“JUDICIAL PRECEDENT IS A DOCTRINE THAT WILL NEVER DIE IN A

LEGAL SYSTEM OF GHANA, AND THOSE WHO CRITICISE IT HAVE MADE

A FUNDAMENTAL ERROR, JUST AS THOSE WHO HAVE A MIND TO
CRITICISE IT” COMMENT.

One major feature of the Ghana Legal System is judicial precedent. There is a general view
that judicial precedent as a doctrine will continue to operate in Ghana forever. It is
therefore said that its critics have made or are making a fundamental mistake. This essay
first examines what judicial precedent as a doctrine is. The essay then defines the Ghana
Legal System and traces the origin and operation of the doctrine in Ghana. The importance
of judicial precedent and the criticisms that are usually levelled against it are evaluated to
determine the validity of the above assertion.

According to The Dictionary of The English Law, 1st edition, “Judicial Precedent is a
judgement or decision of a court of law cited as an authority for deciding a similar state of
affair in the same manner, or on the same principle, or by an analogy”. The Black”s Law
dictionary, 8th edition, also describes precedent as “The making of law by a court in
recognising and applying new rules while administering justice”. A doctrine, as defined is
The Shorter Oxford English dictionary, refers to “a body or system of principles, a theory;
a science or a department of knowledge” Flowing from the above definitions and for the
purposes of this essay, Judicial Precedent as a doctrine would be seen as a principle
whereby a judge must follow a decision that has been made by a higher court in a case with
similar facts.

Many writers express the idea of Judicial Precedent in the Latin stare decisis et non quietta
movere, (stare decisis) which literally means “ to adhere to what has already been decided;
and not to unsettle established things”. Even though some writers distinguish between stare
decisis and Judicial Precedent, in this essay the two shall be used interchangeably.

It must be pointed out that, Judicial Precedent revolves around the idea of ratio decedendi
of a case. A. L. Goodhart in an article Determining the Ratio Decedendi of a case which
appeared in “Essays in Jurisprudence and Common Law” defines ratio decedendi as “ the
material facts of a case plus the decision thereon”. Thus the rule of law upon which the
decision is founded is what is used to determine similar cases. This is what judges must
follow and the principle of following the ratio decedendi of previous cases to determine the
out come of similar cases is what is referred to as Judicial Precedent.

According to A.W.B.Simpson’s, An invitation to Law A legal system is “.the body of rules

in operation in a particular society at a given time, together with the institutions which go
with them”. In this sense, Ghana Legal System comprises the hierarchy of the court system
and the rules that govern their operation in Ghana. The Ghana Legal system is founded on
the English Common Law one cardinal feature of which is judicial precedent as opposed to
the Roman or the Civil law tradition, which is based on texts or codes. Like in many
common law countries, judicial precedent as a doctrine in the Ghana Legal System has its
origin in the English Common Law Tradition.

The long association of the country with Britain left in its trail a legal system built on the
model of the British system. Thus, today even though politically independent, the cardinal
features of the English legal system including the doctrine of judicial precedent remain.
For instance, in his article, Judicial Precedent in Ghana published in the volume 18 of the
Review of the Ghana Law Report, Justice Taylor, a retired Justice of the Supreme Court of
Ghana, observed that “Clearly, because we have inherited the English common law since
24th July 1874 and operated it even on 6th March, 1957, it would appear that at
independence, and no doubt thereafter, we were committed to the whole British tradition of
judicial precedent.

For a proper understanding of how judicial precedent operates in the Ghana legal System, it
is necessary to briefly look at the hierarchy of the court system in Ghana. This can be done
by dividing the court system into two: the superior courts and the lower courts. The
superior courts have at their apex the Supreme Court of Ghana. This is followed by the
Appeal Court and the High Court including the Regional Tribunals. The lower courts
comprise the circuit courts and the district courts. It should also be noted that there are
other bodies like the house of chiefs and military tribunals. Which have jurisdiction to try
certain cases.

In the regular courts, an appeal from a Circuit Court, if it is a civil case goes to the Court of
Appeal. For criminal matters, the case first goes to the High Court and then to the Court of
Appeal. From the District Courts, an appeal, whether civil or criminal goes to the High
Court before it goes to the Court of Appeal. The Supreme is the final Court and an appeal
lies from a judgment of the Court of Appeal to the Supreme Court as provided in Article
131 of the 1992 4th Republican Constitution of Ghana (the Constitution)

Today, as has been in the past, there is even a constitutional foundation for the operation of
judicial precedent in Ghana. Article 129 (3) of the constitution provides that “the Supreme
Court may, while considering its previous decisions as 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”. Further, article 136(5) of the
constitution stipulates, “Subject to clause (3) of article 129 of this constitution, the Court of
Appeal shall be bound by its own previous decisions; and all courts lower than the Court of
Appeal shall follow the decisions of the Court of Appeal on questions of law.

