Political and Legal Struggles in Ghana

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Parent Category: Justice & Security

Created on Monday, 21 January 2013 00:00

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The Political and Legal Struggles in Ghana

.... Understanding Material Facts of a Litigation, Judicial Deliberations, Interpretations and the Ratio Decidendi of a Court Ruling

On Wednesday, 16 January 2013, I was at the Supreme Court of Ghana, where the preliminary hearing of the ruling National Democratic Congress’ joinder petition in relation to the petition challenging the declaration of John Dramani Mahama, as President; by the leading members of the main opposition New Patriotic Party (NPP)- Nana Addo Dankwa Akufo-Addo (etal), is being moved. Notwithstanding the obvious and indeed historic security presence in and around the highest court of the land, were mounted opposing political forces- skilfully camouflaged in colour-combinations: jewelleries, costumes and black-and-white Statutes of the republic- as political party colours, are indeed forbidden at the court premises?

Whereas there were visible number of Ghanaians who sang “Edey Be K3k3” at the forecourt of the Supreme Court which the police, had it depression to manage, was an uncompromising middle-age woman, who wore red mourning-cloth (koben) and black headgear and her small group of face-saving sympathizers, whom I am told had travelled from Oseikrom to register their support for the ongoing petition which seeks to unseat John Dramani Mahama, as president- an aspiration which as it appears, is being robustly frowned and dismissed by the NDC faithful who hailed the National Chairman- Dr Kwaben Adjei and lead counsel- Tsatsu Tsikata- with “No Challenger, No Size”, while making their way out of court into their cars.

The NPP petitioners- Nana Akufo-Addo, Dr Bawumia and Jake Obetsebi-Lamptey, not forgetting their legal team and Nana Yaw Osafo Marfo, whom this reporter spotted at the entrance to the Supreme Court building, made barely no comment to the media while on their way out of the court. Interestingly, Nana Addo & Co., were also greeted with: “John Mahama Dey Be... No Challenger.” This was met with an Akan saying: “Nie3 Adie3 wonno enna odie” [which roughly means-, who the crown fits, let him/her wear it!] Across the High Street and indeed at the flanks of it and opposite the main entrance to the Supreme Court; where it is written: “Justice is not for Sale”, were NDC supporters who drummed, trumpeted, sang and danced to amuse pensioned onlookers and combat-ready police officers who wielded light weapons, including assault rifles and batons. Others sat calmly on the torrent of their armoured personnel carriers (APCs).

For the main opposing political forces in the country, the feared expectation is that the greatest of celebrations in Ghana is yet to come- when the Supreme Court of Ghana, whose membership, according to Nana Ato Dadzie, are unfortunately, one way or another, is being tagged with political bias or comments that undermine their judicial credibility, will finally rule on who actually won the presidential election of 7th and 8th day of December 2012. Commenting on the NPP’s earlier objection against one of the judges on the panel currently considering the NDC’s rejoin petition heard on 16 January 2013 and to be decided on Tuesday, 22 January 2013, Nana Ato Dadzie- the spokesman of the NDC legal team said this:

“Our opponent’s objection to a particular judge on the panel is rather unfortunate... There are much information circulating around other judges. The objection and the delay is not our making.... So far, we are satisfied with the panel. We believe and have faith in our judiciary. Our society and our laws are matured enough to take care of the matter here. Our democracy is maturing and I think that our judges will be strong enough to dispense justice....” It is said that if a lawyer or say, a judge is building an argument on the basis of a particular case, it is often dangerous to look at the case in isolation. How then, could we establish whether a case is justly decided especially, where domestically, there had been no case law?

When judges sit to deliberate on a case, they look first and foremost, at the material facts in the dispute and thereafter, apply the relevant area of law on them. The law is usually found in the primary sources- the domestic Statute or legislations and the case law that has been developed under it. The judges could also look elsewhere, where judicially, there are jurisdictional or legal semblance and the case before the court and the applicable rule of law are lacking and the facts in that jurisdiction sit well with the present facts before the court. Justice requires that the judge’s statement of law; must relate to the material facts of the case.

We cannot talk of justice and fairness without reference to binding precedents. As Justice Oliver Wendell Holmes points out, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition, the Year Books, and perhaps beyond them to the customs, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. In deciding on the facts and the precedent, we must not be misled in believing that every person with the name Rose or Marian is a woman or a girl. In other cultures, those names could equally be men or boys. If a judge an indeed a petitioner or respondent, proceed on the premise that from the earth to the moon is 28,000 million kilometres instead of 28,000 million miles, then the logic behind his/her deductions and conclusions could be defective.

