LEGAL METHOD NOTES

NB; EVERYTHING IN ITALICS OR BOLD ARE PERSONAL NOTES

FROM THE BOOKS AND CASES ON THE READING LIST
SPECIAL ATTENTION IS TO BE PAID TO EVERYTHING
UNDERLINED.
CIVIL PROCEDURE
ELEMENTS OF THE CIVIL PROCEDUREIN GHANA
From E K Quansah a civil matter may commence with the issue of a
writ of summons, a petition or originating notice of motion.
However per Order 2r2 of CI 47 all civil proceedings start with a writ
of summons.
 PRELIMINARY MATTERS
 PRE TRIAL CONFERENCE; where the aggrieved party meets with
his lawyer to state his side if the story. It is the duty of the lawyer to
listen attentively to the client and in the reputable and respectable
law firms, the story of the client is recorded in a book and if the
client is a literate he should be made to draft his story down
himself and the relevant documents should be collected and
scrutinised.
1. DOES THE CLIENT HAVE A CAUSE OF ACTION?
(These will form statements of facts which when proved will
entitle the person to actions/ judgments in a court of law.
2. IF THE CLIENT HAS A CAUSE OF ACTION, AGAINST WHO?
3. IS THE CASE APT FOR JUDICIAL SOLUTION: Justiciability
Keeping in mind that our judicial system is adversarial, is the
court the place for settling the case?
Is the case such that too much discretion of the judges will be
exercised? In other words is this case a court case?
What is justiciable relates to what is judicial and what judicial
power is about.
Judicial power is the power to make final, binding and
authoritative decisions. No procedure for processing the case in
court makes the problem non justiciable.
4. IF THE PROBLEM IS JUSTICIABLE, IN WHICH COURT CAN
THE CASE BE TRIED IN? An action may be in a particular
court and the chief justice may transfer the case no matter
the stage at which it is in to another court upon application
 by any of the parties. It is in the best interest of the lawyer
and his client to commence an action in the proper court
because transferring the case to another court can take at
least three months. ( E. D KOM CIVIL PROCEDURE)
5. IS THE ACTION SUBSISTING?
There is legal time for taking a case to court after which the
action is statute barred. Sometimes an application for the
extension of time can be given.
“Law is for the vigilant and not the indolent.”
In some situations there are prerequisites that must be
satisfied before the case can be taken to the court. In some
cases the dispute must be submitted for arbitration before
it can be taken to the court.
PROCESSES FOR INITIATING AN ACTION
1. A CIVIL ACTION SHOULD BE INITIATED WITH A WRIT OF
SUMMONS
2. HOWEVER THE CONSTITUTION PRESCRIBES PETITION
INSTEAD OF A WRIT FOR SOME DISPUTES.
3. THE EVIDENCE TO BE USED IN THE CASE: do you have
the sufficient evidence? Every other claim must be backed
by evidence.
WRIT OF SUMMONS + STATEMENTS OF CLAIMS (ORDER 2 r 2)
Writ is a formal document bought from the court but now some IT people
in the firms produce these writs. It has the signature of the Chief Justice
but nowadays her stamp is used.
The writ announces to the person whom the writ is directed to that
a legal proceedings has been started against him. It also
announces the date by which the defendant must appear in court
and respond in writing. The writ must include an endorsement
stating the nature of the claim or relief or remedy sought in the
action.
Cases which are initiated to by a petition to the court begin with a
formal written request presented to the court. Some of these
proceedings include a petition for
1. Divorce
2. Nullity of marriage
3. Presumption of death and dissolution of marriage
 4. Maintenance orders
5. Child custody orders

Notice of motion is usually used for applications and such an

application may be made ex parte. Every application shall be
supported by an affidavit
Lawyer must give
1. His name
2. Name of firm
3. Firm number
4. License number of lawyer
(A writ can be thrown out because it does not have a valid solicitor’s
license.)
Only lawyers prepare statements of claims
Put down the story with one fact in one paragraph
You only plead facts and do not be vague
Give a clear title
Writs are addressed to the
1. Court Registrar
2. Defendant
Every time a lawyer signs, he must show his license number.
After 8 days which the writ is delivered, a 14 day ultimatum is given so
technically there are 22 working days to file a defence. Saturdays,
Sundays and Public Holidays are not counted. Defendant is allowed to
counterclaim and add it to his defence to avoid the multiplicity of action.
JOINDER OF PARTIES: two or more persons may be joined
together in the same action as the plaintiffs or as the defendants
without leave of court.
Misjoinder; occurs where a party whose legal or equitable rights
will not in any way be affected by the reliefs sought in the
proceedings is joined as a party.
Non-Joinder; occurs when a party whose legal or equitable rights
will not in any way be affected by the reliefs sought in the
proceedings is not joined to the suit.
No proceeding shall defeated because of a misjoinder or a non-
joinder.
Bringing an action against the government (the attorney general)
demands that the AG should be given a month’s notice of his
intention to bring the action. Such notice should
1. state the cause of action
2. the name, description and place of residence of the plaintiff
3. the reliefs sought
PRE-TRIAL CONFERENCE- where mediation is advised. If the plaintiff
delays, defendant can take step 5. It is at step 5 that the judge sees the
case for the first time. Recently case allocation is done via computer.
Trial is on matters they do not agree on. The lawyer can be penalised for
stating too many issues.
PLEADINGS: documents in which parties exchange rival stories. Written
statements filed by both parties. Gives notice to either party of the case
and served only for writ of summons. The pleadings serve two
purposes:
a. they inform each party what the case of the opposite party is
b. It also informs the court of what the parties’ case is.
The system of pleadings is based on three fundamental principles
1. Each party must plead the material facts on which he relies
for his claim or defence.
2. That the material facts stated in the preceded pleading will be
deemed to be true if the other party does not expressly deny
them
3. That any fresh matter must be specifically pleaded…

Pleadings are found in the statement of claim.

