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THE MAJOR LEGAL TRADITIONS OF THE WORLD Formatted: Font: 12 pt

Formatted: Justified
A legal tradition is an aspect of a general culture and needs to be distinguished from a national
legal system , meaning the body of rules in operation in a particular society at a given time,
together with the institutions which go with them.
Legal systems may be grouped into families according to the tradition to which they belong. For
instance, the Australian and New Zealand legal systems belong to the common law tradition
whilst the Italian and West German legal systems belong to the civil law tradition. Legal system
will usually be the property of the territorial nation state, for this has come to be the normal unit
of political organization in the modern world. But legal tradition can belong to other units of
political organization, such as the European Community based on the Treaty of Rome.

Legal systems do not emerge out of nothing ; they possess a history and reflect ideas and make
use of institutions , which have developed over time, and been moulded by cultural and political
forces. As A W B Simpson in “Invitation to Law” rightly asserts, since a nation’s legal system
is a cultural phenomenon, the conception of a family of legal system or legal tradition involves
grouping together particular legal systems which make use of the same basic ideas, and thus
share some degree of cultural homogeneity. Legal system on the other hand have a more limited
function; they are the means through which the special business of lawyers, which is the
resolution of disputes and the ordering of social life through rules, can take place.

WHAT ARE THE MAJOR DIFFERENCES BETWEEN LEGAL SYSTEMS AND

LEGAL TRADITIONS

 Legal system involves all the branches of the law , the legal procedures , rules, usages in
a legal system whereas a legal tradition according to AWB Simpson involves grouping
together particular legal systems which make use of the same basic ideas thus cultural
homogeneity.
 While the world can boast of several legal systems, this is not same as legal traditions.
According to Merryman, three main legal traditions –Common law, Civil law and
socialist legal tradition.
 The concept of legal pluralism has made it possible for a legal system to have more than
one legal tradition operating within that legal system at the same time. Legal pluralism is
simply a reference to the co-existence of more than one form of law within the same
jurisdiction or legal system. In Ghana, as in most African countries, by reason of our
colonial history, we have a pluralistic legal system, with the system of law inherited from
the colonial period co-existing with the customary and religious systems of law.
 A legal system is confined to a particular state or territorial boundary. A legal tradition
however cuts across territories.

Two main legal traditions : the common law and the civil law.
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HISTORICAL DEVELOPMENT OF THE CIVIL LAW

The civil law or Romano-Germanic system is the legal system of countries predominantly based
or influenced by the Roman law (ius civile). This is the dominant and oldest legal tradition in
the world which covers significant parts of Europe, Asia and Africa. It all covers all of Central
and Southern America. The civil law has also contributed immensely to the development of
international law. For Merryman, the origins of the civil law can be traced to the publication of
the Twelve Tables in Rome in 450 BC.

AWB Simpson, in his book “invitation to law” attempts to trace the history of the civil law
tradition: Around the end of the third century, the Romans developed a sophisticated body of
private law which dealt with the relationship between citizens. This body of laws were developed
by jurists who were typically wealthy patrician individuals who acted as legal consultants and
wrote books about the law, not in return for money, but simply to acquire honour and prestige in
a society which revered the law. By the sixth century, there was a huge body of laws and juristic
opinions which gave rise to difficulties in locating the law. Emperor Justinian of Rome therefore
established a commission , led by the jurist Tribonian, to codify all the laws which were found in
the massive body of surviving juristic writings. By 534 AD, the Corpus Juris Civilis (or the
Compendium of Civil Law) , a collection of statutes (called codex) which comprised a digest (a
collection of juristic law sorted out into topics) and a book of Institutes (an official first year
comprehensive textbook on private law for students in the law schools of Byzantium and Beirut)
was published. Merryman asserts that the codification exercise by Justinian sought to abolish all
prior law except those included in the Corpus Juris Civilis. As such, most of the manuscripts of
the jurists of the classical era were destroyed. The first three books of the Institutes of Justinian
were of Persons, of Things and of Obligations.

According to Merryman, the civil law tradition is a composite of several distinct sub-traditions
with separate origins and developments in different periods of history. Of these sub-tradtions, the
major influences were Roman ciivl law, canon law and commercial law. With the fall of the
Roman Empire, Roman Civil law as espoused in the Corpus Juris Civilis fell into disuse.
However, in the twelfth century, during the Renaissance period in Italy, an intellectual and
scholarly interest in law reappeared and the first modern European Universities started teaching
law based on the Corpus Juris Civilis of Justinian. The Corpus Juris Civilis was polpular because
the people believed that it had the authority of both the pope and the temporal emperor behind it.
The people also recognized its high intellectual quality.

Within a short time, men from all over Europe came to Italy to study the Corpus Juris Civilis
which was taught in Latin. They returned to their nations and established universities where they
also taught the Corpus Juris Civilis and these became the basis of a common law of Europe
known as the jus commune. The jus commune gave Europeans a common body of law and of
writing about law, a common legal language and a common method of teaching and scholarship.
Even in some parts of Europe, the Roman civil law was formally received as binding law. The
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process by which nation-states of the civil law world came to include the jus commune in their
national legal systems was known as the Reception.

The second oldest component of the civil law, as set out by Merrymann is the canon law of the
Roman Catholic Church. This was developed by the church for its own governance and to
regulate the rights and obligations of Catholics. The ecclesiastical courts were developed for the
application of canon laws. The study of canon law was joined to the study of Roman Civil law or
Corpus Juris Civilis in the European universities and both laws contributed to the formation of
the jus commune. The canon law influence was mainly in the areas of family law and succession
, criminal law and the law of procedure.

The third is commercial law which is traced to established rules for the conduct of the
commercial affairs of Italian merchant guilds. It was the pragmatic creation of practical men
engaged in commerce, as such, interpretation and application went on in commercial courts
which had merchants as judges. The laws of the guilds soon took on an international quality and
it penetrated throughout the commercial world in Europe. These five sub traditions of the civil
law traditions are embodied in codes : the civil code, the commercial code, the civil procedure
code, the penal code and the criminal procedure code.

COMMON LAW

The common law legal system originated in England and spread throughout the world mainly
through colonization. It was partially received especially in Muslim countries such as India and
Pakistan, where it co-existed with Islamic and other local laws. According to Quansah, in other
countries such as the United States and Canada, the common law has been very adapted. It was
brought to some African countries such as Ghana, Botswana, Nigeria, kenya nad Zimbabwe
mainly through colonization.

There are three main phases in the development of the English law which is the oiriginator of the
common law. First, the development of the common law and the common law courts. Second the
development of equity and finally , the fusion together of common law and equity.

The Norman conquest of England in 1066 is generally considered to mark the beginning of the
history of English law. Before that England was not united and did not have a central
administration. There was the existence of diverse customary laws of German origin which were
supplemented by royal statutes. This period was called the Anglo-Saxon period. The local courts
were presided over by Bishops and Earls. After the battle of Hastings, William the conqueror
introduced a strong feudal system and brought an end to tribal rule. Every piece of land was held
by mediately or immediately by the Crown. The English King had his own Royal Courts (Courts
of common law) while the feudal Lords had local courts. This system paved the way for the
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common law. The Normans created a uniform and common law based on the unification of the
diverse local customary laws. The King’s court eventually split into three : the Exchequer (dealt
with financial matters), the Common Please (dealt with disputes about the rights in land) and the
King’s Bench (serious criminal matters).

Difficult cases were tried in Westminster where the Royal Courts were centralized. When similar
issues arose, the earlier solutions were applied. The law was thus common as between the royal
courts (hence the name common law). This gave rise to judicial precedence (stare decisis). Civil
action in common law were built around the writ system. To begin an action, the plaintiff had to
obtain a writ. The writ was a written command issued by the Lord Chancellor in the King’s name
ordering the defendant to appear in court and show cause why the plaintiff should not be given
the relief he claims. If there was no writ to cover what the plaintiff claimed then there was no
remedy.

The Commonlaw developed rapidly in the 13th century but by the 14th century it declined. This is
because it had some defects.
First, in the thirteenth century, the writ system covered very parochial ground, and the complaint
of each party had to conform almost impracticably to a specific writ. Hence failure to comply
with the writ specifications was fatal to a person’s case. The power to invent new writ meant also
the power to create new rights and duties. To preclude the recognition of new remedies, the
provisions of Oxford were enacted in 1258 which provided that the Chancellor could not on his
own initiative issue new writs. A new writ could only be issued if it had the command of the
King and his Council. This problem was mitigated by the Statute of Westminster II in 1258
which gave the Chancery clerks the power to invent new writs only if the case was in a like with
an existing writ. So if there existed a writ in a like case, falling under a similar law and requiring
a like remedy, the existing writ could be varied to meet the requirements of the new case. This
resulted in litigants not having a remedy either because there was in existence no writ to cover
their case or the existing writ could not be conveniently amended to fit the particular facts and
circumstances of the case.

Again, an error in the application of a writ can result in the action being lost. As indicated earlier,
the writ had complex rules and because of that mistakes were inevitable. Writs were also quite
expensive and discouraged potential litigants.
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Second, the doctrine of stare decisis or judicial precedence insisted that a previous case even if
wrongly decided remained a binding authority until overruled by a higher court unless it can be
shown to have been decided per incuriam or can conveniently be distinguished. This made it
impossible to depart from previous decisions to do justice in novel situations.

The third is the problem of defences and corruption. The personal power and influence of many
defendants prevented plaintiffs, often by bribery and intimidation of juries, from getting justice
before a common law court. Judges were also accused of bribery and corruption while the
defendants could delay proceedings.

Fourthly, the commonlaw remedies were inadequate. In that declarations and damages could be
awarded whilst injunction could not be placed on individuals. Thus the commonlaw remedies
acted in rem and not in personam.

Fifthly, the commonlaw did not recognize trust. Due to these defects, cases were brought to the
king –in-council.

Sixthly, a mortgagor at common law forever lost his right of redemption of the property if he
failed to redeem it at the precise date agreed on by the parties.

DEVELOPMENT OF EQUITY

Direct petitions were made to the King to grant an appropriate remedy for the injustice arising
from the deficiencies and limitations of the common law. This is because the King, as Fountain
of Justice, had the residue of judicial power. The petitions known as bills were addressed to the
King initially but as their numbers grew the petitions were referred to the Lord Chancellor
directed by the King. Subsequently, the proclamation of 1349 provided that certain petitions
should be directed to the chancellor. In 1474, the Chancellor issued the first decree on his own
authority and thereafter his own decrees were often made. The Lord Chancellor who was the
next most important person in the realm after the King was referred to as the ‘keeper of the
King’s conscience’ disregarded the common law formalities and stuck a fair dealing judging it
with his own conscience. The Chancellor operated upon principles of natural justice and fairness
and did not follow previous precedents. He gave rulings based on his own conscience of what he
thought was right and fair. John Seldom captures it thus “Equity varies with the length of the
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Chancellor’s foot.’ He was prepared to look beyond legal documents and to examine what the
parties had actually intended to do. Also, he resolved the problem of compelling the attendance
of the defendant with the issuance of a royal writ by means of a writ called a subpoena, ordering
the defendant to appear on pain of forfeiting a sum of money.

In its early stages, equity was not a system of law or fixed body of rules. Each case was decided
ad hoc by the Chancellor according to his own sense of justice. This made the outcome of a case
unpredictable partly because of the lack of precedence as well as the fact that the conscience of
the Chancellor differed from one person to the other. Later in 1672, all Chancellors were trained
lawyers. From the Chancellorship of Lord Nottingham in 1673 as well as Lord Shaftesbury and
Lord Eldon, equity was transformed from a jurisdiction based conscience of the Chancellor into
a system constructed around established principles and rules separate and distinct from the
commonlaw. Because of his great work of systematisation of the principles of equity, Lord
Nottingham is known as the father of Equity. In 1818, the rules of equity were as fixed as those
of the common law. This body of law supplemented the common law and sometimes even
corrected it.

Nonetheless, unavoidable overlap of the two systems led to some conflict between them, and
occasionally the common law courts would make an order in favour of one party while the Court
of Chancery made an order in favour of the other. The conflict was resolved by James the 1 st
in the Earl of Oxford’s Case (1616) in the seventeenth century where Lord Ellesmere ruled that
equity should prevail; in other words in cases of conflict the ruling of the Court of Chancery is to
be followed, a ruling incorporated in section 25 of the Judicature Act of 1873.

Finally, by the nineteenth century many of the original advantages of equity over the common
law courts had disappeared. The Chancery system became very slow and rigid with cases taking
years to resolve. Its rules became so fixed that a ‘rigor aequitatis’ developed. The Judicature
Acts of 1873 and 1875 finally fused the two systems. The Judicature Act of 1873 which came
into force in 1875 abolished the King’s Bench, Common Pleas, Exchequer and Probate , Divorce
and Admiralty as well as the equity court and established a single High Court with the
jurisdiction to administer both law and equity. One of the most fundamental effects of the
Judicature Acts was to prevent the multiplicity of proceedings so that all matters in controversy,
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whether legal or equitable, might be finally and completely determined by the same court in the
same suit.

It must be emphasized that it was a fusion of jurisdiction and not law. As Ashburner ‘Principles
of Equity’ puts it ‘The two streams of jurisdiction though they run in the same channel , run side
by side and do not mingle their waters’. This has been rejected by modern authorities like Sir
George Jessel who argues that as there is only one court and that equity laws prevail it is a fusion
in both jurisdiction and law. This was supported by the Law Lords in United Scientific Borough
Council. Maitland contends that so much should not be read into the fact that equity prevails
over the common law as equity would not exist without the common law.

BASIC DIFFERENCES BETWEEN THE COMMON LAW AND THE CIVIL LAW

 E.K. Quansah arguing from a philosophical perspective, asserts that the civil law is
based on rationalism and is essentially deductive. It starts from broad principles that are
then applied to individual cases. By contrast the common law is inductive and operates
on the principle that knowledge is derived from experience. Based on this the civil law
can be described as dogmatic (expressing rigid opinions) where as the common law is
empirical (derived solely from experience). The common law as Oliver Wendel Holmes
Jnr said is not based on logic but experience whilst het civil law is based more on logic
than experience. 1 Formatted: Font: 12 pt

 From a historical perspective, the civil law system is based on and has substantially been Formatted: Font: 12 pt

influenced by Justinian codes. By contrast, the influence of Roman law on common law
is very insignificant
 The civil law system is based on codes, which are essentially comprehensive and
systematically stated provisions of the different braches of the law , complemented by
subsequent legislation. For example, the Italian cinque codici consists of the civil code,
the code of civil procedure etc. These codes lay down a number of precepts in the
different topics that they cover, which are assumed to be universally valid, irrespective of
the time or place in which they apply. The common law by contrast is essentially judge
made law, which seeks to provide solutions to individual disputes rather than law down
universal rules of conduct and it , is expressed in court actions and legal remedies rather
than substantive rules.
 The doctrine of binding precedent or stare decisis which require the lower courts to
follow the laid down rules of the higher courts is found in the common law system which
does not apply to the civil law system. Lower courts do take notice of the higher courts
with the belief that their decisions may be reversed on appeal
 The legislative technique in the two systems are different. In the civil law system, the
legislature drafts the main outline of the law and leaves the executive with much

1
Quansah E K
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discretion to work out details by means of secondary legislation. The common law
tradition however is for the legislature to draft laws in a detailed manner leaving the
executive with little to be regulated.
 The structure of the courts in the two systems is different. In common law countries, the
judiciary normally consists of a uniform body of courts which settle all types of disputes.
In civil law countries the arrangement is different; there are separate courts which have
jurisdiction for settling disputes between the administration and the citizens which are
known as administrative courts and a separate court for settling disputes between citizens
which are known as ordinary courts.
 The common law is an adversarial system , that is a contest between two opposing parties
before a judge who moderates. The civil law system on the other hand is inquisitorial. A
judge often brings the formal charges, investigates the matter and decides on the cases
based on the framework provided by the codes.
 In the common law system, a jury of ordinary people without legal training decide on
questions of fact. Contra, in the civil law, the judges establish the facts of the case. Juries
may be used only in a criminal trial
 The common law judge determines the appropriate sentence based on the jury’s verdict.
The civil law judge however applies the provisions of the applicable codes in terms of
passing sentence.
 In the common law system, judges are trained as lawyers and appointed to the various
courts however in the civil law system, judges receive special training to qualify as
judges.
 Lawyers in the common law are generally trained as generalists whereas lawyers in the
civil law are trained as specialists Formatted: Font: 12 pt

GHANA LEGAL SYSTEM

Our legal tradition belongs predominantly to the commonwealth tradition but also has elements
of two other traditions thus the African law tradition and the religion based tradition. Because of
this our legal system is said to be pluralistic. Our legal system is common law based.

