QUESTION 9 OF THE STUDY MANUAL

Area of Law: interpretation of Statutes, Specifically Ouster Clauses with reference to

Cause or Matter affecting Chieftaincy

Issues

1. whether or not the panel of customary arbitrators headed by a Divisional Chief

can adjudicate on causes or matters affecting Chieftaincy.
2. Whether or not Certiorari would lie against the high court at the Supreme Court
for want of Jurisdiction

Applicable Law:

An Ouster clause is a clause which purports to take away the jurisdiction of the courts,
either totally or partially, or which purports to postpone the courts’ jurisdiction for a
certain period. It may relate to matters of fact or law or both.

There are three main types of ouster clauses; These are statutory, constitutional and
contractual or documentary. Transitional ouster clauses may also exist under the
constitution, statues or contracts.

Ouster clauses in statutes are provisions in statues which expressly or by necessary

implication prohibit or restrain the ordinary courts from dealing with certain matters or
from exercising any supervisory or review powers over other lower bodies or tribunals.

Statutory ouster clauses can be classified into partial and total ouster clauses.

Partial ouster clauses are ouster clause which simply confers exclusive jurisdiction in
specific matters on an inferior body or tribunal but does not take away the jurisdiction
of the ordinary courts to review decisions of these bodies by issue of prerogative orders.

Complete ouster clauses on the other hand confer exclusive jurisdiction on an inferior
body in respect of a particular matter and in addition purports to completely bar the
ordinary superior courts from reviewing the decision or judgment in any way.

The Supreme Court in the case of Adofo and others v Attorney-General and Another
[2003-2005] 1 GLR 239 stated that a statute which provides for a total ouster of the
jurisdiction of the courts in relation to rights which would otherwise be justiciable is void.

Article 125 of the 1992 Constitution of the Republic of Ghana provides that the Judicial
power of Ghana is vested in the Judiciary and accordingly, neither the President,
Parliament nor any organ or agency of the President or Parliament shall have or be
given judicial power.

The English cases of LEE V SHOWMEN’S GUILD OF GREAT BRITAIN and BAKER V JONES
are instructive when discussing ouster clauses. Both cases are to the effect that the
right to resort to the courts for redress cannot be completely ousted by one party or
even both parties to an agreement.

The position in Ghana is no different. Thus, in the case of ESSILFIE V TETTEH, the Court of
Appeal stated that, even though exclusionary clauses were part of the parties contract
they were nevertheless subject to the control of the courts because the right of an
individual to resort to the law courts for adjudication of his dispute was so fundamental
in our social structure and essential in ensuring peace and stability that, public policy
would not permit a complete ouster of the jurisdiction of the courts.

Articles 132 and 141 of the 1992 Constitution confers supervisory powers on the Supreme
court and High Court over all the lower courts and other lower adjudicating bodies
such as the Circuit Court, the District court, the Judicial Committees of the Traditional
Councils, the Judicial Committee of the Regional House of Chiefs, the Judicial
Committee of the national House of Chiefs and all bodies with quasi-judicial functions,
administrative bodies and administrative officials.

Sections 5 and 16 of the Courts Act, 1993 (Act 459) provides that the Supreme Court
and the High Court may in the exercise of their supervisory jurisdiction, issue orders and
directions including orders in the nature of habeas corpus, certiorari, mandamus,
prohibition and quo warranto for the purpose of enforcing or securing the enforcement
of its supervisory power.

Where both the High Court and the Supreme Court have concurrent supervisory
jurisdiction over lower adjudicating body and the lower court, paragraph 6 of the
Practice Direction [1981] GLR 1 provides that the jurisdiction of the High Court shall first
be invoked.

In the case of Tularley v Abaidoo [1962] 1 GL 411, the Supreme Court held that the law
is settled that where an enactment has prescribed a special procedure by which
something is to be done, it is that procedure alone that is to be followed.

The position was further stated by the Supreme Court in the case of Boyefio v NTHC
Properties Ltd 1996-97] SCGLR 531, at 546.

The Chieftaincy Act in Section 76 defines a cause or matter affecting chieftaincy as any
cause, matter, question or dispute relating to the following;

(a) nomination, election, selection, installation or deposition of a person as a chief or

the claim of a person to be nominated, elected, selected, installed as a chief,

(b) the destoolment or abdication of a Chief;

(c) the right of any person to take part in the nomination, election, selection,
appointment or installation of any person as a Chief or in the deposition of any Chief;

(d) the recovery or delivery of stool property in connection with any such nomination,
election, appointment, installation, deposition or abdication;
(e) the constitutional relations under customary law between Chiefs,

In Re Osu Stool; Ako Nortei II (Mankrado of Osu) Nortey Owuo III (Intervener) [2005-2006]
SCGLR 628. The Supreme Court said:

The mere incidence of an issue relating to chieftaincy in proceedings in the ordinary

courts does not mean it constitute a cause or matter affecting chieftaincy. Whether it is
so or not, would depend on whether on the facts of a particular case, a genuine cause
or matter affecting chieftaincy had arisen.

In the case of Republic v High Court, Koforidua, Ex parte Bediako II [1998-99] SCGLR 91.
The Supreme Court speaking through Sophia Akuffo JSC as she then was, held thus:

‘To my mind, the mere fact that the questions of whether or not a person is a chief raise
its head during an application for certiorari before the High Court does not necessarily
constitute the matter as the one affecting chieftaincy for the purposes of Section 57 of
the Courts Act, 1993. …… In order to constitute a matter as one affecting chieftaincy, it
must, in my view, be the determination of which, unless overturned on appeal, would
settle once and for all, a chieftaincy matter or dispute’.

Section 39[d] of the Courts Act, 1993 (Act 450) provides that the National House of
Chiefs, Regional Houses of Chiefs and every Traditional Council, has the jurisdiction of
any such House or Council to adjudicate over any cause or matter affecting
chieftaincy.

Section 29(1) and (2) of the Chieftaincy Act, 2008 (Act 759) provides that:

(1) Subject to this Act, a Traditional Council has exclusive jurisdiction to hear and
determine a cause or matter affecting chieftaincy which arises within its area, not
being one to which the Asantehene or a paramount chief is a party.

(2) The jurisdiction of a Traditional Council shall be exercised by a Judicial Committee

comprising three or five members appointed by the Council from their members.

Sect 57 of Act 450 provides that, Subject to the Constitution, the Court of Appeal, the
High Court, a Regional Tribunal, a Circuit Court and a District Court shall not entertain
either at first instance or on appeal a cause or matter affecting Chieftaincy.

Section 43 of Act 759 provides that the High Court has supervisory jurisdiction over an
adjudicating chieftaincy body.

In enforcing its supervisory powers, the High Court may grant orders such as a Certiorari
to quash the decision of the adjudicating body. A Certiorari will lie where the body to
be supervised acted under any of the following;

1. Without jurisdiction or in excess of its jurisdiction

2. Breached natural justice either by failing to hear both sides or being a judge in
one’s own cause
 3. Wednesbury Principle – that is where the decision is illegal, irrational or there was
procedural impropriety

Application

Applying the law to the facts in resolving issues:

On issue one, section 15(1) of the Chieftaincy Act, which is similar to Section 29(1) of the
Chieftaincy Act, 2008 (ACT 759) gave exclusive jurisdiction to the Judicial Committee of
Traditional Council to hear and determine any cause or matter affecting Chieftaincy
which arises within its area. Per Section 76(b) of Act 759 destoolment or deposition of a
Chief is matter or a cause affecting Chieftaincy. The cases of Tularley v Abaidoo and
Boyefio v NTHC Properties Ltd, Supra are clear to the effect that, where an enactment
has prescribed a special procedure by which something is to be done, it is that
procedure alone that is to be followed. The destoolment charges against Nana Mosi II,
should have been brought before the Judicial committee of the Atwima Traditional
Area for hearing. The panel of arbitrators headed by a Divisional chief lacks jurisdiction
and therefore, the high court has every right in exercising its supervisory powers in
quashing the decision by the panel.

On issue two, although sections 39 and 57 of Act 450 oust the jurisdiction of the high
court in matters or causes affecting Chieftaincy, Article 141 of the 1992 Constitution
confers supervisory powers on the high court over all the lower courts and other lower
adjudicating bodies. In addition, Section 43 of the Chieftaincy Act provides that the
High Court has supervisory jurisdiction over an adjudicating chieftaincy body. The issue
before the high was whether or not the panel of arbitrators headed by a Divisional
Chief have jurisdiction in adjudicating on the matter which it did not and the high court
had to exercise its supervisory powers in quashing the decision. The Supreme Court was
clear in In Re Osu Stool; Ako Nortei II (Mankrado of Osu) Nortey Owuo III (Intervener)
and Republic v High Court, Koforidua, Ex parte Bediako II [1998-99] SCGLR 91, Supra,
that the mere incidence of an issue relating to chieftaincy in proceedings in the
ordinary courts does not mean it constitute a cause or matter affecting chieftaincy.
Certiorari would therefore not lie against, the high court, since it acted within
jurisdiction.

Conclusion

In conclusion the panel of arbitrators headed by a Divisional Chief had no jurisdiction to

hear the destoolment offences preferred against Nana Mosi II and the high court was
right in quashing the decision as a nullity and certiorari would not lie against the high
court at the Supreme court since acted within Jurisdiction. The instant application
should therefore be dismissed.

QUESTION 10 OF THE COURSE MANUAL

AREA OF LAW
The area of law is Constitutional interpretation, particularly the Justiciability of the
Directive Principles of State Policy.

Issues

1. Whether or not the matter is one referable to the Supreme Court by the High Court.
2. Whether or not the Directive principles of state policy provided for in Chapter 6 of
the 1992 Constitution are justiciable?

Rules Applicable and General Discussion of the Law

In Ghana, the Constitution is the supreme law of the land. It is made supreme by virtue of
Article 1(2) which says “This Constitution shall be the supreme law of Ghana and any
other law found to be inconsistent with any provision of this Constitution shall, to the
extent of the inconsistency, be void. Further, the constitution 1992 under Article 2(1)
enjoins any person who alleges that an enactment or anything contained in or done
under the authority of that or any other enactment or any act or omission of any person
is inconsistent with, or in contravention of a provision of the constitution to bring an action
to the Supreme Court for a declaration to that effect. The “person” referred to under
Article 2 is limited to only citizens of Ghana. This does not however detract from the right
of non-citizens to seek redress in the high court for any infringement of their personal
rights. Also “a person” need not only be a natural Ghanaian citizen but an artificial
Ghanaian person as was decided in NPP v. Attorney General (CIBA case) (1996-1997)
SCGLR 729.

Article 130(1) provides for the enforcement or interpretation jurisdiction of the supreme
court. It provides that the Supreme Court subject to the jurisdiction of the High Court in
the enforcement of the Fundamental Human Rights shall have exclusive original
jurisdiction in

a) All matters relating to the enforcement or interpretation of this constitution; and

b) All matters arising as to whether an enactment was made in excess of the powers
conferred on parliament or any other authority or person by law or under this
constitution.

Article 130(2) provides to the effect that where an issue that relates to a matter or
question referred to in clause (1) arises in any proceedings in a court other than the
Supreme Court, that court shall stay the proceedings and refer the question of law
involved to the Supreme Court for determination and the Court in which the question
arose shall dispose of the case in accordance with the decision of the Supreme Court.

We are told from the facts of the question that Counsel for the National Gaming Authority
argued that the matters raised by the National Gamers Association border on the
interpretation of the Constitution, it is therefore prudent to determine when one can
successfully invoke the enforcement or interpretation jurisdiction of the Supreme Court
under Articles 2 and 130 of the 1992 Constitution. The case of Republic v. Special tribunal;
Ex Parte Akorsah [1980] GLR 592 provides clear guidelines for when the said jurisdiction of
the Supreme Court can be properly invoked. The guidelines state that an issue of
interpretation arises, firstly, in the situation where the words of the provision of the
constitution were imprecise, unclear or ambiguous. Secondly, where the parties to the
action have put rival meanings to the words or provision of the constitution; thirdly where
there was a conflict in the meaning and effect of two or more articles of the constitution
and a question was raised as to which provision should prevail; and, finally where on the
face of the provisions, there was a conflict between the operation of institutions set up
under the constitution. In the case of Republic v High Court, General Jurisdiction Ex Parte
Zanetor Rawlings [2015-2016] 1SCGLR 21, the majority speaking through Atuguba JSC
quoted with approval the dictum in the case of Republic v. High Court; Ex Parte CHRAJ
(Richard Anane Interested Party) where the Supreme Court in that case held that a lower
court ought not readily assume that a constitutional provision is plain and unambiguous.
The Supreme Court stated that the tide against ready referral for interpretation as
expressed in the cases of Maikankan, and Ex Parte Akosah had changed. Thus, the
principle and guidelines in the Maikankan, and Ex Parte Akosah cases are not cast in
stone.

The Constitution is the Supreme law of the land. Sowah JSC in the case of Tuffour v
Attorney General [1980] GLR 637 in describing the constitution said, “A written
Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a
people. The Constitution has its letter of the law. Equally, the Constitution has its spirit… A
broad and liberal spirit is required for its interpretation. It does not admit of a narrow
interpretation. A doctrinaire approach to interpretation would not do. We must take
account of its principles and bring that consideration to bear, in bringing it into conformity
with the needs of the time.”

The Supreme Court in interpreting the constitution adopts the purposive approach to
interpretation. The purposive approach to interpretation is one which takes account of
the words in a constitutional provision according to their ordinary meaning as well as the
context with which they are used. The purposive approach was first adopted in the
English case of Pepper (Inspector of Taxes) v. Hart [1993] 1All ER 42 and has been of wide
application since then.

The Memorandum to the Interpretation Act, 2009 (Act 792) also endorses the purposive
approach to interpretation of the constitution and encourages judges to interpret the
constitution in a broad and liberal manner. It further posits that the constitution should be
interpreted in a way that promotes the rule of law and good governance, advances
human rights and fundamental freedoms, permits the creative development of the
provisions of the constitution and the laws of Ghana and lastly in a manner that avoids
technicalities which defeat the purpose of the constitution and the ordinary law of the
land.

In order to resolve this controversy of whether or not the Directive Principles of State Policy
provided in Chapter 6 of the Constitution are justiciable, we can rely on the decisions of
the Supreme Court to bring finality to all outstanding issues. In the case of New Patriotic
Party v. Attorney General (31st December case), the Court held that the Directive
Principles of State Policy contained in the Constitution are justiciable. The court assigned
three (3) reasons as to why it is justiciable. The reasons are as follows;

1. The constitution 1992 as a whole was a justiciable document and accordingly, if

any part was non justiciable, the constitution itself had to indicate it. But no
provision in the constitution had indicated that Chapter 6 was not justiciable. Yet,
the evidence to establish the non-justiciability of the principles had to be internal
to the Constitution otherwise it would be in conflict with it and thus be void and
inadmissible…
2. Articles 1(2) and 2(1) of the constitution 1992 which rendered any law, enactment
or anything done under its authority, any act or omission of any person inconsistent
with any provision or a provision of the Constitution null and void and empowered
the Supreme Court so to declare, did not express any exception in favour of
chapter 6; and
3. The provision in Article 34(1) of the Constitution that the Directive Principles should
guide the judiciary in applying or interpreting” the constitution obliged the
Supreme Court to apply the directive principles to assist or facilitate the
performance of a citizen’s duty or the enforcement of his rights under the
constitution.

A contrary opinion as to the justiciability of the Directive Principles was expressed by the
Supreme Court in the case of New Patriotic Party v Attorney General (CIBA Case). The
majority of the supreme court held that the directive principles were not of and by
themselves legally enforceable by the courts but they provide goals for legislative
programs and further serve as a guide for judicial interpretation. According to the
supreme court, for any of the directive principles to be justiciable, it must be specifically
provided in other parts of the constitution as a substantive article. In short, the ratio in the
CIBA Case is that the Directive Principles are made up of justiciable and non-justiciable
provisions and those without substantive articles in the constitutions are not justiciable.

It must be noted that the supreme court in the CIBA case did not expressly depart from
its decision in the 31st December case. Both positions were good laws and a person could
choose which of the decisions he would like to follow when it comes to the few provisions
which were said to be non-justiciable in the CIBA case. However, in the Ghana Lotto
Operators Association and Others v National Lottery Authority case, the Supreme Court
departed from its decision in the CIBA case. In that case which is on all fours with the facts
of the question, the Court held that in Ghana, the Directive Principles are presumptively
justiciable. Also, the Directive Principles do not constitute a mixed bag as expressed in
the CIBA case. They are presumptively justiciable in that whenever a condition
precedent under any of them is fulfilled and a suit is brought, the court may decide
whether that provision has become justiciable or not.

ANALYSIS
From the facts of the question, it is the claim of the National Gamers Association that the
creation of the National Gaming Authority to take over and monopolize the operation of
lotto business in Ghana infringes the “economic objectives” of the Directive Principles of
State Policy of the Constitution 1992 and therefore null and void, and a declaration that
the provisions of Act 9000 are inconsistent with the Constitution 1992’s injunction to the
state for the protection of individual freedom and right to property. Whilst one party is
claiming that the said matters raised border on the interpretation of the constitution and
should be submitted to the Supreme Court, the other party is claiming that the issues are
well within the competence of the High Court to deal with. Clearly rival meanings are
being given to different provisions of the constitution and this is rightly within the grounds
espoused in Ex Parte Akorsah for a successful invocation of the enforcement or
interpretation jurisdiction of the 1992 constitution. Even if this is contested, the Court in the
case of Ex Parte Zanetor Rawlings admonished judges from holding that no constitutional
interpretive issue arises for determination by the Supreme Court. Thus, there is ground for
the reference of the matter as to whether Act 9000 is inconsistent with the economic
objectives contained in article 36, Chapter 6 of the Constitution, 1992to the Supreme
Court by the High Court for determination.

Now, as to whether the said economic objectives, as contained in article 36 of Chapter

6 of the Constitution 1992 is justiciable. From the discussion above, the current position of
the law in Ghana is that the directive principles of state policy are presumptively
justiciable in that whenever a condition precedent is fulfilled and the suit is brought, the
Court can determine whether they are justiciable or not. Being presumptively justiciable,
the burden is on the other party to establish that it is not.

The matter involves a determination as to whether Act 9000 is inconsistent with the
economic objectives contained in Chapter 6 of the Constitution, 1992. The Supreme
Court is empowered to declare laws that are inconsistent with the constitution as
unconstitutional. The Supreme Court may so declare, in this matter, where it is of the
opinion that the condition precedent of the economic objectives have been met, it
would interpret the provisions of Act 9000 in light of the economic objectives in Chapter
6 to determine the constitutionality or otherwise of the law.

Conclusion

The matter before the High Court borders on constitutional interpretation. The Supreme
Court has exclusive original jurisdiction in such matters as provided under Article 130(1).
The matter therefore has to be properly referred to the Supreme Court as provided under
Article 130(2).

The economic objectives as contained in chapter 6 of the Constitution is presumptively

justiciable as held in the Ghana Lotto Operators case. It is for opposing counsel, Counsel
for the Applicants to satisfy the Court otherwise or rebut the presumption of justiciability.

PART II (MAIN CAMPUS GROUP A)

QUESTION 4:

The Paramount Chief of Sogbe Traditional Council in the North East Region by name Naa
Sogbe has decided to destool his divisional chief, Naa Awampa for having been
charged with the offence of defilement and having been arraigned before the Circuit
Court.

The Paramount Chief, Naa Sogbe IV, constituted the Sogbe Traditional Council made up
of eleven divisional chiefs and eighty other chiefs in the Traditional Council to decide on
the destoolment charge levelled against Naa Awampa by the Paramount Chief and the
Queen Mother.

Naa Awampa was given a date and time to appear before the Traditional Council but
refused to do so on the grounds that the Paramount Chief and the Paramount Queen
Mother, who had initiated the destoolment proceedings was to preside over the trial.

On the return date, Paramount Chief and Paramount Queen Mother together with all
the chiefs present decided the matter and declared Naa Awampa destooled.

Awuni Awampa, cousin of Naa Awampa was mandated by the Traditional Council to
recover all stool properties in the custody of Naa Awampa as he has been validly
destooled. Naa Awampa refused to surrender the stool properties including the stool
regalia and clothing belonging to the stool on grounds that he remains the chief. A
charge of stealing was, therefore, preferred against him before the High Court, Nalelugu.

Naa Awampa has come to your chambers and you are to advise him with respect to his
destoolment and the charge brought against him before the High Court. Offer legal
advice that would resolve all matters in controversy.

ANSWER:
The area of law is statutory interpretation in relation to ouster clauses with focus on the
original and supervisory jurisdictions of the High Court in a cause or matter affecting
chieftaincy.

The issues are:

i. Whether or not a destoolment of Naa Awampa constitute a cause or matter

affecting chieftaincy.
ii. Whether or not the Traditional Council was properly constituted and had the
jurisdiction to destool Naa Awampa.
iii. Whether or not the High Court can exercise original and supervisory jurisdiction
over the destoolment of Naa Awampa by the Traditional Council in a cause or
matter affecting chieftaincy and where there is a breach of natural justice.
iv. Whether or not the High Court can exercise jurisdiction over a cause or matter
affecting chieftaincy in relation to stool properties and a charge of stealing
stool properties including stool regalia and clothing.

The relevant legislations and case laws include the 1992 Constitution of the Republic of
Ghana, the Chieftaincy Act, 2008 (Act 759), the Courts Act, 1993 (Act 459), Republic v
High Court, Denu; Ex Parte Avadali IV [1993-94] 1GLR 561, In Re Osu Stool; Ako Nortei II
(Mankralo of Osu) Nortey Owuo III (Intervener) [2005-2006] SCGLR 628, Republic v High
Court, Koforidua, Ex Parte Boateng II [1998-99] SCGLR 91.

Article 277 of the 1992 Constitution of Ghana defines a chief as a person, who, hailing
from the appropriate family and lineage, has been validly nominated, elected and
selected and enstooled, enskinned or installed as a chief or queen mother in
accordance with the relevant customary law and usage.

A cause or matter affecting chieftaincy is defined by the Section 76 of the Chieftaincy

Act, 2008 (Act 759) as follows: “Cause or matter affecting chieftaincy” means a cause,
matter, question or dispute relating to any of the following:

a. The nomination, election, selection or installation of a person as a chief or the

claim of a person to be nominated, elected, selected or installed as a chief.

b. The deposition or abdication of a chief.

c. The right of a person to take part in the nomination, election, selection or
installation of a person as a chief or in the deposition of a chief.

d. The recovery or delivery of a stool property in connection with the nomination,

election, selection, installation, deposition or abdication of a chief; and

e. The constitutional relations under customary law between chiefs.

The Judicial Committees of the Traditional Councils constituted by three (3) or five (5)
chiefs who can perform statutory duties of the Traditional Councils are empowered by
the Chieftaincy Act, 2008 (Act 759) to determine cause or matter affecting chieftaincy
where the cause or matter does not involve the Paramount Chief of the Traditional
Councils.

