INTRODUCTION TO

LAW AND THE GHANA

LEGAL SYSTEM
WHAT IS LAW?
There is no universally acceptable definition of what law is. Law can however be defined as a body of
rules and regulations which regulate the conduct and activities of a group of people within a given
society.
The existence of law in the society is therefore a mechanism of social control by ensuring that a
group of people within a particular behave in ways considered acceptable within that society.
In the words Thomas Hobbes, a British philosopher, in his book Leviathan described the nature of
mankind without laws or before a central government is formed as ‘ …solitary, poor, nasty, brutish
and short.’
 It can therefore be gleaned that the ultimate aim of law is protection (protection against each
other and oneself), freedom and dispute resolution.
 Law can be used as a means of social control
What is a legal system? It is a body of rules (varied rules regulating different aspects of
human endeavour) and institutions within a society which regulate the society. These rules and
institutions organise and regulate the activities between individuals and the activities between
the state and its relationship with individuals.
Examples of institutions in Ghana which make the legal system :
CHRAJ, POLICE, EXECUTIVE, JUDICIARY, LEGISLATURE ETC.
 Ghana’s legal system is pluralistic in the sense it is made up legal rules of British origin,
customary rules applicable to specific communities, as well as legal rules created by other
law making bodies (such as Parliament) and individuals.
 
Types of legal systems:
 Common law (Judge-made laws, stare decisis/judicial precedent), adversarial in nature
 Civil law (inquisitorial in nature)
• Religious law (the Vatican headed by the Pope)
SOURCES OF LAW IN GHANA
Article 11 (1) of the 1992 Constitution stipulates the laws of Ghana as follows;
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
Article 11(2) states that : ‘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; the rules of customary
law including those determined by the Superior Court of Judicature.’
 
 Common law
The law developed by judges through decisions of courts and similar tribunals, rather than through
legislative statutes or executive branch action. It operates on the principle of precedent
and postulates that it is unfair to treat similar facts differently on different occasions.
 
It is based on judicial precedent, which is binding.
It adversarial in nature
 What is equity?
 
Equity is the name given to the set of legal principles, in jurisdictions following the English
common law tradition, which supplement the common law where their application would operate
harshly. To the legal person, it is said that equity is commonly said to “mitigate the rigor of
common law”, allowing courts to use their discretion and apply justice in accordance with natural
law
 
Maxims of equity
 He who comes to equity must come with clean hands
 He who seeks equity must do equity
 Equality is equity
 Equity looks to the intent rather than the form
 Equity does not suffer a wrong without a remedy
 
Article 11(3) states that: ‘ For the purposes of this article, ‘customary law’ means the rules of law
which by custom are applicable to particular communities in Ghana.’
Customary law is community specific which must have been developed over a period of
usage. It must not be repugnant to natural justice, fairness and it must adhere to the
tenets of the Constitution (Widowhood rites etc.)
 
Article 11 (4) provides that 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.
 (A)CONSTITUTION
Promulgation of the constitution
 
• Committee of experts drafted it-Consultative Assembly (representatives of various groups) to
deliberate upon it- Referendum and signature by chairman of the PNDC. It came into effect in January,
1993.
• It is the fundamental law of the land. This is because all other laws must adhere to the tenets of the
constitution. This finds expression in Article 1(2) of the Constitution as follows:
 
“ This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with
any provision of this Constitution shall, to the extent of the inconsistency, be void.’
 
See the case of Ghana Independent Broadcasters Association (GIBA) Vrs National Media Commission
Facts: GIBA dragged the NMC to Court over its content authorisation law which required media houses to
submit a document of their programme line-up to the Commission for approval before broadcast, and
has penalties including fines and jail terms for those who default.
B)ENACTMENTS MADE BY OR UNDER THE AUTHORITY OF PARLIAMENT ESTABLISHED BY THE CONSTITUTION
(1) Enactments made by Parliament.
Laws made by Parliament in accordance with powers granted it under Article 93 of the Constitution. It
refers to Acts of Parliament such as the Labour Act, 2003,(Act 651) , Evidence Act, 1975 (NRCD 323) etc.
They are primary legislations.
(i) Procedure for enacting Acts of Parliament
Introduction of the bill in parliament by either the president or a person acting on his behalf, usually the
sector minister. Private individuals may also introduce bills for passage into law, provided they do not
contravene Article 108 (Settlement of financial matters) which is the sole preserve of the president or
any person acting on his behalf.

