Presbyterian University College- Kumasi Campus

Faculty of Law

Mid-Semester Examinations 2021/2022 Academic year

PLAW 145: Legal Writing and Study Skills 1

Submitted by: Atta Brenya Bonsu Jnr.

Index Number: KS 0369/21

Question 1

Answer

Overview

The Article attempted to fill the theoretical void in the literature by offering a methodical
examination of what it is for a legal document to be well written. It started by examining a
foundational conceptual issue, which is what legal writers mean when they say that a legal
document is well written. It argued that legal readers judge a document to be well written if the
writing helps them make the decisions they need to make in the course of their professional
duties. The Article then provided an analysis of the fundamental qualities that enable legal
writing to do this, concluding that there are three such qualities: clarity, conciseness, and the
ability to appropriately engage the reader. The Article explained why each of these qualities is
essential to good legal writing, and it examined the tools good writers use to make their writing
clear, concise, and engaging. Lastly, the Article examined what it is that distinguishes the very
best writing in the field, arguing that great legal writing is not just writing that is especially clear,
concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is
aesthetic in nature. The Article then went on to explore what it is that makes such writing
elegant, and whether it is desirable for legal writers to strive for elegance in their own writing.
The Article concluded by briefly considering the pedagogical implications of the analysis
discussed thereon.
Brief History and definition of Legal Writing

One problem in law school is that we read older cases by dead judges. Of course, Cardozo,
Holmes, and Jackson were great writers, but most judges are not, especially the older ones. I
pulled out a random Ohio Supreme Court case from 1946, and quote the first paragraph:

‘The appellant complains that the trial court erred in holding that an attorney at law
representing a loan association in the distribution of the proceeds of a loan to be made
by such association could refuse to answer questions concerning such distribution on the
ground that to answer would disclose a confidential communication to his client; and
that the trial court erred in holding that a garnishee ordered by the court to appear for
examination as to his indebtedness to the judgment debtor was the witness of the
judgment creditor and could not be called for cross-examination by the latter’.

This is not a terrible example; it is just random. But it could be translated in to plain English
fairly easily. Restated, it could be two sentences, and contain about half of its now 100 words.

And it is not just that many judges write badly. Cases are selected for casebooks not because they
are examples of good writing, or even clarity, but because they illustrate the precepts of law in
that course. Even when edited, many of these cases are wordy, redundant, and confusing.
Perhaps there is value for the law student in this situation—it is training to pick out the needle of
law from the haystack of verbiage. But the act of reading all this Law speak and generally bad
writing is to internalize it. If judges write this way, then it is the language of the profession—to
be emulated.

As lawyers, what we do most is write—Lincoln said that lawyers’ time and advice are our stock
in trade, but we express the advice in words. And we use our time in drafting, in communicating
mostly by the written word. Sometimes, though, we fail to remember the first object of writing—
to communicate.

Writing is a skill that can be learned—not that any of us necessarily can learn to be a Cardozo or
a Holmes—but we can substantially improve our communication by learning a few skills, a few
tricks, and unlearning some “rules” that get in the way of good writing.
WHAT IT MEANS TO SAY THAT A LEGAL DOCUMENT IS WELL WRITTEN?

As the principal goal of the Article was to provide a methodical analysis of good legal writing, it
is vital as an initial matter to discover what exactly it means to say that a legal document is well
written. For without a clear conceptual understanding of good writing, it is difficult to isolate its
essential features.

Firstly, a good legal writing must be objective. it must be able to explain a point of law to a
client at all times. For instance, Bell’s Chambers always to their clients after every court sitting
to further explain what ensued at the court to the client after the oral communication. As a
starting point, it is tempting to look to the writer’s purpose for guidance as to what it means for a
legal document to be well written. In other words, it seems plausible to assert that a well-written
document accomplishes (or is reasonably calculated to accomplish) the writer ‘s purpose in
writing the document.

If, for example, the writer ‘s purpose in writing a brief is to persuade the court, then under this
criterion, the brief is well written if in fact it persuades the intended audience (i.e., the court).
Again, it is imperative to anticipate the expectation of intended audience. For example,
whether the legal writing is for legal students, colleague lawyers, clients or judges at court.
Similarly, if the writer ‘s purpose in writing a memorandum is to convey information to a client,
then the memorandum is well written if it effectively conveys the writer ‘s intended message to
the client. In the context of legal writing, the lawyers and judges who comprise the intended
audience have very particular needs and interests when they read legal documents. Unlike
readers of fiction, they are not looking for writing that entertains them or edifies them in some
way. Rather, lawyers and judges read legal documents because they need to extract information
from these documents that will help them make decisions in the course of their professional
duties.30 For example, a partner in a law firm reads an associate ‘s memo in order to obtain
information concerning the law and its application to the facts. This in turn helps the partner
decide how to advise the client, or how to approach a strategic decision the lawyer needs to make
with respect to a case or a transaction. Likewise, a judge reads a lawyer ‘s pre-trial brief in order
to obtain information about the case and in order to understand the parties ‘arguments. This in
turn helps the judge decide how to rule on a motion. And similarly, a lawyer reads a judicial
opinion in order to obtain information about the law and how it is likely to be interpreted or
applied in a future case. This information in turn helps the lawyer decide how best to make an
argument, structure a transaction, or advise a client as to a proposed course of action.

Finally, on decision making. People should be able to take or make a meaningful decision from
a good legal writing. In each of these instances, the legal reader ‘s purpose for reading the
document is to extract information that will facilitate the reader ‘s decision-making. And thus,
the legal reader will regard a document as well written if and only if the writing facilitates that
decision-making. Good legal writing, therefore, is best understood as writing that helps legal
actors make decisions in the course of their professional duties.

THE THREE FUNDAMENTAL QUALITIES THAT ENABLE GOOD LEGAL

WRITING

A good legal writing to exhibit three qualities or characteristics, that is, clarity, conciseness, and
the ability to engage the reader. Suffice to note that discussion of these fundamental qualities
and examining how these qualities facilitate the reader ‘s ability to make professional decisions,
and exploring the tools good legal writers use to incorporate these qualities into their writing is
worth noting.

 Good Legal Writing Is Clear

A good legal writing must stay within the core rules of grammar, syntax and semantics.
Grammar considers the subject verb agreement. The syntax looks at the structure of sentences,
that is, the way sentences are formed. And semantics considers words and their meaning. The
objective of clarity relates to the construction of sentences (grammar and syntax) is to ensure that
the same set of words means the same thing both to the writer and to the reader. However, the
use of ordinary words and simple sentence structures and eliminating unnecessary words and
phrases that may impede sentences. Avoiding repetition and ensuring consistency brings about
clarity. Avoid using similar words such as debt, liability, owing, and among others in one’s
writeup. The words used should not be ambiguous and it must be well organized and well
written. For legal writing to be clear, it is worth to consider the following;

 You must practice your writing. Fluency comes, in part, from familiarity with the skill of
writing. The more of it you do, the easier it becomes.
  You should read the writings of others. If you spend some of your spare time reading
novels, you should find that your own use of English becomes more fluent. If you come
across a word which is unfamiliar to you, look it up in a dictionary: this is how to expand
your vocabulary. If you read a sentence which is unclear, ask yourself why it is unclear;
then make sure that you avoid writing something which is unclear for the same reason.
 You must make sure that you are familiar with the basic rules which govern the writing
of the English language.
 Before starting to write a document, make sure that you know exactly what you want to
say. The point is made in The Complete Plain Words (Sir Ernest Gowers) that ‘loose
thinking is bound to produce loose writing…It is wise therefore not to begin to write…
until you are quite certain what you want to say’.
 If you are uncertain of the spelling of a particular word, use a dictionary. If you are using
a word processor, remember that most spell check programs will only question words
which are not in the program. This means that the misspelling of ‘there’ in the following
sentence would not be highlighted: ‘There is one complaint about the defendant’s work’.
Proof-read your work carefully to ensure that any such errors are corrected.
 If you cannot think of the word which conveys precisely what you want to convey, use a
thesaurus. Most word processors have a thesaurus function.