Our legal system is divided into criminal and civil. As far as our actions, conduct and behavior
are concerned of which they are so serious as to the safety of our society , such will be classified
as criminal. Such conduct is addressed by the state. The citizen may be affected in a way but it is
the state which is rather aggrieved. Here the Attorney General represents the government as can
be found in art. 88 of our constitution, where it states that the attorney general shall be
responsible for the initiation and conduct of all prosecutions of criminal offences in clause 3.the
police also prosecute on behalf of the A.G . They collect information based on the evidence and
forward it to the A.G.

As opposed to the criminal jurisdiction, the civil jurisdiction addresses disagreements between
private individuals. What our legal system characterize as civil law are actions confined to the
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private individuals. Here the state does not get involved. It is possible that the private
disagreement may degenerate to affect the whole society. Eg. If two people have a disagreement
within the street and so attracts the attention of a lot of people in the society, they can be
prosecuted for a breach of public peace. Hence it is possible for that to escalate into a crime.

Our legal system also differentiates by terminologies. In the criminal jurisdiction we say a person
has been prosecuted and not sued as in the civil jurisdiction. If the person is prosecuted the result
will be whether the person is guilty or not. If the person is guilty, the person will be convicted
which would be followed by a sentence in the form of a fine or imprisonment. For imprisonment
there is a scale between 0-death. This is because the legal system leaves to the judge the
discretion to give his punishment. Generally speaking the law makers attach minimum sentences.

When a person is not guilty however he will be acquitted, then he must be discharged. Art. 19
clause 7 says once a person has been either convicted or acquitted in a court for criminal offence
he can ever be charged again for the same offence unless the Superior Court demands so. i.e.
double jeopardy.

NB Cost is money that a party might have spent which is leveled against the other party to pay
in the course of the trial and not a fine .

The one who initiates the civil procedure is the plaintiff and the other against is the defendant. If
you bring an application you are an applicant and the other is the respondent.

In the civil court the outcome is whether the person is liable or not whilst in the criminal
jurisdiction the outcome is whether the person is not guilty or not.

Also in the civil jurisdiction the case is proved on equal probability thus 50-50 as of being
proven beyond reasonable doubt in criminal cases.

In our legal system apart from the above, there are two elements:

*the prohibited act (ACTUS REUS )

*The requisite state of mind(MENS REA).

If the person does the prohibited act without the requisite state of mind then the person is
acquitted.

The title of a case can also tell us whether it is civil or criminal.

Republic v. Alhaji

State

R.
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The above is that of the criminal court. The R stands for Rex or Regina meaning king and
queen respectively.

But if it is Alhaji v. Mensah then it is civil.

CLASSIFICATIONS OR DIVISIONS OF THE BRANCHES OF THE LAW

WHAT IS CLASSIFICATION OR DIVISION IN THE BRANCHES OF THE LAW?

This refers to the grouping together of the law because of specific similarities in their origin,
principle and their application and effect in the field of law. It implies organizing legal
information into subjects or fields of learning for the sole purpose of finding a proper solution to
a legal problem

THE SUBJECT OF CLASSIFICATION IS IMPORTANT FOR SEVERAL REASONS:

1. It facilitates access to legal information. This means that it helps students and researchers
to have access to information easily.
2. The way law is practiced along jurisdiction. It helps to bring about certainty and
predictability.
3. Classification brings about orderliness into the law.
4. It helps us to dichotomize lay notions of human interactions(mere paths) and legal
notions of human interactions.[fisher v. Bell],[Carlil v. Carbolic Smoke Ball],[Central
London Property Trust v. High Trees House]
5. It helps members of the legal community (lawyers, Academics and judges) to gain deeper
understanding and experience in the field of law.
6. It facilitates effective operation of the court system. Thus it facilitates the administration
of justice.
7. It assists the courts to know the mode of trial to adopt. Thus helps the Judge to know the
mode of trial in a case. Eg. Whether felony, indictment etc.

It should be noted that:

1. Some of the classifications overlap. Some are within others.

2. The classification of the law differs widely depending on the purpose a field of law is
serving and how that field has evolved.
3. Some kinds have served useful purpose in the past but their relevance today is diminished
significantly.

THE VARIOUS CLASSIFICATIONS ARE :

1. CRIMES AND CIVIL WRONGS: generally the law is divided into two categories;
criminal branch and civil branch of the law. Glanville Williams in his book, learning the law
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says that this classification hinges on the legal consequences that may follow the act and not
just the wrongful nature of the act. In criminal law it is a crime against the state but civil is
against individuals.

Criminal and civil wrongs (torts/ contract) become clear when you look at the procedure
adopted in both systems, outcome reached on both cases and finally terminologies. In
criminal proceedings there is a prosecutor prosecuting an accused. The result in the criminal
proceeding is that the accused is either convicted or acquitted. When convicted you are
guilty. If acquitted you are not guilty. If a person is convicted he will be punishable by a fine
or imprisonment or both.

In civil proceedings, the plaintiff sues or brings an action against the defendant. The outcome
is a judgment which may order to the losing party to pay damages in the form of money, or
you may be asked to do an act by transferring a property.

In re matter Poku- means Poku is deceased

Ex –Parte –without notice

Habeas corpus-produce the body

In bonis

CIVIL KIND OF CLASSIFICATION

1. BREACH OF CONTRACT: the law of contract deals with the legal effects of agreements
in civil law. It informs how a legally effective contract has been broken. In short contract
law is about agreements and promises.
2. TORT: the law of torts or civil wrongs consists of the law governing wrongs such as trespass
to land, false imprisonment, libel and slander, nuisance and the negligent infliction of injury.
The tort is a civil wrong which is independent of contract. This is the main contrast with
contract. They do not happen to consist either in the breach of agreements or in breaches of
trusts.

By civil wrongs we mean a wrong whose remedy is intended to help the victim. Thus it is
mainly concerned with compensation for injury and not to punish the wrong doer. Whereas
contractual obligations are usually voluntarily assumed, tort law duties are typically imposed
upon us whether we like it or not.

As the matter stands the law of torts currently appear to reflect a tension between two
different theories of civil liability. According to the first, liability should occur when there is
a deliberately inflicted injury or fault in the rather artificial sense which of a failure to exhibit
care on the part of a reasonable person. The second one is that liability should not rely on
fault at all. It should be strict and rely on the individual whose activities led to the act.
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3. THE LAW OF PROPERTY: A property can be movable or immovable. Immovable ones

are landed properties such as buildings and lands. Movable could be tangible or intangible.
Immovable property law deals with rules that govern the transfer of interest in landed
property such as house, houses and things on them. The law of trust is a sub division of the
law of property. A trust arises when a property is given to someone, a trustee on the
understanding that the trustee is to hold and manage the property for the benefit of someone
else, a beneficiary. If the trust is in a will, the one who writes the will is known as the testator
and the beneficiary in the will is known as cestui que truste. There is private trust and public
trust, this distinction is made by the purpose of creating the trust. Public or charitable trust is
made at promoting public welfare.

CLASSIFICATION OF CRIMINAL OFFENCES

Crimes are divided based on their mode of trial. Crimes are divided into 3 main categories:

1. INDICTABLE AND SUMMARY OFFENCES: This division highlights the two possible
forms of trial under criminal jurisprudence. This classification is by means of dividing crimes
into indictable and summary. Indictable trial is a mode of trial adopted by the courts for very
serious offences such as murder. For an offence of murder, the procedure is that it is tried by
a judge and a jury in Ghana. If the mode of trial is indictment, the prosecution charge you
with an offence and put you before the lowest court (district or magistrate court) to commit
you for trial which is known as committal proceedings. Here the prosecution presents
before the magistrate two documents. The first is the Bill of Indictment which states in
writing the charge against the accused person. Stealing contrary to section 124 of Act 29
(1960) is the charge for stealing. The second (summary of evidence ) must contain the list of
all the witnesses who will be called by prosecution and a summary of evidence to be given
by each witness. What the judge does is to determine issues of law. That is the magistrate
examines the evidences and proceed. The judge commits the accused person to the high court
after the summary of evidence.

With the summary trial, it is a more expeditious mode of trial which is used for the less
serious type of offences. This is applied for all offences not tried on indictment in Ghana.
Here it is only before a judge or a magistrate. Summary offences require no jury.

2. INCHOATE OFFENCES AND COMPLETE OFFENCES: Inchoate offences are those

offences committed based on steps taken by the accused person. These offences are
incomplete. These offences are deemed to have been committed even though the person did
not finish with the execution of the offence. For inchoate offences, it is difficult to find the
action-Eg is attempt under Section 18 of Criminal offences Act. Act 29

With the complete offences, the offence has been fully committed. There is both the elements
of Actus Reus ( there must be committing of the act) and mens rea (there must be an
intention to commit the act)
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3. BAILABLE AND NON-BAILABLE OFFENCES: Persons who commit non bailable

offences are not to be granted bail. Before the SC case of martin Kpebu v AG, non bailable
offences include murder, armed robbery. However This has been changed by the SC case of
Martin Kpebu v AG . In Martin Kpebu v AG (5-2 majority), the Supreme Court declared
section 97(7) of Act 30 unconstitutional. Hence a court that has jurisdiction to try murder,
rape, treason, piracy, defilement etc has jurisdiction to grant bail. It however behooves on the
court to set appropriate conditions in the granting of bail. A bail is a person who is standing
surety to procure your release from arrest. For a bailable offence , a person will be allowed
bail if he provides surety which could be self – recognizance. The sureties duty is to ensure
that the person granted bail is produced before a custodial body, thus a court or police.

OTHER MODES OF CLASSIFICATION

Other classifications cut across both civil and criminal.

1. SUBSTANTIVE AND ADJECTIVAL LAW: Substantive law lays down people’s rights,
duties, liabilities and powers. They are the substantive areas of the law which deals with the
rights of individuals and corporations. Substantive fields in Ghana include, contract law, tort
and even criminal law. These are substantive rules that govern us in the adjudication of cases.
Act 29 is a substantive act in criminal matters.

Procedural or adjectival law deals with the enforcement of individual rights and liberties.
They are the rules which deal with how the cases should be framed and tried in the law
courts.

Procedurally, to enforce any of your civil rights, you use the High Court Civil Procedure
Rules (CI 47). Another procedural rule is the Evidence Act-NRCD 323 which deals with how
to lead evidence in court.

2. PUBLIC AND PRIVATE LAW : This classification is based on the degree of relationship
or connection that exists between the parties concerned. On one hand, public law is
concerned with the relationship between the state and individuals or group of individuals and
also between the various state organs. Public law therefore regulate the activities of the state
vis-à-vis its subjects. The main branches of public law are constitutional law, administrative
law, adjectival law and criminal law. Constitutional law regulate the structure and functions
of the principal organs of the state such as the executive, legislature, judiciary.
Administrative law is concerned with the regulation of governmental and administrative
agencies. Adjectival law prescribes rules by which litigation is conducted and allegations
proved in the court of law.

On the other hand, private law concerns itself with regulating the relationship between
individuals. The main branches of private law are family law, the law of property, the law of
contract , the law of succession and the law of torts. Family law regulates family
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relationships such as marriage and divorce. The law of succession deals with the manner of
disposition of a deceased estate. The law of property determines the nature and extent of
rights which a person may enjoy over things such as land. Thus ownership , mortgage and
pledges form part of this law. the law of tort represents the means whereby individuals may
protect their private interest and obtain compensation from those who violate them.

3. INTERNATIONAL AND MUNICIPAL LAW : National (municipal) law is the law

operating within boundaries of a particular state. This is what Blackstone describes as the
rule of civil conduct prescribed by the supreme power in a state commanding what is right
and prohibiting what is wrong. A sub branch of national law is private international law (
conflict of laws which sets out which national law governs a case with a foreign element)

Public international law however comprises a system of rules and principles that govern the
international relationship between sovereign states and other institutional subjects of
international law such as the United Nations and the ECOWAS.

In the relationship between public international law and municipal law, it must be noted that
Ghana belongs to the dualist system where international conventions and treaties do not
assume automatic operation in Ghana. They must be first ratified and incorporated into
national legislation by parliament before they can have the force and effect in Ghana (Article
75 of the 1992 Constitution). The monist approach involves the automatic incorporation of
international legal instruments into laws.

SOURCES OF GHANA LAW

MEANING OF SOURCES OF LAW

The terms sources of law may have several meanings.

 It may mean that which gives the law its formal validity (formal source) for example the
constitution.
 It may also mean the direct means which law is made or comes into existence (legal
source) for example legislation and
 It may also mean the written materials from which we obtain knowledge of what the law
is or was at any given time (literal source) for example Sarbah’s Fanti Customary Laws
and Rattrays Ashanti Law and Constitution.
 It may mean factors that have influenced the development of the law, and from which
the content of the law may be traced (history or material source)
 According to C.K. Allen , ‘Law in the making’, sources may be said to be those agencies
by which rules of conduct acquire the character of law by becoming objectively definite,
uniform and above all compulsory.
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There are primary and secondary sources of law in Ghana. The primary sources of law in Ghana
are the Constitution, legislation and the common law. Whilst the secondary sources are writings
about law in books, especially scholarly works, legal periodicals, government publications, law
reform documents, parliamentary debate, newspapers containing edited law reports.

It is in this context that article 11(1) of the Fourth Republican Constitution, 1992 defines the
Laws of Ghana (the primary sources) as comprising :

a. This Constitution
b. Enactment made by or under the authority of parliament established by this
constitution [legislation];
c. Any Orders, Rules and Regulations made by any person or authority under a power
conferred by this constitution [subsidiary or subordinate legislation];
d. The existing law; [the written and unwritten law that existed immediately before the
coming into force of the 1992 Constitution]and
e. The common law [the English common law , English doctrines of Equity and the
rules of customary law]

THE CONSTITUTION AS A SOURCE OF LAW

Article 1(2) provides that : this constitution shall be the supreme law of Ghana and any other law
found to be inconsistent shall to the extent of the insistency be void. This therefore establishes
the supremacy of the constitution. This suggests therefore that the supremacy of parliament is
limited and parliamentary enactments and those of previous legislation are subject to the
supremacy of the Constitution. In New Patriotic Party v Attorney General (31 st December Case )
Aikins JSC said: in my view, even though Parliament has the right to legislate, this right is not
without limit and the right to enact law that 4 June and 31 st 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 (2) of the Constitution,
1992, any law found to be inconsistent with any provision of the Constitution (supremacy of
law shall, to the extent of such inconsistency , be void.’ This dictum reiterates the fundamental
nature of the constitution. All laws derive their validity from this constitution and although there
were existing laws before the coming into force of this constitution, in so far as they are not
inconsistent with the provisions of the constitution, will continue in force as if enacted , issued or
made under the authority of the constitution. This can be seen from article 11(4), (5) and (6).

LEGISLATION

Legislation can create not only new law but can also alter or repeal existing laws as well as affect
the existence and content of other sources of law. Article 93(2) vests the legislative power in
parliament which will be exercised in accordance with the provisions of the 1992 Constitution.
Parliament therefore is not supreme in so far as the exercise of its legislative powers is subject to
the provisions of the Constitution. This can be seen in article 1(2). The effect of article 2(1) was
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considered by the Supreme Court in the case of Mensima v. Attorney - General. The plaintiffs
who were members of a registered cooperative union broke off from the union and formed a
limited liability company, they were prevented from distilling the said gin by the officers of the
cooperative union; they were harassed and their products ceased by the officers on the grounds
inter alia that , they did not belong to any registered distiller’s co-operative union; and also
having no licence as required by regulation 3(1) by the Manufacturer and Sale of Spirits
Regulations ,1962. The plaintiffs brought an action in the Supreme Court under Article 2(1) of
the 1992 Constitution for a declaration , inter alia, that regulation 3(1) of L.I 239 , which made it
mandatory for an applicant “for the issue distiller’s license” to belong to a registered distiller’s
cooperative, was inconsistent with the letter and spirit of the 1992 Constitution, particularly the
exercise of their fundamental right of freedom of association guaranteed under article 21(1)(e)
of the 1992 Constitution. The court declared regulation 3(1) of LI 239 null and void for being
inconsistent with the letter and spirit of the 1992 Constitution, particularly Article 21(1)(e)
thereof because of its mandatory requirement for an applicant for a distiller’s license to belong to
a registered distiller’s cooperative. The court went further that “…Article 1(2) of the 1992
Constitution is the bulwark which not only fortifies the supremacy of the Constitution but also
makes it impossible for any law or provision inconsistent with the Constitution to be given effect
to. And once the constitution does not contain a schedule of laws repealed by virtue of its
provision, whenever the constitutionality of any law vis-a-vis a provision of the constitution is
challenged the only court is to examine the relevant law and the constitution as a whole to
determine the authenticity of the challenge. And in this regard, the fact that the alleged law has
not specifically been repealed is totally immaterial and afford no validity to the law. for article
2(1) contains a built-in mechanism which automatically comes into play whenever it is found
that a law is inconsistent with the constitution”

The lack of jurisdiction of the legislative supremacy of Parliament , if also emphasized in the
dictum of Aikins JSC in the 31st December case: “ 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 4 June and 31
December should be declared public holidays cannot be left to linger in the realm of public
policy. Such legislation should 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.”

