BUSINESS LAWMAS 353 BY JUSTICE FRANCIS OBIRI WHAT

BUSINESS LAW(MAS 353) BY JUSTICE FRANCIS OBIRI

WHAT IS LAW? • It is considered to be the aggregate of legislation, judicial precedents and accepted legal principles. It is also seen as the body of authoritative grounds of judicial and administrative action especially, the body of rules, standards, and principles that the courts of a particular country apply in deciding controversies brought before them. OR The set of rules or principles dealing with a specific area of a legal system e. g. copyright, contract, criminal etc. • Business law therefore can be said to be the body of rules or principles which governs business and commerce or trade. The rules also regulates contracts , sales of goods etc.

• What is Legal System? : • Legal systems refer to processes and the procedure of interpreting and enforcing laws in a country. It also defines the rights and responsibilities of citizens in a country in different ways.

Major legal systems in the world : • The common law legal system • Socialist legal system • Civil law legal system • Religious legal system

• African Law system • Mixed legal systems

Common law legal system a) It originated in England spread to other countries the British colonized. b) It was originated mostly through pronouncements by judges. c) The defects in the common law led to the development of equity. d) Common law legal system relies mostly on previous made decisions. This is called judicial precedents. e) Decisions of a higher court binds a lower court. This is called Stare decisis.

Civil Law a) It is used in countries like Spain, Italy, France, Germany Belgium etc. b) It was influenced by Roman law c) It is mostly based on laws which have been codified in legal codes eg. Civil procedure. d) Higher Courts decision have no binding effect on lower courts.

SOCIALIST LEGAL SYSTEM: a) It was practiced in former Soviet Union. b) The state and the law was considered as one. c) It aims at curbing a class society so that, each person’s needs can be supported by the state. d) It is now practiced by Cuba and Albania.

RELIGIOUS LEGAL SYSTEM: a) b) c) d) e) It is used in most Islamic states including Tunisia, Iran etc. In these countries, they used mainly Islamic laws. It appears to be immutable since it contemplates that, the laws were given by Allah to man once and for all. It is therefore for the society to adapt itself to the law rather than changing the laws to suit the circumstances. The law or shar (Shari’a)which is often used literally means ‘’the way to follow”

AFRICAN LAW: a) Generally unwritten based mainly on customary practices and usages. b) It may vary from one tribe to another. c) Its adjudication process mostly aims at reconciliation and mediation.

MIXED SYSTEM • Ghana appears to have mixed system legal but most of our laws were derived from our colonial masters Britain. However, the 1992 Constitution recognizes custom as part of our laws.

CATEGORIES OF LAW An act may be wrong, immoral or unconscionable but may not constitute a crime. Therefore, for an act to constitute a crime, it must have been criminalised by a statute or the constitution of a country. An act may be a criminal offence in one country but may not necessarily be a criminal offence in another country. It is only an act which is criminalised by a country that will constitute a criminal offence in that country.

What constitutes a crime in Ghana is provided for in article 19, clause 11 of the Constitution of Ghana, 1992 which states that, “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”. This means that in Ghana, an act will constitute a criminal offence where it is in writing, defined and the sentence that could be imposed upon conviction is prescribed. The exception to Article 19 Clause 11 is where one has been cited for contempt. This is supported by Article 19 (12) which provides

Article 19 (12) Clause 11 of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that an act or omission constituting the contempt is not define in a written law and the penalty is not so prescribed.

Every criminal offence shall be defined to disclose the ingredients of the offence and the penalty for it prescribed in a written form. Any law which criminalises an act shall define the offence to disclose its ingredients in order to inform prosecutors of what they are to prove and at the same time inform an accused person of the conduct which would constitute a criminal offence. It is a basic principle of law that, the prosecution must prove all the ingredients of an offence before an accused person shall be called upon to open his defence.

Every offence shall also have the penalty that could be imposed for that offence prescribed in a written form to properly inform the courts about the sentence they can impose. The prosecution and the accused persons must also know the sentence that could be imposed for every offence so that where a court acts in excess of its powers or lacks jurisdiction in respect of a sentence, the aggrieved party can challenge it in an appropriate forum.

• A person cannot be arraigned before a court for flouting a custom or taboo because they are not criminal offences except, where the custom or taboo has been criminalized by a statute. • A person cannot be charged or be convicted for an offence when the act or the omission for which he has been charged was not a criminal offence at the time it was committed. • Article 19, clause 5 of the 1992 Constitution provides, “A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence”.

