Interpretation 360 - The Case Album

INTERPRETATION 360 – THE CASE ALBUM
Table of Contents
WHY INTERPRETATION?................................................................................................................................ 4
GROUNDS FOR INTERPRETATION ............................................................................................................. 5
MEANINGS IN INTERPRETATION ............................................................................................................... 5
RULES OF CONSTRUCTION FOR NON-STATUTORY DOCUMENTS ................................................................. 6
RULES OF CONSTRUCTION FOR WILLS ........................................................................................................ 11
BASIC RULE 1 ........................................................................................................................................... 11
BASIC RULE 2 ........................................................................................................................................... 12
EXCEPTIONS TO THE BASIC RULES ...................................................................................................... 12
LEGAL REQUIREMENTS FOR ADMITTING A WILL.................................................................................... 15
JURAT .................................................................................................................................................. 16
EXCEPTION TO SOME LEGAL REQUIREMENTS – PRIVILEGED WILL ........................................................ 17
CHARACTERISTICS OF A WILL .................................................................................................................. 18
EXECUTORS ............................................................................................................................................. 19
LAPSED DISPOSITIONS ............................................................................................................................ 20
REVOCATION OF A WILL ......................................................................................................................... 20
PROOF OF VALIDITY OF A WILL ............................................................................................................... 21
COMMORIENTES RULE............................................................................................................................ 22
RULES AGAINST PERPETUITY .................................................................................................................. 24
REMAINDER......................................................................................................................................... 24
A REMAINDER CONTINGENT GIFT OR DEVISE .................................................................................... 25
THE CLASS CLOSING RULE ................................................................................................................... 25
OTHER NOTABLE CASES .......................................................................................................................... 28
APPROACHES/SYSTEMS/THEORIES AND RULES FOR STATUTORY AND CONSTITUTIONAL
INTERPRETATION ........................................................................................................................................ 31
1. STRICT CONSTRUCTIONIST/LITERALISM ......................................................................................... 31
2. TEXTUALISTS ................................................................................................................................... 31
3. INTENTIONALISM ............................................................................................................................ 32
CRITICISMS .......................................................................................................................................... 33
4. ORIGINALISM .................................................................................................................................. 33
UNIQUE CHARA POKU | GSL 2023 1|Page

5. LIVING CONSTITUTIONALISM.......................................................................................................... 35
6. THE GOLDEN TRIANGLE PRINCIPLES OF INTERPRETATION............................................................. 35
7. PURPOSIVE APPROACH AND MOPA ............................................................................................... 36
CRITICISM OF PURPOSIVISM ............................................................................................................... 39
AIDS TO INTERPRETATION - PRESUMPTIONS ............................................................................................. 41
PRESUMPTIONS ...................................................................................................................................... 42
BURDEN OF PROOF IN PRESUMPTION ............................................................................................... 43
REPEALS AND RETROSPECTIVITY OF LEGISLATIONS ................................................................................... 50
RETROSPECTIVITY.................................................................................................................................... 50
EXCEPTIONS TO RETROSPECTIVITY RULE ............................................................................................ 50
TRANSITIONAL PROVISIONS................................................................................................................ 51
REPEALS................................................................................................................................................... 52
EFFECT OF A REPEAL ........................................................................................................................... 53
EFFECT OF A REPEAL IN CRIMINAL OFFENCES .................................................................................... 54
RE-ENACTMENT/CONSOLIDATION/REVISION ........................................................................................ 55
AMENDMENT .......................................................................................................................................... 56
TYPES OF AMENDMENT ...................................................................................................................... 56
OUSTER CLAUSES AND JUDICIAL REVIEW ................................................................................................... 58
3 TYPES OF OUSTER CLAUSES ................................................................................................................. 58
EXAMPLES OF OUSTER CLAUSES ......................................................................................................... 58
OUSTER CLAUSE IN AN AGREEMENT/NON-STATUTORY OUSTER ...................................................... 59
NON-STATUTORY OUSTER v COURT ................................................................................................... 60
OUSTER CLAUSE IN A STATUTE ........................................................................................................... 61
OUSTER CLAUSES IN A CAUSE OR MATTER AFFECTING CHIEFTAINCY ................................................... 62
Constitutional Ouster: Indemnity Provisions in the Constitution ....................................................... 65
JUDICIAL REVIEW .................................................................................................................................... 65
Supervisory Jurisdiction of the High Court and the Supreme Court ....................................................... 65
SCOPE OF CERTIORARI ............................................................................................................................ 66
PROCEDURE FOR INVOKING SUPERVISORY JURISDICTION................................................................. 66
EXTENSION OF TIME ........................................................................................................................... 67
Locus Standi / Capacity to Apply for Certiorari and Prohibition ......................................................... 67
Are Appeals and Invocation of the Supervisory Jurisdiction of the Supreme Court Mutually
Exclusive? ............................................................................................................................................ 67

CONSTITUTIONAL INTERPRETATION........................................................................................................... 68
CAPACITY................................................................................................................................................. 68
GROUNDS FOR INVOKING THE EOJ OF THE SUPREME COURT ............................................................... 70
INVOKING THE EOJ OF SC: INTERPRETATION OR ENFORCEMENT? ........................................................ 70
PRINCIPLES OF / APPROACHES TO CONSTITUTIONAL INTERPRETATION ................................................... 74
1. A benevolent, broad, liberal and purposive construction of the constitution. .............................. 74
2. The Constitution as a document Sui Generis to be construed not exactly as Statutes .................. 75
3. Constitution to be construed as a living organism capable of growth ........................................... 76
4. The Court must avoid importing into the Constitution what does not appear therein. ................ 77
5. Employment of the Spirit of the Constitution ................................................................................ 78
6. Employment of the Directive Principles of State Policy as a .......................................................... 79
JUSTICIABILITY OF DPSP .......................................................................................................................... 79

WHY INTERPRETATION?
CASE TITLE FACTS /HOLDINGS /APPLICATION
Seaford “It would certainly save the judges trouble if Acts of Parliament were drafted
Court Estate with divine prescience and perfect clarity. In the absence of it, when a defect
Ltd v Asher appears, a judge cannot simply fold his hands and blame the draftsman. He
[1949] 2 KB must set to work on the constructive task of finding the intention of
481 at 499 Parliament, and he must do this not only from the language of the statute
Lord Denning but also from a consideration of the social conditions which gave rise to it,
and to the mischief which it was passed to remedy, and then he must
supplement the written word as to give “force and life” to the intention of
legislature”
Towns v “A word is not crystal, transparent and unchanged, it is the skin of a living
Eisher thought and may vary greatly in colour and content according to the
[1918] 245 circumstances and the time in which it is used”
US at 425
GENERAL RULE: Where there is clarity to the text, it only calls for
application, not interpretation.
Gbedemah v Held:
Awooner- “Unless the words of a statute are imprecise and ambiguous the court does
Williams not apply the rules and presumptions of construction. The words of article
[1969] 2 G & 71(2)(b) and (d) are plain and they mean what they say and are to be
G 439 expounded in their ordinary and natural sense. Unless the primary or popular
or literal meanings of the words are disputed, the interpretation of the words
See also is unnecessary”.
Republic v
Maikankan
(1971) 2 GLR
473
CAUTION TO APPLICATION OF GENERAL RULE

Republic v “It has to be realized that the initial stance of the Supreme Court exemplified
High Court, by cases such as Republic v Maikankan (1971) 2 GLR 473, S.C, Republic v
General Special Tribunal; Ex-parte Akorsah (1980) GLR 592 C.A, Aduamoa II v Adu
Jurisdiction Twum II (2000) SCGLR 165 which laid emphasis on the plain meaning of a
Division, Ex statute preceded the new era of constitutional interpretation based on the
Parte now dominant principle of purposive construction of statutes,
Zenator particularly the constitution. Indeed, beginning with Republic v High Court
Rawlings (Fast Track Division) Accra; Ex parte Electoral Commission (Mettle-Nunoo &
Others Interested Parties) [2005-2006] SCGLR 514 the tide against ready
referral for interpretation began to change”

GROUNDS FOR INTERPRETATION
REPUBLIC v The criteria set out for interpretation are:
SPECIAL a. where the words of the provision are imprecise or unclear or
TRIBUNAL; ambiguous.
EX PARTE b. where rival meanings have been placed by litigants on the words of
AKOSAH any provision of the Constitution;
[1980] GLR c. where there is a conflict in the meaning and effect of two or more
592 at 604 articles of the Constitution, and the question is raised as to which
provision should prevail;
d. where on the face of the provisions, there is a conflict between the
operation of particular institutions set up under the Constitution,
thereby raising problems of enforcement and of interpretation.
MEANINGS IN INTERPRETATION
1. ORDINARY MEANING
Jones v Held:
Skelton “the ordinary and natural meaning may … include any implication or
[1963] 1 inference which a reasonable reader guided not by any special but only by
WLR 1362 general knowledge and not fettered by any strict rules of construction would
draw from the words”.
2. SECONDARY MEANING
Ababio v Held:
The “On the submissions of both counsel it seems to me that two competing
Republic principles of construction must be resolved, though each is but the other side
(1972) 1 of the same coin. The first is the cardinal rule that where the words are plain
GLR 347 their literal and simple meaning is to be adopted. But the rule is subject to the
qualification that “The more literal construction ought not to prevail, if ... it is
opposed to the intentions of the Legislature, as apparent by the statute; and
if the words are sufficiently flexible to admit of some other construction by
which that intention will be better effectuated.”

RULES OF CONSTRUCTION FOR NON-STATUTORY DOCUMENTS
Rule 1: SEEK THE INTENTION OF THE AUTHOR
Rule 2: INTENTION MUST BE GATHERED FROM THE WRITTEN
INSTRUMENT - animus hominus est anima scripta (the intention
of the parties is the soul of the instrument)
Rule 3: WORDS USED IN THEIR TECHNICAL AND SCIENTIFIC SENSE
MUST HAVE THEIR STRICT LEGAL EFFECT
Brief Facts:
The Court of Appeal had to interpret the deed of settlement of a settlor, J.
Biney v Biney P. O Biney which instrument was executed in 1910. He was the father of the
[1974] 1 GLR plaintiff and the grandfather of the defendants. In the deed he conveyed his
318 freehold interest in land to three persons to have life interest and thereafter
to his four children as remaindermen, their heirs and assigns forever. The
plaintiff became the sole survivor of the remaindermen and argued that on
the basis of the common law principle of jus accrecendi he became entitled
to the absolute use of the property. The trial Judge agreed with the
construction place on the deed of settlement by the plaintiff but the
appellant argued otherwise that it was not the intention of the settlor to
convey the property absolutely to the plaintiff. The Court of Appeal
dismissed this argument when it laid down three main stages in dealing with
its meaning.
Held:
“The deed of settlement, exhibit A, had to be interpreted in the light of three
basic rules of construction, namely:
(i) the construction must be as near to the mind and intention of the
author as the law would permit;
(ii) the intention must be gathered from the written expression of the
author’s intention; and
(iii) local authorities had firmly established that in pre-1974 conveyancing,
technical words of limitation in a document relied on as constituting a
transaction known and recognised by English law must have their strict legal
effect according to the English pre-1881 conveyancing law”.
See also for Rule 2: Intention gathered from the written
instrument
Akim Akroso Held:
Stool v Akim “What the words in a document meant could only be derived from the
Manso Stool document itself. The intention of the parties had to be gathered from the
[1989-90] 1 written instruments. The function of the court was to ascertain what the
GLR 100 parties meant by the words which they had used. The court was to declare
the meaning of what was written in the instrument and not what was
intended to have been written so as to give effect to the intention

expressed; for it was not permissible to guess at the intention of the
parties and substitute the presumed intention for the intention. Since in
the instant case the plaintiffs were not parties to the conveyance
complained of, their intention or presumed intention could not be
substituted for the clear intentions of the parties who had accepted the
document as binding on them”
Monta v See also for Rule 3: Technical Meaning

Paterson Held:
Simons [1974] “It is a rule of construction that where legal terms or words of well-known
2 GLR 162,
legal import are used by lawyers, especially by conveyancers, they will
Mensa-Boison J
have their technical legal import…
Held:
Shore v Wilson
“If the language be technical or scientific, and it is used in a matter
(1842) 9 CL & F
355, Lord relating to the art or science to which it belongs, its technical or scientific
Coleridge meaning must be considered its primary meaning”.
Rule 4: Read the document as a whole
Manu v Held:
Emeruwa “Even a restricted view of the document itself showed that, in spite of
(1971) 1 GLR words such as “absolute assignment,” “covenant” and “absolutely,” the
422, transaction was that of a pledge. All the terms of a document must be
Abban J looked at and whatever phraseology may be adopted in some particular
part of the document, if on a consideration of the whole document there
are grounds appearing on the face of the document which afford proof of
the real intention of the parties, then that intention ought to prevail
against the obvious and ordinary meaning of those words”.
Brief Facts:
See also The Plaintiff’s employment was terminated and he was given one month
Boateng v pay in lieu of notice to him. He issued a writ claiming that his termination
Volta was unlawful as clause 3 of the conditions of service only provided for “a
Aluminium Co notice of one month” and there was no provision for termination in lieu of
Ltd [1984-86] notice. The court implied a one-month payment in lieu of notice and
GLRD 85 dismissed the originating summons. The Court of Appeal affirmed the
decision by having regard to clauses 1 and 2 in addition to 3 of the
conditions of service; that the clauses must be read as a whole and clause
3 need not be excluded, as clause 1 gave such an option of payment of
one-month salary in lieu of notice. Abban JA (as he then was) noted as
follows:

Held:
“in attempting to construe the termination provisions, regard should be had
to all the four clauses, i.e. the language used and all the provisions in the
termination clauses should be looked at as a whole and every clause must
be compared with the other and one entire sense made out of them. It was
only by so doing that the true meaning and the intention of the parties could
be discovered. In clause (1) the employee could terminate his services by
giving one month’s notice or by paying one month’s salary in lieu of notice
to the employer. But the payment of one month’s salary in lieu of notice was
absent in clauses (2) and (3). But reading all the clauses together, clauses
(2) and (3) were not intended to exclude the possibility of paying a month’s
salary as an alternative to giving a month’s notice. If clause (1) gave such
an alternative to an employee it was only fair and just that it should be
inferred or implied that the employer also had the same alternative in the
other two clauses… Such an inference would not only do that which was the
highest equity, namely make an equality between parties who stood in the
same relation, but would also effectuate the real object and intention of the
parties.
Rule 5: Adhere to The Context and The Ordinary Meaning
CONTEXT
Impraim v Held:
Baffoe [1980] “As a general rule, the expression “children” meant immediate descendants
GLR 520 and did not include grandchildren. It might however appear on the
construction of a particular will that the testator used the word “children” in
a wider sense so as to include grandchildren and remoter issues, and this
might appear in the context of the will itself. In the instant will under
consideration, the testator obviously, a man of a respectable level of
education and a minister of religion, excluded his family and devised the
property to a “devisee family” and decreed that the houses should never be
sold. In such a context, the word children could only make sense and give
expression of his intention if it was construed to include remoter issues of
the specified beneficiaries.
However, in the case of Addai v Donkor 2nd May, 1992 (unreported),

again on the word “children” as used in a will, the court construed it to mean
Addai v ‘sons and daughters’ but not grandchildren nor members of the extended
Donkor family.
(1992) Held: “When a person chooses a particular language to express himself he
unreported, must be presumed to mean what the words he has used normally mean in
Adade JSC that language. From the language of exhibit B, the Will … it almost certainly
appears that exhibit B was prepared by a lawyer who must be deemed to
know the difference between children and descendants. … children must be

taken to mean what it means in the English language, viz, sons and
daughters of any person”
ORDINARY MEANING
Held:
Grey v “In construing wills and indeed statutes, and all written instruments, the
Pearson grammatical and ordinary sense of the words is to be adhered to, unless
(1857) HLC that would lead to some absurdity, or some repugnancy with the rest of the
61 at 106 instrument, in which case the grammatical and ordinary sense or the words
may be modified, so as to avoid the absurdity and inconsistency but no
further”.
Rule 6: If The Ordinary Meaning Will Lead to an Absurdity, Use
The Secondary Meaning to Avoid the Absurdity
Sam v Held:
Comptroller “It is the duty of a court, in interpreting an enactment, to give effect to the
of Customs & intention of the legislature. Therefore, where words in an enactment are
Excise [1971] clear and unambiguous no question of interpretation arises, but where the
1 GLR 289 ordinary meaning of the words used leads to a manifest absurdity or
repugnancy, a court may alter the words of the enactment, but only to the
extent of avoiding the absurdity or repugnancy”.
Rule 7: The Court Has Power to Rectify Mistakes
Held:
Wilson v “Now it is a great mistake if it be supposed that even a court of law cannot
Wilson (1854) correct a mistake, or error on the face of an instrument. If you find a clear
5 H.L Ca 40, mistake and it admits of no other construction, a court of law as well as a
Lord Leonards court of equity without impugning any doctrine about correcting those
things which can only be shown by parole evidence to be mistakes –
without I say, going into those cases at all, both courts of law and equity
may correct an obvious mistake on the face of an instrument without the
slightest difficulty”.
Brief Facts:
See also The testator described his two nephews as sons being beneficiaries. And
Wilberforce v attempt was made to set aside the devise to them because of the false
Wilberforce description. The court rejected that argument.
[1999-2000] Held:
2 GLR 312 “…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 could not vitiate a

gift, then it certainty could not nullify a whole will. In the instant case
however the court would also take judicial notice of the fact that it was not
uncommon by Ghanaian custom and traditions that nephews and nieces
should be affectionately referred to as sons and daughters by their
respective uncles and aunties. In the circumstances the use of the word
“sons” to describe the two nephew of the testator did not in any way
detract from the validity of the will”
EXCEPTION TO RULE 2: ADMISSIBILITY OF EXTRINSIC EVIDENCE
Two exceptions to the rule:
1. Cases of equivocation of latent ambiguity: where a name or
Re Atta; description used in the will may refer to two or more
Kwako v persons/things or applies ambiguously, extraneous evidence may
Tawiah be admitted to clarify the name or description.
[2002-2003] 2. Under the arm chair rule: where the meaning of words (or
SCGLR 461 names) cannot be ascertained from the instrument without the
admission of extrinsic evidence.
OTHER INSTANCES WHERE EXTRINSIC EVIDENCE WILL BE ALLOWED
3. Where terms are implied by statute
4. Where terms are implied by custom (in market or industry)
5. Where terms are implied by course of dealing
6. Where terms are implied by common law, known as “terms in fact”
The “terms in fact” under common law was stated by in this case that:
BP Refinery
(Westernport) “For a term to be implied, the following conditions which may overlap must
Pty Ltd v be satisfied: One it must be reasonable and equitable. Two it must be
Shire necessary to give business efficacy to the contract; so that no term can be
Hastings implied if the contract is effective without it. Third, it must be so obvious
[1978] All ER that it goes without saying; four it must be capable of close expression and
20 at 26, Lord five it must not contradict any express term of the contract”.
Simon
UNIQUE CHARA POKU | GSL 2023 10 | P a g e