The benefits of using precise technical terms, in other words, must be balanced against the
benefits of using language that is clear to a broader audience. Technical terms may sometimes
aid precision, but they also inhibit clarity if the reader does not understand them. Thus, the writer
needs to take into account contextual considerations, such as the background knowledge of the
intended audience, in order to strike the appropriate balance.

To sum up, there is no simple prescription for clarity. Clarity is dependent on a number of
different factors, and it is context dependent. The legal writer must consider carefully the
purpose of the writing, as well as the needs, interests, and background knowledge of the intended
audience when deciding what is appropriate for a particular document. But it is important for the
legal writer to keep in mind that clarity is the paramount goal of legal writing, since readers can
only make effective use of a document to aid their professional decision-making if they
understand the writer ‘s message.
  Good Legal Writing Is Concise

To be concise refers to being brief but efficient and eliminating all unnecessary words from
sentences and unnecessary words from paragraph. It should be straight to the point. Avoid over
elaboration. Concise writing conveys the writer ‘s points succinctly, without superfluous words,
and with an appropriate level of detail. What constitutes the appropriate level of detail for any
given document depends on the context. Often, it is simply not possible to explain a complex
idea with the same degree of economy as one can express a simple idea. The tricky part, of
course, is in knowing what words and sentences are unnecessary. If one or more words can be
eliminated from a sentence without impairing the meaning in any way, then making the sentence
more concise is easy. And making a sentence more concise can make it clearer as well. But
sometimes the task is more difficult. Occasionally conciseness can be achieved only by
eliminating qualifiers from a sentence that make the sentence slightly more accurate but that are
not essential. And sometimes conciseness can be achieved only by eliminating details that make
a paragraph slightly more thorough. In these situations, the legal writer needs to make a
judgment call as to whether being a bit more accurate or thorough justifies lengthening and
increasing the ―working parts of the document. While there are no simple rules of thumb to
guide the legal writer in making these decisions, the legal writer should keep in mind the
important role conciseness plays in facilitating the reader’s professional decision-making when
attempting to strike the appropriate balance.

 Good Legal Writing Is Engaging

For a good legal writing to be engaging, it must exhibit emotions, humor or seem to tell a story.
The importance of engaging a reader commands the reader’s attention. Again, on variety, the use
of variety sentence structures so that the sentence may not be monotonous. Be authentic and
natural and apply humor or in a story telling form.
To appreciate the importance of engagement as a fundamental quality of good legal writing,
consider the following paragraph:

‘Our client is Bill Smith. Smith has filed a lawsuit in federal court. It is a personal injury
case. Smith was watching a softball game. Smith got hit with a softball. He was injured.
He suffered a concussion. Smith received treatment at Methodist hospital. He now seeks
damages. He claims to have mental and physical injuries. Smith doesn’t know if he is
entitled to damages for mental injuries. He wants us to find out. This memo addresses
that issue’.

This paragraph is unquestionably clear and concise, just like the paragraph from Lord Denning.
But unlike Denning’s paragraph, it would be a stretch to call it well written. Why? Well, because
the style is tedious and monotonous. It is the writing equivalent of the children’s song: simple
and straightforward, but lacking any stylistic depth that would make it interesting.

Consider, for example, how Lord Denning describes the facts in Miller v. Jackson, a case
concerning some rather simple allegations of negligence and nuisance:

‘In summertime village cricket is the delight of everyone. Nearly every village has its own
cricket field where the young men play and the old men watch. In the village of Lintz in
County Durham they have their own ground, where they have played these last 70 years.
They tend it well. The cricket area is well rolled and mown. The outfield is kept short. It
has a club house for the players and seats for the onlookers. The village team plays there
on Saturdays and Sundays. They belong to a league, competing with the neighboring
villages. On other evenings after work, they practice while the light lasts. Yet now after
these 70 years a judge of the High Court has ordered that they must not play there
anymore. He has issued an injunction to stop them. He has done it at the instance of a
newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a
house on the edge of the cricket ground which four years ago was a field where cattle
grazed. The animals did not mind the cricket. But now this adjoining field has been
turned into a housing estate. The newcomer bought one of the houses on the edge of the
cricket ground. No doubt the open space was a selling point. Now he complains that
when a batsman hits a six the ball has been known to land in his garden, or on or near
his house. His wife has got so upset about it that they always go out at weekends. They do
 not go into the garden when cricket is being played. And the judge, much against his will,
has felt that he must order the cricket to be stopped: with the consequence, I suppose,
that the Lintz Cricket Club will disappear. The cricket ground will be turned to some
other use. I expect for more houses or a factory. The young men will turn to other things
instead of cricket. The whole village will be much the poorer. And all this because of a
newcomer who has just bought a house there next to the cricket ground’.

In one long paragraph composed almost entirely of simple, plain sentences, Lord Denning is able
to spin a very compelling narrative. It provides the reader with all the essential facts. But it does
so in a way that is highly persuasive as well as engaging.

Clarity and engagement are both fundamental qualities of good legal writing, yet at times these
qualities may conflict. When they do, the skillful legal writer needs to find an appropriate
accommodation between them.

Legal writing that is clear, concise, and engaging is good writing. As discussed in the previous
sections, such writing facilitates a reader’s ability to make professional decisions. Yet there is
something about the very best examples of legal writing that goes beyond these three
fundamental qualities. The best legal writing is not just writing that is especially clear, concise,
and engaging; rather, what characterizes great legal writing is a separate, aesthetic quality, which
I will refer to as elegance. It is because of this aesthetic quality that we often refer to the finest
examples of writing as being ―beautifully written. The value of elegance in writing does not
principally reside in its functionality. Rather, elegance adds value to writing for the same reason
that beauty is valuable in any human endeavor: it gives expression to mankind’s essential
creative nature.

In conclusion, the article argued that, readers judge a document to be well written if the writing
advances the readers ‘purpose in reading the document. In the case of legal readers, that purpose
is to glean information that will help the reader make professional decisions. Thus, good legal
writing is writing that facilitates professional decision-making by making it easier for legal
readers to obtain information from legal documents.

References
"What is "Good Legal Writing" and Why Does it Matter?" Drexel L. Rev. 4, No. 2 (2012): 417-
66.

WILLIAMS & COLOMB, supra note 37, at 156–60

Rappaport, supra note 160, at 67–68

James w. Mcallister, beauty and revolution in science 96 (1996)

Carl E. Seashore, In Search of Beauty in Music, 28 THE MUSICAL Q. 302, 302 (1942)

Marshall Rudolph, Note, Judicial Humor: A Laughing Matter? 41 HASTINGS L. J. 175, 179
(1989)

Garner, A Dictionary of Modern Legal Usage (2 Ed. 1995) 606

‘Legal Writing’ by Margot Costanzo (Cavendish Publishing Ltd, 1995)

‘The Complete Plain Words’ by Sir Ernest Gowers, Revised by Sidney Greenbaum and Janet
Whitcut (Penguin Books, 1987 edition of 1955)

Question 2

Answer

Overview

In deciding cases or disputes, judges of lower courts follow the decision of higher court if a case
involving similar facts and points of law comes before them. The principle of stare decisis (Latin
meaning to stand on decided cases) or judicial precedent is a legal rule that inquires a judge
hearing a case to refer to earlier cases decided his predecessors in order to find out if the material
facts of any of those cases before him in the same way as the earlier case had been decided.
Thus, principle was developed the English courts as a mechanism for administration of justice
which will enable judges to make decisions in an objective or standard manner instead of
subjectively and in a personalized manner. The material facts of a case and the decision made the
judge on the basis of those facts are known as ration decidendi of the case. The Supreme Court
has, in a four to three majority decision of its review panel, overturned its earlier three to two
majority decision of the ordinary bench in Ex parte Opuni. In the earlier decision, the Court
granted an order of prohibition to restrain the trial judge in the criminal proceedings pending at
the High Court (Honyenuga, JSC sitting as an additional High Court judge) from continuing to
sit and hear the case. The Attorney-General, being dissatisfied with the decision, applied for a
review of the decision and it is that application that resulted in the four to three majority decision
under reference. The decision of the review panel is most interesting, not least because the
minority decision is more convincing and has more depth and meat but also for the majority
panel’s rather curious exposition of the doctrine of stare decisis.

