The Law of Interpretation

“The Law of Interpretation in Ghana (Exposition & Critique)” – Authored by Dr S Y Bimpong-Buta.

The Preface

It is generally known that there is a dearth of textbooks on Ghana law, written by Ghanaian authors for use by law students, legal practitioners, judges and the general public interested in knowing what the law is on a particular subject.  Consequently, there are, regrettably, many areas of the law in Ghana where there is not a single textbook intended for use by students and as a source of reference for members of the Bench and Bar and all those connected with the administration of law and justice in Ghana.  One such area where there is a crying need for a local textbook is the law relating to the interpretation of deeds and statutes.  This is one of the compulsory subjects which must be read and studied by professional law students under the Legal Profession Law Course Regulations, 1984 (LI 1296).  Besides, the Supreme Court cannot effectively exercise its exclusive original jurisdiction under article 130 of the 1992 Constitution – relating to the enforcement and interpretation of the Constitution and of legislation generally – without reference to the applicable judicial principles of statutory interpretation.  The question is:  what are these principles of statutory interpretation to be applied by the courts in Ghana ?  Needless to say, all the leading English textbooks on the law of interpretation: Craies on Statute Law, Maxwell on Interpretation of Statutes, Odgers on Construction of Statutes, Bennion on Statutory Interpretation and also Cross on Statutory Interpretation – expound and examine the English statutory and common law rules of interpretation as decided principally by the English courts.  Understandably, no reference whatsoever is made to the very rich judicial decisions on interpretation of deeds and statutes handed down by the Ghana superior courts.  The prime object of this book, is to present an exposition and critique of the rules of interpretation as applied by the Ghana superior courts, in the light of the relevant provisions of the Ghana Interpretation Act, 1960 (CA 4), the 1992 Fourth Republican Constitution and the common law rules of interpretation as propounded by the textwiters and the courts not only in England but also in some commonwealth countries exercising common law jurisdiction like Ghana.

The Law of Interpretation in Ghana (exposition and critique) is, therefore a pioneering textbook consisting of ten chapters.  Chapter 1 deals with the preliminary issues of interpretation: definitional and terminological issues; the ascertainment of the intention and legal basis of interpretation.  Chapter 2 expounds and examines the common law basic rules of interpretation or construction of: (a) deeds and documents; and (b) of statutes.  In chapter 3, the application or otherwise of the so-called aids or guides to interpretation as distinct from the basic rules as discussed in chapter 2 is examined.  Chapter 3 also examines, as an aid to interpretation, the role of the Directive Principles of State Policy as formulated in chapter 6 of the 1992 Constitution.  Chapter 4 deals with what is meant by presumptions in the context of statutory interpretation.  The legal effect of repealed and retroactive legislation and ouster clauses in documents and statutes are examined in chapters 5 and 6.  Chapter 7 examines what is meant by special ouster clauses with special reference to:  (a) whether or not the High Court is vested with jurisdiction in chieftaincy matters since the coming into force of the 1992 Constitution; (b) whether or not the High Court has jurisdiction to grant the prerogative order of quo warranto in a cause or matter relating to chieftaincy; and (c) the true legal effect of the ouster clause in section 34 of the transitional provisions to the 1992 Constitution.  Whilst chapters 1 to 7 may be read, not in sequence and independently of each other, it is advisable to read chapters 1 to 7 before reading chapter 8.  This chapter, examines critically, the vexed question which, in the words of Lord Denning (see page 273 of this book) “lies at the heart of statutory interpretation today.”  What is the proper judicial approach to statutory interpretation?  Should judges adopt the plain, literal meaning approach or the creative and purposive approach in interpreting constitutional and statutory provisions?  Are the judges entitled to fill apparent loopholes in the 1992 Constitution and legislation generally?  Should the judges stick only to the letter of the law without regard to the spirit of the law?  Are they simply to interpret the law and not to declare or make law under the guise of judicial interpretation?  These are some of the questions examined in chapter 8 – a chapter which highlights one of the central themes in this book:  namely, that the rules of interpretation of deeds and statutes “hunt in pairs.”  By this we mean that, for every rule of interpretation advanced by counsel, in a given case, the opposing counsel could also invoke another relevant rule of interpretation for consideration by the trial judge.  As has been demonstrated throughout the pages of this book, it is for the judges to decide which of the opposing rules is preferable having regard to the circumstances of each case.

