters of political judgment for him and for Parliament.

What is Public Law Body?

Judicial review under this category deals with public law bodies and the question has always been of
how to identify a public body. In R v Panel on Take-Over and Mergers, exparte Datafin plc, the
body, which was subject to review exercised no statutory or prerogative powers and was not even
based on a private contract or constitution. The court held that its functions were amenable to review
of the panel’s enormous de facto power to take decisions affecting the public and crucially, the fact
that there was no other means by which those affected by the decisions of the panel could have
challenged them in the court.The decision was followed in R v Advertising Standards Authority
Ltd ex parte The Insurance Service pls (1989) The Times 14th July. The ASA Ltd had investigated
and upheld a complaint that the Applicant’s insurance company’s advertising leaflets were misleading
and amounted to a breach of advertising standards. In granting the company’s application for judicial
review, the court indicated that the ASA exhibited similarities with the agency in Datafin and that
though it had no statutory or common law powers, its functions brought it under public law.

This case may be contrasted with R v Football Association ex parte Football League (1993) 2 All
ER 833 wherein the Football League sought to form a Premier League and introduce consequent
changes to its regulation. The Football League had a contractual agreement with the Football

54
Association whereby it was permitted each year to operate the league. The Football League contended
that the Football Association was amenable to review because it exercised monopolistic control over
the game and controlled rules governing it. Dismissing the application, it was held that the Football
Association was not discharging functions of a governmental nature and there was no evidence that its
functions would be exercised by a governmental body if it did not exist.
To identify a public body, you have to look for:
a. Whether it has a statutory or common law duty,
b. What functions does it perform and
c. Inadequacy of legal controls over its actions.

GROUNDS FOR JUDICIAL REVIEW:

There are 2 main grounds namely

1. Breach of statutory requirements and
2. Decision reached in an unreasonable manner or in disregard of the rules of natural justice.

Another ground which has recently emerged is the Concept of Proportionality, which confines the
limits of the exercise of power to means which are proportional to the objective to be pursued. This
doctrine has taken roots in the US and Canada. Even though in the matter of R v Home Secretary ex
parte Brind(1991) 1 AC 696, the House of Lords was not prepared to accept that the concept
represented a separate and distinct head of judicial review. However, UK judges appear to agree that
while proportionality is not part of the English law, it may be used to determine whether a decision has
been irrational or not. For example in R v Barnsley Metropolitan Borough Council ex parte Hook
(1976) 1 WLR 1052, a market stall holder had his license revoked for urinating in public. Lord
Denning MR quashed the decision, partly on the basis that the penalty was disproportionate to the
offence.

PROVING UNREASONABLENESS

Relevant and Irrelevant Considerations: If the agency acted on the basis of irrelevant
considerations, or it can be shown that relevant considerations were ignored, then, the decision will be
unreasonable. The basic principle was stated by Lord Esher MR in R v St. Pancras Vestry (1890) 24
QBD 371

55
 “the decision making body must fairly consider the case before it and not take into
account any reason for their decision which is not legal. The agency takes into account
matters which the court consider not to be proper for the exercise of their discretion,
then in the eyes of the law they have not exercised their discretion”

Agencies should always bear in mind the purpose, usually referred to as the intendment of the
enabling Act from which it derives its powers.

Ulterior Motives:
R v Hillington LBC, ex parte Royco Homes Ltd (1974) QB 720, the Respondent authority granted
outline permission for houses subject to conditions such as that the house to be built should be
occupied first by persons on the authority’s housing waiting list etc. It was held that the conditions
were imposed to suit an ulterior purpose, a purpose ulterior to the duty of the council as a planning
authority, as its authority was to ensure that if a private developer develops its land, he should have to
use it in such a way as to relieve the council of a significant part of its burden as a housing authority.
The conditions were ultra vires and brought the whole planning permission down.

In Bilson v Apaloo (1981) GLR 15, the plaintiff filed a writ against the then Chief Justice, Justice
Apaloo for a declaration to quash the judgment of the Court of Appeal sitting as the Supreme Court in
the case of Tuffour v AG (1980) GLR 637, on the grounds inter alia, that the five learned judges
who constituted the court did not constitutionally hold valid nominations to sit in the said suit since the
Chief Justice, the defendant, who had empanelled the court acted in contravention of articles 114(5),
121(2) and section3(1) of the transitional provisions of the 1979 constitution and that it was judicially
improper for the five judges constituting the panel of the court appeal to accept the invalid
nomination to sit on the said suit. At the hearing counsel for the plaintiff raised a preliminary
objection to the composition of the Supreme Court on the grounds that two members of the panel
hearing the case should not sit as members of the Supreme Court since they had also sat at the Court of
Appeal in the Tuffour case. He further submitted that the natural justice rule against bias would be
infringed if the two judges sat as judges in their own case.

In dismissing the preliminary objection, the court held that the rule of natural justice (nemo judex in
causa sua) also known as the rule against bias arose in two ways, firstly, where the adjudicator was
disqualified because he had direct financial or proprietary interest in the subject-matter of the suit: and

56
there was a real likelihood that the adjudicator would be biased in favour of one of the parties. The
court also held that in the instant case, natural justice had to yield to necessity since otherwise it would
be impossible to constitute a quorum of five justices of the Supreme Court of the hearing of the case
under Article 115(2) of the constitution. Further the court said that apart from considerations of
necessity, it was incontrovertible that the issues raised by the parties were predominantly issues of
law, the adjudication of which would not pose any special problems for the judges of the court
performing, in the words of their judicial oath, the functions of their office without fear or favour,
affection or ill-will and upholding the constitution and the laws of Ghana.

See also Akuffo-Addo v Quarshie-Idun (1968) GLR 667 at 674.

Ridge v Baldwin
Council for Civil Service Union v Minister of Civil Service
Inkumsa v Jiagge (2 G&G) 313
Darkwah v the Republic

JUDICIAL REVIEW AND MILITARY REGIMES

The question has been often asked whether there is the possibility of judicialreview during military
regimes. Military governments, usually after assuming the reins of government suspend or abrogate
the constitution either in part or whole. However, in most cases, the judiciary is allowed to continue
the exercise of the judicial power which it enjoyed under the suspended or abrogated constitution
subject to provisions in the Establishment Proclamations of the military regimes.

The judiciary has had various opportunities in answering the above question. For instance, in Fattal
and Another v Minister for Internal Affairs and Another, the two plaintiffs, Lebanese by birth,
acquired Ghanaian citizenship by naturalization under the then Ghana Nationality Act of 1971, Act
361 in 1973 and 1976. In August 1978 the Supreme Military Council (SMC) passed the Ghana
Nationality (Amendment) Decree, SMCD 172, which revoked the acquired citizenship of the
plaintiffs. Deportation orders were then issued for the two by the Minister for Internal Affairs. In
1980 the plaintiffs invoked the original jurisdiction of the Supreme Court under the 1969 constitution
(article 2 (1), seeking inter alia that SMCD 172 purporting to revoke their citizenship without a court
order was ultra vires the powers of the SMC as being contrary to the National Redemption Council
(Establishment) proclamation and the 1979 constitution and its continued operation was inconsistent

57
with or in contravention of chapters 5, 9 and 12. The court in a majority decision dismissed the action
and held inter alia that since 1966, military governments in Ghana had always reserved to themselves
the legislative power to either enhance or curtail the judicial power vested in the courts. In the absence
of a written constitution that delimited the powers of the various organs of state, a military government
was at liberty to do what it likes by Decree which had the force of law. In the absence of constraint,
restrictions or limitations on the legislative power, the laws enacted by the legislature, should be
enforced by the courts. The NRC by its Proclamation 1972, made the judicial power guaranteed by
the 1969 constitution, and indeed all other existing enactments subject to Decrees passed by the
council. The Court further stated that although SMCD 172 might appear unjust, unreasonable and
even autocratic, yet it was not within the province of the Supreme Court to strike it down merely
because it was an unjust or unreasonable law. The days when courts of law could embark on such
an exercise were over. When SMCD 172 was enacted, there was no constitution holding the
legislative power in leash and no court could have declared SMCD172 invalid, null and void. The
Supreme Court could nullify an existing law only if at the time it was passed it was invalid or its
continued existence conflicted with the constitution. The court was supreme only within the bounds of
the constitution. The court has not within its environment nuances of supremacy, sovereignty or
omnipotence. It could not redress injustices perpetrated by military regimes in the past under Decrees
regularly enacted by them.

In his dissenting opinion, Taylor JSC said that the Supreme Court in one single sentence of the
majority achieved a self-imposed limitation on its jurisdiction contained in the clear unmistakable and
peremptory provision of article 1 (2) when the majority held,
“the court can nullify an existing law only if at the time it was passed, it was invalid”.

This is so unnecessary for the decision that it can only be hoped that this purported restriction of the
jurisdiction of the Supreme Court will, without doubt, be studiously ignored.

REMEDIES GIVEN UNDER JUDICIAL REVIEW

Remedies offered under judicial review are specified under article 33 of the constitution, 1992. These
remedies are; certiorari, prohibition, mandamus which is all termed as prerogative writs and habeas
corpus.

58
 Certiorari
This is an order from a court requiring a decision or an action which has been taken by an
administrative body or official or a quasi-judicial body to be brought up to the court and be
quashed.

 Prohibition
This is an order seeking to prevent an administrative body or official or an inferior court or a
quasi-judicial body from exceeding its jurisdiction or from making a decision or taking an
action which may warrant certiorari.

 Mandamus
When a public body or official or an administrative body or a quasi-judicial body are supposed to
exercise an authority or duty, but that body or official has failed to execute the authority or
duty, mandamus may be issued to that body or official compelling it to perform its function

 Declaration:
A statement of the legal position of the parties and is not accordingly a remedy per se. It
states the position of the law. It also clarifies and confirms the law. “A declaration order
cannot be enforced on its own but rights and remedies attendant on the declaration may be
enforced through a separate action”.

THE ISSUE of CAPACITY – Locus Standi

An applicant in an action for judicial review of an administrative decision must have a sufficient
interest in the matter to which the application relates. The justification for the requirement is to limit
challenges to administrative decision-making to genuine cases of grievance and to avoid unnecessary
interference in the administrative process by those whose objectives are not authentic.

Reference may be made to Article 2(1) of the 1992 Constitution on the enforcement of the constitution
and requirement of standing.

QUESTION

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“The power of judicial review in Ghana is designed to protect individual liberty and rights against
arbitrary violation”. How true is this, in the light of decided cases since independence.
Past question, 2003/2004

In the light of decided case examine the instances in which the Supreme Court has courageously
utilized its power of constitutional review under articles 2 and 130 of

the 1992 constitution effectively or timorously constricted same.

Past question, May 2006

Critically compare and contrast the practice of judicial review under the current constitutional
arrangements of Ghana and USA. Illustrate your answer wit relevant cases.
Past question, November/December, 2007

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 JUDICIAL INDEPENDENCE

INTRODUCTION

In the study of constitutional law, history and the principles of constitutionalism, the idea of
establishing a separate and neutral judiciary is very important. Though there are many references to
Greek philosophers who clamoured for limited exercise of power,the concept of a separate
judiciary is credited to the framers of the US constitution, though this was put forward earlier by a
French philosopher, Montesquieu.

While Montesquieu’s propositions were ideal, the US constitution put this concept into actual
constitutional law and practice. In advocating for an independent judiciary, Alexander Hamilton, one
of the drafters of the US constitution in the Federalist Papers (a collection of 85 essays written by
Hamilton, James Madison and John Jay to defend the new constitution of US drafted in 1787 by a
constitutional convention) wrote;
“the judiciary, from the nature of its functions, will always be the least dangerous to
the political rights of the constitution; because it will be least in a capacity to annoy or
injure them. The judiciary is beyond comparison, the weakest of the three departments
of government.”

As a solution to the weakness of the judiciary, he proposed a text for the guarantee of the
independence of the judiciary. In the US,the guaranteed independence of the judiciary culminated in
the celebrated case of Marbury v Madison (1803) where the Supreme Court, through Chief Justice
Marshall, invalidated a statuteduly passed by the legislature. By this decision, the US Supreme Court
assumed a judicial review power.

Many modern constitutions, including the 1992 Constitution of Ghana, contain express provisions
guaranteeing the independence of the judiciary. The main reason for the provision is to serve as a

61
safeguard against wanton use of power, as power tends to corrupt and absolute power corrupts
absolutely, per Lord Acton.

JUDICIAL POWER UNDER 1992 CONSTIITUTION

The constitution contains several provisions regarding the judiciary. Article 125(3) establishes the
judiciary as a separate organ of government. Accordingly, neither the President (Executive) nor
Parliament (Legislature) shall have or be given final judicial power. Even though the constitution
vests the final judicial power in the judiciary, it does not by any means vests in the judiciary
monopoly in the exercise of judicial power. This is because institutions such as the various Regional
Houses of chiefs, the judicial committee of the National House of Chiefs, Commissions of Inquiry, as
well as the Commission for Human Rights and Administrative Justice (CHRAJ) may also perform
quasi-judicial functions. However, in the end, the regular courts have the final word in all judicial
maters.

The constitution vests the judicial power in the superior and other inferior courts as Parliament may be
law establish. The superior court of judicature consists of the Supreme, Appeal, High courts as well as
the Regional Tribunals. The Supreme Court is the final repository of the judicial power of Ghana and
its decisions on questions of law are binding on all the courts below.

In terms of the scope and exercise of judicial power, the constitution gives the Supreme Court the
exclusive jurisdiction in two areas, namely; in all matters relating to the interpretation or
enforcement of the constitution and the power to declare null and void acts of both Parliament
and the Executive inconsistent and in contravention of the constitution. Thus, in Ghana, the
power of judicial review (constitutional review) is exercisable only by the Supreme Court.

THE 1992 CONSTITUTION and JUDICIAL INDEPENDENCE

Judicial independence here is defined as the insulation of judges and the judicial process from partisan,
ideological etc pressure to influence the outcomes of individual cases. At the centre of attention is
undue pressure from the other branches of government to decide cases in a particular way.

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In addition to vesting the judicial power in the constitution, the constitution of Ghana contains
provisions designed to protect judges from official harassment and provide them with the autonomy
and job security they need to enable them perform their judicial functions independent of the executive
and the legislative branches. Judicial independence in this context does not mean that the judiciary
should not have points of contact with the other organs of government.

Even though the constitution provides for the independence of the judiciary, it also provides for check
and balances so designed that each branch of government operates as a check on the other. However,
any semblance of vesting the final judicial power in either the Executive or the Legislature is strictly
prohibited.

Article 127 of the Constitution provides unambiguously that in the exercise of the judicial power of
Ghana, the Judiciary, in both its judicial and administrative functions, including financial
administration, is subject only to the Constitution and shall not be subject to the control or direction
of any person or authority.

For the avoidance of doubt, Article 127 (2) provides that neither the President nor parliament nor any
person acting under the authority of the President or parliament nor any other person or persons shall
interfere with judges or judicial officers or other persons exercising judicial power, in the exercise of
judicial functions.

To further ensure the independence of the judiciary, the Constitution among other things, provides
under Article 127 (4) and (5) that the salaries and other emoluments of judges are to be charged on the
consolidated fund, meaning that their salaries do not depend on annual budgetary provisions. In
addition, judicial officers’ salaries cannot be reduced by either the president or parliament. These
provisions are intended to prevent the other branches, which control the state’s purse from threatening
budgetary cuts in judges’ salaries and benefits as a form of putting economic pressure on the judiciary
to be in line.

To ensure financial independence, Article 179 (4) and (5) give the judiciary the autonomy in the
preparation of its annual budget. Under the constitution, the annual estimates are prepared by the
judiciary itself, under the direction of the Chief Justice acting in consultation with the Judicial

63
Council. The President is merely required to lay the estimates before parliament without revision
butwith commentsor recommendationson the estimates submitted by the Chief Justice.

THE IMPORTANCE OF FINANCIAL INDEPENDENCE OF THE

JUDICIARY

The Drafters of the 1992 constitution considered as very important the financial independence of the
judiciary. As stated in Paragraph 292 of the Draft Constitution, there is “no doubt that one of the most
effective ways of ensuring that the independence of the Judiciary is undermined is when the Executive
controls the purse strings of the judiciary and can therefore interfere with its efficient operation by
means of manipulating the funds made available to the Judiciary. In the light of this, the Drafters in
their considered view determined that the power to determine how much money the Judiciary should
spend must be given to the Legislature as provided in Article 179.

In arriving at the conclusion the Committee of Experts looked at the provision in the 1969 and 1979
Constitutions. Under the 1969 Constitution, article 130 provided thus
“the Minister for the time being responsible for finance shall cause to be prepared and
laid before the National Assembly in each Financial Year estimates of the revenue and
expenditure for Ghana for the following financial year”.

Article 141 of 1979 Constitution dealing with the same matter provided as follows “Parliament shall
cause to be prepared and laid before parliament estimates of the revenue and
expenditure of the Government of Ghana for the next financial year”.

Under the 1979 Constitution therefore, the preparation of budgetary estimates was made the
responsibility of parliament and not of the Executive. In 1980 the question arose whether certain
estimates of the Judiciary should be presented to the Minister of Finance and be included in the
Appropriation Bill. The question arose because in the view of the then Chief Justice Apaloo, the
estimates of the Judiciary should go straight to parliament and that it was parliament and not the
Minister of Finance which should decide the quantum of the estimates of the Judiciary. The then
Attorney General on the other hand, argued that since the estimates, other than salaries charged on
the Consolidated Fund, were in the nature of a money bill, they should be presented by the Minister

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responsible for finance. The controversy was not resolved before the overthrow of the Third Republic.
To resolve the controversy, the Drafters of the Constitution proposed in paragraph 295 that the proper
authority to determine the estimates of the Judiciary was parliament. However, nothing prevents the
Executive from commenting on such estimates of the Judiciary.
This culminated in Article 179(3) (4) and (6) of the 1992 Constitution which provides inter alia
“the Chief Justice shall in consultation with the Judicial Council cause to be submitted
to the president the estimates of the development expenditure of the Judiciary. The
President shall cause the estimates referred to in clause (3) of this article to be laid before
Parliament. The estimates shall be laid before Parliament under clause (4) without
revision but with any recommendations that the Government may have on them”

ASSESSING the INDEPENDENCE of the JUDICIARY

As stated earlier, the 1992 Constitution now gives the judiciary, a renewed stature and independence
within a system of separation of powers. In some jurisdictions, the performance of the judiciary is
assessed by counting the number of cases in which the government loses. Even though this indicator
is flawed, it must be emphasized that in periods where the government prevails more often, the courts
are considered less independent.

But if the indicator was adopted, the judiciary, prior to the coming into force of the constitution, in the
cases of Gbedemah and 28 others v The Interim National Electoral Commission (NEC) and
Bilson v J. J. Rawlings, were branded stooges of the then PNDC government as all their decisions
were to satisfy the regime.

However, immediately after the 1992 Constitution was ushered into effect, the judiciary asserted its
independence as private plaintiffs, especially, the New Patriotic Party (NPP), have prevailed against
the government in a number of politically significant cases.
See:
1. New Patriotic Party v Electoral Commission (Suit No. 11/93 SC), which restrained the
EC and outgoing District Assemblies from approving government nominated DCEs prior to
the holding of new district level elections.

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2. NPP v Ghana Broadcasting Corporation (Suit No.1/93 Sc) which ordered GBC as a state-
owned broadcasting station to grant opposition parties fair and equal access to its facilities
to enable the parties present their views to the public.

3. NPP v Attorney-General (31st December Case, SC 1993), which the

Supreme Court held as unconstitutional the planned celebration by the government of the
anniversary of the 31st December coup as a public funded holiday.

In assessing the independence of the judiciary, it should be emphasized that there is no empirical
evidence to suggest that the judiciary has not been independent in the exercise of its functions. The
charge of want of confidence in the judiciary in general and the Supreme Court in particular, is not
borne out of a verifiable data.

In any event, the judiciary cannot truly assert its independence nor exercises its functions effectively
without the constitution of a fearless and truly independent bench. It must be emphasized that the
elaborate constitutional provisions in Articles 125 and 127 would not by themselves secure an
independent judiciary without resolving other problems which militate against judicial independence.

FACTORS INHIBITING JUDICIAL INDEPENDENCE

Even though the 1992 Constitution contains elaborate provisions safeguarding the independence of
the judiciary, there are certain provisions in the same constitution which place the judiciary at
the risk of political manipulation.

The composition and the empanelling of the Supreme Court

Article 128(1) provides that the Supreme Court shall consist of the Chief Justice and not less than nine
other justices of the Supreme Court. Whilst there are a prescribed minimum number of justices of the
Supreme Court, the constitution is silent on the maximum number of Supreme Court judges. This
makes it possible for the President, as the appointing authority, to add to the number. Where a
President, with an overwhelming majority in the legislature is faced with a perceived hostile Supreme

66
Court, Article 128 (1) provides the incentive to neutralize the hostility by appointing more sympathetic
justices to the court.

The Supreme Court under Article 128 (2) is duly constituted by not less than five Supreme Court
Justices. The provision does not elaborate on how or who should constitute the court. As a matter of
convention, the Chief Justice has the discretion in empanelling the court to hear cases. This practice
seems unsatisfactory as it makes it possible for the Chief Justice to select justices sympathetic to a
particular cause to the exclusion of the rest. It also makes it possible for the Chief Justice to constitute
a different panel to give contra decision to an earlier one which he does not agree. Thus, in Dei Darko
X11 (1991) 2 GLR SC 318, the SC held that it had power to extend the time for filing statements of
cases in the Court. On the same day in; In re Oppong (Decd); Mensah v Bediako (1991) 2 GLR
357, the Supreme Court, constituted by a different panel held that the court has no jurisdiction to
extend the time limit.

Appointment of Justices
Article 144 (1) and (2) provides for the appointment to the Supreme Court. In the case of the Chief
Justice, the nomination is made by the president in consultation with the Council of State. This
provision requires that the president confers with the Council of State. The President is not under an
obligation to act in accordance with the advice of the Council of State. With regardsto other justicesof
the superior court, nominations are made by the president acting on the advice of the Judicial Council.
Even though the president, in nominating other superior court judges, is to act on the advice of the
Judicial Council, there is no certainty as to the binding nature of the advice by the Judicial Council.

Capacity of the Judiciary; this relates to

a. infrastructure, modern equipment, court houses etc.
b. poor condition of service, for both judges and administrative personnel.

FACTORS PROMOTING JUDICIAL INDEPENDENCE

Security of Tenure
Article 146 of the constitution provides an elaborate and transparent process for the removal of
justices of the superior court. A justice of the superior court shall not be removed from office except
for stated misbehaviour or incompetence or on ground of inability to perform the functions of his

67
office arising from infirmity of body or mind. A removal of superior court justice may only be in
accordance with procedure specified in Article 146 (3) – (10). This provision safeguard the tenure of
justices to enable them exercise their functions without fear of dismissal. On retiring, a Justice of the
Superior Court shall in addition to any gratuity payable to him, be paid a pension equal to the salary
payable for the time being to a Justice of the Superior Court and for the avoidance of doubt, Article
155(2) provides that the pension paid to a Superior Court Justice shall be subject to the same changes
and increases as the salary of a serving Justice

Salaries and emoluments charged on Consolidated Fund

The constitution among others provides under Article 127 (4) and (5) that the salaries and other
emoluments of judges are to be charged on the Consolidated Fund, meaning that their salaries do not
depend on annual budgetary provisions. In addition, salaries of judges cannot be reduced either by the
President or parliament. These provisions are designed to prevent the other branches, which control
the state’s purse from threatening budgetary cuts in judges’ salaries and benefits as a form of
putting economic pressure on the judiciary to be in line.

Judicial Immunity
The constitution also grants judges immunity from prosecution or other legal processes for acts or
omissions, including utterances, which they may make in the course of performing their judicial
functions. See Article 127 (3)

CONCLUSION

Consequently, we should welcome as timely and appropriate, the observation made by Kpegah JSC in
his opinion in the case of Tsatsu Tsikata (No 1) v Attorney-General (No 1). He asserted in this case
that judicial independence implies that judges must be bold and fearless. As he poignantly put it:
“The saying that justice must be done even if the Heavens fall will be meaningless
unless it is linked up with an equally important saying that the Bench is not for timorous
souls.”

He continues;

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 “It is also suggested that it is not enough for the judges to be bold and fearless. The
judges must also display competence, integrity, personal comportment (both publicly
and privately). They must also exude sound knowledge of the law and command respect
and confidence from their peers and litigants who expect from them nothing but
unalloyed justice and truth. Judges must further resist all pressures, monetary or
otherwise. In this way, the judges, especially in the Supreme Court, can effectively
contribute to the observance of not only the rule of law and true freedom and justice but
also all the abiding values inherent in a free and democratic society.”

CONSTITUTIONAL EVOLUTION IN GHANA(up to 1960)

INTRODUCTION

The country Ghana has not always been what it is. The geo-political framework of the country Ghana
is the outcome of a combination of a number of historical encounters with European powers dating
from the 15th century and ending in the middle of the 20th century. Of interest to us is the encounter
between the present people of Ghana and the British. Upon arrival, the British first settled along the
coast. Initial contacts with the Fantis were mainly in the area of trade and commerce. The incessant
inter-tribal wars of the time compelled some of the coastal states, especially the Fantis to accept some
measure of British rule in return for British military protection. This justifiably invited the British into
an otherwise sporadic and to some extent systematic inter-tribal warfare. The period therefore
witnessed some significant wars between the British and the Ashanti’s leading to the eventual
conquest of Ashanti in 1874, the burning of Kumasi and the exiling of Prempeh I, the then
Asantehene. Ashanti was brought under British rule in 1900. The acceptance of British protection can
be said to have marked the factual commencement of British jurisdiction in what later became the
Gold Coast. It is important to note that at the peak of its rule, the jurisdiction of the British
administration covered.
a. The settled colony (mainly comprising the coastal states)
b. The protectorates of the northern territories
c. The trust territory of British Togoland

As noted, the coastal states voluntarily accepted British jurisdiction by the execution of the Bond of
1844 through which these states invited the protection of the British. Again, it has been stated that
Ashanti was annexed and formally brought within the colonial scheme in 1900. The defeat of Ashanti

69
paved the way for the British to reach the north and thereby extend their jurisdiction there. The
boundary between the North and Ashanti was fixed by Orders in Council of 1901. The Trust
territory on the other hand, was given to the British under the mandate of the League of Nations and
was administered separately until they became part of Ghana through a plebiscite in 1956. After a
series of facts extending British jurisdiction in the Gold Coast, the British government decided to
regularize its jurisdiction in Ghana. This resulted in the British Settlement Act; and the Foreign
Jurisdiction Act. The combined effect of these enactments was to give the British power to govern as
if they had acquired those territories by conquest or cession.
By the Supreme Court Ordinance of 1876 the foundation was laid for the formal administration of
justice in the Gold Coast. Prior to this, Statute of general application had ceased to apply in the Gold
Coast effective the 24th July, 1874. This ordinance provided the set of laws applicable in the Gold
Coast. Significantly however, the Supreme Court that was established was part of the executive
council.

THE 1916 CLIFFORD CONSTITUTION

The Clifford constitution of 1916 established a legislative council that was dominated by official
members, all of whom were Europeans. So was the executive council, which was headed by the
governorship. The legislative council comprised five official and four unofficial members. The
unofficial members comprised 2 Europeans and 2 Africans. The governor had the power to veto
legislations. In his address to the legislative council of 1916, governor Clifford indicated that the
constitution he envisaged for the colony was that which will be paternal rather that democratic in
character.

This constitution proved dissatisfactory to the people. This then generated negative reactions
towards the constitution. Two significant factors or reasons influenced this state of affairs. These are:
1. Demands for more representation. This was aptly captured in the maxim-taxation must go
with effective representation.
2. Demands for responsible government in the sense of being answerable to the people.

These dissatisfactions compelled governor Guggisberg to initiate fresh attempt at constitutional

advancement in 1925.

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THE GUGGISERG CONSTITUTION

The Guggisberg constitution of 1925 was written in reaction to increasing dissatisfaction with the
Clifford constitution of 1916. This constitution represents an early attempt to curve out a system of
government that is representative of the people of the Gold Coast. This will seem to coincide with
the determination of governor Guggisberg to facilitate economic developments in the Gold Coast. It
was contained in three (3) separate documents.
a. Royal patents establishing the offices of the Governor General and the commander in chief.
b. Royal instructions.
c. Gold Coast colony (legislative council) Order in Council of April, 1925.

This constitution contained nothing on the judiciary because the passage in 1876 of the Supreme Court
Ordinance created a kind of court system as well as the applicable laws therein.

Under this constitution, the membership of the legislative council was increased to 30 comprising the
governor, 15 official and 14 unofficial members. The official members were further divided into ex
officio members of whom there were 13, and one nominated official member. Significantly, the
official membership of the council was expanded. Under this constitution, municipal councils were
created for the municipalities of Accra, Cape coast and Sekondi-Takoradi with representations on the
legislative council. Since the African membership of the legislative council was by election, it is
noteworthy that the constitution introduced the elective principle for the first time in the constitutional
history of the Gold Coast. The Governor however retained his veto power to block legislations as well
as his reserved powers. The reserved powers of the Governor were a power reserved to the governor
to pass legislations, which have otherwise been rejected by the legislative council.

Under section 15 of the Order in council, persons who were recognized by the Governor as head
chiefs of the three provinces of Accra, Cape coast and Sekondi-Takoradi mainly dominated the
provincial councils. The introduction of the elective principle was treated with such importance that
section 37 of the order-in-Council dealt with such matters as cheating, inducement etc during
elections. It is important to mention that Ashanti was notcovered bythis new legaldispensation
butcontinued to be administered as a separate entity from the colony.

WEAKNESSES

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1. The domination of the chiefs in the provincial councils was heavily criticized by the
educated elites of the cities. Among others, it was argued that, that flouted traditional
protocol, which forbids a chief from openly speaking in public without the aid of a linguist.

2. Another notable flaw in the constitution was the maintenance of official majority. In the
estimation of the indigenous Africans, this contradicted their desire for self-government.

3. Further to this is the fact that it is only the Governor who could effectually promulgate laws.
This was ensured through the medium of the veto wielded by the Governor. This invariably
frustrated the efforts of the Africans who felt they could never influence legislative policy as
long as there exists the Governor’s veto power.

4. Again under this constitution it was only the governor who could initiate financial legislation.
(Compare this to the financial provisions in the constitution, articles 174 et seq).

5. Finally, the policy of indirect rule that was vigorously pursued by the Guggisberg constitution
led to the creation of chieftaincy positions and titles where there was hitherto none. This was
particularly true of the acephalous non-centralized states of the north. The gross effects of
these weaknesses were to generate disenchantment with this piece of constitutional advance
thereby leading to calls for improvements especially in the representations of African interest
in the colonial administration.

The 1925 Guggisberg constitution was significant in the annals of the history of the Gold Coast
particularly because, it introduced the elective principle leading to a partly elective, partly nominated
legislative council as well as the introduction of the provincial councils.

THE 1946 BURNS CONSTITUTION

Increased political agitations from bodies such as the National Congress of British West African
(NCBWA) led to pressure on the British government to augment the constitutional development of
the Gold Coast. On 29th March, 1946, the Burns constitution came into effect. Inception of this
constitution marked a significant watershed in the constitutional development of the Gold Coast.
Notable, Ashanti was included in this constitutional arrangement. There was radical restructuring of

72
the composition of the legislative council. The elected members were increased from eleven to
eighteen, whiles the ex officio members were reduced from thirteen to six and the nominated members
were increased from two to six. The elected members therefore had a majority of six over the official
and nominated members.

This development though significant prima facie, it was largely impotent in influencing legislative
policy. This was because the Governor still had his reserved powers by which he could pass into law
any bill or motion, which failed to pass the legislative council where he deems same to be expedient
in the interest of public order, public faith or good governance.
The elected members comprised nine (9) provincial members elected from the Eastern and Western
provinces, and four members from Ashanti, elected by the Ashanti confederacy council. There were
five municipal council members of whom 2 were elected from Accra, and one each from Cape Coast,
Sekondi-Takoradi and Kumasi. The ex officio members were the;

a. Colonial Secretary
b. Chief commissioners of the colony, Ashanti and the northern territories
c. Attorney General and
d. Financial Secretary.

Of the six nominated members, 3 were Africans totaling 21 African members out of 30. The term of
office of the elected members was four years. The Order in council prohibited the consideration of
any mater, which would dispose of public funds without the sanction of the Governor. On the other
hand, the Executive council for the first time had African representation on it. Three members were
appointed onto it.

It is curious to learn that the years following this major constitutional step were marked by violence
and instability. In 1948, the Gold Coast was rocked by riots-an occurrence, which was to awaken the
colonial powers from the constitutional slumber in which they seemed to have fallen. The riots left
29 dead and 237 injured. A Commission of Inquiry under the chairmanship of Aiken Watson K. C.
found a number of social, political and economic causes for the disturbances. The Watson
commission made the following recommendations:
1. An expansion of the African presence in the legislative council
2. That the executive should be made accountable to the majority in the legislative rather that the
Governor.

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3. A strengthening of the local government system.

The British government accepted these recommendations and consequently put in place an all-
African constitutional committee under the chairmanship of Sir Henley Coussey to draft a new
constitution. This resulted in the enactment of the 1951 constitution.

THE 1951 CONSTITUTION

This constitution came into force in 1951 through the gold Coast (constitution) Order in Council,
1950, which for the first time applied a uniform constitutional provision to all the territories included
in the territories now comprising Ghana. The old Executive Council was completely reconstituted,
and the legislative council made way for a Legislative Assembly consisting almost entirely by
Africans. Again, for the first time, elected representatives of all four territories making up Ghana met
together in a law making body.

The executive council was still answerable to the Governor. The British government justified this
position on the ground that the ultimate responsibility of the administration rested with Governor. The
executive council consisted of the Governor, as president and a number of ministers. There were
three ex officio Ministers, namely the Chief Secretary, Attorney-General, and Financial Secretary and
not less than 8 representative Ministers appointed by the governor from among the members of the
Legislative Assembly. The Executive council was required to elect one of theirnumbers to be leader
of Government Business in the Legislative Assembly.

The Legislative Assembly consisted of the speaker, the 3 ex officio Ministers, 3 representatives of the
chambers of commerce, 3 representatives of the chamber of mines and 75 elected members.Dr.
Kwame Nkrumah, who became the leader of government business and later Prime Minister kicked
against this constitution describing it as bogus and fraudulent. Following the visit of the secretary of
state for the colonies in 1952, Dr. Nkrumah stated in the legislative council that, if the Gold Coast
were to attain full self-government, the Gold Coast government must take the initiative and lay before
the British government proposals worked after consultations with the chiefs and people. This led to
the adoption of the 1954 constitution.

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THE 1954 CONSTITUTION

This constitution repeated some of the provisions of the previous constitution. Significantly, the
constitution contained detailed provisions on the judiciary and public finance. As regards the
executive, the governor ceased to be a member of the cabinet, which was made responsible to the
assembly and consisted of not less than 8 members of the Assembly appointed on the advice of the
Prime Minister. The cabinet was precluded from exercising powers in relation to defense (including
internal security) and external affair. The Attorney General ceased to be a member of the cabinet and
his powers for the conduct and discontinuance of prosecution was laid down by the constitution. The
legislative Assembly,on the other hand, consisted of the speaker and 104 members, all elected by
universal adult sufferage. The governor had the power to insist on the introduction of bills and
reserved the power in cases where a bill was not passed. A Judicial Service Commission was set up
comprising the Chief Justice, and 2 other judges, the Attorney-General and the chairman of the
Public Service Commission. A judge of the Supreme Court was not removable except on an
address of the Assembly carried by not less than two-thirds of the members praying for his removal
on grounds of misbehavior or infirmimity of body or mind. Interference with the commission was
made punishable with imprisonment.

The years following the adoption of the 1954 Nkrumah constitution saw protracted political agitations
bordering on the kind of geo-political arrangement best suited for independent Ghana. In September
1954, the NLM was formed in Kumasi, with support from Asanteman and nearly all other opposition
parties. The main aim of the movement was to advocate for federalism as opposed to a unitary state.
Their basic argument was that there is not enough consciousness of national identity to make possible
easy and at the same time democratic unitary government. In the absence of this consciousness the
safest course is to ensure that not all the powers of government concentrated at the centre but that a
substantial part of them is retained in the component territories where people have learnt the habits and
attitudes of living together for some time.

This British government in 1955 brought a constitutional advisor, Sir Frederick Bourne into the Gold
Coast to advise it on the issues arising from the agitations for federalism. He basically rejected the
call for federalism but recommended the adoption of certain compromises, which was intended to
allay the fears of the federalists arising from the over concentration of power in the hands of a unitary

75
government. Following this, the Prime Minister convened a conference in Achimota. The NLM
boycotted this conference. The conference accepted the Bourne recommendations but urged that
Regional Assemblies should rather be set up simultaneously in all regions.

Another major issue that had to be solved was the grant of full independence to the Togoland mandate.
The constitutional status of the territory saw the Gold Coast government, supported by the opposition
and the British government advocating its unity with an independent Ghana, whiles the Togoland
congress party, the All-Ewe Conference and other ancillary groups desiring that it should be
established under a separate administration. The ensuring plebiscite that was held resulted in majority
overall vote in favour of unity with independent Ghana. The general elections of 1956 resulted in a
decisive victory for the Convention People’s Party (CPP). The government initiated moves to secure
full independence for the country. The government formally tabled in the Assembly, a motion for
independence. The Ghana Independence Act, 1957 received Royal Assent on the 7 th February
1957.The Act placed all the four territories on an equal footing as the dominions of her Majesty as
the Queen of Ghana. Since neither the Northern territories nor British Togoland previously formed
part of Her Majesty’s dominions, this Act had the technical effect of annexing those territories. This
effect was necessary for the creation of a unified Ghana.

THE CONSTITUTION OF 1957

Notwithstanding the significant developments introduced by the 1954 constitution, the political
leader of the time did not think it went far enough in bringing the Gold Coast to self-rule. The Ghana
(constitution) Order in Council, 1957, embodied the new constitution of independent Ghana. Under
this constitution the Governor was replaced by a Governor-General whose office was established by
letters patent. The executive power of Ghana was vested in the Queen or the governor-General as her
representative. The previous limitations on the powers of the executive were removed and it was
charged with the general direction and control of the government of Ghana and made responsible to
parliament.

The Legislative Assembly consisted of the Queen and 104 members. The limitations as to laws
imposing disabilities on racial grounds or providing for compulsory acquisition of property remained
and a further provision was made to protect freedom of conscience and religion. No bill for amending

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the constitution could become law unless it has been supported by the votes of not less than two thirds
of the numbers of parliament.

THE REPUBLICAN CONSTITUTION

The enactment of the republican constitution changed the constitutional status from one of
Monarchical to Republican. This constitution was adopted through a referendum. The parliament
established by this constitution was composed of 104 members. Significantly, it included the
president of the Republic. Article 20 described parliament as sovereign. How true is this especially
in the light of the limitations imposed on the legislature in its law making functions.Article 42(2) gave
the Supreme Court the power of judicial review. It is interesting to note the decision of the Supreme
Court Re Akoto concerning the power of judicial review. In that case, the applicants applied to the
Supreme Court for a writ of Habeas Corpus, compelling the production of the body of Baffour Osei
Akoto and others who were being detained pursuant to the PDA. The applicants contended inter alia
that Article 11 of the 1960 constitution provided a right for the citizen, protecting him from arbitrary
arrests, which said right, is enforceable through the power of judicial review in this case. In
dismissing the application, the court stated that the said provision is only morally binding on the
president and as such cannot be the subject of legal enforcement. As regards judicial review, the
court noted, relying on the English case of Liversidge v Anderson that judicial review cannot be
granted in such a case considering the fact that the president is legally empowered to exercise
discretion in this matter. It must be noted that Liversidge is a wartime decision where the permissible
curtailment of individual rights is not uncommon.

Judicial security of tenure of judges was granted in this constitution, but this was soon amended in
1964 to allow the president to dismiss judges at his will. Again the president had special powers under
Article 55 to amend any legislation.

QUESTIONS
“The evolution of the constitution of Ghana has been incremental with regards to democratic
participation”. Evaluate this view in the light of promulgation of the 1992 constitution.
Past question, April/May 2010

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 CONSTITUTIONAL INTERPRETATION

INTRODUCTION

For the constitution to be in full force the constitution must be interpreted. Constitutional
interpretation is a form of statutory interpretation because the constitution is a form of statute but it
is the highest and a special statute. A number of principles and rules have been devised for this
purpose.

1. The first principle of constitutional interpretation is that, the constitution should be read
benevolently and given its purposive construction or interpretation. The essence of
purposive construction is to give effect to the intendment behind the constitutional
provision. This particular principle advocates that the constitution should not be
interpreted in a legalistic or technical manner. In the case of Tuffour v Attorney General,
Justice Sowah who delivered the opinion of the court wrote;
“It does not admit of a narrow interpretation. A doctrinaire approach to
interpretation would not do … And so we must take cognisance of the age-old
fundamental principle of constitutional construction which gives effect to the
intent of the framers of this organic law. Every word has an effect.”

Justice Aku Korsah held in the case of Re Akoto and seven others that;
“We cannot therefore accept the narrow interpretation which counsel for the
appellants seeks to place on the purpose of the Act”.

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2. The constitution must be construed as a political document capable of growth. Sowah, JSC, as
he then was, wrote in his judgement in the case of Tuffour v Attorney General that;
“Its language, therefore, must be considered as if it were a living organism
capable of growth and development Indeed, it is a living organism capable of
growth and development, as the body politic of Ghana itself is capable of growth
and development. A broad and liberal spirit is required for its interpretation.”

3. The constitution must be interpreted in accordance with its peculiarity as a special document
(sui generis) and therefore ordinary rules of statutory interpretation are inapplicable. Justice
Sowah was clear on this in his judgement in the case of the Republic v High Court; Ex parte
Agyei. He wrote;
“Finally the court will observe that the narrow rules of construction applicable in
the cases of contracts, wills, statutes and ordinary legislation may or may not be
adequate when it comes to the interpretation of a Constitution or law intended to
govern the body politic.”

4. Constitutional interpretation must be both flexible and disciplined. Flexible because

constitutional interpretation must not be rigid and legalistic or technical but on the other
hand, judges are advised to refrain from unduly importing words into the constitutional
document. In the case of Agyei Twum v Attorney General, Justice Asiamah, JSC, as he then
was wrote
“The authority of the court to imply such implicit provisions through purposive
interpretation was not a license for the judges to re-write the constitution. He
further on writes, “The interpretative authority was a limited one to make
explicit what was implied within the penumbra of the letter of the
constitution…”
See also Tsatau Tsikata (2) per Acquah, JSC.
Kuenyehia v Archer

5. Constitutional interpretation also involves understanding the spirit of the constitution and its
interpretation. In the case of Tuffuor v Attorney general, Justice Sowah, in delivering the
opinion of the court wrote;

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 “The Constitution has its letter of the law. Equally, the Constitution has its
spirit.”

Justice Francois, in the case of New Patriotic Party v Attorney General also wrote
“The Constitution has its letter of the law. Equally, the Constitution has its spirit.
It is the fountain-head for the authority which each of the three arms of
government possesses and exercises." My own contribution to the evaluation of a
Constitution is that, a Constitution is the out-pouring of the soul of the nation
and its precious life-blood is its spirit. Accordingly, in interpreting the
Constitution, we fail in our duty if we ignore its spirit. Both the letter and the
spirit of the Constitution are essential fulcra which provide the leverage in the
task of interpretation. In support of this, we may profitably turn to the
Constitution, 1992 itself which directs that we accord due recognition to the
spirit that pervades its provisions.”

See also Sallah v Attorney General.

6. The Directive Principle of State Policy may also be called in aid of the interpretation of the
constitution.

In his elaborate opinion in the case of New Patriotic Party v Inspector General of Police,
Justice Hayfron Benjamin, as part of his concurring opinion wrote;

“In the Report of the Committee of Experts, p 49, para 94 it is stated:"94. The
NCD report speaks of the need to include in the new Constitution 'core principles
around which national political, social and economic life will revolve.' This is
precisely what the Directive Principles of State Policy seeks to do. Against the
background of the achievements and failings of our post-independence
experience, and our aspirations for the future as a people, the Principles attempt
to set the stage for the enunciation of political, civil, economic and social rights of
our people. They may thus be regarded as spelling out in broad strokes the spirit
or conscience of the Constitution."… The experts recognised that the directive
principle … provides goals for legislative programmes and a guide for judicial
interpretation." … The framers of the Constitution, 1992 having adopted the

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 directive principles stated in article 34(1) of the Constitution, 1992 the scope for
their implementation thus:

"34. (1) The Directive Principles of State Policy contained in this Chapter shall
guide all citizens, Parliament, the President, the Judiciary, the Council of State,
the Cabinet, political parties and other bodies and person in applying or
interpreting this Constitution or any other law and in taking and implementing
any policy decisions, for the establishment of a just and free society."

