ADMINISTRATIVE LAW

SECOND YEAR FIRST SEMESTER

WHAT IS ADMINISTRATIVE LAW?

The answer to the above question is diverse. Different opinions have been expressed on the definition of
administrative law. This is due to the fact of the tremendous increase in the administrative process.
Any definition will cover the wide spectrum of administrative process.

In defining the subject, there may be differences of scope and the emphasis that is put on defining
administrative law. This has arisen because there are divergences of administrative process within a
given country. There is for example, difference in the administrative process in Ghana and Togo.

In civil law countries, administrative law is developed more than common law countries. Despite the
divergence, two important factors need to be taken into consideration in understanding what
administrative law is about.

Firstly, Administrative Law is concerned primarily with the manner of exercising governmental power.
The decision making process is more important than the decision itself. The law is concerned more as
to how the decision is made. The process of how the decision is made is taken as the focus and not the
decision itself.
Secondly, administrative law cannot be fully defined without due regard to the functional approach i.e.
the function and purpose of administrative law should be the underlying element in any definition of the
subject.

DEFINITIONS

1. AUSTIN
Austin defines administrative law as “The law which determines the ends and modes to which the
sovereign power should be exercised”. In his view, the sovereign shall be exercised either directly by
the monarch or indirectly by the subordinate political superiors to whom portions of those powers are
delegated or committed to.
2. SCHWARTZ
According to Schwartz, administrative law is “The law applicable to those administrative authorities
which possess delegated legislative and adjudicatory authority”. This definition is rather too narrow.
Among other things, it is silent as to the control mechanisms and those remedies available to parties
affected by administrative actions.

3. SIR IVOR JENNINGS

Sir Jennings states that, administrative law is “The law relating to the administration”. It determines the
organisation, powers and duties of administrative authorities.
One criticism to the above is that, it does not distinguish between administrative and constitutional law.
It lays too much emphasis on the organisation power and duties to the exclusion of the manner in which
the power is exercised. The definition does not give due regard to the administrative process i.e. the
manner in which particular agencies arrive at decisions including the procedure and principles that the
authorities should comply with.

4. A. V. DICEY
According to Dicey, administrative law first relates to that of the nation’s legal system which determines
the legal status and liabilities of all state officials. Secondly, it defines the rights and liabilities of
private individuals in their dealings with public officials. Thirdly, it specifies the procedures by which
those rights and liabilities are enforced.

One criticism of the above definition is that, the decision concerns itself mainly with judicial control of
public officials. This apart, administrative law also governs quasi administrative bodies. The definition
also limits itself to the study of state officials.

In modern practices, administrative law also covers quasi administrative authorities e.g. Commissions of
Enquiries, Universities, etc.

5. DAVIS
Davis defines administrative law as “The law that concerns the powers and procedures of administrative
agencies, specifically, the law governing judicial review of administrative action.

This definition is defective in the sense that, it excludes rule application on purely administrative power
of administrative agencies. It must be noted however that, purely administrative functions are not
strictly within domain of administrative law just like rule making i.e. legislative power and adjudicative
power i.e. judicial.

Davisian definition lays great emphasis on details and specific rule making and adjudicating procedures
and judicial review through the courts for any irregularities. It excludes control mechanism such as
ombudsmen or CHRAJ in Ghana for example.

From the various definitions, one can distill from them the following as the concerns of the
administrative law.

1. Administrative law studies the powers of administrative agencies. The nature and extent of such
powers is relevant to determine whether any administrative action is ultra vires i.e. outside the
powers of the agency or there has been an abuse of power.

2. Administrative law studies the rules, procedures and principles of exercising those powers.
Parliament, when conferring legitimate or adjudicative power on administrative agencies, usually
prescribe specific rules governing the manner of exercising such powers e.g. Under the Local
Government Act, District Assemblies can make by-laws, those by-laws are however governed by
certain procedures.

3. Administrative law studies rules and principles applicable to the manner of exercising governmental
powers such as principles of fairness, reasonableness, rationality and rules of nature of justice.

4. It studies the controlling mechanisms of the exercise of power. Administrative agencies whilst
exercising their powers may exercise the legal limit they may also abuse their powers or control by
the courts through judicial review.

5. Administrative law studies remedies available to aggrieved parties whose rights and interests may be
affected by unlawful and unjust administrative actions.
It is concerned with effective redress in these retractions e.g. Using mandamus, quo warranto, etc.
PURPOSE OF ADMINISTRATIVE LAW

Administrative law is primarily concerned with the control of power and state intrusion into our daily
lives. e.g. You need a Driving license to qualify to drive, etc.
There is a marked rise in regulatory state, e.g. The need for birth certificate etc. One cannot escape
state intrusions in one’s life.
According to Peter Leyland and Terry Woods, “Administrative Law embodies general principles
applicable to exercise of the powers and duties of authorities in order to ensure that the myriad and
discretionary powers available to the executive conform to basic standards of legality and fairness. The
ostensible purpose of this principle is to ensure that there is accountability, transparency and
effectiveness in exercising of power in the public domain as well as the observance of the rule of law.
The authors have identified the following as the underlying factors of administrative law:
Firstly, it has a control function acting in a negative sense as a brake or check in respect of the unlawful
exercise or abuse of governmental or administrative power.
Secondly, administrative law can have a command function, by making public bodies perform their
statutory duties including the exercise of discretion under a statute.
Thirdly, it embodies positive principles to facilitate good administrative practice, e.g. In ensuring that
the rules of natural justice or fairness are adhered to.
Fourthly, it operates to provide transparency and accountability; including participation by interested
individuals or persons in the process of government.
Fifthly, it may provide remedies for grievances at the hands of public authority.

In order to achieve these purposes, it is necessary to have a system of administrative law that is rooted in
the basic principles of the rule of law and good administration.

A comprehensive advance and effective administrative law is underpinned by three basic principles.
1. The first is administrative justice which has at its core the philosophy that, in administrative decision
making, the rights and interest of individuals should be properly safeguarded.
2. The second basic principle is that which relate to executive accountability. This has the aim of
ensuring that those who exercise executive powers of the state can be called on to explain and justify the
way in which they have gone about doing their jobs.
3. Thirdly, good administrative decision and outcome should conform to universal acceptable standards
such as rationality, fairness, consistency and transparency.
THE STATE OF ADMINISTRATIVE LAW IN GHANA

Around 1818 Dicey, misled by his misconception of the rule of law proudly stated that, England did not
have administrative law.
Almost a century later, Lord Denning commented in the case of GREEN v AMALGAMATED
ENGINEERING UNION [1971] 2QB 175 @ 159 that;
“It may be truly now be said that we have a developed system of administrative law”.

The reason why Dicey said there was no administrative law in England was the fact that, English law
did not disclose a distinction between Public Law and Private Law.
Secondly, because the United Kingdom did not have a written constitution, this deprived the
judiciary of the opportunity to pronounce on constitutional matters.

Article 296 of the 1992 Constitution of Ghana set out parameters for the exercise of administrative
discretions. The Constitution has established administrative authorities such as the Commission on
Human Rights and Administrative Justice (CHRAJ). We have very little control over administrative
action through judicial review, e.g. AMA pulling down people’s structures. We however have some
institutional controls through CHRAJ. CHRAJ oversees maladministration.
There is the need to develop the administrative system to compliment or match towards our
democratic dispensation and culture.

HOW TO ENSURE GOOD GOVERNANCE

The question in relation to the above is, should the courts bear the responsibility in ensuring a good
administration; or, is it to be ensured by something else? Is it appropriate to seek private model of
adjudication by which Courts seek to resolve disputes after they have arisen so that administrative law
operates retrospectively to check abuse of power; or should we consider administrative law as a
temperate to check abuse of power or is it to be applied to ensure that abusers of power are punished or
used to reduce the abuse of power?
There are different answers to the above and the answers have been categorized by the authors Harlow
and Rawlings into two which they have named “Red Light” and “ Green Light” theories.

