1.

5INTRODUCTION: WHAT IS
ADMINISTRATIVE LAW ABOUT
_______________________________________________

1.1. Definition and Nature

Like many subjects of law, Admin Law has been variously defined. Wade
has for instance in one aspect defined it as “the law relating to the control of
governmental power” – that aspect of the law which seeks to keep the
powers government within their legal bounds, so as to protect the citizen
against abuse. According to Wade, it is also the concern of Admin. Law to
ensure that public authorities can be compelled to perform their duties if
they default.

In another aspect, Wade defines as the body of general principles which

govern the exercise of powers and duties by public authorities. It is about the
manner in which public authorities must exercise their functions.

Similarly in the view of de Smith, Admin Law is the branch of law dealing
with the actual operation government. It relates to the organisation,
composition, functions and procedures of public authorities and special
statutory tribunals, their impact on the citizen and the legal restraints and
liabilities to which they are subject. According to him, its essence is that it
reveals what tangible and enforceable limits can be placed on administrative
action.

These definitions are however deficient in one aspect. They make a certain
basic assumption of power imbalance between public officials/institutions
and the citizenry, and for that matter, a persistent struggle on the part of the
citizenry two to offset this power imbalance. This concept is however
limited in scope.

Indeed in certain instances, there has been the clamour to increase the power
of some public institutions, as may be the case to increase the power of the
police to combat crime or increase the power of certain quasi judicial
institutions to prosecute (e.g. CHRAJ) or increasing the powers of anti-
corruption bodies (e.g. CHRAJ and SFO) to effectively fight corruption.
Thus, Admin. Law goes beyond controlling governmental power as Wade

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puts it, or revealing tangible and enforceable limits which can be placed on
administrative action as de Smith submits. It also concerns itself with
improving public governance.

Altogether, the best way to define Admin. Law is to distinguish from

Constitutional Law. While Constitutional is the aspect of public law dealing
with the broad parameters of governing (public governance), Admin. Law is
that aspect of public law which deals with the more detailed rules relating to
public matters and governance. Admin. Law operates at the following three
levels:

 Dealing between Public Institutions;

 Dealings between Public Institutions and Individuals and
 Dealings between individuals.

In a sense, Admin. Law, as Wade puts it, may be treated as a branch of

Constitutional Law since it flows directly from constitutional principles such
as the rule of law.

_______________________________________________

1.2. Administrative Law Theories

Three main theories of Admin. Law may be outlined as follows:

1.2.1. Admin. Law as a Practicalization of a Social Contract

John Locke: There is a social contract between the government and

the governed.

When constitutional processes have resulted in a duly elected government,

there comes into operation, a certain social contract between the citizenry
and the government. The citizenry in whom the Sovereignty of Ghana is
vested (See Art 1(1) of the 1992 Constitution), surrender power to the
government. In return, the government is obligated to exercise the powers of

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government for the welfare of the people within the limits set by the
Constitution.

In this respect, the Directive Principles of State Policy is a prominent feature

of the 1992 Constitution. It sets out in broad terms, guidelines for the
implementation policy decisions by all governmental bodies and individuals.

Admin. Law provides the rules and mechanisms to effectuate this social
contract as explained above. It seeks to regulate those constitutionally
decided policies by the government, aimed at to practicalizing the social
contract. Thus, without Admin. Law, the social contract cannot work. E.g
National Insurance Policy vis-à-vis the National Insurance Act and
regulations.

1.2.2. Admin Law as Practicalization of the Integral State

The spatial organisation of Ghana is of critical importance to the concept of

the integral state. Political structures in relation to the geographical
distribution of power were very strong during the debates for Ghana’s
independence. Ghana however chose to be Sovereign Unitary Republic as
opposed to a Federal State. Consequently, during the Nkrumah regime, all
political parties based on ethnicity were outlawed. Admin. Law particularly
served as an instrument in sustaining the unitary state of Ghana. It was used
by Nkrumah as a mechanism for breaking down ethnic barriers by setting
the broad framework of rules for the equal application of the nation’s
resources to all regions.

1.2.3. Admin Law as a Means of Controlling Monstrous Law

and Improving the Unintelligent State

Law generally serve as a constraint on every aspect of life. When not well
made, it can be monstrous. Admin. Law serves as a tool by which means
individuals and institutions contribute to the law making process. It also
serves as an instrument by which means the capacity of law makers – who
normally do not have the requisite expertise and competence in a vast
majority of technical areas – could be improved (i.e. through training and
capacity building).

Page 3 of 82
 2. CONSTITUTIONAL AND ADMINISTRATIVE LAW
HISTORY OF GHANA
_______________________________________________

2.1. Points to note

 The constitutional and administrative law histories of Ghana are closely

related – the administrative law history is cast in the shadow of the
constitutional law history.
 The constitutional law history has been faster paced and turbulent while
changes in administrative law have been less dramatic. Administrative
law has been more enduring. This has been as a result of the fact that,
while there have been frequent changes governments over the years, the
different regimes have more or less maintained the same or similar
administrative machinery.
 At every point in time, all traditional three arms of government – the
executive, legislature and judiciary – have been present. This has been so
even when those arms were vested in one person or body.
_______________________________________________

2.2. History Outlined

The following outlines the various arms of government and the

individuals/bodies in which the functions thereof were vested.

2.2.1. Pre- Colonial Era

i. Executive:
Executive power was vested in the chief, elders, the body of youth
and army; the chief acting as the Chief Executive.

ii. Legislature:

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 Powers were vested chief, elders, and representatives of all the
major tribes. Chief and elder had delegated legislative powers to
make subsidiary laws. Major legislative functions such as changing
customary law rules could be done only when the chief and elders
were joined by the representatives of the major tribes.

iii. Judiciary:

Chief, elders with family heads serving as lawyers. There were

certain cases that the chief could sit alone in judgement. In other
instances, a council of elders was constituted to hear appeal cases
with the chief.

2.2.2. Colonial Era

i. Executive:

Final executive power was vested in the Crown while the Governor
exercised that power on behalf of the Crown. There were several
changes over the years – e.g. the formation of Executive Council
during the Burns Constitution but at all material points the Crown
was the final authority.

ii. Legislature:

The British with the Governor-in-Council exercising delegated

legislative powers

iii. Judiciary:

Final judicial power was vested with the Privy Council which was
part of the House of Lords.

2.2.3. Independent Ghana – 6th March 1957 – 30th June 1960

i. Relevant laws:

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  The Ghana (Constitution) Order in Council, 1957
 The Ghana Independence Act, 1957
 The Ghana (Office of Governor-General) Letters Patent,
1957

ii. The Executive:

 Executive power was vested in the Queen and could be

exercised by the Queen or the Governor-General as her
representative.

 The Governor-General was the Commander-in-Chief of the

Armed Forces.

 Except where otherwise provided by law, all powers,

authorities and functions vested in the Queen or the
Governor-General were to be exercised in accordance with
constitutional conventions applicable to the exercise of
similar powers, authorities, and functions in the United
Kingdom by Her Majesty.

 Provision was made for a Cabinet of Ministers of not less

than 8 persons at drawn from [elected] Parliament.
 The Cabinet was charged with the general direction and
control of the Government of Ghana and was collectively
responsible to Parliament.
 The Prime Minister was appointed by the Governor-General.
 The Prime Minister took precedence over all Ministers and
presided over Cabinet meetings.
iii. The Legislature:

 Parliament – consisting of the Queen and the National

Assembly

 National Assembly consisted of the Speaker and not less

than 104 elected members of Parliament.

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 iv. Judiciary:
 Final judicial appeal/authority lay directly from the Supreme
Court of Ghana to the Privy Council, a sub set of the House
of Lords

2.2.4. 1st July 1960 – 23rd February 1966

i. Relevant Laws:
 The Constitution of the Republic of Ghana 1960 (the
Republican Constitution
 Constitution (Amendment) Act, 1964 (Act 224)

ii. The Executive

 Article 8(2) conferred executive power upon an elected

President. By the operation of Art 8(1 & 2), the Queen, acting
through the person of Her Governor-General, was displaced as
the Head of State and holder of executive power.

 Art 8(3) also replaced the Governor-General with the President

as the Commander-in-Chief of the Armed Forces. The
President’s functions as the Commander-in-Chief were spelt out
in Art 54 to include:

 The power to commission persons as officers

 The power to order forces to engage in operation for

defence of Ghana for the preservation of public order, for
relief in cases of emergency or for any other purpose
considered by the President to be expedient

 The power to dismiss a member of the Armed Forces

 The power to order a member of the Armed Forces not

exercise any authority vested in him as a member thereof
until otherwise directed

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  Art 8(4) marked a departure from the equivalent provision in
the previous Constitution (S. 4(2) of the Ghana (Constitution)
Order in Council, 1957) for the Governor-General to follow the
constitutional conventions applicable to the British Crown
which implied that he could only act in accordance with the
advice of his Cabinet/Ministers.

 Art 15(1) provided for the appointment of Ministers from

among Members of Parliament to assist the President in the
exercise of his executive power and to take charge under his
direction of such departments of State as he (the President)
assigned. Appointment was by the President

 Article 16(1) provided for a Cabinet consisting of the President

and not less than 8 Ministers appointed as members of the
Cabinet by the President

 Art 16(2) further charged the Cabinet with the general direction
and control of the Government of Ghana.

 By the provision of Art 18(1) as amended, There was appointed

by the President, a Presidential Commission of three persons to
execute the office of the President in accordance with the
advice tendered by the Cabinet in the event of –

a) the death or resignation of the President before

the assumption of office of his successor; or

b) the illness of the President or his absence from

Ghana during which he could not conveniently
perform the functions of his office; or

c) the President being adjudged incapable of

acting

NB: Nothing in Art 18 could prejudice the power of the President to delegate
any exercise of executive power to some other person when he had not been
declared incapable of acting.

iii. Legislature:

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  Legislative power vested in Parliament made up of the
President and the National Assembly – the National
Assembly comprised the Speaker and Elected Members and
Appointed Members.

 Under Article 55, the 1st President had some limited

legislative power during his initial period of office defined
in the S. 5 of Article 55 to be the period during which he
remained in office until some other person assumed the
office of the President.

 Art 55 (2) spelt out the limited legislative powers to be the

power to give direction by legislative instrument on any
matter of national interest.

 Art 55 (2) further provided that any such instrument made

under S. 2 could alter (whether expressly or implicitly) any
enactment other than the Constitution.

iv. Judiciary

 Art 42(1) vested final judicial power was vested in the

Supreme Court, no more the Privy Council

2.2.5. The National Liberation Council – 24th February 1966 –

21st August 1969

i. Relevant Laws:

 National Liberation Council Establishment Proclamation

 National Liberation Council (Proclamation) (Amendment)
Decree, (NLCD 1)
 National Liberation Council (Proclamation) (Amendment)
Decree, NLCD 183

ii. The Executive:

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  Executive power was initially vested in the National Liberation
Council which was constituted of some particular persons
specified in S.1 of the NLC Establishment Proclamation
 S. 1A of NLCD 183 however amended the Establishment
Proclamation to set up an Executive Council, in which was
vested executive power. The Executive Council was charged
with the general direction and Control of the Government of
Ghana
iii. Legislature:

 S. 3(1) of the Establishment Proclamation vested legislative

powers in the NLC

iv. Judiciary

 S. 2(3) continued in force all courts in existence immediately

before 24th February 1966 with the same powers as they had
before the said date. All judges and person holding offices in
the judicial service were also maintained with the same powers
_____________________________________________

2.2.6. The 1969 Second Republican Constitution -22nd August

1969 – 12th January 1972

i. Relevant Laws/document:

 The 1969 Republican Constitution

 The Constitution (Consequential and Transitional Provisions)

Decree, 1966 (NLCD 406)

 The Proposals of the Constitutional Commission for a

Constitution for Ghana (1968) – The Akuffo Addo Commission

ii. Executive:

 The Akuffo Addo Commission in reported concerning

executive authority as follows:

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 “The extent of executive of the President is a question
that touches the very nature of the proposed Constitution.
Should the President be merely a ceremonial Head of
State wielding only the power that his personal influence
can carry? Or should he be an executive President in
whom is vested full control over the government of the
country including the power of formulating executive
policy, initiating legislation and making appointment in
executive sphere? Or should a via media be worked out
whereby some executive power may be vested in the
President and the rest in the Cabinet some or the Prime
Minister …?

“After carefully considering the question we opted for a

middle way. We propose that the Head of State should be
different from the Head of Government. There will,
therefore, be executive President. The President, will
however, not be purely ceremonial Head. Certain
important functions normally associated with and vested
in the Executive will be given to the President,
sometimes assisted by the Council of State. Of course,
the executive authority of the state will formally be
vested in the President and all executive acts of
Government are to be taken expressly in his name. Real
executive power, however will be with the Cabinet, but
exception to this rule will be important”

 The Constituent Assembly, to a large extent, approved the

proposals. Accordingly, while the President was the Head of
State and Commander-in-Chief of the Armed Forces and was
vested with executive authority as well, he could not exercise
this authority without the advice of Cabinet. The Prime
Minister was the Head of the Cabinet and Government and
together with the Cabinet had real executive authority.

 Art 37 vested executive authority (to be exercised in accordance

with the provisions of the Constitution) in the President who
was also the Head of State and Commander-in-Chief of the
Armed Forces in pursuant to Art 36(1).

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  The Prime Minister was also the leader in the National
Assembly of the party having the numerical strength of a
majority of all the members.

 The Cabinet comprised the Prime Minister and not less than 8
and not more than 17 other Ministers of State as was appointed
by the President on the advice of the Prime Minister. All
Ministers were appointed from the National Assembly.

 Art 61(1) charged the Cabinet with the determination of the

general policy of the Government and made the Cabinet
collectively responsible to the National Assembly

 Art 61(3) made the responsibility of the Prime Minister to

communicate to and furnish the President with the decisions of
Cabinet relating to the administration of the affairs of Ghana
and proposals for legislation.

 Council of State

iii. Legislature:

Legislative Powers were vested in Parliament – comprising the

President and the National Assembly

iv. Judiciary:

Art 102 vested judicial power in the judiciary of which the Supreme
was final court of appeal

_____________________________________________

2.2.7. 13th January 1972 -23rd September 1979 - Military

Regimes

The National Redemption Council – 13th January 1972 – 8th October 1975:
The Executive

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  S. 24 (1) of the NRC (Establishment) Proclamation, 1972 provided for
the appointment of an Executive Council comprising the members of
the NRC and such other persons as the NRC thought fit and who
according 24(3), held their offices at the pleasure of the NRC.

 S. 24(2) made the Chairman of the NRC the Chairman of the

Executive Council as well

 S. 24(3) vested the Executive Council with the executive power of the
State subject to the powers of the NRC.

 While the Executive Council had not yet been formed, S. 25 made the
NRC the Government and vested in it executive powers.

Legislature:

 S. 3(1) of the NRC (Establishment) Proclamation vested legislative

power in the NRC - power to issue Decrees which had the force of
law.

 S. 3(2) continued in force, enactments before 13th Jan 1972 but such
enactments could be revoked, repealed or amended by an NRC
Decree

 S. 3(4) also vested in the NRC, the power to repeal or amend its own
Decrees.

Judiciary

 All courts in existence before 13th January 1972 were continued in

force.

The Supreme Military Council I – 9th October 1975 – 4th July 1978

Executive:

 The National Redemption Council (Establishment) Proclamation

(Amendment) Decree, 1975 (NRCD 360) made significant changes to
the NRC Establishment Proclamation.

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  By the provision of S. 1 & 2 of NRCD 360 there established the
Supreme Military Council (SMC) in which was vested administrative
authority of Ghana and was responsible for the general direction and
administration of Ghana. It was the highest administrative body. All
members, except the Chairman held their positions by appointments

 There was also established a National Redemption Council by the

operation of S.3 to be in charge of the day-to-day administration of
the Government of Ghana under the general direction of the SMC.
This NRC was different from the NRC established by the NRC
(Establishment) Proclamation, 1972 and comprised:

 The members of the SMC

 Commissioners of State appointed by the Chairman of
the SMC on the advice of the SMC
 The Commander of the First Infantry Brigade and
 The Commander of the Second Infantry Brigade

Legislature:

 S. 2 of the NRCD 360 made the SMC the highest legislative body in
Ghana

Judiciary:

 The Supreme Court was abolished and replaced with the Full Bench
of the Court of Appeal.

Supreme Military Council II – 5th July 1978 – 3rd June 1979

 S. 9(1) of Supreme Military Council (Establishment) (Proclamation)

(Amendment) Decree, SMCD 168 vested executive power in the SMC

 S. 11 provided for the delegation of executive powers to

Commissioners and such other persons as the SMC [II] deemed fit.

Legislature:

 Legislative authority was vested in the SMC [II]

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Judiciary

 Full Bench of the Court of Appeal was the final court of appeal

The Armed Forces Revolutionary Council -4th June 1979 – 23rd

September.

 Executive – AFRC
 Legislature – AFRC
 Judiciary – Same as SMC II

_____________________________________________

2.2.8. 24th September 1979 – 30th December 1981 – The Third

Republican Constitution

i. Relevant Laws/document:

 The 1979 Republican Constitution

 TA Mensah Commission Constitutional Proposal

ii. Executive:

 There was a departure from the Parliamentary system of

government to an executive presidency. There was an
Executive President in whom was vested executive powers and
who was the Head of State, Head of Government and
Commander-in-Chief of the Armed Forces

 For the first time, the 3rd Republican Constitution introduced the
position of the Vice President

 Other constituents of the executive such the Cabinet and

Council of State were maintained from the 1969 Constitution
with some modification.

iii. Legislature:

Page 15 of 82
  There was a practice of strict separation of powers. For the first
time, the President was not part of Parliament.

