UGBS

BUSINESS LAW
Derick Ohemeng
derickohemeng@gmail.com
0245340544
 Sources of Law
(I) Extracts from the 1992 Constitution, Arts. 11 (1) – (6),
37 (2) & (3), 40, 73 and 75
11. (1) The laws of Ghana shall comprise –
(a) this Constitution
(b) enactments made by or under the authority of the
Parliament established by this Constitution.
(c) any Orders, Rules and Regulations made by any person
or authority under a power conferred by this Constitution;
(d) the existing law; and
(e) the common law.
 Sources of Law Cont…
(2) The common law of Ghana shall comprise the rules of law
generally known as the common law, the rules generally known
as the doctrines of equity and the rules of customary law
including those determined by the Superior Court or Judicature.
(3) For the purpose of this article, “customary law” means the
rules of law which by custom are applicable to particular
communities in Ghana.
(4) The existing law shall, except as otherwise provided in clause
(1) of this article, comprise the written and unwritten laws of
Ghana as they existed immediately before the coming into force
of this Constitution, and any Act, Decree, Law or statutory
instrument issued or made before that date, which is to come into
force on or after that date.
 Sources of Law Cont.

(5) Subject to the provisions of this Constitution, the existing

law shall not be affected by the coming into force of this
Constitution.
(6) The existing law shall be construed with any
modifications, adaptations, qualifications and exceptions
necessary to bring it into conformity with the provisions of
this Constitution; or otherwise to give effect to, or enable
effect to be given, any changes effected by this Constitution.
 Sources of Law Cont.
37. The State shall enact appropriate laws to ensure –
(a) the enjoyment of rights of effective participation in
development processes including rights of people to form
their own associations free from state interference and to use
them to promote and protect their interests in relation to
development processes, rights of access to agencies and
officials of the State necessary in order to realize effective
participation in development processes; freedom to raise
funds to support those activities.
 Sources of Law Cont.
(b) the protection and promotion of all other basic human
rights and freedoms, including the rights of the disabled, the
aged, children and other vulnerable groups in development
processes.
(3) In the discharge of the obligations stated in clause (2) of
this article, the State shall be guided by international human
rights instruments which recognize and supply particular
categories of basic human rights to development processes.
 Sources of Law Cont.
40. In its dealings with other nations, the Government shall -
(a) promote and protect the interest of Ghana;
(b) seek the establishment of a just and equitable international economic
and social order;
(c) promote respect for international law, treaty obligations and the
settlement of international disputes by peaceful means;
(d) adhere to the principles enshrined in or as the case may be, the aims
and ideals of –
(i) the Charter of the United Nations;
(ii) the Charter of the Organisation of African Unity;
(iii) the Commonwealth
(iv) the Treaty of the Economic Community of West African states; and
(v) any other international organisation of which Ghana is a member
 Sources of Law Cont.
75. (1) The President may execute or cause to be executed
treaties, agreements or conventions in the name of
Ghana.
(2) A treaty, agreement or convention executed by or
under the authority of the President shall be subject to
ratification by –
(a) Act of Parliament; or
(b) a resolution of Parliament supported by the votes or
more than one-half of all the members of Parliament.
 Sources of Law Cont.
(II) Extracts from The Courts Act 1993, (Act 459) ss.54,
55, 119 and Second Schedule
54. (1) Subject to this Act and any other enactment, a court
when determining the law applicable to an issue arising
out of any transaction or situation, shall be guided by the
following rules in which references to the personal law of
a person are references to the system of customary law to
which he is subject or to the common law where he is not
subject to any system of customary law;
 Sources of Law Cont.
Rule 1. An issue arising out of a transaction shall be
determined according to the system of law intended by the
parties to the transaction to govern the issue or the system of
law which the parties may, from the nature or form of the
transaction be taken to have intended to govern the issue.

Rule 2. In the absence of any intention to the contrary, the

law applicable to any issue arising out of the devolution of a
person’s estate shall be the personal law of that person.
 Sources of Law Cont.
Rule 3. In the absence of any intention to the contrary, the
law applicable to an issue as to title between persons who
trace their claims from one person or group of persons or
from different persons all having the same personal law, shall
be the personal law of that or those persons.

