Introduction
The Supreme Court has, in a four to three majority decision
of its review panel, overturned its earlier three to two majority decision of
the ordinary bench in Ex parte Opuni.[1]
In the earlier decision, the Court granted an order of prohibition to restrain
the trial judge in the criminal proceedings pending at the Hi₵ Court
(Honyenuga, JSC sitting as an additional High Court judge) from continuing to
sit and hear the case. The Attorney-General, being dissatisfied with the
decision, applied for a review of the decision and it is that application that
resulted in the four to three majority decision under reference. The decision
of the review panel is most interesting, not least because the minority
decision is more convincing and has more depth and meat but also for the
majority panel’s rather curious exposition of the doctrine of stare decisis.
What is the doctrine of
stare decisis or judicial precedent?
The first elementary principle of stare decisis, also known
as judicial precedent, is that, the law declared by a higher court in a
hierarchy of courts enjoys a higher authority than that declared by a court
lower in the hierarchy. Put in another form, the judgment of a court of appeal
is binding upon all courts from which appeal lies to it, either direct or
through an intermediate appellate court.[2] So, for instance, a judgment of the
Supreme Court of Ghana in either a civil or criminal case is binding on the
Court of Appeal, the High Court, the Circuit Court and the District Court. By the same token, a judgment of the Court of
Appeal in a civil case, which does not conflict with a judgment of the Supreme
Court, is binding on the High Court, the Circuit Court, and the District Court,
and so on. By the principle of judicial precedent, the Supreme Court is not
bound to follow the decisions of any other court.[3]
The origins of the
doctrine of stare decisis
The doctrine of stare decisis or binding precedent is said to
be of comparatively recent growth in England; it cannot be claimed as a
time-honoured institution and there is no historical foundation for the
proposition that this is a cornerstone of the common law structure. Other known
common law countries such as the United States, South Africa, Canada,
Australia, India and Pakistan do not follow any coercive regime of judicial
precedent. The doctrine of stare
decisis, then, has been said to historically have no deep roots in the common
law. Indeed, the rule that English appellate courts are bound by their own
decisions was established not too long ago. The common law, therefore, does not
necessarily subsume a stringent theory of stare decisis.[4]
The rational for stare decisis
There is no universal, uniform rule of stare decisis. As noted earlier, none of the known common law
jurisdictions adhere to the principle that the court of highest resort is bound
by its own previous decisions. And even in England, historically, the rule was
followed only by the Court of Appeal and the House of Lords; the Privy Council
which was the highest appellate court for England as well as most Commonwealth
countries, including Ghana, was not bound to follow its previous decisions.
Certainty in the law is the only real argument advanced in favour of the
doctrine of coercive precedent.[5] Currently, the UK Supreme Court is the
highest appellate court in the United Kingdom. Its decisions bind all inferior
courts but do not bind itself. This is said to give the UK Supreme Court scope
for judicial creativity to tackle manifest inadequacies in the law.[6]
The doctrine of stare
decisis under the 1992 Constitution and the majority decision in Ex parte Opuni
(No. 2)
The Constitution provides that “[t]he Supreme Court may,
while treating its own previous decisions as normally binding, depart from a
previous decision when it appears to it right to do so; and all other courts
shall be bound to follow the decisions of the Supreme Court on questions of
law.”[7] This provision is in line with the general trend in common law
countries where a final appellate court is at liberty to depart from its own
previous decisions if it considers that the decision was given per incuriam or
should, for any other exceptional reason, not be followed. Therefore, a
precedent is normally binding and ought to be followed until it is realized
that the decision was erroneous or that it no longer meets the demands of
society.
Writing on a similar provision in the 1960 Republican
Constitution of Ghana, Bennion noted as follows:
“Article 42 (4) is intended to
provide a suitable combination of certainty and flexibility in the enunciation
and development of legal principles. Once
the Supreme Court, as the highest Court available to Ghanaians, has delivered
itself of a proposition of law relevant to its decision in a particular case,
that proposition is binding without modification in the High Court and the
inferior courts. It is also binding in
principle in the Supreme Court itself, but the use in this connection of the
expression “in principle” is intended to indicate that the Supreme Court may,
in a particular case, depart from its own previous decision if it considers that
the decision was given per incuriam
or should for any other exceptional reason not be followed[8].” (Emphasis
supplied)
Justice Ollenu also had occasion to comment on the same
Article 42 (4) thus: “Our view is that the words ‘in principle’ are intended to
create an elastic rule, to save the Supreme Court in embarrassing situations
and to enable it to re-examine its own previous decision to correct or differ
from it when it finds such decision to be either manifestly wrong, not only
because it was given per incuriam,
but because of inconsistency with some principle of law or custom, and is,
therefore, a decision which for some good reason or the other should not be
followed. In our view, the Article lays
down a flexible rule intended to enable the court to mold and develop the law,
the common law no less than the customary law, to meet the needs of economic
and social changes which are taking place in our new and developing nation,
without the necessity to resort to Parliament each time to rectify an error in
the law brought about by a wrong decision."[9]
It is in the light of the foregoing that the Supreme Court’s
majority decision of the review panel in Ex
parte Opuni (No. 2) (per Dotse, JSC in his concurring opinion) is most
disturbing. In criticizing the majority decision of the ordinary bench in the
case (Ex parte Opuni No. 1)[10],
Dotse, JSC made three profound statements. Firstly, he stated that by Article
129 (3) of the Constitution, Honyenuga, JSC was bound to follow the Supreme
Court’s decision in Ekow Russel v
Republic[11] when he sat and tried the Opuni case at the High Court as an
additional High Court judge. Therefore, “[t]there was no way he could have
departed from it”. Secondly, Dotse, JSC stated that the Justices of the Supreme
Court who gave the majority decision of the ordinary bench under the Court’s
supervisory jurisdiction had to depart from the Supreme Court’s decision in Ekow Russel v Republic in their quest to
arrive at their decision. This, His Lordship lamented, was not well founded and
it was “quite an enormous task indeed”. Thirdly, Dotse, JSC opined that to
ensure that the constitutional provisions that guarantee the doctrine of stare decisis is not abused, the Supreme
Court had to “restore the dignity and respectability that this common law
doctrine has afforded the legal and judicial system”.
