Other Sources of Ghanaian Law:
Common Law as a Source of Law:
In article 11(1)(e), the common law is recognised as a source of law in Ghana. In article 11(2), the common law is said to “…comprise 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.”
The rules of law generally known as the common law:
This is taken to be the common law and the doctrine of equity largely borrowed from England.
A key part of the common law is the concept of judicial precedence. This refers to the tendency of the courts to follow earlier decisions especially if the facts of the present case are similar to a case already decided. If the court does not want to follow what was earlier established in a similar case, they can establish that the present case is materially different, that the earlier case was decided per incuriam, which means without care, or that the previous decision was made without considering some relevant precedent or statutory provisions.
The rules of customary law including those determined by the Superior Court of Judicature:
In article 11(3), customary law is defined as “the rules of law which by custom are applicable to particular communities in Ghana.”
Ollenu & Woodman (1985) defines customary law as the ‘Rules of law which by custom are applicable to particular communities in Ghana’.
Ascertainment of Customary Law:
Under section 55(1) of the Courts Act 1993, it is stipulated that “Any question as to existence or content of a rule of customary law is a question of law for the court and not a question of fact.” In instances where there is doubt concerning the existence or content of a rule of customary law, section 55(2) of the Courts Act 1993 stipulates that “…the court may adjourn the proceedings to enable an inquiry to be made under subsection (3) of this section after the court has considered submissions made by or on behalf of the parties and after the court has considered reported cases, textbooks and other sources that may be appropriate to the proceedings.”
See the case of Atta and Others v. Esson where the defendant-appellants claimed that in view of customary law, they had the right to enter upon a land in the occupancy of a tenant and collect palm nut without the permission of the tenant. The court of appeal referred to a publication on Fanti Customary Law by Sarbah which affirmed the right of a landlord to enter his land in the occupancy of a tenant and collect palm nuts. The court also used the publication of Bentsi-Enchill titled Ghana Land Law to tone down the stance adapted by Sarbah. The court of appeal reasoned that allowing the appeal and upholding the customary right would be “ruinous of agricultural enterprise, subversive of expansion and consequently prejudicial to national development...”
This is generally regarded as a variant of customary law as it is confined to the adherents of Islam. In the case of Kwakye v Tuba, the court held that a marriage according to Islamic law is customary marriage and thus valid. Ollennu J stated in his ruling “In the eyes of our law, a marriage by a Mohammedan according to Mohammedan law is at its very best a marriage by customary law and does not affect succession to his estate, unless the said marriage is registered under the Ordinance”