Chapter 9 examines the rules appropriate for the interpretation of a national constitution such as the 1992 Ghana Fourth Republican Constitution.  It concludes that the ordinary rules of construction are generally inapplicable in construing or interpreting a national constitution and that in the words of Professor Friedman, a national constitution “must be interpreted flexibly and the general terms used in it must be understood in the light of the changing social and political development.”  Chapter 9 also examines the rules relating to the construction or interpretation of fundamental human rights and freedoms and its enforcement or otherwise in Ghana before and after the coming into force on 7 January 1993 of the 1992 Constitution.

The book concludes with chapter 10 which examines the role of the Supreme Court in the interpretation and enforcement of the 1992 Constitution.  The chapter examines the development in the constitutional law of Ghana – arising from the interpretation by the Supreme Court of some provisions of the Constitution.  The issues discussed in this chapter include: (i)  the power of the Chief Justice to swear in, ie to administer the judicial oath and the oath of allegiance to the judges of the superior courts on the coming into force of the 1992 Constitution;  (ii) the duty of the state-owned media under articles 55(11) and 163 of the Constitution;  (iii) the right of persons to take part in processions and to demonstrate without prior police permit in the exercise of their fundamental human rights and freedoms;  (iv) whether or not the public celebration of the overthrow of the legally constituted Government of Ghana on 31st December 1981 and the financing of such celebration from public funds was inconsistent with or in contravention of the letter and spirit of the 1992 Constitution.  Chapter 10 concludes with a discussion of the role of the spirit of the Constitution as distinct from its letter – relating to the interpretation and enforcement of the Constitution.

As can be seen from the sub-title of the book, its prime objective, is not just to give an exposition of the law but also to carry out a critique of the rules of interpretation as decided by the Ghana superior courts.  Consequently, there has been criticism (both adverse and favourable) whenever it is considered appropriate, of some of the decisions of the High Court, Court of Appeal and the Supreme Court delivered from 1961 to 1994.  The views of some of the textwriters including the inimitable Lord Denning (see page 225) and commentators and some members of the Ghana Bar Association (see pages 226-230) have also been constructively criticised.  It should be added that these criticisms have been made in good faith – aimed solely at contributing to the development of the law and Ghanaian jurisprudence for the betterment of society and in the interest of justice.  For example, the decision of the Court of Appeal in Sfarijilani v Basil [1973] 2 GLR 260 and that of the High Court in Darkurugu v The Republic [1989] GLRD 29 have been criticised as wrongly decided (see pages 190-194) on grounds of misapplication of the law on the legal effect of repealed legislation which has effected a change in substantive as opposed to procedural law.  Again, criticism has been made of the Court of Appeal decision in Anim-Addo v Addae Mensah alias Biamah, Court of Appeal, 25 March 1993 unreported, to the effect that the class closing rules – relating to the common law rules of perpetuities – as enunciated in Andrews v Partington was inapplicable in determining the effect of the devise made by the testator in that case.  It was suggested that the High Court decision per Brobbey J (as he then was) was the correct statement of the law (see pages 147-150.)  As a further example of the criticisms made in this book, it has been suggested that the Supreme Court’s unanimous decision in Yovuyibor and Bonuedi v Attorney-General, Suit No 19/93, 26 July 1994, was, with respect, unsatisfactory for its want of the legal basis for the interpretation placed on section 8(1) and (4) of the transitional provisions to the 1992 Constitution (see pages 357-365).  These criticisms and others have been made in the pages of this book bearing in mind the great dictum of Lord Atkin in Ambard v A-G of Trinidad and Tobago [1936] 1 ALL ER 704 at 709 that:

Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

It should also be pointed out that, criticisms apart, suggestions based on an informed opinion on some of the legal issues discussed, have been made by way of proposal for law reform of the existing law.  For example, it has been suggested that there should be a review of section 19(1) of the Interpretation Act, 1960 (CA 4) which has codified the orthodox common law rule – prohibiting the courts from resorting to records of parliamentary debates as an aid to interpretation (see pages 79-86.)  Again, a call has been made for an amendment of articles 107, 137(2) and 143(1) of the 1992 Constitution:  see pages 194-196, 162-164 and 155-156 respectively.