For more information on this topic, Dr. S.Y. Binpong Buta’s book the role of the Supreme Court in the
development of constitutional law in Ghana is highly recommended.

QUESTION

Constitutional interpretation has been said to be a special branch of interpretation. What are the tools
or principles of constitutional interpretation? And in your considered opinion, are these tools adequate
in addressing the challenges posed by constitutional interpretation in Ghana.
Past question, May 2008

“We cannot under the cloak of constitutional interpretation rewrite the constitution of Ghana. Even in
the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms
or because we suppose that the lawgiver was mistaken or unwise. Our responsibility is greater when
we interpret the constitution. We cannot and must not substitute our wisdom for the collective wisdom
of the framers (emphasis mine) of the constitution.” Republic v Fast Track High Court, Accra; Ex
Parte Daniel. What does this tell you about the rules of constitutional interpretation and indicate
whether in your opinion, this is the preferable approach in interpreting the constitution.
Past question April/May, 2010

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 COMMISSIONS OF INQUIRY UNDER GHANA LAW
A lecture by Richard Frimpong Oppong

INTRODUCTION

Commissions of Inquiry are an important aspect of our administrative law machinery. Their history
dates back to the colonial times and many have been appointed for diverse purposes since
independence. They represent an effective tool for the discovery of truth in areas where rumours
prevail. Their findings sometime provide the necessary background information for the taking of
certain policy measures and may have impact on the rights of individuals. The law and practice of
commissions of inquiry in Ghana has, however, not been fully explored. This paper examines the law
and practice of commissions of inquiry in Ghana. We will discuss their appointment procedure; the
subject matter over which an inquiry could be ordered; the rules of procedure at commissions of
Inquiry, the relationship between commissions of inquiry and the courts of law, as well as, the status
and effect of the findings of such commissions. It will shown that certain areas of the law demand
clarification and further examination.

The paper is divided into four parts. The first examines the nature and function of commissions of
inquiry in Ghana. The second discusses the conduct of their proceedings. The third focuses on the
effects of their findings. The last part provides the conclusion.

NATURE AND FUNCTION OF COMMISSIONS OF INQUIRY

What are They?

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Defining a term often poses a difficulty. At was noted by Pollock, “there is rather too much talk
about definitions; a definition strictly speaking is nothing but an abbreviation of which the user
of the term defined may please himself…” This notwithstanding, an attempt will be made here to
hazard a definition. A commission of inquiry can broadly be defined as a body, which being of a
judicial character and consisting of one or more persons is appointed to inquire into a matter, which is
of interest to the appointing authority.

A distinction should be made between the following types of commissions of inquiry. First, we have
purely domestic commissions of inquiry, which are set up by private entities such as companies,
schools, churches etc. to inquire into specified matters. Second are commission of inquiry set up by
administrative/governmental bodies such as ministers and departments of state. Third are
commissions of inquiry set up by the president under article 278 of the 1992 Constitution. Finally
there are the apparently permanent bodies like the Commission on Human rights and Administrative
Justice (CHRAJ) and the serious Fraud office (SFO) whose works resemble, in some respects that of
commissions of inquiry but depart from them in some significant respects. First, these bodies are
permanent entities set up by an Act of parliament with defend functions. The CHRAJ derives its
powers directly from the 1992 constitution. Second, there are certain powers, which may be exercised
by these two bodies, which are not available to commissions of inquiry. For example under section 18
of the Serious Fraud Office Act 1993, Act 466 the Director [of the Serious Fraud Office] may where
authorized by the Attorney General in writing institute and conduct any criminal proceedings arising
out of investigations conducted by the office”. Equally under section 18(2) of the Commission of
Human Rights and Administrative Justice Act, 1998 (Act 456), the Commission is empowered to
“bring an action before any court and seek such remedy as may be appropriate for the
enforcement of the recommendations of the commission”. This power is unavailable to the above-
mentioned ad hoc commissions of inquiry. Beside these, one can safely argue that the procedures
adopted by these permanent bodies resemble that of commissions of inquiry.

It is equally important at this stage to take a look at the issue of whether there is any distinction
between a “commission of inquiry” and “a committee of inquiry” – a distinction, which assumed great
constitutional significance after the decision in Osman v Darko. In that case the Supreme Court held
that;
“the meaning of the term “commission of inquiry in article 71 [of the 1969 Constitution]
could not be extended to include committee of inquiry”.

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This case was cited in Republic v Volta Region Chieftaincy Committee and Another, Ex parte
Asor and interpreted to mean,
“a committee of inquiry is an inferior body to a commission of inquiry”.

None of these decisions, however, provided the essential criteria for distinguishing between the two.
Apparently in reaction to these decisions subsequent enactments have provided that “commissions of
inquiry include committee of inquiry”.

That, however, still leaves unresolved the question of the essential distinction between the two, which
leads to one being roped into the other by legislative fiat.
It is suggested that there is apparently no strict difference in essence between the two. In practice it
appears, however, that the term commission of inquiry is reserved for those appointed by the president
using a constitutional instrument whilst those established by ministers, government departments and
private entities are often named committees of inquiry. This practice might have been influenced by
the distinction,

Which by the Committee of Experts, which drafted the 1992 constitution sought to draw between “the
findings of a judicial or quasi judicial commission of inquiry and the finding of a less formal fact
finding inquiry”.

The focus of this paper is on commissions of inquiry appointed by the president by a constitutional
instrument under article 278 of the 1992 Constitution. However, most of the discussion her4e will
also be relevant for the other types of commissions of inquiry described above.

Subject Matter of Inquiry.

The history of Commissions of Inquiry in Ghana shows that commissions of inquiry have been
appointed to inquire into various matters. These include matters such as to make proposals for a new
constitution, to look into the administration of the police service, to look into the functions of state
owned enterprises, to study the phenomenon of bribery and corruption in Ghana, to inquire into the
assets of former government officials, and to inquire into catastrophic events like the stadium disaster
and the beheading of the Ya-na, the Paramount chief of Dagbon in Northern Ghana. Generally

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however, commissions of inquiry are appointed to inquire into extremely important matters. As Lord
Kilmur noted
“the procedure should be invoked for weighty and important matters, for it is only then
that the sacrifices on the part of the individual can be fairly demanded”.

Under article 278 of the 1992 Constitution, a commission of inquiry can be appointed to inquire “into
any matter of public interest”. Public interest has been defined in article 295 of the Constitution to
include any right or advantage, which inures or is intended to inure to the benefit generally of the
whole people of Ghana

Thus there exist constitutional limitations on the scope of matters, which can be the subject matter of
inquiry by a commission of inquiry appointed under the Constitution. The fact, however, remains that
the decision to appoint a commission of inquiry is pre-eminently a political decision for the
government. This decision is not reviewable by the courts unless it can be shown that some
constitutional or statutory limitation has been breached. However, once it has been determined that a
commission be established, any decision about the nature of the inquiry might become reviewable by
the court in the exercise of its powers of judicial review.

In Republic v committed of Inquiry (R. T. Briscoe) (Ghana) ltd. Ex Parte R. T. Briscoe (Ghana)
Ltd. The Supreme Military Council (SMC) by Executive Instrument No. 142 set up a committee of
inquiry into the activities of R. T. Briscoe (Ghana) Ltd. in relation to the exchange control laws of
Ghana. In this application, counsel for the applicant argued that the applicant, a limited liability
company of a private not a public character, could not be the main object of investigation of a
committee of inquiry. In rejecting this submission, it was held that although an examination of
legislative policy before 1972 would seem to limit the scope of commissions of inquiry to matters of
public interest or importance, where the acts of a private limited liability company or a private
individual impinged on the national economy or other areas of national activity to such an extent as to
be likely to adversely affect national aims and objective, that would be a matter of public concern or
importance which could properly form the subject matter of inquiry by a committee of inquiry. This
case and the ruling should not be understood to represent a departure from pre 1972 “legislative
police” but as a continuation of it in another aspect of national life. Indeed it is not wholly true to say
that such was the legislative policy before 1972 for in 1966 the affairs of NADECO, a private

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company, were the subject matter of inquiry. What is of essence here is the extent to which the
activities of the private entity impact on national affairs.

In Republic v PNDC Secretary, Ex Parte Oti, the validity of the appointment a committee of inquiry
appointed to inquire into the choice of a chief was challenged on the ground that jurisdiction in
chieftaincy matters was the preserve of the House of Chiefs and traditional councils. In rejecting this
submission it was held that by the provisions of section 6(1) of the Provisional National Defense
Council (Establishment) Proclamation (Supplementary and Consequential provisions) Law 1982
PNDCL 42, the PNDC as the legislative authority was vested with very wide powers to set up a
committee of inquiry into any matter of public interest and although the law did not specify what
constituted matters of public interest, it was obvious that the PNDC had the discretion to determine
what matters were of public interest and accordingly it had power to appoint a committee of inquiry
into a chieftaincy matter when satisfied that it was in the public interest. Although this decision may
have been right at the time it was given, (at that time there was no Constitution and the executive and
legislative powers were not clearly separated,) its implications must be explored for it leaves open a
window of opportunity through which the executive may act and frustrate the work of other state
institutions, in the instant case the House of Chiefs. It can create a situation whereby two institutions
of state can come out with two different conclusions of the same subject matter – a clear recipe for
confusion. Indeed in the instant case the government withdrew the matter, which was before the Ga
Traditional Council and appointed a panel to hear and determine the case.

It is in a similar light that the true scope of the phrase “any matter of public interest” should be
discussed and interpreted. Prima facie the only limitation on subject matter of inquiry is that it should
be in the public interest. One can, however, ask whether it will be in the public interest and hence
constitutional to appoint a commission of inquiry to inquire into a matter which is sub judice. On the
ordinary meaning of the phrase the answer will be in the affirmative. This position is further
strengthened by the fact that where the framers of the constitution wanted to limit the scope of inquiry
of an investigative body it said so expressly. The maxim is expression unius est exclusio alterius
(the express mention of things of the same class implied the exclusion of those not expressly
mentioned). Thus article 219(2) of the 1992 Constitution provides that the Commission of Human
Rights and Administrative Justice shall not investigate a matter which is pending before a Court or
judicial tribunal. It can however be argued on the contrary that such a stance would amount to
interference with the work of the judiciary and in breach of article 127 of the 1992 Constitution.

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So far such an issue has not seriously arisen under the 1992 Constitution but it was a similar act by the
Executive, which formed the genesis of the case of Republic v Otu Ex part Attorney General. In
that case the defendants had been served with charges under the Armed Forces Act 1962 (Act 105).
Before the trial a commission of inquiry was set up to investigate the activities of the defendants
which activities formed the subject matter of the criminal prosecution. They appeared before the
commission but refused to be sworn asserting the privilege against self-incrimination.They were cited
for contempt but subsequently discharged. Be that as it may, commissions of inquiry appointed under
the Constitution seem to have adopted some self-restraint. Thus the commission of inquiry set up to
investigate the international transfer of players declined to inquire into cases which were “pending
before court or had previously been determined by the courts having “regard to the difficulties which
the commission might encounter if it assumed jurisdiction over [such] issues”

Appointment Procedure and Independence

The need for the establishment of an impartial and independent commission of inquiry has been the
concern of all and has engaged the attention of legislators for some time. To the drafters of the 1969
Constitution such inquiries should be conducted “independently of both the Executive and
Parliament”. This notwithstanding, a look at the law relating to commissions of inquiry in Ghana
reveals a preference for entrusting the appointment of such bodies to the Executive branch of
government. The danger with such a scheme has been the tendency for commissions of inquiry to be
appointed to “confirm” the views or perceptions of the Executive on the subject matter of the inquiry
and casting doubt on their independence and impartiality. Azu Crabge J. A. in Gbedemah v
Awoonor Williams stated the obvious when he noted, “a commission of inquiry is an agency or
organ of the executive”. Being an agent the tendency to listen to the “masters” voice is real. The
withdrawal of the Andani faction from the activities of the Wuaku Commission investigating events
leading to the beheading of the Ya-na citing bias and executive manipulation is also a case in point.
Complaints of lack of independence and executive manipulation have been levelled especially against
commissions of inquiry appointed to investigate allegations of corruption of former government
officials. A perception, which is sometimes, confirmed in some of the White Papers issued on reports
of such commissions of inquiry.

The procedure for the appointment of commission of injury often leads to these allegations on
impartiality and lack of independence, appears, however, not to be very much different from that

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which pertains in other jurisdictions. In Britain for example the procedure is that “where it has been
resolved by both Houses of parliament that it is expedient that a tribunal be established for
inquiry into a definite matter described in the resolution as of urgent public importance a
tribunal is so appointed either by the Crown or a Secretary of State”. Thus in both countries the
appointment is done by the Executive on the request of parliament.

The problem in Ghana, however, seems not to be with the procedure of appointment but with the
individuals manning the process. It is suggested that although this procedure can be maintained,
specific provision should be made expressly guaranteeing the independence of such commission of
inquiry, as has been done for other institutions of state such as the Commission on Human Rights and
Administrative Justice. Also the appointment of the Commissioners could be done on the advice of
the Council of State.

PROCEEDING AT COMMISSIONS OF INQUIRY

Rules of Procedure.
The need to follow the right procedure before arriving at a legal conclusion, especially when that
conclusion has implication for the rights of individual is an essential aspect of the rule of law. The law
abhors arbitrariness hence many decisions have been quashed on grounds of procedural irregularity. A
commission of inquiry must follow certain laid down procedures before its conclusion can stand the
test of the law. It is, however, in a rather different position from courts of law: they may be manned
by people not skilled in the law, do not exercise judicial power, are characterized by great deal of
informality and are usually set up to inquire into maters which may be nothing more than rumours.
This may be so notwithstanding an attempt in its terms of reference to broadly define the
commission’s work. As Keeton notes,
“In a court of law definite charges are preferred against specific persons who therefore
have full opportunity to prepare and at the same time give the court focus. A tribunal of
inquiry on the other hand has the difficult task of conducting a general inquiry into
matters, which are sometimes based upon nothing more than rumours. In such a case,
therefore, a very great responsibility devolves upon the tribunal itself in respect of the
difficult question as to how far the inquiry should range and what kind of inquiry it shall
receive”.

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Owing to the above and the possible adverse consequences that the findings of such commissions of
inquiry may have on the individual, the procedure adopted by commissions of inquiry has been the
concern of legislators and the judiciary. This might have accounted for the departure from section 5 of
the Commissions of Inquiry Act 1964 (Act 250) (which allowed the commission to prescribe its own
rules of procedure) to the resent provision in article 281(2) of the 1992 Constitution which enjoins the
Rules of Court Committee to make rules regulating the practice and Procedure of all commissions of
inquiry. This provision existed in both the 1969 and 1979 Constitutions but so far no such rules have
been made.

The drafters of the 1969 Constitution however attempted to provide some useful guides. They noted,
“as a guide we think that a commission of inquiry should not be bound by the ordinary
strict rules of evidence applicable in courts of law. A person duly summoned before a
commission of inquiry should not be regarded as a witness of any particular party. He
must be considered to be a witness of the commission. Such a person should therefore
give formal evidence as to the matters related by him in his written statement to the
commission and then be subjected to cross-examination by counsel on behalf of the
commission to test the accuracy of his statement and to deal with matters which are not
dealt with in his statement. He should be liable to examination on behalf of any person
affected by the evidence given or that person himself and should be subject to re-
examination on behalf of the commission when this is required”.

The Court of Appeal in Darkwa v the Republic also noted,

“that a committee of inquiry like a commission of inquiry was a fact finding tribunal not
a criminal trial. Its work implied the discovery of truth, which ought to be balanced
against the interest of the individuals. It therefore has a duty to ascertain the truth
before making a finding. Its nature partook of the exercise of judicial function i.e. the
taking of decisions and thus it had a duty to do what was reasonable in the
circumstances. Because of these considerations a committee of inquiry had certain
obligations. It had the obligation to be candid and fair, to observe the audi alteram
paterm rule and a bounden duty to observe the rules of natural justice . . . the person
against whom an allegation was made should be permitted to challenge the very
allegation against him and have a right to call evidence to support his contentions. The
basic procedure consisted of collecting evidence, taking statements from witnesses,

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 presenting their evidence, testing the accuracy of the evidence and finally finding the
facts”.

Lord Diplock, in Mahon v Air New Zealand also noted

“the rules of natural justice that are germane in the exercise of an investigative
jurisdiction are these; the first rule is that the person making a finding in exercise of
such jurisdiction must base his decision upon evidence that has some probative value….
The second rule is that he must listen fairly to any relevant evidence conflicting with the
finding and any rational argument against the finding that a person represented at the
inquiry whose interest may be adversely affected by it may wish to place before him or
would have wished if he had been aware of the risk of the finding being made. The
technical rules of evidence applicable to civil and criminal litigation form no part of the
rules of natural justice. What is required by the first rule is that the decision to make a
finding must be based upon some material that tends logically to show the finding and
that the reasoning supportive of the finding if it be disclosed is not logically self-
contradictory. The second rule requires that any person represented at the enquiry who
will be adversely affected by the decision to make a finding should not be left in the dark
as to the risk of the finding being made and thus deprived of any opportunity to adduce
additional material of probative value which had it been placed before the decision
maker, might have deterred him from making the finding even though it cannot be
predicted that it would inevitably have had that result.”

The proceedings at commission s of inquiry have also engaged the attention of scholars in other
jurisdictions. In Britain a Royal Commission chaired by Salmon L.J. reviewed the whole procedure in
1966 and came out with certain recommendations. In order to minimize the risk of injustice to
individuals the commission identified six “cardinal principles” that all tribunals established under the
Tribunals of Inquiry Act 1921 should observe. In summary these are:
1. That the Tribunal should be satisfied that each witness called was really involved in the
subject matter of the inquiry;
2. That every witness should be informed of any allegations, and the substance of the evidence,
against him;
3. That he should have an adequate opportunity of preparing his case and of being assisted by
legal advisers;

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4. That he should have the opportunity of being examined by his own solicitor or counsel;
5. That all material witnesses a person wishes to be called should, if reasonably practicable be
called; and
6. That every witness should have the opportunity of testing any evidence which affect him by
cross-examination conducted by his own solicitor or counsel.

The absence of well-defined procedural rules represents a challenge to all commission of inquiry. It
does not, however, in any way derogate from their duty to make “a full, faithful and impartial
inquiry”. The guiding principle should be that their procedure should accord with fairness, natural
justice and the legitimate expectations of the affected persons. Again although the absence of
statutory procedural rules provides commissions of inquiry with a wide latitude to determine their own
procedure, the court will intervene when there is very “good reason”. This power to intervene is in
line with the courts supervisory jurisdiction over lower adjudicating authority. The courts are however
slow to intervene. As Lord Woolf admonished,
“tribunals such as this often have the most difficult task to perform. They are set up
without guidance as to the precise procedures, which they have to follow. They have to
work out that procedure for themselves. The will inevitably know more about the
problems of the particular area into which they have to enquire than can be known by
the supervising court . . . Tribunals are entitled to determine their procedure for
themselves. The court should only interfere when there is some very good reason for
them to do so”.

Witnesses before Commissions of Inquiry.

Under article 283 of the Constitution a witness before a commission of inquiry is entitled to the same
immunities and privileges as if he were a witness before the High Court of Justice. By this provision
such a witness is entitled to all the privileges under part VI of the Evidence Decree 1975 ((NRCD 323)
as may be relevant to the proceedings of the commission and such other privileges as are evolved by
the common law.

Any such privilege must, however, be claimed. In Akainyah v The Republic it was held that
although a witness before a commission of inquiry may be privileged from answering self-
incriminating questions, the role of the commissioner in the proceedings is the same as the role of a
judge before whom a witness appeared at a trial. The judge as a matter of practice should warn a

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witness that he was not obliged to answer incriminating questions but there seemed to be no rigid rule
of law to that effect. It was for the witness to claim the privilege by objecting to answer. Therefore,
the fact that a witness was ignorant of his rights should not prevent the court from utilizing his
evidence in subsequent criminal proceedings bought against him.

The operation of the exclusionary rules on privilege often poses a problem to the activities of
commissions of inquiry whose ultimate aim is to ascertain the truth. This is because the operation of
this exclusionary rule has the effect of “hiding” the truth. This may influence the attitude of the
commissioner and the problem is exacerbated by the mass illiteracy and ignorance, which may prevent
people from knowing and asserting the privilege. It is suggested that in a situation where a witness
because of ignorance is not able to claim a privilege the commissioner must weigh all the relevant
considerations, such as the object of the inquiry, the probative value of the information as well as the
effect the disclosure will have on the witness in order to come to a conclusion which will best serve
the ends of justice.

In the absence of specific statutory provisions to the contrary, statements made and evidence given
during proceedings at commissions of inquiry can be used against the individual in a subsequent
criminal action. This immunity may even extend to civil proceedings for at common law a rule exists
that where a public inquiry is set up by a statutory authority and conducted judicially, witnesses given
evidence before it may be absolutely immune from civil proceedings arising from their evidence. This
rule is founded on the public policy objective that witnesses should give their testimony free from any
fear of being harassed by an action on allegation whether true or false that they acted from malice. A
case in point is Trapp v Mackie. In this case the appellant was dismissed as a headmaster by the
local education authority of which the respondent was chairman. Pursuant to the appellant’s petition,
the Secretary of State set up an inquiry with Queen’s Counsel as commissioner under the Education
(Scotland) Act 1946 to investigate the dismissal. The inquiry was held in public, the procedure
adopted being similar to that in a court of law. Evidence was given inter alia by the respondent. The
commissioner concluded that the dismissal was reasonably justifiable and reported to the Minister who
accepted the conclusion. The appellant then brought proceedings against the respondent alleging that
he had given maliciously false evidence to the inquiry thereby influencing its decisions. The
respondent succeeded in having the action dismissed on the grounds of this evidence being absolutely
privileged. On appeal the House of Lords held that absolute privilege could apply to evidence given in

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proceedings which although did not finally determine the issue raised formed part of the decision
making process and the nature of this inquiry indicated that such a privilege would apply.

An important right of a witness recognized under the Constitution is the right of legal representation.
Article 282(1) provides that,
“Any person whose conduct is the subject of inquiry by a commission of inquiry, or who
may, in any way be implicated or concerned in the matter under inquiry, is entitled to be
represented by a lawyer at the inquiry; and any other person who may consider it
desirable that he should be represented by a lawyer shall be allowed to be so
represented”.

The significance of codifying this right cannot be underestimated for the common law guaranteed no
such right of legal representation before a commission of inquiry. The commission had a discretion as
to the extent it will accord a right of legal representation. This will usually depend upon how seriously
the proceedings will impact upon the applicant’s interest or rights. Relevant considerations in such a
case will include whether the charge and potential penalty are sufficiently serious, whether the
applicant is able to represent him or herself adequately, whether the case involves complex issues of
fact or law and the general need to ensure that all parties are provided with the same opportunities to
protect their interest. Although the Constitution guarantees (by the use of the word “shall”) the right
to legal representation, the scope and content of the right may have to be defined on a case by case
basis and that factors above may be relevant in that direction. This is because legal representation
raises questions of cost, efficiency and delay. Indeed some have counselled against the excessive use
of lawyers in such inquisitorial proceedings. In the words of Blom-Cooper
“there does not seem to be any necessity for legal representatives to anticipate prejudice
to their clients’ cases by way of involvement in the questioning and, be it noted cross-
examination of witnesses at what is meant to be a fact finding process and not a legal
contestation. Lawyers hired by witnesses should be able to provide their clients with
private advice and assistance outside the inquiry room, but not to assume adversarial
roles inside it”.

Commissions of Inquiry and Courts of Law.

That a commission of inquiry is not a court of law cannot be doubted. In Inkumsah v The Republic,
it was held that to say that because a commission of inquiry exercises certain specified powers of the

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High Court it is a Court is a non sequitur. A commission of inquiry is not a court of law. The
existence of institution with trappings of a court of law, which are not courts of law, abound. A long
line of authorities also exists for the proposition that a commission of inquiry do not exercise final
judicial power.

Notwithstanding the above a commission of inquiry under article 279 of the 1992 Constitution has the
powers of the High Court or a justice of the High Court at trial in respect of enforcing the attendance
of witnesses and examining them on oath, affirmation or otherwise; compelling the production of
documents and the issue of a commission or request to examine witnesses abroad. This provision
raises a number of interesting issues. Does it for example give the commission power to punish for
contempt as the High Court can do? The judges developed the law of contempt as a means by which
the courts may prevent or punish conduct that tends to obstruct, prejudice or abuse the administration
of justice. Great care is needed, however, in the application of this branch of the law since it restricts
freedom of expression. The law is that a commission of inquiry if not given specifically the power to
punish for contempt cannot do so. This is a reflection of a broader proposition that at common law a
commission of inquiry possesses no coercive powers. It must transmit any allegation of contempt to
the High Court. This was the procedure prescribed under section 7 of the Commission of Inquiry Act
1964 (Act 250) which procedure was applied in Republic v. Otu, Ex parte Attorney General. A
radically different approach was adopted under the national Liberation Council (Investigation and
forfeiture of Assets) Decree 1966 NLCD 72 as amended by NLCD 129. Under this enactment
commissioners were empowered to punish witnesses for contempt or perjury in the same manner as a
judge of the High Court could do. In Inkumsah v The Republic, this power was exercised by the
Jiagge Commission with the blessing of the Court of Appeal. In the light of this history what
interpretation is to be put on article 279 of the 1992 Constitution? Does it allow a commission of
inquiry to punish for contempt or merely to site a person for contempt? It is suggested that the latter is
the case. This is because the former interpretation will allow commissions of inquiry to exercise
“final judicial power” in breach of article 125 (3) of the 1992 Constitution. Such considerations
might indeed have influenced Parliament when it enacted in section 8(1) (b) of the Commission of
Human Rights and Administrative Justice Act, 1993 (Act 456) that
“the commission shall for the purposes of performing its functions under this Act have
power to cause any person contemptuous of any such subpoena to be prosecuted before a
competent court”.

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Another issue relates to the enforcement of the power of a commission of inquiry to compel the
production of document. Specifically it relates to the proper forum to be used to enforce this power in
the light of the provisions of article 135(1) of the 1992 Constitution which provides that
“the supreme court shall have exclusive jurisdiction to determine whether an official
document shall not be produced in court because its production or disclosure of its
contents will be prejudicial to the security of the state or will be injurious to the public
interest”.

This provision imposes two restrictions on its invocation namely:

1. The document must be an “official document”
2. The issue of its production must have arisen “in court”

A commission of inquiry as noted above is not a court and so it can be argued that it cannot on its own
invoke article 135(1). This argument may however pale into insignificance if it is noted that as
regards the power to compel the production of documents article 279(1) of the constitution gives a
commission of inquiry “the powers” of the High Court. Thus if the High Court has power to invoke
article 15(1), a commission of inquiry must also have that same power. Another issue relates to the
production of private documents. The High Court has elaborate procedure for securing the production
of documents. A commission of inquiry, it is suggested, cannot resort to these procedures, as it may
amount to exercising “final judicial power”. Here again resort must be had to the High Court for help.
The above analysis shows that there is more to the provisions of article 279(1) than what one gets from
a cursory reading of it. Its meaning, significance and implication can only be fully appreciated when
read with other provisions of the Constitution and the law on the practice and procedure of the High
Court of Justice.

EFFECTS OF FINDINGS OF COMMISSIONS OF ENQUIRY

Adverse Findings, Deemed to be Judgment of High Court

Before the enactment of the 1979 Constitution, the true scope and effect of a finding by a commission
of inquiry was not precisely defined. The practice was for specificenactments to be made to
implement the findings of specific commissions of inquiry. The Commission of Inquiry
(Implementation of findings) Decree 1974 (NRCD 261), attempted to provide a universal scheme for
the implementation of findings of commissions of inquiry. This consideration coupled with

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appreciation of the serious legal consequences that emanated from findings of such commission
exercised the minds of the framers of the Constitution 1979. They reasoned that;
“having regard to the fact that the findings and recommendations of a commission of
inquiry can have serious legal consequences for persons affected thereby, not to mention
the possible adverse impact on the reputation and image of such persons in the society
we consider it necessary that a person adversely affected by such findings or
recommendations should be able to challenge the soundness or legality of such findings
or recommendations in the court”.

It was accordingly proposed and enacted that where a commission of inquiry makes adverse findings
against any person, the report of the commission of inquiry shall for the purpose of this Constitution
be deemed to be a judgment of the High Court of Justice and accordingly an appeal shall lie as of right
from the Commission to the Court of Appeal. This provision has been repeated in article 280 of the
1992 Constitution.

What are the incidents of “deeming” the report to be a judgment of the High Court? It has been
suggested for example that the phrase “deemed to be judgment of High Court” is only for the
purpose of conferring a right of appeal. This interpretation, it is suggested, is too narrow for other
provisions do exist in the constitution, which confers a right of appeal without deeming the decision
being an appeal from a judgment of the High Court. Indeed a right of appeal is only by statute. Thus
a broader interpretation must be put on the phrase “deemed to be a judgment of the High Court”,
with all the incidents attached thereto such as enforcement, appeal, and estoppels.

The application of the concept of estoppels to the findings of commissions of inquiry needs,
however, to be further explored especially in the light of the limited application of the concept in
administrative law. Estoppels have many facets one of which is estoppel per rem judicatam. This
is a doctrine, which prevents parties to a judicial determination from litigating the same question over
again except in proceedings by way of appeal or judicial review. The rationale for this rule is founded
on two principles: first, that it is in the public interest that there be finality to litigation; and second,
that no one should be harassed twice for the same cause. In order that a defense of res judicata
may succeed, it is necessary to show that;
(1) There has been a final judgment by a court of competent jurisdiction. A judgment is final if it is
determinative of the issues between the parties and conclusive on the merits.

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 (2) The parties are the same and litigating in the same capacity.
(3) The issues in the proceedings in question are the same as that which was litigated in the
previous proceedings.

The doctrine of estoppels per rem judicatam is by no means confined to courts of law in the strict
sense. To Acquah JSC
“the plea of res judicata is not confined only to the normal courts”.

Lord Holt CJ also noted in Philips v Bury that

“the law hath respect not only to courts of record and judicial proceedings there but
even to all other proceedings where the person who give judgment or sentence hath
judicial authority”:

To what extent therefore can the rule of estoppels per rem judicatam be applied to findings of
commissions of inquiry? This point was considered in the Australian case of Accident
Compensation Commission v Detar. The court noted;
“that the principle embodied in the Latin phrase which are essential to any civilized legal
system are founded on the proposition that it is in the general interest of the community
that there be an end to litigation and that no one should be placed twice in jeopardy for
the same cause. Only the clearest language in an Act of Parliament could produce
inequality before the law in that respect. The requirements of the doctrine of estoppels
per rem judicatam are often expressed as judicial decisions pronounced by a judicial
tribunal. But the tribunal does not have to be one of the regular courts. A statutory
tribunal is counted as a judicial tribunal for these purposes…… There are extremely few
cases in which a civil authority had been held incapable of making any pronouncement
having the effect of res judicata. Notwithstanding that a conciliation division makes a
recommendations and not a determination eo nomine we think that since its
recommendations are given operation and effect by the statute it should be regarded as a
judicial tribunal for the purpose of the doctrine”.

Although an adverse recommendation by a commission of inquiry may operate as estoppels per rem
judicatam certain questions remain. First who are the parties to the proceedings of a commission of
inquiry? The principle is that the doctrine operates where the parties to the previous proceedings are

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the same and acting in the same capacity. For the plea to be successful therefore there must be the
proper identification of the parties. Investigations of commissions of inquiry are usually not directed
at any particular person and indeed persons invited are usually invited as “witnesses”. Indeed if it is
the government or the appointing authority which is going to raise the plea it may be doubted whether
it was a “party” to the proceedings. They are also not usually set up to settle disputes between parties.
In the European Gateway, the Secretary of State for Transport exercising his powers under Section
466 of the Merchant Shipping Act 1894 ordered a formal investigation into a collision between two
ships; The Speedlink Vanguard and The European Gateway. The court of formal investigation found
that the cause of the collision was faulty navigation on the part of both vessels but that the major
blame lay in the navigation of the European Gateway. In this action the owners of Speedlink relying
on the findings of the investigation sought to recover damages from the owners of the European
Gateway. The latter in turn denied liability and counter-claimed for damages whereupon the plaintiffs
pleaded inter alia estoppel. Steyn J rejected this plea. He reasoned that in that investigation there was
no lis between the ship owners and that the court was not a court of competent jurisdiction on the
question of civil liability. The court had been set up to investigate the causes of the collision and
suggest solutions. He noted;
“there is no lis between the contending ship owners. Prima facie this factor militates
cogently against the submission that the court of formal investigation was acting as a
court of comment jurisdiction between the two contending ship owners. After all, the
conception of a judicial function is inseparably bound up with the idea of a suit between
parties, which it is the duty of the court to decide between those parties”.

Second, the nature of the proceedings at commissions of inquiry may also prevent the court from
rigidly adhering to the doctrine. Although proceedings at such commissions resemble court
proceedings they usually depart from the strict rules of evidence applied in courts of law. They are
usually characterized by informality. This may affect the status of the finding being considered as
having been based on the merits.

Third the apparent want of the requirement of mutuality from a reading of article 280(2) may also
influence the attitude of the court towards such proceedings and any such plea founded on their report.
Under the said article only “adversefindings against any person” are deemed judgments of the High
Court and hence can prima facie found a plea of estoppels per rem judicatam. Consequently it is only
one party to the proceedings who can raise the plea in for example, a civil action to recover money

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found to have been illegally appropriated by the defendant whose conduct had been the subject of
inquiry. This party will usually be the appointing authority. In such a trial the findings of the
commission may be only of evidential value to the defendant subject to the rules on privilege, which
may indeed limit his ability to rely on the findings. As was noted above the requirements of the
doctrine of estoppels per rem judicatam must apply equally to both parties to any dispute and only
the clearest language in an Act of parliament could produce inequality before the law in that respect.
This may be seen as one such legislation. There may however be policy reasons for this apparent bias.
It may represent an attempt not to fetter the ability of the state to bring individuals to book. For
example if a commission of inquiry is set up to investigate allegation of corruption against a public
officer but he is exonerated it must be possible for the state to adduce fresh evidence to secure his
criminal conviction or for him to incur civil liability in court without being fettered by any plea of
estoppels. In a criminal action, however, the report of a commission of inquiry serves only as
evidence and no plea of autrefois acquit or autrefois convict (which pleas are an aspect of
estoppels per rem judicatam in criminal actions) can be founded on the report. Proceedings at a
commission of inquiry are not criminal trials and do not purport to be such. It is thus suggested that
although it is possible to found a plea of estoppels per rem judicatam on the report of a commission
of inquiry, a lot of Considerations may influence the court in its assessment of whether or not all the
elements listed above have been met. As we noted by Coussey JA in Basil v Honger
“the plea of res judicata prohibits the court from enquiring into a matter already
adjudicated upon. It ousts the jurisdiction of the court.”

The courts generally do not take kindly to doctrines that purport to oust their jurisdiction.

Adverse Findings as a Ground of Disqualification for Position of

Member of Parliament and President.
Grave consequences may flow from findings of a commission of inquiry. Adverse findings serve as a
ground for disqualifying a person from standing for the position of Member of Parliament or
President. Article 94(2)(d) specifically provides that;
“a person shall not be qualified to be a member of parliament if he has been found by the
report of a commission or a committee of inquiry to be incompetent to hold public office
or is a person in respect of whom a commission or committee of inquiry has found that
while being a public officer he acquired assets unlawfully or defrauded the state or

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 misused or abused his office or willfully acted in a manner prejudicial to the interest of
the state and the findings have not been set aside on appeal or judicial review”.

This provision traces its origin to article 71(2) (d) (ii) of the 1969 Constitution 1969. It was this
provision, which was invoked and applied in the celebrated case of Gbedemah v Awoonor-Williams.
In that case, the plaintiff had lost an election to the Notional Assembly to the defendant. The
defendant had accordingly being sworn in as a member of the National Assembly. In this action, the
plaintiff sought inter alia a declaration that by virtue of Article 71(2) (b) (ii) of the 1969 Constitution
the defendant was not qualified to be a member of the National Assembly. It was established as a fact
that the defendant had been found by the Jiagge Commission established under the National Liberation
Council (Investigation and Forfeiture of Assets) Decree NLCD 72 as amended to have unlawfully
acquired assets whilst he was a public officer. By a majority decision the court of Appeal held that
having been found by a commission of inquiry to have unlawfully acquired assets whilst being a
public officer he was disqualified by virtue of the provisions of the Constitution. It must be noted that
in this case the right of appeal against the findings of the Commission had been denied the defendant.
The decision must therefore be read in the light of article 280 of the 1992 Constitution, which provides
for a right of appeal.

One issue which immediately comes to mind on a reading of Article 94(2)(d) is the question as to why
the provision seems to be restricted to acts done “while being a public officer”. It had been proposed
by the Committee of Experts that the provision should be made to apply to everybody. They reasoned
that,
“the Committee saw no reason why the sanction should not be equally applicable to
transgressors who are not public officers. Any person who is quilt of the above acts
should be unfit to hold public office or enter parliament” .

This proposal did not find its way into the Constitution. It is suggested that the approach favoured by
the Committee of Experts is preferred. There is not such material difference between acts done by a
person in his private office and those done by a public officer when those acts are of a corrupting
nature. They may both adversely affect the society and deserve equal treatment and reprimand from
the law.

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Again what committee or commission of inquiry does article 94(2) (d) envisage? In the introductory
part of this paper, an attempt was made to distinguish at least four types of institutions which all have
the character of a commission of inquiry. The problem specifically relates to the issue of whether the
provision extends to cover finding of what was termed purely “domestic commissions of inquiry”
and those set up by “administrative governmental bodies”. This problem is made even more
challenging by the introduction of this new provision in article 94(4), which talks about “judicial” and
“quasi judicial commissions’ without any criteria for distinguishing between them. On this
distinction the Committee of Experts noted
“the committee felt that a distinction had to be drawn between the findings of a judicial
or quasi-judicial commission of inquiry in the findings of a less formal felt finding
enquiry”.

It is suggested that article 94(2)(d) should be construed as referring to only commissions of inquiry of
a public character and must not be extended to “purely domestic commissions of inquiry”. Reference
in that provision to “while being a public officer” adds a public coloration to the said article. To
extend the provision to purely domestic commissions whose procedure and powers may be entirely
different from those public commissions may create great hardship for individuals.

Appeal against Adverse Findings.

To protect the rights of individuals against whom adverse findings have been made it is provided that
an appeal shall lie as of right from the findings of the commission to the Court of appeal. An appeal is
the right of entering a superior court and invoking its aid and interposition to redress the error of the
court below.

The right of appeal is only by statute. Historically the right to appeal against the findings of
commission of inquiry had been denied in some enactments. It might therefore have been in reaction
to such enactments that a right of appeal has been expressly provided for under article 280(2). Under
article 281(2) the Rules of Court committee was expected to make rules regulating appeals from
findings of commissions of inquiry. At present no such rules exist and consequently the existing rules
on appeal to the court of Appeal apply. The right of appeal must however be exercised within a
defined time except that the period may be extended with special leave of the High Court or Court of
Appeal. Under article 280(6) the right of appeal must be exercised within three months after (a) the
finding is made and announced to the public or (b) after the Government issues a statement in the

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Gazette and in the national media that it does not intend to issue a White Paper on the report of the
commission.

Publication of Report and the White paper.

A commission of inquiry is obliged to report in writing the results of its inquire. As the Commission
is appointed by the President its report is sent to the president who must cause it to be published
together with the White Paper on it within six months after the date of the submission of the report or
where the report is not to be published issue a statement to that effect giving reasons why the report is
not to be published. This requirement of publication represents an attempt to satisfy the public’s right
to know. A commission of inquiry is the guardian of the public interest since they are appointed to
inquire into matters of “public interest”. The White Paper is a statement of the government’s position
on particular issues addressed in the commission’s report. It represents the governments view on the
issue. The mandatory requirement for a White Paper to accompany the publication of the report of
commissions of inquiry was introduced in the 1979 Constitution but no specific reason was assigned
for its introduction. It could however be seen as an attempt by the Executive to maintain some degree
of control over the findings of the commission whilst at the sametime allowing the public to know the
policy measures the government is taking on the report.

The contents of the White Papers have been many and varied. They range from statements of
appreciation and commendation for good work done to those rejecting or accepting specific findings
and the policy initiatives to be taken thereon. Whatever be the case, however, the content of the White
Paper as well as the actions that could be taken on it are not at large. The White Paper cannot be used
as a tool for arbitrary action. In Quayson v Attorney General, the appellant was a prison officer who
appeared before a commission of inquirey appointed by the government to investigate a prison escape.
The commission submitted its report and the government released a White Paper on the report. The
Commission made no recommendation as to the punishment to be meted out to the appellant; but the
government purporting to be acting on the basis of the commission report directed in the White Paper
that the services of the appellant be dispensed with. The government reasoned, contrary to the report
of the commission, that the failure of the Commission to recommend punitive sanctions was an
oversight. In granting his application for certiorari it was held that the commission’s failure to
recommend sanctions was deliberate and the statements in the White paper were diametrically
opposed to the clear unambiguous and plain language of the Commission’s report. Even though the
government was not bound by the findings and recommendations of the inquiry it was equally not

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permissible in law for government to purport to act on a finding or recommendation where none
existed. This decision imposes limitations on what can be done on the basis of the reports of a
commission of inquiry. This is a legitimate restraint for were that not the case there would actually
have been no need to set up the Commission. In Kwpong v GCMB (Consolidated), it was held that
the White Paper contained policy directives of the government, consequently where a person
misapplied the directions contained therein and thereby injure the legally protected rights of a person
the latter could bring an action to vindicate his rights.

Indeed the courts have been cautious in their treatment of executive actions purportedly based on the
findings of commissions of inquiry. In Darkwa v The Republic the appellant had had adverse
findings made against her by a committee of inquiry. She was subsequently retired from the police
service by a letter based on the recommendations of the committee of inquiry. In the instant
proceedings the court set aside the report of the committee for breach of natural justice and
consequently held that her purported dismissal based on the recommendations of the committee could
not stand.

There is also the need to monitor the implementation of findings of commissions of inquiry to avoid a
situation where scarce resources are spent on these commissions only for the findings to gather dust in
some offices. The implementation of such findings is largely the responsibility of the Executive and
often influenced by political considerations and expediency. As a result of this it often happens that
the findings are either not implemented at all are or modified in material respects. To ensure that
findings of commissions of inquiry are implemented greater public awareness of the findings and the
force of public opinion is often required. Parliament also has a crucial role to play in this area. By
effectively exercising its oversight responsibilities it can put pressure on the Executive to implement
findings of commissions of inquiry.

CONCLUSION

In this paper we have examined the law on commissions of Inquiry in Ghana. It has been shown that
they form an important aspect of our administrative law machinery. The effect of their activities on
individual rights and freedoms as well as their overall utility, however, needs to be closely examined.
The extent to which they are independent of the executive, the need for well laid out procedural
guidelines to regulate their proceedings and the true scope and effect of their findings, are areas that
demand further consideration and clarification. Another area that demands more attention is the mode

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of implementing findings of such commission and the latitude of executive discretion that exist in that
respect. This has led many to cast doubt on the utility of such commission especially having regard to
their cost to the taxpayer.

QUESTIONS
“The power of the president to appoint a Commission of Inquiry under 1992 constitution constitute a
threat to liberty of the individual since the findings of such commissions have judicial effect.” Do you
agree?
Past question, April/May 2010

COMMISSION ON HUMAN RIGHTS AND ADMINISTRATION JUSTICE

INTRODUCTION

The Commission on Human Right and Administrative Justice is an independent body created under
the 1992 constitution of Ghana. Provision for it is made under chapter 18 of the constitution 1992 of
which article 216 provides;

There shall be established by Act of Parliament within six months after Parliament first meets
after the coming into force of this Constitution, a Commission on Human Rights and
Administrative Justice which shall consist of -

(a) A Commissioner for Human Rights and Administrative Justice; and

(b) Two Deputy Commissioners for Human Rights and Administrative Justice

Under this article, parliament has the duty to establish “within six months after Parliament first meets
after the coming into force of this Constitution, a Commission on Human Rights and Administrative
Justice”

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Since then, parliament has discharged its duty of establishing CHRAJ through an Act of Parliament,
that is, the Four Hundred and Fifty-Sixth Act of Parliament of the Republic of Ghana entitled
The Commission on Human Rights and Administrative Justice Act, 1993.

In the case of human rights the commission is the main mechanism of implementation outside the
court for the attainment of the provision of human rights under the constitution. The constitution
provides an elaborate provision of fundermental human rights under chapter five hence, the
commission is the body charged with the duty of ensuring that these fundermental rights are well
adhered to by those in places of power and operationalised. Here, the commission has power to
investigate complaints as provided for in article 218. Article 218 provides thus,

Their administrative function has to do with the ombudsman as provided under the 1969 constitution.
This really deals with abuse of administrative rights, abuse of power by persons occupying positions.
This power of the commission has something to do with the employer- employee relationship.