THE RED LIGHT THOERY

The Red Light theory advocates a strong role for the court to review administrative decisions. They
consider that, the basic function of the courts is to control the abuses of state power. This emanates
from the advocate tradition of the 19 th Century – the laissez faire (minimum government). It embodied a
deep rooted suspicion of governmental power and the desire to minimise the encroachment on the right
of the citizens. According to the Red Light theory of state, the best government is the one that governs
the least. The more powers government has, the danger it is to the right and liberties of the citizens.
Consequently, the theory serves as the function of controlling the excess and abusive power mainly
through the courts. Its distinctive feature is that, on one hand it gives much attention control of
government power and on the other hand it is confident that effective controlling mechanism is the court
through judicial review of administrative function. Harlow and Rawlings put the issue as:
Behind the formalist tradition we can often discern a preference for a minimalist state. It is not
surprising therefore to find many authors
believing the primary function of administrative law should be to control any excess of state
power and subject it to legal and more specifically
judicial control. It is this conception of administrative law that we have called “Red Light
Theory”.

THE GREEN LIGHT THEORY

The green Light Theory on the other hand considers that the function of administrative law is to
facilitate the function of state. It is based on the rational that bureaucrats will function more efficiently
in the absence of intervention in the sense of telling them what to do. Administrative Law should aid at
simplifying the procedures and enhance efficiency. It is basically not interested in the end result but
how the process is gone through to achieve the results. It therefore needs transparent and systematic
procedures to achieve the results.
The Green Light Theory originated from the utilitarian tradition which advocates for greatest good
for the greatest number. According to the utilitarian theory of state, the state is to provide housing, local
services, health, social security among other basic social needs.
The theory broadly support the introduction of policies aiming at support of public service provisions.
Law is therefore not a controlling mechanism but a facilitative tool. As a result, the theory sees the
intervention of the courts as an obstacle to efficiency. Harlow and Rawlings put it this way:
“Because they see their own function as the resolution of dispute and because they see the
administrative function from the outside, lawyers traditionally emphasis external control through
adjudication.
to the lawyer, law is the policeman. It operates as an external control often retrospectively”.
But the main concern of the Green Light writers is to minimise the influence of the courts. Courts with
their legalistic values were seen as obstacles to progress and the control which they exercise as
unrepresentative and undemocratic. To emphasis crucial point in the green Light Theory, decision
making by an elite judiciary imbued with a legalistic rights based ideology and a centric vision of
“public interest” was never a plausible counter to authoritarianism.

The above two theories underpin what administrative law seeks to achieve. However the two
theories do not reflect on what happens on the ground. In between the two is what Harlow and
Rawlings have classified as the amber.
CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
Constitutional law and Administrative law share a common feature because they fall under the public
law.
The subject of administrative law cannot be understood without understanding constitutional law. To
the early English jurists, there was no difference between administrative law and constitutional law. In
the view of Dicey, the rules which in other countries form part of constitutional code are in England the
result of the ordinary law of the land.
In the result, whatever control the administrative authority can be resorted to must deduce from the
ordinary law as contained in statutes and judicial decisions.

Whilst constitutional law deals with the powers and structures of government, administrative law is its
scope deals with the exercise of power by the executive arms of government. The legislature and
judiciary are only relevant in administrative law when they exercise their controlling functions on
administrative law.

Constitutional law being the supreme law of the land formulates fundamental rights which are invariable
and inalienable. Since it is fundamental, it supersedes all other laws including administrative law.
Administrative law does not provide rights but constitutional law does. Administrative law provides
rules and remedies to safeguard and protect rights. This also serves as a common feature even though it
sets the difference between the two. Administrative law is the tool for implementing the constitution.

Hood Phillips has said that constitutional law is concerned with the organisation and functions of
government at rest whilst administrative law is concerned with those functions and organisation in
motion.

It is inconceivable therefore that, without administrative law, constitutional law cannot be effective. In
practical terms, the existence of constitutional law is reflected in the operations of administrative law.

ADMINISTRATIVE LAW AND HUMAN RIGHTS

Human Rights Law is underpinned by the paramount ideal of securing human dignity whereas
administrative law is more concerned with good decision making and rational administration. The
traditional emphasis on administrative law on remedies overrides reverses the direction of human Rights
law which may provide damages for breach of a right whereas this is not the natural consequence of
invalid action in administrative law. At the same time, Administrative law remedies may still guarantee
essential human rights, e.g. Habeas corpus may release one from unlawful detention.

ADMINISTRATIVE LAW AND GOOD GOVERNANCE

Administrative law plays an important role in improving the efficiency of the administration. So the
rules, procedures and principles of manner of exercising power prescribed by administrative law are
simultaneously in line with improving or ensuring good governance. The two have one common goal –
to attain administrative justice. The set of values underpinning administrative justice which mainly
comprise of openness, fairness, participation, accountability, consistency, rationality, legality,
impartiality and accessibility of judicial and administrative individual grievance procedures, are
commonly shared by administrative law and good governance.

Administrative law also helps to realize the three underlying principles of good governance namely;
accountability, transparency and public participation. Accountability is fundamental to good
governance in a modern and open society. A high level of accountability of public officials is one of the
essential characteristics and underpinnings not just for civic freedoms enjoyed by the individual
efficient, impartial and effective public administration. Administrative law systems, if working properly,
supplement and enhance the traditional processes of ministerial and parliamentary accountability.
ADMINISTRATIVE LAW AND DEMOCRACY
True democracy states that the executive government will be accountable to the people. A meeting
point between administrative law and democracy is the principle of rule of law and democracy is
nourished by the rule of law. Every true and democratic system of government rests on the rule of law
and no system is truly democratic if it does not rest on the rule of law.

There are at least two principles that are most important for democratic government. First, the
government must be subject to the rule of law. The government should particularly comply basically
with the basic laws of its constitutional structure. Secondly, government should be democratic. These
two principles can also be in conflict. A conflict occurs when the rule of law is inconsistent with the
democratic will and this conflict is usually resolved by the courts. However the scope of judicial review
is a subject of controversy and unless the scope is delineated it is likely to cause more confusion.

SOURCES OF ADMINISTRATIVE LAW

The sources of Administrative Law are basically:
1. Constitutional Law
2. Delegated Legislation
3. Judicial Decisions
These areas would be treated into details later.

CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS

Administrative functions can be classified as follows:

1. Legislative Function
2. Administrative Function
3. Judicial Function
 4. Quasi-Judicial Function
5. Ministerial Function
These terms cannot be comparterized, i.e. they cannot be put in separate compartments. There is often a
scope for labeling a specific act or decision with two or more of the above. This sometimes leads to
confusion.

1. LEGISLATIVE FUNCTION
The legislative functions involve making rules of general application with prospective effect. Laws are
made for the future and not the past. This is stated in Art. 93 (2) of the 1992 Constitution which vests
the law making power in the Legislature. But the contemporary realities are that the Legislature alone
cannot legislate on all the laws required for the efficient functioning of the modern state. Consequently,
delegation of the law making powers to the administration is necessary. When the administrative
authority exercises an authority, the source of that power is the Legislature. Such law made under the
authority of the legislature is what is referred to as Delegated Legislation.

2. ADMINISTRATIVE/EXECUTIVE FUNCTION
This usually involves the making of policy or carrying out a policy or simply deciding what is the most
appropriate thing to do in a particular circumstance. Eg. Making decision on public appointment or
allocation of resources.

3. JUDICIAL FUNCTION
This is simply a determination of question of law or fact by reference to pre-existing rules or standards.