Parliament’s legislative power is further limited in other aspects :

Its power do not extent to the making of a law to alter the decision or judgment of any court nor
may it create a law which operates retroactively, Article 107. Also in Article 3(1) Parliament has
no power to legislate for the creation of a one – party state, nor can it make laws relating to
chieftaincy without have referred the draft to the National house of Chiefs for advice in article
106(3) of the Constitution. Finally Parliament cannot make laws relating to financial and
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budgetary matters “unless the Bill is introduced or the motion is introduced by , or on behalf of
the President”.

SUBSIDIARY/DELEGATED/ SURBODINATE LEGISLATION

According to Victor Essien, “Researching Ghanaian Law” this legislation is one made by a
subordinate body, such as a District Assembly or a Minister of State, under the authority of
Parliament or the Constitution, usually through the delegation of the legislative power in a
statute. This is also affirmed under Article 11 of the Constitution that any orders, rules and
regulations made by any person or authority a power conferred by this constitution as part of the
sources of Ghana law. In terms of article 11(7), subsidiary legislation when made shall be laid
before Parliament , published in the Gazette and will come into force after twenty –one sitting
days of Parliament, unless two –thirds or more of members of Parliament vote to annul it .
Parliament lacks power to amend any such subsidiary legislation except to annul it or allow it to
come into effect.

FORMS OF SUBSIDIARY LEGISLATION

STATUTORY INSTRUMENTS: these are instruments made directly or indirectly, under a

power conferred by an Act of Parliament or a Decree of law. For example section 158 of the
Local Government Act 1993 gives the Minster of Local Government and Rural Development the
power to make regulations for the purpose of carrying the Act into effect. Any regulation made
by the Minister in pursuance of this power will be called a statutory instrument. The Statutory
Instrument Rules 1960, LI 39 govern the form of a statutory instrument. There are two kinds of
statutory instruments-legislative instruments and executive instruments.

LEGISLATIVE INSTRUMENT (LI)

These are those statutory instruments made under powers expressed to be exercisable by
legislative instrument. For example section 73 of the Economic and Organized Crime Act 2010
(Act 804) under which the A-G and the Minister of Justice may by legislative instrument make
regulations for , inter alia, tracking tainted property and for seizure of such goods. Generally
such instruments will determine or alter a law rather than applying it to a particular case. An
example of legislative instrument is the legal profession Rules 1969, LI 613.

EXECUTIVE INSTRUMENTS: These are instruments which are neither legislative

instruments nor instruments of judicial character. The executive arm of state is usually
empowered to issue such instruments. Example is section 4 of the Public Order Act 1994, Act
491 which empowers the Minister of Interior by executive instrument to impose curfew on any
part of the country if the circumstances warrant it.

CONSTITUTIONAL INSTRUMENTS: These are instruments made under a power conferred

by the constitution. For example , the Commission of Inquiry Instrument, 2009 which appointed
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a commission of inquiry under article 278 of the Constitution to inquiry into the operations of the
Ghana @ 50 Secretariat and matters incidental to the Ghana @ 50 Celebrations. Constitutional
instruments must be construed as one with the Constitution.

In Mornah v Attorney General [2013] SCGLR (Special Edition) 502, the Supreme Court
ruled that a constitutional instrument, which permitted the Supreme Court to engage in official
business and thus sit on presidential election petition from day to day, including Saturdays,
Sundays and public holidays, violated the Public Holidays Act, 2001 (Act 601).

THE EXISTING LAW

Article 11(4) of the 1992 Constitution provides that the existing law shall except as otherwise
provided in article 11(1) of the 1992 Constitution comprise the written and unwritten laws of
Ghana, as they existed immediately before the coming into force of the Constitution and any act,
decree, laws or statutory instrument issued or made before that date, which is to come into force
on or after that date. It should be emphasized that article 11(5) states that the existing law “shall
not be affected by the coming into force” of the Constitution and that under article 11(6) , the
existing law “shall be construed with any modifications, adaptations , qualifications, and
exceptions necessary to bring it into conformity with the provisions of the Constitution.”

Thus in Ellis v Attorney-General, SC upheld an enactment, ie the Hemang Lands (Acquisition

and Compensation) Law, 1992 (PNDCL 294), as an existing law. The plaintiff, claiming that
PNDCL 294 had unlawfully expropriated his lands, sued for a declaration that PNDCL 294 was
a nullity for being inconsistent with or contravening the Constitution, 1992. The Supreme Court
rejected the claim because PNDCL 294 as an enactment, had been passed and the plaintiff’s
lands had been acquired and vested in the Republic before the coming into force of the
Constitution on 7 January 1993. In his opinion in support of the decision, Atuguba JSC said at
page 41 “PNDCL 294 relates to matters concluded by it both in terms of the vesting of the
plaintiff’s lands in the PNDC on behalf of the Republic and as to the quantum of compensation
for the same. As these matters do not fall to be done on or after the coming into force of the 1992
Constitution; that Law, even if it is regarded as an operative existing law within the meaning of
article 11(5), is incapable of infringing the 1992 Constitution.” Also in Kangah v. Kyere the
Supreme Court held that the Chieftaincy Act 1971 (Act 370) should be construed as an existing
law in so far as it was not inconsistent with any provision of the Constitution 1979 and that the
operation of the Act was not affected by the Constitution.

The decision in Ellis v AG and that in Kangah v Kyere may be contrasted with the decision in
Mensima v Attorney –General[1996-97] SCGLR 676 . In this case, the plaintiffs, members of
a registered co-operative union, broke off from the union and formed a limited liability company.
The object of the company was to distil a locally manufactuered gin called akpeteshie. They
were prevented from distilling akpeteshie by the officers of the co-operative union; they were
also harassed and their products were impounded by the officers on the grounds , inter alia, that
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they did not belong to any registered distiller’s co-operative union and did not have a licence as
required by regulation 3 (1) of the Manufacture and Sale of Spirit Regulations 1962 (L I239),
which provided that : “Every applicant for the issue of a distiller’s licence shall be a member of a
registered Distller’s Co-operative.”

The plaintiffs therefore sued in the SC under article 2(1) of the Constitution 1992 for a
declaration, inter alia that regulation 3(1) of LI 239, which made it mandatory for an applicant
“for the issue of a distiller’s licence” to belong to a registered distiller’s co-operative , was
inconsistent with the letter and spirit of the Constitution, particularly the exercise of their
fundamental rights of freedom of association guaranteed under article 21(1) (e) of the
Constitution.

The Supreme Court , by a majority decision, upheld the claim. It was held that as an existing law,
regulation 3(1) of LI 239 was inconsistent with article 21(1) (e) of the Constitution, 1992 and
therefore void.

THE COMMON LAW

Article 11(2) of the Constitution says that the common law of Ghana comprise of the rules of law
generally known as the common law, the rules generally known as the doctrines of equity and
the rules of customary law including those determined by the superior court of judicature.

What is meant by customary law included in the above definition of the common law of Ghana
has been defined by article 11(3) of the Constitution as “the rules of law which by custom are
applicable to particular communities in Ghana.

According to section 18(1) of the Interpretation Act, 1960 (CA 4), customary law, as comprised
in the laws of Ghana , consists of rules of law which by custom are applicable to particular
communities in Ghana, not being rules included in the common law under any enactment
providing for the assimilation of such rules of customary law as are suitable to general
application.

In 1876 when Ghana was colonized, the British passed the Supreme Court Ordinance of 1876
where under section 87 it was stated that in the adjudication of cases, the colonial judges had to
have regard to local custom and usage. During the mercantile period, Capt. McClean used
judicial assessors to adjudicate cases outside the forts and castles. This was regularized in 1876
by the SC Ordinance.

In Angu v Attah, it was held that a rule of customary law has to be proved in the first instance
by calling witnesses acquainted with the native customs until the particular have , by frequent
proof in the courts become so notorious that the courts take judicial notice of them. Expert
assistance may be sort by the court.
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The courts are however not to apply or adopt a customary law , rule or principle which is
contrary to statute or natural justice equity and good conscience.

ASCERTAINMENT OF CUSTOMARY LAW-SECTION 55 OF COURTS ACT, 1993

(ACT 459)

1. Any question as to existence or content of a rule of customary law is a question of law for
the court and not a question of fact.
2. If there is doubt as to the existence or content of a rule of customary law relevant in any
proceedings before a court, the court may adjourn the proceedings to enable an inquiry to
be made under subsection (3) of this section after the court has considered submissions
made by or on behalf of the parties and after the court has considered reported cases,
textbooks and other sources that may be appropriate to het proceedings.
3. The inquiry shall be held as part of the proceedings in such manner as the court considers
expedient, and the provisions of this Act relating to the attendance and testimony of
witnesses shall apply with such modifications as may appear to the court to be necessary.
4. The decision as to the persons who are to be heard at the inquiry shall be one for the
court, after hearing the submissions on it made by or on behalf of the parties.
5. The court may request a House of Chiefs, Divisional or Traditional Council or other body
with knowledge of the customary law in question to state its opinion which may be laid
before the inquiry in written form.

It should be noted also that section 54 of Act 459 contains the choice of law rules. Contains the
personal law rules. See Youhana v Abboud

Application of English Statutes of General Application –Section 119 of Act 459 :

(1) Until provision is made by law in Ghana, the Statues of England specified in the Second
Schedule to this Act shall continue to apply in Ghana as statutes of General application
subject to any statute in Ghana. (Sections 1 and 2 of the Partitions Act; section 4 of the
Cestiuque Vic Act ; Sections 1 to 8 of the Prescription Act; sections 6 to 8 of the Real
Property Act; sections 1 and 2 of the Libel Act; Sections 1 to 5 and 7 to 34 of the Trustee
Act; Section 12 of the Charitable Trusts Act)

INTERNATIONAL AGREEMENTS:

Article 75 :

(1) The President may execute or cause to be executed treaties, agreements or conventions in
the name of Ghana.
(2) A treaty , agreement or convention executed by or under the authority of the President
shall be subject to ratification by –
(a) Act of Parliament; or
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(b) a resolution of Parliament supported by the votes of more than one-half of all the
members of Parliament.

Thus, under Article 75, an international instrument will not be part of the laws of Ghana unless
and until the said treaty, agreement or convention has been ratified by parliament and same has
been incorporated into our laws. (In the CIBA case however, Bamford Addo JSC expressed the
view that where the said treaty is self executing, it may be applicable notwithstanding the fact
that it has not gone through the ratification process)

The Government of Ghana is reminded under Article 73 of the Constitution 1992 to conduct its
international affairs in consonance with the accepted principles of public international law and
diplomacy in a manner consistent with the national interest of Ghana.

Article 40 of the 1992 Constitution indicates that the Government shall seek the establishment
of a just and equitable international economic and social order as well as promote respect for
international law, treaty obligations and the settlement of international disputes by peaceful
means.

40(d) adhere to the principles enshrined in or as the case may be, the aims and ideals of the
Charter of the UN; the Charter of the AU; the Commonwealth; the Treaty of ECOWAS as well
as any other treaty of which Ghana is a member.

THE FOLLOWING MUST BE NOTED :

 Where there is a conflict between two different types of laws, the latter statute prevails
 Where a statute conflicts with the common law or the customary law, the provisions of
the statute prevail
 Where there is a conflict between different sources of law within the common law,
English statutes will take precedence over the common law in the narrow sense and
equity; while rules of equity will prevail over the rules of common law.

IMPORTANCE OF THE SOURCES OF LAW

 Knowledge of the sources of law enables a distinction to be drawn between rules which
are proposed or desired or morally worthy to be laws and rules which are actually laws.
 Also once the sources of law are known; it is possible to determine where one should
look to discover the law on a subject. For instance if a rule is set forth in an act of
Parliament then one can be sure that this is a source of law.
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THE COURT SYSTEM

NOTE:

Three types of jurisdiction:

 ORIGINAL JURISDICTION: where a person goes to the trial court for the first time.
 APPELLATE JURISDICTION: Where a dissatisfied party brings his dissatisfaction to
another court. The court of appeal has only appellate jurisdiction, the high court has both
appellate and original jurisdiction and the circuit court has only original jurisdiction.
 SUPERVISORY JURISDICTION: this is the power the superior courts have in making
sure the lower courts are performing according to law. The Supreme Court exercises this
over all courts.

Our court system is divided into two: the superior courts which are established by the
constitution and include the high court or regional tribunal court, the court of appeal and the
Supreme Court in ascending other.

 Quasi Judiciary: this is not part of the court system but has powers to adjudicate over
cases. Examples are CHRAJ , National Media Commission, National Labour
Commission.
 Personnel: Judges are referred to as the bench, lawyers are the legal practitioners. The
business of advocacy in the court room is the barrister and the business of sitting in the
office drawing up cases is solicitors. But these are found in Britain. in Ghana they are all
referred to as legal practitioners.
NB: Commission of enquiry is not part of our judicial system, it is a fact finding body
established by the executive.
 Petition is used only in civil cases. They are used only in election and divorce cases.
 Director of public prosecutions takes care of criminal cases, solicitor general takes care of
civil cases and director of parliamentary drafts takes care of drafts by the legislature.

COMPOSITION OF COURTS

Article 126 of the 1992 Constitution :

(1) The Judiciary shall consist of :

(a) the Superior Courts of Judicature comprising –
(i) the Supreme Court;
(ii) the Court of Appeal; and
(iii) the High Court and Regional Tribunals
(b) such lower courts or tribunals as Parliament may by law establish.
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THE SUPREME COURT

By Article 129 and section 2(1) of Act 459, the supreme court shall be the final court of Appeal
in Ghana. Article 130(1) of the 1992 Constitution and section 3(1) of Act 459 grants the SC
exclusive original jurisdiction in all matters relating to the interpretation of the constitution;
whether an Act was made in excess of the powers conferred on parliament or any other authority
or person by law or under the Constitution. The combined effects of Article 2 and 1(2) which
establishes the supremacy of the constitution is that the court has power to declare void any law
found to be inconsistent with the Constitution. In the case of Sam (No 2) v Attorney General,
the court declared that : “it is clear then that the jurisdiction under Article 2(1) is a special
jurisdiction available to citizens of Ghana only, irrespective of personal interest.”

The court has appellate jurisdiction from the court of appeal and appellate jurisdiction with the
exclusion of the court of appeal relating to the conviction or otherwise of a person for high
treason or treason by the High Court. In the case of In re Parliamentary Election for Wulensi
Constituency Zakeria v Nyimakan, the court held that there was no right for further appeal
from the Court of Appeal to the Supreme Court in respect of an appeal from an election petition
determined by the High Court under Article 99(1) of the Constitution 1992. The Supreme Court
also hears appeals from the National House of Chiefs as is contained in Article 131(4).

Article 129(3) entitles the SC to depart from its previous decisions as and when it deems fit and
all other courts are bound to follows same. The Supreme court also has supervisory jurisdiction
over all courts in the country as contained in Article 132 whilst it has jurisdiction to the
production of official documents as in Article 135. Finally, the court can review its own decision
as it sees fit as under Article 133. Rule 54 of the SC Rules 1996 (CI 16) provides for two ways in
which the court can review its decision :

- Proof of exceptional circumstances resulting in a grave miscarriage of justice-Agyekum

v Asakum Engineering and Construction
- Discovery of new evidence or matter that has come to light after the decision which with
all due diligence had not been within the applicant’s knowledge or could not be produced
by him earlier in re Krobo Stool (No 2): the court held that the lists of matters which
might constitute exceptional circumstances were not exhaustive or closed; that mere
repetition of grounds which had been dismissed , was no justification for the granting of
the reviews and that the applicant must show the existence of some fundamental and
basic error affecting his substantial rights.