It is also provided in article 218 (b) that,

“to investigate complaints concerning the functioning of the Public Services Commission,
the administrative organs of the State, the Armed Forces, the Police Service and the
Prisons Service in so far as complaints relate to the failure to achieve a balanced
structuring of those services or equal access by all to the recruitment of those services or
fair administration in relation to those service”.

It can therefore be inferred that the commission also play an oversight role over public institutions
stated in article 218 (b) in so far as recruitments to these institutions are concerned. In other words, it
can be said that, CHRAJ has the oversight function of making sure that that these institutions operate
in accordance with the constitution and in accordance with their own enabling acts.

HISTORICAL BACKGROUND

CHRAJ as we see now had not always existed in this way. It had gone through several stages, dating
back to 1966 where the NLC established an independent body (Expedition Committee) with the duty
of developing a more effective and efficient mechanism for the redress of grievances between public
authorities and individuals in the country. This was carried on in the 1969 Constitution, which

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established a Parliamentary Commissioner for Administration (Ombudsman). This institution was
however interrupted by unconstitutional regimes which introduced their own mechanism of
investigating administrative injustices.

Then, the 1979 Constitution which did not only ‘stipulate that an Ombudsman office be established
but also went further to enjoin the government to appoint a person to the office of Ombudsman one
year after coming into force of the 1979 constitution’. This office lasted just about two years as a
result of the 1981 coup d’état

As a result of the many difficulties and scars left by the Ombudsman office. The committee of experts
of the 1992 constitution saw the need for the establishment of an independent body – CHRAJ – to
awaken Ghanaians to their constitutional rights and assist individuals in taking legal action against
violation of such rights. Hence, the Committee of Experts who made the initial proposals for the
Constitution of 1992, thought in the following terms (see para. 358 at p. 163 of their Report):

“The constitutional experience of many countries, including ours, demonstrates that a

catalogue of constitutional rights together with provisions for judicial enforcement is
inadequate to ensure meaningful enforcement of fundamental rights and freedoms on
the ground. The Committee accordingly proposes the establishment of a Commission on
Human Rights and Administrative Justice which would sensitize people to their
constitutional rights, investigate violations of such rights, and assist individuals in
prosecuting them. This Commission would incorporate the office of the Ombudsman.”

It can be said that CHRAJ is unique from its predecessor bodies, in that, it combines three distinct
institutions, namely, the Ombudsman, the human rights office and the corruption office, with the
purpose of protecting human rights and freedoms as well as checking abuse of administrative power
and corruption of public officials.

IS CHRAJ A QUASI-JUDICIAL BODY?

It is considered necessary to go into the seeming argument and try to clear the air as to CHRAJ being a
quasi-judicial. The commission has been mostly seen to possess quasi-judicial functions which srt of
make them a quasi judicial body but, case law seems to suggest otherwise, that is, according to case
law, CHRAJ is purely an investigative and educational body which lacks judicial capacity of any

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form. In THE COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE v.
ATTORNEY GENERAL [23/06/99] WRIT NO. 3/96,Charles Hayfron Benjamin JSC (as he then
was) said;

The Plaintiff [CHRAJ] owes his existence from — THE COMMISSION ON HUMAN
RIGHTS AND ADMINISTRATIVE JUSTICE ACT (Act 456). It is therefore necessary
at the outset to examine the Act and to distinguish the purpose of the Plaintiff from the
manner he seeks to effect it and the scope and ambit within which such function may be
exercised. The long title to the Act sets his purpose out clearly thus:

"AN ACT to establish a Commission on Human Rights and Administrative Justice to

investigate complaints of violence of fundamental human rights and freedoms, injustice
and corruption; abuse of power and unfair treatment of persons by public officers in the
exercise of their duties, with power to seek remedy in respect of such acts or omissions
and to provide for other related purposes."

. . . it is clear that the objects of the Plaintiff are investigative and educational. For the
purposes of effective exercise of its investigative objects, the Plaintiff has certain powers
akin to those of the regular Courts and Tribunals. But it must be said that in exercising
those powers the Plaintiff does not thereby constitute a Court or Tribunal properly so
called nor does he thereby assume any jurisdiction to do anything in his investigations.
However, the Plaintiff may institute legal action "before any Court in Ghana and may
seek any remedy which may be available from that Court."

Clearly the Plaintiff has no judicial power nor does he in the performance of his function
thereby assume any jurisdiction cognisable at law.

Also see REPUBLIC V FAST TRACK HIGH COURT, ACCRA; EX PARTE CHRAJ-
HONRICHARD ANANE (INTERESTED PARTY) per obiter of Date Bah JSC. He said;

. . . I do not consider the Applicant to be a quasi-judicial body. I agree with the learned
trial judge in his view that it is an administrative body with investigative powers. The
working methods of the Applicant sometimes give the impression to the public that it is a
judicial or quasi-judicial agency. However, a careful analysis of its functions, laid down
in the Constitution and by statute, has to lead to the conclusion that it is a purely

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 administrative/executive agency, although with very important constitutional
responsibilities.

The two quotes, can be said to be authorities upon which one can base an argument that CHRAJ is not
a quasi-judicial body nor does it possess any such power. However, as was rightly put up by Justice
Heyfron Benjamin, “for the purposes of effective exercise of its investigative objects, the Plaintiff
has certain powers akin to those of the regular Courts and Tribunals” Its function, again, in
support of Hayfron Benjamin JSC “. . . are investigative and educational

FUNCTIONS OF CHRAJ

The functions of the Commission can be found in article 218 of the constitution. As noted earlier in
the judgment of Hayfron Benjamin JSC (as he then was), the functions of the Commission can be
broadly categorized into two; investigative and educational. The functions under article 218 are
generally going to be discussed under these two headings.

The Investigative Functions of CHRAJ

Article 218 (a) – (c) of the constitution provides; “The functions of the Commission shall be defined
and prescribed by Act of Parliament and shall include the duty;

(a) to investigate complaints of violations of fundamental rights and freedoms,

injustice, corruption, abuse of power and unfair treatment of any person by a
public officer in the exercise of his official duties;”

(b) to investigate complaints concerning the functioning of the Public Services

Commission, the administrative organs of the State, the Armed Forces, the Police
Service and the Prisons Service in so far as complaints relate to the failure to
achieve a balanced structuring of those services or equal access by all to the
recruitment of those services or fair administration in relation to those service;

(c) to investigate complaints concerning practices and actions by persons, private

enterprises and other institutions where those complaints allege violations of
fundamental rights and freedoms under this Constitution.

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These allegations, when found to be true, are remedied by the commission making certain orders.
Among the many complaints of abuse of human rights that the commission has dealt with are sexual
harassment, issues of domestic violence, and the like.

The decision of the Supreme Court in the recent case of REPUBLIC V FAST TRACK HIGH
COURT, ACCRA; EX-PARTE CHRAJ. HON DR. RICHARD ANANE (INTERESTED
PARTY) has in a way, stifled the investigative powers of CHRAJ under paragraphs (a) to (c) of clause
218 of the constitution. These paragraphs have to do with the investigations of complaints by the
commission.

The brief facts of the case, as contained in the judgment of Wood CJ (president of the panel) are as
follows;

. . . the Applicant, the Commission on Human Rights and Administrative Justice

(CHRAJ), purportedly acting under article 218(a) of its constitutional powers, without a
formal complaint from an identifiable complainant and on its own initiative, investigated
allegations of corruption and abuse of office made in the media against the interested
party, Dr. Richard Anane. The investigations culminated in adverse findings of abuse of
power and perjury against him, and recommendations, inter alia, that he be removed
from office.

Not satisfied with these findings and recommendations, the Interested Party, instituted
proceedings under Order 55 of the High Court Rules . . . challenging their
constitutionality. . .

On the 13th of March 2007, the Fast Track High Court granted the certiorari application
and quashed the findings, decisions and recommendations of the Applicant Commission.

Dissatisfied with the turn of events, the Applicant Commission has instituted these
proceedings, pursuant to article 132 of the 1992 Constitution, praying for an order of
certiorari to quash the said decision of the Fast Track High Court on grounds neatly
encapsulated in the notice and the accompanying affidavit. . .

To make long story short, the Supreme Court granted the application of the commission by quashing
the decision of the Fast Track High Court, however, by its majority decision of 4-1, they sort of

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affirmed the lower court’s decision, by arriving at the same conclusion which is to the effect that
CHRAJ could not commence investigation into instances of allegations, as contained in paragraphs (a)
– (c) of article 218 without a formal complaint lodged with the Commission.

In choosing what she described as a hybrid approach to aid her in interpreting the word “complaint”,
Wood CJ said;

In the ordinary course of events, where a person (natural or legal) is empowered to

investigate complaints or certain matters, in the absence of any express or implied
authority to the contrary, natural law and common logic or sense dictates that the power
is exercisable only when a complaint- an expression of dissatisfaction- from an aggrieved
person is lodged with the person so charged to conduct investigations. . .

I proceed in my analysis of the article 218 (a) on the principle also that the words as
used were carefully debated and chosen by the framers of the constitution with a view to
it forming a logical, consistent, and harmonious whole, not a disjointed, incoherent or
inconsistent piece. Under the articles (a)-(c), the Commission is to investigate complaints
simpliciter against those persons named therein and of and concerning those matters
under reference. Interestingly, in the case of article 218 (c), the reference is not simply to
complaints qua complaints (compare (a) and (b)), but “complaints of allegations of
fundamental rights and freedoms” under the Constitution. This, in my respectful view,
reinforces the point that a formal complaint is a prerequisite where the word
“complaint” is used. If the framers had intended that broad, liberal meaning of
complaint, which includes media and public fora allegations, they would have treated the
article 218(c) in the same vein as article 218(e) and completely done away with the word
“complaint.”
. . .
It is by design, certainly, not by accident, that although article 218(a) makes specific
reference to violations of fundamental human rights and freedoms, as well as corruption,
yet, separate and specific provisions, covering the same matters violations of
fundamental rights and freedoms and corruption, to the total exclusion of the other
subject- matters, are again separately catered for under articles 218 (c) and 218(e)
respectively. As already noted, the very wording of article 218(c) shows formal
complaints are required to trigger the investigative process. The choice words are

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 “complaints of allegations”, implying that the complaints are made up of allegations. I
think if the intention was to have complaints mean both formal and informal, and we
should remember that these are to be constituted by allegations made in the public
domain, not made to the Commission, but outside of it, the framers need not have added
the word “allegations”, for we would be contending with a tautology.
...
Based on these analyses, I cannot but hold that the word “complaint” is limited to formal
complaints made to the Commission, by an identifiable complaint; not necessarily the
victim, but an identifiable complainant, armed with a complaint . . . Had the article
218(a) stoodalone, had there being no article 218(e), my conclusions would have been
different.

Brobbey JSC, also in his opinion, forming part of the majority’s said;
Therefore, if the CHRAJ has to investigate fundamental human rights and freedoms
under Article 218(a) or 218(c), there must be in existence human beings whose rights or
freedoms can be said to have been violated: Those human beings have to be known or
specified. It follows that those human beings who are the complainants have to be
identifiable complainants.
. . .
The specific question before this court affects only 218(a). Before the applicant can
commence investigation under 218(a), there must be an identifiable complainant who
may be an identifiable individual or identifiable body corporate.

Article 218(e) also provides;

“to investigate all instances of alleged or suspected corruption and the misappropriation
of public moneys by officials and to take appropriate steps, including reports to the
Attorney-General and the Auditor-General, resulting from such investigations”.

In this instance, CHRAJ is mandated to investigate acts specified in the preceding article however it
must be well noted that the article provides for “alleged or suspected corruption and the
misappropriation of public moneys by officials” so in this instance, CHRAJ does not need a formal
and identifiable complaint before it can set its investigative machinery in motion. CHRAJ can

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therefore, on its own initiative, investigate the acts stated above in the article and the Court in the
Richard Anane case supra, is of the same view. In that case, Wood CJ said;

Crucially however, under article 218 (e), formal complaints are not needed to trigger the
Commission into action. Indeed under it, all that is required to set the CHRAJ’s
investigative machinery into gear is to make allegations or raise suspicion over certain
specified matters. From its clear wording, the only limitation is that those matters must
relate to corruption or the misappropriation of public moneys by officials. It does not
cover abuse of office or human rights violations by officials, or other persons, natural or
legal. This, I believe is the place for media and public fora allegations.

The controversies which normally arise from the article are; the question of what constitute corruption
and what kind of misappropriation of public funds is being talked about. Also whether officials in the
article should be explained to mean only public officials who misappropriate public funds.

It is however worthy to note the wording of the said article. It provides “. . . public moneys by
officials” and not “. . . public moneys by public officials”

Article 230 of the 1992 Constitution of Ghana empowers the commission, in regards to investigations
of complaints, to make rules etc. the said article provides;

Subject to the provisions of this Constitution and to any Act of Parliament made under this
Chapter, the Commission shall make, by constitutional instrument, regulations regarding the
manner and procedure for bringing complaints before it and the investigation of such
complaints.

EDUCATIONAL FUNCTION

CHRAJ also has educational functions and this can be found under article 218(f) which provides;

to educate the public as to human rights and freedoms by such means as the
Commissioner may decide, including publications, lectures and symposia;

On this, Wood CJ in the Richard Anane case said;

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 The role of the Commission as per its Ombudsman functions is not limited to only
investigations as provided in particular under article 218(e), but the equally important
role of educating the public on human rights and freedoms as provided under article
218(f) . . . Indeed, the Commission can investigate media and public fora allegations of
human rights violations, such as, TROKOSI and FEMALE GENITAL MUTILATION,
CHILD TRAFFICKING ETC pursuant to article 218(f), but, with the sole aim of
educating the public, which itself is a very important jurisdiction . . .

QUESTIONS ARISING

Are the Decisions of CHRAJ Binding on the Courts

A question may be asked, whether decisions of the commission are binding on the court. In an attempt
to answer this question, one must consider the scope of section 18(2) in relation to the question.
Section 18(2) of Act 456 provides;

If within three months after the report is made no action is taken which seems to the
Commission to be adequate and appropriate, the Commissioner, may after considering
the comments, if any, made by or on behalf of the department, authority or person
against whom the complaint was made, bring an action before any court and seek such
remedy as may be appropriate for the enforcement of the recommendations of the
Commission.

The question to be asked is thus; ‘which decisions are said to be binding on the courts and are
decisions of CHRAJ one of those? The court structure, generally, is provided under article 126 of the
constitution, 1992, with the Supreme Court at its apex. Therefore, all decisions of the Supreme Court
are binding on the courts below. Also decisions of the Court of Appeal are binding on the High Court
and inferior courts. The decisions of the High Courts are also binding on all other inferior courts and

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adjudicatory bodies. These are decisions that are binding on a court, as the case may be, depending on
the level of the court in the court structure. It is important however to note that decisions of courts of
co-ordinate jurisdiction are not binding. For example, a decision of a High Court in Kumasi cannot be
cited as a binding precedent in an Accra High courts because they are of co-ordinate jurisdiction. In
the case of ASARE V DZENY (1976) 1 GLR 473 – 481, in delivering the judgment of the Court of
Appeal (full bench), Azu Crabbe CJ, said;

“A judge of the High Court is not bound to follow the decision of another judge of co-
equal jurisdiction; he may do so as a matter of judicial comity. This position of the High
Court with regard to stare decisis was clearly expressed by Lord Goddard C.J. in Police
Authority for Huddersfield v. Watson [1947] K.B. 842 at p. 848, D.C.:

"I think the modern practice, and the modern view of the subject, is that a judge of first
instance, though he would always follow the decision of another judge of first instance,
unless he is convinced the judgment is wrong, would follow it as a matter of judicial
comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.
He is only bound to follow the decisions which are binding on him, which, in the case of a
judge of first instance, are the decisions of the Court of Appeal . . ."

In summary, decisions or precedents which a court is obliged to follow is what constitutes a binding
decision on a court. Decisions of CHRAJ are therefore clearly not binding on our courts, especially, as
the commission is under the supervisory jurisdiction of the courts.
To what Extent are the Courts Bound to Enforce the Decisions of CHRAJ
A second question which may arise has to do with the enforceability of the decisions of CHRAJ.
Article 218 (d)(iii)and (iv) deals generally with the enforceability of decisions of CHRAJ. The said
section provides;

(d) to take appropriate action to call for the remedying, correction and reversal of instances
specified in paragraphs (a), (b) and (c) of this clause through such means as are fair, proper
and effective, including -

(iii) bringing proceedings in a competent Court for a remedy to secure the termination of
the offending action or conduct, or the abandonment or alteration of the offending
procedures; and

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 (iv) bringing proceedings to restrain the enforcement of such legislation or regulation by
challenging its validity if the offending action or conduct is sought to be justified by
subordinate legislation or regulation which is unreasonable or otherwise ultra vires;

Clearly, CHRAJ has no enforcement powers. It depends on a court of competent jurisdiction to give
effect to their decisions. In GHANA COMMERCIAL BANK LTD. HIGH STREET, ACCRA v.
THE COMMISSIONER, CHRAJ OLD PARLIAMENT HOUSE, ACCRA. [29/01/03] C.A. NO.
11/2002., Brobbey JSC said;

Investigating violations of fundamental human rights is one thing, and enforcing the
decisions or recommendations of the Commission is another matter altogether. The
Constitution envisages that judicial powers are essential in order to enforce the decisions
or recommendations of the Commission. That is why care has been taken to ensure that
enforcement of the decision or recommendation of the Commission should be referred to
the courts. By article 125(3) of the Constitution, judicial power in the country has been
vested in the Judiciary. The Commission is not part of the judiciary. Just like the
provisions in the Constitution and those in Act 456, the case referred to rightly makes it
clear that the Commission has no judicial powers. For the purpose of performing its
functions, it has some powers similar to those exercised in the courts, especially in article
219 of the Constitution. Those powers however do not constitute the Commission into a
court. . .

When the Commission has made its recommendation or taken its decision that is not
complied with, the law requires the Commission to refer the decision or recommendation
to the courts for enforcement. When reference is made to the court for enforcement, the
court is to order the enforcement of the decision within the framework of laws it was set
up to operate. If nothing at all, this will seem to be emphasized by the Constitutional
provision that the Commissioner “may seek any remedy available in that court.”

It must be noted, however, that not all decisions of CHRAJ are given enforcement by the court.
Atuguba JSC, in the same case said;

I also agree that when CHRAJ seeks to enforce its decisions through court action the
court cannot give effect to them, if they are, without or in excess of jurisdiction, perverse

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 or procured by fraud or manifestly wrong. The Constitution or Parliament cannot have
intended otherwise.

As an investigative body, there are certain basic tenets which must be adhered to. Sometimes
CHRAJ’s decisions have been quashed by the courts for various reasons, such as lack of jurisdiction, a
breach of the rules of natural justice, procedural impropriety, etc.

Having the above discussion in mind, one may ascertain whether the courts have the discretion to
choose whether to enforce the decisions of CHRAJ or not because of its non binding nature? It must
be noted that there have been some instances where the decisions of CHRAJ have been quashed by the
courts for various reasons, such as lack of jurisdiction, a breach of the rules of natural justice, etc. As
stated earlier, emphasis must be made that, CHRAJ not being a quasi judicial but an administrative
body is under the supervisory jurisdiction of the courts. The courts in so doing may issue certain
orders which it deems fit, including certiorari to quash the decision of CHRAJ (Anane’s case as
elaborated above).

However, can the courts of its own volition, quash a decision of CHRAJ where it had not acted
ultra vires or had done everything correctly? With respect, the answer is NO. If the decision of
CHRAJ is devoid of any encumbrances, legal or procedural, then the court have no choice but to give
effect to the decision of the Commission. Atuguba JSC is of this same opinion. In the Ghana
Commercial Bank case supra he said;

If a party is otherwise dissatisfied with CHRAJ’s decision, he can, for example, seek
redress under the supervisory jurisdiction of the High Court or Supreme Court,
otherwise the decision binds him. It is CHRAJ which is entrusted with its functions
under the Constitution and the CHRAJ Act; and its jurisdiction, cannot, subject to the
exceptions I have endeavoured to state, be subverted by any other authority.

“. . . any other authority.” as provided in Atuguba’s quote above includes the court, hence, barring
any challenge to the validity of the decision, the court has no choice but to enforce it. The court
therefore cannot be said to have any discretion to decide not to enforce CHRAJ’s decisions which are
competent and free from all encumbrances. The courts therefore has no such discretion.

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In conclusion, it is clear that the decisions of CHRAJ are not binding on the courts because the courts
are not obligated to enforce any decision made by CHRAJ. On the contrary, it is the courts prerogative
to determine whether a decision qualifies to be enforced by them.

CONCLUSION AND RECOMMENDATIONS

Looking at the scope of functions as interpreted by the courts, the commission can be said to have no
‘teeth to bite’. It is therefore suggested that, just as the Judicial Committee of the House of Chiefs and
Commissions of Inquiry, the enabling Act of the Commission should be amended to give it
enforcement powers with a right of appeal from the Commission to the High Court by any aggrieved
party. This will enhance the Commission’s work.

QUESTION

The Commission on Human Rights and Administrative Justice (CHRAJ) has been described as a
toothless bull dog by some commentators. Do you agree? Your answer should reflect relevant decided
cases

Past question, May 2008

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 CITIZENSHIP

INTRODUCTION

One of the basic characteristics of a statehood is its people, and for that matter citizenship

WHAT IS CITIZENSHIP?

Basically, citizenship is the legal relationship of a person to a state resulting from such sources as
birth, adoption, naturalization, marriage etc.

Citizenship has tangible legal influence. In other words, it is not for fun to belong to a state as a
citizen.

Some incidences of citizenship are rights, duties, loyalties and allegiance.There is no unanimity among
States as to who a citizen of a state is, hence this lies within the exclusive preserve of the sovereign
state to decide what constitute citizenship in that state. Therefore to know who is a citizen of Ghana is,

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there should be recourse to our domestic law (Chapter 3, 1992 constitution) which spells out the
prerequisite of acquisition of citizenship in Ghana.However there are certain basic principles which
run through the various urban and rural laws as to who a citizen is. These are;

A) Citizenship by birth-
This criterion uses 2 principles namely;
I. Jus sanguinis i.e. citizenship by descent or right of blood. By the Jus sanguinis
principle the nationality of a child is determined by the nationality possessed by his
father or mother at the time of birth and does not really matter the place or soil of
birth.

II. Jus soli i.e. citizenship by right of soil or birth place. Here, the nationality of a child is
determined by the place or soil of birth and is not determined by the nationality of
parents.

B) Naturalisation

This method enables an alien to become a citizen by fulfilling stipulations of the relevant law.
This has some modifications.
 Assimilations (i.e. one must know at least one language)
 Residence for a period of time.

How does one acquire Ghanaian Citizenship?

The general principles of Jus sanguinis and Jus soli as well as naturalization have been applied in
different ways in various legislations that regulate citizenship in Ghana. See Act 591. Chapter 3 has
presented a formula of how a person can become a citizen of Ghana. Read Article 6-10 especially
Article 9.

But what about those who were born predating 7th January 1993?

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Article 9(1) provides;“(1) Parliament may make provision for the acquisition of citizenship of
Ghana by persons who are not eligible to become citizens of Ghana under the provisions of this
Constitution”.

Hence the constitution has given parliament the power to enact laws to address this problem.

Clause 2 of Article 6 reads “Subject to the provisions of this Constitution, a person born in or outside
Ghana after the coming into force of this Constitution shall become a citizen of Ghana at the date of
his birth if either of his parents or grandparents is or was citizen of Ghana.” Reading Article 9(1)
parliament is charged with the responsibility of making laws guiding citizenship.

Ghana nationality Act, 1971 and Act 631 as amended by three subsequent decrees.Section 1 of Act
451 continue the citizenship of persons who were citizens of Ghana before coming into force of the
constitution 1993.

To determine whether one is a citizen of Ghana before 1993, one must go through the laws that
existed. To cure this, Act 591 has reclassified these.

FOUNDLINGS

A foundling is a person of not more than seven years of age found in Ghana and whose parentage is
unknown. The constitution creates a presumption of citizenship for foundlings. Article 6(3) provides;
“A child of not more than seven years of age found in Ghana whose parents are not
known shall be presumed to be a citizen of Ghana by birth”.
See also section 8 of Citizenship Act, Act 591

CITIZENSHIP OF ADOPTED PEOPLE

A child of not more than 16 years of age, neither of whose parents are a citizen who is adopted by a
Ghanaian becomes, by virtue of the adoption, a citizen of Ghana.

CITIZENSHIP BY REGISTRATION

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A. A person can acquire a citizenship of Ghana by registration in a number of ways pursuant to
section 10 of Act 591 and article 9 of the constitution. Article 9(1) and (2) provides

“(1) Parliament may make provision for the acquisition of citizenship of Ghana by
persons who are not eligible to become citizens of Ghana under the provisions of
this Constitution. (2)Except as otherwise provided in this article & of this
Constitution, a person shall not be registered as a citizen of Ghana unless at the
time of his application for registration he is able to speak and understand an
indigenous language of Ghana.”

A citizen of full age and capacity of an approved country may upon an application and with approval
of the president of Ghana be registered as a citizen of Ghana. For such an application to be successful,
the minister must be satisfied that;

 the applicant is of good character.

 Ordinarily resident in Ghana

 Has been so resident in Ghana throughout the period of five years immediately before
the application (however, it is possible for the minister to shorten the period)

 Can speak and understand an indigenous language of Ghana

A A person who is not a citizen and who is or was married to a Ghanaian may on an application
in the prescribed manner above may be registered as a citizen

B. A person who was not a Ghanaian but married to a person who was a Ghanaian at the time of
the death of that person may apply to be registered as a citizen

C. A child of a marriage of a person registered as a citizen of Ghana shall continue to be a citizen

of Ghana unless the child renounces his or her citizenship.

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In other to check possible abuse of citizenship by registration on ground of marriage, the minister may
require the applicant to satisfy that the marriage was done in good faith and not for convenience

Before a person can be registered as a citizen, the person must subscribe to the oath of allegiance

CITIZENSHIP BY NATURALISATION

A certificate of naturalization may be granted to a person by the Minister of Interior after he has met
the ff qualification;
 He has resided in Ghana throughout the period of 12 months immediately preceding the date
of application.

 During the 7years immediately preceding the period of 12 month has resorted in Ghana for
periods in aggregate not to be less than 5years.

 That he is of good character as attested to in writing by 2 Ghanaians who are notary public,
lawyer or public officers
 That he has not been sentenced to a period of imprisonment in Ghana or anywhere to an
officer recognized by law in Ghana.
 That he is able to speak and understand an indigenous Ghanaian language.

 That he is a person who has made or who is capable of making a sustainable contribution to
the progress or advancement in the area of national activity.

 That he is a person who has been assimilated into the Ghanaian way of life or who can be
easily assimilated.

 That he intends to reside permanently in Ghana in the event of a certificate being granted.

 That he possessed a valid resident permit on the date of application.

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DUAL CITIZENSHIP

Is a legal status by which a person simultaneously becomes a national of two sovereign states. This
may arise as a result of a country’s parliamentary enactment, as pertains in Ghana or may result from
the refusal of the state of original citizenship to recognize renunciation of original citizenship. See
16(1) of Act 591.
A citizen of Ghana to hold the citizenship of any other country in addition to his citizenship status
must register using form 10 of LI 1690.

A dual citizen is disqualified pre-emptorily from holding certain positions. Section 16(2).provides for
these positions.

They are; (a) Chief Justice and Justices of the Supreme Court;

(b) Ambassador or High Commissioner;

(c) Secretary to the Cabinet;

(d) Chief of Defence Staff or any Service Chief;

(e) Inspector-General of Police;

(f) Commissioner, Custom, Excise and Preventive Service;

(g) Director of Immigration Service;

(h) Commissioner, Value Added Tax Service;

(i) Director-General, Prisons Service;

(j) Chief Fire Officer;

(k) Chief Director of a Ministry;

(l) the rank of a Colonel in the Army or its equivalent in the other security services;
and

(m) any other public office that the Minister may by legislative instrument prescribe.

A dual citizen is subjected to the laws of Ghana as any citizen of Ghana. This sometimes poses
problems regarding diplomatic protection and sovereignty.

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A dual citizen of Ghana is entitled:
 to be issued with a Ghanaian Passport
 to be allowed to stay in Ghana unconditionally
 if he entered with a Ghanaian passport

To prevent possible abuse of dual citizenship, regulation 12 of L.I. 1690 creates an offence where a
Ghanaian Passport is used by a dual citizen with the passport of another country interchangeably.

LOSS OF CITIZENSHIP

A Citizen of Ghana can lose his citizenship in one of two ways, namely:
 Through Renunciation. See Section 17
 Involuntary loss or deprivation or forfeiture of citizenship. See section18

CONCLUSION

Thus, in the case of Shalabi v the Attorney General, Hayfron Benjamin J as he then was, quoting from
a U.S. case, wrote;

“In Perez v. Brownell 356 U.S. 44 (1958) Warren C.J. in a dissenting judgment said at
pp. 64-65:

"Citizenship is man's basic right for it is nothing less than the right to have rights.
Remove this priceless possession and there remains a stateless person, disgraced and
degraded in the eyes of his countrymen. He has no lawful claim to protection from any
nation, and no nation may assert rights on his behalf. His very existence is at the
sufferance of the state within whose borders he happens to be. In this country the
expatriate would presumably enjoy, at most, only the limited rights and privileges of
aliens, and like the alien he might even be subject to deportation and thereby deprived of

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 the right to assert any rights. This government was not entrusted with power to decree
this fate.

The people who created this government endowed it with broad powers. They created a
sovereign state with power to function as a sovereignty. But the citizens themselves are
sovereign, and their citizenship is not subject to the general powers of their government.
Whatever may be the scope of its powers to regulate the conduct and affairs of all
persons within its jurisdiction, a government of the people cannot take away their
citizenship simply because one branch of that government can be said to have a
conceivably rational basis for wanting to do so."

Read;
-Chapter 3 of the 1992 constitution.
-Citizenship Act, 2000
-Oswald Seneadza- The Law of Citizenship; vol.1 (2004) KNUST Law Journal.

QUESTION
“The law on citizenship is confused and complex”. Discuss this statement with reference to relevant
authorities.
Past question, 2003/2004

Explain how citizenship may be acquired or lost as it relates to a group of persons born before 7th
January, 1993.
Past question, May 2008

“There appears to be a general consensus among states that citizenship is indicia for statehood but
there is no such agreement on acquisition and loss of citizenship”. Evaluate the veracity of this
assertion with reference to Ghana.
Past question, April/May 2010

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 TRADITIONAL CONSTITUTIONAL GOVERNMENTS
INTRODUCTION

The topic is termed traditional constitutional governments because it deals a little more than
chieftaincy. It must however be noted that, essentially, chieftaincy will be dealt with in this topic.

It must be noted that not all tribes in Ghana have chiefs as their political heads. Before the coming of
the Europeans, there were some states that were asephalous in nature (they did not have one political
head). Other areas had chiefs who were their political head. According to the constitution however,
traditional constitutional government revolves around chieftaincy.

WHO IS A CHIEF

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The constitution has provided a definition of who a chief is. Article 277 provides,
“. . . "chief" means a person, who, hailing from the appropriate family and lineage, has
been validly nominated, elected or selected and enstooled, enskined or installed as a chief
or queen mother in accordance with the relevant customary law and usage.”

It must be noted from the definition, the words “. . . who, hailing from the appropriate family and
lineage, has been validly nominated, elected or selected. . .” These days, certain traditional areas
make people who do not hail from their area chiefs because of their support for the improvement of
their area. It must be noted that, the constitution do not recognize these individuals as chiefs because
they do not hail from the appropriate family or lineage.

Another problem that arises from the definition is the term “appropriate family” as used in the
definition. “Appropriate” here, to a large extent, means acceptance. It can therefore be inferred that
appropriate family as used in article 277 means the family which is historically accepted, among a
group of people, as the family which produces chiefs. To find out in this context what constitute an
accepted family, a historical investigation ought to be conducted. This problem, to a large extent, has
to deal with the fact that our culture is undocumented

A third difficulty that arises from the definition is the issue of ascertaining the relevant customary law
and usage, for an enstoolment or enskinment cannot take place without going through the dictates of
the relevant customary law and usage. This is very difficult as we do not have a regime of ascertained
customary law in Ghana. Article 11(3) provides;
“For the purposes of this article, “customary law” means the rules of law which by
custom are applicable to particular communities in Ghana.”

The phrase “. . . which by custom are applicable to particular communities in Ghana” goes a long
way to establish the fact that, in Ghana, there is multiplicity of customs. It must also be noted that
article 11 makes it evident that the constitution has created room for these multiple customs. Not only
this, but also the difficulty to ascertain the proper interpretation of these customary laws and usages

STRUCTURES OF THE CHIEFTAINCY INSTITUTION

 The Houses of Chiefs

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 Chiefs are allowed to be appointed to various institutions and organs under
the constitution such as the Council of State

THE HOUSES OF CHIEFS

This represents a corporate institution that is designed to regulate affairs of chieftaincy in Ghana.
Under the constitution, there are two level houses of chiefs and these are;
 The National House of Chiefs
 The Regional House of Chiefs

FUNCTIONS OF THE HOUSES OF CHIEFS

The National Houses of Chiefs performs the following functions;
 Advisory function in relation to customary law. Any organ or body charged with a
responsibility relating to chieftaincy will have to turn to the Houses of Chiefs for advice

 Research, interpretive and codification functions. There is an attempt to codify all the
customary law in Ghana so that it is easily ascertainable.

 Customary law reforms, that is removing, all dysfunctional or outmoded laws. This function is
in consonance with article 26(2) which provides;
“All customary practices which dehumanize or are injurious to the physical and
mental well-being of a person are prohibited.”

They have this function also because they are seen as an embodiment of customary law.

 Other functions assigned by parliament

 Plays a quasi-judicial function in the sense tha,t the national house of chiefs has jurisdiction to
entertain and listen to complaints and matters affecting chieftaincy. For complaints, the first
point of call is the regional house of chiefs. Appeal shall then lie to the national house of
chiefs and then to the Supreme Court. The body that plays this function is the Judicial
Committee of the National House of Chiefs.

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National House Of Chiefs
Article 271 deals with the National House of Chiefs. The said article provides;
“(1) There shall be a National House of Chiefs
(2) The House of Chiefs of each region shall elect as members of the National House of
Chiefs, five paramount chiefs from the region.
(3)Where in a region there are fewer than five paramount chiefs, the House of Chiefs of
the region shall elect such number of divisional chiefs as shall make up the
required representation of chiefs for the region.”

Regional Houses Of Chiefs

Article 274 also generally caters for Regional Houses of Chiefs. Clause 1 of article 274 provides;
“There shall be established in and for each region of Ghana a Regional House of
Chiefs.”

Article 274 makes it mandatory for every region to have a regional house of chiefs. They hear appeals
from traditional councils within the regions, bordering on nomination, installation, election etc of a
person as a chief and also undertake some study and makes recommendation for the resolution of
chieftaincy disputes.

Finally, they are supposed to make a compilation of the applicable customary laws in the region

WHO IS DISQUALIFIED FROM BEING A CHIEF

Article 275 provides;

“A person shall not be qualified as a chief if he has been convicted for high treason,
treason, high crime or for an offence involving the security of the State, fraud,
dishonesty or moral turpitude.”

ARE CHIEFS ALLOWED TO TAKE PART IN ACTIVE PARTY

POLITICS

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Chiefs are barred from engaging themselves in active party politics. Article 276(1) provides;

“A chief shall not take part in active party politics; and any chief wishing to do so and
seeking election to Parliament shall abdicate his stool or skin.”

It must be noted that, this provision does not bar chiefs from engaging in political activities or
holding public offices. In fact, article 276(2) makes it clear. It provides;
“Notwithstanding clause (1) of this article and paragraph (c) of clause (3) of article 94 of
this Constitution, a chief may be appointed to any public office for which he is otherwise
qualified.”

Barring chiefs from active party politics by the constitution is to keep the unifying nature or role of
the office of the chief

FIVE MAIN DIFFICULTIES FACING CHIEFTAINCY IN GHANA

 Issues of eligibility and succession.

Until the customary law of a particular area is ascertained, it will be very difficult to really
know who is eligible to rule as chief.

 Issues of transparency and accountability.

This is a very difficult problem faced by the chieftaincy institution as they do not account to
their subjects how their possessions are being used. How will there be an effective chieftaincy
in this modern world without transparency and accountability.

 Problems of conflict and political instability.

A perfect example is the Yendi chieftaincy dispute. Most of these conflicts have to deal with
succession.

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 Issues of recognition or de- recognition.
The chieftaincy act provides that a chief needs no recognition from any authority before
carrying himself as such. The issue of recognition or de-recognition started from the colonial
era. The constitution provides that for a chief to be recognized by the government, the chief
must be gazetted. This in effect creates some sort of tension between the government and the
said chief as the government can decide that even though one has been duly elected and
enstooled or enskined as chief, because he has not been gazetted, he will not be accorded the
necessary courtercies. A perfect example is with the present Ga state problem.

 The relationship between the traditional state and the modern state. Monarchism and
republicanism are two regimes of governance. Whiles republicanism is about election,
accountability, transparency, etc, monarchism is about non-election, entitlements etc. The
problem therefore is how these two regimes of rule can come together and work as one. The
problem manifests itself very well when it comes to reconciling the chief, who is supposed to
be a traditional head and hence under no one and the presidency, an institution which has
been elected by majority of the people and who is also supposed to be the head. In terms of
relationship, among the two, who is the head? The constitution however has insulated
chieftaincy from regulation that is why the word “guaranteed” is used in article 270(1).
Guarantee here means endorsement. For example, in the modern state, it is parliament that
has the power to levy taxation yet in some traditional areas, chiefs levy taxes on their subjects

QUESTIONS
With the aid of relevant authorities, identify the key challenges confronting the administration of the
institution of chieftaincy in Ghana and suggest workable reforms.
Past question, April/May 2010

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NOTES

132
 THE GHANA LEGAL SYSTEMS
The Ghana legal system is currently made of;
 The 1992 constitution of Ghana which is the supreme law
 All existing laws made by parliament under constitutional rule
 Decrees of past military regimes
 Principles of laws laid down by the superior courts called judicial precedents or case law
 All the relevant institutions set up by law
 All legally qualified personnel-
working together to maintain law and order and for the effective and efficient administration of justice.

The Ghana legal system has three parts;

 Laws
Ordinances: The laws made by the British colonial governments before independence were
called ordinances. Most of these ordinances have been repealed.

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 Laws passed by parliament when Ghana is under a constitutional rule: These are called acts of
parliament
Laws passed when Ghana is under a military regime: these are called decrees.
Legislative instruments: these are made by ministers of state under the statutes

 Institutions
The Judiciary or the Courts
The Prison Service
The Ghana Police Service
Commission on Human Rights and Administrative Justice (CHRAJ)

 Qualified personnel
Judges and Magistrate
Lawyers and Solicitors
Registrars of the various courts
Bailiffs, etc.

AIMS of the GHANA LEGAL SYSTEM

 To maintain law and order
 To ensure the effective and efficient administration of justice

SOME MAXIMS OF THE GHANA LEGAL SYSTEMS

 Ignorance of the law is no defence.

This is also stated as ignorance of the law is no excuse. This maxim came to play in the case
of Foli v The Republic. In this case, it was the appellants’ contention that they never
accorded the deceased, Abla Eworho, a decent burial because she had violated a custom to
which she was fully subject; that she had not been purified before she died, and that in
accordance with the dictates of that custom, of which she was fully aware, her corpse had to
be burned. The appellants were subsequently charged before the circuit court for causing harm
to a corpse they had cremated contrary to section 53(1) of Cap. 80. The deceased’s head of

134
family and the paramount chief of his locality, the first appellant’ further defence was that by
cremating the corpse they genuinely believed that they were acting in consonance with an
accepted custom and did not know that they were offending against any law of the land. On
their conviction, they appealed to the High Court.

The high court, in dismissing the appeal held that, a custom cannot be validated because it is
an established and long-standing one with a particular locality when that custom goes counter
to statutes and natural justice. It was further ordered that the appellant’ custom of cremation
should be discontinued with immediate effect, being expressly contrary to statutory law and
repugnant to good conscience. A person can be guilty of conspiracy to commit a statutory
offence in spite of his ignorance of the existence of the statute or facts constituting that
offence. The fact that the appellants did not know that cremation was a criminal offence in
Ghana could amount to no defence to the offence of conspiracy.

In this vein, Kingsley Nyinah J wrote;

“. . . it affords the appellants no defence, or excuse, that they did not know they were
offending against the law of their own country. The legal maxim here germane and
applicable is: Ignorantia juris neminem excusat.”

On the other side of the coin however, ignorance of fact is a complete and good defence. In
the case of Nyameneba v The State (1965) GLR 723, the appellants who were members of a
religious sect had been growing "herbs of life" for four years or more. They used the herbs
publicly for invocation, at their worship, for food and medicine. Upon report being made to
the police against the sect, the police investigated and found the herbs to be Indian hemp. The
appellants were tried and convicted under section 49 of the Pharmacy and Drugs Act, 1961
(Act 64). At the trial a chemist certified that the herbs were Indian hemp but the prosecution
failed to call the chemist to be cross-examined on his report even after the court had so
directed.

In allowing the appeal, Ollennu JSC, wrote;

“. . . no one can be heard to say that he does not know of the existence of the law
which prohibits possession, etc. of Indian hemp. That being so, if the case of the
appellants had been that they knew that the stuff is Indian hemp, but did not
know that there is law prohibiting its possession etc., their plea would be a plea

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 of ignorance of the law; in which case the circuit judge would be justified in
directing his attention to and applying section 29 (2) of Act 29, as apparently he
did. But their case which is so obvious and convincing that the circuit judge had
no difficulty in accepting, is that they are honestly ignorant of the fact that the
herbs in question are Indian hemp. Theirs is therefore a plea of ignorance of fact
which under section 29 (1) of Act 29 is a good defence.”

Cases; Arthur v The Republic (1961) GLR 716

Brempong v The Republic (1995-96) 1 GLR 35, (1996-97) SC GLR 626, (1997-98)
1 GLR 467
Republic v Kwadwo (1991) 1 GLR 1, (2007-08) 2 SC GLR 1148.

 Justice delayed is justice denied.

This is also stated as justice is sweet when it is swift. On so many occasions have people
complained of the slow pace of administering justice in Ghana. Litigation sometimes takes too
long in the courts to complete to the extent that its completion may be of no use to the
litigants any longer. On noticing this unpleasant situation, the defendants, liberty press, who
published an article expressing their utmost disgust about the situation, ended up facing a
contempt of court charge in the case of the Republic v Liberty Press. A portion of the article
the attorney general complained of, as spelt out in the judgement of Akuffo Addo CJ, was in
this regard;

"WE HAVE had occasion once in the Legon Observer (Vol. II, No. 19) to draw
attention to the number of cases still pending in our courts of law. Some of these
cases have been pending for so long that, quite understandably, most law officers
have forgotten about the existence of such cases. The law officers at the
Attorney-General's Office seem to be so overworked that, with the best will in
the world, they can hardly call all the cases for trial or review. It is to make the
wheels of justice move faster that the recent increase in the salaries of the law
officers in the Attorney-General's Office has been welcomed. The hope is that the
recent increase will attract a sufficiently large number of good lawyers to review
all pending cases so that the guilty can be punished and the innocent set free.”

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 Though they were cited for contempt of court, the practicality on the ground shows that what
was published is true and some judges and eminent jurists have also shown their disapproval
of this practice. In the case of Adu v Kyeremeh, which was an appeal against a decision of
the High Court which took about twenty six years to complete, Justice Adade lamented about
this situation in his judgement in the same case. He wrote;

“It is a serious indictment on the administration of justice in this country that a

case of such simple dimensions should take as long as 26 years to see itself
through the courts. It started in November 1960; it is now, in April 1987, being
given hopefully its final farewell. 24 out of these 26 years were spent in the Court
of Appeal alone. When in 1981, in Abba v. Nframa, Supreme Court, 30
November 1981, unreported, I came upon a similar situation, I whined. That
case took twelve years. This one is worse.”

 All persons shall be equal before the law.

This is in article 17(1) of the 1992 constitution. This is sometimes stated as

no one is above the law. It is also sometimes stated as the law is no respecter of persons.

In his concurring opinion in the case of Adjei Twum v Attorney General (2005-06) SC
GLR 732, Asiamah JSC (as he then was), threw more light on the aspect of equality which
advocated for the chief justice to be accorded equal procedural safeguards as it pertains in
cases dealing with the impeachment processes of justices of the superior court. He writes;
“that the chief justice . . . cannot be made amenable to an entirely separate or
different procedural mode of inquisition and excluded from that which is
applicable to his confreres. The superior court judges constitute one egalitarian
crowd of justices. They are under the principle of equality and fairness amenable
to one and the same investigative procedures relating to their rights or
anticipated impeachment.”

Concerning equality, in his judgement in the case of Ghana Commercial Bank v

Commission on Human Rights and Administrative Justice (2003-04) SC GLR 91,
Brobbey JSC also wrote;

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 “the fundermental law of the land, ie, article 17 of the 1992 constitution,
mandates that everyone is equal before the law, the appellants, Ghana
Commercial Bank, cannot operate a system by which its employees are not equal
before the law.”

