THE GHANA LEGAL SYSTEM- Emmanuel Kwabena Quansah.pdf

THE GHANA LEGAL SYSTEM Emmanuel Kwabena Quansah LLB (Hons), LLM (Lond), LLD (Unisa) Barrister of Gray's Inn, Barrister and Solicitor of the Supreme Court of Ghana Attorney of the High Court of Botswana Professor of Law, GIMPA Law School Copyright © Emmanuel Kwabena Quansah - 2011 Published by BLACK MASK LIMITED P. O. Box CT 770 Cantonments-Accra, Ghana E-mail: [email protected] Printed by Black Mask Limited. Cover Design by Michael Frimpong DEDICATION This book is dedicated to Philemon Amoh Quansah and Cecilia Opokua Quansah, my beloved parents; Edward Kwabena Quansah, my beloved twin brother and Margaret Adwoa Quansah my beloved elder sister, all of blessed memory. PREFACE The motivation for writing this book is to provide, within tolerable limits, an account of the legal institutions and processes as well as the organisation of the administration of justice in Ghana. Its principal aim is to provide law students with an overview of the legal system in which they eventually intend to practise. The Ghana legal system has been fashioned by a combination of factors such as a colonial legacy, politics, economics and military adventurism. The system, therefore, relies on the past whilst trying to adapt to the realities of the present day socio-economic circumstance and preparing itself for future growth and development. An overall knowledge of the system, is therefore, a fundamental prerequisite to the application of the various laws which a law student will study in the course of training to become a lawyer. The book starts with a brief introduction to the major legal systems of the world followed by a historical background to the Ghana legal system and goes on to discuss some fundamental institutions which underpin the system, and such matters as the nature of law in general, the composition of the courts, the judicial personnel who administer justice, legal and extra-legal processes for the resolution of disputes and some skills which are vital to an intending lawyer's future practice. Obviously, trying to incorporate details of all aspects of the Ghana legal system within the confines of a book of this nature is not an easy task. I have therefore been compelled to be selective and to treat some topics in an expository manner. However, it is my hope that the book will not only be useful to law students, teachers and lawyers, but also to the curious lay reader; and that having read it their understanding and appreciation of the Ghana legal system will be enhanced. The manuscript for the book was completed in November 2008 when I was lecturing at the University of Botswana; hence, selective references are made to judicial decisions of Ghanaian judges who have sat on the bench in that country as well as judicial decisions of South Africa and Zimbabwe where these will illuminate a point under discussion. I owe a debt of gratitude to his Lordship Justice S K Date-Bah of the Supreme Court of Ghana for his encouragement; Mr E. K. Tetteh, formerly of the AttorneyGeneral's Chambers in Gaborone, Botswana; Mr K Acquah-Dadzie, Senior Magistrate, Gaborone, Botswana; Messrs E K Abotsi, lecturer, Kwame Nkrumah University of Science and Technology, Kumasi; KI Tufour and D Dwomoh of the GIMPA Law School for reading some of the chapters and making useful suggestions; Mr J K E Edzie of the Council for Law Reporting for his editorial work on the manuscript, Messrs Emmanuel Adu-Sarkodee of CDH Financial Services, Akrasi Sarpong of the Narcotic Board for their encouragement, Mr Kwaku Ansa-Asare, former Director of the Ghana School of Law and his wife, Helena, for their support in preparing the manuscript for this book. It goes without saying that the responsibility for any shortcomings and inadequacies of the book are entirely mine. Finally and most importantly, I will like to express my sincere appreciation, thanks and love to my wife, Ophelia, my daughters, Belinda and Sharon, my son Emmanuel, my brother David and my sister Daisy whose individual and collective love have sustained and driven me to achieve my set goals over the years. Our collective N gratitude as a family goes to God for our lives and the numerous blessings He has bestowed and continues to bestow on us. Emmanuel Kwabena Quansah GIMPA Law School Green Hill Achimota Accra 23 May 2011 BIBLIOGRAPHY Abraham. J. The Judicial Process (2nd ed). Oxford. OUP (1968) Africa Watch's Newsletter Vol. IV, Issue No. I "Ghana: Revolutionary Injustice, Abuse of the Legal System under the PNDC Government" January 31, 1992. Afrifa, A A, The Ghana Coup. London, Frank Cass (1966). Agbosu, L K, "The Law's Response to Socio-economic Change in Ghana" (199192) 18 Review of Ghana Law 244. 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CrAppR: Criminal Appeal Reports (England) 16. EOCO: Economic and Organised Crime Office 17. ExD: Law Reports Exchequer Division (England) 18. GLR: Ghana Law Reports 19. GLRD: Ghana Law Reports Digest 20. KB: Law Reports Kings Bench (England) 21. LRCCR: Law Reports Crown Cases Reserved (England) 22. LT: Law Times Reports (England) 23. NLC: National Liberation Council 24. NLCD: National Liberation Council Decree 25. NLR: Nigerian Law Reports 26. NRC: National Redemption Council Decree 27. NZLR: New Zealand Law Reports 28. PC: Law Reports Privy Council 29. PNDC: Provisional National Defence Council 30. PNDCL: Provisional National Defence Council Law 31. QB: Law Reports Queen's Bench (England) 32. RLR: Rhodesia Law Reports 33. SA: South African Law Reports 34. SAR FCL: Sarbah Fanti Customary Law Reports 35. SCGLR: Supreme Court of Ghana Law Reports 36. SMC: Supreme Military Council 37. SMCD: Supreme Military Council Decree 38. TLR: Times Law Reports (1885-1952) (England) 39. UKHL: United Kingdom House of Lords Reports 40. UKPC: United Kingdom Privy Council 41.US: United States Law Reports 42. WACA: West African Court of Appeal Reports 43. WLR: Weekly Law Reports SOME WELL-KNOWN LATIN EXPRESSIONS AND MAXIMS 1. A fortiori: for the stronger reason 2. A priori: from what goes before 3. A temporae morae : from the time of default 4. Ab initio: from the beginning 5. Ab intestate: intestacy 6. Actio ex empto: an action available to a purchaser of goods 7. Actio personalis moritur cum persona: a personal action dies with the person 8. Actio quanti minoris : an action for the reduced value of purchased goods 9. Actus nonfacit reum, nisi mens sit rea: the act itself does not constitute guilt unless done with a guilty intent. 10.Ad idem: at one or in agreement 11.Alibi: elsewhere. (A special defence in criminal law that seeks to establish the person charged was not at the place alleged, but elsewhere.) 12.Amicus curiae: a friend of the court. A person who advises the court in regard to required information 13.Animus furandi: the intention of stealing 14.Animus injuriandi : the intention to injure 15.Audi alteram partem: hear the other side 16.Autrefois acquit: formerly acquitted 17.Autrefois convict: formerly convicted 18.Bona fide: in good faith 19.Capax doli: capable of wrongdoing 20.Casus fortuitous: unavoidable accident 21.Casus omissus: an omitted contingency 22.Causa causans: the immediate cause 23.Caveat emptor; qui ignorare non debuit quodjus alienum emit: let a purchaser beware; no one ought in ignorance to buy that which is the right of another 24.Caveat venditor: let the seller beware. 25.Cessante ratione legis, cessat ipsa lex: the reason of the law ceasing, the law itself ceases 26.Consensus ad idem: two minds having the same intention 27.Corpus delicti: the body, substance or foundation ofan alleged crime 28.Crimen falsi: the crime of falsity 29.Culpa: fault, negligence 30.Culpa lata dolo aequiparatu: gross negligence is equivalentto intention 31.Curator ad litem: curator for the purpose of litigation 32.Curia advisari vult (c.a.v): the court desires to considerits judgment 33.De facto: according to the fact 34.De jure: according to the law 35.Delegate potestas non potest delegari: a delegated powercannot be delegated 36.De minimis non curat lex: of trifles the law does notconcern itself 37.De novo: afresh 38.Dies interpellat pro homine: demand 39.Deis non: 40.Dolus: the arrival of the day replaces the necessity of a day on which no legal business can be transacted fraud, intent 41.Domicilium citandi : domicile for the purposes of serving court process. 42.Dominium: ownership 43.Eo nominee: by that name 44.Ex cathedra: from the seat of authority 45.Ex curia: out of court 46.Exempli gratia: by way of example. Usually written as e.g. 47.Ex mero motu: from one's own initiative 48.Ex nudo pacto non oritur action: from a nude contract, ie a contract without consideration an action does not arise 49.Ex officio: by virtue of office 50.Ex parte: from one side 51.Ex post facto: after the event 52.Expression unius personae vel rei, est exclusion alterius: the express mention of one person or thing is the exclusion of another 53.Ex tempore: on the spur of the moment, not premeditated 54.Ex turpi causa non oritur actio: 55.Falsus in uno,falsus in omnibus: 56.Flagrate delicto: an action does not arise from a base cause false in one, false in all in the act of committing a crime 57.Forma pauperis: as a pauper. A person may be permitted the services of a lawyer in court without paying fees if he has no means 58.Furtum usus : theft of the use of a thing 59.Generalia specialibus non derogant: special general things do not derogate from 60.Habeas corpus: to have the body. A writ requiring a person to be brought to court in order that the lawfulness of his restraining may be investigated 61.Id est: that is. Usually written as "i.e." 62.Ignorantia legis neminem excusat: excuse ignorance of the law does not afford 63.Imperitia culpae adnumeratur : inexperience is accounted a fault 64.In camera: in chambers or in private 65.In infinitum: for ever (also ad infinitum) 66.In jure non remota causa, sed proxima spectator: not the remote cause is to be regarded 67.In limine: in law the proximate, and at the outset; special points taken at the outset of a suit 68.In loco parentis: in the place of a parent 69.In pari delicto, potior est conditio possidentis (or defendentis): in equal fault, the condition of the possessor (or defendant) is the best 70.In poenalibus causis benignius interpretandum est: interpretation ought to be the more favourable 71.In re: in penal causes the in the matter of 72.Inter alia: among other things 73.Interest reipublicae ut sit finis litium: it concerns the State that lawsuits be not protracted 74.In toto; altogether 75.Induciae; days of grace allowed 76.Intra vires: within the power 77.Ipsissima verba: 78.Ipso facto: the identical words by the mere fact 79.Ipso jure:by the law itself 80.Leges posteriors priores contrarias abrogant: later laws abrogate prior contrary laws 81.Lex non cogit ad impossibilia: the law does not compel the impossible 82.Libertas est res inestimabilis: liberty is an inestimable thing 83.Locus classicus: a classical passage from an acknowledged authority 84.Locus standi action : place of standing. Refers to a right to sue in or defend an 85.Mala fide: in bad faith 86.Mens rea: criminal intention. See actus nonfacit, etc 87.Mero motu: see ex mero motu 88.Merx: merchandise, or article capable of being purchased 89.Mobilia non habent sequelam: movable cannot be followed up 90.Modus operandi: the way in which a thing operates 91.Mutatis mutandis: with the necessary changes 92.Necessitas non habet legem: necessity has no law 93.Nee vi, nee clam, nec precario: request neither by force, nor by stealth, nor by 94.Nemo contra factum suum venire potest : deed 95.Nemo dat qui non habet: no one can come against his own no one gives something he does not possess 96.Nemo debet ex aliena jacura lucrari: person's loss no person ought to gain by another 97.Nemo debet esse judex in propria causa: no one should be a judge in his own cause 98.Nemo tenetur se ipsum accusare: 99.Nisi: no one is bound to criminate himself unless 100. Nolle prosequi: unwilling to prosecute 101. Non omne quod licitum honestum est: honest not everything which is legal in 102. Nulla bona: no goods 103. Nulla poena sine culpa: no punishment without fault 104. Obiter dictum: said incidentally 105. Omne quod solo inaedificatur solo cedit: the soil passes with the soil everything which is built upon 106. Omnia praesumuntur rite et solemniter esse acta: to be correctly and solemnly done 107. Onus probandi: all things are presumed the burden of proof 108. Particepts criminis: an accessory to a crime 109. Pater est quern nuptiae demostrant: indicate he is the father whom the nuptial 110. Periculum rei venditae, nondum traditae, est emptoris: sold, and not yet delivered, is the purchaser's the risk of a thing 111. Prima facie: at first sight, on the face of it 112. Pro deo: for God. In reference to a lawyer appointed by the court to represent a pauper without fee. 113. Pro forma: as a matter of form 114. Pro rata: for a proportion 115. Protectio trahit subjectonem, et subjection protectonem: protection subjection, subjection protection. begets 116. Quid pro quo: something for something 117. Quifacit per alium facit per se: he who does anything by another does it by himself 118. Qui non habet in aere, luet in corpora: what a man cannot pay with his purse, he must suffer in person 119. Quod erat demonstrandum: which has been proved (Q.E.D) 120. Ratio decidendi: the reason for deciding a case 121. Res: a thing 122. Res inter alios acta alteri nocere non debet: one person ought not to be injured by the acts of others to which he is a stranger 123. Res ipsa loquitur: 124. Res judicata: decision) the thing speaks for itself the thing has been decided. (In reference to a judicial 125. Restitution in integrum: restitution or restoration in full TABLE OF STATUTES GOLD COAST AND GHANAIAN STATUTES IN ALPHABETICAL ORDER Aliens Act, 1963 (Act 160) i. sl2(l)(f) Alternative Dispute Resolution Act, 2010 (Act 798)..390,391,393 i. s6(3) ii. s58 iii. s59 iv. s72 v. s73 vi. s82 vii. sll5 viii. sl35 Arbitration Act, 1961 (Act 38) Armed Forces Revolution Council (Establishment) Proclamation, 1979 Asset and Bank Accounts Decree, 1972 (NLCD 8) Chieftaincy Act, 1970 (Act 370) i. sl5(l) Chieftaincy Act, 2008 (Act 759) Chieftaincy (Amendment) Decree, 1966 (NRCD 112) para 5A Chieftaincy (Amendment) (No3) Decree, 1967 (NLCD 203) para5A Children's Act, 1998 (Act 560) Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) Committee of Experts (Constitution) Law, 1991 i. s7 ii. s8 iii. sl8(l) iv. s22 v. s22(2) vi. (PNDCL252) Companies Code, 1963 i. sl86(l)(c) Constitution, 1960 i. art 4(1) ii. art 8 iii. art 15 iv. art 16 v. art 20 vi. art 40 vii. art 41 viii. art 55(2) ix. art 55(3) Constitution, 1969 130 i. Schedl art 37 ii. Sched 1 art 69(2) iii. Sched 1 art 102 iv. Schedl art 126 v. s9(l) vi. sl3(2) Constitution, 1979 i. art 4(7) ii. art 45(1) iii. art 63 iv. art 65(1) v. art 65(2) vi. art 75(1) vii. art 75(2) viii. art 109 ix. art 110 x. art 111 xi. art 112 xii. art 114(1) xiii. art 114(2) xiv. art 114(5) xv.art 127(8) xvi. Sched lsl(l) xvii. Sched ls2(l) xviii. Sched lsl5(2) Constitution, 1992 i. art 1(2) ii. art 2 iii. art 2(1) iv. art 2(1)(a) v. art 2(l)(b) vi. art 2(l)(e) vii. art 2(2) viii. art 3(3) ix. art 11 x. art 11(2) xi. art 11(3) xii. art 11(4) xiii. art 11(5) xiv. art 11(6) xv.art 11(7) xvi. art 14(3) xvii. art 14(3)(b) xviii. art 14(4) xix. art 15 xx.art 16 xxi. art 19 xxii. art 19(2) xxiii. artl9(2)(a) xxiv. art(2)(c) xxv. artl9(2)(d) xxvi. art 19(2)(g) xxvii. art 19(10) xxviii. art 19(11) xxix. art 19(12) xxx. art 19(16)(a) xxxi. art 19(17) xxxii. art 19(18) xxxiii. art 20(2) xxxiv. art 20(6) xxxv. art 21(1)(e) xxxvi. art 31 xxxvii. art 32 xxxviii. art 33 xxxix. art 33(4) xl. art 35(1) xli. art 37 xlii. art 41 xliii. art 58 xliv. art 60(1) xlv. art 60(11) xlvi. art 70 xlvii. art 72 xlviii. art 76(1) xlix. art 76(2) l. art 78(1) li. art 88 lii. art 88(1) liii. art 88(2) liv. art 88(3) lv. art 88(4) lvi. art 88(5) lvii. art91(l) lviii. art 93(2) lix. art 99(1) lx. art 103 lxi. art 106 lxii. art 106(4) lxiii. art 106(5) lxiv. art 106(6) lxv. art 106(7) lxvi. art 106(8) lxvii. art 106(10) lxviii. art 106(11) lxix. art 106(12) lxx. art 106(13) lxxi. art 108 lxxii. art 125(1) lxxiii. art 125(3) lxxiv. art 125(4) lxxv. art 125(5) lxxvi. art 126 lxxvii. art 127 lxxviii. art 127(1) lxxix. art 127(2) lxxx. art 127(3) lxxxi. art 127(5) lxxxii. art 128(1) lxxxiii. art 128(2) lxxxiv. art 128(4) lxxxv. art 129 lxxxvi. art 129(2) lxxxvii. art 129(3) lxxxviii. art 130 lxxxix. art 130(1) xc. art 131(l)(a) xci. art 131(l)(b) xcii. art 131(2) xciii. art 131(4) xciv. art 131(3) xcv. art 132 xcvi. art 133(2) xcvii. art 135 xcviii. art 136(1) xcix. art 136(2) c. art 136(3) ci. art 136(5) cii.art 137(1) ciii. art 137(3) civ. art 139 cv. art 139(2) cvi. art 139(2)(d) cvii. art 139(3) cviii. art 140(1) cix. art 140(2) cx. art 141 cxi. art 142(2) cxii. art 142(3) cxiii. art 142(4) cxiv. art 142(5) cxv. art 143(1) cxvi. art 144(1) cxvii. art 144(2) cxviii. art 144(3) cxix. art 144(6) cxx. art 145 cxxi. art 145(1) cxxii. art 145(2) cxxiii. art 145(4) cxxiv. art 146 cxxv. art 146(3) cxxvi. art 146(4) cxxvii. art 146(6) cxxviii. art 148 cxxix. art 151(1) cxxx. art 153 cxxxi. art 154 cxxxii. art 157(1) cxxxiii. art 157(2) cxxxiv. art 161 cxxxv. art 162(4) cxxxvi. art 162(5) cxxxvii. art 176 cxxxviii. art195 cxxxix. art 200(1) cxl. art 200(3) cxli. art 201 cxlii. art 203 cxliii. art 206 cxliv. art 207(1) cxlv. art 208 cxlvi. art 216 cxlvii. art 216(a) cxlviii. art 216(b) cxlix. art 217 cl. art 218 cli.art 218(a) clii. art 218(e) cliii. art 221 cliv. art 223(2) clv. art 225 clvi. art 228 clvii. art 230 clviii. art 251 clix. art 259 clx. art 270 clxi. art 271 clxii. art 272 clxiii. art 273(1) clxiv. art 273(2) clxv. art 273(5) clxvi. art 274(1) clxvii. art 274(3) clxviii. art 274(3)(d) clxix. art 278 clxx. art 278(1) clxxi. art 284 clxxii. art 287(1) clxxiii. art 287(2) clxxiv. art 289 clxxv. art 294(1) clxxvi. art 294(2) clxxvii. art 294(3) clxxviii. art 295 clxxix. art 295(1) clxxx. art 296(a) clxxxi. art 296(b) clxxxii. Sched 1 s4(3) Part IV i. s34 ii. s36(2) Constitution (Amendment) Act, 1964 (Act 224) Constitution (Consequential Provisions) Act, 1960 (C.A8) Constitution of the Fourth Republic of Ghana (Promulgation) Law, 1992 (PNDCL 282) Consultative Assembly Law, 1991 (PNDCL 253) Contracts Act, 1960 (Act 25) Corrupt Practices (Prevention) Act, 1964 (Act 230) Council for Law Reporting Act, 1971 (Act 366) Council for Law Reporting Decree, 1972 (NRCD 64) i. s1(2) ii. s2 Courts Act, 1960, i. s66 Courts Act, 1971 (Act 372) i. s3(2) ii. sl0(3) iii. sl0(3)(b) iv. s49 Courts Act, 1993 (Act 459) i. s2(l) ii. s3(l) iii. s4(l)(a) iv. s4(l)(b) v. s4(l)(c) vi. s4(2) vii. s4(4) viii. s11(l) ix. s11(4) x. s11(5) xi. s118) xii. sl3 xiii. sl8(l) xiv. s21 xv.s24(l) xvi. s24(5) xvii. s35(l) xviii. s35(2) xix. s35(3) xx.s35(4) xxi. s36(2) xxii. s40(3) xxiii. s40(8) xxiv. s41 xxv. s48 xxvi. s54 xxvii. s55(l) xxviii. s55(2) xxix. s55(3) xxx. s55(4) xxxi. s55(5) xxxii. s54(l) xxxiii. s62(2) xxxiv. s62(3) xxxv. s99(l) xxxvi. sl04 xxxvii. sl08 xxxviii. s113 xxxix. s117(1) xl. s117(2) Courts (Amendment) Act, 2002 (Act 620) i. s3 ii. s5 iii. s6(5) iv. s42 Courts (Amendment) Decree, 1972 (NRCD 101) Courts (Amendment) Law, 1987 (PNDCL 191) i. s2 Courts Decree, 1966 (NLCD 84) para 64 Courts Ordinance, 1935 i. s87 Courts Decree, 1966 (NLCD 84) para 64 Criminal Code (Amendment) Act, 1993 (Act 458) Criminal Code (Amendment) Act, 1998 (Act 559) Criminal Offences Act, 1960(Act29) i. s5 ii. s23(l) iii. s42(g) iv. s46 v. s51 vi. sl24(l) vii. sl71(2) viii. sl79A(3)(a) ix. sl94(2) x. s206(l) xi. s273 xii. s277 xiii. s280 xiv. s317 Criminal and other Offences (Procedure) Act, 1960 (Act 30) i. s2(l) ii. s2(2) iii. s2(3) iv. s10 v. sl2 vi. sl5(l) vii. sl5(2) viii. s54 ix. s55 x. s56 xi. s60(l) xii. s60(1)(a) xiii. s60(l)(b) xiv. s61(3) xv.s62 xvi. s71 xvii. s72 xviii. s73 xix. s73(3) xx.s74 xxi. s75 