Ouster Clauses PDF

OUSTER CLAUSES SUSANNA AFUTU, LECTURER CENTRAL UNIVERSITY DEFINITION & FUNCTION OF OUSTER CLAUSES An ouster clause is a clause that has the effect of taking away the jurisdiction of the court in respect of a certain matter They could be contained either in a private document like a co...

OUSTER CLAUSES SUSANNA AFUTU, LECTURER CENTRAL UNIVERSITY DEFINITION & FUNCTION OF OUSTER CLAUSES An ouster clause is a clause that has the effect of taking away the jurisdiction of the court in respect of a certain matter They could be contained either in a private document like a contract, or in a statute or constitution.  Forms of ouster clauses: Ouster clauses appearing in private documents that extinguish jurisdiction. Ouster clause that postpone jurisdiction Special kinds of ouster clauses TYPE 1: OUSTER CLAUSES THAT DESTROY JURISDICTION Under this clause, the victim’s right to go to the ordinary courts for the settlement of their grievance is completely extinguished. The courts generally view this kind of clause as being null and void where they appear in private documents. See v Wardbrew v GBA [1993-1994] 2 GLR 509 TYPE 2 – A CLAUSE THAT POSTPONES JURISDICTION There is a general presumption in law against absolutely ousting the jurisdiction of the court A clause in a contract, may propose that another avenue be tried first (e.g. arbitration) before resort is made to the ordinary courts. That is allowed by the courts SPECIAL KINDS OF OUSTER CLAUSES There are special kinds of ouster clauses that appear in some statutes and confer jurisdiction on bodies other than the ordinary courts Examples of such statutory provisions are given below: Section 4 of the Stool Lands Boundaries Settlement Decree, 1973 (NRCD 172), vested the Stool Lands Boundaries Settlement Commissioner with the exclusive jurisdiction ‘ to determine the boundaries of stool lands and to hear and determine questions or disputes relating thereto  The Stool Lands Boundary Settlement Decree has been repealed by the Stool Lands Boundary Settlement Repeal Act, Act 2000 (Act 587). Under the Act, original jurisdiction in these matters has now been transferred to the High Court and the erstwhile position of the Commissioner has been done way with. The Chieftaincy Act (Act 759) and the Courts Act (Act 459) S 57 vest chieftaincy matters in chieftaincy tribunals S 34 of the transitional provisions to the Constitution, prohibits all courts from entertaining any matter relating to the suspension and abrogation of the 1960, 1969 and 1979 Constitutions. OUSTER CLAUSES & THE SUPERVISORY JURISDICTION OF THE HIGH COURT Article 141 of the 1992 Constitution, states that “ 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  This reveals that, although the High Court may not have original jurisdiction in chieftaincy causes, it may exercise supervisory jurisdiction in these. The question that arises is which orders can the the High Court make in this regard?  In the case of Ex parte Adu-Gyamfi, Hayfron-Benjamin J (as he then was), held that the High Court could issue an injunction in the nature of a quo warranto in chieftaincy matters.  The essential requirements for the grant of an injunction in the nature of quo warranto are as follows: A. the office must be one of a public nature B. the office must be created by statute C. the holder must have already exercised the office D. the plaintiff should not be guilty of acquiescence (undue delay) E. the office must be substantive  A quo warranto questions by which authority someone is exercising a certain public position. In order to issue a quo warranto in a chieftaincy case, the court would have to determine whether the alleged occupant has been validly elected, nominated, enstooled or enskinned (see point C supra)  This determination is not open to the High Court and the jurisdiction in these matters has been reserved for the traditional councils.  It is humbly submitted that chieftaincy is created not by statute but by the customs of the people. See art 270. This is another reason why a quo warranto cannot be issued in a chieftaincy matter. This view has received judicial blessing in the case of Tobah v Kweikumah GLR 648 OUSTER CLAUSES & SUPERVISORY JURISDICTION CONT In Ex. Parte Ofosu-Amaah, the High Court per Abban J (as he then was) noted that it was only by strongly worded formula that the legislature could deprive the High Court of its supervisory jurisdiction over inferior tribunals. Statutory provisions which sought either to take away the subject’s right of appeal or to oust the ordinary jurisdiction of the Courts must be construed strictly. If such provisions were capable of two meanings,  the meaning which preserved the ordinary jurisdiction of the Court must be construed strictly. Section 4(7) of NRCD 70 was intended to prohibit appeals only and the words ‘no appeal’ should not be taken to mean ‘no application for prerogative writ’. INDEMNITY PROVISIONS The indemnity provision under S 34 (3) – (5) The wording is the same as that which appears in S 15 (2), (3) and (4) of the 1979 transitional provisions. There are no similar provisions in the 1969 Constitution Section 34(3) seeks to prevent the court from questioning in any proceedings whatsoever the executive, legislative or judicial action taken or purported to have been taken either by the PNDC or AFRC or by any person appointed by those regimes even if the action was not taken in  accordance with any procedure prescribed by law. S 34 (4) It has been suggested that the immunity granted by S 34 (3) – (5) was necessary and justified on grounds of pragmatism, good sense and maintenance of political stability.  