RULES OF CONSTRUCTION FOR WILLS
INTRODUCTION
In giving effect to the contents of a will, the court is only expressing its
satisfaction that the document has been validly executed and represent what
the parties intended to be enforced as a binding contract. The courts are not
to interfere with a document whose intent is manifest. It is not the business
of the courts to draw contracts or agreements but to ensure that wills which
manifest the intention of the testator is not defeated simply because its terms
are not pleasant to the court.
Held:
“No man is bound to make a will in such a manner as to deserve approbation
from the prudent, the wise or the good. A testator is permitted to be
Bird v capricious and improvident, and is more at liberty to conceal the
Luckie circumstances and the motives by which he has been actuated in his
(1850) 68 dispositions. Many a testamentary provision may seem to the world arbitrary,
ER 373 capricious and eccentric, for which the testator, if he could be heard, might
be able to answer most satisfactorily.”
BASIC RULE 1
The rule is that a Will is an intentional document and the courts must
strive to give meaning that will reflect the intention of the Testator.
Aharon Barak, Purposive Interpretation in Law:

“First, a will is the product of the testator’s intent. Testators may
express their intent in any language, lexicon or sign they choose. They
may call black, white... The intent of the testator is an expression of
his or her constitutional right to dignity and property… The testator’s
intent is his or her historical, psychological intent as formulated at the
time the will was made”.
Held:
In Re Atta (Dec’d) “In construing a Will, the courts look for the intentions of the
Kwako v Tawiah testator as expressed by him in the actual words used by him and
[2001-2002] not what is supposed to be the actual intentions having regard to
SCGLR 461
all the other provisions of the Will. Consequently, extrinsic
evidence of a testator’s declarations of intention as to the
meaning to be put on the language to be used in his will is not
admissible as direct evidence of his testamentary intention. Under
the rule, evidence of instructions given by the testator for his Will
is not admissible as direct evidence of testamentary intentions but

instructions given for the Will are admissible in two situations
accepted as exceptions to the general rule”.
BASIC RULE 2
There is no presumption that anyone who is not named as a
beneficiary of a Will shall benefit from the dispositions under the Will -
Turker v Harrison [1832]
In Re Mensah Held:
(Decd); Barnie v “The policy of the courts is to give effect to the last wishes of the
Mensah & ORS deceased and to uphold them unless there are overriding legal obstacles
[1978] 1 GLR 225 in the way.”
CONTRARY POSITION TO BASIC RULE 1 (in foreign cases)
Held:
Throckmerton v
“… if a man was assured that whatever words he made use of, his
Tracy (1555) I
meaning only should be considered, he would be very careless about
Plowd. 145 “162
the choice of his words, and it would be the source of infinite
Brooks CJ confusion and uncertainty to explain what was his meaning”
Ralph v Carrick Held:

(1879) 11 Ch. 873 “It sometimes amuses me when we are asked to say what was the
actual intention of a foolish, thoughtless and inaccurate testator. This
Brent LJ
is not what the court has to determine. All the courts can do is to
construe according to settled rules, the terms of a will, just as it
construes the terms of any other written document
EXCEPTIONS TO THE BASIC RULES

BASIC RULE 1
1. Cases of equivocation of latent ambiguity
2. Under the arm chair rule
Brief Facts:
In Re Ofner The testator, in his Will, left an amount of Two Hundred Pounds for his
Samuel v grandnephew Robert Ofner. He had no such grandnephew by that name but
Ofner rather Richard. With the assistance of a document, the court held that the
(1909) 1 testator meant Richard and not Robert.
CH 60 Ratio:
Where the identity of the beneficiary cannot be ascertained within the four
corners of the will, evidence may be received to establish the identity.

BASIC RULE 2
1. Article 22(1), 1992 Constitution
“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.”
2. Section 13(1), Wills Act, 1971 (Act 360)

Section 13(1): If, on an application made, not later than three years from
the date on which probate of the will is granted, the High Court is of the
opinion
(a) that a testator has not made reasonable provision whether in life or by will
of the testator for the maintenance of a father, mother, spouse or child under
eighteen years of age of the testator, and
(b) that hardship will be caused,
the High Court may, taking account of the relevant circumstances, despite the
provisions of the will, make reasonable provision for the needs of the father,
mother, spouse or child out of the estate of the deceased.
Akua INVOKING SECTION 13(1)

Marfoa v a) The Appellant is a dependant on the testator
Margaret b) The application has been brought within three years after the granting of
Akosua the probate of the will
Agyeiwaa c) The testator failed, either during his lifetime or by his will, to make
J4/42/2012 reasonable provision for the Appellant
(per Baffoe- d) The Appellant is suffering, or likely to suffer hardship, and that having
Bonnie JSC) regard to all the relevant circumstances the Appellant is entitled to support
out of the estate of the testator.
Humphrey- STRICT APPLICATION OF SECTION 13(1)
Bonsu v Brief Facts:
Quaynor The testator, William Bart-Plange, did not leave anything for an estranged
[1999- wife for ten years and two children (plaintiffs) who were above eighteen; one
2000] was in school whilst the other was mentally deranged and crippled from birth.
2GLR 781 The trial court found for the plaintiffs and made an order for the rents from
one property in Kokomlemle to be given to the plaintiffs as well as other
provisions. The defendants appealed.
Held (majority):
“Unfortunately, both the second and third plaintiffs were more than 18 years
old at the time the testator died. And so by section 13(1) of Act 360 they do
not qualify as dependants, however much pain or grief one has for them,
especially the third plaintiff. I say this without relish, but that is what the
legislation says, there is no ambiguity about it. The rule is that if the language
of a statute is clear, it must be enforced however harsh the result may appear
to be. The lawmaker clearly intended the natural age of a child to prevail. I

believe this case brings to the fore the urgent need to amend this law so that
certain handicapped and dependent children however old they may be, will
benefit from their parent’s estate. But so long as the law stands, the court is
bound to give effect to it notwithstanding the apparent hardship it may
cause”

LEGAL REQUIREMENTS FOR ADMITTING A WILL
1. A testator must have Testamentary Capacity
This includes: i) legal age of 18 years
ii) disposition of one’s self acquired property and
iii) the compos mentis to make a Will.
Section 1, Wills Act, 1971 (Act 360):

“Any person of or above the age of eighteen years may in writing and in
accordance with this Act make a will disposing of any property which is his or
to which he will be entitled at the time of his death or to which he may be
entitled thereafter.
(2) No person suffering from insanity or infirmity of mind so as to be
incapable of understanding the nature or effect of a will shall have capacity
to make a will during the continuance of that insanity or infirmity of mind.”
Cartwright v Held (on insanity):

Cartwright A Will made by a testator during his sound or lucid moment is valid and
(1775 - could be admitted to probate, so long as the testator appreciated the nature
1802) All ER of the testamentary dispositions made.
2. A Will must be in writing - Section 2(1) of Wills Act
It could be handwritten or typewritten.
3. A Will must be duly executed (signed by testator)
This includes:
i) signing by Testator or any person under his direction and in his presence
and the presence of two or more witnesses present at the same time.
ii) Signature must be beneath dispositions made.
iii) Signature must be made or acknowledged by testator in the presence of
two or more witnesses present at the same time.
iv) Witnesses must sign the will in the presence of the testator.
v) Where the testator is blind or illiterate, a jurat is required.
Section 2, Wills Act, 1971 (Act 360)

4. The dispositions must be voluntarily made
Held:
Cock v “Any document duly executed in accordance with the requirements of the
Cooke statute, however irregular in form or inartificial in expression, is entitled to
(1866) 1 probate, provided the person executing it intended that it should not take
P&D @ 234 effect until after his death, and it is dependent upon his death for its vigour
and effect”

JURAT
Where there is no jurat, the Will shall not be admitted to probate unless
there is evidence to show that the Will was read over to the blind or
illiterate testator and he understood the contents before he made his mark.
Kwamin v Locus Classicus

Kuffour Held:
(1914) 2 “…where a person of full contracting capacity signs a document written in
Renner 808 a language he can neither read nor write, or cannot understand, it is
imperative on the proponent of the document to prove that it was clearly
read and explained to the person against whom the document has been
cited.
Duodu and Held:

Others v “…the courts must not make a fetish of the presence or otherwise of a jurat
Adomako and on executed documents. To hold otherwise, without a single exception, is to
Adomako open the floodgates to stark injustice. Admittedly, the presence of a jurat
[2012] 1 may be presumptive of the facts alleged in the document, including the jurat.
SCGLR 198 But that presumption is rebuttable, it is not conclusive. The clear object
of the Illiterates Protection Ordinance, Cap 262 (1951 Rev.) is to
protect illiterates… At the same time, the Ordinance cannot and must
not be permitted to be used as a subterfuge or cloak by illiterates
against innocent persons. Thus, any evidence which will demonstrate
that the illiterate knew and understood the contents of the disputed
document… 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 understood and
appreciated fully the contents of the document he or she marked or
thumb printed.”
Also see Held:

Sedzedo “… there is indeed no requirement that there be a jurat clause
Akuteye v certifying that the document was read over and explained to the
Ajoa Nyakoa illiterate person. All it does is specify certain formalities that the
[2017-2018] physical author of the document must undertake. Conversely, that is
2 SCGLR also why the mere absence of a jurat clause cannot per se vitiate the
1007 deed of an illiterate person without any tangible proof that he/she did
not understand the contents… In law, therefore, the issue as to

whether or not an illiterate person fully understood and appreciated
the contents of a document before executing same is a question of
fact to be determined by the evidence on record”.
Otoo (No 1) v CONTRARY POSITION
Otoo (No2) The Otoo decision invalidates a Will without a jurat; without taking into
[2013-2014] account the case of Duodu v Adomako and Order 66 rule 19 of CI 47.
2 SCGLR 810 This may render the Otoo decision per incuriam.
EXCEPTION TO SOME LEGAL REQUIREMENTS – PRIVILEGED WILL

Section 6(1), Wills Act, 1971 (Act 360):
Despite a provision of this Act to the contrary, a member of the Armed Forces
of whatever age may, while engaged on active service, make a will
Forms of Privileged Will (Section 6(1) (a-c))
(a) in written and unattested form, if the material provisions and signature
are in the handwriting of the testator, or
(b) in written form, whether or not in the handwriting of the testator, and
attested by one witness, or
(c) orally before two witnesses
‘Active Service’ defined by Section 114 of the Armed Forces Act (Act
104) as:
(a) service in operation against an enemy or in a foreign country in operations
for the protection of life or property or relating to the military occupation of a
foreign country.
(b) service in operation for the preservation of public order
(c) service for the purpose of relief in cases of emergency and
(d) service for any other purpose appearing to the President to be expedient.
TEST FOR ACTIVE SERVICE
Expeditione Test: The test is whether the member of the Armed Forces was
in active service and stood in danger from the enemy action. A member of
the Armed Forces who made a Will but did not meet the criteria, will have the
Will declared invalid when it is challenged.
The Expeditione test was replaced by a two-pronged test in In Re

Wingham.
In Re Held:
Wingham That the soldier Testator must have been engaged in military service and,
[1949] 2 two, must have been sent in connection with military operations concerning
All ER 904 some war which was or had been in progress.

Therefore, the rule is that a member of the Armed Forces may be qualified to
make a Will provided he is engaged in active service whether in combat or
not, so long as the place or activity was in connection with an act that
amounts to any active service under Section 114, the act being in progress or
imminent.
CHARACTERISTICS OF A WILL
1. A WILL IS AMBULATORY
Hebrews 9:16-17: “For where a testament is, there must also of
necessity be the death of the testator. For a testament is of force when
men are dead, since it is in no way of force while the testator is alive”.
Conney v Held:
Bentum- “At the death of the testator, his Will would just become operative. For his
Williams intention as expressed in the Will did not have any legal effect until the Will
[1984-86] has been admitted to probate. It was only after probate had been granted to
GLRD 110 the executor that the provisions of the Will could be carried out”
2. A WILL IS UNITARY.
A Will, upon the death of the Testator, will comprise all legitimate Wills and
codicils made by the testator as one composite document for execution by the
executors of the Will.

EXECUTORS
Section 3, Act 360 - Executors and witnesses
(1) A person of or above the age of twenty-one years and having capacity to
enter into a contract may be appointed an executor of a will.
(2) A person appointed by a will to be an executor may attest the will.
 Where a Testator appoints his debtor as executor the debt is

deemed extinguished
WITNESSES
Section 3(4): “A beneficial disposition… given by a will to a person who
attests the execution of that will is void unless the will is duly
executed without that person’s attestation and without the attestation of any
other person.”
That is, it is void unless the witnesses are more than two
Functions that an executor may perform without probate
The right to sue and be sued, but not to make any disposition.
Section 61 of the Administration of Estates Act, 1961, Act 63:

“A grant of probate is necessary to entitle an executor to administer the
property, whether movable or immovable, of the testator. Before probate,
the executor may, for the benefit of the estate, exercise the functions which
pertain to his office but he shall not be entitled to make a disposition of any
property”.
Yeboah v Held:
Kwakye “An executor derived his title and authority from the will of the testator and
(1987-88) not from any grant of probate. Consequently, the personal property of the
2 GLR 50 testator including all rights of action vested in him upon the testator’s death
and he could therefore under both the Administration of Estates Act, 1961
(Act 63), s 61 and under the common law institute an action in the character
of executor before he proved the will although he could not make any
dispositions before then. His right to sue was of course reciprocated by his
liability to be sued. In the same token a beneficiary who meddled with the
estate before probate could be sued to challenge his title. The action against
the defendants was therefore competent”.
ALSO see Held:
Kakraba v “The executor’s title to sue existed from the date of death of the deceased,
Aminu but an administrator’s title existed only from the grant to him of letters of
[1987-88] administration or the registrar’s authority. Since the plaintiff brought the
2 GLR 59 action as personal representative or administratrix but had not obtained a

proper grant when proceedings were commenced, she lacked the capacity to
sue. Consequently the action was a nullity”.
LAPSED DISPOSITIONS
Section 8, Act 360
(1) A disposition made
 to a person who predeceases 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.
(2) Despite subsection (1), a disposition made by a testator to the testator’s
descendant…shall not lapse where that descendant predeceases the testator
leaving issue surviving the testator, but shall take effect as a disposition to
the issue per stirpes unless a contrary intention appears from the will.
A DISPOSITION MADE CONTRARY TO LAW

1. Section 3(4), Act 360: Witnesses cannot be beneficiaries unless
there are more than two witnesses.
2. A disposition made contrary to the rule against perpetuity
A DISPOSITION WHICH IS INCAPABLE OF TAKING EFFECT

1. Section 38, Matrimonial Causes Act, 1971 (Act 367): Unless a
contrary intention is shown on the face of the Will, a disposition to a
spouse by the other spouse in a Will shall be deemed to have lapsed
when the marriage is dissolved.
REVOCATION OF A WILL
Section 9, Act 360
(1) A will may be revoked by tearing or any other physical destruction by the
testator or by any other person in their presence and by the direction of the
testator with the intention of revoking it.
(2) A will may be revoked by a written declaration of intention to revoke,
executed in the same manner as a will.
(3) A will may be revoked by the execution of another will which is expressed
to revoke the previous will.
(4) A will which is not expressed to revoke a previous will shall not revoke
that previous will except to the extent that it is inconsistent with the previous
will.
(5) The destruction of a will does not revoke that will where the testator
destroys the will;

(a) as a result of fraud or undue influence, or
(b) under a mistake of fact or law intending to make any other disposition of
the property which is not validly made.
PROOF OF VALIDITY OF A WILL

There are two ways a will is proved and admitted to probate: in common
form and solemn form.
1. Common Form: A will is proved in common form where its validity is
not challenged, and the executors apply for probate upon oath and
with any affidavits and documents that may be required.
Order 66, Rule 25, CI 47:
“Where a will appears regular on the face of it and there is no
dispute as to its validity, the application for probate may be
sufficiently supported by affidavit deposing to the due execution
and attestation of the will and by such other documents or papers
as the court may require.”
2. Solemn Form: A will is proved in solemn form by the executor, or a

person interested under the will, by the issuance of a writ and in an
action where the legal requirements of a valid Will is proved in
accordance with the Wills Act, (Act 360), and the court, upon the
hearing, pronounces on it.
Order 66, Rule 26, CI 47:
“Where for any reason the executors of a will are in doubt as to its
validity or the validity of the wills disputed, the executors may if they
consider it necessary to do so, prove the will in solemn form in an action
commenced by writ asking the Court to pronounce the will as valid.”
Burden of Proof
When a Will is challenged as not being valid, the executor or the proponents
must prove the will in solemn form. If proved, per Section 11(1), the burden
of evidence would shift to the defendants to introduce sufficient evidence to
avoid a ruling against them.

COMMORIENTES RULE
The rule governs survivorship of estate in circumstances where it is difficult or
impossible to determine who predeceased who. A younger person who has
died together with an older person would be deemed to have survived the
older for inheritance.
The rule was first applied in 1925 by Section 184 of the Law of Property Act.
It is applicable in Ghana by virtue of Section 119(2) of the Courts
Act, 1993 (Act 459) and the Evidence Act, 1975 (NRCD 323)
Section 119(2) of the Courts Act, 1993 (Act 459)

“Until provision is made by law in Ghana sections 49, 50, 51, 59, 71 (1) and
(2), 131, 139, 145, 150, 151, 154, 158, 161, 164, and 184 of the Law of
Property Act, 1925 shall apply in Ghana subject to such verbal amendments,
not affecting substance as may be necessary to enable those sections to be
conveniently applied in Ghana.”
Section 34, Evidence Act, 1975 (NRCD 323)

“Subject to the provisions of any enactment relating to succession to
property, where two or more persons have died in circumstances in which it is
uncertain which survived the other, the older is presumed to have
predeceased the younger”.
NOTE: If the younger had left property for the older it would mean that such
a property would be deemed to have lapsed.
MODIFICATION OF THE RULE UNDER PNDCL 111 AND THE WILLS
ACT
Section 15, Intestate Succession Law PNDCL 111
“Where spouses die in circumstances -
(a) in which it appears that their deaths were simultaneous; or
(b) rendering it uncertain which of them survived the other,
the older shall, for the purposes of this Law, be presumed to have
predeceased the younger.”
The section provides specifically for survivorship of spouses for the purposes
of property sharing.
Section 7(7), Wills Act, 1971 (Act 360)

Where a testator and a beneficiary under the Will, die in circumstances
(a) in which it appears that their deaths were simultaneous, or
(b) rendering it uncertain which of them survived the other,
the beneficiary shall be deemed to have survived the testator for any
purposes affecting the entitlement to property under the will of that testator;

but for the purposes of the entitlement of the testator to that property under
a will of that beneficiary, that beneficiary shall be deemed to have survived
that testator, unless a contrary intention appears from the will.
The section focuses on a testator–beneficiary relationship, as against a

younger-older relationship for the purpose of giving effect to dispositions
made under a Will.
NOTE: If the beneficiary had left property for the testator, it would mean that
such a property would be deemed to have lapsed.