COMPOSITION OF THE SUPREME COURT

The SC consist of the CJ and not less than nine justices. Ordinarily, the court is constituted for
the exercise of its jurisdiction by not less than five SC justices except when it is reviewing its
own decision where it must be constituted by not less than seven justices of the court. (Articles
128 and 133). In the case of Tsatsu Tsikata v CJ & AG : the plaintiff brought an action
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against the CJ and the AG under Articles 2(1) and 130(1) under the 1992 Constitution for a
declaration inter alia , that the Practice Direction (Practice in the Empanelling of Justices of the
Supreme Court ) issued on 10 January 2001 by the acting CJ was in conflict with Articles 125(4)
and 128(2) of the 1992 Constitution and therefore null and void. The plaintiff raised a
preliminary objection that it was against the rule of natural justice and the principle nemo judex
in causa sua for the CJ being a party to hear the action to empanel the court which was to hear
the action. The SC unanimously dismissed the action on the grounds that:

- The allegation of bias in the present case could not disable the CJ from performing his
functions under Article 144(6) of the Constitution 1992
- The CJ had the prerogative of empaneling the court and was thus vested under Article
128(2) of the 1992 Constitution with the discretionary power to administratively empanel
all or the available justices of the SC to sit on the case.
- The CJ had the discretion under Article 133(2) to empanel justices of uneven number but
not less than seven to sit on a review application brought before the SC
- The practice direction was not binding on the court or any person neither did it in any
way infringe articles 125(4) and 128(2) of the 1992 Constitution.
- In exercising his discretion generally, the CJ was required under Article 296(a) and (b) of
the Constitution 1992 to be fair and candid not capricious or biased by either resentment ,
prejudice or personal dislike and the discretion should be exercised in accordance with
the due process of law.

The CJ shall preside in sittings of the court and in his absence the most senior of the justices
shall preside. The qualification of court is based on high moral character and proven integrity in
addition to a minimum of not less than fifteen years standing as a lawyer.

THE COURT OF APPEAL

The court of Appeal has no original jurisdiction. It exercises only appellate jurisdiction. The
court has jurisdiction throughout Ghana to hear and determine, subject to the provisions of the
Constitution, appeals from a judgement , decree or order of the High Court and the Regional
Tribunals and such other appellate jurisdiction as may be conferred on it by the Constitution or
any other law (Article 137(2) and Section 11(1) of Act 459). In In re Parliamentary Election
for Wulensi Constituency ; Zakaria v Nyinakan, the SC held that the Court of Appeal is the
final court of appeal in election petitions, to the exclusion of the SC.

An appeal to the Court leis as of right form a judgment, decree or order of the Highhg Court and
the Regional Tribunal unless the contrary is provided fro by the Constitution. The court can also
hear appeals form any judgment of the circuit court. (Section 11 (4) of Act 459). In exercising
its jurisdiction, the court is given all the powers , authority and jurisdiction vested in the court
from which the appeal is brought.
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However, in the case of an interlocutory order r decision made or given by the circuit court , a
person aggrieved by such an order may appeal to the CA with the leave of the Circuit court. IF
such leave is refused by the CC , the aggrieved party can still appeal to the CA with the leave of
the court (Section 11(5)).

COMPOSITION OF THE COURT OF APPEAL

The CA is composed of the CJ and at least ten other justices. Any three justices may constitute
the court for the conduct of its business. (Article 136 (1) and (2)). To qualify for membership of
the court, a person must be of high moral character and proven integrity and must have at least
twelve years’ standing as a lawyer.

Section 13 of Act 459 deals with certain powers granted the CA in criminal cases.

THE HIGH COURT

In Article 140(1) and section 14 of Act 459, the High Court has original jurisdiction in all civil
and criminal matters and such original, appellate and other jurisdictions as may be conferred on
it by the constitution or any other law. Also in article 33 and 140(2) of the constitution, the high
court has jurisdiction to enforce the fundamental human rights and freedoms enshrined in chapter
5 of the Constitution. However section 14 stipulates that the high court shall have no power in
the trial of the offence of high treason.

Section 140(5) and section 21 of the Courts act stipulates that the high court has appellate
jurisdiction over all criminal matters emanating from the circuit courts and all appeals from the
district courts, juvenile courts and family tribunals.

In article 141, the high court shall have supervisory jurisdictions over all lower courts and in
exercising this jurisdiction may grant declaratory judgments and orders where appropriate.

Section 16 of the court Act 459 provides that the high court shall have supervisory jurisdiction
over all lower courts and any lower adjudicating authority and in the exercise of that jurisdiction,
issue orders and directions including warrant for the purpose of enforcing or securing the
enforcement of its supervisory powers.

COMPOSITION OF THE HIGH COURT-ARTICLE 139 & SECTION 14

In terms of Article 139 of the 1992 Constitution, the High Court is composed of the CJ and not
less than twenty justices of the HC. For the conduct of its business, the court is constituted by a
single judge or by a single judge or by a single judge and jury; or by a single judge and assessors;
or by three judges of the trial of offences of high treason or treason as required by Article 19 of
the Constitution.

Section 14 also enacts that the court shall consist of such other justices of the superior court as
the Chief Justice may by writing request to sit as High Court Justice for any period.
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A person shall not be appointed as justice of the High Court unless he is a person of high moral
character and prove integrity and of at least 10 years standing as a lawyer.

THE REGIONAL TRIBUNALS

In terms of Article 143(1) of the 1992 Constitution, the Regional Tribunal has jurisdiction to try
such offences against the State and the Public interest as Parliament may by law prescribe. Under
section 24(1) of Act 459, the Regional Tribunal has jurisdiction to try offences arising under the
Customs , Excise and Preventive Service Management Law, 1993; Income Ta Decree Narcotic
Drugs (Control, Enforcement and Sanctions) Law, 1990 and “any other offence involving serious
economic fraud, loss of state funds or property.” The tribunal lacks the jurisdiction to try a
criminal offence if the trial requires the participation of a jury or assessors –section 205 of Act
30. In exercising its jurisdiction, the Regional Tribunal has all the powers conferred on the High
Court by Act 459 or any other reenactment and has the power to issue in criminal matters any
order or impose any sentence which the High Court may issue or impose.

COMPOSITION OF THE REGIONAL TRIBUNAL

The Regional Tribunal consists of (a) the Chief Justice, (b) one Chairman; and (c) such members
who may or may not be lawyers as shall be designated by the Chief Justice to sit as panel
members of the tribunal and for such periods as may be specified in writing by the CJ The
tribunal is duly constituted by a chairman and not less than two and not more than four other
panel members-(article 142(3) and section 23(2) ). When exercising its appellate jurisdiction, it
is duly constituted by het chairman and any four members. A person shall not be appointed as
chairman of the Regional Tribunal unless he is qualified to be appointed as a High Court judge
(Article 142(4) ). Article 142(5) also provides that a person of high moral character and proven
integrity.

THE LOWER COURTS

CIRCUIT COURT-JURISDICTION

By section 41 of Act 459(as amended by …), a circuit court has the followring original
jurisdiction (that is to say jurisdiction in civil matters:

 In all personal action under contract or tort or for the recovery of any liquidated sum ,
where the amount claimed is not more than GH 50,000 by virtue of Court’s Amendment
Regulations which came into force on 5th March 2015.
 In all actions between landlord and tenant for the possession of land claimed under lease
and refused to be delivered up;
 In all causes and matters involving the ownership, possession , occupation of or title to
land;
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 To appoint guardians of infants and to make orders for the custody of infants;
 To grant in an action instituted in the court, injunctions or orders to stay waste, or
alienation or for the detention and preservation of any property the subject matter of that
action or to restrain breaches of contract or the commission of any tort
 In all claims for relief by way of interpleader ( a procedure used to decide how
conflicting claims against the same person should be dealt with) in respect of land or
other property attached in execution of a decree made by a circuit court;
 Also where the amount claimed or the value of any land or property exceeds Gh…(check,
) the court will nevertheless have jurisdiction to hear the case of the parties agree that it
should do so.

COMPOSITION OF THE CIRCUIT COURT

The circuit court is composed of a single judge. This notwithstanding, the CJ , any justice of
the superior court of judicature or a chairman of a circuit tribunal nominated by the CJ may
sit as a circuit court judge.

DISTRICT COURT

The jurisdiction of the district court is limited to cases with value of up to GH20,000 by
virtue of LI 2211, the Courts Amendment Regulations 2014. It also has summary jurisdiction
in criminal matters for offences punishable by a fine not exceeding … or for a term not
exceeding two years. Every district court shall have such other functions as may be conferred
or imposed by any other enactment.

COMPOSITION OF THE DISTRICT COURT

The district courts are presided over by magistrates. Depending on their schedule, a
magistrate would be assigned to two or more courts. Section 46 of the Courts Act 459 gives
the qualification of a magistrate as :

- A person deost not qualify to be appointed a magistrate of a District court unless the
person is of high moral character and proven integrity and
- The CJ , any justice of the superior court of judicature or a circuit court judge nominated
by the CJ may sit as a magistrate of any District court.

Sitting of a District Court shall be held at such places and times as the CJ may direct. Subject to
any such directions , the sittings may be held at such places and times as the magistrate thinks
appropriate.

ALTERNATIVE DISPUTE RESOLUTION

Section 135 of Act 798 defines the concept as the collective description of methods of resolving
disputes otherwise than through the normal trial process. This system of adjudication has been
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part of the traditional dispute resolution process well before the advent of colonialism. Sections
72 and 73 of Act 798 encourages the use of ADR to resolve disputes on matters pending before
the courts.

EXCLUSIONS TO ALTERNATIVE DISPUTE RESOLUTION

 Matters of national interest

 Matters that relate to the environment, thus where you are found by the town council it
cannot be settled by the ADR
 Matters relating to the enforcement and interpretation of the Constitution.

ADVANTAGES OF ADR

 It is less adversarial : it encourages openness, disclosure, direct communication and a

win-win solution
 It is less costly
 It is less time-consuming
 It is less formal in that the parties themselves are able to control the process and express
their opinions and options.

DISADVANTAGES OF ADR

 There is no opportunity to assess the objectiveness of the process

 No precedent is established which may be a guide to similar disputes in the future
 The potential exists for a stronger party to prevail on a weaker party with the result that
het agreement reached may not be fair
 There is no right of appeal
FORMS OF ADR
 Arbitration
 Mediation : In mediation, a 3rd party is involved but that third party does not give an
award but assist the disputing parties , and guide them to resolve the dispute
 Negotiation
 Conciliation : sometimes when the parties are before an arbitral tribunal, the rules may be
too formal and so the parties may like an out of court settlement or an informal settlement

ARBITRATION

Section 135 of the Alternative Dispute Resolution Act, 2010, Act 798 defines arbitration as the
voluntary submission of a dispute to one or more impartial persons for final and binding
determination. section 59 of the Act makes a provision for the enforcement of a foreign arbitral
award in Ghana in accordance with the UN Conventions on the recognition and enforcement of
foreign arbitral awards. Arbitration is usually used in resolving commercial matter and disputes;
example is that which was between Ghana and Argentina.
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Arbitration is a kind of ‘private trial’ and requires the disputants to submit the dispute to one or
more impartial persons, with the object of a final and biding decision. thus, section 52 of Act 78
makes the award final and binding as between the parties and person claiming through or under
them although a party may challenge the award and if successful may be set aside by the HC. –
section 58. Such an award may, by leave of the court be enforced in the same manner as a
judgment or order of the court and ,where leave is granted, judgment may be entered in terms of
the award.

Once the parties have voluntarily and validly submitted their dispute to arbitration, the court will
not generally allow a party to ignore this submission and make a claim in court. Under section
6(3) of Act 798 , the court will normally order a stay of the proceedings.

WAYS ARBITRATION MAY ARISE

 By reference from a court. Section 7 of Act 798, the court has the power to refer the
action or part of it to arbitration with the written consent of the parties where it is of the
view that the action or part of it can be resolved by arbitration.
 By agreement after a dispute has arisen. For instance where there is dispute as to the
terms of a contract, the parties may agree to refer it to an arbitrator.
 By contract. Contractual parties may put an arbitration clause in their contract such that
in the case of a breach they may refer it to an arbitrator to be appointed for instance by
the Ghana Arbitration Centre (GAC). Section 52 of Act 798 makes the award final and
binding as between the parties. Under section 58, any person claiming through or under
them although a party may challenge the award and if successful, may be set aside by the
High Court. Such an award, may by leave of the court, be enforced in the same manner as
a judgment or order of the court and where leave is granted , judgment may be entered in
terms of the award. This can be found in section 59 of Ac 798. The arbitration may be an
expert in the subject matter of the dispute. Organizations such as the Ghana Arbitration
Centre, Ghana Association of Chartered Mediators and Arbitrators (GHACMA) and
Commercial Conciliation Centre, American Chamber of Commerce (AMCHAM) may
provide the requisite expertise.

Under section 6(3) of Act 798, the court will normally order a stay of the proceedings once
the parties have voluntarily and validly submitted their dispute to arbitration.

It must be stated that Order 64 of CI 47 encourages parties to submit their disputes to

arbitration for settlement.

ADVANTAGES OF ARBITRATION
 It is often faster than litigation in the normal court
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 Where a dispute is highly technical, arbitration may be sued to settled since a specialist
could be obtained which can’t be found in the main court system
 The choice of the arbitrator is at the prerogative of the parties. They are at liberty to
choose who the arbitrator should be and how the process should go
 Since the process is a private affair, the public is not entitled to be present and this may
protect certain secrets of the parties.
 The proceedings are generally informal and the strict rules of procedure and evidence are
not followed.
 Arbitration may be cheaper for more business and also more flexible.
 In arbitral proceedings , the language of arbitration may be chosen

DISADVANTAGES

 Not all disputes are amenable to arbitration

 Though the process is based on the cooperation of both parties, a party may stultify the
process, by for example not cooperating in the appointment of the arbitrator.
 There is no right to appeal
 Some argue that interim orders are not easily carried out since it is not backed by the
police
 Some arbitration procedures may be subject to powerful laws

TYPES

 Statutory arbitration: this type of arbitration is regarded by the ADR Act only. Section 29
of Act 798 gives the processes.
 Customary Arbitration.

CUSTOMARY ARBITRATION

Part 3 of Act 798 deals with customary arbitration which starts from section 89-113

Kom defines customary arbitration as the method of resolving claims and disputes among
members of the various communities in Ghana. This procedure has been part with us since the
introduction of the Bond of 1844 and the Supreme Court Ordinance of 1876.

Under section 89 of Act 798, matters can be submitted under arbitration but you cannot submit
criminal matter. No arbitrator is also allowed to serve in customary criminal matters.

ESSENTIAL INGREDIENTS FOR A VALID CUSTOMARY ARBITRATION

The case of Budu II v. Caeser & Ors gives the five essential ingredients for a valid customary
arbitration:
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 Voluntary submission of the dispute by the parties to arbitrators for the purpose of having
the dispute decided informally but on its merits. This may take this form: whether the
parties expressly agree or by their actions one party may submit the matter.
“The mere presence of a party to a dispute at a meeting which purports to arbitrate upon
a dispute between him and another person, also present at that meeting, is no conclusive
evidence or proof of submission to arbitration. To constitute arbitration in such
circumstances there must be evidence that the full implications of the purpose of the
meeting was explained to each party, and that with the full knowledge of those
implications they each agreed that the person or persons before whom they appeared
should arbitrate upon their dispute and give a decision thereon. He may adduce some
evidence of voluntary submission such as his payment of arbitration fee and /or
presentation of drinks”
Nyasemhwe v. Afibiyesan, Yaw v. Amobi, Akunor v. Okan, Section 90 of Act 798.
 A prior agreement by both parties to accept the award by the arbitrators. “The payment of
an arbitration fee in the form of money and, or drinks and paid before the arbitration
starts or before the award is published may constitute the evidence of both prior
agreement and voluntary submission. Thus as in the case of Asano v Taku the swearing
of the Ohene’s oath and counter –response by the opponent could amount to prior
agreement to accept an award as well as a voluntary submission “ Asano v. Taku,
Section 109
 The award must not be arbitrary but must be arrived at by hearing of both sides in a
judicial manner. Budu v. Caeser, Gbervie v. Gbervie. This tells us we must comply
with the rules of natural justice. Attorney General v. Sallah, Article 296.
“Where an arbitrator exceeds his agreed terms of reference or proceeds to share het
subject-matter in dispute between the disputants the so-called arbitration is null and void
ab initio. It is therefore, clear from the cases that arbitrators are by customary law,
required to decide any pronounce on the respective conflicting claims of the parties and
not to do what King Solomon threatened to do by dividing the baby, the subject-matter of
the dispute. The decision on the merits must be arrived at after a fair hearing of both
parties. The fundamental principle of natural justice audi alteram partem was recognized
as a necessary part of our customary arbitration procedure.
 The practice and procedures being followed in the community must be followed as nearly
as possible. Section 93 of Act 798.