 All legislative powers were vested in Parliament

iv. Judiciary

 Judicial power was vested in the judiciary

 The Supreme Court was re-established as the final Court of Appeal

_____________________________________________

2.2.9. The Provisional National Defence Council (PNDC) - 31st

December 1981 -6th January 1993
_____________________________________________

i. Relevant Laws:

 PNDC (Establishment) Proclamation 1981

 PNDC (Establishment) Proclamation (Supplementary and

Consequential Provisions) 1982 (PNDCL 42)

ii. Executive

 PNDCL – See S. 3(4) of Est. Proclamation – Council shall

exercise all Governmental powers

 By the operation of S.1 of the Consequential Provisions, the

Chairman could exercise the powers of the Council in cases
of emergency. His acts in such cases were however subject
to confirmation, revocation or variation by the Council as
soon as practicable.

iii. Legislature:

 PNDC – See 4 of Est. Proclamation

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iv. Judiciary:

 A parallel judicial system – the public tribunal – was

created to run parallel to the normal courts system. The
public tribunal was administered by the PNDC

 Other relevant laws to the judiciary – PNDCL 161 and 228

______________________________________________

2.3. Lessons from History

 At every point in time, all traditional three arms of government – the

executive, legislature and judiciary – have been present. This has been
so even when those arms were vested in one person or body.

 There was a deliberate effort in cutting off British Colonial Control

overtime in the development of Ghana’s Constitutional history: i.e.
Queen was maintained as Head of State in 1957. The Republican
Constitution then made away with the Queen as the Head of State,
replacing her with an elected President. It also replaced the Privy
Council with the Supreme Court as the final court of appeal.

 Throughout the Ghana’s history, every leader has made serious

attempt to return to the pre-colonial system of government where the
chief was part of all three arms of government.

 There was a union of the legislature and the executive under the
military regimes

 The Supreme Court was abolished under the SMC and replaced with
the full bench of the Court of Appeal.

 The PNDC introduced the Public Tribunal System – a parallel judicial

system to the courts.

 The PNDC was the only military regime that claimed for itself final
executive, legislative and judicial authority.

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 3. HIERARCHY OF NORMS/SOURCES OF LAW –
WHAT IS LAW

In practical terms, law may be defined as the instrument for the generation
and distribution of resources and the resolution of the disputes/conflicts
arising out of the resource generation and distribution. In this definition,
“resources” is used in the broadest possible terms to include not only
physical resources but also human resources as well as intangible resources
such as air.

In using law as the instrument for resource generation and distribution, and
the resolution of the resulting conflicts [the means of governance]; there are
certain protocols which inform -
a) the types [sources] of laws that are most powerful;
b) the types [sources] of laws that are less powerful and
c) the relationship between these types [sources] of laws according to
their relative power and according to the time they come into force.

These protocols are the hierarchy of norms. Read together, Articles 11 and
272 of the 1992 Constitution and the Statutory Instrument Act, 1959 set out
the following sources of law in the descending order of strength:

1) The Constitution

2) Enactments by Parliament or other legislative bodies such as a

military council

3) Subsidiary Legislation
a. Constitutional Instruments
b. Legislative Instruments
c. Executive Instruments
d. Instruments of Judicial Character
e. Bye Laws
f. Notices
g. Statutes
h. Administrative Instructions

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 4) Judge made Law/Case Law (Common Law and Equity)

5) Assimilated Rules of Customary Law

6) Customary Law

7) Writings of Jurists and Publicists

NB: When there is a vertical clash between the laws (e.g. between a
subsidiary legislation and case law) the higher norm (in this case, subsidiary
legislation) prevails over the lower norm.

When there is a horizontal clash (e.g. between two enactments by

Parliament), the later/recent norm – lex posteriori - prevails over the earlier
norm – lex anteriori

4. THE EXECUTIVE – CHAPTER 8 OF THE

CONSITITUTION

The Executive is made up of the following:

 The Presidency
 The Vice President
 The Cabinet
 Independent Executive Organs that Derive their Power from the
Constitution
 Administrative Chapter Institutions (Public and Civil Service)
 Local Government

_______________________________________________

4.1. The Presidency

Art 57

Page 19 of 82
 (1) There shall be a President of the Republic of Ghana who shall be the
Head of State and Head of Government and Commander-in-Chief of the
Armed Forces of Ghana.

(2) The President shall take precedence over all other persons in Ghana;
and in descending order, the Vice-President, the Speaker of Parliament
and the Chief Justice, shall take precedence over all other persons in
Ghana.

(3) Before assuming office the President shall take and subscribe before
Parliament the oath of allegiance and the presidential oath set out in the
Second Schedule to this Constitution.

(4) Without prejudice to the provisions of article 2 of this Constitution,

and subject to the operation of the prerogative writs, the President shall
not, while in office, be liable to proceedings in any court for the
performance of his functions, or for any act done or omitted to be done, or
purported to be done, or purported to have been done or purporting to be
done in the performance of his functions, under this Constitution or any
other law.

(5) The President shall not, while in office as President, be personally

liable to any civil or criminal proceedings in court.

(6) Civil or criminal proceedings may be instituted against a person within

three years after his ceasing to be President, in respect of anything done or
omitted to be done by him in his personal capacity before or during his
term of office notwithstanding any period of limitation except where the
proceedings had been legally barred before he assumed the office of
President.

Art 58

(1) The executive authority of Ghana shall vest in the President and shall
be exercised in accordance with the provisions of this Constitution.

(2) The executive authority of Ghana shall extend to the execution and
maintenance of this Constitution and all laws made under or continued in
force by this Constitution.

(3) Subject to the provisions of this Constitution, the functions conferred

on the President by clause (1) of this article may be exercised by him
either directly or through officers subordinate to him.

Page 20 of 82
 (4) Except as otherwise provided in this Constitution or by a law not
inconsistent with this Constitution, all executive acts of Government shall
be expressed to be taken in the name of the President.

(5) A constitutional or statutory instrument or any other instrument made,

issued or executed in the name of the President shall be authenticated by
the signature of a Minister and the validity of nay such instrument so
authenticated shall not be called in question on the ground that it is not
made, issued or executed by the President.

4 Points to note about the Presidency

a) Manner of Exercise of Executive Power

Pursuant to Art 58(1), the entire executive authority of Ghana is vested in

the President. This authority however cannot be exercised except in
accordance with the Constitution. Consequently, for any act or decision by
the President deemed to be inconsistent with the Constitution, an action
could be brought against him under Art 2(1) of the Constitution. By the
operation of Art 2 (2 & 4), if the President fails to comply with a Supreme
Court order in that regard, his failure to carry out the terms of that order will
constitute a ground for his impeachment.

b) Scope of the Executive Authority –Art 58(2)

 Maintenance and execution of the Constitution

 Maintenance and execution of and all laws made under or

continued in force by this Constitution.

 Performance of other functions which are not inconsistent with

the Constitution.

c) Delegation of Executive Authority- Art 58 (3 & 4)

The executive authority of the President could be exercised either directly by

himself or through any officer subordinate to him. This means that the
President may delegate his powers any public officer including the Vice
President, Ministers of State and Director/Heads of MDAs for the
performance his executive functions. The only condition is that all executive

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acts of Government shall be expressed to be taken in the name of the
President except otherwise provided.

d) Authentication of Instruments

Instruments issued and executed in the name of the President are to be

authenticated by the signature of a Minister. E.g. Death Warrant
authenticated by the Minister of Interior

NB: Despite the wide range of powers vested in the various Military
Regimes, there were still limitations on what they could do. In Ex Parte
Bannerman for instance, the relevant law that set up the State Fishing
Corporation provided that the applicant could be suspended only when the
NLC had taken over the control and management of the Corporation. Thus
in his ruling, Edusei J noted as follows:

“… I am prepared to hold that conditions which may exist to enable

the Council [NLC] to take over the control and management of the
Corporation rest entirely within the discretion of the Council and their
grounds of their satisfaction are not open to question by the courts.
But before the Council will be capable of appointing, transferring,
suspending or dismissing any of the employees of the Corporation
there must be evidence that the Council has, in fact, in exercising its
[executive] power … taken over the control and management of the
Corporation.

There been no evidence to show that the NLC had taken over the control and
management of the Corporation, Edusei J concluded that the purported
suspension of the applicant was ultra vires and the NLC acted in excess of
its [executive] powers.

______________________________________________

4.2. The Vice President

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The office of the Vice President was first created by the 1979 Constitution
and maintained by the 1992 Constitution. Under the 1992 Constitution, the
VP performance the following two categories of functions:

a) Functions assigned directly by the Constitution. According to Aryee,

this is a unique feature of the 1992 Constitution. Examples of such
functions include acting the President in the absence of the President -
Art 57 (2), Member of the Cabinet - Art 76 (1) and Member of the
National Security Council – Art 83(1).

b) Functions assigned by the President

The second function makes the VP virtually an errand boy for the President.

TASK HERE: Discuss the legality of S. 7, 8 and 9 of The Constitution of the Republic
of Ghana (Amendment) Act, 1996 (Act 527)

_______________________________________________

4.3. The Cabinet

Art 76.

(1) There shall be a Cabinet which shall consist of the President, the Vice-
President and not less than ten and not more than nineteen Ministers of
State.

(2) The Cabinet shall assist the President in the determination of general
policy of the Government.

(3) There shall be a Secretary to the Cabinet who shall be appointed by the
President.

77.

(1) The Cabinet shall be summoned by the President who shall preside at
all its meetings; and in the absence of the President, the Vice-President
shall preside.

(2) The Cabinet shall regulate the procedure at its meetings.

Page 23 of 82
TASK HERE: Can a Deputy Minister be appointed be appointed a member
of Cabinet?

NB: While the Constitution has not stipulated a given upper limit (figure) of
Ministers to be appointed, it may be argued that there is an upper limit. Art
78 (2) provides that the President shall appoint such number of Ministers of
State as may be necessary for the efficient running of the State. Thus,
Minister appointed to perform particular functions. Therefore the number or
sets of functions to be performed for the efficient running of the State may
serve as a limiting factor on the number of ministers to be appointed – i.e. if
the President appoint far more Ministers than the functions to be performed,
it may be argued that the appointments are administratively unreasonable
and waste of resources and that they implicitly infringe on the provisions of
the Constitution.

4.4. Independent Bodies

SEE ARTICLE BY ARYEE

5. The Civil Service

5.1. Relevant Laws

a) The Civil Service Law, 1993, (PNDCL 327)

b) The Civil Service Interim Regulations, 1960 (L.I. 47)

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NB: THE WHOLE OF PART OF PNDCL 327 (ss. 23 –34) HAS BEEN
REPEALED BY LOCAL GOVERNMENT SERVICE ACT, 2003 (ACT
656)

5.2. Object and Functions of the Civil Service

 Per S. 2 of PNDCL 327, the Civil Service has the object to assist the
Government in the formulation and implementation of government
policies for the development of the country.

 This object is achieve through the following functions outlined in S. 3.

To –

1) initiate and formulate policy options for consideration of

government;
2) initiate and advise on government plans;
3) undertake such research as may be necessary for the effective
implementation of government policies;
4) implement government policies;
5) review government policies and plans;
6) monitor, co-ordinate and evaluate government policies and
plans;
7) perform such functions as are incidental or conducive to the
achievement of the object specified in this Law; and
8) perform such other functions as the Council may direct.

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In the discharge of these functions, the Civil Service is empowered to
confer, consult and seek advice and the full co-operation of such other
government agencies and authorities as may be necessary.

5.3. Membership of the Civil Service

S. 4 provides that the Civil Service comprises —

a) all persons serving in civil capacity in posts

i the Office of the President;[As substituted by the

Presidential Office Act, 1993 (Act 463), s.14]
ii Ministries;
iii Government Departments at the national level;
iv any other civil service department established by or under
the authority of this Law the emoluments attached to which
are paid directly from the Consolidated Fund or other source
approved by Government; and

b) all persons holding posts designated as Civil Service posts created by

or under the authority of any other enactment, the emoluments
attached to which are paid directly from the Consolidated Fund or
other source approved by Government.

5.4. Organisational Structure

a) The Head of the Civil Service

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b) The Civil Service Council
c) The Civil Service Advisory Board
d) The Ministerial Advisory Board

5.4.1. The Head of the Civil Service

 Section 5 (1) & (2) of PNDCL 327 establishes the Office of the Head
of Civil Service with the ten Directorates, Divisions and Units— 3
Directorates, 1 Division and 6 Units. These are:

1) Personnel Policy and Management Directorate;

2) Training and Manpower Development Directorate;
3) Management Services Directorate;
4) General Administration Division;
5) General Services Unit;
6) Salaries Administration Unit;
7) Research Unit;
8) Public Relations Unit;
9) Public Complaints Unit; and
10) Civil Service Reform Co-ordinating Unit.

 Still by the operation of S. 5(3), the composition and functions of the

Directorates, Divisions and Units are determined by the Head of the
Civil Service.

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 6(1) provides for the appointment of the Head of Civil Service, who
by the operation of S. 6(3) shall not hold any other post in the Public
Services while in office.

 The functions of Head of Civil Service are set out in S. 7 as follows –

1) Ensure general efficiency of the Service

2) Have overall charge of all civil servants
3) Ensure effective implementation of government policies plans
for which the Service has responsibility
4) Advise Government on employment policy formulation within
the Service
5) Advise on conduct of management audits and review
6) Initiate action on pay policy for the Service and
7) Determine and advise on manpower limits for the Service.

 S 7(3) provides that regulations may further provide for the details of
the functions of the Head of Civil Service.

5.4.2. The Civil Service Council

 Section 35 (1) & (2) provide for the establishment of the Civil Service
Council, comprising the following persons –

1) a Chairman;
2) a retired Justice of the Superior Court;
3) the Chairman of the Public Services Commission;

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 4) the Head of the Civil Service;
5) a retired senior civil servant;
6) a representative of the National Development Planning
Commission;
7) a representative of the Civil Servant Association; and
8) two other persons one of whom shall be a woman.

 By the provision of S.35 (3), appointment of the members is by the

President.

 Section 36 sets out the functions of the Civil Service Council in the
following terms –

1) to deliberate on the overall government policy relating to the

management of the Service and suggest improvements or
modifications to Government;

2) to promote collaboration between institutions of higher

education for training of civil servants for effective civil service
performance;

3) to advise and promote policies aimed at ensuring that the cost

of the Service to government is not excessive;

4) to periodically review the objectives of the Civil Service in

relation to political, economic, social and cultural changes;

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 5) to make proposals for enhancing the relationship between
Government as employer and members of the Civil Service;
and
6) perform other functions assigned to it under PNDCL 327

5.4.3. The Civil Service Advisory Board

 There is established by the provision of S. 42 of PNDCL 327, the

Head of the Civil Service Advisory Board. This Board is tasked by the
operation of S. 44 to advise the Head of the Civil Service in the
performance of his functions under PNDCL 327

 The members of the Board are –

1) the Head of the Civil Service who shall be chairman;

2) a member of the Public Services Commission;
3) the Director-General of GIMPA;
4) the Commandant, Ghana Armed Forces;
5) the Chief Labour Officer;
6) the Chief Director, Office of the Head of the Civil Service;
7) the president of the Ghana Government Pensioners'
Association;
8) a representative of the Ministry of Finance; and
9) a representative of the Civil Servants Association.

5.4.4. The Ministerial Advisory Board

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 There is also established by the provision of S. 39 of PNDCL 327, a
Ministerial Advisory Board comprising the Minister responsible for
the Ministry who shall be the Chairman; the Deputy Minister of the
Ministry; the Chief Director; and representatives of — three public
sector organisations; and three private sector organisations – with
which the Ministry has the most dealings.

 Section 40 provides that the functions of the Ministerial Advisory

Board are to promote constant interaction between the Ministry and
the users of its services; and advise the sector Secretary on
adjustments in policy direction, planning objectives and operational
strategies.

5.5. Other Statutory Bodies with Advisory of Supervisory Roles

5.5.1. Staff Appointment Advisory Board

 Provision is made per S.46 as amended, for the establishment (by

Regulations) of staff appointment advisory boards in the Service at the
Ministerial, Departmental Levels

5.5.2. Disciplinary Committee

 There is established within the Service, disciplinary committees

responsible for the promotion of discipline in such area of
administration as may be specified – Section 47

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 5.5.3. Civil Service Committee on Administrative Reforms

 There is also established a Civil Service Committee on Administrative

Reforms the objective of which it is to monitor, guide and sustain
administrative reforms initiative in the Service. It is provided that
regulations shall provide for the membership and other functions of
the Committee.

TASK HERE: THERE ARE TOO MANY INSTITUTIONS WITH

SUPERVISORY OR ADVISORY ROLES OVER OR RELATING TO
THE CIVIL SERVICE – DO YOU AGREE?

Outline of Answer

o Outline the object and functions of the Civil Service with the
view of showing how the supervisory and advisory roles of the
respective board fit in

o Identify the different statutory boards and committees, detailing

out their respective functions with the view of determining
whether or not the respective functions repeat themselves and
whether or not they can be performed by one institution

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 o Also discuss the roles of the boards identified in the light of the
many Directorates, Divisions and Units as well as the many
Ministries, Departments within the Civil Service with the view
of determining whether or not those Directorates, Divisions and
Units can perform the roles of the boards identified. On this
read more on the function of the Directorates, Divisions and
Units. See ss 11 – 14

o Also assess the size of the Civil Service, perhaps less than
necessary advisory and supervisory boards may be
overwhelmed by the sheer volume of work.

o NB: The Civil is also subject to the Public Service Commission.

5.5.4. Disciplinary Procedures

 There exist two types of procedures - summary proceedings and

formal proceedings.

 EPUBLIC v. GHANA NATIONAL MUSEUM BOARD; EX

PARTE NUNOO [1980] GLR 377

The applicant was employed as a custodian superintendent by the

respondent. Per his appointment letter, the applicant was to be subject to
the disciplinary rules and regulations prescribed for public servants as
contained in the Civil Service (Interim) Regulations, 1960 (LI 47). The

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 applicant dismissal followed a burglary at the respondent’s headquarters.
He was neither queried nor charged with any misconduct. Neither was he
given any notice to show cause why he should not be dismissed. He
therefore presented this application for an order of certiorari to quash the
decision of the respondent dismissing him from their employment on the
ground that the order was illegal as being contrary to the Civil Service
(Interim) Regulations, 1960 (LI 47), which had been incorporated into his
conditions of service.

Held, granting the application: By the incorporation of LI 47 in the

appointment letter of the applicant, the respondents had nullified their
common law right of termination simpliciter in that whenever any
termination was the result of some punishment, such termination and
dismissal became a disciplinary measure and resort had to be had to
proceedings under LI 47 before notice of termination could be properly
served. LI 47 required formal proceedings in the case of the applicant,
framing of charges and service of the same on the applicant and a
demand of the applicant to show cause why he should not be removed
from the services when the board so decided. All these procedural forms
were in the instant case ignored by the respondents with the result that
there was breach of the rule of natural justice, which demanded the
giving of prior notice with adequate opportunity to be heard in answer.