Rule 4. In applying Rules 2 and 3 to disputes relating to titles

to land, due regard shall be had to any overriding provisions
of the law of the place in which the land is situated.
 Sources of Law Cont.
Rule 5. Subject to Rules 1 and 4, the law applicable to any issue
arising between two or more persons shall, where they are
subject to the same personal law, be that law; and where they are
not subject to the same personal law, the court shall apply the
relevant rules of their different systems of personal law to
achieve a result that conforms with natural justice, equity and
good conscience.

Rule 6. In determining an issue to which the preceding Rules do

not apply, the court shall apply such principles of the common
law, or customary law, or both, as will do substantial justice
between the parties, having regard to equity and good
conscience.
 Sources of Law Cont.
Rule 7. Subject to any directions that the Supreme Court may give
in exercise of its powers under article 132 of the Constitution, in
the determination of any issue arising from the common law or
customary law, the court may adopt, develop and apply such
remedies from any system of law (whether Ghanaian or non-
Ghanaian) as appear to the court to be efficacious and to meet the
requirements of justice, equity and good conscience.

(2) Subject to this Act and any other enactment, the rules of law
and evidence (including the rules of private international law) that
have before the coming into force of this Act been applicable in
proceedings in Ghana shall continue to apply, without prejudice to
any development of the rules which may occur.
 Sources of Law Cont.
55. (1) Any question as to existence or content of a rule of
customary law is a question of law for the court and not a
question of fact.
(2) If there is doubt as to the existence or content of a
rule of customary law relevant in any proceedings before
a court, the court may adjourn the proceedings to enable an
inquiry to be made under subsection (3) of this section after
the court has considered submissions made by or on behalf
of the parties and after the court has considered reported
cases, textbooks and other sources that may be
appropriate to the proceedings.
 Sources of Law Cont.
(3) The inquiry shall be held as part of the proceedings in
such manner as the court considers expedient, and the
provisions of this Act relating to the attendance and
testimony of witnesses shall apply with such modifications
as may appear to the court to be necessary.
(4) The decision as to the persons who are to be heard at the
inquiry shall be one for the court, after hearing the
submissions on it made by or on behalf of the parties.
(5) The court may request a House of Chiefs, Divisional or
Traditional Council or other body with knowledge of the
customary law in question to state its opinion which may be
laid before the inquiry in written form.
 Sources of Law Cont.
119. (1) Until provision is made by law in Ghana, the Statute
of England specified in the Second Schedule to this Act
shall continue to apply in Ghana as statutes of general
application subject to any statute in Ghana.
(2) Until provision is made by law in Ghana sections
49, 50, 51, 71(1) and (2), 131, 145, 150, 151, 154, 158, 161,
164, and 184 of the Law of property Act, 1925 (15 Geo. V.
c.20) shall apply in Ghana subject to such verbal
amendments, not affecting substance as may be necessary to
enable those sections to be conveniently applied in Ghana.
 The Judiciary
Justice emanates from the people and shall be administered
in the name of the Republic by the Judiciary which shall be
independent and subject only to the constitution (Article
125)
Independence of the Judiciary (Art 127)
The Judiciary consists of:
(a) The Superior Courts of Judicature comprising
i. The Supreme Court
ii. The Court of appeal and
iii. The High Court and Regional Tribunals
(b) Such lower Courts or tribunals as Parliament may by law
establish
 Judiciary Cont…
THE SUPREME COURT
The Highest judicial body in Ghana Supervisory jurisdiction
over all other courts in Ghana.
* Has the original jurisdiction in matters of constitutional
interpretation, and legality of Acts of Parliament.
* Exclusive right to determine whether or not a document is
a State secrete.
* Final appellate court in matters civil and criminal.
* Constituted by the Chief Justice and not less than 9 other
justices of the Supreme Court.
 Judiciary Cont.
THE SUPREME COURT (Cont.)
* Constituted by five Justices
* Chief Justice presides; in his absence, most senior Justice of
Supreme Court.
* Not bound to follow decisions of any other court.
* May depart from its own decisions.
* Has the appellate jurisdiction to exclusion of Court of Appeal
in Appeals; from National House of Chiefs in Chieftaincy
matters.
* Has supervisory jurisdiction over all courts and adjudicating
bodies.
 Judiciary Cont.
THE SUPREME COURT (Cont.)
* Justices are appointed by the President, acting on the
advice of Judicial Council, in consultation with the Council
of State and upon the approval of Parliament.
* Justice retire at age 70 years but may retire after age 60
years.
* A Justice and the Chief Justice may be dismissed by
special procedure.
 Judiciary Cont.
THE COURT OF APPEAL
* Composed of the Chief Justice and not less than ten other
Justices
* Each panel is constituted by three Justices.
* It is bound by its own decisions.
* Courts below bound by its decisions.
* Hears appeals from High Court and Regional Tribunals
* Has no original jurisdiction at all
* Justices appointed by the President acting on the advice of
the Judicial Council
 The Judiciary Cont.
THE COURT OF APPEAL (Cont.)
* Justices retire at age 70 years but may retire voluntarily
after age 60 years.
* A Justice may be dismissed by special procedure.
 The Judiciary Cont…
THE HIGH COURT
* There is only one single High Court in Ghana but the High
Court sits in various locations composed of different
Justices.
* It is composed of The Chief Justice and not less than
twenty Justices
* Sits as a single Justice, or a Justice and a jury or a Justice
and Assessors, or as three Justices to try treason cases.
* Has Jurisdiction over all matters, civil and criminal, except
matters affecting chieftaincy.
 The Judiciary Cont…
THE HIGH COURT (Cont.)
* Has powers for the enforcement of Human Rights and
Freedoms.
* Has supervisory jurisdiction over all lower courts and
adjudicating bodies.
* Justices appointed by the President acting on the advice of
the Judicial Council.
* Justice retire at age 65 years but may retire after age 60
years.
* A Justice may be dismissed by special procedure.
 The Judiciary Cont…
REGIONAL TRIBUNALS
In each region:
* Consists of the Chief Justice, one chairman (a lawyer) and
such other persons (non-lawyers) as shall be appointed by
the Chief Justice.
* Sits as a panel of Chairman and not less than 2 members
* Has only criminal jurisdiction
* Chairman appointed by the President acting on the advice
of the Judicial Council.
 The Judiciary Cont…
REGIONAL TRIBUNALS (Cont.)