Commenting on the need to be quality, he writes;

“Where laws in an institution like the appellant’s bank are applied differently
and inconsistently, it is probable that that inconsistency may lead some employees
to believe that the laws may not always be invoked or that the employee’s action
may be exempted. That in itself may be an inducement for some employees not to
strive to obey the laws. When that happens, the employer, like the appellant
herein, would have created a situation for which it has itself to blame.”

 The presumption of innocence.

Where an accused person is facing a criminal charge before a court of law, he is presumed to
be innocent until after the trial and there is sufficient evidence for which the court will find
him guilty or the accused person himself genuinely and voluntarily and without any
intimidation, pleads guilty to the offence. The presumption of innocence is in article 19(2) (c)
of the constitution of Ghana, 1992. Article 19(2)(c) provides;
“A person charged with a criminal offence shall;
(c) be presumed to be innocent until he is proved or has pleaded guilty”

QUESTION
(a) Discuss the key features of the Ghana Legal System. OR
(b) Explain the maxim “justice delayed is justice denied”. Is the introduction of the new High
Court Civil Procedure Rules 2004 C. 147 the answer to the problem of delay in the
administration of justice in Ghana? Give very good reasons for your answer.
Past question, 2006

138
 “Adherence of the maxim “Ignorance of the law is no defence” cannot be justified in Ghana where
many of the people living in the rural areas are illiterates”. Discuss this statement with the help of
decided cases.
Past question May, 2008

Explain the maxim “justice delayed is justice denied”. Is the setting up of special courts such as the
family tribunal and the Juvinal Court the answer to the problem of delay in the administration of
justice? Give very good reasons for your answer
Past question, May 2008

THE JURISDICTION OF A COURT

MEANING OF JURISDICTION

I. It is the geographicalarea over which a particular court has been given power by law to
administer justice. For example a District Magistrate Court has power to administer justice in
civil and criminal cases within the geographical area called a district. It has the same
boundaries as a district in the Local Government Act, popularly called district or municipal
assembly. The High Court has power to administer justice in the region in which it is
situated.The lower court and tribunal instrument, L.I. 1574, has divided Ghana into
geographical areas for the purposes of administration of justice

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In the case of Appiah v The Republic (1997-98) 1 GLR 219, the applicant was the special
prosecutor of the special tribunal set up under the Armed Forces Revolutionary Council
Decree, 1979 (AFRCD 23). The basis of the charges against him was that, he being a public
officer under the colour of that office did obtain £1 ,000 from one Henry Kodjo Dzaba, and
£10,000 from one E K Owusu. The amounts were paid into the applicant's account with
Barclays Bank International Ltd, London. Both Mr Henry Dzaba and Mr E K Owusu of
Kowus had matters pending before the tribunal but were in exile at the material time. He was
subsequently convicted by the Circuit Court, Accra of extortion contrary to section 239(11) of
the Criminal Code, 1960 (Act 29). His appeal against both his conviction and sentence was
allowed by the High Court. An appeal by the Republic from that decision was however
allowed by the Court of Appeal which restored the judgment of the circuit court. An appeal by
the appellant to the Supreme Court from the decision of the judgment of the Court of Appeal
was dismissed on the ground, inter alia, that the prosecution had successfully proved all the
ingredients of the offence of extortion at the trial before the circuit court. Eight years after the
dismissal of the appeal, and after the applicant had served his sentence, he brought an
application before the Supreme Court, under the court's inherent jurisdiction, to set aside his
conviction and sentence on the ground that the courts that tried him had no jurisdiction to try
him. In support of his application he contended that the charge sheet for his trial was defective
in that it did not state the date and place of the alleged commission of the offence of extortion
and there was no act or omission alleged in the charge sheet as proved to have been done in
Ghana.
On dismissing the appeal, Kpegah JSC, commented on the issue of geographical jurisdiction.
He wrote;
“In criminal matters, the fundamental rule is that the jurisdiction of our courts is
primarily territorial. So that the powers of our courts extend over the whole of
the territorial area of the state including its air space and sea, its ships or
aircrafts which are registered or licensed in Ghana. Any criminal act perpetrated
in any of the above areas is justiciable by the courts of Ghana. So conversely,
crimes allegedly committed outside our
territorial limits are beyond the jurisdiction of our courts.”

Cases refered to:

 The Republic v District Magistrate Court (1993-94) 2 GLR 220

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  In re Blay Miezah (2001-2002) SC GLR 339
 Kuma v Ankoma (1972) 2 GLR 134
 Republic v West Nzema Traditional Council (1982-83) 2 GLR 1102

II. The second meaning of the word jurisdiction is the power given to a court to determine
monetary claims up to a specific amount of money. For example the District Magistrate
Court, any amount up to GH 5000, The Circuit Court, GH 10000. Any amount above GH
10000 goes to the High Court.

In the case of Micah v Bruce (1971) 1 GLR 291, the respondent sued the appellant in the
district court grade I claiming N¢653.40 as arrears of rent and an order of ejectment. On the
day that the appellant, who had also counterclaimed for N¢600.00, was to have opened her
defence, the magistrate allowed her to amend her counterclaim by substituting the sum of
N¢1,500.00 on the ground that the original figure of N¢600.00 was inserted in error. The
appellant, after her amendment had been granted, then made an application that in view of the
amount involved in the counterclaim the district court did not have jurisdiction and therefore
the case should be transferred to the circuit court. The magistrate ruled that the application
had not been made in good faith and that counsel had deceived the court and therefore he
reversed the earlier decision which had allowed the amendment to the counterclaim.

On appeal it was submitted (1) that the magistrate erred in law in saying that an application for
amendment granted by him was given in error when there was no motion for review and (2)
that the magistrate erred in law in allowing the case to proceed despite the amendment which
had made it clear that the court had no jurisdiction.

Held, allowing the appeal: Per holding three of the head notes;

“(3) The magistrate's ruling should therefore be set aside with a consequential order that the
counterclaim be struck out under Order 18, r. 3 of Sched. II of Cap. 4, since it exceeded the
court's jurisdiction. Kamara v. Traore, High Court, 13 November 1968, unreported; digested
in (1969) C.C. 32 approved.”

Cases referd to:

 Fofie v Pomaa (1974) 2 GLR 6

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  Bramsco Food Marketing and Supply v Mohamadu (1973) 2 GLR 4

III The third meaning of jurisdiction is the power given to the court by law to try cases of a
particular nature or a particular class. For example, the High Court has power to try cases
involving violation of fundermental human rights under chapter 5 of the constitution, 1992.
The high court also has power to determine whether a particular person has been duly elected
in all parliamentary election. The District Court haspower to determine matters in marriages
contracted under customary law.

IV Fourth meaning of the word jurisdiction is the qualification of themembers and quorumof
the court. For example, to be appointed a district magistrate, you must be a lawyer of at least
3 years standing at the bar; circuit court, 5 years standing; high court, 10 years standing; court
of appeal, 12 years standing. The Supreme Court always sit as a panel of either 5 or 7 or 9 or
11 members that is known as a quorum.

This meaning of the word jurisdiction came as a matter before the Supreme Court in the case
of Kunadu v Yiadom (1995-96) 1 GLR 8. The fact of this case is that, the applicants were
the defendants in a chieftaincy matter brought against them in the Kumasi Traditional Council.
The plaintiff-respondents sought a declaration that the purported nomination of the fourth
defendant- applicant was null and void as he was not a royal of the Pankrono stool. Judgment
was given in favour of the respondents. The applicants appealed to the Ashanti Regional
House of Chiefs which affirmed the decision of the Kumasi Traditional Council. Not satisfied,
the applicants again appealed to the National House of Chiefs, and this time they won. The
respondents, with the leave of the judicial committee of the National House of Chiefs,
appealed to the Supreme Court against the decision of the National House of Chiefs.

The Supreme Court, on 28 July 1993, by a majority decision, allowed the respondents' appeal.
On 11 August 1993, the applicants filed an application for the review of the Supreme Court’s
decision. This application was not heard until 18 October 1994. A ruling was then given on 25
October 1994, dismissing the application for review.

The applicants in the present application were invoking the inherent jurisdiction of the
Supreme Court to set aside the ruling given in the application for review. They do this on two
grounds. First, they contend that Mr Justice Francois who sat on the application was not

142
 competent to sit thereon as he had then retired as a justice of the Supreme Court. They also
contend that the application was not a part-heard matter so as to bring it within the scope of
article 145(4) of the Constitution, 1992. The court was in the circumstances improperly
constituted, and so its proceedings on 18 October 1994, and the ruling on 25 October 1994,
when Mr Justice Francois sat, were all null and void and must be set aside. Secondly, the
applicants contend that the Rules of Court Committee not having prescribed the grounds and
conditions for review as required under article 133(1) of the Constitution, 1992, it was wrong
for the Supreme Court to proceed to hear the application for review.

Amuah Sakyi JSC, as he then was, in his concurring view to the unanimous decision of the
Supreme Court which upheld the plaintiff’s application wrote;
“The application for a review of the judgment was lodged in the registry of the
Supreme Court at a time when Mr Justice Francois was in office as a judge. If
the hearing had commenced before him prior to his attaining the compulsory
retiring age, it would have been proper for him to complete the hearing and give
a ruling. As it happened, the hearing did not begin until after he had attained the
compulsory retiring age. He was therefore not qualified to sit on the application.
The result must be that the proceedings and ruling on the application for a
review are null and void”

Cases refered to:

 Republic v Adansi Traditional Council (1974) 2 GLR 126
 Republic v Buem Traditional Council (1991) GLR 455

V The fifth meaning of the word jurisdiction is the power given to a court to give specific
orders or impose particular purnishment. Example, in a criminal case, the district
magistrate court can impose a maximum sentence of 2 years.

HOW DOES A COURT GET ITS JURISDICTION

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To find out whether a particular court has jurisdiction in a matter, one have to look at the following
documents;
 The 1992 constitution of Ghana
 The Courts Act 1993, Act 459 or the Courts Amendment Act, Act 620
 Any other act that gives jurisdiction to a court. For example, the Children’s Act, Act 560, gives
jurisdiction to the District Court, sitting as a Family Tribunal involving cases of maintenance of
children. The Juvenile Justice Act, Act 653, gives jurisdiction to the Juvenile Court to try
persons below 18 years

CONCENT AND JURISDICTION.

As a general rule, the parties to an action cannot confer jurisdiction on a court to hear their case where
the law has not given jurisdiction to that particular court. For example, it is only the high court that has
been given jurisdiction to hear violation of fundermental human rights. See article 140(2), therefore
where B has violated
A’s rights, A cannot go to the District Court and ask the court to hear the matter.

In Republic v High Court, Koforidua (1998-99) SC GLR 91, Amuah JSC wrote;
“I now come to the issue raised by Osabarima in the High Court that the parties
willingly submitted to his jurisdiction and paid the arbitration fee of ¢ 100,000 each.
Here too Osabarima misapprehended the law for as was held by Ollennu J (as he then
was), as stated in the headnote, in the case Quist v Kwantreng [1961] 2 GLR (Part II)
605: "parties cannot by consent or by acquiescence confer jurisdiction on a court where
it has none otherwise." This view was also followed in the case of Republic v Adansi
Traditional Council; Ex parte Nalla Akyie [1974] 2 GLR 126, CA where the Court of
Appeal held, as stated in the headnote, that:

"(3) Where 'by the reason of any limitation imposed by statute a court or tribunal was
without jurisdiction to entertain any particular matter or action, neither the acquie-
scence nor by express consent of the parties to the case could confer jurisdiction upon
the court or tribunal nor could consent give that forum jurisdiction if 'a condition which
went to jurisdiction had not been performed or fulfilled."

144
 Also readQuist v Kwantreng and others (1961)2 GLR 605

There is however an exception to the general rule that the parties cannot confer jurisdiction on a court.
This exception is found in Section 42(3) and Section 47(3) of the Courts Amendments Act (Act 620).
It applies in the district magistrate court and in the circuit court. The exception is that, where the
plaintiff is claiming an amount above GH 5000 in the District Court or above GH 10000 in the Circuit
Court, it is clear that these two courts do not have jurisdiction. However, the plaintiff and the defendant
can agree that the court should go ahead to hear the case. The Courts Act uses the phrase “if the parties
agree that you should do so”. It is the position of the law that, where the parties agree to confer
jurisdiction on a court, this should be indicated very clearly in the records of the magistrate or the
judge.

In the case of Charmant v Mensah (1982-83) GLR 65, this rule came to play. The facts of this case
are that, the plaintiff (M) sued the defendant (C) in the District Court Grade 1, Goaso for unlawful
dismissal. He claimed, inter alia, the sum of ¢2,710.64 as salary in lieu of notice. C admitted M's claim
for salary in lieu of notice but he also counterclaimed for the sum of ¢2,800 from M. The trial judge
therefore entered judgment for M for ¢2,719.64. At the end of the trial judgment was entered for M for
further sums of ¢800 for transport expenses and ¢300 costs. C's counterclaim for ¢2,800 was however
dismissed. C appealed against the judgment on the ground that given the amounts claimed by the
parties the district court had no jurisdiction to try the suit. The plaintiff however claimed that by their
conduct they had acquiesced in giving the district court jurisdiction to try the case. The court found
from the record of the trial court that the issue of jurisdiction was not raised.

It was held that an objection to jurisdiction could be taken at any time. It might even be raised for the
first time on a second appeal. The appellate court therefore had jurisdiction to try the case. By the
provisions of the Courts Act, 1971 s. 37 (1) (a) the jurisdiction of the district court, grade 1 was limited
in civil matters to claims not exceeding ¢2,000. At the start of the hearing of the instant case, M's
claims stood at ¢3,510 whilst C's stood at ¢2,800. It was obvious therefore that the claim exceeded the
trial court's jurisdiction. However, section 37 (3) of Act 372 provided that in any cause or matter where
the amount claimed exceeded the court's jurisdiction, the court could nevertheless entertain the suit if
the parties agreed that it should do so. The jurisdiction, however, could not be conferred by
acquiescence.

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Thus unless it could be shown on the record that the parties expressly consented to vest the court with
jurisdiction the court could not assume any jurisdiction where the value of a claim was above its
jurisdiction.

Commenting on the issue of consent and jurisdiction, Ampiah J wrote;

“The district court being an inferior court, nothing is deemed to be within its jurisdiction
unless it is expressly shown on the face of the proceedings that it is vested with
jurisdiction in the particular matter. Therefore the proceedings of an inferior court must
show on their face that its jurisdiction has not been exceeded: see Halsbury's Laws of
England (3rd ed.), Vol. 9, pp. 349-350.

Under section 37 (1) (a) of Act 372, the District Court, Grade 1, Goaso lacked
jurisdiction on the face of the record. Since jurisdiction cannot be conferred by
implication, it must be conferred specifically, otherwise there is none. And the court was
under a duty to call the attention of the parties to the absence of its jurisdiction, and
strike out the case at once, unless after it had so called their attention, the parties
thereupon expressly consent that it should exercise jurisdiction”

Read also; Kwabla v Abraham (1962) 2 GLR 62

Republic v District Magistrate (1981) GLR 764
Zortogli v Gahiemu (1963) 1 GLR 195
Tomfo v Awona (1973) 2GLR 437

RAISING AN OBJECTION TO THE JURISDICTION OF A COURT

As a general principle of law, a party in an action may raise an objection to the jurisdiction of the court
at any stage of the proceedings. He may raise the objection before the trial starts, during the trial itself
or he may even raise it for the first time when the case goes on appeal. When a party raises an
objection to the jurisdiction of the court, what he is saying is that, that particular court has not been
given jurisdiction by law to hear his case. He then goes ahead to give legal reasons in support of his

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objection. The court will then give a ruling on his objection. If his objection is upheld, that will be the
end of the matter and the court will not go into the merits of the case. His objection may however be
overruled and the court may go ahead and hear the case on its merit.

In Republic v Adansi Traditional Council (1972) 2 GLR 126, Anin JA, wrote concerning raising an
objection to the jurisdiction of a court as follows;
“For the respondents, Mr. Mmieh contended that the objection as to the reconstituted
committee's jurisdiction not having been taken earlier at the hearing of the certiorari
motion in the court below, it was now too late for the appellants to canvass it and for this
appellate court to entertain same. This contention is clearly wrong and misconceived.
The correct principle is that a plea as to jurisdiction will be heard at any time, and that it
is the duty of an appellate court to entertain a plea as to jurisdiction at any stage even if
the point was not raised in the court below”

Also, in Ghanatta v Board of Trustees (1993-94) 1 GLR 316, Adjabeng JA wrote on the issue of
jurisdiction as follows;

No one can legitimately quarrel with the submission that an issue of jurisdiction can be
raised at anytime and anyhow, and not necessarily in a statement of defence. This view is
amply supported by Adade and Ampiah JJSC in their opinions in the case of Ex parte
Avadali IV (supra). Adade JSC in his opinions at 566 of the judgment talked of "the
general law that objections to jurisdiction may be taken at any time ..." Ampiah JSC was
more elaborate. At 589 of the judgment, he observed as follows:

"An issue of jurisdiction could be raised at any stage of the proceedings. If in fact the
claim was 'a cause or matter affecting chieftaincy' then the High Court had no
jurisdiction to entertain it and the issue can be raised at any time after the writ has been
filed.”
Cases
 Amoasi III v Twintoh (1987-88) 1 GLR 554
 Republic v Aduboaheng (1993-94) 2GLR 324

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JURISDICTION AND THE PLAINTIFF’S CLAIM

It is a fundermental principle of law that the jurisdiction of a particular court to hear and determine a
particular matter or to resolve a particular issue is determined by the plaintiff’s claim and not the
defendant’s defence. In other words look at the reliefs or remedies that the plaintiff has endorsed in his
writ of summons to determine whether the court has jurisdiction. As a general rule, the plaintiff should
issue his writ of summons where the defendants reside or where the defendants normally carry out his
business.

In the case of Anin v Ababio (1993) 1 GLR 509, Mensah Boison J, wrote;
“But the right of the court to investigate its jurisdiction is another thing. That can, in my
opinion, be done by examination of the issues raised by the claim without going into the
merits. The principle of law was stated in Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361
at p. 363 thus:

"In the first place it is a fundamental principle that jurisdiction is determined by the
plaintiff's demand and not by a defendant's answer which, as in this case, only disputes
the existence of the claim, but does not alter or affect its nature. In other words,
ordinarily it is the claim and not the defence which is to be looked at to determine the
jurisdiction."

Also in Akati v Nartey (1980) GLR 218, Cecilia Koranteng Adow J held;
“To determine the jurisdiction of a court to hear any particular matter, what ordinarily
must be looked at is the plaintiff's claim and not the defence put forward by the
defendant. Normally, it is the claim which determines which court has jurisdiction to
hear it and the defence should not ordinarily oust the jurisdiction of the court. The dicta
of Coussey J.A. in Izenkwe v. Nnadozie (1953) 14 W.A.C.A. [p.227] 361 confirms this
fundamental principle.”

Cases refered;
 Kofi v Kumansah (1984-86) 1 GLR 116
 Amponsah v Amponsah (1997-98) GLR 43

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SUMMERY OF JURISDICTION

Case; Attorney General of Anambra State v Attorney General of Bornu State

(1993) 1 WA SCR 78, p 81.The chief justice of Nigeria said;
“jurisdiction is the authority of a court to decide matters before it or to take cognisance
of matters presented in a formal way for its decision, and where a court exercises
jurisdiction it does not possess, its decision amounts to nothing. And it is a fundermental
principle of law that it is the plaintiff’s claim which determines the jurisdiction of the
court. Where it is raised in a preliminary objection, it has to be determined before
anything else”

Also in Ghana Bar Association v Attorney General (1995-96) 1 GLR 598, Kpegah, JSC also
summarised jurisdiction thus:

“The concept of "jurisdiction" in its esoteric and jurisprudential sense is said to be "a
DIGNITY which a man hath by a power to do justice in causes of complaint made before
him." In a technical sense, when one is considering whether a properly constituted court
has jurisdiction or not one cannot resolve this issue without necessarily relating it to:

(a) the parties to the dispute—that is, whether the court has jurisdiction over them;

(b) the subject matter of the dispute—whether it is one which falls within its jurisdiction;

(c) the relief being sought—that is, whether the said court can grant the relief the
plaintiff is seeking; and, lastly

(d) territorial limitation.

One or a combination of any of these factors can very well assist in determining if a
court has jurisdiction or not. So, relying on the case of Garthwaite v Garthwaite [1964] P
356, the learned authors of Stroud's Judicial Dictionary (4th ed), Vol 3 at p 1452 said of
the concept as follows:

"(2) In its narrow and strict sense, the 'jurisdiction' of a validly constituted court
connotes the limits which are imposed upon its power to hear and determine issues

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 between persons seeking to avail themselves of its process by reference (1) to the subject-
matter of the issue or (2) to the persons between whom the issue is joined or (3) to the
kind of relief sought, or to any combination of these factors."

To these three may sometimes be added as relevant the court's area or district of
operation. I prefer to call it simply as territorial limitations of the court.

The learned authors also considered the term in its wider sense thus at the same page:

"In its wider sense it embraces also the settled practice of the court as to the way in
which it will exercise its power to hear and determine issues which fall within its
‘jurisdiction' (in the strict sense) or as to circumstances in which it has 'jurisdiction' (in
the strict sense) to grant, including its settled practice to refuse to exercise such powers,
or to grant such relief in particular circumstances. . ."

JURISDICTION OF THE DISTRICT COURT

1. Qualification
There are 2 groups of district magistrates
 Lawyers who are not less than 3 years standing at the bar. See Section 46(1) of Act 620
 Career magistrates; a career magistrate is defined in the Courts Amendment Act 2004
(Act 674) as “a person with such judicial or legal knowledge as the Chief Justice
shall, on the advice of the Judicial Council determine.”

2. A district magistrate court has 2 types of jurisdiction ;

 Civil jurisdiction- Section 47 of Act 620 gives the civil jurisdiction of a district magistrate
Case ;Poku v Crabbe (1980) 2 GLR 406
 A district magistrate also has jurisdiction to try a limited number of criminal cases,
however it can only impose a maximum sentence of 2 years.

In the case of Watara v Republic (1974)2 GLR 24, the appellant was arraigned before a
district court on a charge of being knowingly concerned in fraudulent evasion of customs
duties contrary to Act 29, section 317 (f), which offence was not within the jurisdiction of a
district court since it carried a minimum sentence of a fine of ¢5,000 or five years'

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 imprisonment or both. The appellant pleaded guilty. The appellant was convicted, and
remanded to appear before a circuit court for sentence. The circuit judge having doubts about
the validity of the conviction stated a case for the consideration of the Court of Appeal. It
accordingly directed the circuit judge to pass sentence simpliciter: The appellant was
sentenced to a fine of ¢5,000 or five years’ imprisonment with hard labour.

He appealed to the High Court on a number of grounds, the last and most fundamental being
that the whole trial before the district court was a nullity being outside the jurisdiction
conferred on that court by Act 372, s. 39, and therefore the sentence was also a nullity.
In allowing the appeal, Osei-Hwere held;
“ . . . the district court grade I is not entitled in the exercise of its criminal
jurisdiction to impose a term of imprisonment exceeding two years or a fine
exceeding ¢1,000.00 or both and as the offence with which the appellant was
charged carries the minimum sentence of five years' imprisonment or a
minimum fine of ¢5,000.00 the trial district court grade I had no jurisdiction to
entertain the charge and the appellant's arraignment and his subsequent
conviction before that court was completely null and void.”

The district magistrate also sites as a family tribunal and it is made up of the District
Magistrate and 2 other members and derives its jurisdiction from the Children’s Act 1998
(Act 560). The District Magistrate also sits as a juvenile court to try criminal cases involving
persons below the age of 18 years and derives its jurisdiction from the Juvenile Justice Act.
The district magistrate also sites as a rent magistrate to hear and determine matters involving
Landlord and tenants that started from the Rent Office. The District Magistrate when sitting as
the Rent Magistrate sits alone and derives his jurisdiction from the Rents Act 1962 (Act 220)

3. Geographical jurisdiction
The geographical jurisdiction of a district court is found in Section 45(3) of Act 620. It
provides “the Chief Justice shall specify the area of jurisdiction of each district court.”
These have been spelt out in the Lower Courts and Tribunal Instrument 1993, LI 1594.
Where a party has raised an objection to the geographical jurisdiction of a District Court,
Section 104 of Act 260 gives the Chief Justice or the Supervising High Court Judge the power
to transfer the case from that District Court to the court that has jurisdiction

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 Cases refered ;
 Ingos Construction ltd v Blackwood Hodge (1981) GLR 347
 Mbrah v Johnson (1973) 2 GLR 213
 General Portfolio ltd v Ghana National Petroleum Corporation (1992) 2 GLR
138
 Social Aid Guild of Ghana V Dassah and another (1989-90) 2 GLR 233
 Essuon v Kwaw (1981) GLR 653

THE RULES OF NATURAL JUSTICE

INTRODUCTION

There are two fundermental rules used in the administration of justice by the courts and by any person or
institution that is to resolve dispute between people. Where the two rules are not complied with, whatever
decision which will be arrived at will be declared null and void. These two fundermental rules are;

1. Hear the other side or listen to the other side or hear both sides of a dispute before arriving at a
decision

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2. No man should be a judge in his own cause. This rule has been stated as the rule against bias. Every
person who is settling a dispute should be a person who is neutral, impartial, independent and does
not have any interest or whatsoever in the outcome of the case

RULE 1: Hear the other side.(audi alterem partem)

The person making the report to either a chief or an elder or the court is known as the complainant or the
plaintiff. The person against whom the complaint is being made is the accused person or in a civil case,
the defendant. Where the case is filed in the court, the plaintiff issues a writ of summons and adds a
statement of claim. These two documents are served on the defendant. If the defendant decides to
contest the case, he will file a Statement of Defence. The court will then fix a date and the plaintiff will
enter a witness box and give oral evidence and may tender document if any, in support of his case. The
defendant will then cross-examine him to test the credibility of his story. The plaintiff will call witnesses
if any, in support of his case. The defendant will also enter the witness box and tell his side of the story
and will be cross-examined by the plaintiff. He may also call witnesses in support of his case. This rule of
natural justice has now been complied with because the plaintiff has given evidence and the defendant
has also given evidence. The court will then fix a date for judgement.

Criminal cases
In a criminal case, the person charged with the offence is known as the Accused Person. The first person
to give evidence is the complainant, that is to say, the victim of the crime. After giving evidence,
witnesses may be called in support of the charge. However, the 1992 constitution provides that, the
accused person has the rights to remain silent and cannot be compelled to give evidence because, he is
presumed to be innocent. See Article 19 (10) of the constitution, 1992. He is not compelled to give
evidence because, he is presumed to be innocent. See Article 19 (2) (c).

Secondly, it is the duty of the police or the prosecution to lead evidence to proof beyond reasonable
doubt that the accused person committed the crime. Where they are not able to do so, the accused person
will be Acquitted and Discharged. Where the evidence led by the prosecution is so strong, it is better for
the accused person to enter the witness box and defend himself or throw some doubt on the evidence of
the prosecution.

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In the case of Accra Heart of Oak v Ghana Football Association (1982-83) GLR 11, the audi alterim
partem rule (i.e. hear the other side) came to play. The brief fact of this case is that after a football match
played between Accra Hearts of Oak and Dumas on Sunday 29 March, 1981, some spectators who were
at the stadium expressed their dissatisfaction with the referee's handling of the match by indulging in acts
of hooliganism which resulted in a considerable damage to property at the stadium.

Although there was no evidence that the wanton acts of hooliganism and destruction were committed by
supporters of Hearts, the Ghana Football Association, in a press release, decided to ban Hearts from
playing any "home" match at the Accra Sports Stadium until further notice. And further, that the Ghana
Football Association would decide the venue at which Hearts would play their "home" matches from time
to time. Hearts brought this action for an injunction to restrain the defendants from acting upon the said
press release on the ground that they were not heard before the decision to ban them was taken. The
defendants conceded that the plaintiffs were not heard before the punishment was imposed. They
contended, however, that the plaintiffs had not disclosed any proprietary interest in the stadium which
ought to be protected by the grant of an injunction.

On granting the application for an interim injunction, Korsah J (as he then was) held;

“Counsel for the plaintiffs has reminded me that the rule that no condemnation should
be pronounced behind the back of a man who has had no opportunity to appear and
defend his interest either personally or by his proper representative dates from the time
of Adam. He says, God asked of Adam: "Where art thou? Has thou eaten of the tree
whereof I commanded thee that thou shouldst not eat?" And the same question was put
to Eve also. We are not told whether any question was directed to the serpent. But then it
was not a man and the rules of natural justice probably did not apply to it.

To me, the law is clear and unambiguous; all judgments, even foreign judgments of a
country which permit condemnation behind the back of a man, when repugnant to this
rule of natural justice, cannot be enforced in Ghana. Where, however, a man has been
given the opportunity to appear and answer charges against him, and does not avail
himself of the opportunity, he cannot be heard to plead a breach of this rule.”

He held futher;

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 “In my judgment, an act or decision consequential upon a contravention of the audi
alteram partem rule may be restrained by prohibition or an injunction or set aside by
certiorari.

By far the most persuasive argument pressed upon me by the defendants is that the
courts are ill-suited for proceedings of this nature. But where the principles of natural
justice are breached, there is no forum superior to the courts where redress can be
sought.”

Also, in the case of Aboagye v Ghana Commercial Bank (2001-2002), the appellant who was a
senior manager of the Ghana commercial bank answered to queries received from the disciplinary
committee of the bank in connection with some payments made by him without going through due
process. The bank referred the matter to the BNI for further investigations. A report was issued at the
end of the investigations. The disciplinary committee recommended to the executive council after
further investigations without notice or affording the appellant a hearing, that the appellant be warned
and his salary reduced by one notch after he was found for negligence of duty.

Without affording the appellant any further hearing, the executive committee recommended to the
board of the bank that the appellant be warned of his negligence and be reduced by four notches of his
grade. The board also, not affording the appellant any further hearing, dismissed the appellant for
gross misconduct. A petition by the appellant to the board was refused.

The appellant sued in the high court, inter alia, damages for unlawful dismissal of which his claim was
upheld by the high court. On an appeal to the court of appeal by the defendant bank, the judgement
of the high court was reversed. The plaintiff made a further appeal to the Supreme Court.

The Supreme Court unanimously allowed the appeal. In her judgement, Banford Addo JSC (as she
then was), commenting on the issue of the audi alteram partem (hear the other side) rule held;
“Just as in a civil proceeding, proper service of notice on a defendant is a condition
precedent to fair trial, so also in this case, a proper notice to the plaintiff is sin qua non
to fair hearing of the case against him. If this is neglected to be done, a final decision will
be declared a nullity. . . The rules of fair trial include the audi alteram partem rule,
which implies that it is the authority exercising disciplinary power which ought to afford
the plaintiff the opportunity of being heard and he should be informed of the charges

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 and the date and the place of trial. . . . furthermore, a query is not the same thing as a
disciplinary charge or notice of an ongoing disciplinary proceedings”

RULE 2 : The rule against bias (nemo judex in causa sua)

This rule simply means that, a person sitting to decide a dispute should be independent, neutral and
what is more important, he should not have any interest, however slight it may be, in the outcome of
the case. The following factors may be taken into account in decided whether there is a real likelihood
of bias by the person sitting on the matter;
 Where one of the parties is a very close relative and is related by blood to the judge
 Very close friend
 Bitter enemies

Examples;
A and B appear before a judge in a divorce petition.B, the woman is not related to the judge but when
the petition is granted, B will marry C, a friend of the judge.

A and B are fighting over a company and the case goes before the High Court and the High Court
Judge has bought shares in the company, there is a real likelihood of bias.

A party to an action should raise an objection to a particular Judge or Magistrate hearing a case where
he has evidence that there is likely to be bias.

Case: Akosua Bedaabuo v Yaa Hima (1948-51) DC Land 232

In this case, there was a land dispute between two women, A and B which was held by a panel of five
members which gave judgement for B, the defendant. After the judgement was given, the president of
the panel married B, the defendant.A appealed against the judgement. The court which heard the
appeal ordered that, a different panel should hear the matter again because the court was of the view
that there was a real likelihood of bias.

In the case of Saawa v Dumah (1991) 1 GLR 452, the defendant-applicant, a queen mother,
allegedly insulted the plaintiff - respondent at Cape Coast and was sued in the District Court Grade II,
Ajumako. The district magistrate referred the case to one E, a chief, for an amicable settlement out of

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court. That failed and the case was returned to the court. When the applicant appeared before the
district magistrate, he insulted her and made derogatory remarks about her position as a queenmother.
The applicant in the instant application to the High Court sought an order to transfer the case to the
District Court, Grade II, Cape Coast or any other court in Cape Coast for hearing and determination on
the ground of bias. In an affidavit in support of the application, the applicant also objected to the venue
because the cause of action arose in Cape Coast and not at Ajumako. The respondent in an affidavit in
opposition, maintained that the court at Ajumako had the same jurisdiction as the one in Cape Coast
and that the applicant's affidavit had no weight with regard to the conduct of the magistrate and ought
not be entertained by the court.

In granting the application for transfer, Dove J, held;

“I accept the applicant's version of what happened on 27 November 1986 at the District
Court, Grade II, Ajumako. The question is, does the magistrate's conduct amount to
bias?

Bias has been said to be prejudice and in a judicial capacity could mean deciding a
matter without reference to the evidence. A judge or magistrate is entitled to promote
reconciliation between the parties before him, it is not his function to force them to
settle their differences. The magistrate's conduct as set out in paragraph (10) of the
applicant's affidavit gives the impression that he had already made up his mind about
the liability of the applicant for the claim made against her. In these circumstances, I
do not see how he can adjudicate with an open mind.”

Cases: rule against bias

 Republic v Constitutional Committee (1968) GLR 1050
 Quist v Kwarteng (1961) GLR 605
 Sasu v Amua Sakyi (1987-88) 2 GLR 221
 Interim Executive Committee of Apostolic Church v Interim Executive Council (1984-86)
2 GLR 118
 Akayie v Ediye (1977) 2 GLR 70
 Budu v Caeser (1961) GLR 176
 Mbrah v Johnson (1973) 2 GLR 213
 Amadu v Mohammed (2007-2008) 1 SC GLR 58

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 Republic v Asokore Traditional Council (1976) 2 GLR 231
 Republic v Asankare Traditional Council (1989-90) 2 GLR 592
 In re Amponsah (1960) GLR 140
 Republic v High Court, Kumasi (2005-2006) SC GLR 312
 Sallah v Attorney General (1970)
 Republic v Akuapim Traditional Council (1975) 2 GLR 362
 Republic v Numapaw (1997-98) 2 GLR 368
 Agyekum v Asakum Engineering (1992) 2 GLR 635
 Abass v The Republic (1997-98) 1 GLR 708
 Republic v Adrie (1987-88) 1 GLR 624
 Addai v Anane (1973) 1 GLR 144

Cases: hear the other side

 Republic v Peprah (1997-98) 1 GLR 1011
 Boye doe v Tei and others (1997-98) 1 GLR 997
 Republic v High Court, Denu (2003-2004) SC GLR 907
 Awuni v WAEC (2003-2004) SC GLR 471
 Laguda v Ghana Commercial Bank (2005-2006) SC GLR 388
 Republic v Attorney General (1982-83) GLR 311
 Republic v Central Disciplinary Committee (1973) 2 GLR 299
 Republic v Frimpong (1973) 2 GLR 459
 Aidoo v Commissioner of Police (1964) GLR 653
 Republic v High Court, Bolgatanga. Ex parte Hawa Yakubu (2001-2002) SC GLR 53
 Kobeah v Tema Oil Refinery (2003-2004) 2 GLR 1033
 Agyekum v The Republic (1974) 2 GLR 398
 Republic v Half Assini District Court (1968) GLR 780
 Republic v Assua Ex parte Bluwey (1973) 2 GLR 283
 Republic v Keta District Magistrate (1971) 2 GLR 459
 Air liquid v Anim (1991) 1 GLR 460
 Akunor v Okan (1977) 1 GLR 173
 Mensah v Issah (1979) 1 GLR 424

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QUESTION ON NATURAL JUSTICE
 Basabasa and his wife, Shariatu has been married for so many years. They contributed money
and bought a house in Kumasi. Sometime in 2007, the marriage broke down beyond
reconciliation and Basabasa filed a petition in the high court, Kumasi, for the following reliefs.
 A dissolution of the marriage.
 A declaration that, he Basabasa should be declared the owner of the house.

During the hearing of the case, Basabasa’s witnesses refused to give evidence in support of his
case. Shariatu called only one witness. On 31 october, 2009 the high court judge Shadey, who
is Shariatu’s identical twin sister gave her judgement as follows;

By court
“I have carefully examined the evidence of the parties. I direct that the house be sold by the
registrar of the court. From the evidence, the two parties could not tell how much each of them
contributed. I direct the registrar of this court to share the money equally to the two parties”

Basabasa has come to see you to appeal to the Court of Appeal against the judgement of the
High Court. According to Basabasa, there was a breach of the two rules of natural justice. Was
there any breach of the two rules of natural justice? Give very good reasons for your answer.
Illustrate your answer with decided cases.

 Mensah and Yaa Dufie were married under customary law in January 2006. In September
2007, they each contributed 20,000 Ghana Cedis and bought their matrimonial home in
Kumasi. In January 2008 the marriage broke down beyond reconciliation. Mensah made a
formal complaint to Nana Kwaku Basabasa, Yaa Dufie’s senior brother and Head of Family.
A customary arbitration was held during which Mensah and Yaa Dufie gave evidence and
called withnesses in support of their case. Nana Kwaku Basabasa gave an award to the effect
that since he was dissolving the marriage, the house should be sold and the proceeds shared
equally between Mensah and Yaa Dufie. A few days after the customary arbitration, Mensah
issued a writ of summons in the High Court, Kumasi against Nana Kwaku Basabasa and Yaa
Dufie asking for the relief-:

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 “a declaration that the customary arbitration held by Nana Kwaku Basabasa and Yaa Dufie in
his home is null and void as there was a breach of rules of natural justice” mensah’s solicitor,
Mrs Achiaa Bonsu in a detailed statement of claim states that there was real likelihood of bias
by Nana Kwaku Basabasa as he is the senior brother of Madam Yaa Dufie. Bring out the main
issues posed by this problem and resolve them with the help of decided cases. Give reasons for
your answer
Pas question May, 2008

CUSTOMERY LAW

Customary law means a rule or body of rules or established usage which regulates a particular
traditional or indigenous society or ethnic group in Ghana before the introduction of the English Legal
System in July, 1876. See also article 11(3) of the 1992 constitution of Ghana for a definition of
customary law.

There is a serious debate about how the courts should treat customary law whenever parties come
before them and rely on customary law and ask the court to enforce that customary law.

POSITION 1

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Some judges lawyers and textbook writers of customary law are of the view that, the main function of
the court is to take evidence from the parties relying on customary law and then go ahead to say that, it
is not the duty of the court to criticize the customary law of any ethnic group or to reform it or to refuse
to enforce it because a particular judge thinks the customary law is barbaric or out of date. Those who
take this position are of the view that, it is the people practicing a particular custom who can decide to
abolish it or to modify it but not the courts.

POSITION 2

There are other judges, legal scholar and textbook writers who contend that Ghana has undergone
radical and fundamental development politically, socially, economically, and the human right issues
are becoming very important. Those who hold this view say that, just as Ghana has developed and
become modern, customary law should modernise itself. Therefore the courts should not enforce
customary law rules that are out of date, lead to inhuman treatment or that violate the dignity or
fundermental human right of people. They add that, in appropriate situations, the courts should declare
a particular custom null, void and non enforceable. They conclude that, if the courts take the lead in
modernising customary law, then the people practising outdated custom will also modernise their
custom.

POSITION 3 (The constitution)

The 1992 constitution of Ghana supports the second school. Article 39(1) and article 272(c) of the
constitution calls on the national house of chiefs “to undertake an evolution of traditional customs and
usages with the view to eliminate those customs that are outmoded and socially harmful. The
criminal code amendment law, 1984, barns customary law practices relating to funerals that are very
cruel to bereaved spouses. The criminal code amendment act, Act 484, has made female genital
mutilation a criminal offence punishable by a term of imprisonment not below three years. Section 14
of the children’s act, 1998, Act 560, has made forced marriages a criminal offence. The criminal code
amendment act, Act 554, has banned the trokosi system in some parts of the Volta region with a
minimum sentence of 3 years for those who practice it. The most radical change to customary law is
the Interstate Succession Law (PNDC Law 111) which has completely abolished the matrilineal
system of inheritance to property.

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 LEGAL AID

INTRODUCTION

Article 17 of the constitution provides that “all persons shall be equal before the law”. One of the
meanings of this maxim is that every person should have equal access to the courts of law anytime his
rights have been infringed and he needs the assistance of the courts to obtain certain remedies or
reliefs. However, litigation in the court is very expensive.

 Whoever files a Writ of Summons have to pay filing fees and these filing fees are always
being revised upwards
 Where the litigants decide to engage the services of counsel, he will have to pay the
professional fees of the lawyer which can be quite expensive

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 Where the lawyer resides in an area different from where the court is situated, the litigant have
to pay the transport fees and hotel bills of the lawyer. For example, the Supreme Court is
located in Accra and lawyers and litigants have to travel there.

The laws of Ghana realized that there are some persons who have very good cases and yet are very
poor and cannot afford even the filing fees much more the fees for a lawyer and that is why there is the
need for Legal Aid

Legal aid simply means that the litigant, because of poverty, cannot afford money and there is
therefore the need for the state to pay the fees on his behalf to enable him pursue his case in court

There are various methods for giving legal aid to persons who come before the courts. The first
method is;

1. Legal Aid by way of Assigned Brief.

The Courts Act 1993, Act 453 section 114 has given power to the courts to assign briefs to
lawyers to conduct cases on behalf of litigants. The following conditions have to be satisfied;
 There is a civil case pending In a particular court and the parties have appeared before
the court
 The courts have looked at all the documents that has been filed
 One of the parties in the action or even both parties are not represented by lawyers
 The court is of the view that it is in the interest of justice for a lawyer to help either
the plaintiff or the defendant to conduct the case
 However, the person who wants the lawyer “is financially unable” to obtain the
services of a lawyer.
 The court will assign a particular lawyer by name to the person who needs the services
 After the lawyer has finished handling the matter, his legal fees will be paid by the
state out of the consolidated fund. See section 114, sub-section 5

2. The Legal Aid Scheme Act, 1997, Act 542, is the main law for giving
Legal Aid. Section 2, sub-section 2 provides “A person shall be

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 entitled to Legal Aid if he earns the government’s minimum wage or
less”. As at January 2010, the government’s minimum wage has been fixed at GH 3.30p.
However, for civil cases, a person is entitled to Legal Aid for the following cases only;

 Landlord and tenant cases

 Insurance, that is to say, any person who is claiming insurance from an insurance
company
 Maintenance of children under the Children’s Act, 1998, Act 560
 Interstate succession under PNDC Law 111.

These are the civil cases which entitles a person to Legal Aid under Act 542.However, the
door is not fully closed. Section 2 sub-section 2(b) has given a measure of discretion to the
legal aid board to give a person legal aid in other civil matters “if in the opinion of the board
the person requires legal aid”.

Legal aid may be defined as free or inexpensive legal services provided to those people who
for financial reasons cannot afford to pay for the services of a lawyer.

Section 2; sub-section 3 of Act 542 gives the types of legal services. In the case of Kpekoro and
another v the Republic (1980) GLR 580,the appellants and other persons were seen by two
policemen at Hamile, a town outside the Ghana-Upper Volta border, pushing a truck along a bush-path
towards Upper Volta. On being challenged they all ran away and left the truck which on inspection,
was found to contain fifteen bags of fertilizer meant for farmers in Ghana. Upon police investigation,
the appellants were arrested and on the advice of the state attorney were arraigned before the Circuit
Court, Wa, on two counts of conspiracy to smuggle contrary to the Criminal Code and the Subversion
Decree, 1972 as amended by the Subversion (Amendment) Decree, 1977 (S.M.C.D. 94), and
subversion contrary to N.R.C.D. 90. After the charges had been explained to the illiterate appellants,
who were not represented by counsel in the vernacular, they pleaded guilty with explanation. They
said the bags of fertilizer were given to them by the agricultural officer in charge of Hamile to be taken
across the border to a farmer in the Upper Volta to use on his farm after he had assured them that it
was perfectly legal and that he had the authority to do so. The trial judge held that it was clear from
the explanations of the appellants that they knew it was illegal to export fertilizer out of the country.
He therefore convicted them on their pleas and sentenced them to fifteen years imprisonment each

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with hard labour. On appeal to the High Court against both their convictions and sentences the senior
state attorney conceded that he could not support the convictions because the explanations were
inconsistent with the guilty pleas. He however submitted that a new trial should be ordered. Counsel
for the appellants, appointed by the court by way of legal aid however, opposed a re-trial on the
ground that the appellants had already served seven and a half months of their sentences. On the issue
whether, inter alia, the circuit court was the proper forum for the trial of the offences with which the
appellants were charged,

On allowing the appeal, Taylor J, in his obiter wrote;

“Be that as it may, it seems to me that in order to safeguard the liberty of the citizens in
whose interests the laws of the Republic are promulgated, it is essential that indigent and
illiterate persons, ignorant of the legal process and accused of serious crimes carrying
harsh penalties, are not left to their own devices but are assigned learned counsel by way
of legal aid. The Courts Act . . . makes adequate and ample provision for this
contingency even in the lower hierarchy of our judiciary and it is about time circuit
court judges and district court magistrates turned their attention to these provisions in
order to avoid unnecessary injustices . . . in their operation of the criminal law. . . In
this case, I assigned a lawyer to the appellants at this appeal and a senior state attorney
from the law office represented the [p.589] Republic”

LEGAL AID AND THE CONSTITUTION

Section 2 of Act 542 and Article 294 provides that any person who takes a constitutional matter to
court is entitled to Legal Aid “if he has reasonable grounds for doing so”.