Provides contours of the dispute
Provides the judge with a full understanding of what the parties are
saying so that the judges can prevent parties from talking anyhow.
Evidence is not the same as repeating the statement of claim.
Evidence led by plaintiff’s lawyer is the evidence in chief
Lawyer cannot ask leading questions (questions with answers in them)

USE OF CROSS EXAMINATION

1. To test the credibility of the person being examined
2. To use the person as a foundation for defence
CROSS EXAMINE WITH CAUTION

By the time the case gets to the SC, the dispute is about the law
not facts
Judges must give reasons for his judgment
In civil process every court has a review process to correct some
petty mistakes.

If the person is abroad, a notice of writ is taken to ministry of

foreign affairs, ambassadors and embassy to him
An application made generally in Stage 1 because other party has
failed to take a required step- interlocutory Application

Preservation Order: Asking the court to seize the item or dispute.

In Stage 1 pleading one party can apply for better document. An
amendment- you cannot amend to change your case.
An amendment- unless it is entirely necessary do not make
them or it can weaken your case.
An amendment- unless it is entirely necessary do not make
them or it can weaken your case. A garnishee order is when
the judgment debtor has money with another party and this
third party is asked to pay that money to the judgment
creditor.
A charging order is when a charge is placed on immovable
property belonging to the judgment debtor till he pays up his
debts to the creditor.
A writ of sequestration is when the courts seize any
immovable property owned by the judgment debtor and puts
it in the care of people known as commissioners who are
appointed by the court and empowered to take and collect
 rents on the property be it movable or immovable till the
person (that is the judgment debtor) is cleared of all costs.

CRIMINAL PROCEDURE
CRIMINAL and OTHER OFFENCES (PROCEDURE) ACT, 1960
[COOPA]
Criminal procedure is triggered by an individual making a report to
the state. Monies awarded in criminal cases go to the state.
Processing of crimes is a police function. A complaint may result in
suspicion being directed at somebody which after investigation
may lead to an arrest of the suspect thus making him an accused.
ISSUE CAN END AT INVESTIGATION IF
1. Case is civil
2. Suspect is not related to the crime at all
3. Suspect is not directly related to crime
Person being arrested must be told in their own native language.
You can be arrested for; see article 14
Read CHRISTY v LEACHINSKY
Person arrested must be searched with or without warrant
Ordinarily police arrest must be done after investigation. If investigation
will take long a POLICE ENQUIRY BAIL is given. An arrested person
must be taken to court within 48 hours.
“a person has been charged” means a person has been put under the
authority of the court
A charge involves two kinds of documents:
If content is a minor offence it is a CHARGE SHEET.
If content is a major offence it is a BILL OF INDICTMENT.
And both contain the offence of the person. One offence per charge
sheet or bill of indictment. And both must have one form.
1. Name of accused
2. Occupation
3. Date of Offence ( never give the exact date)
4. Place + region where the offence was committed
5. Convince the court that it has jurisdiction over the matter
 6. Substance of the offence
There are two modes of trial and they are: SUMMARY TRIAL AND
TRIAL BY INDICTMENT
A case will not be summarily tried if the evidence is complex.
Indictable offence can be tried by
a. Judge and jury
b. Judge and assessors
Jury= Question of fact
Judge= questions of law
In some common law countries trial by jury is used for both criminal and
civil cases. In Ghana it is only used for indictable offences. In Ghana 7
jurors sit on a case.
In the USA 12 jurors sit on a case
It is an offence to fail to end up in jury service.
If boss does not allow workers to go for jury service then he can be fined
and imprisoned
Students and teachers cannot be jurors.
Accused can object without any reason to a panel member sitting on his
case. If he exhausts it he must give reasons. State must object to
members of the jury with reasons.
Assessors: they just advice the judge and he is not obliged to do what
they say. The judge is a judge of both facts and law.
TRIAL ON INDICTMENT
1. Committal Stage: at magistrate court for committal proceedings)
2. Actual Trial

Committal Stage: does not determine guilt but determines whether

prosecution has enough evidence to nail down the accused. Decision is
made based on
1. Summary of evidence
2. Bill of indictment or charge sheet
Accused is not required to say anything during the committal stage.
STEPS
o Arraigned, Charges read out, prosecution may address the court,
accused may reply. Magistrate may ask accused if he has
witnesses. He is not obliged to reply. If he is committed, he is
arraigned.
Arraigned means
1. Brought to court and docks
(Difference between dock and witness box in advanced country)
1. Charges are read out
2. His plea will be taken
5 OPTIONS FOR ACCUSSED
1. He can plead guilty- confession- ends trial
(People plead guilty with explanation- not in Ghana law). Law
requires the explanation is recorded and if the recording sounds
not guilty, not guilty is pleaded and case is continued.
2. He can plead not guilty
3. Take a plea to the jurisdiction of the court
4. Article 19(7) that he has been tried by a court of competent
jurisdiction already.
5. Plea of pardon- ask for mercy from president. (Can president grant
it before trial?)
6. 6th One: Refusing to plead- taken to mental hospital- if he is okay
then court will plead not guilty and case continues
 He can open his defence
 Make an unsworn statement
 Make a submission of no case- court will acquit and
discharge him
 If it is upheld then fine
 If not- then the case continues

