GHANA LEGAL SYSTEM
ASSIGNMENT
QUESTIONS
1. Differentiate between LIs CIs and EIs.
2. Brief the case of Tsatsu Tsikata v The Republic
3. Why is the Judicature Act 1873-75?
4. Discuss the effect of the significance of the Judicature Act
5. What are the sources of law?
6. Brief the case of Ex Parte Bombelli
7. Brief the case of Tuffuor v Attorney General
ANSWERS
1. The LIs, CIs, and EIs are all statutory instruments which are conferred by an act of
parliament. Statutory instruments refer to instruments made (whether directly or
indirectly) under a power conferred by an enactment or an act of Parliament. Under
the Interpretation Act 2009(Act 792), an executive instrument is an instrument which
is of an administrative character or an executive character and not of judicial character
or legislative character. A legislative instrument is one of legislative character while a
constitutional instrument is an instrument made pursuant to a power conferred in that
behalf of the constitutions.
Executive instruments are formal documents issued by the head of state or
government, exercising executive authority. They are used to implement policies,
laws, and decisions, and to delegate authority to various officials or bodies. They
come in the form of executive orders which are issued to outline policies, procedures,
or actions to be taken ; presidential decrees which are formal declarations made by the
head of state , often to establish new policies, laws or regulations; proclamations
which are public announcements made by the head of state, often declaring public
holidays, national emergencies, or other significant events; directives as in
instructions issued by the government outlining specific actions or policies to be
implemented and lastly regulations such as rules and guidelines issued by the
executive branch implementing laws and policies. They have certain characteristics
which are peculiar to them. An executive instrument is a formal document often
bearing the seal or signature of the head of state or government. It is authoritative in
the sense that it carries the weight of executive authority, making them relevant or
binding on officials and citizens. Lastly, they are public in that they are publicized
through official gazettes, government websites, or other channels. An example is E.I.
1 of 2020: Imposition of Restrictions Act, 2020. Another example is the Bawku
Municipality Instrument 2008(EI 15).
Legislative are formal documents issued by the President or other authorized
officials, exercising legislative authority. They are used to implement laws,
regulations, and policies and have the force of law. Generally, such an instrument will
determine or alter the law, rather than applying it to specific or a particular case and
has a direct or indirect effect affecting privilege or interest, imposing an obligation,
creating a right or varying or removing an obligation or right. It is also formal,
authoritative and public in character. An example is LI 2248 of 2016:Local
Governance (District Assemblies)Instrument,2016 which established the districts and
their boundaries.
Constitutional instruments are made under a power conferred by the constitution. In
practice, Constitutional Instruments have followed statutory instruments with respect
to format and other drafting style. Like statutory instruments they are subject to
parliamentary scrutiny under article 11(7) of the 11992 constitution. They must be
construed as one with the constitution. It outlines the fundamental principles,
structures, and powers of a government.
In conclusion, constitutional instruments establish the foundational framework for
governance, legislative instruments make laws and regulations within the framework
established by the constitutional instrument whereas executive instruments implement
laws and policies, exercising delegated authority from the legislature or constitutional
instrument.
2. Tsatsu Tsikata vs The Republic 2011 GHASC 3
Facts: The appellant, Mr. Tsatsu Tsikata one-time the Chief Executive of Ghana
National Petroleum Corporation was standing trial on 3 counts for willfully causing
financial loss to the state contrary to section 179A(3)(a) of the Criminal Code of
1960, Act 29; and on one count for intentionally misapplying public property contrary
to section 1(2) of the Public Property Protection Decree 1977, SMCD140. In the
course of the trial, the appellant obtained a subpoena by order of the trial judge,
[Link] Abban JA for the Country Director of the IFC to appear before the
court on the 15th of December 2005 in respect to certain documents which the
appellant claimed he needed to aid his case. Pursuant to the subpoena but before its
service, the IFC through their counsel appeared before the court and objected the
issuance of the subpoena claiming diplomatic immunity of the IFC from legal
proceedings which was sustained by the trial judge.
Issue: Whether or not a claim for diplomatic immunity from legal proceedings over-
rides the constitutional right of an accused person to fair trial under article 19(2)(g) of
the 1992 Constitution.
Holding: In a majority dictum of three against two, the Supreme Court held that the
Country Director of the IFC enjoys diplomatic immunity and that the constitutional
right of the appellant to fair hearing and trial under article 19(2)(g) is not absolute but
subject to the right of others and to public interest under article 12(2) both of the 1992
Constitution. Since article 19(2)(g) had to be read in conjunction with article 12(2) of
the 1992 Constitution, the decision of the employee of the IFC not to waive his
immunity does not make him a compellable witness.
3. Judicature Acts of 1873-1875
The Judicature Acts of 1873-1875 were passed by the British Parliament to reorganize
the country’s higher court system and address inefficiencies in the legal system. From
the principle of stare decisis a body of law emerged which were used to supplement
and sometimes correct the common law. As equity became popular, there started to be
friction between the doctrine of equity and the common law. The Acts merged the
separate common law courts and equity(Court of Chancery) courts into the Supreme
Court of Judicature, which included the High Court of Justice and the Court of Appeal
to diffuse the tension between the common law and equity. This helped address the
inefficiencies that arose from litigating the same case across multiple courts.
4. Effect of the significance of the Judicature Acts
The acts unified the court system. These acts merged the separate common law and
equity courts and this reduced the number of courts with specific jurisdiction powers.
Thus, reducing court inefficiency. The acts established the High Court of Justice
which had five divisions; Queen’s Bench, Chancery Division, Common Pleas
Division, Exchequer Division, and Probate, Divorce and Admiralty Division. The acts
also established the principle of equity prevailing over common law. It established
that if there was conflict between equity and common law equity will prevail.