5.6. CODE OF CONDUCT

TASK HERE: IT MY VIEW THAT AS A CIVIL SERVANT, TO ASSIST IN THE

ESTABLISHMENT OF A TIMBER COMPANY … [MEANT THAT THE

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PLAINTIFF WAS GUILTY OF] ..” PER ANSAH-TWUM J. IN AMPOFO v.
FIORINI. IS THAT STILL THE LAW? WOULD THAT CASE HAVE BEEN
DECIDED DIFFERENTLY ON THE PRESENT STATE OF THE LAW

 The issue at stake here was whether the plaintiff, a civil servant at the
material time, could in fact, acquire any business interest for which he
was to obtain a private financial gain without contravening the terms
of his employment or C.A. 5?

 Ansah Twum J. based that statement on s. 26 (d) of the Civil Service

Act (C.A. 5), which provided that it is a misconduct for a civil servant
"to engage in any activity outside his official duties which is likely to
involve him in political controversy or to lead to his taking improper
advantage of his position in the Civil Service."

o Full Statement: “it is my view that as a civil servant, to assist in

the establishment of a timber company while still an [p.838]
authorised officer in the Forestry Department with
foreknowledge of timber concessions in the area; and also, by
negotiating the assignment of a timber concession to that
timber company from which he would obtain thirty-five per
centum (35%) of the net annual profits, the plaintiff, as a civil
servant became guilty not of a mere misconduct, but of a gross
breach of the faith imposed in him as such a public officer. The
conduct of the plaintiff was likely to interfere with the due and
faithful discharge of his public duties and it also amounted to

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 taking undue advantage of his official knowledge and position
for private gains.”

 Also note that he as well based his argument on s. 6 (e) of CA 5 which

provided that it is a misconduct for such officer to "engage in any
gainful occupation outside the Civil Service without the consent of the
prescribed authority."

 Following from the above he concluded that what the plaintiff did in
the circumstances of this case, was clearly in contravention of CA 5.
There is very little doubt, if at all, that the plaintiff decided to use his
official position and knowledge to help establish those timber
companies mainly because of the huge private financial gains that he
was promised and which he expected. It is doubtless that, human
nature being what it is, the plaintiff was highly influenced in his
decisions regarding the establishment of the timber companies of the
defendant, by the good prospect of private financial gains.

 CA 5 has since by PNDCL 327 – i.e. by the operation of s. 95 of

PNDCL 327.

 S. 68 of PNDCL 327 provides that “Civil servants may engage in paid

consultancies and other income-generating activities subject to such
conditions as may be prescribed by regulations.” Thus S. 68 allows
private businesses.

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 This is however subject to the provision of S. 88 which provides that
“a civil servant shall not put himself in a position where his personal
interests conflict or is likely to conflict with the performance of his
office.” Thus, to the extent that a civil servant who is engaged in paid
consultancies and other income-generating activities, does not put
himself in a position where his personal interests conflict or is likely
to conflict with the performance of his office, he does nothing wrong.

 The question to be determined then is, in what circumstance may a

Civil Servant be said to have put himself? Section 77 (e) & (f) appear
to give some clue. By those provisions, it is misconduct for a civil
servant—

o to engage in any gainful occupation outside the Civil Service

without the consent of the prescribed authority;
o to engage in any activity outside his official duties which is
likely to lead to his taking improper advantage of his position in
the Civil Service.

o Consent from the relevant authorities is therefore important for

a civil servant to bring himself within the provision of s. 68 of
PNDCL 327. The engagement by the Civil Servant should as
well not be one, which is likely to lead to his taking improper
advantage of his position in the Civil Service.

Page 37 of 82
 o See also Chapter 24 of the Constitution and include the relevant
portions in the arguments

 On the facts of Ampofo v. Fiorini, it could be observed that the

plaintiff did not have the consent of the relevant authorities. At all
material points in time, the plaintiff took improper advantage of his
position in the Civil Service. He decided to use his official position
and knowledge to help establish those timber companies mainly
because of the huge private financial gains that he was promised and
which he expected. As Ansah Twum rightly pointed out, the plaintiff
remained an authorised officer at the Takoradi harbour for at least two
years after the formation of the defendant's timber business before he
retired. As an authorised officer dealing with the examination,
measurements, certification, etc. of logs, there was every tendency for
the plaintiff's dealings and decisions regarding the defendant's logs
sent to the harbour for examination, measurement, certification, etc. to
be unduly influenced by the plaintiff's expected private financial gains
from the defendant's companies. Any such consideration influenced
by private financial gains was bound to be injurious to the public
interest. His expected interest was bound to conflict with his official
duties, and that is against public policy.

 For the above reasons, the case will be decided the same today.

Page 38 of 82
MAKING AN ACT OF PARLIAMENT.

Define Legislation:This concept is closely related to the concept of parliamentary

sovereignty. However, the truth is that parliament is not sovereign, the constitution is see
Exparte Bombelli

FACTS: The applicant, an Italian, was in 1975 granted a Ghanaian resident permit. Four
months before the expiration of the permit, he was deported by virtue of the Enzo
Bombelli Deportation Order, 1980 (EI 27 of 1980) issued by the Minister for the Interior
in pursuance of his discretion under the Aliens Act, 1963 (Act 160), s 12 (1) (f) which
provided that an alien was liable to deportation if in the opinion of the minister, his
presence in Ghana was not conducive to the public good. Subsequently, the minister at a
press conference gave his reasons for making the deportation order. In the instant
application for certiorari to quash the order, counsel for the applicant argued, inter alia,
that the executive instrument issued by the minister was invalid because it contravened
article 4 (7) (a) of the Constitution, 1979 which mandatorily required the order to be laid
before Parliament for days before becoming effective. On these facts,

HOLDING: ...’it is firmly established that a claim for declaration and an application for
the prerogative writ of certiorari cannot be married in one action.’

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...My first task is to determine whether the deportation order is an act, which is review
able by the court, and if so whether certiorari is the proper remedy. The basic principles
are that the court is competent to pass judgment on the legality of acts done by the
administrative or executive authority and its officials and that the court will exercise
supervisory control over inferior tribunals and keep them within their allotted
jurisdiction. The exercise of discretionary power conferred by statute on the
administrative or the executive authority will be subject to the supervision of the High
Court to see that the power is exercised legally, i.e. within the confines of the law, and
the basis of control is legality rather than merits. The review by the court shall be based
on the legality of the proceedings. However, if the minister acts within his jurisdiction
and no appeal is provided by the statute conferring the power, his act will be
immune from judicial control.

It is only when the minister exceeds his powers that a court of law can quash his decision
or declare it to be legally invalid. This jurisdiction is exercised principally by the
award of certiorari to quash. In the exercise of statutory powers, directly affecting the
interests of individuals it is nearly always reviewable at the instance of the person having
appropriate locus standi. The power of the court to supervise the exercise of powers
conferred by statute is based on the fundamental principle inherent throughout the
English legal system, which we have received in this country. These powers can be
validly exercised only within their true confines. It follows that where the power
exercised comes within the power conferred by statute but is contravened because
some condition set by the statute is ignored, the court may intervene and review the
decision thus made.

5 stages involved in making an act and bringing it into force:

1) Presentation of a bill;
2) Deliberation in Parliament on the Bill;
3) Exercise of Presidential Power of assent;
4) Publication of the Act;
5) Specification of a commencement date.

1) Presentation of a bill:
 A bill may be introduced into parliament by any member thereof or by a Minister
of State, even if, that Minister is not a member of Parliament.
 It is constitutionally possible to have legislation sponsored as a private members
bill, the position as a matter of fact is that all Acts have been initiated by
Government. In 1969 J. A kufuor attempted to introduce a private members bill
for the decentralization of the passport office.
Historically, there has never been a private members bill that has been made into
law.
 This is due to Article 108 which states that parliament shall not proceed upon a
bill, that in the opinion of the person presiding has financial implications such as
the imposition of charges on the consolidated fund or other public funds, the
imposition of taxation etc.

Page 40 of 82
  Secondly, it is difficult to draft a bill. The cost involved, the background
research, the drafting of the memorandum etc. The parliamentarians don’t have
that capacity
Workers of the Assembly press i.e government printers may not be aware of the
private members bill. (Administrative problems)
Thirdly, the government of the day may adopt bills they think are good and shoot
down those they think are bad.

 With the exception of financial bills( such as one imposing taxes or authorizing
payments from public funds) and those considered under a certificate of urgency,
a bill must be published in the gazette at least fourteen days before it is first
introduced into parliament. Financial bills and bills considered under a certificate
of urgency must be published in the Gazette within 24 hours of the first reading or
as soon as practicable after that.

 Art 106 (2a): states that Apart from financial bills, every other bill must at the
time of its introduction in Parliament be accompanied by an explanatory
memorandum setting out in detail its policy and principles, the defects of the
existing law, the remedies proposed to deal with those defects and the necessity
for its introduction.

2) Deliberation in Parliament: The following are the stages involved in the passage of a
Bill through Parliament.
a) first reading.
b) the committee stage.
c) the second reading.
d) the winnowing stage.
e) the consideration stage.
f) the third reading.

 The first reading is a mere formality; the speaker calls the Member or Minister in
whose name the bill stands; he or she stands and bows to the speaker, the clerk
then reads out the long title of the bill.

 Thereafter, it is referred to a Committee to examine in detail and report to

Parliament.

 At the second reading the principle of the bill is debated, as opposed to the clause
by clause textual analysis which is reserved for the consideration stage.

 At the winnowing stage members are asked whether they have any amendments,
reservations etc

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  It is possible for a bill to go thru a second consideration stage either in respect of
the whole or part of the bill. If parliament accepts a motion by a member to that
effect. It is at this latter stage that amendment to the bill may be proposed.
In between the 2nd reading and consideration stage parliament has introduced a
procedure not stipulated in the standing orders, in this procedure, proposed amendments
are discussed in small groups before they come up before the house. This group consists
of Leader of Majority party as chairman, the initiator of the bill, chairman and clerk of
cttee which examined it, parliamentary draft person, reps of political parties in Parliament
and those who have proposed amendments on it.

Purpose is to identify and attempt to eliminate overlaps or duplication on amendments. It

is also used to dissuade the sponsor of amendments from pursuing them if they are
thought to be ill considered or based on a misapprehension of the law or of the relevant
fact. The draft person also takes time to improve the drafting of the proposed
amendments that it has been agreed will be put before parliament.

 After the consideration stage is the third reading. Except for urgent bills, at least
24hours must elapse between the consideration stage and the 3 rd reading, not
counting days on which parliament does not sit.

 Third reading consists of a motion that the bill be now read the 3 rd time.
Secondment of motion by a member, a vote and if the motion is agreed to, the
reading aloud by the clerk of the long title of the Bill. Thereupon the bill is taken
to have been passed by parliament.

 The procedure for opposing a bill at the 3 rd reading is to move an amendment

asking that the ‘Bill be now rejected.’

3) EXERCISE OF THE PRESIDENTIAL POWER OF ASSENT:

The assent of the president to a bill passed by parliament is required to give it the
status of law. After the bill has been passed by parliament it is handed to the president
who is required within 7dys of its presentation to him, to signify to the speaker his
assent to the bill.

If he indicates that he has refused his assent, within 14days of such refusal, he must
either have referred the bill to the council of state for consideration and informed the
speaker of that fact or else he must have sent out in a written memorandum particular
provisions which he wants parliament to reconsider, with any recommendations he
wishes to make for amendments.

Under the 79 Constitutions, the council of state could, on its own initiative, consider
a bill before or after it has been passed by parliament. By the provisions of the 92
Constitution, the council can only consider a bill refered to it by president (or in the
case of a bill for the amendment of the Constitution by the Speaker of Parliament). He
need not wait till the bill has been passed; he may make the reference after after it has

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been published in the gazette. Except for bills passed under certificate of urgency (the
outcome of whose consideration must be reported to the president within 72hours)
and financial bills (to which the President must give his assent when they are
presented to him) the council has to complete deliberations not later than 30dys after
the third reading of the bill.

Parliament can override the President’s rejection of a bill by a resolution supported by

at least two-thirds of its membership. If such a resolution is adopted, the president is
required to signify his assent not more than 30dys thereafter.

4. AND 5. PUBLICATION OF THE ACT AND ITS COMMENCEMENT

DATE.
Article 106(11) stipulates that even after a bill has been passed by parliament and
received the presidential assent it ‘shall not come into force unless it has been
published in the gazette.’

The significance of this provision can be measured by reference to the

circumstances in
REPUBLIC V. DIRECTOR OF PRISONS, EX PARTE SALIFA.
REPUBLIC V. DIRECTOR OF SPECIAL BRANCH; EX PARTE SALIFA.
Both cases involved habeas corpus applications on behalf of the same eighteen year
old youth. In both instances, the government lawyers produced in support of the
detention, a document signed by the Chairman of the National Liberation Council
( the legislative body at the time) which document expressed itself to be a decree and
contained a provision authorizing the detention retroactively and ‘notwithstanding
that…[the document had] not been published in the gazette.’ The copy that was
produced did not come from the Government printer and in the case against the
director of special branch, the judge noted that what was produced was not printed;
presumably, it was a copy of the typewritten version of the sort sent to the
government printer after it has been signed. Thus, it was a document that would
typically be available only within the Government machinery, but not to members of
the public.

Under our current arrangements, draft legislation would have been published and the
debates on it in parliament would, normally, have received some publicity. However,
the text of an act as passed by parliament and consented to by the president would not
be generally available outside Government circles until printed and put out for
dissemination( by sale or otherwise) by the Government printer. What article 106(11)
requires, evidently, is that until thus put out for dissemination, the provision of an act
cannot take effect. Thus even where a commencement date is stipulated in an Act, it
is necessary to ascertain the date on which it was published- in order to determine
whether the prescribed commencement date can lawfully take effect.

The practice of printing Acts of parliament gave rise to 2 issues regarding this
provision.

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1) since 1960 Acts have not been printed literally in the gazette. Instead the Gazette
contains a notification to the effect that a particular Act has been printed
separately. This practice was authorized by the Official Publications Act, 1959
which provides in Section 2(1) that “the publication by the Government printer of
any Act, instrument, notice or other document otherwise than in the Gazette shall,
if notice of the publication thereof is given in the Gazette have the like effect for
the purposes of any Act requiring publication in the Gazette…as if the document
had been published in the Gazette on the date on which notice of the publication
was given therein; Provided that this section shall not apply to the publication of
bills.”
In other words, the meaning of Section 2(1) of the official publications act is that
where the constitution requires publication in the Gazette, publication elsewhere
coupled with notice in the Gazette of such publication should suffice.

It goes without saying that when there is an inconsistency between a provision of the
constitution and that of an Act of parliament, the latter is invalid. However, the better
view in this instance is that the Official publication Act and the Interpretation Act are
serving as a dictionary providing a rule of construction to the effect that where the
Constitution or any other enactment require “publication in the Gazette,” they must
be taken to mean, in the absence of express indication or necessary implication to the
contrary “publication in the gazette or notice in the Gazette of publication [elsewhere]

In short, the practice of publishing acts separately and giving notice in the Gazette of
such publication should be accepted as being in compliance with article 106(11) of
the Constitution.

2) The second issue raised by printing practice relating to the gazette is that it is not
certain that the date that a particular issue bears is necessarily the date on which it
was actually printed or on which it was first made available to the public;
presumably due in large to the dire logistical situation of the Government printer.

An example of the legal difficulties that can be caused by a disparity between the date
the Gazette bears and the date of printing occurred in
MEKKAOU1 V. MINISTER OF INTERNAL AFFAIRS AND ANOR.
It is provided by the Armed Forces Revolutionary Council (Establishment)
Proclamation, 1979, s. 3 (7) that:
"3. (7) A decree made by the Revolutionary Council shall, unless otherwise provided
in that decree, come into force on the date of publication of that decree in the
Gazette."
The plaintiff (M), a Lebanese by birth, acquired Ghanaian citizenship by
naturalisation under the Ghana Nationality Act, 1971 (Act 361), in June 1976. On 4
January 1980, M was informed by the Chief Immigration Officer that he had been
denaturalised by the Ghana Nationality (Amendment) Decree, 1979 (A.F.R.C.D. 42),
and therefore had to leave Ghana by 21 January 1980. M therefore brought an action
for, inter alia, a declaration that (a) A.F.R.C.D. 42 was null and void as being contrary
to the Proclamation, 1979; (b) A.F.R.C.D. 42 was published after 24 September 1979

Page 44 of 82
and was therefore null and void; (c) A.F.R.C.D. 42 was not an executive, legislative
or judicial act of the Armed Forces Revolutionary Council (A.F.R.C.) which had
assumed the reins of government on 4 June 1979 and vacated office or ceased to exist
on 24 September 1979; and (d) M was a citizen of Ghana by naturalisation,
A.F.R.C.D. 42 notwithstanding.
In opposing the action, the defendants contended, inter alia, that (i) A.F.R.C.D. 42
was not published after 24 September; it was made on 17 September 1979; came into
force on 4 September 1979 and was, in fact, published in Gazette No. 45 of 22
September 1979, and (ii) by virtue of section 15 (2) of the transitional provisions of
the Constitution, 1979, M could not question the legislative act of the A.F.R.C. in
any court. However, evidence led on behalf of M by an employee of the Government
Printer established, inter alia, that: (1) though a signed manuscript of A.F.R.C.D. 42
was received from the Attorney-General's Office on 19 September 1979, there was
then no commencement date on the manuscript; (2) on receipt of the proof of the
manuscript from the Attorney-General's Office on 11 October 1979, 4 September
1979 had been inserted as the date of commencement; and (3) Gazette No.45 in
which A.F.R.C.D. 42 was published was printed in October even though the gazette
was dated 22 September 1979.
In an affidavit sworn on behalf of the defendants it was deposed that (a) the Attorney-
General's Office had on 4 September 1979, received oral instructions from the
A.F.R.C. to draft a Decree to denaturalise certain specified persons, including M; (b)
by a letter dated 5 September 1979, the A.F.R.C. confirmed its instructions that the
specified persons should be denaturalised with immediate effect; (c) a Decree drafted
in compliance with the instructions was signed by the Chairman of the A.F.R.C. on
17 September 1979; and (d) in compliance with the A.F.R.C.'s instructions to
denaturalise the listed persons with immediate effect and in consonance with practice,
the office inserted 4 September as the date of commencement of the Decree and
thereafter the publication went through the normal procedure.
The court found on the evidence that (i) the draftsman had inserted 4 September as
the commencement date between 9-11 October 1979 at a time when the A.F.R.C. had
ceased to exist; and (ii) the Attorney-General's Office by a letter dated 27 September,
had instructed that the Gazette No. 45, printed in October, should be given a
retroactive date of 22 September 1979. On the issues, inter alia, whether (a) the
draftsman was competent to have inserted 4 September as the commencement date at
the time he did; and (b) whether A.F.RC.D. 42 had denaturalised M,
Held, allowing the claim (per Archer, Charles Crabbe and Taylor JJ.S.C., Sowah and
Adade JJ.S.C. dissenting): (1) the Armed Forces Revolutionary Council
(Establishment) Proclamation, 1979, had given the A.F.R.C. [p.666] legislative
powers, but those powers had been repealed by the Constitution (Consequential and
Transitional Provisions) Decree, 1979 (A.F.R.C.D. 56). Therefore on or after 24
September 1979 when the constitution, 1979, came into force, neither the A.F.R.C.
nor its chairman, members or agents could make any insertions into A.F.R.C.D. 42
signed by the chairman on 17 September 1979. That Decree was a valid law and an
existing law before the Constitution came into force but without a date of
commencement.