xxii. s76 xxiii. s77 xxiv. s78 xxv. s79 xxvi. s80 xxvii. s81 xxviii. s83(3) xxix. s96 xxx. s96(3) xxxi. s96(4) xxxii. s96(6) xxxiii. s96(7) xxxiv. sl29(l) xxxv. sl29(2) xxxvi. sl32 xxxvii. s 153 xxxviii. sl54 xxxix. sl55 xl. sl56 xli. sl57 xlii. s 158 xliii. s159 xliv. s161 xlv. sl62 xlvi. s181 xlvii. s198(2) xlviii. sl98(5) xlix. sl99 l. s199(4) li. s201 lii. s202 liii. s204 liv. s205 lv. s207 lvi. s231 lvii. s236 lviii. s237(a) lix. s237(b) lx. s238 lxi. s265 lxii. s271 lxiii. s277 lxiv. s278 lxv. s285(4) lxvi. s295(l) lxvii. s296 lxviii. s297 lxix. s296 lxx. s300 lxxi. s304 lxxii. s312(l) lxxiii. s314 lxxiv. s353(3) lxxv. s354(l) lxxvi. s355(l) lxxvii. s356 lxxviii. s414 Criminal and other Offences (Procedure) Amendment Decree, 1977 (SMCD 82) i. sl5(l) Criminal Procedure Code (Amendment) Act, 1965 (Act 261) i. s5 Criminal Procedure Ordinance, 1876 435 Customs, Excise and Preventive Service Management Law, 1993 (PNDCL 330) Economic and Organised Crime Act, 2010 (Act 804) i. s2 ii. s3 iii. s4 iv. s11 v. s18 vi. sl9 vii. s20 viii. s70 ix. s73 Evidence Decree, 1975 (NRCD) 323 i. s1(l) ii. s2(l) iii. sl5(3) iv. s62 v. s70(l) vi. s70(2) vii. s70(3) viii. s70(4) ix. s70(5) x. s73 xi. sl56 External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law 1986 (PNDCL 150) i. s4 ii. s9(l) iii. s9(3) Fines (Penalty Units) Act, 2000 (Act 572) Forfeiture of Assets and Transfer of Shares and other Proprietary Interest (Subin Timbers Co Ltd and Central Logging and Sawmills Ltd) Law, 1982 (PNDCL 31) i. s1 Ghana Independence Act, 1957 (5&6 Eliz II, C6) Ghana Investment Promotion Act, 1994 (Act 478) i. s29 Ghana Nationality (Amendment) Decree, 1979 (AFRCD 42) Head of Family (Accountability) Law, 1985 (PNDCL 114) i. s2 Hemang Lands (Acquisition and Compensation) Law, 1992 (PNDCL 294) Human Trafficking Act, 2005 (Act 694) Income Tax Decree, 1975 (SMCD 5 Incorporated Private Partnership Act, 1963 (Act 152) Internal Revenue Act, 2000 (Act 592) Interpretation Act, 1960 (CA 4) i. s4 ii. s8(l)(6) iii. s8(l)(c) iv. s8(l)(e) v. sl8(l) vi. sl9 Interpretation Act, 2009 (Act 792) i. s1 ii. s10 iii. sl0(l)(b) iv. s 1 3 v. sl4 vi. sl5 vii. s26 viii. s27 ix. s52 Intestate Succession Law, 1985 (PNDCL 111) Judicial Service Act, 1960 i. sl5 Juvenile Justice Act, 2003 (Act 653) 121,143,196 i. sl6 ii. s29 iii. s31 iv. s31(4) v. s31(5) vi. s32(l) vii. s32(2) viii. s33 ix. s60 Labour Act, 2003 (Act 651) i. sl35 ii. sl38 Law of Ghana (Revised Edition) Act, 1998 (Act 562 i. s2 Law of Ghana (Revised Edition) Act, 2007 (Act 729) Laws Reform Commission Decree, 1968 (NLCD 288) i. s2(l) Legal Aid Scheme Act, 1997 (Act 542) Legal Aid Scheme Law, 1987 (PNDCL 184) Legal Profession Act, 1960 (Act 32) i. s1 ii. s2 iii. s3 iv. s3(l) v. s3(2) vi. s3(3) vii. s3(4) viii. s4 ix. s5 x. s6 xi. s7 xii. s8 xiii. s8(3) xiv. s8(4) xv.s8(5) xvi. sl3 xvii. sl4 xviii. sl6 xix. sl6A xx.sl7(l) Legal Profession (Amendment) Act, 1963) Act, 1963 (Act 166) Legal Profession (Amendment) Act, 1963) Act, 1964 (Act 226) Legal Profession (Amendment) Decree, 1967 (NLCD 143) i. s1 Legal Profession (Amendment) (No 2) Decree 1967 (NLCD 213) Legal Profession (Amendment) Decree 1969 (NLCD 338) Legal Profession (Amendment) Decree 1972 (NRCD 88) Legal Profession (Amendment) Decree 1979 (AFRCD Liquor Licensing Act, 1970 (Act 331) Local Courts Act, 1958 (Act 23) Local Government Act, 1993 (Act 462) i. sl58 Maintenance of Children Decree, 1977 (SMCD 133) 53) Marriage Ordinance, 1884, Cap 127 i. s48(l) Married Women's Property Ordinance, Cap 131 (1951 Rev) i. s2 Matrimonial Causes Act, 1963 i. s2(l) Matrimonial Causes Act, 1971 (Act 362) i. s1(2) ii. s2(l) Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) National Redemption Council (Establishment) Proclamation, 1972 Native Jurisdiction Ordinance, 1878 Native Jurisdiction Ordinance, 1883 Ombudsman Act, 1980 (Act 400) Police (Amendment) Ordinance, 1904 Police Force (Amendment) Decree, 1974 (NRCD 303) Police Ordinance, 1894 Police Service Act, 1970 (Act 350) i. s1 Preventive Detention Act, 1958 (Act 57) Prisons Ordinance, 1876 (No 9 of 1876) Prisons Service Decree, 1972 (NRCD 146) Proclamation for the Constitution of the National Liberation Council (NLC), 1966 Professional Law Course, 1984 (LI 1296) Provisional National Defence Council (Establishment) Proclamation, 1981 i. s10(1) Provisional National Defence Council (Establishment) Proclamation, Law, 1982, (PNDCL42) i. sl9 Public Holidays Act, 2001 (Act 601) Public Order Act, 1994 (Act 491) i. s4 Public Tribunal Law, 1984 (PNDCL78) i. s24 Public Utilities Regulatory Commission Act, 1997 (Act 538) i. s30 ii. s40 Punishment of Habitual Criminals Act, 1963 (Act 192) i. s1 Public Tribunals Law, 1984 (PNDCL 78) 175 i. s24 Provisional National Defence Council (Establishment) Proclamation, 1981 Refugees Law, 1993 (PNDCL 305) State Lands Act, 1962 (Act 125) i. s1(l) State Lands (Asankragwa Site for Radio Repeater Station) Instrument, 1997 (EI 27) State Proceedings Act, 1998 (Act 555) Statute Law Revision Act, 1996 (Act 516) Statutory Corporation Act, 1961 (Act 41) Statutory Corporation Act, 1964 (Act 232) Stool Lands Boundary Settlement Decree, 1973 (NRCD 172) i. s4(l) ii. s4(2) Subversion Decree, 1972 (NRCD 90) i. s1(a) ii. s1(f) Supreme Court Ordinance, 1853 Supreme Court Ordinance, 1876 (No 4 of 1876) i. s3 ii. s7 iii. s11 iv. s12 v. sl3 vi. sl4 vii. sl6 viii. sl7 ix. s23 x. s24 xi. s29 xii. s35 xiii. s36 xiv. s37 xv.s51 Suppression of Robbery Decree, 1972 (NRCD 11) Transfer of Shares and other Proprietary Interest Decree, 1979, (AFRCD 31) Whistleblower Act, 2006 (Act 720) i. s30 Wills Act, 1971, (Act 360) LOCAL SUBSIDIARY LEGISLATION IN ALPHABETICAL ORDER Appointment of Public Prosecutor Instrument, 2004 (E.I.5) Assets and Bank Accounts (Schedule) (Amendment) (No 15) Instrument, 1979 (E.I. 1216) Civil Procedures (Fees and Allowances) (Amendment) Instrument, 1992 (LI 1540) Commission of Enquiry [Ghana@50] Instrument, 2009(CI 61) Commission on Human Rights and Administrative Justice (Complaints Procedure) Republic, 1994 (CI 7) Curfew (Bawku Municipality) Instrument 2008 (EI 15) Ghana (Constitution) Order-in-Council, 1957 (SI 1957. No 277; LN 47 High Court (Civil Procedure) Rules, 1954 (LN140A) a. Order 54 b. Order 54A High Court (Civil Procedure) Rules, 2004(CI47) 1. a. b. 2. Order 1 r1 r2 Order 2 a. r3 b. r6 c. r7 d. r9 3. Order 4 a. r1(2) b. r3(l) c. r3(2) d. r5(l) e. r5(2) f. r5(3) g. r5(7) h. r9(2) i. r9(3) j. r11(l) k. r12(2). 4. Order 5 a. r1 b. r2(2) c. r3 5. Order 6 6. Order 7 a. r5 b. r6 c. r1 7. Order 8 a. r3 8. Order 9 a. r1 9. Order 10 10.Order 11 a. r2 b. r3 c. r4 d. r8 e. rl3 f. rl5 g. rl9 11.Order 15, r10 12.Order 19 13.Order 32 a. r2 b. r3 c. r5 14.Order 43 a. r1 b. r2 15.Order 44 a. r3 b. r5 16.Order 44 a. r9 17.Order 45 a. r4 18.Order 47 a. r1 b. r3 c. r5 d. r8 19.Order 49 a. r1 b. r8 20.Order 55 21.Order 58 a. r58(14) 22.Order 65 23.Order 65 a. r2 363 24.Order 74 a. rl b. rl(2) c. r2(l) d. r2(2) e. r2(3) f. r2(4) g. r3 h. r4 i. r5(l) j. r5(2) k. r9 25.Order 81 Legal Profession (Professional Conduct and Etiquette) Rules, 1969(CL613) 1. 2. 3. 4. 5. rule rule 2(2) rule 9(1) rule 9(3) rule 9(4) Manufacture and Sale of Spirits Regulations, 1962 (LI 239) reg3(l) Statutory Instrument Rules, 1960 (LI39) Supreme Court Rules, 1996 (CI 16) rule54 UNITED KINGDOM LEGISLATION IN ALPHABETICAL ORDER Administration of Estates Act, 1925 i. s46 Celluloid and Cinematography Film Act, 1922 Common Law and Civil Procedure Act 1852 and 1854 Constitutional Reform Act, 2005 Criminal Evidence Act, 1898 i. s4(l) Fauna Conservation Proclamation, 1961 h. s7(l) Human Rights Act, 1998 i. s3(l) j. s6(l) Judicature Act 1873-1875 Offences Against the Person Act, 1861 i. s57 Police and Criminal Evidence Act, 1984 i. s80 Provision of Oxford, 1258 AD Recognition of Divorces and Legal Separation Act, 1971 i. s2 Road Traffic Act, 1930 i. s48(9) ii. s49 Statute of Frauds Statute of Westminster, 1275 Statute of Westminster, 1931 Street Offences Act, 1959 i. s1 Supreme Court Act, 1981 CHAPTER 1 1.1 INTRODUCTION TO THE MAJOR LEGAL SYSTEMS IN THE WORLD 1.1 General introduction The law applied in Ghana today is mainly a modified version of imported law that is being continuously adapted to the changing socio-economic and political realities of the country. The history of a legal system, says Roscoe Pound, the American jurist, is largely a history of continuous borrowings of legal materials from other legal systems and assimilation of materials from outside of the law. Legal ideas and institutions are continuously crossing borders and the contemporary phenomenon of globalisation and regionalisation has brought in its wake the need to internationalise legal standards. Although the detailed comparative study of the different legal systems and legal traditions are for comparative lawyers, there are some basics that any person seeking to acquire knowledge of how a legal system operates should know. One cannot ignore the deep divide in terms of legal systems that exists in Africa today and the possible impact this may have on bilateral and regional development. For example, although Ghana and Cote d'Ivoire are neighbours, unless a conscious effort is made, bilateral cooperation between the two countries may sometimes be adversely affected by the fact that the legal systems of the two countries are different, making it easier for an Ivorian lawyer to understand and operate in France thousands of kilometres away than in Ghana just across the border. What then distinguishes one legal system from another? Is it the mere fact of geographical location, race, and level of development or what? The criteria for classifying legal systems or legal traditions or legal families remain very much a matter of controversy among comparatists. Several attempts have been made by jurists but these have all come up with different criteria. Three of such attempts will be briefly looked that. The view has been expressed that modem legal systems should be grouped in accordance with their substance paying