RULES AGAINST PERPETUITY
Black Law’s Dictionary definition
“The rule against perpetuities is the common-law rule prohibiting a grant of
an estate unless the interest must vest, if at all, no later than 21 years (plus a
period of gestation to cover a posthumous birth) (children en ventre sa mere)
after the death of some person alive when the interest was created.”
ESSENCE
Although a testator has the freedom to alienate his/her personal properties,
the rule prevents a person from using qualifications and criteria to continue to
affect the ownership of property long after he or she has died, a concept
known as control by the "dead hand". The rule is based on policy
considerations and is intended to discourage remoteness of vesting because
perpetuities interfere with the free and absolute disposition of land, by
continually procrastinating the time in which the land can be disposed of by a
beneficiary.
ORIGIN
Facts & Ratio
Duke of Henry, Earl of Arundel, had tried to create a shifting executory limitation so
Norfolk’s that some of his property would pass to his eldest son (who was mentally
case of deficient) and then to his second son, and other property would pass to his
1682 3 Ch. second son, but then to his fourth son. The plan also included provisions for
Cas. 1 shifting property many generations later if certain conditions should occur.
When his second son succeeded his elder brother, he did not want to pass
the other property to his younger brother, Charles. Charles sued to enforce
his interest, and the House of Lords held that such a shifting condition could
not exist indefinitely. The judges thought that tying up property too long
beyond the lives of people living at the time was wrong, although the time
limitation was not determined in the Duke of Norfolk case.
The actual time was set a hundred and fifty years later in the case of
Cadell v Palmer 6 Eng. Rep. 936 (H.L. 1832, 1833).
REMAINDER
 A remainder is an interest in property which takes effect at a future
date.
 A remainderman is a person with such interest.
 A remainderman can be vested in interest but have possession
deferred to a future date.
Example: “I gift my land at Achimota to my wife, Cecile, for life and
upon her death to my son, Kwame, absolutely”.
Kwame’s interest vests in him immediately, even though possession is
deferred.

A REMAINDER CONTINGENT GIFT OR DEVISE
This is where interest in property vests upon the occurrence of an event.
Example: “I gift my land at Achimota to my wife, Cecile, for life and upon her
death to my daughters who marry before age 30”.
The first daughter to get married before age 30 takes the whole property, but
will have to share it with any other daughter who subsequently meets the
requirement. If no daughter meets the requirement after the death of Cecile,
per the rule (of perpetuity), the property would lapse into intestacy and would
be bad for remoteness.
THE CLASS CLOSING RULE
For remainder contingent gift to vest, that beneficiary(ies) must be
ascertained within the period of the perpetuity rule. Not to sin against the
rule, the class of people must be limited and determinable within the period.
So where there is a gift to a class of people and the class cannot be
ascertained within the lifetime of members of the class plus twenty-one years,
the gift will lapse.
The class closing rule in Andrews v Partington saves, under the Perpetuity
Rule, a gift that would have been void under the common law. If there is a
way of closing the class and ascertaining the persons in it in the given period,
the gift is saved; even if other beneficiaries may be vested with interest at a
much future date when they meet the requirement(s).
Brief Facts
Andrews v The Testator, Robert Andrews, who was a solicitor and a businessman, left
Partington his estate to his wife for her lifetime and after her death all his grandchildren,
(1775- by his son Rev. Robert Andrews, who attain the age of 21 years. At the death
1802) All of the widow, Rev. Robert Andrews had twelve children but indicated that he
ER 209 might have more children. Six of the grandchildren had attained the age of 21
upon the death of the widow. The question that arose was which children
should take under the residuary bequest:
 All the grandchildren of the testator that his son might have in his
lifetime?
 Only the grandchildren of the testator who were alive at the date of
the testator’s widow’s death in 1774 (as she had a prior interest), or
 Such grandchildren as were alive when the eldest grandchild attained
the age of 21?
Held:
“where there is a bequest of an aggregate fund to children as a class, and the
share of each child is made payable on attaining a given age, or marriage, the
period of distribution is the time when the first child becomes entitled to
receive his share, and children coming into existence after that period are
excluded”.

Lord Thurlow LC thus ruled in favour of the third option, so all the
grandchildren alive when the eldest attained 21 would take. Elizabeth, the
eldest grandchild, was 13 when the widow died in 1774, and attained 21 in
1782, when the class closed. The class therefore included all 12 surviving
grandchildren, as the youngest, Augustus, was three years old when the class
closed. Any future children of the Revd Robert Andrews would not be part of
the beneficiaries. Possession cannot be attained for each of them until age 21
is attained. This case established the class closing rule. By this all the
grandchildren including children en ventre sa mere would be entitled to take.
APPLICATION OF THE RULE IN GHANA
Brief Facts
Anim-Addo The testator died in 1988 and left a will in English form in which he had made
v Mensah certain devises to his niece, one Abena Asantewa, “I give and bequeath all
alias Biama my trinkets (gold) to my niece Abena Asantewaa and after her death to pass
& Others to her descendants.” The plaintiffs, children of the testator, in an action to
[1993-94] invalidate those dispositions, applied to the Court for an order of injunction to
1 GLR 7 restrain the defendants, the executors, from granting vesting assents in
respect of those properties to the beneficiaries and a declaration that the
devises were null and void on the grounds, inter alia, that
(i) the dispositions “to the descendants of Abena Asantewa” sinned
against the rules on perpetuities, accumulations and inalienability,
and
(ii) since the will was in English form, it had to be interpreted in the
light of English law.
Held:
The trial judge held, inter alia, that the English rules against perpetuities and
accumulations codified under the English Law of Properly Act, 1925 were
applicable to Ghana by incorporation under section 111 of the repealed Courts
Act, 1971 (Act 372), they were merely common law rules and thus
inapplicable to the case because: (i) the testator was subject to a specific
customary law, i.e the Kwahu and therefore Akan customary law was
applicable. On appeal it was overturned when the court held that: section
111(1) of the Courts Act, 1971 (Act 372) made sections 161 and 164(1) of
the English Law of Property Act, 1925 (15 Geo V, c 20) applicable to the
country as a statute of general application. That the devises to the
descendants of Asantewa was against the perpetuity rule and therefore null
and void.
The judgment may have been defective in the sense that it did not take into
account the fact that the rule provides for the children alive plus twenty-one
years after the death of the testator. If it had, the golden trinkets should have

vested in the children of Asantewa without falling into intestacy for the
children of the testator to make a claim as part of the beneficiaries.

OTHER NOTABLE CASES
CASE TITLE FACTS/HOLDINGS
Re Dadzie The meaning of “shares” as used in the will of a Testator became the subject
(decd); of interpretation.
Dadzie & Brief Facts
Anor v The testator in his life time owned a hotel business and bequeathed, in his
Addison & will, the hotel by giving specific shares to named beneficiaries. Whilst still
Anor [1999- alive, the hotel business went down and he converted the hotel into rental
2000] 2 GLR property. He did not make any codicil to the will; and the question after his
291 death was how and where was the shares of the hotel for distribution to the
beneficiaries. The executors took an originating motion for interpretation of
the word “shares” as it appeared to them to be ambiguous.
Held:
It was not necessarily the etymological or ordinary sense of the word or words
used which was to be adhered to, but the effect that the author of the written
instrument intended the word or the words to have. In the instant case there
was no doubt that the intention of the testator when the will was made was
that the financial benefits accrued from the operation of the hotel business
was to be distributed to the beneficiaries named in paragraph 8 of the will in
the percentage proportions therein stated. However, since the hotel business
had become defunct and the income yielding business to which the hotel was
put had changed to that of rental accommodation at the time of the demise
of the testator, the court would, in order to effect and not defeat the intention
of the testator, modify the ordinary sense of the word “shares” as used in
paragraph 8 of the will to avoid absurdity; and would consequently construe
“share” in terms of the rental income accruing from the building.
Amartefio Brief Facts
(decd); A husband, by a clause of his will in 1947 when it was executed, gave 20
Amartefio v pounds of annual rent to his wife. The annual rent at the time was 100
Amartefio pounds. The question for interpretation was whether the wife was only
[1982-83] entitled to 20 pounds per annum despite the fact that the rent had moved,
GLR 1137 26 years later after the will, to 1,440 pounds or that the 20 pounds had to be
construed to mean 20% of the annual rent. Was the 20 pounds to be given
its literal meaning or was it to be modified?
Held:
It would be absurd, in the face of the increased income from the rentals
against inflation, to just give Rosina Amartefio (the wife) the 20 pounds as
stated; and that it was proper to construe the 20 pounds as stated at the
time the income was 100 pounds which represented 20% to mean that the
wife was entitled to 20% of the rental income of 1,440 pounds.

Allan Sugar Brief Facts
(Products) The National Investment Bank (NIB) loaned ¢300,000 on a mortgage to a
Ltd v Ghana co-operative society engaged in vegetable marketing. On the failure of that
Export Co society to repay the loan, the NIB foreclosed the mortgage. The property
Ltd [1982- consisted of 200 acres of irrigated land, an irrigation system and buildings.
83] GLR 922 By an assignment dated 1 May 1978, NIB sold 50 acres of the land and the
buildings for the sum of ¢25,000 to AS Ltd., a company engaged in sugar-
cane production, for the unexpired term of the society’s lease. After
protracted negotiation, NIB agreed to assign the remaining 150 acres
together with the exclusive use of the irrigation facilities to GE Ltd. The
Plaintiff sued claiming that it was entitled to the use of the original
equipment on the land as there was a general understanding that the
ownership of the land included use of the irrigation pumps as well on the
land. The trial court dismissed the action and the Plaintiff appealed.
Held:
“Although the matrix of facts, events, surrounding circumstances and
nuances should be taken into account in ascertaining the real intentions of
parties to an agreement and in construing it, where parties had reduced
into writing their intentions they were bound by their written word and the
use of extraneous material as aids to interpretation could only be resorted
to in extreme cases of genuine doubt … 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 interpolation
would amount to an interference with a third party’s bargain”.
Due to the falsa demonstratio rule, a grant will pass to a beneficiary even if
there is inaccurate reference to the beneficiary, as long as he/she could be
identified.
Brief Facts
Wilberforce v The testator wrote the will on paper and gave to the lawyer to type.
Wilberforce Sometime later whiles on admission at the hospital, the typed will was
[1999-2000] brought and read over to him. He nodded his head and said in Fanti “oyie,
2 GLR 311 oyie”. He thumb-printed as he was too weak to sign and the clerk and
nephew signed as witnesses. He died two days later. The son of the
testator challenged the admission of the will to probate that the father was
not compos mentis and too weak to sign. And also that the will described
two nephews as sons.
Held:
“Inaccurate references to beneficiaries under a will per se did not invalidate
bequests. 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 further that the deceit was perpetrated with the motive of benefiting
under the 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 could not vitiate a
gift, then it certainty could not nullify a whole will. In the instant case
however the court would also take judicial notice of the fact that it was not
uncommon by Ghanaian custom and traditions that nephews and nieces
should be affectionately referred to as sons and daughters by their
respective uncles and aunties. In the circumstances the use of the word
“sons” to describe the two nephew of the testator did not in any way
detract from the validity of the will”

APPROACHES/SYSTEMS/THEORIES AND RULES FOR STATUTORY AND
CONSTITUTIONAL INTERPRETATION
1. STRICT CONSTRUCTIONIST/LITERALISM
i. Strict constructionism or the literal interpretation is an approach to
interpretation that places restrictions on interpretation of a text. The
approach restricts the interpretation to the text as it is written and
once the text appears to be clear, plain and unambiguous, effect
should be given to it without looking for any extraneous matters.
ii. It does not require the drawing of inferences, but where there are
technical words employed, then the technical meaning assigned to
them must be given effect. Literalists will not entertain the notion
that there is a mistake in an Act and the Judge must interpret so as
to avoid the absurdity that the mistaken or the omission produces.
iii. The approach may fall under originalism but originalists denounce it
as unhelpful approach to interpretation.
Facts & Ratio:

R v Harris Where the law made it an offence to “stab, cut or wound” and the
(1836) 7 C Defendant had used his teeth to bite off the nose of the victim, the court
& P 446 held that the plain or literalist meaning of the words does not admit of an
offence being caused by the use of one’s teeth.
Rep v HC
Accra; Ex Facts & Ratio:
Parte CHRAJ Aninkwa JSC held that the word “complaint” must be referenced to its
(Richard dictionary meaning and gave it that literalist interpretation as such. Holding
Anane that it meant to make a formal accusation against a person and therefore
Interested there must be an identifiable person to lodge the complaint with CHRAJ
Party) against Richard Anane. CHRAJ could not on its own volition act on an issue
[2007-2008] without such complaint.
SCGLR 213
2. TEXTUALISTS
i. Textualists believe that the ordinary but not necessarily the plain
meaning of a language of a text should control its interpretation.
ii. It rejects non-textualists and extra sources to interpret a document
or a statute.
iii. It therefore does not subscribe to the approach to interpretation that
seeks for meaning by searching for the intention of the makers of the
text nor the cure that a statute was enacted to cure. Textualists
examine the text and how it appears to mean to the objective
reasonable person. It gives little consideration to the legislative
intention that informed the provision because they think that there is

nothing like legislative intent as the legislators may have different
thoughts in the promulgation of the law.
iv. They reject the authority of the courts to refine a text even though
they accept the doctrine of lapsus linguae (slip of the tongue).
v. Textualists are prepared to employ the canons of interpretation, such
as norcitur a sociis rule, to find the meaning of a text.
vi. There are two kinds: the old and the new textualists. The old
textualists interpret the document as expressed in the text and look
for the secondary meaning when the ordinary meaning appears to be
absurd. The new textualist focus on what a reasonable person
reading the text will appreciate the text to mean.
Oliver Wendell Holmes: The Theory of Legal Interpretation, 1899,

Harvard Law Review 12 (6): 417
“We ask, not what this man meant, but what those words mean in the
mouth of a normal speaker of English, using them in the circumstances in
which they were used … we do not inquire what the legislature meant; we
ask only what the statute mean” .
3. INTENTIONALISM
i. This is an interpretation that searches for the intention of the
legislature or the maker of the document. The courts attempt to look
for the intention of the maker of the document and interpret in a way
that gives meaning and effect to the law or the document.
ii. The starting point in discovering the intention is the very words used
in the text. If the words are capable of themselves expressing the
intention of the maker, then effect will be given.
iii. However, if giving effect to the words will result in absurdity,
repugnancy or inconsistency with the rest of the document or the Act
as a whole, the court will move beyond the words used and first
construe the Act or document as a whole. Therefore, the mischief rule
in Heydon’s Case (supra) is resorted to by the intentionalist to
interpret the document.
iv. Intentionalist did not originally seek to take into consideration factors
such as the legislative history, government papers, debates in
Parliament and internal aids by the use of the mischief rule to discover
the intention of the maker. However, the intentionalist of today admits
and takes them into consideration in the cases of ambiguity and lack
of clarity, in order to effectuate the legislative intent.
v. The intentionalist approach may involve some modifications to the
words of the statute or document when the words used fail to bring
out the true intention of the author or the legislature.

vi. Intentionalism abides by the golden triangle of interpretation. It is
basically the approach used in interpreting Wills in Ghana, and may
involve the three tier approach towards the construction of a statute,
as espoused in Biney v Biney.
Biney v Held:
Biney “The deed of settlement had to be interpreted in the light of three basic
[1974] 1 rules of construction, namely:
GLR 318 (i) the construction must be as near to the mind and intention of
the author as the law would permit;
(ii) the intention must be gathered from the written expression of
the author’s intention; and
(iii) …technical words… must have their strict legal effect…”
CRITICISMS
Barak and Ronald Dworkin are critics of the intentionalist view of
interpretation. Barak notes that flaw in intentionalism is that it views the text
being interpreted as a fossilized creature, standing alone. Dworkin points out
in his work “Laws Empire” that, in intentionalism, the interpreter fails to view
the statute as a creature of a changing environment; and when the need
arises for it to be applied to changed circumstances, the statute or the
constitution may be found wanting.
4. ORIGINALISM
i. Originalism as an approach to interpretation emerged in the US as a
theory of constitutional interpretation. This view of interpretation
holds that a constitution must be interpreted in a way that brings out
the understanding that the original framers had in mind when the
constitution was drafted.
ii. By stretching it to statutory interpretation, one can say that a statute
must be interpreted as the makers of the statute understood it or had
in mind when they first made it.
iii. For the Originalists they seek either the original meaning or the
original intent.
iv. The original meaning approach is not far from textualism. That an
interpretation should be seen from what reasonable persons living at
the time the provision came into force understood it to mean.
However, the original intent adherents believe that interpretation
should be what the drafters meant at the time of its adoption
(textualists do not).
v. Barak equates originalism with the subjective meaning of a text. As
the interpreter attempts “to give the legal text the same meaning it

had at the time it was drafted. There is no consideration of reality in
existence at the time of interpretation. The passage of time cannot
change the intent of the author it is fixed in time”. He therefore
equates orginalism with intentionalism.
vi. The originalist approach is not a favoured approach in Ghanaian
constitutional interpretation as exemplified in the case of Ghana Lotto
Operators Association v National Lottery Authority.
Brief Facts
Ghana Lotto The National Private Lotto Operators had complained that the National Lotto
Operators Act (Act 722) violated Article 33(5) of the 1992 Constitution in so far as it
Association excluded them from operating in the lotto space. It was the view of the
v National plaintiffs that their right to work as guaranteed under the constitution has
Lottery been breached. Date-Bah JSC in examining the justiciability or otherwise of
Authority the directive principles referred to the work of the Committee of Experts who
[2007- had intended that the directive principles of State Policy should not be
2008] 2 justiciable, but same was not accepted into the constitution. This is what the
SCGLR 1088 court noted on originalism:
“If one adopts an originalist approach (to borrow a term from United
States constitutional law), that is, if one looks no further than the
framers’ intention, one could make a case for the non-justiciability of
the principles. This case is however weakened by the fact that the
language proposed by the framers (in this case, the Committee of
Experts) to carry out their intent was not adopted by the Consultative
Assembly. Accordingly, the inference may legitimately be drawn that
the Consultative Assembly was of a different view. Moreover, reliance
on original intent is a method which does not necessarily produce the
right interpretative results … While the 1992 Constitution has not yet
endured for even two decades, it is nonetheless not safe to rely on
this mode of interpretation exclusively or even predominantly.”
Ascertaining Original Intent

Section 10(2), Interpretations Act, 2009 (Act 792) provides that in
cases of ambiguity, that recourse to sources for resolution may include:
(a) the legislative antecedents of the enactment;
(b) the explanatory memorandum as required by article 106 of the
Constitution and the arrangement of sections which accompanied the Bill;
(c) pre-parliamentary materials relating to the enactment;
(d) a text-books, or any other work of reference, a report or a memorandum
published by authority in reference to the enactment, and the papers laid
before Parliament in reference to the enactment;
(e) the parliamentary debates prior to the passing of the Bill in Parliament.

