SOURCES OF LAW IN GHANA [1983-86] VOL.

XV RGL 129—151

BIMPONG-BUTA S. Y.

INTRODUCTION

THE question as to what the law of Ghana is implies the larger jurisprudential question of what is law? No
society can function smoothly and effectively without law. Society without law breeds anarchy and chaos. If
law is a sine qua non for the good governance of society then one would have thought that the question:
What is law? should lend itself to an easy answer. But there is no easy and simple answer to this vexed
question which has, for decades, bedevilled students of jurisprudence.1 As one academic writer puts it:

“What is Law?” has been asked by priests and poets, philosophers and Kings, by masses no less than
prophets. A host of answers might be given, yet the answer to the question remains one of the most
persistent and elusive problems in the whole range of thought. For one may well view the entire gamut of
human life, both in thought and in action, as being comprised within the concept Law.”2

It is not therefore the purpose of this article to plunge into any extensive discussion of various theories of
law with a view to raising questions of jurisprudence in the context of what constitutes law in Ghana.3 It is
however, perhaps, pertinent to briefly raise the question whether we accept as satisfactory in the context of
Ghana Law, the various theories of law. Which theory of law truly reflects the law in Ghana? Is it the theory
as propounded by the exponents of the historical school of jurisprudence4 natural law5; positive law6;
sociological jurisprudence7 which lays emphasis on the impact of social phenomena on the evolution of
legal rules and legal systems; the realist school which says law is, in fact, what the judge decides8 or the
Marxist-Leninist school which sees law as the legal expression of property relations in society?9

To those of us who might wish to view customary law as the true law, we might accept the definition of law
in terms of the historical school of jurisprudence as first enunciated by the German von Savigny. To him the
rules and norms governing society “derive from their history, their environmental conditions, and their
common consciousness or volksgeist.10 This definition could be criticised as being inadequate and
unsatisfactory in a modern state where a large proportion of what constitutes law is founded on legislation
most of which cannot seriously be regarded as derived from the peoples' common consciousness.
However, those of us who believe that judges must be more concerned with the justice of the case and not
the law per se, may readily welcome the exponents of the Natural Law School, St Thomas Aquinas and St
Augustine who argue that “what is not just cannot be law.” To them, natural Law is a “higher Law” or the law
of nature “binding upon human societies in the absence of, or as a supplement to positive law.”11 No
wonder the founding fathers of the American Revolution were very much influenced by the Natural Law
concept of law leading to the American Declaration of Independence and the Constitution.12 And as has
been rightly observed, the Natural Law School of jurisprudence was very much invoked by the American
civil rights movements of the 1950‟s and 1960‟s notably Rev Dr Martin Luther King who advocated the
disobedience of “unjust laws.”13

Whilst it must be said that none of the above stated theories of law satisfactorily answers the question "what
is law?" they in fact represent different facets of the concept of law. It appears that the theory which is more
relevant and less abstruse in the light of our modern ideas of law is the positive approach: Law is the
command or if you like, rules and regulations backed by sanctions of a superior political authority, the
PNDC in the context of Ghana (the sovereign as John Austin would describe it) which must be obeyed by
the people or society.

It must be said that the question “what is the law of Ghana” like the larger jurisprudential question what is
law? does not lend itself to an easy answer. And as has been observed neither the courts nor constitution-
makers have found it easy to answer the question.14 However, it must be pointed out that what constituted
law in the former Gold Coast Colony and what now falls within the rubric—Laws of Ghana, has been and
still is the outcome or compromise of the conflict between the received English law and the indigenous
customary law. An example of this conflict as to the applicable law arose in a case for a petition for divorce
which came before Macleod J. In Des Bordes v Des Bordes15 the question was: What was the applicable
law? Was it the English law of divorce in force on 24 July 1874 or the customary law of divorce? The court
resolved the conflict in favour of the English law of divorce by virtue of section 16 of the Supreme Court
Ordinance, 1876,16 and dissolved the marriage of the parties both of whom were natives of the Gold Coast
Colony. Before arriving at that conclusion, his lordship said:

“Can the parties to this marriage, then, appeal to the native law and custom of their own country? Certainly
not; for by the most unequivocal act of going to the whiteman's church to be married, they put native law
and custom from [sic] them.”17
In so holding, the court gave judicial blessing to the introduction of the dual systems of law introduced in the
Gold Coast Colony for the first time by the Supreme Court Ordinance, 1876, s 14 of which provided:

“The Common Law, the doctrines of equity, and the statutes of general application which were in force in
England at the date when the Colony obtained a local legislature, that is to say, on the 24th day of July,
1874, shall be in force within the jurisdiction of the Court.”18

But under section 17 of the Ordinance, the Imperial laws were to be applied subject to local circumstances
and conditions including any existing or future local legislation.19 And under section 18, the court was to
apply and administer the common law concurrently with equity and where there was a conflict between the
rules of common law and equity in respect of the same subject-matter, the doctrines of equity were to
prevail. And more importantly, under section 19 of the 1876 Ordinance the Supreme Court was to apply in
suitable cases, local laws and customs where they were not “repugnant to justice equity and good
conscience.”20