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The signed Decree did not reserve power to anybody to appoint a date for its
commencement. The Proclamation, 1979, s. 3 (7) had provided that where the date of
commencement had been stated in the Decree then it should take effect from that
date; but where no date had been stated then it should take effect from the date of
publication. The evidence showed, unmistakably that the insertion of the date of
commencement was made after the Constitution, 1979, had come into force. And the
date of notification of A.F.R.C.D. 42 in the gazette was stated as 22 September 1979
whereas in fact A.F.R.C.D. 42 was published in Gazette No. 45 in October 1979.
Consequently, what was published as A.F.R.C.D. 42 in October 1979 was null and
void and of no legal consequence.

SPECIAL PROCEDURES FOR THE MAKING OF PARTICULAR

CATEGORIES OF ACTS UNDER THE CONSTITUTION.

1) Urgent bills.
2) Financial bills.
3) Chieftaincy bills.
4) Bills for the Amendment of the Constitution.

1) Urgent bills: A bill determined to be an urgent one by the appropriate committee

need not be published before it is introduced in parliament. However it must be
published within 24hours of the first reading or ‘as soon as practicable thereafter.’
The standing orders permit such a bill to be taken thru all its parliamentary stages
within one day.

There appears to be contradictory provisions regarding the president’s powers in

relation to an urgent bill passed by parliament. With other bills, the president can
refuse his assent, ask parliament to reconsider the whole bill or particular provisions
thereof or refer it to the Council of State ‘for consideration and comment[article
106(8b). If when the bill goes back to parliament, at least two-thirds of its members
vote to support it, the president is required to give his assent within 30 dys. [art
106(10)]. With an urgent bill, however, article 106(13) provides that the clauses
relating, inter alia, to the president’s power to refuse his assent “shall not apply, and
accordingly, the president shall give his assent to the bill on its presentation.”

On the other hand, Article 90 imposes an obligation on the council of State to

consider a bill refered to it by the President, provides in clause (3) that the Council
must complete its consideration of a bill within 30days after the third reading in
Parliament “except that where the bill was passed under a certificate of urgency, the
council of state shall consider it and report to the president within 72hours.

Thus article 90(3) envisages that an urgent bill may be referred by the President to the
Council of State which has 72hours from the third reading to report its views to the
President; article 106(3) on the other hand, requires the President to give his assent to
an urgent bill “on its presentation.”

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Article 90(3) reproduces exactly the words of art 107(3) of the 79 constitution. Under
that Constitution, the council of state had to consider every bill passed under a
certificate of urgency and the presidents obligation to give his assent to the bill on its
presentation was expressly made subject to this obligation of the Council of State.
(Article 107(1)(d),(12)and(13) of the 79 Constitution. Though those express words
are not repeated in the current constitution, it can be submitted that they have to be
implied in order to give effect to the Constitutional provisions as a whole. In other
words, article 90(3) must be taken to qualify article 106(13) and therefore;
1) the President is entitled to refer an urgent bill to the Council of State;
2) the Council must report its views to him within 72 hours of the third reading
3) the president can refer any suggestions by the Council to parliament for the
reconsideration of the bill; but
4) unless Parliament chooses to amend the bill, the president is bound to give his
assent; the special majority provided in art 106(10) to override a Presidential veto
of other bills is not required in the case of an urgent bill.

2) FINANCIAL BILLS: A financial bill is one that would, impose a tax, or create a
charge over public funds or otherwise provide for payment to be made from such
funds or for forgiving any debt due to the Government of Ghana.

Such a bill can only be introduced in Parliament by or on behalf of the President.

Indeed, even an amendment to such a bill can only be introduced by or on behalf of
the President; members of Parliament can formally speaking, only vote for or against
a financial bill, but cannot propose amendments as they can with other bills.

A financial bill need not be accompanied by an explanatory memorandum. Though

the constitution does not require that a financial bill be published in the Gazette,
Order 124 of Parliaments standing Orders provide that if such a bill “has been read
the first time without prior publication…it shall be so published within 24 hours or as
soon as practicable after that.

The president is required by article 106(12) to give assent to a financial bill when
presented to him. Whether the President can refer such a bill to the Council of State
before giving his assent is of less practical significance than is that issue as it relates
to urgent bills, given that the financial bill is in its entirety the Presidents. We have
earlier noted the provision in art 90(3) specifying a period within which the Council
of State were to consider an urgent bill refered to it by the president.

No similar obligation exists with regard to financial bills.

3) CHIEFTAINCY BILLS: Art 106(3) requires that such bills be referred to the
National House of Chiefs before being introduced in Parliament. The National
House of Chiefs does not have a power of veto over chieftaincy bills and is not
bound by its views.

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Chieftaincy bill as defined in Art 106(3): A bill affecting the institution of
chieftaincy shall not be introduced in Parliament without prior reference to the
National House of Chiefs.

4) BILLS FOR THE AMENDMENT OF THE CONSTITUTION:

Constitution can only be amended by an act of Parliament passed for the sole
purpose. There are two sets of procedures for amending the constitution,

1) Applied in amending entrenched provisions: The entrenched provisions are

listed in Art 290(1). They include those relating to the supremacy of the
constitution, the powers of the Supreme Court in its enforcement, the procedures
for constitutional amendment, the protection of fundamental human rights, the
basic allocation of governmental powers between the executive, legislature and
the judiciary.

A bill to amend entrenched provisions must be published at least 6 months before it is

introduced into Parliament. Article 290(2) requires that such a bill be referred by the
speaker to the Council of State for its advice and the council is to render its advice not
more than 30 days after it has received the bill.

Article 290 clauses (4) and (5) provide that after a bill to amend an entrenched
provision has been read the first time, it must be submitted to a referendum of eligible
voters throughout the country; if at least 40% of the electorate votes in the
referendum and the bill receives the approval of at least 75% of the votes cast,
Parliament is bound to pass it and the President must give his assent to it.
Order 133 provides that “no bill shall be deemed to have been passed…unless it has
been read 3times and has passed through the consideration Stage.” In relation to a bill
for amending an entrenched provision of the Constitution which has been duly
approved at a referendum, it is evident that these procedures are formalities that
Parliament will have to take in order to fulfill its obligations to pass the bill; though
individual members may express views in the course of the proceedings contrary to
the terms of the bill, in the end, the institution is required to enact it.

2) Procedure for amending provisions not entrenched: This does not involve a
referendum, a bill must be published twice in the Gazette, the second publication
coming at least three months after the first. The bill cannot be introduced into
parliament at least 10dys after the first publication. After the bill has been read the
first time, the Speaker must refer it to the Council of State which is required to report
its advice within 30dys of its referral. Thereafter the bill is deliberated upon in
Parliament and it is only taken to have been passed if it receives the affirmative vote,
in secret ballot, of at least two-third of all the members at each of the second and third
readings.

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SUBORDINATE LEGISLATION.

1) Constitutional Instruments.
2) Statutory Instruments.
a) Legislative Instruments.
b) Executive Instruments.
c) Statutory Instruments of a judicial character.
3) Bye laws.
4) Statutes and
5) Administrative Instructions.

1.) CONSTITUTIONAL INSTRUMENTS:

1992 Constitution Art 295 defines it as “an instrument made under a power
conferred by this Constitution.” By definition only constitutional instruments
made under the 92 Constitution are constitutional instruments properly so
called. E.g Art 5 provides that Prez may by Constitutional Instrument create
a new region, alter the boundaries of a region or provide for the merger of 2
or more regions after certain procedures have been followed, art 51
provides that the Electoral Cssion may by C.I make regulations for the
effective performance of its functions under the constitution or any other
law.
Art 157 and 281 provide that the rules of court committee may by C.I make
rules and regulations for regulating the practice and procedure of all courts
and commissions of inquiry respectively. Other examples like the Public
Service Commission may make regulations by Constitutional Instruments for
the effective and efficient performance of its functions under the Constitution
subject to the approval of the President and Art 230 which enables CHRAJ to
make C.I regulations regarding the manner and procedure for bringing
complaints before it and the investigation of such complaints.

2) STATUTORY INSTRUMENTS: is defined in the constitution 1992,

[Art 295] as “an instrument made whether directly or indirectly under a power
conferred by an Act of Parliament or a Decree or law”. The Statutory Instruments
Act, 1959 No. 52 defines a statutory instrument as an Instrument made whether
directly or indirectly under a power conferred by an enactment [S3]. and enactment
is defined therein as ‘a provision contained in an act, but does not include any
provision laying down the legislative powers of parliament [S.2]. Thus an instrument
made under the constitution is not a statutory instrument because the constitution is
not an “enactment”. It is clear therefore that both the constitution, 1992 and Act No.
52 of 1959 distinguish between a Constitutional Instrument and Statutory Instrument.

TYPES OF STATUTORY INSTRUMENTS.

Page 49 of 82
a) Legislative Instruments S.4(1) of the Statutory Instruments Act provided that the
Attorney General may by legislative instrument declare that Statutory instruments
made under certain specified enactments are legislative in character and of sufficient
importance to justify separate publication and such Statutory Instruments shall be
legislative Instruments. This was done under the statutory order, enactments 1960 (L.I 9)
by the then A-G, Geoffrey Bing, Labour Act

Statutory instruments made under powers expressed to be legislative instruments are

also to be known as L.I. give examples Sec 66 of Bank of Ghana Act states that B.o.G
may by L.I give effect to the Act.

b) Executive Instruments: These are “statutory instruments either than legislative

instruments or instruments of a judicial character”[S5].
Thus every statutory instrument which is not a legislative instrument as defined in S.4(2)
of the same act and which is not of a judicial character is an Executive Instrument.
Example

c) Statutory Instruments of a Judicial character. This term is mentioned in [S.5] of the

Statutory Instrument’s Act. However, it is not defined in the interpretation section of the
Act.

3) BYE LAWS.
Are made under the authority of an enactment or under a power conferred by an Act of
parliament, a decree or a law and are therefore statutory Instruments within the meaning
of the statutory instruments Act [S.3] and the 92 constitution [Art 295]

They could be considered as E.I’s acc to S.5 of the Statutory Instruments Act since they
are not L.I’s nor are they statutory Instruments of a judicial character. E.gs are Building
bye-laws which may be made under ss.62 of the local government Act also provides for
the making of bye laws by a district Assembly for the purpose of any function conferred
upon it by or under the Act of any other enactment. Sec 19 of Ghana Broadcasting decree
1968 says that the university of Ghana may make bye-laws.

4) Statutes: can be considered as statutory instruments and Executive Instruments for the
same reasons. E.g of statutes are those required to be made by the University Council for
carrying into effect the provisions of the University of Ghana Act. 1961 [Act 79]

5) Administrative Instruments: Examples are those made under the civil service law,
1993 PNDCL 327, they could also be considered statutory and Executive
Instruments like Bye laws and statutes. Section 100 of the Local Gov’t Act 1993
(Act 462) provides that the Minister “may issue guidelines for the making and
levying of rates”. Such guidelines should fall into the category of Administrative
instruments.

Read coming into force of subordinate legislation Art 11(7)

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NATURAL JUSTICE.

1) Nemo judex in causa sua.

2) Audi Alteram patem.
3) Fairness.

1) NEMO JUDEX IN CAUSA SUA:

This principle is reflected in the 1992 Constitution

Article 23—Administrative Justice.

Administrative bodies and administrative officials shall act fairly and reasonably and
comply with the requirements imposed on them by law and persons aggrieved by the
exercise of such acts and decisions shall have the right to seek redress before a court
or other tribunal.

2) AUDI ALTEREM PATEM

L’AIR LIQUIDE GH. LTD V. ANIN

Three boys who were found in possession of some pieces of carbide claimed that the
respondents (employees of the appellant-company) sold the carbide to them. The
respondents were arrested by the depot and technical managers and taken to the
police station. The police, after their investigations, released the respondents and
rather advised the appellants to treat the matter administratively. A committee of
inquiry was therefore set up comprising the technical manager as chairman, the depot
manager and a member each of the local union of the Trades Union Congress and the
Committee for the Defence of the Revolution to investigate the alleged stealing
charge. Following the inquiry, the respondents were summarily dismissed.
Aggrieved, they brought an action at the Circuit Court, Accra for unlawful dismissal
on the ground that the inquiry violated the principles of natural justice because they
were not given proper hearing. The court gave judgment for the respondents. On
appeal by the company,:

Held, dismissing the appeal: whenever people were given power by law to consider
facts and to arrive at conclusions affecting the fate of human beings, they were
performing a quasi-judicial function and if the body violated the rules of natural
justice the courts had power to declare the procedure invalid, as well as the
conclusions therefrom. In the instant case, the administrative inquiry violated the two
cardinal principles of natural justice, namely a man might not be condemned unheard,
and secondly, a man must not be a judge in his own case. Since the evidence showed
that the respondents were threatened with incarceration if they did not give answers

Page 51 of 82
 the investigators expected to hear, and they were also not given the chance to
confront their accusers, nobody given such a trial could seriously be said to have been
heard. And since the members of the committee of inquiry included the same people
who arrested the plaintiffs and sent them to the police station, members who were
very much interested in the subject they were investigating, they were in the position
of the accusers being made judges in their own case. Consequently both the inquiry
and the dismissal of the respondents were unlawful.

DARKWA V THE REPUBLIC

The appellant, a former senior police officer, had adverse findings made against her by
the committee appointed under the Committee of Inquiry (Recent Disturbances in the
Police Force) Instrument, 1979 (EI 38). She was subsequently retired from the police
service by a letter based on the recommendations of the committee of inquiry and in
accordance with the provisions of AFRCD 12, s. 1 (1).
She therefore in the instant proceedings appealed against the findings of the committee
and sought a reversal of all the adverse findings made against her and also her
reinstatement. Counsel for the appellant argued, inter alia, that the committee failed to
perform its statutory duty in that it was enjoined to "investigate" and "inquire by its
establishing instrument, EI 38 of 1979, and the use of those words meant a duty to
observe the rules of natural justice. It was submitted on behalf of the respondent that
under EI 38 of 1979, the committee had the power to regulate its own procedure and it
was not required to sit as a court of law nor to follow the rules of evidence.

Held, allowing the appeal

(1) a committee of inquiry, like a commission of inquiry, was a fact-finding tribunal not a
criminal trial. Its work implied the discovery of truth which ought to be balanced against
the interest of the individual; it therefore had a duty to ascertain the truth before making a
finding. Its nature partook of the exercise of judicial function, i.e. the taking of decisions
and thus it had a duty to do what was reasonable in the circumstances. Because of those
considerations, a committee of inquiry had certain obligations. It had the obligation to be
candid and fair, to observe the audi alteram partem rule and a bounden duty to [p.242]
observe the rules of natural justice. In its judicial connotation an "investigation or
inquiry" embraced the expression "due inquiry" which presupposed that the person
against whom an allegation was made should have been permitted to challenge the very
allegations against him and to have had the right to call evidence to support his
contentions, especially where (as in the instant case under paragraph 10 of EI 38 of 1979)
the findings might result in a "prosecution, . . . dismissal, removal, retirement, or
reduction in rank." The adverse findings in the instant case would therefore be set aside
because there was no record that the appellant had been given any opportunity to cross-
examine in person those who had made the allegations against her, neither was any
person called to substantiate any of the said allegations. Her reasonable explanations
were also rejected without any reason. Dictum of Lord Simon L.C. in General Medical
Council v. Spackman [1943] 2 All E.R. 337 at p. 340, H.L. cited.

Page 52 of 82
(2) The basic procedure of commissions and committees of inquiry consisted of
collecting evidence, taking statements from witnesses, presenting their evidence, testing
the accuracy of the evidence and finally finding the facts. In the instant case, the
committee erred because the most important aspect of the basic procedure, i.e. the testing
of the accuracy of witnesses was not done.
Per Charles Crabbe J.S.C. Allegations must needs be substantiated. Or else what is the
need of a fact-finding inquiry? And agents of the government of the day, charged with
such awesome responsibilities, which involve the fame and fortune of fellow human
beings, need to proceed by the established standards. Their failure to do so could defeat
the purposes of the very exercise which called into being their very existence. Their zeal
may blind their vision and defeat their purpose.
(3) The power conferred on the Armed Forces Revolutionary Council and the Inspector-
General of Police to act under section 1 (1) of A.F.R.C.D. 12 was dependent on the
existence of a recommendation made by the committee. The existence of such a
recommendation was therefore a sine qua non for the validity of any act done under
A.F.R.C.D. 12. The recommendation having been set aside, there no longer existed any
legal basis or jurisdiction justifying keeping the appellant out of the Police Force. Also it
was precisely against such unjust dismissal or removal, like that of the appellant from
office, that the Constitution, 1979, art. 155 (b) provided that no member of the public
service should be dismissed or removed from office or reduced in rank or otherwise
punished without just cause.
Per Edward Wiredu J.A. (i) Section 3 of A.F.R.C.D. 12 is an ouster clause which places
an injunction on the courts to question what has been done within the provisions of
section 1 (1) of the Decree so long as jurisdiction to invoke its provisions exists. In other
words, so long as there exists a recommendation to justify any act done thereunder, such
act should not be questioned in any court. The position here is that the findings and the
recommendation against the appellant having been set aside, wherein lies the jurisdiction
to invoke the provisions of section 1 (1) of A.F.R.C.D. 12?
(ii) The letter in issue emanated from a power conferred under A.F.R.C.D. 12 (1) . . . so
that even in this regard the recommendations against the appellant having been set aside,
jurisdiction to invoke the provisions [p.243] of A.F.R.C.D. 12, s. 1 (1) is taken away and
the basis for the legal effect of the letter is removed and the letter ceases to be an
executive act within the language of section 15 (2) of the transitional provisions of the
Constitution, 1979.