Accused may accept conviction and appeal against the sentence or both
the conviction and the sentence.
State may appeal (especially if punishment is mild)
State cannot succeed if court says not guilty unless judges made
significant errors
AG can abort a trial without any reason by filing a process known as
NOLLE PROSE QUI. I am willing to continue. It is not reviewable and
AG can’t undo it.
Only one requirement is needed for bail: your availability after bail.
You will need a guarantor with some money bail.
BAIL: it is not all the time that a surety is needed to grant bail. Bail
is usually granted at the discretion of the court and it depends on
a. The stage at which the proceedings are
b. The type of offence which the accused is charged with
c. Whether or not the accused is gainfully employed and has a
fixed place of abode
Bail can be refused when it is seen that:
i. The accused may not appear in court
ii. The accused may interfere with the witnesses or evidence
or his release may hamper investigations
iii. The accused may commit a further offence
iv. The accused is being charged with an offence which he
committed while on bail.
The accused is innocent until proven guilty.
If the offence is not high treason or treason then the person can be
tried by jury.
Unless the offence is defined a person cannot be convicted for the
crime.
A death sentence may not be passed on juvenile and pregnant
woman.
A juvenile offender cannot be sentenced to prison.
If you are a habitual offender, when you are caught you are
detained and imprisoned for not less than ten years with hard
labour.

The various schools of thoughts on the question what is law

The question what is law is not concerned with themes such as the
impact of history on law, custom and environmental contents of
law or the definition of law in terms of its purpose or functions in
the society. This is not the same as what are the functions of law.
There are about five schools of thoughts on the question what is
law and they are:
1. Positivist Camp/ The Command Theory of Law
2. Natural law camp
3. Historical School Camp
4. Sociological Camp
5. The realist camp

THE POSITIVIST SCHOOL

These are major principles in the camp of the positivist which is
also known as the command theory of law.
1. Law is law when it is written down or stated by persons in authority
to state what law is.
2. Law and morality are not fused.
3. Human rights are those that are stated in the law. One is only
entitled to the rights provided for in written law.
In the camp of the positivist, JOHN AUSTIN defined law as: “law is a
command of the sovereign backed by sanctions.” This means there
are 3 elements in the definition
1. Command: the wish or expression of wish of a sovereign
2. Sovereign: a person or group of persons who are habitually
obeyed by society and are in no position to obey anyone else.
3. Sanctions: the evil or pain visited on one for non-compliance.
According to this school of law; any law without sanctions is not
law.

H.L.A HART: THE CONCEPT OF LAW

1. Has a problem with “habitual” in the definition of sovereign.
Must obedience always be habitual?
Assuming in a town a chief dies and the first day that his
successor ascends the throne he makes a law that everyone
should sleep at 6:00 am. In such a situation obeying the
sovereign cannot be said to be habitual.
2. Writ Gun Large: in a case where a gun is held to someone’s
head, commands are issued with sanctions. But is the gun holder
a sovereign?
3. Law with sanctions does not apply in every area or branch of
law.
Does this in anyway make these laws less of laws? Not at all.
There are and will always be branches of law with no
sanctions attached to them.
*there is a difference between power conferring and duty
conferring laws.
Declarative laws just declare
Admin law, Con law, wills do not fall under Austin’s definition of
Sanctions.

4. The use of the word sovereign in the definition by JOHN

AUSTIN refers to a human or humans. But there are situations
where the sovereign power is not a human but maybe the
constitution. To remedy this KELSEN, another positivist
replaced the sovereign with A GRUNDNORM

Positivist is potentially wicked

11 March 2016
th
FRIDAY
CONTINUATION OF WHAT IS LAW.

NATURAL LAW
Law needs not be written down.
It is the opposite of positivism. Write-ness does not affect law. For
law to be law it must said to respect certain eternal values or
virtues. There is no unity in natural law’s camp. They have four
main branches which are not united but have a common view
point. They believe that law and morality must be fused and cannot
be separated.
1. God; they believe that law is law when it obeys God’s
commands. You cannot dictate a law which is against God’s
law: the problem with this is that there are atheists and
 agnostics in the society who do not believe in a God thus
affecting the validity of the laws.

2. Reason; any law that is inconsistent with human reason is not

law. They use language like “it is unreasonable.” The problem is
that not everyone has reason or is capable of reason. There are
also inequalities when it comes to the quality of reason.

3. Human Nature; a law that is not consistent with human nature is

not law. If laws are against human nature then it should be said
to be illegal because they are impossible. However there are
laws that are not impossible to obey but difficult to obey even
though they are within our nature as humans. The problem is
that there are some human natures that are influenced by the
environment, society, culture and others so there are usually
differences as to what is consistent with human nature

4. Common Good; a law that is against the common good of the

people is not law.