Now, an analyses of these three statements will expose the
flaws inherent in Dotse, JSC’s concurring opinion.
A.
Must a High Court follow a decision of a higher court at all costs under
the doctrine of stare decisis?
From the dictum of His Lordship, he answers the above
question in the affirmative. And he goes further to support the assertion by quoting
Article 129 (3), with emphasis on the words “and all other courts shall be
bound to follow the decisions of the Supreme Court on questions of law” for
good measure. But is this an inflexible rule such that Honyenuga, JSC sitting
as an additional High Court judge was bound to follow the Supreme Court’s
decision in Ekow Russel v Republic
even if he deemed the decision to be wrong? Respectfully, I do not think so.
Implicit in Dotse, JSC’s dictum is the suggestion that, Honyenuga, JSC probably
found Ekow Russel v Republic to have
been wrongly decided but he felt constrained to depart from it because of the
fetters placed on him by Article 129 (3). It is submitted that such a
constricting and slavish adoration of precedent could not have been the
intendment of the Constitution. Admittedly, judicial precedent creates
certainty in the law. But that fact alone cannot bind lower courts to suffer
atrocious decisions and those given per
incuriam by higher courts.
A veritable example of a case in which a lower court refused
to follow the decision of a higher court is Amponsah
v Appiagyei & Others; Amoah v Anthony & Others; Boakye & Another v
Effah & Another; Boateng & Others v Boahen & Another (Consolidated).[12]
In that case, Amuah-Sekyi, J. (as he then was) sitting at the High Court,
Kumasi, refused to follow the Court of Appeal’s decision in Bonsu v State Insurance Corporation.[13]
His Lordship reasoned that, the decision in the Bonsu case was in conflict with authoritative pronouncements of
courts of co-ordinate jurisdiction and was also at variance with statutory law.
He delivered himself as follows: “The principle of judicial precedent requires
that a lower court takes due notice of, and apply decisions of a higher court
which are binding on it. This, however, does not mean that such decisions ought
to be slavishly followed even when they are demonstrably wrong. I think I shall
take my cue from Taylor J. (as he then was) who, in Nkrumah v Manu [1971] 1 G.L.R 176, refused to follow the decision
of the Court of Appeal in Attiase v
Abobbtey, 21 July 1969, unreported; digested in (1969) C.C. 149 on the
ground that it ran counter to statutory provisions. Although in Sogbaka v Tamakloe [1973] 1 G.L.R 25,
Francois J. (as he then was) disagreed with him and said that as a binding
decision of a higher court it ought to have been followed, in Kyei v Donkor [1974] 1 G.L.R. 366, the
Court of Appeal, after examining the relevant statute came to the conclusion
that the decision of Taylor J. In Nkrumah
v Manu (supra) was right, and declined to follow their own decision in Attiase v Abobbtey (supra).” (Emphasis
supplied)
As has been demonstrated in the preceding paragraphs,
Honyenuga, JSC, the additional High Court judge, was not bound to follow a
Supreme Court decision that was wrong, given per incuriam, was contrary to statute and so forth. So, when he decided
to follow Ekow Russel v Republic
slavishly (in the words of Amuah-Sekyi, J. (as he then was)), he was the one
who should have attracted Dotse, JSC’s rebuke. In the circumstances, Dotse,
JSC’s dictum that Honyenuga, JSC (sitting as an additional High Court judge)
was bound to follow the Supreme Court’s decision in Ekow Russel v Republic, in
the Opuni case even when the said
decision was wrong, rings hollow at best. This view runs contrary to all
notions of justice. It portends an invidious fetter on the growth and
development that our ‘legal and judicial system’ need to survive in this
fast-advancing and technology-driven 21st Century.