What is the doctrine of stare decisis or judicial precedent?

The first elementary principle of stare decisis, also known as judicial precedent, is that, the law
declared by a higher court in a hierarchy of courts enjoys a higher authority than that declared by
a court lower in the hierarchy. Put in another form, the judgment of a court of appeal is binding
upon all courts from which appeal lies to it, either direct or through an intermediate appellate
court. So, for instance, a judgment of the Supreme Court of Ghana in either a civil or criminal
case is binding on the Court of Appeal, the High Court, the Circuit Court and the District Court.
By the same token, a judgment of the Court of Appeal in a civil case, which does not conflict
with a judgment of the Supreme Court, is binding on the High Court, the Circuit Court, and the
District Court, and so on. By the principle of judicial precedent, the Supreme Court is not bound
to follow the decisions of any other court.

The origins of the doctrine of stare decisis

The doctrine of stare decisis or binding precedent is said to be of comparatively recent growth in
England; it cannot be claimed as a time-honored institution and there is no historical foundation
for the proposition that this is a cornerstone of the common law structure. Other known common
law countries such as the United States, South Africa, Canada, Australia, India and Pakistan do
not follow any coercive regime of judicial precedent.  The doctrine of stare decisis, then, has
been said to historically have no deep roots in the common law. Indeed, the rule that English
appellate courts are bound by their own decisions was established not too long ago. The common
law, therefore, does not necessarily subsume a stringent theory of stare decisis.

The rational for stare decisis

There is no universal, uniform rule of stare decisis. As noted earlier, none of the known common
law jurisdictions adhere to the principle that the court of highest resort is bound by its own
previous decisions. And even in England, historically, the rule was followed only by the Court of
Appeal and the House of Lords; the Privy Council which was the highest appellate court for
England as well as most Commonwealth countries, including Ghana, was not bound to follow its
previous decisions. Certainty in the law is the only real argument advanced in favor of the
doctrine of coercive precedent. Currently, the UK Supreme Court is the highest appellate court in
the United Kingdom. Its decisions bind all inferior courts but do not bind itself. This is said to
give the UK Supreme Court scope for judicial creativity to tackle manifest inadequacies in the
law.  

The doctrine of stare decisis under the 1992 Constitution and the majority decision in Ex
parte Opuni (No. 2)

The Constitution provides that “[t]he Supreme Court may, while treating its own previous
decisions as normally binding, depart from a previous decision when it appears to it right to do
so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions
of law.” This provision is in line with the general trend in common law countries where a final
appellate court is at liberty to depart from its own previous decisions if it considers that the
decision was given per incuriam or should, for any other exceptional reason, not be followed.
Therefore, a precedent is normally binding and ought to be followed until it is realized that the
decision was erroneous or that it no longer meets the demands of society.

Writing on a similar provision in the 1960 Republican Constitution of Ghana, Bennion noted as
follows: “Article 42 (4) is intended to provide a suitable combination of certainty and flexibility
in the enunciation and development of legal principles.  Once the Supreme Court, as the highest
Court available to Ghanaians, has delivered itself of a proposition of law relevant to its decision
in a particular case, that proposition is binding without modification in the High Court and the
inferior courts.  It is also binding in principle in the Supreme Court itself, but the use in this
connection of the expression “in principle” is intended to indicate that the Supreme Court may,
in a particular case, depart from its own previous decision if it considers that the decision was
given per incuriam or should for any other exceptional reason not be followed.”

Justice Ollenu also had occasion to comment on the same Article 42 (4) thus: “Our view is that
the words ‘in principle’ are intended to create an elastic rule, to save the Supreme Court in
embarrassing situations and to enable it to re-examine its own previous decision to correct or
differ from it when it finds such decision to be either manifestly wrong, not only because it was
given per incuriam, but because of inconsistency with some principle of law or custom, and is,
therefore, a decision which for some good reason or the other should not be followed.  In our
view, the Article lays down a flexible rule intended to enable the court to mold and develop the
law, the common law no less than the customary law, to meet the needs of economic and social
changes which are taking place in our new and developing nation, without the necessity to resort
to Parliament each time to rectify an error in the law brought about by a wrong decision.”

It is in the light of the foregoing that the Supreme Court’s majority decision of the review panel
in Ex parte Opuni (No. 2) (per Dotse, JSC in his concurring opinion) is most disturbing. In
criticizing the majority decision of the ordinary bench in the case (Ex parte Opuni No. 1), Dotse,
JSC made three profound statements. Firstly, he stated that by Article 193 (3) of the Constitution,
Honyenuga, JSC was bound to follow the Supreme Court’s decision in Ekow Russel v Republic
when he sat and tried the Opuni case at the High Court as an additional High Court judge.
Therefore, “there was no way he could have departed from it”. Secondly, Dotse, JSC stated that
the Justices of the Supreme Court who gave the majority decision of the ordinary bench under
the Court’s supervisory jurisdiction had to depart from the Supreme Court’s decision in Ekow
Russel v Republic in their quest to arrive at their decision. This, His Lordship lamented, was not
well founded and it was “quite an enormous task indeed”. Thirdly, Dotse, JSC opined that to
ensure that the constitutional provisions that guarantee the doctrine of stare decisis is not abused,
the Supreme Court had to “restore the dignity and respectability that this common law doctrine
has afforded the legal and judicial system”.
Now, an analysis of these three statements will expose the flaws inherent in Dotse, JSC’s
concurring opinion.

Must a High Court follow a decision of a higher court at all costs under the doctrine
of stare decisis?   

From the dictum of His Lordship, he answers the above question in the affirmative. And he goes
further to support the assertion by quoting Article 193 (3), with emphasis on the words “and all
other courts shall be bound to follow the decisions of the Supreme Court on questions of law” for
good measure. But is this an inflexible rule such that Honyenuga, JSC sitting as an additional
High Court judge was bound to follow the Supreme Court’s decision in Ekow Russel v
Republic even if he deemed the decision to be wrong? Respectfully, I do not think so. Implicit in
Dotse, JSC’s dictum is the suggestion that, Honyenuga, JSC probably found Ekow Russel v
Republic  to have been wrongly decided but he felt constrained to depart from it because of the
fetters placed on him by Article 193 (3). It is submitted that such a constricting and slavish
adoration of precedent could not have been the intendment of the Constitution. Admittedly,
judicial precedent creates certainty in the law. But that fact alone cannot bind lower courts to
suffer atrocious decisions and those given per incuriam by higher courts.