 Publication of the award. Publication needs not be in writing. Thus it could be
pronounced or announced to the parties. Section 110 of Act 798

An award given is binding on the court. Section 111 gives grounds where customary award
may be set aside. Section 112 makes provision for where there is breach of natural justice or
miscarriage of justice.
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ARBITRATION VRS NEGOTIATED SETTLEMENT

In a customary arbitration, there is a prior agreement to be bound by an award. In negotiated

settlement on the other hadn, the agreement to be bound is made after the award. In both, the
agreement to be bound may be evidenced by the payment of money and / presentation of
drinks.

Unlike customary arbitration, a decision in a negotiated settlement need not be on the

respective merits of the claims of the contestants. In negotiated settlement, there is a “give
and take” , their main aim being to reconcile the parties by offering them what is fair and
reasonable in the circumstances. Again, while an award under customary arbitration is
biding on the parties whether or not they accept it, an award in a negotiated settlement is
binding if and ony if accepted by the parties. Normally, on the publication of the award , the
parties return to signify their acceptance and then pay a fee and /or present drinks.

In customary arbitration , a party cannot resile after voluntarily submitting himself. However,
in a negotiated settlement, a party can resile any time before her formally signifies his
acceptance, since before then he is not in law bound.

MEDIATION

See sections 63-87 of Act 798.

Mediation is an informal, voluntary process in which an impartial person (the mediator),

trained in facilitation and negotiation techniques, helps disputants reach a mutually
acceptable resolution of their dispute. The role and function of the mediator is not to
determine the issues but to assist the parties in identifying issues and information needs,
reducing obstacles to communication, exploring alternatives and focusing on the needs and
interests of those most affected by the dispute. The objective being to help the parties
visualize alternative solutions and the mediator attempts to guide the parties to areas of
common ground. If the end result of the processs is an agreement, such agreement will be
binding on the parties (section 82).

Mediation is distinguishable from other forms of ADR for example arbitration in that the
mediator does not impose a solution but rather works with the parties to create their own
solution. Mediated solutions often include relief not available in arbitration or litigation.
Furthermore, the parties control the outcome, whilst in arbitration, the arbitrator controls the
outcome. The mediator has no power to decide , settlement can only be reached with the
consent of the parties. In arbitration, the arbitrator is given the power to decide and his
decision is generally final.

CIVIL AND CRIMINAL PROCEDURE

Before you proceed to court, you need to do the following :

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1. Listen to the case of your client

2. Determine whether your client has a course of action.: After listening to your client’s
story , you have to determine wehther the aacts are justifiable. See Letang v Cooper
3. If so , whom is it against : The person must be a person know at law (natural or
artificial). If you bring the case against the wrong person, the case will be thrown out
for want of capacity. In contract, a minor’s capacity is restricted in certain situations.
In tort also , in Miller v Ag, the action was not brought by miller, a minor but by the
parent on his behalf.
4. Is the matter justiciable? : You can’t go to court and pray the court for money to buy
kenkey. This is an economic problem and hence not justiciable.

A matter may not be justiciable because :

 A matter may not be justiciable because in the law , there is no fixed procedure for
processing it, or there is no suitable rule to apply to the problem
 Again, the matter may not be justiciable because it is committed to another forum. So if
eth matter is the proper function of parliament, the courts will not assume jurisdiction.
5. The next is , which court has jurisdiction in the matter?:The different jurisdictions
available to the various courts are stipulated in the Courts Act and also in the 1992
Constitution. For instance, the High Court has jurisdiction in all civil and criminal
matters. If you go to the wrong court, the court will decline jurisdiction. You must
also know the processes also. If it is by way of summons, or otherwise.
6. Whether the action is statute Barred : The client may have a case but might have slept
on his rights for too long. Unless an application for extension of time is field and
granted by the court, the client cannot proceed with the case. The Limitations Decree
spells out the limitation periods. Trespass is within 6 years; negligence is 3 years ,
action against the president is 3 years after he has left office. If the action is brought
after the expiration of these periods, the action will be treated as statute Barred.
7. Evidence to be used at the trial : Without evidence , the court cannot help you. So it
has to be determined as a preliminary matter because our court system is evidenced
based.

Civil action began by writ may be divided into five stages :

i. From issue of writ of summons to application for directions; pre-trial hearings

ii. Trial and judgment;
iii. Execution;
iv. Appeal from Circuit Court or the High Court to the Court of Appeal
v. Appeal from Court of Appeal to the Supreme Court.
vi. Supreme Court Review
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Within these stages, there are steps to be taken by the parties to the action, sometimes in turn and
at times simultaneously. These we will now consider.

Stage One : Under Order 2, Rule 2 of CI 47, all civil actions otherwise declared by statue should
be commenced by a writ of summons. Writ of summons is formal printed document sold in court
premises but increasingly prepared in the firms. When you prepare it yourself and you go to
court, it has to be signed by the CJ but when it is purchased at the court premises , it is already
signed by the CJ. On the writ, you indicate yoru name, occupational and residential address of
you and of the person against whom you are going to bring the action. If the writ is issued
against the wrong person, they will come to court and have the writ set aside. The Rules require
that you endorse your writ. What you state as your claim is your endorsement. A writ without the
claim is defective because the other party must know what you want.

Step 2: Pleadings are the written statements of the parties in actions begun by writ of summons
which are served by each party in turn on the other , setting forth in a summary form, the
material facts on which each relies in support of his claim or defence, as the case may be. (see
order 11).You are supposed to file the writ together with the statement of claim. You must state
your facts in paragraphs, each paragraph containing as much as possible only one fact. If the
facts that you state are contained in a document, you must plead the existence and date of that
document. You are not supposed to plead the law in your statement of claim but only facts.

After the plaintiff’s statement of claim, the defendant also files his statement of defence. The
statement of defence also has to be in paragraphs and must relate to the statement of claim.
When the writ is field , the defendant has 7 days from the date of notice to file the statement of
defense. The defendant can here also counterclaim.

After the defendant’s response, the plaintiff files a reply. The defendant is also allowed to file a
rejoinder. If another matter is raised, then the plaintiff may file a surrejoinder and it continues
with the defendant filing a rebutter which may be followed the plaintiffs surrebutter. All these
exchanges are what is referred to as pleadings. Hence as could be seen , pleadings are at the heart
of or civil process. Civil actions revolve around the pleadings.

Importance or Role of Pleadings :

 The judge makes decision based on the pleadings

 They constitute or form the basis of the case that both parties are putting before the court
and for that reason the parties are bound by their pleadings
 It also gives notice to the other party for the case against him or her
 It helps each party to prepare adequately for the case against him or her
 Because the facts are on record, they ensure that the same parties are not able to re-
litigate the matter.
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 Since the matters in controversy are known, there will be a speedy trial. This will help the
trial to be on focus and so the judge will not allow the parties to run around.

It should be noted that though amendments are allowed, you cannot amend your pleadings so
as to put forward a completely new case since the other party has prepared for the case at
hand. Pleadings close at least a month after the last step.

The importance of pleadings was given judicial pronouncement by Azu Crabbe JSC (as he then
was) in the case of Hammond v Odoi [1982-83] GLR 1215. The learned judge echoed as
follows :

“Pleadings are the nucleus around which the case-the whole case-revolves. Their very nature and
character thus demonstrate their importance in actions, as for the benefit of the court as well as
for the parties. A trial judge can only consider the evidence of the parties in the light of their
pleadings. The pleadings form the basis of the respective case of each of the contestants. The
pleadings bind and circumscribe the parties and place fetters on the evidence that they would led.
Amendment is the course to free them from such fetters. The pleadings thus manifest the true
and substantive merits of the case. And the reply is very much a part of the pleadings. And in this
case the party most affected did not complain.”

APPLICATION FOR DIRECTIONS CASE: After the close of pleadings , the next step is for
the plaintiff to apply for directions within one month (Order 32 r 2). If he does not do so within
the prescribed time, any defendant who has entered an appearance may take out the summons or
apply to dismiss the action for want of persecution (Order 32 r 3). At the application for
directions, the plaintiff must file what the issues for trail may be. The defendant will also be
allowed to file additional issues if there is the need. The plaintiff must also indicate the number
of days and witnesses to be called. AT the summon of directions, the judge fix the date for the
parties to appear before him.

Stage 2: This is the evidence stage. First, is the Evidence in Chief. Here the plaintiff tells his
story. Counsel takes him through the story and providing evidence to support facts. Your lawyer
cannot ask you leading questions.

Cross Examination: You will be cross-examined on the story by the other side if they want to
and the decision to do so is a professional decision. Leading questions are allowed in cross
examination. Cross examination can be used to put accross their story and also test your
credibility.

Re-Examination: This comes after cross-examination. It is an opportunity for your lawyer to

correct your answers which appear misleading or ambiguous.

After this, the parties address the court. It can be in writing or can be oral. Address is your
chance to attract potential clients.
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It should be noted that the fact that you have initiated a civil action does not mean that you
should continue it. You can discontinue at any time before judgment.

Stage 3 : Execution of Judgment. When judgment is given you have to enter judgment. This is
what Kom describes as harvesting the fruits of your success. You do this by filing an entryof
judgment. As Kom puts it, the method of execution wil depend on the nature of the relief sought
and granted in the judgment. If you do not enter judgment within the stipulated time in the rules,
you cannot enforce the judgment.

A judgment or order of payment of money, not being a judgment or order for the payment of
money into court, may be enforced by one or more of the following menas (See order 47 r 1):

 Writ of fieri facias (fi.fa.)

 Garnishee Order : If it is known to the judgment creditor that a third party (“the
garnishee”) has money due to the judgment debtor, he can apply by an ex parte motion,
supported by an affidavit, to the court for an order nisi. The order nisi may order the
garnishee to appear before the court on an appointed day to show cause why he should
not pay to the judgment creditor the money due from him to the judgment debtor or so
much of it as will satisfy the judgment debt together with costs (order 47 r 1). On the
appointed day, if the garnishee does not dispute the debt due or claimed to be due, or fails
to appear, the court may make the order nisi absolute against the garnishee. However, if
the garnishee disputes his liability the court may summarily determine the question in
issue or order that any question be tried and determined. IF the garnishee asserts that
some other person other than the judgment debtor is or claims to be entitled to the debt
sought to be attached or has claims to have a charge or lien on it, the court may order that
other person to attend and stat the nature and particulars of his claim. Any payment made
by the garnishee in compliance with an order absolute is a valid discharge of the liability
of the garnishee to the judgment debtor to the extent of the amount paid or levied,
notwithstanding that the garnishee proceedings are subsequently set aside or the
judgment or order form which it arose are reversed.
 Charging Order, or stop order: The court may for the purpose of enforcing a judgment
or order for the payment of money order the imposing of a charge on any immovable
property of the judgment debtor to secure the payment of any money due or to become
due under the judgment or order as may be specified in the order. The order is initially
given as an order nisi to enable the judgment to show cause why the order should not be
made absolute. If the court on further consideration of the matter determines that there is
a sufficient reason to justify the making of the order absolute, it may so determine. The
application for the order may be made ex parte supported by an affidavit.
 Appointment of receiver: An order for the payment of money into court may be
enforced by the appointment of a receiver. A receive may also be appointed to enforce a
charge imposed on immovable property of the judgment debtor.
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 Committal (Summons to show cause)

 Sequestration : A writ of sequestration may be issued against the estate and effects of
the delinquent judgment debtor. The writ is a commission directed to two or more
persons called “commissioners” appointed by the court empowering them to enter upon
any immovable property of the person against whom the writ has been issued and to
collect, take and obtain not only the rents and profits of the property , but also all the
person’s goods and movable property, and detain them under sequestration in their hands
until the person is cleared of contempt of court.

Stage 4 : Appeals: If the unsuccessful party has not accepted his faith an appeal continues. In
the notice of appeal , the appellant must state :

 The judgment against which he is appealing against

 The grounds of appeal
 The relief(s) sought
 The person or persons to be affected by the appeal

An appeal from the court of appeal lies to the Supreme Court. If you are not satisfied with the
decision of the SC , you can apply for a review. The review jurisdiction only works in
exceptional cases. In review, two more judges will be added to the original panel

OUTLINE OF THE CRIMINAL PROCEDURE

THE DOCTRINE OF STARE DECISIS AND ITS OPERATION IN THE

GHANA LEGAL SYSTEM

In many legal systems there is a practice by which adjudicators in determining disputes that
come before them generally take the view that like cases should be treated alike. This is found
both in civil and common law systems. Stare decisis means to follow a previous decision. This a
reference to a peculiarly common law concept by which decision making has to follow previous
decisions by superior courts whether they agree with the decision or not.

At common law, it is not just a matter of treating like cases alike but a system of binding
precedent. A system which in certain circumstances, a decision has to be followed whether the
latter court agrees with the decision or not. The English court of appeal cases of Re Scwepps
Ltd Agreement (1965) 1 ALLER 195, and Re Atomatic Telephone and Electric Co. Ltd
Agreement, 1965 1 ALLER 206 illustrates the application of judicial precedent.

In the first case, the court of appeal by a majority of two to one (Whilmer LJ dissenting) ordered
discovery of documents in a case which involved restrictive trade. Few hours after judgment, the
same panel had to consider another case with similar facts and this time the decision was
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unanimous . Whilmer LJ who read the opinion of the court indicated that although he did not
agree with the majority in the previous case, he is now bound in the circumstances.

DIFFERENCE BETWEEN JUDICIAL PRECEDENT AND RES JUDICATA

Res judicata is a latin maxim which simply means litigation must end. Parties to a litigated
dispute cannot reopen the same subject matter of the previous litigation after the process of
appeal has been exhausted or after the time set for an appeal has been expired. Where parties or
their agents have litigated a particular dispute before and have finished the process of appeal, the
doctrine is that het parties or their agent to that litigation or anybody who has interest in the case
cannot sometime after go and attempt to relitigate the same issue again. And if one of them
attempts to we say the person is estopped from relitigating the matter. Hence Res Judicata
operates as between the parties to the dispute or their agents.

Judicial precedent on the other hand and is the effect of the decision in the legal system generally
on all parties. For res judicata, the party relying on it has to show that the person who has
brought the second action is the same person in the previous case and secondly also that the
subject matter fh te litigation or the issues in controversy were the same issues determined by the
court.

The first requirement for the operation of judicial precedent is a system of courts whereas with
res judicata, the requirement is that the parties which include privies thus people who have the
same interest or whose interest or title is derived from the original parties.

THE HIERARCHY OF CORUTS AND THE DOCTRINE OF BINDING OF

PRECEDENT

THE SUPREME COURT: Decisions of the SC on questions of law are binding on all courts
lower than the SC. Article 129(3) and Section 2 of the Courts Act, 1993 Act 459. “The SC may,
while treating its own previous decisions as normally binding , depart from a previous decision
when it appears to it right to do so; and all other courts shall be bound to follow the decisions of
the SC on questions of law.”

It should be noted that the Supreme Court is the only court given the power to depart from its
earlier decision where it deems it fit. This is the language of Article 293(3) supra.

THE COURT OF APPEAL

The decisions of the Court of Appeal are binding on the lower courts. The court of Appeal is also
bound by its decisions. See Article 136(5) of the 1929 Constitution as well as section 10(5) of
Act 459.
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It should be noted however that the Court of Appeal is only bound by its decisions that are not
contrary to the decision of the Supreme Court. It is not bound by its decision where that decision
is inconsistent with the decision of the Supreme Court.