The Bill must be accompanied by a memorandum setting out its policy and principles, the defects of the
existing law, the remedies it proposes for dealing with the defects and the need for the introduction of
the Bill.(Article 106(2)(a))
 Secondly, it must have been published in the Gazette at least 14 days before the date of its
introduction in Parliament.(Article 106(2)(b)). In the case of Bills concerning chieftaincy, there is the
additional requirement of prior reference to the National House of Chiefs.(Article 106(3)

 Once introduced, the Bill must be read for the first time in Parliament and then referred to the
appropriate committee in Parliament which shall examine it in detail and make enquiries it
considers necessary. Article 106(4)(Seeking opinions of experts and those to be affected by the Bill
if passed)
 
 After the deliberations by members of the committee, it shall submit a report of its work to
Parliament for debate by the whole house Article 106(5).
 
 The Bill is read for the second time after the report has been submitted by the committee. At this
stage there is a full debate of the Bill. (clause by clause debate). Changes may also be made to the
Bill.
 
• The final step is the reading of the Bill for the third time. At this stage the Bill is passed into law. The
president must assent to it and it must be published in the Gazette.
  
(2) Enactments made under the authority of Parliament (delegated legislation)
Rules made by ministers of state (Legislative Instrument (LI), Executive Instruments (E.I), bodies such as
local government authorities (bye laws-AMA) based on powers granted them by Parliament. Examples of
LI’s include Labour Regulations, Road Traffic Regulations etc. The grant of this legislative power to non-
legislative bodies is normally done through an Act of Parliament called the main legislation or the principal
legislation or parent Act or the enabling Act.
 
(3) Orders, Rules and Regulations made by any person or authority under a power conferred by the
Constitution. (Also delegated legislation)
These rules are called Constitutional Instruments (CI’s). For example EC given power to make CI’S to
govern the conduct of elections. Rules of Court Committee to make rules governing Court procedures;
NMC to make rules by CI on the registration of newspapers. General Legal Council on legal education in
Ghana.
Any such Order, Rule or Regulations must however comply with Article 11(7) of the Constitution
Law Enforcement: The Court System
Evolution of Ghana’s Court system
 The Ghanaian Judiciary consists of the Superior Courts of Judicature, which include the Supreme Court,
the Court of Appeal, the High Court and
 
 The lower courts currently comprising the Circuit Courts, the District Courts
 
 The National House of Chiefs, Regional Houses of Chiefs and traditional councils, are also recognized by
the law as tribunals with jurisdiction to adjudicate over any matters affecting chieftaincy.
 
The Commercial Courts, Human Rights Court, Financial, Industrial (Labour) and Land Courts have recently
been established as divisions of the High Court to facilitate the speedy resolution of disputes, particularly
those of a specialised nature.
 
SUPREME COURT
 
 It is the final appellate court of the country.
 It has supervisory jurisdiction over all courts and adjudicating authority in Ghana and in the exercise
of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing
the enforcement of its supervisory power.
 It has exclusive jurisdiction in all matters relating to the enforcement or interpretation of the
constitution.
 It also has exclusive jurisdiction in matters as to whether an enactment was made in excess of the
powers of Parliament or any other authority under the constitution.
 It has exclusive appellate jurisdiction in cases of high treason, which by the constitution is to be tried
by a special court made up of three High Court Judges.
 It hears appeals from the National House of Chiefs.
 The Supreme court is made up of the Chief Justice and not less than nine Justices.
 The court is duly constituted with a panel of five Judges.
• It is headed by the Chief Justice.
COURT OF APPEAL
 
 The Court of Appeal serves as the appellate court for the High Court, Regional Tribunal and civil
appeals from the Circuit Court.
 It has no original jurisdiction, it is purely an appellate court.
 Appeals from the Court of Appeal lies to the Supreme Court.
 It is made up of the Chief Justice and not less than ten Justices of the Superior Court.
• The court is duly constituted by a panel of three.
HIGH COURT
 The High Court is duly constituted by a single Judge, unless the court is required to sit with jurors or
assessors.
 It has original jurisdiction in all civil or criminal matters unless otherwise specified by the constitution.
 It has appellate jurisdiction in appeals from the District Court and criminal appeals from the Circuit
Court.
 It has exclusive jurisdiction for the enforcement of the Fundamental Human Rights enshrined in the
1992 Constitution.
 It has supervisory jurisdiction over all lower courts in the country and all inferior judicial bodies like the
CHRAJ, Regional and National House of Chiefs and also any administrative body that exercise quasi-
judicial functions.
 It is made up of the Chief Justice and not less than twenty Justices.
  