THE JUVENILE JUSTICE ACT

Section 22 of the juvenile justice Act, act 653 provides that where a juvenile is put before court the
court has a duty to inform him that he has a right to be given legal aid and he then have to make the
decision

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WHISTLE BLOWERS ACT, ACT 720

Section 16 of Act 720 provides that, any person who exposes wrong doing in his place of work is
entitled to legal aid. Such a person is known as a whistle blower

CHALLENGES FACED BY THE LEGAL AID BOARD

 Financial constraints which results in inadequate logistics and low incentives for the lawvers
working with the board. This explains why so many lawyers are unwilling to voluntarily join
the board.

 Under the scheme, section 2, sub-section 2(b) gives discretionary powers to the board to
assign lawyers “if in the opinion of the Board the person requires legal aid”. This can be
subject to abuse
 High illiteracy rate of the general populace

 Low publicity of the scheme

 Section 24(4) provides, “An applicant whose application is disapproved by the Selection
Committee may appeal to the Regional Committee and where the applicant is not satisfied
with the decision of the Regional Committee, he may appeal to the Board”. This procedure is
too cumbersome for the very individuals the scheme was made to serve.

QUESTION
“ Be as it may, it seems to me that in other to safeguard the liberty of the citizen in whose interest the
laws are promulgated, it is essential that the indigents and illiterate persons, ignorant of the legal
process and accused of serious crimes carrying harsh penalties, are not left to their own devices but are
assigned learned counsel by way of legal aid”. By Justice Taylor in Kpekoro and others v the Republic
(1980), GLR 580.
What factors will be taken into account by the Legal Aid Board set up under the Legal Aid Scheme
Act 1997, Act 542 in deciding to give Legal Aid to a person accused of armed robbery or murder?
Illustrate your answer with decided cases (if any)

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 Past question, 2006
Your member of parliament(who is a lawyer) has asked you to submit proposals to enable parliament
to enact a new Legal Aid Scheme Law to replace the Legal Aid Scheme Act, 1997 (Act 542).

Write out the proposals you will submit to your Member of Parliament giving very good reasons for
the proposals you make. Illustrate your answer with decided cases (if any)
Past question April/May, 2010

JUDICIAL PERSONEL; APPOINTMENT AND TENURE OF OFFICE

INTRODUCTION

Judges and magistrates need adequate security to be able to perform their function impartially and to
administer justice without fear or favour. The constitution gives them security in three main ways;

1. APPOINTMENTS

Judges and magistrates are appointed by the judicial council which has 17 members. Supreme
Court judges are appointed by the president in consultation with the judicial council, the
council of state, and with approval of parliament. This is to ensure that appointments are based
mainly on merit, qualification and experience and as much as possible to prevent political
interferance so that political affiliation is not taken into account

2. REMOVAL OR DISMISSAL FROM OFFICE

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 The 1992 constitution has very strict rules of procedure that are to be followed before a judge
or magistrate can be dismissed. This is to ensure that allegations levelled against judges or
magistrates are thoroughly investigated and the persons, being accused, given the opportunity
to state their side of the story before any decision can be taken.

3. RETIREMENT

The 1992 constitution has spelt out specific age limits for judges to go on voluntary retirement
and compulsory retirement and politicians cannot do anything about it. For example, Supreme
court-voluntary retirement 65 years, compulsory retirement, 70 years; High court-
voluntary retirement 60 years, compulsory retirement, 65 years.

Judges of the high court, the court of appeal and the Supreme Court have been given greater
security by article 155 of the constitution when they go on retirement. To qualify for
retirement on the full salary;
 One have to worked for ten continuous years as a judge or
 One should have worked for twenty years in the public service. Out of these twenty
years, he must have served five years as a judge.

In the case of Yakubu v Attorney –General (1993-94) 1 GLR 307, while the plaintiff was a
Substantive circuit court judge, the plaintiff was appointed an Acting High Court judge in July 1986.
In May 1991 he was made a substantive Court judge. Following his Compulsory retirement from the
Judicial in March 1993 under the provisions of the Constitution, 1992 the Chief Justice retrieved from
him the bungalow and the car assigned to him for his personal use while he was a serving judge. The
Controller and Accountant-General also computed his retiring award as he would for any public
officer. Aggrieved by those decisions, the plaintiff brought an action before the Supreme Court under
article 130(1) of the Constitution, 1992 seeking a declaration that he was entitled to be paid a pension
equal to the salary he was entitled to as a serving judge of the superior court; the computation of his
gratuity should be based on his consolidated salary at the time he went on retirement; his pension
should be enhanced any time there were changes and increases in the salaries of sitting justices of the
superior court; and he was entitled to enjoy all the allowances and facilities granted justices of the
superior court under 71(3) and 155(2) of the Constitution, 1992. In support of his case, the plaintiff
contended that he had worked for a total of 30 years within the public service, and that since under

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regulation 20 of the Schedule to the Pensions Ordinance, Cap 30 (1951 Rev) the four years and two
months he had acted as a High Court judge should be added to the two years and six months he had
served as a substantive judge of the High Court, he had thereby served as a justice of the superior court
for a continuous period of six years and eight months and therefore he was qualified under article
155(1)(b) of the Constitution, 1992 to all the declarations he was seeking.

In dismissing the plaintiff’s claim, the Supreme Court, Per Ampiah JSC, held;

“The plaintiff not having done a continuous service of ten years as a justice of the
superior court is not entitled to the payment of pension equal to the salary payable for
the time being to a serving justice of the superior court under article 155(1)(a) of the
Constitution, 1992. He can only make that claim if he could bring himself under article
155(1) (b) of the Constitution, 1992.

The plaintiff claims to have been in the public service for a period of 30 years. This has
not been challenged by the defendants. The first part of article 155(1) (b) of the
Constitution, 1992 is therefore satisfied. He was appointed a substantive justice of the
superior court, i.e. a justice of the High Court on 18 September 1990. Until he retired in
March 1993 he had served as a justice of the superior court for two years and six
months. The plaintiff acted as a justice of the superior court from 8 July

1986 to 18 September 1990; a period of four years and two months. For purposes of
computing the period of "five continuous years" required under article 155(1)(b) of the
Constitution, 1992 the plaintiff has contended that the period for which he "acted" as a
justice of the superior court be counted. If this is one, he would have served as a justice
of the superior court for a continuous period of six years and eight months and this
would qualify him for his entitlement under article 155(1) (b) of the Constitution, 1992.”

He held further

“There is no evidence that the plaintiff when acting was acting for a holder of that office.
In calculating the period of his public service, i.e. the 30 years, the plaintiff took into
account the period he was acting, i.e. four years and two months. Since the period of
acting has thus been taken into account for purposes of his pension or gratuity, that
acting period cannot further be counted for purposes of qualifying under article 155(1)

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 (b) of the Constitution, 1992. The Constitution, 1992 is clear and unambiguous. The
plaintiff must have served for twenty years or more in the public service, five continuous
years of which must be in the superior court of judicature; the plaintiff served for only
two years and six months as a justice of the High Court. His claim (a) therefore must fail
and it is accordingly dismissed.”

Cases
 Wuaku v Attorney-General (1993-94) 2 GLR 393
 Nartey v Attorney-General (1996-97) SC GLR 63
 Agbevor v Attorney-General (2000) SC GLR 403

BASIC QUALIFICATION FOR APPOINTMENTS

A judge or magistrate must meet a minimum number of years standing as a lawyer in other to enable
him to be appointed unto the bench. For example, supreme court, not less than 15 years; court of
appeal, 12 years; high court, 10 years; circuit court, 5 years.
Another fundermental requirement that all judges and magistrates have to meet is “he should be a
person of high moral character and proven integrity”.

HIGH MORAL CHARACTER AND PROVEN INTEGRITY

High Moral Character

Morality is a particular society’s guidelines about what is right and what is wrong. These guidelines
are influenced by the religion of the people, the culture and tradition of the people, the history of the
people and education.

The makers of the 1992 constitution singles out the judiciary and insisted that all judges and
magistrates should be of high moral character and proven integrity even though the constitution does
not define this phrase. A judge or magistrate is said to be of high moral character when the following
attributes are available;
 Honesty
 Truthfulness

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 Very independent and impartial
 He cannot be easily influenced or corrupted

These moral qualities are very important and fundermental if a judge or magistrate is to administer
justice. Part of the oath taken by judges and magistrates provides “I will truly and faithfully perform
the functions of my office without fear or favour, affection or ill-will.”

Proven Integrity
A judge or magistrate may claim that he is a person of high moral character but how does society
know that these qualities are found in his character and what is more, that his life is a practical
demonstration of these qualities;
 Persons who work with him will bear practical testimony that in fact he is a person of high
moral character and proven integrity
 His work as a judge or magistrate, particularly, his judgements will also bear testimony
 Litigants, that is to say, people who have cases in his court will also bear testimonies to these
qualities.
HOW DOES THE CONSTITUTION DEFINE THESE TERMS, WHAT ARE THE
INGREDIENTS AND WHO DETERMINES WHO A PERSON OF HIGH MORAL
CHARACTER AND PROVEN INTEGRITY IS

It is significant to stress that this phrase has not been defined in the constitution. The question to ask
is, what the intention of the makers of the constitution was when they put in this requirement.

Look at the case of Ghana Bar Association v Attorney General and Another (1995-96) 1 GLR
598. The facts of this case are that, on 15 February 1995 the President of the Republic of Ghana
nominated Justice I K Abban, a justice of the Supreme Court for appointment as Chief Justice after
due consultation with the Council of State. The nomination was approved by Parliament under a
certificate of urgency on 21 February 1995. Subsequently, the plaintiff, the Ghana Bar Association,
claiming that the appointment was contrary to the provisions of article 128(4) of the Constitution,
1992 because Justice I K Abban was not a person of high moral character and proven integrity and
therefore not qualified for appointment as a justice of the Supreme Court and consequently as Chief
Justice, invoked the original jurisdiction of the Supreme Court under article 2(b) of the Constitution,
1992 and sought against the Attorney-General as the first defendant and Justice I K Abban as the

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second defendant a declaration that by articles 2(1)(a) and (b), 91(1) and (2), 144(1) and 128(4) of the
Constitution, 1992 the President should not have nominated and appointed Justice I K Abban Chief
Justice since he was not a person "of high moral character and proven integrity"

Secondly, a declaration that the appointment of Justice I K Abban as Chief Justice by the President as
well as the advice by the Council of State and the approval by Parliament of his nomination were each
made in contravention of articles 91(1) and (2) and 128(4) of the Constitution, 1992 and were
therefore null and void; an injunction restraining Justice I K Abban from acting or purporting to act in
the office of Chief Justice of Ghana; and a declaration that the warrant of appointment of Justice I K
Abban was null and void and he should deliver it up to the Supreme Court for cancellation.

The defendants denied the averments of the plaintiff and then raised a preliminary objection to the
plaintiff's case on the ground that by virtue of the doctrine of separation of powers enshrined in the
Constitution, 1992, the appointment of Justice I K Abban as the Chief Justice pursuant to article
144(1) and (5) of the Constitution, 1992 by the President was a non-justiciable political question
specifically committed to the Council of State, Parliament and the President, i.e. the executive and the
legislature.
The plaintiff however submitted that the principle of non-justiciable political question was not
applicable under the Constitution, 1992 because by the combined effect of articles 125(3) and 259(8)
of the Constitution, 1992 the Supreme Court had the final judicial power to determine whether any
person had properly performed his duties under the Constitution, 1992.

In upholding the preliminary objection and dismissing the action, the Supreme Court, per Kpegah JSC,
as he then was, held;

“To the first question, whether the appointment of the Chief Justice is constitutionally
committed to other agencies of government, I will answer in the affirmative. By the
provisions of article 144(1) of the Constitution, 1992 this function is specifically
committed to both the executive and the legislature;

If the President, in consultation with the Council of State and with the approval of
Parliament makes an appointment in compliance with the Constitution, 1992, his
authority, in the words of Justice Jackson, "is at its maximum." Because in such
circumstances, his authority includes all that he possess under the Constitution, 1992

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 plus all that Parliament, the people's direct representatives, has. When the President gets
the support of Parliament in the discharge of a constitutional duty, he can in such
circumstance be described not only as close to personifying the sovereign people of
Ghana, but also doing their will.

The appointment of the Chief Justice is vested in the President, the Council of State and
Parliament, ipso facto the determination of who is a person "of high moral character
and proven integrity." . . . . . It is important that we show decent respect for the wisdom,
integrity and patriotism of the President and Parliament.

The Constitution, 1992 is silent on who "a man of high moral character and proven
integrity” is and the factors to be taken into account in finding such a person for
appointment as the Chief Justice of Ghana.

The framers of the Constitution, 1992 have deliberately left these matters to the good
sense of the President, the Council of State, and Parliament which personifies the
sovereign people of Ghana, being their direct representatives.”

QUESTION
“The 1992 constitution of Ghana requires that judges of the Supreme Court be of high moral character
and proven integrity. The demand for these qualities is clearly in order. But in certain cases, there can
be bitter differences of opinion as to whether a particular appointee possesses them”. Discuss this
statement with the help of the judgement of the supreme court in the case of Ghana Bar Association v
The Attorney General [1995-96] 1 GLR 593 popularly called the Justice Abban case.
Past question May, 2008

Briefly outline the qualification for appointment of judges to the Supreme Court of Ghana as well as
he process thereto. How adequate do you consider them to be? Illustrate your answer with decided
cases.
Past question April/May, 2010

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 LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION
Litigation may be defined as the use of the courts by an aggrieved person to settle a legal disagreement
or problem or conflict with another person who he believes has infringed his legal rights.

A litigant is a person who is actually named as a party to an action that is actually pending in the
courts, either as a plaintiff or defendant

Ghana and all former British colonies are using the adversarial system of administration of justice.
This system has the following essential elements;
 There is an adversary or an opponent, that is to say, there are two sides to the dispute and each
of them sees each other as an opponent fighting to win the case in court by obtaining
judgement in his favour. Each side produces the best evidence; oral evidence or documentary
evidence or both in support of his case while at the same time doing his best to destroy or
weaken the case of the opponent

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 As a general rule, litigants do not have to engage a lawyer, however, lawyers are professionals
trained in substantive law, the law of evidence and the rules of procedure and they help the
parties to present their cases to the court

 Every court has its own rules of procedure which cannot be easily understood by non-lawyers,
that is why the services of lawyers are important. The lawyer’s duty is to follow the rules of
procedure correctly, so that he will present his client’s case very well so as to obtain
judgement.

 There are very strict technical rules of procedure and a case may be lost on
a mere technicality because the lawyer did not do his homework well and this can lead to
frustration and bitterness

 Because of a very large illiterate population it takes a very long time for a witness to complete
his evidence and in most cases witnesses do not know what is relevant and what is not
relevant. This is one of the causes of delay in the disposal of cases.

Over the years, there has been persistent complains from litigants, lawyers and judges that;

 The courts are heavily congested with a backlog of cases that will take many years to clear

 That litigation is very expensive

 Litigations sometimes causes bitterness particularly, among family members and makes
reconciliation very difficult. Litigation also destroys business relationships and may end up
destroying the business itself.

 There are several instances in which the subject matter of the litigation is either destroyed
completely or depreciates in value thereby increasing the cost of the project. This arises when
the court grants an injunction restraining the parties from dealing with the subject matter and
this is very common in land cases.

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 Court proceedings are held in public and sometimes may be reported by the press which may
have serious consequences for family members and make reconciliation very difficult if not
impossible.

The courts are beginning to use what has become known as Alternative Dispute Resolution (ADR),
that is to say, giving the parties the opportunities to settle their disputes outside the court and report the
terms of settlement to the court. The court will then use the terms of the settlement as the basis of
judgement known as “Consent Judgement” because the terms are signed by the parties of the dispute

QUESTION
What are the advantages and disadvantages of litigation in the courts of Ghana? Is the Alternative
Dispute Resolution (ADR) the solution to the problem of delay in the disposal of civil cases by the
courts? Give very good reasons for your answer
Past question April/May, 2010

NOTES

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 LAW IN SOCIAL CONTEXT
By Tawiah Modibo Ocran

NATURE and FUNCTIONS of LAW in SOCIETY:

Every society, except, perhaps those that are anarchic, finds it necessary to regulate the behavior of its
members:- to make them refrain from certain acts which, for some reasons, are considered detrimental
to society, and to make them perform other acts which, for other reasons, are considered useful to that
society. In other words, society must impose certain duties and confer certain rights on its members
conduct through rules of conduct. These rules lay down what individuals or groups can do or should
not do, and how people should set about those acts which they are permitted to do. This function of
regulation is served, or is capable of being served, by more than one social technique. Some of these
social rules may be created and obeyed through sheer habit or usage. In other words, rules of tradition

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constitute one form of social control or ordering. Other forms of social control are rules of religion or
morality and sheer power or might. Yet another form of control is law.
Review
Forms of social control/Norms of social control
- Habit/usage (rules of tradition)
- Rules of religion (10 commandments)
- Power/might
- Law

DEFINITION OF LAW

The concern of a definition of law is to attempt to delineate a “legal realm” of social control. Put
simply, the task is to state those characteristics that distinguish law as a specie of norms from other
social norms. The debate is usually conducted around the theme, “what is a law?” or “what are laws?

By asking the question “what is a law?” we are not concerned with such themes as the relationship
between law and justice, law and social change, or the impact of history, custom and environment on
the content of laws. We are not being called upon to define law in terms of its purposes or functions in
society. What is a law is a different question from the question “what are or what should be the
functions of law?” In other words the values and other factors that have influenced or should
influence the development of a body of laws is not the concern of the definition of law.

Law is usually understood to be a general rule of conduct which is laid down by the legislature and
must be obeyed. The issue as to what is the meaning of “law” can be looked at from different
perspectives; Natural law, the Historical school of jurisprudence, sociological jurisprudence and
positivism.

NATURAL LAW SCHOOL:

The definition of law in terms of its desired purposes is the bane of the Natural law school. According
to this school, law necessarily serves one set of social idea or other. However, the danger in defining
laws in terms of its purpose is that we smuggle into the concept of law our myriad and divergent
ideological, religious and ethnocentric prejudices. Natural law advocates like St Augustine, St.
Thomas Aquinas, and a few others have stated categorically that “what is not just cannot be law”.

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They introduce morality into the concept of law. Thus, laws passed by the Nazi government during
the 2nd WW will not pass the definition of law.

One basic weakness of natural law as a guide to policy is its central notion that law should be viewed
as a branch of some universal morality. But we know as a fact that a single, universal, man-made code
of morality that has meaning and authority in every corner of the world and in every epoch would be
hard to come by. (See the debate on universalism v. cultural relativism as it pertains to human rights).
Also take the issue of abortion, prostitution, homosexuality etc. The natural law concept is flowed in
many respects and does not define wholly “what is law”.

HISTORICAL SCHOOL:

This school of thought was formulated by the German Von Savigny. The concept asserts that there
exists an organic connection between law and the nature and character of people. According to this
concept, legal rules and doctrines are derived from their history, their environmental conditions and
their common consciousness. Accordingly, customary law is the truly living law. Legislation is both
unimportant and undesirable. It is acceptable only in so far as it is declaratory of the common
consciousness of the people. Thus, social evolution impacts greatly on the legal process.

The assumption that in all areas of life and on all issues a people have a common consciousness which
ought to guide lawmaking is completely untenable. Common consciousness derives from experience
i.e. from the past. Therefore, if what is at issue in a given community is an entirely new problem or
sphere of activity, the people may well have no consciousness about it in the first place. At any rate,
what this school is concerned about is not the definition of what is law, but rather, it concerns itself
with the sources of the content of laws rather than with the definition of laws.

SOCIOLOGICAL JURISPRUDENCE:

Again, like the historical school, sociological jurisprudence is not concerned with a definition of law.
Most of the leading exponents of this school of jurisprudence (Eugene Ehrich) actually claim that they
merely do descriptive sociology of law i.e. the impact of social phenomena on the evolution of legal
rules and legal systems. The major exponents such as Max Weber and Karl Renner have emphasized
on the reciprocal interaction of social forces and legal rules.Roscoe pound’s “jurisprudence of

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interests” is primarily concerned with the functions of law as a social institution to satisfy social
wants, and not with the definition of law.

To the proper task of the definition of law, only the positivist and Realist schools, and a few
formulations of sociological jurisprudence address themselves.

Eugene Ehrilich of the sociological school sees law as a social fact. Laws are any combination of
rules that actually serve to regulate the behavior of members of a particular society, whether or not
these rules emanate from the central authorities or have official sanctions attached to them.

There is one point in the definition of law that we cannot escape. Either one proposes to regard all
accepted rules of conduct as “laws” (in which case there is no point in distinguishing laws from any
other social norms), or one applies the term “laws” only to those rules of conduct supported by a
certain pre-eminent centralized authority.
1. Law = All accepted rules of conduct.
2. Law = rules of conduct supported by the centralized authority.

THE RELIST SCHOOL: The realist school is the next step in the sociological approach to law. As
formulated by both its American and Scandinavian advocates, legal realism more or less identifies law
with the activity of judges or of all officials concerned with adjudication. The decision which is
ultimately pronounced as law flows not only from the statue or similar rule pursuant to which
adjudicating official is supposed to have acted, but also from the various social, economic, political
and other forces acting upon the official. Oliver Wendes Holmes summed up the whole theory in his
famous sentence; “the prophecies of what the courts will do infact, and nothing more
pretentious, are what I mean by the law” (Holmes, “the path of the law”, - Harvard Law Review
vol. 10, 1897)
The realists challenge the notion of legal (certainty in the meaning and scope of rules of law) which is
suggested by the positivist approach to law. To say that law is what the courts do or will do is to place
the cart before the horse, for it requires a law to create the courts in the first place. Moreover the
Realists are apt to exaggerate the extent of the discretion that judges have. It is erroneous to talk as if
there are no pre-existing legal limits imposed on judicial creativity – such limits as the various rules
for statutory construction and for the interpretation of contracts, as well as the doctrine of stare decisis.
What the legal system confers on the judges is discretion, not flat.

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THE POSITIVIST SCHOOL:

The positivist school comes closest to meeting the challenge posed for any definition of law. John
Austin, the Pioneer legal positivist since the 19th century, defined law as the command of the
“sovereign” (see John Austin, “the Province of jurisprudence Determined” (1832). The sovereign –
The central notion in his definition is described as a determinate human superior whom the bulk of the
population in a given nation habitually obey but who does not himself habitually obey any higher
power or authority.

One basic problem with Austin’s definition is the narrowness of his notion of “sovereign”. The
sovereign, according to him, must be human. Even interpreting the term in its widest possible sense to
include all the members of a legislative body, we run into problems if we are dealing with a country
with a written constitution, defining the powers and limits of all organs in the country, including those
of the legislature itself. In this case, what we have is not legislative supremacy, but constitutional
supremacy (compare the US system to Britain – Constitutional supremacy v parliamentary
supremacy). Yet, since a constitution cannot be human, we should conclude that there is no sovereign
in that country, and hence, no law. Moreover, Austin’s unlimited “sovereign” would find no place in a
regime of constitutional supremacy.

Another basic dissatisfaction with Austin’s definition lies in his conception of law as commands,
without any reference to the legal authority of the “commander”. This conception does not seem to
provide any explanation as to why such commands are to be obeyed, i.e. why we have an obligation to
obey them. The connection Austin draws between power and obligation of the gunman who orders
someone to do his wish at gunpoint. H. L. A. Hart, another positivist, has remarked that while in such
a case we might say that the threatened individual was “obliged” to obey the gunman, we would
hardly say that he has obligation to obey.

Two leading legal positivists, Hans Kelsen and H. L. A. Hart, have, in their different ways, sought to
remedy some of the basic weaknesses of the positivist definition of law.
Where Austin has viewed the “sovereign” as the ultimate source of law – i.e. as the organ or entity
which gives a body of law its ultimate technical validity – Kelsen substitutes the wide concept of
“Grundnorm” or “basic law” (Hans Kelsen, General theory of law and state)

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Hart, for his part, declines to follow the Austinian idea of basing obligation in law on the mere fact or
threat of coercion. He prefers to rest legal obligation on the existence of an acceptable organ endowed
with the authority to issue binding directives. (The legal thought of Hart and Kelsen has no place in
the juristic implications of military coups for the legal system).

POSTIVIST DEFINITION OF LAW: A rule of law in a society with centralized organs is a rule
that confers rights and imposes duties on its members or on those over whom it has power and
authority, where such rights and duties are recognized as such by the acknowledged central authority
or its delegates, and made obligatory by them. From this definition, it follows that the central organs
concerned must themselves have the legitimate authority to recognize and enforce such a rule. In
contemporary nations, these organs are what we generically call the state: The legislature, the court,
the executive, and the general administrative structure. It also follows from this definition that the
basis for the existence of law is not necessarily to be found in the consent or acceptance of some or all
members of the community, but ultimately, in the declaration of the central authorities. The obligation
imposed on members of the society may stand in relation to the state, an official or private individual,
as in all criminal cases and some civil cases; or it may stand in relation to one private individual and
another, as in most civil claims.
How does one tell whether a rule is regarded as obligatory by the central organ or
not? According to the positivist view this can be determined when the person knows that non-
compliance with the obligation will result in him or her suffering physically, financially or
psychologically by the central organs. Thus, for example, the person who commits murder or who
slanders another may be made to suffer one or a combination of these sanctions; deprivation of life,
property, or personal freedom. Similarly, the person who refuses to comply with the provisions of a
rule of law dealing with the contracting of marriages suffers the consequences of his disobedience
psychologically when the courts refuse to recognize his marriage.

But is the presence of an obligation and the fact or the threat of sanctions in case of its disobedience
normally synonymous, they are not always so; and we should really speak of the “enforcement” of
rules of law”. It is obvious that it is not in all cases that the central authorities can carry out the
punishment in case of breach. Each community is limited in its personnel and financial resources.
Hence, much of the violation of obligations will go unnoticed or deliberately unpunished by the
authorities (e.g. the obligation to wear a seat-belt when driving, child labour, etc). Some of the
culprits may also escape the jurisdiction of the particular nation and take residence in another which

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has no extradition agreement with the culprit’s own state. But such laws do not thereby cease to be
legal; for there is no necessary or immediate logical connection between the validity of a particular
rule of law and its efficacy. It is quite possible, conceptually, to have rules of law to which no
particular sanctions have been attached. For these reasons; a definition of a legally obligatory rule
must go beyond the mere possibility of sanctions. We may therefore simply say with Hart that a rule
of law exists if it has been declared or recognized as valid by the accepted central organs in the
community endowed with the power and authority to regulate human conduct.

When a system of law is characterized in terms of the enforceability of its norms by the organized
coercive instruments of the community, it restricts the origins or sources of legal norms to the central
authority in the given community and thereby unduly dismissed the possibility of such norms
originating “from below”. It is important to underscore the point that other legal norms may have their
origin, not from the central organ but in custom and habits of the community. Others may yet
originate from agreements made between individuals intended to be relied upon (Law of contract).

REVIEW OF POSITIVIST THEORY

In the positivist view, the essence of the law is that it is imposed upon society by a sovereign will (i.e.
law is artificial, with an omnipotent authority issuing downwards). According to the positivist, before
any law can be said to exist, there must be a sovereign from whom they can derive authority. They
claim that law has a posited character; devoid of all ethical considerations such as morals and political
questions, and that the validity of any law or legal system must be seen in this light. They also claim
that their system of approach is analytical because it seeks to find the basic elements or key concepts
of law and uses them to construct a theory of law.

EXAMPLES OF POSITIVIST CONCEPTS

1. AUSTIN: He claimed that the sole source of law is the sovereign who has the right to do what
he likes, and who is habitually obeyed. Austin’s key concept is a command. But this
approach runs into problems because his key is mistaken e.g. there are certain laws such as the
marriage ordinance, which do not have an element of command in it. Secondly it is impossible
to find an absolute “sovereign” in every form of society governed by law.
2. PROF. HART: He argues that law is the system of rules which are in fact observed in a
certain place and at a certain time. He then claimed that there are two rules; primary rules of
behavior and secondary rules of recognition, change and adjudication; and that this will solve

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 Austin’s gap in the absence of the sovereign because he claims that the rules continue even
after the death of the King, President or Queen. Hart’s approach is also weak because the law
does not always continue, especially during a coup d’état.
a. Primary rules of behavior
b. Secondary rules of recognition, change and adjudication.

3 PROF. HANS KELSEN: He says that law consists of a system of NORMS instead of rules,
which are addressed to officials to act. He also says that a NORM is only valid if its course
can be traced to another NORM. Eventually you arrive at the constitution which he called the
BASIC NORM or GRUNDNORM which is yet the foundation of all NORMS which cannot
exist legally, but must be presupposed. The problem with Kelsen’s approach is that, in certain
countries with constitutions, the judges have so much power to interpret the constitution in
their own way that they are even able to limit the power of the legislature.

THE MARXIST THEORY OF LAW AND STATE

The Marxist did not define law. They say that it is an instrument by which one dominant class uses to
coerce another class. When class interests are eradicated, then there will be no law. Since the state
itself emerged out of classes it will wither away after all classes become equal.
THE AMERICAN REALISTS
According to these American jurists, “the prophesies of what the courts will do and nothing more
pretentious is what is meant by the law”. Thus, to the realists school of thought, law is what the
judges say it is, but not what the legislature or the sovereign says. They contend that the judge is
influenced by the schools he attended, the church he belongs to, or even by the family he belongs to
(compare this to the lodge – knights of St. John’s Marchallants etc).

But the realist’s school also falls into the same weakness like other theories of law because it is the
sovereign who appoints the judge; without the sovereign, there will be no judge.

THE NATURAL LAW ADVOCATES

Some jurists are of the view that no posited law has validity if it cannot be traced to natural law. In
other words law is invalid as law unless it is determined by natural law. They contend that natural law
is for the common good, and is binding upon the conscience of the human race because it is just.

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One of the earlier advocates of this doctrine was St. Thomas Aquinas. He says that any exercise of
power that produces unjust laws must be disobeyed. He contends further that moral wrongs that are
socially significant as harmful to others properly concern the law.

In conclusion, one can say there is no simple definition to the question what “law is. What is clear is
that laws are made up of statutes, judicial opinions, administrative regulations, and constitutional
provisions, which are rules for the enforcement and orderly regulation of the society.

THE LEGAL SYSTEM:

The legal system is made up of the various institutions and personalities who deal with the
administration and enforcement of laws in a particular jurisdiction (state). They include Courts,
judges, lawyers, prosecutors and the police.

IS THE LAW VALUE-NEUTRAL OR VALUE-LOADED?

The main difference between the positivists and the naturalist’s boils down to whether law is value-
neutral. Whilst the positivists will assert that this is so, the naturalists will contend that any law that
lacks moral content is no law. When we view law as an instrument of social change, then we can say
that law does have some value – content. Most legal rules, save perhaps the most technical ones, are
value – loaded precepts. They reflect the perceptions, attitudes, values, problems, experiences, tension
and conflicts of society.

On the other hand, law as a technique of social ordering may be said to be value – neutral or “pure”, in
that it can be used to pursue any number of contradictory social objectives: to fulfil or deny “the will
of God”, to secure or deny the ends of “justice”, to build or destroy capitalist or socialist structures etc.
(Example: Nazi Germany-Hitler passed so many laws intended to seek the extermination of the Jews).
The only possible trace of a value-set implicit in this idea is that it presupposes that the problems of
society are better handled in an orderly manner, and according to pre-established procedures and not in
an atmosphere in which everybody is allowed to do what he likes in any manner he chooses. Law
itself being value-neutral, those values that particular groups desire to translate into laws will have to
be fought for and determined in the political arena (e.g. Bills of Rights/human rights). It is a struggle
extrinsic to law as a technique of social ordering.

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When law and laws are viewed in this way, their relevance to the process of economic development
becomes more glaring. It is through laws that the modern state confers formal validity on its actions.
In contemporary nation states, the pursuit of the various processes of economic development including
the new institutions and roles required, will therefore tend to be translated into the framework of law.
All regimes of governments find it necessary or useful to translate their will and wises into diverse
rules of law - statutes, regulations other forms of subsidiary legislations, as well as court rules -
because the authorities realize the need for solving the problems of society in an orderly manner, and
according to established procedures.

Even in situations of a revolution where power is seized illegally i.e. carried out without recourse to
law, immediately it succeeds, a law will be passed to legalize it. A study of the activities of the
Bolshevik revolutionaries in Russia, for example, will show that one of the 1st things they did after the
successful seizure of power was the promulgation by the Supreme Soviet of a series of legislation
relating to economic and political life. Similarly, in our own country’s history, the 1966, 1972, 1979,
1982 coup d’états were immediately followed by the passage of laws. To deny the nomenclature
“law” to such exercises of state power because the regime in question happened to be unimpressed by
liberal-democratic or theological ideals, and instead, to describe them as “legalized tyranny” as
commands devoid of an “inner morality of the law”, or as mere exercises in “legalism” is to befog
analysis.

THE FUNCTIONS OF LAW:

Law is viewed as a mechanism for social control or conflict resolution. It is concerned with the
maintenance of order and the settlement of disputes. Law is a regulative mechanism and a specialized
tension-management system. The role of law in society may be summed up in phrases;
1. The maintenance of order or internal peace
2. The institution of ordered social change, and
3. The pursuit of justice. The maintenance of order is itself one aspect of the broader issue of
pursuit of justice. Without law there can hardly be lasting order in society.

This kind of order must be distinguished from the order imposed by sheer force by someone who has
temporary physical might to impose some sort of “order” on the community. The order imposed by a
group of armed men may be just as effective, not more so, as that maintained by authorized policemen

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and soldiers. But the former type of order lasts so long, as that group of men continues to hold onto
their guns and succeeds in thwarting any attempts by another group to dislodge them from their
vantage points. The problem of order in society has intrigued political philosophers for a long time,
and various solutions have been suggested. Thomas Hobbes, for example, was so concerned about it
that he suggested despotism as the solution (Thomas Hobbes, the Leviathan). He believed that the so-
called law of nature did not regulate in any sense the behavior of men, who were moved by vanity,
mistrust of their fellows, and a “perpetual and restless desire for power after power. The only
rationality men display, he argued, is their implicit willingness to surrender their vague rights and
liberties in order to avoid the miseries they bring; the life of the state of nature which is “solitary, poor
nasty, brutish and short”. Hence he suggested the dominion of one man or assembly of men. The
alternative to this, said Hobbes, was chaos.

Law is an attempt at the solution of some of the basic problems of human existence. These may be
itemized as the problem of scarcity of society’s resources, both natural and man-created; the problem
of the inadequacy of the individual’s skills; and the problem of man’s limited altruism.

Human beings have a great variety of wants, ranging from the common urge to secure the simple
necessities of physical existence to the most subtle of desires. In the satisfaction of all these wants
people will inescapably come into conflict because of the simple fact that there are not enough societal
resources – food, shelter, clothing, education and employment facilities, to enable each member of
society to take as much or so many as he wants to. How are potential conflicts to be contained? To
combat this, society needs rules restricting the use of personal violence and guaranteeing some
minimum form of property, whether private or public, personal or real.

In the second place no individual has all the skills necessary or desirable to live comfortably and
wholesomely in the world. The more complex the society, the more the individual member
experiences the sense of inadequacy. One man may be a very competent lawyer; but he probably
knows absolutely nothing about the mechanics of his automobile, except how to keep it moving on the
road. Hence, in satisfaction of their wants, people inescapably become dependent on one another.

There occurs what economists call the division of labour. People recognize the fact of their
interdependence with other human beings, and the community of interests which grows out of it. The
division of labour makes its own special demands for rules; for people who are living together under

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conditions of interdependence must have a set of understanding or arrangement of some kind about the
terms upon which they are doing so; about their inter-personal relations, and the relationship between
them and the organs of the larger community. Contracts or individual agreements are among the most
obvious instruments of the social co-operation; and constitution constitutes the basic instrument
defining the relationship between the central organs and the members of the community.

There is the strong belief, buttressed by actual experience, that man, not being an angel, is inclined to
be selfish, violent and unfair in his relations with his fellow man, and to act the bully. Therefore, it is
felt, what are required to combat the first two problems are not mere rules whose creation and
enforcement are left to the subjective determination of individuals, but rules that are acknowledged
and enforced by the central organs of the society if they are to have any real significance – criminal
law for example.

Also, as people gain in experience and social conditions change, existing understandings will prove
from time to time to be inadequate, or will be thought inadequate by some members of the community.
Demands will arise both for social change and for additional arrangements; and some means will have
to be found to deal with these demands. This cannot be left to private power and emotion but must be
done in a regularized manner. There is therefore the additional purpose which law is supposed to
serve in society. A general feeling exists that the rules of law introduced to maintain (rules restricting
the use of personal violence, regulating the use and ownership of property, etc) the rules of social co-
operation and the rules for ordered social change, must be “just”. Thus law is also expected to serve
the cause of justice. This quest for justice has two aspects to it: substantive and procedural.

a. Substantive justice expresses the hope that the substantive content of rules of law, especially
those relating to personal and political liberty, and property rights will be just. In broad terms,
substantive law defines the rights and duties of people. Substantive law determines a wide
variety of matters, for example, what is required to form a contract (i.e. offer + acceptance +
consideration + intention to create legal relations + capacity), what the difference is between
larceny and robbery, when one is entitled to compensation for an injury and so on.

b. Procedural Justice, on the other hand, concerns itself with an assurance of fair procedure in the
trial of those alleged to have infringed some substantive rule of law. Procedural law defines
and deals with procedures for enforcing those rights and duties. The rules of procedure and

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 jurisdiction determine the court or administrative agencies that may handle a claim or dispute;
the form of the trial, hearing or appeal; the time limits involved; and so on. Related rules also
cover the kinds of evidence that may be presented.

Every society rests on some “firmament of law”. This firmamy is composed of various elements, the
composition varying with the kind of society we are dealing with. There are some in which the law is
almost wholly derived from custom, with practically no element of case law or legislation. There are
other societies in which the social firmament has a considerable element of case law: law created and
applied by the courts themselves, and not enacted by the government. Then as we pass to more
complex societies, we find increasing amount of legislation – law made expressly by the legislative
wing of the state and its delegates – combined with the element of case law. But at almost every level
of human civilization, we are confronted with the phenomenon of law, whose central idea is as
follows: the establishment of a regularized method of decision-making and action i.e. the execution of
community affairs according to re-established procedures, backed by the collective moral and physical
authority of the community. Thus according to the proponents law is to be preferred to the exercise of
private power in to the kind of anarchism which allows people to do what they like and in any manner
they choose.

DIAS – JURISPRUDENCE
POSTIVISM, THE AUSTINIAN THEORY OF LAW

The term “positivism” has many meanings. “Positive law” will be taken to denote the law that is
actually found, positum, as contrasted with what it ought to be.
1. The start of the C19th might be taken as marking the beginning of the movement. It
represented a reaction against a priori methods of thinking that characterized the preceding
age. Theories of natural law, which had prevailed until then, shared the common feature of
turning away from the realities of actual law in order to discover principles of universal
validity in some external source. Actual law was then explained or reformed according to
these canons. Unverified hypothesis of this sort failed to satisfy the intelligence of an age
which was nurtured in the spirit of the new scientific learning.

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2. Positivism is associated with the love of order, for it aims at the clarification of legal
conception and their orderly presentation. It looks tidy and neat to insist that “what the law is”
is one question, “what ought to be” is another.

3. Positivism flourish best in stable social conditions, for the difficulties of maintaining a rigid
separation between the “is” and the “ought” are only project to the forefront when conditions
are in turmoil. It is worth remarking that neither of the two founders of English positivism,
Jeremy Bentham (1748 -1832) and his disciple John Austin (1790 -1859) should be thought of
as writing in a period of particular stability. What they represent is the intellectual reaction
against naturalism and the intellectual love of order and precision. Bentham was a tireless
campaigner for reform, and both he and Austin insisted that prior to reform there has to be a
thorough-going clarification of the law as it is.

4. The principal contention of the positivists is that there is a rigid separation between the “is”
and the “ought”. It is necessary now to specify what is meant by this. In the analysis of duty,
a large part of law consists of prescriptive patterns of behavior, i.e. models of conduct to
which people ought to conform and by which their actual behavior is judged. Therefore, the
“is” which the positivists are so anxious to preserve inviolate, is largely composed of “ought”.
So far most positivists would agree but they would add that only those “ought” acquire the
character of “law” which have filtered through certain accepted criteria of validity. These in
English law are precedent, legislation and immemorial custom. The distinction in other
words, between an “ought” proposition that “is” law and an “ought” proposition that “ought”
to become” law lies solely in the fact that the former has passed through one or other of the
media which alone regulate the use of the label “Law”. It follows from this, in the first place,
that positivists do not need to deny that judges make law; and the majority admits it. They
also acknowledge the inference of ethical considerations on judges and legislators, and that
generally, it is because a proposition was thought to be moral and just that the judge or the
legislators adopted it. What they do say is that it is only incorporation in the precedent or
statue that imparts to the precept the quality of “law” a result which then follows automatically
from such incorporation irrespective of morality. If an unjust proposition were embodied in
precedent or statue, it would be none the less “law” because it would exhibit the formal stamp
of validity. Therefore, they maintain that every proposition which passes through one or other
of the accepted media is “law” irrespective of all other considerations which go towards

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 saying that it would be, or should not be law. This contention touches the heart of an acute
modern controversy to which a brief reference is necessary; modern natural lawyers would
assert that a proposition is “law” not merely because it satisfies some formal requirement, but
by virtue of an additional condition rooted in morality. An immoral rule would thus not be
“law” however much it may satisfy formal requirements.

It is also thought to follow from the positivist’s obsession with the “is” that they distinguish between
formal analyses on the one hand, and historical and functional analysis on the other. It is important
once more to note that the positivists do not deny the value of such studies, but distinguish the one
from the other. Any such distinction, however, suffers from an inherent difficulty. Seldom is it
possible to study institutions as they are except in the light of their history and function. Many of
these can only be understood in the light of their origins and the influences of the past, and this is
especially the case with common law institutions, reaching back as they do unbroken for centuries.
Moreover, the suggested division between “analytical” and “functional” study is even unhappy. The
nature of legal conceptions can only be understood with reference to the way in which they are used
and the ends which they serve, all of which import social, moral and other considerations. If, then, the
analysis of legal conceptions as they are, inevitably brings in a consideration of their function which in
turn as inevitably brings in consideration of what ought to be law, what becomes of the initial
distinction between the “is” and the “ought”? The answer is that, it cannot be denied that the
relationship between “is” and the “ought” is a close one, and a separation between them cannot be
maintained when applying the law. It is for this reason that that which is labeled “law” has so
frequently to be left broad and imprecise in order that account may be taken of moral and other such
considerations. The separation between the “is and the “ought” is therefore confined to the means of
identifying “law” at any given moment of time, in short to the criteria of validity, such a narrowing of
the positivist contention leads to the last considerations.

5. If the core of the positivist case concerns the manner in which law is identified, it is important
to appreciate that positivism is suited only to the context of the present time-frame. Positivists
encounter difficulties when they transfer their ideas into the time-frame of a continuum.
Identification of laws, in its very nature, is the concern of this or that moment of time – is this
a “law” here and now?

a. The principal reason for having means of identification which are clear-cut possible is
practical convenience. For otherwise no one could know how to regulate his or her

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 daily actions. The task of lawyers, for instance, when advising their clients, law-
teachers instructing pupils, businessmen conducting their affairs etc, will be
impossible. The importance of being able to tell whether this is, or is not a “law” at
any given point of time is arguably obvious, and the positivist case for basing
identification here and now on purely formal criteria, without regard to morality, is
overwhelmingly strong. On the other hand, the naturalists have an equally convicting
case in the continuing time-frame. In introduction of morality as part of the criterion
of identification presents considerable difficulties. Morality is a diffuse idea, and no
one maintains, not even naturalists, that everything which is moral is “law”. Since the
area of “law” is bound to be narrower than that of morality, its boundary should be as
clear as possible.