DISCRETIONARY POWER;

OWUSU V. ADJEI
It is provided by section 7 of the Administration of Lands Act, 1962 (Act 123) that:
"7. (1) Where it appears to the President that it is in the public interest so to do he may,
by executive instrument, declare any Stool land to be vested in him in trust and
accordingly it shall be lawful for the President, on the publication of the instrument, to
execute any deed or do any act as a trustee in respect of the land specified in the
instrument.

Page 53 of 82
(2) Any moneys accruing as a result of any deed executed or act done by the President
under subsection (1) shall be paid into the appropriate account for the purposes of this
Act."
And it is also provided by section 1(1) of the State Lands Act, 1962 (Act 125) that:
"1. (1) Whenever it appears to the President in the public interest [p.495] so to do, he
may, by executive instrument, declare any land specified in the instrument, other than
land subject to the Administration of Lands Act, 1962 (Act 123), to be land required in
the public interest; and accordingly on the making of the instrument it shall be lawful for
any person, acting in that behalf and subject to a month's notice in writing to enter the
land so declared for any purpose incidental to the declaration so made."
Subsequently, section 1(1) of Act 123 was amended by the State Lands Act, 1962
(Amendment) Decree, 1968 (NLCD 234) to confer discretionary powers on the
government to declare by an executive instrument any land to which Act 123 is subject,
to be required in the public interest if it appeared to it to be so required. Sometime in
1971, the government acquired two pieces of stool lands in the Kumawu Traditional Area
for the purpose of creating a strict natural reserve and national park under the Wildlife
Reserves Regulations, 1971 (LI 710) enacted under the Wild Animals Preservation Act,
1961 (Act 43). The chiefs and kingmakers of the Kumawu Traditional Area falsely and
fraudulently represented to the government that the acquired lands belonged personally to
them. Therefore the minister (the Lands Commission) after collecting the revenue
accruing as compensation for the acquired lands in accordance with section 17 of Act
123, paid it to the chiefs instead of paying it into the appropriate stool lands account as
directed by section 7(2) of the Act. Following the failure of the recipients to pay the
moneys into the stool lands account, some citizens of the Kumawu Traditional Area, as
representatives of the oman or the Kumawu State issued a writ at the High Court for an
order to compel them to do so. At the High Court, it was urged, inter alia, on behalf of
the defendant-chiefs that under Act 123, the Minister responsible for Lands or the Lands
Commission was the only person or body statutorily empowered to pursue claims in
respect of stool lands revenue hence the plaintiffs had no locus standi. And furthermore,
the plaintiffs were not competent to represent the oman or the Kumawu State. The trial
judge held, inter alia, that the plaintiffs were competent to bring the action and that since
the chiefs had fraudulently claimed the compensation, the plaintiffs were entitled to
recover the moneys from them: see Owusu v Agyei[1980] GLR 1. On appeal by the
defendants to the Court of Appeal, the judgment of the trial judge was reversed on the
grounds, inter alia, that the plaintiffs had no locus standi and could not urge the grounds
of necessity under the exceptional circumstances outlined by the Court of Appeal in
Kwan v Nyieni [1959] GLR 67, CA to clothe them with capacity. The Court of Appeal
also declared the acquisition to be invalid. On appeal to the Supreme Court by the
plaintiffs from that decision,
Held, allowing the appeal:
(1) the government's acquisition of the Digya and Kogyae lands was valid because:
(a) the rule was that no principle of justice, convenience or logic should permit
procedural law to encroach upon substantive rights. That statement of the law which was
supported, inter alia, by the maxim "that which ought to have been [p.496] done was
presumed to have been done", had been restated in the Evidence Decree, 1975 (NRCD
323), s 37(1) under which it was presumed that official duty had been regularly

Page 54 of 82
performed. Furthermore, the question whether provisions in a statute were directory or
mandatory was generally resolved by examining the known objectives of the statute. The
court would not permit the mischief of splitting hairs on the true construction of a statute
to undo accomplished objectives of the statute. Since the paramount objective of the
acquisition of the parcels was to transform them into a national park and strict nature
reserve respectively, and that objective had been achieved with the physical
transformation of the two parcels despite any shortcomings that bedevilled their
acquisitions and moreover, the government had substantially honoured its obligations by
paying compensation after claims had been lodged in due compliance with the Wildlife
Reserves Regulations, 1971 (LI 710), the fact that the claims were irregularly made or
that the sums fell into wrong hands were issues which should not affect the validity of the
acquisition. Dictum in Montreal Street Railway Co v Normandin [1917] AC 170 at 175,
PC applied.
(b) It was significant that in both the Administration of Lands Act, 1962 (Act 123) and
the State Lands Act, 1962 (Act 125) and also the State Lands Act, 1962 (Amendment)
Decree, 1968 (NLCD 234) the permissive "may" had been employed in relation to the
President's discretionary powers of publication or declaration of a necessary public
acquisition or utility. In the instant case, all that the government did was to declare and
publish its intention by a legislative instrument, ie the Wildlife Reserves Regulations,
1971 (LI 710) rather than an executive one. That legislative instrument became a
permissive alternative to an executive expression which could by presidential discretion
have remained silent and unpublished. Accordingly, the acquisition could not be
invalidated even if LI 710 was enacted under the provisions of the Wild Animals
Preservation Act, 1961 (Act 43) and not Act 123 or Act 125.
Per Osei-Hwere JSC both courts [ie, the High Court and the Court of Appeal] were
eluded by the impact of the subsequent amendment to section 1 of Act 125 contained in
the State Lands Act, 1962 (Amendment) Decree, 1968 (NLCD 234) ... The provision in
the amending Decree that "the Administration of Lands Act, 1962 shall not apply to any
such land . . ." seems clearly to mean that the regimen of the administration contemplated
under Act 123 . . . cannot be called into service in respect of such stool lands
compulsorily acquired under section 1(1) of Act 125. The acquisitions herein,
accordingly, fell under the scheme provided under Act 125.
[p.497]
(2) The appellants were competent to bring the action they did because:
(a) the principle in Kwan v Nyieni [1959] GLR 67, CA providing exceptions to the
general rule that the head of family was the proper person to institute suits for recovery of
family land was not confined to land. Under customary law wherever those clothed with
authority to protect family interests failed to do so but rather formed an unholy alliance or
conspiracy to damage the interests of the family an urgent situation had to be deemed to
have arisen allowing for a relaxation of rules and permitting more responsible members
of the family to protect the endangered family interests. Since the respondents who
should have protected Kumawu stool revenue formed an unholy alliance to enrich
themselves at the expense of the state, their conduct which amounted to fraud disabled
them from performing their duty in preserving Kumawu stool revenue. And it could
hardly be expected that they would take steps on their own volition to refund moneys
they had illegally appropriated or rather misappropriated. In the circumstances, it was

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only the plaintiffs who were the remaining entity capable of championing the rights of the
state. Accordingly, the exceptions to the general rule in Kwan v Nyieni (supra) applied
to clothe them with capacity.
(b) Since the co-defendant joined the suit not as a chief but in his private capacity, that
insulated the stool and permitted the moneys to be traced to him and recovered without
any breach of constitutional proprieties.
(c) Order 16, r 9 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) required
that the plaintiffs had to have a common interest, common grievance and common
benefit for a representative action on behalf of the oman to be valid. In the instant case,
the plaintiffs were citizens of the town and therefore had a fundamental traditional role to
play in constitutional issues of the state and by virtue of their citizenship had a stake in all
moneys payable on the acquisition of stool land and their proper utilisation. Accordingly,
in the circumstances of the case, they were entitled to sue on behalf of the oman.
(d) The provisions of Act 123 transformed moneys derived from the acquisition of stool
lands into a trust fund. Since section 7(2) of the Act required that moneys accruing from
the President's act of vesting stool lands in himself upon trust, should be paid into the
"appropriate account", it followed that whoever held such trust funds [p.498] could be
proceeded against to disgorge the sums for payment into the "appropriate account." Such
trust funds could be followed and retrieved wherever they were illegally directed under
the equitable doctrine of following or tracing trust property. No barricades could legally
be erected to sustain rank or status while subverting and undermining that trust principle.
Since the co-defendant failed to deposit the sum in the appropriate account as ordained by
law, he could receive no protection for his illegal conduct by relying on the traditional
immunity from accountability. That principle could not be urged as a cloak for fraud.
(e) Section 17 of Act 123 did not provide that the Minister responsible for Lands (or the
Lands Commission) was the sole vehicle for pursuing revenue claims in respect of stool
lands. It was obvious that since there were often contested claims between various stools,
it would be impossible for the minister or the Lands Commission to despassionately
represent all the various stools. In any case, section 17 sought to regulate and promote
the orderly management of stool revenue but did not encroach on the inalienable rights of
stools to their title to land.
Per Wuaku JSC. The fear of embarrassment to a chief should not be the ground for a
chief not to account when a genuine demand for an account is made by his subjects ... it
was Mensah Sarbah who enunciated the principle of immunity of the head of family from
accountability which was later extended to cover occupants of stools. Now that by the
Head of Family (Accountability) Law, 1985 (PNDCL 114), a head of family is made
accountable to his family, I would recommend a similar law to be made by the legislature
to cover occupants of stools . . .

NATURAL JUSTICE – fairness

Issues related to code of conduct of public officers
Tenure of office
Possible remedies

Page 56 of 82
Possible venues

Fairness (also bear in mind audi alteram partem and nemo

judex in causa sua)
R v. Liverpool Corp
Council for Civil Service Union v. Minister for Civil Service
Article 296—Exercise of Discretionary Power.
Where in this Constitution or in any other law discretionary power is vested in any person
or authority—
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased
either by resentment, prejudice or personal dislike and shall be in accordance with due
process of law; and
(c) where the person or authority is not a judge or other judicial officer, there shall be
published by constitutional instrument or statutory instrument, regulations that are not
inconsistent with the provisions of this Constitution or that other law to govern the
exercise of the discretionary power.

Code of conduct

CHAPTER TWENTY-FOUR—CODE OF CONDUCT FOR PUBLIC OFFICERS

Article 284—Conflict of Interest.
A public officer shall not put himself in a position where his personal interest conflicts or
is likely to conflict with the performance of the functions of his office.

Article 285—Other Public Appointments.

No person shall be appointed or act as the Chairman of the governing body of a public
corporation or authority while he holds a position in the service of that corporation or
authority.

Article 286—Declaration of Assets and Liabilities.

(1) A person who holds a public office mentioned in clause (5) of this article shall submit
to the Auditor-General a written declaration of all property or assets owned by, or
liabilities owed by, him whether directly or indirectly—
(a) within three months after the coming into force of this Constitution or before taking
office, as the case may be,
(b) at the end of every four years; and
(c) at the end of his term of office.
(2) Failure to declare or knowingly making false declaration shall be a contravention of
this Constitution and shall be dealt with in accordance with article 287 of this
Constitution.
(3) The declaration made under clause (1) of this article shall, on demand, be produced in
evidence—
(a) before a court of competent jurisdiction; or

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(b) before a commission of inquiry appointed under article 278 of this Constitution; or
(c) before an investigator appointed by the Commissioner for Human Rights and
Administrative Justice.
(4) Any property or assets acquired by a public officer after the initial declaration
required by clause (1) of this article and which is not reasonably attributable to income,
gift, loan, inheritance or any other reasonable source shall be deemed to have been
acquired in contravention of this Constitution.
(5) The public offices to which the provisions of this article apply are those of —
(a) the President of the Republic;
(b) the Vice-President of the Republic;
(c) the Speaker, the Deputy Speaker and a member of Parliament;
(d) Minister of State or Deputy Minister;
(e) Chief Justice, Justice of the Superior Court of Judicature, Chairman of a Regional
Tribunal, the Commissioner for Human Rights and Administrative Justice and his
Deputies and all judicial officers;
(f) Ambassador or High Commissioner;
(g) Secretary to the Cabinet;
(h) Head of Ministry or government department or equivalent office in the Civil Service;
(i) chairman, managing director, general manager and departmental head of a public
corporation or company in which the State has a controlling interest; and
(j) such officers in the public service and any other public institution as Parliament may
prescribe.
(6) The Auditor-General shall make a written declaration of his assets and liabilities to
the President in the manner and subject to the conditions provided in clauses (1) to (3) of
this article.

Article 287— Complaints of Contravention.

(1) An allegation that a public officer has contravened or has not complied with a
provision of this Chapter shall be made to the Commissioner for Human Rights and
Administrative Justice and, in the case of the Commissioner of Human Rights and
Administrative Justice, to the Chief Justice who shall, unless the person concerned makes
a written admission of the contravention or non-compliance, cause the matter to be
investigated.
(2) The Commissioner for Human Rights and Administrative Justice or the Chief Justice
as the case may be, may take such action as he considers appropriate in respect of the
results of the investigation or the admission.

Article 288—Interpretation.
In this Chapter, unless the context otherwise requires,
"Public Officer" means a person who holds a public office.

TENURE OF OFFICE

Article 199—Retiring Age and Pension.

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(1) A public officer shall, except as otherwise provided in this Constitution, retire from
the public service on attaining the age of sixty years.
(2) A public officer may, except as otherwise provided in this Constitution, retire from
the public service at any time after attaining the age of forty-five years.

JUDICIAL REMEDIES

CERTIORARI AND PROHIBITION

CERTIORARI IS USED TO QUASH A DECISION THAT HAS BEEN MADE AND
PROHIBITION TO PREVENT A DECISION FROM BEING MADE.

NORMALLY AVAILABLE FOR PROCEEDINGS THAT ARE JUDICIAL

BUT NOTE OUR NEW DEFINITIN OF JUDICIAL IN

L’AIR LIQUIDE GH LTD V. ANIN
Three boys who were found in possession of some pieces of carbide claimed that the
respondents (employees of the appellant-company) sold the carbide to them. The
respondents were arrested by the depot and technical managers and taken to the police
station. The police, after their investigations, released the respondents and rather advised
the appellants to treat the matter administratively. A committee of inquiry was therefore
set up comprising the technical manager as chairman, the depot manager and a member
each of the local union of the Trades Union Congress and the Committee for the Defence
of the Revolution to investigate the alleged stealing charge. Following the inquiry, the
respondents were summarily dismissed. Aggrieved, they brought an action at the Circuit
Court, Accra for unlawful dismissal on the ground that the inquiry violated the principles
of natural justice because they were not given proper hearing. The court gave judgment
for the respondents. On appeal by the company,:

Held, dismissing the appeal: whenever people were given power by law to consider
facts and to arrive at conclusions affecting the fate of human beings, they were
performing a quasi-judicial function and if the body violated the rules of natural justice
the courts had power to declare the procedure invalid, as well as the conclusions
therefrom. In the instant case, the administrative inquiry violated the two cardinal
principles of natural justice, namely a man might not be condemned unheard, and
secondly, a man must not be a judge in his own case. Since the evidence showed that the
respondents were threatened with incarceration if they did not give answers the
investigators expected to hear, and they were also not given the chance to confront their
accusers, nobody given such a trial could seriously be said to have been heard. And since
the members of the committee of inquiry included the same people who arrested the
plaintiffs and sent them to the police station, members who were very much interested in
the subject they were investigating, they were in the position

R V. AGBOKA VI EXPARTE DEH

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The appellant, D, was the chief of Leklebi-Fiape and a sub-chief of the Leklebi
Traditional Area (LTA). He was accused by A, the paramount chief of LTA, other sub-
chiefs and elders of LTA of violating the custom of the traditional area by, inter alia,
deliberately and frivolously swearing the sacred oaths of the area on two consecutive
occasions. A and the elders of LTA holding that D's conduct amounted to abdication
performed the necessary customary rites in acceptance of D's alleged act of renunciation
and thereby declared him destooled. Subsequently, A on behalf of [p.582] the LTA
wrote a letter to the registrar of the Volta Regional House of Chiefs informing him of D's
destoolment and requested that D's name be deleted from the register of chiefs of the
region. D thereupon brought an application for an order of certiorari to quash the
proceedings and decision of A contained in the letter addressed to the registrar. In
support of his application D urged, inter alia, that he had not been heard at the meeting
which purported to destool him. Besides, he had been judged by A who had levelled the
charges against him. He therefore contended that there had been a breach of natural
justice. D however failed to exhibit the proceedings of the meeting. The application was
dismissed on the grounds that (i) D failed to establish his status as a chief, and (ii) there
was no evidence that A and his sub-chiefs had performed any judicial act against which
certiorari could lie. On appeal against that decision.

HELD: If the material before the court did not demonstrate a setting where judicial or
quasi-judicial powers were exercised wrongly by an inferior tribunal then the court was
helpless to exercise any supervisory jurisdiction. For certiorari did not lie in respect of
purely administrative matters. On the evidence, if proceedings of a judicial or quasi-
judicial character had, indeed, terminated in his destoolment the appellant failed to
disclose or substantiate it. Although the letter sought, indeed, to undermine the
appellant's status and was a violation of his rights as a chief, it could not amount to
proceedings nor could it be said to have arisen from the acts of an inferior tribunal.
However injurious certiorari could not be invoked to quash a document that did not
emanate from a judicial body nor derive from the performance of functions whose
permanent record could exist as legal proceedings.

A prayer for the grant of certiorari must be considered from a very broad perspective.
Being a discretionary power it had to be shown that there was real justification for the
grant. Where more appropriate remedies were available the odds against its grant would
automatically narrow. That was not to say that the supervisory powers of the High Court
could not be invoked in appropriate cases nor did it imply that where alternative remedies
existed the prayer would not be granted. The remedies were not exclusive one against the
other. However, where the result of granting the order would achieve no real or just
result the discretion would not be exercised. On the evidence there had been an attempt
by a superior chief to disqualify and dethrone his subordinate chief. The aggrieved party
could found his remedy under the Chieftaincy Act, 1971 (Act 370). He would not be
allowed to by-pass the exclusive forum provided under the Act because there was no call
for the exercise of the court's supervisory jurisdiction.