Not surprisingly the dual system of laws—the received English law on the one hand, and the customary law
and local legislation on the other which compendiously constituted the laws of Ghana, introduced by the
1876 Supreme Court Ordinance, has been continued and fortified by all the post-Independence
Constitutions of Ghana.21 And the laws of Ghana as laid down by the 1966, 1969, 1979 Constitutions have
been continued in force by the Proclamations (subject to any contrary provisions thereof) which came into
force immediately after the overthrow of the civilian constitutional governments.22 Thus the question what
are the laws of Ghana is answered by article 4 of the Constitution, 1979,23 which stated the laws of Ghana
as comprising: (i) the Constitution; (ii) enactments, rules, orders and regulations made as authorised by the
Constitution; (iii) the existing law; and (iv) the common law. It is proposed to examine each of these sources
of law in turn.

The Constitution

Following the establishment as from 31 December 1981 of the Government of the Provisional National
Defence Council (PNDC), the 1979 Constitution was at first suspended24 and later abolished.25
Notwithstanding the abrogation of the Constitution, however, certain provisions have been continued in
force subject to modifications necessary to give effect to the provisions of the Proclamation.26 For example,
the courts in existence under the Constitution are still in existence with the same powers, duties and
functions conferred on them by the Constitution.27 Again all the chieftaincy tribunals established under the
1979 Constitution have been continued in existence with the same functions, composition and powers
conferred upon them by the Constitution.28

An issue which must be addressed is: What is the supreme law of Ghana following the abrogation of the
Constitution, 1979? It should be remembered that article 1 (2) of the Constitution stated that it “shall be the
Supreme Law of Ghana and any other law found to be inconsistent with any provision ... shall, to the extent
of the inconsistency, be void and of no effect.” The question raised is answered by section 4(3) of the 1981
Proclamation which provides in clear terms that:

“Where any enactment or rule of law in force immediately before the 31st day of December, 1981, is in
conflict with any provision of any law made by the Council, the said provision shall prevail over such
enactment or rule of law and to the extent to which the enactment or rule of law conflicts with the provision
of such law, that enactment or rule of law shall be deemed to be amended by such Law.”29

The issue as to what constitutes the supreme law of Ghana was raised in In re Yendi Skin Affairs; Yakubu II
v Abudulai.30 In resisting an application for stay of execution pending an appeal to the Supreme Court
against a judgment of the Court of Appeal,31 counsel for the respondent contended that the applicant had
no right of appeal to the Supreme Court under the applicable law, Yendi Skin Affairs (Appeal) Law, 1984
(PNDCL 86), s 1 (2) which provided:

“1. (2) Where such person is aggrieved by the decision of the Court of Appeal he may, subject to rules of
procedure for the time being applicable in the Supreme Court, appeal to the Supreme Court against such
decision.”

It was argued that the expression “such person” in section 1 (2) of PNDCL 86 was referable only to a
person who had appealed against the findings of the Ollennu Committee of Inquiry in terms of section 1(1)
of PNDCL 86 and that it was only that person whom section 1(2) had granted further right of appeal to the
Supreme Court. And since the applicant admittedly, had not appealed against the findings of the committee,
he fell outside the expression “such person” within the meaning of section 1 (2) of the law. In answer to that
argument, counsel for the applicant argued that notwithstanding the provisions of section 1(2) of PNDCL
86, the applicant had a right of appeal under article 117 (1)(a) of the Constitution, 1979, which entitled any
person aggrieved by the judgment of the Court of Appeal, to appeal to the Supreme Court as of right
against that judgment.

The Court of Appeal had no difficulty in dismissing the argument of counsel for the applicant. It was held
that the words “such person” in PNDCL 86, s 1 (2) could only refer to the person who had appealed against
the findings of the Ollennu Committee of Inquiry in terms of section 1 (1) of the Law and no other person
such as the applicant; that on the face of it, the provisions of PNDCL 86, s 1 (2) were in conflict with the
provisions of article 117 (1) (a) of the Constitution, 1979, and therefore the provisions of section 1 (2) of
PNDCL 86 ought to prevail in view of section 4 (3) of the PNDC Proclamation, 1981.

A similar conclusion had in 1981 been reached in Fattal v Minister for Internal Affairs32 where the Supreme
Court held that the effect of the National Redemption Council Proclamation, 1972, was to make the judicial
power guaranteed by the Constitution, 1969, and all other existing enactments subject to Decrees made by
the National Redemption Council as the supreme law making body. The Supreme Court therefore held that
the jurisdiction of the High Court under section 10 of the Ghana Nationality Act, 1971,33 was subject to the
Ghana Nationality (Amendment) Decree, 1978,34 and therefore section 10 of the 1971 Act (Act 361) must
be deemed to have been amended by the 1978 Decree (SMCD 172) which must be construed as prevailing
over section 10 of Act 361 by virtue of section 3 (3) of the 1972 Proclamation. The Supreme Court therefore
held that it had no power to declare SMCD 172 as ultra vires and void.