• Criminal offences have prospective effect from the day that they come into force. A criminal offence does not operate retrospectively to affect acts and omissions that were committed when the act criminalizing the offence had not come into force.

DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW Criminal law deals with an act which has been criminalised by law and its infraction is against the state. It is therefore prosecuted by the state against an accused person. It is either the “State” or the “Republic” or in a monarchical state by the “king” or “Queen” against the accused person. An appointed prosecutor prosecutes the accused on behalf of the state. The court’s jurisdiction is invoked by a charge sheet in respect of a summary trial and a bill of indictment in indictable offences.

At common law, an accused person is presumed to be innocent unless the accused person pleads guilty or is convicted after trial. A person who is suspected to have committed a criminal offence is described as a suspect. A suspect becomes an accused person when the person is charged to stand trial before a court. An accused person who is convicted of an offence becomes a convict.

• The sentences imposed in criminal cases include fines, imprisonment, death sentence, caution and discharge, compensation, detention (correctional centres for juvenile and young offenders) and police supervision.

• Civil law on the other land is litigation between two parties. The action may be commenced by a writ or petition or an application depending on the law or the procedure governing the dispute in issue. It covers areas such as land, human rights, labour and employment, commercial, divorce and matrimonial, probate and administration, causes and matters affecting chieftaincy, maritime, contempt, judicial review cases etc. All quasi criminal offences fall within the realm of civil law even though the burden of proof is the same as in criminal offences.

• Civil action commenced by a writ is initiated by a plaintiff against a defendant. Where it is initiated by a petition, it is the petitioner who initiates the suit against the respondent. Where the action is initiated by an application, it is an applicant who brings the application against a respondent. • The reliefs granted in civil cases includes declarations, equitable reliefs such as specific performance and injunctions, compensation, damages and orders obtainable in judicial review such as certiorari, prohibition, quo warranto, mandamus and habeas corpus.

• Criminal offences are territorial and acts and omissions criminalised under the laws of Ghana are the only offences under which a person may be tried and punished. • Criminal offences have been categorised according to their nature and punishment. The categories are capital offence, first degree felony, second degree felony and misdemeanour. There are other offences which have not been designated in accordance with the above categorisation

ADMINISTRATION OF JUSTICE UNDER THE 1992 CONSTITUTION Under the 1992 Constitution it is provided under Article 125 (1) , (2) (3), (4) and (5) as follows: 125 (1) Justice emanates from the people and shall be administered in the name of the Republic by the judiciary which shall be independent and subject only to the Constitution. 125 (2) also provides

• “Citizens may exercise popular participation in the administration of justice through the institutions of public and customary tribunals and the jury and the assessor systems”.

• 125(3) “The judicial power of Ghana shall be vested in the judiciary, accordingly, neither the president nor parliament nor any organ or agency of the president or parliament shall have or be given final judicial power” • 125 (4) “The Chief Justice shall subject to this Constitution be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary”. • 125 (5) The Judiciary shall have jurisdiction in all matters civil and criminal including matters relating to this Constitution, and such other jurisdictions as parliament may, law confer on it.

The 1992 Constitution has established the superior courts of Judicature comprising (i)The Supreme Court (ii)The Court of Appeal (iii)The High Court and

(b) Such lower court or tribunal as Parliament may by law establish • Parliament has established the lower courts under the Courts Act 1993(Act 459) as amended by the Courts (Amendment) Act 2002 (Act 620) to include the following (a)Circuit Courts (b)District Courts (c)Juvenile Courts

(d)The National House of Chiefs, Regional house of chiefs, and every Traditional Council, in respect of the Jurisdiction of any such House or Council to adjudicate over any cause or matter affecting Chieftaincy and (e) Such lower courts as Parliament may be law establish.

Sources of Law in Ghana • The primary sources of law in Ghana are the Constitution, legislation, and the common law which has been defined by article 11 of the 1992 Constitution as including rules of customary law.

• The secondary sources are writings about law in books, especially scholarly works, legal periodicals, government publications, law reform documents, parliamentary debates, newspapers containing edited law reports such as The Times, The Guardian, The Independent and Financial Times in England, and general publication.

• It is in this context that article 11 (1) of the Fourth Republican Constitution, 1992 like its predecessors, the Constitutions of 1960, 1969 and 1979, defines the Laws of Ghana (the primary sources) as comprising: (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.