4. QUASI JUDICIAL FUNCTION

It involves an administrative type discretion which precedes a judicial type procedure. It is neither not
purely administrative nor purely judicial.

5. MINISTERIAL FUNCTION
It is basically the performance of a legal duty with no element of choice or discretion.

DUTY AND DISCRETION

A DUTY is an act that must be done. Performance of such a duty can be enforced by a legal procedure.
A DISCRETIONALLY POWER on the other hand involves a freedom of choice. The competent
authority may decide whether to act or not. Art 296 sets the basis for the exercise of discretion.
DUTY and DISCRETION may seem to be different but in practice, the two are interwoven. Public
authorities are given the discretion to enable them to function.
Art 296 notwithstanding, a person can seek a review in the court if the person thinks the authority has
abused the discretion.
A case of reference is P.P.P v ATTORNEY-GENERAL [1971] 1 GLR. The question in this case was
whether the Police had exercised their discretion by refusing to allow the applicants the right to hold a
demonstration. The law allowed the police the right to grant permit for public gathering. The Police did
not assign any reasons for refusing to grant the permit. The court held that, the police had abused their
discretion. They had not been fair or candid in the exercise of their discretion. To demonstrate that they
acted in good faith, they should have assigned reasons for the refusal to grant the permit.

DELEGATED LEGISLATION
One of the phenomena of Administrative Law is the growth of administrative powers of authority. Even
though the Constitution does not mandate the Executive to legislate, they do so in practice and this has
an impact on the daily life of the people.

WHY DELEGATED LEGISLATION IS INEVITABLE

Various reasons have been given to explain why Parliament delegates its authority to others.
1. Certain emergency situations may arise which necessitate special measures. In such cases,
speedy and appropriate actions are needed. Parliament cannot act quickly because of its political
nature and because of the time involved in its legislative or law making procedure.
2. The work of Parliament has been increasing year in and year out and that, it lacks the time and
expertise to deal with technical issues that may be involved in particular bills.
3. When Parliament is enacting a law, it cannot foresee all the difficulties that may arise in the
execution of that particular legislation. So there are many statutes that allow other bodies to
legislate. E.g. The Local Government Act allows District Assemblies to enact laws to suit the
demands of their areas.
4. Delegated power gives the delegate the flexibility to adopt the content to the changing
circumstances without reference to Parliament.
These reasons have not been accepted generally. Some have argued that, it is a danger to the liberties of
the citizens. It also empowers the Executive to be dictatorial and further places arbitral power in the
hands of the Executive.

NATURE AND SCOPE OF DELIGATED LEGISLATION

As already said, Delegated Legislation is legislation made by other authorities other than the
Legislature. The delegate acts on the expressive authority of the Legislature. It is regarded as legitimate
so long as Parliament has not withdrawn its authority. The delegate should not be unguided. Parliament
therefore sets the guidelines for the exercise of the power.
A delegate cannot sub-delegate (Delegatus non potest delegare). For instance, if a Minister is
empowered to legislate, he/she cannot ask another body to legislate. Such a power will be void. Refer to
the case of REPUBLIC v AKUAPIM TRADITIONAL COUNCIL; EX-PARTE NYARKO III
[1975] 2GLR 362; and REPUBLIC v CENTRAL DISCIPLINARY BOARD; EX-PARTE
TSAWODZI [1973] 2GLR 299.

TYPES OF DELEGATED LEGISLATION

Delegated Legislation can be conferred on a wide variety of bodies such as Public Corporations,
Ministries etc. An example is the Public Utility Regulatory Body in Ghana.
It may be a Constitutional Instrument, a Bye-Law, Legislative Instrument, Statutory Instrument, ect. A
CI for example derives its authority from the power conferred by the Constitution. Parliament is not
directly involved in the making of a CI but like any other Delegated Legislation, under Art 11(7), any
rule made by a body conferred on it by the Legislature shall be placed before Parliament. Parliament
lacks the power to amend a Delegated Legislation placed before it. It may either reject or approve it.
Statutory Instrument is delegated under a statute.

CONTROL OF DELEGATED LEGISLATION

Because of the tendency to abuse the powers conferred or delegated, there are mechanisms to control
Delegated legislation. There are three means to control Delegated Legislation and these are Procedural,
Parliamentary and Judicial. The Judicial control is sub-divided into the doctrine of ultra vires and the
use of the prerogative writs.

1. Procedural Control
Under the procedural control, before the power is delegated, interested parties are consulted to make an
input. This is referred to as prior-consultation.
Again, there is a prior publication of the proposed rule or regulation so that those to be directly affected
can make some inputs. The publication is made in the Gazette for a wider publicity according to Art 11
(7) of the Constitution.

2. Parliamentary Control
Parliament does not have much control over delegated legislation. Once they delegate, the oversee
aspect is somehow buried. Parliament may reject the law passed under Delegated Legislation if it
detects there is a defect. It cannot amend or alter it.

3. Judicial Control
The doctrine of ultra vires may be applicable with regard to procedural requirement or may apply to the
substantive rule. The doctrine of ultra vires is basically explained as beyond one’s powers.
The prerogative writs may also be used to control Delegated Legislation. Certiorari may be used by
the High Court to order a court below to perform within the powers assigned to it. Also, mandamus can
be used to compel a public officer to perform his or her duty.
One may also seek the view of the Supreme Court to ascertain whether Parliament has the power to
delegate.

ADMINISTRATIVE AUTHORITIES

Background
Administrative Law involves a challenge to the exercise of power by executive government. For this
reason, it is necessary to look at the composition and powers of executive government; and at how they
exercise powers when they take action or make a decision. In practical terms, executive government
interferes in our lives and their actions affect our lives in a number of ways. For example, when you
want to enter into business, you have to acquire the relevant permit or license before you can start.
When you receive your salary you are subject to tax. When you are ill, the National Insurance scheme
may come into effect. Administrative authorities are creatures of the legislature and as such, they are
assigned specific task and may range from local government to regulation of specific resources.
LOCAL GOVERNMENT
Local Government has three tiers. This is created partly by the Constitution – Article 241 (3) which
states that:
“Subject to this Constitution, a District Assembly shall be the highest political authority in the
district, and shall have deliberative, legislative and executive powers”.

PRE1992CONSTITUTION LOCAL GOVERNMENT

The current decentralization of government at the local level was initiated in the early 1990s during the
PNDC rule. In 1988, the PNDC introduced the Local Government Law (PNDCL 207). This law
created 110 districts designated within the ten regions. The first non-partisan district assembly election
was held in 1988 to 1989 and since then, every four years, two-thirds of the district assembly is elected
on a non-party basis; one-third appointed by the central government along with the chief executive.
The stated aim of 1988 was to promote popular participation and ownership of the machinery of
government by devolving power, resource and competence to the district level.

LOCAL GOVERNMENT UNDER THE 1992 CONSTITUTION

THE 1992 Constitution endorsed the 1988 reforms. It consolidated the aim of decentralization within
the overall contest of a liberal democratic constitution yet, the essential democratic element remained
compromised especially the retention of presidential appointments and non-partisan local election
(Chapter 20 of the 1992 Constitution).
The objective of decentralization has been set out in Article 240 (1).
The autonomous role of local government with discretionary powers at the local level may be referred to
from Article 240 (2) (b) which states; “Parliament shall by law provide for the taking of such
measures as are necessary to enhance the capacity of local government authorities to plan, initiate,
co-ordinate, manage and execute policies in respect of all matters affecting the people within their
areas, with the view to ultimately achieving localization of those activities”.

The principle of participation in local government and the downward accountability to the populace was
emphasized in the statement in Art. 240 (2) (e) to the effect that, the people in particular local
government areas shall be given the opportunity to take part in their governance as far as practicable.