In the light of the above clear statement of the law it could be said that the PNDC is the supreme law-
making body in Ghana, the sovereign as John Austin would describe it; its enactment known as Law are
supreme and prevail over all the existing laws—statutory, common law or otherwise—which are in conflict
with either such laws or any earlier law promulgated by the PNDC itself.35

Enactments and the Existing Law

Legislation passed under the 1979 Constitution, and all subsidiary legislation, i.e. legislative instruments,
executive instruments and constitutional instruments,36 made by a person or a body of persons in exercise
of powers conferred by the Constitution, 1979, are of course part of the laws of Ghana. And the existing law
being part of the laws of Ghana has been defined as comprising “the written and unwritten laws of Ghana
as they existed immediately before the coming into force of the Constitution.”37 Such unwritten laws must
be construed to include decisions of the courts. Those decisions are unwritten because they have not been
codified. But they contain principles of law which are applicable to relevant cases coming before the courts.
The existing law has also been defined to include “any Act, Decree or statutory instrument issued or made
before” the coming into force of the 1979 Constitution.38 In brief, the present statute law in Ghana
comprises the following enactments and subsidiary legislation issued thereunder;

(i) Laws of the Gold Coast (1951 Rev); (ii) the 1952-57 Ordinances of the Gold Coast; (iii) 1957-60 Acts of
Ghana; (iv) 1960-66 Acts of the First Republic; (v) 1966-69 Decrees of National Liberation Council; (vi)
1969-72 Acts of the Second Republic; (vii) the 1972-79 Decrees of the National Redemption Council and
the Supreme Military Council; (viii) 1979 Decrees of the AFRC; (ix) the 1919-81 Acts of the Third Republic;
and (x) the Laws made by the PNDC since 31 December 1981.

It cannot be emphasized too strongly that the existing law as herein defined would remain in force subject
to the provisions of the 1981 PNDC Proclamation as amended by PNDCL 42 until revoked, repealed or
amended by the PNDC.39 And these laws would remain in force as part of the existing law so long as (as
earlier stated) they are not inconsistent or in conflict with any law made by the PNDC in pursuance of its
legislative powers under section 4 (1) of the 1981 Proclamation. Thus in Kangah v Kyere40 the Supreme
Court held that the Chieftaincy Act, 1971,41 would be construed as part of the existing law and in so far as
it was not inconsistent with any provisions of the 1979 Constitution, its operation would not be affected by
the Constitution.42

The Common Law

The common law as a source of law in Ghana has been defined as comprising:

“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.”43

Before examining the term “rules of customary law” which have been defined as falling within the term “the
common law of Ghana” it is desirable to throw further light on what article 4 (2) of the 1979 Constitution
refers to as “the rules generally known as the common law” and “the rules generally known as the doctrines
of equity.”

These rules, in fact, mean the English common law and equity. And what constitutes common law and
equity can best be briefly explained from the historical perspective. The common law represents a body of
laws developed in England as from the twelfth century in the King's Courts and the term “common law” as
applied by the King's Courts was used to distinguish it from the law applied by the ecclesiastical courts.
Thus “the concept „common law‟ was adopted from the canon law of the Christian Church, which was the
common law of Christendom. The common law of the King's Courts was made by the royal justices from the
mass of customary law of the realm and became the common law of England.”44 And the distinguishing
characteristics of the common law as developed in England from the twelfth century to date are: (a) it is
judge-made law: the judge decides a given case or interprets a statute under the doctrine of judicial
precedent (which shall later be examined); and (b) it is practical and elastic and capable and susceptible to
change as the society changes and becomes more complex. It “is the readiness of the common law judges
to discard that which does not serve the public which has contributed to the survival and adoption of
common law, wholly or partly in so many lands.”45 Thus in the 1924 case—Prager v Blaitspiel Stamp and
Heacock, Ltd,46 the defendants acting as agents for the plaintiff, bought for him a large number of skins
including leopard cat skins. The defendants were unable to deliver the goods due to transport difficulties
caused by the First World War conditions. The defendants had to sell the goods because they were going
bad. They were later sued for conversion and the issue was whether they were entitled to rely on the
common law doctrines of necessity. The trial judge, McCardie J, cited dicta from previous common law
decisions47 to the effect that agency of necessity could not arise save in the case of a master of a ship and
of the acceptor of a bill of exchange for the honour of the drawer. He said:

“If the dicta I have cited be correct, then the defendants ... cannot justify their acts of sale. In my humble
opinion, however, those dicta are not the law today ...

The decisions I have already cited show that the dictum of Lord Esher in Gwillian v Twist is not the law of
today. Agency of necessity is not confined to shipmaster cases and to bills of exchange.”48

And in so holding, McCardie J summed up the object of English common law which is:

“to solve difficulties and adjust relations in social and commercial life. It must meet, so far as it can, sets of
fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with
changing or novel circumstances. Unless it can do that it fails in its function and declines in its dignity and
value.”49

It was this practical and elastic nature of the common law which led Mr. Justice Oliver Wendell Holmes in
1881 to write of the common law:

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent
moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which
judges share with their fellow-men have had a good deal more to do than syllogism in determining the rules
by which men should be governed.”50

And the third distinguishing character of the common law is: though it is not codified and remains an
unwritten law, it is based on legal principles of law expressed in written judgments of the courts—some
published in the law reports and others unpublished for various reasons.