However, the two principles remained separate bodies. In the common law courts, one
could only seek damages and the equitable remedy was specific performance. The
introduction of the Judicature Acts made it possible for one to seek both damages and
specific performance in the same suit. The Acts were a response to the needs of
Britain’s industrial, commercial, and financial interests, who found that complex
cases often required different courts.
5. Sources of law
The sources of Ghanaian law can be found in article 11(1) of the 1992 constitution.
The provision is as follows;
The laws of Ghana shall comprise-
(a) this Constitution;
(b) enactments made by or under the authority of the Parliament established by this
Constitution;
(c) any Orders, Rules, Regulations made by any person or authority under a power
conferred by this Constitution;
(d) the existing law; and
(e) the common law.
From article 1(2) of the 1992 Constitution, the constitution is the supreme law of
Ghana and any other law found to be inconsistent with any provision of this
Constitution shall, to the extent of the inconsistency be void. This shows that all the
other sources of law spelt out by article 11(1) must conform to the constitution. The
Supreme Court has been given the power to strike out any such law under article 2(1)
and 130(1) of the 1992 Constitution. Parliament has also been given the power to
make laws which will fall under article 11(1)(b). This power is conferred on the
Parliament by article 106(1). Orders, Rules, and Regulations may be in the form of
subsidiary legislation such as Executive Instruments, Legislative Instruments and
Constitutional Instruments. Existing law refers to the laws which were in force before
the 1992 constitution as stated in article 11(4) and (5). The common law of Ghana
refer to the rules of law generally known as the common law, the rules generally
known as the doctrine of equity and the rules of customary law including those
determined by the Superior Court of Judicature. Article 11(2). These are considered
generally as sources of law. Other sources may be case laws and textbooks. Case laws
provide precedence and principles of law.
6. Republic v The Minister For Interior Ex Parte Bombelli
Facts: Mr. Bombelli was an Italian national who entered Ghana in 1975 and was
given a resident permit which had been renewed at appropriate times. The applicant
was in Ghana with his wife and thirteen year old son. He was a part – owner of
Aurum Industries Ltd. operating in the country and he brought equipment to thye
value of eight hundred thousand cedis into the country believing that if he remained
law abiding he would be permitted to remain in the country and that he conducted
himself lawfully. Sometime in 1979, the applicant bought cartridges and consigned
them from Italy to Tema. In March 1980, he was invited by the police and questioned
about the cartridges and was informed that the goods had been collected from the
purchaser and confiscated on the orders of the Minister of Interior. After explaining
how he came by these cartridges, he was allowed to go about his business. On the 14th
of July 1980, the applicant was told that a deportation order had been made against
him and thenpolice collected him from his the next day to the Legon Police Station
where he spent one night. The next day, he was made to go home and collect a few
clothes and his son after which he was escorted to the Aflao border under four armed
guards. On 16 July, the applicant read in the Daily Graphic that he and his family
were deported for importing unlawfully, firearms into the country. He denied all these
accusations. The applicant also learnt that he was deported under the Enzo Bombelli
Deportation Order 1980 (EI 27 of 1980). He contends that this enactment is not valid
because it came into force the same day of its enactment without being laid before
Parliament for 21 sitting days.
Issues: a. Whether the “order” falls within the meaning of “Orders” as contemplated
by article 4(7) of the 1979 constitution and as a result must be gazette and laid before
Parliament 21 sitting days before it becomes effective.
b. Whether by the provisions of article 214 of the Constitution 1979, the
minister was required to act judicially in ordering the deportation of an alien.
Holding: [Link] court held that using the noscitur a sociis rule, the “order” did not fall
under the meaning of “Orders” in article 4(7) of the 1979 Constitution as it was a
command instead of a “Rule or Regulation” and as such it did not need to be laid
before Parliament.
b. The court held that the minister exercised a purely executive function in
ordering the deportation of an alien which should not import any duty or act
judicially.
7. Tuffuor v Attorney General
Facts: The plaintiff, Dr. Kwame Amoako Tuffuor, a lecturer at the University of
Science and Technology, Kumasi, by his writ complains that on 16 July 1980, the
President of the Republic in consultation with the Judicial Council purported to
nominate Mr. Justice Fred Akwasi Apaloo to the office of Chief Justice and for
approval by Parliament. That on 16 August 1980 Parliament purported to vet the said
Mr. Fred Akwasi Apaloo in Parliament and subsequently rejected his nomination. The
plaintiff claims that upon a true and proper construction of the Constitution, each of
the various acts of the President, the Judicial Council and Parliament was unlawful
and violated the Constitution and is void. Mr. Apaloo an incumbent Chief Justice
before the coming into force of the Constitution of the Third Republic, was deemed to
have been appointed into his equivalent office to have continuity between the old and
new orders as stated in article 127(8) and (9) of the Constitution, 1979.
Issues: a. Whether the court has jurisdiction under article 118(1)(a) of the constitution
to entertain the present writ.
b. Whether the plaintiff has an interest in the present writ.
c. Whether the Speaker is a right party to the suit
Holding: a. the court held that it had jurisdiction under article 118(1)(a) of the
constitution to entertain the present writ.
b. The court held that every citizen of Ghana has a constitutional right to
seek for an interpretation or enforcement of the constitution.
c. The Speaker ought not to be a party to the present proceedings and was
accordingly discharged as the defendant.
The court held that the incumbent Chief Justice in the person of Mr. Fred Akwasi
Apaloo continue to be Chief Justice under the Constitution, 1979.
References: The Ghana Legal System : Emmanuel Kwabena Quansah. P 115-117
Article 11 of 1992 Constitution
GHASC 3(2011)
GLR 204-219
[Link]
GLR 637-667