Indeed, the democratic intent in the decentralization process is made explicit in Art 35 (6) (d). This
article contrasts the non-partisan and the appointments by the central government.
As regards financing of local government, the Constitution makes it clear in Article 240 (2) (c) that, they
shall have sound financial basis with adequate and reliable sources of revenue.
This reflects on the District Assemblies Common Fund which is determined annually by Parliament and
it should not exceed 5% of the total revenue of Ghana. The amount is paid on quarterly basis.

All in all, the objective of decentralization along with the key powers and responsibilities enshrined in
sub-national government (government below the central government) was clearly set up by the 1992
Constitution with some references to the aim of local participation and the wider goal of democracy.
The District Assemblies are the highest political authorities in the districts according to Art 241 (3). The
District Assembly Members elect a Presiding Member from among their members and is responsible to
the three to four sittings of the general assembly to be held each year and they act as a legislature at the
general assembly. In between the general assembly, the work of the general assembly is carried out by
committees which the Executive Committee is the most important and which is responsible for general
policy and overall development planning. The Executive Council is made up of one-third of the District
Assembly members and performs the main executive and administrative functions.
Under the Executive Council there are five statutory sub-committees namely; development and planning
committee, Social Services Committee, Works/Technical Infrastructure Committee, Justice and Security
Committee and Finance and Administration Committee. The Executive Committee can create ad hoc
sub-committee as and when it is necessary.
All sub-committees report to the District Assembly through the Executive Committee. The DCE is
the chairman of the Executive Committee and the Presiding Member and the District Member of
Parliament are barred from its membership.

REGIONAL CO-ORDINATING COUNCIL

Each of the ten regimes has a regional Co-ordinating Council chaired by the Regional Minister who is
appointed by the President. The RCC is made up of the Regional Minister and his or her deputy, the
Presiding Member and DCE from each district, two chiefs from the Regional House of Chiefs, and in
addition, the Regional heads of decentralized ministries in the region sit as non-voting members.
The RCC’s main function is to co-ordinate and regulate the District Assemblies in their respective
regions. How they are to do this remains vague.

COMMISSIONS OF ENQUIRY
Article 278 gives the President the power to appoint a Commission of Enquiry to enquire into any
matter of public interest. “Public interest” is defined in Art 295 to “…include any right or advantage
which ensures or is intended to ensure to the benefit generally of the whole of the people of
Ghana”.

Parliament may also by a resolution request that a commission be appointed to enquire into an issue in
the resolution as a matter of public interest (Art 278 (1) (c). The decision to appoint a commission of
enquiry is not subject to review by the courts unless it can be shown that some constitutional or statutory
limitations have been violated.

The functions of a commission are among other things, to make full and impartial enquiry into any
matter specified in the instrument of appointment, report in writing the result of the enquiry and furnish
the reason leading to the conclusion in the report (Art 280).

Except as may otherwise be ordered by the commission in the interest of morality, safety or order, the
proceedings of a Commission of Enquiry shall be held in public. It has the power of a High Court to
enforce the attendance of witnesses and the production of documents (Art 279 to 281).

It can issue a subpoena ad testificandum for a witness to testify or a subpoena duces tecum for a
witness to produce documents in his or her possession. Failure to comply to such invitation is
tantamount to a contempt.

The Commission is obliged to report in writing the result of its findings to the President who must
cause it to be published together with a “white paper” representing the government’s position on the
matter within six months after the date of the submission of the report. If the government decides not to
publish the report, a statement to that effect, given reasons, must be issued. In a situation where a
commission makes an adverse finding against any person, the report shall be deemed to be a judgement
of a High Court and an appeal can accordingly be made to the court of appeal (Art 280 (2). An example
is in the case of REPUBLIC v WEREKO BROBBEY & ANOR [2010]. The accused persons
appeared before a Commission of Enquiry which findings were accepted by the government white
paper. Based on the findings of the commission, the Attorney-General initiated a trial against them.
The accused took action at the High Court against the A-G’s move in line with Art 33 (1) on the basis
that the Commission has the power of a High Court and therefore, for them to be sent to the High Court
on the findings amounted to a double jeopardy. They argued further that, the action of the A-G infringes
upon their right to appeal to the Court of Appeal to appeal against the findings of the Commission. The
whole basis of the indictment was on the Commission’s report and it was wrong to prosecute them
further at the High Court. The Court ruled that there was no legal basis for the charges and dismissed
the action.
Examples of Commissions of Enquiry are the Okudzeto Commission which investigated the Accra
Sports Stadium Disaster and the Wuaku Commission which investigated the circumstances leading to
the murder of the Ya Naa at Yendi.

CONTROL OF DELEGATED LEGISLATION BY THE COMMISSION ON

HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (CHRAJ)

THE Commission on Human Rights and Administrative Justice (CHRAJ) is provided for by the 1992
Constitution under Chapter 18. Parliament passed the CHRAJ Act 453 on 6th June, 1993.
The Commission is not only to promote and protect human rights but also to see to administrative
justice (anti-corruption) and take over the position of the Ombudsman. The Ombudsman is tasked to
ensure that administrative justice works well.
The Commission consists of a Commissioner for Human Rights and Administrative Justice who
chairs the Commission and is assisted by two Deputy Commissioners. The President, acting on the
advice of the Council of State, appoints the Commissioner and the Deputies. The position of the
Commissioner is equivalent to a Justice of Court of Appeal. The status of the Deputy is also equivalent
to a Justice of the High Court.
Apart from chairing of the Commission, the Commissioner formulates policies for the Commission.
One Deputy takes charge of legal and investigation while the other is in charge of public education and
anti-corruption.
In terms of the provisions of the 1993 Act, the Commission has branches in all the ten regions with
about one hundred branches in some district capitals.

FUNCTIONS AND POWERS

The functions of the Commission are set out in the 1993 Act as well as Art 218 of the 1992 Constitution
(sections a, b, c, d, e, and f). There was a controversy on the functions of the Commission in respect of
Sec. (a) of Art. 218 in the case of THE REPUBLIC v FAST VTRACK HIGH COURT, ACCRA
EX-PARTE CHRAJ; ANANE INTERESTED PARTY.
The Commission has the power of subpoena under Art 219 (a) (b) and Act 459.
 Generally speaking, every person or body is included in the jurisdiction of the Commission.
However, the Commission cannot investigate:-
i. A matter pending before a Court of law or a judicial tribunal.
ii. A matter that falls within the government and any other government or interim
organisation (matters of diplomacy).
iii. Matters relating to the exercise under prerogative of mercy (Art 72).

ENFORCEMENT
The Commission has the power to make recommendation for corrective action. It also has the power to
go to Court to enforce its recommendation if such recommendation has not been complied with within
three months of their making.
About 50% of their cases are resolved by conciliation and mediation. The enforcement powers are a
back-up.

REMEDIES
Act 459 and the Constitution do not recommend any remedies to be given by the Commission. Art 229
provides that, the Commissioner may in the performance of his or her duties bring an action to the court
and ask for the enforcement of remedies it is entitled to plead.
The Commission is independent according to Art 225. It does not come under the control of any
person or authority.
In accordance with its constitutional mandate and statutory obligations, the Commission issues a
report on its activities in the previous year which it files to Parliament with copies to media houses.

MANDATES OF THE COMMISSION (3)

1. Human Rights
2. Ombudsman
3. Anti-corruption

1. HUMAN RIGHTS
The Commission has a duty to investigate all violations of fundamental human rights and freedoms as
enshrined in the Constitution. This jurisdiction applies against public officials and institutions,
individuals and private enterprises.
The typical human rights that come before it are wrongful detention, delay in the trial of suspects
remanded into custody, sexual harassment at the work place, gender discrimination as well as domestic
violence. They have intervened in situations where children have been denied some rights because of
the stand of their parents. The greatest number of complaints involve maintenance. Under the
Children’s Act, CHRAJ has the jurisdiction to apply to the Family Tribunal for the maintenance of a
child under 18 years.
There are also issues relating to social, economic and cultural rights according to the reports. An
example is the petition of the people of Agbogbloshie in Accra for right to housing.
The Commission promotes human rights through education as envisaged in Sec. 7 (1) (g) and (h) of
Act 459. That gives the mandate to the Commission to educate on human rights and freedoms through
lectures, symposia, etc. An example is the investigation into the cultural practices of Trokosi.
They have of recent embarked on a nationwide inspection of prisons to ensure that the conditions there
meet international standards.