At any rate, the majority decision of the review panel
re-echoes the dilemma of the Court of Appeal or Supreme Court judge who is
appointed to sit as an additional High Court judge.[14] As Dotse, JSC candidly
pointed out, Honyenuga, JSC felt himself disabled from departing from Ekow Russel v Republic when he sat as a
High Court judge. He, most likely, did not want to incur the wrath of his
brethren upstairs. Will a substantive High Court judge in Honyenuga, JSC’s
situation feel such trepidation? I doubt so. When the Justice Taylors and
Amuah-Sekyis declined to follow wrong decisions of higher courts when they were
substantive High Court judges, they did so without fear. They had no brothers
and sisters in higher courts whose possible proses of opprobrium could stifle
them into inaction.
B.
Was it right for the majority panel of the ordinary bench not to follow
the Supreme Court’s decision in Ekow
Russel v Republic while exercising supervisory jurisdiction?
It is quite surprising that although Dotse, JSC was
comfortable with the additional High Court judge’s decision to follow Ekow Russel v Republic, a wrong decision
of the Supreme Court, in obsequious regard for the doctrine of judicial
precedent, His Lordship was beside himself with angst when the majority panel
of the ordinary bench refused to follow that decision by exercising their right
under Article 129 (3) of the Constitution.
His Lordship even went on to add that the path on which the
majority panel of the ordinary bench chose to tread presented “quite an
enormous task indeed”. It is difficult to see what underscored His Lordship’s
difficulty with the majority panel’s decision to depart from the Supreme
Court’s decision in Ekow Russel v
Republic. He could not fault their decision as baseless since Article 129
(3) expressly gives the Supreme Court the power to depart from its own
decisions when deemed necessary. He could also not impeach their decision for
reason that the decision in Ekow Russel v Republic was good; he appears to
agree that, that decision was bad just that the additional High Court judge,
sitting qua High Court judge, in his opinion, could not depart from it.
Dotse, JSC’s words seem to suggest that he was unhappy with
the majority panel of the ordinary bench because they chose to depart from Ekow Russel v Republic at a time they
were exercising ‘supervisory jurisdiction’. This is what His Lordship said in
the course of delivering his concurring majority opinion on the review panel:
“For a majority panel to just write off an established principle of law as
contained in the Ekow Russel decision and depart from it under the exercise of
the supervisory jurisdiction of the Court is, in my opinion, not well founded”.
Unfortunately, after making such a profound statement, His Lordship failed to
expatiate on this novel restatement of the law on judicial precedent. It bears
stating that Article 129 (3) does not set forth any special jurisdiction the
Supreme Court must be exercising before it could depart from its previous
decision. Once the article is silent on the type of jurisdiction that can cloth
the Supreme Court with jurisdiction to depart from its previous decision, it is
submitted that the Supreme Court, whenever it finds it necessary to do so,
could depart from its prior decision and the nature of the jurisdiction it may
be exercising – be it original, appellate or supervisory – will be wholly
immaterial.
C. Does
the doctrine of stare decisis as stipulated under the Constitution enjoy a
strict application regime?
From the discussions thus far, it is clear that the doctrine
of stare decisis as known under the common law and Article 129 (3) of the
Constitution is not a strict and unbending rule. It is with this background in
mind that Dotse, JSC’s dictum seeking to smear a most sacrosanct unction of
strict application on the doctrine of judicial precedent appears problematic.
The Supreme Court of Ghana, just like those of other Commonwealth countries who
follow the common law tradition, are not bound to always follow their own
decisions. Lower courts are also to follow the decisions of higher courts, but
not slavishly.
[1] Republic v High Court (Criminal Division 1); Ex parte Stephen
Kwabena Opuni (Attorney-General Interested Party), Civil Motion No.
J7/20/2021, unreported decision of the Supreme Court dated 26th October,
2021.
[2] Ollenu, N.A “Judicial Precedent in Ghana” [1966] Vol. III No. 2
UGLJ 139—164.
[3] Article 129 (2) of the Constitution and Section 2 (2) of the Courts
Act, 1993, (Act 459).
[4] Asante, S.K.B “Stare decisis in the Supreme Court of Ghana” [1964]
Vol. 1 No. 1 UGLJ 52—67.
[5] See: Asante, S.K.B (supra)
[6] See: “Sources of English Law”
[7] Article 129 (3) of the 1992 Constitution.
[8] Bennion, CONSTITUTIONAL LAW OF GHANA.
[9] See note 2 supra.
[10] Republic v High Court (Criminal Division 1); Ex parte Stephen
Kwabena Opuni (Attorney-General Interested Party), Civil Motion No.
J5/58/2021, unreported decision of the Supreme Court dated 28th July,
2021.
[11] [2017-2020] SCGLR 469
[12] [1982-83] GLR 96
[13] [1977] 1 G.L.R. 303, C.A.
[14] For my earlier blog article on the additional judge concept,
see: https://fsboateng.com/2021/08/13/the-additional-judge-concept-revisited/