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R V. AWUTU SENYA TRADITIONAL COUNCIL: EX PARTE NENYI AMU II
The applicant brought an application for an order of prohibition to restrain the Awutu
Senya Traditional Council (A.S.T.C.) from including in its membership certain named
persons on the ground that they were not chiefs and their names were not in the national
register of chiefs. The applicant deposed, inter alia, in the affidavit in support of his
application, that the Omanhene was dead and that there was a dispute among the two
appointing asafo companies as to the successor and that a regent appointed to act as the
president of the council had taken sides with one company and was packing the
traditional council with members of that company who were not chiefs. Counsel for the
applicant contended that under article 114 of the Constitution, 1969 (which was operative
at the time of the application) the High Court had supervisory powers over traditional
councils which were creatures of statute with statutory functions. And where a traditional
council acted without jurisdiction an order of certiorari or prohibition could issue against
it. Counsel contended that by claiming that persons who did not satisfy the provisions of
the Chieftaincy Act, 1971 (Act 370), were sitting as members of the traditional council, a
prima facie case had been made attracting the powers of the court. Counsel further
contended that any person, subject to the jurisdiction of the traditional council, could
complain that the council was acting ultra vires its powers.

Held, dismissing the application:

(1) prohibition would issue from the High Court to prevent an inferior court or
government agency required to act in a judicial manner from exceeding its jurisdiction.
A body was required to act in a judicial manner if it could be shown that it was obliged to
decide questions of law or fact affecting individual rights and exercised a judicial or
limited discretion after hearing evidence, and deciding on the evidence between a
proposition and an opposition. Prohibition would not issue in respect of the proceedings
of a deliberative assembly where there was no duty to afford a hearing to the parties
interested. Any traditional council, except when it was sitting by way of a judicial
committee, would normally engage in purely deliberative business and the specific act of
the council complained of in the instant case, namely, packing the council with
unqualified persons was not a judicial act.
Per curiam. I think it must be borne in mind that the question whether the orders of
prohibition (and certiorari) are appropriate in any particular case is determined not so
much by the general character of the body that had acted as by reference to the character
of the act or decision sought to be attacked. In the Tiwaa case, the act which was
impugned was the council's purported determination of a destoolment dispute—a judicial
undertaking. In this case the act complained of is the conduct of the council in "packing
the council with persons allegedly unqualified to sit on it." This is purely administrative.
Republic v. Asokore Traditional Council; Ex parte Tiwaa [1976] 2 G.L.R. 231, C.A.
distinguished.
(2) It was not very clear from the pleading whether the applicant was asking the court to
prohibit the council in its general conduct of "packing the house with unqualified
persons" or whether he only wanted the court to prohibit the already completed act of
packing the council with six unqualified participants by ex-communicating them. Either
way, however, the application was incompetent; because, if the former was the case, even
where an order of prohibition was the appropriate remedy, it would not issue to prohibit

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the offending body from acting generally. It would always issue to prohibit specific acts.
And if the latter was the case, prohibition would not lie unless something remained to be
done which the court could prohibit. Besides, in the instant case, it was not even clear
whether the court was being asked to restrain the regent or the traditional council.
(3) Any person could obtain an order of prohibition and an applicant for the order, unlike
that of certiorari, did not have to show that he was a person aggrieved, or had any
personal interest in the matter. However, since prohibition was a discretionary remedy,
the right to it might be lost by acquiescence or implied waiver. The acquiescence might
take the form of failing to object to the statutory qualification of a member of the body
whose act was sought to be attacked. And one who was guilty of an unreasonable delay
in applying for prohibition might lose his remedy even though he did not acquiesce in the
original cause of the defect. In the instant case, the applicant did not state exactly when
the acts complained of began but it would appear he had not been happy with the regent
since he took office in 1975. His application was therefore tardy and he thereby forfeited
his right to the remedy.
(4) Lack of jurisdiction was a recognised ground for which an order of prohibition could
be sought but an applicant who, on the face of the record, had waived his right to object
to a jurisdictional defect might be refused an order of prohibition, it being a discretionary
relief. A distinction had, however, been drawn between latent defects which could be
waived and those which could not be waived where the want of jurisdiction was total.
And there was total lack of jurisdiction where the tribunal qua tribunal was without
competence by reason of the status of the parties or the nature of the subject-matter. In
the instant case, even though the application had been made allegedly on the ground of
lack of jurisdiction, it was not the case of the applicant that the council had no
jurisdiction when they undertook to examine a particular matter before it or that the
parties before it in that specific matter belonged to a category of persons who were not
amenable to the tribunal's jurisdiction as conferred upon it by statute.

LOCUS STANDI:
The deceased (E.A) died at the Korle Bu Teaching Hospital on 29 January 1990. That
same day, an autopsy was conducted on his body by a pathologist in the presence of one
Dr. B, a nephew of the deceased. Dr. B, who did not suspect any foul play regarding
EA's death, got the pathologist to perform only a partial postmortem in order to verify the
clinical diagnosis of cerebrovascular accident. However, the relatives of the deceased,
who suspected that E.A's widow (F.A) might have administered poison to him, had a
second autopsy carried out in the Department of Pathology at the Korle Bu Teaching
Hospital. The report of that second autopsy indicated, inter alia, that no common poison
was detected and further that the immediate cause of death was undetermined. F.A was
how ever interrogated by the police regarding the death of her husband. Subsequently,
the District Magistrate Grade I, Korle Gonno, in his capacity as the coroner of the
jurisdictional district in which the death occurred, decided to hold an inquiry into E.A's
death to ascertain the cause of his death. During the inquiry, the coroner called upon F.A
to give evidence and then proceeded to question her regarding the death of E.A.
Whereupon her counsel applied to the High Court for an order of certiorari to quash the
inquest and an order of prohibition to stop the coroner from continuing the inquiry on the
ground, inter alia, that the rejection of the two autopsies on the deceased by his relatives

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as well as the coroner's inquiry which had resulted in her being questioned at the inquiry,
amounted to an unwarranted harassment. The High Court found on the evidence that
there was ample evidence from the doctors who conducted the autopsy that the deceased
died of natural causes and so the coroner had no mandate under the Coroners Act, 1960
(Act 18) to conduct the inquiry. The High Court consequently ruled that the coroner had
acted ultra vires and therefore granted the remedies sought by F.A. On appeal from the
ruling of the High Court, counsel for the Republic contended, inter alia, that the High
Court judge erred in law when: (i) he found that the applicant had locus standi to bring
the application for certiorari because on the evidence the applicant's interest was not that
of an aggrieved person or one with a real or substantial interest in the proceedings sought
to be quashed but only that of the general public to see that judicial bodies kept within the
law; (ii) he decided that the cause of death was established and that the coroner had no
mandate to institute an inquiry into the death of E.A; and (iii) he granted the application
for certiorari and prohibition even though there were no proceedings before him to be
quashed.
Held, allowing the appeal. (1) the orders of certiorari and prohibition, as the form of the
proceedings showed, were means for ensuring that the machinery of public
administration worked properly [p.355] and that justice was done to individuals. And
because these remedies had a special public aspect to them, an applicant for certiorari or
prohibition did not have to show that some legal right of his was at stake. If the action
concerned an excess of jurisdiction or abuse of power, for example, the court would
quash it at the instance of a mere stranger, although it retained the discretion to refuse to
quash it if it thought that no good would be done to the public. The remedies of certiorari
and prohibition were therefore not restricted by the notion of locus standi, and every
citizen had a standing to invite the court to prevent some abuse of power; and in so doing
he might claim to be regarded not as a meddlesome busybody but a public benefactor.
Consequently, even if the applicant had shown no personal grievance, she was not ousted
from applying for certiorari. She could come as a public benefactor interested in seeing
to it that a coroner did not abuse his power of inquiry into the cause of death, contrary to
law. Moreover, on the evidence no attempt had been made by counsel for the Republic to
show any improper use of discretion by the judge in permitting the applicant to apply for
certiorari. On the contrary, there was sufficient evidence to show that the applicant was
more than a mere stranger or a public benefactor. She qualified to be regarded as a
person aggrieved in the sense of one having a peculiar grievance of hers beyond some
inconvenience suffered by her in common with the public and was thus entitled ex debito
justitiae to apply for certiorari. Since the subject-matter of the application concerned her
deceased husband, she was clearly interested in knowing whether her husband died of fair
or foul play and in seeing to it that the public duty of the coroner's inquest was conducted
within the law and not used as an instrument of harassment particularly in her case where
she had been suspected of having contributed to the death of her husband and had been
detained and questioned by the police and had been cleared of suspicion. R. v. Surrey
Justices (1870) L.R. 5 Q.B. 466; dicta of Smith L.J. in R. v. Nicholson [1899] 2 Q.B. 455
at 471; of Lord Goddard C.J. in R. v. Brighton Borough Justices; Ex parte Jarvis [1954] 1
W.L.R. 203 at 207; and of Lord Parker in R. v. Thames Magistrate Court, Ex parte
Greenbaum (1957) 55 L.G.R. 129 applied. State v. Asantehene's Divisional Court B1;
Ex parte Kusada [1963] 2 G.L.R. 239 at 242, S.C. distinguished.

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(2) The essential part of section 5(1) of the Coroners Act, 1960 (Act 18) which regulated
the performance of a coroner's inquest and to which attention had to be drawn for the
purpose of interpreting the section was the expression "and had reasonable cause to
suspect." Section 5(1)(b) then meant that if the coroner received information that
somebody had died in his district and he, the coroner, thought that he had reasonable
cause or good reason to suspect that the person had died a death the cause of which was
unknown, he was bound by law to hold an inquiry touching the death as soon as possible.
And the validity of the inquiry [p.356] could not be affected even if his suspicion that the
cause of the death was unknown proved later to be wrong; for where a person had a
power to act within his discretion and acted ultra vires, the exercise of his discretion
included the right to make a mistake. Moreover, since the general part of section 5(1) left
the determination of the existence of a reasonable cause entirely to the discretion of the
coroner, he, and only he, had the statutory duty of determining whether or not the
"reasonable cause to suspect" existed and it was consequently not for the court to impose
its own ideas of what ought to have been decided. The court's only concern was with the
legality of what was done. At the same time it could not be assumed that because a
statute imposed a discretion on a body to act, the exercise of that discretion was
completely outside the control of the courts. The courts would however not interfere
with the exercise of discretion unless the person entrusted with the discretion had, inter
alia, acted in bad faith; did not direct himself properly in law; failed to call his own
attention to matters which he was bound to consider or gave consideration to matters
which were irrelevant. In the instant case, the record before the court did not establish
that the coroner took into consideration any irrelevant matter in arriving at his conclusion
that the cause of death was not known; nor could it be argued that he did not direct his
attention to the relevant law, namely Act 18. On the other hand, there was evidence that
he drew his attention to matters he was bound to consider such as the written statement of
the pathologist to the police which embodied a post-mortem report on the deceased
prepared by the doctor himself (exhibit A), as well as the post-mortem report prepared at
the department of pathology (exhibit B) in arriving at the conclusion that the cause of
death was not clear. Hence, the learned High Court judge erred when he substituted his
views that the cause of death was established for that of the coroner. In doing so, it
appeared the High Court judge got confused about the duties of a reviewing judge and
those of an appellate judge. An appellate court had power to consider the decision of the
lower tribunal on its merits and, if the appeal succeeded, substitute its own decision for
that of the tribunal below; but a review, as in the instant case, was not based on the merits
but on the legality of the lower court's proceedings, i.e. jurisdiction. Thus the moment
the High Court judge realised that the conclusion of the coroner was not arbitrary and that
some reasonable person relying on the evidence in hand could have come to the same
conclusion, he should have declared that the coroner had used his discretion properly and
intra vires. The fact that he, the judge, disagreed with the coroner's conclusion was
irrelevant in a review. The arrogation to himself by the judge of the duties of the coroner
was ultra vires his jurisdiction under Act 18. Dicta of Lord Halsbury in Westminster
Corporation v. London and North Western Railway Co. [1905] A.C. 426 at 427, H.L.;
and of Lord Greene M.R. in Associated [p.357] Provincial Picture Houses, Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223 at 228, C.A. applied.

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Per Ofori-Boateng J.A. Under section 18 of the Act, the judge may order a new inquiry
to be made if he is dissatisfied with the one already made; or substitute for a finding he
has set aside such other finding which he will arrive at in accordance with the evidence.
Here he acts like a reviewing judge, and not as a High Court judge sitting as a coroner.
The High Court judge was, in my view, wrong in stopping the coroner from continuing
the inquest and quashing the proceedings. The basis of his action is illegal and unsound
in law.
(3) Section 15 of Act 18 gave a sitting coroner the powers of a district magistrate to
examine witnesses; and section 58 of the Courts Act, 1971 (Act 372) which dealt with
these powers provided that the court might compel a party present in court (whether or
not a party in the proceedings before the court) to give evidence and to produce any
document in his possession or power. Since there were no binding rules in this country
on the order in which witnesses were to be called, there were no rules binding on the
coroner with regard to the order in which he should call the witnesses summoned to his
inquiry. Certainly, ordinary logic would make it clear that some witnesses should be
called first but then the judge had a discretion under section 69 of the Evidence Decree,
1975 (N.R.C.D. 323) to make changes to the accepted form for the sole purpose of
expediting the proceedings and for clarity, and such a variation would not oust the
jurisdiction of the court. In the instant case, even though it was understandable that the
widow would in the circumstances feel harassed if called upon to answer questions
regarding her husband's death, the background to her problems were extraneous factors
and could not properly be taken into consideration by the coroner in arriving at any
decision before him. Furthermore, the widow was protected under section 97(1) of
N.R.C.D. 323 from being compelled to give evidence that would incriminate her. Hence
it could hardly be said that she was in danger of being harassed or being made to say
anything against her interest involuntarily.
(4) It was required under Order 59, r.7 (1) of the High Court (Civil Procedure) Rules,
1954 (L.N 140A) that the proceeding sought to be quashed in an application for an order
of certiorari, together with the affidavit verifying it, should be filed in the registry of the
High Court before the hearing of the motion; and that any failure to file the proceedings
had to be explained to the satisfaction of the judge hearing the motion. In practice, the
High Court hardly checked to see whether the order from the lower court which it was to
quash had been filed in compliance with Order 59, r.7(1); but once the non-compliance
was made a ground of appeal, as in the instant case, the party seeking to have the order
quashed had a duty to answer specifically. Consequently, the refusal by the applicant to
answer that ground was a sign of non-compliance [p.358] which was not rebutted. The
effect of the omission or failure to abide by the rules under Order 59, r.7(1) was that the
High Court had nothing to quash and that the purported proceedings by the High Court to
quash the proceedings of the coroner was an exercise in futility which achieved nothing
in law. Dicta of Humphreys and Singleton JJ. in R. v. Newington Licensing Justices
[1948] 1 K.B. 681 at 685 and 690 respectively, applied.

R v. H.C ACCRA EX PARTE PLOETNER

Page 65 of 82
The deceased (E.A) died at the Korle Bu Teaching Hospital on 29 January 1990. That
same day, an autopsy was conducted on his body by a pathologist in the presence of one
Dr. B, a nephew of the deceased. Dr. B, who did not suspect any foul play regarding
EA's death, got the pathologist to perform only a partial postmortem in order to verify the
clinical diagnosis of cerebrovascular accident. However, the relatives of the deceased,
who suspected that E.A's widow (F.A) might have administered poison to him, had a
second autopsy carried out in the Department of Pathology at the Korle Bu Teaching
Hospital. The report of that second autopsy indicated, inter alia, that no common poison
was detected and further that the immediate cause of death was undetermined. F.A was
how ever interrogated by the police regarding the death of her husband. Subsequently,
the District Magistrate Grade I, Korle Gonno, in his capacity as the coroner of the
jurisdictional district in which the death occurred, decided to hold an inquiry into E.A's
death to ascertain the cause of his death. During the inquiry, the coroner called upon F.A
to give evidence and then proceeded to question her regarding the death of E.A.
Whereupon her counsel applied to the High Court for an order of certiorari to quash the
inquest and an order of prohibition to stop the coroner from continuing the inquiry on the
ground, inter alia, that the rejection of the two autopsies on the deceased by his relatives
as well as the coroner's inquiry which had resulted in her being questioned at the inquiry,
amounted to an unwarranted harassment. The High Court found on the evidence that
there was ample evidence from the doctors who conducted the autopsy that the deceased
died of natural causes and so the coroner had no mandate under the Coroners Act, 1960
(Act 18) to conduct the inquiry. The High Court consequently ruled that the coroner had
acted ultra vires and therefore granted the remedies sought by F.A. On appeal from the
ruling of the High Court, counsel for the Republic contended, inter alia, that the High
Court judge erred in law when: (i) he found that the applicant had locus standi to bring
the application for certiorari because on the evidence the applicant's interest was not that
of an aggrieved person or one with a real or substantial interest in the proceedings sought
to be quashed but only that of the general public to see that judicial bodies kept within the
law; (ii) he decided that the cause of death was established and that the coroner had no
mandate to institute an inquiry into the death of E.A; and (iii) he granted the application
for certiorari and prohibition even though there were no proceedings before him to be
quashed.
Held, allowing the appeal. (1) the orders of certiorari and prohibition, as the form of the
proceedings showed, were means for ensuring that the machinery of public
administration worked properly [p.355] and that justice was done to individuals. And
because these remedies had a special public aspect to them, an applicant for certiorari or
prohibition did not have to show that some legal right of his was at stake. If the action
concerned an excess of jurisdiction or abuse of power, for example, the court would
quash it at the instance of a mere stranger, although it retained the discretion to refuse to
quash it if it thought that no good would be done to the public. The remedies of certiorari
and prohibition were therefore not restricted by the notion of locus standi, and every
citizen had a standing to invite the court to prevent some abuse of power; and in so doing
he might claim to be regarded not as a meddlesome busybody but a public benefactor.
Consequently, even if the applicant had shown no personal grievance, she was not ousted
from applying for certiorari. She could come as a public benefactor interested in seeing
to it that a coroner did not abuse his power of inquiry into the cause of death, contrary to

