LAW, LANGUAGE AND LITERATURE

GHANA’S LEGAL JURISPRUDENCE

James Boyd White's The Legal Imagination (1973) is often credited with initiating the law
and literature movement. It is a fusion of anthology and critique, drawing on a range of
sources, with headnotes and questions on the relationship of legal texts to literary analysis,
and literary texts to the legal issues that they explore. Proponents of the "law-in-literature"
theory, such as Richard Weisberg and Robert Weisberg, believe that literary works,
especially narratives centered on a legal conflict, offer lawyers and judges insight into the
"nature of law". This perspective examines and interprets legal texts using the techniques of
literary critics. Scholars such as White and Ronald Dworkin apply law as literature, because
they maintain that the meaning of legal texts, such as written law, like any other genre of
literature, can be discovered only through interpretation. These matters are contentious.

 IDIOMATIC EXPRESSIONS - I am of the view that the speed with which the defendant
withdrew these amounts as they appeared in his pass-book is an indication that he
was aware that these moneys did not belong to him and that he was making hay
while the sun shone. SOWAH J, IN BARCLAYS BANK (D.C.O.) v. DABO [1964] GLR 637-
643, IN THE HIGH COURT, KUMASI

CONCEPTUAL METAPHORS / metaphors

1. AGBEVOR v ATTORNEY-GENERAL [1999-2000] 2 GLR 186 KPEGAh

 My lords, “justice”, they say, “must be done even if the heavens fall.” The heavens
need not rumble, let alone fall as a result of this case. This is a case which, in my
honest view, should not have come to this court if only the Judicial Council had lived
up to expectation and properly discharged its constitutional responsibilities.
 Tuffuor vs. Attorney General (1980) GLR 63 CA at pp.647 – 648, where Sowah JSC (as
he then was) posited. A written Constitution such as ours is not an ordinary Act of
Parliament. It embodies the will of a people. It also mirrors their history. Account,
therefore, needs to be taken of it as a landmark in a people's search for progress. It
contains within it their aspirations and their hopes for a better and fuller life. "The
constitution has its letter of the law. Equally the constitution has its spirit…. Its
language must be considered as if it were a living organism capable of growth and
development… A broad and liberal spirit is required for its interpretation.
 NEW PATRIOTIC PARTY v ATTORNEY-GENERAL [1993-94] 2 GLR 35—192 SUPREME
COURT, ACCRA ARCHER: This court should not behave like an octopus stretching its
eight tentacles here and there to grasp jurisdiction not constitutionally meant for it. I
hold that this court has no constitutional power to prevent the executive from
proclaiming 31 December as a public holiday because the executive then would be
[p.50] applying an existing law in PNDCL 220 which can only be amended by
Parliament. ARCHER
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  FRANCOIS, ,,,,,My own contribution to the evaluation of a Constitution is that, a
Constitution is the out-pouring of the soul of the nation and its precious life-blood is
its spirit. Accordingly, I interpreting the Constitution, we fail in our duty if we ignore
its spirit. Both the letter and the spirit of the Constitution are essential fulcra which
provide the leverage in the task of interpretation. In support of this, we may
profitably turn to the Constitution, 1992 itself which directs that we accord due
recognition to the spirit that pervades its provisions.
 ERIC ANSONG V GORMAN – 2011 , per Dotse, JSC, What must be noted here is that,
equity is not a warlord that is determined to do battle with the law.
 JOHN K. A KLU V DR. KOFI KONADU APRAKU (2009) - It is plain, however on the
facts that the plaintiff’s case would withstand even such side winds.
 AFRIFA v CLASS-PETER [1975] 1 GLR 359-366 When this appeal was argued, counsel
for the respondent essayed to defend his pleadings by asserting that breach of
promise of marriage was unknown in customary law and therefore a suit for breach
could only refer to a common law breach. Consequently, it was unnecessary to
relate the breach to marriage under the Ordinance. After propounding such a
profound legal point, counsel's subsequent diffidence in advancing the submission,
was to say the least, disappointing. No serious foray (ATTACK BY THE MILITARY) was
made to support the argument with authority, and the forensic spring dried up even
before it could well up.
 KPEGA, GB ASSOCIATION V AG- ABBAN CASEE 96 The need for a virile, fearless and
independent judiciary cannot be over emphasised. This suit appears to be a guided
missile launched not only at the heart of the judiciary but also at the Constitution,
1992 itself; possibly inadvertently. We cannot, in the circumstances, keep our own
patriot missiles permanently fixed to their launch-pads, we must instinctively fire
them in defence of the Constitution. I hold the humble view that we cannot in
faithfulness to our constitutional system and oath of office say that it is not the
function of the executive (the President) and the legislature (Parliament) to appoint
the Chief Justice of this country. It is the duty of every citizen to assist the judiciary
fight for and retain its independence.
 MENSAH V MENSAH 2012 - From the evidence on record, this court will not permit
the respondent to use the petitioner as a donkey and after offering useful and
valuable service dump her without any regard for her rights as a human being