The decisions of the Judicial Committees of the Traditional Councils are appealable at
the Judicial Committees of the Regional Houses of Chiefs constituted by three (3) chiefs.
A cause or matter involving the Paramount Chiefs of Traditional Councils may be
determined by the Judicial Committees of the Regional Houses of Chiefs. Where a cause
or matter affecting chieftaincy commences from the Judicial Committees of the
Traditional Councils, a person aggrieved by the determination of the Judicial
Committees may appeal to the Judicial Committee of the Regional Houses of Chiefs and
may appeal to the Judicial Committee of the National House of Chiefs with further
appeal to the Supreme Court with the leave of the Judicial Committee of the National
House of Chiefs, and where such a leave is refused, with the leave of the Supreme Court
to the Supreme Court as per Article 131 (4) of the 1992 Constitution.

The section 57 of the Courts Act, 1993 (Act 459) has ousted the original and appellate
jurisdictions of a District Court, a Circuit Court, a Regional Tribunal, the High Court and the
Court of Appeal in causes or matters affecting chieftaincy. The Section 57 of the Act 459
provides thus: subject to the Constitution, the Court of Appeal, the High Court, a Regional
Tribunal, a Circuit Court and a District Court shall not entertain at first instance or on
appeal a cause or matter affecting chieftaincy. The Supreme Court held in the case of
the Republic v High Court, Denu, Ex Parte Avadali IV [1993-94] 1 GLR 561 that the
jurisdiction of the High Court had been ousted by the section 57 of Act 459.
However, the section 57 of the Act 459 does not limit the supervisory jurisdiction of the
High Court in causes or matters affecting chieftaincy, the Supreme Court in the case of
In Re Osu Stool; Ako Nortei II (Mankralo of Osu) Nortey Owuo III (Intervener) [2005-2006]
SCGLR 628 held that the mere incidence of an issue relating to chieftaincy in proceedings
in the ordinary courts did not constitute a cause or matter affecting chieftaincy. Whether
it is so or not, would depend on whether on the facts of a particular case, genuine cause
or matter affecting chieftaincy had arisen. The Article 141 of the 1992 Constitution makes
it clearly to the effect that the supervisory jurisdiction of the High Court cannot be ousted
by any law or statute or the parties except where that provision is in the Constitution. Any
enactment which seeks to oust the supervisory jurisdiction of the High Court will be void
for being inconsistent with the Constitution, which is the supreme law of the land.

The High Court is ousted from hearing or determining any cause or matter affecting
chieftaincy as a court of first instance or within its original jurisdiction but the law does not
oust the supervisory jurisdiction of the High Court over the Judicial Committees of the
Traditional Councils, Judicial Committees of the Regional Houses of Chiefs and the
Judicial Committee of the National House of Chiefs.

The Judicial Committee of the Traditional Councils have exclusive jurisdiction in causes or
matters affecting chieftaincy but the decision of the Judicial Committee of the National
House of Chiefs are appealable to the Supreme Court. The final arbiter in causes or
matters affecting chieftaincy is, therefore, the Supreme Court.

Article 140 (1) and 141 of the 1992 Constitution gives the High Court its original and
supervisory jurisdiction respectively in all matters and in particular, in civil and criminal
matters and such original, appellate and other jurisdiction as may be conferred on it by
the 1992 Constitution or any other law and the supervisory jurisdiction is over all lower
courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction,
issue orders and directions for the purpose of enforcing or securing the enforcement of
its supervisory powers. These supervisory powers of the High Court includes the issue of
orders and directions in the nature of certiorari, mandamus, prohibition and quo
warranto.
Parliament by article 126 can establish only lower court and therefore lacks the capacity
to establish a superior court. The High Court’s jurisdiction to supervise all lower or tribunals
established by parliament is an inherent power vested in the High Court and cannot be
ousted by any law. This inherent power vested in the High Court has been reaffirmed by
article 141 of the Constitution. The High Court therefore supervises the Judicial
Committees of the chieftaincy tribunals even though the decision of the Judicial
Committee of the National House of Chiefs is appealable to the Supreme Court.

Parliament by statute ousts the jurisdiction of some of the courts but cannot oust the
appellate jurisdiction of the Supreme Court. Section 57 of the Courts Act has ousted the
original and appellate jurisdiction of all the traditional courts apart from the appellate
jurisdiction of the Supreme Court in cause or matter affecting chieftaincy. Parliament
cannot oust the supervisory jurisdiction of the High Court and the Supreme Court in any
matter. Apart from “causes or matters” affecting chieftaincy, the court’s jurisdiction is not
ousted in other chieftaincy related issues. The High Court has the inherent jurisdiction to
review the judicial decision of lower courts and adjudicating authorities established by
Parliament.

The grounds for judicial review depends on the particular relief the applicant is seeking.
The grounds for judicial review in the nature of certiorari and prohibition include a court
or tribunal or anybody exercising judicial function and

a. acts ultra vires to its powers or excess of jurisdiction;

b. commits a breach of the rules of natural justice and which includes failing to give
a person a hearing, that is breach of the audi alteram partem rule, or being a
judge in one’s own cause, that is nemo judex in causa sua rule;
c. lacks jurisdiction;
d. commits a patent error on the face of the records; and
e. breach of the Wednesbury Principle, that is an administrative action or decision
would be quashed on grounds that it was illegal, irrational or procedural
impropriety. Both written and oral decisions could be quashed.

In addition to the observance of the above conditions by administrative authorities

and the courts, a person charged with a criminal offence such as defilement before
a court shall be presumed to be innocent until he is proved or has pleaded guilty
under the Article 19 (2)(c) of the 1992 Constitution. Consequently, a decision based
on a mere criminal charge before a Circuit Court without proof beyond a reasonable
doubt and conviction by such a court of competent jurisdiction would be prejudicial
and leads to miscarriage of justice and abuse of the fundamental human rights of the
accused person arraigned before the court.

The Chieftaincy Act, 2008 (Act 759) is the enactment on chieftaincy and does not
vest final judicial power in causes or matters affecting chieftaincy in the Judicial
Committees of the Houses of Chiefs, even though they exercise some judicial
responsibilities or functions.

In applying the above principles to the case under consideration, the Paramount
Chief of Sogbe Traditional Council in the North East Region by name Naa Sogbe
decision to destool his divisional chief, Naa Awampa for having been charged with
the offence of defilement and having been arraigned before the Circuit Court is a
cause or matter affecting chieftaincy and therefore the composition of the Judicial
Committee of the Traditional Council for the determination of a cause or matter
affecting chieftaincy must be properly constituted.

It is the Judicial Committee of the Traditional Council of Sogbe composed of three (3)
or five (5) chiefs of the Traditional Council who can perform statutory judicial functions
that may determine a cause or matter affecting chieftaincy in relation to a divisional
chief destoolment. Consequently, the Traditional Council made up of eleven
divisional chiefs and eighty other chiefs in the Traditional Council to decide on the
destoolment charge levelled against Naa Awampa by the Paramount Chief and the
Queen Mother is a nullity and breach of the Wednesbury Principle on the grounds
that it was illegal, irrational or procedural impropriety. Therefore, the Traditional
Council was not properly constituted and lacks the jurisdiction to destool the divisional
chief. The Traditional Council’s decision resulted in a breach of procedure and hence,
the High Court may quash such a decision of the Traditional Council since due
process and proper composition of the Judicial Committee were not observed.
On the third issue of whether or not the High Court can exercise original and
supervisory jurisdiction over the destoolment of Naa Awampa by the Traditional
Council in a cause or matter affecting chieftaincy and where there is a breach of
natural justice; the original jurisdiction of the High Court is ousted in a cause or matter
affecting chieftaincy per section 57 of the Courts Act, 1993 (Act 459). However, the
High Court has an inherent supervisory jurisdiction and a constitutional supervisory
jurisdiction conferred on the High Court per Article 141 to quash any decision of a
lower court or adjudicating authority by direction or order in the nature of certiorari
or prohibition where the adjudicating authority act ultra vires or commits a breach of
the rules of natural justice which includes failing to give a person a hearing or being
a judge in one’s own cause and in this circumstance where the Paramount Chief and
Queen mother of Sogbe Traditional Council were among those who took part in the
decision to destool the divisional chief, Naa Awampa. The Section 57 of Act 459 does
not limit the supervisory jurisdiction of the High Court in causes or matters affecting
chieftaincy.

Furthermore, the divisional chief, Naa Awampa had not been given the opportunity
to vindicate himself at any trial by the courts to form the basis for the destoolment
process initiated at the Traditional Council. This was a breach of his constitutional and
fundament human rights as enshrined in the Article 19 (2)(c) of the 1992 Constitution
of Ghana. The constitutional presumption that a person charged with a criminal
offence such as defilement shall be presumed to be innocent until he is proved or has
pleaded guilty was flagrantly abused.

On the final issue of whether or not the High Court can exercise jurisdiction over a
cause or matter affecting chieftaincy in relation to stool properties; the decision of
the Traditional Council could be quashed by the High Court due to the improper
constitution of the Traditional Council to determine the destoolment of the divisional
chief Naa Awampa instead of the proper composition of the Judicial Committee of
three (3) or five (5) chiefs of the Traditional Council to determine the destoolment of
the Chief.

Furthermore, the issue of breach of the rules of natural justice where the Paramount
Chief and the Queen mother were part of the decision making to destool the
divisional chief may constitute procedural impropriety, illegality and irrationality and
may be quashed by the supervisory jurisdiction direction or order of the High Court in
the nature of certiorari, making the decision by the Traditional Council a nullity and
hence, the divisional chief remaining the recognised enstooled chief and being in
proper possession of the stool’s property.

In that regard, the High Court original jurisdiction to entertain cause or matter
affecting chieftaincy in relation to stool properties including stool regalia and clothing
belonging to the stool are ousted by the section 57 of the Courts Act, 1993 (Act 459).
The High Court original jurisdiction is ousted and cannot entertain a charge of stealing
of stool properties including the stool regalia and clothing which falls under a cause
or matter affecting chieftaincy.

In conclusion, a Judicial Committee composed of three (3) or five (5) chiefs of the
Traditional Council is properly constituted to determine a question, cause or matter
affecting chieftaincy and not the entire members of the Sogbe Traditional Council,
where the matter does not involve the Paramount Chief of the Traditional area.

The High Court original and appellate jurisdiction is ousted by section 57 of the Courts
Act, 1993 (Act 459) while the inherent and constitutional supervisory jurisdiction of the
High Court per Article 141 of the Constitution cannot be limited or ousted by the
Section 57 of the Courts Act, 1993 (Act 459).

The High Court has a supervisory jurisdiction to issue a directions or order in the nature
of certiorari, mandamus, prohibition or quo warranto to quash a decision of the
adjudicating authority. The High Court does not have an original jurisdiction to
entertain cause or matter involving stool properties including stool regalia and
clothing that belong to the stool and therefore may not entertain a charge of stealing
brought before the High Court against a Chief purported to have been destooled
and in possession of the stool properties.

The above analysis form the basis of the Chamber’s advice to Naa Awampa to
initiate an action at the High to have the decision of the Traditional Council quashed
by the High Court.
MOCK ASSIGNMENT

QUESTION 2

Area of Law

Constitutional Interpretation with specific reference to the approaches to interpretation

Issues

Whether or not persons arrested should be brought within 48hours as the constitution
mandated? Or

Whether or not Article 14(3) of the 1992 constitution should be construed using the
modern purposive approach?

Applicable Rules

Interpretation is rational process of ascertaining the meaning of language used in a non-

statutory document, statute, or national constitution, or part thereof, subject to any rule
of law, of the scope or effect of the provision. We interpret because one word can give
several meanings that’s why we must construe to know the meaning which would not
render the text absurd or obscure.

There are various approaches to interpretation made by other school of thought such as
textualism, literalism, living constitutionalism, originalism and the purposive approach to
interpretation.

Interpretation is made up of three (3) different disciplines namely; Constitutional

Interpretation, Statutory and Non-Statutory Interpretation. For the purposes of this
discussion, we will look at the Constitutional interpretation.

The constitution has its attributes of a legal document and a political testament and in
interpreting the constitution it should be driven by cultural, economic, political and social
development of the country, the constitution is a sacred document

The constitution is the supreme law of the land and in Ghana this is expressly stated in
Article 1(2) of the 1992 Constitution of Ghana. It is thus not an ordinary Act of Parliament
and must be construed as a living document. In cases like Tuffour v Attorney-General it
has been stated as being a living document capable of growth characterized by a letter
and spirit. Its letter being the text of the law and its spirit being the values and policies by
which its provisions were made. Article 2(1) of 1992 constitution enjoins any person who
alleges that an enactment or anything contained in or done under the authority of that
or any other enactment or any act or omission of any person is inconsistent with or in
contravention of a provision of the constitution to bring an action to the supreme court
for a declaration to that effect.
Article 130(1) provides that subject to the jurisdiction of High Court in the enforcement of
the fundamental human rights and freedoms, the Supreme Court shall exclusive original
jurisdiction in a) all matters relating to the enforcement or interpretation of this constitution
and (b) all matters arising as to whether an enactment was made in excess of the powers
conferred on parliament or any other authority or person by law under this constitution.
The case of Republic v. Special tribunal; Ex Parte Akorsah [1980] GLR 592 provide
guidelines to determine when an issue of constitutional interpretation arises or when the
jurisdiction of the Supreme Court can be properly invoked. The guidelines state that an
issue of interpretation arises, firstly, in the situation where the words of the provision of the
constitution were imprecise, unclear or ambiguous. Secondly, where the parties to the
action have put rival meanings to the words or provision of the constitution; thirdly where
there was a conflict in the meaning and effect of two or more articles of the constitution
and a question was raised as to which provision should prevail; and, finally where on the
face of the provisions, there was a conflict between the operation of institutions set up
under the constitution. Due to the move to the purposive approach to interpretation
however, the Supreme Court has held in the case of Republic v General Jurisdiction 6; Ex
parte Zanetor Rawlings that an interpretative issue may arise for determination by the
Supreme Court at any time despite even where the language seems clear.

The Literalist position of interpretation is that words should be given their ordinary meaning
but where the subject matter of the interpretation was prepared by a lawyer or expert its
technical meaning should be given irrespective of its consequences. They do not make
a distinction between the letter and the spirit of the text. They just interpret the text as it
appears. In the case of R v. Judge of City of London Court, the court held that “the rule is
that courts will give words their ordinary or literal meaning even if the result is not sensible”.

In construing language as used in the Constitution, judges may use any of the
approaches but in Ghana, the Supreme Court in interpreting the constitution adopts the
purposive approach to interpretation. The purposive approach to interpretation is one
which takes account of the words in a constitutional provision according to their ordinary
meaning as well as the context with which they are used. The purposive approach was
first adopted in the English case of Pepper (Inspector of Taxes) v. Hart [1993] 1All ER 42.
Context is very important in constitutional interpretation. There some rules regulate
purposive interpretation. These are:

 the text must be read as a whole

 give words their ordinary meaning as within the context or within the context in
which the words are used.
 Interpretation should not be solely premised on linguistic context but consideration
shall be given to the subject matter, scope and purpose.
 Consideration shall be given to some extent to the background to the text
(intentionalist call this the mischief rule).
 Consideration shall not be given to the language to the exclusion of the context.

The aim, ultimately, is one of synthesis. In the case of Agyei Twum v AG & Akwetey the
Supreme court considered the importance of purposive approach to interpretation thus,
where the application of a literal meaning would lead to absurdity the purposive
approach would be use and per Date Bah JSC opined that the purposive approach to
interpretation of judgement of constitution requires implicit words be read into the
constitution to avert a manifest absurdity. It is worth noting that Georgina Wood CJ (as
she then was) gave a caution in the case of Republic v Fast Track High Court; Ex parte
CHARAJ (Dr Anane’s case) [2008] that “the purposive approach is not carte blanche for
rewriting legislation, let alone our constitution and should never be used as a ruse, a cloak
or guise to do so”.

The memorandum to the interpretation Act, 2009 (Act 792) endorses the purposive
approach to interpretation to the interpretation of the constitution and section 10(4) of
Act 792 encourages the judge to interpret the constitution in a broad and liberal manner.
It further posits that the constitution should be interpreted in a way that promotes the rule
of law and good governance, advances human right and fundamental freedoms,
permits the creative development of the provisions of the constitution and the laws of
Ghana and lastly in a manner that avoids technicalities which defeat the purpose of the
constitution and of the ordinary law of the land. Thus, the section makes mention of
language being construed in conformity with the purpose and spirit of the constitution.

Some purposive interpreters have developed a formula to regulate the purposive

approach to interpretation. There is therefore the Modern Purposive Approach to
interpretation. One of the persons who introduced a criteria for purposive interpretation
under the Modern Purposive Approach to Interpretation was Aharon Barak. To him, he
identified three purposes of legislation: the subjective, the objective and ultimate
purposes. The subjective and objective purposes were variables and the ultimate
purpose was constant. The subjective purpose refers to the intent of author at the time of
creation of the text whereas the objective purpose is when time changes and
circumstance change at the time the text was created thus the intent a hypothetical
man gives to the text at the time of interpretation. The subjective purpose is made up of
the internal source and the external source. The internal source is made up of the text
and the external source, the context. The text is the ordinary meaning at the time of
creation and the context consists of the purpose, subject matter and time and
circumstance and the values of the system and the political, social, cultural and
economic factors at the time the text was created. The objective purpose is the purpose
a reasonable man will give taken into consideration the text and the context i.e. the
political, social, cultural and economic factors at the time the text is being interpreted.
The objective purpose also has its internal source and external source as already
explained.

Where the subjective and objective purpose are the same, the ultimate purpose will be
the same as the subjective purpose. However, where the subjective purpose is different
from the objective it means things have changed and there is the need to go back in a
circuitous manner to correct every mistake either from the subjective to objective or vice
versa. Where the conflict still remains, and if there are gaps after the correction then you
take the objective as the ultimate meaning.
The courts have in case like Asare v Attorney-General, applied the Modern Purposive
Approach to interpretation in ascertaining the purpose of provision of the constitution.

It is worth noting that with this approach to interpretation, the values of the system matter.
The Constitution of Ghana has core values which include the rule of law, the supremacy
of the Constitution, Sovereignty of the people, protection of fundamental human rights,
judicial independence and separation of powers.

Application of the Facts

Article 14(3) of the Constitution provides that; “A person who is arrested, restricted or
detained - (a) for the purpose of bringing him before a court in execution of an order of
a court; or (b) upon reasonable suspicion of his having committed or being about to
commit a criminal offence under the laws of Ghana, and who is not released, shall be
brought before a court within forty-eight hours after the arrest, restriction or detention.”
The court is thus faced with the determination of whether 48 hours be construed to mean
48 hours literally and thus include weekends as well as public holidays and as such courts
should be made to sit on holidays or be construed in the face of practical realities. 48
hours in ordinary language means two days. Thus, ordinarily, if a person is arrested on a
Tuesday, the 48 hours means exactly two days of the arrest. With respect to the problem
question, I shall resort to the use of the Modern Purposive Approach.

To begin with, the Supreme Court is clothed with power to interpret or enforce the
constitution by virtue of Articles 2 and 130 of the 1992 Constitution of Ghana. In fact,
subject to the jurisdiction of the High Court in enforcement of human rights, it is the court
with jurisdiction to interpret or enforce the constitution. The letter of the Constitution
provides that an arrested person be brought before the court in 48 hours in order to be
tried. The clause 4 of the Article 4 further provides that where a person is not brought
within the 48 hours which is deemed the reasonable time, then without prejudice to
further proceedings he may be released unconditionally or conditionally. Thus, it may
seem that 48 hours is deemed a reasonable time within which the court may restrict a
person until determination of the court as to whether he or she be detained longer or
released till the start of the trial. This provision forms part of a body of provisions that
guarantee fundamental human rights and freedoms of the people of Ghana. In
ascertaining the purpose of the text, attention should be given to the spirit which is an
embodiment of the values governing the constitution. One of core values of the
Constitution is the protection of human right, specifically the right to personal liberty. The
constitution protects this right. Despite the guarantee of rights, the law makes provision
of special circumstances in which they make be restricted. The court has at all times been
concerned with delivery of justice within a reasonable time. It seems that the reason for
this is so that delay does not lead to the postponement of a person’s right or infringement
of it.

Despite the court’s opinion in Martin Kpebu v AG No. 4 that the existence of a person’s
right to apply for bail does not automatically guarantee his freedom (as it will be subject
to the satisfaction of certain conditions), the existence of such an avenue provides that
the law is concerned with guaranteeing freedom whilst maintaining the need to deliver
the deserved justice. In fact, in the same case, the court ruled that judges be made to
sit on weekends and public holidays in order to protect the rights of persons detained or
arrested.

It is important to note also that it is the practice of the judicial service to provide what we
call “vacation judges” to sit and determine cases during the legal vacation period. It
seems that the reason for the initiative is so that despite the need for judges to take a
break and rest, the protection of rights of persons who have various suits before the court
is also a priority. All these practices mentioned, suggest that the Constitution and in effect
the practice of the court is that justice be served and on time. In as much as I agree with
the Attorney-General’s submission that the 48 hours may fall outside ordinary days and
times; the above discussed practices of the court proves that it is possible for the court to
sit in such times that fall outside the ordinary to administer justice and guarantee rights of
the people.

In conclusion per the authorities stipulated supra as to the Supreme Court applying the
MOPA approach, the interpretation of AG will not apply in this instance because there
has not been any change in the circumstances of our time. In as much MOPA is used the
ultimate purpose will still have the interpretation of the plaintiff.

MOCK EXAMINATION

ACADEMIC YEAR 2021-2022

{GROUP A…. QUESTION 1}

AREA OF LAW

Interpretation of non-statutory documents specifically Wills.

ISSUES

(1) Whether or not Naa Adoley can benefit under clause 2 of the Will made by Nii
Bortey?

(2) Whether or not Naa Adoley can benefit under the residuary clause of the Will made
by Nii Bortey?

(3) Whether or not section 38 of the Matrimonial Causes Act (Act 367) applies to
dissolution made in accordance with customary law ?

APPLICABLE LAWS
 A will is a document which expresses the intention of a testator on matters that
he wishes to take effect after his death and can only be done by a person clothed with
testamentary capacity. In the case of Re Atta (decd) Kwako v Tawiah, (2001-2001) the
court defined a will as “a very special and solemn document in which a person
declares his wishes as to how his property should be distributed, disposed of or
managed after his death”. Section 18 0f the Wills Act 1971 (Act 360) defines a will to
include a codicil and any other testamentary instrument. A will is ambulatory in nature,
meaning a will not have effect until the testator dies.

In Ghana before the enactment of the wills act, the making of a will was regulated by
the English Wills Act 1837. Generally speaking, where a will is made in accordance with
the provisions of the act, and according to the wishes of the testator effect will be given
to it by the courts. In the case of Re Mensah (Decd); Barnieh v Mensah and others
(1978)1 GLR 225, it was held that the policy of courts in matters affecting testamentary
dispositions is to give effect to give effect to the last wishes of the testator and uphold
them unless there are overriding legal obstacles in the way. That is testator who
determines the person who should benefit and the person who should not benefit from
his will when he dies. This position was stated in the English case of Turker v Harisson
(1832) sim 538 at543 where it was held that there is no presumption that a person who is
not named as a beneficiary of a will shall benefit from the will. However, Ghana there
are exception to this positon under article 22 of the 1992 Constitution of Ghana and
section 13 of the Wills Act, (Act360).