due heed to originality, derivation and common elements and without any reference to extrinsic factors such as geography or race. This led to a classification of legal systems into seven families, namely the French, German, Scandinavian, English, Russian, Islamic and Hindu. Another view suggests two criteria that must be used cumulatively, not separately. The first from a technical standpoint is to ask whether someone educated in the study and practice of one law will then be capable, without difficulty, of handling another. If not, then it may be concluded that the two laws do not belong to the same family. The second criterion is the philosophical, political or economic principles that the laws are founded upon. Two laws cannot be considered to belong to the same family, even if they use the.same concepts and techniques, or if they are based on opposed philosophical, political or economic principles. This led to the classification of legal systems into three, namely the Romano-Germanic, the common law and the socialist legal systems. This view put other systems outside this classification as those systems share only part of the characteristic of the classified families. These are Islamic, Hindu, Jewish, Chinese, African and Malagasy laws. The third view expressed is that a single criterion for the classification of legal systems is their legal or juristic style.6 This requires looking at the "important" or "essential" differentiating qualities, not just trivial differences that distinguish one legal system from another. The authors of this view identified five factors as being crucial in determining the style of a legal system. These are, first, its historical background and development. From this factor, the unique historical development of the English common law as compared to the continental civil law system was distinguished. Secondly, the distinctive mode of legal thinking as a hallmark of a legal system. Based on this factor, they identified many stylistic elements that distinguish the English common system from the continental civil law system. The English common law is historically case-law based, whilst the continental civil law system is based on the codification of abstract rules. The common law comes from the courts whilst the civil law comes from study. The great jurists of England were judges whilst on the continent they were professors. These and other differences of style permeate the two systems. Thirdly, certain legal institutions are so distinct that they lend a characteristic to a legal system. Examples of these are the doctrine of trust in English law and the negotiorum gestio in continental law. Fourthly, the choice of sources of law that each system recognises and the methods of interpreting and handling them in connection with the court machinery and rules of procedure. Finally, the style of a legal system may be marked by ideology. Ideology in this sense refers to a religious or political conception of how social or economic life should be organised. For example, whilst political ideology is the main distinguishing factor of the socialist legal systems, religion is the distinguishing factor of such systems as Islam and Hindu. The weight that should be given to any of these five factors should vary according to the circumstances of each case. Based on the above factors, the legal systems were classified as follows; Romanistic family, Germanic family, Nordic family and common law family. The authors then included the law of the People Republic of China, Japanese law, Islamic law and Hindu law. Whilst the various views have contributed to highlighting some key issues that help in classifying legal systems, they must be viewed only as a rough and ready device that must be subject to a number of qualifications. First, legal systems dp not necessarily correspond with geographical boundaries. It is therefore possible for two distinct and separate legal systems to operate in the same country. For example, in Cameroon the French civil law and English common law operate together. Secondly, there are hybrid systems that do not fit easily into one class or another. In Botswana, South Africa and Zimbabwe, for example, the European civil law (Roman-Dutch law) operates concurrently. Thirdly, the operation of a legal system is not static since this varies according to time as well as historical, social and political developments. For example, the radical changes that have taken place since the fall of the Berlin wall on 9 November 1989 and the formal ending of the former Soviet Union on 25 December 1991. Even if some socialist laws still persist in Russia and some of the other former Soviet Republics, it is difficult today to say that they still belong to the socialist legal family given the very radical market-driven changes that have taken place. Fourthly the Euro-centric nature of these classifications that marginalise the place of African law cannot be ignored. In the light of these observations, the following are the major legal systems, legal families or legal traditions that will be briefly examined below: (i) The common law legal system. (ii). The civil law or Romano-Germanic legal system. (iii) The socialist legal system. (iv) Religious legal systems. (v) African law. (vi) Hybrids or mixed systems. In examining these legal systems, it needs to be noted that some legal systems have come to be regarded as the mother systems of certain legal families. Such systems give their characteristics to the specific legal system against which juxtaposition can subsequently be made. For example, it is indisputable that English law is the mother of the common law system, that the French and German legal systems are two key branches of the civilian system and that the Soviet legal system served as the first model for all socialist legal systems. These mother systems, namely the English legal system, the French legal system and elements of the former Russian legal system, will therefore be used to illustrate the major legal systems of the world. 1.2 The common law legal system The common law legal system originated in England and spread throughout the world mainly through colonisation. In some countries it was only partially received, as in Muslim countries such as India and Pakistan, where it was adopted to co-exist with Islamic and other local laws. In other countries, such as the United States and Canada, it has been so adapted that it enjoys an almost autonomous place within the common law legal family. It was brought to some African countries such as Botswana, Ghana, Nigeria, Kenya and Zimbabwe during the colonial period. The common law system, more than any of the other legal systems, has been profoundly shaped by its history and therefore can only be fully understood in the light of this history. This history is almost exclusively bound with the history of the development of the law in England. As Zweigert and Kotz point out, "no country has clung as firmly as England to its own style of law throughout the centuries or been so free from major convulsions in its legal life." There are several manifestations of this. Whilst the civil law system is almost entirely based on ancient Roman law, the latter has never had anything more than a peripheral influence on the common law. English law never adopted the idea of codification that was born of the law of nature and the period of enlightenment. England too never experienced any traumatic political events such as occurred in France in 1789, one of the effects of which was to overturn the legal system and replace it with a radically new system. Our study of the common law legal system will essentially focus on English law, as the originator and archetype of this system. The following salient aspects of the system will be discussed. 1.2.1 History and development of English law There are three main phases in the development of English law. The first phase was the development of the common law and the common law courts. This was followed by the next phase, which saw the development of equity and ended with the fusion of common law and equity which basically set the foundation for the modern English legal system. 1.2.1.1 The development of English law and the common law courts The Norman conquest of England in 1066 is generally considered to mark the beginning of the history of English law. The preceding period, under Roman occupation, was known as the Anglo-Saxon period. During this period, England was not united, hence there was no central administration and no uniform legal system. The diverse local customary laws of German origin, supplemented by royal statutes, applied. The local courts were presided over by bishops and Earls. One of the greatest achievements of William the Conqueror (1028-1087) after he dealt a crushing defeat to the Anglo-Saxons in the Battle of Hastings was to introduce a strong centralised system of administration over the whole country. Tribal rule was ended and a feudal system with the King as the supreme feudal overlord was instituted. Church and state were separated and the bishops were removed from the local courts and a separate system of ecclesiastical courts was created. The highly organised character of the English feudal system and the efficient central government prepared the way for the development of the common law. The Normans created a uniform and common law based on the unification of the diverse local customary laws. The Curia Regis or King's Court, which combined executive, legislative and judicial powers, was also created. The King was regarded as the "fountain of justice" and the "keeper of the peace" with powers over order and peace in the kingdom. The Curia Regis functioned as the highest court in England and its judges interpreted the common law. It travelled on circuit and also supervised the local courts which continued to function. The Curia Regis eventually split into three royal courts, namely the Exchequer, the Common Pleas, and the King's Bench. The