A veritable example of a case in which a lower court refused to follow the decision of a higher
court is Amponsah v Appiagyei & Ors; Amoah v Anthony & Ors; Boakye & Anor v Effah &
Anor; Boateng & Ors v Boahen & Anor.  In that case, Amuah-Sekyi, J. (as he then was) sitting
at the High Court, Kumasi, refused to follow the Court of Appeal’s decision in Bonsu v State
Insurance Corporation. His Lordship reasoned that, the decision in the Bonsu case was in
conflict with authoritative pronouncements of courts of co-ordinate jurisdiction and was also at
variance with statutory law. He delivered himself as follows: “The principle of judicial
precedent requires that a lower court takes due notice of, and apply decisions of a higher court
which are binding on it. This, however, does not mean that such decisions ought to be slavishly
followed even when they are demonstrably wrong. I think I shall take my cue from Taylor J. (as
he then was) who, in Nkrumah v Manu [1971] 1 G.L.R 176, refused to follow the decision of
the Court of Appeal in Attiase v Abobbtey, 21 July 1969, unreported; digested in (1969) C.C. 149
on the ground that it ran counter to statutory provisions. Although in Sogbaka v
Tamakloe [1973] 1 G.L.R 25, Francois J. (as he then was) disagreed with him and said that as a
binding decision of a higher court it ought to have been followed, in Kyei v Donkor [1974] 1
G.L.R. 366, the Court of Appeal, after examining the relevant statute came to the conclusion that
the decision of Taylor J. in Nkrumah v Manu (supra) was right, and declined to follow their own
decision in Attiase v Abobbtey (supra).”

As has been demonstrated in the preceding paragraphs, Honyenuga, JSC, the additional High
Court judge, was not bound to follow a Supreme Court decision that was wrong, given per
incuriam, was contrary to statute and so forth. So, when he decided to follow Ekow Russel v
Republic slavishly (in the words of Amuah-Sekyi, J. (as he then was)), he was the one who
should have attracted Dotse, JSC’s rebuke. In the circumstances, Dotse, JSC’s dictum that
Honyenuga, JSC (sitting as an additional High Court judge) was bound to follow the Supreme
Court’s decision in Ekow Russel v Republic in the Opuni case even when the said decision was
wrong, rings hollow at best. This view runs contrary to all notions of justice. It portends an
invidious fetter on the growth and development that our ‘legal and judicial system’ need to
survive in this fast-advancing and technology-driven 21st Century.

At any rate, the majority decision of the review panel re-echoes the dilemma of the Court of
Appeal or Supreme Court judge who is appointed to sit as an additional High Court judge. As
Dotse, JSC candidly pointed out, Honyenuga, JSC felt himself disabled from departing
from Ekow Russel v Republic when he sat as a High Court judge. He, most likely, did not want
to incur the wrath of his brethren upstairs. Will a substantive High Court judge in Honyenuga,
JSC’s situation feel such trepidation? I doubt so. When the Justice Taylors and Amuah-Sekyis
declined to follow wrong decisions of higher courts when they were substantive High Court
judges, they did so without fear. They had no brothers and sisters in higher courts who’s possible
proses of opprobrium could stifle them into inaction.

Was it right for the majority panel of the ordinary bench not to follow the Supreme
Court’s decision in Ekow Russel v Republic while exercising supervisory jurisdiction?

It is quite surprising that although Dotse, JSC was comfortable with the additional High Court
judge’s decision to follow Ekow Russel v Republic, a wrong decision of the Supreme Court, in
obsequious regard for the doctrine of judicial precedent, His Lordship was beside himself with
angst when the majority panel of the ordinary bench refused to follow that decision by exercising
their right under Article 193 (3) of the Constitution.

His Lordship even went on to add that the path on which the majority panel of the ordinary
bench chose to tread presented “quite an enormous task indeed”. It is difficult to see what
underscored His Lordship’s difficulty with the majority panel’s decision to depart from the
Supreme Court’s decision in Ekow Russel v Republic. He could not fault their decision as
baseless since Article 193 (3) expressly gives the Supreme Court the power to depart from its
own decisions when deemed necessary. He could also not impeach their decision for reason that
the decision in Ekow Russel v Republic was good; he appears to agree that, that decision was
bad just that the additional High Court judge, sitting qua High Court judge, in his opinion, could
not depart from it.

Dotse, JSC’s words seem to suggest that he was unhappy with the majority panel of the ordinary
bench because they chose to depart from Ekow Russel v Republic at a time they were exercising
‘supervisory jurisdiction’. This is what His Lordship said in the course of delivering his
concurring majority opinion on the review panel: “For a majority panel to just write off an
established principle of law as contained in the Ekow Russel decision and depart from it under
the exercise of the supervisory jurisdiction of the Court is, in my opinion, not well founded”.
Unfortunately, after making such a profound statement, His Lordship failed to expatiate on this
novel restatement of the law on judicial precedent. It bears stating that Article 193 (3) does not
set forth any special jurisdiction the Supreme Court must be exercising before it could depart
from its previous decision. Once the article is silent on the type of jurisdiction that can cloth the
Supreme Court with jurisdiction to depart from its previous decision, it is submitted that the
Supreme Court, whenever it finds it necessary to do so, could depart from its prior decision and
the nature of the jurisdiction it may be exercising – be it original, appellate or supervisory – will
be wholly immaterial.

Does the doctrine of stare decisis as stipulated under the Constitution enjoy a strict
application regime?
From the discussions thus far, it is clear that the doctrine of stare decisis as known under the
common law and Article 193 (3) of the Constitution is not a strict and unbending rule. It is with
this background in mind that Dotse, JSC’s dictum seeking to smear a most sacrosanct unction of
strict application on the doctrine of judicial precedent appears problematic. The Supreme Court
of Ghana, just like those of other Commonwealth countries who follow the common law
tradition, are not bound to always follow their own decisions. Lower courts are also to follow the
decisions of higher courts, but not slavishly.

The binding part of a decision is the part that stated the rule of law upon which the decision was
based. This part is referred to as the ratio decidendi (simply translated as, the reason for the
decision and usually referred to as ratio). The status of the court in the legal system will have
significant effect on whether its decision will be binding, persuasive or disregarded. In Ghana,
the constitutional provision that makes decisions of the Supreme Court binding on all other
courts is found in article 129 (3) of the 1992 Constitution:

(3) The Supreme Court may, while treating its own previous decisions as normally
binding, depart from a previous decision when it appears to it right to do so; and other
courts shall be bound to follow the decisions of the Supreme Court on questions of law.

The Ghanaian legal system is fashioned along the common law tradition which places much
premium on the doctrine of judicial precedent. This doctrine of judicial precedent is an
inheritance from the English common law which stresses that under certain circumstances earlier
judicial decisions of higher courts are binding on all other courts of equal status or below.

There are three factors that has to be considered in distinguishing between a binding Precedent
and a non-binding precedent, Persuasive Precedent. They are as below:

a. the portion of the judgement of the previous case relied upon by the judge must be the
ratio decidendi and obiter dictum.

b. the facts of the earlier case should be materially similar to the case being adjudicated
upon.
 c. the court that decided the earlier case must be higher in terms of its position in the
hierarchy of the courts.

It is equally important to note that every legal decision contains the following basic ingredients:

a. finding of material facts either direct or inferential; an inferential finding of fact is the
inference which the judge draws from the direct facts of case at hand. Example,
recklessness may be inferred from the direct facts of the situation where a parent of a
toddler son leaves the son to play with an unlocked, loaded pistol when it goes off and
kills the child.

b. statements of the principles of law applicable to the legal problems disclosed by the facts.

c. a judgement based on the combined effect of (a) and (b) above.

The prime concern of the parties is point (c) above which is the material element in the decision
which ultimately determines their rights and obligations in relation to the subject matter of the
legal action. This judgement is only binding on the parties in the legal action and subject to the
system of appeal, finality to the issue(s) determined must be imposed when the appeal process
comes to an end. This requirement of finality as provided by the doctrine of res judicata (a
matter which has been adjudicated upon). For the purpose of doctrine of precedent, point (b)
above is the vital element in the decision. That is the ratio decidendi, which expresses the
underlying legal principles relied on in reaching the decision and for all intent and purposes, the
binding precedent.