In the case of Re Dadzie (Decd); Dadzie and another v Addison and Another (1999-
2000)2GLR 291, it was held that the courts in interpreting documents such as wills must
glean from text of documents which is what the court avert its mind to and give effect
and not what must be surmised. Thus the courts have come to the conclusion that, in
interpreting the execution process of a will a liberal approach must be adopted but in
interpreting the words used in the will, strict interpreting should suffice so that the
intention of the testator would not be defeated. In the case of Re Atta (Decd); Kwako
v Tawiah, the supreme court held that “in construing a will, the courts look for the
intentions of the testator as expressed by him in actual words used by and not what was
supposed to be the actual intention having regard to all other provisions of the Will.
Consequently, extrinsic evidence of a testator’s declaration as to the meaning to be
put on a language to be used in a will is not admissible as evidence to his testamentary
intention”

Section 7(1) of the wills Act stipulates that a will shall take effect as if it had been
executed immediately before the death of a testator unless a contrary intent appears
from the will. Section 7(6) states that a residuary disposition shall include property
comprised in lapsed and void dispositions unless the contrary intention appears from
the will. Section 8(1) states that a disposition made to a person who predecease the
testator or which is contrary to law or otherwise incapable of taking effect shall lapse
and fall into residue unless a contrary intention appears from the will.
In construing a non-statutory document such as a will, usually the courts use the
Intentionalist approach. For them in construing a document, the basic rules for is that
construction must be as near to the mind and intention of the testator as the law would
permit. Secondly the intention must be gathered from the written expression of the
author’s intention. Thirdly technical words should be given their technical meaning as
espoused in the case of Biney v Biney (1974) 1 GLR 318. The courts subsequently
developed the fourth rule namely, to read the document as a whole.

The interpreter’s tool kit contains internal and external aids, linguistic canons of
construction, presumption and special binding rules which are used to interpret the text
bought before the interpreter. The external aids to non-statutory documents includes
firstly, Falsa Demonstatio Non Nocet Cum De Corpore, which means that where an item
or property is wrongly or falsely described but it can be as ascertained or identified
effect should be given to it despite its false description. secondly Contra Proferentum
rule, which means that where there is an ambiguity in a deed or document, the rule is
that it should be construed against the grantor. Thirdly, Expression Eorum Quae Tacite
Insunt Nihil Operator, which means the expression of those things that are tacitly implied
is of no consequence. Finally, Expressum Facit Cessare Tacitum which means where
words are stated in an issue, it puts an end to other issues which are unspoken of.

Falsa Demonstratio literally means that where an item is wrongly or falsely described but
it can be ascertained or identified, effect be given to it in spite of the false description.
The maxim is normally used in relation to the description of persons such as beneficiaries
and executors and properties devised in a will or properties disposed of inter vivos.
Black’s law defines falsa demonstration as “false description does not injure or vitiate
provided the thing or person intended has once been sufficiently described. Mere false
description does not make an instrument inoperative”. In the case of Wilberforce v
Wilberforce (1999- 2000) 2GLR 311 where the testator described the two nephews as
sons in his will. It was held that inaccurate references to beneficiaries under a will per se
did not invalidate bequest. To do so there had to be evidence that a beneficiary
adopted a false character and that this was done fraudulently to deceive the testator
and that the deceit was perpetrated with the motive of benefitting under a will. Besides
it was a rule of construction applicable to all written documents including wills that if a
term used to describe a subject matter was sufficient to ascertain that subject matter
with certainty but other terms add a description which was not true, these other terms
would not be allowed to vitiate the gift. And if such false description which could not
vitiate a gift, then it certainly could not vitiate the whole will. In that case the use of the
word sons to describe the nephews did not in any way detract from the validity of the
will because the court took judicial notice of the fact that by custom and tradition
nephews and nieces could be referred to affectionately as sons and daughters by their
respective uncles and aunts. In the case of Re Ofner; Samuel v Ofner (1901) 1CH 60
where the testator bequeathed an amount of 200 pounds to his grandnephew “Robert
Ofner” where he had no grandnephew by that name. In spite of false description, the
amount of 200 pounds was given to Richard, his grandnephew who the testator
intended to bequeath the money to.
 In interpreting a provision of statute, the memorandum of the Interpretation Act 2009
(Act 792) enjoins the courts to adopt the purposive approach as illustrated by the case
of Pepper (inspector of taxes) v Hart. Section 10 of the Act states that, the court shall
construe or interpret any provision of the constitution or any other law in a manner that
provides the rule of law and values of good governance, that advances human rights
and fundamental freedom, that permits the creative development of the provisions of
the constitution and the laws of Ghana and that avoids technicalities and niceties of
form and language which defeat the purpose and spirit of the constitution and the
laws of Ghana. provides that of the Interpretation Act. The courts are now permitted to
seek assistance from other sources when ascertaining the meaning of an enactment or
where the text is ambiguous or obscure. In the purposive approach to interpretation,
the courts are required to take into consideration the words of an enactment in
accordance with their ordinary meaning as well as the context in which they are used.
The courts do not solely rely on linguistic context as pertained under literalism to
interpretation but they consider the subject, the scope, the purpose and to some
extent the background.

Section 38 of the Matrimonial Causes Act states that, a gift or appointment in favour of
one spouse in the will of the other shall be invalidated if the marriage has been
terminated under this act by divorce or annulment unless the will contains an express
provision to the contrary. Thus where a contrary expression is expressed in the will that
provision shall override the general position of the law. Section 41(2) of the same act
states that on application by a party to a marriage other than a monogamous
marriage, the court shall apply the provisions of this act to that marriage and in so
doing subject to the requirement of justice, equity and good conscience, the court
may consider the peculiar incidents of the marriage in determining appropriate relief
financial provision and child custody arrangements; grant any form of reliefs recognized
by the personal law of the parties to the proceedings in addition to or in substitution for
the matrimonial reliefs afforded by this Act. Interpreting the act literally or strictly to
apply to only monogamous marriages will lead to absurdity, unfairness and will cause
injustice and will discriminate against those who contracted their marriages
monogamously. It can be inferred from these provisions that the matrimonial causes act
does applies to both monogamous marriages and customary law marriages when the
act is read as a whole.

APPLICATION OF THE LAW TO THE FACTS

ISSUE 1

Whether or not Naa Adoley can benefit under clause 2 of the will made by her Nii
Bortey?
In resolving this issue section 38 of the matrimonial causes act stated supra comes in
handy. The act is to the effect that any gift given to a spouse by a testator shall be
invalidated when the marriage is annulled or dissolve unless there is contrary intention
on the will. In Clause 2 of the will he stated that all my self-acquired properties to “Naa
Adoley my soul mate and angel as the sole beneficiary. Since the marriage has been
dissolved under customary law properly that gift or provision in that will be contrary to
law under section 38 of Matrimonial Causes Act. Also, Section 8(1) of the wills Act states
that a disposition made to a person who predeceases the testator or which is contrary
to law shall fall under residue unless there is contrary intention appears from the will.
Here there is no contrary intention appearing on the face of will, therefore the
properties will fall under residue. Since Naa Adoley is the beneficiary under the same
residuary clause, she can benefit on the will because there is no contrary intention
appearing on the will.

ISSUE 2

Whether or not Naa Adoley can benefit under the residuary clause of the will made by
Nii Bortey?

The residuary clause states “That anything I shall die possessed of and not herein
devised shall be vested in my lover Naa Adodo without any contrary intention
whosoever”. Naa Adodo as stated in the residuary if a false description of Naa Adoley
as stated under clause 2 of the will. Here by reason of the external aid of interpretation
falsa demonstration non nocet cum de corpore which is to the effect that when an
item is wrongly described but can be sufficiently be identified effect should be given to
it as illustrated in the cases of Wilberforce v Wilberforce and Re Ofner; Samuel v Ofner
supra. Although Naa Adoley has been wrongly described as Naa Adodo, it can be
inferred from the other provision of the will that the two names refer to the same person
as she was sufficiently identified as Naa Adoley in clause 2. Again, she would be
deemed to be the residuary legatee and can benefit under the residuary clause. This is
because according to section 38 stated supra if there is contrary in intention appearing
on the will, a person whose marriage between himself or herself and a testator has
been annulled or dissolved can benefit under the will of a testator. Here the phrase
“without contrary intention whatsoever” connotes a contrary intention made by the
testator. That is whether or not the marriage is dissolved or annulled she must benefit
under the residuary clause. In effect Naa Adoley will benefit under the residuary clause.

ISSUE 3
Whether or not section 38 of the Matrimonial Cause Act, 1971 (Act 367) applies to
marriages dissolved under customary law?

Construing the section strictly will lead to absurdity, will cause injustice and discriminate
against those people whose marriages were contracted monogamously. The
memorandum of the interpretation act enjoins the court in Ghana to adopt the
purposive approach to interpretation instead of construing it literally which may lead to
absurdity. Also, looking at the section 42 of the act. There is a provision made by the act
for spouse who contracted their marriage under customary law to apply to court for
relief. In reading the Act as a whole one would to realized that the act does not only
apply to monogamous marriage but also customary marriage.

To interpret the said provision strictly would mean that dissolution of marriage under
customary law will give a former spouse the right to benefit under a will made by a
testator when no contrary intention appears on the will. This will lead to absurdity and
cause injustice to those who contracted marriage under the ordinance contrary to the
equality principle under Article 17 of the 1992 constitution. In effect, Naa Adoley’s belief
that section 38 of the Matrimonial Cause Act does not apply to customary marriage
dissolved in accordance with custom but under the act is false and unsustainable. The
Act applies to both customary and monogamous marriages.

CONCLUSION

In a summary, Naa Adoley can benefit under Clause 2 although her marriage was
dissolved customarily, it fell under residue and since she is the residuary legatee without
any contrary intention appearing on the will, she can benefit under this clause. Also she
can benefit under the residuary clause because there was a contrary intention on the
Will of the testator. Her belief that section 38 does not apply to dissolution under
customary law is also untenable.

QUESTION 3 OF MOCK EXAMS

AREA OF LAW

The area of law is to be considered is Interpretation of Statutory Documents with specific

regards to repealed and retroactive legislation particularly implied repeal.

ISSUE

The issue arising from the question has been addressed below;

1. Whether or not Faustina Agyarko can file a petition at the District Court at Akuse?

APPLICABLE LAW
Interpretation is the process of construing a text in order to ascertain its legal meaning.
Interpretation comprises of three main areas, namely

 Interpretation of Statutory documents

 Interpretation of Non Statutory documents
 Interpretation of National Constitution

Statutory interpretation is the process by which the courts interpret and applies statutes.
A statute is a bill or law passed by the legislature which imposes obligations or rules on
people for a particular purpose. Words in a statutory provision may be plain and straight
forward or ambiguous and vague for which reason the courts may apply various tools
and methods including basic rules, aids to interpretation, linguistic canons of
construction, presumptions, legislative history and hansards, text books, dictionaries,
practice, common sense, among others to ascertain legislative intent. Statutory
interpretation is done to correct errors and clear doubt, to give a reasonable meaning
to a statute where a literal interpretation of a statute will cause grave injustice or to
clear ambiguities.

Since the question mainly focuses on repealed and retroactive legislation particularly
implied repeal. The rest of my essay will be on this area.

By virtue of Article 1 clause 2 of the 1992 Constitution the Constitution is the supreme law
of the land and any other law found to be inconsistent with any provision of the
constitution shall, to the extent of the inconsistency be void. This provision of the
constitution applies to both existing laws and laws that are made after the coming into
force of the 1992 Constitution.

In ADOFO AND OTHERS V. ATTORNEY-GENERAL AND OTHERS [2003-2005] 1 GLR 239, the
Supreme Court declared section 5 of PNDCL 125 which was an existing law void because
it was not in conformity with Article 140 of the Constitution. The law purported to oust the
unlimited jurisdiction of the High Court subject to limitation by the Constitution and was
therefore void. Under such circumstances, the Constitution will be deemed to have
repealed the law being either existing or laws made after the Constitution had come into
force.

The general rule is that all laws must have prospective effect. There are however, four
common law exceptions to this rule, these are laws on procedure, evidence, declaratory
laws and laws on revision and consolidation. Therefore, at common law, statutes which
were merely declaratory or related to matters of evidence or procedure were to operate
retroactively except the law expressly made their application prospective. Thus, laws shall
not be enacted to take away or impair any vested right, privilege acquired under an
existing law or create a new obligation or impose a new duty or new disability in respect
of previous transactions. Also, Article 107 of the 1992 Constitution prohibits Parliament
from enacting any laws to alter a judgment of any court as between the parties subject
to that decision to make any laws which will operate retroactively to impose any
limitation on the personal rights and liberties of any person. This is to the effect that any
statute which would operate retrospectively to affect accrued rights, acquired rights,
vested rights or incurred or acquired rights and liberties of any person would be in conflict
with Article 107 of the Constitution and would be rendered null and void. The only
exception is in the case of a law enacted under articles 178 to 182 of the constitution.

This position of the law was stated by the Supreme Court in the case of FENUKU AND
ANOTHER V. JOHN-TEYE AND ANOTHER [2001-2002] SCGLR 985, the Court per holding 2 in
the headnotes stated as follows:

The general rule was that statutes, other than those which were merely declaratory, or
which related only to matters of procedure or of evidence, were prima facie prospective;
and retrospective effect was not to be given to them unless by the express words or
necessary implication, it appeared that, that was the intention of the legislature. In
general, the Courts would regard as retrospective any statute which operated on cases
or facts coming into existence before its commencement in the sense that it affected,
even if for future only, the character or consequences of transactions previously entered
into or of other past conduct.

The position in Ghana therefore is that all substantive laws are prospective and matters
which are purely procedural, declaratory and evidence are retrospective unless statute
specifically or by necessary implication states otherwise.

Repealed legislations are in two forms either express repeal or implied repeal. An express
repeal means that an existing law has been repealed by a subsequent law. Thus, a repeal
is express when the repealing statute specifically states that the previous statute has been
repealed. For example, the Companies Act, 2019 (Act 992) specifically states in Section
384 that the previous Companies Act, Act 179 has been repealed.

Implied repeal exists in various forms. One of which is when some laws are by necessary
implication deemed to have been repealed even though the statutes which are said to
have repealed them do not expressly state so. Thus, the existing enactment does not
expressly say that an enactment has been repealed but a careful consideration of the
two enactments would reveal that one has repealed the other.

Another instance where a statute is said to have been impliedly repealed another one is
where two statutes conflict each other on the same subject matter and the conflict
cannot be reconciled.

Where two laws are in conflict and the conflict is reconcilable, then there is no implied
repeal. The two provisions will continue to exist but will be construed subject to the
reconciliation.

Two principles are applied when there is implied repeal these are; Hierarchy of laws and
Nature of laws. Where two statutes or provisions are in conflict and they cannot be
reconciled resolution can be achieved by either using the hierarchy of laws or nature of
laws.

Hierarchy of laws simply means that although laws exist some are superior to the other.
Hence when there is a conflict the superior law will take precedence over the lower one.
In Ghana, per virtue of Article 1 the Constitution is superior to any other law, followed by
Acts of Parliament, Subsidiary Legislation then Common law.

Nature of laws exist in two forms; General law and Specific law. Where there is a conflict
between two Acts of Parliament and one is a special Act and the other is general, the
special legislation will be deemed to have amended the general one. Where two Acts
or subsidiary legislations are of the same character, that is both laws are general or
special, the later one is deemed to have repealed the earlier one. Furthermore, where
there is a conflict between an Act of Parliament and a subsidiary legislation, it is resolved
in favour of the Act of Parliament.

Where two provisions are of the same kind they are resolved using these two maxims;
Generalia Specialibus Neon Derogant and Leges Prosteriores Prones Contrarias
Abrogant.

Generalia Specialibus Neon Derogant means that when you have two provisions of the
same kind, when they are in conflict look at the nature of laws and if one is in general
nature and the other is a special law, you resolve it in favour of the special law.

In the case of KOWOS MOTORS V. CHECK POINT GHANA LTS AND OTHERS [2009] SCGLR
230, the Supreme Court was called upon to resolve the conflict in AFRCD 60 and the
Statute Law Revision Act, 1997(Act 543). The principle is that in Section 4 of AFRCD 60,
the trite known rule of construction of Statute is that where two acts conflict irreconcilably
the latter one is deemed to have repealed or amend the earlier one. This principle was
used by the court because they were considering two special legislations.

Also in the case of REPUBLIC V. HIGH COURT ACCRA; Ex PARTE PPE and JURIC (UNIQUE
TRUST FINANCIAL SERVICES LTD INTERESTED PARTY) [2007-2008] 1 SCGLR 188, the Supreme
Court held that the special provisions override the general provisions on the same
subject-matter and the special legislation is deemed to have amended the general one.

This principle was also stated in the case of BONNEY & OTHERS (NO. 1) V GHANA PORTS
HARBOURS AUTHORITY (NO. 1) [2013-2014] 1 SCGLR 436 at 450 quoted Halsbury’s Laws of
England (4ed), Volume 44 paragraph 785.

The court applied the Generalia Specialibus Neon Derogant maxim in the two cases
mentioned above.

Leges Prosteriores Prones Contrarias Abrogant maxim means that where two specific
enactments or two general laws of the same kind such as where both are Acts or
subsidiary legislations are in conflict, the latter is deemed to have amended, repealed or
revoked the former.

ANALYSIS

A special law is a legal term of art used to refer to legislations made for a particular
purpose. The Matrimonial Causes Act if one of such. It is a legislation with the purpose of
addressing issues bothering on Matrimonial Causes. Also, the Courts is also a special law,
per the long title of the Act, it is to establish the lower courts and tribunals, provide for
their composition and jurisdiction among others.

In the instant case, it is evident that the provisions in the Matrimonial Causes Act, 1971
(Act 367) and the Courts Act, 1993 (Act 459) are in conflict on the subject matter of
jurisdiction. It is however, trite law that jurisdiction is a creature of statute. As such, in the
instant case where two legislations are both in conflict as to the jurisdiction of the court,
the issue then is which of these legislations is the statute that confers jurisdiction on the
court with respect to matrimonial matters.

Following from the applicable law outlined supra I would state that a resolution to this
conflict can be achieved by applying the nature of laws seeing that both the
Matrimonial Causes Act and Courts Act are special laws. The Leges Prosteriores Prones
Contrarias Abrogant maxim would also apply here as well.

In the KOWUS case the Supreme court held that there was an irreconcilable conflict
between AFRCD 60 and Act 543 and both being statutes of the same nature, the later
statute was deemed to have repealed the earlier one. The Court concluded that Act
543 was the latter statute and has repealed AFRCD 60 which was an earlier legislation.

In respect to subject matter of jurisdiction of the courts, the Courts Act is a special
legislation against the Matrimonial Causes Act which covers matrimonial matter only and
also a special legislation in that regard. Applying the Leges Prosteriores Prones Contrarias
Abrogant maxim and seeing that the Courts Act is latter in time than the Matrimonial
Causes Act, the latter Act will be deemed to have repealed the former.

CONCLUSION

I humbly submit that although the Courts Act does not expressly say that it has repealed
Section 43 of the Matrimonial Causes Act however, a careful consideration of the two
statutes would reveal that Courts Act per its further amendment by Act 620 on the civil
jurisdiction of District Court in matrimonial matter has impliedly repealed Section 43 of the
Matrimonial Causes Act.

I will therefore advise Mrs Faustina Agyarko that she can go ahead and file her petition
to dissolve the ordinance marriage celebrated between herself and her husband at the
District Court at Akuse per the provisions of the Courts Act.

QUESTION TWO

Theresa Norman filed a divorce proceeding against her husband Anthony Norman at the
High Court, Madina for the dissolution of their ordinance marriage celebrated at the
Adentan District Assembly on 1st January 2010 and other ancillary reliefs including
financial settlement on 1st July 2019. The High Court Madina was presided over by Justice
Omnipotence Akolor who has been a High Court judge for twelve years and is acclaimed
to be a judge who is abreast of the High Court (Civil Procedure) Rules, CI 47. Justice
Omnipotence Akolor fixed the matter for hearing on 1st May 2020 at 12 noon. The judge
heard all the cases listed before him at 11:00am and proceeded to hear the matrimonial
matter involving Theresa Norman and Anthony Norman when it was 11:30am and only
Anthony Norman and his lawyer were in court. The High Court judge called the case and
recorded the petitioner and her lawyer as absent, struck out the petition and called upon
Anthony Norman (respondent) to proceed with his cross petition. The judge heard the
cross petition and granted same. At 12 noon, Theresa Norman (petitioner) and her lawyer
entered the court just to be told by the judge that he had heard the matter and granted
all the reliefs sought by the respondent. He further stated that it is not advisable to marry
in the present time when women have become grave diggers. He then recounted the
experience he had from his previous marriage when he was a Circuit Court judge in the
North East Region and had to commute from Salaga to High Court, Enchi in the Western
North Region. Furthermore, he stated in his judgment that no woman will get favour from
his court and the petitioner should therefore accept the judgment as he did not award
cost against her.

Discuss the legal issues involved with appropriate laws

Area of law: Statutory Interpretation with particular reference to supervisory powers of the
Court

Issue

Whether or not the judgment of Justice Omnipotence Akolor can be quashed by the
Supreme Court.

In Ghana, the Supreme Court and the High Court are vested with supervisory powers
pursuant to the provisions of Article 132 and 141 respectively. Article 132 of the 1992
Constitution confers supervisory powers on the Supreme Court over all courts and over
any adjudicating authority. Article 132 provides, “The Supreme Court shall have
supervisory jurisdiction over all courts and over any adjudicating authority and may, in
the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of
enforcing or securing the enforcement of its supervisory power.” The provisions of Section
5 of the Courts Act, 1993 (Act 459) on the supervisory jurisdiction of the Supreme Court, is
in pari materia with Section 132 of the 1992 Constitution.

The High Court has jurisdiction over all the lower courts and other lower adjudicating
bodies such as the Circuit Court, District Court, Judicial Committees of the Traditional
Councils, Regional Houses of Chiefs, National House of Chiefs and all bodies with quasi-
judicial functions. The Supreme Court and the High Court have concurrent jurisdiction in
the exercise of their supervisory powers over all lower courts and lower adjudicating
authority. The Practice Direction issued by the Supreme Court in [1981] GLR 1 has settled
the matter with respect to the concurrent jurisdiction of the Supreme Court and the High
Court. The Supreme Court stated that where the Supreme Court and any other court has
concurrent jurisdiction in any matter, the jurisdiction of the court below shall be invoked
and that of the Supreme Court deferred. A person dissatisfied with the decision of the
court below may then appeal against it to the appropriate court.

The Courts, may in the exercise of their supervisory powers, issue orders and directions in
the nature of certiorari, mandamus, prohibition, quo warranto, habeas corpus,
declaratory orders and injunctions. The court may also award damages to compensate
a victim who has suffered injury.

Certiorari looks into the past to quash decisions previously made. Certiorari like all other
supervisory remedies is discretionary in nature. As was held in the case of Republic v High
Court, Ex Parte Pupulampu, “Certiorari is never granted if the grant will serve no useful
purpose or where no benefit can be derived from it, it is in the discretion of the court to
grant or to refuse an order of certiorari, and it is not a matter of right”.