royal courts were centralised in Westminster but judges from these went on circuit to hear local disputes twice a year. This practice led to the reduction of the jurisdiction of the local courts. During the fifteenth and sixteenth centuries, the practice developed of difficult cases being adjudicated in Westminster. When the same or similar issues arose again, the earlier solutions were applied. This led to the development of the system of binding precedents. In this way, the system of stare decisis (standing by previous decisions) developed. As the judges progressively developed a system of rules applicable to similar cases, a common law or a universal legal system enforceable throughout the country emerged. Civil actions in the common law courts were built around the writ system. To begin an action, a 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 appropriate writ to cover the type of claim the plaintiff was making, there would be no remedy. The rule was: "no writ, no remedy." The whole law was contained in the register of writs and meant that legal development was only possible by the granting of new writs or the extension of existing writs to new cases. The extension of the law was severely limited by the Provisions of Oxford 1258 AD, which prohibited the issue of new writs by limiting it to those available before the year 1258. The Statute of Westminster 1275 tried to mitigate the effects of the Provisions of Oxford by providing that in similar, cases (in consimili casu), the Chancery could issue new writs. As a result, existing writs were applied to cases which they were not originally meant for. English judges developed the practice of creating law from case to case, by a casuistic process that continues to this day. 1.2.1.2 The development of equity The growth of the common law was quite rapid in the thirteenth century but by the fourteenth century it ceased to have the momentum of previous years. There were five main defects which stifled its development. First, the writ system became too rigid. Originally, writs were suited to each plaintiff's claim but by the beginning of the thirteenth century, the process had become fossilised. Writs could only be issued in a limited number of cases, and if the complaint could not be fitted within the four corners of one of the existing writs, no action could be brought. Secondly, difficulties arose over the procedure in the common law courts because even the most trivial error in a writ could lead to the action being lost. The formalistic nature of the writs also meant that if the wrong writ was chosen, the case will also be lost. It was quite common to make mistakes because the writs had to comply with complex rules. Moreover, writs were quite expensive and their very cost discouraged potential litigants, especially where the cost of the writ was more than the amount being claimed. Thirdly^, there were problems caused by the defences available and corruption. An action could be delayed for months or even years by the defendant simply declaring that he was cut off by floods, a broken bridge, or that he was off on a crusade or even that he was sick. There were also complaints of bribery, corruption or oppression of juries, and the inability to enforce judgments or recover property from powerful neighbours. Fourthly, the common law remedies were inadequate. The only remedy the common law could offer in civil actions was damages. A party could not be compelled to perform his obligation or ordered to discontinue a wrongful course of conduct. Fifthly, the common law did not recognise the concept of trust and there was no way to compel a trustee to carry out his obligations under a trust. The rights of the mortgagor at common law were also limited. Because of the numerous defects of the common law, people who were unable to obtain justice either because they could not obtain a writ or the writ was defective or there was no appropriate remedy, began to address their complaints to the Kingin-Council. Initially, the Council considered these petitions but the practice developed whereby these petitions were referred to and dealt with by the principal civil minister, the Lord Chancellor, who was usually a cleric (and referred to as the "keeper of the King's conscience"). The Chancellor disregarded the formalities and technicalities of the common law and decided each case on its merits in the light of his conscience and fair dealing, and in the process developed principles that became known as equity. He was not bound by the common law remedies but devised his own. The Chancellor recognised new interests in property which were unknown to the common law and granted new remedies such as the decree of specific performance to compel a person to perform his obligation. Since the decisions taken were not based on rigid rules, it was said that "equity varies with the length of the Chancellor’s foot." To counter the uncertainty that had crept into the system, equity began to follow the practice of stare decisis, which had proven a powerful force in unifying the diverse systems of local customs under the common law. In this manner, the Court of Chancery developed case law based on equity and this body of law supplemented and sometimes corrected the common law. Although the common law and equity operated alongside each other with mutual tolerance, the great popularity of equity led to a period of conflict with the common law courts. The conflicts between the two arose out of the practice of the Court of Chancery to issue^"common injunctions" forbidding a person on pain of imprisonment from bringing an action in the common law courts or forbidding the enforcement of a common law judgment. The common law courts retaliated by, for instance, waiting for the Chancellor to imprison the common law litigant defying an injunction and then releasing the imprisoned litigant by the process of habeas corpus. The rivalry between the two came to a head in the Earl of Oxford's case in 1615, when Coke offered a direct challenge to the Court of Chancery's jurisdiction. To put an end to the rivalry, James I, on the advice of Lord Bacon, then his Attorney-General and later Lord Chancellor, gave a firm decision that where common law and equity were in conflict, equity prevails. The King's ruling was never fully accepted and some competition between the orders of court continued until the administration of equity and common law was fused together by the Judicature Acts of 1873-1875. The principle that equity prevails where there is a conflict now appears in the Supreme Court Act 1981. After the Judicature Acts, the two systems settled down and carved out separate but complementary roles. The Judicature Acts brought about the amalgamation of the two systems of courts in a way that allows both common law and equitable remedies to be obtained by a litigant in the same action and in the same court. Thus, although the Judicature Acts fused the administration of equity and common law, it did not fuse their principles. As one writer put it, "the two streams have met and now run in the same channel but their waters do not mix." Equity filled the gaps left by the common law and became a system of case law governed by doctrine of binding precedent. The greatest contribution of equity is that it introduced a number of new rights which were wholly unrecognised by the common law courts, such as the rights of a beneficiary under a trust and the equity of redemption. It also provided new remedies which the common law courts did not provide such as the injunction, specific performance, rescission and discovery of documents. However, the equitable remedies were discretionary and not granted as of right and are usually granted only where it is clear that the common law remedies are inadequate. The nature of equity is well captured in the famous dictum of Lord Cowper in Dudley v Dudley, (1705) 24 ER 118, LC where he said: "Now equity is no part of the law, but a moral virtue, which qualifies, moderates and reforms the vigour, hardness and edge of the law, and is a universal truth; it does also assist the law where it is deffective and weak in the constitution (which is the life of the law) and defends the law from crafty evasions, delusions, and new subtilties, invented and contrived to evade and delude the common law, whereby such as have undoubted right are made remediless; and this is the office of equity, to support and protect the common law from shifts and crafty connivances against the justice of the law. Equity therefore does not destroy the law, nor create it, but assist it." The basic nature of equity is expressed in the renowned "maxims of equity." Some of these are: i. Equity will not suffer a wrong to be without a remedy. ii. He who seeks equity must do equity. iii. He who comes to equity must come with clean hands. iv. Delay defeats equity. v. Equity looks to the intent rather than the form. vi. Equity aids only the vigilant. vii. Equity imputes an intention to fulfil an obligation. viii. Where the equities are equal, the first in time shall prevail. ix. Equity looks on that as done which ought to be done. Two examples of how these equitable maxims and doctrines are applied will suffice. Since "equity looks on that as done which ought to be done", it will give effect to the parties' intentions notwithstanding the absence of some formality required by the common law. In Walsh v Lonsdale an agreement to create a lease was considered as equivalent to the lease itself. In Maddison v Alderson the equitable doctrine of part performance was applied to enforce a contract even though, by reason of the Statute of Frauds, it could not be proved at common law. 1.2.2 The sources of English law English law is derived from a variety of sources. These have been classified by writers in a variety of ways. For example, Hogan et al12 distinguished between primary sources, such as legislation and judicial precedents, and secondary sources, such as custom and textbooks. An Act of Parliament is however, not strictly speaking, a source of law but rather law itself. On the other hand, not every legal proposition contained in a decision constitutes judicial precedent; only those which form the basis of the decision (ratio decidendi), whilst all other legal propositions are simply surplusage (obiter dicta). A simpler classification is provided by Richard Ward, and basically distinguishes between the historical sources of English law (which effectively are local sources) and European sources (basically, important international sources). The sources of English law that will be briefly discussed below consist of the following: (i) Common law. (ii) Equity. (iii) Legislation. (iv) Custom. (v) Law merchant. (vi) Canon law. (vii) Roman law. (viii) Law reports and judicial precedents. (ix) Textbooks. (x) European Community and European Union law. (xi) European Convention on Human Rights. 