2. OMBUDSMAN
The core business of the Ombudsman is to pursue administrative justice in a manner that is confidential,
informal and flexible and which provide people with an opportunity to complain about (mis)conduct and
maladministration by public officials. What will constitute (mis)conduct and maladministration is many
and include corruption, favouritism, tribalism, harassment, misleading a member of the public as to his
rights, failing to give reasons where there is the need to do so, failing to reply to correspondence, using
power for a wrong purpose, causing unreasonable delay in doing the desired public act, etc. The Ghana
Education Service and the Police Service are the bodies mostly complained against.

3. ANTI-CORRUPTION
The anti-corruption mandate is in line with Art 218 (a) of the 1992 Constitution. The Commission also
investigates violation of Code of Conduct set out for public officers (Art 284).

CHALLENGES FACING THE COMMISSION

The mandate of the Commission is very broad and it is debatable whether the combination of three
institutions (Human Rights, Ombudsman, Anti-corruption) under one umbrella is desirable.
Secondly, they do not have a complete financial autonomy. The procedure for their budget is rather
cumbersome. It would have preferred to prepare and submit its budget directly to Parliament.
In terms of enforcement of their powers, it is opined that their views are registered with the courts by
the party to constitute a judgement of the court.
There is also a complaint against high staff turn out due to poor remuneration and conditions of
service.
The Commission’s services are free and this has increased the number of its cases. However, this has
helped to reduce the number of cases that would have been sent to the courts.

EFFICACY OF THE COMMISSION

The Commission, since its inception, has gained a very high reputation both locally and internationally.
It has assisted other African countries by sharing its experience and expertise
With Zambia, Sierra Leone, Gambia, Tanzania, etc.
Maintenance of the independence of the Commission vis-à-vis the organs of government have
scrupulously been adhered to.

JUDICIAL OVERSIGHT (CONTROL)

Judicial control of administrative agencies is one of the effective mechanisms for ensuring the rule of
law and improving the quality of decision making in the administration. The Judiciary, being the final
arbiter and guardian of justice, can intervene to test the legality of administrative decisions either in its
appellate or reviewing capacity (Art 1 (3) (2). The Supreme Court has adjudicating authority over all
courts.

JUDICIAL REVIEW
The term Judicial Review has different meaning and scope in different jurisdictions. For example, in the
United States, Judicial Review refers to the power of a court, to review the actions or to review the
constitutionality of a statute or treaty; or to review an administrative regulation for consistency with a
statute, a treaty or the constitution itself Malbury v. Madison).
In the English jurisdiction however, it refers to the means through which the court controls the
exercise of administrative powers. For instance, it has been said that four principles underlies the
concept of Judicial Review.
1. First, that Acts of Parliament have been correctly interpreted.
2. Secondly, the discretion conferred by statute have been lawfully exercised
3. Thirdly, the decision maker has acted fairly
4. Fourthly, that the exercise of power by a public body does not violate human rights.
(Hilaire Barnett pg. 724)
The Ghanaian Jurisdiction
In the Ghanaian jurisdiction however, the term means two things which must be distinguished. It may
mean the means the courts control the exercise of administrative power (Art 1(2) and 2(1).
 Secondly, it may refer to the courts enforcement of the doctrine of supremacy of the constitution to
invalidate any other act or legislation in conflict of the constitution.

Means by Which the Courts Control

The kind of jurisdiction under this case can be seen in the case of THE REPUBLIC v HIGH COURT
ACCRA; EX-PARTE: INDUSTRILIZATION FUND FOR DEVELOPING COUNTRIES [2003-
2004] SCGLR 348. Dr Twum JSC said in this case:

“Whereas the Kings Bench invented Judicial Review, our High Court acquired
the power of review as part of the received law. Since then the development
of Judicial review has followed the development in England without putting too
fine a gloss on it. Our Supreme (High Court) Civil Procedure Rules 1954 were
copied from the English Rules and the substantive law was English and an
examination of our case law makes that abundantly clear. After all that is what
the enabling 1976 Ordinance ordained of our high Court. Therefore successive
legislation has maintained that posture. All this time, supervisory jurisdiction
was conferred only on the high Court just as their jurisdiction is exercised by the
High Court of England. Then in 1969 there was a change. The 1969 Constitution
of Ghana conferred supervisory jurisdiction also on the Supreme court. This was
repeated verbatim in the 1979 constitution. The current law is contained in Art
132 and 161 of the 1992 Constitution”.

This was taken up in the case of THE REPUBLIC v HIGH COURT ACCRA; EX-PARTE CHRAJ;
ADDO INTERESTED PARTY [2002-2003] SCGLR. Date Bah JSC said as follows:

“The re-statement of the law may be summarized as follows – where the

High Court (and for that matter the Court of Appeal) makes a non-jurisdictional
error of law which is not patent on the face of the record, the avenue for
redress opened to an aggrieved party is an appeal not judicial review. In this
regard, an error of law made by the high Court or Court of appeal is not to be
regarded as taken the judge outside the court’s jurisdiction unless the court has
acted ultra vires the constitution or an expressed statutory restriction validity
imposed on it to the extent that this re-statement of the law is inconsistent with
any previous decision of this Supreme Court; this court should be regarded as
 departing its previous decision(s) concerned pursuant to Art 129(3) of the 1992
Constitution. Any previous decision of other Courts inconsistent with this
statement are over ruled”.

It must be stressed that this re-statement applies exclusively to the supervisory jurisdiction of the
Supreme Court and not the High Court.
When the High court is exercising its supervisory jurisdiction, the case law developed in England
remains highly persuasive to guide it in reaching decisions on the Ghanaian law.

In a recent unreported case – THE REPUBLIC v CIRCUIT COURT ACCRA; EX-PARTE

KOMELEY ADAMS & ORS.; OSIATA INTERESTED PARTY, Civil motion 15/23/2009, the
Supreme Court held that it was necessary to draw a distinction between the decisions of administrative
tribunals and courts of law even if they were lower courts. An error of law simpliciter should not be a
ground for the exercise of the supervisory jurisdiction of the High Court conferred under Art 141 of the
1992 Constitution.

Where the error had been made by a lower court however, there was a policy justification for tighter
supervision over the decision over the officials and administrative tribunal. Thus an error of law by an
administrative tribunal or official might well justify the exercise of a High Court’s supervisory
jurisdiction over them.

The relevant facts in the above-mentioned case are as follows; the plaintiff sued his mother and
sisters at the Accra Circuit Court over a plot of land, claiming damages for trespass and perpetual
injunction, restraining the Defendants from interfering with the land in dispute. The circuit Court
upheld the claim and gave judgement for the Plaintiff. The Defendant lodged an appeal against the
judgement to the Court of appeal. In addition they applied to the High Court for an order of Certiorari
to quash the judgement of the Circuit Court. The High Court held that the trial Circuit Court had based
its judgement primarily on the Plaintiff’s document of title which was defective since it purported to
convey stool land but did not have prior concurrence of the Minister in breach of the Administration of
land Act, 1962 (Act 123). The High Court therefore set aside the document as void along with it the
judgement of the Circuit Court and all the proceedings before that Court. The plaintiff appealed to the
Court of Appeal against the order of the High Court granting the order of Certiorari. The Court of
Appeal allowed the appeal and set aside the order of Certiorari granted by the High Court. The
Defendant in turn appealed to the Supreme Court from the judgement of the Court of Appeal. Two
issues were up for consideration.