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law. Moreover, on the evidence no attempt had been made by counsel for the Republic to
show any improper use of discretion by the judge in permitting the applicant to apply for
certiorari. On the contrary, there was sufficient evidence to show that the applicant was
more than a mere stranger or a public benefactor. She qualified to be regarded as a
person aggrieved in the sense of one having a peculiar grievance of hers beyond some
inconvenience suffered by her in common with the public and was thus entitled ex debito
justitiae to apply for certiorari. Since the subject-matter of the application concerned her
deceased husband, she was clearly interested in knowing whether her husband died of fair
or foul play and in seeing to it that the public duty of the coroner's inquest was conducted
within the law and not used as an instrument of harassment particularly in her case where
she had been suspected of having contributed to the death of her husband and had been
detained and questioned by the police and had been cleared of suspicion. R. v. Surrey
Justices (1870) L.R. 5 Q.B. 466; dicta of Smith L.J. in R. v. Nicholson [1899] 2 Q.B. 455
at 471; of Lord Goddard C.J. in R. v. Brighton Borough Justices; Ex parte Jarvis [1954] 1
W.L.R. 203 at 207; and of Lord Parker in R. v. Thames Magistrate Court, Ex parte
Greenbaum (1957) 55 L.G.R. 129 applied. State v. Asantehene's Divisional Court B1;
Ex parte Kusada [1963] 2 G.L.R. 239 at 242, S.C. distinguished.
(2) The essential part of section 5(1) of the Coroners Act, 1960 (Act 18) which regulated
the performance of a coroner's inquest and to which attention had to be drawn for the
purpose of interpreting the section was the expression "and had reasonable cause to
suspect." Section 5(1)(b) then meant that if the coroner received information that
somebody had died in his district and he, the coroner, thought that he had reasonable
cause or good reason to suspect that the person had died a death the cause of which was
unknown, he was bound by law to hold an inquiry touching the death as soon as possible.
And the validity of the inquiry [p.356] could not be affected even if his suspicion that the
cause of the death was unknown proved later to be wrong; for where a person had a
power to act within his discretion and acted ultra vires, the exercise of his discretion
included the right to make a mistake. Moreover, since the general part of section 5(1) left
the determination of the existence of a reasonable cause entirely to the discretion of the
coroner, he, and only he, had the statutory duty of determining whether or not the
"reasonable cause to suspect" existed and it was consequently not for the court to impose
its own ideas of what ought to have been decided. The court's only concern was with the
legality of what was done. At the same time it could not be assumed that because a
statute imposed a discretion on a body to act, the exercise of that discretion was
completely outside the control of the courts. The courts would however not interfere
with the exercise of discretion unless the person entrusted with the discretion had, inter
alia, acted in bad faith; did not direct himself properly in law; failed to call his own
attention to matters which he was bound to consider or gave consideration to matters
which were irrelevant. In the instant case, the record before the court did not establish
that the coroner took into consideration any irrelevant matter in arriving at his conclusion
that the cause of death was not known; nor could it be argued that he did not direct his
attention to the relevant law, namely Act 18. On the other hand, there was evidence that
he drew his attention to matters he was bound to consider such as the written statement of
the pathologist to the police which embodied a post-mortem report on the deceased
prepared by the doctor himself (exhibit A), as well as the post-mortem report prepared at
the department of pathology (exhibit B) in arriving at the conclusion that the cause of

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death was not clear. Hence, the learned High Court judge erred when he substituted his
views that the cause of death was established for that of the coroner. In doing so, it
appeared the High Court judge got confused about the duties of a reviewing judge and
those of an appellate judge. An appellate court had power to consider the decision of the
lower tribunal on its merits and, if the appeal succeeded, substitute its own decision for
that of the tribunal below; but a review, as in the instant case, was not based on the merits
but on the legality of the lower court's proceedings, i.e. jurisdiction. Thus the moment
the High Court judge realised that the conclusion of the coroner was not arbitrary and that
some reasonable person relying on the evidence in hand could have come to the same
conclusion, he should have declared that the coroner had used his discretion properly and
intra vires. The fact that he, the judge, disagreed with the coroner's conclusion was
irrelevant in a review. The arrogation to himself by the judge of the duties of the coroner
was ultra vires his jurisdiction under Act 18. Dicta of Lord Halsbury in Westminster
Corporation v. London and North Western Railway Co. [1905] A.C. 426 at 427, H.L.;
and of Lord Greene M.R. in Associated [p.357] Provincial Picture Houses, Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223 at 228, C.A. applied.
Per Ofori-Boateng J.A. Under section 18 of the Act, the judge may order a new inquiry
to be made if he is dissatisfied with the one already made; or substitute for a finding he
has set aside such other finding which he will arrive at in accordance with the evidence.
Here he acts like a reviewing judge, and not as a High Court judge sitting as a coroner.
The High Court judge was, in my view, wrong in stopping the coroner from continuing
the inquest and quashing the proceedings. The basis of his action is illegal and unsound
in law.
(3) Section 15 of Act 18 gave a sitting coroner the powers of a district magistrate to
examine witnesses; and section 58 of the Courts Act, 1971 (Act 372) which dealt with
these powers provided that the court might compel a party present in court (whether or
not a party in the proceedings before the court) to give evidence and to produce any
document in his possession or power. Since there were no binding rules in this country
on the order in which witnesses were to be called, there were no rules binding on the
coroner with regard to the order in which he should call the witnesses summoned to his
inquiry. Certainly, ordinary logic would make it clear that some witnesses should be
called first but then the judge had a discretion under section 69 of the Evidence Decree,
1975 (N.R.C.D. 323) to make changes to the accepted form for the sole purpose of
expediting the proceedings and for clarity, and such a variation would not oust the
jurisdiction of the court. In the instant case, even though it was understandable that the
widow would in the circumstances feel harassed if called upon to answer questions
regarding her husband's death, the background to her problems were extraneous factors
and could not properly be taken into consideration by the coroner in arriving at any
decision before him. Furthermore, the widow was protected under section 97(1) of
N.R.C.D. 323 from being compelled to give evidence that would incriminate her. Hence
it could hardly be said that she was in danger of being harassed or being made to say
anything against her interest involuntarily.
(4) It was required under Order 59, r.7 (1) of the High Court (Civil Procedure) Rules,
1954 (L.N 140A) that the proceeding sought to be quashed in an application for an order
of certiorari, together with the affidavit verifying it, should be filed in the registry of the
High Court before the hearing of the motion; and that any failure to file the proceedings

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had to be explained to the satisfaction of the judge hearing the motion. In practice, the
High Court hardly checked to see whether the order from the lower court which it was to
quash had been filed in compliance with Order 59, r.7(1); but once the non-compliance
was made a ground of appeal, as in the instant case, the party seeking to have the order
quashed had a duty to answer specifically. Consequently, the refusal by the applicant to
answer that ground was a sign of non-compliance [p.358] which was not rebutted. The
effect of the omission or failure to abide by the rules under Order 59, r.7(1) was that the
High Court had nothing to quash and that the purported proceedings by the High Court to
quash the proceedings of the coroner was an exercise in futility which achieved nothing
in law. Dicta of Humphreys and Singleton JJ. in R. v. Newington Licensing Justices
[1948] 1 K.B. 681 at 685 and 690 respectively, applied.

REPUBLIC V. GHANA CARGO HANDLING CO.

The applicant, an employee of the Ghana Cargo Handling Co., Ltd., a private commercial
concern, was until October 1977, a traffic research officer which post was a zonal
managerial grade. In December 1977, however, the applicant was given a new schedule
which was lower in status. Aggrieved by this action of management, the applicant wrote
two letters protesting against his new posting. Management considering the applicant's
letter as rude and insulting, set up a committee of inquiry to investigate the conduct of the
applicant and submit a report. The committee in its report, recommended that
management should accept the apology of the applicant and warn him. Management
however decided to reduce the applicant in rank and salary. The applicant therefore
brought the present application for an order of certiorari to quash the proceedings of the
committee of inquiry and the decision of management to reduce the applicant in rank and
salary.
[p.207]
Held, dismissing the application: the courts by means of prerogative orders performed a
restricted function of supervisory nature, in seeing to it that inferior courts or other bodies
charged by statute to discharge some judicial or quasi-judicial functions kept within their
jurisdiction. Like prohibition, the orders of certiorari might issue whenever any body of
persons having authority to determine questions affecting the rights of subjects and
having the duty to act judicially acted in excess of legal authority. For this purpose "legal
authority" generally meant statutory authority and consequently, neither certiorari nor
prohibition would issue to a private arbitral body which derived its jurisdiction from
contract. In the present case, it seemed the Ghana Cargo Handling Co., Ltd., was a
private commercial company registered under the Companies Code, 1963 (Act 179). The
service conditions and rules as exhibited were domestic rules not imposed by the
legislature. The courts had no business to meddle by way of prerogative orders with
regards to disputes arising therefrom. Some other remedy such as injunction or
declaration could possibly arouse the court to action. Dicta of Atkin L.J. in R. v.
Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd.
[1924] 1 K.B. 171 at pp. 204-205, C.A. and of Goddard C.J. in R. v. National Joint
Council for the Craft of Dental Technicians (Disputes Committee); Ex parte Neate [1953]
1 Q.B. 704 at pp. 707-708, D.C. applied.

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REPUBLIC V. STATE HOTELS CORPORATION. EX PARTE YEBOAH

The applicant, an employee of the Ghana Cargo Handling Co., Ltd., a private commercial
concern, was until October 1977, a traffic research officer which post was a zonal
managerial grade. In December 1977, however, the applicant was given a new schedule
which was lower in status. Aggrieved by this action of management, the applicant wrote
two letters protesting against his new posting. Management considering the applicant's
letter as rude and insulting, set up a committee of inquiry to investigate the conduct of the
applicant and submit a report. The committee in its report, recommended that
management should accept the apology of the applicant and warn him. Management
however decided to reduce the applicant in rank and salary. The applicant therefore
brought the present application for an order of certiorari to quash the proceedings of the
committee of inquiry and the decision of management to reduce the applicant in rank and
salary.
[p.207]
Held, dismissing the application: the courts by means of prerogative orders performed a
restricted function of supervisory nature, in seeing to it that inferior courts or other bodies
charged by statute to discharge some judicial or quasi-judicial functions kept within their
jurisdiction. Like prohibition, the orders of certiorari might issue whenever any body of
persons having authority to determine questions affecting the rights of subjects and
having the duty to act judicially acted in excess of legal authority. For this purpose "legal
authority" generally meant statutory authority and consequently, neither certiorari nor
prohibition would issue to a private arbitral body which derived its jurisdiction from
contract. In the present case, it seemed the Ghana Cargo Handling Co., Ltd., was a
private commercial company registered under the Companies Code, 1963 (Act 179). The
service conditions and rules as exhibited were domestic rules not imposed by the
legislature. The courts had no business to meddle by way of prerogative orders with
regards to disputes arising therefrom. Some other remedy such as injunction or
declaration could possibly arouse the court to action. Dicta of Atkin L.J. in R. v.
Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd.
[1924] 1 K.B. 171 at pp. 204-205, C.A. and of Goddard C.J. in R. v. National Joint
Council for the Craft of Dental Technicians (Disputes Committee); Ex parte Neate [1953]
1 Q.B. 704 at pp. 707-708, D.C. applied.

HABEAS CORPUS:
THIS IS ISSUED ESPECIALLY DURING MILITARY REGIMES;
 THE SALIFA CASES
 HAPPY ABAJI
1) Article 14—Protection of Personal Liberty.
(1) Every person shall be entitled to his personal liberty and no person shall be deprived
of his personal liberty except in the following cases and in accordance with procedure
permitted by law—
(a) in execution of a sentence or order of a court in respect of a criminal offence of which
he has been convicted; or

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(b) in execution of an order of a court punishing him for contempt of court; or
(c) for the purpose of bringing him before a court in execution of an order of a court; or
(d) in the case of a person suffering from an infectious or contagious disease, a person of
unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his
care or treatment or the protection of the community; or
(e) for the purpose of the education or welfare of a person who has not attained the age of
eighteen years; or
(f) for the purpose of preventing the unlawful entry of that person into Ghana, or of
effecting the expulsion, extradition or other lawful removal of that person from Ghana or
for the purpose of restricting that person while he is being lawfully conveyed through
Ghana in the course of his extradition or removal from one country to another; or
(g) upon reasonable suspicion of his having committed or being about to commit a
criminal offence under the laws of Ghana.
(2) A person who is arrested, restricted or detained shall be informed immediately, in a
language that he understands, of the reasons for his arrest, restriction or detention and of
his right to a lawyer of his choice.
(3) A person who is arrested, restricted or detained—
(a) for the purpose of bringing him before a court in execution of an order of a court; or
(b) upon reasonable suspicion of his having committed or being about to commit a
criminal offence under the laws of Ghana, and who is not released,
shall be brought before a court within forty-eight hours after the arrest, restriction or
detention.
(4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3)
of this article is not tried within a reasonable time, then, without prejudice to any further
proceedings that may be brought against him, he shall be released either unconditionally
or upon reasonable conditions, including in particular, conditions reasonably necessary to
ensure that he appears at a later date for trial or for proceedings preliminary to trial.
(5) A person who is unlawfully arrested, restricted or detained by any other person shall
be entitled to compensation from that other person.
(6) Where a person is convicted and sentenced to a term of imprisonment for an offence,
any period he has spent in lawful custody in respect of that offence before the completion
of his trial shall be taken into account in imposing the term of imprisonment.
(7) Where a person who has served the whole or a part of his sentence is acquitted on
appeal by a court, other than the Supreme Court, the court may certify to the Supreme
Court that the person acquitted be paid compensation; and the Supreme Court may, upon
examination of all the facts and the certificate of the court concerned, award such
compensation as it may think fit; or, where the acquittal is by the Supreme Court, it may
order compensation to be paid to the person acquitted.

2) ORDER 56 OF CIVIL PROCEDURE RULES, 2004

3) WHO HAS STANDINGS?

DETAINEE
A PERSON ENTITLED TO THE CUSTODY OF THE DETAINEE
PERSON ACTING ON BEHALF OF DETAINEE. LIKE PARENTS, GUARDIANS,
ETC.

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4) AGAINST WHOM MAY A HABEAS CORPUS APPLICATION BE
BROUGHT?
 JAILOR: SALIFA NO 1AGAINST DIRECTOR OF PRISONS
 THE PERSON ON WHOSE ORDER THE DETAINEE IS BEING KEPT
SALIFA NO 2.
 A HABEAS CORPUS APPLICATION IS AS OF RIGHT, NO NEED FOR
LEAVE SALIFA AGAINST DIRECTOR OF SPECIAL BRANCH

5) IT IS A 2 STAGED PROCESS.
3 DOCUMENTS:
 MOTION PAPER, STATEMENT, AFFIDAVIT ARE MOVED EX PARTE,
AND THE COURT ORDERS PRODUCTION OF THE DETAINEE WITHIN
SPECIFIED PERIOD.
 ON THE SAID DATE ARGUMENTS ON THE LEGALITY OF THE
DETENTION ARE HEARD AND COURT ORDERS FOR RELEASE OR
OTHERWISE.
REPUBLIC V. A-G; EX PARTE QUAYE MENSAH
It is provided by the Preventive Custody Decree, 1972 (N.R.C.D. 2), s. 2 that:
"2. The National Redemption Council [Supreme Military Council] may, by executive
instrument authorise the arrest and detention of any other person in respect of whom they
are satisfied that it is in the interest of national security or in the interest of the safety of
the person so to do . . .”
The first applicant, Quaye Mensah, a totally blind, asthmatic patient aged 82 years and
the second applicant, Davis Kwakye, were arrested by the police and subsequently
detained at the Ho prisons. They applied for writ of habeas corpus. In its order nisi, the
trial High Court directed the second respondent, the Assistant Director of Prisons, to file
a report stating the grounds of the applicants' detention pursuant to section 2 (b) of the
Habeas Corpus Act, 1964 (Act 244). The filed report merely stated the first applicant
was being detained by virtue of the Preventive Custody (No. 5) Order, 1978 (E.I. 38 of
1978), whilst the second applicant's detention was founded on the Preventive Custody
(No. 6) Order, 1978 (E.I. 42 of 1978), both of which authorised the Supreme Military
Council (S.M.C.) in exercise of its powers under N.R.C.D. 2, s. 2, to order the arrest and
detention of the applicants if "the Council is satisfied that it is in the interest of national
security and in the interest of the safety of such persons so to do". The report did not
deny or challenge the applicants' allegations in their supporting affidavits that they had
never requested any protection for their lives which had never been endangered; neither
did it deny the [p.430] first applicants allegation that before his arrest, the police had
gone to his house in search of his son who was then at large and that his suspicions were
that the police had arrested and detained him because they were unable to trace his son.
At the subsequent hearing, the issue whether the second applicant, Davis Kwakye was the
same as the person whose name appeared (without further particulars) as David Kwakye
in E.I. 42 of 1978 was raised, but the trial High Court held that the first names Davis or
David were a misdescription not affecting the identity of the person sought to be arrested
and that it was unnecessary to lead evidence on that issue. The trial court in refusing the
application held that E.I.s 38 and 42 were sufficient justification for the applicants'

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detention and that where a statute such as N.R.C.D. 2, s. 2 had conferred a discretion
upon the executive to arrest and detain persons, the courts could not inquire into the
exercise of that discretion in the absence of mala fides. On appeal against the refusal,
Held, allowing the appeal, per Charles Crabbe J.A., Annan J.A. and Edward Wiredu J.
concurring:
(1) where an instrument such as E.I. 42 of 1978, authorised the arrest and detention of a
named individual, it was necessary, desirable and absolutely essential that as full as
possible and proper description and particulars were given. It was essential that there
should be no doubt as to the identity of the individual concerned. And where the
individual arrested and detained raised the question of identity, the onus was on the
person who arrested and detained that individual to show (by furnishing the requisite
materials to the satisfaction of the court) that the individual detained was that person
wanted for detention. In the instant case, the difference in name was not just a question
of a variation in spelling: it was a question of identity.
(2) On the facts, there was need for an inquiry as to the grounds which demanded that the
applicants should be detained in the interest of national security. The report did not
disclose sufficient answer justifying the arrest and detention. The court would not accept
the contention that the mere recital of the issue of an executive instrument was all that
was required. If, as in the instant case, an authority took it upon itself to arrest and detain
an individual for his safety, then, it was the duty of the courts to question the fundamental
basis of that claim, more so where the individual detained denied the need for the
protection offered. Liversidge v. Anderson [1942] A.C. 206, H.L. distinguished.
(3) Section 2 (b) of Act 244 required the person in whose custody a person was being
detained "to submit a report in writing stating the grounds of the detention." The word
"grounds" within the context of the Act meant the foundation, the base, the motive
leading the appropriate authority to cause the arrest and detention of the individual
detained. Section 2 (b) required that the report should embody the circumstances of the
arrest and detention, the particulars of the facts—all the available information which
would make the detained person know the case which he had to, meet and thereby
prepare to meet that case. The instant report which sought no more than to recite the
existence of the executive instruments fell far short of the requirements of section 2 (b) of
the Act. Consequently the arrest and detention of the applicants were unlawful.