REGIONAL TRIBUNAL
 
 The Regional Tribunal only exercise special criminal jurisdiction to try offences against the state and
public interest as Parliament may by law prescribe.
 Regional Tribunals have concurrent original and appellate jurisdiction with the High Court in respect of
all criminal cases.This means that Regional Tribunals have the same jurisdiction as the High Court in
relation to criminal matters.
 Regional Tribunals do not, however, have jurisdiction in respect of civil matters.
 Regional Tribunals do not also have supervisory jurisdiction.
 By article 142 of the constitution there shall be established in each region such Regional Tribunal as the
Chief Justice may determine.
 The Tribunal is made up of the Chief Justice, one Chairman and not less than two panel members.
Currently, the Regional Tribunal sits in Accra and Tamale.
CIRCUIT COURT
 The Circuit Court is manned by a Circuit Judge.
 It has jurisdiction in civil actions arising from contract or tort or for recovery of all liquidated claims
not exceeding GHC 50,000.00
 It has jurisdiction in landlord/tenant cases; ownership, possession, occupation and title to land cases.
 It has jurisdiction in probate and letters of Administration where the value of the property does not
exceed GHC 50,000.00
 It also has jurisdiction in matters involving custody of children.
 The circuit court has jurisdiction in all criminal matters other than treason and offences punishable by
death.
 Appeals from Circuit Court in civil cases lies to the Court of Appeal and criminal cases lies to the High
Court.
DISTRICT COURT
 
 The District Court makes up the largest number of courts in the country. Each district in the country has
at least one District court. The Family Court, Juvenile Court and the Motor Court are all District courts.
 It has civil jurisdiction in personal actions under contract and tort for recovery of liquidated sum not
exceeding GHC20,000.00
 In criminal matters it has jurisdiction to try summarily offences punishable by a fine not exceeding 500
penalty units or imprisonment for a term not exceeding two years.
 
FAMILY TRIBUNAL
 
 This is a specialized District Court that hears and determine actions under the Children’s Act
1998(Act 560)
 It has jurisdiction in matters concerning parentage, custody of children, access to and maintenance
of children.
 It hears cases concerning children in need of special care and protection.
 It can make care and supervision orders.
 The Tribunal sits with a panel consisting of a chairman and not less than two members, one being a
Social Welfare Officer.
 JUVENILE COURT
• This court hears criminal or civil cases involving a person under the age of eighteen (18) years.
 The Chief Justice designates a District Court to sit as a Juvenile court.
 The court is composed of the District Magistrate and two other persons, one of whom shall be a
Social Welfare Officer.
 MOTOR COURT
 It is a specialised District Court mandated by the Chief Justice to handle Motor/ traffic cases.
It is thus a special court for motor offences and traffic violations.
LITIGATION AS A MEANS OF DISPUTE RESOLUTION AND ALTERNATIVE DISPUTE RESOLUTION
MECHANISMS FOR RESOLVING COMMERCIAL DISPUTES
What is a dispute?
• A dispute means a disagreement
• In business law it is a disagreement concerning the rights and obligations of parties to a transaction
• This arises when a party fails to honour his obligations under a business relationship, i.e. buyer/seller;
principal/agent; hirer/owner etc
Causative factors of Business Disputes
• Parties failure to clearly indicate their respective rights and duties
• Conditions over which parties may have no control and which prevents them from fulfilling their
obligations
• Bad faith – a party agrees to perform certain acts and finding out he has made a bad deal may try to
use clever means of not performing his duties
• Incompetence which may cause parties to perform in a shoddy manner.
• Regardless of how the dispute is created, the point of the law is that the failure of a party to fulfill his
obligations, not having the right to do so, entitles the other party to take legal steps to deal with the
breach.
• Not fulfilling obligations not only disappoints the party to whom the duty is owed but may also cause
him to incur debts or suffer some injury because of the breach.
• As a way of mitigating/assuaging his legal pains/loss/disappointment, the law entitles him to take
lawful steps against the defaulting party for the appropriate legal remedy.
• The role of the judiciary at this point is very important because of its key role in resolving legal
disputes.
 LITIGATION: THE ROLE OF THE JUDICIARY
• Judiciary comprises the various courts of law set up to resolve legal disputes
– Supreme court
– Appeal court
– High court
– Circuit court
– District court
• Basic function of the courts is to interpret and apply the laws of the country to resolve dispute.
• Attitude of the courts is that it is not their responsibility to make contracts or agreements for the
parties. It is the responsibility of the parties themselves to decide and agree on terms they consider
satisfactory.
• Give effect to the intentions of the parties as indicated by their agreements.
• Find out if the elements of a valid agreement exists in relation to the business relationship in which the
dispute has arisen.
• If elements exist, then they will go ahead to enforce the agreement.
• Role therefore is to give effect to voluntary agreements of the parties to the relationship
 CHALLENGES ASSOCIATED WITH LITIGATION
• Time consuming
• Costly process
– Filing fees and other costs
– Legal fees – hourly/sometimes a percentage of the value of the subject matter
– Transportation
– The longer a case takes to settle, the more expensive it becomes
 Destroys existing relationships.Any existing cordial relationship is destroyed. This destroys any hope of
future collaboration
 Ineffective remedies.Basic remedy available is one of damages. Court however does nothing to ensure
the payment. Where the person is a man of straw, despite judgment victorious party has still lost.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
• These are other means of resolving disputes other than litigation.
• ADR is appreciated as a quick, effective and painless means of resolving commercial disputes
• The main forms used in Ghana are:
– Negotiation
– Mediation
– Arbitration
 