1.2.2.1 Common law As has already been noted above, the common law is one of the most important historical sources of English law. Initially, in civil cases, procedural formalities underpinned its growth but the rigid writ system was abolished by the Common Law and Civil Procedure Acts of 1852 and 1854. The modern law that emerged now strives to concentrate on substance rather than form. In criminal law matters, the common law developed many forms of trial that still play a significant role in the modern law. 1.2.2.2 Equity The reasons for the development of equity as well as its nature have already been discussed. Although the numerous conflicts that arose at an early stage of its development, between common law and equity were resolved in favour of the latter, it was only after the Judicature Acts of 1873 to 1875 that many of these conflicts were finally laid to rest. However, the unification of the two systems of courts did not result in a merger of substantive principles, hence parties have still to plead and prove any equitable remedies that they allege. 1.2.2.3 Legislation The development of the doctrine of legislative supremacy of Parliament has made legislation a major source of law, transcending in its importance both the common law and equity. It is effectively the supreme law in English law in that legislation can be used to amend or repeal existing statutes as well as replace well-established common law and equitable principles 1.2.2.4 Custom Custom, law merchant, canon law, and Roman law are historical sources of far less importance than the preceding sources. Custom in this context refers to local custom which is an exception to the common law and which is confined to a particular locality, such as a county, parish or a class of persons. Any person who alleges a customary right must plead and prove its existence by satisfying the socalled Blackstone test. This requires proof of: i. Antiquity — that the custom existed from time immemorial, a time fixed by statute at 1189. Continuance — that it existed uninterrupted since 1189. ii. Peaceable enjoyment — that it must have existed by common consent, and not exercised by use of force, secretly or under a revocable licence. iii. Obligatory force — that it was obligatory. iv. Certainty — that the custom was certain. v. Consistency — that it was consistent with other customs. vi. Reasonableness — that the custom was reasonable. This was the most important test. 1.2.2.5 Law merchant This was the law developed by a new set of courts that sprang up to deal with disputes between merchants when England became a trading centre. Most of the rules that were developed have now been assimilated by the common law. 1.2.2.6 Canon law The canon law or law of the Catholic Church has influenced the growth of English law in many areas. It has served also as a primary source of law. For example, the nature of law and its association with fault and the strong moral content of equity were all influenced by canon law. Canon law is of particular importance as a source of English law because of its application in ecclesiastical courts. 1.2.2.7 Roman law Although, as will shortly be shown in subsequent sections, Roman law is the basis of continental civil law systems, it is of very minor importance as a source of English law. The little influence it has had has been indirect rather than direct. Only canon law was influenced by Roman law. However, the common law has occasionally borrowed from Roman law when judges are faced with a case of first impression. This has occurred when judges have referred to Bracton's Treatise, which incorporated principles borrowed from the Roman jurist Justinian. 2.2.2.8 Law reports and judicial precedents The doctrine of binding precedent, which is the cornerstone of the English legal system, depends on a regular and reliable system of law reporting. Law reports are an important source of law because they contain the judgments of courts as well as the reasoning upon which these decisions are based. 1.2.2.9 Textbooks Textbooks are basically only a secondary source of law since they contain only the opinions of their writers as to what the law is. However, historically when law reporting was still at its infancy, the main source of authority was then textbooks but today, with so many law reports, textbooks are of comparatively little authority. Nevertheless, the relative importance of a text-book depends on the type. There are two types of textbooks. The first type are the ancient textbooks, such as Glanville's treatise, De legibus et conseutudinibus Angliae (concerning the laws and customs of England), Bracton's treatise written in about 1250, Littletons' treatise, Of tenures, and perhaps the greatest of all, Cokes Institutes of the Laws of England, Blackstone's Commentaries on the Laws of England, published in 1765 and a host of others, which are commonly used as original sources of the common law. These are referred to as books of authority. The second type of textbooks are modern textbooks, which although well respected and frequently cited, are not considered as books of authority. These are not considered as a direct source of law but rather merely as guides which may indicate where a direct source, such as a statute or law report may be found. Nevertheless, some of the modern textbooks that have become standard works » in certain branches of the law are usually considered as being of highly persuasive authority. Even the opinions of writers expressed in journal articles have sometimes been adopted by the courts. 1.2.2.10 European Community and European Union law Since the United Kingdom became a member of the European Community (EC) on 1 January 1973 or what is now known since the approval of the treaty of European Union (Maastricht Treaty of 1992) as the European Union (EU), European laws developed by the institutions of both the European Community and European Union have become part of English law. In fact, the various treaties of the European Community and European Union are a primary source of law, creating a framework of powers, duties and sometimes individual rights. Article 189 of the Treaty of Rome empowered the council and commission to make regulations, issue directives, make recommendations and deliver opinions, all of which can be considered as delegated legislation. The case law of the European Court of Justice is also an important source of law. In a number of decisions, the European Court of Justice has developed the doctrine of supremacy of community law over national law. This concept extends to the enforcement of community rights even if national courts are required to override national legislation. On the other hand, those provisions of European law that are incorporated automatically into English law can be said to be directly applicable or self-executing and can be relied upon in domestic courts. The direct applicability of European Community law in the United Kingdom is provided for in section 2(1) of the European Communities Act, 1972. The effect of this is to ensure that most conflicts between English law, whether statutory or case law and European law are resolved in favour of the latter. Under section 3 of this Act, the supremacy of European law extends to the application of principles of European law developed by the Court of Justice. In the final analysis, European Community and European Union law must now be regarded as a fundamental and important source of English law. 1.2.2.11 European Convention on Human Rights The United Kingdom has been subject to the European Convention on Human Rights (1950) since it came into force in 1953. Designed as it is to prevent the abuse of human rights, it establishes both the European Commission on Human Rights and the European Court of Human Right. Through this machinery, certain fundamental human rights and freedoms are recognised and enforced. The Convention was finally only incorporated into English law through the Human Right Act, 1998. The provisions of this Act have a serious effect on the interpretation and application of legislation as well as the development of the common law. Section 21(1) of the Act provided that any court or tribunal determining a question which has arisen under the Act in connection with a Convention right, must take into account, as far as it is of the opinion that it is relevant to any judgment, decision or advisory opinion of the European Court of Human Rights; certain opinions of the European Commission on Human Rights; and decisions of the committee ministers. Section 3(1) of the Act also requires that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention. It is also unlawful, according to section 6(1) for a public authority to act in a way which is incompatible with a Convention right. What perhaps makes the 1998 Act a unique source of English law is that it enables English courts to make a declaration of incompatibility with respect to any United Kingdom legislation, whether primary or secondary, that is found to be incompatible with the Convention. Such a declaration does not however affect the validity or continuing operation or enforcement of the impugned legislation. 