There however exist certain grounds which guide the court in its exercise of discretion.
The first is the breach of the rules of natural justice. By virtue of these rules, decision makers
must act fairly, in good faith and without bias and must afford each party the opportunity
to adequately state his case. The natural justice rule is two-tiered. The first is the audi
alteram partem rule which requires that the decision maker hears all parties affected by
his decision. The condition here is that you must be given the opportunity to be heard in
accordance with the enabling enactment and you must not have disabled yourself. This
principle was well espoused in the case of Aboagye v GCB. In this case, the appellant, a
senior manager of the Ghana Commercial Bank, was dismissed from the bank after he
had been given a query without any personal hearing in violation of Rule 4(1) of the Staff
Rules. The said provisions of Rule 4(1) was to the effect that the authority of the disciplinary
committee to offer personal hearing was restricted to employees up to the grade of
Senior managers. In all other cases, employees’ request for a personal hearing may be
put up for consideration. The Supreme Court held that, it was clear from the bank rules
that the appellant was entitled to a personal hearing before dismissal. A mere query
could not by any stretch of imagination amount to a personal hearing. The court noted
that the procedure adopted in summarily dismissing him was ultra vires the rules and
therefore the dismissal was wrongful. The appeal was therefore allowed and the decision
of the Court of Appeal was set aside.

The second principle under the rules of natural justice is the nemo judex in causa sua
principle which is the rule against bias. It requires that a person must not act as a judge
in his own cause. This rule is designed to eliminate bias and to ensure fairness in the
hearing of a case against an alleged offending person facing a disciplinary hearing. The
test for bias has been stated in the celebrated case of R v Rand that nobody may be a
judge in his own cause per Blackburn J, “Any pecuniary interest, however small in the
subject matter of the inquiry does disqualify a person from acting as a judge in the matter.
There is a real danger that whenever the decision maker has a pecuniary or proprietary
interest in the outcome of the proceedings, public confidence in the decision making
process will be shaken and such a decision should not be made to stand.”

The real likelihood of bias test arises where the possibility or probability of bias can be
inferred on the part of the decision maker, this would normally be based on the
impression that can be formed on the entire circumstances. The Supreme Court in the
case of Republic v High Court, Denu Ex parte Agbesi Awusi (No 1) held that, “A charge
of bias or real likelihood of bias must be satisfactorily proved on balance of probabilities
by the person alleging same. Whether there existed a real likelihood of bias was an issue
of fact determinable on a case by case basis”.
The second ground for certiorari is lack of jurisdiction. Jurisdiction is conferred on a court
either by the Constitution or by statute. Jurisdictional issue may arise where a court does
an act without jurisdiction. In the case of Chief Timitimi v Amabebe, it was held that a
court cannot exercise jurisdiction not conferred on it and particularly lower courts do not
have jurisdiction unless expressly conferred by statute. Lack of jurisdiction can be seen
from two angles, the first is where the court is not seised with jurisdiction to adjudicate
over the matter. The second is where the court initially had jurisdiction but lost it. An
example is where a court proceeds to hear a matter where the process which ought to
have been served on the other party had not been served on the other party. In the case
of Tabiri v Appiah, the Plaintiffs failed to serve notice on the defendant or his counsel. The
hearing of the case proceeded in their absence. The decision was declared null and
void.

The third ground for certiorari is excess of jurisdiction. Excess of jurisdiction arises where the
court whose jurisdiction is being questioned had jurisdiction in the matter but went over
and above the jurisdiction conferred on it.

The next ground is patent error on the face of the record. The error must be so patent on
the face of the record. In the case of Republic v Court of Appeal, Ex Parte Tsatsu Tsikata,
the Supreme Court held that a mere error of law on the face of the record is not enough
to invoke its supervisory jurisdiction. The error has to be fundamental or one that renders
the impugned decision a complete nullity.

The next ground is the Wednesbury principles. Traditionally, the Wednesbury principles
were developed to correct wrongs in administrative justice. It consists of three main
principles; illegality, irrationality and procedural impropriety. These principles were
developed in the case of Association of Provencial House Ltd v Wednesbury Corporation.
This case introduced a fourth principle which is legitimate expectation.

The final ground is intervening to ensure justice. This is however only available to the
Supreme Court. The supervisory jurisdiction of the Supreme Court is not limited to the
conventional writs of certiorari, mandamus, quo warranto which are available to the High
Court under Article 141. The Supreme Court has wide powers in exercising its supervisory
powers and may in appropriate circumstances give directions in cases to ensure the
prevalence of justice, equity and fairness as was done by the Supreme Court in the case
of Republic v High Court, Cape Coast Ex parte Ghana Cocoa Board (Apotoi III- Interested
Party) to prevent the unlawful exercise of jurisdiction by the High Court which was to the
detriment of the applicant in that case.

From the facts of the case, it is clear that Justice Omnipotence did not give the Petitioner,
Theresa Norman, an opportunity to be heard, in breach of the natural justice rule, audi
alteram partem. The case was slated for hearing at 12 noon. However, he proceeded to
hear the case and struck out the petition at 11:30am at a time when neither the Petitioner
nor her lawyer were present. At 12 noon, the Petitioner and her lawyer entered the court
only to be told by the Judge that he had heard the matter and granted all the reliefs
sought by the Respondent. Theresa Norman was not given an opportunity to present her
side of the story even though she got to the Court at the time agreed by all parties
involved. The rule requires that you should be given the opportunity to be heard and you
must not disable yourself. The fact that the Respondent was there earlier than agreed,
did not give the Judge the jurisdiction to adjudicate over the matter in the absence of
the Petitioner. The audi alteram partem rule is so fundamental to fair procedure to
prevent the other party from being unjustly condemned without hearing his side of the
case and Justice Omnipotence was clearly in breach of this rule when he proceeded to
hear the matter in the Petitioner’s absence.

Moreover, a clear case of bias can be successfully made out against Justice
Omnipotence, in breach of the natural justice rule of nemo judex in causa sua. From the
facts, Justice Omnipotence emphatically stated that it was not advisable to marry in this
present time when women have become grave diggers. Furthermore, he stated in his
judgment that no woman will get favour from his Court and the Petitioner should
therefore accept the judgment. The rule against bias requires that a person should not
be a judge in his own cause. In this case, it can be reasonably inferred that there is a real
likelihood of bias against women in matrimonial causes as can be gleaned from the
statements made by Justice Omnipotence. It can be reasonably concluded that, even
if Theresa Norman was present at 11:30 am, at the time of the hearing, the Judge would
have nevertheless ruled against her since clearly, no woman will ever get favour from his
court.
In conclusion, although certiorari is a discretionary remedy, and thus may or may not be
granted by the court, the circumstances surrounding the facts in the present scenario,
raise very serious issues of grave breaches of the rules of natural justice. In light of the
overwhelming evidence, the Supreme Court, in the interest of justice, may intervene
and is likely to grant an application for certiorari to quash the judgment of Justice
Omnipotence Akolor. Mrs Theresa Norman, the aggrieved Petitioner, may successfully
invoke the supervisory powers of the Supreme Court by bringing an application for
certiorari against the High Court judgment of Justice Omnipotence Akolor.

QUESTION FIVE OF GROUP A MOCK EXAMINATION

Area of law:

Interpretation of non-statutory documents with specific reference to internal aids to

construing deeds and documents.

Issues:

1. Whether or not the lease agreement between Zenith Turkson a renowned lawyer
and the Ayoma stool represented by Naa Wahab Adams an illiterate will be
rendered null and void in the absence of an express jurat clause?

2. Whether or not the subject matter of the lease agreement will be construed by the
court as four acres or forty acres?

3. Whether or not the consideration for the land purchased will be construed by the
court as ten thousand or hundred thousand Ghana cedis?

General discussion of the rules to be used in resolving the above raised issues:
Non-statutory documents are documents not prepared by parliament and hence have
not legislative effect. They include: all kinds of written commercial contracts, deeds, wills,
insurance policies, guarantees, documents of transfer of interest and others. They may
be unilateral like wills, bilateral like contracts or multi-lateral in nature. In construing non-
statutory documents, the case of Biney v Biney has outlined some guidelines to aid in the
effective interpretation of such. These are that: the document must be construed as near
to the mind and intention of the maker, intention is to be gathered from the written
instrument, technical words are to be given their technical meaning and finally the
document is to be read as a whole.

In discharging such duties by the courts, aids and presumptions are used to help an
interpreter achieve his goal. These “aids to interpretation” are basically discretionary
guides to the determination of the subjective, objective and or ultimate purpose(s) of the
deed or document and consequently to ascertain the legal meaning of the text of a
document, statute or Constitution. These aids and presumptions operate as servants and
not masters hence if their use will lead to absurdity, they ought not to be employed. In
Maunsell v Olins - the position of the law regarding aids to interpretation was that they
are not binding rules. Thus, where they would not assist the Judge in ascertaining the
purpose of a document, they should not be invoked or employed.

Presumptions on the other hand are legal inferences or assumptions disclosing that
certain facts exist which are dependent on the proven existence of some facts. In
evidence, presumptions are considered as devices which the court uses to pronounce
on an issue notwithstanding the fact that there is no evidence to it. Section 18 of the
Evidence Act (NRCD 323) defines presumptions as an assumption of fact that the law
requires to be made from another fact or group of facts found or otherwise established
in an action.

In construing deeds and documents, the courts are required to give effect to what the
parties intended or ought to have intended. In so doing, the court may restrict some
words in the deed, transpose some, modify some, supply words to inadequate ones or
reject words which will render the meaning of the document useless and give effect to
the consistent parts of the deed.

A non-statutory document like a deed specifically a lease has two major parts. These are
operative parts and the non-operative parts. The non-operative part consists: date;
parties; recitals and titles whilst the operative parts are made up of parcel, habendum,
reddendum, testatum, consideration and receipt clauses, jurat, punctuations,
testimonium, schedules, attestation, provisos and definitions. These parts have legal
effects to them. Both parts together are considered as internal aids to non- statutory
interpretation of deeds and documents. There also exist external aids to non-statutory
interpretation couched in latin maxims as follows: Falsa Demonstratio Non Nocet Cum De
Corpore which means that a false description of an item does not injure or vitiate the
item provided the person or thing so referred to or intended has once been sufficiently
described. Contra Proferentem Rule is to the effect that in case of any ambiguity one
must construe the document against the maker of the document. Expressio Eorum Quae
Tacite Insunt Nihil Operatur means that the expression of those things that are tacitly
implied are of no consequence. Expressio Facit Cessare Tacitum is to the effect that
where words are expressly stated on an issue, it puts an end to other issues which are
unspoken.

In elaborating on the parts of a deed as outlined above, a date in a stated document

only becomes important after the document has been registered as enunciated in the
case of Amuzu v Oklikah. If a document which should be registered is not registered,
then regardless of the date stated in the document, the document shall not be effective
until it is registered. However, if an enactment provides that a document should take
effect from a particular date, the document shall take effect from that stated date even
if it is not registered. Where it is not a requirement to register a document, it is important
to date it. If such a document is not dated, it would not render the document void.
Instead, it would not take effect from the date of execution as stipulated in the Land Act
2020, (Act 1036)
A vital part of any contract or a deed are the parties. these must be named. The essence
of naming the parties (be it an individual, partnership, company) is that it determines the
capacity of the person(s) stated in the document. Therefore, the person(s) named in the
document should be the person(s) with capacity to represent - ‘the proper contracting
parties’. For example; where the party is a stool or skin, the name of the occupant of the
stool or regent or caretaker must be stated and where the party is a church, the names
of the registered trustees should be stated.

A recital is part of a document. It establishes the subject-matter of the document and

controls the document. Recital comprises the introductory recitals which explain how
the lessor or the vendor acquired the land and the narrative recitals explains the rights
the original owner is leasing out and the rights or interests the lessee is acquiring. In Royal
Insurance Company Ltd v G & S Assured Investments Co. Ltd (1972) 1 Lloyd’s Rep. 267 the
court stated that where the operative part is clear and unambiguous, the recitals cannot
be used to contradict it. If the operative part is unclear and ambiguous, then the recitals
can be referred to for the purpose of clarifying an ambiguity. Also, where the recitals and
operative parts are clear but inconsistent with each other, the operative part is to be
used.

Titles are not part of the document but serve as aids to interpretation. They simply give
information about the paragraphs and clauses they precede and make it easy for
referencing.

The parcel describes the subject-matter of the transaction. The subject-matter must be
well described to avoid ambiguity. Where it is land, it should be described using its
boundary owners. If the parcel is left out, it may be annexed to the deed by stating it in
the schedule. In Anane and Ors v Donkor and Ano (Consolidated) [1965] GLR 188, the
Supreme Court held that a claim for declaration of title and an order for injunction in
reference to the subject-matter of land must fail if the Plaintiff fails to positively establish
the identity of the land claimed. In Jass Co. Ltd v Appau and Ano (2009) SCGLR 265, the
court held that the disputed land must always be described with certainty to enable the
courts to decree title. However, this does not mean mathematical identity or certainty.

The purpose of the habendum is to disclose the interest being created in favour of the
one acquiring the interest. In construing a deed in the case of PY Atta and Sons Ltd v
Kingsman Enterprise Ltd, the Supreme Court used extraneous evidence to correct the
habendum clause in a conveyance.

The testatum describes the nature of the transaction.

The receipt clause serves as evidence that a party has received consideration in
payment of a purchase price for the subject matter being transferred. The Land Act
provides that once the document or transaction contains a receipt clause in the nature
of payment of money or securities, it will be sufficient to serve as discharge of the
consideration paid and the person who delivered it will not need to provide further
receipt. The receipt clause serves as proof of payment for a subsequent purchaser of the
property who acquired the property unless the subsequent purchaser had notice that
the form of consideration in the receipt was not fully paid or paid at all.

The testimonium shows the date the document was signed. Evidence can also be
adduced to show persons who executed the agreement and also to bring clarity to any
ambiguity about the date the document was executed.

The consideration clause shows that the transaction was not a gift and shows the amount
paid. It must be accurately stated per the Stamp Duty Act, 2005 (Act 689) Section 6 in
words and figures and an offence if not stated. Hence, where a grantor alleges that an
agreement was entered into for the purposes of creating a trust and consideration is
provided for in a document, the burden will be on the grantor to prove that the amount
written as consideration was fraudulently included in the document.

Attestation is proof that the document was signed in the presence of people. For a Will
to be valid, it must be attested to by two witnesses.
The presence of more than two witnesses will not have any legal effect on a Will except
where one of the attesting witnesses was a beneficiary under the Will. Section 2 of the
Wills Act provides that if a beneficiary attests to a Will, he shall not benefit under the Will
and the disposition will lapse unless the Will would be valid without the signature of that
person.
A conveyance or a deed must be signed and attested in the presence of at least one
witness.
Where a party to a conveyance is an individual, that person shall sign and attest in the
presence of at least one witness. Where a party to a conveyance is a company, it shall
be executed in accordance with the Companies Act 2019, Act 992

According to the Land Act, a conveyance by a corporation will be valid where its seal is
affixed on the conveyance in the presence of its secretary or any other permanent
officer or its deputy secretary and a member of the board of directors or any other
governing body of eh corporation or any form of valid execution provided by the
instrument or enactment establishing or regulating the corporation.

Definitions aid the court in determining the interpretation given to words used by the
parties or the author. The definitions provided by the author will be used regardless of the
custom of a particular place or special words used.

The absence of punctuations in documents may defeat the purpose of the document
because the meaning of the document may be materially altered. In Republic v High
Court, Cape Coast, Ex Parte Aaba and Ors it was held that punctuations such as
commas, full stops, question marks, colons and semi colons are part of the law and are
aids to construction.

In instances of discrepancy between words and figures in a deed, the written words will
prevail over figures unless a contrary intention appears in the conveyance per Section
70(6) of the Land Act 2020 (Act 1036). The common law position is that it is easier to write
numbers in figures than in words. Hence , whenever there is a conflict between the two
the written word shall prevail . This however is a rebuttable and not a conclusive one.
Where there is an ambiguity and the issue cannot be resolved with any known rule of
interpretation, the ambiguity is resolved against the maker or grantor. This principle is
referred to as the contra proferentem rule and it is usually a last resort. In light of the courts
giving effect to the intention of the parties, the court may restrict some words in the deed
or transpose some by modifying some words. The court may supply some words to the
existing ones where the existing words are inadequate. The courts may also reject words
which will render the meaning useless and give effect to consistent parts of a deed and
reject the inconsistent part.

In construing a contract which is evidenced in writing, neither oral or extrinsic evidence is

admissible to vary, subtract from or contradict the terms stated in the deed. The Supreme
Court in the case of Oppong v Anafi (2011) 1 SCGLR 556@ 564 quoted with approval of
the High Court decision in the case of Wilson v Brobbey(1974) 1 GLR 250 and held that “
where parties have embodied the terms of their contract in a written document, extrinsic
evidence or oral evidence will not be admissible to add to, vary; subtract from or
contradict the terms of the written document”

Where a party to an agreement is an illiterate or blind person, a jurat clause must be

provided for generally. Here, a competent person who understands the language
spoken by the illiterate and also can read and write the language in which the document
is made, must read and explain the contents of the agreement to the illiterate or blind
person. Ultimately, that person must understand both the English language and the
language the illiterate understands. The competent person is supposed to provide a
certificate in his name with address and signature and also certify that he read the
content to the illiterate and that the illiterate seemed to have understood the content
before signing or appending his mark to the document.
 The illiterate protection Act, 1912 (CAP 262) Section 3 provides that where a party
or a testator is illiterate, there should be a jurat showing the content of the
document was disclosed to him or her or that the Will was read to the testator or
the party in the language she understands and she approved of the contest.

 In Brown v Ansah & anor an illiterate was defined as a person lacking the ability to
read and write in the language in which a particular document has been
prepared. This definition restricts a person’s level of illiteracy to the language of
the document prepared such that a learned and educated person who can read
and write would be considered as an illiterate for the purposes of that particular
document if he cannot understand the language in which the document was
prepared

 In Kwamin v Kuffuor [1914] 2 Ren 808 Pc

The Privy Council laid down the principle that “there is no presumption that a
native of Ashanti who does not understand English and cannot read or write has
appreciated the meaning and effect of an English legal instrument because he is
alleged to have set his mark to it by way of signature” in this case there was no
jurat on the document hence it was held to be void.

 In Fori v Ayirebi [1966] GLR 627

It was held that a document admitted without proof that it was prepared upon
the authority of and signed by the illiterate party did not make it evidence against
that illiterate party, irrespective of the fact that the said document was admitted
into evidence without objection. In other words, there must be a jurat on the face
of a document indicating that the content of the document was read, interpreted
and explained to the illiterate signatories as required by section 4 of Cap 262 and
that they perfectly understood same before their marks were made thereto.
Failure to provide a jurat was fatal and hence rendered the transaction void.
  Order 66 rule 19 of the High Court Civil Procedure Rules (2004) (CI 47) provides
that failure to provide a jurat should not render a will void unless it is proved that
the testator did not know the content of the Will. But Section 2(6) of the Wills Act
1970 (Act 360) states that where the testator to a will is blind or illiterate, the will
shall be read to him making it mandatory. But The Supreme Court by a single
justice decision delivered in the case of Otoo (No 2) & Others v Otoo (No 2) &
Others [2013-2014] 2 SCGLR 810 followed the old decisions and declared a Will
void for failing to conform to the Illiterate Protection Act.

The legal effect of non- compliance with the Illiterate Protection Act for failure to provide
a jurat clause rendering a document void however shifted in subsequent cases.

• In Zabrama v Segbedzi [1991] 2 GLR 221

A more elaborate statement of the law was made by the Court of Appeal in by Kpegah
JA as follows: “ that where an illiterate executes a document which compromises his
interest and this document is being cited against him by a party to it or his party, there is
no presumption in favour of the proponent of the document and against the illiterate
person, that the latter appreciated and had an intelligent knowledge of the contents of
the document. The party seeking to rely on the document must lead evidence to prove
that the document was actually read and interpreted to the illiterate person who
seemed to have understood the content before signing or marking same.”

• In Re Kodie Stool: Adowaa v Osei [1998/99] SCGLR 23

The Supreme Court held that failure to provide jurat should render the agreement void
and no extrinsic evidence will be admitted. The Court held thus;
“ the provisions of section 4 of the Illiterate Protection Ordinance cap 262 were
mandatory and the matters required to be complied with must have appeared on the

face of the letter or document, without strict fulfillment of the section, any document
such as exhibits A, B, C and D tendered by the plaintiff, allegedly executed by an illiterate
person, had no probative value and was, to all intents and purposes, invalid.”

 Antie and Adjuwuah v Ogbo [2005 – 2006] SCGLR 494

Again, on the appropriate language to use in a jurat, the Supreme Court per
Wood JSC held case as follows: “our understanding of this line of argument is that,
under the Ordinance, a document written for an illiterate person would be
admissible only where it was interpreted in that person’s native tongue. We will
agree that theoretically, the reading over and interpretation would best be done
in the illiterate person’s native tongue. But we can think of no compelling legal
reason why some other language cannot be used to communicate the contents
to him … We do not think that it is open to a court to automatically refuse to admit
into evidence a document written on behalf of an illiterate person on the sole
basis that from the jurat, the interpretation clause was not carried out in his or her
own native tongue.”

 Duodu & ors. V Adomako & Adomako [2012] 1 SCGLR 198

The position of the law appears to be finally settled in this case. Wood CJ
emphasized that “courts must not make a fetish of the presence or otherwise of a
jurat on executed documents. To hold otherwise, without a single exception, is to
open the floodgates to stark injustice. Admittedly, the presence of a jurat may be
presumptive of the facts alleged in the document, including the jurat. But that
presumption is rebuttable, it is not conclusive… the Ordinance cannot and must
not be permitted to be used as a subterfuge or cloak by illiterates against innocent
persons. Conversely, notwithstanding the absence of the jurat, the illiterate person
 who fully appreciates the full contents of the freely executed document, but
feigns ignorance about the contents of the disputed document, so as to escape
legal responsibilities arising from such conduct, will not obtain relief… Thus any
evidence which will demonstrate that the illiterate knew and understood the
content of the disputed document, that is the thumb printed or marked
document, as the case may be, should settle the issue in favour of the opponent.”

 In other words, in any action it should be possible for the one seeking to enforce
the contents of the disputed document to show that despite the absence of a
formal jurat, the illiterate clearly and appreciated fully the contents of document
he or she marked or thumb printed. The absence of Jurat has ceased to be of
importance where there is evidence to prove that the illiterate person knew the
content of the document. The recent cases have departed from the old position
where the courts were of the opinion that the absence of a Jurat in a document
executed by an illiterate person rendered it a nullity.

 However, the Supreme Court in a recent 2018 decision of Sodzedo Akuteye and
Others v. Adjoa Nyarkoah affirmed the position taken by the courts in Duodu v
Adomako supra. According to Sophia Akuffo CJ who delivered the opinion of the
court, she stated that “it is evident from the terms of the provision of CAP 262 that
there is indeed no requirement that there should be a jurat clause certifying that
the document was read over and explained to the illiterate person. All a jurat
does is to specify certain formalities that the physical author of the document must
undertake.” The court further indicated that the jurat clause was simply developed
as a practice to be evidence that the writer of the document had indeed fulfilled
his or her formal statutory obligation under the Act towards the protection
afforded by the Act to blind and illiterate persons. That was why the presence of
the interpretation clause created only a rebuttable presumption that the
document was the deed of the illiterate person and not a conclusive one.
  Section 9 of CAP 262 provides an exception to documents which were prepared
by lawyers and other specified persons. It was explained in the case of Owusu v
Kumah & Anor [1984-86] 2 GLR 29 that the policy reason for this exemption may be
that lawyers who were generally men of good standing and were the parties’ own
chosen fiduciaries were unlikely to make anything but genuine documents to
reflect their clients’ true wishes.