Case law that lends support to judicial precedent are captured in the cases as below: In Ejura
Farms (Ghana) Limited v Harlley [1976] 1 GLR 158, CA, the Court of Appeal held that the
ratio decidendi is the only reason in a decision which neccesarily supports the conclusion. It
therefore means that, if the reasons do not support the conclusion, then those reasons are not
binding and in Howard de Walden Esates Limited v Aggio and Others; Earl Cadogan and
Cadogan Estates Limited v 26 Cadogan Square Limited [2007] EWCA Civ 499; [2007] All ER
(D) 408 (May): "This principle serves the interest of legal certainty. The need of litigants and
their advisers to know where they stand is not served if a lower court is free to create a conflict
of authority by declining to follow the relevant decision of a higher court". Also, the words of
Lord Hope in Austin v Mayor and Burgresses of the London Borough of Southwark [2010]
UKSC 28 at (31): "There are very good reasons for accepting that the law as declared in
Thompson [1981] 1 WLR 1425, however unsatisfactory it can now be seen to be, should not be
disturbed".

MacCormick remarked "To understand case law...........is to understand how it is that particular
decisions by particular judges concerning particular parties to particular cases can be used in
the conclusion of general rules applying to the actions and transactions of persons at large"
(1987: 155). Looking at the statement above, it tells of the principles that English laws are
derived from the development of a particular line on a particular case. This is because principles
do not develop unless claimants bring cases. Both practitioners and academics may speculate on
the development of legal principles, but it takes real-life cases to settle them. Judges on the other
hand, in each case to a greater or lesser extent, draw upon the principles established in those
earlier cases in reaching their decision.

Apart from the ratio decidendi of a case, other statements of law made in the judgement are not
binding on the later court. It is called obiter dicta ("obiter dictum" singular) and are defined as
words of prior opinion entirely unnecessary for the decisions of the case. They are remarks
made, or opinion expressed by a judge upon a cause, "by the way", that is incidentally or
collaterally, and not directly upon the question before him, or upon a point not necessarily
involved in the determination of the cause, or introduced by way of illustration, or analogy or
argument. In short, they are statements in opinions wherein courts indulged in generalities that
had no actual bearing on issues involved. Example is the English case of Rondel v Worsley
[1969] 1 AC 191, HL in which the House of Lords held that an opinion that a barrister could be
held liable for negligence when he was not acting as such, and that a solicitor would be immune
from an action when acting as an advocate. Since the case concerned the liability of a barrister
when acting as one, these opinions were purely obiter dicta.

The significance of judicial precedent in the development of case law cannot be downplayed. A
few of them is worth looking at as below:

Precedent breeds certainty in law. This means that by looking at existing precedents it is possible
to predict with some degree of certainty the likely outcome of a case at hand and with the benefit
of hindsight plan accordingly. In Cassel & Co Limited v Broome [1972] AC 1027 pp. 1054,
Lord Hailsman stated inter alia that: In legal matters, some degree of certainty is at least as
valuable a part of justice as perfection. The fact is, and I hope it will never be necessary to say
so again, that, in the hierarchical system of courts which exists in this country, it is necessary for
each lower tier, including the Court of Appeal, to accept loyally the decision of higher tiers.

It also brings about uniformity in law. This goes to say that similar cases will be treated in like
fashion. This affords the system a sense of justice and make it more acceptable to the public in
general.

Judicial precedent lend itself to practicality because it is based on real facts, unlike legislation. It
is also detailed in that there is a wealth of cases to refer to in arriving at a more meaningful
decision and taking the shot at what it seeks to present.

Another important leg from which judicial precedent is significant in the development of case
law is its flexibility of application in that there are a number of ways to avoid precedents and this
allows the system to change and to adopt to new situations. This view is summed up in the words
of the American judge, Oliver Wendell Holmes Jr. (as he then was): "The life of the law has not
been logic, it has been experienced" - law should be situated in the human situation and being
adaptable to changing situations.

Aside the relative significance of stare decisis in the development of case law, there are
situations where a court may decline to follow this doctrine. Three of such situations is discussed
below:

First, a judge can avoid being bound by a ratio of a previous case by distinguishing the facts of
the previous cases from the case before him. This can be done by finding that the facts of the
case before him are materially different from those of the previous case. Facts are never identical
even though lawyers most often than not would say, "this case is on all fours" with a previous
case. If the differences are significant, the judge will "distinguish" the earlier case on the facts
and thereby avoiding it as a precedent. Distinguishing an earlier case does not imply criticism of
the correctness of the earlier decision in relation to its own peculiar facts. It does not also
derogate from its binding effect in other cases.
Second, a judge may depart from a previous decision where that case was decided per incuriam
(that is through lack of care). This occurs in the situation where the previous decision was made
without taking into account some relevant precedent or statutory provision, which would have
significantly affected the decision made in the previous case. Such a decision will not be binding
on later courts as explained by Donaldson M R in the English case of Duke v Reliance Systems
Limited [1987] 2 All ER 858 pp. 860, CA:

".............the doctrine of per incuriam only applies where [a court] has reached a decision in the
absence of knowledge of a decision binding on it or a statute, and that in either case it has to be
shown that, had the court had this material, it must have reached a contrary decision........I do
not understand the doctrine to extend to a case where, if different arguments had been placed
before it, it might have reached a different conclusion".

Finally, the changed circumstances doctrine to some extent may influence a judge's departure
from a previous decision. This involves the later court coming to a conclusion that the reason for
the ratio has become untenable in the face of new developments. This view is expressed in the
maxim, cessate ratione, cessat ipsa lex (meaning with the ceasing of the reason for the existence
of a legal rule, the legal rule itself ceases to exist). This may be a useful device the Supreme
Court could deploy in deciding whether to follow or depart from its previous decisions as in the
English case of Miliangos v George Frank (Textiles) Limited [1975] 3 AII ER 801, where the
House of Lords had previously decided that all damages in an English court had to be made in
sterling. However, with changing international trade and the status of the sterling they felt the
time had come not to adhere to their previous decisions.

Added to the above will be the situation where the court declares a decision too wide or because
it has been subsequently overruled by a higher court or overturned by statute.

Definition of important terms

Ratio Decidendi

The ratio decidendi of a decided case constitutes the legal rule or principle for the future case
with similar material facts, that is, the decision is precedent to be followed when deciding such
cases.
Precedents

Precedents may be classified in various ways:

 Binding and persuasive precedents

 Original and declaratory precedents
 Distinguishing precedents

Original Precedents

This is a principle or proposition of law as formulated by the court. It is the law-creating

precedent.

Declaratory Precedent

This is the application of an existing principle of law in a subsequent similar case.

Binding Precedent

This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in
the same manner. Example are High court decision used in a Court of Appeal, or a decision
handed down a court in another country.

Distinguishing Precedent

This is a subsequent decision of a court which effectively distinguishes the earlier precedents. It
is precedent in its own right.

However, in certain circumstances, a court may refrain from a binding precedent. In such
circumstances, the earlier decision is ignored. This is done in the following circumstances:

 Distinguishing
 Change in circumstances
 Per in curium
 Over- rule statures
 The earlier decision
 If the ratio decidendi of the previous decision is too wide or obscure
  If the ratio decidendi relied upon is one of the many conflicting decisions of a court of
co-ordinate jurisdiction.
 Improper Conviction: In Kagwe v R. (1950) it was held that a court could refrain from a
binding precedent if its application was likely to perpetuate an incorrect erroneous or
improper conviction in a criminal case.

Advantages of case law (Importance of stare decisis)

 Certainty and Predictability; Stare Decisis promotes certainty in law and renders a legal
system predictable. In Dodhia’s case 1970, the court of appeal was emphatic that a
system of law requires a considerable degree of certainty’’

References

Republic v High Court (Criminal Division 1); Ex parte Stephen Kwabena Opuni (Attorney-
General Interested Party), Civil Motion No. J7/20/2021, unreported decision of the Supreme
Court dated 26th October, 2021.

