LEGAL METHODOLOGY - Court System.pdf

HIERARCHY OF THE COURTS INTRODUCTION It is stated in the 1992 Constitution that justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution- article 125. The same Constitution sets out the...

HIERARCHY OF THE COURTS INTRODUCTION It is stated in the 1992 Constitution that justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution- article 125. The same Constitution sets out the composition and mode of exercise of the power of the Judiciary. Article 126 states as follows: “(1) the judiciary shall consist of- (a) The Superior Courts of Judicature comprising- (i) The Supreme Court; (ii) The Court of Appeal; (iii) The High Court and Regional Tribunals. (b) Such lower courts or tribunals as Parliament may by law establish.” THE SUPERIOR COURTS OF JUDICATURE This consists of the Supreme Court, the Court of Appeal, the High Court and the Regional Tribunals. Their establishment, composition and jurisdiction are provided for under the Constitution. THE SUPREME COURT This is the highest court of the land. Provisions pertaining to its composition, jurisdiction and function can be found in articles 128-135 of the 1992 Constitution. See also sections 1 to 9 of the Courts Act, 1993, Act 459. Composition of the Supreme Court The Supreme Court is made up of the Chief Justice and not less than nine (9) other Justices of the Supreme Court. For the purpose of doing its work, the Supreme Court shall be made up of not less than five (5) Justices. But for the purpose of reviewing its own decision, the Supreme Court shall consist of not less than seven (7) Justices. Usually, it is the Chief Justice who should preside at the sittings of the court. However, in his absence, the most senior of the Justices of the court, shall preside. A lawyer of not less than fifteen (15) years’ standing qualifies to be appointed to serve as a Supreme Court Judge. In addition, such a person must also be of high moral character and proven integrity. (see also section 1 of the Courts Act, 1993 Act 459). Jurisdiction of the Supreme Court The Supreme Court duly constituted, has general, original, appellate, supervisory and special jurisdiction to determine cause or matter brought before it. - General Jurisdiction Article 129 (1) of the Constitution states that the Supreme Court shall be the final court of appeal and shall have appellate and other jurisdiction as may be conferred on it by this Constitution. In this regard, it shall not be bound to follow the decisions of any other court and may depart from a previous decision when it appears to it right to do so. All other courts shall be bound to follow the decisions of the Supreme Court on questions of law. (See also section 2 of the Courts Act, 1993 (Act 459). - Original Jurisdiction The Supreme Court has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution. It also has exclusive original jurisdiction in all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution. (Section 3 of Act 459). - Appellate Jurisdiction The appellate jurisdiction of the Supreme Court is four fold (i) An appeal from the judgment of the Court of Appeal shall to the Supreme Court as of right in a civil or criminal cause or matter in respect of which an appeal has been  brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction (ii) With leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest. (iii) The Supreme Court has appellate jurisdiction to the exclusion of the Court of Appeal, to determine matters relating to the conviction or otherwise of a person for high treason or treason by the High Court. (iv) Appeals from the decisions of the Judicial Committee of the National House of Chiefs shall lie to the Supreme Court with leave of that Judicial Committee or the Supreme Court. (Section4 of Act459). - Supervisory Jurisdiction Article 132 states that the Supreme Court has supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power. Some of the orders the Supreme Court may issue are in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto. (Section 5 of Act 459). - Special Jurisdiction The Supreme Court has special jurisdiction which it exercises in three (3) ways: (i) Exclusive jurisdiction to determine whether an official document should not be produced in court because its contents will be prejudicial to security of the state or will be injurious to the public interest; (ii) Jurisdiction to entertain a petition by a citizen of Ghana challenging the validity of the election of a person as President of the country; (iii) Where the removal of the President is sought on stated grounds, a committee consisting of the Chief Justice as chairman and the four (4) most senior Judges of the  Supreme Court must be convened to inquire in camera whether there is a prima facie case for the removal of the President. THE COURT OF APPEAL This is the second highest court of the land. Its jurisdiction is limited to appeals and nothing else. Articles 136 to 138 of the Constitution and also sections 10 to 13deal with the composition and jurisdiction of the Court of Appeal. Composition of the Court of Appeal It consists of the Chief Justice and not less than ten (10) Justices of the Court of Appeal and such other Justices of the Superior Court of Judicature as the Chief Justice may, for the determination of a particular cause or matter by writing signed by him request to sit in the Court of Appeal for any specified period. For the purpose of doing its work, the court shall be duly constituted by any three (3) of the Justices. The most senior usually preside over the court. A single Judge of the Court of Appeal is empowered to sit alone to deal with applications to the court which do not involve the decision of a cause or matter before the court. A lawyer of not less than twelve (12) years’ standing can be appointed as a Court of Appeal Judge. Such a person should in addition be of high moral character and proven integrity. Jurisdiction of the Court of Appeal The court has jurisdiction to hear appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred by the Constitution. THE HIGH COURT Articles 139 to 141 of the Constitution and also sections 14 to 22 of Act 459 deal with the composition and jurisdiction of the High Court. Composition of the High Court This court consists of the Chief Justice, not less than twenty (20) Justices of the High Court and such other Justices of the Superior Court of