The other limb is that the fact that you were the first to run to the police station or to have sought refuge at the courtroom could not mean that you are innocent or have a compelling case. A material fact is a fact that is "relevant" to the case at hand. They are the facts that have a direct effect on the decision or that refer to the legal relationships between the parties.

It is suggested that it is by his/her choice of the material facts that the judge creates law. But how many times haven’t we complained about unfairness/ injustices after a case had been determined? We read volumes of commentaries on what the judge(s) ought to have done or should not have said. Even during the hearing, the judges themselves- human as they are, more often than not, disagree on their judgements- particularly on the law. Notwithstanding these potential differences in assessing judicial reasoning of a case, A.L. Goodhart (124 The Modern Law Review, Volume 22 (March 1955)), writes that “the reasons given by the judge in his/her opinion, or his statement of the rule of law which s/he is following, are of peculiar importance, for they may furnish us with a guide for determining which facts s/he considered material and which immaterial.” How, then, is it measured? I now consider the ratio of a case.

Finding the Ratio of a Case

Judicially, we are told that judges are taught to be robust, impartial and independent-minded in the dispensation of justice- without fear or favour. A ratio of case is the heart-beat of future legal deliberations as it sets out the premise of that area of law. In finding the ratio, it is often useful to consider the way in which judgements are written. Although there is no standard model, it is said that they often follow a broad pattern and in most cases, the judgement is divided into three sections. We can use to these rules to establish the ratio decidendi.

These include: distinguishing the facts that the court regarded as material from those which appeared unimportant; and discover the precedents applied. These will provide us with an indication of the court's approach in deciding the ratio; restrict our analysis to the opinions of the majority judges. We must read subsequent decisions to find out how the decision has been interpreted.

The ratio that becomes recognised as a rule of law may not be the ratio that apparent in the original judgement. In many instances, the ratio in an individual judgement is less important than the legal principle for which a line of cases can be cited as authority.

We are advised that when reading a judgement, we must consider it at several levels. Thus apart from reading the decision for what it actually says, we might consider reading it also in terms of its subsequent reception. We must take the pain in assessing the arguments of the judges and the advocates in the context of both of the case and the future development of the law.

It is said that if we are building an argument on the basis of a particular case, it is often dangerous to look at the case in isolation.

There are a number of formal tests that have been devised to assist in discovering the ratio. The two of the best known were developed by United States jurists: these are Goodhart's Test and Wambaugh's Test.

1. The Goodhart's Test

The Goodhart proposed the following rules for finding the ratio decidendi:

• The principle of a case is not found in the reasons given in the opinion.

• The principle is not found in the rule of law set forth in the opinion.

• The principle is not necessarily found by a consideration of all the ascertainable facts of the case, and the judge's decision.

• The principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them.

In finding the principle it is also necessary to establish what facts were held to be immaterial by the judge, for the principle may depend as much on exclusion as it does on inclusion.

The Goodhart's Test is said to have gained considerable popularity but not without its critics.

2. The Wambough's Test

The Warmbough's Test first appeared in a book published in the United Sates in 1894. Like Goodhart's Test, Eugene Wambaugh (1856–1940), set out rules that focus on the question of what facts are material and which are not. Wambaugh begins with the observations that:

• no matter how accurate a legal proposition may be it does not necessarily form part of the ratio decidendi.

• the proposition is not governed by all the facts, but by the material facts.

What is material- is relevant in the dispute. Wambaugh recommends that we take the following steps if we think that we have identified a potential ratio in a judgement:

• we frame the legal principle that we have identified from a judgement.

• invert a word or phrase which reverses the meaning of the principle.

• ask ourselves, if the court had the inverse principle in mind when reaching its decision, would it have reached the same conclusion?

• if the answer to this question is yes, then our original proposition cannot be the ratio. We are advised to note that Wambaugh's Test works only with cases with a single ratio.

The Final Word

At the courtroom, we must think of the material facts as facts as seen by the judge, and not on the material facts as seen by anyone else. When reading a case, the material facts must go to the heart of what caused or impacted the outcome over which the petitioner sought a redress. That if in an appellate case there are several opinions which agree as to the result but differ as to the material facts, then the principle of the case is limited so as to fit the sum of the facts held material by the various judges, or by the majority of them. Goodhart states we can ignore the vocal [flattery] behaviour of the judge, which sometimes fills many pages, and concentrate upon his/her non-vocal behaviour, which occupies but a few lines. Good Luck!

..............

Researched and Compiled By Asante Fordjour for The OmanbaPa Research Group

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