Ollenu, N.A “Judicial Precedent in Ghana” [1966] Vol. III No. 2 UGLJ 139—164.

Article 129 (2) of the Constitution and Section 2 (2) of the Courts Act, 1993, (Act 459).

Asante, S.K.B “Stare decisis in the Supreme Court of Ghana” [1964] Vol. 1 No. 1 UGLJ 52—67.

Article 129 (3) of the 1992 Constitution.

Bennion, CONSTITUTIONAL LAW OF GHANA.

1992 Constitution of Ghana

Holland, James and Webb, Julian Learning Legal Rules (8th edition) Oxford
 University Press, 2013.

Owusu-Dapaah, Ernest PhD and Ghana Legal System and Legal Method

Freduah Kwarteng, Nicholas Major Dadzie Books, 2019.

Tachie, Antiedu Benjamin Reading the Law, Pentecost Press Ltd, 2019.

Williams, Glanville Learning the Law (12th edition)

Sweet & Maxwell Ltd, 2002.

Quansah, Kwabena Emmanuel the Ghana Legal System GIMPA, 2011

Question 3

Law does not just happen, like some spontaneous cell mutation, it comes from somewhere. The
realization that this is so is embodied in the expression ‘a source of law’.

Historical Source

A historical is the rule from which as a matter of historical fact the substance of a particular rule
of law has been derived. For instance, the Intestate Succession Law, 1985 (PNDC Law 111)
owes its contents in part to the recommendations of the Law Reform Commission in the 1970’s.
these recommendations are an historical source of the current law on intestate succession.

Legal Source

A legal source on the other hand is the process whereby rules are given the force of law. The
recommendations of the Law Reform Commission on the intestate succession did not themselves
constitute law. Their substance would not be contained in the current law if the formal law-
making process had not been activated. The legal source of the current law of intestate
succession is the Intestate Succession Act, 1985 (PNDC Law 111). The contents of that
enactment are law because it was enacted by the country’s principal law- making institution, the
PNDC.

Sources of Law in Ghana

The most authoritative statement on the sources of law in Ghana is found in the 1992
Constitution of Ghana. Article 11 (1) of the 1992 Constitution of Ghana provides the sources of
Law as follows:

The laws of Ghana shall comprise:

I. This Constitution;
II. Enactments made by or under the authority of the Parliament established by this
Constitution;
III. Any Orders, Rules and Regulation made by any Person or authority under a power
conferred by this Constitution;
IV. The existing law; and
V. The common law.

The Constitution

According to the 8th edition of Osborn’s Concise Law Dictionary “Constitution” denotes those
laws, institutions and customs which combine to create a system of government to which the
community regulated by those laws accedes. There are several definitions of the term
‘constitution’; however, the important thing to bear in mind is that Constitution is the supreme
and fundamental or basic law of the land.

Basically, there are two main types of constitution: the written and unwritten constitution. A
written constitution simply refers to a single document embodying those laws, institutions and
customs which combine to create a system of government. Most modern democratic countries
that practice Constitutionalism and rule of law have a written constitution which is the ultimate
reference point in such countries. The USA, France, South Africa, Nigeria and of course Ghana
are some of those countries that use written constitutions. The term unwritten constitution does
not necessary mean that the constitution is not written, on the contrary, the body of rules which
regulate the exercise of state power in a country with an unwritten constitution, are contained in
more than one document. For example, the United Kingdom, which is the only country in our
modern era without a written constitution has the rules forming its constitution found in statute
law, case law, the law and custom of Parliament, and constitutional conventions. These rules
have no higher status than any other law; and as a result, the constitution of the United Kingdom
is entirely flexible.

The Constitution is a supreme legal document that expresses the fundamental laws or principles
by which a state or an organization is governed. The 1992 Constitution is one such example. It
establishes the primary laws that govern Ghana, as well as the institutions of governance, among
them, the executive, legislature and the judiciary. Article 1(2) declares the Constitution to be the
supreme law. All other laws in Ghana must therefore conform to or be compatible with the
Constitution.

In Ghana, the Constitution is part of the laws of Ghana by virtue of Article 11 (1) of the
Constitution. More importantly the Constitution is the supreme law of Ghana and any law found
to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency,
be void. (Article 1(2)). To reinforce the supremacy of the Constitution, failure to comply with
declarations of the Supremacy of the constitution in relation to any other law, conduct or
omission is a high crime, (Article 2 (4)). If this high crime is committed by the President or the
Vice President of the Republic, the punishment for that offence is the removal from office. In the
case of any other person convicted of this high crime, the prescribed punishment is a maximum
of term of ten (10) years imprisonment without the option of a fine. Such a person is also banned
from occupying any public office for ten (10) years beginning from the date on which the 10-
year prison term expired.

The harshness of the foregoing penalties shows the important position the Constitution occupies
within the hierarchy of the laws of Ghana. The Constitution also enjoins every Ghanaian who
alleges that any law, act, conduct or omission of any person is inconsistent with or in
contravention of any provision of the Constitution, to bring an action in the Supreme Court for a
declaration to that effect, according to Article 2(1). In the NDC v Electoral Commission, the
Supreme Court interpreted Article 2 of the Constitution to mean that the act or omission which is
alleged to be inconsistent with the Constitution should have actually taken place. Edward
Wiredu, Ag. CJ succinctly stated the principle as follows:

Where an act or omission of any person is challenged under Article 2 of the 1992 Constitution,
such act or omission must be shown to have taken place, and it must be shown that such act or
omission falls foul of a specific provision of the Constitution, or at the very least, the spirit of an
actual provision.

The provisions of 1992 Constitution are arranged in articles and clauses. There are 299 articles
and 37 sections of provisions and transitional provisions respectively in the 1992 Constitution of
Ghana. Knowledge of these provisions is vital to all business entities, since many of them
impose compliance duties on business entities, (remember that businesses are deemed to be
artificial legal persons).

The human right provisions in Chapter 5 of the Constitution apply to business of all strips. Every
business entity is under an obligation to respect and uphold human rights at the workplace. For
example, the Constitution of Ghana explicitly prohibits the use of slave or forced labor (Article
16) at any place of work (office, farm, camp etc.), it prohibits companies from polluting the
environment (Article 46), and similarly prohibits companies from denying or depriving its
employees of their constitutional right to unionize for the protection of their interest (Article 21).
Recent media reports have revealed growing interest in corporate violation of human and
constitutional rights. For example, Newmont Ghana Gold Limited has since 2011, been accused
of several human rights violations at its Kenyasi, Ntotroso, and Atronie Ahafo mines in Ghana.
Livelihood and Environment Ghana (LEG), a human rights and advocacy group alleged that
Newmont, had provided unsafe living and working conditions; inadequate compensation and
relocation packages; created noise and water pollution and was non-compliant with
recommendations by local institutions including CHRAJ.

The constitution of Ghana is the fountain- head of the organs of government, that is, the
executive, legislature and the judiciary derive their sources of power and sustenance from it. In
the case of Tuffour v Attorney-General, the Supreme Court at page 247 of the Report described
the uniqueness of the Constitution as follows;
 “The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the
fountain-head for the authority which each of the three arms of government possess and
exercises. It is a source of strength. Its is a source of power. The executive, the
legislature and the judiciary are created by the Constitution. Their sustenance id derived
from the Constitution. Their sustenance is derived from the Constitution. Its methods of
alteration are specified’’.

Therefore, where the Constitution is unlawfully suspended or abrogated, the three arms of
government cease to exist unless they are saved by the power which unlawfully suspended the
Constitution.