DIVINITY / BIBLICAL TEXT IN GHANA’S LEGAL JURISPRUDENCE

 THE PREAMBLE: THE CONSTITUTION OF THE REPUBLIC OF GHANA IN THE NAME OF

THE ALMIGHTY GOD, We the People of Ghana, IN EXERCISE of our natural and
inalienable right to establish a framework of government which shall secure for
ourselves and posterity the blessings of liberty, equality of opportunity and

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 prosperity; IN A SPIRIT of friendship and peace with all peoples of the world; AND IN
SOLEMN declaration and affirmation of our commitment to; Freedom, Justice,
Probity and Accountability; The Principle that all powers of Government spring from
the Sovereign Will of the People; The Principle of Universal Adult Suffrage; The Rule
of Law; The protection and preservation of Fundamental Human Rights and
Freedoms, Unity and Stability for our Nation.
 SALLAH V AG, (1970) PER ARCHER, Kelsen is of the view that the basic norm cannot
be a Divine God but it seems that in Ghana, under our new Constitution, we have
made it quite clear in the Preamble, that the constitution has been enacted in the
name if Almighty God from whom all authority is derived.

REFERENCES TO BIBLICAL TEXT IN JUDGMENT OF THE COURTS

 31ST DECEMBER CASE 1993 Before the British colonial administration came to these
shores to govern, we had holidays in various parts of the country among ethnic
groups for the celebration of festivals restricted to various localities. Up to this day,
farmers in different parts of the country do not farm on a particular day of the week.
In the south, we all know that fishermen do not go fishing on the seas on Tuesdays.
These days of rest are consistent with the biblical text in Genesis chap 2, v 2: "And on
the seventh day God finished his work which he had made, and he rested on the
seventh day from all his works which he had made." How did public holidays
affecting the whole nation come into existence in Ghana?
 DODZIE SABBAH VRS THE REPUBLIC (2015) DOTSE: Learned counsel finally made a
profound reference to the words in Proverbs 3, 27 which reads as follows:
-“Withhold not good from them to whom it is due, when it is in the power of thine
hand to do it.” I respond and state that this court cannot be seen to preside over
justice and have injustice meted out to persons who seek justice before us. In other
words, when it is in our power to do good, we will not withhold it from those to
whom it is due, only that, in all instances it must be according to law Emphasis With
the above words of wisdom, learned counsel reiterated his quest for the payment of
compensation to the appellant.
 KWAKU ASARE V AG -2012 ATUGUBA Dual loyalty has been denounced in the book
of the Universe, the Bible. In the Holman Illustrated Study Bible, Matthew chapter 16
verse 24 states thus: “No one can be a slave to two masters, since either he will hate
one and love the other, or be devoted to one and despise the other. You cannot be
slaves of God and of money.” (e.s.) A classic example of the dangers of dual loyalty is
given in the First Book of Samuel Chapter 29, verses 1 to 11: “Philistines Reject David

REFERENCES TO POETRY

 ARTHUR V ARTHUR 2013 PER DR. DATE-BAH JSC: The Roman poet Virgil in his
Eclogues asserts that “Omnia vincit Amor”, meaning that love conquers all things.
Alas, the empirical evidence from divorce litigation belies this assertion. It is one of

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 the responsibilities of the courts to sort out the messy consequences of love stories
that have unravelled. This case falls into this category of love stories gone sour
 KWAKU FRIMPONG, ALIAS IBOMAN V R – 2012, per DOTSE, Before we conclude our
opinion in this appeal, let us share with you the first stanza of RUDYARD KIPLING’S
poem titled “IF”:

“If you can keep your head when all about you

Are losing theirs and blaming it on you;

If you can trust yourself when all men doubt you,

But make allowance for their doubting too;

If you can wait and not be tried by waiting,

Or, being lied about, don’t deal in lies

Or being hated don’t give way to hating,

And yet don’t look too good, nor talk too wise;”

……………………………………………………………………………………………..