THE HIGH COURT: The High Court is bound by the decisions of the Supreme Court and
Court of Appeal however, the High Court is not bound by its previous decision but courts lower
than the high court are bound by the decisions of the High Court. Hence the magistrate and
Circuit courts are bound by the decisions of the High Court but the High court is not bound by its
previous decision. This is primarily because of the several high courts in Ghana and each High
Court judge has obviously the same powers and jurisdiction thus they are not court of coordinate
jurisdiction. In 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
Huddersfied v. Watson [1947] KB 842 at p. 848, DC:

“I think the modern practice , and the modern view of the subject, is that a judge of firs instance,
though he would always follow the decision of another judge of firs 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…”

INFERIOR COURTS: CIRCUIT & MAGISTRATE COURTS: The decisions of these

courts are not binding but they are bound by the decisions of the higher courts.

Judicial precedent and stare decisis is concerned with the binding authority of the decision.
However this is not the only way decisions are important. Thus decisions of courts may persuade
other courts.

THE PERSUASIVE NATURE OF DECISIONS OR AUTHORITY

Generally, decisions which are not binging may be only persuasive. Thus if we take for instance
the Supreme Court, the decision of the court of Appeal is not binding on the SC, but it is possible
that in the SC, there may be previous decision of a court of appeal or even by a High Court on
that legal issue. The SC may be persuaded by the reasoning of the High Court or the CA. For
instance on a land matter, the decision of the SC may be lying on the decision by Ollennu when
he was a high court judge though that decision is not binding.

Again, it should be noted that decisions of foreign courts are not binding on Ghanaian courts but
are only persuasive.
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Under section 115(1) of Act 459 in relation of succession of courts, the decision of the SC under
the 1979 Constitution is of the same standing as the decision of the Supreme Court in 1992.

An interesting question that has arisen is : The status of the court of appeal when it was the
highest court or the court of last resort some tiem ago? The answer is in two folds: First, the
decision is binding on the court of appeal now and it is only persuasive in relation to the SC.

WHAT IS BINDING IN A DECISION?

Note the language of Article 129(3) “…QUESTIONS ON LAW…”. Under Article 136(5) too in
relation to the CA, it says “…all courts lower than the CA shall follow the decision of the CA on
questions of law.” But even on the questions of law, a decision may contain different kinds of
statements : Ratio Decidendi ; Dictum ; Obiter Dictum/dicta

The ratio is about the same as the holding of the court. Before or in the course of arriving at the
holding and stating the decision, there is analyses of whatever, the law, previous decisions etc.
This is what is called dictum and if it is one ‘dicta’ where it is one.

There may be the situation where the judges may talk about things which are of no relevance to
the matter before him, thus itis n ot the holding in the case, so when we say that a decision is
real, it is only the ratio or the holding which is binding and not everything else the court says.
Thus the ratio is the proposition of law which decides the case on the line of the context and the
material facts.

The legal practitioner, judges and the academic should be able to determine what the court
decided or what the ratio or rationes is which is the legal answer to the legal issue which is
arising from the facts of the law in a particular case.

IS THE PRECEDENT DISTINGUISHABLE?

So having determined what the ratio or holding in the case is, the other thing that lawyers and
courts do is to determine whether the facts and the circumstances in the previous case are the
same and similar in the subsequent case and therefore the previous decision is binding or
whether there are significant material and legal differences such that the decision is not binding.
Thus, is the subsequent case distinguishable from the previous decision, and if it is so, then the
previous decision is not binding. It can be distinguished because there is a certain material fact
in the present decision which is not in the previous one and so need not to be followed and thus
the cases can be distinguished.

Distinguishing cases is therefore pointing out material facts which existed in the previous
decision and which did not exist in the current case, or material facts which existed in the current
decision and did not exist in the previous one and urging the court sufficiently to make a
different result or explain a different result which has arrived.
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WHAT IS THE WEIGHT OF THE AUTHORITY

At the level particularly of persuasive authority and in the context of determining the ration and
whether eth case is distinguishable you mst determine what is the wait of the authority. Thus
what power the authority has.

First, you have to determine whether it is a unanimous decision or a majority decision. Clearly a
unanimous decision has more wait than the majority. If it is a majority decision, you have to
examine the nature of the majority is it 5-2 or 6-1, the higher the majority the more powerful the
decision. For instance the decision of 4-3 is not as powerful as the 7-0.

The question of which judges or a judge is involved in the decision is another crucial matter
involved in the decision. For intstance if you are dealing with a decision of Ollenu J in a land
matter in the Supreme court. Or Lord Atkin’s dissent in Liverside v Anderson which was later
accepted.

It should be noted that the power of the SC to depart from its decision is different from the power
of review (same parties, same case, same court, same judge(s)). An example is that of Tsikata v
Ag. This is totally different from what Article 129(3) talks about. Thus , where there is different
case, different parties, simiarl facts, this is not review but a totally new case. So the power of the
court to depart from its previous decision is totally different form the power to depart from the
decision. In this circumstance, the court is composed of the same number of judges and would
not increase the number of the judges since this is not review.

WHEN WAS THE CASE DECIDED?

Was it a long time ago or fairly recently. For instance if the case was decided a long time ago, it
may have a lot of weight since it is old, and has not been challenged. On the other hand if
learning has changed and situations as well it may not be considered.

Another factor is the reputation of the authority: Has it been criticized by writers, has it been
approved or disapproved in dicta or obiter?

This second part of this is where you as a lawyer begin to acquire the skills to use these
authorities to back up a position. it could be a little difficult. Unlike the first one which is the
hierarchy of courts and is straight forward stated.

ADVANTAGES OF THE SYSTEM OF STARE DECISIS PARTICUCULARLY AS IT

OPERATES IN GHANA

In summary, the advantage is that it makes the system stable and more predictable. The
disadvantages are that it makes the system rigid and less effective, thus inflexibility..

ADVANTAGES
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8. The first advantage is that a system of precedent promotes the private ordering of
legal matters or affairs. So promoting the private ordering means for example that if
you are a lawyer in one of the many spheres you can find yourself, you can advice
your client with reasonable certainty what the law on a particular issue is and the
client can advice himself accordingly and the client can then proceed to act on this
advice. This will be same in a constitutional dispute about the appointment of
ministers and you are aware of J H Mensah v. Attorney General , so this advice that
you are giving to various people both private and public enables all this to arrange ,
organize their legal affairs in a way consistent with the law and so as not to break the
law. no where there is a dispute , you can advice the client where there is a dispute,
search put your case brief together or your opinion or as an academic your can write
on topics , issues etc. with reasonable certainty of what the law is . Flowing from this,
it promotes alternative dispute resolution. Thus it encourages the private settlement of
dispute.
9. The second group of advantage is the fair and efficient adjudicating of disputes. The
application of judicial precedent promotes fair and efficient adjudicating of disputes
in the courts. This is seen in a number of ways. First, it helps in the areas where there
is dispute and the areas where there is no dispute . So if the supreme court says this is
what the law is on a particular matter, there is no point in relitigating the matter. It
promotes fairness. This is done by reducing the personal element and reducing the
area of discretion and there by ensuring uniformity which is a very important feature
of the judicial precedent that like cases are treated alike. It also reduces the possibility
of expectations, public expectations particularly, the expectations of parties to
litigations being better managed. A good lawyer when you advice your lawyer , you
will be indicating to your client what the chances are so that the client will take an
informed decision
10. The third advantage is that it promotes public confidence in the judiciary and the
administration of justice. One, it is easier for the public to accept that the decision is
fair. For the public to have confidence in the system if judges are bound by a certain
order. It is not because the Jude so wishes but this is what the Supreme Court has
decided. The system is also a restraining mechanism on the judge. This endangered
more public confidence than one in which each judge and each court is doing its own
thing.
11. In Nana Addo Dankwa Akuffo ado and ors vrs. John Dramani Mahama and ors
, Justice Jones Dotse made this wonderful remark : “there is no known local
precedent in this aspect of the law that we are requested to enforce and or interpret”.
This shows how judicial precedent is pertinent as it assists the judges in their
judgments

DISADVANTAGES
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12. First is that a judicial system based on a system of precedent tends to be backward
looking rather than forward looking. It tends to perpetuate what has been done
already rather than changes in the society. The second one is that changes in the law
then tends to depend on the accident of litigation. How does a case props up? So if
you have a decision in 1989 unless another case come another time which goes to the
Supreme Court for it to change the decision on the matter for it will be the law. A
third one is that it becomes very technical. And so what cause the decision in this case
etc. Will become more interest than broader national issues. and also how to get to
know how to get to know what the ration is . how does the system respond to
predictability and stability of the system and the other one

THE NATURE AND HISTORY OF LAW/ DEFINITION OF LAW

The question ‘what is law’ or ‘what is the nature of law’ has received various scholarships if
not convoluted in answering. The historical antecedents may begin with the Greeks or the
natural lawyers who viewed law as coming from God or of having an inherent moral
character. Such natural law theorists include St. Thomas, Augustine, Finnis among others.
Subsequently, other theorists emerged who also attempted a definition of what is law or what
is the nature or character of law. Some of these theorists include but not limited to the
positivists or analytical school, the realist school , the sociological school , the historical
school and the Marxist theory of law. Beginning from the natural lawyers, each of these
schools will be taken and briefly looked at.

NATURAL LAW SCHOOL: The natural lawyers are the opposite of the positivist. They
will not deny the written character of law but they will require the law on its moral content.
They require the law to the just, reason and probably to human nature and they also consider
things of the common good. The principal rule is that the law must have a moral content.
Thus, when the law is against reason, violation of human nature then it is not law. For them,
they believe law and morality are one unlike the positivists. Thus, to the natural lawyers, the
validity of law depends on its moral content. The essence of natural law according to Lloyd
may be said to lie in the constant assertion that there are objective moral principles which
depend upon the nature of the universe and which can be discovered by reason. Natural law
is believed to be a rational foundation for moral judgment. Simply put, natural law is an
aggregate of rights and obligations which flow from the characteristics of human nature. The
natural law theorists are not against the state or against positive law. However to them,
positive law must respect that which is natural. This will in effect alleviate arbitrary and
tyrannical rule.

The natural law as already indicated supra is believed to have evolved from the Greek Period.
Here they believed that the universe was composed of intelligible laws which will be prime in
the governance of man. It was possible therefore to derive rational principles from the universe
to govern life in the society. The natural lawyers normally attribute law to God, Reason and
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Justice , Human Nature and Common good. Before 5 BC, the Greek scoieties whci was
predomeinatnly agrarian attributed everything as emanating from God. For Aristotle, he who
decrees that law should rule would as well decree that God and God aloen rules and he who
decrees that man should rule, decrees that the beast should ruel and this leads to tyranny. After
5th BC, they became more creative and thus were capable of using their nitelelct to desing and
produce Greek artefacts. This thus affected the relationship between law nad religion and
therfoer, natural law emanating from God became law emanating from reason. This view was
shared by the stoics who identified nature with reason, arging that reason governs all parts of the
universe and that humans as part of the universe and of nature are also governed by reason. To
them, people will live naturally if they lived according to their reason.

Plato by his idealist philosophy , laid the foundations for much of subsequent speculation on the
natural law. He developed the ‘idea’ of justice as an absolute truth in itself. According to him,
law must constantly strive to approximate to the absolute idea of justice and ideal justice could
only be achived or fully realized in an ideal state ruled over by ‘philosopher-kings’ capable of
grasping the absolute idea of justice.

St. Thomas Aquinas : He divided law into four categories : Lex aerterna (ertenral law-law which
constitutes God’s rational guidance of all created things and is derived from the divine wisdom
and based on a divine plan); Divine Law-Lex divina (revealed in scriptures-that part of eternal
law which is manifested through hteh revelations in the Christian scriptures); Natural law
(Discovered through human reason –describes the participation of rational cretarues in the
eternal law through the operation of reason); Human law –Lex humana (essence is to be just-
dervied form both divine law nad natural law and which is or must be directed towards the
attainment of the common good)

Lon Fuller : He is regarded as the leading contemporary natural law theorist. Fuller’s theory was
more of procedural natural law. He believed that for there to be a good law, it must follow
certain steps. Fuller authored a book ‘morality of law’. Chapter two of his book was titled the
Morality that makes law possible. He believed that in law , there is some notion of morality. That
law cannot be separate from morals and that there is essentially a minimum criteria for
recognizable legislative that need to be followed. He therefore outlined 8 procedures that has to
be followed for there to be a good law. :

 The law must be published

 Prospective : The law should be future looking. Frowns un retroactive legislation
 Forward looking : Some laws are vague
 Clear: Not ambiguous
 Consistent: Not contradictory
 Not impossible to obey
 Understandable : comprehensive
 The law should not be changed so frequently as to make conduct unwhollly clear
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THE POSITIVISTS: Though not a united front they all share certain characteristics.

 Law is a creature or creation of human agents.

 they look at law as it is and not as it ought to be
 The laws are found in rules declared by authorities. For instance if parliament is the
authority then unless parliament declares it is not law
 They believe that there is a formal criteria for determining the validity of law. An
example if Article 106 of the Constitution.
 There is no necessary connection between law and morality (separation thesis). For the
postivists, law is a social fact and cannot appeal to any moral argument. Though the law
may have certain moral inclinations it does not mean that it derives its vality from
morality. Morality and law to the positivists are not coterminous.

COMMAND THEORY OF LAW : The command theory of law may be attributed to

Jeremy Bentham and John Austin. For Bentham, law is the expressed will of a sovereign. He
authored the book ‘Of Laws in General’. Austin however, borrowing his ideas from Bentham
is attributed with the father of analytical positivism by virtue of the fact htat his is the first
contemporary scholar to bring out the leements of positive law. Austin authored the book
‘the province of jurisprudence determined’. In this book, he defined law in terms of
commands from a soverign backed by sanctions. Mathematically, Austin implies that law =
command +sanctions.
According to Austin, commands are expressions of a wish backed by a threat to inflict evil.
The command according to Austin is issued by the sovereign who is willing or is able to act
on the threat. The sovereign according to Austin can be either an individual or a group of
individuals . When it is a person, then the person is likened to a king or a queen and when a
group, like a monarch. Next, the sovereign must be habitually obeyed by the bulk of the
people however he is not obedient to anyone else. The sanctions are the evil for breaching the
command.

Austin faced several criticisms paramount among them is HLA Hart. In his ‘Concept of
Laws” He argued for instance that not all laws are in the nature of commands. Certain laws
merely confer rights on indivduals and not in the nature of commands. Moresoe, it is not
every breach of a law that results in afflictsion. etc. Hart then advocated that for law to be
law it must conform to what he terms the ‘rule of recognition’. It is this rule of recognition
which gives formal validity to the law.

HANS KELSON: Hans Kelson is attributed to what he terms the ‘Grundnorm’. keelson is
the author of the “Pure theory of law”. According to him, the law must be pure and not
contaminated by any extra legal factors. He also believe in the separation thesis however
from a different angle. He indicates that we should distinguish between moral norms and
legal norms. The law according to him is the legal norms. and the extra legal factors are the
moral norms. What will make the legal norm valid? The Grundnorm. The Grundnorm
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assumes a hierarchy of norms in the legal system. According to this hierarchy, every legal
norm derives its validity from a superior legal nrom. See for instance Article 1(2) of the
Constitution. According to keelson, whenever there is a revolution, it displaces the entire
legal system and as such a new legal system is birthed. This new legal system comes with a
new Grundnorm from which everything derives its validity.

The positivists have been generally criticized as making laws that are unjust, tyrannical and
infringing fundamental human rights of individuals. Remember Re Akoto.

THE REALIST SCHOOL : There are two main kinds : the American Realists and the
Scandinavian Realists. The Scandinavians are concerned with the verification of concpts like
‘rights’ and duties in a psychological way whereas the Americans sought to show that legal
decisions were not predictable if merely based on logic or formalism. Parmount among this
school are Oliver Wnedell Holmes Jnr “the life blood of the law is not logic but experience”..
John Chipman Gray ; karl Llewellyn.

For the realists all laws are judge made law. Statues are not laws by virtue of their enactment.
They only become law when applied by a decision of the courts. Only then does a legislative
enactment spring to life and acquire actual force. Legislation is therefore no more than a
source of law: it is the courts that put life into the dead words of the statues. So to them,
nothing pretentious is what will be considered law than the prophesies of the courts. Because
of that common position, they have decided that when a judge is considering legal questions,
legal factors don’t matter. The legal factors include –legislations, Acts , Constitutions etc.
Oliver Wendell Holmes is the most popular among them. He authored ‘the common law’.
His position is popularly called the bad man or prediction theory of law. Thus, if one wanted
to know that the laws of a society are, one must approach the question form the perspective f
the bad man. The bad man does not care about morality, nevertheless, he , just like the good
man wishes to avoid an encounter with the law. When he asks his lawyer whether some
contemplated action is legal , what he want to know is how public power is going to affect
him.