The provisions of the 1992 Constitutions are further classified as amendable and unamendable
provisions. A Constitutions may have some provisions which may be amended by parliament
alone and those provisions are referred to as enshrined provisions. Part of the constitution cannot
be amended by parliament without involving the citizenry in the form of a referendum. Such
provisions are called entrenched or rigid provisions. There may be part of the constitution which
cannot be amended, and it is referred to as unamended constitution. Article 289 and 291 of the
1992 Constitution provide the procedure for amendment of enshrined provisions in the
Constitution.

Article 299 of the Constitution provides that the transitional provisions override anything to the
contrary in the Constitution. The position of the law therefore is that section 37 overrides
anything in the Constitution which deals with amendment and it is an unwanted provision.
Section 37 of the transitional provisions cannot be amended and sections 34 and 35 of the same
section cannot be amended. Unamended provisions seek to provide indemnity for some people
who would have been prosecuted for numerous offences under the laws of the country if they are
not protected. It also seeks to appeal the people to forget their past events and forge ahead. The
main disadvantage is that it denies the citizenry of their sovereign rights to amend part of their
constitution. Furthermore, it encourages some people to illegally take over the administration of
a country through a coup d’état as they would get the opportunity to indemnify themselves when
leaving office.

Parliamentary Enactments
The term enactment refers in law to the whole or part of a legislation. The word "enactment"
does not mean the same thing as "Act." An "Act" means the whole Act, whereas a section or part
of a section in an Act may be an enactment. Acts of Parliament are passed by Parliament itself,
examples include the Minerals and Mining Law, 1986 (PNDCL 153), the Contract Act (Act 25),
1960, the Insurance Law, 1989 (PNDCL 227) the Banking Law, 1989 (PNDCL 225), the
Finance Lease Law, 1993 (PNDCL 331) and the Financial Institution (Non-Banking) Law, 1993
(PNDCL 328).

Technically, legislation is the formulation of law by the President in Parliament, thus the
President and Parliament are involved in creating it. The President’s role is limited to the
granting of assent. In other words, legislation refers to law passed or made or promulgated by the
law-making body or entity, such as Parliament. Legislation, which may also be termed statute is
a general term used to denote enactments of law-making organ of a democratic governmental
system. According to the constitution, legislation or enactments of Parliament form part of the
corpus of the law of Ghana. In Ghana legislation encapsulates Acts of Parliament; Statutory
Instruments; Orders; Rules and Regulations, bye-laws, and among others. Generally, there are
two kinds of legislation, namely parent or principal or organic legislation and subsidiary
legislation. The first kind of legislation includes Acts made by Parliament; whilst the other one is
made by delegated bodies like District Assemblies, Ministers of State, Government Ministries,
Departments and Agencies.

Purpose of Legislation

An Act may be passed to:

 Create new law

Acts of Parliament are enacted to create new laws for example, the Domestic Violence Act, 2007
(Act 732). This Act made it illegal for the first time to subject a spouse to any form of inhumane
treatment.

 To authorize taxation

An Appropriation Act is passed each year after the Minister of Finance has presented the
Government’s budget in Parliament. This Act will then authorize the levying of taxes. It is a
constitutional requirement that only Parliament can enact laws imposing taxation as stated
clearly in Article 174 of the 1992 Constitution of Ghana.

 Codify existing law

Codification is the process of putting all existing sources of law on a particular topic into one
statute. Example is the Companies Act, 1963 (Act 179) put all of the then existing law into a
statutory form.

 Consolidate existing statutes

Consolidation is the process of bringing together in a single statute all of the provisions on a
particular topic previously contained in several statutes. An example is the Labour Act, 2003
(Act 651)

Stages in the Parliamentary process

The Bill is laid in Parliament by a Minister on behalf of the appropriate Government Ministry,
Department and Agency (MDA), thereafter the Bill goes through the following stages in
Parliament before it is enacted into law;

 First Reading
 Reference Stage
  Report stage
 Second Reading
 Consideration stage
 Third Reading
 Presidential Assent

Delegated or Subordinate Legislation

It is not possible for Parliament to cope with the entire legislative demands placed upon it. One
reason is that it lacks time due to its slow procedure; another is that it does not always possess
the technical expertise necessary to create detailed rules in specialized fields of knowledge. A
further difficulty lies in anticipating in the legislation being enacted today, what might develop in
the future.

Parliament overcomes these inadequacies by delegating law-making power to subordinates.

These include organizations- local authorities are a prime example- as well as individuals most
notably the various ministers of state who head government’s ministries, departments and
agencies (MDAs). Delegated legislation is law made by some persons, or body to whom
Parliament has delegated its general law-making. In sum, delegated legislation comes into being
when Parliament confers on person or bodies, particularly ministers of state and heads of
governmental departments’ power to make regulations for specified purposes. Such regulations
have the same legal force as the Act under which there are made.

Types of delegated legislation

I. Rules and Regulations

A statute may authorize a minister or a government department to make a wide variety of rules
and regulations. These rules, orders and regulations are collectively known as Statutory
Instruments and they may come in the form of Constitutional Instrument (C.I), or Executive
Instrument (E.I) or a Legislative Instrument (L.I)
 II. By-laws

These are the means through which local authorities and other public bodies can make legally-
binding rules and may be made under such enabling legislation as the Local Government Act.
The difference between by-laws and other types of legislation is that by-laws have the force of
law within a geographical area of authority; that is, by-laws are local laws.

III. Professional Regulations

Governing particular occupations may be given the force of law under provisions delegating
authority to certain professional bodies. For example, the General Legal Council has been given
powers under the Legal Profession Act to make regulation for the conduct of lawyers in Ghana.

Orders, Rules or Regulations are delegated or subsidiary legislation enacted by persons or

authorities acting under powers conferred by Parliament. Delegated legislation is therefore law
made on behalf of Parliament. It consists of statutory instruments made by Government ministers
using powers delegated by Parliament and the bye-laws enacted by the various Assemblies in
Ghana.

Some advantages of delegated legislations are;

 Delegated legislation saves the time of Parliament, allowing Parliament to concentrate on

discussing matters of general policy.
 The use of delegated legislation allows Ministers to respond on ad hoc basis to particular
problems as and when they arise due to the ability to enact and change the rules quickly
without lengthy Parliamentary proceedings.
 In national emergency situations, it may sometimes be necessary for the Government to
act at short notice. For example, in 2003, the government declared a state of emergency
in certain parts of the Northern Region after the death of the Ya’ Na, Yakubu Andani.
 There is also access to a particular expertise. Given the highly specialized and extremely
technical nature of many of the regulations that are introduced through delegated
legislation, most MPs simply do not have sufficient expertise to give proper and effective
 considerations to such provisions. Those who are authorized to introduce delegated
legislation should have access to the external expertise required to make appropriate
regulations. In regard to by-laws, local knowledge should give rise to more appropriate
rules than general Acts of Parliament.

Disadvantages of Delegated legislation

 Law-making is taken out of the direct control of the elected representatives and is placed
in the hands of employees of government departments. This is in theory less democratic.
 Parliament does not have enough time to effectively supervise delegated legislations or
discuss the merits of the rules being created.
 A vast amount of law is created, statutory instruments out-numbering by far the number
of Acts of Parliament passed each year.

Control of Delegated Legislation

These potential shortcomings in the use of delegated legislation are, at least to a degree,
mitigated by the fact that specific controls have been established to oversee it.

 Judicial Control

If the delegated body such as a minister of state, government department or local authority, that
is, MMDAs exceeds its delegated power, its action would be held by the court to be ultra vires,
that is, acting beyond the powers of, and therefore be void.

