Lecture One

PART ONE

GHANA LEGAL SYSTEM

a. The Legal System

i. Sources of Law: Ghana’s legal system is outlined primarily, on the Constitution,

The Constitution provides under Article 11 on that the sources of Ghana law as follows
(i) the Constitution,
(ii) Statutes,
(iii) Orders, rules and regulations made by power conferred by the Constitution,
(iv) the “existing law” (i.e. written and unwritten laws of Ghana existing immediately
before the coming into force of the Constitution), and
(v) the “common law” (i.e. the rules of common law, the doctrines of equity and
customary law – rules of law applicable by custom to particular communities in
Ghana.)

ii. Court structure: The Constitution guarantees the independence of the Judiciary. The
Court hierarchy consists of:
 the superior courts of judicature, which is constituted by the Supreme Court, the
Court of Appeal, and the High Court and Regional Tribunals;
 the lower courts which consists of the Circuit Court, District Court (which includes
family tribunals etc).

There are also Circuit Courts and District Courts which constitute the inferior courts.

 The Supreme Court is the highest/apex court in the realm of administering

Justice in Ghana. The Court has The

Jurisdiction of the supreme Court.

i. It has exclusive Original Jurisdiction over all matters relating to the
enforcement or interpretation of the 1992 Constitution;
ii. it has jurisdiction over matters arising as to whether or not an
enactment/statute was made in excess of the powers conferred on
Parliament or any other authority or person by law or under the
Constitution.
iii. Where any matter of constitutional interpretation arises before any
other court, the proceedings is required to be to stayed and the matter
referred to the Supreme Court for the constitutional interpretation.
iv. It also has supervisory jurisdiction over all the Courts in Ghana.

The Court is presided over by the Chief Justice. In the absence of the Chief Justice,
the most senior of the Justices of the Supreme Court, shall preside over the
constituted panel. The Supreme Court consists of the Chief Justice and not less
than nine Justices. It is located only at the Headquarters in Accra.

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566
 It is the Apex court – the final court of appeal and in the exercise of its Appellate
Jurisdiction, appeals lie to it from the Court of Appeal and the Judicial Committee
of the National House of Chiefs.

As the Apex Court, Rulings and Judgements of the Supreme Court are binding on
all the courts below it. Its judgments are not binding on itself - that is it can always
deviate from an existing judgement it made.

 The Court of Appeal

It is the second highest Court in the hierarchy of the Superior Courts.

Jurisdiction

The Court has only Appellate Jurisdiction with respect to judgments, decrees or orders of the
High Court and Regional Tribunals and such other appellate jurisdiction conferred by the
Constitution or any other law.

It has no original jurisdiction.

All appeal cases from the High Courts, Regional Tribunals and Civil appeals from Circuit Courts
go to the Court of Appeal.

It also hears appeals from some of the administrative bodies including Commissions of Inquiry
set under the Constitution. It is therefore, purely an appellate Court.
A panel of three Judges duly constitute the Court of Appeal. Currently, the Court of Appeal is
located in about six regional capitals being; Accra, Cape Coast, Koforidua, Kumasi, Ho, and
Tamale.

Judges who sit in the Court of Appeal are referred to as Justices of the Court of Appeal.
Rulings and Judgements of the Court of Appeal are binding on all the courts below it including
itself***.

 The High Court

The High Court is the third highest Court in the hierarchy of the Superior Courts.
It is duly constituted by a single Judge, unless the Court is required to sit with jurors or assessors.
It has original jurisdiction in all civil and criminal matters. It also has appellate jurisdiction in
appeals from the District Court and criminal appeals from the Circuit Court (NB: civil appeal from
the Circuit Court goes before the Court of Appeal and not the High Court). It has supervisory
jurisdiction over all lower Courts below it.

It has exclusive jurisdiction for the enforcement of the Fundamental Human Rights enshrined in
the 1992 Constitution. It is located throughout the regional capitals in Ghana. The High Court has
divisions. It has Criminal Division, Land Division, Divorce and Matrimonial Division, Probate and
Administration Division, Labour Division, Human Rights Division, Commercial Division, Financial
Division, General Jurisdiction among others.

The High Court has Original Jurisdiction in all matters. It has Appellate Jurisdiction in
judgments of the Circuit Courts in criminal matters, and in judgments of the District Courts. It also
has jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by the

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566
Constitution, and any other jurisdiction conferred by the Constitution, or any other statute. It has
Supervisory Jurisdiction over the lower courts and lower adjudicating authorities.

Judges who sit in the High Court are referred to as Justices of the High Court.

Regional Tribunals

The Regional Tribunals have concurrent Original Jurisdiction with the High Court in criminal
matters, particularly offences involving serious economic fraud, loss of State funds or property,
tax and customs duty offences, and narcotic offences.