All these is to situate the interpreter to have a better understanding of the
original intent of the makers of the Act and give meaning to it.
5. LIVING CONSTITUTIONALISM
i. This favoured approach to constitutional interpretation is conceived in
the fact that the constitution is a dynamic document and must be seen
as capable of adapting to change and modern circumstances.
ii. That the constitution should be seen as a living law and capable of
change to meet the needs of generations long after the death of its
framers.
iii. Barak and Ronald Dworkin are strong adherents to this system of
interpretation.
iv. The living constitutionalist are of two kinds: the pragmatist holds the
notion that interpreting a constitution framed many generations ago
when the original farmers never conceived or thought of the exigencies
that had occurred will not help in the interpretation. Whiles the second
approach look for the intent that the framers had in mind for
generations yet unborn and crafted the constitution in broad and liberal
terms and ought to be interpreted and seen as such.
v. Opponents of living constitutionalism, such as the originalists, believe
that the constitution should rather be changed through amendments
and not through judicial activism as such a process is undemocratic.
Held:
Tuffour v “The Constitution has its letter of the law. Equally, the Constitution has its
Attorney- spirit… Its language, therefore, must be considered as if it were a living
General organism capable of growth and development. Indeed, it is a living
[1980] GLR organism capable of growth and development. A broad and liberal spirit is
647 required for its interpretation. It does not admit of a narrow interpretation.
Sowah CJ 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.”
Held:
Ghana Lotto “A more modern approach would be to see the document as a living
Operators organism. As the problems of the nation change, so too must the
Association interpretations of the Constitution by the judiciary. Interpreting the
v NLA Constitution as a living organism implies that sometimes there may be a
(supra) departure from the subjective intention of the framers of it”.
6. THE GOLDEN TRIANGLE PRINCIPLES OF INTERPRETATION
a. Literal Rule: The rule of thumb is to adhere to the ordinary
meaning of the words, having regard to the context in which
they appear; and to give technical words their meaning.

b. Golden Rule: Where the ordinary meaning produces absurd
results, then resort may be had to the secondary meaning
which the words are capable of bearing.
This rule was first stated in the case of Grey v Pearson.
Held:
Grey v “In construing wills and indeed statutes, and all written instruments, the
Pearson grammatical and ordinary sense of the words is to be adhered to, unless that
(1857) HLC would lead to some absurdity, or some repugnancy with the rest of the
61 @106 instrument, in which case the grammatical and ordinary sense of the words
may be modified, so as to avoid the absurdity and inconsistency but no
further”.
c. Mischief Rule: words which may necessarily be implied may

be read in by adding to, altering or failing to give effect to some
of the words so as to make the provisions not unreasonable.
By this approach, regard must be had to the situation that
existed before the passage of the law, the very reason for which
the law was promulgated. The mischief rule was established in
the Heydon’s case.
Heydon’s Held:
case (1584) “That for the sure and true interpretation of all statutes in general … four
76 ER 637 @ things are to be discerned:
638 i. What was the common law before the making of the act?
ii. What was the mischief and defect for which the common law did not
provide?
iii. What remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth?
iv. And the true reason of the remedy.
…the Judge is always to make such construction as shall suppress the
mischief and advance the remedy and to suppress subtle inventions and
evasions for the continuance of the mischief: and pro privato commodo,
and to add force and life to the cure and remedy, according to the true
intent of the makers of the act, probono publico”
7. PURPOSIVE APPROACH AND MOPA
i. This approach calls for interpretation that fulfils the purpose of the law
or the constitution, for the generally accepted goal of interpretation is
to seek for the meaning that effectuates the purpose of the document,
statute or Constitution.
ii. That can be realised when the court seeks meaning from sources
beyond the Act such as parliamentary proceedings, memoranda that
accompanied the bill, early papers, reports of commissions or
committees whose work might have informed the passage of the law,

textbooks, opinions of experts, etc. So this approach calls for a statute
to be read as a whole and when the meaning is not clear, both internal
and external aids to interpretation may be explored.
Section 10(1) and (2), Interpretation Act, 2009 (Act 792)

“(1) Where a Court is concerned with ascertaining the meaning of an
enactment, the Court may consider
(a) the indications provided by the enactment as printed, published and
distributed by the Government Printer;
(b) a report of a Commission, committee or any other body appointed by the
Government or authorised by Parliament, which has been presented to the
Government or laid before Parliament as well as Government White Paper;
(c) a relevant treaty, agreement, convention or any other international
instrument which has been ratified by Parliament…and
(d) an agreement which is declared by the enactment to be a relevant
document for the purposes of that enactment.
(2) A Court may, where it considers the language of an enactment to be

ambiguous or obscure, take cognisance of
(b) the explanatory memorandum as required by Article 106 of the
Constitution and the arrangement of sections which accompanied the Bill; (c)
pre-parliamentary materials relating to the enactment;
(d) a text-book, or any other work of reference, a report or a memorandum
(e) the parliamentary debates prior to the passing of the Bill in Parliament”.
iii. Cross, Bennion and others view the purposive approach as born out of
the Heydon’s rule (mischief rule). This has become the approach to
both constitutional and statutory interpretation in Ghana.
iv. To Barak he views purposive interpretation as a legal construction that
combines elements of the subjective and objective purposes of the
enactment or the Constitution. He states that the subjective elements
include the intention of the author of the text, whereas the objective
elements include the intent of the reasonable author and the legal
system’s fundamental values.
He is not just in favour of the authorial intent but also the one imputed
by a reasonable by stander as in interpretation. Therefore, to Barak,
the Judge should use discretion, to formulate as objectively as
possible the purpose at the core of the legal text.

v. Purposivism is more concerned with the values underpinning the text
or the enactment, and the interpretation must strive to reach the goals
of those values. Any interpretation that undermines those values would
have to be rejected.
One may see this exemplified in the interpretation given in the
unconstitutionality of the celebration of the 31st December as a public
holiday by the majority decision in the case of NPP v Attorney-
General. That the values of the Constitution are one of democracy
and rule of law and the courts could not fold its arms where the nation
celebrates a day that glorifies the day democracy was destroyed.
vi. In purposivism, there is emphasis on language, purpose and
discretion of the Judge. Meaning of a construction must be derived
from the text, and when there are more than one meaning then the
exercise of discretion sets in for the option that best accords with the
spirit, values, policies, aims and principles of the constitution or the
enactment.
vii. In purposivism, there are three purposes: the subjective purpose, the
objective purpose and the ultimate purpose.
The ultimate purpose is essentially a balance between the subjective
and objective purposes; a legal construct with two key components.
The subjective purpose relies on the textual (internal) and external
contextual sources to know the thoughts expressed by the author. The
objective purpose is concerned with the goals, interest and values that
the text and the document was designed to achieve.
Example, in a democratic system, the goals and objective of the entire
system including its legal system is geared toward a certain goal and
the interpretation of its laws would be tailored towards that end. So
the objective purpose is a legal construct reflecting the ideals of a given
society and which may differ from the subjective authorial intent. It is
for the Judge to embark upon an integrative journey to marry the
subjective and objective purposes to arrive at the ultimate purpose.
viii. A fundamental issue must be stated and that is the golden presumption
principle, that in interpretation, the meaning from the text must carry
more weight than the ones from external sources, and usually where
there is a conflict between the two, the meaning from the internal text
must prevail.
ix. Unlike traditional purposive interpreters who adhere to the structured
approach, Barak’s purposivism defies all those technical restrictions.
According to him, there is no layered approach and but an integrative
one. That the interpretative conception is holistic, a circular process.
The Judge moves freely from text to context and back. There is no
need for an initial determination that the text is clear or unclear. That

there is no sharp difference between internal and external context. No
stages in the process. There is only one continuous process, and the
process ends when the interpretative process ends. All these would be
possible when the Judge is guided by discretion.
x. MOPA may not follow such a systematic approach as there is no
requirement expected or placed on the court by Interpretation Act, Act
792. It could be resorted to without the need to go through all the
approaches of the traditional methodical levels of interpretation. Barak
calls for the interpreter to be guided by language, purpose and judicial
discretion in MOPA. This allows the Judge the free movement between
subjective and objective purposes in an integrative system of
interpretation to arrive at the ultimate purpose. He makes this
applicable to all texts whether document, statutes, constitution or any
legal text at all.
CRITICISM OF PURPOSIVISM
1. The first critique is that purposive approach to interpretation assumes
that every enactment or document has a purpose that must be
searched; and that, it is possible to have a document in which the
underlying purpose may not be discernable.
In defence to this criticism, it can be said that it is not sound if one
considers that the notion that a document has a purpose is a realistic
assumption, because every document has an underlying purpose for
its creation. It is different from a crayon mark made by a child of two
years which may not have any purpose to it at all. Therefore, the
search for purpose is not an illusory journey embarked upon by the
interpreter; and in many cases, the subjective purpose is not difficult
to find.
However, even if the search for the subjective purpose is not always
easy to find, it does not apply to the objective purpose, because the
objective purpose seeks how a reasonable interpreter, skilled in the
performance of his task, would approach it when armed with the values
of the society; and that is always ascertainable with the exercise of
discretion by the Judge.
2. Second, is the claim that for every document, its purpose is found
within the text and context of the document, thus the search for an
objective purpose, not ever contemplated by the maker, outside the
text is futile.
In defence to this criticism, it is presumptive that the maker did not
have a mind to enact an absurd or inconsistent document. Thus most

approaches allow the interpreter to look for a secondary meaning
where the ordinary meaning would lead to absurdity or inconsistency.
3. Third criticism is that where some purpose may be seen such as in a

preamble to a constitution, it might have been stated in broad terms
and language that may not specifically lead to interpretation of specific
texts. It has also been suggested that in an enactment there may be
multiplicity of purposes with some conflicting; to discern a specific
purpose in a given context may not be easy. Also, where a Judge is
invited to rank and balance the purposes, what weight to assign to a
specific purpose may be within the discretion of the Judge, and this
may arm him or her with too much discretion.
Again, there is always the danger of inventing fanciful and fictitious
purposes in the name of seeking the objective purpose. A judicial
activist judge may be pushing a hidden agenda in the name of
objective purpose.

AIDS TO INTERPRETATION - PRESUMPTIONS
DEFINITION OF AIDS TO INTERPRETATION
These are the rules, principles, maxims, concepts and presumptions that
may be employed to determine the meaning of a text.
Lord Reid in Maunsell v Olins [1975] 1 All ER 16 @ 18 states about
aids to interpretation as follows:
“The rules of construction are relied on they are not rules in the ordinary
sense of having some binding force. They are our servants not masters.
They are aids to construction, presumptions or pointers. Not infrequently,
one rule points in one direction, another in a different direction. In each case
we must look at all relevant circumstances and decide as a matter of
judgment what weight to attach to any particular rule.”
INTRODUCTION
In interpretation, the courts start a search for the meaning of a provision by
adopting the basic rules for interpretation, i.e. that words may be given their
assigned ordinary meaning in the context in which they appear unless it
would lead to absurdity.
Where absurdity would result then a meaning which is secondary and for
which the words are capable of bearing may be given to the words. That
also involves an examination of the mischief for which the enactment was
made to remedy. This is the golden triangle of interpretation and constitutes
the basic rules of statutory interpretation.
The aids to statutory interpretation include internal and external aids to

interpretation, parts of statutes as guides to interpretation, common sense
as a guide to interpretation, linguistic canons of interpretation, presumptions
and special binding rules.
Section 10 of the Interpretation Act, Act 792 provides guides or aids to

interpretation and states as follows:
“(1) Where a Court is concerned with ascertaining the meaning of an
enactment, the Court may consider
(a) the indications provided by the enactment as printed, published and
distributed by the Government Printer;
(b) a report of a Commission, committee or any other body appointed by the
Government or authorised by Parliament, which has been presented to the
Government or laid before Parliament as well as Government White Paper;
(c) a relevant treaty, agreement, convention or any other international
instrument which has been ratified by Parliament or is referred to in the
enactment of which copies have been presented to Parliament or where the
Government is a signatory to the treaty or the other international agree-
ment; and the travaux preparatoires or preparatory work relating to the
treaty or the agreement, and
(d) an agreement which is declared by the enactment to be a relevant
document for the purposes of that enactment.
(2) A Court may, where it considers the language of an enactment to
be ambiguous or obscure, take cognisance of

(b) the explanatory memorandum as required by Article 106 of the
Constitution and the arrangement of sections which accompanied the Bill;
(c) pre-parliamentary materials relating to the enactment;
(d) a text-book, or any other work of reference, a report or a memorandum
(e) the parliamentary debates prior to the passing of the Bill in Parliament.
(3) Subject to Article 115 of the Constitution, a Court shall have recourse to
parliamentary debates under subsection (2), where the legislative intention
behind the ambiguous or obscure words is clearly disclosed in the
parliamentary debate.
PRESUMPTIONS
Presumption involves drawing the necessary inferences based on existing
state of affairs or established facts.
Section 18, Evidence Act, 1975 (NRCD 323) defines presumption as:
“an assumption of facts that the law requires to be made from
another fact or group of facts found or otherwise established in the
action”.
NATURE / FUNCTION
1. In interpretation, unlike in evidence, presumptions are aids to
interpretation, a prima facie pointer to legislative meaning.
2. They operate even when there are no ambiguities, promoting brevity
on the part of the draftsman.
3. Some presumptions are of greater weight than others in their
application.
4. Presumptions may be rebuttable or irrebuttable.
a. Rebuttable presumptions can be said to be inferences or assumptions
of facts made from established facts by operation of law but a
contrary evidence may be used to displace the facts established.
b. Irrebuttable presumption are those presumptions that cannot be
contradicted or no evidence in rebuttal can be admitted against it
when the basic facts that give rise to it are established.
Section 24(1), NRCD 323:
“Where the basic facts that give rise to a conclusive presumption are
found or otherwise established in the action, no evidence contrary to
the conclusively presumed fact may be considered by the tribunal of
facts”.
Conclusive presumptions are found in sections 25 to 29 of the
Evidence Act, and are primarily on estoppel.
EXAMPLES
i. Presumption of innocent until proven guilty - Article 19(2)(c).
ii. Omnia praesumnutur rite esse acta, presumption that an official
function has been regularly performed - Section 37, NRCD 323

iii. Presumption that a person intends the natural and probable
consequences of his action - Section 11, Act 29
iv. Presumption that a foreign law is the same as that of Ghana - Section
40, NRCD 323
v. Conclusive Presumption that facts in a written instrument are
conclusively presumed to be true as between the parties - Section 25,
NRCD 323.
BURDEN OF PROOF IN PRESUMPTION

The burden to displace a presumption is on the party against whom it
operates.
1. Presumption against unclear changes in the common law
A Presumption that Parliament does not intend to effect a change in
the existing common law unless there are clear and unambiguous
words to that effect. Common law being the common law of England
and the common law of Ghana.
Article 11(2):
“The common law of Ghana shall comprise the rules of law generally
known as the common law, the rules generally known as the
doctrines of equity and the rules of customary law including those
determined by the Superior Court of Judicature”.
Example: Section 5 of the Contracts Act, 1960 (Act 25) has expressly
modified the common law principle regarding privity of contracts to allow a
third party claim a purported benefit under the contract.
2. Presumption against unclear changes in the existing law

Existing law is defined under clause Article 11(4) and (6):
“(4) The existing law shall… comprise the written and unwritten laws
of Ghana as they existed immediately before the coming into force of
this Constitution, and any Act, Decree, law or statutory instrument
issued or made before that date, which is to come into force on or
after that date.
(6) The existing law shall be construed with any modifications,
adaptations, qualifications and exceptions necessary to bring it into
conformity with the provisions of this Constitution, or otherwise to
give effect to, or enable effect to be given to, any changes effected
by this Constitution”.
Changes can be made to the existing laws through legislations. Where there
is a conflict between the existing law and a new law, the existing law may be
construed with such modifications to bring it in line with the new law. Where
the conflict is not resolved, the court may apply the generalia specialibus rule
to determine the issue by examining which legislation is special and which is
general.
Kowus Facts & Ratio:
Motors v Before the institution of the action, the PNDCL 60 had been repealed by the
Checkpoint Statute Law Revision Act, Act 543. The question was whether the Company’s
Ghana Ltd Act on the status of companies in Ghana should apply or the PNDCL 60.

[2009] Atuguba JSC noted that the two laws conflicted and the latter being the
SCGLR 230 PNDCL 60 prevailed over the Act 179.
3. Presumption against the retroactive operation of statutes

Laws are prospective and affect rights and liabilities in future. They
are not to be interpreted to take effect from or affect the past.
Article 107(1)(b):
“Parliament shall have no power to pass any law
(b) which operates retrospectively to impose any limitations on, or to
adversely affect the personal rights and liberties of any person or to
impose a burden, obligation or liability on any person except in the
case of a law enacted under articles 178 or 182 of this Constitution”.
4. Presumption against ousting the established supervisory

jurisdiction of the superior courts over lower courts and
administrative bodies
The presumption is that the Superior Courts have inherent powers
vested in them to issue orders in the nature of prerogative writs
against lower court bodies and administrative tribunals. This power is
clearly stated in Articles 132 and 141 of the Constitution for the
Supreme Court and High Court. The supervisory powers cannot be
deemed to have been ousted.
Also, the jurisdiction of the courts cannot be ousted, but could be
suspended in favour of arrangements for internal mechanisms to deal
with conflict – Boyefio v NTHC.
Held:
Since the land title adjudication committee was an internal administrative
tribunal of the Land Title Registry solely concerned with determining disputes
Boyefio v arising in the course of the registry’s functions, and section 13(2) and (3) of
NTHC PNDCL 152 had provided for appeals from any decision of the adjudication
Properties committee to the High Court, then thereafter a further right of appeal to the
(1997-98) 1 Court of Appeal, and finally, to the Supreme Court, the power exercised by
GLR 768 the adjudication committee did not violate articles 124(3) and 140(1) of the
Constitution, 1992 which had vested exclusive final judicial power in the
judiciary and granted the High Court jurisdiction in all cases… The law was
clear that where an enactment had prescribed a special procedure by which
something was to be done, it was that procedure alone that was to be
followed. Furthermore, section 12(1) of PNDCL 152 was in consonance with
the modern practice of setting up an internal tribunal in an institution to
determine at first instance disputes arising within that institution before
recourse was made to the courts if the matter did not end at the internal
tribunal. In such situations, where a person ignored the internal tribunal and
came to court in respect of any such internal dispute, unless that person had
a substantial reason for side-stepping the internal tribunal, the courts would
invariably order him to go back to the internal tribunal”.