* A Justice retires at age 65 years but may retire after age 60

years.
* Members appointed by Chief Justice in consultation with
Regional Co-ordinating Council of Region concerned and
on the advice of the Judicial Council.
 PROCEEDINGS AGAINST THE STATE
1. 1. Art. 88 (92 Constitution) provides that the Attorney
General is responsible to be sued and to sue.
2. Article 293 (92 Constitution) provides that no fiat,
petition of right or permission is required before
proceedings can be brought against the State.
3. Art. 293 (2) – Provides for Tort Liabilities.
4. All Provisions under Art 293 (2) have been incorporated
into State Proceedings Act 1998, Act 555. Section 1 of
the Act repeats the provisions of 293 (2). Section 10 of
Act (State Proceedings) however provides the following
 Proceedings Cont…

“It is provided that even though no fiat is required, a person

must provide a 30 day notice to the AG.
The writer should:
1. State the cause of action
2. Name / Address of claimant
3. Particulars of relief being sought”
 Proceedings Cont…
5. Exceptions to Notice requirements of the above is in
Section 20 (Act 255). Section 20 provides the following as
exceptions:
6. An action brought invoking the Supreme Court on
Interpretation on Art 2 (1) & 130
7. An Action for the enforcement of fundamental human
rights under Art 33 (1)

CASES
E. P. Church V. AG [1992 – 3] GLR 429 In re Seven Sisters
Hotel