Regional Tribunals are of the same status as the High Court. They are presided over by Chairmen
who sit with panel members. They have jurisdictions in selected criminal cases only. They are
located in all the regional capitals of Ghana. Presently, there is no Regional Tribunal in the
country.

 Lower Courts

The Lower courts are made up of the Circuit and District Courts. The respective, specific
jurisdictions of the Circuit Courts and District Courts are specifically set out by statute.

The Circuit Court

The Circuit Court has jurisdiction in civil actions. It also has jurisdiction in all criminal matters other
than treason and offenses punishable by death. Furthermore, it has jurisdiction in matters
involving family issues including custody of children.
The Circuit Courts are located in the regional and some district capitals of Ghana
A Judge who sits at the Circuit Court is referred to as Circuit Court Judge.

The District Court

The District Court is the lowest in the hierarchy of all Courts in the country and it makes the largest
number of Courts.
The Family Court, Juvenile Court, and Motor Court are all District Courts. They are located in
most Districts in the country.
A District Court is presided over by a Magistrate.

Common Law in Ghana

Article 11 (2) of the 1992 Constitution provides the common law as a source of law in Ghana. The
common law is defined to include the rules 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.

The Rules Generally Known as Common Law

This is a reference to the judge-made law that propelled the English legal system and those of its
colonies such as Ghana. In Ghana, present-day British decisions on issues unaffected by statute
may be cited as persuasive authority/precedent.

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566
For some time, even outmoded British statutes which were part of the received law as “Statutes
of general application” as of July 24th, 1874, under the erstwhile Supreme Court Ordinance of
1876 were applicable in Ghana.

The Rules Generally Known as Equity

This is a reference to the English doctrines of equity as they have evolved in England and Ghana.

Maxims of Equity
Fairness, justice, good conscience and equality – these precepts are the base of the law of Equity.
Equity boarders on practical realities. The court of chancery or the court of equity is different from
the court of common law.

Where there is conflict between the courts of common law and Equity, Equity prevails. Equity,
natural justice and good conscience are interrelated.

Equity means fairness. The maxims are only applied when the court deems it necessary. It is
more of a conscience based approach.

Equity is generally applied when dealing with defences or looking for equity based resolutions
such as Specific performance, injunctions, law of Trust, quantum meirut – where there is no
existing pre-contractual agreement, but a party has rendered his/her services; and generally
where there is a need of fairness; such that it is such that normal conscience will have to be
applied.

• equity acts on the conscience;

 equity acts * in personam; -- it acts personal in nature

• equity aids the vigilant; -- you should act timeously or you should mitigate your losses. If
you do not act on a matter timeously, you may seem to have acquiesced (consented/agreed/in
support). In short delay defeats equity. Equity aids the vigilant not the indolent.

• equity will not suffer a wrong without a remedy (i.e. equity will not allow a person whom
it considers as having a good claim to be denied the right to sue);

• equity follows the law (i.e. equity follows the rules of common law unless there is a good
reason to the contrary); ---- equity follows the provisions of the law, unless in exceptional
cases. Equity does not contradict the law. Equity follows the law but not slavishly.

• equity looks at the intent not at the form (i.e. equity looks to the reality of what was
intended rather than the way in which it is expressed); --- it looks to substances (ie the content)
rather than the lables you place on things, legal formality will not be required. This maxims
allows the judge to interpret the intentions of the parties if the terms are not recorded properly.

• where the equities are equal, the earlier in time prevails (i.e. where rights are equal in
worth or value, the earlier right created takes precedence over the later);

• he who seeks equity must do equity; --- equitable relief will be extended to defendants or
parties if you are looking to get a specific performance for instance you should have done the
required.

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566
 • he who comes to equity must come with clean hands (see equitable remedies); if you
seek equity you must show honesty on your part of the contract
• equality is equity; -- equity puts the litigating parties on an equal level so far as
their rights and liabilities are concerned. It ensures impartiality and equality.
Parties in a case or contract would be treated equally. For instance, where parties
are in partnership
If two or more people come together to run a business as partners, based on equity, property
acquired will be deemed as being held in Tenancy in common other than Joint Tenancy. Tenancy
in common means upon demise of a partner, the existing partner will hold that portion of the
property in trust for the surving person of the deceased partner. Joint Tenancy means upon
demise of a partner, his portion automatically goes to the surviving Partner. Survivorship rule.

• equity considers as done that which ought to be done (see conversion); --- applied in
contract where it is clear a contract exists between the parties (written or unwritten) e.g.
quantum meirut, walshes v. Lonsdon a contract of sale is as good as a Deed.

• equity imputes an intent to fulfil an obligation;

• equity will not assist a volunteer.