1.2.3 The personnel of the law in the English legal system The personnel of law in the English legal system may be grouped into three: the judges, the law officers and the legal profession. These will be briefly examined below. 1.2.3.1 The judges The term "judges" is used here in its broadest sense to refer to all those who are appointed to adjudicate upon disputes referred to a court. In its narrower sense, the term refers to those appointed to adjudicate disputes in the House of Lords, the Supreme Court of England (that is, the Court of Appeal, the High Court, and the crown court) and county courts. Some judicial functions are performed by officers known as "masters" and "registrars." On the other hand, magistrates or justices of the peace sit in magistrates' courts, and in some cases, in the crown court. One of the peculiar features of the English legal system is the very small number of judges that are in the courts. Over 95 per cent of criminal cases are heard by magistrates or justices of the peace, who are essentially unpaid volunteer laymen. In England and Wales, magistrates are appointed from members of the general public while professional judges are appointed from the ranks of practising barristers and solicitors of specified number of years of standing, depending on the court to which they are appointed. The Lord Chancellor is a minister of the Crown and usually a cabinet minister and by law, is responsible for the efficient functioning and independence of the courts. Formerly he was also the presiding officer of the House of Lords and the head of the Judiciary in England and Wales. The Constitutional Reform Act, 2005 transferred these roles to the Lord Speaker and the Lord Chief Justice. The Lord Chief Justice is next in judicial rank to the Lord Chancellor. He is the head of the Judiciary since the 2005 reforms and president of the courts in England and Wales. The next in the hierarchy is the Master of the Rolls who is head of the civil division of the Court of Appeal. Although the House of Lords (now Supreme Court since 2005) is the final appellate court, so far as the development of the law is concerned, the Lord Chief Justice and the Master of the Rolls occupy key positions. Other important judges are the President of the Family Division, who is responsible for the organisation and management of his division and is ex-officio member of the Court of Appeal. There is also the Chancellor of the High Court, a position which replaced that of the Vice-Chancellor since 2005 and is responsible for the organisation and management of the business of the Chancery division. 1.2.3.2 The law officers The term "law officers" refers to two law officers, the Attorney-General and the Solicitor-General who act as legal advisers to the Crown. There is also the Director of Public Prosecutions and Crown Prosecutions Service that is responsible for instituting criminal proceedings. The Attorney-General is the head of the English bar. He is also the principal legal officer of the Crown and is invariably a Member of Parliament and a member of the government. He not only advises the government but also answers questions raising legal issues in the House Commons. He represents the Crown in certain civil proceedings and in trials for treason; other important offences with a political or constitutional element. He exercises the prerogative power of staying prosecutions on indictment by the entry of a nolle prosequi and by statute; his leave is required for the commencement of certain criminal proceedings. The Solicitor General is basically the Attorney-General's deputy. The Director of Public Prosecutions (DPP) is appointed by the Attorney-General to head the Crown Prosecutions Service. Under the superintendence of the AttorneyGeneral, the DPP runs an independent prosecution service and coordinates prosecution policies. His powers are quite extensive and he effectively controls the prosecution process although the process of investigation is still by and large under the control of the police. Like judges, the law officers are appointed from barristers and solicitors of specified number of years of standing. 1.2.3.3 The legal profession Another important feature of the English legal system is the division of the legal profession into two separate branches; solicitors and barristers. This is a division that is not widely known outside Britain or the Commonwealth. The word "lawyer", which is widely used in the Commonwealth to refer to legal practitioners, has no particular application in Britain. The main distinction between barristers and solicitors was said to be the fact that the former are concerned with advocacy in court while the latter are concerned with legal work out of court. This is not strictly accurate because although barristers are primarily concerned with advocacy and they have an exclusive right of audience in the High Court, the Court of Appeal and the House of Lords (now styled, the Supreme Court), they are not however confined to advocacy. They do spend a considerable part of their time on "paper work" dealing with matters such as drafting pleadings, divorce petitions, and giving expert opinions on legal matters. On the other hand, solicitors are not also exclusively concerned with out-of-court work, because they have a right of audience in magistrates' courts, county courts and in some instances, crown courts. Although the education of barristers and solicitors has many common features, the differences become marked at the level when they undergo their vocational training. The barrister takes the Bar Examinations under the aegis of the Inns of Court whilst the solicitor takes the final examination under the aegis of the Law Society. 1.3 The Civil Law or Romano-Germanic legal system 1.3.1 Origins The civil law or Romano-Germanic system is the legal system of countries with a private law predominantly based or influenced by Roman law (the ius civile). The ius civile was developed during the Roman Republic by praetorian edicts, which were magistrates' edicts inventing new causes of action. This was enriched by the written opinions of Roman jurists that were later collected in Justinian's Pandect. The Pandect was part of Justinian's Corpus Juris Civilis, which was essentially a collection of the most recent imperial decrees of Justinian as well as four textbooks which had the force of law. After a lapse during the Dark Ages, Roman law was rediscovered in the medieval universities of Bologna, Cambridge, Cologne, Cracow, Oxford, Padua and Prague, and developed further by the glossators and the post-glossators, who were medieval law teachers. Roman law spread throughout Europe and is categorised as ius civile (Latin), droit civil (French), dirritto civile (Italian) and burgerliches recht or zivilrecht (German). It has spread throughout the world through colonisation or voluntary reception. It is thus not only the basis of the legal systems in European countries such as Portugal, Spain, Italy, France, Germany, Switzerland and to a certain extent, the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), but also the former colonies of Belgium, France, the Netherlands, Portugal and Spain in Africa, Latin America and Asia. To these must be added Louisiana in the United States and Quebec in Canada. 1.3.2 The main characteristics of the civil law system By comparing and contrasting the common law system with the civil law system, a number of factors emerge which indicate some of the main characteristics of the civil law system. These may be summarised as follows: First, from a philosophical perspective, the civil law approach 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 approach is inductive and operates on the premise that knowledge is derived from experience, which means that broad principles can only be developed on the basis of inductive observation. As a result of this difference in approach, the civil law philosophy may be described as dogmatic, whereas the common law philosophy is empirical. A clear illustration of this is the fact that the common law was made through many centuries and is still being made by judges, although in recent years, there has been an increasing influence of the legislature. The writings of legal authors are rarely cited in common law countries. The common law, as Oliver Wendell Holmes said, is not based on logic but experience, whereas the civil law is based more on logic than experience. Secondly, from a historical perspective, the civil law system is based on and has been substantially influenced by the Justinian Codes. By contrast, the influence of Roman law on the common law is very insignificant. Thirdly, the civil law system is based on codes, which are essentially comprehensive and systematically stated provisions of the different branches of the law, complemented by subsequent legislation. For example, the Italian Cinque Codici consists of the civil code, the code of civil procedure, the code of criminal law, the code of criminal procedure and many other codes. Germany has a comprehensive code for several branches of the law, including civil law, criminal law, civil procedure, etc. These codes are deemed to 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 lay down universal rules of conduct and is expressed in court actions and legal remedies rather than substantive rules. Fourthly, the doctrine of binding precedent or stare decisis which requires lower courts to follow the rule of law laid down in the decisions of superior courts in the common law system, and is in fact, the very foundation of the system, does not strictly apply in civil law systems. Even though court decisions are studied in order to discover trends, particularly in areas in which there is sparse legislation, such as in the administrative practice of the French Conseil d'Etat (the supreme administrative court of France), court decisions