Judicature as the Chief Justice may, by writing signed by him, request to sit as High Court Justices for any period. With regards to performing its work, the High Court is duly constituted by a single Justice of the Court or by a single Justice of the Court and jury, or by a single Justice of the Court with assessors, or by three (3) Justices of the Court for the trial of the offence of high treason or treason. The Chief Justice has power to create various divisions of the court as he deems fit. A lawyer of not less than ten (10) years’ standing and of high moral character and proven integrity qualifies to be appointed as Justice of the High Court. Jurisdiction of the High Court - Original Jurisdiction (i) The High Court has original jurisdiction in all matters and in particular, in civil and criminal matters. (ii) It has jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by the Constitution. - Appellate Jurisdiction The High Court has appellate jurisdiction to hear appeals from the Circuit Court in criminal matters only and from the District Court in both criminal and civil matters. - Supervisory Jurisdiction The High Court has 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. THE REGIONAL TRIBUNAL Articles 142 and 143 of the Constitution and also Sections 23 to 27 of Act 459 deal with the composition and jurisdiction of the Regional Tribunal Composition The Regional tribunal is to be established in each region of Ghana as the Chief Justice may determine. The court is made up of the Chief Justice, one Chairman, and such members who may or may not be lawyers. The court is duly constituted for its work by the Chairman sitting with two other panel members. The Chairman of the tribunal must be lawyer of not less than 10 years standing and of proven integrity and high moral character. A panel member should also be a person of high moral character and proven integrity. Jurisdiction A Regional Tribunal has jurisdiction to try such offences against the State and the public interest. Section 24 of Act 459 states that the Regional Tribunal shall in particular try offences arising under (i) The Customs, Excise and Preventive Services Management Law, 1993 (P.N.D.C.L. 330) (ii) Income Tax Decree, 1975 (S.M.C.D.5) (iii) Narcotics Drugs Law, 1990 (P.N.D.C.L. 236 and (iv) Any other offences involving serious economic fraud, loss of State funds or property. Its appellate jurisdiction is limited to these offences. THE LOWER COURTS Pursuant to paragraph (b) of clause (1) of article 126 of the Constitution, the lower courts are established by the Courts Act, 1993, Act 459 as follows  (a) Circuit Courts; (b) District Courts; (c) Juvenile Courts; and the National House of Chiefs, Regional House of Chiefs and every Traditional Council, in respect of the jurisdiction of that House or Council to adjudicate over a cause or matter affecting chieftaincy. THE CIRCUIT COURT The Chief Justice determines the number of Circuit Courts to be established in each Region and also the area of jurisdiction of each Circuit Court. Composition The Circuit Court is composed of a single judge. A lawyer of five years’ standing, of high moral character and proven integrity qualifies to be appointed as a Judge. The Chief Justice or a Justice of the Superior Court of Judicature nominated by the Chief Justice may sit as a Circuit Court Judge. Civil Jurisdiction (a) Original jurisdiction in civil matters (i) In personal actions arising under a contract or a tort, or for the recovery of a liquidated sum of money, where the amount claimed is not more than one hundred million cedis(GH 10,000); (ii) In actions between a landlord and a tenant for the possession of land claimed under a lease and refused to be delivered up; (iii) In causes and matters involving the ownership, possession, occupation of title to land; (iv) To appoint guardians of infants and to make orders for the custody of infants; (v) To grant in an action instituted in the Court, injunctions, or orders to stay waste, or alienation or for the detention and preservation of property which is the subject matter of that action, or to restrain breaches of contract, or the commission of a tort; (vi) In claims of relief by way of interpleader in respect of land or any other property attached in execution of an order made by a Circuit Court;  (vii) In applications for the grant of probate or letters of administration in respect of the estate of a deceased person, and in causes and matters relating to succession to property of a deceased person, who had, at the time of death, a fixed place of abode within the area of jurisdiction of the Circuit Court, and the value of the estate or property in question does not exceed one hundred million cedis(GH 10,000); and (b) Any other jurisdiction conferred by this Act or any other enactment. Criminal Jurisdiction A circuit court has original jurisdiction in criminal matters other than treason, offences triable on indictment and offences punishable by death. THE DISTRICT COURT According to section 45, there shall be in each district the District Courts that the Chief Justice may determine. A Magistrate shall be assigned to sit at the District Court. A person who is of high moral character and proven integrity qualifies to be appointed as a Magistrate. The Chief Justice, a Justice of the superior courts or a Circuit court judge nominated by the Chief Justice may sit as a Magistrate. Civil Jurisdiction The District Court has jurisdiction to hear and determine virtually all matters that a circuit court can adjudicate upon, except that such the monetary value involved should not exceed GH5, 000. The District Court has the sole jurisdiction in hearing matters concerning juveniles (persons below the age of 18 years). Criminal Jurisdiction In criminal cases, the court has jurisdiction to try summarily, an offence punishable by a fine not exceeding five hundred(500) penalty units or a term of imprisonment not exceeding two years or both the fine and the imprisonment. Juvenile Courts The Chief Justice may designate a District Court as a Juvenile Court. A juvenile Court is made up of the Magistrate of the District Court as the presiding person and two other persons one of whom is a social welfare officer and the other, a person of not less that twenty-five (25) years both of whom shall be appointed by the Chief Justice on the recommendation of the Director of Social welfare.