REALISM/ LEGAL REALIST; they distinguish between legal and non-

legal factors. The chief proponent here is OLIVER WENDELL HOLMES
JNR. They say that to determine what law is distinguish between legal
and non-legal factors. Law is in the pronouncements of the judge in the
court. Nothing is law except the prophecies of what the court will do in
fact. To them legal factors do not determine what law is and if you
depend on this you are a fool. Rather the morality, prejudice and the
politics of the judge are what influences the judge’s decision.
Politics in Ghana may mean which party appointed the judge. Ethnicity,
family etc. are also part of Politics.
The problem is that law being reduced to what a human says is not a
very good practice. They encourage judges to throw out law and do as
they please. Realism also shows how the judges think.

HISTORICAL SCHOOL OF JURISPRUDENCE

This school believes that law is law when it is consistent with the
national spirit or popular consciousness of a state.
What is the National Spirit or Popular Consciousness? It is your history,
civilisation, customs/ tradition and culture as a state. It is very alive in
homogenous states and the problem is that it is difficult for it to work in a
heterogeneous state. It may also allow barbaric human practices if it is
consistent with the natural spirit or popular consciousness.
This births Article 26 which prevents the practice of dangerous customs
or tradition
SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
Law is law when it is consistent with the prevailing relevant social facts
of a state.
Law is potentially relative (depends on your circumstances) in nature.
Social facts are not the same that is why it is relative. The validity of law
is country dependent because the social facts are not the same and
depends on the country. Social facts must correspond with the laws you
set. In this camp there is
1. Living Law; Eugene Elek; Law must be consistent with the social
facts of the state and where it is inconsistent then it is not law.
Living law is contrasted with norms of decisions which guide how
you take a decision. E.g. the norms of decision may say no parking
but when people park there, parking there is the living law. Living
law is what the people do as reflected in their lives. For them when
interpreting a law, the living law must be considered. If you’re
adamant and you are still referring to dead provisions, the state is
put into the hands of ghosts who would be allowed to govern us
because the enactors of those laws are dead.
2. Social Engineering; Roscoe Pound. Law can be used to engineer
changes in the society especially in the attitudes of the people.
When doing this the existing social facts must be considered.
This person believes that law must come with development.
E.g. Domestic Violence Act; Definition of domestic violence was
exclusive to physical violence prior to 2007. Roscoe Pound’s definition
and theories were used to change this.
Roscoe believes that great amount of good is derived when the social
laws of the people are considered when making laws.
WEDNESDAY 30 MARCH
th

2016
FUNCTIONS OF LAW
There are seven major functions of law
1. To legitimize the actions of those in authority: “for example if you
were asked if your admission to law school was legitimate, you
cannot just say yes you were. You must show that the UG rules
state some qualifications and that you fulfilled those qualifications.”

2. To allocate power/ to distribute power in a state: this helps us to

protect our rights because we know who has a right do this and
who has a right to do what.

3. Is to order society/ disables one from doing bad, enables one to do

good: this provides us with a model or structure that helps us to
interact with one another. This allows the citizens to arrange their
private affairs. For example one knows that he must not take what
is his. Look at Article 42, Article 94

4. Law functions to control/ an instrumental role to control society/

preventive function of law: with the view of establishing peace and
order. Law has to control individuals and check their desires to
ensure peace and order

5. Law serves a function of adjudication/ this is a curative function of

law: it functions to help one settle a dispute.

6. To dispense justice: law is used to attain or seek justice

7. Law is used to change society and individuals: human rights are

being protected aggressively
WEDNESDAY 09/03/2016
General principles of statutory interpretation
Read EK Quansah chapter 8
The law of interpretation in Ghana Bimpong Buta
(He uses the old interpretation act so be careful when reading)
The interpretation Act 2009 (Act 792)
The Courts Act
The 1992 Constitution