have no binding effect on lower courts. Besides this, there is no strict hierarchy within the case law itself. Thus, no court decisions may take precedence over others and in principle, the decisions of the highest courts (for example, the Cour de Cassation in France) have no greater weight than the decisions of the lowest court. Nevertheless, the lower courts do take notice of the decisions of superior courts because of the risk that their decisions will be reversed on appeal. Fifthly, the legislative technique in the two systems is different. In the civil law system, the legislature normally drafts the main outlines of a law and leaves the executive a wide discretion to work out details by means of secondary legislation. The common law tradition is for the legislature to draft laws in a detailed manner that leaves as little as possible to be regulated by the executive. Sixthly, the structure of 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 for settling disputes between the administration and the citizens (these are administrative courts), whilst a separate set of courts (known as ordinary courts) have the jurisdiction to deal with disputes between citizens. Finally, there are significant differences in the sources of law that the judges apply in the two different legal systems. Some of these differences are discussed below with respect to the sources of French law. It must be noted that significant though these differences might be, some of them are fast disappearing. For example, the decisions of higher courts in France sometimes have as much weight as the decisions of the superior courts in England. The British Parliament, due to pressure of work, is increasingly adopting the continental style of Acts, which contain merely guidelines, leaving the government to fill in the details by means of subsidiary legislation. 1.3.3 An illustration of the civil law legal systems using the French legal system The French legal system is a classic illustration of the civil law legal system. A brief examination of the sources of French law and legal personnel will be made below. 1.3.3.1 The sources of French law The principal source of modem French law is parliamentary legislation (his). Under the 1958 Constitution, Parliament shares its legislative powers with the government, with the latter having its own autonomous power to enact laws by means of regulations (reglement autonomes) as well as being able to issue regulations in application of a parliamentary statute (reglement d'application). Customary law, although largely abolished during the French revolutionary period, is still a minor source of law. Case law (la jurisprudence) and doctrinal writings (la doctrine), although not recognised in principle as formal sources of law, are of persuasive value. Over and above these sources, there are certain fundamental and general principles of law that have been derived by the courts, especially in administrative and constitutional law, from written law, that are also regarded as minor sources of law. 1.3.3.1.1 Legislation Legislation in its broad sense in the French system may be classified into three main categories: parliamentary loi, government ordoinnances and government reglement. The 1958 Constitution restricted the competence of Parliament to enact statutes (lois) to those matters set out in article 34 of the 1958 Constitution. Meanwhile, article 37 of the 1958 Constitution empowers the government to enact legislation in its own right by way of autonomous regulations (reglement autonomes) in all fields. Parliament could also authorise the Prime Minister to enact laws (by means of ordonnances) for a given period in respect of matters within the parliamentary field of competence. The scope and hierarchy of la loi consists of the following: (i) Constitutional law — constitutional law is superior to ordinary parliamentary statute and if the latter contradicts the former, it may be held to be unconstitutional by the Constitutional Council. The latter however is the body responsible for controlling the constitutionality of laws, but it can only strike down legislation before promulgation into law. (ii) International treaties and agreements — once a treaty has been ratified and duly approved by Parliament, article 55 of the 1958 Constitution accords it authority superior to that of parliamentary statute. (iii) Organic laws and other special procedures — organic laws (lois organiques) are the means by which some of the details of constitutional law are enacted and will only become effective if the special procedure provided for their enactment has been followed. (iv) Ordinary parliamentary statutes — these are laws made by Parliament within its defined legislative domain. (v) Lois referendaires — the Constitution makes it possible for a bill to become law without being passed by Parliament provided it is approved by the people in a referendum and later promulgated into law by the President. Such laws are referred to as lois referendaires. As regards government ordinances, an instance where this may be passed is where Parliament fails to pass certain legislation within the appropriate time limit set by law, for instance a finance bill under article 47 of the 1958 Constitution. Once such an ordinance is ratified by Parliament, it takes effect as a parliamentary statute. The generic name for government regulations issued in the exercise of its powers to make regulations (pouvoir reglementaire) is reglements. This power to issue regulations is shared by the President of the Republic, The Prime Minister, ministers, administrative authorities and others, The various categories of these regulations, in decreasing hierarchical order are: (i) Reglement autonomes — these are regulations issued within the executive legislative domains as specified in article 37 of the 1958 Constitution. (ii) Reglement d'application — these are regulations made by the Prime Minister to implement a parliamentary statute. (iii) Arretes ministeriels — these are ministerial orders expressly or implied provided for in a statute or decree or dealing with matters within the minister's department. (iv) Arreies prefectoraux — these are prefectoral orders issued by a prefect to deal with matters within his prefectoral district. (v) Arretes municipaux — these are municipal orders, such as bye-laws, issued by a municipal authority, within his municipality. (vi) Other regulations — there are other bodies that are authorised by law to issue regulations, such as decisions of the Bank of France, orders of the presidents of the various universities, etc. 1.3.3.1.2 Case law (la jurisprudence) Case law is not formally recognised as a source of law in the French system. The role of the courts is seen essentially as one of interpreting and applying legal rules which emanate from a source other than the courts themselves. In fact, article 5 of the Civil Code states that judges are forbidden from making general or regulatory decisions in respect of cases coming before them. This article therefore makes it clear that the doctrine of stare decisis has no place in French law. This means that a court could in general refuse to follow any precedent, even that of the highest courts. The non-binding nature of judicial precedents may result in uncertainty. However, in practice, precedents, especially those of the superior courts are followed. Thus, lower courts tend to follow the precedents laid down by the Cour de Cassation, but in the absence of the doctrine of binding precedent, retain their right not to do so. Whilst article 5 of the Civil Code prevents case law from becoming a formal source of law, article 4 of this Code underlines the persuasive value of case law. The latter provision states that a judge will be in breach of his duties if he fails to reach a decision on the grounds of the silence, lack of clarity or insufficiency of written law. Since many provisions of the Civil Code are quite vague, this provides the authority for judges to seek guidance and inspiration from previous cases. 1.3.3.1.3 Legal writings (la doctrine) Although la doctrine is not regarded as a source of law, it has traditionally played a significant role in the development of the French law and today influences the interpretation of the written law by judges and lawyers. La doctrine may be defined as the body of opinions on legal matters expressed in books, articles, manuals, journals, legal periodicals, practical commentaries and other scholarly publications, and provides a systematic and critical exposition of positive law through written commentary. It may also include commentary on existing legislative acts, discussions on issues preceding the promulgation of new legislation, suggested interpretation of new legal provisions and annotated reports and commentaries on the decisions of the courts. It does not solely consist of academic writings but includes the comments of judges, practitioners and law teachers. It is not uncommon to find the views of certain great jurists cited in commentaries on the codes or in the courts. For example, Carbonnier influenced the reform of family law in the 1960s and 1970s, just as Pothier had done with the Code Napoleon. 1.3.3.1.4 Custom Although the codifications of the early nineteenth century greatly reduced the role of customary law, it still remains a subsidiary source of law. Whereas the loi emanates from the State, either through the legislative or executive branch, custom originates from the people, but is recognised and safeguarded by the State. Custom in French law has been defined as "the continuing behaviour over a period of time of those governed by the law, with the understanding that their behaviour is required by the law." For custom to be recognised as a formal source of law, it must satisfy these three conditions: i. The custom must evolve through a slow, but spontaneous proc

THE GHANA LEGAL SYSTEM- Emmanuel Kwabena Quansah.pdf

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