5. Presumption against interference with vested rights
An offshoot of the presumption against unclear changes in the
common law and existing law, this Presumption is to the effect that
where a right has been acquired or vested under any law, even with
the repeal of the enactment, the said right remains; and statutes that
purport to take away such vested rights are construed by clearly and
unambiguously intending so.
Vested rights are those rights that have become legally accrued and
settled, and have come into enforcement. This presumption protects
the certainty of the law. It is worth noting however, that one cannot
have a vested right in procedural or evidential rules.
6. Presumption against evasion of legislation

It is the presumption that the legislator did not want an enactment to
be evaded so a construction that will result in such a consequence
must be avoided. The need to avoid fraud on the Act is at the heart
of this presumption. This enhances the need for MOPA, to promote
and advance the purpose and object of a legislation and not
encourage non-compliance. The courts must always be mindful of the
mischief rule and avoid interpretation that allow persons within its
purview to escape.
This is different from permissible avoidance of legislation which is
arrangement of one’s affairs so as to avoid the legal consequences
that flows from an enactment e.g. tax avoidance as against tax
evasion.
7. Presumption against extending or enlarging existing

jurisdiction
This is to the effect that an enactment does not create new
jurisdictions or enlarge them unless clear words are employed to that
effect, and it is an offshoot of the presumption against unclear
changes in the existing law.
Chief Ratio:
Timitimi v Jurisdiction is the power vested in a court to determine a matter or
Amabebe suit. It is the rule that the superior courts have jurisdiction vested in
[1953] 14 them but lower courts have no jurisdiction unless expressly granted
WACA 374 by law.
The various jurisdictions conferred by the Constitution on the superior

courts cannot be enlarged or restricted except by an express
enactment.
Facts & Ratio:
Azorblie v The applicant applied to the Court of Appeal for prohibition against
Ankrah the High Court, Ho from what he deemed to be a hearing of a
[1984-86] 1 chieftaincy matter. The Court of Appeal upheld a preliminary legal
GLR 561 objection by the respondent that the jurisdiction of the Court of

Appeal was circumscribed and limited to only appellate and could not
determine matters of invocation of prerogative writs.
Where a jurisdiction of a superior court has also been clearly taken

away by law, then the court cannot purport to exercise that
jurisdiction. An example is Section 57 of the Courts Act, Act 459
that expressly denies jurisdiction to the High Court in chieftaincy
matters.
8. Presumption against internal conflict
It is the Presumption that the Legislature did not intend to contradict
itself in an Act and the interpreter should give the Act or document a
harmonious interpretation. It is sometimes called the principle of
harmonious interpretation. The Presumption also means that the law
is supposed to work together both logically and purposefully, as part
of a functional whole and the parts must be made to fit together to
form a rational consistent framework by construing the document as
a whole. It is presumed not to contain contradictions and
inconsistencies, and the courts will not find contradictions unless
there is a compelling reason to do so. As long as the enactment can
stand together, the courts will not find a conflict.
Where there are two separate and independent Acts dealing with the
same matter and they conflict, in the absence of generalia specialibus
non derogant rule, the latter would be deemed to have overruled the
former. Being a rebuttable presumption, it may be held not to apply
in the event of conflict between a Constitution and a later enactment.
A conflict between an Act of Parliament and a subsidiary legislation is
resolved in favour of the substantive enactment.
9. Presumption against tautology or Surplusage or that the

Legislature does not use words in vain
It is presumed that the legislature avoids meaningless or needlessly
repetitive words, and that there is meaning to every law passed by
Parliament. When the meaning of the enactment is not clearly seen,
the interpreter should be mindful that there was a reason for the
promulgation of the enactment. This was expressed by Viscount
Simonds in the case Hill v William Hill:
Hill v Held:
William Hill “When the legislature enacts a particular phrase in a statute the presumption
(Park Lane) is that it is saying something which has not been said immediately before.
[1949] AC The rule that there is a meaning should if possible to every word in a statute
530 @ 546 implies that unless there is good reason to the contrary, the words add
something which will not be there if the words were left out”
Brief Facts
Edusei v The plaintiff filed for the return of his passport, invoking the original
Attorney- jurisdiction of the Supreme Court for a declaration, inter alia, that: sections
General of the Passport and Travel Certificates Decree, 1967 (NLCD 155) were

[1997-98] 2 inconsistent with and in contravention of the Constitution, 1992. The court
GLR 1 ruled that the matter was a human rights matter for which the Plaintiff
should have filed at the High Court, dismissing the suit in limine. He sought
the review jurisdiction of the court.
Held:
The word “exclusive” in article 130(1) of the Constitution, 1992 was
therefore not put down for fun but intended to vest in the Supreme Court a
jurisdiction not to be shared with any other court ... The word “exclusive”
was not used in article 130(1) of the Constitution, 1992 without significance.
And an interpretation which fails to bring out the meaning and effect of the
word “exclusive”, would be myopic”.
The principle ut res magis valeat quam pereat thus ties in to this
presumption, and is employed by judges for the purpose of applying wisdom
to save an enactment from being declared as absurd. The presumption can
however be rebutted;
i. with evidence to show that the words used were employed “ex
abundanti cautala”, or
ii. advancing reasons why the legislature decided to use all those words
for the sake of emphasis, or
iii. for the purpose of elegant drafting style.
10. Presumption of the territorial application of Ghanaian

legislation
The presumption that the laws of a country do not extend beyond its
borders but are promulgated to apply to the confines of its territories.
Section 56(1) of the Courts Act:
“(1) Subject to this section, the jurisdiction of the courts of Ghana in
criminal matters is exercisable only in respect of an offence
committed within the territory of Ghana including its territorial waters
and air space and in respect of offences committed on any ship or
aircraft registered or licensed in Ghana.
There is limited scope within the law, where the criminal laws would
be made to apply to a citizen of Ghana irrespective of the fact that
the offence committed was outside Ghana - Section 56(2), (3) and
(4).
Examples: crimes against jus cogens (slave trade, genocide, piracy etc.),
misappropriation of public funds, threat against national security etc.
In agreements and private contracts, the parties may insert that the
contract be governed by the laws of a foreign country. That is the
choice of law. The courts will most often defer to the parties own
preferred choice of law or forum for resolution of dispute unless there
are compelling circumstances not to do so. (Section 54 on Choice of
Law).
11. Presumed competence and knowledge of the legislator

The slight difference between this presumption and the others is that
this presumption assumes that the legislature in the promulgation of
laws has conformed to the laws of the land and the Constitution. By
this presumption, the Legislature is presumed to know all that is
necessary to produce a rational and effective piece of legislation, and
that includes the fact that Parliament knew the existing state of the
law before coming up with a new legislation.
This presumption is rebutted if, for example, it falls foul of Article
1(2), as seen in cases like NPP v AG (31st December Case).
12. Presumption in favour of construction most agreeable with

reason and justice/ Presumption against Absurdity
The presumption that Parliament is rational and moral and only
enacts legislations that intend results that accord with norms of
reason and justice, such that consequences regarded to be
unreasonable, or unjust or inconsistent with legislative purpose must
be regarded as “absurd” and not intended by the Legislature.
13. Presumption that Parliament does not make Mistake

Akin to the presumption that Parliament does not use words in vain,
is the presumption that Parliament does not make mistake. Laws
passed takes some painstaking effort. The courts coming to the
conclusion that there was a mistake in the law, is a last resort, after
applying all the known principles of interpretation to make meaning
out of the law.
However, this presumption may be rebutted when the evidence is
clear that Parliament made a mistake and the courts must make the
necessary corrections. Lord Denning noted as follows;
Held:
Seaford “It would certainly save the judges trouble if Acts of Parliament were drafted
Court Estate with divine prescience and perfect clarity. In the absence of it, when a defect
Ltd v Asher appears, a judge cannot simply fold his hands and blame the draftsman.”
[1949] 2 KB Also in Republic v High Court; Ex Parte Allgate [2007-2008] SCGLR
481 @ 499 1041, the word “not” was inserted in Order 81 of the High Court (Civil
Procedure) Rules, C. I 47.
14. Presumption that Rules of Equity Apply

Principles or maxims of equity are extensive general principles
historically developed from the courts of chancery that governs the
way equity operates and have become part of the law. These maxims
provide a guide to interpretation. They are principles steeped in
fairness, reasonableness and avoidance of technicalities of the law,
adding brevity to the law.
EXAMPLES:
i. He who comes to equity must come with clean hands.
ii. Equity will take jurisdiction to avoid multiplicity of suits.
iii. Equity follows the law.
iv. Where equities are equal, the law prevails.

15. Presumption that where Parliament fails to prescribe
Punishment for Non-Compliance of Rules, the court should
not provide one
This presumption is seen in cases such as Ex Parte Expendable
Polystyrene Products Ltd on the use of the word “shall” in LI 1107
for a Judge to deliver his judgment within six weeks and whether the
Republic v failure to deliver the judgment within that period renders the decision
High Court, a nullity.
Accra, Ex Held:
Parte The court held that the failure to deliver the judgment within that period
Expendable does not invalidate the decision and that there were administrative
Polystyrene procedures for the Chief Justice to use in dealing with the court or the Judge
Products Ltd if there was a violation of the Rules; and that the need for an early delivery
of judgment should not be interpreted to mean that the failure to comply
with the time lines nullify the whole decision, which would make nonsense of
the import of the Rules in the first place.
Given that it is a rebuttable presumption, where it is necessary, the

rule “ubi vetat quid lex neque poenam statuit poena in
discretion judicis est”, which is to the effect that where a law has
proscribed an act but did not provide sanctions, it is at the discretion
of the court to prescribe punishment or decline to do so, shall apply.
16. Presumption that mens rea is required in criminal statutes

This presumption is to the effect that actus reus alone will not suffice
to make out a crime. The intention must be guilty, coinciding with the
act to make out the crime.
Example: Thus if there is a law against honking and noise making, and
Dato, in an emergency to the hospital, honks to have access to move,
although the actus reus is present, the men rea is absent and the act cannot
be criminalised, unless a contrary intention were expressed; for instance, if it
were one of strict liability.
17. Presumption that an illiterate has no knowledge of the

contents of a written document

REPEALS AND RETROSPECTIVITY OF LEGISLATIONS
INTRODUCTION
Laws of Ghana, and the Constitution itself, operate prospectively to affect
present and future rights and liabilities but not retrospectively.
Brief Facts
The Plaintiffs had instituted action against the Attorney General for
Ellis v compensation due to the compulsory acquisition that emanated from the
Attorney Hemang Lands Acquisition Law, PNDCL 294. The plaintiffs contended that,
General per Article 1(2), PNDCL 294 was unconstitutional and the acquisition of their
[1999-2000] lands violated article 20. It also violated Article 107 because PNDCL 294 had
2 GLR 377 operated retrospectively to affect them and impose obligations on them.
Held:
The court, upholding the defendant’s objection, held that the provisions of
the Constitution, 1992, which operated prospectively, could not be
retroactively invoked to declare the provisions of PNDCL 294 null and void.
to take effect from the date that it was not in existence to affect rights and
liabilities that had been accrued before the coming into force the legislation.
DEFINITIONS
Retrospectivity: is the ability of an enactment to take effect from a date that
it was not in existence, and to affect rights and liabilities that had accrued
or become vested before the coming into force that enactment.
Repeal: is to cause an enactment to cease to be part of corpus juris or body

of laws.
RETROSPECTIVITY
The Constitution is the supreme law of Ghana and any law found
inconsistent with it, to the extent of the inconsistency, is void - Article 1(2).
Article 107(b): “Parliament shall have no power to pass any law which
operates retroactively to impose any limitations on, or to adversely affect
the personal rights and liberties of any person or to impose a burden,
obligation or liability on any person except in the case of a law enacted
under articles 178 to 182 of this Constitution.”
Thus a law passed by parliament which violates Article 107 of the

Constitution, in that the law is made to operate retrospectively, is void to
the extent of that violation.
EXCEPTIONS TO RETROSPECTIVITY RULE
1. Statutes that are declaratory in nature.
A declaratory Act which simply makes clear the operation of an
earlier Act, for the avoidance of doubt is presumed to operate from
the commencement of the earlier Act, and one which makes clear

the operation of the common law is presumed to operate on all past
events.
2. Statutes that are of a procedural nature.
The principle is that no one has a vested right in procedure but only
a right to prosecute or defend a suit according to the rules
prescribed for the time being for such action - Yew Bon Tew v
Kenderaan Bas Mara (1982) 3 All ER 833
In other words, if one’s cause of action has accrued in respect of a
matter, and the procedure at the time of accrual has subsequently
been repealed, in coming to court, it is the new procedure that
would be employed.
Brief Facts
The Appellant’s appeal to the High Court was dismissed. There was a
Abdulai III v further right of appeal to the Court of Appeal within thirty days. However,
The Republic just before the appeal was filed within the thirty days a new law, PNDCL
(1989-90) 1 191, came into force and required an appellant to seek leave of the High
GLR 348 court. An objection was taken as to the propriety of the appeal, having been
filed without leave of court as required by PNDCL 191. The Appellants
argued that their right to file an appeal without leave accrued before the
coming into force of the new procedural law. The Appellants contention was
rejected by the court
Held:
There was a distinction between an enactment which conferred jurisdiction
or a right and an enactment which laid down the procedure for exercising
that jurisdiction or right. In the former the enactment did not have
retrospective effect except by express words or by necessary implication; in
the latter, the enactment must be given retrospective effect unless the
contrary was shown by express words or by necessary implication.
Consequently, since the appellants’ right to appeal to the Court of Appeal
from the judgment of the High Court without leave within thirty days of the
judgment was procedural and had accrued but had not been exercised
before Sec 2 (3) (b) of P.N.D.C.L. 191 came into force, that right could only
be exercised in terms of the new enactment.
3. Statutes of evidence.
4. Strictly consolidating enactments that do not change the existing
law(s). Note that this is not generally accepted as an exception to
the rule.
TRANSITIONAL PROVISIONS
Where an enactment has a transitional provision, it is meant to take into
consideration the circumstances which existed at the time the enactment
came into force. It is of temporary effect and ceases to be operational after

the past circumstances it was passed to take care of have been dealt with.
The complex nature of transitional provisional was stated by Perry Herzfield
et al, as follows:
“Their operation is expected to be temporary, in that it is spent when
the past circumstances have been dealt with. Transitional provisions
may continue the application of the previous law to past
circumstances, or apply to such circumstances to the new with the
modifications or different arrangements altogether… Where
transitional provisions are included in an Act they may override any
interpretation Act provisions or presumptions against retrospective
operation”.
The transitional provisions in the Constitution of Ghana 1992, override any

provision in the Constitution. It has expressly provided that it cannot be
amended by Parliament. It could last for a century and would still have a
temporary effect because the Constitution would survive the transitional
provisions after the past circumstances have been dealt with.
The indemnity clause in Section 34 of the 1st Schedule of the Constitution is

a transitional provision and will be spent after all the members of National
Liberation Council, National Redemption Council, Supreme Military Council,
Armed Forces Revolutionary Council and Provisional National Defence
Council whom the Constitution sought to protect have passed on.
REPEALS
Where a subsidiary legislation (Orders, Rules, or Regulations) is in conflict
with a substantive legislation, the subsidiary legislation would be deemed,
to the existent of the inconsistency with substantive enactment, to have
been repealed.
There are two types of repeal: express and implied repeal.
1. EXPRESS REPEAL: This is where one statute expressly repels
another.
2. IMPLIED REPEAL
i. Leges posteriones prones contrarias abrogant
This is an implied repeal or necessary amendment that is to the
effect that in the event of conflict, a latter law is deemed to have
repealed or amended a former existing law to the extent of the
inconsistency. In that event, the commencement date of the two
enactments becomes material in determining which was the latter in
time.
Facts & Ratio:
Kowus
Before the institution of the action, the AFRCD 60 had been repealed after
Motors v
Checkpoint merging the Plaintiff with another company. The issue was whether a

Ghana Ltd company limited by shares could be merged with other companies and
[2009] whether by that repealed law the separate entity of Kowus Motors was lost
SCGLR 230 even before the repeal of the law The contention was that AFRCD 60 could
not have effected the merger without Act 179. The question was whether
the Company’s Act on the status of companies in Ghana should apply or the
AFRCD 60. Atuguba JSC noted that the two laws conflicted and the latter
being the AFRCD 60 prevailed over the Act 179.
ii. Generalia specialibus non derogant

This is where there is disagreement or inconsistences between a
general provision and a special provision on the a subject-matter.
The special provision is presumed to have amended the general
provision.
Brief Facts
Bonney v
The respondent laid off the applicants numbering about 4169 together with
Ghana Ports
some others were all former workers of the respondent company, without
and
giving them benefits normally given to regular workers and describing them
Harbours
as casual workers. Feeling discriminated against, they brought an action
Authority
before the High court. Initially, the writ was Agbesi and the 4 others but an
Suit No
application was filed to amend the writ to add 356 more people as plaintiffs.
J4/39/2012
The application was granted with an order to amend the title of the suit,
delivered on
which order of the court was ignored.
the 29th of
The court eventually ruled that it was only Agbesi and the 4 others who
January,
were entitled to judgment, but granted a window of opportunity for the 365
2014
to institute fresh action. In the fresh action, the High Court ruled that it was
not statute barred. The Court of Appeal overturned it that limitations to
institutions of action is governed by statute and not judgment and
dismissed the action. They further appealed to the Supreme Court.
Held:
The Supreme Court applied the Ghana Ports and Harbours Authority Law,
1986 (PNDCL 160), that granted a period of twelve months for an employee
to bring an action against the employer (GPHA) to declare the action statute
barred, rather than applying the Limitations Act, NRCD 54 based on the
generalia specialibus non derogant rule, the PNDCL 160 was specifically in
respect of GPHA matters.
EFFECT OF A REPEAL
Section 32, Interpretations Act (Act 792) - When an enactment is
repealed, its life comes to an end and it ceases to be of any force or have
any effect.
Section 33 - where in repealing or revoking an enactment, the law
introduces a text into the enactment, the revocation or the repeal will not
have any effect on the text introduced into the enactment. And those parts

not revoked or repealed will have to be read together with the new text
introduced.
Section 34
(1) Where an enactment repeals or revokes an enactment, the repeal or
revocation shall not, except as in this section otherwise provided,
(a) revive an enactment or a thing not in force or existing at the time at
which the repeal or revocation takes effect;
(b) affect the previous operation of the enactment that is repealed or
revoked, or anything duly done or suffered under the enactment;
(c) affect a right, a privilege, an obligation or a liability acquired, accrued or
incurred under the enactment that is repealed or revoked;
(d) affect an offence committed against the enactment that is repealed or
revoked, or a penalty or a forfeiture or a punishment incurred in respect of
that offence; or
(e) affect an investigation, a legal proceeding or a remedy in respect of a
right, a privilege, an obligation, a liability, a penalty, a forfeiture or a
punishment;
and the investigation, legal proceeding or remedy may be instituted,
continued or enforced, and the penalty, forfeiture or punishment may be
imposed, as if the enactment had not been repealed or revoked.
EFFECT OF A REPEAL IN CRIMINAL OFFENCES