It may be objected that the large element of discretion, which inevitably enters into the
application of laws, shows that they remain imprecise, no matter how clearly they are
identified. But this is a different point, the question being not whether this is “law”
but what its purport and scope may be. Then again, the fact that legislators and judges
are constantly changing the dividing line between law and morality does not affect the
need to have some criterion with reference to which the exact whereabouts of the line
at any given moment can be determined.

b. There is an important difference in the application of formal and moral criteria. The
formal methods of proving the existence of a rule are mechanical and even though in
the application of it a judge may find it necessary to bring in considerations of what
ought to be law, he can do so only within the framework of the rules as he finds it. On
the other hand, the way to establish moral rules is different, and so are the reasoning
processes with regard to them.

c. The separation between the “is” and the “ought” is said to be useful in providing a
standard by which the positive law can be criticized and evaluated. Even naturalists
would concede that there will always remain a discrepancy between laws as it is and
as it ought to be, and as long as this is so the latter can be used to evaluate the former.
The issue, then, between positivists and naturalists is whether the criteria of
identifying law should embody a minimum basic morality.

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 It is submitted that although there is a value in being able to identify laws clearly for
practical purposes, there is still a great deal to be considerate, especially when one
thinks in a continuum of time.

A USTIN

Observations on his method of approach:

a. To analyze the concepts of law in the light of a definition of law is to follow the a priori
method contemporary natural law philosophers sought to explain society on supposition that it
originated in a primeval social contract; Austin sought to depict the logical coherence of the
system on the supposition that it originated in sovereign commands.

b. Austin did not reveal the steps by which he aimed at his concept of law. He simply made
certain propositions and applied them logically. By concealing as it were, the way in which
his concept was evolved, he concealed the most interesting part of the whole analysis. It is
more important to probe and test the reasoning by which he constructed the concept than to
follow out his subsequent application of it, for the latter will only reflect what was put into the
former.

c. Austin’s material was English law, with at most a little roman law thrown in the concept
which he fashioned from them should have been utilized only within those limits.
Unfortunately he applied it outside that field, and that was destined to provoke controversy.

THE AUSTINIAN CONCEPT OF LAW

“Law” in its most comprehensive signification was defined as a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. Law was sub-divisible into two
categories, “laws properly so-called” and “laws improperly so-called”. The former were described as
“general commands”. A command was the expression of a wish by a determinate person, or body of
persons, that another person shall or forbear from doing some act subject to an evil in the event of the
community, and they enjoin, not single action but types and species of actions. It follows, therefore,
that they are also continuing commands. Laws properly so called or general commands, he subdivided
into laws set by God, Divine law or the law of God, and laws set by men to men, to which he applied
the term “positive” to distinguish them from the law of God.

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Laws set by men to men also fell into two categories. The fist consisted of laws set by political
superiors, i.e. by a sovereign person or a sovereign body of persons, to a member or members of the
unrepentant political society wherein that person or body of persons was sovereign or supreme. This
category also included laws set by private persons acting in pursuance of rights conferred upon them
by political superiors. All this was termed by Austin “positive law” or “law simply and strictly so-
called”, and was according to him, the subject-matter of jurisprudence. Since positive laws were a
species of laws properly so called, they were defined as commands of a sovereign supported by
sanctions. The second category consisted of laws set by man to man neither as political superior, not
in pursuance of rights conferred upon them by such superiors e.g. those set by a master to a servant or
the rules of a club. They are still laws properly so called, because they are commands, but he
distinguished them from positive law by giving them the term “positive morality”.

Under the general heading of laws improperly so called he placed, first of all “laws by analogy i.e.
laws set and enforced by mere opinion, such as the laws of fashion, international law and so forth.
These also he somewhat confusingly termed “positive morality” – positive so as to distinguish them
from the laws of God, “morality” so as to distinguish them from positive law or law strictly so called.
Laws improperly so called also included a final category, called “laws by metaphor”, which covered
expressions of the uniformities of nature.
The distinctions which Austin drew were entirely arbitrary. There is no objection to do this provided
clear indications are given of what the distinctions mean. Austin was scrupulous in this respect.
Thirdly, he did however, commit two errors. Although he did not specifically say so, it is clear that he
fashioned his concept of law out of the material of English law, and possibly, Roman law. He was
also misguided in applying the “epithet proper” to what was, after all, his own special meaning of the
word “law”.

SOVEREIGNTY
The great contract between positive law and positive morality was, in Austin’s view, the fact that the
former was set by a political superior. He elaborated this notion and evolved his theory of
sovereignty. Sovereignty involved two “marks”, a positive and a negative one. The positive mark
was that the bulk of a given society was in the habit of obedience to a determinate common superior.
The negative mark was that the determinate superior was not in the habit of obedience to some other
superior. Both these were combined in the proposition.

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“If a determinate human superior, not in the habit of obedience to a like superior, receive habitual
obedience from the bulk of a given society that determinate superior s sovereign in that society, and
the society (including the superior) is a society political and independent.

He went on to assert that sovereignty must have the attributes of continuity, indivisibility and
illimitability of an independent political society he has this to say.“in order that an independent society
may form a society political, it must not fall short of a ** which cannot be fixed with precision, but
which may be called considerable, or not extremely minute.

On all this there are several observations to be made.

a. Austin’s remark that the sovereign has to receive “the habitual obedience from the bulk of a
given society touches on a valuable point. It reveals somewhat obliquely the fact that every
legal system is ultimately founded on some fact for which no justification can be adduced in
law.

b. It has been said that Austin confused what may be called the “de facto sovereign”, or body
that receives obedience, with the “de jure sovereign”, the law-making body. In England the
crown receives allegiance from British subjects, while the crown in parliament is the supreme
law-making body. When Austin talked of the commander who makes law, he was referring to
the de jure sovereign.

c. Theoretically there is no need for only one law-making body, though in practice this is
desirable.

The attribute of continuity of the sovereign may be questioned by asking where

sovereignty resides during dissolution of parliament. Austin appreciated the difficulty
but fell into confusion in trying to anticipate it. In one place he said, correctly, that
the sovereign body is the crown, the Lords and the Electorate. The latter
interpretation renders their whole concept meaningless. Who, in that case is the
commander and who the commanded? The point is that is not necessary for the de
jure sovereign to be continuous.

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8 The attribute of indivisibility has also created difficulty. The question is whether sovereign
authority can be rested in more than one body, not whether it may be exercised by more than
one Austin would have admitted that its exercise may be delegated to several. The difficulty
can be seen by asking whether the legislature of a colony is sovereign or not. It certainly has
the power to make law within its territorial limits but the parliament at West minister can also
legislate for it. If would seen, therefore, that for the colonial lawyer sovereignty is divided
between his own legislature and the parliament at West-minister. It might be objected,
however, that the colonial legislature is only exercising a delegated authority from the
parliament at West-minister. This can be met with the reference to the maxim” delegates
delegare non protest” a delegate cannot delegate his authority to someone else, for it was held
in Powell v Apollo candle co. that a colonial legislature can delegate its powers to legislate,
which implies that it is not itself exercising a delegated function. The indivisibility of
sovereignty has now been judicially rejected.

9. The attribute of illimitability: Austin is straight forward assertion is too simple. With
reference to the United States it is obviously untrue for there is no single sovereign to begin
with, and the sovereign bodies cannot be said to enjoy limitless power, either individually or
in concert, and the power of changing the constitution is subject to very special procedure and
really invoked. Long before this, sir Matthew hale had challenged Hobbs’s conception of
absolute sovereignty by arguing that sovereign powered accrue to the sovereign by certain
laws of the imgdow** and that there are, therefore, certain qualifications of these powers.

Austin denies that the sovereign has claims and duties. He said that to say that the sovereign
has a claim would imply that some other sovereignty has conferred it on the first sovereign,
which would not therefore be sovereign. It has been objected that there is nothing to prevent
the sovereignty from conferring a claim upon itself, to – Austin replies that this was to confuse
might with right.

LAW AS THE COMMAND OF A SOVEREIGN

Austin perceived clearly that an indeterminate body is incapable of commanding. The question is
whether a determinate person or body of persons can be discovered, who might be regarded as having
commanded the whole corpus of the law. Never at any moment in history is a person or group of
persons discoverable who might be said to have commanded at least the rule which entitled him or

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them to command. as PREFESSOR Oliver Rona pointed out, the bulk of the law existed before the
individuals’ who comprise the legal sovereign in England, attained their positions, and they did so by
virtue of rules of law. There is no sense in saying that the rules which brought them to these positions
are their own commands.

Finally, why should the commands of a former sovereign continue to be “law” under his successor?
Austin, following Hobbes, reconciled this with the command theory in saying that what the sovereign
permits he commands – “facit commands”. This objection, as formulated by professor hart, is that it
implies that the sovereign both knows of the practice and decides not to interfere.

LAW AS A COMAND
There are many rules which are in no sense conceive commands, such as the rule that no action is to
succeed when the limitation period has expired or that which merely defines what constitutes contract
or murder, or rules which prescribe the effective way of exercising certain powers e.g. the rule that a
will must be witnessed by two witnesses. Austin, it will be remembered, regarded these last as
commands, i.e. as duties coupled with the sanction of nullity.

The enduring contributions which Austin has made are to. The first is the analytical discipline, which
has transcended the bounds of purely formal analysis.
It is capable of yielding fruitful results, whether conducted historically, functionally or otherwise.

Secondly, he helped also to propagate the positivist doctrine that is helpful, to some extent at least, to
separate the law as it is from law as it ought to be.

Austin’s successors in the analytical tradition have abandoned his concept in favour of other
formulations.

THE PURE THEORY – HANS KELSEN

The theory of Hans Kelsen (1881) represents a development in two different directions. On the one
hand, it makes the most refined development to date of analytical positivism. On the other hand, it
marks a reaction against the welter of different approaches that characterized the close of the C19th
and the opening of the C20th. He seeks to expel ideologies of every description and to present a
picture of law austere in its abstraction and severe in its logic.

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In the first place Kelsen says that a theory of law must deal with law as it is, not as it ought to be. In
this, as in some other respects he agrees with Austin, although he was unaware of Austin’s work when
he first propounded his views. It is his insistence on this point that has earned him the little of
“positivist”.

Secondly, a theory of law must be distinguished from the law itself. There is no logic in natural
phenomenon, but a theory of nature, which purports to take account of them, must be logical. In the
same way, the law itself consists of a mass of heterogeneous rules, and the function of a theory of law
is to relate them in a logical pattern and to organize the field into a single, ordered unity. Kelsen
obviously did not evolve his theory of law in vacuo, but out of a profound study of legal materials as
this was actually found.

Thirdly, a theory of law should be uniform, i.e it should be applicable at all times and in all places.
Kelsen is thus as advocate of general jurisprudence. So was Austin, who only paid lip-service to it,
Kelsen, however, does carry out his analysis on an undoubtedly general basis. Austin’s concept of law
was darned from united material, namely; English and Roman law, and ran into difficulties outside
that sphere Kelsen, who had the advantage over Austin of bang able to profit from roughly a century
of varied developments, was able to arrive at generalizations which hold good over a very wide area.
Fourthly, a theory of law must be free from ethics, politics, history etc, it must, in other words, be
“pure” (rein). This follows from the last point. It a theory is to be generally applicable, it needs to be
shorn of all variable factors such as those mentioned. One suspects at this point a measure of reaction
against the modernistic introductio0n of these other elements which has so enormously widened the
scope of jurisprudence. It should be emphasized that Kelsen does not in the least deny the value of
sociology, history and the like. All he says is that a theory of law must keep clear of such
considerations.

Finally, jurisprudence to Kelsen is knowledge of “norms.” A norm is simply a proposition in hypothec

form: If X happens, and then Y should happen. Jurisprudence consists of the examination of the
nature and organization of such normative propositions. According to Kelsen a dynamic system is one
in which fresh norms are constantly being created on the authority of an original, or basic norm; which
a static system is one which is at rest in that the basic norm determines the content of those divined
from it in addition to imparting validity to them.

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With the aid of these five point Kelsen’s picture of law can be unfolded. It appears as a hierarchy of
norms. At this point one should distinguish between propositions of science and proposition of law.
In his earlier writings the distinction, which was adapted from Kant, was drawn in a straight forward
manner as follows. Propositions of science relate to events which have been observed to occur and
which necessarily do occur as a matter of cause and effect. This when an apple is parted from the tree,
it will in the absence of any support, fall to the ground. Whenever a new fact or event is observed
which fails to conform to a scientific “law”, then that law is modified so as to include it propositions
of science may be described as what necessarily happen, i.e. what is (sein) propositions of law are
different. They can only deal with what ought to occur e.g. If X commits theft he ought to be
punished. Even though in any given case events may not work out in accordance with the legal;
ought” that does not invalidate or call for a modification of it. Thus X may commit theft but go
unpunished, for he may escape detection, he may bribe the officials who administer the law, or he may
die. Even though any of these things may happen, the proposition that “if X commits theft he “ought
to be punished remains good. Legal propositions, therefore deal with what ought to be (sullen). “The
principle according to which natural science describes its objects is causality” says Kelsen; “the
principle according to which the science of law describes its object is normativity”. Kelsen’s distiches
are a cardinal feature of his theory that laws consist of “ought” propositions.

Law of nature; If A is, then B. must be, science of law; If A is, then B. ought to be punishment does
not follow upon a delict as effect upon a cause.

Kelsen distinguishes between legal “ought and other “ought”. (i.e. ought of valuation).the distinction
is that legal ought are backed by the force of the state, and the preoccupation of law is with the
prospect of disobedience rather than obedience. It is only in this way, says he that “law” arrives at its
essential function. N/B All this, it is urged with respect, is a cardinal weakness of Kelsen’s scheme.
The essential function of law is by no means confined to dealing with wrongdoing and moreover, that
sanction is not essential to the concept of duty. If so, a concept of law which revolves around
sanctions cannot be as complete a reflection of law as it actually is

To the extent that the provisions of sanction is regarded as being a crucial feature of law the theories of
Austin and Kelsen agree, but they differ in the elaboration of this idea. For Austin, law is a command
backed by sanction. Kelsen disagrees in two respects, firstly, he rejects the idea of command which,

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introduces a psychological element into a theory of law which should in his view be “pure, the most
that he would concede is that law is a “de-psychologies command, a command which does not imply a
“will” in a psychological sense of the term….. A rule expressing the fact that somebody ought to act in
a certain way without implying that anybody really “wants” the person to act in that way”.

Secondly to Austin the sanction was something outside the law which imparted validity to it. To
Kelsen such a statement is inadequate and confused. For, in the first place, the operation of the
sanction supporting a rule resolves itself into the operation of other; and secondly the validity of a rule
has nothing to do with its sanctions. To illustrate the first of these objections, Austin would have said
that the sanction behind the proposition, “you ought not to steal”, is that if you do steal you will be
imprisoned. To Kelsen, the operation of the sanction itself depends on the operation of other rules of
law. Thus, one rule prescribes that if a man has committed theft, he ought to be arrested; another rule
prescribes that he ought to be brought to trial; other rules prescribe how the trial ought to be
conducted; another rule prescribes that if the jury bring in a verdict of “guilty”, the judge ought to pass
sentence; other rule prescribes that some official should carry that sentence into execution. In this way
the contrast between law and sanction disappears. Thus, the validity of each of the rules comprising
the sanction depends on some other rule, which in turn rests on another and so on. The rule that some
official should imprison a convicted theft derives its validity from the judicial order prescribing
imprisonment for theft, and this in turn derives its validity from rules regulating the competence of the
court and the rules of substantive law and procedure. In this way there begins to emerge a picture of
law, not just as a collection of “ought”. Kelsen’s solution of the problem is that in every legal order, no
matter with what proposition of law one begins, a hierarchy of “ought is traceable back to some initial,
fundamental “ought” on which the validity of all others ultimately rests, and he calls this the
Groundwork, the basic or fundamental norm. Kelsen recognizes that the Ground-norm need not be the
same in every legal order, but a Ground-norm of some kind there will always be, whether in the form
e..g of a written constitution or the will of a dictator. There is also no reason why there need only to
be one Grundnorm. In Great Britain the entire legal order is traceable to the propositions of the
enactments of the crown in parliament and judicial precedents ought to be treated as “law” with
immemorial custom as a possible thurs**. This does not contradict Kelsen’s thesis. He says that a
system of law cannot be founded on two conflicting Ground-norm. In Britain there is no conflict
between the authority of the crown in parliament and of judicial precedents, the former takes
precedence over the latter.

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There are several features about the Grundnorm deserving of the closest attention.
Every rule of law derives its validity from some other rule standing behind it. But the Ground-norm
has no rule behind it. It is, therefore said to be the “initial hypothesis”, “the postulated ultimate rule
according to which the norms of this order are established and annulled, receive or lose their validity”.
To put it in another way, one cannot account for the validity of the Grundnorm by pointing to another
rule of law. The Ground-norm is the justification for the rest of the legal system; one cannot therefore
utilize the legal system, or any part of it, to justify the Grundnorm. As one writer put it, such an
attempt would be like trying to pick oneself up by one’s bootlaces.

N/B Kelsen’s distinction between the validity of a rule and its effectiveness. A rule is valid, not
because it is, or is likely to be, obeyed by these to whom it is addressed, but by virtue of another rule
imparting validity to it. Yet, the validity of each individual rule*** depend on the effectiveness of the
legal order as a whole. In Kelsen’s own words, “it cannot be maintained that legally man have to
behave in conformity with a certain norm, if the total legal order of which that norm is an integral part
has lost its efficacy.

The principle of effectiveness”.

He later modified this somewhat to the extent of saying that a legal order has to be “by and large”
effective. It will therefore be seen that with reference to a given rule of law, the question of its validity
and of its effectiveness must be kept separate. At the level of the Grundnorm the question why is it
valid? Is meaningless, but it is of the utmost important that the Grundnorm should secure for itself a
minimum of effectiveness, i.e. a certain number of persons who are willing to abide by it. It is thus
futile to say that the proposition that the will of the Tsar should be accepted as law is the Grundnorm
in Russia today. On the other hand the fact that enactments of the crown in parliament are in ……..
disobeyed quite frequently does not render the proposition that the crown in parliament is law
constitutive any the less Grundnorm of English law. There must not be a total disregard of the
Grundnorm, but there need not be universal adherence to it. All that is necessary is that it should
command a minimum of support.

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When a grundnorm ceases to derive a minimum of support, it ceases to be the basis of the legal order
and any other proposition which does obtain support will replace it. Such a change in the state of
affairs is said to amount to revolution in law. This point is demonstrated by the events of 1688-1689.
It was also illustrate in both Rhodesian rebellion and the British commonwealth. The constitutions of
the various dominions derive them validity from statues of the crown in parliament at Westminister,
from which it would seem to follow that the Grundnorm of the common wealth legal order is that
enactments of the crown in parliament at Westminster are law ipso jure for the commonwealth.

CRITICISMS
Kelsen gives no criterion by which the minimum of effectiveness is to be measured. Some writers
have pointed out, with a hint of criticism that in whatever way effectiveness is measured Kelsen’s
theory has ceased to be “pure” at this point. For the effectiveness of the Grundnorm would be seen to
depend on those very sociological factors which he so vehemently excluded from his theory of law. If
then the grundnorm upon which the validity of all other norms depends is tainted with impurity, it is
arguable that the others are similarly tainted. On this line of argument the Grundnorm is effective and
continues to be effective in so far as an element of normality is built in as part of the criterion of
validity. If so the continued validity of every proposition of law derived from the validating source
has an ethical background and the separation of law from morality would cease to exist. This is a
formidable argument leveled not only merely at Kelsen, but at positivism in general. It is sufficient to
have to observe that if sound, it would strike at the foundation of Kelsen’s whole structure.

Thirdly, it is not altogether clear what is counted by the description of the Grundnorm as a
“hypothesis” or “postulate” or “presupposed”.

Fourthly, the idea of a medium, accepted by courts which impart to “laws” this quality is more useful
than that of a Grundnorm enjoying a minimum of effectiveness. For instance in the lacuna that exists
during a revolution when the old basis has been overthrown and something has still to replace it there
is no longer a Grundnorm, but the tribunals may continue to apply “laws” identified as such by means
of some criterion which they still recognize, albeit provisionally. It does not matter that that criterion
belongs to the order that has gone; as long as it is accepted by the judges as having imparted the
quality of “law” to the proposition in question that is all that is needed. This has now been endorsed in
the best case of madzionbamuto v Lardueu Burke who was brought during the Rhodesian rebellion.
Here the revolutionary 1965 constitution was acknowledged to be effective jut for over two years the

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Rhodesian courts and the judicial committee of the Privy Council, refused to accept it as “legal”.
During that period however, the Rhodesian Committees were nonetheless prepared to uphold at least
some measures of the illegal regime as “laws”, and the displaced 1961 constitution which had ceased
to be effective was still held to possess controlling force in as much as the laws of the illegal authority
had to conform to it. The case is inexplicable on Kelsenian doctrine and what it does show is that
“legal” depends on acceptance by the courts, not necessarily on the effectiveness of the Grundnorm.
So, either Kelsen’s theory does not apply in revolutionary situations, in which case it ceases to be a
“general theory” or if general, it ceases to be true. In the settled conditions of any ordinary state it
teaches nothing new; in revolutionary conditions when guidance is needed it is useless for the choice
of a Grundnorm is not dictated inflexibly by effectiveness gut is a political decision as Kelsen has
admitted.

Application of the theory to international law. The pure theory demands that a Grundnorm be
discovered. If there are conflicting possibilities, then as Kelsen himself has admitted his theory
provides no guidance on the point. All he says is that the Grundnorm should command a minimum of
support and the theory proceeds on that basis. In the international sphere there are two possible
Grundnormen the supremacy of each municipal system or the supremacy of international law. The
argument based on the former, as pictured by Kelsen would run as follows: Every national legal order
cannot ex hypothesis recognize any norm superior to its own Grundnorm. The English legal order
does not apply in France, nor vice versa. But the English legal order recognizes the validity of the
French legal order in France: and if the only Grundnorm known to English law is its own it follows
that the English legal order regards the validity of the French legal order in France as being in some
way a delegated normative order from the English Grundnorm. Similarly approaching the matter from
the French side, the French legal order can only recognize the validity of the English legal order in
England as being derives from the French grundnorm. Such is the outcome of the doctrine of national
sovereignty and it tends to a state of anarchy in J each national order recognizes its own Grundnorm
and endures other legal orders as subsidiary to it.

Kelsen argues for a monist view of the relationship between international and municipal law and
declared that the Grundnorm of the international system postulates the primacy of international law.
Nations in practice, he say, recognize the equality of each other’s legal orders, and the doctrine of
equality must mean that they recognize the existence of a Grundnorm superior to the groundorm to the

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Grundnorm of their own particular legal orders. The equal force of their national systems is an
impossible notion unless the existence of a higher authority is posited which bestows equality

QUESTIONS
According to the American Realist “ The prophecies of what the court will do and nothing more
pretentious is meant by the law”. Critically access this theory of law.
Past question, November 2005

Critically access the Austinian theory of law?

Past question, November 2005

LEGAL SYSTEMS

1. Civil Law system

2. Common Law System
3. Islamic Legal System
4. Socialist Legal System

ORIGIONS OF THE CIVIL LAW SYSTEM

The civil law system can be traced to the twelfth tables of the republic of Rome around the fifth
century BC. In its origions, it was the law of the city of Rome (i.e. the law applied to a citizen of
Rome) as opposed to the law applied to a non citizen. The expression civil law as expressed in Latin is
Jus Civilis, literarily meaning the law of the citizen of Rome.

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After the fall of the Western Roman Empire (476 AD), the so called barbarians brought their law to
Rome and although Roman law continued to apply to Romans, the law generally applicable was more
of Germanic and Roman law. This later became known as the Vulgarized Roman Law. This law had
very little in common with the classical Roman law. Canon law (i.e. the law of the Roman Catholic
Church), was the only western legal system that kept intact many elements of the Roman law.
However in 529 AD, the Eastern Roman Emperor, Justinia, published the Corpus Juris Civilis, an
articulation and reformation of the Roman law. The Justinian code became the law applicable in
continental Europe until the 15th century when Europe was conquered by Ottoman Turks. At the end of
the 11th century, the University of Bologna started teaching Roman law, more specifically the Corpus
Juris Civilis. This was at first a purely intellectual endeavour since Roman law was no longer the law
anywhere in Western Europe. This marked the beginning of what later became known as the
resurgence of Roman law. Soon, other Western European universities followed the example of
Bologna and after a few centuries, the Roman law was received in almost everywhere in continental
Europe. The French and German codes are the two main civil law models. Napoleon brought his code
wherever he and his army went or travelled. The French model has been influential in Latin countries
both in Europe and Central and Southern America. It has also influenced former French, Spanish and
Dutch colonies in Africa, the Middle East and Asia.

The German model has influenced the Austrian and Swiss code as well as the law of many eastern
European countries before the soviet occupation. German law has also been received in Japan.

SOCIALIST LEGAL SYSTEM (SOVIET TYPE)

The Socialist Legal System can be traced back to the 1917 Bolshevik Revolution which gave birth to
the Union of Soviet Socialist Republic. The objectives of socialist law are:
1 Law must provide for national security
2 Law has the economic task of developing production and distribution of goods on the basis of
socialist principles so that everyone will be provided for according to his needs.
3 That of education; to overcome selfish and anti-social tendencies.

The central notion of socialist law is the notion of ownership. Private ownership of goods must be
used only for the satisfaction of personal need. State ownership prevails in the industrial sector in the
form of installations, equipments, buildings, raw materials and products.

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In the socialist legal system, the real question of property is not who owns it but that, by whom and
how such property is exploited.

THE ISLAMIC LEGAL SYSTEM

Islamic Law is not an independent branch of knowledge. Law is integral to Islamic religion. Islam
means submission or surrender and implies that individuals should submit to the will of GOD.
Islamic religion states what Muslims must believe and it include the Sharia(the way to follow) which
specifies the rules for believers based on divine commands and revelation.

Islamic law is derived from the Qur’an (i.e. the words of GOD as given by the prophet). The Qur’an
therefore is the principal source of Islamic law.The second source is the Sunna, which are the sayings,
acts, and allowances of the prophet as recorded by reliable sources in the tradition.The third is judicial
consensus, based on historical consensus of qualified legal scholars and this limits the discretion of the
individual judge.

Analogical reasoning is the fourth primary source of Islamic law. It is used in circumstances not
provided for in the Qur’an or other source. For example, some judges inflict the penalty of stoning for
the crime of sodomy contending that sodomy is similar to the crime of adultery and thus should be
punished with the same penalty as prescribed by the Qur’an. In the same vein, a female will get half
the compensation a male will receive for being the victim of the same crime, since
a male is entitled to an inheritance twice that of a female.
Sharia legal precepts can be categorized into five areas and these are; acts commanded,
recommended, reprobated, forbidden and left legally indifferent.

Islamic law mandates rules of behaviour in the areas of social conduct, family relation, inheritance
and religious rituals, and defines punishment for heinous crimes including adultery, intoxication, theft
and robbery. For example, in the case of adultery, the truth of the offence requires four witnesses or
confessions. If a married person is found guilty, he or she is stoned to death. Stones are first thrown by
the witnesses, then by the judge, followed by the rest of the community. The punishment for an
unmarried person is a hundred lashes. It is important to remember that the sanctions attached to the
violation of Islamic law are religious rather than civil. The fundermental principle of Islam is that
of an essentially theocratic state, and Islamic law can be understood only in the context of some
minimum knowledge of Islamic religion and civilization.

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THE COMMON LAW LEGAL SYSTEM

The common law legal system is practiced in the United Kingdom and other British colonies scattered
all over. The legal system of the United States is also based on the common law system

Brief History
England as we see today, before, was an area consisting of so many communities. These communities,
as they then were, separately had their own local laws used to regulate members of the individual
communities. There was no central government at that time. William the conqueror conquered the
whole of England, as it is known today, in the year 1056 AD. Immediately after his conquest, he
institutionalized or started a judicial administration in the capital, Westminster, as it then was. He
appointed judges within Westminster, who were to carry out judicial functions. At a point in time, he
set out what was normally described as itinerant judges who were sent throughout the whole country,
from community to community to apply the law. As they went round, they noticed that there were
certain customs that were common to all the communities. These customs were documented and
applied as law within the entire country. These laws as said earlier on were common to the people,
hence, the name common law.

The common law court had its own problems.

 This law, because of its inherent technicalities, could not satisfy majority of the people.
Before one could access a common law court, one had to go to the registry to apply for a
specific remedy which was the application of a writ of summons. These writs were designed
to suit a specific relief. Cases with wrong writs were thrown out of court. These writs were
standardized. Any case of first impression which has no writ designed to suit it, was not
entertained in court, hence the expression ‘no writ, no remedy’. All cases therefore needed to
be presented in a particular way to suit an existing writ of summons.

 It could only award one type of relief, which is damages. For instance, if you initiate a case
against someone for trespassing on your land, you will, instead of having your land back, be
offered damages (monetary compensation) which was quit unsatisfactory.

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 Again the barons (i.e. the rich people in the communities) could easily bribe the judges.

In short the common law court had so many loop holes. It got to a point that rich people in the
community took advantage of the poor. Since the King was the fountain of justice, as time went on
people aggrieved by the judgements of common law courts, petitioned the King that in the name of the
King, the King should intervene and set the records straight or administer proper justice. Since the king
had so many engagements, he assigned these petitions to his chancellors (who were then like secretaries
of state) who were ecclesiastical (i.e. at that time bishops and cardinals of the Roman Catholic Church)
who will then open the case again and when they are not satisfied with the judgement of the Common
Law Court, grant a new relief to the petitioning party. Because they were vest and learned in the
doctrines of Natural Law (i.e. the notion of justice according to GOD’s notion as postulated by St.
Thomas Aquinas and others), it influenced their decisions mostly, hence overturning most of the
decisions of the common law court.

As this practice went on, there were clashes between the common law judges and the chancellors. The
common law judges contended that, the chancellors were not lawyers hence they have no business
reviewing their decisions. This conflict went on for quite a long time till a major case came up somewhere
in the 17th century. This case was sent to the common law court, a judgement was given, the aggrieved
party initiated an action at the chancery for review and the chancellors gave an opposing view so far as the
judgement of the common law court was concerned. Whose decision had to be followed was contended for
a very long time until eventually, the matter went to the King. After excessive consultations, the King gave
a fiat to the effect that the decision of the chancellor should reign supreme. That is why there is a saying
that when law and equity should clash, then equity should take precedence.

Equity then became a major source of law and as time went on, in following previous decisions of past
chancellors by succeeding chancellors, some principles were followed and this came to be known
subsequently as the Maxims of Equity. These maxims are used in the courts even today.

Gradually then, the decisions of the chancellors became another source of law which became applicable.
England therefore had two main sources of law; the Common Law and Equity.

As time went on the Courts of Equity or Chancery still ran side by side with the Common Law Courts until
around 1874 and 1875, when the two courts were abolished and their functions fused together. As a result

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of this, the High Court was established to replace the two courts which were abolished and this was done
under the Judicature Act.

QUESTIONS

Trace the development of the two legal traditions(civil law and common law) and their diffusion aroumd
the world.
Past question, November 2005

What are the distinctive features between a civil law and a common law legal system.
Past question, November 2005

THE COMMON LAW CONCEPT

INTRODUCTION

By its orthodox definition, the common law is judge made or bench made law rather than codified or
statute law which is a fixed body of definite rules. The common law grows and still grow by virtue of
judicial decisions unlike codified laws which grow by way of legislative intervention. In view of this
the common law is often termed as unwritten or un- enacted law. In another respect, the common law
is described as English or Anglo Saxon or the reviewed law in the former colonies in the British
Commonwealth of Nations. The common law, asjudge made law,operate under the doctrine of judicial
precedents (stare decisis). This means that, judges in adjudicating over a case, must refer to previous
decision with likeminded facts before coming to any conclusion.

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COMMON LAW OF GHANA

In Ghana we have a statutory expression or meaning to the common law concept. Section 17(1) of the
interpretations act, 1960,C.A. 4 provides as follows; the common law as comprised in the laws of
Ghana consist in addition to the rules of law generally known as the doctrine of equity and of rules of
customary law included in the common law. Under any enactment providing for the assimilation of
such goods of customary law as are suitable for general application. From the above definition, the
Ghana common law comprises;

 The system of law generally known as the common law of England which is administered in
England, United States of America, Ghana, Singapore and some commonwealth nations.
 The rule generally known as doctrine of equity. English statute of general application which
continue to apply in Ghana by virtue of the court’s act.

 Assimilated rules of customary law which form part of Ghana’s case law or judge made law.

EQUITY

WHAT IS EQUITY

In its technical or narrow meaning, equity means the set of legal rules developed by the court of
chancery. But in its wider or ordinary usage, equity means what is fare or just. As a set of legal rules,
equity was meant to mitigate the rigors of the common law. So equity is somehow an appendage of
common law.

WHY DID EQUITY DEVELOP?

Equity developed due to some inadequacies which arose within the common law.

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 The rigidity of the writs. By the 13th century, the common law system of writs had developed
in such a way that the available writs got fixed with the results that so many grievances could
not be fixed with the existing writs. In 1258, the statute of Oxford and in 1285, the statute
Westminster was passed and they were meant to correct the deficiency.

 The second reason why equity developed was because the common law followed the doctrine
of precedents stare decisis that is, previous cases were being followed rigidly without rigors to
the unfair consequences.

 The third reason why equity developed was due to the social and political situation in Europe
during the 13th century. At this time there were powerful knights who could be likened to the
modern day mafias, who bribe the judge and the jury. The result was that the ordinary man
was not fairly treated when he applied to the court. Therefore, aggrieved persons by-passed
the court and petitioned the King directly.

 The fourth reason was the strict application of the common law. The courts were applying
legal rules irrespective of the just situation of the case. One such situation was in the concept
of trust. Because of the above reason, what people did was to petition the King, he being the
last person in council to redress certain grievances.

NATURE OF EQUITY

 In the first place, unlike the common law, equity is not a complete self contained independent
form of law. Equity cannot exist by its self but rather it is an appendage of the common law.
In other words, equity presupposes the common law. Equity does not cover everything like the
common law but rather it fills in the inadequacies of the common law. If you remove equity,
there will still be remnants of the law of contract, law of property, law of evidence, etc.

 Secondly, unlike the common law, equity acts in personam whiles the common law acts in
rem. It means that equity always acts on the person with reliefs such as injunctions and
specific performance unlike the common law that bill with damages. The equitable remedy of

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 specific performance which is on the person gives a much more just remedy than damages
which is on things

CONFLICTS BETWEEN THE COMMON LAW COURTS AND

CHANCERY COURTS

An inevitable outcome of the parallel form of justice was that there developed between the common
law court and the chancery courts. For example, in areas like mortgages and fraud, the equity court
was able to stop some decisions of the common law courts. The chancery court did not attack or
reject the decision of the common law courts but their behavior appeared to overrule their decisions.
The king was advised on this problem and in 1873-75, the judicature act was passed to unify the
administration of justice. A parallel court system gave the problem of inconvenience because in a
single case, a litigant will have to apply for an order of declaration at the common law court and
for injunction at the court of equity

Another short fall of the dual system was that, going to the wrong court offered you no remedy at all.
It was important to know the proper remedy and go to the appropriate forum for that remedy. The
passage of the judicature act fused the common law and equity courts to avoid these
inconveniences. Thus, the acts abolished the district common law and equity courts and in their place
establish a high court. What was fixed by the judicature act was the administration of law but not the
body of the rules. Section 25 of the judicature act, however provided that where there was a conflict
between the decision of the common law and equity, then equity will prevail. It must be noted that
the Judicature Act (1873-1875) formed the basis of Ghana’s Supreme Court ordinance of 1875.
Section 14 of this ordinance provided that whenever there was a conflict between the common
law rules and equity rules, then equity will prevail.

THE 19TH CENTURY AND THE JUDICATURE ACTS 1873 and 1875

The nineteenth century was a period of great development of the equitable jurisdiction, based upon the
principle established by the end of Lord Eldon’s tenure. The enormous industrial, international and
imperial expansion of Britain in this period necessitated developments in equity to deal with a host of
new problems. The accumulation of business fortunes required rules for the administration of
companies and partnerships, and the change in emphasis from landed wealth to stocks and shares
necessitated the development of new concepts of property settlements.

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Clearly, the old organization of the Chancery Court overloaded in Lord Eldon’s time could not hope to
deal with the mass of business. “Remember this” said Maitland to his students at the turn of the
twentieth century “that until 1813 there were only two judges in the Court of Chancery. There was the
Lord Chancellor and there was the Master of the Rolls and it was but by degrees that the latter had
become an independent judge. For a long time, he appears merely as the Chancellor’s assistant”. In
1813, a Vice-Chancellor was appointed. In 1841, two more Vice-Chancellors.In 1851, two Lords
Justices of appeal in Chancery. When the Court was abolished in 1875, it had seven judges. Cases in
the first instance were taken before the Master of the Rolls or one of the three vice-Chancellors, and
there was an Appeal Court constituted by the Chancellor and the two Lords Justices but the Chancellor
could sit as a judge of first instance if he pleased, and he sometimes did so. At least however, the
judges and Chancery officials could deal with their work without the fear of opposition from the
common law. The two courts had now become “not rivals, but partners in work of administering
justice. The time had come for the fusion of jurisdictions into a single Supreme Court.

Some limited steps were taken towards this fusion in the middle of the nineteenth century. The
Common Law procedure Act, 1854 gave to the common law courts a certain power to give equitable
remedies and the Chancery Amendment Act 1858 commonly known as Lord Cairn’s Act, gave to the
Court of Chancery power to award damages in addition to or in substitution for an injunction or a
decree of specific performance. The major change however came with the Judicature Acts, 1873 and
1875. These Acts abolished the old separate Court of Queen’s Bench, Exchequer, Common Pleas,
Chancery, Probate, the Divorce Court and the Court of Admiralty. It created the Supreme Court of
Judicature, with a High Court divided into Divisions known as the Queen’s Bench Division, Chancery
Division and the Probate, Divorce and Admiralty Division. The latter was re-named to the Queen’s
Bench Division, and probate business other than non-contentious and common form probate business
to the Chancery Division. Each Division exercises both legal and equitable jurisdiction “Thus any
issue can be adjudicated in any Division and any point of law or equity can be raised and determined
in any division but for the sake of administrative convenience, cases are allocated to the Divisions
according to their general subject-matter. Thus, the court “is now not a Court of Law or a Court of
Equity” is a Court of complete jurisdiction.

It was foreseen that a court which applied the rules both of common law and of equity would face a
conflict where the common low rules would produce one result and equity another. The Supreme
Court of Judicature Act, 1873 therefore made provision in the first 10 sub-sections of 25 for the

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solution of many problems in which those rules would conflict. Subsection 11 contained a general
residual clause. It provide that “Generally, in all matters not hereinbefore particularly mentioned in
which there is any conflict or variance between the rules of equity and the rules of common law with
reference to the same matter, the rules of equity shall prevail.”

The effect of the Judicature Act is best shown by the leading case of Walsh v Lonsdale. The landlord
(defendant) gave a lease of a mail for seven years. The agreement provided that the rent was payable
in advance if demanded. No grant by deed of the lease, as required for the grant of a lease exceeding
three years at law was ever made.

The tenant entered and paid rent quarterly not in advance. He became in arrears and the landlord
demanded a year’s rent in advance. It was not paid and the landlord distrained. The tenant brought
this action for illegal distress.

The action failed. The distress would have been illegal at law because no seven-year lease had been
granted and the yearly legal tenancy which arose because of the entering into possession and payment
of rent did not include the provision for payment of rent in advance. In equity however, the agreement
for the lease was as good as a lease. The tenant was held liable to pay a year’s rent in advance and the
distress was held to be lawful.
It will be seen that the effect of the act is procedural only. The rights of the parties, whether
dependent on the rules of law or of equity, were under the Act determined at a single trial. But the
same result would ultimately have been reached if the case had arisen before 1875. The procedure only
would have differed. The claim being one for damages for illegal distress would have been brought at
common law. To the tenant’s argument that he held only on a lease from year to year, of which the
covenant to pay rent a year in advance was not a term, the landlord would have had no reply in a court
of law. This claim to specific performance by the tenant of his agreement to take a lease was one that
could only have been made in equity. The landlord would have had to obtain an injunction to stop the
tenant’s action at law and then to obtain specific performance of the agreement and then to have
returned to the common law court with the lease duly sealed by the tenant in conformity with the
decree of Chancery. With the lease sealed, the landlord would have had a good defense in the
common law court. The effect of the Judicature Acts was to enable the court to treat as done that
which ought to be done and to allow the landlord to use his equitable defense (based on
his fight to specific performance) to the common law claim.

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Walsh v Lonsdale was a case involving a landlord and a tenant and was concerned with an agreement
for a lease. The principle that equity threats as done that which ought to be done is not new. The
significance of the case is the recognition of that principle in a case involving a legal claim. The
principle is not limited to cases dealing with agreement for leases, but is applicable to all cases where
there is contract of which equity will decree specific performance by a legal estate owner to convey or
create a legal estate. This is an estate Contract, typical examples of which are contracts to sell, to
grant a lease or a mortgage. And the principle has been applied “once remove” as where A agreed to
sell Blackacre to B who had agreed to grant a lease to C, C was treated as the lease in equity of the
land, C would not become a lessee at law until the legal lease had been properly granted. Whether
developments in the century following the Judicature Acts have had the effect of fusing, not only the
jurisdictions but law and equity themselves is a disputed question which can best be considered after
looking into the nature of equitable rights.

THE RELATIONSHIP BETWEEN LAW AND EQUITY FUSION

The judicature Act clearly “fused” the administration of law and equity by the creation of the High
Court of Judicature exercising both law and equity and gave supremacy to equity in cases of conflict.
A disputed question is whether that Act or the development of law and equity in the century which has
followed should beregarded as having effected the fusion of law and equity themselves.
The orthodox view is that the jurisdictions have been fused but not the system. The changes made by
the Judicature Act gave rise to no new cause of action, remedy or defense which was notavailable
before. In a famous “fluvial” metaphor, Ashburner said “the two streams of jurisdiction though they
run in the same channel run side by side and do not mingle their waters”. Thus legal rights remain
legal rights and equitable rights remain equitable rights though administered in the same court. Other
bills which were introduced prior to the Judicature Act would indeed have fused the systems but they
failed and the Judicature Act was a more cautious measure.

There are however statements by great judges to the effect that the systems are fused. Sir George
Jessel said as early as 1881 “there are not two estates as there were formerly, one estate in common
law by reason of the payment rent from year to year and an estate in equity under the agreement.
There is only one court and equity rules prevail in it.” More recently, Lord Diplock discussed
Ashburner’s Metaphor and declared “By 1977 this metaphor has, in my view, become most
mischievous and deceptive. The innate conservatism of English lawyers may have made them slow to

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recognize that, by the Supreme Court of Judicature Act 1873, the two systems of substantive and
adjectival law formerly administered by courts of law and courts of Chancery (as well as those
administered by courts of Admiralty. Probate and Matrimonial Causes), were fuses”.

Others, less extreme, have expressed views to the effect that, we ought to be addressing our minds to
the combined effect of the system of law and equity and that to keep the systems always distinct is
pedantic and an impediment to the natural development of the law.

It is important in this discussion to be clear as to what is meant by the claim that law and equity are
fused. If it means that there is now no distinction or difference between legal rights and remedies and
equitable rights and remedies it cannot be supported. It is still clear that legal ownership is different
from equitable ownership. All the provisions of the legislation of 1925 dealing with unregistered land
are based on that assumption. Again, the law of trusts assumes a distinction between legal and
equitable rights. Further, it is still basically true to say that an equitable claim will provide an
equitable remedy and that a common law claim will provide only common law remedy. This is seen
in the context of remedies for fraudulent and innocent misrepresentation and with remedies for
contracts induced by undue influence. And equitable doctrines such as the doctrine of part
performance attract only the equitable remedy of specific performance. And the equitable tracing
remedy is available only to a plaintiff who can show a breach of a fiduciary relation. The illustrations
could be multiplied.

Nor is it at the other extreme to say, that rights exercisable in the High Court today are the same as
those existing in 1975 nor that the application of equitable doctrines in the courts has not had the effect
of refining and developing the Common Law rules. Both legal and equitable rules have developed in
the last century and the development of legal rules has sometimes been influenced by established
equitable doctrine with the effect that a situation which would at one time have been treated differently
at law and in equity is now treated in the same manner. If that is what is meant by fusion, there is
evidence of it as shown below. It is a healthy and welcome development and there are other situations
which might be candidates for future inclusion.

In Boyer v Warbey, the question arose whether covenants in a lease that touched
and concerned the land bound assignees not only where the lease has been sealed but also where the
lease was a valid written lease (not exceeding three years). The Court of Appeal held that, whatever

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the position before 1875 this was not an area where distinction based on formalities were now
acceptable and that the covenant should bind. It was further suggested that, the same result would
follow if there was merely a contract for a lease which was enforceable in equity. Whether it was law
of equity that regarded the lease as effective, the rule as to the running of covenant should be the same.
In a limited sense, this is fusion, in that the reasons why a particular lease is effective are ignored in
favour of uniform consequential rule.