I owe many debts of gratitude in writing this book.  The book is based, to a large extent, on the lectures delivered by me as lecturer in interpretation of deeds and statutes at the Ghana School of Law from January 1979 to date with the exception of the period October 1988 to December 1990 when I was out of the country on study leave.  In that regard, I am ever grateful to my former lecturer and Director of the Ghana School of Law, Mr B J da Rocha, who interested me in the subject by inviting me to teach it at the Ghana School of Law in January 1979 in my capacity then as the Ag editor of the Ghana Law Reports and Review of Ghana Law.  Mr da Rocha, then Ag Director of the Ghana School of Law, persistently urged me to accept the invitation to teach the subject at the school despite my protestations that I had not sufficiently prepared for the subject to enable me to teach it.  This book is the outcome of that invitation.  I am also very grateful to all the students of the law of interpretation of deeds and statutes at the Ghana School of Law, since the past sixteen years, especially the 1993/1994 class, who, by their invaluable comments and contributions made at lectures and seminars, influenced me to re-think and as a result to change and re-write some of the views expressed in this book.  I am also very grateful to the Hon Mr Justice J N K Taylor, a retired Justice of the Supreme Court, who read chapters 1 and 2 of the manuscripts and made very useful comments thereon.  I wish to give special thanks to my former colleagues at the Council for Law Reporting, Dr Lennox Agbosu and Mr John K E Edzie, Assistant Editors of the Ghana Law Reports and also Ms Vicky Amartey, BSc (econ) Wales, Dip law, my course mate at the Inns of Court School of Law, Gray’s Inn, London, who in their spare time and with much enthusiasm, read the original manuscripts.  The three former colleagues made very useful comments and suggestions on the text which greatly assisted me in writing this book.  I shall always be grateful to them.  I simply cannot fail to express my deepest and sincerest thanks to Mr Edlin Setse of the European Union (EEC) Accra, who also in his spare time did all the computer typesetting of the book and made it camera-ready for printing.  He, with admirable patience, understanding and enthusiasm, worked on and effected all the numerous corrections and additions to the text – necessitated by new legislation such as the Public Order Act, 1994 enacted in December 1994 and decisions by the Supreme Court also in December 1994 on matters and issues relating to the interpretation of some provisions of the Constitution.  I also owe a special debt of gratitude to Mr Kwesi Nyantakyi, BA(Hons), barrister-at-law and managing editor of Advanced Legal Publications, the publishers of this book, and a former student of the Ghana School of Law.  He made very invaluable comments and suggestions on the text in the course of proof reading the whole book.  He also rendered invaluable services and showed absolute personal commitment in the preparation of the index of subject-matter, cases, statutes and the bibliography.  I’m also grateful to Messrs CK Agboh, Joseph Fatomey and Gilbert Deku, all of the Council for Law Reporting, who, in their spare time and at the weekends assisted in proof reading of the galley and page proofs.  I am also grateful to my secretaries at the Ghana School of Law, Miss Evelyn Amoako and Miss Dora Manu who after close of work, stayed on to type parts of the original manuscripts.  I am grateful to my brother Mr Kwame Bimpong-Buta, a retired business executive and accountant, and my three daughters, Miss Rita Bimpong-Buta, BA (Hons) formerly of the Faculty of Social Sciences, UST, Kumasi;  Miss Rosanna Akyere Bimpong-Buta, a student at the Medical School, Korle-Bu;  and Miss Aba Sika Bimpong-Buta, a student at the Holy Child Secondary School, Cape Coast, for their constant encouragement and prayers.  My dear wife, Barbara neé Thomas, deserves special thanks for her encouragement, prayers and moral and financial support which enabled me to spend part of my time reading and studying the literature on the subject at the Institute of Advanced Legal Studies, University of London, during the period October 1988 to December 1991 and also from July to August 1993.  I am also grateful to: my brothers, Dr Med Kwaku Bimpong-Buta, neurology consultant, Bonn, Germany; Professor Kofi B Bota, formerly President of the University of Atlanta, Georgia, USA and Mr Kurankye B Bota, electrical engineer and computer specialist also of Atlanta; and Dr Alfred Akwasi Kwarteng, my lifetime friend and classmate at Adisadel College, Cape Coast, formerly with the Commonwealth Secretariat, London and presently economic consultant, London.  They all gave me some financial assistance which helped me to write part of this book whilst resident in London on study leave.  I shall always be grateful to them.  Finally, I would like to thank the Ghana Copyright Office and the National Folklore Board of Trustees for the kind permission to use the Sankofa design, a national symbol, on the front cover of the book.

I have endeavoured to state the Law as at 7 February 1995.  Despite all the advice, suggestions and assistance given to me as hereby acknowledged, I am alone responsible for the errors, omissions, imperfections and the views expressed in this book.

S Y Bimpong-Buta
7 February 1995