As far as criminal trials are concerned the effect of Section 34(1)(d) is
subject to Article 19(11) of the Constitution – “no person shall be
convicted of a criminal offence unless the offence is defined and the penalty
for it is prescribed in a written law.”
Where an enactment is repealed but makes no saving provisions, it cannot
be applied to pending matters in court. This came to light in the British
Airways case.
Brief Facts
British The plaintiffs, an external company and its manager, were charged with two
Airways v counts of refusal to pay rent in convertible currency in respect of immovable
Attorney property contrary to sections 4 and 9(1) and (3) of the External Companies
General and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law,
[1997-98] 1 1986 (PNDCL 150). In the course of the trial PNDCL 150 was repealed by
GLR 55. the Statute Law Revision Act, 1996 (Act 516). Whereupon, the plaintiffs,
claiming that their continued prosecution under PNDCL 150 was contrary to
Article 19(11) of the Constitution, 1992 invoked the original jurisdiction of
the Supreme Court under Articles 2(1)(a) and 130 of the Constitution.
Held:
The Supreme Court upheld the objection on the grounds that under Article
19(11) of the Constitution, 1992 it was unconstitutional to convict or punish

any person unless a written law defined or provided sanctions for the
offence. It would have been different if the plaintiff had been convicted
before the repeal of PNDCL 150 by Act 516 or if Act 516 had saved offences
committed before the repeal of PNDCL 150. Since Act 516 was silent on
saving provisions and merely repealed PNDCL 150, the provisions of Article
19(11) became applicable to the criminal case pending against the plaintiffs.
This decision was based on Section 8(1)(e) of the now repealed
Interpretations Act, 1960, (CA 4) which is in pari materia with Section
34(1)(e).
RE-ENACTMENT/CONSOLIDATION/REVISION
RE-ENACTMENT
The text of the existing provision is replaced with a new whiles the
substance of the law remains the same. In that sense, the law that has
been re-enacted would be deemed to be a continuous operation of the old
law since it is only the form that changes.
If there are substantive changes however, that would not be a re-
enactment but an amendment of the law. It is the extent of the difference
of the new law from the old one that will show whether the new law is a re-
enactment or an amendment.
CONSOLIDATION
Consolidation is a form of a re-enactment. It usually involves the repealing
of several enactments and putting them all together in one composite
enactment. The substance of the previous legislations does not change,
unless there is evidence to the contrary. A consolidating enactment is a
strict consolidation where it reproduces the existing law in an organized
and a modern language without making any change.
A consolidating enactment may make some amendments when organizing
the structure and language to make it modern and internally consistent.
This type of consolidation is known as consolidation with amendment.
An example is the law on conspiracy - Section 23 of Act 29.
Held:
The function of the commissioner does not include the amendment of any
Republic v.
portion. Indeed, the re-phrasing or the new formation of Section 23(1) of
Ekene Anozie
H2/44/12 the Criminal Offences Act made a substantive change to all our law of
dated 27th conspiracy in our view. The Commissioner by Act 562 had no powers to
June, 2013 change any law. He accordingly usurped the powers of Parliament. The
change in the wording of conspiracy that narrows the scope of the laws
originally provided by Parliament without recourse to Parliamentary
amendment in our view is ultra vires and renders the changes void.
The Supreme Court has however expressly departed from the holding in the
Anozie case in the case of Martin Kpebu (No 3) v Attorney General
(No 3) Law Review Commissioner [2015-2016] SCGLR 511.

REVISION
With revision, the laws are re-enacted in plain language without changing
the substance unless the enactment providing for the revision of the laws
states that an amendment can be made. Thus consolidation and revision
are usually treated as having the same legal effect.
AMENDMENT
An amendment involves changes or revisions made to an existing statute,
constitution or any instrument.
There is a difference between a repeal and an amendment, as set out in the
Australian case of Attorney-General (WA) v Marquet.
Attorney- Held:
General “The central meaning of “amend” is to alter the legal meaning of an Act or
(WA) v provision, short of entirely rescinding it and that the central meaning of
Marquet “repeal” is to rescind the Act or provision in question. An amendment may
[2003] 217 take the form of or include a repeal. Thus if a section is deleted it can be
CLR 545
said that it has been repealed whilst the statute itself has been amended”
TYPES OF AMENDMENT
The main kinds of amendment are textual amendment, indirect express
amendment/referential amendment and Henry VIII powers.
1. Textual Amendment
This involves changes to the principal enactment or statute in the form of;
a) amendment by deletion
b) amendment by insertion
c) amendment by striking out and insertion or replacement
d) amendment by substitution.
e) Amendment by addition
Amendment by deletion: the Evidence Act and Criminal Procedure
(Amendment) Act, 1979, SMCD 217 deleted subsection (2) of Section
120 of the Evidence Act, NRCD 323 “Other than a public officer or a
member of the Armed Forces approved by the accused person”. This, in
effect, meant that with the textual amendment, members of the Armed
Forces and Police Service were now eligible to put themselves up as
independent witnesses.
This was however, lost on the Supreme Court in the case of Frimpong
alias Iboman v The Republic [2012] 1 SCGLR 297. The court relied on
the law as it existed before the repeal and held that members of the Armed
Forces and Police Service were not eligible to stand as independent
witnesses. The court had the opportunity to redeem itself and depart from
its own per incuriam judgment in Iboman in the case of Ekow Russel.

Ekow Russel Held:
v The “The present state of the law is that policemen and members of the armed
Republic forces... are not disqualified per se but that they must meet the standard
J13/51/2014
test … Independent witness may include every person who qualifies to be a
dated 13th
July, 2016 competent witness and has no direct personal interest in the case in issue.
And so, even policemen and soldiers who come from the investigating
stations may qualify under the Decree to be independent witnesses whether
the detained accused person approves of them or not. An incarcerated
accused person wishing to confess voluntarily therefore has no choice but
to accept any competent disinterested person imposed on him by the
investigating police or military officer, even when this disinterested person is
another policeman or a military man.
2. Indirect Express Amendment or Referential Amendment

This type of amendment calls for the new law to be read together with the
existing one. This could take the form of the latter provision for the sake of
inconsistency repealing the earlier enactment or one provision being of
general nature and the other being specific which may call for the
application of the generalia specialibus non derogant.
3. Henry VIII Amendment

They are clauses in a law that enable a minister to amend or repeal
provisions of an Act. This effects an amendment without the full haul of
parliamentary processes for an amendment. It is used to update legislations
and derives its name from the Statute of Proclamation Act, 1539 where
Henry VIII was given the powers or the right to pass laws directly without
going through Parliament.
Example: under section 42(4) of the Courts Act, Act 459, in dealing with
the civil jurisdiction of the Circuit Court and in section 47(4) in dealing with
the limit of the civil jurisdiction of the District Court, it is stated that “the
Attorney-General may by legislative instrument amend the amount or value
specified in subsection (1) of this section”. Recently this power has been
invoked by the Attorney-General in the coming into force of L.I 2229 that
increases the limit of the monetary value for civil claims at the Circuit Court
to Two Million Ghana Cedis and the District Court to Five Hundred Thousand
Ghana Cedis. Similarly, regarding penalty units upon conviction, the
Attorney-General has been given powers to increase it by legislative
instrument.

OUSTER CLAUSES AND JUDICIAL REVIEW
Definition: An Ouster Clause is a provision that seeks to debar or restrain
a court from the normal exercise of the jurisdiction of the court.
INTRODUCTION
Per Articles 125(3) and (5), the power to adjudicate is vested in the
Judiciary:
(3) The judicial power of Ghana shall be vested in the Judiciary,

accordingly, neither the President nor Parliament nor any organ or agency
of the President or Parliament shall have or be given final judicial power.
(5) The Judiciary shall have jurisdiction in all matters civil and criminal,
including matters relating to this Constitution, and such other jurisdiction as
Parliament may, by law, confer on it”.
The supervisory jurisdiction of the High Court and the Supreme Court
cannot be ousted by Parliament. This is constitutionally mandated and
inherent in the two courts as part of their powers to control and supervise
courts and administrative tribunals lower than them.
3 TYPES OF OUSTER CLAUSES
1. Constitutional Ouster Clause
2. Statutory Ouster Clause
3. Non-Statutory Ouster Clause, as usually contained in an agreement
Any of these ouster clauses may oust the jurisdiction of the court in matters
of fact, or matters of law or both.
FORMS THEY CAN TAKE
1. Total or complete ouster of the jurisdiction of the court e.g. Section
57, Act 459.
2. Partial Ouster clause
3. Deferment/postponement of the jurisdiction of the ordinary courts
for a period.
4. Procedure ouster clause which applies to court processes e.g.
actions commenced by petitions only
EXAMPLES OF OUSTER CLAUSES
1. Article 130 of the Constitution gives the Supreme Court an
exclusive original jurisdiction in the enforcement or interpretation of
the Constitution, ousting the jurisdiction of all other courts.
2. Article 99(1) and (2) of the Constitution ousts the jurisdiction of the
Supreme Court in favour of the Court of Appeal as the final
appellate court in parliamentary election disputes. See the case of
In Re Parliamentary Election for Walensi Constituency;
Zakaria v Nyamakan.

3. Section 57 of the Courts Act, 1994 (Act 459) ousts the
jurisdiction of the Court of Appeal, the High Court, Regional
Tribunal, Circuit Court, and the District Court from hearing, either at
first instance or on appeal, any cause or matter affecting
chieftaincy.
4. Parties to a contract may prefer recourse to alternative dispute

mechanisms in the determination of a dispute. This type of ouster
suspends the jurisdiction of the courts but does not completely oust
same. Where, after the resolution, there is no need to invoke the
supervisory jurisdiction of the courts, the court would not ordinarily
interfere with the decision.
OUSTER CLAUSE IN AN AGREEMENT/NON-STATUTORY OUSTER
 Parties cannot determine to finality the legal rights of the parties to
the exclusion of the courts. The general principle of law is that
whiles parties are free to determine to the exclusion of the courts
their mode of determining matters of fact, they cannot determine to
finality matters of law or their legal rights as such a determination
would be contrary to public policy.
 Provisions in sectarian constitutions that provide for internal
remedies for dealing with conflict before resort to court is generally
respected by the courts. However, a decision of the tribunal is
amenable to the supervisory jurisdiction of the High Court, and
where
i. there is a failure to observe natural justice,
ii. it acts in excess of jurisdiction, or
iii. there is error patent on the face of the record,
a party is not precluded from having resort to the court for
prerogative writs directed against the decision of the tribunal – Lee.
Also Essilfie v Tetteh.
Held:
Lee v “Although the jurisdiction of the domestic tribunal is founded on contract,
Showmen’s express or implied, nonetheless, the parties are not free to make any
Guild of contract they like. There are important limitations imposed by public policy.
Great Britain The tribunal must, for instance, observe the principles of natural justice…
[1952] All another limitation arises out of the well-known principles that parties cannot
1175 by contract oust the ordinary courts of their jurisdiction… They can, indeed,
make the tribunal the final arbiter of questions of fact but they cannot make
it the final arbiter on questions of law”.

Brief Facts
Essilfie v The case involved matters of GPRTU and alleged breaches of its
Tetteh constitution. The conditional appearance and motion filed by the defendant
(1995-96) I was on the basis that that the Plaintiff had not exhausted the procedure for
GLR 297 resolution of grievance under article 24 of their Constitution and therefore
the action was premature. Plaintiff resisted that the domestic remedy could
not oust the jurisdiction of the court and it was the defendants that were in
charge of the local procedure. The High Court upheld the objection and on
further appeal it was reversed.
Held:
“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 the adjudication of his dispute
was so fundamental in our social structure and essential in ensuring peace
and stability that, public policy would not permit complete ouster of the
jurisdiction of the courts. However, where the exclusionary clause provided
for an initial recourse to the domestic tribunal, especially in disputes
involving issues of fact before recourse to the ordinary courts, the court
would generally recognize and give effect to it. However, even in disputes
involving issues of fact whenever there was a breach or a threatened
breach of the principles of natural justice by the domestic tribunal, the court
would assume jurisdiction over the matter. Furthermore, the court was the
final arbiter on questions of law and any clause to the contrary was
therefore invalid. However, even though the courts were not bound by any
express provision in a contract that a plaintiff had to exhaust his domestic
remedies before resorting to the court, the plaintiff would have to show
cause why the court should interfere with the contractual position”.
NON-STATUTORY OUSTER v COURT
If a party by-passes an established dispute resolution mechanism or
domestic tribunal to the court, upon objection being raised, his presence
would be acknowledged if he can satisfy the court on any of the following:
1. Where the matters being raised in court are pure matters of law as
opposed to matters of fact and the dispute appears not to fall within
the arbitral provision. Khoury v Khoury [1962] 1 GLR 98.
2. Where a defaulting party has manifested an intention of treating the

contract as no longer binding on them or repudiated the clause of
resorting to internal mechanism for resolution of disputes, and the
innocent party comes to court. The innocent party may argue that
he should not be compelled to exhaust the local remedy as the
guilty has not demonstrated any commitment to the contract. In Re

Timber and Transport Kumasi-Krusevac Co Ltd v Bonsu
[1981] GLR 256 CA.
3. Where the establishment of the domestic tribunal under the

Constitution of the entity did not make provision for a particular or
the special kind of dispute that had arisen.
In the Essilfie case, the matter for which the Plaintiff proceeded to court
was not within the original jurisdiction of the branch executive so the court
upheld the Plaintiff’s resistance not to have submitted his claim before the
internal mechanism.
4. Where there is a breach or threatened breach of natural justice.
5. Where the matter involves a legal interpretation of the constitution

or a legislation. However, the suitable place for determination of the
best construction to be placed on the constitution of the body is the
domestic tribunal set up by the parties themselves as they are
placed in a better position to interpret their own constitution.
6. Where the matter involved is of criminal nature, notwithstanding a

provision in the local constitution conferring jurisdiction on a
domestic tribunal, such a clause would be deemed to be void and
would not be respected by the court. The courts are however not
precluded under Section 73 of the Courts Act, Act 459 from
referring criminal matters not amounting to felonies for amicable
settlement.
OUSTER CLAUSE IN A STATUTE
 Statute may expressly or by necessary implication restrain a court
from dealing with certain matters - Section 57 of the Courts Act.
 In such a case, the jurisdiction of the ordinary courts is ousted but
the prerogative writs that the High Court can issue to those inferior
bodies have not been taken away.
 Parliament has the powers to provide a specific procedure for
grievance resolution by an Act but has no power to completely oust
the jurisdiction of the courts. Any such attempt to completely oust
but not defer the jurisdiction of the High Court would be
unconstitutional.
 However, for reasons of special expertise, Parliament may set up
an internal domestic tribunal where disputes would first
have to be sent for resolution.
Example: The Disciplinary Committees of the General Legal Council, the
Medical and Dental Board and the Labour Commission to determine matters

before any recourse to the judicial process; and the courts lend support to
such tribunals where it has consistently maintained that where an
enactment has provided a special procedure for which an act ought to be
done, it should be the procedure alone that must be complied with –
Boyefio.
Held:
Since the land title adjudication committee was an internal administrative
tribunal of the Land Title Registry solely concerned with determining
disputes arising in the course of the registry’s functions, and section 13(2)
and (3) of PNDCL 152 had provided for appeals from any decision of the
adjudication committee to the High Court, then thereafter a further right of
appeal to the Court of Appeal, and finally, to the Supreme Court, the power
exercised by the adjudication committee did not violate articles 124(3) and
Boyefio v 140(1) of the Constitution, 1992 which had vested exclusive final judicial
NTHC power in the judiciary and granted the High Court jurisdiction in all cases.
Properties The law was clear that where an enactment had prescribed a special
Ltd [1996- procedure by which something was to be done, it was that procedure alone
97] SCGLR that was to be followed. Furthermore, section 12(1) of PNDCL 152 was in
531 consonance with the modern practice of setting up an internal tribunal in an
institution to determine at first instance disputes arising within that
institution before recourse was made to the courts if the matter did not end
at the internal tribunal. In such situations, where a person ignored the
internal tribunal and came to court in respect of any such internal dispute,
unless that person had a substantial reason for side-stepping the internal
tribunal, the courts would invariably order him to go back to the internal
tribunal. Accordingly, section 12(1) PNDCL 152 was consistent with articles
125(3) and 140(1) of the Constitution 1992”.
Facts & Ratio

EM Capital v In the case of when the Plaintiff proceeded to court without having gone
Securities through the internal mechanism for dealing with complaints, the defendant
and raised objection to the assumption of jurisdiction by the High Court. The
Exchange court ruled that the Plaintiff did not exhaust the internal mechanism under
Commission Section 19 of the SEC Act, (Act 929) and the court had to suspend its
Suit No jurisdiction for the plaintiff to have recourse to the procedure spelt out by
GJ/796/2018 the law.
OUSTER CLAUSES IN A CAUSE OR MATTER AFFECTING
CHIEFTAINCY
1. Parliament has also by statutory enactment ousted the jurisdiction
of all courts from entertaining any cause or matter affecting
chieftaincy.

2. Section 57 of the Courts Act, 1993 (Act 459) is to the effect that
the Court of Appeal, the High Court, Regional Tribunal, a Circuit
Court and the District Court, shall not have jurisdiction to entertain
either at first instance or on appeal any cause or matter affecting
chieftaincy.
Republic v Held:
High Court, “Since the claim by the respondents that the first respondent was the
Denu; Ex “hlotator of the whole Anyigbe clan” would require evidence from the
Parte Avadali respondents to prove that he had been properly nominated, elected and
[1993-94] 1 installed as the hlotator of the Anyigbe clan, it was a cause or matter
GLR 561 affecting chieftaincy within the definition of section 66 of the Chieftaincy
Act, 1971 (Act 370). Accordingly, as provided by section 52 of Act 370, the
High Court had no jurisdiction to entertain it. Accordingly, certiorari would
be granted to quash the decision of the High Court to assume jurisdiction in
the case”.
3. The Judicial Committees of the Traditional Councils have exclusive

jurisdiction in causes or matter affecting chieftaincy. So where a
cause or matter affecting chieftaincy commences from the Judicial
Committee of a Traditional Council, the appeal process goes through
the Regional House of Chiefs, National House of Chiefs and then the
Supreme Court as the final appellate court – Section 29, Act 759.
4. The supervisory jurisdiction of the High Court and the Supreme
Court however cannot be ousted by Parliament. This is inherent in
the two courts as part of their powers to control and supervise
courts and administrative tribunals lower than them.
5. The Chieftaincy Act, 2008 (Act 759) is the law that regulates
chieftaincy matters and its appeal processes.
6. What is a cause or a matter affecting chieftaincy has been

defined under section 76 of the Chieftaincy Act, 2008, Act
759 (which is the same as section 117 of Act 459) as follows:
“cause or matter affecting chieftaincy means a cause or 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 the deposition of a
chief.