As noted earlier, the definition of the common law in Ghana embraces not only the English common law as
above described but also the English doctrines of equity. These were rules developed by the Court of
Chancery established in the fifteenth century aimed at doing justice to parties not happy with the remedies
provided them by the common law. The doctrines of equity were therefore developed to mitigate the
harshness and rigours of the common law as applied in the King‟s Court. They were also, like the common
law, formulated and further developed in the light of precedents. For years the common law (as applied and
developed by the King‟s Courts) and equity also (as applied and developed by the Court of Chancery
headed by the Chancellor who was known as the “Keeper of the King's Conscience”) ran side by side until
the two rules of law were fused together in 1875 to be applied by one court, ie the Supreme Court of
Judicature.51 And so today in England the rules of common law and the doctrines of equity are applied by
all the courts as one body of laws in the light of precedents, ie cases previously decided by the courts.52

The fact that these English rules of common law and the doctrines of equity are applicable in Ghana as part
of the common law of Ghana (which as already noted, has been defined to include customary law) was in
1984 judicially emphasized by the Court of Appeal in In re Abotsi; Kwao v Nortey.53 The court held that the
equitable rules as developed in England particularly, the equitable rule that a trustee is in a fiduciary
capacity vis-a-vis a beneficiary and as such accountable to him are applicable in Ghana. In applying this
equitable rule to the facts of the case, the court held that the deceased's patrilineal family were fiduciaries
vis-a-vis the appellant, an infant, and were therefore accountable to him. The court per Apaloo CJ said:

“The judge seems to have thought that the appellant's right to the remedy of accounts can only be adjudged
under customary law rules. We cannot agree. The law permits his rights to be determined by equitable
principles, whatever may be the customary prescription on the matter.”

And in the subsequent Court of Appeal case of Amaning alias Angu v Angu II,54 the court dismissed the
argument of counsel for the appellant that since the appellant was holding the customary office of head of
family, only customary law and not the English equitable principles should govern his conduct. It was held
that accountability of head of family as regards family properties under his charge was governed by both
equitable and customary principles. In equating the head of family to a trustee (as the court did in In re
Abotsi) it was noted that just as a trust property was vested in the trustee for the benefit of the cestui que
trust so family property was vested in the head of family for the benefit of the members of the family. The
court gave further example of a head of family selling family property without the consent and concurrence
of the principal members of the family. Even though in those circumstances, the sale would be voidable, the
court pointed out that inordinate delay by the members of the family in repudiating the transaction would
give security to the purchaser by the application of the equitable doctrine of acquiescence despite the fact
that that prescription was unknown to customary law. In the words of Abban JA delivering the judgment of
the court:

“There is . . . no doubt whatsoever that equitable principles can always be invoked in any given situation
where the question calls for, no matter whether the subject-matter in question is family property or the
person whose conduct is called in question holds customary office, like the head of family. It is only where
the customary law is in conflict with equity that the latter will prevail.”

The reference to customary law by Apaloo CJ in Kwao v Nortey and by Abban JA in Amaning alias Angu v
Angu II (Supra) appropriately leads us to the discussion of customary law as a source of law.

Customary Law

Customary rules and practices of the various ethnic communities in Ghana form part of the law of Ghana.
The acquisition of rights in land; matters involving the family relationship: husband and wife, child and
parent, marriage and divorce and chieftaincy—the living embodiment of the country's cultural heritage—to
cite a few examples, are all mostly governed by customary rules and practices.

Thus the present law defines customary law as “the rules of law which by custom are applicable to
particular communities in Ghana.”55 This definition is similar to the definition of customary law in Nigeria:
“Customary law consists of customs accepted by members of a community as binding upon them.”56 The
Ghana definition of customary law is also similar to that of Zimbabwe; ie “The customary law of the
indigenous people of Zimbabwe or any section thereof.”57

It should be observed that before the establishment of the First Republic on 1 July 1960, the legal status of
the customary rules and practices as distinct from the received English law was that: They were to be
applied and enforced by the courts as earlier noted, if they were not “repugnant to natural justice, equity
and good conscience.”58 The law before 1960 thus provided that the existence or otherwise of an alleged
customary law was a question of fact and that meant that any customary rule or practice, alleged as
constituting customary law, had to pass the repugnancy test. However, since 1960 customary laws and
practices of our various communities have been regarded as part of the laws of Ghana, no longer as a
question of fact. As the law puts it, “Any question as to the existence or content of a rule of customary law is
a question of law for the Court and not a question of fact.”59 And the law provides that if the court
entertains any doubt as to the existence or content of the customary law in any proceedings, it may, after
consulting such reported cases, textbooks and other sources as might be appropriate, adjourn the
proceedings to enable it hold an inquiry attended by persons possessing knowledge of the customary
law.60

And the issue of internal conflict of laws raised when determining the applicable law (customary law or
English common law) to an issue arising out of any transaction or situation is governed by the rules laid
down in section 49 of the Courts Act, 197161 which provides:

“49. (1) Subject to the provisions of this Act and any other enactment, the Court when determining the law
applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in
which references to the personal law of a person are references to the system of customary law to which he
is subject or to the common law where he is not subject to any system of customary law:

Rule 1. An issue arising out of a transaction shall be determined according to the system of law intended by
the parties to the transaction to govern the issue or the system of law which the parties may, from the
nature or form of the transaction be taken to have intended to govern the issue.

Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the
devolution of a person's estate shall be the personal law of that person.

Rule 3. In the absence of any intention to the contrary, the law applicable to an issue as to title between
persons who trace their claims from one person or group of persons or from different persons all having the
same personal law, shall be the personal law of that person or those persons.

Rule 4. In applying Rules 2 and 3 to disputes relating to titles to land due regard shall be had to any
overriding provisions of the law of the place in which the land is situated.

Rule 5. Subject to the foregoing Rules, the law applicable to any issue arising between two or more persons
shall, where they are subject to the same personal law, be that law; and where they are not subject to the
same personal law, the Court shall apply the relevant rules of their different systems of personal law to
achieve a result conformable to natural, justice, equity and good conscience.

Rule 6. In determining any issue to which the foregoing Rules do not apply, the Court shall apply such
principles of the common law, or customary law, or both, as will do substantial justice between the parties,
having regard to equity and good conscience.

Rule 7. Subject to any directions that the Supreme Court may give in exercise of its powers under article
107 of the Constitution, in the determination of any issue arising from the common law or customary law the
Court may adopt, develop and apply such remedies from any system of law (whether Ghanaian or non-
Ghanaian) as appear to the Court to be efficacious and to meet the requirements of justice, equity and good
conscience.”62

The application of rules 1 and 5 was considered by the High Court in Ackaah v Asane63 in determining the
applicable law to a transaction for the sale of goods on credit entered into by two Ghanaians one of whom
was an illiterate. The court found that the agreement for the sale of a lorry was prepared in the Sefwi District
of Ghana by a licensed letter-writer and that the terms of the agreement were inconsistent with the usual
provisions of a hire-purchase contract or the common law credit sale. In the circumstances it was held that
it was reasonable to infer that the particular system of law which the parties intended to apply to the sale
transaction was the customary law of the Sefwi people and that that law was not different from the custom
prevailing among the other Akan speaking people. It was therefore held that their personal law was the
customary law operating in the area where the transaction was entered into and that law governed the
transaction and not English law or the Limitation Act of 1623 as argued by counsel for the defendant.

And what is the distinguishing character or feature of the customary law as found by a court to be
applicable to a given transaction? Like the English common law—it is flexible and changeable in the light of
changing social and economic conditions in society. In the words of Osborne CJ in the Nigerian case of
Lewis v Bankole:

“One of the most striking features of West African native custom is its flexibility; it appears to have been
subject to motives of expediency; and it shows an unquestionable adaptability to altered circumstances
without entirely losing its character.”64

Not surprisingly, the Ghana Court of Appeal in Attah v Esson65 disaffirmed a rule of customary law which
permitted a customary landlord to enter onto agricultural land granted under an agricultural customary
tenancy to gather the fruits of economic trees like palm trees planted by the tenant. The court held that the
customary rule had become outdated and ceased to be law as soon as conditions in society changed so as
to make it unreasonable for persons to conduct themselves by it. The court per Amissah JA said:

“No proposition would be more out of accord with the hopes and aspirations of Ghanaians today than that a
landlord who has spent no effort whatsoever towards that end should enter and collect at will the fruits of
the labour of his tenant. Who amongst us would today be prepared to take land to cultivate on that basis?
We cannot imagine an arrangement more ruinous of agricultural enterprise, subversive of expansion and
consequently prejudicial to national development than that.”66

In the light of the Court of Appeal decision in Attah v Esson, it could be said that the Ghana courts would
readily disaffirm and pronounce any customary rules and practices as invalid and unenforceable where they
have become obnoxious and unreasonable when measured against present day socio-economic conditions
in Ghana.67 It is for this reason that the 1982 decision of the High Court in Abaye v Akotia68 is, to say the
least, very regrettable. The plaintiff in this case sued claiming ¢1,000 damages being the cost of his
backyard garden crops, ie plantains, yams and sugar cane, unreasonably destroyed by the defendants.
Admittedly, the farm was destroyed by the defendants. But they pleaded not liable. They sought refuge in
an alleged Western Nzima customary practice generally accepted by the community, namely: the right to go
on a rampage destroying farms and food crops therein during the opening celebration of the funeral rites of
a chief—Tufuhene. In dismissing the claim, the trial magistrate grade II said, “There is no dispute of the fact
that the destruction of crops in the backyard garden is an accepted custom in the Nzima Area . . . when a
Tufuhene died.” An appeal against that decision was also dismissed by the High Court.

The reasons given by the High Court offered no comfort at all to the plaintiff. His plea that the alleged
customary practice was illegal and obnoxious and therefore unenforceable was rejected. The High Court
held that any required change in the custom was to be effected by those who practised it and not by the
court. In the view of the court, where the observance of a particular custom did not amount to a serious
offence involving death or heavy sentences, but might only constitute a misdemeanour or other offences
like the breach of the peace, unlawful assembly, damage to property, nuisance, etc the court must be slow
to prescribe sanctions or even suggest a change. In the words of the High Court:

“There may be a moral objective upon which the practice of a particular custom rests, and even though the
set ideal may not commend itself to a modern thinker or a sophisticated mind, the courts must be slow in
rejecting outright customs that may not, for some reason, commend themselves to them in these modern
times.”