Meaning of ‘the Common Law’ • The common law of Ghana has been defined in article 11 (2) as comprising: • The rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature. ’ • What is meant by customary law included in the above definition of the common law of Ghana has been defined by article 11 (3) of the Constitution as ‘the rules of law which by custom are applicable to particular communities in Ghana.

Meaning of ‘existing Law’ As to what is meant by the term ‘existing law’, Article 11 (4) gives a fuller definition, namely: ‘the written and unwritten laws of Ghana as they existed immediately before the coming into force of (the) 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’.

Independence of the judiciary • It should be emphasized that the judiciary as composed at present, in terms of article 125(1) of the 1992 Constitution, shall ‘‘be independent and subject only to [the] Constitution’’ and is solely vested with judicial power, which is to be exercised by it to the exclusion of all other persons or institutions. • To that end, the Constitution, 1992 in article 125(3) provides that: ‘‘neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given judicial power.

In exercising the final judicial power of the State, the judiciary shall, under article 127 (1), be subject only to the Constitution and not to the control or direction of any person or authority. More specifically, under article 127(2), both the executive and the legislature are obliged not to interfere with the judiciary in the exercise of the judicial power of the State; and all organs and agencies of the State are obliged to accord to the courts all assistance reasonably required

‘‘to protect the independence, dignity and effectiveness of the courts. ’’ And under article 127(3): ‘‘A Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power. ’’ Judicial independence is further ensured by the provision in article 127(5) to the effect that:

• The salary, allowances, privileges and the rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of the Superior Court or any judicial officer or other person exercising judicial power, shall be varied to his disadvantage. ’’ • Security of tenure of judges of the Superior Courts and their removal from the Bench should only be in accordance with the procedure or removal as laid down in article 146 of the Constitution.

• Judicial independence means the provision of an efficient and effective legal service for the populace. But we cannot begin to lay any claim to that independence when the judiciary is unable to buy modern management concepts and technology to improve upon the justice delivery systems.

PREROGATIVE WRITS/JUDICIAL REVIEW (A) CERTIORARI • It is granted to quash a decision of a court or a body that has taken a decision on the following grounds 1. That the decision was made without jurisdiction or 2. That the decision was made in excess of jurisdiction or 3. That the decision was made in breach of Natural Justice or 4. There is an apparent error on the face of the record 5. That the judgment is illegal or unreasonable or the proceedings were improper

B) PROHIBITION The purpose and scope of writ of prohibition are as follows: 1. It is not meant to prevent a person or a court from exercising general judicial functions

(2) It is to challenge an attempted exercise of a judicial function in a specific jurisdictional case. That is for excess or absence of jurisdiction or departure from the rules of natural justice, such as the existence of actual bias or strong likelihood of bias or interest; An applicant for prohibition is not restricted by locus standi. (3) It is to stop or challenge proceedings which is illegal or unreasonable or improper

( C) MANDAMUS Mandamus will be granted on the following grounds 1. The party against whom the order is to be made must know what he is required to do. 2. There must be a demand for the act to be done or performed 3. That the demand was refused • However, mandamus will not lie to compel a body to perform moral duty or to compel a judicial body or person to perform a duty in a particular way.

( D) HABEAS CORPUS It is filed to compel a public officer to produce the body of a person who has been kept unlawfully. A person imprisoned pursuant to a valid conviction cannot be released on a writ of Habeas Corpus. The application is made ex-parte supported by an affidavit. (E ) QUO WARRANTO It is filed against a person holding public office to produce the warrant appointing that person to that office

QUASI- CRIMINAL OFFENCE CONTEMPT • It is any conduct that tends to bring the authority and administration of the law into disrespect or disrepute or disregard; or to interfere with or prejudice parties; litigants or their witnesses during litigation. Contempt can be civil or criminal. Criminal Contempt can be said to be any act of a person in respect of a pending proceedings which will undermine the administration of justice or scandalise the court or bring the court into disrepute • The disobedience must be willful in cases of contempt.

• Conditions that must exist for contempt to be established. (a)There must be a judgment or order requiring the contemnor to do or abstain from doing something. (b)It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing.

(c) It must be shown that he failed to comply with the terms of the judgment or the order and the disobedience was willful. • Since contempt is quasi-criminal for which conviction may include fine, or imprisonment the standard of proof must be beyond reasonable doubt.