In Re Osu (d) The recovery or delivery of a stool property in connection with the
Stool; Ako nomination, election, selection, installation, deposition or abdication
Nortei II of a chief and
(Mankralo of (e) The constitutional relations under customary law between chiefs”.
Osu) v
Nortey Owuo 7. It is not the mere incidence of an issue relating to chieftaincy in
III proceedings in the courts that would constitute a cause or a matter
(Intervener) affecting chieftaincy. A genuine cause or matter affecting chieftaincy
[2005-2006] must have been raised in court to deprive the court of jurisdiction -
SCGLR 628 In Re Osu Stool; Ako Nortei II.
8. The supervisory jurisdiction of the High Court however cannot be

ousted - Ex Parte Bediako II.
Brief Facts:
The respondent was purportedly destooled as the chief of Soabe, in the
Akim Abuakwa Traditional area and he protested as to the composition of
Republic v the panel. He was overruled and subsequently destooled. He filed a
High Court, certiorari application to quash the proceedings and his destoolment. The
Koforidua; Ex Appellant contended that the respondent was not a chief but a headman
Parte and his destoolment was not governed by the Chieftaincy Act, Act 370. The
Bediako II High Court satisfied itself that the respondent’s name was listed as a chief
[1997-98] in the Register of Chiefs and quashed the destoolment. The Applicant then
GLR 488 proceeded to the Supreme Court that the case was a cause or a matter
affecting chieftaincy and the High Court had no jurisdiction to entertain the
action under Section 57, of the Courts Act. The Supreme Court refused to
quash the decision of the High Court.
Held:
“High Court was neither called to adjudicate nor make a declaration on the
status of the respondent. The court was only called upon to quash the
purported destoolment of the respondent on the ground that the applicant
and the panel he set up did not constitute the judicial committee of the
Akim Abuakwa Traditional Council and therefore the applicant lacked the
requisite statutory jurisdiction under section 15(1) of the Chieftaincy Act,
1971 (Act 370) to adjudicate upon the destoolment charges and to declare
the respondent destooled. Accordingly, the question of whether or not the
respondent was a chief arose as a matter secondary to the fundamental
question before the High Court… Since, from the record, neither the
question raised by the applicant about the status of the respondent nor the
reception of testimony from the registrar transferred the substance of the
matter before the High Court from an application for certiorari into a cause
or matter or a question or dispute affecting chieftaincy, the High Court
could not be said to have assumed or purported to assume the jurisdiction

to settle finally and authoritatively, the status of the respondent.
Accordingly, the High Court judge did not exceed his jurisdiction…”.
Constitutional Ouster: Indemnity Provisions in the Constitution
Facts & Ratio
Ellis v The Supreme Court felt its jurisdiction to entertain the action had been
Attorney- precluded by virtue of Section 34(3) of the Transitional Provisions of the
General Constitution. Thus it was precluded from enquiring into an appropriate
[1999-2000] compensation for the Plaintiff for the acquisition of the Heman Lands by the
2 GLR 377 use of PNDCL 294. The court thought PNDCL 294 could not be questioned
by the court, nor could any remedy or relief be granted in respect of any
such challenge to the constitutionality of the said law. In that respect,
Section 34 acts as a constitutional ouster clause that ousted the jurisdiction
of the courts from dealing or enquiring into those executive PNDCL actions
taken.
JUDICIAL REVIEW
Definition
Judicial review is the constitutionally conferred power of the court to
declare that a law enacted is in excess of the powers conferred on
Parliament and therefore null and void.
Article 130(1)(b): “Subject to the jurisdiction of the High Court in the
enforcement of the Fundamental Human Rights and Freedoms as provided
in article 33 of this Constitution, the Supreme Court shall have exclusive
original jurisdiction in 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.
Example: in the case of Adjei-Ampofo regarding Section 63(d) of the
Adjei- Chieftaincy Act, 2008 (Act 759) which criminalized failure to answer to the
Ampofo v summons of a chief, the court struck same down on the basis that it
Attorney- violated Articles 14 and 21 of the Constitution on personal freedom and
General freedom of movement; and also it conferred judicial power, which was the
[2011] 2 preserve of the judiciary, on chiefs.
SCGLR 1104
No court other than the Supreme Court has the power of judicial review to
strike down laws enacted by Parliament.
Supervisory Jurisdiction of the High Court and the Supreme Court
 There are only three superior courts established under the
constitution: the Supreme Court, the Court of Appeal and the High
Court. Any other superior courts can only be established through an
amendment of the entrenched provision.
 Out of the three, the Constitution per Articles 141 and 132 grants
the High Court and the Supreme Court respectively, supervisory
jurisdiction over all lower courts.

 Per Article 161, “supervisory jurisdiction” includes jurisdiction to
issue writs or orders in the nature of habeas corpus, certiorari,
mandamus, prohibition and quo warranto.
 Per Article 126(b), Parliament by an Act of Parliament can establish
lower courts. Any such court created would be subject to the
supervisory jurisdiction of the High Court and the Supreme Court.
 The Courts Act, Act 459 has created the Circuit Courts, District
Courts, Juvenile Courts, National House of Chiefs, Regional House of
Chiefs and the Traditional Council under Section 39 of the law.
 Besides, specific laws provide Disciplinary Committees, as a lower
adjudicatory body, for certain institutions. The decisions of the
disciplinary committee are not insulated from the supervisory
jurisdiction of the High Court.
 For a decision to be amenable to judicial review by way of a
prerogative writ, the decision maker must be empowered by law to
make the decision, either by administrative powers or a judicial one.
Republic v SCOPE OF CERTIORARI
High Court, The combined effect of Ex-Parte Ampong aka Akrufa Krukoko I and
Sekondi, Ex- Ex Parte Amoo is that an order for certiorari is a discretionary remedy
Parte which will be granted on any the following grounds:
Ampong aka 1. Grounds of excess or want of jurisdiction
Akrufa 2. A breach of a rule of natural justice.
Krukoko I 3. Illegality
(Kyerefo III 4. Fraud
[2011] 2 5. Error on the face of the record
SCGLR, 716 6. Irrationality or Wednesbury unreasonableness: A decision
at 722 taken of a public nature which is so outrageous in its defiance of
logic or of accepted moral standards that no reasonable person
& would have arrived at the decision.
7. Procedural Impropriety: Failure to act with procedural fairness
Republic v towards a person who is affected by the decision taken - Tema
Cape Coast Development Corporation & Musah v. Atta Baffour [2005-
District 2006] SCGLR 121
Magistrate
Grade II; Ex PROCEDURE FOR INVOKING SUPERVISORY JURISDICTION
Parte Amoo Persons seeking to invoke the supervisory jurisdiction of the High Court
[1979] GLR would proceed in terms of procedure under Order 55 of the High Court
150 CA (Civil Procedure) Rules, C. I 47. It is in the form of an application supported
by an affidavit.
By Rule 3(1) of the Order 55 of C.I. 47 an application for the invocation of
the supervisory jurisdiction shall be made not later than six months

from the date of the occurrence of the event giving grounds for the
making of the application.
Supreme Court
Regarding the procedure for the invocation of the supervisory jurisdiction to
enforce the provisions of Article 132, that is governed by the Part VI of the
Supreme Court Rules, 1996, C. I. 16.
Per Rule 62 of C. I 16 the application to invoke the supervisory jurisdiction
of the Supreme Court shall be filed within three months of the date of
the decision against which the jurisdiction is invoked unless time is
extended by the court.
EXTENSION OF TIME
As to whether or not time can be extended when an applicant could not
bring the application within the period has been a vexed issue. One view is
that if there is inordinate delay the door would be deemed to be firmly shut
against such a party; whilst the other view is that it depends on the
circumstances that necessitated the delay - Ex Parte Nii Nueh Odonkor
Republic v Locus Standi / Capacity to Apply for Certiorari and Prohibition
High Court The remedies of certiorari and prohibition re therefore not restricted by the
(Human notion of locus standi.
Rights An applicant for an order of certiorari must be, either a person aggrieved or
Division); Ex a person who has a real or substantial interest in the proceedings sought to
Parte Naa be quashed - Ex Parte Naa Otua Swayne
Otua Swayne
J5/8/2015
Republic v Are Appeals and Invocation of the Supervisory Jurisdiction of the
High Court, Supreme Court Mutually Exclusive?
Cape Coast; The earlier position is that been that, one was not allowed to appeal against
Ex Parte a decision and at the same time invoke the supervisory jurisdiction to avoid
Ghana Cocoa imposing an unnecessary burden on the respondent who might have to
Board defend the judgment twice. So where there was an appeal pending, it was
(Apotoi a basis to deny an applicant for certiorari the application.
Interested
Party) The current position is that both rights are constitutional and a person was
[2009] not precluded from having resort to both rights in the conduct of a case -
SCGLR 603 Ex Parte Ghana Cocoa Board (Apotoi Interested Party).

CONSTITUTIONAL INTERPRETATION
INTRODUCTION
 The Constitution is the supreme law of the land such that any other
law that is found to be inconsistent with it any provision of the
Constitution shall, to the extent of the inconsistency, be deemed to
be void - Article 2(1).
 Ghana practices a system of constitutional supremacy, in contrast to
parliamentary supremacy, which pertains in the United Kingdom -
Justice Abdulai v Attorney-General Suit No J1/7/2022 dated
the 9th of March, 2022.
 The dominant position of the courts has been that all lower courts
are not bound to refer a matter for interpretation but apply and
enforce the constitutional provision when it appears clear and
unambiguous - Republic v Maikankan (1971)2 GLR 473.
 This position is now changing under the modern purposive approach
to interpretation where a provision may not stand alone but may
have to be interpreted with other provisions of the constitution for a
conclusion to de drawn as to its clarity. The tide against ready
referral for interpretation has changed - Republic v High Court,
General Jurisdiction, Accra, Ex Parte Zanetor Rawlings
(Ashitey & NDC Interested Parties) (No 1) J5/19/2016 dated
19th May, 2016.
 Articles 2(1) and 130(1)(a) confer an exclusive original jurisdiction
(EOJ) on the Supreme Court for the interpretation and enforcement
of the Constitution. This is however subject to the exclusive
jurisdiction of the High Court to enforce fundamental human rights,
as provided by Article 33(1).
 Thus, where the provisions are clear and unambiguous and do not
give rise to any question of interpretation; and where the issue is one
that can be enforced by the High Court under Article 33(1), the EOJ
of the Supreme Court is not invoked – Bimpong Buta v GLC.
CAPACITY
1. CITIZEN: By Article 2(1), it is only a citizen of Ghana, natural or
artificial person who may bring an action in the Supreme Court for
the enforcement or interpretation of the Constitution. A case in point
is Sam (No 2.) v. AG.
Brief Facts
In that case the plaintiff who was a citizen had invoked the original
jurisdiction of the Supreme Court under Article 2(1) and 130 of the
Constitution that Section 15(1) of the Divestiture of State Interests
(Implementation) Law, 1992 (PNDCL 326) was inconsistent with or in
contravention of the provisions of article 140(1) and 293(2) of the

Constitution, 1992 and to that extent, it was null and void. The Attorney-
General raised a preliminary objection arguing that the plaintiff had no
standing to bring the suit since he had no personal interest in the outcome
of the case and that the meaning of “person” in article 2(1) referred to an
Sam (No 2.) aggrieved person or a person whose interest had been adversely affected by
v. Attorney- the construction of an enactment such as PNDCL 326. He called on the court
General to strike out the plaintiff’s writ for lack of standing. Bamford-Addo JSC
[1999- rejected the objection by the Attorney-General.
2000] 2 GLR Held:
336 “[A]rticle 2(1) gives standing to any person, who is a citizen to seek an
interpretation and enforcement of the Constitution, in furtherance of the
duty imposed on all citizens to defend the Constitution under articles 3(4) (a)
and 41(b)…It is clear then that article 2(1) (a) is a special jurisdiction
available to citizens of Ghana only, irrespective of personal interest.’’
Akuffo JSC: “Every citizen of Ghana, by virtue of such citizenship, has an

innate interest in the integrity of the supreme law of the land, the National
Constitution. As such, (therefore,) any perceptible inconsistency or
contravention in any enactment or act or omission of any person, with the
Constitution constitutes a sufficient occasion for the invocation of article 2.
The perceived existence of any unconstitutional enactment, act or omission
is ipso facto, a matter of public standing, personal interest and public duty to
bring an action in this court to challenge its constitutionality… In the context
of article 2 (1), therefore, there can never be an officious bystander or nosy
busybody. Every Ghanaian is and must be an interested party. This has
always been the position of this court since the 1992 Constitution came into
existence”
2. NO HUMAN RIGHT ENFORCEMENT: See Adjei Ampofo case

Adjei Held:
Ampofo (No Where the interest to be enforced is one of personal human right, then the
1) v AMA & proper forum was the High Court; but where it related to one of enforcement
A-G [2007- of public interest right, then the Supreme Court was the appropriate forum
2008] for such an action. The High Court’s enforcement power even though broad,
SCGLR 611 must be one that is in relation to the individual.
SUMMARY
Bimpong- The case of Bimpong-Buta v GLC sums up the position of the court on the
Buta v capacity kum scope for invoking the EOJ of the Supreme Court.
General Held:
Legal “Since the coming into force of the Constitution, 1992 this court has had
Council numerous opportunities to interpret and define the scope of its original

[2003- jurisdiction under both articles 2 and 130(1). The crystallized position may
2004] be summed up as follows:
SCGLR 1200 (1) A person bringing an action under article 2 of the Constitution, 1992
need not demonstrate that he has any personal interest in the outcome
of the suit; that he is a citizen of Ghana suffices to entitle him to bring
the action.
(2) The “person” referred to in the context of article 2 includes both natural
persons and corporate bodies.
(3) The Supreme Court’s power of enforcement under article 2 of the
Constitution, 1992 by exercise of its original jurisdiction, does not cover
the enforcement of the individual’s human rights provisions; that
power, by the terms of articles 33(1) and 130(1) of the Constitution,
1992 is vested exclusively in the High.
(4) Regardless of the manner in which they are clothed, where the real
issues arising from a writ brought under article 2 or 130(1) of the
Constitution, 1992 are not, in actuality, of such character as to be
determinable exclusively by the Supreme Court, but rather fall within
a cause of action cognisable by any other court or tribunal of
competent jurisdiction this court will decline jurisdiction”.
GROUNDS FOR INVOKING THE EOJ OF THE SUPREME COURT
Held:
Republic v “…an issue of enforcement or interpretation of a provision of the Constitution
Special under article 118(1)(a) arises in any of the following eventualities:
Tribunal; Ex a) where the words of the provision are imprecise or unclear or
Parte ambiguous. Put in another way, it arises if one party invites the
Akosah court to declare that the words of the article have a double-meaning
[1980] GLR or are obscure or else mean something different from or more than
592 @ 604 what they say;
b) where the rival meanings have been placed by the litigants on the
words of any provision of the Constitution;
c) where there is a conflict in the meaning and effect of two or more
articles of the Constitution, and the question is raised as to which
provision should prevail;
d) where on the face of the provisions, there is a conflict between the
operation of particular institutions set up under the Constitution, and
thereby raising problems of enforcement and of interpretation.
INVOKING THE EOJ OF SC: INTERPRETATION OR ENFORCEMENT?
Can the Supreme Court assume jurisdiction to determine a matter when the
claim is for enforcement of the Constitution, and there is no issue or
question of interpretation, especially as Article 130 says: “the Supreme Court
shall have exclusive original jurisdiction in, (a) all matters relating to the
enforcement or interpretation of this Constitution”?