From E K QUANSAH:
The primary functions of a judge in interpreting statutes is to
ascertain the intention of the lawmaker and what constitutes
the “intention of parliament” is not easy to define.
In reading you may come across the word “interpret” and
“construct”, “construe”.
In answering interpretation questions:
1. Discuss the juridical basis for the application of the basic rules
for the interpretation of statutes in Ghana.
2. Elaborate on the legal basis for the application of the basic rules
for the interpretation of statutes in Ghana.
Juridical basis means what is the legal source of authority based
on which the judge can interpret the statute.
 In Ghana the juridical basis is the constitution.
The reasoning is based on case law and your juridical basis.
Interpretation is done on a daily basis. Why do we need to interpret?
To interpret a statute means to explain, to elucidate the words and
concept used in the statute, unfold or show the purport of a word or
words used in a statute.
There is a need to interpret especially in situations where the statute in
question when applied creates a condition of doubt or contains an
element of doubt.
Condition of doubt refers to a situation where there is an error in the
statute or there’s been an omission of a word.
REPUBLIC v HIGH COURT ACCRA; EX PARTE ADJEI [1984-86] GLR
EDUSEI v ATTORNEY GENERAL [1996-97]
The legal basis for THE SUPREME COURT in interpreting a case is
found in Article 130 and Article 2 of the 1992 Constitution.
The courts act is a reproduction of the constitution and additional
provisions. Section 3 of the Courts Act is a reproduction of Article 130.
The High Court’s legal basis for interpretation are Article 140 and article
33(1) of the Constitution and Section 15 of the Courts Act.
If the interpretation concerns fundamental human rights then the High
Court has power to make the interpretation
REPUBLIC v MAIKANKAN [1971] 2 GLR 473 (Go to pg. 478)
We wish to comment that a lower court is not bound to refer to the
Supreme Court every submission alleging as an issue the
determination of a question of interpretation of the Constitution or
of any other matter contained in article 106 (1) (a) or (b). If in the
opinion of the lower court the answer to a submission is clear and
unambiguous on the face of the provisions of the Constitution or
laws of Ghana, no reference need be made since no question of
interpretation arises and a person who disagrees with or is
aggrieved by the ruling of the lower court has his remedy by the
normal way of appeal, if he so chooses. To interpret the provisions
of article 106 (2) of the Constitution in any other way may entail and
encourage references to the Supreme Court of frivolous
submissions, some of which may be intended to stultify
proceedings or the due process of law and may lead to delays such
as may in fact amount to denial of justice.
The interpretation is done for issues where there is a real doubt not for
every whimsical case. If a lower court does not a see a reason for
interpretation then there is no need for them to refer the case to the
Supreme Court for interpretation. The person alleging misinterpretation
or a misunderstanding can always appeal.
REPUBLIC v SPECIAL TRIBUNAL EX PARTE AKOSA [1980] GLR 592
gives situations where one can ask for interpretation;
a) Where the words of the provision were imprecise or unclear or
ambiguous. Put in another way, it would arise if one party invited the
court to declare that the words of the article had a double meaning or
were obscure or else meant something different from or more than what
they said;
(b) Where rival meanings had been placed by the litigants on the words
of any provision of the Constitution;
(c) Where there was a conflict in the meaning and effect of two or more
articles of the Constitution and the question was raised as to which
provision should prevail; and
(d) Where on the face of the provisions, there was a conflict between the
operations of particular institutions set up under the Constitution. And in
the event of the trial court holding that there was no case of
“enforcement or interpretation" because the language of the article of the
Constitution was clear, precise and unambiguous, the aggrieved party
might appeal in the usual way to a higher court against what he might
consider to be an erroneous construction of those words. Also where the
submission made related to no more than a proper application of the
provisions of the Constitution to the facts in issue that was a matter for
the trial court to deal with.

The duty of the court is to ascertain the intention of the legislature or the
words used in the statute.
Two constitutional provisions are never in contradiction with each other.
The interpretation is usually comparing a piece of legislation to the
constitution.
THE INTERPRETATION ACT is a major source of interpretation.
BASIC RULES OF INTERPRETATION OR CONSTRUCTION OF
STATUTES
NB: THE RULES TO BE MENTIONED BELOW ARE NOT MASTERS
BUT SERVANTS. DON’T LET THEM LORD OVER YOU BUT USE
THEM AS AIDS, SERVANTS ETC IN INTERPETING. And the case in
point is MAUNSELL v OLINS.
Date- Bah JSC in ASARE v AG said that the so called rules of
interpretation are merely aids.
Traditionally there are three basic rules with a modern 4th one making 4
basic rules of interpretation. The rules as formulated by judges are
1. Literal/ plain/ ordinary meaning rule. It was mentioned in the
Sussex Peerage Case. Look at pg. 36 of Buta for it.
2. Mischief rule. Was propounded in HEYDON’S CASE. Buta at pg.
37
3. The Golden Rule. GREY v PEARSON.
4. The Modern and Purposive Approach to interpretation(MOPA)
Asare v Attorney General [2003-2004] 2SCGLR pg. 823 at
Pg. 824 read Date Bah
16 March 2016
TH

First note of caution the rules are not masters to themselves but are
servants. ASARE v AG.
1. LITERAL RULE:
It is also referred to as the plain or ordinary or natural meaning rule.
The import of this type of interpretation is that statute and legislation
must be interpreted in their ordinary or must be accorded their dictionary
meaning and it should be interpreted in context.
From research it is seen so that this is a mechanism that places
emphasis on the plain meaning on the word and to a certain extent
originality. However this system of interpretation can only be used
where in using the interpretative meaning of the words do not lead
to a clear absurdity. This system is to avoid unnecessary cutting of
corners around the laws. The plain meaning rule is usually used
during a litigation based on a situation where the words or a term is
not defined by the statute or the meaning of the word is not found
within the definition itself.
AG v PRINCE ERNEST AUGUSTUS OF HANOVER 1957 AC 436.461
PG 38 OF BUTA…LORD SIMMONS.
TUFFUOR v AG per JSC SOWAH THE CONSTITUTION IS A LIVING
ORGANISM…at pg.657. “Its language, therefore, must be
considered as if it were a living organism capable of growth and
development indeed, it is a living organism capable of growth and
development, as the body politic of Ghana itself is capable of
growth and development. A broad and liberal spirit is required for
its interpretation. It does not admit of a narrow interpretation. A
doctrinaire approach [p.648] to interpretation would not do. We
must take account of its principles and bring that consideration to
bear, in bringing it into conformity with the needs of the time.”
SALLAH v AG
…As there is a difference of opinion in this court on the correct
interpretation of section 9(1), I think I ought to examine briefly the
grounds on which, as understand it, some of my brothers take a
different view. I believe it is said that we must resort to such external
aids as section 19 of the interpretation Act, 1960 (CA. 4) provides for
the purpose of construing this section and these aids justly, what l
would call, the unnatural interpretation of the word ‘establish’. But
to do this would seem to me to engage in ex post facto
rationalization, because we have to proceed on the premise that the
word ‘establish’ was used in an unnatural sense and then find
reasons to support it. For my part, I do not think such a course
justified…

IT IS THE FUNCTION OF THE JUDGE TO APPLY THE LAW, NOT TO

MAKE IT- JUDICIS EST JUS DICERE SED NON DARE

In technical statutes words will be read in their technical and not in

their ordinary meaning. Technical statutes are statutes that are
passed in relation to a particular business or profession.