6) GROUNDS FOR APPLICATION:

 THAT THE DETENTION IS ULTRA VIRES: IN THE CASE OF A JUDICIAL
BODY WE SAY THE DETENTION ORDER WAS MADE OUTSIDE THE
JURISDICTION OF THE COURT.
 WHERE THERE HAS BEEN AN ERROR OF LAW ON THE FACE OF THE
RECORD.
 WHERE THERE IS NO EVIDENCE TO JUSTIFY THE ORDER OF
DETENTION
 BURDEN IS ON THE RESPONDENT TO JUSTIFY THE DETENTION. SEE
HABEAS CORPUS ACT 1964 S.4(1)

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  WHERE THE APPLICATION IS REFUSED THERE IS A RIGHT OF APPEAL
TO THE COURT OF APPEAL AND THEN TO THE SUPREME COURT: SEE
ARTICLE 33 OF THE 1992 CONSTITUTION
 HABEAS CORPUS IS NOT MENTIONED IN ARTICLE 132 OF THE
CONSTITUTION, 1992, THAT DEALS WITH THE SUPERVISORY
JURISDICTION OF THE SUPREME COURT, BUT THE SUPREME COURT
HAS TRADITIONALLY USED HABEAS CORPUS FOR THAT PURPOSE.

LIST OF REMEDIES
 Habeas corpus
 Mandamus
 Certiorari and Prohibition
 Quo warranto
 Equitable injunction
 Damages
 Declaration

POSSIBLE VENUES

Article 218—Functions of Commission.

The functions of the Commission shall be defined and prescribed by Act of Parliament
and shall include the duty—
(a) to investigate complaints of violations of fundamental rights and freedoms, injustice,
corruption, abuse of power and unfair treatment of any person by a public officer in the
exercise of his official duties;
(b) to investigate complaints concerning the functioning of the Public Services
Commission, the administrative organs of the State, the Armed Forces, the Police Service
and the Prisons Service in so far as the complaints relate to the failure to achieve a
balanced structuring of those services or equal access by all to the recruitment of those
services or fair administration in relation to those services;
(c) to investigate complaints concerning practices and actions by persons, private
enterprises and other institutions where those complaints allege violations of fundamental
rights and freedoms under this Constitution;
(d) to take appropriate action to call for the remedying, correction and reversal of
instances specified in paragraphs (a), (b) and (c) of this clause through such means as are
fair, proper and effective, including —
(i) negotiation and compromise between the parties concerned;
(ii) causing the complaint and its finding on it to be reported to the superior of an
offending person;
(iii) bringing proceedings in a competent Court for a remedy to secure the termination of
the offending action or conduct, or the abandonment or alteration of the offending
procedures; and
(e) to investigate all instances of alleged or suspected corruption and the
misappropriation of public moneys by officials and to take appropriate steps, including

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reports to the Attorney-General and the Auditor-General, resulting from such
investigations;

Article 229—Initiation of Legal Proceedings.

For the purposes of performing his functions under this Constitution and any other law,
the Commissioner may bring an action before any court in Ghana and may seek any
remedy which may be available from that court.

Article 140—Jurisdiction of the High Court.

(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction
in all matters and in particular, in civil and criminal matters and such original, appellate
and other jurisdiction as may be conferred on it by this Constitution or any other law.
(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and
Freedoms guaranteed by this Constitution.
(4) A justice of the High Court may, in accordance with rules of court, exercise in court
or in chambers, all or any of the jurisdiction vested in the High Court by this Constitution
or any other law.

Article 143—Jurisdiction of Regional Tribunals.

(1) A Regional Tribunal shall have jurisdiction to try such offences against the State and
the public interest as Parliament may, by law, prescribe.
(2) A Regional Tribunal shall have such appellate jurisdiction relating to the matters
described in clause (1) of this article, as may be prescribed by law.

COMMITTEE OF ENQUIRY
Read Art 278

A Committee of Inquiry set up Minister who will do some “nonsense” and you will
be required to state what procedure to use if you are suing the Committee and
the Minister.

KEY: The Minister is a public officer – State Proceedings Act

What would you do when you take the matter to CHRAJ?

Format:

1. Definition
They are basically institutions which are outside the judiciary properly so called
but possess some powers of courts. Also, they are administrative tribunals
outside the regular court system and possess powers of adjudication.
Referring to the definition of Commissions of Inquiry above, it can be inferred
that there can be purely domestic ones, some set up by the admin and govtal
bodies such as MDAs and others by the President. There are also some set up
permanently by the Constitution like CHRAJ, thru the CHRAJ Act, Act 456.

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A Commission of Inquiry by the definition provided in Art 295(1) includes a
Committee of Inquiry.
A Comm of Inq of the kind provided for by the Constitution, 1992 in Art 278 is a
special kind. Here, only the President possesses the power to appoint a
Commission of Inq in relation to a matter of public interest – art 278(1).

He can do this on his own volition, upon advice from the Council of State that
the matter is of public interest or on request from Parliament.

2. What is “matter in public interest”?

Art 295(1) defines it as any right or advantage which ensures or is intended to

enure generally to the benefit of the people of Ghana. This however is a shallow
definition and gives room for any qualification to be made to it.

3. Power of Minister to set up Comm in Inquiry within ministry.

Art 78 gives the President power to appoint ministers of State with prior approval
from Parliament. Art 79 also vests power in the President to appoint Deputy
Ministers.

According to Art 58(1), the executive power is vest in the President exercisable in
accordance with the provisions of the Constitution. Art 58(3) provides for
delegation of executive authority to be exercised by his subordinates of which
the Ministers of State are part.

In line with this, the Minister can set up a Commission of Inquiry to look into a
matter involving his ministry. However, in the exercise of this power he needs to
follows the provisions of Art 23 and 296.

4. How can you bring an action against the Minister after he has done
his “nonsense”?

Art 293(1) provides that a claim against govt may be enforced as of right without
grant of a fiat or petition of right.

Art 293(2) also provides that the govt is liable in tort just as a private person of
full age and capacity is in respect of torts committed by its employees and
agents, in this case the Minister in the event of a breach of duty owed by that
person to his employees or agents under common law or any other law.

The Sate Proceedings Act, Act 555 regulates the law governing proceedings
involving the state.

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Section 9 of Act 555 provides that all actions in favour of the State or against the
State should be directed at the A-G.

In the case of ASIEDU-ADDO AND ANOTHER v. COMPTROLLER OF CUSTOMS

AND EXCISE AND ORS, the plaintiff brought an action against the defendants for
the wrongful seizure of their goods. The comptroller entered appearance under
protest and stated that since the Department of Customs was a department
under the Republic it lacked legal personality; therefore the action should have
been directed at the A-G.

The court held that since the State Proceedings Act, 1961 (Act 51), as amended
by N.L.C.D. 352 did not provide explicitly that all actions be directed at the A-G,
the plaintiffs had a choice to make and this they did. Also since the Department
of Customs was able to sue under Section 222 of the Customs Ordinance, Cap.
167 for recovery of fines it implied the possibility of suits being directed at it.
However the current law under Act 555 settles this ambiguity.

The combined effect of Sections 10 and 19 of Act 555 – 30 day notice to A-G
about intention to commence action for relief sought.

In Kuah v A-G, plaintiff sought an injunction to restrain the defendants from

unlawfully interfering with his trade or business and damages for unlawful
interference with his trade as a seaman. The defendant raised a preliminary
objection stating that the State Proceedings Act, 1961 (Act 51), s. 1 as amended
by the State Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352)
enjoined plaintiff to give one month’s notice of intention to take action but which
was not done, therefore the action was incompetent and should fail.
This preliminary objection was upheld by the court and action was stuck out.

5. Exception to the provisions of section 10 and 19 – No one month notice if the

action invokes the original jurisdiction of the SC or it is HR matter.

In E.P. Church v A-G, the plaintiff, holder of a lease from the govt in turn sublet
the land to another. In an action to repossess the land due to unauthorized
development and modification to the land, the plaintiff received a letter from the
Lands Commission stating that the govt had repossessed the land for breach of
covenant. This was whiles the plaintiff’s action was pending in court. Further the
plaintiff obtained judgment but the Lands Commission had re-allocated the land
and the land was in the process of being registered. This necessitated the
plaintiff’s action against the Republic without giving notice to the A-G.

The A-G applied that the action be set aside and argued that the action was
incompetent because the plaintiff did not follow the requirement of one month's
statutory notice to the Attorney-General stipulated in the State Proceedings Act.

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The court held that the one month’s statutory notice invoked by the A-G in the
State Proc Act was inconsistent with Art 17(1) of the Constitution therefore null
and void since it encouraged discrimination and also Art 17(4).

Section 13 – Reliefs against the state.

6. Procedure if action is brought before the CHRAJ

CHRAJ Act, Act 456

Art 230
C.I. 7 – CHRAJ Complaints Procedure Regulations,

Powers and Functions

Procedure for making Complaints

Regulation 1 – Written or oral. If written should be directed to Commissioner or

Rep and signed. If oral should be written down by an officer of the Commission
and the person should sign it.

Regulation 2 – Complaint shall contain details of the complainant and the relief
sought.
Section 12 of Act 456 – complainant can be individual or corporate body.
Regulation 3 – The Commission shall if the matter is within its functions write to
the authority concerned notifying it of the complaint against and the authority
shall reply within 10 days upon receipt of the letter.

Regulation 4 – Mediation

Regulation 5 – Full investigation, witnesses, etc

In GCB v CHRAJ, the CHRAJ had conducted investigations into the dismissal of
the complainant a former employee of the GCB who was dismissed in 1984. The
complaint was made in 1993. After concluding that the plaintiff was wrongfully
dismissed, it proceeded to enforce its recommendations in courts as stipulated by
Art 229 of the Constitution and section 18 of Act 456. The HC endorsed the
decision of the CHRAJ and issued an order of enforcement of the
recommendations. On appeal, the CA upheld the HC decision, there necessitating
the Appeal to the SC where the GCB argued that the action was time-barred due
to section 4 of the Limitation Decree 1972, NRCD 54.

The court held that the CHRAJ is not immune from the supervisory jurisdiction of
the HC and that CHRAJ was not time-barred with regards to investigations.

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However, the enforcement of its recommendations were within the domain of
the courts subject to the laws of the Republic. Consequently, where the
enforcement was inconsistent with the law i.e. the Limitation Decree then the
enforcement would constitute a breach of the law.

In the case of Ampiah Ampofo v CHRAJ, the applicant upon adverse findings had
been made against him by a Panel set up under Regulation 6(2) of C.I. 7 sought
to have those findings set aside when he applied to the HC. The argument he
made was that in Act 456 and Art 216, the commission referred to a the
Commissioner and his two Deputies, therefore they were there only persons to
investigate and no one else. The trial judge referred the matter to the SC for
interpretation.

The SC ruled that by the provisions of Art 220 there were to be established
regional and district offices of the Commission. Therefore the definition of the
Commission should be given a broad meaning which would include that provided
in Art 216 and 220.

NOTE: Look for ex parte Richard Anane.

Can CHRAJ conduct suo motu an investigation without a report?
Regulations 1, 2, 3.

Is it mandatory to have a complaint?

Refer to Art, 218 (e), Art 287 and section & 7(1)(e) of Act 456.

COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE

(COMPLAINT PROCEDURE) REGULATIONS, 1994 (CI 7)
ARRANGEMENT OF REGULATIONS
Regulation
1. Lodging a Complaint.
2. Contents of Complaint.
3. Transmission of Complaint and Preliminary Investigation.
4. Mediation.
5. Full Investigation.
6. Investigation Panels.
7. Report to Commission.
8. Investigation by Regional and District Offices.
9. Submission of Monthly Reports.
10. Final Decision on Complaints.
11. Interpretation of Action.

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12. Interpretation.
IN exercise of the powers conferred on the Commissioner for Human Rights and Administrative Justic
section 26 of the Commission on Human Rights and Administrative Justice Act 1993 (Act 456) these Reg
are made this 1st day of September, 1994.
Regulation 1—Lodging a Complaint.
(1) A complaint to the Commission shall be made in writing or orally to the national office of the Commiss
a representative of the Commission at the regional or district branch of the Commission.
(2) Where the complaint is in writing, it shall be addressed to the Commissioner or to his regional or
representative and shall be signed or thumbprinted by the complainant or his agent.
(3) Where the complaint is made orally or the complainant cannot read and write, the complaint shall be redu
writing by the officer at the registry of the Commission or its branch to whom the complaint is made or by a
person chosen by the complainant.
(4) A person who reduces into writing the oral complaint of any person shall—
(a) read over and explain the contents to the complainant;
(b) declare on the document that the complainant has fully understood or appeared to understand and appre
content of the complaint; and
(c) cause the complainant to append his signature or thumbprint to the written complaint.
Regulation 2—Contents of Complaint.
(1) A complaint lodged with the Commission shall contain—
(a) the full name and contact address of the compliant;
(b) the body, organisation or person against whom the complaint is made;
(c) particulars of the nature of the complaint together with copies of any document in support of the complai
(d) the nature of the injustice or harm that the complainant has suffered as a result of the action, inaction or o
of the body or organisation or person against whom the complaint is made; and
(e) the relief sought by the complainant.
(2) A person who lodges a complaint with the Commission on behalf of another person shall state in wr
capacity in which he does so and the reason for so doing.
(3) A complainant shall be given a reasonable time (depending on the circumstances of the case) within w
check on his complaint.
(4) Where a complaint lodged with the Commission is not pursued for three months from the date it is lod
complaint shall lapse thereafter.
Regulation 3—Transmission of Complaint and Preliminary Investigation.
(1) Where the Commissioner considers that a complaint lodged with the Commission is a matter within the
of the Commission, he shall cause a copy of the complaint to be transmitted to the head of the body or orga
or the person against whom the complaint is made with a request for comment and response.
(2) The head of the body or organization or person against whom the complaint is made shall within ten da
the date of receipt of the complaint or such further period as the Commissioner may specify submit his comm
response to the Commissioner.
(3) The Commissioner or his representative may assign an investigator or officer of the Commission to
preliminary investigation into any complaint lodged with the Commission.
(4) The Commission may for the purposes of performing its functions require the services of a member of th
Force or any public institution with expert knowledge relevant for redressing any particular complaint.
Regulation 4—Mediation.
(1) Upon receipt of the comments or response the Commissioner, where he considers that in view of the r
the complaint could be mediated upon and settled, may invite the parties concerned and attempt a settleme
issue between the parties.

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(2) No provision of these regulations shall preclude the Commission on receipt of a complaint from inv
parties concerned and attempting a settlement of the issue between the parties.
Regulation 5—Full Investigation.
(1) Where the Commission decides to institute a full investigation into a complaint, the Commission shall in
invite—
(a) the complainant;
(b) a representative of the body, organisation or person against whom the complaint is made; and
(c) such other persons as are considered by the Commission to be concerned in the investigation to atte
interviewed by the Commission at a date, time and place specified in the notice.
(2) The date for attendance shall not be less than seven days from the date of the notice.
(3) A person appearing before the Commission in answer to a complaint shall—
(a) be informed again of the particulars of the complaint and the relief sought;
(b) be afforded full opportunity to answer the complaint and to question any witness.
(4) Any person who appears before the Commission in any investigation shall be given a fair hearing.
(5) Persons appearing before the Commission to be investigated shall appear in person and may be repres
counsel.
(6) Records of the investigation shall be kept in writing.
Regulation 6—Investigation Panels.
For the purposes of Regulation 5 the Commissioner may on the recommendation of any other membe
Commission, an investigator of the Commission or any other officer of the Commission, constitute a
investigate any complaint and report to the Commission.
(2) The panel shall be composed of a chairman who shall be a member of the Commission or any legal offic
employment of the Commission and not less than two other officers of the Commission.
(3) Notwithstanding sub regulation (2) of this regulation there may be co-opted on any such panel such perso
Commissioner may approve.
(4) A person appearing before a panel under these regulations may raise an objection to the membership of t
to the Commissioner who shall determine the issue.
Regulation 7—Report to Commission.
(1) A panel composed under these regulations shall make a full report in any matter before it
recommendations to the Commission.
(2) The Commission shall consider every report submitted under sub-regulation (1) and may accept or re
recommendations or ask for further investigations.
Regulation 8—Investigation by Regional and District Offices.
An officer appointed as the regional or district head of a branch of the Commission shall ensure the
investigation by officers in the region or district of all complaints and may refer complaints to the nation
where he considers it necessary or where directed by the commissioner.
Regulation 9—Submission of Monthly Reports.
(1) The head of a district office of the Commission shall within five days of the end of every months subm
head of the regional branch of the Commission, a report of all complaints investigated by the district offic
preceding month and recommendation of the office on the complaints.
(2) The designated head of a regional branch of the Commission shall submit a monthly report on all com
investigated by the district offices and the regional office together with the recommendations to the national
Regulation 10—Final Decision on Complaints.
The final decision in any complaint lodged with the Commission shall be taken by the Commission.
Regulation 11—Interpretation of Action.
For the purpose of sections 9 and 18 (2) of the Act, the Commission may by writing authorise any public o

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bring an action in any court in the name of the Commissioner.
Regulation 12—Interpretation.
In these Regulations—
"Act" means the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456).
Dated at Accra this 1st day of September, 1994.
EMILE FRANCIS SHORT
Commissioner for Human Rights and Administrative Justice
Date of Gazette Notification: 14th October, 1994.

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