Subsidiary or Subordinate Legislation

The 1992 Constitution provides under Article 11(7) that subsidiary legislation is part of the laws
of Ghana. The Constitution provides further that any Order, Rule or Regulation made by a person
or authority under a power conferred by the Constitution or any other law, shall be laid before
Parliament, published in the Gazette and comes into force after twenty-one sitting days of
Parliament, unless two-thirds or more members of Parliament vote to annul it.

Subsidiary legislation in Ghana include legislative instruments (L.I), executive instruments

(E.I), constitutional instruments (C.I) and Regulatory Notices issued by (MDAs) Ministries,
government Departments and Agencies.

According to the Statutory Instruments Act 1959 (Act 52), the Interpretation Act, 2009 (Act 792),
and the Statutory Instruments (Amendment) Act, 1997 (Act 539), a statutory instrument is an
instrument made, whether directly or indirectly, under a power conferred by an enactment/the
parent law). Example the Income Tax Act, 2015 (Act 896) is the statututory enactment or the
parent law; power is given to the Minister responsible to make Regulations for related matters
under the Act 896 (see section 127). Consequent of this there exists the Legislative Instrument,
L.I. 1224 (Income Tax Regulations, 2016), which is a statutory instrument. The L.I. to the Value
Added Tax Act, 2013 (Act 870) is L.I. 2243 etc. these L.I.s are referred to as Regulations.

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566
Article 295 of the 1992 Constitution defines an enactment to include an Act of Parliament, a
Decree, a Law or a constitutional instrument, or a statutory instrument or any provision thereof.

Section 4 of the Statutory Instrument Act, 1959, as amended, defines a legislative instrument (L.I)
as a statutory instrument declared by the Attorney-General to be legislative in character.

Section 5 of the Statutory Instruments Act, 1959, as amended, states that statutory instruments
other than legislative instruments or instruments of a judicial character (some of the Constitutional
Instruments) shall be known as Executive Instruments.

Constitutional Instruments (C.I.) are instruments made under a power conferred by the
Constitution (Article 295 of the 1992 Constitution)

Working with Court Cases

When reading a case in the law reports 4 elements should be identified:

• the facts - the circumstances that gave rise to the law suit
• the legal issue - the legal problem the judge must resolve
• the court's decision- the judge's answer to the problem
• the court's reasoning - the basis and rationale for the decision; this ought to be distinguished
from obiter dicta, which are those arguments in the reasoning that do not directly support the
decision.

Ratio decidendi and Obiter dicta.

In making a decision on a matter, the judge looks at the material FACTs presented by the parties;
The judge then then two basis which are the Reasoning or ratio decidendi of the he is inclined to
apply to the facts to reach a decision. This reasoning or ratio are formulated by the judge based
on the existing laws.

Ratio decidendi of a judgment may be defined as the principles of law formulated by the Judge
for the purpose of deciding/determining the matter/issue/problem before the judge.
The second may be obiter dicta.

Ratio decidendi is the legal reason or ground for a judicial decision. It is the ratio decidendiof a
case which will be binding on later courts under the system of judicial precedent.

Obiter dicta means observations made by the Judge. Obiter dicta are not essential for the decision
reached. It is a latin phrase meaning something “said by the way or incidentally.” Obiter ostensibly
is unnecessary to the decision, it may be an expression of a viewpoint or sentiments of the Judge
which has no binding effect.

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566
Orbiter dicta are statements which are not part of the ratio. These are sayings by the way that
alone cannot be the basis for a judicial decision. Orbiter dicta are not binding as precedents.
Orbiter dicta support the ratio.

The doctrine of Precedence:

It is the process of applying the reasoning or ratio from earlier cases to similar cases before the
court, that is, the judges, will follow the decisions in previous cases.
Precedence can be binding or persuasive.
Precedence is binding when the decision is made by a court higher in hierarchy and therefore
superior. While a lower court, cannot question the decisions of a court of superior/higher authority,
it is not bound to accept the judgment of a court of equal status.

Persuasive precedence is those that do not intrinsically establish the law, but may be followed by
the courts, because they are considered truly to enunciate the law. There is no obligation to follow
them. e.g, the decision of inferior courts on superior courts or foreign judgments.

Judicial precedent helps to develop the law by that it is a source of law.

What Is Stare Decisis?

Stare decisis is a legal doctrine that obligates courts to follow historical decided cases/precedents
when making a ruling on a similar case.

Stare decisis ensures that cases with similar scenarios and facts are approached in the same
way. Simply put, it binds courts to follow legal precedents set by previous decisions.
Stare decisis is a Latin term meaning "to stand by that which is decided."

PART TWO

Labour Law.

Discuss Contract OF service and Contract FOR service

Treat provisions in the Labour Act, 2003 (Act 651)

Discuss related Past Questions.

By: Maame Birago Yeboah, Esq., Head of Firm at Ark Legal Consult, 0206363136, 0277555566