There are many instances where judicial precedent has been invoked to determine cases in
the Ghana. One of such instances is the application of one of the ratio decendi of Tuffour
V. Attorney General. The plaintiff in this case was a Ghanaian lecturer. The case itself
concerns a former chief justice of Ghana, Justice Apaloo. On the eve of the coming into
force of the 1979 Constitution of Ghana, Justice Apaloo was the chief Justice of Ghana.
The court system during that period ended with the Court of Appeal. The 1979 Constitution
added the Supreme Court. The 1979 Constitution also provided that anyone holding
equivalent position before the coming into force of the constitution shall be deemed to have
been appointed into that position. Sometime after the constitution, Justice Apaloo got a
letter from the then President purporting to appoint him into the office of the chief Justice.
He was made to go through vetting. In due course, he was rejected. He protested on the
grounds that he was already the Chief Justice. The plaintiff filed a writ against the Speaker
of Parliament and the Attorney General contending that the process that the Chief Justice
was made to go through was unconstitutional and therefore it was of no effect. He sought to
make the Speaker of Parliament at the time as first defendant. The Attorney General raised
preliminary objections, inter alia, as to the competency of the speaker as the 1st defendant.
In deciding on the competency of the Speaker, the Court of Appeal sitting as the Supreme
Court came to conclusion and succinctly stated, “The courts can call in question a
decision of parliament; but that the courts cannot seek to extend their writs into what
happens in Parliament”. This principle has been followed in number of cases including that
of the NPP V. The Attorney General where, the plaintiff, one of the political parties
sought a declaration to the effect that the celebration of 31st December as a public holiday
and with public funds was unconstitutional. In this case, an issue arose as to whether the
court has jurisdiction to examine the decision of parliament. The Court did not find it
difficult to conclude based on the precedent in the Tuffour,s case.

In a more recent case of involving the Representation of the People’s Amendment Bill
(ROPAB), where an injunction was sought to restraint Parliament on the passage of the
Bill, the Supreme Court had no difficulty in dismissing the case on the principle enunciated
in Tuffour’s case; that the courts, even though can call in question a decision of
parliament, has no power to determine how parliament should conduct its business.

It should be pointed out that, even though previous decisions of the higher courts is
normally binding on lower courts, where a decision is deemed to be unsound or undesirable
because of public policy , for example, the decision can be overruled. In Nye V. Nye an
issue of whether the Supreme Court has power of to enlarge the time within which an
appellant can bring an appeal after the permitted time has elapsed arose. The Court
answered in the affirmative. In a similar case of Loga and Davordzi, the decision was
however overruled by the Supreme Court by declaring that the decision in Nye V. Nye
was given per incuriam.

Flowing from the operations of judicial precedent as illustrated above, the importance of
the doctrine is not far fetched. As stated by Walker and Walker in The English Legal
System, 6th edition, the importance of judicial precedent is said to be legal certainty,
consistency, uniformity, stability, predictability and flexibility. For instance, a case brought
forward by litigant can be reasonably predicted if a previous case with similar material
facts had a particular outcome. If a legal position raised has been solved before the judge is
bound to adopt that solution. Precision is achieved by the sheer volume of cases containing
solutions to innumerable factual situations. Also, the possibility that a decision which
appears unsound or contradicts a statute can be overruled made the doctrine of judicial
precedent flexible.

In spite of these importance of the doctrine, there are a number of criticisms of the doctrine.
Some has criticised judicial precedent as being too rigid a rule. The main contention here is
that where a court is bound to follow a decision of a superior court, the tendency that
unsound decision may be followed is great. To this end, American Jurist Wigmore, in his
book, Problems of law, stated “ Stare decisis as an absolute dogma has seemed to me an
unreal fetish. The French civil code expressly repudiates it …”.

It may be argued that the judicial mind is highly conservative for, as stated in Justice
Taylors’s article, even though the decision of Re- Akoto was generally accepted to be
unpopular, Justice Coussey stil seemed bound to follow that decision when he declared in
The republic V. Inspector General of Police, Ex parte Damanka “I am bound by thre
decision in of the Ghana Supreme Court in Re Akoto which in 1961 followed Liversidge
V. Anderson… I wish I could accede to the request to depart from the said decision. But
being a court just lower to the Supreme Court I will go along with them”
 A closer look at the doctrine of judicial precedent however may suggest that perhaps this
criticism is unfounded. This is because; judicial precedent does not advocate that where
principles are blatantly unsound the judge should still follow it. The general practice has
been that where a principle of law is against public policy or is unsound on other grounds,
the court will refuse to follow it on those grounds.

Another criticism of the doctrine is that it gives power to judges to make laws. It is often
argued that through the doctrine of judicial precedent, judges usurp the traditional powers
of the legislature. This assertion is also defective in a sense that Judge-made laws are to
supplement statute laws and where a statute and a precedent come into conflict the rule is
that the statute law prevails. In effect, judicial precedent rather helps fill in the gap where
statute law does not cover. When it comes to the interpretation of statutes it could be
argued that the courts just interpret what has been put down by the law makers. This helps
to give biting teeth to the law.

In considering the validity of judicial precedent and its perpetual nature in the Ghana Legal
system, it seems that so long as its operation is not too rigidly followed, the doctrine will
continue to remain. This notion is strengthened by the legal footing that the doctrine has in
the constitution of Ghana. Also, the provision that where necessary, the Supreme Court can
depart from its previous decision will ensure that at least unsound decisions can be
corrected. Without this, the courts will still be bound by old outdated decisions and make
the whole doctrine undesirable in a modern society. As the amount of case law within the
Ghana Legal system continues to rise, the significance of judicial precedent will increase as
it will cover almost every legal situation.

In the light of the above observation, one may not be far from right to suggest that judicial
precedent as a doctrine will continue to remain in the Ghana Legal System. Also, even
thought there are some truth in the criticism of judicial precedent, these criticisms do not
render the doctrine undesirable.