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[Essays in Ghanaian Law 1876 - 1976 Supreme Court Centenary [Essays in Ghanaian Law A /aFaculty of Law publication a University of Ghana. Leeon ESSAYS IN GHANAIAN LAW 1876-1976 Copyright (t) Faculty oj Law University o f Ghana Legon 1976 sssee E ditors W. C. Ekow baniek and G. R. Woodman F o r e w o r d B y HIS LORDSHIP S. AZU CRABBE Chief Justice of Ghana. Essays in Ghanaian Law Supreme Court Centenary Publication 1876- 1976 \ \ v CAPE COAST CASTLE circa 1700 1/ THE FACULTY OF LAW aUJilVERSITY OF GHANA LEGON 1976 First printed 1976 by the Ghana Publishing Corporation (Printing Division), Accra-Tema V Contents PAGE FOREWORD by His Lordship S. Azu Crabbe, Chief Justice of Ghana ix PREFACE .......................................................................................... xi 1. THE SUPREME COURT ONE HUNDRED YEARS AGO l A. N. E. Amissah, M .A., Justice o f Appeal ■..A j 2. A NOTE ON THE SUPREME COURT ORDINANCE, 1876 T. O. Elias, Q.C., B.A., LL.M., Ph.D., LL.D., Hon. D. Litt., formerly Chief Justice o f Nigeria 32 3. CHIEFTAINCY UNDER THE LAW N. A. Ollennu, retired Justice of Appeal 38 4. LIBERTY AND THE COURTS: A SURVEY OF THE JUDICIAL PROTECTION OF THE LIBERTY OF THE INDIVIDUAL IN GHANA DURING THE LAST HUNDRED YEARS S. O. Gyandoh, Jr., B.A., LL.M. 57 5. MARITAL FAMILY LAW AND SOCIAL POLICY Professor W. C. Ekow Daniels, LL.M., Ph.D. 92 6. LEGISLATIVE CONTROL OF FREEDOM OF CON­ TRACT S. K. Date-Bah, LL.M., Ph.D................................................. 118 7. THE HISTORY OF PUBLIC CORPORATIONS R. B. Turkson, LL.B., M .S., Ph.D. 137 8. LAND LAW AND THE DISTRIBUTION OF WEALTH Professor G. R. Woodman, B.A., LL.B., Ph.D. 158 9. THE ECONOMIC BASE OF PRIVATE LAW PRAC­ TICE R. Luckham, M.A. (Oxon), M.A., Ph.D. (Chicago) 177 ,;Vii Contents PAGE 10. A CENTURY OF COMPANY LAW— AN OVERVIEW A. K. Fiadjoe, LL.M., Ph.D. 221 11. A CENTURY OF CHANGES IN THE LAW OF SUCCESSION A. K. P. Kludze, B.A., LL.B., Ph.D. ........................... 233 Table o f cases 267 Table o f statutes substantially discussed 269 Index .. .. .. ..................................................... 271 viii Foreword A C e n t e n a r y is always a good opportunity for a survey in retrospect, but when such a survey is made by the celebrants themselves, they run a risk of appearing to be patting themselves on the back. There is no doubt that, initially at least, this collection of essays—in every sense of the word, a festschrift—will be scrutinized by the reader with this reservation at the back of his mind. It is good to be able to say that by a happy consensus of approach, the contributors to this collection have succeeded in informing and commenting without falling into the trap of saying of themselves and of their profession: “ What a marvellous job we have done.” And yet the profession—and the law (all of it received as well as locally-developed)—have done, in this past century, a marvellous job of work, and, looking back upon it all, the one thing that can be said with conviction is that the main problem of reception of the common law into this society, has been fully solved. And how it has been solved is the story these essays have to tell. It is, for us in Ghana, a story that makes us proud, and for that reason alone, it would have been worth telling. But I believe it is also of some historical significance in the general scheme of world legal history. For what we are celebrating here happens but rarely, and may be truly said to have its counterparts in such landmarks in world history as the reception of Roman law in continental Europe, in the much more diffuse impact of the same system of law on English law in its formative years, and, more recently, in the encounter of the common law with the great and ancient legal traditions of the orient. The facts of these past great encounters have always fascinated legal science in its search for the roots of present doctrine. But they are ancient facts, hard to identify and difficult, when identified, to evaluate and analyse. The importance of the Ghanaian experience to legal history lies in che fact that here the facts are fully documented and fully fresh; and, even more important, have been consciously acknowledged in the welding of the various systems of law,—the African law, the common law and Tslamic law—that make up our system today. And it is such facts that are the subject of rich and extensive comment in this festal symposium. The story is by no means ended, and therefore what is observed, recorded, and commented upon here need not necessarily have any final conclusions. But the physicists