The realists have been generally criticized as chastising the role legislatures play in the
making of laws.

THE SOCIOLOGICAL SCHOOL: According to this school , the positivists notion of law
is misconceived for law is not found in the written books but in the society. For this school,
law is found in the standards of society. Put in another way, law is law when it is in
conformity with prevailing relevant social facts. It is worthy to note that the social facts
which must be a reflection of the law must be the ‘relevant’ social facts and not just any
social facts. It has been suggested that social facts are ‘relevant’ if their context is original
instead of being borrowed. This however is not suggest that social facts cannot be adapted.
These social facts are also relative and not universal. For instance for a law to be valid in
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Ghana, it must support the social facts in Ghana. The foremost proponents of interest are
Roscoe pound (social engineering) and Eugene Ehrlich ‘The Fundamental Principles of the
Sociology of Law’. In this book Ehrlich propounded what he terms the living law.
According to him, the living law is the real law and the real law is found in society.

THE MARXIST THEORY OF LAW: The main proponents are Karl Marx and Fredrich
Engels. According to maxims. Their main aim was to discover among others the relationship
between the law and the state. The Marxist approach to society is basically materialist,
meaning that from the Marxist point of view, the material , that is physical, economics, and
environment etc conditions under which human live are the most important factors
influencing social development. They especially emphasize the economic factor arguing that
it i s the economic relationship which people enter into when they are engaged in the process
of producing the means of sustenance such as food , clothing and shelter. This they call the
base and any other thing , -religion , law is /are superstructure. According to Marx, the
society consist of classes, those in the control of the means of production or the ruling class
are the bourgeoisies who use the instrument of law to further their interest as against the
ruled. They identify the evolution of the society from : primitive communalism, slavery
mode, feudal system, capitalism, socialism and communism. All these arose principally due
to the frictions which arise between the proletariat and the bourgeoisies. This is based on
what they term the dialectical materialism which was borrowed from Hegel that to every
thesis there is a contrary antithesis.

THE FUNCTIONS OF LAW

 Law maintains social order : Law operates to regulate social life. It does this by creating
institutions which are responsible for defining the limits of acceptable behavior so as to
prevent anarchy; through the promulgation of legal rules. Added to this is the fact that
law is used to control public order through the protection of civil liberties and human
rights.
 Law protects interests: The law protects the interest of the state as well as that of the
individual. For instance, the state’s interest may be protected through the criminal law
whereas the individual’s interest may be protected through the civil law when for
instance the state compulsorily acquires the individuals land without paying
compensation.
 Law protects rights of property : Each individual’s is guaranteed the right to property
under Article 18 and so therefore any interference with the enjoyment of same affords
protection under the law. Again, if you buy a car through legal means , you are given
legal title to the car
 Law protects rights in respect of your person: The whole of Chapter 5 of the 1992
Constitution has been given to the protection of fundamental human rights of individuals.
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For instance when a defamatory matter is published against a person, the said person can
seek redress in the court of law
 Law regulates transactions : Contract law; commercial law etc.

INTERPRETATION

Two principal concerns

13. Constitutional Interpretation

14. Statutory Interpretation

STATUTORY INTERPRETATION

While 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. 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. While sometimes, words in a statute may have a plain and
straightforward meaning, sometimes however there is some ambiguity in the words of the statute
that must be resolved by the judge. In such an instance, the courts will seek to adopt a
construction which will resolve the uncertainty or ambiguity. So as could be seen, interpretation
is different from construction. Interpretation is seeking the meaning of the text while
construction is seeks to resolve uncertainties or ambiguities. Though distinct, as Quansah rightly
remarks, these two processes are in practice indistinguishable because disputes normally occur
when there is some uncertainty about or ambiguity in a text. In resolving these, the court will
inevitably give meaning to the words of the text. Thus, the two processes normally go hand in
hand.

Legislation may contain uncertainties for a variety of reasons :

a. Words change in meaning over time

b. New technologies and cultures make application of existing laws difficult for which
reason statute may need to be interpreted to fit modern thinking
c. The need for social cohesion may also mean the interests of some groups may need to be
taken into account in interpreting statue

In common law jurisdictions, the judiciary may apply rules of statutory interpretation to
legislation enacted by the legislature, or to delegated legislation. To find the meanings of
statutes, judges use various tools and methods of statutory interpretation, including traditional
canons of statuary interpretation, legislative history, and purpose. These rules have come to be
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known as the literal rule or plain meaning rule, the Golden rule, the Mischief rule and the
Purposive approach.

It must be noted that these rules are not binding precedent properly so called but seve as aids,
ground rules, guide posts ,or a road map to the art and science of interpretation. In Asare v AG
Date-Bah aptly couched this position as follows :

“ ‘Rules’ of interpretation are not to be understood as binding courts in in the same way as the
ratio decidendi of a case is binding on subsequent courts. The so-called ‘rules’ of interpretation
are merely guides or aids to judges in deciphering the meaning of words they are required to
interpret.”

THE LITERAL RULE: This is the oldest among the various rules and also referred to as the
plain meaning rule. This is a type of statutory construction which dictates that statutes are to be
interpreted using the ordinary meaning of the language of the statute. It looks at the text as it
stands. According to the plain meaninign rule, 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.

In Republic v Fast Track Court, Accra; Ex parte CHRAJ (Anane, Interested Party) ,
Brobbey JSC noted as follows : “It [ordinary meaning]is not the meaning that a person will find
by a research into technical books or arcane sources. That will be far beyond the comprehension
of the ordinary man. The ordinary meaning will be the meaning which any ordinary man on the
street will understand by that word or the sense which he / she will attribute to that word which
is the sense in which it will be used by that ordinary man. IN the normal run of affairs, the
ordinary man will approach the dictionary for the meaning if he has any doubt about the
meaning of the word.”

Here the court is not concerned with the propriety of the legislation; its duty is to administer nad
interpret and give effect to the statute even if the terms appear unpalatable. In this regard the
maxim judicis est jus dicere sed non dare (it is the function of the judge to apply the law , not to
make it)applies.

An example of the use of the literal rule can be seen in the oft quoted case of Tuffour v Ag. The
SC had to decide in that case the meaning of the phrase “shall be deemed” in article 127(8) of the
1979 Constitution in relation to the appointment of Justice Apaloo as the CJ. In construing the
phrase, the court opted for the natural meaning of the words in the phrase and held that it meant a
thing that is said to be something else with its attendant consequences when in fact it was not. In
order to reach this conclusion, the court referred to the use of the phrase in other contexts of the
Constitution. For example, in section 1(1) of the transitional provisions to the 1979 Constitution
the word “deemed” had been used to mean that although the first President had not been
appointed under the Constitution, he should for all purposes exercise all the functions of the
President as if he had been so appointed. Also the same phrase had been used in section 2(1) of
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the transitional provisions to the 1979 Constitution in relation to the election of members of
Parliament. They were considered to have been elected under the Constitution even though they
had not been so elected. Consequently, the court held that the phrase “shall be deemed” in article
127(8) of the 1979 Constitution should mean that a justice of the superior court of judicature
holding office immediately before the coming into force of the Constitution should continue in
office as if he had been so appointed. It follows from this that Justice Apaloo, being the head of
the superior court of judicature before the coming into effect of the 1979 Constitution became
the CJ by virtue of article 127(8) of the 1979 Constitution and there was no need for him to have
been vetted by parliament for the purpose of approving him as the Chief Justice.

In Kwakye v AG, a majority of the SC held that the phrase “judicial action taken or purported
to have been taken” in section 15(2) of the transitional provision to the 1979 Constitution, must
be given its ordinary , literal dictionary meaning. The court construed the phrase to mean an
action which was not a judicial action properly so –called but which looked like, was intended to
be, or which had the outward appearance of a judicial action.

In technical statues, words will be read in their technical and not in their ordinary meaning. An
example of the application of this principle is the English case of Fisher v Bell where the
expression “offer for sale” in section 1(1) of the Restriction of Offensive Weapons Act 1959 was
held to apply to the placing of a flick-knife in a shop window. The court had a choice between
the technical meaning of that term as used in the law of contract (invitation to treat) and the
popular meaning according to which goods placed in a shop window are offered for sale. The
court chose the former meaning of an invitation to treat, that is an invitation to the public to
make offers for the goods displayed.

It is claimed for the plain meaning rule that it prevents courts from taking sides in legislative or
political issues. It is also said that ordinary people and lawyers do not have extensive access to
and still used today, primarily because it avoids the danger of the judges usurping the function of
the legislature through judicial interpretation some of which under case law and the concept of
judicial precedent amounts to law making.

On the other hand, it is claimed that the rule rests on the erroneous assumption that words have a
fixed meaning. In fact, words are imprecise, leading justices to impose their own prejudices to
determine the meaning of a statue.

In criticizing the plain meaning approach to interpretation, Date-Bah JSC in Asare v AG had
this to say “What interpretation is to be given the words should depend upon the court’s
perception of the purpose of the provision and the context of the words, rather than on their
dictionary meaning. The ‘plain meaning’ approach to judicial interpretation is not necessarily
the most apposite. In my view, words hardly ever have a meaning in vacuo. Words take on
meaning in association with the other words in whose context they are used. Therefore the
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interpretation of words almost invariably means doing more than finding their mere dictionary
(or ‘literal’ or ‘plain’) meaning.”

THE GOLDEN RULE : This, also known as British rule, is a form of statutory interpretation
that says the words of a stat8te should be understood in their ordinary sense. It provides that
wordings should be given their ordinary meaning as far as possible, but only to the extent that the
do not produce an absurd or totally obnoxious result. In other words, the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or
inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense
of the words may be modified , so as to avoid that absurdity or inconsistency, but not further.

This rule may be used in two ways :

15. It is applied most frequently in a narrow sense where there is some ambiguity in the
words themselves
16. 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 wehre words have only one meaning./
a result contrary to the intentions of the legislature

The usual consequence of applying the golden rule is that words which are in the statute , are
ignored or words which are not there, are read into it. Thus in Ababio v The Republic, the cout
was to interpret paragraph 5A of the Chieftaincy (Amendment)(No 3) Decree, 1967 (NLCD
203). The said paragraph provided inter alia, that :

(1) Any person who contravenes any provision of this Decree shall be guilty of an offence.
(2) Without prejudice to the generality of the foregoing…a person shall be deemed to have
contravened the provisions of this Decree if-
a. he refuses or fails to recognize the relationship referred to in paragraph 2 of this
Decree or refuses or fails to pay such allegiance as flows form the existence of such
relationship;
b. without reasonable excuse (the proof of which shall be on him) he fails to attend
meetings of the Traditional Council…”

The court in interpreting “any person” in the above paragraph held that the phrase cannot bear its
ordinary literal meaning as person in general because such a meaning would create an absurd
situation where any person, not necessarily a chief, could be prosecuted under the Decree if he
failed, for example, to honour an invitation to attend a meeting of a traditional council. The court
interpreted the phrase to mean persons who had been demoted as paramount chiefs and whose
stools had been specified in the schedule to the Decree. This meaning was to aid the cure of the
mischief, ie the displacement of customary allegiance to traditional paramount chiefs and whose
stools had been specified in the schedule to the Decree. This meaning was to aid the cure of the
mischief, ie the displacement of customary allegiance to traditional paramount chiefs which
earlier legislation had given rise to, which the amendment Decree was enacted to deal with.
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In CFAO v Zacca, the Court of Appeal had to interpret the words “shall be deemed to be an
appeal pending before the SC” as set out in section 13(2) of the transitional provisions to the
1969 Constitution. The ordinary meaning of “pending” in relation to a cause or matter connotes
such cause or matter having been physically field before the court. The majority of the court,
however, held that in the context of the section, “review pending” must be benevolently
construed to mean all pending applications for review whether filed or not.

In General Cold Industry Ltd v Standard Bank Ghana Ltd, the plaintiff company was
registered under the Companies Code, 1963 as “General Cold Industry Ltd,” A bank account of a
company called “General Cold Co Ltd” was frozen by the State under the schedule to the Assets
and Bank Accounts Decree, 1972, as amended by the Assets and Bank Accounts (Schedule)
(Amendment) (No 15) Instrument, 1979. In addition to this, shares ofh te same company
“General Cold Co Ltd” were confiscated and transferred to the State udner the Transfer of Shares
and Other Proprietary Interests Decree, 1979. The court had to decide whether plaintiff company
, “General Cold Industry Ltd “ was the same as “General Cold Co Ltd”, the subject of the frozen
bank account and the confiscation of shares. It was arued that on the proper construction of the
enactments, there seemed to have been a mistake on the part of the draftsman who aomitted the
word “industry” thereby not correctly indeifying the plaintiff company as the company the
enactments referred to. The court was therefore urged to delte the word “company” and
substitute the word “industry” thereby not correctly identifying the plaintiff company as the
company the enactments referred to. The court was therefore urged to delete the word
“company” and substitute the word “industry” in order to avoid an absurdity of the two
enactments freezing and confiscating the assets of a non-existing company. The court rejected
this argument holding that the enactments could not be construed to affect the plaintiff company
as it was no where mentioned in them. In the court’s view, even if there was an omission, this
could not be corrected by the court. The remedy lie, not with the court, but with the legislature
which was at liberty to amend the enactments to reflect its intention. AS matters stood, the
court’s duty was to ascertain the intention of the legislature from the words of the statute and on
that basis the words did apply to the plaintiff company.

In Francis Jackson Developments Ltd v hall, Lord Denning said “ If the literal interpretation
of a statue leads to a result which Parliament can never have intended , the courts must reject that
interpretation and seek for some other interpretation, which does give effect to the intention of
Parliament.”

In Sasu v Amua-Sekyi [1987-88] 1 GLR 506, CA, The Court of Appeal had to construe section
3(2) of the then Courts Act, 1971, as inserted by the Courts (Amendment) Law, 1987. the
section provides as follows :

“Where a decision of the Court of Appeal confirms the decision appealed against from a lower
court, an appeal shall lie against such decision of the Court of Appeal which may on its own
motion or on an oral application made by the aggrieved party decide whether or not to grant such
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leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party
may apply to the Supreme Court for such leave.”

This provision was examined in the light of other provisions of the amendment Act and the court
came to a conclusion that there was an obvious omission of the words “with the leave of the
Court of Appeal.” In the court’s view, without these words the subsection would be rendered
unintelligible and as such they should be inserted immediately after the words “an appeal shall
lie against words may not only make the subsection intelligible but would also give effect to the
intention of the legislature.

THE MISCHIEF RULE: This rule is also kown as the rule in Heydon’s case which attemtps to
determine the legislator’s intention. It developed from the 16th century. 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 his remedy. Thus, the courts appy this rule to ascertain the
intention of Parliament. It asks the question: By creating an Act of Parliament what was the
“mischief” that the previous law did not cover? The application of this rule gives the judge more
discretion than the literal and the golden rule as it allows him to effectively decide on
Parliament’s intent. It can be argued that this undermines Parliament’s supremacy.

In the Heydon’s case, itw as said that four things must be considered before the rule is applied.
These are

(a) What was the common law before the making of the Act?
(b) What was the mischief and defect for which the common law did not provide?
(c) What remedy ahs Parliament prescribed to remedy the defect?
(d) The true reason of the remedy

THE PURPOSSIVE APPROACH: This is similar to the mischief rule. This rule of statutory
interpretation holds that statutes should be interpreted in the light of the purpose behind the
legislation.

In ‘Statutory Interpretation’ by Bennion, he posits that “A purposive construction of an

enactment is one which gives effect to the legislative purposive by –

(a) following the literal meaning of the enactment where that meaning is in accordance with
the legislative purposive (in this code called purposive-and-literal construction)) or
(b) applying a strained meaning where the literal meaning is not in accordance with the
legislative purpose (in this code called a purposive-and –strained construction)

This rule is usually used to resolve ambiguities in cases in which the literal rule cannot be
applied. In the Ghanaian context , it has gained prominence in the interpretation of the provisions
of the Constitution. Thus, in Republic v Fast Track Court, Accra; Ex parte CHRAJ (Anane
Interested Party), Wood CJ said :
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“In my respectful view, in any constitutional interpretative dispute, involving the use of ordinary
words or expression, where no technical words or expressions of art have been employed, an
where the Constitution is completely silent on the meanining to be assisgend to those words or
expressions, the first rule that should be invoked is the ordinary or plain meanining rule.
Legitimate questions that must necessarily follow its application include the following : does it
[the ordinary meaning ] advance or defeat the purpose of het legislation or does it lead to a result
at variance with the main purpose of the provision, or to some unjust , scandalous, incongruous,
absurd, stranger or extraordinary results…If the interpretation substantially advances the
legislative purpose, the matter ought to end there. Certainly, where the modern purely ‘strained’
to end there. Certainly, where the modern purely ‘strained’ purpose –oriented approach
(subjective approach) would rather work injustice or lead to absurd, weird or extraordinary
results, the rule must altogether be avoided. The established principle, quite understandably, is
that if there are two competing interpretations, one promoting injustice and the other not, we
must favour the construction that advances the cause of justice.”