REFERENCES TO SCIENTIFIC FACTS

 RICHARD BANOUSIN V R – 2015 - We begin this opinion by an observation of the

times and life of Sir Isaac Newton, that great 17th Century English Mathematician
and Philosopher who has given the world some natural laws of physics which apply
to human beings, just as they apply to the movement of bodies in the universe. And
we are sure everyone is familiar with one of these laws, and that is, “for every
action, there is an equal and opposite reaction.” This in real terms means that for
every action one takes, there is an opposite reaction and a price to pay for it. This
could be positive or negative. How does the above statement by Sir Isaac Newton
apply to the circumstances of this case? Well, if only th
Accused/Appellant/Appellant, hereafter referred to as the Appellant had not
requested the victim of the rape charge, Rashida Kanton, PWI to follow him to his
bungalow for her seized pullover among others that he had seized from the
students, the chain of events, culminating in the conviction of the Appellant by the
High Court, Wa, and the subsequent confirmation of same by the Court of Appeal,
would not have resulted into the instant appeal by the appellant to seek a reversal of
that conviction and sentence to 7 years I.H.L. Fact of the matter is that, the career of
the appellant as a teacher has been brought to a pre-mature end by his lack of
discretion.

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 REFENCES TO HISTORICAL FACT

 IN MENSIMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS [1997-98] 1 GLR 159,

the court gave the history on akpeteshi. ……. ‘‘Since an attempt has been made to
provide the intention of the framers of LI 239 by reference to the origin of
akpeteshie, it is necessary for a proper and fuller understanding of the whole matter
to trace the history of akpeteshie. “Akpeteshie” is a Ga word meaning “hide and
buy.” Akpeteshie once described as an illicit gin can no longer be so described. It
acquired such notoriety that it was invariably, referred to by various appellations
such as “bomkotoku”, “kill me quick”, “Ogogro”, “mete megyaho”, “maka maka”,
“kwankyensorodo”, “VC 10”, “fametu” etc, etc. The word came into use because of
the obnoxious law which empowered the police to apprehend distillers of the drink
as well as sellers of the liquor: see the speech of the Parliamentary Secretary to the
Ministry of Commerce and Industry at the National Assembly during the passing of
the Spirit (Distillation and Licensing) Bill on 7 December 1959. During that period it
was an illicit gin; distillers distilled it secretly in forests and remote villages. The
Liquor Ordinance dated 31 December 1920, chapter 219 of the Laws of the Gold
Coast banned the drink. Section 5 of that law provided that it shall not be lawful for
any person to manufacture a distilled alcoholic beverage of any kind. This law
remained in force until 4 March 1957 when it was repealed by section 8 of the Excise
(Amendment) Ordinance, 1957 (No 38 of 1957). Various laws have affected the
manufacture of akpeteshie. These legislative restrictions occurred during part of the
colonial era when our colonial masters considered the drink unhealthy and a danger
to health. Perhaps there was a need for this attitude! Now, akpeteshie is
manufactured and sold publicly.
 In NEW PATRIOTIC PARTY v ATTORNEY-GENERAL [1993-94] 2 GLR 35—192 SUPREME
COURT, ACCRA, the court gave the history of the establishment of holidays in Ghana.
Per ARCHER Before the British colonial administration came to these shores to
govern, we had holidays in various parts of the country among ethnic groups for the
celebration of festivals restricted to various localities. Up to this day, farmers in
different parts of the country do not farm on a particular day of the week. In the
south, we all know that fishermen do not go fishing on the seas on Tuesdays. These
days of rest are consistent with the biblical text in Genesis chap 2, v 2: "And on the
seventh day God finished his work which he had made, and he rested on the seventh
day from all his works which he had made." How did public holidays affecting the
whole nation come into existence in Ghana?

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