In further support of its expressed want of power or jurisdiction to disaffirm the customary practice
complained of by the plaintiff, the High Court ironically delivered itself of some reasoning which to a large
extent, could in law, form the basis for pronouncing as invalid, the alleged customary practice—which was
the sheet anchor of the defence. The court said:

“It may now be arguable that, considering the modern trend of affairs and since the days of „Operation Feed
Yourself‟ in the mid-seventies, the Ghanaian has been made increasingly aware that he must try as much
as possible to produce food to feed himself and family on every available piece of land free, be it in the
backyard, on the outskirts of a town or fallow land, a custom which permits destruction of food crops . . .
may well be considered to be out of tune with modern thinking and indeed the economics of the times. It
may even appear to be in conflict with the general common law of the land and contrary to public policy.
But, the moral objective upon which the practice of the custom has rested in the times past, is perhaps
somehow obscure, but it is not given to the court to conduct a research into the time-honoured practices in
order to pass a judgment on its validity or otherwise.”

In the light of the above quoted passage, the court would seem to imply (rightly in my respectful opinion)
that the customary practice complained of is indefensible given the present socio-economic conditions in
Ghana. But the court nevertheless justified the customary practice on grounds of its time-honoured moral
objectives which the court itself concedes to be “perhaps somehow obscure.” It appears there is no rhyme
or reason in the argument founded on the moral foundations of the customary practice complained of.
Surely the moral foundation of the custom must serve the ends of the society and not the custom per se. It
is strongly suggested that where a particular customary practice unreasonably deprives a person of his
economic wealth such as a farm, its moral objective becomes denuded and shaky and ceases to be of any
further use to the society. If agriculture is the cornerstone of Ghana's Economic Recovery Programme, then
the courts must readily declare any customary practice which seek to thwart the agricultural endeavours of
the people as invalid and unenforceable on grounds of public policy. The court does not have to wait for the
people or any traditional council to come out with a pronouncement disaffirming the customary practice. In
effect the 1982 judgment of the High Court by which the court gave its blessing to a customary practice
entitling people to go on a rampage destroying other people's farms whilst celebrating the funeral rites of a
chief, was an unfortunate decision given in error; it was a per incuriam decision which does not reflect the
true attitude of the courts. The court ought to have applied the Court of Appeal decision in Attah v Esson in
resolving the issue before it.69

Doctrine of Judicial Precedent

The doctrine of stare decisis et non quieta movere which means stand by past decisions and do not disturb
things at rest, is the very basis of the Ghana common law and of course the English common law. The
doctrine has been considered and applied by the Supreme Court of the Gold Coast as early as 1884 in a
case earlier referred to—Des Bordes v Des Bordes.70 His Lordship Macleod J noted that the Supreme
Court Ordinance, 1876, had made operative in the Gold Coast Colony, such statutes of general application
that were in force in England on 24 July 1874. He therefore raised the issue whether the then English
Marriage Acts71 could be construed as statutes of general application. On resolving the issue the judge
reminded himself of the previous decision of the Full Court (sitting at Lagos), to the effect that the
Bankruptcy Acts of England were not operative in the Colony because they were not statutes of general
application. And after noting further that there was nothing in the English Marriage Acts which made them
more of general application than the Bankruptcy Acts, his Lordship said,

“. . . it is my duty therefore to follow the Full Court (though I do not by any means say that I concur with the
Full Court) and declare that the Marriage Acts of England are not operative within this Colony.”72
What is the present legal position regarding the application of the doctrine of judicial precedent? The
Supreme Court is the final appellate court in Ghana73 except in cases determined by the tribunals.74 And
all courts in Ghana are mandatorily bound to follow the decisions of the Supreme Court on questions of
law.75 The law also provides that whenever the Supreme Court determines questions of law relating to
questions arising as to whether any enactment was made in excess of the powers conferred by law, as may
be referred to it by a trial court, that court shall be bound to determine the case in accordance with the
decision of the court.”76 However, it must be noted that whenever such questions arise in a case before a
public tribunal,77 such tribunal, unlike all other courts, shall not be bound to stay proceedings and refer
such questions of law to the Supreme Court for determination.78

A public tribunal, however, has a discretion to seek the opinion of the Supreme Court on such questions of
law and it may be guided by the expressed opinions of the court on such issues.”79

However, no decision of any other court is binding on the Supreme Court. And whilst the Supreme Court is
normally to treat its own previous decisions as binding, it is entitled not to follow its previous decision when
it appears right so to do.80 Thus in Loga v Davordzi81 the Supreme Court held that despite article 42 (4) of
the 1960 Constitution, ie “the Supreme Court shall in principle be bound to follow its previous decisions on
questions of law” it was entitled to depart from its previous decision in cases where it considered that the
previous decision was given per incuriam or should, for any other exceptional reasons, not be followed.
Thus Ollennu JSC in the case under reference decided, obiter, that the previous decision of the Supreme
Court in Nye v Nye82 was given per incuriam because the court failed to interpret and pronounce on the
relevant statutory provision.