When the statute is not dealing with a particular science or art it will
prima facie be presumed to use words in their popular sense.

PAGE 234 OF QUANSAH

REPUBLIC v FAST TRACK HIGH COURT EX PARTE CHRAJ
PER JUSTICE BROBBEY…INTO TECHNICAL BOOKS OR ARCANE
SOURCES.
2. SECONDARY MEANING RULE/ GOLDEN RULE
This means that generally speaking the ordinary and natural
meaning of the statutory provision must be resorted to in
determining the meaning of a word. It means if after resorting to
Ordinary Meaning approach to interpret there is an absurdity,
repugnancy or inconsistency in relation to the rest of the words as
used in the statute then the words must be construed in any other
meaning apart from the ordinary meaning.
SAM v COMPTROLLER OF CUSTOMS AND EXCISE 1971 1
GLR.307 TAYLOR J
“It is a very useful rule, in the construction of a statute, to
adhere to the ordinary meaning of the words used, and to the
grammatical construction, unless that is at variance with the
intention of the legislature, to be collected from the statute
itself, or leads to any manifest absurdity or repugnance, in
which case the language may be varied or modified, so as to
avoid such inconvenience but no further."

ABABIO v REPUBLIC 1972 1 GLR 347 (Where the phrase “any

Person” was given a secondary meaning.)
The golden rule deals with situations where the language of a
statute being given its ordinary meaning will lead to glaring
absurdity in the eyes of the legislature, then a meaning that is
technical should be given to ascertain the intention of the
legislature.
From research it was seen that the secondary or the golden
rule is used in two ways and they are narrowly and broadly.
For example if there is a law in a building which says that “do
not use the lift in the case of a fire.” Literally this sign means
that do not use a lift anytime there is a fire. However the law
basically means that do not use the lift anytime there is a fire
nearby.
Broadly the golden rule is also used where the even though
the words have only one meaning, that meaning is not used to
avoid obnoxious results that are contrary to principles of
public policy.
 3. THE MISCHIEF RULE/ THE RULE IN HEYDON’S CASE
This rule is adopted to interpret statutes In order to give effect to the
purpose or reforms which the statute intended to achieve. The courts in
using the mischief rule is entitled or allowed to alter or amend words in a
statute by adding those express words which they consider as
necessarily or reasonably implied in order to avoid an absurdity. They
can even ignore express words altogether with a view to avoid
unintelligibility and absurdity.
“And it was resolved by them, that for the sure and true [3]
interpretation of all statutes in general (be they penal [4] or beneficial,
restrictive or enlarging of the common law,) four things are to be
discerned and considered:
[5]
1st. What was the common law before the making of the Act?
[6]
2nd. What was the mischief and defect for which the common
law did not provide?
3rd. What remedy the Parliament hath resolved and appointed
to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy;
and then the office of all the Judges is always to make such [7] construction
as shall suppress the mischief, and advance the remedy, and to suppress
subtle inventions and evasions for continuance of the mischief, and pro
privato commodo, and to add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico.”
ADLER v GEORGE 1964 2QB pg.71964 1 ALL ER
“In the vicinity of” was the subject of interpretation.
SMITH v HUGHES [1960] 2 ALL E.R. 859
In this case there was a law which prevented prostitutes to loiter or solicit
in the streets for the purposes of prostitution. The prostitutes started to
solicit for customers by tapping their windows to grab their attention.
When they were arrested they claimed that they had not violated any law.
The court in applying the mischief rule claimed that the intent of the
legislation was to prevent the prostitutes from harassing passers-by so they
were guilty.
MEKKAOUI V MINISTER OF INTERNAL AFFAIRS 1981 GLR 664
“I think in interpreting this Decree this court ought constantly to
have in view the manifest intentions and purpose of the AFRC and
endeavour not only to harmonise all its provisions but also to give
effect to it. The court must not adopt that interpretation which
would make the Decree ineffective.”
GENERAL COAL INDUSTRY LIMITED V STANDARD CHARTERED
BANK 1982-83 GLR pg.360
If the Decree is given such an interpretation the result would be one
of absurdity or impossibility and the courts have construed
statutes to avoid absurdity and to give them validity rather than
invalidity.
4. THE PURPOSIVE APPROACH/ THE MODERN OBJECTIVE
PURPOSIVE APPROACH TO INTERPRETATION
It is the prevailing norm used in many countries. The case that sets
the tone for the application of this case is PEPPER (INSPECTOR
OF TAXES) v JOE HARTS 1993 1 ALL ER PG 42.
MOPA is an improvement of the mischief rule in statutory
construction. It mandates judges and interpreters to construe
statute in order to find the rationale behind the statute. ARTICLE
BY ABOCHI ON PURPOSIVE APPROACH.

SECTION 10(4) OF THE INTERPRETATION ACT.

“(4) Without prejudice to any other provision of this section, a Court
shall construe or interpret a provision of the Constitution or any
other law in a manner
(a) That promotes the rule of law and the values of good
governance,
(b) That advances human rights and fundamental freedoms,
(c) That permits the creative development of the provisions of the
Constitution and the laws of Ghana, and
(d) That avoids technicalities and recourse to niceties of form and
language which defeat the purpose and spirit of the Constitution
and of the laws of Ghana.”