• Negotiation
– Parties themselves settle without the involvement of a third party
– To ensure success parties must be willing and ready to compromise
– Act in good faith and be responsive to the legitimate interest, concerns and fears of each other
– Atmosphere of openness to facilitate a frank discussion of the issues
• Mediation
– Parties settle disputes with the assistance of a third party
– The mediator is just a facilitator and must be neutral
– He must be capable of identifying the real interests and fears of the parties and get them to focus
on those interests and fears (through caucusing)
– He cannot favour one party over another and his key role is to ensure that parties reach
agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
– Give expert and unbiased views of the strengths and weaknesses of the case overall or discuss
with parties what might happen if dispute goes to court(through caucusing).

Arbitration
• Parties refer their dispute to a third party called the arbitrator for resolution who is required by law to
listen to the parties in a judicial manner and make a determination as to who is right or wrong.
• The decision is called the arbitration award and binding on the parties and enforceable as a binding
contract.
• Whereas the mediator plays a passive role, arbitrator plays an active role and actually decides who is
right or wrong and parties are required to abide by it.
• Court connected ADR
– Came about as a response to the need for a fast and efficient mechanism for adjudication of cases
pending in the courts.
– ADR is part of the adjudicating process of the Judicial Service of Ghana
– Option available to parties in dispute who file cases in the courts or whose cases are already
pending in court
– Suitable cases are referred to ADR by the judge or Magistrate
– Parties can select their own mediator from a list of mediators assigned to the court
– A date is agreed for the mediation session after which an agreement signed by both parties is
adopted by the Court.
– Judgment adopted by the court is enforceable as any other judgment of the court 
When a case is not resolved at mediation, it is referred back to court by the mediator for continued trial.
• Advantages of ADR over litigation
– Effective in reducing backlog of cases in the courts as well as enhance access to justice to the poor
and vulnerable
– Cheaper
• Court and legal fees are reduced, where option of negotiation is pursued, there is no need for
legal representation
– Faster and simpler
– Effective in restoring strained relations between parties
– Ownership and control of the process
– Provides a win-win outcomes for both parties
– Flexible
Legal basis for ADR
Sections 72, 73 of Courts Act, 1993, (Act 459), mandate a court to promote reconciliation, encourage
and facilitate the settlement of disputes in an amicable manner among litigants who have appeared
before it.Sarfo & others v. Adu & others: CA stated that there is no rule in Ghana or practice of the
court that inhibits parties from settling their disputes out of court. The view of the court was that the
law rather encourages settlement of disputes out of court irrespective of the stage of proceedings.
• Labour Act, 2003, (Act 651), mandates that industrial disputes be resolved through negotiation,
mediation and arbitration.
 Chief Justice established the commercial division of the High Court for the settlement of
disputes in an efficient, effective and speedy way. Use of ADR is compulsory in the
commercial courts
 Started operating in 2005
 Commercial cases including banking and finance issues, debt etc.
• Its jurisdiction is not restricted territorially, i.e. cases from all over Ghana can be brought
before it.
• Mediation is handled by judges who are trained mediators.