The first is the pre-condition for the exercise of the High Court and supervisory jurisdiction over lower
courts and administrative tribunals and officials.

Secondly, whether or not Certiorari and an appeal were mutually exclusive. In other words, can a
person dissatisfied with a judgement file an appeal against the judgement and at the same time apply for
an order of Judicial Review?

The Supreme Court on the facts held that the primary avenue of redress for an error of law simpliciter
by a judge or magistrate sitting in a lower court should be an appeal as provided for in the Courts Act,
1993.

Consequently, the trial High Court had erred in quashing by order of Certiorari the judgements of the
circuit court solely on the ground that the Circuit Court had made an error of law in relying on the
conveyance of land that had been executed by a stool without prior Ministerial concurrence in breach of
the Administrative of Lands Act, 1962.

The Supreme Court further held that in relation to the High Court’s supervisory jurisdiction even an
error of law patent on the face of the record could not found the invocation on that jurisdiction of the
court, unless it has fundamental, substantial, material, grave or so serious as to go to the root of the
matter.

To sum up, in addition to jurisdictional errors of law, only a fundamental non-jurisdictional error of law
could be the basis of the exercise of the High Court supervisory jurisdiction.

A fortiori, the High Court could not exercise its supervisory jurisdiction where the error of law was not
patent on the face of the record; and also where such jurisdiction was exercised in relation to a lower
court.

In the instance case, the appeal from the judgement of the Court of Appeal should be dismissed since the
error of law on which the High Court has based the order of Certiorari was not sufficiently fundamental,
substantial, material, grave or serious so as to go to the root of the judgement of the Circuit Court.
The Supreme Court further held that the fact that an aggrieved party had an appeal pending the decision
of a court was no bar to that party applying for an order of Certiorari in respect of the same decision.

GROUNDS FOR JUDICIAL REVIEW

The primary purpose of Judicial Review is to keep administrative authorities within control in their legal
bonds.

There are many grounds in which the Courts are fashioned to handle Judicial Review. The principle of
Separation of Powers dictates that various organs of Government should act in the respective sphere of
their powers of each other. However, there are some powers conferred or the Executive may be given
powers to legislate. The same applies to the Judiciary in its interpretations of the law. There is a very
fine balancing act in order that one arm of government does not blatantly interfere in the powers of each
other. The powers are controlled by the doctrine of ultra vires. The doctrine of ultra vires falls under
two categories and they are Substantive and Procedural ultra vires.

A. SUBSTANTIVE ULTRA VIRES

This refers to the substantive defect of the decision when contrasted with procedural irregularities. An
example is established in the case of ATTORNEY-GENERAL v FULHAM CORPORATION
[1921] 1Ch.440. In this case, under the Baths and Wash House Act, there was a public bath and wash
house where people could go and do their washing and take their bath. The Fulham Corporation thought
by the Act they had the right to construct baths and wash houses and they did exactly that. They added a
laundry service. The purpose of the Act was that the residents should have the power to do the washing
themselves. The question was, did the local authority have the power to run the laundry service? It was
held that local the authority had ultra vires because they did not have the mandate so to do. However, if
the Subsidiary Act is deemed reasonably incidental to the statutory duty, then the act may not be ultra
vires. In ATTORNEY-GENERAL v CRAYFORD URBAN DISTRICT COUNCIL [1962] 2 All
ER 14, the Housing Act, 1957 gave local authorities powers of “general management” of houses which
they provide. The local authorities then entered into an agreement into an insurance company so that
tenants in their houses could insure their properties. The question then was whether the act of the
authorities was legal. The court held that their act was intra vires as it was reasonably incidental to
general management of managing the houses.
 B. PROCEDURAL ULTRA VIRES
Procedural ultra vires relates to circumstances where decision maker makes a decision within the scope
of the statutory power. But such a decision may still be held to be ultra vires because of some
procedural irregularities affecting the decision.
It refers to a decision made disregarding some mandatory of formal procedural requirement. This could
be obligatory, needing strict compliance. It could also be directory – providing directory for the
decision maker to follow at his discretion. Where the procedures laid down by statute are not followed,
it renders the decision ultra vires.
C. JURISDICTIONAL ERROR
As a general rule, errors of fact made by a decision maker or administrative authority are not to be
corrected by the courts. They are accepted as errors within the jurisdiction of the administrative
authority to make. Factual issues are typically issues that go to the merit of the case and not to the
decision or legality of the case. But jurisdictional facts are different. Whether or not the administrative
authority does or does not have the jurisdiction to make a decision is a question of law amenable to
judicial review. An administrative authority who erroneously interpreted the law as providing a power
that did not exist is said to have made a “jurisdictional error of law”.

An error of fact can also be challenged if the error is jurisdictional. This occurs when the existence of a
particular state of affairs is a condition precedent to the authority actually having the authority.
So, jurisdictional error will occur where the authority assumes jurisdiction over a subject matter either
due to the wrong interpretation of the law or the wrong appreciation of the facts that are essential
conditions precedent for assuming jurisdiction over the subject matter.
Jurisdictional error of law arises when the authority wrongly interpret the law and give itself power over
the subject matter that actually does not fall within its jurisdiction.
Jurisdictional error of fact occurs while the authority assumes jurisdiction over a subject in the
absence of a certain fact that is set as a condition precedent to assume such jurisdiction.
ERROR OF LAW:- Broadly speaking, errors of law can be classified into two. These are (1) Errors of
law going to jurisdiction and (2) Errors of law within jurisdiction.
0
Before the English case of ANISMINIC LTD v FOREIGN COMPENSATION BOARD [1969] 2
AC 147, there was a clear distinction between errors of law going to jurisdiction and errors of law
within jurisdiction (also referred to as error of law on the face of the record). The courts have the power
to intervene if the error appears on the face of the records.

The decision in the ANISMINIC has rendered the distinction between error of law within jurisdiction
and error of law going to jurisdiction unnecessary. The House of Lords held that, error of law can be
said to go to jurisdiction even if made in the process of exercising jurisdiction.

The fact of the case was that, the Foreign Compensation Commission was set up under the Foreign
Commission (Egypt) Determination and Registration of Claims Order, 1962 to determine entitlement in
the Egyptian Compensation Fund. The Commission made an estimation that the Plaintiff whose
property has been sequestrated by the Egyptian Government had failed to establish a claim under the
Order. The Plaintiff then brought an action against the Commission and its legal adviser for a
declaration that the determination is invalid. Their reason was that the Commission had misconstrued
the Order. The Defendants contended that the High Court had no jurisdiction to entertain the
proceedings. The High Court accepted jurisdiction and held that the declaration was a nullity. This was
reversed on appeal. A further appeal to the House of Lords also reversed the decision of the Court of
Appeal. Lord Reed explained the position as follows:
“It has sometimes be said that it is only where a tribunal acts without
jurisdiction that its decision is a nullity. But in such cases the word
‘jurisdiction’ has been used in a very wide sense and I have come to the
conclusion that it is better not to use the term except in the narrow and
original sense of the tribunal being entitled to enter onto the enquiry in
question. But there are many cases where although the tribunal had
jurisdiction to enter onto the enquiry it has done or failed
to do something in the course of the enquiry which is of such nature
that its decision is a nullity. It may have given its decision in bad faith.
It may have made a decision which it has no power to make.
It may have failed in the course of the enquiry to comply
with the requirements of natural justice.
It may in perfect good faith have misconducted the provisions
given it power to acts that it failed to deal with the question
remitted to it and decided some question which was not remitted to it.
It may have refused to take into account something which it was
required to take into account or it may have based its decision
 on some matter under the provision setting it up which it has
no right to take into account. I do not intend this list to be
exhaustive. But if it decides a question remitted to it for decision without
committing any of these errors, it is as much entitled to decide the
question wrongly as it is to decide the question rightly. If it is entitled to
enter on the enquiry and does not do any of those things I
have mentioned, then its decision is equally valid whether it
is right or wrong subject only to the power of the court in
certain circumstances to correct an error of law”.