It should be stated that the issue of binding precedent is closely interwoven with the issue of succession of
courts. It appears that under the present state of the law, the present Supreme Court is not a successor of
any previous court and therefore not bound by the decision of any such court. Thus in In re Agyepong
(Decd); Donkor v Agyepong83 the Court of Appeal held that since the Court of Appeal created under the
Constitution, 1969, was a successor to the court in existence immediately before the coming into force of
the Constitution84 (which was the Court of Appeal created under the Courts Decree, 1966, para 2 (1)) the
decisions of the Court of Appeal created under NLCD 84 were binding on the Court of Appeal created
under the 1969 Constitution. It was therefore held that the decision of the Court of Appeal existing in 1959
was not binding on the Court of Appeal created under the 1969 Constitution.85
The present position as to succession of courts is governed by article 137 of the Constitution, 1979, which
provides:

“137. (1) The High Court of Justice established under clause (5) of article 114 of this Constitution, shall be
the successor to the High Court of Justice in being immediately before the coming into force of this
Constitution.

(2) The Court of Appeal established under clause (5) of article 114 of this Constitution, shall be the
successor to the Court of Appeal in being immediately before the coming into force of this Constitution; and
accordingly the Court of Appeal as established by this Constitution shall be bound to follow the decisions on
questions of law binding on the Court of Appeal as it existed immediately before the coming into force of
this Constitution.”

Some doubt appears from the wording of article 137, as to whether the present Court of Appeal is the
successor of the Court of Appeal (whether ordinary or full bench) in existence immediately before the
coming into forge of the Constitution, 1979. That issue must be resolved because it is that Court of Appeal
whose decisions on questions of law are binding on the present Court of Appeal.86 In Kumnipa II v
Ayirebi87 the applicant applied to the present Court of Appeal (established under the Constitution, 1979) to
review (in exercise of its powers of review under the Court of Appeal Rules, 1962, r 33) a judgment of the
full bench of the Court of Appeal delivered on 30 July 1969 in exercise of its powers under NLCD 84, para 7
(2).88 In support of the application, counsel argued that given the provisions of article 137 of the 1979
Constitution, the Court of Appeal as constituted under article 114 (5) of the Constitution, was the successor
to the Court of Appeal whether full bench or ordinary in existence immediately before the coming into force
of the Constitution.

In rejecting that argument, the court per Jiagge JA held that a close study of all the relevant provisions of
the Constitution showed conclusively that it was not the intention of the legislature that the present Court of
Appeal should be deemed the successor of the full bench of the Court of Appeal. The court thus held that
the provision in the Constitution, 1979, sched 1, s 4, namely: “All proceedings pending before any court
immediately before the coming into force of this Constitution may be proceeded with and completed in that
court” could not be construed to cover all cases pending before the Court of Appeal including review
applications pending before the full bench under NLCD 87, para 7(2). On the contrary, the Constitution,
1979, sched 1, s 5 made a specific provision that, “Any review pending before the full bench of the Court of
Appeal ... shall ... be deemed to be an appeal pending before the Supreme Court.” The court by a majority
opinion held that, that particular provision must be deemed to override the earlier and more general
provision in article 137(2), namely, that the Court of Appeal as constituted by article 114(5) was, in effect,
the successor to the Court of Appeal whether ordinary or full bench

It must be noted that the appeal from the refusal of the Court of Appeal to review the judgment of the full
bench of the Court of Appeal delivered on 30 July 1969 was allowed by the Supreme Court in the 1987
decision in Kumnipah II v Ayirebi.89 It was held that the full bench had no jurisdiction to review the
judgment delivered on 30 June 1966 by the erstwhile Supreme Court because the appeal before that court
had been conclusively determined before the creation of the full bench under the Courts Decree, 1966.90
And the full bench of the Court of Appeal had no jurisdiction under NLCD 84 to re-open cases, which had
been concluded by the erstwhile Supreme Court.

However, it must be emphasized that in allowing the appeal, the Supreme Court did not at all comment on
the majority decision of the Court of Appeal in Kumnipah II v. Ayirebi where it was held that the present
Court of Appeal created by article 114(5) of the Constitution, 1979, was not the successor to the full bench
of the Court of Appeal immediately in existence before the coming into force of that Constitution. If that
decision represents the correct statement of the law, then it may be concluded that it is the decisions of the
erstwhile ordinary bench of the Court of Appeal which is binding on the present Court of Appeal.

The next issue is whether a decision of the English courts founded on the English common law (which falls
within the definition of the common law in Ghana) is binding on the courts in Ghana. It is clear that given the
statutory provisions as to the application of judicial precedent, no Ghana court is bound to follow any
English decision founded on the common law and for that matter any decision in any Commonwealth
country exercising common law jurisdiction. In State v Yankey91 the trial magistrate acquitted the accused
charged with careless driving under section 2(1) of the Road Traffic Ordinance, 1952,92 because the road
on which the accused was alleged to have committed the offence did not fall within the statutory definition
of a “public road.” The magistrate in so holding applied the English decision in Buchanan v Motor Insurers‟
Bureau93 which he thought was binding on him. He was reversed by the High Court which held that the
courts in Ghana were not bound to apply English decisions.