Analysis and Conclusion

With respect to issue one above, from the facts and the laws outlined supra, the lease
document was prepared by Woderful Mamford a lawyer and a representative or a
fiduciary of the illiterate Naa Wahab who represented the Ayoma Stool the lessor in the
agreement. Generally, with an illiterate Naa Wahab as a party to a deed, there ought
to be a jurat clause to the effect that the deed was read and explained to him and he
seemed to have understood the content of the document before appending his mark
or signature to the document per the Illiterate Protection Act as discussed supra.
However, Section 9 of the Act makes an exception where the document is prepared by
a lawyer or a salaried clerk. The principle is that with the presumption of integrity
possessed by a lawyer as a fiduciary, he ordinarily would seek to protect the interest of
his client and act accordingly. On that score, the law permits the deed to be executed
with an illiterate as a party to it without a jurat clause. Hence, the deed will not be set
aside simply because it did not satisfy Section 3 of the Illiterate Protection Act. Case law
has held that failure to provide a jurat clause in such instances, raises a level of
presumption though rebuttable. Evidence may be adduced to prove to the contrary the
assertion by the stool to repudiate the contract with the absence of a jurat clause.

With issue two, the facts state that the parcel in the lease agreement indicated the
subject matter of the lease to be forty acres of land. Parcel is an operative part of a non-
statutory document and forms part of a deed as discussed above. In Oppong v Anafi
(2011) 1 SCGLR 556@ 564 the Supreme Court quoted with approval of the High Court
decision in the case of Wilson v Brobbey(1974) 1 GLR 250. and held that “ where parties
have embodied the terms of their contract in a written document, extrinsic evidence or
oral evidence will not be admissible to add to, vary; subtract from or contradict the terms
of the written document. Hence , the court ordinarily will not admit any extrinsic evidence
to contradict the written terms in the contract unless a vitiating factor could be proven
to the contrary. Failure of which the court will construe the subject matter of the lease to
be forty acres and not four acres as the stool asserts.

With issue three above, the law is that where words and figures contradict, the amount
written in words will prevail over that in figures as explained supra. From the facts of the
question, the receipt clause provided that the stool acknowledged the payment of Eight
Thousand Ghana Cedis (GHc 8000) and subsequently issued at the instance of the stool
to Zenith stating that the purchase price was Ten Thousand Ghana Cedis (GHc 10 000)
and Zenith paid GH 8000 during the execution of the agreement. The principle in Section
70(6) of The Land Act 2020 (Act 1036) discussed above will apply and the figure in words
will prevail over that in figures. Again, the legal effect of a receipt clause in a deed is
that it serves as evidence that a party has received consideration in payment of a
purchase price for the subject matter being transferred. The Land Act provides that once
the document or transaction contains a receipt clause in the nature of payment of
money or securities, it will be sufficient to serve as discharge of the consideration paid
and the person who paid it will not need to provide further receipt to prove same.
Therefore the consideration for the parcel of land will be Ten thousand Ghana Cedis and
not Hundred Thousand Ghana Cedis.

However, If all the aids and maxims fail in aiding the interpreter to resolving the issues to
reflect the intentions of the parties then as a last resort, the contra proferentem rule will
be resorted to in which case the document will be construed against the maker being
the lessor the Ayoma Stool represented by Naa Wahab. The parties need to adduce
evidence to prove their assertions to contradict written content of the deed where the
court will allow it failure of which the deed will be construed as was executed between
the parties.

QUESTION THIRTEEN (13) OF THE MANUAL

The area of law in these set of facts is Constitutional interpretation with reference to
approaches to constitutional interpretation.

The issue is Whether or not the President acted contrary to Article 70(2) of the 1992
Constitution by nominating Professor Harry Azoka for consideration by the Council of
State for the office of Chairman of the Electoral Commission.

GENERAL DISCUSSION OF THE LAW

The essence of interpretation is to look for a meaning that will not render the text absurd
or obscure. Interpretation is also needed because
 Words are ambiguous
 Technological Advancement: New words are coined and continue to be
introduced and their meanings could be ascertained from their environment.
 Because of Context: Even though words are used in their ordinary sense, it may
be necessary to construe them in order to conclude that they do not require
interpretation because they have been used in their ordinary sense in the
particular context. Among other reasons.
Interpretation is grouped into three broad categories. They are CONSTITUTIONAL
INTERPRETATION, INTERPRETATION OF STATUTES AND INTERPRETATION OF NON-STATUTORY
DOCUMENTS. For the purposes of these set of facts, this discussion would be on
constitutional interpretation.

CONSTITUTIONAL INTERPRETATION
A constitution is both a legal and political Document. Per Acquah JSC (as he then was)
in the case of NATIONAL MEDIA COMMISSION V AG [2000] SCGLR 1, “…it is a document
that expresses our sovereign will and embodies our soul. It creates authorities and vests
certain powers in them. It gives certain rights to persons as well as bodies of persons and
imposes obligations as much as it confers privileges and powers…”

When interpreting the constitution, regard should be given to THE SUPREMACY OF THE
CONSTITUTION.
Per Article 1 of the 1992 Constitution, it is the supreme law of the land and any other law
which is found inconsistent with any provision of the constitution is void to the extent of
the inconsistency This doctrine of supremacy of the constitution gives power to the
court to review laws made by parliament in excess of their powers. This jurisdiction is
solely given to the Supreme Court per Articles 2 and 130 of the Constitution. This was
applied in the case of MENSIMA V ATTORNEY-GENERAL & OTHERS [1996-97] SCGLR 676
where the Supreme Court struck out Regulation 3(1) of the Manufacture and Sale of
Spirits Regulation, 1962 (LI 239) made under the parent Act, the Liquor Licensing Act,
1970 (Act 331) as unconstitutional on the grounds that the regulation sought to make it
mandatory for a person to obtain a license to distill akpeteshie, a local liquor, to first
become a member of a co-operative society. This offended Article 21(4)(c) of the 1992
Constitution. Acquah JSC held that “Article 1(2) of the 1992 Constitution is the bulwark
which not only fortifies the supremacy of the constitution but also makes it impossible for
any law or provision inconsistent with the constitution to be given effect to. And once
the constitution does not contain a schedule of laws repealed by virtue of its provisions,
whenever the constitutionality of any law vis-à-vis a provision of the Constitution is
challenged, the duty of the court is to determine the authenticity of the challenge…For
Article 1(2) contains a built in mechanism which automatically comes into play
whenever it is found that a law is inconsistent with the constitution”.to the interpretation
Act,

Furthermore, the constitution should be construed to mirror its attribute as a living

organism. This means that external factors may be considered in construing a
constitution and time and period may be of essence. The memorandum to the
Interpretation Act, 2009 (Act 792) provides that “the construction and interpretation of
the Constitution, 1992, will not be tied down by the Interpretation Act but will take
account of the cultural, economic, political and social developments of the country…
It will grow with the development of the nation and face challenging changes and new
circumstances. It must be allowed to germinate and develop its own peculiar
conventions and construction not hampered by niceties of language and form that
would impede its singular progress.” This principle was also established in the celebrated
case of TUFFUOR V ATTORNEY GENERAL [1980] GLR 637—667 where the court held that
“A written constitution is not an ordinary Act of Parliament. It embodies the will of the
people. It also mirrors their history… The Constitution has its letter of the law. Equally it
has its spirit…its language…it must be considered as if it were a living organism.” Also,
the court in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE ADJEI held per
Sowah CJ that “The narrow rules of construction applicable in the cases of wills,
contracts, statutes and ordinary legislation may or may not be adequate when it
comes to the interpretation of a constitution or law intended to govern the body politic.
Our interpretation should therefore match the hopes and aspirations of our society and
our predominant consideration is to make the administration of justice work.”

Also, the memorandum to the Interpretation Act provides that the Constitution must be
construed or interpreted in a manner
(a) that promotes the rule of law and the values of good governance,
(b) that advances human rights and fundamental freedoms,
(c) that permits the creative development of the provisions of the Constitution and the
Laws of Ghana, and
(d) that avoids technicalities which defeat the purpose of the Constitution and of the
ordinary law of the land.

THE PURPOSIVE APPROACH TO INTERPRETATION.

This approach was laid in the case of Pepper (Inspector of Taxes) v Hart [[1993] 1 All E.R.
42]

The memorandum to the Interpretation Act, explained what the purposive approach to
interpretation is. “…The Purposive Approach to interpretation takes account of the
words of the Act according to their ordinary meaning as well as the context in which
the words are used. Reliance is not placed solely on the linguistic context, but
consideration is given to the subject-matter, the scope, the purpose and, to some
extent, the background. Thus, with the Purposive Approach to the interpretation of
legislation there is no concentration on language to the exclusion of the context. “

In AGYEI TWUM v AG & AKWTETEY, the Supreme Court considered the importance of
purposive approach to interpretation. In constitutional interpretation, where no
technical words or expressions have been used, and where it is silent on the meanings
of these words or expressions, the first rule to be invoked is the ordinary or plain
meaning. If this interpretation advances the purpose, that interpretation would be
given. However, if the application of the literal meaning would lead to absurdity, the
purposive approach would be resorted to. Date Bah JSC explained the purposive
approach as “In my view, the purposive approach to interpretation of our Judgments
of the Constitution requires that…implicit words be read into the Constitution to avert a
manifest absurdity.”

Georgina Wood CJ (as she then was) applied this rule in the case of REPUBLIC v HIGH
COURT ACCRA; EX PARTE CHRAJ (Anane Interested Party) [2007-2008] SCGLR 213. In this
case, the court held that the word “complaints” in Article 218 (a) of the 1992
Constitution as limited only to formal complaints made to or lodged with the
Commission by an identifiable complainant, not necessarily by the victim, but by an
identifiable complainant armed with a complaint. The Learned Judge held that …” In
this exercise I will give primary consideration and weight to the actual text and structure
of not only Article 218(a) but the whole of Article 218 and apply the literalist-ordinary
dictionary meaning of “complaints”, in the context of the entire Article 218. What I
gather from the entire text and structure of Article 218 reveals the intention of the
framers and I will want to give effect to that discoverable legislative purpose seeing
also that the meaning I ascribe to “complaints” accords with the legislative purpose
and leads to no absurdity or injustice…”

However, caution was given by the same Learned judge on the use of the Purposive
Rule of Interpretation in the case of REPUBLIC v FAST TRACK HIGH COURT; EX PARTE
CHRAJ (Dr Anane’s Case) [2008]4 GMJ 1 when she held that “The purposive rule is not a
carte blanche for rewriting legislation, let alone our constitution and should never be
used as a ruse, a cloak or guise to do so.”
Hence in light of the above principles laid, the constitution should be construed or
interpreted purposively as a living organism capable of growth to be able to address
both abnormal and usual circumstances which may arise after its promulgation.

CIRCUMSTANCES UNDER WHICH A PERSON CAN GO FOR CONSTITUTIONAL

INTERPRETATION
The case of REPUBLIC V SPECIAL TRIBUNAL; EX PARTE AKOSAH gave four yardsticks for
determining whether an issue was one of enforcement or interpretation of the
constitution. They are:
  Where the words of the provision were imprecise or unclear or ambiguous.
OR where one party invites the court to declare that words of the article
had double meaning or were obscure or else meant something different
from or more than what they said.

 Where rival meanings had been placed by the litigants on the words of
any provision of the constitution.

 Where there is a conflict in the meaning and effect of two or more articles
of the constitution and the question was raised as to which one should
prevail.

 Where on the face of the provisions, there was a conflict between the
operation of particular institutions set up under the Constitution.

In this case, the parties have placed rival meanings on Article 70(2) of the 1992
Constitution which calls for its interpretation by the Supreme Court.

APPLICATION OF THE LAW

It is the argument of the Public Interest Law Group that the contents of the
announcement of the President and his actions are contrary to the letter and spirit of
the constitution. It is their contention that upon a true and proper interpretation of the
above article, it is the constitutional duty of the Council of state to advice the President
by way of a nominee for the position of Chairman of the Electoral Commission and not
the reverse.
It is also the view of the Attorney-General that adopting the view of the Applicants will
defeat the purpose of Article 70(2).

The Purposive Approach to interpretation would be used in light of the characteristics of

the constitution discussed supra to analyze the positions of both parties. In order to
attain the purpose of Article 70(2) which is the subject of contention, the whole of
Article 70 must be considered. Article 70(1) lists the portfolios that the President shall,
acting in consultation with the Council of State appoint. So basically, this Article talks
about the appointments by the President.

The literal or ordinary meaning would be given to the words to determine if the
legislative purpose can be brought to bear. The phrase “acting on the advice of” in this
context means to do something because you have been advised or told to do it. The
word “shall” indicate a mandatory obligation. Hence the Article 70(2) could be
interpreted to mean that the President is obligated to appoint the Chairman, Deputy
Chairman and other members of the Electoral Commission and he must act on the
advice of the Council of state. Now, the word “appoint” means to assign a job or a role
to someone. It indicates some sort of finality with regards to the job or role.
The intention of the Legislature could thus, be deduced by applying the ordinary or
literal meaning of the words as used in the context of Article 70(2) of the 1992
Constitution. It is the intention of the framers that the President shall act on the advice
given by the Council of State before assigning the job or role of Chairman, Deputy
Chairman and other members of the Electoral Commission. The intention of the framers
has been obtained by the literal or ordinary meaning of the words and I need not resort
to the second step in the purposive approach which is to imply words into the text to
interpret it in order to deduce its legislative intent.

The President in this case, issued an official statement to the effect that he had duly
nominated Professor Harry Azoka for consideration by the Council of state. The
emphasis here is the word “nominated” which literally means to officially suggest
someone for a position, an honour or election. Here, the word does not have a sense of
finality. So, this action of the President means that Professor Henry Azoka has been
suggested for the Council of State to advice the President on whether or not he should
be appointed to the Office of the Electoral Commission and the President is bound by
the advice that would be given.
Hence, the Interpretation given to Article 70(2) of the 1992 Constitution by the Public
Interest Group does not mirror the true intention of the framers of the constitution and
hence should not be applied. It was not the intention of the framers of the constitution
that the Council of State advise the President on the nominee for the position of
Chairman of the Electoral Commission as argued by the Public Interest Group.

In conclusion, the President’s action and statement was not in contravention Article
70(2) of the 1992 Constitution and as such the interpretation of Article 70(2) of the 1992
Constitution should be rejected.

INTERPRETATION PRESENTATION- QUESTION ONE FROM THE MANUAL

With reference to the basic rules of construction of documents and appropriate

authorities, write a reasoned ruling on this matter.

The area of law in this problem question is Interpretation of Non-Statutory Documents.

HER LADYSHIP OFEIBEA ANSAH :-

By her application, the Applicant herein, a primary school teacher at Joy Primary school,
Adentan is praying for an order for her to benefit from her share of the lump sum paid to
SIDALCO Group of Companies by the insurance company upon the death of her father.
THE BRIEF FACTS

That the deceased, Kwasi Manso, was a native and employee of SIDALCO Group of
Companies. He was a member of the Company’s second tier pension scheme. Thus,
upon his death, the insurance company paid a lump sum to the Company to hold in trust
for Mr. Manso’s dependents and relations. A clause in the scheme defined relation as
any spouse, ancestor or dependent. This application was instituted by Adwoa, the
illegitimate daughter of the deceased for her share of the benefits. This application has
been opposed by Mrs. Manso and her children who are legitimate children of the
deceased.

ISSUE

The issue before this honorable court is whether or not Adwoa can be considered a
dependent or a relation so as to benefit from the estate of the deceased.

CASE OF THE APPLICANT

Counsel for the Applicant contends that the word “descendent” should be given its
ordinary meaning and a meaning which is socially acceptable to bestow benefits on all
persons brought forth by Mr. Kwasi Manso.

CASE OF THE RESPONDENT

Counsel for the Respondents argue that the word “descendent” in an instrument such as
a Will must be given a technical legal meaning. Counsel further stated that such words
in those documents are descriptive of blood relationship and must be taken prima facie
to indicate only those who fall within that description through legitimate link.

RULING
An insurance policy such as the one which is the subject of this dispute can be considered
as a non-statutory document. In the case of BINEY v BINEY [1974] 1 GLR 318, CA the court
laid down the following as cardinal principles for the interpretation of documents:

1. The construction must be as near to the mind and intention of the author as the
law would permit.

2. The intention must be gathered from the written instrument itself; and

3. Technical words of limitation will have their strict effect.

From the case of NAJAT METAL ENTERPRISES LTD v HANSON [1982-83] GLR 81, one can add
a fourth principle which is that

4. The document must be read as a whole.

The first principle is that the construction must be near to the mind and the intention of
the author. It states that an interpreter must start from the premise that the author did not
intend for the document to lead to absurdity or unfair results. Thus, if by applying the literal
meaning of the word it will lead to absurdity or unfair results, the interpreter may modify
it to reach a meaning that best reflects the intention of the author.

The context in which the words are used can give the word a wider meaning. For
instance, in IMPRAIM v BAFFOE [1980] GLR 520, the court had to decide whether or not
the word “children” included the grandchildren. The court held that the true intention of
the testator was to cater for the extended family and the house was to serve as a family
house. Thus, the grandchildren of the devisees as family members could not be said to
have been excluded by the testator.

On the other hand, in the unreported case of ADDAI v DONKOR, March 2, 1992, the
Supreme Court construed the word “children” to mean the sons and daughters of the
said niece and not grandchildren of the said niece or extended family. Here, the court
adopted the dictionary definition because the document was prepared by a lawyer
who knew the difference between the word “children” and “descendants”.

The second principle to be considered when interpretating a document is to gather the

intention from the written instrument. This means that the intention must be gathered from
within the four corners of the document. It also follows the maxim animus hominus est
anima scripta which means intention is the soul of the instrument. This means that the
interpreter must give meaning to what is expressed not what ought to have been. This is
to avoid substituting what the party intended for the wisdom of the court. In ALLAN SUGAR
(PRODUCTS) LTD v GHANA EXPORT CO LTD Francois JA as he then was stated that

“It is no function of the court to rewrite an agreement for the parties by inserting terms
that would have been beneficial but were overlooked especially when such an
interpretation would amount to an interference with a third party’s bargain”

In MONTA v PATERSON SIMONS (GHANA) LTD [1974] 2 GLR 162 the court per Mensah
Boison J said

“A wholesome principle of interpretation is to construe the language used in the

particular document and although precedents are a useful guide it seems …in the field
of interpretation it may be said that there are no precedents strictly so-called as each
document is to be construed specifically. Our task therefore may be lightened as argued
by counsel by what words ought to have been used but were not”

The third principle is that technical words should be given their technical meaning. This is
where words or expressions have acquired technical meaning or considered a term of
art. The court must then give effect to such meanings and not their ordinary meaning. In
MONTA v PETRESON SIMONS (supra), the court held that it is a rule of construction that
where legal terms or words of well-known import are used by lawyers, especially
conveyancers, they will have their technical legal import. In BINEY v BINEY (supra) the
court held that the word “their heirs and assigns” were technical words of limitations and
must bear their technical meaning…” In ARBENSER v HESSE [1981] GLR 411 the court
construed the words “unto and to the use of my daughters …and their heirs being issues
of their respective bodies as tenants in common” as a term of art.

The facts of SYDALL v CASTINGS LTD [1967] 1 QB 302 are identical to this present case. The
only difference was that here, it was the illegitimate son and not an illegitimate daughter.
In this case, the court held that the word “descendent” embodied in the definition of the
relation in a legal document conferring property rights on relations must be construed as
a term of art. This means that the word indicated a blood relationship and legitimate line.
Nevertheless, the dissenting opinion of Lord Denning MR was that the word “descendent”
had not been construed in any binding authority so as to make it a term of art. In his
opinion the word should be given its ordinary meaning socially acceptable in the third
quarter of the 20th Century, illegitimate child was a relation of her father and the
descendant from him and therefore qualified to benefit under the scheme.

The majority holding of the court is in line with the arguments raised by counsel for the
Respondents in this present case while the dissenting opinion is synonymous to the
argument of the Applicant.

I am of the opinion that the reasoning of the majority does not reflect our socially
acceptable standards especially in the 21st century. This is because the 1992 Constitution
of Ghana in Article 28(1) (b) states that every child, whether or not born in wedlock shall
be entitled to reasonable provision out of the estate of its parents. Section 7 of the
Children’s Act 1998, Act 560 buttresses this point further by restating this exact provision in
the Act. Section 18 of the Intestate Succession Act, PNDC Law 111 also defines a “child”
as including a natural child, a person adopted under an enactment or under customary
law. It does not state only legitimate children. The word ‘includes’ used in this definition
also suggests that the definition is not exhaustive and would include other persons
recognized as child.

These provisions support the reasoning and definition stated by Lord Denning MR in his
dissenting opinion.

The fourth and final principle is that the document must be read as a whole. This means
that the document is to be read wholly and not in part. In BOATENG v VALCO [1984-86]
GLRD 85 where the court dismissed the appeal because upon reading all three clauses
together, it was only fair that even though the option of terminating by paying a month’s
salary in lieu of notice was absent, it could be inferred or implied that that option could
also be available to the employer.

The court relied on a dictum of Lord Halsbury LC in JODRELL v SEALE [1890] 44 Ch 590 at
605

“I am called upon to express an opinion on what is the meaning of this written

instrument… I am prepared to look at the instrument such as it is; to see the language
that is used in it; to look at the whole document, and having looked at the whole of the
document, to see through the instrument what was the mind of the testator”

However, the case of MANU v EMERUWA [1971] 1 GLR 442 is to the effect one must guard
against the use of strands of phraseology or individual words that defeat the intention of
the author. In NAJAT METAL ENTERPRISES LTD v HANSON (supra), the court held that since
the plaintiff company was part of the group of companies referred to in the letter, the
words “Najat Company” referred to the plaintiff company and no other company and
that any other interpretation would not give effect to the intention as expressed in the
letter.

In light of the above principles, I will proceed to answer the issue before this court. To
answer the issue before this court we must ask ourselves whether the literal definition of
the word descendant will lead to fair results. I am of the opinion that if the court adopts
the literal definition of the word descendants which will only consider the legitimate
children of Mr. Manso it will lead to unfair results. This is because Mr. Manso had other
children outside wedlock who were also his children by our Ghanaian laws.

This interpretation has its backbone or roots in the 1992 Constitution of Ghana, the
Children’s Act 1998, Act 560 and the Intestate Succession Act, PNDC Law 111.Thus, it will
be absolutely absurd and totally unfair to deny a child recognized by the Constitution
and by other enactments the right of benefiting from the estate of their deceased parent
based on the concept of illegitimacy which is clearly alien to our jurisprudence.

This does not in any way offend the second principle which limits an interpreter to the
four corners of the document. In my opinion, the rational for allowing dependents to
benefit from an insurance scheme is to allow persons who are dependent on policy
holders to benefit from the scheme especially in a case such as this when the policy
holder is deceased. In assessing the four corners of the scheme, the scheme defined the
relation as “any spouse, ancestor or dependent”. This means that any of the
aforementioned persons could benefit from the deceased. If the author of this scheme
made room for even ancestors of the policy holders to benefit, the assertion that they
did not intend for illegitimate child to benefit will be simply far-fetched. I refuse to agreed
that that was the intention of authors of the said scheme.