Currently under English Law, certiorari and Prohibition will lie I the provision of non-jurisdictional
error of the law, whether patent on the face of the record or not.

In R. v HULL UNIVERSITY VISITOR; EX-PARTE, PAGE [1993] AC 682 at 701, Lord Browne
Wilkinson said,
“In my judgement the decision in ANISMINIC LTD v FOREIGN
COMPENSATION BOARD [1969], rendered obsolete the distinction
between errors of law on the face of the record and other errors of
law by extending the doctrine of ultra vires. Henceforward it was to
be taken that Parliament had only conferred the decision making power
on the basis that it would be exercised on the correct legal basis. A
misdirection in law in making the decision therefore rendered the
decision ultra vires. As a result of this decision, any administrative
tribunal, inferior court or public official who or which commit an error
of law in making a decision is regarded as having exceeded its authority
or jurisdiction as the case may be. Judicial Review is therefore to remedy
that error of law.

The English view of the law is not appropriate in relation to the High Courts and Court of Appeal in
Ghana. The Justices of the High Court and Court of Appeal are presumed to know the law and their
courts have unlimited common law jurisdiction subject only to the dictates of the Constitution.
Consequently, they cannot be legitimately deemed to have exceeded their jurisdictions if they make
such errors.
In REP. v CIRCUIT COURT ACCRA; EX-PARTE KOMELEY, the court held that the mere fact
that a High Court has made an error of law does not take him out of its jurisdiction to warrant a review
of the Supreme Court.

D. ERROR PATENT ON THE FACE OF THE RECORD

This will make a decision subject to review. In REP. v HIGH COURT REGISTRAR, KUMASI
AND ANOTHER; EX-PARTE YIADOM I [1984-86] 2 GLR 606-618, Adade JSC expressed the
scope of Certiorari as follows:
“Certiorari lay, apart from jurisdictional situation, to correct
errors of law apparent on the face of the record”.

In REP. v ACCRA SPECIAL CIRCUIT COURT; EX-PARTE AKOSAH [1978] GLR 212 @216,
Anan JA explained the concept of “record” as was pointed out to counsel for the appellant in a certiorari
application. Where no issue as to jurisdiction is raised and where argument is limited to the matter of
error of law, it must be shown not only that the decision complained of is erroneous but that the decision
flows from an error of law apparent on the record; and the record for this purpose cannot be the whole of
the proceedings up to the ruling attacked as erroneous. Counsel edged a contrary view and sought with
some persistence to make use of the evidence to make out his case. The court thought it right to resist
this effort for the point is without authority.

In R v NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL; EX-PARTE SHAW

[1952] 1 All ER 122 @ 130, Denning LJ (as he then was) framed the issue in this way;
“It would have been seen throughout all the cases, there is one
governing rule; certiorari is only available to quash a decision for
error of law if the error appears on the face of the record”.
What then is the record? He goes on to answer at 131:
“I think the record must contain at least the document which
initiate the proceedings, the pleadings if any, and the adjudication
but not the evidence nor the reasons unless the tribunal chooses
to incorporate them. If the tribunal thus states its reasons and
those reasons are wrong in law, Certiorari lies to quash the
decision”.
UNREASONABLENESS AS A GROUND FOR JUDICIAL REVIEW
Administrative authorities are usually given discretion. The very concept of administrative discretion
involves the right to choose more than one possible course of action upon which there will be room for
reasonable people to hold different opinion as to which to be preferred.
Discretion can be structured in such a way that it should be exercised “reasonably”.
There is a consensus in common law jurisdictions that, when a decision that is not reasonable or no
reasonable person would have made, it can well be a ground for judicial review. In R v GREEN
LONDON BOROUGH COUNCIL; EX-PARTE, CEDAR HOLDINGS [1983] RA 17, the court
held that, a decision is unreasonable if it is the kind of decision that is so outrageous that no right
thinking person will support it. This is usually referred to as “Wednesbury unreasonableness”. It is
derived from the case of ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v
WEDNESBURY CORPORATION [1948] 1 KB 223. The local authority made a by-law prohibiting
children from going to cinema on Sundays, presumably to preserve their moral health. The Plaintiff’s
interest was affected since it lost some customers. It therefore went to court for the court to declare the
by-law as unreasonable. Lord Green gave a decision which indicated that there is considerable overlaps
that fell within the general rubbery of unreasonableness. He said:
“It is true that the discretion must be exercised reasonably. Now what
does that mean? Lawyers familiar with physiology common used in
relation to exercise of statutory discretion often use the word
“unreasonable” in a rather comprehensive sense. It is frequently been
used and is frequently used as a general description of the things that
must not be done. For instance, a person entrusted with discretion must
so to speak direct himself properly in law. He must call his own attention
to matters which he is bound to consider. He must exclude from his
consideration, matters which are irrelevant to what he has to consider.
If he does not obey this rule he may be said and often is said to be acting
“unreasonably”. Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the power of authority.
Warrington LJ in SHORT v POOLE CORPORATION [1926] Ch 66 at 90, 91
gave example of the red-haired teacher dismissed because he had red hair.
That is unreasonable in one sense. In another sense it is taken into
consideration an extraneous matter. It is so unreasonable that it may be
 described as been done in bad faith and in fact all these things run into
one another”.

A writer has enumerated the following as the basis for setting aside a decision as been set aside under
the Wednesbury decision on unreasonableness:
1. Where a decision is devoid of a plausible justification
2. Where a decision maker has made an erroneous finding of fact on a point that is fundamentally
important in the case.
3. Where a decision has failed to have regard to departmental policy or representation.
4. Where the effect of the decision is unnecessarily harsh.
5. Where the decision maker has failed to give genuine, proper or realistic consideration to a
matter.
6. Where there is a demonstrable inconsistency in the matter.
7. Where there is discrimination without a rational distinction.

PROPORTIONALITY AS A GROUND FOR JUDICIAL REVIEW

Wade and Forsyth have stated that in a number of European countries there is “principle
proportionality” which provides that administrative measures must not be more drastic than necessary
for attaining the desired result. According to these authorities the principle of reasonableness and
proportionality cover a great deal of common ground. So a severe penalty for a small offence may be
challenged based on the principle of proportionality or reasonableness. That said, there is a clear
difference. Proportionality requires the court to ascertain whether the action taken was really needed i.e.
whether it was within the range of the course of action that could reasonably be followed. This concept
of proportionality was first accepted in English Law as an independent ground for judicial review in R v
HOME SECRETARY; EX-PARTE, DALY [2001] 2 AC 532. It was accepted in that case while there
was an overlapping between Proportionality and the traditional ground of judicial review, particularly
the Wednesbury unreasonableness, the test of proportionality led to a “greater intensity of review” than
the traditional ground. What this means in practice is that, consideration of a decisive substantive merit
of a decision plays a much greater role. In R v HOME SECRETARY, three differences between
proportionality and rationality were made.
First, the doctrine of proportionality may require the reviewing court to assess the balance which the
decision maker was struck not merely whether it is within the range of rational or reasonable decisions.
Secondly, the proportionality test may go further than the traditional ground of review in as much as it
may require attention to be directed to the relative width accorded to interest and consideration.
Thirdly, the intensity of review is guaranteed by the twin requirement that the limitation of the right was
necessary in a democratic society in the sense of meeting a pressing social need; and the question
whether the interference was really proportionate to the legitimate aim being pursued.
The end result is that, the notion has received increasing importance in recent years in that, there is
the need for a certain balance between the administrative measure to be taken and the end to be
achieved.