CASES
EX PARTE CHRAJ…ANANE INTERESTED PARTY
ASARE v AG
AGYEI TWUM v AG & BRIGHT AKWETTEY
 In addition to the basic rules of interpretation there are also aids or
guides to construction and they are found in the common law and
statutes.
Read Chapter Three of Buta’s Book.
MAUNSELL V ORLINS 1975 1 ALL ER pg. 16…at pg18…Lord
Reeds
In Ghana an aid to interpretation is the INTERPRETATION ACT
Section 10

Aids to interpretation or construction

10. (1) where a Court is concerned with ascertaining the meaning of an

enactment, the Court may consider

(a) The indications provided by the enactment as printed,

published and distributed by the Government Printer;

(b) a report of a Commission, committee or any other body

appointed by the Government or authorised by Parliament,
which has been presented to the Government or laid before
Parliament as well as Government White Paper;

(c) a relevant treaty, agreement, convention or any other

international instrument which has been ratified by
Parliament or is referred to in the enactment of which copies
have been presented to Parliament or where the
Government is a signatory to the treaty or the other
international agreement; and the travaux preparatoires or
preparatory work relating to the treaty or the agreement, and

(d) An agreement which is declared by the enactment to be

a relevant document for the purposes of that enactment.

(2) A Court may, where it considers the language of an enactment to be

ambiguous or obscure, take cognisance of

(a) the legislative antecedents of the enactment;

(b) the explanatory memorandum as required by article 106

of the Constitution and the arrangement of sections which
accompanied the Bill;

(c) pre- parliamentary materials relating to the enactment;

 (d) a text-book, or any other work of reference, a report or
a memorandum published by authority in reference to the
enactment, and the papers laid before Parliament in refer-
ence to the enactment;

(e) the parliamentary debates prior to the passing of the Bill

in Parliament.

Read sections 13-16

THE COMMON LAW

1. Insists that parliamentary debates are used
There are three maxims used as guides for interpretation
a. THE EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS: the
express mention of one or more things of a particular class
may be regarded as silently excluding all other members of
the class. In the case of R v MIDLANDS Railway 1885 4
E&D 958, a few things were mentioned and it was seen that
even though land was not mentioned the list included land
(which had been developed) but not bare land. Normally the
things listed are in a class.
b. EJUSDEM GENERIS RULE: anytime there is a list and it is
followed by a general word or phrase such as “any other
thing of a similar nature”, the general words must have their
meanings constrained or restricted by the general words
used in the statute.
c. NOSCITUR A SOCIIS: It is recognised by its associates. The
general words take its colour or meaning from the words
which is associated with it in other sections of the same
statute.
READ ANIM ADDO v ADAE MENSAH [1995-1996] 1 GLR

There are presumptions in law that official acts are presumed to have
been properly done (look for the Latin meaning)
There is also a presumption that no parliament will pass a law to give an
unreasonable meaning to prevent the legislation from being redundant.
ARTEMIOU V PROKOPIOU 1966 1 QB 878…PG.88
23 MARCH 2016
RD

STARE DECISIS – PROFESSOR KOTEY

STARE DECISIS: FOLLOW THE DECIDED CASES
There is a principle that like cases should be treated alike to allow
consistency. The common law concept of stare decisis is that a court is
bound by the previous decisions of a court or the decisions of another
court even if the judge disagrees with the decisions. The previous
decisions are not for inspiration but you are bound by these decisions.
A DAY IN THE LIFE OF THE ENGLISH COURT OF APPEAL
RE SCHWEPPS LTD AGREEMENT [1965 1 ALL ER. 195]
In this case by a majority decision with WILMER L.J dissenting…two one
decision case involving restrictive practices.
RE AUTOMATIC TELEPHONE AND ELECTRONIC AGREEMENT CO
LTD AGREEMENT [1965 1 ALL ER 206]
In this case the decision of the court of appeal was unanimous and the
lead opinion was given by Wilmer LJ. He said that he was bound by the
decision of the majority in the first case so he must concur even though
he had not changed his mind.
This illustrates the impact of binding precedents in the common law
system. The effect of the doctrine of stare decisis is instantaneous.

THE DOCTRINE AND CONCEPT OF RES JUDICATA

Res Judicata means that the parties to a litigated dispute and their
successors cannot reopen that matter or re-litigate the issues after the
normal period of appeal has lapsed or after they have exhausted their
rights of appeal due to judicial policy because there must be an end to
litigation.
The concept of res judicata applies only to the litigants and their
successors in interest.
Stare Decisis has nothing to do with parties and litigants and this applies
to everybody operating in the legal system. It concerns the impact of the
decision to the future.
 1. The existence of a hierarchy of courts and rules that indicate the
different relationships between the various courts
2. A public record of decided cases or a system of law reports.