of this century tell us that even the ix Foreword act of observation can alter the nature of the thing observed, and that thought prompts the hope that the future may be beneficially condi­ tioned by our observations at this punctuation point in our legal history. If so, these essays should be more than just a festschrift, and their value and significance that much more enhanced. On behalf of the Judicial Service, 1 congratulate the editors and contributors on their co-operative effort to provide a lasting monument to the celebration of one hundred years' achievement by the Supreme Court. S. Azu CRABBE X Preface T h e decision by the Faculty of Law of the University of Ghana to publish these essays was in response to the announcement by the Judicial Service to commemorate the Centenary of the creation of the Supreme Court of Judicature in a befitting manner It was. however, not the only reason for producing this book. The occasion also marks just over a century of the reception of English law into this country. For the Courts Ordinance of 1876 which established the Supreme Court also prescribed the law to be administered within its jurisdiction. In sum, it was to apply the English common law, the doctrines of equity and the statutes of general application in force in England on the 24th day of July 1874. The court was also enjoined to observe and enforce the observance of customary law under certain defined circumstances. The task of deciding the extent to which English law or customary law should govern a particular cause o r matter was left to the judges. For over half a century the court was dominated by expatriate judges. Most of them were reasonable in their interpretation of the law, but some of them were unmindful of the cardinal principle re-echoed by Lord Denning, Master of the Rolls of the English Court of Appeal, that the English “ common law cannot be applied in a foreign land without considerable qualification.” The attainment of independence in 1957 marked the beginning of a new approach to the application of the received law as well as the indigenous. Since the First Republic in I960 the judiciary has been manned wholly by Ghanaian judges. The celebration of the Centenary of the Supreme Court therefore furnishes a propitious occasion to undertake a review of the laws which have been applied by our courts to do just ice between the state and the individual and between man and his neighbour. The essays are varied in content and style. All the authors have been associated one time or another with the Faculty of Law in its teaching, research and examination programmes. We hope that through the pages of this book we have made some contribution to the develop* ment of jurisprudence in this country. We pay a special tribute to his Lordship justice Samuel Azu Crabbe. Chief Justice of Ghana, who kindly agreed to write the Foreword and also to arrange the requisite financial assistance. It will be an impossible task to mention all the persons who in their various capacities have helped with the publication. However it is Prefaa right and proper that we should record our inestimable appreciation to the Printing Division of the Ghana Publishing Corporation of Accra and Tema for their excellent services. A somewhat messy manuscript was submitted in March this year. Six months later the book was ready for binding. Few printers can match this record without running the risk of a few printing mistakes. Finally we owe a special debt of grati­ tude to Mrs. Janet Daniels, Editor, Review o f Ghana Law, who inter alia supervised the work at every stage of printing and publication. The defects that remain are responsibility of the editors and contributor1. W. C. E. D. G. R. W. Legoti, September 1976 xii THE SUPREME COURT, A HUNDRED YEARS AGO A . N. E. A m issah* On 31 March 1876, the Supreme Court Ordinance1 was enacted by the Governor of the Gold Coast Colony, by and with the advice and consent of the Legislative Council thereof.2 It was entitled “An Ordinance for the Constitution of a Supreme Court, and for other purposes relating to the Administration of Justice.” The preamble to the Ordinance explained that, “Whereas by Letters Patent under the Great Seal of the United Kingdom of Great Britain and Ireland, bearing date the 24th day of July, 1874, Her Majesty’s Settlements on the Gold Coast and of Lagos were constituted and erected into one Colony, under the title of the Gold Coast Colony; And whereas it is expedient to make provision for the administration of justice in the said Colony,” so the Ordinance was enacted.
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