The A. G. in the case of Kwakye v Attorney-General GLR 9, SC sought to rely on s 15 (2) of the transitional provisions of the 1979 Constitution which is similar to S 34 (3) – (5)  The view of the court was that s 15(2) was not an automatic protection but that an applicant seeking to rely on it must prove that judicial action has been taken or purportedly taken.  The Supreme Court in interpreting s 15 (3), similar to s 34(4), in Kwakye v AG, opined that the purported judicial action would not be questioned even if not taken ‘in accordance with any procedure prescribed by law’.  The minority in the case of Kwakye v AG were of the view that in spite of s 15(3), there should be the production of evidence either orally or by documents and that this was fundamental to a trial.  The indemnity Provision under S 34 (2) The wording here is similar to what appears in S 13(3) of the 1969 Constitution and S 15 (1) of the 1979 provisions The plain meaning of the provisions is to indemnify from prosecution, the violent, unlawful and unconstitutional overthrow of the 1960, 1969 and 1979 Constitutions  It also grants immunity to any act or omission consequent upon the overthrow of the government in power before the formation of the NLC, NRC, SMC, AFRC and the PNDC.  In the case of NPP v AG (31st Dec) the Supreme Court held that the public celebration of the 31st Dec coup was not protected by this section. The majority opined that the section protected acts already committed and not the one being contemplated in the case before them. Even in such instances, the protection was not automatic and had to be determined by the court.  The majority decision should be read vis-à-vis the minority decision of Justice Bamford Addo , that the celebration of the coup was an act consequent upon … and as such the court was precluded from looking into the matter See aslo the case of Donkor v the Republic 1 GLR 30, SC. This case was relied upon by Justice Bamford Addo in her decision given in the 31st December case.  In Donkor v The Re, the plaintiff sued for the recovery of two cars which were seized on the orders of the NLC. The state argued that the seizure was an act consequent upon the overthrow of the government in power before the formation of the NLC. The Supreme Court drew a distinction between that case and the 31st December case.  The indemnity in S 34 (1) This provision has no counterpart in the 1969 or 1979 Constitutions Many have argued that this should not have been included in the transitional provisions  It has been suggested by the Chairman of the erstwhile PNDC (J.J. Rawlings) that S 34 (1) refers to official acts by the persons stated. As a matter of interpretation also, it is notable that since this transitional clause seeks to take away jurisdiction from the courts, it should be narrowly or strictly interpreted. THE NEED FOR OUSTER CLAUSES It ensures speedy trials for alleged political or economic offences There is the need to assign the determination of certain subject matter to experts The need to avoid frivolous or vexatious proceedings after due determination has been made by special bodies established by law to deal with such issues IN CONCLUSION The indemnity provisions in the transitional provisions in the 1992 Constitution were a trade off between the outgoing military government( the PNDC) and the incoming constitutionally elected government (the NDC) Credits – The law of Interpretation in Ghana by S.Y. Bimpong-Buta  TUTORIAL “There is no denying the fact that in many ways than one, Ghana will never be the same after the PNDC years, whether measured from the point of view of the level of violence or the scale of intimidation to which the citizenry at large were subjected or the extent to which the regime sought to destabilise established authority and settled procedures and institutions.” Per Prof. C.E.K Kumado in “Forgive us our Trespasses, An Examination of the Indemnity Clause in the 1992 Constitution of Ghana {1993-95] VOL. XIX UGLJ 83—101}.  With the aid of decided cases and other relevant authorities, critically discuss the nature and scope of the indemnity clauses in the Transitional Provisions in the Constitution of Ghana, 1992. 30 Marks.