HIERARCHY OF COURTS IN GHANA AND THE OPERATION OF THE

DOCTRINE OF PRECEDENTS IN GHANA
a. HIERARCHY OF COURTS
LOWEST COURT TO THE HIGHEST COURT
1. DISTRICT/ MAGISTRATE COURT
2. CIRCUIT COURT
3. HIGH COURT / REGIONAL TRIBUNAL
4. COURT OF APPEAL
5. THE SUPREME COURT

b. OPERATION OF THE DOCTRINE OF PRECEDENTS IN GHANA

Per Art 129(1) of the 1992 Constitution the decisions of the
Supreme Court are binding on all lower courts.
Per Art 129(3) though generally bound by its previous decisions
may depart from it where it is necessary to do so. This power is
given to ensure order and consistency in the legal system but at
the same time this must not end up in rigidity and or injustice. Also
ties may change and there may be a need to change the law. This
power ought to be distinguished from other courts reviewing their
decisions because that is pushed forward by the parties.
Per Art 129(2) the Supreme Court of Ghana is not bound to follow
any decision of any other court.
All other courts in the Ghana system are bound by the decisions of
the Supreme Court.
The Supreme Court has interpreted 129(2) to mean that the SC is
not bound by the decisions of previous highest courts even in
Ghana and this includes WACA, FULL BENCH OF THE COURT
OF APPEAL(when it was the highest court in Ghana.) AND THE
S.C IN THE 3RD REPUBLIC.
SECTION 2 OF THE COURTS ACT
 THE COURT OF APPEAL ARTICLE 136 of the 1992 Constitution
1. It is bound by its own previous decisions
2. It is bound by previous decisions of the S.C
3. All courts lower to the decisions of the Court of Appeal are bound
by the decisions of the S.C If there are no other decisions of the
S.C.
SECTION 10(5) of the COURTS ACT

THE HIGH COURT (courts of coordinate jurisdiction)

1. Bound by previous decisions of the SC and the CA
2. It is not bound by its previous decisions but may draw inspiration
from its previous decisions. The decision of High Court Judge A in
Accra is not binding on the decision of High Court Judge B in
Tema because all the justices are on the same level.
This principle was mentioned in ASARE v DZENY where Azu
Crabbe CJ said that
“A judge of the High Court is not bound to follow the decision
of another judge of co-equal jurisdiction; he may do so as a
matter of judicial comity. This position of the High Court with
regard to stare decisis was clearly expressed by Lord
Goddard C.J. in Police Authority for Huddersfield v. Watson
[1947] K.B. 842 at p. 848, D.C.:
"I think the modern practice, and the modern view of the
subject, is that a judge of first instance, though he would
always follow the decision of another judge of first instance,
unless he is convinced the judgment is wrong, would follow it
as a matter of judicial comity. He certainly is not bound to
follow the decision of a judge of equal jurisdiction. He is only
bound to follow the decisions which are binding on him,
which, in the case of a judge of first instance, are the
decisions of the Court of Appeal . . ."

3. In the absence of a binding decision from the SC or CA the High

Court Judge may draw inspiration from other judges
 4. A decision for the High Court is binding on the lower courts
THE LOWER COURTS
The circuit and Magistrate Courts are not courts of record so their
decisions are not binding on anybody. The Magistrate Court may be
inspired by the decision of the Circuit Court if there is no decision from
the Higher Courts but it is not bound to follow the Circuit Court.
What happens when two conflicting High Court judges make a decision
and there is no decision from the CA and the SC? In that case the lower
court must choose the court it wants to follow and good reasons why.
The decision will be better if it shows that other contradicting judge’s
judgment.
Decisions of foreign courts are NOT binding in Ghana.
WHAT IS BINDING IN THE DECISIONS OF HIGHER COURTS?
1. It is the decision of the Higher Court on questions of law that are
binding. Art136 (5). In the decisions of the court one will find a
number of things such as a general expositions on the area of law,
the answers to the questions of law. The Dictum is the general
proposition of law that the judge may have enunciated in the
course of the judgment. There will be facts, general law and
holdings. What will be binding are the holdings, the ratio (nes)
decidendi which is the proposition of law which decides the case in
the light of or in the context of the material facts.
Distil the material facts of the case
What exactly is the principle of law that was used in deciding the case
and what is the binding part of that decision?
How widely and how narrowly the ratio is to be formulated? (The greater
the number of facts the narrower the ratio)
A Key Skill is how to distinguish cases. Note material differences
between the facts of the present case and the facts of the preceding
case which is now an authority.
Another issue to be considered is what weight to be attached to a
previous decision. Different decisions over time are treated differently so
it is important to know factors to be taken into account in determining the
weight of a particular authority. One of these factors is the Court that
decided the case you are relying on. This is to tell us the level of
authority of the case because the Higher the Court that decided it the
better. Another factor taken into account is whether the decision was a
unanimous or a majority decision and if it was a majority decision the
nature of the majority should be considered. It is difficult for the court to
depart from a unanimous decision.
Another factor is the composition of the court. Who and who were in the
majority and who and who were in the minority? There are some judges
who command authority. When they speak they are least likely to be
contradicted. Others too command less respect. Commented [RA1]: This is some very classic information!

ADVANTAGES OF STARE DECISIS

a. This allows a lot of consistency with the works of the
judges
b. It also provides for certainty in the law
c. This also speeds up the judicial process
d. Stare Decisis affords a wealth of cases to refer to, to
prevent the making of unnecessary legislation
e. Stare Decisis provides a uniformity in the law which gives
the system a sense of justice and a form of acceptability to
the public.

DISADVANTAGES OF STARE DECISIS

a. The case law can become too voluminous and complex
b. Difficulties sometimes arises in determining the ratio
decidendi especially where there are a number of reasons in
the judgment.
c. Sometimes injustice is carried on where a court has to follow
a particularly bad judgment.