To answer whether or not the term ‘descendent is a term of art’, I agree with the
dissenting opinion of Lord Denning MR in the case of SYDALL v CASTINGS LTD [1967] 1 QB
302. This is to the effect that there is no case law which supports the assertion that it is a
term of art which will then mean that the court will have to give it a technical meaning.
There is actually no need for this honorable court to travel down this road.

Furthermore, I am of the opinion that the reasoning of the majority does not reflect our
socially acceptable standards especially in the 21st century. This is because in Ghana,
when one refers to the descendants it includes both legitimate and illegitimate children.
Dr. J. B Danquah in his article on Akan Customary law said implicitly that

“The law as it stands at present, recognizes as legitimate a child born to a man who had
cared for an unmarried girl for whose baby he stands as putative father. Marriage is
necessary to make a child legitimate, but it would seem that among the Akans a bastard
child is not particularly one whose mother and father are unmarried but one whose
paternity is indeterminable”.

This Akan practice is common amongst other tribes in Ghana. A child is legitimate a even
though the father never married the mother, although in certain customs one will have
to prove that the paternity was acknowledged, the child was named and the father took
care of the pregnant woman until delivery as per the case of Mr. Coleman in Coleman
v Shang. This was a requirement under the Ga Adangbe community. It is for that reason
a number writers disagree with the decision of the Court of Appeal in the case. Thus, most
customs or tribes in Ghana would agree with the definition of descendants which means
a blood relationship and not that of a legitimate line. This position has also been enshrined
in the 1992 constitution. Commented [CO1]: Please take a look at this paragraph
again.
Commented [MOU2R1]:
Finally, in considering the document as a whole especially by considering the definition Commented [MOU3R1]:
clause aforementioned together with the whole insurance scheme, the court is of the
opinion that the author did not intend to exclude illegitimate children of members of the
scheme from benefiting from the scheme.

CONCLUSION

Flowing from my above analysis, I hereby conclude that, from my considered evaluation
of the Application herein, the Applicant’s application for an order to benefit from her
share of the lump sum paid to SIDALCO Group of Companies by the insurance company
upon the death of her father is of merit and is accordingly granted.
Area of law: Constitutional Interpretation; Specifically Approaches to Interpretation.

Issues.

1. Whether or not the Constitution needs to be amended to provide for the first
woman president.
2. Whether or not the Constitution should be amended to remove outmoded
terminologies.
3. Whether or not the President's action was in contravention of the Constitution.

General Discussion of The Law.

The definition of interpretation is not clearly settled within the legal community.
Depending on the field that one finds himself the meaning of interpretation would be
different. Consequently, there are therefore narrow, broad and technical definitions of
the word "interpretation ".

Twinning & Miers: How to Do Things with Rules third edition chapter 4 at page 181 defined
interpretation to strictly mean the clarification of the general scope and meaning of a
rule.

A broad definition of interpretation can be said to be the rational process by which an

interpreter ascertains the scope, subject matter, purpose and legal effect of Statute,
document and the Constitution. It can further be said to be the conclusion process of
arriving at a solution.

There are various reasons why document, statutes or the Constitution is interpretated.
Some of these reasons include that since some words may be ambiguous there is the
need to interpret to arrive at its meaning. Also, some words are by themselves imprecise
and there is therefore the need to interpret to make the word precise in a particular
context. There is also the need to interpret a document or a statute in order to give effect
to the intention of the author. It must be noted that where words are used in their ordinary
sense, it may be necessary to construe them in order to conclude that they do not require
interpretation since they have been used in their ordinary sense in the particular context.
There is also the need to interpret since some words have become obsolete.

There are several approaches to interpretation and they include: Originalism, textualism,
intentionalism, literalism, pragmatism, living constitutionalism, political process theory and
purposive approach.

The Living Constitutionalism would be discussed because of its similarly with the Purposive
approach to interpretation. An example is that both look for the original meaning of the
words and give effect to their ordinary current meaning. Both also take into consideration
the context when assigning meaning to the text and where necessary upgrade the
meaning without formal amendment.
The Living Constitutionalism is limited to interpreting the Constitution. This approach
asserts that constitutional interpretation has to do with time. They look for the past
intention of the law maker, the present values of the Constitution and the future
consequences of the decision on the society. They use Constitutional interpretation to
bridge the gap between the old and the Modern needs. For example, "telex" could be
interpreted to include "Internet ". In construing the Constitution, there is the need to take
into account the Subjective Purpose and the Objective meaning. The Subjective Purpose
looks at the meaning given to the Constitution at the time it was made and the Objective
Purpose looks at the meaning at the time of interpretation. These two approaches take
into account the economic, social, political and cultural factors that exists. In the case of
Tuffour v Attorney-General, the Supreme Court held that the Constitution is a living
organism capable of growth and development. It has a letter and spirit. The letter is
constant but spirit changes. The Living Constitutionalism upgrade the Constitution at any
point in time without formal amendment in order to meet the intent of the system. It must
be noted that the Living Constitutionalism has been submerged under the Purposive
Interpretation.

In resolving the above issues, the Modern Purposive Approach would be used. However,
since the Modern Purposive Approach is offshoot of the Purposive approach, the
Purposive Approach will first be discussed.

The task of the interpreter under the Purposive approach is to look out for the purpose for
which the text was created. They do not limit themselves to the words as used in the text
but go further to unravel the purpose behind those words. The purposive approach is an
approach on its own and does not rely on any of the other approaches. It must be noted
that context forms 70% in purposive interpretation.

Per the Memorandum to the Interpretation Act, 2009 (Act 792), the judges have
abandoned the strict constructionist view of interpretation in favour of the true purpose
of legislation. The Act per Section 10 enjoins judges to use the purposive approach to
judicial interpretation. The Section further allows for the use of Parliamentary debates and
other sources like legislative antecedents, reports of a Commission, pre-parliamentary
materials, relevant treaties to mention a few. The Act further provides that the courts shall
construe the Constitution or any other law in a manner that promotes the rule of law and
values of good governance, that advances human rights and fundamental freedoms,
that permits the creative development of the provisions of the constitution and the laws
of Ghana and that avoids technicalities and recourse to niceties of former and language
which defeat the purpose and spirit of the Constitution and of the laws of Ghana.

In purposive approach to interpretation, the courts are required to take into

consideration the words of the enactment in accordance with their ordinary meaning as
well as the context in which they are used. The courts do not solely rely on the linguistic
context as pertained under literalism to interpretation but they must consider the subject
matter, the scope, the purpose and to some extent the background of the law. Under
the Purposive approach the courts do not concentrate on language to the exclusion of
the context. The courts are to read the enactment as a whole before the various
provisions are interpreted. An enactment under this approach is deemed as one
document and every part of it as a unit of the whole. In the Supreme Court case of
Republic v. High Court, Accra, Ex Parte Expendable Polystyrene Products Ltd., the majority
per Afreh JSC held that statutes should be read as a whole and should be considered in
both their internal and external context.

The Purposive approach takes into account the context of the text to ascertain the
purpose or the intention of the law maker. The basis for purposive approach is two-fold.
The first condition is that in some situations, the interpreter should be able to extract the
legal meaning from the range of semantic meanings of the text and secondly, try as
much as possible to give the text the meaning that best achieves the aim of
interpretation in law. The purposive approach to interpretation maybe equated to the
Aharon Barak’s subjective purpose. However, it ends at the first tier and does not take
into consideration the second and third tiers that is the objective and ultimate purpose.

The Modern Purposive Approach to interpretation embraces the purposive approach

but suggest a formula unlike the purposive approach to ascertain the purpose of the
enactment. There are several proponents but Aharon Barak’s three-pronged approach
will be the subject for discussion.

Aharon Barak developed the three-tier or three-prong approaches to interpretation. He

talks about three purposes which every interpreter interpreting any document must
ensure to establish. They are the subjective purpose, the objective purpose and the
ultimate purpose. The subjective and objective purpose are variables which work
simultaneously and the ultimate purpose is always constant.

The Subjective Purpose looks at the meaning of the text at the time it was created. The
subjective purpose is made up of the text which is also known as internal source and the
context which is also known as the external source. The text is the most reliable source as
the words were chosen by the author to reflect his intention. The text is the ordinary
meaning at the time of creation. The internal source is the intention expressed in the text
by the author and the presumption is that the words express a fair representation of the
author's intent. This presumption is rebuttable since where there is a clear mistake in the
drafting which would render it unworkable the judges are to look for the intention of the
author beyond the text. The context is the intent of the system which is the economic,
social, cultural, values, beliefs and technological advancement at the time of the
creation of the text. A combination of the two gives the Subjective Purpose. In Tuffour v
Attorney-General supra, the court discussed the need

to take into consideration the intent of the system including its values.

The objective purpose is not what the author intended but a reasonable draftsman would
have intended after considering the text, social factors, historical factors, values and
norms. This purpose is also made up of the text which is the internal source and the
context which is also known as the external source. The text is made up of written and
unwritten words which have implicit and explicit meaning. According to Aharon Barak
words grow and must therefore be seen as a living tree. The external source includes
similar text or related text. Here where similar words were used in another Statute or
document it may help understand the text well. The text is said to be in pari materia as
was held in the case of Afendza III v. Tenga. Aharon Barak refers to the external source
as "nearby text" or "natural environment " and according to him it includes "the immediate
normative layout in which the text in question operates". The other external source
enumerated was the general, social and historical background, case law, jurisprudence
and legal culture and basic values of the system. The basic value to him include equity,
justice and morality. These include the basic fundamental human rights, the objective for
rule of law, freedom of speech, respect for human dignity, the integrity of the judiciary,
doctrine of separation of powers, peace and security and the principles of natural justice.
The interpreter is to ensure that he acts logically, reasonably and prudentially to ensure
harmony in the test. It is important that he does not bring his own objective purpose as
this will not reflect societal needs. Presumptions are applied where the text can bear it
but where it cannot it is not applied. In Asare v Attorney-General the Supreme Court
distinguished between the subjective purpose and the Objective Purpose.

There are two means of getting the ultimate purpose. The first is when both the objective
and subjective are the same then we have the Ultimate purpose. However, where there
is a conflict or a gap, a circuitous process is used to correct all mistakes and errors until
the ultimate purpose is arrived at. Where there still remains a conflict or gap after the
circuitous process is done, the objective purpose should be taken as the ultimate
purpose.

APPLICATION OF THE LAW TO THE FACT

From the facts of the case Ruritania attained its independence in 1800 and promulgated
its Constitution that same year. The Constitution has since been amended twice and
most of its vocabulary has become outmoded which has resulted in the frequent
demonstration by the opposition. Article 40 of the Constitution provided that President
shall communicate his absence from the country to the Speaker of Parliament through
telegram. The President's communication through email to the Speaker has resulted in a
petition for his impeachment by the opposition. Also, in the recent election, a female
President was elected and the opposition are of the view that since the Constitution was
made without contemplating that a female may become President the Constitution
must be amended to make such provision.

Applying the law to the first issue raised above, at the time the Constitution was
promulgated women were considered as part of their spouse property. The Subjective
Purpose then considering the context or external source is that Women at the time of the
promulgation of the Constitution could not be President. With the text being the same
and the context or external source changing where now women have equal rights as
men. A reasonable draftsman construing the same text under the current disposition
would arrive at a different purpose which provides that both men and women can be
President. This would be the Objective Purpose. Since the Subjective Purpose and the
Objective Purpose are in conflict, to arrive at the Ultimate purpose a circuitous process
needs to be applied to correct the errors and mistakes until an Ultimate purpose is
achieved. Where this fails the Objective Purpose would be deemed to be the Ultimate
purpose. This therefore implies that the ultimate purpose is that both men and women
can be president taken into consideration the current external source. Therefore, the
Constitution does not need to be amended since the spirt of the constitution would
therefore accommodate the changes that occurs in a society to achieve the ultimate
purpose.

In resolving the second issue the outmoded terminologies that is typewriter, telegrams
and telegraph were used by the framers to achieve a particular purpose taking into
consideration the context. Aharon Barak viewed purpose for which provisions of the
Constitution was promulgated to include values, goal, interest, policies and aims that the
text was designed to actualize. The subjective purpose then is the purpose that the
outmoded terminologies achieved under the Era the Constitution was promulgated
taking into consideration the context in relation to the technological advancement. In
ascertaining the Objective Purpose taking into consideration the context where the has
been technological advancement for instance Computers in place of typewriters. If the
purpose the typewriters served when the Constitution was promulgated is the same
purpose the computer is serving then an expansion by a reasonable draftsman of the
word typewriters to include Computers is enough not to result in the amendment of the
Constitution. This is because the objective purpose these outmoded terminologies served
did not change even when the context changed.

Since there is no conflict between the Subjective and Objective purpose the ultimate
purpose would be that the purpose for which these outmoded terminologies were
provided has not changed irrespective of the expansion of their meaning taking into
consideration the context.

Lastly in resolving the third issue, the President was required to send notification to the
Speaker of Parliament anytime he is leaving the country through telegraphic message
per Article 40. This text implies that the intention of the framers of the Constitution was
that at all times the President was going to be absent from the country he had to inform
the Speaker in a formally. The context which is the intent of the system may be
ascertained by recourse to the political, social, cultural, values, beliefs and the
technological advancement that existed then. The intent of the system based on
technological advancement in the 1800's was telegraphy. The Subjective Purpose which
was for the President to communicate his absence from the country formally to the
Speaker of Parliament was achieved through telegraphic message since this was the
external source available then. Although the text remains the same the context or
external source have changed. This is because under the current era where there has
been technological advancement where messages could be sent by emails, phone
calls. In construing the Objective purpose if the purpose for which the framers of the
Constitution intened still remains that there be a formal communication from the
President to the Speaker of his absence then the mode of communication which was by
email does not affect the purpose of the Article. Since there is no conflict between the
Subjective and Objective purpose the Utimate purpose is that the President must at all
times communicate his absence to the Speaker irrwspective of the medium he chooses.

In conclusion although there has been various changes which affects the context of the
provisions of the Constitution since in all cases the purpose for which those provisions
were provided has not changed then the Constitution needs not be ammended. Also
the impeachment of the President is unwarranted since he fulfilled the overall purpose of
Article 40 which was to communicate his absence from the country.

INTERPRETATION TUTORIALS

HIS LORDSHIP SIR DENNIS ADJEI (JA)

QUESTION SIX OF THE MANUAL

PRESENTED BY ROSEDARLING DODOO

Dadieba, a wealthy business tycoon died on January 12, 2012. By Paragraph 8 of his Will
dated May 12, 2009, the testator devised that the shares in his hotel, Bigiza Hotel Ltd
should be distributed as follows:
I make the following bequeaths:
To my wife Alice, Ten Thousand Ghana cedis shares in Bigiza Hotel Limited;
45 percent shares in Bigiza Hotel to Rose and her daughters
30 percent shares to my six children with Alice
10 percent shares to my sister korkor;
10 percent shares to my cousin Dr. Kankama
5 percent shares to Odoi my business partner.
In June 2010 and during the lifetime of the testator, the hotel business became defunct
and the testator consequently converted the building, housing the hotel into rental
accommodation. The testator did not effect any changes to the provisions of the said
Paragraph 8 of his will. Following his death, the Plaintiffs brought an action in the High
Court, seeking an interpretation of Paragraph 8 of the Will on the ground that the use of
the word‘shares’ appeared ambiguous because the hotel as a limited liability company
had become defunct at the time of the testators demise and that he has indeed
converted the building, housing the hotel into rental accommodation before his demise.
The Plaintiffs have invited the court to interpret the word ‘shares’ as a term of art in
company law and consequently not applicable to rental income accruing from the
building.
As counsel for the Defendants, respond to the contentions of the Plaintiffs.

The AREA OF LAW that can be deduced from the facts is

Interpretation of Non Statutory Documents with special reference to the Construction of

Wills.

The main ISSUE is

Whether or not ‘shares’ in the company can be construed as rental income accruing
from building.

GENERAL DISCUSSION OF THE TOPIC:

The general principle applicable to the Construction of Wills was stated by Lord
Wensleydale in the English case of Grey & Pearson (1857) 6 HLC at 61 as follows:

“In construing Wills and indeed statutes and all written instruments the grammatical and
ordinary sense of the words is to be adhered to, unless that will lead to some absurdity or
some repugnancy or inconsistency in the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to avoid that
absurdity and inconsistency, but no further.
The construction of Will falls under section 7(1) of the Wills Act. The effect of the
subsection is that in the absence of a contrary intention, a will is to be construed to take
effect as if the conditions to which it refers were those existing immediately before the
testator’s death and not at the time of the execution of the Will.

It is settled that the courts adopt a liberal approach when interpreting execution process
of a Will but when it comes to the interpretation of the words used in the Will, a strict
interpretation is used so that the intention of the testator will not be modified.

In the case of Biney and Biney, the court laid down three principles to be followed when
construing instruments such as a Will as follows:

a. the construction must be as near to the mind and intention of the author as the
law will permit;
b. the intention must be gathered from the written expression of the author;
c. technical words of limitation in a document must have its strict legal effect.
A forth principle was later added to the effect that the document must be read
as a whole.

Adzoe JSC in the case of Re Atta (decd) Kwako v. Tawiah [2001-2002] 1 GLR 339 defines
a “Will”as a very special and solemn legal document in which a person declares his
wishes as to how his property should be distributed, disposed of or managed after his
death. The Supreme court also reasoned that in construing a will, the courts look for the
intention of the testator as expressed by him in the actual words used by him and not
what is supposed to be the actual intention having regard to all other provisions of the
Will. Consequently, extrinsic evidence of a testator’s declaration of intention as to the
meaning to be put or the language to be used in his Will is not admissible as evidence of
his testamentary intention. In the same case the court provided exceptional situations
under which the intention of the testator may be obtained under the text. These are
latent ambiguity and arm chair rule. Latent ambiguity arises if the names of the
description of the devisee or the property mentioned in the Will turns out to fit two or more
persons or things and applies unambiguously to them.

Under the arm chair principle the instructions are admissible as contemporaneous
evidence that is explanatory of the meaning which the testator attributed to a word or
a name. In either case the instructions are not admitted for the purpose of gathering
what the testator intended to do but strictly for the purpose of identifying the person or
object he is reasonably deemed to have had in mind.

Also in the case of Re Mensah (Decd), Barnieh & Mensah And others [1978] GLR 225, it
was held that the policy of the courts in matters affecting testamentary dispositions is to
give effect to the last wishes of the deceased and to uphold them unless there are
overriding legal obstacles in the way. Thus in the area of execution, a liberal approach is
taken to the form of signature and initials or description or a mark.

The courts as matter of public policy and rule of law, are enjoined when it comes to
interpretation of Wills to interpret as much as possible to uphold the clearly expressed and
proven intention of the testator.

It is instructive to note that the courts are not supposed to rewrite a will for a testator,
unless the wishes of the testator are repugnant to the rule of law

In the case of Arnold V. LIoyd (1955) 2 All ER, the court read the full stops as commas in
order to avoid intestacy and to make sense of the provisions.

ANALYSIS AND SUBMISSION

Per the facts stipulated, Dadieba, in Paragraph 8 of his Will directed that the shares in his
hotel Bigaza Ltd. should be distributed by the various percentage proportions in the Will.
It was his intention that the profits from the hotel business should inure to the benefit of
the named beneficiaries. It is submitted My Lord that the source from which, the
beneficiaries are to benefit are still in existence save that the character of the building
and the business have changed. The hotel building as a business entity is now being used
as rental property. The fountain of the share income has not been destroyed, except
that now the building is generating rental income instead of share income. It can be
gleaned from the testators intention that he wished the named beneficiaries benefit from
the proceeds emanating from the building, now rental accommodation which is still
yielding income that could be distributed per the percentage proportions stipulated in
Paragraph 8 of the Will.
In an English case of Sydall & Castings Ltd. [1967] 1 QB 302 , a company has instigated a
group of life assurance scheme for its employees. On the death of a member, the
Insurance Company paid a lump sum which was held as trustee for the member’s
defendants and relations. A clause in the scheme defined “relation” as any
spouse,ancestor or descendants’ of the member. The issue was whether an illegitimate
son of a deceased member fell within the class of a descendants. The trial judge defined
“descendant” in its ordinary meaning and held that the illegitimate child of a deceased
member was a relation within the definition in the scheme and therefore a descendant
of a member.

On appeal, it was held that the illegitimate child did not qualify as a descendant and
that the word ‘descendant’ embodied in the definition of ‘relation’ in legal document
conferring rights on relations, must be construed as a term of art.

However, Lord Denning Mr dissented. He was unable to accede to the technical

meaning placed by the majority on the word 'descendant’. In his opinion descendant
had not been construed in any binding authority so as to make it a term of art.
Consequently, in the context of the insurance scheme intended to benefit persons for
which a workman was responsible, the word ‘descendant’ should be given its ordinary
meaning. I share the same sentiments with the erudite decision of the legal luminary,
albeit it was a minority decision. This is because even if the word should be construed as
a term of art the context within which it has been used should be taken into
consideration.

In interpretation, the language of a legal document in the first instance must be given its
ordinary meaning, unless the context shows otherwise.

In addition to the above, mention should also be made of the case of In Re Amarteifio
(Decd) Amarteifio & Amarteifio [1982-83] 2 GLR 1137, in that case the court held that “the
Will should be read together as a whole to realise the real intention of the testator.
Accordingly, where the literal sense of the words will create an absurd situation they
might be properly be discarded and modified. It will be ludicrous to have accepted that
only E20 should be paid to Rosina irrespective of the rent appreciation. The court would
have done an injustice if it did not give the words in Clause 6 of the Will an import which
will give effect and not defeat the intention of the testator. Therefore the defendants were
to receive 20percent of the annual rent now and at all times.”

It is worthy of note that due to the inflation rate at the time of the death of the testator
the court applied its wisdom to modify the percentage to match recent times.

Lord Denning stated in RE JEBB that the interpreter is required to look at the Will as the
testator did, sitting in the testator’s armchair , taking accounts of the totality of the actual
circumstances surrounding the testator when he made his Will to assist him in arriving at
the object of interpretation.

There is no doubt that from the scenario given Dadieba, intended the named
beneficiaries to benefit from the named property Bigaza Hotel now being used as rental
accommodation.

In the final analysis the facts in the scenario is in pari materia with the case of In Re Dadzie
(Decd); Dadzie and Another & Addison and Another, the court in that case opined as
follows:

“This is a situation where the rules of construction would require that the ordinary sense of
the word “shares” should be modified to avoid absurdity so as to uphold the intention of
the testator and not to destroy same. In all cases of construction all that the court is
required to do is to give the words in the Will an import which would give effect to the Will
and not defeat the intention of the testator. This stance of the law was eloquently stated
in the case of Re Allen (Decd) ; Faith & Allen [1953] 2 All ER 898 at 904 where Sir Evershed,
MR court stated as follows:

“…. In the case of a Will it is in general, the function and duty of the court to construe the
testator’s language with a reasonable liberality, and to try, if it can be, to give
sensible effect to the intention he has expressed.”

 The sensible construction then that can be put on the word “share” is no other than
the rental income accruing from the building and it is so construed”

In conclusion as counsel for the defendants, I submit that the word “Shares” as used in
Clause 8 of Dadieba’s Will should be interpreted liberally and modified to read “income
accruing from rental building’ to give sensible effect to the intention of the testator and
not as a term of art in company law.

Humbly submitted, My Lord.