The short answer is yes, the two re disjunctive and the enforcement
jurisdiction need not coincide with the interpretative jurisdiction before the
EOJ can be invoked. The long answer is depicted in case law as follows.
INTRODUCTION
The word “or” in its ordinary sense is disjunctive. However, if the word “or”
is interpreted as conjunctive but not disjunctive, no rule of constitutional
interpretation is breached because per the rules or principles of
constitutional interpretation, a broad liberal approach is required as against a
strait jacket approach. The constitution is not restricted to the Interpretation
Act but runs with the dictates of MOPA.
1. In Sumaila Bielbiel, it was the opinion of the court that that one
could seek the enforcement jurisdiction of the Supreme Court under
Article 130 of the Constitution independent of the interpretation
jurisdiction.
Brief Facts
The plaintiff caused a writ to be issued for a declaration that by virtue of
Sumaila
Articles 97(1) and 94(2) of the Constitution, a person cannot hold himself as
Bielbiel (No
member of Parliament of Ghana when he holds allegiance to another country
1) v Adamu
other than Ghana, and to continue doing so was a violation of the
Daramani &
Constitution.
Attorney-
The defendant argued that the matter did not raise the exclusive original
General,
jurisdiction of the Supreme Court so far as the writ sought an enforcement
JI/2/10
jurisdiction, and had nothing to do with an interpretation jurisdiction. The
dated 4th
Supreme Court per Gbadegbe JSC dismissed this claim by the defendant.
July, 2011.
Held:
“The provision in article 130(1) was concerned with the enforcement
jurisdiction of the Supreme Court in relation to the High Court enforcement
jurisdiction in cases of alleged violation of fundamental human rights. A
careful reading of article 130(1) would reveal that the word “and” in its
clauses (a) and (b) had been used in respect of two special or exclusive
jurisdiction of the Supreme Court that were not available to the High Court;
and that it was not intended to mean that for the Supreme Court to have
jurisdiction in cases of enforcement, the question for decision must also
involve the interpretation of the constitution. A contrary interpretation of
article 130(1) would render article 2(1) of the constitution superfluous”
2. In Osei Boateng, the view in Sumaila Bielbiel became the

Osei
minority view. The majority., led by Date-Bah JSC, were of the view
Boateng v
that the interpretative jurisdiction of the Supreme Court must
National
coincide with the enforcement jurisdiction for the apex court to be

Media seized with jurisdiction to adjudicate a matter; and that enforcement
Commission of the constitution alone cannot be a basis for a person to proceed to
[2012] 2 the Supreme Court, since any of the lower courts is seized with
SCGLR 1038 power to enforce the clear provisions of the constitution.
Held:
“Thus, Anin JA, in this locus classicus on the exclusive original jurisdiction of
the Supreme Court under the previous equivalent of the current articles 2(1)
and 130 of the 1992 Constitution, asserted that the requirement of an
ambiguity or imprecision or lack of clarity applied as much to this Court’s
enforcement jurisdiction as it did to its interpretation jurisdiction. This is
clearly right in principle since to hold otherwise would imply opening the
floodgates for enforcement actions to overwhelm this Court. Accordingly, in
my view, where a constitutional provision is clear and unambiguous any
court in the hierarchy of courts may enforce it and this Court’s exclusive
original jurisdiction does not apply to it …To conclude on ground 2, it should
be stressed that ambiguity or imprecision or lack of clarity in a constitutional
provision is as much a precondition for the exercise of the exclusive original
enforcement jurisdiction of this Court as it is for its exclusive original
interpretation jurisdiction”
Minority view led by Atuguba JSC:
The original jurisdiction of this court stems from articles 2 and 130 of the
Constitution. One of its most essential components is the enforcement of
the Constitution as an item of jurisdiction in its own right and though it may
arise jointly with an issue of interpretation its existence and invocation
cannot be inextricably linked to the incidence of an interpretative issue, as a
sine qua non prerequisite. It is common knowledge that the original
jurisdiction of this court has been conferred in almost identical language in
the 1969 and 1979 past Constitutions of Ghana and has been consistently
interpreted in the same manner by the Supreme Court”.
3. In Okudzeto Ablakwa v Attorney-General, the Supreme Court

assumed jurisdiction even though the issue was on the invocation of
the enforcement jurisdiction alone.
Brief Facts
In the Okudzeto Ablakwa case, the plaintiffs sought for a declaration among
Okudzeto other reliefs, that the Government of Ghana is obliged to retain and continue
Ablakwa v to use, in the public interest, the property compulsorily acquired for public
Attorney- purpose thus, the purported sale of the said Government Bungalow by the
General outgoing Government to one of its high ranking public officials, the 2nd
[2011] Defendant, was in utter contravention of Articles 20(5), 23, 257, 258, 265,
SCGLR 936 284 and 296 of the Constitution. The 2nd defendant raised a preliminary legal
point to the effect that the provisions of the constitution relied on by the

plaintiff are clear and unambiguous and therefore on the authority of
particularly Republic v. Special Tribunal, Ex parte Akosah [1980] GLR
592 C.A., in such a case the submissions of a party may relate “to no more
than a proper application of the provisions of the constitution to the facts in
issue, a matter for the trial court”, so the 2nd defendant submitted to the
court. Again, the 2nd defendant contended that the claim was about land and
the forum for determination should have been the land court but not the
Supreme Court.
These objections to the court assuming jurisdiction were shot down by the
Supreme Court.
Held:
“The ruling of this court on the preliminary objection in Samuel Okudjeto
Ablakwa & Another v. The Attorney-General & Another, establish that
public interest actions not involving private and personal rights or matters
can be litigated in this court under articles 2 and 130. The plaintiffs’ action is
such a public interest action so far as article 23 is concerned and is therefore
within this court’s jurisdiction.
Adinyira concurring:
Even where the High Court is vested with the exclusive jurisdiction of
enforcement in the area of fundamental human rights and freedoms by the
combined effect of articles 33 (1), 130 (1) (a) and 140 (2), and the Supreme
Court not having concurrent jurisdiction; yet the jurisdiction of the Supreme
Court in this domain is determined by whether or not the plaintiff is pursuing
a personal interest”.
4. The apex court finally laid the matter to rest in Kor v Attorney-
General & Justice Douse [2015-2016] SCGLR.
Brief Facts
In this case President John Mahama had varied the recommendations of the
Kor v Marian Ewurama Addy Committee Report on emoluments for Article 71 office
Attorney- holders by making ex gratia payment to be four months’ salary for each year
General & served. It was the case of the Plaintiff that by a careful reading of article 71
Justice of the Constitution, the President had no power to vary the
Douse recommendations. Preliminary legal objection was raised to the action
[2015- mounted and the propriety for the invocation of the exclusive original
2016] jurisdiction of the Supreme Court that the matter did not involve any
SCGLR interpretation of Article 71 as the provisions were clear on the face of it. The
plaintiff argued that per the Osei Boateng case, no action could be brought
to enforce a clear provision of the constitution.
Held:
“With celestial respect to the proponents of this view, the converse of the
matter is rather true. It is rather trite law that no action can be brought in

this court to interpret a clear and unambiguous provision of the
Constitution… It would be seen that Article 2 of the constitution is headed
“Enforcement of the Constitution” and the ensuing provisions are meant to
attain the enforcement of the constitution. There is therefore express
authority in the constitution itself for the view that the enforcement
jurisdiction of this court is a conspicuously independent item of jurisdiction of
this court... Certainly, it cannot be said that this court cannot compel the
observance of a provision of the Constitution unless it first acquires the
murkiness of ambiguity and is processed in the interpretative refinery of this
court. For all the foregoing reasons we would on this issue adopt the well-
reasoned editorial note to the decision of this court in Osei-Boateng v
National Media Commission & Appenteng, supra and depart from that
decision.”
CONCLUSION
We conclude on this by noting that the enforcement jurisdiction could
coincide with the interpretative jurisdiction, but is capable of standing alone
in the sense of a person coming to court to seek a relief for its sole
enforcement event though on the face of it there is no question of
interpretation.
PRINCIPLES OF / APPROACHES TO CONSTITUTIONAL INTERPRETATION

INTRODUCTION
 A constitution is a political document and must be interpreted
flexibly. General terms used must be understood in the light of its
changing social and political developments - Kuenyehia v Archer
[1993-94] 2 GLR 525.
 Before the Interpretation Act, (Act 792), the repealed Interpretation
Act, (C.A 4) made the Constitution one of the documents that was
subject to its rules of interpretation. However, now, the Constitution
is not bound by the Interpretation Act in its interpretation, being the
supreme law of the land. The Act is thus only one of the aids to
interpretation of the Constitution.
The rules of constitutional interpretation include the following:

1. A benevolent, broad, liberal and purposive construction of
the constitution.
The narrow rules of interpretation that may be adopted in statutory
interpretation may be inapplicable when it comes to constitutional
interpretation. For the functions of a constitution is to establish a

framework and principles of government in broad and general terms
for application in a diverse society constantly evolving. Unless there
are pointers in the text or the constitution to indicate that the court
ought to prefer the narrow approach, in most cases the broader
approach ought to be preferred by the court.
Tuffuor v Held (Sowah JSC):

Attorney- “A written constitution such as ours … embodies the will of the people… A
General broad and liberal spirit is required for its interpretation. It does not admit of
(1980) GLR a narrow interpretation. A doctrinaire approach to interpretation would not
637 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”.
NPP v Held (Hayfron-Benjmin JSC):

Attorney- “My duty was to discover the intent and meaning of …our constitution and
General (31st apply a broad and liberal spirit in its interpretation. There is no benefit in
December these modern times in applying a strict interpretation to modern democratic
case) (1993- constitutions. So to do would mean that we forget that constitutions are
94) 2 GLR 35 made by men for the governance of men”
Justice Held (Justice Kulendi):

Abdulai v “The learning … is that in discharging our obligation under Article 130 of
The the Constitution, we must construe the constitution as a whole, adopting a
Attorney- broad liberal approach instead of a straight-jacket, mechanical approach
General that does not take into account and give effect to the collective aspirations
J1/07/2022 of the Ghanaian people as solemnly expressed in the preamble to the
delivered on Constitution to secure for ourselves and posterity the blessings of liberty,
the 9th of equality, opportunity and prosperity, and affirming our commitment, among
March others, to freedom, justice, probity and accountability, the principle that all
powers of government spring from the sovereign will of the people and the
rule of law”
2. The Constitution as a document Sui Generis to be construed

not exactly as Statutes
 The phrase means “one of its kind” or “like itself” or unique. There
are intrinsic differences between a national constitution and an Act
of Parliament. Tuffour v The Attorney-General - “A written
constitution such as ours is not an ordinary Act of Parliament.”
 The Court has acknowledged the need to interpret the constitution
as a document sui generis, of its own kind - Kuenyehia v Archer

Kuenyehia v
Archer Held:
[1993-94] 2 “Any attempt to construe the various provisions of the Constitution 1992 …
GLR 525 561 must perforce start with an awareness that a constitutional instrument is a
2022 document sui generis to be interpreted according to principles suitable to its
peculiar character and not necessarily according to the ordinary rules and
presumptions of statutory interpretation”.
Awooner- Brief Facts

Williams v Whiles the plaintiff sought for a broad and popular meaning of the words
Gbedemah “adjudged” and “declared”, the defendant sought for a narrow and technical
(1970) CC 18 meaning of the word. The majority had recourse to the ordinary meaning of
the terms and as ascribed to them by the dictionary.
Held:
“We do not accept the argument that because the words “adjudged” or
otherwise declared” can with accuracy, be used to describe the finding of a
court, they cannot be used to describe the finding or conclusion of a body
which is not a court stricto sensu. Indeed, the ordinary dictionary meaning
of the words show that the court has no monopoly over the use of words.
We think that the words “adjudge or declare” have no technical connotation
and in the context of Article 71(2)(b) mean that the commission of inquiry
“found or pronounced” that a person acquired assets unlawfully.”
3. Constitution to be construed as a living organism capable of

growth
The living constitutionalism approach is that the constitution must not be
construed as a document frozen in time where the dead hands of those
who framed it continue to dictate the meaning to be assigned to it even
Tuffour v with the changing times.
Attorney- Held:
General “Equally, the constitution has its spirit. Its language … must be considered
supra as if it were a living organism capable of growth and development. Indeed,
it is a living organism capable of growth and development, as the body
politic of Ghana itself is capable of growth and development”.
Also
NPP v
Attorney- Held:
General “The 1992 Constitution is therefore the sum total of our hopes,
[1993-94] 2 disappointments, experiences and expectations as a nation. If we forget the
GLR 35 @ historical development of our constitution, then we fail to recognize that it is
168 a living organism capable of growth”.

The court endorsed the living constitutionalism approach as against
Ghana Lotto originalism, in the Ghana Lotto Operators Association case.
Operators Held:
Association v “A more modern approach would be to see the document as a living
National organism. As the problems of the nation change, so too must the
Lottery interpretations of the Constitution by the judiciary. Interpreting the
Authority Constitution as a living organism implies that sometimes there may be a
[2007-2008] departure from the subjective intention of the framers of it. The objective
2 SCGLR purpose of the Constitution may require an interpretation different from
1088 that of the original framers of it”.
4. The Court must avoid importing into the Constitution what

does not appear therein.
 The court in construing the Constitution must strive to avoid
importing into the Constitution words that are not found in it unless
those words can be said to be necessarily implied.
 Every constitution is unique and no two constitutions of two different
nations are the same. The national constitution must be interpreted
in the context of its wording and in the light of its own
circumstances but not to import the meaning assigned to words and
phrases as appear in some foreign constitutions.
 A constitution is the product of the experiences of a people and it is
usually conceived out of their struggles and the need to emerge out
of them for a better future. In that respect, words found in a
national constitution cannot be said to be the same as that of
another nation’s constitution, however similar; and judicial
pronouncements based on the word of another nation’s constitution
cannot be totally relied upon to interpret a constitution.
Example: the political question doctrine which makes certain actions taken
by the executive and legislature not subject to scrutiny by the judiciary, as
pertains in US, has been held not to be applicable in Ghana due to Article
1(2) of the Constitution.
Held:
“In the exercise of the interpretative jurisdiction of this court… we must
Kwakye v have regard to the terms of our particular Constitution whose specific
Attorney- reference points are largely unique to our national history. In this area,
General more than others, judicial pronouncements in other jurisdictions on the
[1981] GLR particular facts of their experience are not likely to be of much assistance;
944 @958 the range of judicial wisdom embodied in them will, of course, influence our
judicial reflections.”

5. Employment of the Spirit of the Constitution
The constitution must not be interpreted with strict emphasis on the literal
meaning of words totally devoid of context and not taking account of the
document as a whole. The invocation of the spirit of the constitution was
Sallah v first employed in the case of Sallah v Attorney-General where Apaloo JA
Attorney- and Sowah JA noted that the best guide to interpretation is to interpret the
General constitution in accordance with its letter and spirit; and that the intention of
(1970) CC 5; the Constituent Assembly can be collected from the words used and if that
(1970) G & G intention, when so collected, is in consonance with the spirit of the
493 Constitution, then there is no need for further aids.
Sowah JSC also stated in Tuffuor v Attorney-General that:

“The Constitution has its letter of the law. Equally the constitution has its
spirit… a broad liberal spirit is required for its interpretation”.
It is in pursuit of the spirit of the Constitution that the Supreme Court struck
down the celebration of 31st December as a public holiday as not being in
accord with the spirit of the Constitution
NPP v Held:
Attorney- “... a constitution is the outpouring of the soul of the nation and its precious
General (31st life-blood is its spirit. Accordingly, in interpreting the constitution, we fail in
December our duty if we ignore its spirit. Both the letter and spirit of the Constitution
case) [1993- are essential fulcra which provide the leverage in the task of interpretation…
94] GLR 35 In every case, a true cognition of the constitution can only proceed from the
@ 79-80 breath of understanding of its spirit … The necessary conclusion is that the
written word and its underlying spirit are inseparable bedfellows in the true
interpretation of the Constitution”.
“For if the Constitution, 1992 frowns on violent overthrow of duly
constituted governments, and rejects acts that put a premium on
unconstitutionalism to the extent of even proscribing the promotion of one
party state, it is naivety of the highest order, to expect that very
constitution, and in the same breath, to sing hallelujah’s in a paean of
praise to unconstitutional deviations, past or present. If the past is being
buried, the spirit of the Constitution, 1992 would frown on the resurrection
of any of its limbs.”
Dissenting, Archer CJ stated that:
“… as a cliché used in certain foreign countries when interpreting their own
constitutions which were drafted to suit their own circumstances and
political thought. Whether the word ‘spirit’ is a metaphysical or
transcendental concept, I wish to refrain from relying on it as it may lead to
Kantian obfuscation. I would rather rely on the letter and intendment of the
Constitution …”

6. Employment of the Directive Principles of State Policy as a
 The Directive Principles of State Policy constitute a very
comprehensive social, economic and political programme for a
modern and welfare state.
Article 34 on DPSP states as follows:
“The directive principles of State policy contained in this chapter shall guide
all citizens, Parliament, the President, the Judiciary, the Council of State, the
cabinet, political parties and other bodies and persons in applying or
interpreting this Constitution or any other law and in taking and
implementing any policy decisions, for the establishment of a just and free
society”.
JUSTICIABILITY OF DPSP
As seen from paragraphs 94-96 of the Report of the Committee of Experts,
it was not the intention of the drafters of the Constitution for DPSP to be
justiciable. The Consultative Assembly however thought otherwise – Ghana
Lotto Operators Association case.
NPP v 1. The test of the justiciability or otherwise of the directive principles of

Attorney- state policy first came up in the NPP v Attorney-General (31st
General- December case) where the court concluded that the whole of the
General directive principles were justiciable. The majority ruled that all the
(1993-94) 2 provisions of the Constitution are not there for the fun of it but are
GLR 35 justiciable.
2. In the case of NPP v Attorney-General (CIBA case), the court

held they were justiciable when read together with other
enforceable provisions of the Constitution.
Held:
NPP v “It was clear from article 34(1) of the Constitution, 1992 and the report of
Attorney- the drafters of the Constitution that the Directive Principles of State Policy
General were principles of state policy which taken together constituted a sort of
(CIBA case) barometer by which the people could measure the performance of their
[1997-98] 1 government. Thus they provided goals for governmental and legislative
GLR 378 programmes and a guide to judicial interpretation but were not of and by
themselves legally enforceable by any court. However, where those
principles were read in conjunction with other enforceable provisions of the
Constitution as in the case of article 37(2)(a) and (3) with article 21(e) in
respect of the right to freedom of association, by reason of the fact that the
courts were mandated to apply them in their interpretative duty, they were
justiciable. Furthermore, where any provision under chapter 5 of the
Constitution, 1992 dealing with the directive principles could be interpreted
to mean the creation of a legal right, i.e. a guaranteed fundamental human

right such as the freedom of association under article 37(2)(a) of the
Constitution, they became justiciable and protected by the Constitution
1992. Thus given the criteria or test for justiciability, while each case would
depend on its peculiar facts, on the facts of the instant case, article 37(2)(a)
regarding freedom to form an association free from state interference was a
right which was justiciable”
3. In the Ghana Lotto Operators Association case, the dominant

thinking is the presumptive justiciability of the directive principles of
state policy.
The issue was “whether Act 722 violates Articles 33(5), 35(1) and
36(2) of the 1992 Constitution.
Held:
Ghana Lotto “Prima facie, one would have thought that everything in a Constitution
Operators should be justiciable. The Constitution is a legal document containing the
Association v most important rules on political governance. The courts have the
National responsibility of ensuring that these rules are complied with. To my mind,
Lottery therefore, the starting point of analysis should be that all the provisions in
Authority the Constitution are justiciable, unless there are strong indications to the
[2007-2008] contrary in the text or context of the Constitution… even if the original
2 SCGLR intent of the Committee was that the principles should not be justiciable,
1088 that intent, though important, is not necessarily determinative of the
outcome of the interpretation of article 34 by this Court”.

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INTERPRETATION 360 – THE CASE ALBUM

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CAUTION TO APPLICATION OF GENERAL RULE

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Monta v See also for Rule 3: Technical Meaning

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However, in the case of Addai v Donkor 2nd May, 1992 (unreported),

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Aharon Barak, Purposive Interpretation in Law:

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Ralph v Carrick Held:

EXCEPTIONS TO THE BASIC RULES

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2. Section 13(1), Wills Act, 1971 (Act 360)

Akua INVOKING SECTION 13(1)

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Section 1, Wills Act, 1971 (Act 360):

Cartwright v Held (on insanity):

Section 2, Wills Act, 1971 (Act 360)

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Kwamin v Locus Classicus

Duodu and Held:

Also see Held:

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EXCEPTION TO SOME LEGAL REQUIREMENTS – PRIVILEGED WILL

The Expeditione test was replaced by a two-pronged test in In Re

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 Where a Testator appoints his debtor as executor the debt is

Section 61 of the Administration of Estates Act, 1961, Act 63:

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A DISPOSITION MADE CONTRARY TO LAW

A DISPOSITION WHICH IS INCAPABLE OF TAKING EFFECT

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PROOF OF VALIDITY OF A WILL

2. Solemn Form: A will is proved in solemn form by the executor, or a

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Section 119(2) of the Courts Act, 1993 (Act 459)

Section 34, Evidence Act, 1975 (NRCD 323)

Section 7(7), Wills Act, 1971 (Act 360)

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The section focuses on a testator–beneficiary relationship, as against a

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Facts & Ratio:

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Oliver Wendell Holmes: The Theory of Legal Interpretation, 1899,

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Ascertaining Original Intent

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