However, it is well-settled that the Ghana courts must consider and treat relevant English decisions with
respect especially when the decision is on all fours with a case before a Ghana court and where the English
decision turns on an interpretation of legislation which is substantially reproduced in a Ghana legislation.
Thus in Amponsah v Appiagyei (Consolidated)94 Amua-Sekyi J, as he then was, held obiter, that although
the Ghana courts were not bound to follow decisions of English courts, the courts in Ghana should not
forget that in many spheres our laws were modelled on those of England. He therefore held that since the
provisions of section 10 (1) of the Ghana Motor Vehicles (Third Party Insurance) Act, 1958,95 were the
same as section 10 (1) of the English Road Traffic Act, 1934, the decision of the English Court of Appeal in
Carpenter v Ebblewhite,96 as to the true legal effect of section 10 (1) should have been considered by the
Ghana Court of Appeal when it decided Bonsu v. State Insurance Corporation.97 If the court had done so it
would not have placed a contrary interpretation on section 10 (1) to the effect that the plaintiff was entitled
to join the insurance company in one and the same action to determine the liability of the negligent party to
the plaintiff and that of the insurer to the insured. In this respect the 1965 pronouncement of the Ghana
Supreme Court in Fodwoo v Law Chambers & Co. cannot be over-emphasized98:

"We do not hold ourselves bound by this [English] decision in [Kitchen v Royal Airforce Association [1958] 1
WLR 563, CA] but the reason underlying the formulation of these principles appeals to us and we
respectfully follow it. Indeed, we cannot shut our eyes to the desirability of a homogeneous development
and application of the law in two Commonwealth countries having cognate jurisprudence.”

If the courts in Ghana are not bound by decisions of English courts, what is the position where a lower court
in Ghana is faced with conflicting decisions of a higher court? In Akpawey v The State99 it was held that
where a lower court is faced with inconsistent decisions by the final appellate court, the lower court has the
discretion to follow any of the conflicting decisions or may take a different line.100 And it has also been held
that the High Court should refuse to follow a binding decision of the Court of Appeal where that decision is
demonstrably wrong, ie in conflict with authoritative pronouncements of courts of cognate jurisdiction and
statutory provisions.101

CONCLUSION

Some conclusions may be drawn on the wings of the efficacy of the various laws constituting the laws of
Ghana. True the laws enacted by the PNDC are supreme to any other law—statutory, judge-made,
customary law or otherwise. But it cannot be said that such laws are more efficacious than all other laws. In
fact no law can be said to be more efficacious than any other law. Wherein then lies the efficacy of the law?
It is suggested, firstly, that all the laws of Ghana, to be efficacious, must reflect the aspirations of the
people—social, economic and political for the betterment of the general populace. In the words of Jerome
Frank, “The Legal rules embody or reflect moral norms, social standards, social policies, community ideals
or values.”102 It is in this respect that the decision of the Court of Appeal103 in readily striking down an
outmoded customary law principle as being out of step with the economic aspirations of the people is to be
most welcomed. This decision in favour of uninterrupted development of agricultural enterprises makes
good sense in the context of the on going Ghana Economic Recovery Programme. It is also for this reason
that the PNDC as the supreme legislative body must be highly commanded and congratulated in boldly
enacting laws affecting the family relationship: intestate succession,104 registration of customary marriage
and divorce105 and the accountability of family property.106 These laws were enacted in response to the
long cry of the people echoed by judicial decisions for social, economic and moral justice in the family
relationship.107

Secondly, the uniformity in the law as applicable to all in the society must be emphasized. It is this desirable
necessity which propelled Mr. Justice Cardozo to write, “One of the most fundamental social interest is that
law shall be uniform and impartial.108 And it was this which animated the PNDC to pass the Intestate
Succession Law, 1985, the Memorandum to which stated:

“This Law is aimed at removing anomalies in the present law relating to intestate succession and to provide
a uniform intestate succession law that will be applicable 'throughout the country irrespective of the class of
the intestate and the type of the marriage contracted...”109

Thirdly, for the law to be more efficacious, it must be publicised. The statutory laws on intestate succession
and registration of customary marriage and divorce (which have effected a fundamental change in the law)
cannot be realised without persistent publicity and continued education of the people. A vast majority of the
people, mostly illiterates, are simply not aware of the fact that where a customary marriage remains
unregistered no benefit can be conferred under the much-praised Intestate Succession Law.110 There is
therefore the urgent need for the mass media—the press, radio, all government agencies concerned,
especially women organisations and all lawyers to take immediate steps to publicise and explain the law to
the people.

And finally, the efficacy of the laws of Ghana very much depends on the quality of the men who have the
duty to operate and apply them, especially the magistrates and the judges. It is the judges who interpret the
law and thereby give effect to the true intentions and objectives of statutory law. And so it is a “truism that
the quality of justice depends more on the quality of the men who administer the law than on the content of
the law they administer.”111

FOOTNOTES

* LLB (Ghana), LLM (Lond), Editor, Ghana Law Reports; Editor, Review of Ghana Law; Barrister and
Solicitor of the Supreme Court of Ghana.