Applicable laws

1. Grey v Pearson (1857) 6 HLC @ 61.

2. Section 7(1) of the Wills Act
3. Biney v. Biney
4. Re Atta (Decd) Kwako v Tawiah [2001-2002] GLR @ 339
5. Re Mensah (Decd),Banieh v Mensah & ors [1978] GLR 225
6. Arnold v Lloyd [1955] 2 AllER
7. Sydall & Castings Ltd. [1967] I QB 302
8. Re Amarteifio(Decd)Amarteifiov Amarteifio[1982-83] 2GLR
9. Re Jebb

10.Re Dadzie (Decd) Dadzie & Anor v. Addison & Anor.

QUESTION : Linguistic canons or maxims are considered as important external aids to

statutory interpretation. They are considered as servants to judges who may use them
where appropriate. Explain any three (3) of the following linguistic canons indicating
their significance or importance in statutory interpretation.

Linguistic canons are rules of grammar or linguistic rules used in interpretation. These
rules have been developed from logic, experience and correct use of language.
Linguistic canons are not binding legal rules but rather aids or servants that assist the
court in interpreting. Linguistic canons are applied in both statutory and non-statutory
documents.

Textualism as an approach to interpretation relies on the context of the document. It

employs rules of interpretation known as canons of interpretation and presumptions to
interpret the text of statutes and non-statutory documents. Purposivism as an approach
to interpretation refers to legislative antecedents of an enactment, explanatory
memorandum and canons to interpretation thus equally employing various aids to
interpretation in the proper construction of documents.

Section 10 of the Interpretation Act 2009 enjoins the court to resort to textbooks,
parliamentary debates, Government White Paper, treaties, travaux preparatoires
among others in the proper construction of enactments.
a. UT RES MAGIS VALEAT QUAM PEREAT

The literal meaning of the above maxim is “apply wisdom to save life” thus, where
an enactment or law is vague or ambiguous or susceptible to two or more
meanings it should be construed with the meaning that would save the document.
The legal effect of this maxim is to give effect to an enactment or document rather
than declare it void. The enactment or document should be construed to make it
intelligible or reasonable and not the meaning that would make it absurd or
unintelligible.

The maxim enjoins the court to read the Constitution or statute whose part has
raised an interpretative issue as a whole. This maxim offends a piecemeal
interpretation.

This maxim will be discussed with the case of Davies v Attorney General. In the case
of Davies v Attorney-General & Electoral Commission, the issue was whether or not
upon a true and proper construction of Article 47(6) of the 1992 Constitution the
alteration of electoral boundaries pursuant to the Representation of the People
(Parliamentary Constituencies) Instrument, 2012 CI 78 could not come into effect
until the next dissolution of Parliament in January 2013.

The court opined that it is trite law that if the real intent of a statute is ascertainable,
the court may even modify the drafting formulation employed in several ways using
ut res magis valeat quam pereat. The provisions in Article 47(6) of the 1992
Constitution were somewhat ambiguous however, where the language of a statute
was ambiguous so as to admit of two constructions, the consequences of the
alternative construction must be considered. Construction must not be adopted
which would lead to manifest public mischief or great inconvenience, inconsistency,
unreasonableness or absurdity.

Article 47(6) therefore means that the effect of altered or new constituencies shall
manifest or come to play in the new Parliament after the dissolution of the earlier
Parliament. Thus, even though a review of constituencies under Article 47(5) may
result in the alteration of the boundaries of constituencies, those pre-existing
constituencies by virtue of Article 47(6) should remain until after the dissolution of the
old Parliament and have effect in the next Parliament.

B. EJUSDEM GENERIS RULE

This rule is that in the construction or interpretation of enactments and documents,

the court should have regard to the general words used as well as the words of the
same class preceding. Thus, the class of the preceding words should limit the
meaning of the general word. In an expression like hats, overcoats, gowns, shoes,
shorts, tie or any other thing, the general word any other thing following the specific
items would not be given their natural meaning as any material thing but must be
construed as restricted in meaning to such things as clothing. This maxim is applied
as a rule of construction and a guide to the core intention of the text.

This maxim was applied in the case of Jebeille v Norwich Union Fire Insurance
Society Ltd. In this case a company carried on ice-cream manufacturing business in
a factory and insured its business under two different policies. Under the second
policy described as ‘Miscellaneous Expenses’ policy were contents consisting of
‘stocks of sugar, milk powder, syrup, essence and the like’. The factory was
destroyed in a fire outbreak and the company sued claiming inter alia under the
second policy loss of bicycles and stocks of ice cream destroyed by fire. The trial
court held for the company. On appeal, the Supreme Court held that the claim for
the value of the two bicycles under the second policy must fail because it does not
come within the second policy on the application of ejusdem generis rule. The court
further stated that the ice cream stocks destroyed in the fire outbreak were covered
by the general word ‘and the like’ therefore, the company could claim insurance
under the second policy for only the ice cream stocks destroyed by the fire.

A few of the basic conditions for applying this rule is as follows;

1. General word must follow specific words

2. Specific items must belong to an identifiable class or genus

An exception to the general rule in ejusdem generis Was espoused in the case of
Grini v Grini. This was a case on the maintenance of a child during divorce
proceedings. Section 2(b) of the Divorce Act was to the effect that before a
maintenance award could be made in favour of a child of a marriage, that child
must be unable by reason of illness, disability or other causes to withdraw themselves
from parental charge or provide themselves with the necessaries of life. The
Petitioner argued relying on ejusdem generis rule that the phrase “other causes”
used in Section 2(b) of the Divorce Act would not readily lend itself to an award for
maintenance for a child of 16 years attending school because the expression “ by
reason of illness, disability or other causes” is to be restricted to causes akin to illness
or disability. The court rejected the Petitioner’s argument on the general ground that
where the particular words exhaust the whole genus, the general words which
follow must refer to some larger genus and are not to be construed as restrictive to
the particular words. In this case, the specific words “unable by reason of illness,
disability” had exhausted its whole genus thus, the introduction of the phrase “other
causes” could not be said to exclude attendance of school.

In simple terms, the exception to the general rule in ejusdem generis as stated in
Grini v Grini is to the effect that where the author writes specific things in addition to
“or others”, the writer introduces a new genre of words and is an exception to the
general rule where the author writes specific things in addition to ‘’and’’.
This rule will not apply where the application of the rule is outweighed by other
indications of the purpose of the text or where the list of specific items suggests more
than one class.

C. NOSCITUR A SOCIIS RULE

This is literally translated as “ a word is known from its associates or environment in

which it finds itself”. In the case of Republic v Minister for Interior; Ex parte Bombelli,
noscitur a sociis rule was applied in construing the word “orders” in Article 4(7) (a) of
the 1979 Constitution as in the form of rules and regulations and not a command
issued by the Minister. In this case, the applicant BROUGHT AN APPLICATION FOR
CERTIORARI TO QUASH AN ORDER ISSUED BY THE Minister for Interior by virtue of the
Enzo Bombelli Deportation Order, 1980 on the ground that the executive instrument
issued by the Minister was invalid because it contravened Article 4(7)(a) of the 1979
Constitution which mandatorily required the order to be laid before Parliament for
days before coming into effect. In dismissing the application, the court inter alia
held that on the application of the noscitur a sociis rule the word “orders” in Article
4(7)(a) of the Constitution had to take its meaning from the company it kept and
had, therefore, to be interpreted as “order” such as rules and regulations and not
command such as the order issued by the Minister.

This linguistic canon is used in determining the meaning of neutral words where a
provision includes a word which in itself is neutral or colourless, the context provides
the colouring agent in determining the meaning of general words coupled with a
string of genus describing words as seen in Ex parte Bombelli.

In the case of Leetang v Cooper Lord Diplock opined that the maxim is a
treacherous one unless you know the societies which the words belong”.

This rule will not apply where the application of the rule outweighs the intention of
the author or where there are alternative explanations.

D. EXPRESSIO UNUIS EXCLUSIO ALTERIUS RULE

The maxim is basically to the effect that the express mention of one or more persons,
things or matters of a particular class may be regarded as excluding all members of
that class which have not been mentioned. It is an aid to interpretation.

It is applied where a preposition in a document, statute or constitution might have

been covered a number of persons or things but in fact, only mentions some of
them.

The basis of this maxim is it can be applied where there is reason to believe or
expect that if the drafter(s) of the document had meant to include particular things,
a person or matter within the ambit of the document or legislation, they would have
referred to that thing expressly.

A person who seeks to rely on this maxim must identify an express provision in the
statute or document which creates the maxim- it cannot be implied.

This maxim was applied in the case of Ghana Ports& Harbors Authority v Issoufou.
The plaintiff sued the Ghana Ports Authority (hereinafter referred to as ‘’GPA’’) and
Ghana Cargo Handling Company (hereinafter referred to as ‘’GCHC’’) jointly and
severally for bags of rice that were lost while in the custody of the defendants. In
June 1986 whilst the suit was pending the Ghana Ports and Harbors Authority Law,
1986 (PNDCL 160) was enacted merging Ghana Ports and Harbors and Ghana
Cargo Handling Company and Takoradi Lighterage Co. into one body corporate to
be known as Ghana Ports and Harbors Authority(hereinafter referred to as
‘’GPHA’’). Defendants argued that since PNDCL 160 did not provide for liabilities of
GPA and GCHC to be taken over by GPHA, they are not liable to the Plaintiff.

The court held that the maxim expression unius est exclusion alterius must be applied
with caution because the omission to mention things that appeared to be excluded
might be due to inadvertence or accident or because it never occurred to the
draftsman that they need specific mention. The maxim was no more than an aid to
construction and had very little weight where it was possible to account for the
inclusion unius on grounds other than an intention to apply the exclusion alterius. In
the instant case, even though section 6 of PNDCL 160 expressly transferred the
assets of the GCHC to GPHA and the law was silent on the transfer of the
company’s liabilities, it could be said that the express enactment did shut the door
to further implication because it was possible that it never struck the draftsman that
liability needed specific mention of any kind. Thus, the express mention of assets
implied the transfer of liabilities.

This maxim can be applied in two instances;

1. Failure to mention comparable items

Impraim v Baffoe – deceased testator directed that on his death a dwelling house
‘Jehova Villa’ be occupied by certain members of the family. It was held that the
fact that the testator expressly identified members of the family who were to benefit
from property was proof that other members of the family were excluded.

SEE TURKER V HARRISON PRINCIPLE

2. Conditions specified for the proper exercise of the jurisdiction of a body or court

In Kwakye v AG the court held that the State Proceedings (Amendment) Decree,
1969 was ineffectual where a person sought to invoke the original jurisdiction of the
Supreme Court on a complaint founded on Article 2(1); 1979 Constitution.

Question 7 of the Manual

AREA OF LAW:

Interpretation of Statutory Documents specifically the Wills Act 1971, (Act 360) with
reference to Reasonable Provision

ISSUE:

Whether or not Aleko and Abaidoo are entitled to a reasonable provision out of the
estate of the deceased.

APPLICABLE LAW:

General discussion on interpretation

Interpretation is the process of construing a text in order to ascertain its legal meaning.
Interpretation arises
 Because words are unclear, ambiguous and imprecise and meaning must be
given to it to make it clear.
 Because some text cannot be understood without knowing the context.
 To ascertain the intention and purpose of the author.

Interpretation covers three main broad areas namely:

 Statutory documents,
 Non-statutory documents and
 The national constitution.

Statutory interpretation is the process by which courts interpret statutes. This is done
through the application of various tools and methods including approaches to
interpretation (basic rules), aids to interpretation, legislative history, linguistic canons and
presumptions.

Approaches to interpretation are schools of thought that inform the approach that a
judge may employ when interpreting a document or statute. There are nine main
approaches to interpretation of a text and they include literalism, textualism,
intentionalism, purposivism, political process theory, originalism and living
constitutionalism.
This write up will focus on the Purposive Approach in resolving the above issue.

With the Purposive Approach to interpretation, the courts take into account the words of
the statute according to their ordinary meaning as well as the context in which the words
are used. Reliance is not placed solely on the linguistic context, but consideration is given
to the subject-matter, the scope, the purpose and to some extent, the background. Thus,
with the Purposive Approach to the interpretation of legislation there is no concentration
on the language to the exclusion of the context.
In summary, the basic rules the judges adopt to govern interpreters when using the
purposive approach to interpretation are as follows:
 The text must be read as a whole.
 Give words their ordinary meaning within the context in which the words
are used.
 Interpretation should not be solely premised on linguistic canons, but
consideration shall be given to the subject matter, the scope and the
purpose.
 Consideration shall be given, to some extent, the background of the
text.
 Consideration shall not be given to the language to the exclusion of the
context.

According to the Memorandum to the Interpretation Act (Act 792), now the Courts in the
Commonwealth have adopted the Purposive Approach in interpreting statutes as stated
in the case of Pepper (Inspector of Taxes) v Hart .
The task of an interpreter is now to look for the purpose for which the text was created.
They do not limit themselves to the words as used in the text but they go further to unravel
the purpose behind those words.

In Ghana, Purposive approach to interpretation has been adopted. This can be found in
the Memorandum of the Interpretation Act which provides inter alia that, judges have
abandoned the strict constructionist view of interpretation in favour of the true purpose
of legislation.

Section 10 (1) of the Interpretation Act provides that where a court is concerned with
ascertaining the meaning of an enactment the court may consider;
 The enactment,
 A report of a commission,
 A relevant treaty, agreement, convention, or any other international
instrument, and
 An agreement, which is declared by the enactment to be a relevant
document for the purpose of the enactment.

Furthermore, Section 10 (4) of the Interpretation Act enjoins judges to use Purposive
Approach to judicial interpretation. It also sums up the theory of purposive interpretation.
The sub section provides as follows;
 ‘Without prejudice to any other provision of this section, a court shall construe or
interpret a provision of the constitution or any other law in a manner:
 That provides the rule of law and the value of good governance.
 That advances human right and fundamental freedoms.
 That permits the creative development of the provision of the
constitution and the laws of Ghana.
 That avoids technicalities and niceties of form and language which
defect the purpose and spirit of the constitution and the laws of Ghana.

In the case of Appiah v Biani [1991] GLR 155, Lutterodt J (as she then was) criticized the
literalists and invited them to embrace a more benevolent approach which is the
purposive approach where literal or grammatical approach to interpretation would
defeat the purpose of the legislature.
The court in ascertaining the purpose of Section 4 of PNDCL 111 and construing what an
uncompleted house was stated that;
 The clear provision of PNDCL 111 was that on the death of a spouse, his self-
acquired properties should devolve on the surviving spouse and children. To fulfil
the legislative intendment therefore, the court defined a house to include any
building or part thereof which was occupied or intended to be occupied and
would include both a residential and a commercial house. Hence an
uncompleted house was a house within the meaning of section 4 of PNDCL 111
and same ought to devolve to the plaintiff and their children.

In the Supreme Court case of Republic v High Court, Accra, ex parte Expendable
Polystyrene Products Ltd [2001-2002] 1 GLR 98, the majority per Afreh JSC held that
statutes should be read as a whole and should be considered in both their internal and
external contexts.

The Supreme Court has authoritatively stated that any literal interpretation that would
result in unreasonable, unfair, or absurd consequences or inconvenience should be
avoided as that mode of interpretation has become outmoded. The Court in the case
of Ransford France (No. 3) v. Electoral Commission and Attorney General (No 3) [2012]
held that a literal interpretation which suggests that an effect should be given to a statute
that is clear and unambiguous regardless of its consequences should be rejected as
being outmoded or anachronistic.

Another tool that can be use in interpretation are aids to interpretation. There are two
forms of aids to interpretation of statutory documents namely, Internal and External aids.
External aids are referred to as such because they cannot be found within the four
corners of the statutes but rather, they are sources outside the text of the statutes. They
include textbooks, opinions of publicists and jurists including academic publications,
directive principles of State policy, parliamentary debates, dictionaries, common sense
and practice. Common sense will be applied to these facts.

Common Sense
Common sense can be said to be a sound and practical judgment regarding matters of
life and shared by people of right thinking in society. Judges are not to drift from the
common sense understanding.
The need to interpret to avoid absurdity and give a meaning that is reasonable and fair
can all be said to be common sense approach. Lord Goddard admitted this fact when
he stated in Barnes v Jarvis (1953) 1 WLR 649 @652 that
“a certain amount of common sense must be applied in construing a statute”.

It must however be made clear that common sense cannot be employed to defeat the
clear provisions of an Act as stated by Adade JSC in his dissenting opinion in the case of
Bilson v Apaloo [1981] GLR 24 @ 70.

The general common sense in society may not necessarily be the common sense
applicable in statutory interpretation.

General Discussion on Wills Act

The Wills Act of 1971, Act 360 is a statute in Ghana that regulates Wills made after 3rd July
1971. A will is a testamentary document to dispose of one’s property after his/her death.
The general rule is that a testator can dispose of his property any how he deems fit unless
the laws of the country provides otherwise. In the English case of Turker v Harrison [1832]
5 Sim 538@543 the court held that there is no presumption that anyone who is not named
as a beneficiary of a Will shall benefit from the dispositions under the Will. Thus only
beneficiaries to a Will can benefit under it.

In Ghana, the exceptions to this general rule are found in Article 22 (1) of the 1992
Constitution and Section 13 of the Wills Act 1972 (Act 360).
Article 22 (1) provides that a spouse shall not be deprived of a reasonable provision out
of the estate of a spouse whether or not the spouse died having made a will. The law did
not provide any condition that must be complied with before an application is made for
reasonable provision.
Section 13 (1) was enacted to confer limited powers on the High Court to make a
reasonable provision for the needs of the testator’s parents, spouse or children
under 18 years where the testator had failed to make reasonable provisions during
his life time or for their maintenance in his will, and they were likely to suffer
hardship. The application to the High Court to give a reasonable provision to the
above named persons must be made within three (3) years from the date on
which probate of the will is granted.
In the case of Humphrey-Bonsu v Quaynor, which facts and holdings are on all fours with
the fact of this question, the court had to interpret the provision of Section 13 (1) of the
Wills Act, 1970, Act 360. The issue was whether not the court was entitled to make an
order for reasonable provision for the needs of a wife and two of the children of the
deceased, namely, the second plaintiff (a student) and third plaintiff (a crippled and
mentally retarded child) both aged over eighteen years (18 years), out of the estate of
their deceased father.

The trial judge held that the second and third plaintiffs would suffer hardships if no
provision was made for them and unwillingly ordered provision for the two under section
13(1).

 On appeal it was held by the majority of the Court of Appeal, presided over by
Benin J.A reversing the decision of the trial judge that, the language of section
13(1) of Act 360 admitted of no ambiguity whatsoever. The law clearly prescribe
that only a child of the testator under 18 years of age was entitled to a provision
out of the estate of the deceased and that there was no basis in the
circumstances for extending this provision to cover a child older than 18 years,
however harsh the consequence might be.

 The dissenting Judge Twumasi JA, stated that with particular reference to the third
plaintiff (a crippled and mentally retarded child who was over 18 years), he found
the construction placed on section 13(1) to be too draconian and harsh. He
stated further that he conceived it to be a solemn duty of a court to construe a
statute in such a way as would accord with common sense and justice.
He relied on the Supreme Court decision in Essilfie v Anafo [1992] 2 GLR 654, Archer
CJ (as he then was) presiding, where the court adopted the common sense
approach to the construction of statutes and emphatically stated that the
legislature would not intend what is unreasonable. The policy-rationale behind the
age limitation to children under section 13(1) of Act 360 proceeds on the
understanding that at eighteen a normal child would have been capable of
maintaining himself or herself by his or her own effort.

In addition, Article 28 (1) of the 1992 Constitution provides that parliament shall enact
laws that are necessary to ensure that children and young persons receive special
protection against exposure to physical and moral hazards.
Article 29 (4) states that disabled persons shall be protected against all exploitation, all
regulations and all treatments of a discriminatory, abusive or degrading nature and
Article 29(5) provides that "In any judicial proceedings in which a disabled is a party, the
legal procedure applied shall take his physical and mental condition into account".
It must be stressed that these Articles fall under chapter 5 of the Constitution entitled
fundamental human rights and freedoms, and are entrenched provisions enforceable in
favour of any person who demonstrates that his rights under that chapter has been, is
being or likely to be breached under Article 33. Indeed, the Courts presume in statutory
interpretation that the legislature does not intend absurd, illogical and harsh results.

ANALYSIS

A strict compliance of the letter of section 13(1) of the Wills Act 1972(Act 30) disqualifies
Ableko and Abaidoo from applying for a reasonable provision from the estate of the
deceased because the statute covers children under 18 years.

It is important to state that even though this is the current state of the law, Article 28 and
29 guarantees protection and provision of the wellbeing of disabled persons as it is their
fundamental human right, which is reflected in Section 10 (4) of the Interpretation Act.

In construing section 13(1) purposively and applying common sense and justice, in
respect of Ableko, who is a student and depended on the deceased during his life time,
even though he is above 18years will be entitle to a reasonable provision from the estate
of the deceased otherwise Ableko will suffer substantial hardship as a student.

Aalso, in Abaidoo’s case, it is unfortunate the Act makes no provision for a child who
though above the age of 18 years, because of physical or mental disability, incapable
of maintaining himself or herself. In such a situation the court is powerless, and it cannot
make any order of relief to maintain him.

As stated in case of Essilfie v Anafo that the policy-rationale behind the age limitation to
children under section 13(1) of the Wills Acts, 1971 (Act 360) proceeds on the
understanding that at age 18 a normal child would have been capable of maintaining
himself or herself by his or her own effort.

Ableko and Abaidoo do not fulfil this condition so the age limitation cannot apply to
them.

Furthermore Humphrey-Bonsu v Quaynor, was decided by the Court of Appeal in the

year 2000 that is about 9 years before the coming into force of the current Interpretation
Act, 2009 (Act 792). The present Act 792 particularly section 10 thereof enjoins all judges
to use purposive approach in judicial interpretation where Section 10(4) sums up the
theory of purposive interpretation as discussed above.

CONCLUSION

I disagree with Debra J’s ruling based on the following reasons:

  He applied the strict constructionist approach when he ruled that the lawmaker
clearly intended the natural age of a child to prevail without taking into
consideration the peculiar circumstances of the Ableko and Abaidoo.
 Indeed, the ordinary words of section 13 are clear and unambiguous. However,
Debrah J should have looked beyond the ordinary words of the provision and
considered the circumstances of Ableko and Abadioo in their application and
construed the provision purposively to save the document and to alleviate the
hardship of the poor children who were deprived of the provision under their
father’s estate.
 The true purpose of the section 13, I believe, is not to cater for children below 18
years only but to cater for children who are incapable of taking care of themselves
no matter the ages.
 The ruling of Debrah J. is a clear example of a harsh application of the literal
approach to interpretation which is frown upon by the current Interpretation Act
and in the decisions of the Supreme Court exemplified in the cases of Ransford
France (No3) and Danso Acheampong (supra).
 Besides, the Courts have the power to rectify defective statutory language or
provisions in order to bring them in line with the purpose, which is at the core of
the text. In other words, it is to give effect to the legislative intent or purpose
underlying the statutory provision in cases where the plain or ordinary construction
of the statutory language leads to clear absurdity, harshness or illogicality.