In Australian Blue Metal Ltd v Hughes a question arose concerning the form of notice that might be
required for a party to a certain type of obligation to resind from it. Common law approached the
question by implying a need for reasonable notice, while equity approached it by allowing a
reasonable period of grace. In the view of the Privy Council, such a theoretical distinction should not
lead to different results. The only test was what was reasonable and fair between the parties and
nothing here depended on whether the origin of the protection was legal or equitable.. In consequence,
the rule can be fully stated without reference to its origins. In United scientific Holdings Ltd v
Burnley Borough Council, the question was whether a landlord who failed to keep strictly to the
timetable laid down by a rent review clause was deprived of his right to obtain the increased rent. The
House of Lords held that the Law of Property Act 1925, section 11 applied, and that, time was not of
the essence under the rules of equity. Similarly, it has been held that set-off, whether legal or
equitable, can be raised as a defense whether the relief sought by the plaintiff is legal or equitable.

Much of the modern development of the law of estoppels, especially in the form of promissory
estoppels and proprietary estoppels has been achieved without enquiring whether the doctrines are
doctrines of equity or of law or of both. The doctrine of promissory estoppels works negatively, to
give protection to the party who relied on the promise, but not to give a new cause of action. But
proprietary estoppels operate positively and are capable of creating new rights. The distinction
between estoppels which operate negatively and one which operate positively was once demonstrated
through a distinction between “equitable estoppels” and “common law estoppels”. But this is now
discredited and only proprietary estoppels create new rights. Such rights are recognized in equity only
and unregistered land are enforceable against all but a bona fide purchaser of a legal estate for value
without notice. Proprietary estoppels must be regarded as a development in equity. Other estoppels
can be regarded as being based on common law or equity.

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One indication of fusion is a situation where the legal remedy may be given for breach of an equitable
right. The converse, an equitable remedy for breach of a legal right, has been accepted in various
situations such as an injunction to restrain a nuisance of other tort or to restrain a breach of contract.
And prior to the Judicature Act, Lord Cairns’ Act authorized in certain circumstances courts of
common law to grant specific performance or an injunction instead of damages, and courts of equity to
award damages. And as will be seen, this Act, although overtaken by the Judicature Act, still has
scope for operation.

Generally however the breach of an equitable right will provide an equitable remedy only. Thus, a
breach of a restrictive covenant by a no-contracting party is remedied by an injunction, not damages,
innocent misrepresentation apart from statute, by rescission and not damages, and breach of fiduciary
duty by various equitable remedies. The stage has not yet been reached at which it is immaterial
whether a breach is of a legal or equity duty. This situation was approached in Seager v CopydexLtd,
where the defendants had use a technical idea communicated to them in confidence by the plaintiff in
marketing a carpet grip. Equity’s familiar remedies to protect a plaintiff injured in this manner are an
injunction and account. But the circumstances of this case suggested that the most just solution was an
assessment of damages. Can an action for common law damages lie, however, for a breach of
confidence which is protected only in equity? The Court of appeal held that the appropriate remedy
must be granted and fictions of implied contracts or notional injunctions were not now necessary
damages where thus ordered to be assessed.

But this does not mean that law and equity are fused. Sufficient examples have been given to show
that this is not so. What can be said is that a century of fused jurisdiction has see the two systems
working more closely together, each changing, developing and improving from contract with the
other, and each willing to accept new ideas and development, regardless of their origin. They are
coming closer together but they are not yet fused.

MAXIMS OF EQUITY

The maxims of equity embody the general principles which were involved in the Court of Chancery.
They are rules which must be rigorously applied in every case but are more in the nature of general
guideline illustrations in which equitable jurisdiction is exercise. A few examples of their operation

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must suffice. They should be borne in mind when considering the various rules and doctrines of
equity.

I. Equity will not suffer a wrong to be without a remedy. The principle behind this maxim is
that equity will intervene to protect a right which perhaps because of some technical defect is
not enforceable at law. It is not sufficient that the defendant may be guilty of some moral
wrong; the plaintiff’s right must be suitable for enforcement by the court. The classic example
is the enforcement of trust. The beneficiary had no remedy at common law if the trustee
claimed the property for himself as the trustee was the legal owner but he could enforce his
rights in equity. The maxim is also reflected in the area of equitable remedies which may
granted where the defendant’s wrong is one not recognized by the common law. Thus equity
may grant specific performance of a contract relating to land which is supported by an act of
part performance even though it is not evidenced in writing and is therefore unenforceable at
law. In the field of injunction the plaintiff may obtain quail timer injunction to restrain a
threatened wrong although he has no cause of action at law until the wrong is committed.
Similarly, he may be granted an interlocutory injunction to preserve his rights until the trial in
situations where the common law remedy of damages would be quite inadequate in any event
not available until the case is proved at trial.

II. Equity follows the law. Clearly, equity may not depart from statute law nor does it refuse to
follow common law rules but in exceptional circumstances. Thus, equitable interests in land
correspond with legal estates and interests. For example, the rights and duties of the parties
under an equitable lease are the same as if the lease were legal. Also, where the provision of
the statute is clear and unambiguous, then equity will not intervene.

III. He who seeks equity must do equity: A plaintiff who seeks an equitable relief must be
prepared to act fairly towards the defendant. The operation of this principle can be seen where
equity, in allowing rescission of a contract for mistake, puts the plaintiff on terms which
appear to the court to be just and equitable. A plaintiff seeking an injunction will not succeed
if he is unable or unwilling to carry out his own future obligations. Thus, this maxim is also
the foundation of the doctrine of election.

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IV. He who comes to equity must come with clean hands: This principle is closely related to
the last one but the latter looks to the plaintiff’s future conduct while the clean hands principle
looks to his previous conduct. Thus, equity will not grant relief against forfeiture for breach
of covenant where the breach in question was flagrant. Similarly, a licensee may be debarred
from invoking the doctrine of estoppels if he has been guilty of grave misconduct. Example, a
tenant cannot get specific performance of a contract for a lease if he is already in breach of his
obligations nor, could a purchaser, if he had taken advantage of the illiteracy of the vendor
who was not separately advised. So also in the case of injunctions, but equitable relief will
only be debarred on this ground if the plaintiff’s blameworthy conduct has some connection
with the relief sought. The court is not concerned with the plaintiff’s general conduct. Thus
in Argyll (Duchess) v Argyll (Duke) the fact that a wife’s adultery had led to the divorce
proceeding was no ground for refusing her an injunction to restrain her husband from
publishing confidential material. Her adultery did not license her husband to broadcast, the
most intimate confidences of earlier and happier days. If both parties have unclean hands the
court should consider only those of the applicant and need not balance the misconduct of one
against that of the other.

V. Where the equities are equal the law prevails and Where the equities are equal the first
in time prevails: These two related maxims dealing with the priorities of computing interests
may be dealt with together. They provide the foundation for the doctrine of notice. Thus, a
prior equitable interest in land can only be defeated by bona fide purchaser of a legal estate
without notice. If the purchaser is bona fide and without notice then equities are equal and his
legal estate prevails. If he does not acquire a legal estate then the first in time that is the prior
equitable interest prevails as equitable interest rank in other of creation. The two maxims are
also the foundation of the law of priority of mortgages of land, but have lost some of their
importance since the introduction 1925 of system of registration of certain interests in land.

VI. Equity imputes an intention to fulfil an obligation: Where a person is obliged to do some
act and does some other act which could be regarded as a performance of it, then it will be so
regarded in equity. This is the basis of the doctrines of performance and satisfaction. For
example, if a debtor

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 leaves a legacy to his creditor (of an amount at least as great as the debt) this is presumed to be
a repayment of the debt so that unless the presumption is rebutted, the creditor cannot take the
legacy and sue to recover the debt.

VII. Equity regards as done that which ought to be done: Where there is a specifically
enforceable obligation, equity regard the parties as already in the position which they would
be in after performance of the obligation. Contract relating to land is specifically enforceable
if there is writing or part performance. Therefore in equity a specifically enforceable
contract for a lease create an equitable lease. This doctrine of Walsh v Lonsdale. Similarly,
a specifically enforceable contract for the sale of land transfers the equitable interest to the
purchaser the vendor holding the legal title on constructive trust until completion. The maxim
is also the basis of the doctrine of conversion where by an interest under a trust for sale of land
is regarded as an interest in proceeds of the sale and the rule in Howe v Dartmouth concerning
the duty to covert unauthorized investments.

VIII. Equity is equality: Where two or more persons are entitled to an interest in the same
property, then the principle of equity is equality division will apply if there is no good reason
for any other basis for division. Equity therefore dislikes the joint tenancy whereby there is
the doctrine of survivorship, where the last survivor takes all. This may be contrasted with the
tenancy in common where the interest of each party devolves upon his personal representative
on his death. In the absence of an express
declaration to the effect that the equitable interest is held jointly, equity presumes a tenancy in
common in three cases where at law the parties are joint tenants; first, where purchase money
has been provided in unequal shares, equity presumes a tenancy in common in shares
proportionate to the contributions; secondly where parties lend money on mortgage, whether
equally or unequally, the mortgages are presumed as between themselves to be entitled as
tenants in common and thirdly, where partners acquire property, they are presumed be tenants
in common. Even where the equitable interest is held jointly, equity leans in favour of
severance, meaning that equity is ready to regard an act or dealing as an act of common, thus
excluding the possibility of survivorship.

IX. Equity look to the intent rather than the form: This principle does not mean that
formalities may be ignored in equity but rather that equity looks at the substance rather than

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 the form. Thus, equity will regard a transaction as mortgaged even though it is not so
described if in substance it appears the property was transferred by way of security. Similarly,
a trust may be created although the word “trust” has been used. A covenant will be regarded
as a restrictive covenant if negative in substance even if it is worded in a positive form.
Although a party to a contract under seal can enforce the contract at law even though no
consideration has been given, equity regards such a party as volunteer and will not decree
specific performance in his favour. Equity frowns on formalities when it is seen that it affects
the substance of the transaction. Thus where there is a statutory requirement that certain
formalities must be present for a contract to be valid, but a contrary formality was followed
even though the parties intended the right thing, then equity will intervene. It is the substance
that is important.

X. Delay defeat equity: Equity aids the vigilant not the indolent. This is the foundation of the
doctrine of laches, whereby a party who has slept upon his rights cannot obtain equitable
relief. This doctrine is superseded where the Limitation Act 1980 deals with the matter. For
example, the action against trustees for breach of trust must, by section 21, be brought
between six years and delay short of this will not bar relief. Where however, the plaintiff has
a legal right is not statute bared, interlocutory injunctions must always be sought promptly. It
seems that, delay may not prevent the grant of a final injunction where the cause of action is
not statute barred. The equitable doctrine of laches have been put in a statutory form under
NRCD 54 (the limitation decree) Similarly, claims to rescission and rectification may be
barred by delay.

XI. Equity acts in personam: Equity has jurisdiction over the defendant personally. The
personal nature of the jurisdiction illustrated by the fact that failure to comply with an order
such as specific performance or an injunction, is contempt of court, punishable by
imprisonment provided that, the defendant is within the jurisdiction (or can be served outside
it) is no objection that the property which is the subject matter of the dispute is outside it.
Thus, in the leading case of Penn v Lord Baltimore, specific performance was ordered of an
agreement relating to land boundaries in Pennsylvania and Maryland, the defendant being in
this country.

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QUESTIONS
Explain the equitable maxim “Equity will not suffer a wrong to be without a remedy”
Past question, November 2005
Under what circumstances can a subsequent legal title overreach a prior equitable

interest in land.
Past question, November 2005

What is the significance of the Judicature Act of 1873-75?

Past question, November 2005

JUDICIAL PRECEDENTS
HOW CASES MAKE LAW

The decisions of judges and other officials empowered by the constitution or other laws of a
political entity to hear and determine controversies create case law.

As the name case law suggests, a particular decision or a collection of particular decisions generate
laws – rules of general application. The court’s determination of the rights and obligations of the
particular parties before it can apply to the disputes of persons who were not before the courts. From
the point of view of parties to a law suit, what matters is the immediate outcome or the results the
court reaches. Supposed that Asued B for damages for breach of contract, and the court reaches a
decision, the decision so reached, has immediate and specific significance. B will or will not have to

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pay a determined amount of damages to A. In the view of judges, lawyers and law students however,
the decision take on broader perspective. The decision becomes a generally applicable case law. In
other words, the decision in A v B becomes an authority in determining subsequent controversies just
as the court in A v B would have sourced guidance from prior, similar decisions, so later judges and
lawyers will look to A v B for a rule by which to measure later parties conduct.

Case law introduces consistency and predictability in adjudication. Unpredictability in adjudication

may provoke both instability in several relation and the fear that little more than personal whim
controls the judges’ decision. The force of precedents in the law is heightened by an additional factor;
the curios almost universal sense of justice which urges that all men are properly to be treated alike
in like circumstances

THE COMMON LAW DOCTRINE OF PRECEDENTS

It is a distinctive policy of a common law legal system that past judicial decisions are formally and
generally binding for the disposition of factually similar present controversies. This basic principle,
firmly established centuries ago in the Royal Courts of England, became applicable in Ghana on the
reception of the common law in the then Gold Coast. The term “precedent” is a term of art in the
vocabulary of our law. A judicial decision is precedent in the full sense of the word only within the
same judicial system or jurisdiction. Thus, a decision of the Supreme Court of Ghana is precedent and
generally binding in future “like” cases in the lower courts in Ghana, but it is not a full-fledged
precedent for future cases arising in the courts of foreign countries, for example, Nigeria or England.
It is important to note that a decision has the full status and effect of precedent only on the presiding
court’s own home ground. Even within the same jurisdiction, a decision is precedent only for “like”
(that is factually similar) cases. A judicial decision is a precedent and so generally binding only in
future cases involving the same situations. This is so because no two disputes will ever be identical in
every factual particular. Case law processes require careful analysis, matching and distinguishing of
facts of cases. Case matching and comparison is a necessary exercise in case law. Even in the same
jurisdiction, where a pending new case is found to possess the same material facts, some judicial
decisions will have greater weight as precedent than others. For example, the weight or influence of a
precedent is greatly affected by the place of the court that decided the case in the judicial hierarchy of
its jurisdiction. The higher the court, the greater the weight of the decision. For example, one cannot
assign the same force as precedent to the decision of the Supreme Court and that of the High Court in
Ghana.

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RES JUDICATA AND STARE DECISIS

Every final decision of an appellate court has a dual impact or effect

1. As an authoritative settlement of a particular controversy before the court
2. As a precedent or potential precedent for future cases.

Stare decisis is the Latin expression for the impact of a decision as precedent. Res judicata is the
Latin expression for the effect of the decision as the resolution of the immediate controversy. Thus,
stare decisis is an expression of the decision’s impact whiles res judicata is the impact of the
decision on the actual parties. The following example will illuminate the differences.

Supposed that P(plaintiff) sues D(defendant) in the High Court for using P’s photograph without his
permission in an advertisement and the trial court decided in favour of D on the grounds that there is
no claim against non-consensual use of private citizen’s photograph for purposes of trade and the case
went on an appeal to the Supreme Court, the court of last resort, and the Supreme Court affirmed
the decision of the High Court, the decision is a final and conclusive settlement of the controversy
between P and D. The case is now res judicata and the losing party, which is P, cannot bring this
claim again.
Supposed further that the Supreme Court, two years later and in another case, involving a non-
consensual use of a private citizens photograph for purposes of trade, the court will be bound to apply
the decision in P v Dand must find in favour for the defendant just as in P v D. Note however,
that in Ghana, the Supreme Court is not bound by its previous decision and may overrule its previous
decision where consideration of public policy require a change in the case law. Since in Ghana, the
Supreme Court is not bound by its previous decision, supposed that in the example cited above, the
Supreme Court overruled the decision in P v D and held that the defendant in the new case is liable
for the non-consensual use of P’s photograph for the purposes of trade, what then happens to the case
of P v D now that the Supreme Court has overruled its own decision? Now that the Supreme Court has
changed the law reached in P’s case which was two years earlier, should P not be able to bring a suit
and prevail in his claim? The answer is NO because his particular claim has been finally and
conclusively settled against him. The doctrine of res judicata bares P from ever suing on that
claim again

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It is important to underscore the distinction in the legal terminology between “overruling” and
“reversal”. The two are distinct and carry different consequences and are not interchangeable. The
highest court of a jurisdiction overrules its own precedence. The prior decision continues to
bind the parties to it but the overruled decision is no longer authoritative as to subsequent
controversies. By contrast, a higher court reverses a decision of a lower court. When a higher court
reverses a decision, it reviews the lower court’s judgement and concludes that the lower court has
reached an erroneous result (either on the facts or on the law). As a result, the lower court’s
judgement is set aside and is no longer effective as to the parties of a controversy.

Original precedents
This is a term normally used for decisions of novel cases (that is, cases which may have arrived for the
first time and is factually different from any other case previously decided by any court of a
jurisdiction).

Persuasive Precedents.
A persuasive precedent is one which is not absolutely binding on a court but may be applied. For
example, the decisions of the House of Lords are not binding on Ghanaian courts but only serve as
persuasive precedents of which a judge in the Ghanaian court can decide to follow or not when it is
cited by counsel before the Ghanaian court depending on its persuasiveness.

Sometimes, the particular judge who gave out the decision also places premium on whether the
decision may be followed or not. For example, it will be very hard for a Ghanaian judge to discard the
decision of the famous English judge, Lord Denning when cited before him.

Absolutely Binding Precedents and Binding Precedents

A decision can be said to be an absolutely binding precedent when it was arrived at by the highest
court of the land. For example, the Supreme Court of Ghana’s decisions are absolutely binding on all
lower courts.

Decisions of the court of appeal are also binding on the high court and all other lower courts and so
are the decisions of the high court also binding on all lower courts.

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To determine how binding a precedent is or what weight to be placed on a precedent, one must look at
the court in the judicial hierarchy of a particular jurisdiction which decided it. For instance, where
there is a case before the high court and counsel for one side sites a decision of the court of appeal and
the counsel on the other side also sites a decision of the Supreme Court, the judge at the high court
must treat that of the Supreme Court as binding and must necessarily follow it.

It is important however to note that decisions of courts of co-ordinate jurisdiction are not binding. For
example, a decision of a high court in Kumasi cannot be cited as a binding precedent in an Accra High
courts because they are of co-ordinate jurisdiction. In the case of Asare v Dzeny (1976) 1 GLR 473 –
481, in delivering the judgement of the Court of Appeal (full bench), Azu Crabbe CJ, said;

“A judge of the High Court is not bound to follow the decision of another judge of co-
equal jurisdiction; he may do so as a matter of judicial comity. This position of the High
Court with regard to stare decisis was clearly expressed by Lord Goddard C.J. in Police
Authority for Huddersfield v. Watson [1947] K.B. 842 at p. 848, D.C.:

"I think the modern practice, and the modern view of the subject, is that a judge of first
instance, though he would always follow the decision of another judge of first instance,
unless he is convinced the judgment is wrong, would follow it as a matter of judicial
comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.
He is only bound to follow the decisions which are binding on him, which, in the case of a
judge of first instance, are the decisions of the Court of Appeal . . ."

ADVANTAGES AND DISADVANTAGES OF JUDICIAL

PRECEDENCE.

Advantages
 Precedents introduce consistency within the decisions of judges.
 It speeds up the judicial process.
 There is certainty in the law. By looking at existing precedents, it is possible to forecast what a
decision will be and plan accordingly.
 There is uniformity in the law. Similar cases will be treated in the same way. This is important
because it gives the system a sense of justice and makes the system acceptable to the public

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 Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables
the system to change and to adapt to new situations.
 Judicial precedent is practical in nature. It is based on real facts, unlike legislation
 Judicial precedent is detailed. There is a wealth of cases to which to refer and this prevents
unnecessary legislation.

Disadvantages
 Sometimes it perpetuates injustice because previous bad decisions may be followed in present
cases.
 Difficulties can arise in deciding what the ratio decidendi is, particularly if there are number
of reasons.
 Cases can easily be distinguished on their facts to avoid following an inconvenient precedent
by the judge.
 There is far too much case law and is too complex.

RATIO DECIDENDI AND OBITER DICTUM

Introduction
So far as the parties to any particular case are concerned, all that matters is the judge’s decision; he
gives judgment either for the plaintiff or for the defendant and that, subject to any right of appeal
which may exist, is an end of the matter. In delivering judgment, however, the judge gives reasons for
his decisions, and it is these reasons which may be important as precedents in future cases. No two
cases which come before the courts are exactly alike, and to discover whether there is a binding
precedent it is necessary to establish the ratio decidendi, that is, the exact reason or reasons for the
decision.

Any statement made by the judge that is not essential to his decision is not part of the ratio decidendi
and therefore not binding for the future. It is known as obiter dictum, which may or may not have
persuasive influence in future cases

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Ratio Decidendi
Definition
Ratio decidendi (Latin pluralrationes decidendi) is a Latin phrase meaning "the reason" or "the
rationale for the decision." The ratio decidendi is "the point in a case which determines the
judgment" or "the principle which the case establishes."

In other words, ratio decidendi is the legal rule derived from, and consistent with, those parts of legal
reasoning within a judgement on which the outcome of the case depends. It can also be said to be a
legal phrase which refers to the legal, moral, political, and social principles used by a court to compose
the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule,
binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts
are able to overrule decisions of a court of co-ordinate jurisdiction—however, out of interests of
judicial comity, they generally try to follow co-ordinate rationes.

How To Determine OR Factors to Take into Account When Determining

the Ratio Decidendi
The process of determining the ratio decidendi is a correctly thought analysis of what the court
actually decided and this is essentially, based on the legal points about which the parties in the case
actually fought.

The search for the ratio of a case is a process of elucidation; one searches the judgment for the abstract
principles of law which have led to the decision and which have been applied to the facts before the
court. As an example, the ratio in Donoghue v. Stevenson would be that a person owes a duty of care
to those who he can reasonably foresee will be affected by his actions.

“There are . . . two steps involved in the ascertainment of the ratio decidendi . . . . First, it is necessary
to determine all the facts of the case as seen by the judge; secondly, it is necessary to discover which
of those facts the judge treated as material.” Rupert Cross & J.W. Harris, Precedent in English
Law 65-66 (4th ed. 1991).

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The ratio decidendi is one of the most powerful tools available to a lawyer. With a proper
understanding of the ratio of a precedent, the advocate can in effect force a lower court to come to a
decision which that court may otherwise be unwilling to make, considering the facts of the case.

Ratio decidendi also involves the holding of a particular case, thereby allowing future cases to build
upon such cases by citing precedent. However, not all holdings are given equal merit; factors that can
strengthen or weaken the strength of the holding include:

 Rank of the court (Supreme Court versus an appellate court).

 Number of issues decided in the case (multiple issues may result in so called, multi-legged
holdings)
 Authority or respect of the judge(s)
 Number of concurring and dissenting judges
 New applicable statutes
 Similarity of the environment as opposed to the age of the holding.

Conclusion
In conclusion, it would be most appropriate to quote the case of Bank of Ghana v Labone Weavers
Enterprises Ltd, where Azu Crabbe JA wrote;
“The ratio decidendi is the only binding part of a case, and the ratio decidendi is a rule
of law which a judge considered necessary for his decision, whether a case is fully argued
or not. In In re Hallett (1879) 13 Ch.D. 696 at p. 712, C.A., Jessel M.R. said:
"The only use of authorities, or decided cases, is the establishment of some principle
which the Judge can follow out in deciding the case before him." And again Osborne v.
Rowlett (1880) 13 Ch.D. 774 at p. 785, C.A., he said:

"Now, I have often said, and I repeat it, that the only thing in a Judge's decision binding
as an authority upon a subsequent Judge is the principle upon which the case was
decided: But it is not sufficient that the case should have been decided on a principle if
that principle is not itself a right principle, or one not applicable to the case; and it is for

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 a subsequent Judge to say whether or not it is a right principle, and, if not he may
himself lay down the true principle."

A case loses its authority as a binding precedent if the ratio decidendi of that case is not
discoverable. The Lynes case (supra) is, with respect, such a case.”

Obiter Dictum
All other statements about the law in the text of a court opinion – all pronouncements that do not form
a part of the court’s rulings on the issues actually decided in that particular case (whether they are
correct statements of law or not) -- are obiter dicta, and are not rules for which that particular case
stands.

All decisions are, in the common law system, decisions on the law as applied to the facts of the case.
Academic or theoretical points of law are not usually determined. Occasionally, a court is faced with
an issue of such overwhelming public importance that the court will pronounce upon it without
deciding it. Such a pronouncement will not amount to a binding precedent, but is instead called an
obiter dictum.

An obiter dictum (plural obiter dicta, often referred to simply as dicta or obiter) is Latin for a
statement "said by the way." Merriam-Webster Online Dictionary gives obiter dictum three
definitions:

 "literally, something said [dictum] in passing [obiter] . . ."

 "an incidental remark or observation"
 "an incidental and collateral opinion that is uttered by a judge but is not binding"

In the third meaning, an obiter dictum is a remark or observation made by a judge that, although
included in the body of the court's opinion, does not form a necessary part of the court's decision. In a
court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or
analogy or argument." Unlike the ratio decidendi, obiter dicta are not the subject of the judicial
decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis,
statements constituting obiter dicta are therefore not binding, although in some jurisdictions they can
be strongly persuasive.

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An example of an instance where a court opinion may include obiter dicta is where a court rules that it
lacks jurisdiction to hear a case or dismisses the case on a technicality. If the court in such a case
offers opinions on the merits of the case, such opinions may constitute obiter dicta. Less clear-cut
instances of obiter dicta occur where a judge makes a side comment in an opinion to provide context
for other parts of the opinion, or makes a thorough exploration of a relevant area of law. Another
example would be where the judge, in explaining his ruling, provides a hypothetical set of facts and
explains how he or she believes the law would apply to those facts.

What Constitutes an Obiter Dictum

In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the
opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta. A
quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case,
depending on what the latter court actually decided and how that court treated the principle embodied
in the quoted passage.

Obiter dicta can be influential. One example in United States Supreme Court history is the 1886 case
Santa Clara County v. Southern Pacific Railroad. A passing remark from Chief JusticeMorrison R.
Waite, recorded by the court reporter before oral argument, now forms the basis for the doctrine that
juristic persons are entitled to protection under the Fourteenth Amendment. Whether or not Chief
Justice Waite's remark constitutes binding precedent is arguable, but subsequent rulings treat it as
such.

The arguments and reasoning of a dissenting opinion also constitute obiter dicta.

Forms that Obiter Dictum/Dicta May Take

Reading Black’s definition of “ratio decidendi” before continuing, you may see the following quote,
which is helpful:
Dictum can take several forms, including the following:
1. Facts not essential to the court’s decision.
2. Recitation of rules, or portions of rules, not essential to the court’s decision.
3. Discussion of hypothetical situations not actually before the court.
4. Statements about facts and law made in dissenting opinions.

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How Valuable is a Dictum
In theory, dictum does not have value as precedent under the doctrine of stare decisis. In practice,
however, it often has persuasive authority. (Many well-settled rules of constitutional law have their
origins in dissenting opinions of earlier Supreme Court cases.)

Whenever you read a case, decide the following:

1. With regard to the rules stated, which were necessary to the decision of this particular case? This
includes parts of rules stated but unnecessary for the case.
2. With regard to the facts identified, which were material in deciding this particular case?
3. What statements about the law and facts are unnecessary to the decision of the case?

When you identify dictum, don’t get too excited. It is weaker than the ratio decidendi, but not
powerless. You may fail to defeat an opponent who relies entirely on dictum, and your dictum-loaded
argument may wow a judge into dismissing your opponent’s dictum-less counter-arguments. Given
the choice, always choose to base your arguments on the ratio decidendi – but recognize that your
success may depend on your ability to identify, use, and defuse dictum.

QUESTION

The doctrine of judicial precedent has done more harm than good to the legal system in Ghana and
must be done away with. Do you agree? Support your submissions with relevant and authoritative
references
Past question May, 2004

With the aid of decided cases, illustrate how the doctrine of stare decisis operates in Ghana
Past question, November 2005

(a) What is the value of a system of following judicial Precedents?

(b) What decisions if any are binding on the High Court in Ghana.

Past question April/May, 2010

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 INTERPRETATION OF STATUTE

INTRODUCTION

In fulfilling their task of applying the law to the facts before them, the courts frequently have to
interpret (i.e. decide the meaning of) statutes. Whilst it is true to say that the intention of Parliament
should prevail, the courts have adopted a number of conventional practices to resolve ambiguities.

Whilst Parliament may make laws, judges interpret them. The operation of the court process may
therefore be of great significance in the manner in which an Act operates.

Acts must be read as a whole. The court will therefore look at:

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 The long title of the Act to ascertain the object of the Act. For example, the long title for the
Housing Grants, Construction and Regeneration Act 1996 is:

'An Act to make provision for grants and other assistance for housing purposes and about
action in relation to unfit housing; to amend the law relating to construction contracts and
architects; to provide grants and other assistance for regeneration and development and in
connection with clearance areas; to amend the provisions relating to home energy
efficiency schemes; to make provision in connection with the dissolution of urban
development corporations, housing action trusts and the Commission for New Towns; and
for connected purposes.'

 Punctuation and headings to a section or group of sections - but only to determine the purpose,
not the scope, of the section

 Schedules listing repeals and setting out transitional arrangements

The court can also consider a number of extrinsic factors. These include dictionaries, reports of
committees of the Law Commission, and judicial precedent. Since the case of Pepper v Hart (1992)
the court has been able to refer to reports of debates or proceedings in Parliament. Lastly, there may be
a dictionary column to a statute where various words used in the statute may be defined. Even in some
cases, a whole act may be enacted by parliament for that purpose. For example, the English parliament
has itself passed an Act, the Interpretation Act 1978, which sets out the meaning of words which shall
apply unless a contrary intention is expressed or implied in a particular statute. The Act provides that
'words importing the masculine gender shall include females' and words in the singular shall include
the plural and vice versa.”

There are also a number of presumptions that the court will take into account in ascertaining the
intentions of Parliament. These include:

 A presumption against retrospective effect of legislation

 A presumption against alteration of the law

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If there is still no clear indication of what the words mean then the court will apply certain rules that
have evolved out of the courts themselves. Unfortunately, the courts have not always taken a
consistent approach to this task. Instead, they have taken at times radically different approaches.

It should be noted that statutory interpretation does not extend to reading words into the statute to
rectify or change an Act. It is generally held that the courts cannot fill in the gaps. 'If a gap is disclosed
the remedy lies in an amending Act' as for a judge to do otherwise is a 'naked usurpation of the
legislative function under the thin disguise of interpretation'. (Per Lord Simonds, in the case of
Magor& St Mellons RDC v Newport Corporation (1952))

RULES ON INTERPRETING STATUTE

The Literal Rule

This rule advocates that, the words that are used in the statute or document which have to be
interpreted should be given their ordinary grammatical meaning as found in the dictionary. It is most
preferred that words are given their ordinary grammatical meaning and this can be done only when
such meaning accorded does not lead to a manifest absurdity.

The literal rule is a type of statutory construction, which dictates that statutes are to be interpreted
using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its
terms otherwise. In other words, the law is to read, word for word and should not divert from its true
meaning. It is the mechanism that underlines textualism and, to a certain extent, originalism.

To avoid ambiguity, legislatures often include "definitions" sections within a statute, which explicitly
define the most important terms used in that statute. But some statutes omit a definitions section
entirely, or (more commonly) fail to define a particular term. The plain meaning rule attempts to guide
courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that of
a word found within a definition itself.

According to the plain meaning rule, absent a contrary definition within the statute, words must be
given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even
though the intention of the legislator may have been different or the result is harsh or undesirable. The
literal rule is what the law says instead of what the law means.

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The Purposive Approach

In the case of ambiguity, the literal rule cannot apply. Therefore a second principle may be employed.
This is known as the 'Purposive Approach'. Under this rule words are interpreted not only in their
ordinary sense but also with reference to their context and purpose. This differs from the literal
approach in that while the court starts with a consideration of the literal meaning it can depart from
that meaning where not to do so would give rise to a meaning contrary to the purpose of the statute.

The Golden Rule

This rule advocates that the words in the statute or document that needs interpretation should be
construed to avert a manifest absurdity.

This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some
ambiguity or absurdity in the words themselves.For example, imagine there may be a sign saying "Do
not use lifts in case of fire." Under the literalinterpretation of this sign, people must never use the
lifts, in case there is a

fire. However, this would be an absurd result, as the intention of the person who made the sign is
obviously to prevent people from using the lifts only if there is currently a fire nearby.

The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles
of public policy, even where words have only one meaning. Section 46 of the Administration of
Estates Act 1925, required that the court should "issue" someone's inheritance in certain
circumstances. In Sigsworth, Re, Bedford v Bedford (1935; Ch 89) the court held that no one should
profit from a crime, and so used the Golden rule to prevent an undesirable result, even though there
was only one meaning of the word "issue". The facts of this case are that; a son murdered his mother
and committed suicide. The courts were required to rule on who then inherited the estate, the mother's
family, or the son's descendants. There was never a question of the son profiting from his crime, but as
the outcome would have been binding on lower courts in the future, the court found in favour of the
mother's family.

The Mischief Rule

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This rule is applied in situations where words in the statute which needs interpretation are ambiguous.
In such a situation one must rely on the purpose of the statute which is normally contained in the
preamble of that particular statute or law. These ambiguous words are therefore interpreted in such a
way as to reflect the purpose of the statute as contained in the preamble. Within the context of law,

themischief rule is a rule of statutory interpretation that attempts to determine the legislator's
intention. Its main aim is to determine the "mischief and defect" that the statute in question has set out
to remedy, and what ruling would effectively implement this remedy.

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament's intention. It essentially asks the question: By creating an Act of Parliament what
was the "mischief" that the previous law did not cover?

The rule was illustrated in the case of Smith v Hughes [1960] 2 All E.R. 859, where under the Street
Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of
prostitution". The defendants were calling to men in the street from balconies and tapping on
windows. They claimed they were not guilty as they were not in the "street." The judge applied the
mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover
the mischief of harassment from prostitutes.

MAXIMS/CANONS OF STATUTORY INTERPRETATION

Delegatus non protest delegari

This maxim prohibits, in the absence of special or express mention, a delegated authority further
delegating the discharge of statutory function to another authority.

Ejusdem generis

It stipulates that, when general words follow particular words belonging to a category, class or genus
and are specified in a particular order, the general words should be construed in the light of the
particular words.

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To illustrate, in Brownsea Heaven v Poole Corporation (1958) 1 Ch 595, it was decided that the
words “in any case”, in a provision in the Town Police Causes Act, 1847, given power to control
traffic routes in all times of public processions, rejoicings or illuminations and in any case when
streets are thronged or liable to be obstructed, applied only to cases within the category of public
processions, rejoicings and illuminations, and could not be extended to cases of ordinary day to day
traffic conditions. This rule will not apply if the words in question are not specified in a particular
order whether ascending or descending.

Also in the case of Powell v Kempton Park Race Course, general words in Section 1 of the 1863
Betting Act came up for interpretation. The Section made it an offense to keep a house, an office, a
room or other place for purposes of betting. In this case, the defendant was seen betting at an open
place adjacent a race course. He was arrested and prosecuted under the Act. An issue of interpretation
arose and this was whether where he was betting could be interpreted in the context to mean “other
place”.

Held
That on application of the ejusdem generis rule, the phrase “or other place” meant a place similar to
a house, office or room and was not applicable to an uncovered enclosure adjacent a race course.

Also in the case of State v Yankey (1966) GLR 208, The respondent was charged with careless
driving under the Road Traffic Ordinance in that he drove on the University Road, Cape Coast,
without due care and attention. At the trial his counsel argued that the University Road was not a
public road and cited the English case of Buchanan v. Motor Insurers' Bureau [1955] 1 All E.R. 607.
The learned magistrate held that he was bound by the case and accordingly acquitted and discharged
the respondent. The State appealed against the decision on the grounds that the learned magistrate
erred in holding that the University College of Cape Coast roads were not roads for the purposes of the
Road Traffic Ordinance and that the learned magistrate was not bound by the English decision of
Buchanan v. Motor Insurers' Bureau (supra).

The court held; Ghana courts were under the Constitution, 1960, not bound by English decisions.

"Road" includes a highway, street, lane, pavement, footway or other place whether a thoroughfare or
not to which the public have access either by written permission or by tolerance of the owner. The
words “other place" in the definition are so wide that they could include restricted areas like harbours,

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police and army barracks and college compounds where students who are members of the general
public can be found.

On application of the ejusdem generis rule, Archer J wrote;

“The words “other place” in the definition is also so wide that it could include restricted
areas like harbours, police and army barracks and I do not see why the definition of
road should not embrace college compounds where students who are also members of
the general public can be found.”

See also Attorney General V Brown (1920) 1KB 773

Expressio unius est exclusio alterius

This means that, an express enactment shuts the door to further implication. In other words, the
express mention of one thing in a statute excludes all other things
not mentioned. It was held in the case of Warden of St. Paul’s v the Dean that, if a statute expressely
specifies certain exemptions, other exemptions previousely claimed under common law cannot be
allowed by the application of this maxim.

Generalia specialibus non derogant

This maxim can be literally translated as ‘special laws will prevail over general laws’. In such a
situation, there may be in existence two statutes, both talking about one subject matter differently, the
special one will prevail over the general one. For example, taking into consideration the Evidence
Decree and the Wills Act, the Wills Act will be termed special law in so far as the devolution of
property when someone dies testate is concerned. The evidence decree in this context will be a general
law on evidence. Under the Evidence Decree, Section 31 creates a presumption that, where two people
die in a circumstance where it is impossible to determine who died first, it is presumed that the older
one died first. For example, should a father and a son die in a plane crash and it is impossible to
determine who died first, it will be presumed that the father, who is older, died before the son. On the
other hand, section 7 of the Wills Act, also states that where a testator, and the beneficiary dies under

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circumstances where it cannot be determined who died first, it will be presumed that the testator
predeceased the beneficiary.

A case may arise where the testator is the son (younger one) and the beneficiary is the father (older)
one, and in such a circumstance, when an issue comes up as to how the property of the testator is to be
administered and these two laws are brought forth, under the Evidence Decree, it will be presumed
that the father, who is older, died first hence the property fallen into intestacy. On the other hand,
should the wills act be brought forth then, the son, who is the testator would have been presumed to
have died first hence it will be said that immediately after the death of the son, the father inherited the
property before death since he is the beneficiary and, if the father had also left a will covering the
devolution of that property, it would have been shared according to the dictates of that particular will,
left by the father, hence the question of intestacy does not come in. Even if the father had no will, the
property (i.e. the one willed by the son to the father) will be given to the surviving spouse and children
of the father. In such a scenario, the court will fall on the Wills Act which is a special law and discard
the Evidence Decree which is seen here as a general law.

Posteria derogant prioribus

This means that latter laws will prevail over earlier laws or latter legislation will override earlier
ones. In this circumstance when two laws talking about the same thing but in different ways are cited
before a judge as authorities, for example, a 1960 law and a 1990 law, by the application of this rule,
the 1990 one, which is the latter, will override the 1960 law. This rule, however, does not take into
consideration whether one of the rules is an earlier one or a latter one. This brings about some kind of
confusion as to which one is to apply assuming that the Wills Act here is an earlier law and the
Evidence Decree is the latter one. Lord Denning attempted to cure this confusion in a case which came
before him .In that
case, Lord Denning wrote, “whenever parliament in an earlier statute, has directed its attention to
an individual case and has made provision for it unambiguously, there arises a presumption that
if in a subsequent statute, the legislature lays down a general principle, that general principle
should not be taken as meant to rip up what the legislature has before provided for
individually.” This simply means that, latter legislations will not override earlier legislations which
are special.

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Ignorantia juris neminem excusat

If this maxim had not been in existence, the paramount tool any accused person would have used for
his or her defence is that he or she was ignorant of the law.

There was ones a case where the defendants were fishermen. They went fishing and whiles at the deep
sea, they carried out an activity which at the time they left the shores of the land, was not an offense
under the laws of that land. On their return, they were prosecuted in a court of law for breaching that
new law. In their defense, they said there was no way they could have known that a new law has been
passed making it an offense to engage in such activity whiles at sea, because, at that material moment,
that the law was passed, they were at sea so they could not be guilty under the law. The court
dismissed their defense and still found them guilty of the offence under the law. The only
consideration the court gave them after listening to their defense was to reduce their punishment. Their
argument was used as a mitigating factor but not a substantive defense.

QUESTION

Write short notes on any two of the following;

a) Ignorantia juris neminem excusat
b) Generalia specialibus non derogant
Past question, November 2005
Explain any two of the following;
1. Generalia Specialibus Prioribus
2. Ejusdem Generis Rule of statutory interpretation
3. Estoppel per rem judicatam.
Past question, November 2005

(a) With the aid of decided cases explain the following maxims of statutory interpretation.
a. Expression Unius est Exclusio Alterius
b. Ejusdem Generis

(b) Explain any two of the following;

a. The Golden Rule of Statutory Interpretation

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 b. The Mischief Rule of Statutory Interpretation
c. Presumption against Retroactivity

Past question April/May, 2010

RETROSPECTIVE LEGISLATION

PRESUMPTION AGAINST RETROSPECTIVE LEGISLATION

Article 19(5) deals with retrospectivity or ex post facto legislation. It states; “a person shall not
be charged with or held to be guilty of a criminal offence which is founded on an act or
omission that did not at the time it took place constitute an offence”.

For example, in the case of Tsatsu Tsikata, when he was charged with the offense of willfully causing
financial loss to the state, his earlier defense was that, at the time the act for which he was being
accused of under the law was committed, the law had not been in existence. The law is believed to

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have come into force around June or July 1993 and his defense was that the act that amounted to he
willfully causing financial loss to the state was carried out somewhere in January or February 1993,
hence, it could not apply to him, relying on Article 19(5).

The court however was of the view that, the matter did not end in January 1993, but was a continuing
act that went even beyond July 1993 when the law was passed.

Wiredu J held in the case of Ellis and Woode family v Raffour (1975) 2 GLR that;

“There is a general presumption against construing statutes restrospectively in the

absence of express provision in favour of that construction”

Cases; Attorney General v Bernazza (1960) AC 657

D.P.P v Lamb (1941) 2 KB 89

Shalabi v Attorney General (1972) 1 GLR 259

PENDING ACTIONS AND CHANGES IN THE LAW

1. Changes in the substantive law

Assuming there is an ongoing litigation in court and the issue, for example, is on consideration
and the applicable law is the Contracts Act, and all of a sudden there is a change in the
substantive law or even an amendment is the change or amendment going to affect the
substantive issue pending before the court? The answer is NO, because, a substantive law
deals with the right of a party to institute a particular action in the court. Hence their rights
accrued at the time when the action was instituted so when there is a change in the substantive
law while there is a case pending it will have no effect. The old law will still be used in
adjudicating that pending dispute.

In the case of Sfarijiani v Bassil (1973) 2 GLR 260,The appellant was assessed for income
tax in respect of his business for the periods 1952-53, 1953-54 and 1955-56. On the 23rd
December, 1961, he filed, in the High Court, a notice of appeal against the assessment. When
the appeal came up for hearing on the 29th August, 1963, counsel for the Commissioner of
Income Tax raised a preliminary objection to the hearing of the appeal. He submitted that in

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 view of the enactment of the Income Tax (Amendment) Act, 1962 (Act 110), the amount of
tax assessed on the appellant had become a debt which should operate as a judgment of the
court and therefore the court had no jurisdiction to entertain the appeal, or alternatively, he
argued that since the assessment had by virtue of the said Act become a statutory debt there
was nothing for the court to adjudicate upon.

It was held by the court that since the appellant had appealed against the assessment before the
enactment of the Income Tax (Amendment) Act, 1962, his right of appeal, by virtue of
sections 8 and 9 of the Interpretation Act, 1960, had not been affected. The repeal or
amendment of an enactment cannot affect vested rights.

Cases:-CFAO v Thome (1966) 1 GLR 707

Re Okine (1960) GLR 268
Boateng; Allien landlaws and retrospectivity of statutes, 1973, vol 5 RGL

2. Changes in the procedural law

Procedural law tells litigants the manner in which a case can be instituted in court. As far as
procedural law is concerned, no one has control and immediately there is a change in the
procedural law, pending cases must necessarily reflect the changes so made in the procedural
law.

In the case of Dochie v State (1965) GLR 208, The summary trial of the appellant for a
robbery he was alleged to have committed on22 March 1971 was concluded on 29 June 1972.
Before then the Suppression of Robbery Decree, 1972 (N.R.C.D. 11), had come into force and
had enhanced the penalty for robbery. The appellant was convicted and he was by virtue of
N.R.C.D. 11, s. 2 sentenced to life imprisonment. His appeal to the High Court against his
conviction and sentence was dismissed. On appeal to the Court of Appeal, the appellant
contended, inter alia, that the trial court had no lawful powers to punish him under N.R.C.D.
11 for an offence which he was alleged to have committed before the Decree came into force
and that the increased penalty for the offence of robbery had not been intended to have
retrospective effect.