Kludze JSC in Asare v The Attorney-General expressed the purposive construction rule as
follows :

“I agree that we must adopt a purposive construction of the constitutional provisions. That means
that we do not construe words in the abstract but within the context in which they are used.
Language is a tool for expressing the wishes of the speaker, author or writer. Therefore,
regardless of the theoretical classification of the methodology of construction, the fundamental
rule is for the court to construe every enactment with the purpose of effectuating the true intent
of the law –making , in this case the intent of the framers of the 1992 Constitution. All other
canons of construction have the ultimate purpose of achieving this goal. I do not think the mere
recourse to dictionaries of the English language will resolve the issues which confront us or
render ay easier the task we are called upon to perform.”

OTHER AIDS TO INTERPRETATION OF GENERAL STATATUTES

Acts must be read as a whole . The court will therefore look at:

17. The long title of the Act to ascertain the object of the Act.
18. Punctuation and headings to a section or group of sections-but only to determine the
purpose , not the scope of the section
19. 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 statue where various words used in the statute may
be defined.
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There are also a number of presumptions that the court will take into account in ascertaining the
intentions of Parliament. These include :

20. A presumption against retrospective effect of legislation

21. A presumption against alteration of the law
LEGAL REMEDIES

Declaration and injunctions though private law remedies have become increasingly important in
public law due to human rights and administrative law issues.

DECLARATION: This is a commonlaw remedy developed by the commonlaw courts. The

declaration is the authoritative statement by a court of law as to the state of the law in relation to
the particular issue or the relationship between the parties. Thus it is a definitive statement of the
law. Hence declarative by the court. See Article 2 of the 1992 Constitution and the 31 st
December Case, Shalabi v Ag, Tuffour v AG. The only remedy sought in the Sallah case was
declaration. An application for a declaration is often joined by an injunction so as to give force to
a declaratory judgment. Even without this joinder, it can be useful as it lies to give force to all
kinds of actions both of a regulatory and administrative character. This explains the relevance of
the remedy because actions for declarations will lie to test the legality of legislation. It requires
no leave.

INJUNCTION: Whereas the declaration is a common law remedy , injunction is an equitable

remedy. At times, the common law remedies of declaration and damages may not be adequate.
This led to the development of the injunction by the equity courts. An injunction is an order from
the court directing a named person to do or refrain from doing certain specified acts. It may take
one of two forms, : positive or negative. Positive means mandatory, thus requiring the
performance of certain acts whereas negative implies prohibitive ,thus restraining act requiring
that certain acts should not be done. The injunction is both available in private litigation and in
public litigation: breach of contract, nuisance, succession dispute, family law matter etc. It is also
available in public law, constitutional law, administrative law, human rights law etc.

Prohibitory or mandatory injunction may be permanent or interlocutory(interim). The permanent

injunction is issued at the end of het trial after the determination of the rights of the parties. Thus,
it is granted after a judicial decision has established that an act or omission is unlawful and that
the complainant is entitled in law to be free from the consequences of such act or omission. See
NPP v IGP; NPP v GBC
An interim or interlocutory injunction is an order of the court to freeze a certain situation, to
arrest the execution or doing the consequences of an action during the pendency of the action.
During is important so as not to render the decision of the court nugatory. It is automatically
violated at the end of the decision. For that reason, an interlocutory injunction unlike the
permanent injunction can be issued against both parties in an action whereas the permanent
injunction can only be granted against the loosing party. The application for an interim
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injunction will be refused if the granting of the application would cause greater hardship than the
refusal of it.

The interim injunction is to preserve the status quo and enable the court to determine the case.
For this to be granted, there must be a substantive case. If there is no substantive case pending
before the court, you cannot apply for an interim injunction. Section 13 of the State Proceedings
Act, (Act 555) makes it possible for an injunction to be granted against the state. This thus
overrules that portion of Akuffo Addo v Quashie Idun.

PREROGATIVE REMEDIES

The prerogative writs include certiorari, prohibition, mandamus, quo warranto and habeas
corpus. These are strictly public law remedies and hence are not available in private litigation.
They are thus only available against public official statutory bodies, governmental agencies,
constitutional bodies.

These remedies are available udner two main circumstances or situations :

First, under the original human rights jurisdiction of the High Court and this can be seen in
article 33:

33(1) “ Where a person alleges that a provision of this Constitution on the fundamental human
rights and freedoms has been , or is being or is likely to be contravened in relation to him, the,
without prejudice to may other action that is lawfully avaible, that person may apply to the High
Court for redress.”

33(2) “ The High Court may, under clause (1) of this article issue such directions or orders or
writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition
, and quo warranto as it may consider appropriate for the purposes of enforcing or securing the
enforcement of any of the provisions on the fundamental human rights and freedoms to the
protection of which the person concerned is entitled.”

The second situation where these remedies may be issued is in the exercise of the supervisory
jurisdiction of the high court or the Supreme Court. The Supervisory jurisdiction is the
jurisdiction which is given to the High Court and the Supreme court to regulate, oversee,
supervise public bodies, adjudicating tribunals, constitutional bodies in the performance of their
duties. The Supervisory Jurisdiction of the High Court is conferred by Article 141 and that of the
Supreme Court is under article 132.

Article 141 “The High Court shall have supervisory jurisdiction over all lower courts and any
lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and
directions for the purpose of enforcing or securing the enforcement of its supervisory powers.”
Article 132 “The Supreme Court shall have supervisory jurisdiction over all courts and over any
adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and
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directions for the purpose of enforcing or securing the enforcement of its supervisory power.”
See Ex parte CHRAJ (Kwame Addo Interested Party), Republic v Court of Appeal; ex parte
Tsatsu Tsikata-here an invitation was made to the SC to quash the decision of the Court of
Appeal but the Supreme Court declined that the court of appeal had done anything.

CERTIORARI AND PROHIBITION

An order of prohibition lies to restrain, forbid and inferior tribunal, state body or constitutional
body, public tribunal or public person in the exercise of its functions of powers. Certiorari on the
other hand lies to quash, to invalidate, nullify a decision or action which has been taken by the
body or person.
The main distinction between the two is that certiorari looks backwards, thus it lies to invalidate
something which has already been done and prohibition looks forward, it lies to stop, prevent an
act which has not been done or which is continuing. This means that where the action has already
been done or taken and everything is complete, then your proper remedy is certiorari and not
prohibition since there is nothing to prohibit but you think it is unconstitutional or breaches
natural justice. Conversely, if there is something to be done or the thing has not been done then
your appropriate remedy is prohibition and you cannot apply for certiorari if the thing has not
taken place but there are situations where you can apply for both. See Ex Parte Bannerman. In
this case, the respondent Chairman of a Commission of Enquiry established to probe the affairs
of the State Fishing Corporation purported by letter to suspend the applicant, the Distribution
Marketing Manager of the Corporation. The applicant initiated proceedings for certiorari to
quash the letter of suspension and prohibition to prevent the Chairman from suspending ,
dismissing, interdicting or in any manner interfering with the applicant in the performance of his
duties as Distribution Marketing Manager of the Corporation. Counsel for the respondent argued
that the suspension of the applicant had nothing to do with the quasi-judicial functions of the
respondent as Chairman of the Commission of Enquiry. In suspending the applicant, the
respondent acted in an administrative capacity. Consequently, certiorari and prohibition would
not lie.
The Court held inter alia, that granting the existence of the alleged power to suspend the
applicant, the respondent could not suspend him without affording him an opportunity to present
his case. The audi-alteram partem rule applied just as much to the exercise of administrative
functions as to the exercise of judicial or quasi –judicial functions.

In Republic v High Court, Accra ; Ex parte Ghana Medical Association (Arcmann-

Ackummey Interested Party) [2012] 2SCGLR 768 @ 769 , the SC held that

“an order of prohibition or certiorari would issue to prevent a court or tribunal from exceeding or
continuing to exceed its jurisdiction on grounds of want or excess of jurisdiction; error of law on
the face of the record; failure to comply with the rules of natural justice; and breach of the
Wednesbury principle, namely, that an administrative action or decision would be subject to
judicial review on the grounds that it was illegal, irregular or procedurally improper. And the
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difference between certiorari and prohibition was only that whereas certiorari would look to
remedy past errors, prohibition would look to the future to prevent what was to be done from
being done.”

RULES GOVERNING CERTIORARI AND PROHIBITION

Against whom, what bodies and acts? : These are public law remedies and lie against public
persons, statutory bodies, constitutional bodies, commissions of enquiries , local government
bodies-municipal assemblies , district assemblies, medical and dental board (Ex parte Abban),
Chieftaincy tribunals-the decision of a traditional council to destool a chief has been quashed
because it appeared on the face of the record that the whole traditional council had decided the
case instead of a judicial committee of it as provided in the Chieftaincy Act (Ex parte Tiwaa),
Disciplinary bodies –police (Ridge v Baldwin), private persons-limited liability companies,
inferior tribunals-rent officer.

Personal Interest or Locus standi / Who may bring an action for an order of certiorari and
prohibition : The courts have held that persons who bring an action for these prerogative writs
must show that they have a specific individual or personal interest in the subject matter. Thus, he
must have a locus standi-Article 33, again , invoking the original jurisdiction of the High Court
in human rights matters, the person must be a victim and not a mere busy body. Contrast Article
2 to Article 33. Remember the Tuffour Case.

In ex parte Kusada, the court held that in granting this remedy, where the objection of a decision
of an inferior court is taken merely by a member of the public and not by an aggrieved party,
then the granting of certiorari is discretionary however where it is taken by an aggrieved party,
then it is ex debitio justitiae. However, if an aggrieved party is entitled to the order, the order
could still be refused on grounds of unreasonable conduct of the applicant which the court may
take into account.

Exhaustion of Statutory Remedies : The law is that, the courts have held that certiorari and
prohibition can be applied for without having to go through any statutory processes of appeal.
For instance, where there is breach of the rules of natural justice, they need not exhaust any
statutory processes of appeal. Ex Parte Aryitee however holds that though you need not exhaust ,
where in fact you have lodged an appeal , then you cannot apply for certiorari.

Certiorari and prohibition do not go to the substantive merit of the case but procedural matters
such as : breach of natural justice

Grounds : There are three main grounds ; breach of the rules of natural justice; lack or excess
of authority or jurisdiction (Ultra vires);

Error of law on the face of the record: Ex parte Tsikata , Hesse. The court will be reluctant to
exercise jurisdiction on the basis of error of law because the superior court will nto make such
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fundamental mistake. In such a case, it should be done trhough the appellate means (Kwame
Addo). Where on the face of the record, there are obvious patent to the high heavens, which is so
fundamental to the extent that it had led to a mistake then the action, decision may be quashed or
may be prohibited by prohibition or certiorari.

Mandamus: Mandamus is an order of the court which lies against public or statutory persons
who have faield to discharge their obligation to discharge their duty. If it is a private matter, the
appropriate remedy is a mandatory injunction and not a mandamus. See Ex Parte Abban,
Marbury v Madison; Mould v Divine; Ex parte Akanya; Re Botwe & Mensah

REQUIREMENTS :

First it lies against public institutions

Second it lies only where there is non performance of the public or statutory duty: Hence,
there must first be a duty and second the duty must not have been performed. It means that where
there is no duty, mandamus will not lie. It has thus been held that where a body has a discretion,
then mandamus will not lie to compel the body to exercise the said discretion.

Prior demand to the respondent by the applicant to perform his duty : Ex parte Abban.

No other equally convenient or appropriate remedy : In ex parte Abban, the court held that
mandamus was the appropriate remedy. Ex parte Vanderpuye also holds that the existence of a
right of appeal is no bar.

QUO WARRANTO

This literally means by what authority or by what warrant? It is issued to restrain a person from
acting or purporting to act in an office to which he is not entitled. Thus, it is a restraining order to
a person who has usurped and acting unlawfully.

Public /Statutory Office : It will not lie in the situation, were the office is private. Whether or
not quo warranto lies in chieftaincy disputes? There are two lines of conflicting decisions with
eth quo warranto with regards to chieftaincy disputes. Is the office of a chief a public office? If
so , can the High Court deal with such matters? Chieftaincy tribunals do not exercise supervisory
jurisdiction which is allowed to only the High Court and the Supreme Court so certiorari, quo
warranto, mandamus will not lie there but rather with the High Court and Supreme Court. So it is
not possible to go to the High Court with a matter affecting chieftaincy. However, in the exercise
of the supervisory jurisdiction, the High Court can order certiorari etc. to the tribunal

The second requirement is that there must be an actual usurpation: That is , the person is
unlawfully exercising the powers of those office. It is not that he claims, the person must rather
actually have usurped the office.
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Third, there must be no unreasonable delay between the usurpation and the application for quo
warranto.

Procedure for the court to grant these remedies (Prohibition, certiorari, quo warranto,
mandamus) : The procedure can be found in Order 55 of CI 47. Under Order 55 r 3, an
application for judicial review in the nature of mandamus, prohibition , certiorari or quo warranto
must be brought within six months of the occurrence of the event complained of. Hence it must
be brought quite speedily.
55 r 4 indicates that the application must be on notice. That the application shall be supported by
an affidavit, and the affidavit should state the following particulars : the full name and
description and the address of the applicant, the facts upon which the applicant relies or remedies
sought by the applicant and the grounds on which he seeks the remedy. Lastly, the full name,
description and address of the respondents.

Rule 5 : The motion and the affidavit in support must be served on the respondent. Within 7 days
of the service of the notice paper and the serving of the affidavit on the respondent, the
respondent shall file an affidavit in opposition. Within 14 days of the filling of the application
by the applicant, the applicant must file a statement of his case. Thereafter, the case is set out for
hearing. The hearing or the application is usually by legal argument, by counsel for the applicant
and counsel or counsels for the respondent. Usually no oral evidence except in exceptional cases,
it is trial by affidavit evidence.

The case will be set out for trial in three weeks, and in the exception where the oral evidence is
taken, the legal argument may take one or two days. Quite clearly this procedure is much faster
than the ordinary civil litigation. If you notice, all these prerogatives is by the republic and so
time is of the essence.

Ghann v Tamakloe : The court restrained the appointed chairman of the ashanti interim
regional assembly from acting in that office because the office of an Interim Regional Assembly
is an office of a public nature against which a writo f quo warranto could have issued.

HABEAS CORPUS (PRODUCE THE BODY)

It lies to compel a public person (police, prison authorities, military, BNI, EOCO-Economic and
Organize Crime Office) detaining another person to produce the body of the detained person and
to justify the detention. Where the detaining authority fails to satisfy the court that the detention
is lawful then the court will order that the person is released. It is designed to check unlawful
detention nad interference with personal liberty by public persons.

According to Dicey, habeas corpus is more powerful in protecting the liberties of the individual
than any constitutional protection. In Ghana, the remedy has had a checking instrument. See Re
Akoto, Re Okine, Ex parte Ibrahim. The courts by these cases held that where upon an
application by a detained person for habeas corpus , the state in its reply provided that it was in
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the interest of the detained person or in the interest of the republic that he was detained and
exhibit the executive instrument under which hew as detained. This position was from the 50s to
the 79 when the case of Ex parte Quaye Mensah came up. This case held that the mere exhibition
of the executive instrument that it is in the public interest is not sufficient justification of the
arrest and that the court has authority to inquire into the reasonableness of the executive in
detaining a person. In 1984 however, the habeas corpus amendment law , took us back to the
position in Re Akoto. That is should not be lawful. In 193, the Habeas Corpus (Adaptation)
Constitutional Instrument, 1993, CI 6 repealed PNDCL 91 and returned to the position in Ex
Parte Quaye Mensah. It provided under section 2 that the court shall enquire into an allegation of
unlawful intervention and for this purpose the court may order the production of the person
detained and secondly order the detaining authority to submit a document in writing stating the
grounds of detention. Order 56 also deals with Habeas Corpus.