Recommendation
I humbly recommend that, when section 13 of Act 360 comes up before the Supreme
courts in the near future, it will be interpreted purposively and the Wills Act 1971, Act 360
be amended by the law maker to ensure that children like Aleko and Abaidoo will be
accorded the needed assistance and uphold their dignity.
MANUAL QUESTION TWELVE (12)

AREA OF LAW: Interpretation of statutes; specifically external aids to statutory

interpretation with reference to the presumption against absurdity and Common sense.

ISSUE: Whether or not the provision in the Motor and Traffic Act of Ghana 2019 Act 999
should be construed strictly.

RULES AND APPLICABLE LAWS

A Statute is a bill or law passed by the legislature which imposes obligations or rules on
people for a particular purpose.

Statutory interpretation is the process by which the court interprets and applies statutes.

Words in a statutory provision may be plain and straight forward or ambiguous and
vague for which reason the courts may apply various tools and methods including
basic rules, aids to interpretation, linguistic canons of construction, presumptions,
legislative history and Hansards, text books, dictionaries, practice, common sense,
among others to ascertain legislative intent. These are known as canons of construction
of statutes. Statutory interpretation is done to correct errors and clear doubt, to give a
reasonable meaning to a statute where a literal interpretation of a statute will cause
grave injustice, to clear ambiguities etc.

Hence, the general principle concerning statutory interpretation is that, there is the
need for statutory interpretation because;

a) words are imperfect symbols to communicate intent as they are ambiguous and
change in meaning over time,
b) Unforeseen situations are inevitable and new technologies and cultures make
applications of existing laws difficult,
c) Uncertainties may be added to the statute in the course of enactment such as
the need for compromise or catering for special interest groups.

Canons of construction are rules of thumb that help the courts in determining the
meaning of legislation. They are general principles for drawing inferences about the
meaning of language. Canons are thus not to be treated as rules of law but rather as
axioms of experience that do not preclude consideration of persuasive evidence if it
exists. They are tools rather than rules. As held in Connecticut National Bank V Germain,
canons of construction are no more than rules of thumb that determine the meaning of
a legislation and in interpreting statutes a court should always turn first to one cardinal
canon before all others. that is, the courts must presume that a legislature says in a
statute what it means and means in a statute what it says. Hence when words of a
statute are unambiguous, the first canon is also the last. This brings to fore the basic
principle of statutory interpretation that, a court in interpreting statutes must presume
that the legislature says in a statute what it means and means what it says. Therefore,
the court must look to the text/language used by the legislature and give a plain/literal
meaning to it. This basic rule is referred to as the textualist canon of construction of
statutes. It requires the court to apply the plain, literal, grammatical and ordinary
meaning of the word to the text of the law hence the starting point in interpretation is
the language of the statute itself. The meaning of a statute must at first instance be
sought in the language in which the statute is framed and if that is plain, the sole
function of the court is to enforce it according to its terms so far as to effectuate the
intention of the maker. In the case of Cameretti v US, it was held that if the statute’s
language is plain and clear, the duty of the interpretation does not arise and the rules
that are to aid doubtful meaning need no discussion. Also, in Amalgamated Society of
Engineers v Adelaide Steamship Co. Ltd, Justice Higgins said that the fundamental rule
of interpretation to which all others are subordinate is that a statute is to be construed
according to the intent of the parliament that made it and that what the language
means is found in its natural and ordinary sense. As such, it is the courts duty to obey
that meaning even if the reaction will be inconvenient, impolitic or improbable. This
form of interpretation calls for a strict application of the rules regardless of the effect.
Even if it leads to a manifest absurdity, it must be interpreted as such regardless.
Hence 4 essential elements of the literal meaning can be identified;

a) The task is to seek the legislatures intention

b) The intention must wholly be derived from the statute and not from any other
sources
c) The words in the statute must be given their ordinary and natural meaning
without assuming any technical or special meaning
d) Once the plain and ordinary meaning is used, the court is not bothered with the
result of the interpretation and the essence of the task is to determine the
meaning and not the wisdom or otherwise of the provision.

In the case of Grey v Pearson, Lord Wenslydale said that “in construing wills and indeed
documents and all written instruments the grammatical and ordinary sense of the words
are to be adhered to unless that will lead to an absurdity or some repugnancy or
inconsistency with the rest of the instrument. In which case the grammatical or ordinary
sense of the words may be modified so as to avoid that absurdity or inconsistency but
no further”.

The substantive canons are therefore the courts next resort should the basic/textual
canon fail to effectuate the intentions of the legislature. As stated earlier, they include
aids to statutory interpretation (internal and external aids), linguistic canons,
presumptions, common sense etc.

External aids to interpretation of statutes are materials brought from outside the text to
construe the statute. It includes all the other tools of construction of statutes with the
exception of the basic rule and internal aids.

The Legislative history behind a statute may be used by the courts to determine the
intention of the framers. Section 10 of the interpretation Act 2009(Act 792) allows the
court where it considers the language of an enactment to be ambiguous or obscure to
among others take cognizance of the legislative antecedents of the enactment. Also,
section 10(4)(b) & (d)provides that a court shall construe or interpret a provision of the
constitution or any other law in a manner that advances human rights and
fundamental freedoms and that avoids technicalities and recourse to niceties of form
and language which defeat the purpose and spirit of the constitution and of laws of
Ghana. This means that, the things that existed prior to the enactment (the mischief)
which the law sought to remedy may be looked at to arrive at the intention of the
legislature and in so doing the court must not be clamped down by reason of strict
adherence to the technicalities or form of the language employed by the legislator if
the purpose for what the enactment was made will be defeated. This is in consonance
with the purposive approach to interpretation.

A purposive interpretation of statute is allowed by section 10 of the ACT 792 to

effectuate the intention of the framers. This rule was introduced as one of the
approaches to interpretation in Pepper v Hart. As the name suggests, the interpreter is
charged to look at the purpose of the document. The purposive approach to
interpretation proceeds on the assumption that to every law there is a purpose and the
purpose for which the law is enacted often is not conspicuously displayed by the text of
the law. Therefore, it is wrong to rely solely on the linguistic context of a law as the
literalists suggest. Rather, the interpreter must endeavor to take account of the Act
according to their ordinary meaning as well as the context, subject matter, scope,
purpose and to some extent the background of the law. There are two different
purposes of interpretation: subjective and objective purposes. The case of Asare v
Attorney General provides that the subjective purpose of a statute is the actual intent
that the framers had at the time of making the statute. The objective purpose on the
other hand refers to what a hypothetical reasonable author would have intended,
given the context of the underlying legal system, history and values of the society for
which the legislator made the law.

A Presumption is a legal inference or assumption that a fact exists based on the known
or proven existence of some other fact or group of facts. It is generally viewed as an aid
to interpretation. They are abstract notions acquired in the study of law of
interpretation. They may not be found expressly provided in a statute but like the spirit
of reason whenever the court sits, they are there. According to Cross in his work, On
Statutory Interpretation, Butterworths (1987) pp 186-187, “ Presumptions apply although
there is no question of linguistic ambiguity in the statutory wording under construction
and they may be described as presumption of general application at the level of
interpretation. Their function is to promote brevity on the part of the draftsman. The
courts are therefore assisted by these presumptions to ascertain legislative intent. They
are servants (aids) not masters (rules). Of relevance to this case are the presumptions
against absurdity and common sense. There is a presumption that, a court shall not in
interpreting a statute arrive at a result that is unworkable, inconvenient, illogical or
anomalous. Field J in Williams v Evans (1876)1 Ex D 277 at 284 said that “no doubt it is a
maxim to be followed in the interpretation of statutes that the ordinary grammatical
construction is to be adopted but when this leads to a manifest absurdity, a
construction not strictly grammatical is allowed if this will lead to a reasonable
conclusion as to intention of the legislature”. The courts therefore seek to avoid a
construction that creates an anomaly or otherwise produces an irrational or illogical
result. Thus, the effect of interpretation should not be so impracticable that the drafter
could not reasonably be presumed to have intended it.

Linguistic canons of construction are latin canons well embedded in latin maxims which
govern the elaboration of meaning of words and phrases by drawing certain
inferences. The courts use these canons as aids to interpretation to throw more light on
meaning generally. They include the noscitur a sociis rule, the ejusdem generis rule, the
expressio unius est exclusio alterius rule and the ut res magis valeat quam pereat. Of
relevance to this case is the principle of ut res magis maxim which provides that an
interpreter must apply wisdom to save a document or statute. In other words, it means
that it is better for a thing to have effect than to be made void so as to construe the
enactment in such a way as to implement rather than defeat the legislative purpose.
Hence the court in the application of this maxim should adopt the interpretation that
promotes the objectiveness of the statute with a view to making it effective. This maxim
is in line with the presumption on common sense.

Common sense known in latin as sensus communis is the basic ability to perceive,
understand and judge things which is shared by all people and can be reasonably
expected of nearly all people without any debate. To Bennion, it is a rule of law that
when considering, in relation to the facts of a case which of the opposing constructions
of the enactment would give effect to the legislative intention, the court should
presume that the Legislator intended common sense to be used in construing the
enactment. Also as held by Lord Goddard CJ, in Barnes v Jarvis (1953) 1 WLR 649 at 652,
“a certain amount of common sense must be applied in construing statutes”. Common
sense is thus an aid to interpretation. Again, in Server v Duffy (1977) Crim LR 487, it was
held that sometimes when a drafter is silent and does not deal with a matter expressly, it
may be because the drafter thought that as a matter of common sense it went without
saying. Therefore, from the foregoing it can be concluded that where resort to the
literal or secondary meaning of a provision will bring about unreasonable results,
common sense approach may be used to prevent such a result.

ANALYSIS

The prosecution invites the court to a strict interpretation of the provision in the road
and motor traffic act. This invitation if adhered to by the court will lead to an absurd,
illogical, unreasonable effect because a strict literal interpretation of the provision fails
to effectuate the purpose for which the provision was inserted. The purpose was to curb
unnecessary noise making and it is illogical to say that blowing a car horn to pave way
for the smooth passage of a pregnant woman to the hospital is ‘unnecessay’ and
should be construed within the ordinary meaning of ‘whatever purpose’ regardless of
the great injustice it will cause.

It is undeniable that whether or not noise made is necessary is a question of fact for the
court to decide in consideration of the totality of the facts. The exercise of the court’s
discretionary power must be done with due regard to common sense and the effort to
arrive at a reasonable conclusion devoid of any absurdity or unreasonableness. A
reasonable man’s test may be used to help the court, that is, whether under the same
circumstances a reasonable man would have done same as Gyato did.

Using the presumption that the drafters expect the use of common sense to fill in the
gap or resolve conflicts where no specific laws are provided for resolving such conflicts,
it can be safely inferred that the legislators did not contemplate of such emergency
situations which will necessitate the constant hooting of a horn under these set of facts.
This is evidenced by the use of the phrase ‘whatever purpose’. Even if it was within their
contemplation, they failed to provide for such exceptions. common sense should
therefore under the present circumstance inform the court of the lacuna in that
provision by the use of ‘whatever purpose’ with the background to the insertion of the
section in mind, that is, to curb ‘unnecessary noise making’. Thus using the presumption
against absurdity, common sense and the purposive approach to interpretation, the
Judge in my humble opinion erred when he said that the duty of the court is strictly to
apply the provisions of a statute which is an embodiment of the intention of the law
maker and nothing more. He failed to avert his mind to the courts duty to seek a
reasonable meaning where a strict literal interpretation will produce absurd results. The
court also has a duty to apply common sense to produce reasonable results and use
good reason to make changes to the law where need be.

CONCLUSION

I do not agree with prosecution counsel that a strict literalist/textualist interpretation

should be given because, under the present case, a strict literal/textualist approach will
cause great injustice considering the purpose for which the provision was inserted, that
is, to curb unnecessary noise making by drivers blowing their horns unnecessarily. A
more purposive interpretation will have to be adapted by the court as the contrary will
lead to absurdity. In my opinion, the blowing of the horn was necessary to convey the
woman in labor to the hospital.

I agree with the defense counsel on the use of presumption against absurdity and
common sense as tools to aid the court in an effective interpretation of the provision
under these circumstances where a literal interpretation alone will not suffice.

On the above analysis of relevant laws, cases and facts, I disagree with the statement
of Obuoba J that;

“ Counsel is inviting this court to wander into presumptions and depart from the known
canons of statutory interpretation. This court is a court of law not common sense. Our
duty is to strictly apply the provisions of a statute which embodies the intention of the
law maker and nothing more”

because, it is trite learning that the basic rule in interpreting statute is to give a literal
meaning to the text of the statute unless such literal construction will lead to manifest
absurdity or grave injustice etc. Under the present facts, such literal interpretation will
only produce an unreasonable effect. Therefore, where a strict literal interpretation or
textualist approach fails to effectuate the intention of the legislature, the court may
resort to other canons of construction such as the internal and external aids to
interpretation, linguistic canons, presumptions, common sense, among others to arrive
at a reasonable interpretation which projects the intention of the framers.

QUESTION 2 OF MANUAL

The area of law borders on Constitutional interpretation

Issues
 3. Whether or not the imposition of road tolls by the University Board constitutes a fee
pursuant to section 24(1) (a) of the Asante-Akyem University College (AAUC) Act
or a tax ?
4. Whether or not the University Board has the power to impose road tolls and if so
whether it contravenes Article 174?

General Discussion Of The Law

The constitution, 1992 under article 2(1) enjoins any person who alleges that an
enactment or anything contained in or done under the authority of that or any other
enactment or any act or omission of any person is inconsistent with, or in contravention
of a provision of the constitution to bring an action to the supreme court for a declaration
to that effect. Any person it must be noted is limited to only citizens of Ghana pursuant
to the preamble of the constitution which states that the constitution was made for
Ghanaians. This does not however detract from the right of non-citizens to seek redress
in the high court for any infringement of their personal rights. Also “a person” need not
be only a natural Ghanaian citizen but an artificial Ghanaian citizen as was decided in
NPP V. Attorney General the CIBA (1996-1997) SCGLR 729.

Article 130(1) provides for the enforcement or interpretation jurisdiction of the supreme
court. It provides, ‘the supreme court subject to the jurisdiction of the High Court in the
enforcement of the Fundamental Human Rights shall have exclusive original jurisdiction
in

c) All matters relating to the enforcement or interpretation of this constitution; and

d) All matters arising as to whether an enactment was made in excess of the powers
conferred on parliament or any other authority or person by law or under this
constitution.

The applicant in pursuance of the provisions above, has invoked the original jurisdiction
of this court to interprete Article 174 and the AAUC Act, 1978 (Act 78) to ascertain
whether the imposition of road tolls by the University Board contravenes Article 174. It is
therefore prudent to determine whether an interpretative issue arises. The case of
Republic v. Special tribunal; Ex Parte Akorsah [1980] GLR 592 provides clear guidelines for
determining whether an issue on constitutional interpretation arises. The guidelines state
that an issue of interpretation arises firstly in the situation where the words of the provision
of the constitution were imprecise, unclear or ambiguous. Secondly, where the parties
to the action have put rival meanings to the words or provision of the constitution, thirdly
where there was a conflict in the meaning and effect of two or more articles of the
constitution and a question was raised as to which provision should prevail and finally
where on the face of the provisions, there was a conflict between the operation of
institutions set up under the constitution. In the instant case, it is the claim of the applicant
that the imposition of the said tolls by the University Board constitutes an imposition of tax
which is in contravention with the said constitutional provision as the body lacks the
power to do so. The Respondent on the other hand contends that the imposition of road
tolls are fees charged by the body in respect of services rendered by it or through it
pursuant to section 24(1)(iii) of the AAUC Act. It is apparent therefore that the parties are
putting two rival meanings to the provision of the constitution and therefore an issue of
constitutional interpretation arises.

The constitutuion is the Supreme law of the land. Sowah JSC in Tuffour v Attorney General
[1980] GLR 637 in describing the constitutuion said, ‘ The constitution is the supreme law
of the land. The constitutuion has its letter so does it have its spirit. A broad and liberal
approach to interpretation should be adopted.’ He further stated, ‘The constitution is
the fountain head for the authority which each of the three arms of government
possesses and exercises’

The Supreme court in interpreting the constitution adopts the purposive approach to
interpretation. The purposive approach to interpretation is one which takes account of
the words in a constitutional provision according to their ordinary meaning as well as the
context with which they are used. The purposive approach was first adopted in the
English case of Pepper ( Inspector of Taxes) v. Hart [1993] 1All ER 42 and has been of wide
application since then.

The Interpretation Act, 2009 ( Act 792) also endorses the purposive approach to
interpretation and encourages judges to interprete the constitution in a broad and liberal
manner. The memorandum to the Interpretation Act posits that the constitution should
be interpreted in a way that promotes the rule of law and good governance, advances
human rights and fundamental freedoms, permits the creative development of the
provisions of the constitution and the laws of Ghana and lastly in a manner that avoids
technicalities which defeat the purpose of the constitution and the ordinary law of the
land.

In order to resolve this controversy of whether the imposition of the road toll amounts to
tax or otherwise, it is expedient to examine the AAUC Act to ascertain the meaning of
fee as provided for in the act. It is trite law that when interpreting a statute, the statute
should be construed as a whole to obtain the legislative intent of parliament. The case
of Larbi v. Salloum [ 1984-1986] 1 GLR bears credence to this assertion. The court in this
case held that when interpreting a statute, the whole law or enactment must be looked
at. The courts in interpreting a statute as a whole may substitute, add, reject, supply,
delete, modify or correct provisions in the law which are unintelligible, absurd or
unreasonable to make it reasonable, intelligible and to synchronize them with the other
parts of the statute.

The duty of the court is to interprete a statute according to the intention of parliament
and the intention of the statute can be ascertained from the actual words of the statute.
On the principle of ascertaining the intention of the law maker, Lord Greene in the case
of Re A debtor [1948] 2All ER 533 at 536 said that ‘ if there is one rule of construction for
statutes and other documents, it is that you must not imply anything in them which is
inconsistent with the words expressly used.’

The canons of statutory interpretation may also be employed when interpreting statutes.
These are the plain or literal meaning, the secondary or golden rule and the mischief rule.
In interpreting statutes therefore, the courts are to adopt the literal rule as was espoused
in the Sussex Peerage case. The literal rule states that the courts must give effect to the
plain and literal meaning of the words where it is clear and unambiguous. In this vein also,
technical words are to be given their technical meaning to ensure that the legislative
intent is preserved as was held in Monta v. Patterson. Technical words are words which
are used by persons belonging to a particular profession or trade.

This notwithstanding, where the application of the literal rule would lead to absurdity and
not disclose the true intention of parliament, the court is at liberty to adopt the secondary
meaning or the golden rule. The golden rule was developed in the case of Grey v.
Pearson and it is to the effect that where the words of a statute will lead to manifest
absurdity and injustice, the court should choose the meaning that will ensure justice.

The third canon of statutory interpretation is the mischief rule. The mischief rule was
espoused in Heydons case. It consists of three approaches, firstly, find out the mischief
that the law was intended to cure, what the common law was before the law was passed
and what the law is presently.

Linguistic canons of construction may also be employed in the interpretation of statutes.

These canons include the Noscitur a sociss rule, ejusdem generis rule , Expressio unius est
exclusio alteris, among others. However, for the purpose of the peculiar facts of the
instant case, we shall consider the Noscitur a sociss rule in detail. The Noscitur a sociss rule
is to the effect that words derive their meaning from the company of words they are in.
Stamp J in Bourne v Norwich Crematorium Ld [1967] 1 WLR 691 at 696 said that ‘ English
words derive colour from those which surround them’.

Application Of The Law

The Act under consideration is the Asante-Akyem University College (AAUC) Act. And
relevant provisions of the said Act for our purpose are sections 16 and 24 of same.

Section 16(1) provides that

“Subject to the provisions of this Act, the Board shall have the power to do or provide for
any act or in relation to the University which the Board consider necessary or expedient
in its capacity as the governing body of the University

(2) the conferment of particular powers on the university Board by other provisions of this
Act shall not be taken to limit the generality of the section.

The provision in section 16(1) grants power to the governing board to provide for any act
which the university Board considers necessary or expedient in its capacity to govern the
school. Subsection 2 of section 16 further provides that the power granted to the
governing body of the school cannot be taken to be limited by any other section. Section
24 of the Act provides for the sources of funds of the university topmost amongst them is
the payment of fees by the students of the university. Employing the literal rule to
interpretation, section 24 (1) should be given its literal meaning. This is so because the
meaning of the text is clear and raises no ambiguity. Also, by construing the statute as a
whole and by applying the noscitur a sociis rule which says that words derive their
meaning or colour from the accompanying words, section 24(1) (I) should derive its
meaning from the accompanying provisions in section 24 that is section 24(1) (i), (iii), (iv),
(c), (d) and (e) and also section 16 (1) and (2) all of which relate to fees, charges and
income earned from services rendered by it or through the university university and
nothing more.

Judging from the tenor of section 24 of the AAUC Act, the word fee is to be construed as
fees and dues in respect of services rendered by the university or through the university
and does not extend to the imposition of taxation.

Also a careful reading shows that it was not the intendment of parliament to grant the
University Board power to impose road tolls but to rather charge for services which the
university was set up to provide mainly education and the ancillary services that come
with it. The imposition of road tolls on the other hand detracts from the power granted to
the university Board and veers into the realm of imposition of tax. The Applicants
contention therefore is right in law. Taxation is a compulsory imposition of a levy on an
individual or a group of persons. The imposition of a road toll therefore is an imposition of
tax on the road users of the university and not a mere charge or dues for services
rendered by the university. This is so because once it is imposed it will become compulsory
for all the road commuters to pay and hence amounts to imposition of taxation. It is the
opinion of this court that the imposition of road tolls is tantamount to the imposition of tax.

Issue 2

With regards to issue two, the constitution as earlier stated is the supreme law of the land.
The interpretation Act encourages judges to adopt the purposive approach when
interpreting the constitution. The Purposive approach to interpretation asserts that when
construing national constitutions, the text must be read as a whole and words given their
ordinary meaning. The context and background within which they are used are also
relevant factors to consider. In the case of Appiah v. Biani, the court construed an
uncompleted building as a house in order not to disinherit the wife of the deceased
intestate.

Article 174 of the constitution provides that no taxation shall be imposed otherwise than
by or under the authority of an Act of parliament. This means that parliament is the only
body that has the power to impose taxation or any other body authorized by parliament
to do so. The interpretation of section 24 (1) (ii) of the AAUC Act in the discussion above
reveals that the Act does not confer power on the University Board to impose road tolls
and consequently taxation. Section 16(1) confers power on the university Board to
provide for any act in relation to the university which the university board considers
necessary or expedient in the governing of the university. This power cannot be construed
as a conferment of authority to impose tax. Even if the AAUC Act confers power on a
body to waive or vary tax, it must be submitted for approval by resolution by parliament
in accordance with Article 174 (2) before it can come to force.
The decision by the AAUC Board to impose a road toll which has been interpreted as
tantamount to imposition of taxation, therefore flies in the face of the powers conferred
on the Board and amounts to exercise of power which it is not clothed with. The
imposition of the road toll therefore is in contravention of Article 174 and thereby null and
void.

In conclusion, It follows from the back of the analysis of the law above discussed,
particularly Article 1(2) which provides that the constitution is the supreme law of the
land and consequently that all Acts of parliament or laws are subject to it, the
purported imposition of road tolls contravenes Article 174 and is made in excess of the
power conferred on the university Board by the AAUC Act and therefore null and void.