 Parliamentary Control

All statutory instruments must be laid before Parliament, for example, the Constitution provides
that any order, rule or regulation made by a person or authority under a power conferred by this
Constitution or any other law shall;

i. Be laid before Parliament;

ii. Be published in the gazette on the day it is laid before Parliament; and
iii. Come into force at the expiration of twenty-one sitting days after being so laid
unless Parliament before the expiration of the twenty-one days, annuls the Orders,
 Rules or Regulations by the votes of not less than two-thirds of all members of
Parliament.

The Supreme Court has interpreted article 11(7) as meaning that where any subsidiary
legislation in the nature of a Statutory Instrument, that is, Constitutional Instrument (C.I) or a
Legislative Instrument (L.I) is laid before Parliament; Parliament cannot amend same even if the
instrument contains manifest errors. In such cases Parliament’s only power under the
Constitution is to annul the Instrument by a vote of two-thirds majority of all Members of
Parliament failing which the instrument shall become law on the expiration of twenty-one sitting
days of Parliament. Thus in Okane & Others v Electoral Commission & Attorney-General, the
plaintiffs complaint was that Parliament amended the Legislative Instrument, Local Government
(Creation of New District Electoral Areas Designation of Units) Instrument, 2010 (L.I 1983) by
adding four electoral areas to the electoral areas in Ledzokuku in the Ledzokuku-Krowor District
thereby increasing the total number of electoral areas to sixteen as against twelve as contained in
the original L.I. which was laid before Parliament. The Supreme Court unanimously held that a
subsidiary Legislation can only be amended by the initiators and that the only power Parliament
exercises over subsidiary legislation is to annul same by a majority vote.

Exiting Law

The existing law refers to written and unwritten laws of Ghana which existed immediately before
the promulgation of the Constitution. Examples of the existing law therefore include;

 Laws of the Gold Coast (1951 Rev);

 the 1952-57 Ordinances of the Gold Coast;
 1957-60 Acts of Ghana;
 1960-66 Acts of the First Republic;
 1966-69 Decrees of National Liberation Council;
 1969‒ 72 Acts of the Second Republic;
 the 1972‒ 79 Decrees of the National Redemption Council and the Supreme Military
Council;
 1979 Decrees of the AFRC;
  the 1979‒ 81 Acts of the Third Republic; and
 the Laws made by the PNDC since 31 December 1981, including enactments from the
colonial era till date, which have not been repealed are binding.

The phrase existing law is a term of art. It is used in the Constitution to signify one category of
the laws of Ghana. The Constitution states that the existing law comprises the written and
unwritten laws of Ghana as they existed immediately before the coming into force of the 1992
constitution. Additionally, any Act, Degree Law or Statutory Instrument issued or made before
that date, which was to come into force on or after that date. The crucial date here is thus 7
January 1993.

The existing law shall not be affected by the coming into force of this Constitution excerpt where
provisions of the 1992 Constitution expressly and impliedly repeal, or amend or alter same. The
Constitution also provides that the ‘existing law’ shall be construed with modifications,
adaptations, qualifications and excerptions necessary to bring it in conformity with the
provisions of the Constitution as per Article 11 (5).

The usage of the phrase ‘existing law’ within the framework of the 1992 Constitution may be
better appreciated with illustration. In the celebrated case of New Patriotic Party v The
Inspector General of Police, section 7 of the Public Order Decree, 1972 (NRCD 68), required
the police to grant permit to persons intending to embark on protest or demonstration, before the
protest or demonstration could take place. This provision was at variance with Article 21(1)(d)
of the 1992 Constitution which guarantees the freedom to take part in processions and
demonstrations. When the Decree was challenged by the NPP, after the Party had been denied
permit to embark on demonstration, the Supreme Court in a scintillating judgment ruled that the
provisions of the Decree requiring prior Police permit was inconsistent with the letter and spirit
of the Constitution and to the extent of that inconsistency, the Decree was null and void.

The Ghanaian Common Law

Article 11 (2) points to Ghanaian common law as another major source of law in Ghana. The
source of Ghanaian common law for the most part is English law. Ghanaian common law
comprises three species of law, the English common law, (which is a body of law that developed
through ―case law‖ or cases decided by judges); the Doctrines of Equity (which refer to the
body of rules that were developed by the Court of Chancery in the 15th century to administer
justice to parties aggrieved with common law remedies) and the rules of customary law including
those determined by the Superior Court of Judicature. Ghanaian customary law refers to the rules
of law, which by custom are applicable to particular communities in Ghana. By its nature
therefore customary law is not easily ascertainable. Customary laws, are however, largely
unwritten, and have to be discovered from reported decisions of the courts, and from a handful of
textbooks.

The term common law is used in two senses; a broader technical sense and a narrower sense. In
its broader technical sense, common law used in Constitution of the Republic of Ghana, 1992 to
mean;

The common law of Ghana shall comprise the rules of law known as the common law,
the rules generally known as the doctrines of equity and the rules of customary law
including determined by the Superior Court of Judicature.

In its narrower sense, common law simply means the body of rules which was originally
developed by the Royal courts of Common Pleas, Kings Bench and Exchequer in England, and
has since been developed further by courts which have taken over their jurisdiction.

THE HISTORICAL DEVELOPMENT OF THE DOCTRINE OF COMMON LAW

It has been accounted by authors like Simpson that the common law began as customary law
used in the King’s court (Curia Regis) when the court was settling disputes which were thought
to concern the monarch. The history can trace to AD 1066 when the Normans under William I
defeated the Anglo-Saxons in the Battle of Hastings leading to the gradual domination of the
whole of the British Isles in the following years. William, I set up a tax system to ensure
payments to the royal treasury. There was increasing intervention by the central royal
administration in civil and criminal law and in order to keep the peace, the King took exclusive
jurisdiction over all serious crimes; the fines and confiscations proving a significant new source
of income. This special jurisdiction developed in the 12 th and 13th Centuries into a general
jurisdiction of wide coverage leading to the development of the King’s Court, Court of Common
Pleas and Court of Exchequer. The King sent travelling justices or Chancellors into the provinces
with increasing frequency where they replaced the sheriffs and held in court in the name of the
King. When the justices went in circuits, they applied uniform laws and this unified law became
known as the common law.

THE DOCTRINE OF EQUITY

Nature of Equity

Equity may be explained as a body of rules or principles which form an appendage to the general
rules of law or a gloss upon them. Generally, rules are formulated to ensure the smooth running
of society. However, there are occasions when the general rules produce substantial unfairness.
When this occurs, justice requires an amendment of the rules or, if the rules cannot easily be
changed, a body of rules be made available to mitigate the severity of the existing rules. This
new body is referred to as equity and is distinguishable from the general body of law because it
appeared at a later stage of legal development. “Equity does not destroy the law or create it, but it
assists it”.

Although, equity intervenes to put right an injustice, it is not every injustice which can have an
equitable intervention. Thus, it is not possible to define equity solely in terms of natural justice. “

In sum, the main point of our discourse is this - the primary sources of Ghanaian law comprise
the Constitution, Parliamentary Enactments, Orders, Rules and Regulations, the Existing law,
and Ghanaian common law. The common law was built up over centuries, through the
application of judicial precedent. Equity developed rules of fairness, at the courts of chancery, to
deal with rigidities of the common law. The judiciary is required to interpret statutes made by the
legislature. To do this, judges may resort to the literal, golden or mischief rule. The following
rules apply – words should be given their literal meaning; words should be interpreted within
context; words should be interpreted according to the purpose of the statute, and the meaning to
be assigned general words should be limited to the type or class of things mentioned by specific
words.

References

1992 Constitution of Ghana

Rutherford, Leslie and Bone, Sheila, editors Osborn’s Concise Law Dictionary (8 th Ed., Sweet &
Maxwell, London 1993) 85.

Bimpong - Buta, SY ‘Sources of Law in Ghana.’ (1983 – 86) 15 RGL 129