In dismissing, the appeal, the court held that the general rule was that all statutes other than
those which were merely declaratory, or which related only to matters of procedure or

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 evidence were prima facie prospective and retrospective effect was not to be given to them
unless by express words or necessary implication. It was clear from the provisions of
N.R.C.D. 11 that the principal object and effect underlying its enactment were mainly
procedural. It was purely a procedural matter whether a convicted offender for robbery
contrary to section 149 of Act 29 was tried under an indictment and after conviction was
punished under section 296 (1) of Act 30 or was tried summarily and after conviction suffered
punishment under section 2 of N.R.C.D. 11. However, it was clear from the unambiguous
wording of N.R.C.D. 11, s. 2 that it was intended to apply retrospectively to acts of robbery
committed before N.R.C.D. 11 came into operation. The appellant having been tried and
convicted under N.R.C.D. 11, the trial court was justified in imposing the sentence of
imprisonment for life.

Cases:- Mena v republic (1977) 1 GLR 376

Osei-Hwiree v CIT (1963) 2 GLR 237

PRESUMPTIONS
The meaning of presumption is adequately taken care of under Section 18(1) of Evidence Decree (i.e.
NRCD 323) it provides. “A presumption is an assumption of fact that the law requires to be made
from another fact or group of facts found or otherwise established in the action”.Presumptions can be
defined as an assumption of facts based on certain given facts. For example;

 There is a presumption under the Evidence Decree that a child born 365 days after the
dissolution of a marriage is deemed to be an issue of the marriage. However, it is important to
note that, this presumption is a rebuttable presumption. A rebuttable presumption is a mere
assumption of facts that may be rebutted when evidence is tendered in to the contrary.

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 There also is a presumption against ousting the established jurisdiction of the superior courts.
It cannot be inferred from actions of parties that they are ousting the jurisdiction of the
superior court. It is a presumption that the superior courts had jurisdiction in all cases
therefore, the general principle is that, the jurisdiction of a superior court cannot be ousted.

In the case of Republic v Boateng; Ex parte Adu Gyamfi II, it was provided in headnote
three as follows;

“The High Court is by virtue of article 102 (2) of the Constitution, 1969, vested with original
jurisdiction in all matters. Parliament can only add to but not to take away the jurisdiction of
the court which has been conferred by the Constitution. Consequently, the provisions of
section 52 of the Courts Act, 1971 (Act 372), could not oust the jurisdiction of the High Court
in chieftaincy matters. There was nothing in articles 154, 155 and 161 to indicate that the High
Court was deprived of jurisdiction by the Constitution in chieftaincy matters.”

In this case, both counsel for the respondent and counsel representing the Attorney-General's
department contended that the subject-matter of the application being a cause or matter
affecting chieftaincy, the High Court had no jurisdiction, and that it was only the Supreme
Court among the courts constituting the Superior Courts of Judicature which was vested with
jurisdiction in chieftaincy matters. Counsel further contended that as a question relating to the
enforcement or interpretation of the Constitution was involved in the determination of the
application, the jurisdiction of the court was ousted and that the question should be referred to
the Supreme Court. Counsel argued that the question arises in determining the jurisdiction of
the court to hear the application and secondly in determining what effect the Constitution has
had on powers of the government over the recognition of chiefs.

Read:- Kumado; Subversion decree and judicial review, 1975, RGL, 164
Republic v Military Tribunal; Ex parte Ofosu Armah, 1973 and 1978
Ahenkorah v Ofe (1917) 3 WAGLR 145

 There is a presumption that the same words bear the same meaning throughout the same
statute. For example, if the word “deemed” is found in section 1 of a statute and it appears in
subsequent sections, it is a presumption that the meaning accorded it in section 1 must run
through all the sections that the word “deemed” appears in.

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 Where a husband has not been heard of by the wife for up to seven years and all diligent
efforts put in by the wife to find him proves futile, then there is a presumption that the man is
dead. The wife, in such a circumstance is even entitled to apply for Letters of Administration
in respect of her husband’s property

DELEGATED LEGISLATION OR SUBSIDIARY LEGISLATION

Legislation is the power and process of law making by way of statute. It is only parliament or its
equivalent which has the power to make laws but for various reasons parliament confers a limited
amount of legislative powers to lesser bodies thus, delegated legislation is the process of giving law
making powers to lesser bodies either than parliament. In Ghana, since 1957, acts of parliament
provides for the delegation of wide variety of powers which includes the making of legislative and
executive instruments.

Delegated legislations are made by some person or body under authority given to that person or body
by Act of Parliament - such an Act is termed an enabling or parent Act. Examples of delegated
legislation are statutory orders, statutory instruments and bylaws. Delegated or subordinate legislation

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may be controlled by Parliament in that the Orders of Instruments are printed and laid before
Parliament which may then debate them. Such control depends upon provision being made in the
parent Act.

Arising out of the primary legislation (or Statute Law) is a vast amount of subordinate or secondary
legislation known as delegated legislation. These are laws made at a local level, often by Ministers, for
which authority is given by the parent or enabling Act.

The need for delegated legislation arises because it would be impossible for the drafters of the primary
legislation to envisage all the circumstances that might arise under the parent Act and for which
further legislative provision would be necessary. As such, the use of delegated legislation provides
significant flexibility to keep the law current and applicable to specific circumstances.

An explanatory memorandum, setting out a brief statement of the purpose of an instrument and
providing information about its policy objective and policy implications, are required to be produced
to accompany any Statutory Instrument or Draft Statutory Instrument laid before Parliament.

Delegated legislation may be unlawful if it is declared to be ultra vires, that is, 'beyond the power'.
Under this doctrine the courts will examine, for example, whether the delegated legislation deals with
matters outside the enabling statute and whether procedural requirements as to the exercise of a
legislative power have been observed.

1. STATUTORY INSTRUMENT

This is an instrument made under the power conferred by an enactment. This is a form of
delegated legislation where another instrument is made under subordinate legislation, and then
the instrument is known as a sub-delegated legislation

2. LEGISLATIVE INSTRUMENT

This includes an instrument which brings an act of parliament into operation. Various
enactments empowers ministers of some state institutions to make rules or orders governing
their specific areas of operation and this is carried out by a state institution orlegislative
instrument. An enactment may authorize metropolitan, municipal and district assemblies to

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 enact bye-laws to govern their areas of operation. All other instruments apart from statutory
and legislative instruments are known as executive instrument

FEATURES OF DELEGATED LEGISLATION

 They are subject to central government’s control and they are usually submitted for approval
by parliament
 They are subject viewed in terms of directive principles of state policy under the constitution
 They are subject to judicial control
 They deal with details and technical matters

ADVANTAGES
 They save time for the supreme legislative body (parliament)
 They deal with technical aspect of the law as they take advantage of expect knowledge
 They deal with urgent situations
 They deal with unforeseen situation

DISADVANTAGES
 The legislature loses control of legislative powers
 It makes legislation bulky and complex

CONSOLIDATING STATUTES

A consolidating statute is a piece of legislation which collects the statutory provisions relating to a
particular topic and embodies them in a single act of parliament making minor improvements or
adjustments. In the construction of a consolidating act, the presumption that parliament does not intend
to alter the existing law applies with particular force as the object of a consolidated act is merely to
reproduce the law as it was before.

CODIFYING STATUTES

A codifying statute is one which states exhaustibly, the whole of the law pertaining to a particular
subject.

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Interpretation of Codified Statute
The interpretation of a codified statute is approached differently from that of a consolidated statute.
In the case of Bank of England v Vagliano, it was stated as follows; “the proper course in the first
instance is to examine the language of the statute and to ask what is its natural meaning on
influence by any consideration derived from the previous state of the law and not to start by
enquiring how the law previously stood and then assuming that it was probably intended to
leave it unaltered, to see if the words of the enactment will bear an interpretation in
conformity with this view.”

QUESTIONS
(a) Distinguish between a codifying and a consolidating statute
Past question, November 2005

REMEDIES
INTRODUCTION

Where one party to a contract fails, neglects, or refuses to perform his obligations under the contract,
he is said to be in breach of the contract. The other party may then decide to regard the contract as
terminated. There are several remedies available to the person who has performed his side of the
contract against the one who has breached the contract. In other words, when a contract is broken, the
injured party has several causes of action opened to him. These are;
 To refuse further performance of the contract
 To bring an action for damages

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 To sue on a quantum meruit basis
 Specific performance
 Injunction

DAMAGES

An action for damages is the commonest remedy given by the court for a breach of contract. The aim
of awarding damages is to compensate the injured party for the loss he has sustained as a result of the
breach of contract. Damages are therefore described as compensatory. The money paid as
compensation is meant to restore the injured party to the same position as if there has been no breach
of contract. The rule therefore is that, the party who has been injured as a result of the breach of
contract must not be unduly enriched and he must be no worse off than if the other party had
performed his side of the contract.

Types of Damages
 Nominal damages:

if the injured party had not suffered any real or actual loss, although his legal rights has been
infringed by the breach of contract, he will be awarded nominal damages only, that is a
very small amount of money.

 Special damages:

This is the loss which the injured party has actually suffered and which he can easily prove by
evidence. Illustration;
“A” enters into a contract to convey by lorry 500 bags of cement belonging to “B” from Tema
to Kumasi. The total cost of the 500 bags of cement is GH 2000. “A” fails to convey the
cement which is left in the open and destroyed by rainfall. “B” will claim the GH 2000 special
damages for breach of contract.

 Exemplary Damages:

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 This is sometimes called punitive damages. It is very rarely awarded in contract. It is awarded
when the court considers that from the misconduct of the person who has broken the contract
deliberately, it is necessary to let him pay a huge substantial sum of money as a punishment to
serve as an example to others.

In the case of Mahama v Kotia (1989-90) GLR, an action for damages was brought in 1985
by the plaintiff against the defendants for their demolition of her building and the
surrounding wall and then taking away the iron rods and using them. A valuer assessed the
replacement value of the house which in 1975 had been valued at ¢5,600, to be ¢594,000 in
1985. The trial judge having found that the defendants had no authority to demolish the
building awarded the plaintiff, inter alia, ¢594,000 as the replacement value of the building
and ¢300,000 as exemplary damages for trespass.

On appeal by the defendants against the quantum of the award, the High Court, in dismissing
the appeal held that, an appellate court might interfere with the award of damages by the trial
court if it was too high or too low. Where goods or any property was destroyed by the
wrongful act of the defendant, the plaintiff or the owner was normally entitled to the market
value of the goods or property in order that he might be put in a position to replace them and if
there was no market value the tendency was to look to the cost of the replacement.

Since on the evidence the defendants did not only demolish the plaintiff's house out of spite
and ill-will and without any authority but even took away the iron rods and used them in their
own building, the award of ¢300,000 as exemplary damages was reasonable.

 General Damages:

Whenever there is a breach of contract, the person who has suffered loss may take action in
court to recover general damages from the person who has broken the contract. The aim of
awarding general damages is to place the person who has suffered any loss financially or
otherwise in the same position as if the contract has been performed. This is known as the
Doctrine of Restitution. The key principle for accessing the amount of damages to be paid
in Ghana is the rule played in Harbley v Bexenealy.
Facts,
“H” owned a corn mill and its crankshaft got broken. “H” gave the

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 crankshaft to “B” to be delivered to “C”, the manufacturer. To enable the manufacturer to
copy the shaft and then make a new shaft for “H”. “B” delayed the delivery of the shaft
beyond a reasonable time than was necessary. “H” did not make it clear to “B” that a delay in
delivering the shaft to “B” that a delay in delivering the shaft to “C” would lead to a loss of
his profits. “B” was merely aware that, he had to deliver a broken shaft to “C”. “H” sued
“B” claiming from “B” the money that was lost to him as profit during the period that the
corn mill was idle as a result of this delay in delivering the shaft to “C”

Held;
It was held that, “B” was not liable for any loss of profit during the period that the corn mill
was idle because he did not bring this important fact that a delay will lead to a loss of profit
to“B’s” notice and attention at the time of the contract of carriage. Justice Alderson stated the
principle used in accessing damages for breach of contract as follows; “where two parties
have made a contract which one of them has broken, the damages which the other party ought
to receive, in respect to of such breach of contract should be such as may fairly and
reasonably be considered either arising naturally, that is to say, according to the usual course
of things from such breach of contract itself or such as may reasonably be suppose to have
been in contemplation of both parties at the time they made the contract as the probable result
of the breach of it”

Meaning of the rule

The rule is made up of two main parts. This means that anytime there is a breach of contract,
the injured party can only claim damages if he is able to satisfy any one of the two parts of the
rule

i. The plaintiff or injured party to a contract may recover damages for any loss arising
naturally out of the breach of contract. As a reasonable person, the party who has
broken the contract is taken or presumed to know what his loss will be.

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ii. The injured party may also recover damages for any loss which could reasonably be
supposed to have been within the contemplation of the parties and the time of the
contract as the probable result of the breach

In the case of Frafra v Boakye (1976) 2 GLR 332, the respondent who had a contract to
supply timber logs to the Mim Timber Co. hired a tractor from the appellant at a rate of ¢80
a day to enable him haul timber logs from his timber concession in Mim. Under the
agreement, the respondent paid a deposit of ¢1,100. According to the respondent the appellant
assured him that his tractor was in good condition and could haul at least 30 logs a day.
The respondent however found the tractor to be defective almost from the beginning of the
hiring with the tractor hauling a maximum of seven logs a day and a total of 60 logs during a
period of a little over a month. Consequently the respondent brought an action for damages for
breach of contract. The trial judge awarded the respondent special damages of ¢1,320 on the
basis of total failure of consideration and also awarded him general damages for breach of
contract. On appeal by the appellant against the award of the damages.

On dismissing the appeal, Annan JA said;

“The crucial question is whether, on the information available to the defendant

when the contract was made, he should, or the reasonable man in his position
would, have realised that such loss was sufficiently likely to result from the
breach of contract to make it proper to hold that the loss flowed naturally from
the breach or that loss of that kind should have been within his contemplation."

Clearly the trial judge had found that the appellant was told of the respondent's
contract with Mim Timber Co. and that his tractor was to be used to carry out
that contract. The rate of hire of ¢80.00 per day was said, and submitted, to be a
rather high rate and appears to have been related to the requirements of the
Mim contract. According to the respondent, he lost the Mim contract because the
appellant's tractor was defective. There was clear evidence that the tractor was
defective. Not only did it break down as a result of a badly worn- out clutch, it
also had worn-out tracks and consequently could not pull properly.”

Cases

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  Victoria Laundry Windsor Limited v Newmoon Industries Limited
 The Heron II

INJUNCTIONS

Black’s Law Dictionary (Eighth Edition) defines injunction as “a court order commanding or
preventing an action.”

Also, in Howard C. Joyce, A Treatise on the Law Relating to Injunction, she commented on injunction
as follows;
“In a general sense, every order of a court which commands or forbids is an injunction;
but in its accepted legal sense, an injunction is a judicial process or mandate operating in
personam by which, upon certain established principles of equity, a party is required to
do or refrain from doing a particular thing. An injunction has also been defined as a writ
framed according to the circumstances of the case, commanding an act which the court
regards as essential to justice, or restraining an act which it esteems contrary to equity
and good conscience; as a remedial writ which court issue for the purpose of enforcing
their equity jurisdiction; and as a writ issuing by the order and the seal of a court of
equity”

Types of Injunctions

Mandatory Injunction
This requires the defendant to perform some act. It is often given after the wrong has been done and
the court orders its reversal

Prohibitory Injunction
It orders a person to refrain from or discontinue a wrongful act.
Injunctions may also be perpetual or interlocutory. Injunctions may also be perpetual or interlocutory
(i.e. in between the suit)

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Perpetual Injunction
A perpetual injunction is a type of injunction which is granted only after the end of the suit. Whiles an
interlocutory injunction is granted to preserve the status quo during the pendency of the substantive
suit. An interim injunction is similar to an interlocutory injunction but it is usually granted for a
specified period of time

Other Special Injunctions

Mareva injunction
This is granted to prevent a defendant from dissipating or removing his assets from the jurisdiction. It
is granted interlocutory and it is usually ex-parte. It is a new creation of equity and the plaintiff must
show that he has a good arguable case and must also give an undertaking in damages.

Anton Pillar Orders

This prevents the defendant from destroying vital evidence by requiring him to permit the plaintiff to
enter his premises and examine, remove or copy the articles specified in the order. Lord Denning
stated in Anton Pillar v Manufacturing Processes Ltd (1976)Ch 65,
“such an order can be made by a judge, ex-parte but it should be made where essential
that the plaintiff should have inspection so that justice can be done between the parties
and when if the defendant were forewarned, there is a grave danger that vital evidence
will be destroyed or papers, burnt or hidden.”

Situations Where Injunctions are Granted

Injunctions are normally granted where the award of damage will prove an inadequate remedy. They
are normally available for a continuing infringement of a party’s rights. Injunctions are not available to
for past infringement of not likely to be repeated. In Paton v British Pregnancy Advisory Services
Trustees, it was stated
“the first and basic principle is that, there must be a legal right enforceable in law or
equity before the applicant can obtain an injunction”.

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The plaintiff must therefore prove that he is entitled to a legal or equitable right. In Bay v Browning
(1878)10 Ch 294, the court refused to grant an injunction to restrain the defendant from giving his
house the same name as that of the plaintiff, his next door neighbour. The court took the view that,
there was no infringement of a legal or equitable right of the plaintiff

The remedy of injunction is discretionary although generally speaking, the party who establishes
infringement of his legal or equitable right will be entitled to it. The court may refuse an injunction if
the plaintiff delays unduly. See the case of Bulmar Ltd and Showerings v J Bollinger.

In exceptional cases, injunctions may be suspended so as not to have immediate effect

General Principles for Injunction

Perpetual or permanent injunctions are granted to protect a plaintiff’s right after it has been established
through litigation but an interim injunction is granted prior to the hearing of a case or between various
stages of a case in other to preserve the status quo between the plaintiff and the defendant. Lord
Wilberforce said in Hoffmanla Roche and Company vSecretary of State for Trade and Industry
(1975) AC 295,
“the object is to prevent a litigant who must necessarily suffer the loss delay from losing
by that delay, the fruit of his litigation.”

In American Cynamine Company v Ethicon Ltd (1975) AC 396, Lord Diplock stated that,
“there is no such rule that to obtain an injunction, the plaintiff must show that he had
prima facie a case, and that, he must also show or prove that he is more likely than not to
succeed at the trial. The main criterion is the balance of convenience. Also the court
must be satisfied that, the claim is not frivolous or vexatious in their words, there is a
serious question to be tried”

Conditions for an Injunction

 The essence of the injunction is to protect the status quo during the pendency of the suit and
the final determination of the matter. See GNTC v SS Pacific Current (1976)2 GLR
321where S.S. Pacific Current was the carrier of sugar consigned to the applicants. On the
arrival of the ship, the applicants discovered that the sugar had been damaged. They therefore
sued the master of the ship for damages and also brought the present application under Order

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 50, r. 1 of L.N. 140A, to restrain the ship and her crew from sailing out of the territorial waters
of Ghana until the action against them had been determined.

In dismissing the application, Cecilia Koranteng Addow AG, J wrote;

“From my understanding of the rule, the effect of such an injunction will be to
preserve the subject-matter of the litigation in an appropriate case or to provide
security for the amount claimed. The purport is not to restrain a defendant or
his property as a means of securing his attendance or as a means of forcing him
to contest theclaim.”

 The court must be satisfied that there is a serious question or issue to be tried between the
parties. See American Cynamine Company v Ethicon Ltd (1975) AC 396

The applicant must show that he has a legal or equitable right, i.e. he must put forward a case strong
enough to convince the court that there is a likelihood of his legal or equitable right, with respect to the
subject matter being violated by the real, apprehended or threatening act of the defendant or his agents.

In the caseof Anaman v Osei Tutu (1976) 1 GLR 111 @ 114., the plaintiff sued the defendant for a
declaration of title to land, damages for trespass, perpetual injunction and recovery of possession.
Before the hearing of the substantive case, he brought a motion for interim injunction to restrain the
defendant from committing further acts of trespass. Both parties claimed to hold valid grants from the
Sempe stool in respect of the same land. However it was undisputed that the defendant had been in
actual possession of the land in dispute and was in the course of developing it.

In refusing the application for interim injunction the court, as per Griffiths Randolph J held
“. . . the court may grant an injunction in all cases in which it appears to it to be just or
convenient to do so; also an order of interim injunction serves to preserve the status quo
of the subject-matter of a suit until the final determination of the case and the
application for it therefore succeeds where the applicant puts forward a good case that is
strong enough to convince the court that there is the likelihood of his legal rights with
respect to the subject-matter being violated by the real, apprehended or threatened acts
of the respondent or his agents, etc. An interim injunction, being an equitable relief, will
not be granted if it will cause unnecessary hardship to the respondent. See . . . Wiltshire
Bacon Co. v. Associated Cinema Properties, Ltd. [1938] Ch. 268, C.A. where at p. 273 it

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 was said by Greene M.R. that "the plaintiff, who complains of an infringement of his
right to light, and establishes the validity of that complaint, is prima facie entitled to an
injunction."

See also Montgomery v Montgomery (1964) 2 All E.R. 22 @ 64

The applicant must also show that irreparable damage or injury would be caused if the injunction is
not granted.

In the case of Vanderpuye v Nartey (1977) 1 GLR 428 @ 432 (court of Appeal),an application by
the appellant for an order for the interim protection of property pending the final determination of the
case between the parties was dismissed by Griffiths-Randolph J. on the ground that the appellant failed
to show a reasonably fair or strong prima facie case in support of his application. A second
application by the appellant alleging that he had discovered material which entitled him to move the
court anew on the same issue was dismissed by Edusei J. on the ground that the appellant had already
brought a similar application unsuccessfully on the same issue. On appeal to the Court of Appeal
counsel for the appellant submitted, inter alia, that Edusei J. was wrong in dismissing the application
on the preliminary objection that he had already brought a similar application unsuccessfully on the
issue and Griffiths-Randolph J. was also wrong in requiring that the appellant should show a prima
facie case before the interlocutory relief could be granted.

In allowing the appeal, Amissah JA, held;

“Substitute the word "relief" for "injunction” in the above quoted passages and the
sentiments expressed would have as much application to an interlocutory application of
the kind before us as to injunctions.

The governing principle should be whether on the face of the affidavits there is need to
preserve the status quo in order to avoid irreparable damage to the applicant and
provided his claim is not frivolous or vexatious.

The question for consideration in that regard resolves itself into whether on balance
greater harm would be done by the refusal to grant the application than not. It is not
whether a prima facie case however qualified and with whatever epithet, has been made.

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 In the case before us, the judge below thought that a strong prima facie case had not
been

made by the appellant. But in coming to this conclusion, considerations like whether the
respondent has the money to pay into court if asked to do so, seem to have exerted a
considerable influence on his mind. Reading the affidavits, we on the other hand
thought that such a prima facie case had been made by the appellant to justify the grant
of the relief he sought if the existence of a prima facie case had been the proper test to
apply. What we think on that, however, is of little consequence. Becauseas we have said
before, that is not the test.”

RESCISSION

This is a right of a party to a contract to have the contract set aside and be restored to his or her
formal position. This situation is quite different from instances in which a contract is treated as never
having existed before.

It frequently arises in cases where contracts are entered into by mistake. Essentially, it is only those
categories of mistake which render the performance of the contract impossible that falls under this
doctrine. It is generally considered that this doctrine has a wider application in equity. In Solle v
Butcher, the court said as follows;
“a contract is also liable in equity to be set aside if the parties were under a common
misapprehension either as to facts or to their relative and prospective rights, provided
that the misapprehension was fundermental and the party seeking to set the contract
aside was not himself at fault”.
Misapprehension may render a contract void but a party to that contract may also be entitled to rescind
the contract.

To rescind such a contract, the party not in default must act timeously. A party may also rescind on
the basis of fraudulent misrepresentation or innocent misrepresentation.

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The equitable remedy of rescission is available where a contract has been entered into due to undue
influence. In certain prescribed situations, equity will set aside agreement entered into in
unconscionable circumstances where the purchase is made from a poor ignorant man at a considerable
under value, the vendor having no independent advice, the court may set aside the transaction.
Rescission may not be available under the following circumstances;

 Where if the contract were rescinded, the parties will not revert to their formal positions. See
the case of El Langa v New Sombrero Phosphate Co. Ltd (1878) 3 AC, 128

 Affirmation- where a party to a contract, aware of the other party’s misrepresentation, chooses
to affirm a contract in spite of its defects. In the case of Long v Lloyd, the defendant
advertised a lorry as being in exceptional condition. The plaintiff, Mr Long went to Lloyd’s,
(the defendant) premises to see it. The defendant then said it could do 40 mph. On a trial run
from Hampton to Sevenoaks, he said it did 11 miles to a gallon. The plaintiff bought it for
£750. Two days later, driving to Rochester and back, the dynamo stopped working and the oil
seal was defective, there was a crack in the wheel and it did only five miles to a gallon. The
defendant then said he would repair for half price of a reconstruction dynamo. The plaintiff
accepted. Then on another journey, being used by the plaintiff’s brother on a business trip, it
broke down. The plaintiff sued to rescind.

Held
The contract had been affirmed when it was taken back after having been fixed. He
emphasised that the plaintiff “chose” not to have an expert examine the car on fuel
consumption and that he had reasonable time to test it, so on any view he must have accepted
the lorry before he purported to reject it. Rescission was therefore not granted.

 The right to rescission is lost if a third party has in the mean time acquired rights for value and
in good faith. The obvious example where rescission would affect the right of the third party is
where goods have been sold to the ‘misrepresentor’ who has sold them on to an innocent third
party before the contract has been avoided. The court will not require the third party to return
the goods to the original owner. Thus, if third party in good faith and for value, acquire right
in subject matter of contract before representee takes steps to rescind, those rights will prevail
(Philip v Brooks)

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 The right to rescission is lost if the plaintiff delays unduly. This is where there is a significant
lapse of time between the making of the contract and the discovery of the misrepresentation.

RECTIFICATION

Rectification arises where there is an error in a written agreement. It permits the correction of the
document to reflect the parties’ real intentions. It constitutes an exception to the Extrinsic Evidence
Rule or the Parole Evidence Rule which roughly states that, where evidence can be gathered from a
written document, oral evidence is inadmissible. See the case of Joscelyn v Nissen (1972) QB 86.

An order of rectification can be obtained where a written document mistakenly fails to state the
agreement orally reached by the parties.A document will only be rectified if it records agreement
contrary to the intentions of both parties. Rectification is generally unavailable for unilateral mistakes.

In the case of Frederick E Rose (London) Ltd v William H Pim Jnr & Co Ltd [1953] 2 QB 450,
the Claimant was asked to supply buyers with ‘Moroccan horsebeans called feveroles’. When asked
what feveroles were, the defendants stated that they were horsebeans. As a result of this, the contract
referred to the supply of ‘horsebeans’. It later transpired that feveroles were a more expensive variety
of horsebean. The Claimant sought to have the contract rectified with the insertion of the word
‘feveroles’. The Court held that the words used in the contract reflected the agreement of the parties
and as such, rectification was refused.

Rectification of a Contract: Legal Requirements

Courts have demonstrated a willingness to grant rectification orders in disputes to correct mistakes in
contracts that meet certain legal requirements.

Firstly, a claimant must be in a position to adduce ‘convincing proof’ that the contract document did
not record the true intention of the parties:Joscelyne v Nissen [1970] 2 QB 86. There is a high
standard of proof is required to prevent the doctrine of certainty being undermined. Simply put, courts
dislike exercising their power to change a contract to which the parties have freely agreed between
themselves.

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Secondly, the document must fail to record the intention of both parties; Riverlate Properties v Paul
[1975] Ch 133. However, where one party mistakenly harbours the belief that the contract does reflect
the common intention reached, but in reality it does not and the other party are aware of this mistake,
rectification is available:A Roberts and Co Ltd v Leicestershire County Council [1961] Ch 555.
InCommission for the New Towns v Cooper (GB) Ltd [1995] Ch 259, 280, the defendant was acted
unconscionably and an order for rectification was awarded. Stuart-Smith LJ gave an example of what
would constitute unconscionable conduct:

“…where A intends B to be mistaken as to the construction of the agreement … [and] ...

he diverts B’s attention from discovering the mistake by making false and misleading
statements and B makes the very mistake that A intends, then notwithstanding that A
does not actually know, but merely suspects that B is mistaken and it cannot be shown
that the mistake was induced by any misrepresentation, rectification may be granted.”

Thirdly, the document in question must have followed a concluded contract or a ‘continuing common
intention’. In Joscelyne v Nissen, a `father and daughter agreed that she would purchase his business
and in return pay all the expenses of his home. The formal contract did not explicitly mention the
daughter’s obligation to pay her father’s household expenses. The Court found that there was evidence
of a continuing common intention and thus rectified the contract.

Where a claimant delays seeking an order for rectification the opportunity to obtain an order will be
lost. Furthermore, it will not be granted against a bona fide purchaser for value without notice.

Procedure for Rectification

When rectification is granted, the court will give effect to what was proved to have been the
concurrent intention of parties at the moment of executing the contract. Rectification will usually
involve the deletion and/or insertion of clauses. In A Roberts & Co v Leicestershire CC [1961] Ch.
555 [1961] 2 W.L.R. 1000, there was a mistaken belief that a specific term had been included, when
in fact it had not. Where there is ambiguity, extraneous evidence may be used to identify the correct
intent. Therefore, the court granted rectification by inserting the correct date into the document and
deleting the mistaken one. In Joscelyne v Nissen, the courts inserted various terms to give rise to the
‘continuing common intention’ that had been proved to exist between the parties. If there is a clerical

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error, or a mistake is evident when reading the document as a whole, the courts will rectify the
document by deleting the errors and replacing them in accordance with the agreement reached before
the document was drafted.

SPECIFIC PERFORMANCE

At common law, the remedy for breach of contract is damages. Therefore if a promisor breaches a
contract, he could not be compelled to perform the contract. He was liable only for losses occasioned
by the breach. Consequently, parties to contracts often bought their way out of performance.

Specific performance is an order from a court of competent jurisdiction, directing that the parties to a
contract perform their obligations under the contract. It compels the party who is breaking his side of
the contract to go ahead and perform what he had agreed to do but is now not willing to do.

It is a remedy in equity and as such, it is discretionary. The court orders specific performance only
when they are convinced that such an order will do better and complete justice than damages.

There are certain cases in law however, where specific performance can easily be obtained.
 Contracts regarding land; As no two parcels of lands are identical, a remedy for the breach
for a sale of land is specific performance.

 Contract for the Sale of Unique Personal Property; Where no replacement of the subject
matter can be made because of the unique nature of the subject matter, the court will grant
specific performance

 Contracts in which market substitute for products are not easily available.

 Specific performance will be ordered in situations where the quantification of damages will be
difficult or where the defendant will be unlikely to be
able to pay for damages

There are several well recognized situations where the court will not grant specific performance.

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 Contract for personal services
Equity will not enforce these contracts which require the of the defendant. See the cases of
Lumley v Wagner and De Francisco v Barnum (1840) 45 Ch 480. In the latter case, Fry LJ
observed as follows
“the courts are bound to be jealous lest they should turn contracts of service into
contracts of slavery.”

Kludze, A.K.P, in his work “Developments in specific performance”, 1977 vol 9 RGL 102
wrote;
“Another well established principle in the exercise of the equitable jurisdiction to
grant specific performance is that the decree will not be granted to enforce
contracts of personal service. This means that no court may order an employer
against his will to retain the services of an employee; conversely an employee
may not be compelled by a decree of the court against his wish to remain in the
employ of his employer . . . The argument is clear. If an employee is bound by a
decree of the court to remain forever in the service of his employer, it may
amount to slavery because he may be consigned to serve perpetually or
indefinitely against his will. Similarly the courts have felt that an employer
should be able to decide freely whom to have or retain in his service; therefore,
the remedy of an employee who is the victim of a wrongful dismissal is to recover
damages in a common law action.”
Also in the case of Blay-Morceh v Ghana Airways Corporation (1972) 2 GLR 254-261,
the plaintiff who had been employed by the defendant corporation as a senior sales
representative was dismissed on 31 August 1967. The letter of dismissal was written by the
personnel manager, purporting to act for the managing director and the board. Under the
corporation's regulations, it was only the board that could dismiss the plaintiff. On discovering
that his dismissal had not been duly authorised by the board, the plaintiff instituted the present
action for a declaration that the termination of his employment was illegal, ultra vires and
void and ought to be set aside. He also claimed for the payment of arrears of salary from the
date of dismissal till the day of judgment and damages for wrongful dismissal.

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 The defendants on the other hand contended that since the plaintiff's dismissal by the
management was ratified by a new board, the dismissal was not illegal, ultra vires and void as
alleged by the plaintiff.

In giving judgement for the plaintiff, Coussey J wrote;

“In the case of Francis v. Municipal Councillors of Kuala Lumpur [1962] 1

W.L.R. 1411, P.C. it was held as indicated in the headnote that:

"[W]here there had been a purported termination of a contract of service, a

declaration to the effect that the contract still

subsisted would rarely be made, since the general principle of law was that the
courts would not grant specific performances of contracts of service unless
special circumstances could be shown."

In my view there are no special circumstances in this case which would make it
either just or proper to make such a declaration. The plaintiff has in fact not
been able to satisfy the court that his contract of service with the defendants
gave him any status with special privileges attached thereto.”

Articles to read
 Remedying wrongful dismissal-the way of an iconoclast, 1976 v3 RGL 211-223
 Parallel development in specific performance, 1978 v10 RGL 185-190
 Developments in specific performanceby Kludze, A.K.P, 1977 vol 9 RGL 102
Cases;
 Reige v Balbdin (1964) 2 All ER 66
 Owusu Afriyie v State Hotels Corporation (1976) 1 GLR (High Court) AND (1977)
GLR(Court of Appeal)

 Contracts Requiring Constant Supervision

This limitation came to play in the case of Ryan v Mutual Tontine West Minster Chambers
Association (1893) 1 Ch 116. In this case, the landlord of a flat agreed that he would appoint
a porter who will be a constant attendance to maintain the common areas of the building,
collect mails, and so on. The porter appointed also worked as a chef at a nearby club and was

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 thus constantly absent. The plaintiff’s action for specific performance failed since the exercise
of the order would require the constant supervision of the court.

 Agreements Made Without Consideration

Equity will not assist a volunteer and courts will therefore not grant specific performance for a
party who has not provided consideration. This was displayed in the case of Penn v Lord
Baltimore (1750) 1 Ves Sen 444. In this case, Lord Hardwicke declared that;
“the court never decrees specifically without a consideration”

The requirement of consideration is a fundermental requirement for the granting of an order

for specific performance, whether or not the contract is a simple one or one which is made
under seal by deed.

 Contracts of Transient Interest

Equity will traditionally not grant specific performance for agreement of an extremely
temporary nature, for example, tenancy at will. See the case of Lavery v Persell (1888) 39 Ch
508. In this case the court declined to grant specific performance on an agreement to grant a
tenancy for one year because, it is normally impossible to get the action heard within that
period

 Illegal or immoral contracts

The law will clearly refuse to give effect to a contract if it involves the commission of a legal
wrong or if it is invalidated by statute. Also classed as illegal or immoral contracts are
contracts which do not involve the commission of a crime or tort, but which are not enforced
by the courts because they are contrary to public policy.

 Lack of Maturity as a Bar to Specific Performance

It was traditionally thought that the courts could not grant specific performance in favour of
the plaintiff unless it could do so too for the defendant. See the case of Lamley v Ravenscroft
(1895) 1 QB 683.

Defences to Specific Performance

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 Misrepresentation by plaintiff
The act of making a false or misleading assertion about something. Misrepresentation, being a
false assertion of fact, commonly takes the form of spoken or written words. Whether a
statement is false depends on the meaning of the words in all circumstances, including what
may fairly be inferred from conduct other than words. Concealment or even non-disclosure
may have an effect of misrepresentation. An assertion need not be fraudulent to be a
misrepresentation. Thus a statement intended to be truthful may be a misrepresentation
because of ignorance or carelessness, as when the word “not” is inadvertently omitted or when
inaccurate language is used. But a misrepresentation which is not fraudulent has no
consequences unless it is material.

Types;
Fraudulent misrepresentation: A false statement that is known to be false or is made
recklessly without knowing or caring whether it is true or false and that is intended to induce a
party to detrimentally rely on it.

Innocent misrepresentation: A false statement that the speaker or writer does not know is
false; a misrepresentation that, though false, was not made fraudulently.

Negligent misrepresentation: A careless or inadvertent false statement in circumstances

where care should have been taken.

 Mistake
If the defendant is mistaken and it does not prevent the formation of the contract, such
mistake will be no defence to specific performance but the court may refuse an order for
specific performance if it will course the defendant hardship, amounting to injustice. In the
case of Webster v Cecil (1861) 30 Beav 62, the vendor offered to sell some property to the
purchaser for £2,250 but mistakenly wrote £1,250. The purchaser, who was aware of the
mistake, immediately accepted the offer. The vendor on realising the mistake gave notice of it
to the purchaser. It was held that in the circumstances he could not be compelled to carry on
with the sale.

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 Hardship
Since specific performance is a discretionary remedy, the courts could refuse it if it will course
hardship to the defendant or a third party. See the case of Patel v Ali (1984) Ch 283. In this
case, the vendor and her husband were co-owners of a house which they had entered into a
contract to sell in 1979. Completion was delayed by reason of the husband’s bankruptcy. In
addition, the vendor contracted bone cancer which resulted in having her leg amputated. These
events also corresponded with the birth of their second and third children. The purchaser
applied for and was awarded an order for specific performance, but the vendor appealed on the
ground of hardship. The vendor spoke little English and had to rely on friends and relatives for
help. The effect of the decree would thus be to expose him to undue hardship. The court held
that in an appropriate case relief could be given against specific performance where hardship
arose where the contract had been entered into, even if the hardship itself was not related
specifically to the subject matter and not caused by the plaintiff. The court decided that
damages should be awarded instead of specific performance as the latter would amount to
injustice, given the level of hardship that will be inflicted on the vendor.

 Misdescription of Property
A contractual error or falsity that deceives, injures or materially misleads one of the
contracting parties. This entitles a party to rescind and consequently to resist a claim for
specific performance if the property he undertook to purchase has been misdescribed.
 Delay
At common law, time is of the essence of a contract but vice versa in equity, consequently,
specific performance may be granted after the day is due for performance but the plaintiff
must not delay unduly because the equitable maxim of delay defeats equity (that is the
doctrine of laches) may apply. Unreasonable delay then may defeat an application for an
equitable relief, including specific performance. It must however be noted that what is
unreasonable depends substantially on the subject matter of the contract. At one time it was
considered that specific performance had to be applied for within 12 months but in the case of
Lazard Bros and Co. Ltd. v Fairfield Properties (Mayfair) Ltd. (1977) SJ 793, Megarry
V-C stated that specific performance should not be regarded as a price to be awarded to the
zealous and denied to the indolent. In that case, a delay of over two years was held not to be a
bar to the award of an order of specific performance.

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QUANTUM MERIUT

Quantum meriut means “how much it is worth”. It is a claim for reasonable payment for work done
or goods delivered. It is distinct from an action for damages and will arise if in a contract for
performance of work there is no expressely agreed rate of remuneration. Similarly if a contract for sale
of goods does not specify the price. Section 8(2) of the Sale of Goods Act 1979 states that the buyer
must pay a reasonable price

QUESTIONS
In June, 2005, by a written agreement, Kofi Kumnipa bought two plots of land at Abelenkpe in Accra
from the Osu Mantse, who is the allodial owner of all Abelenkpe lands. At the time of the sale, the two
plotes were under a legal mortgage with national investment bank and the Osu Stool had not redeemed
same. It was agreed between Kofi Kumnipa and the Osu Mantse that part of the purchase price was to
be used to redeem the plots after which a conveyance will be prepared in favour of Kumnipa. The
purchase price for the two plots was 100 million cedis. Kumnipa made a down payment of 60 million
cedis to redeem the plots from the national investment bank

After redeeming the two plots, the Osu Mantse sold them to Joe Cocaine who had just arrived from
Germany at the cost of 150 million cedis. Joe Cocain paid the entire purchase price and had a
conveyance prepared in his favour. In the meantime, the Osu Mantse returned the 60 million cedis to
Kumnipa who refused to accept same claiming that he had bought the plots and was entitled to same.
Kumnipa has consulted you as Counsel to advice him of his chances of winning the case if he seeks a
declaration of title against both the Osu Mantse and Joe Cocaine. Advice him.
Past question, November 2005

In De Francisco v Barnum (1890) 45 CHD 430, Fry LJ, observed, “the courts are bound to be jealous,
lest they turn contracts of service into contracts of slavery”
a) What policy considerations can be advanced against specific performance of contract of
employment?
b) Do you think that such policy considerations are relevant in relation to contract of
employment in the public service?
Past question, April 2006

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(a) What is Rectification?
(b) Kofi received an order from Mensah for teveroles (a type of horse beans). Kofi did not know
what was meant by teveroles and asked Mensah what they were and mensah replied that they
were horse beans. After the explanation, Mensah entered into a written agreement to supply
horse beans to Kofi. In fact, there were three types of horse beans; fares, teveroles and
tevettes. Mensah supplied Kofi with fares even though the agreement stated “horse beans”.
Kofi sought to have the agreement rectified for mistake. Advice Mensah
Past question, April 2006

What possible defences are available to a party against whom the equitable remedy of specific
performance is sought.
Past question, April 2006

Write short notes on any three of the following;

i. Anton Pillar Orders
ii. Mareva Injunction
iii. Exemplary Damages
iv. Quantum Meruit
Past question, April 2006

On what grounds or situations will a court refuse to grant an equitable remedy of rescission.
Past question, April 2006
Outline the characteristics of specific performance and rectification as supplementary and
discretionary remedies for breach of contract.
Past question, April 2006

There is no justification for the refusal by the courts to grant specific performance of contract of
employment in the public sector. Discuss.
Past question, April 2006

(a) “Damages are awarded for loss which arises from a breach of contract which should have been
within the reasonable contemplation of the parties at the time the contract was made as being
reliable to result from the breach.” Is this an accurate reflection of the authorities?

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(b) Biswork, dealers in iron rods has been allocated 200 tons of iron rods, a fast moving item in
Kumasi. When Biswork’s truck was sent to collect the ireon rods from tema, it broke down at
Nsawam near Bonsam Motors. The truck was towed to Bonsam Mottors and Biswork’s
managing director anxiously requested Bonsam Mottors to repair the expediciously as
Biswork stands to lose huge profits in a seller’s market before another rate adjustment of the
cedi. Bonsam Mottors delayed the repairs for several days during which Bisworks manager
took prospective customers to show them the progress of the work and to reassure them of his
earnestness to supply them the iron rods when the truck is repaired. The truck was ready

a week’s later, but completely broke down at Nsawam. Advice Biswork.

Past question, April 2006

Following the government’s announcement of the discovery of large deposits of gold in the Ahafo –
Ano District of Ashanti, Botsio started prospecting for gold without obtaining the license required by
statute. He paid a small fine each time he was convicted of the offence of prospecting for gold without
license. Such course of action was profitable to Bostio who openly bosted that he would continue to
prospect for gold without license.

Botsio has paid two million cedis to Aba as purchase price for the land on which the former is
prospecting. On learning that the land has gold deposits, Aba has refused to convey the land to Botsio.

Botsio has refused to share with Ntiamoah, his partner, the proceeds from the gold found by both. The
partners had agreed to share equally the proceeds of all gold discovered by them.

The Attorney-General has brought an action against Botsio to ensure that he complies with the statute.

In a separate action, Botsio has sued Aba for specific performance of agreement of sale of the land.
a. Give short judgements in the two cases, i.e. ATTORNEY – GENERAL V BOTSIO and
BOTSIO V ABA, paying attention to any remedies and defences, if any, available to the
parties.
b. What right(s), if any, has Ntiamoah against Botsio?
Past question April/May, 2010

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By a lease dated August 14, 2003, KNUST rented a four bedroom house at Ayigya for Dr. Opoku
Mensah, a lecturer at the faculty of law. It was a three-year lease that was to expire on August 13,
2006. In October 2004, Kofi Brokeman, the landlord of the leased property, began negotiation for the
sale of the house with Dr. Frimpong, a Lecturer at the Faculty of Engeneering, KNUST. Dr. Frimpong
and Dr. Opoku Mensah are close friends and sometimes visit each other at home. In November 2004,
Dr Frimpong advised Dr Poku Mensah to start looking for alternative accommodation as he intends to
buy the house and use it as a Guest House. On August 20, 2004, Kofi Brokeman executed a deed of
conveyance in favour of DSr Frimpong. The latter immediately served a three-month notice on
KNUST to vacate the premises. At the end of December 2004, Dr. Opoku Mensah will still occupying
the house and Dr Frimpong is contemplating taking court action to evict him from the house.

You have been consulted as Counsel by KNUST. Advice KNUST as to its chances of success should
the case go to court.
Past question April/May, 2010

NOTES

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