IRRATIONALITY AS A GROUND FOR JUDICIAL REVIEW

The distinction between Irrationality and Unreasonableness is not clear. Some authorities appear to use
both as a separate ground for judicial review; while others equate unreasonableness with irrationality.
The following list shows examples of species of irrationality:
1. Failure to exercise discretion properly in the sense that the decision maker either did not exercise
the discretion sufficiently free from outside influences or abused the discretion.
2. Acting as though limited by external factors or authority, for example where the decision maker
fails to exercise any discretion at all believing himself to be bound by some external rule.
3. An unauthorized delegation
4. Where the decision maker applies policy without flexibility; for example, where the decision
maker who is conferred with discretion, any powers is expected to consider each case on its own
facts and merits but renders a decision rigidly without considering whether a particular case has
extenuating factors which will necessitate the making of an exception.
5. Abuse of discretion as when power is used for an improper purpose or makes a decision on
irrelevant factors or fail to take into account relevant factors.
6. Use of power for improper purpose or to frustrate the legislative purpose.
7. Taking a decision that is unreasonable.

RELEVANT & IRRELEVANT CONSIDERATION

In R v SECRETARY OF STATE FOR SOCIAL SERVICES; EX-PARTE WELLCOME
FOUNDATION LTD [1987], 1 WLR 1166, it was held that, it is a reviewable error either to take
account of irrelevant consideration or ignore relevant ones, provided that, if the relevant matter had been
considered or the irrelevant one is ignored, a different decision might have been made. So it will suffice
to say on this ground that where the decision fails to take relevant consideration into account but take
those irrelevant ones, there is a high probability that the outcome of the decision may be affected by
defect than not. Consequently, the interference of the court to review such a decision seems justifiable.

BAD FAITH
As a general rule, administrative authorities in exercising their powers must do so in good faith to
achieve the purpose for which those powers are entrusted to them. Although it is difficult to ascertain
all the constituent elements of a decision that has been made in bad faith, one can indicate that there was
the lack of good faith on the part of the decision maker. Contrasting bad faith with dishonesty, Wade
and Forsyth state as follows:-
“it is extremely rare for public authorities to be found guilty of
intentional dishonesty. Normally, they are found to have erred if
at all by ignorance or by misunderstanding; yet constantly accuse
them of bad faith merely because they have acted unreasonably or
on improper grounds. Again and again, it is laid down that powers
must be exercised reasonably and in good faith. But in this context,
“in good faith” means merely “for legitimate reasons” contrary to
the natural sense of the words, they impute no moral obliquity”.

While appreciating the interconnections between the other grounds of review such as unreasonableness,
irrelevant consideration and in consideration of irrelevant consideration, Wade and Forsyth state that,
bad faith scarcely has independence as a distinct ground of invalidity. An attempt to discuss it as such
would merely lead back over the ground already surveyed. But a few examples will illustrate it in its
customary conjunction with unreasonableness and improper purposes; for example, if a liquor license is
cancelled for political reasons, the Minister who brought it is guilty of departure from good faith.
As earlier stated, where a decision is manifestly unreasonable, the court will review without recourse to
irrelevant or unreasonable considerations.
LIMITATIONS ON JUDICIAL REVIEW

Under Order 55 of C.I 47, Judicial Review has a limitation of six months after which one cannot bring
an action on judicial review. Under the same Order, the types of action for Judicial Review are listed. It
however does not state the grounds for Judicial review.

It has been said under English Law that, a Court will consider the following factors in deciding whether
a particular issue is appropriate or not;
1. Is the decision in question a public law matter thereby subject to judicial review?
2. Has the right to Judicial Review been expressly excluded for example by statute?
3. Has the applicant sufficient interest in the issue? Here the question on locus standi arises.
4. Has the applicant sought permission within three months (under English law) of the occurrence
of the act for the review? (this period is six months in Ghana under Order 55 of C.I. 47.
5. Do specific grounds for Judicial Review exist?
6. Are internal avenues exhausted? This has to do with the Courts not trying to interfere before all
the administrative procedures have been completed.
These are some of the questions the English Courts will consider in considering an issue on Judicial
Review and they apply in the Ghanaian context mutatis mutandis (with the necessary modifications).
In principle, only decisions of administrative bodies passed in their official capacity can be subjected to
Judicial Review. Acts or decisions that fall outside the purview of administrative law do not fall under
Judicial Review. It is not open ended. There is a time limit for JR.

Grounds to Dismiss JR

1. Standing:- One of the first grounds to dismiss a judicial review is the Standing. It assess
whether the applicant has sufficient interest in the matter. Art 1(2) of the Constitution 1992 says
that any other law that is not consistent with the constitution is void. It is further strengthened by
Art 2(1) which allows persons who consider an infringement on the Constitution to bring an
action before the Court for redress. As far as standing is concerned therefore, there are
provisions in the Constitution to that effect. Refer to the case of ADOFO v A-G &
COCOBOD [2005-2006] SCGLR 42 AT PAGE 47 – 48 ( The dictum of Date-Bah JSC).
 Under the English system, one needs to show sufficient interest. Peter Cane has suggested what will
amount to sufficient interest as follows:
i. The first is to examine the case law. The question of sufficient interest is partly a question of
legal principle, i.e. what do earlier cases say about standing, and partly a question of fact to be
decided in the light of the circumstances of the case before the court.
ii. Again, we should look at the relevant statutes. Whether one has sufficient interest may be
determined in the light of the relevant statutory provision.
iii. We should also consider the nature of applicant’s complaint. The nature of the complaint may
patently reveal whether the applicant has or has not sufficient interest.
iv. Also, we consider the seriousness of the alleged wrong.

2. Justiciable:- The next is to demonstrate whether the decision is justiciable. Broadly speaking,
administrative controversies can be classified into justiciable and non-justiciable controversies.
Justiciable Controversy is defined in Black Law dictionary as a controversy in which a present
and fixed claim of right is asserted against one who has interest in contesting. Rights may be
declared upon existing state of fact and not upon state of fact that may or may not arise in the
future.

3. Use of Internal Procedure:- The next issue to consider is the exhaustion of internal procedures.
The Court may not consider Judicial review if all the necessary administrative process have not
been followed. One cannot therefore jump the gun to go to the Courts.

4. Finality Clause:- There is also the issue of the finality clause. The Judicial Review in most
common law jurisdictions are treated as part of the inherent powers of the court. Because the
courts are the ultimate arbiters of the law, it is argued that they have an inherent power to review
any administrative decisions where any of the grounds of review exist. The term “inherent”
means that the source of reviewing power is not in any statute.
So, when Parliament is delegating its law-making powers to a subordinate authority, it can
incorporate a provision in the parent Act, stating that the findings of the subordinate authority
“shall not be questioned” or “shall be final”.

The implication is the intention of the legislature to exclude the right to appeal or to deny any access of
the court to challenge any decisions made under the Act. Authorities suggest that unless otherwise
stated, if there is an expressed statement excluding Judicial review of a decision passed under the Act, it
has to be interpreted restrictively to mean no appeal can be lodged against the decision. In R v
MEDICAL APPEAL TRIBUNAL; EX-PARTE, GILMORE [1957] 1 QB 574, the English Court of
appeal held that, a clause stating that the decision of the Tribunal “shall be final” would not exclude the
court’s jurisdiction to review. Lord Denning stated that, the remedy of Certiorari is never to be taken
away by statute except by the most clear and explicit words and the word “final” only means “without
appeal” and not without recourse to certiorari. Lord Wilberforce said in ANISMINIC CASE:
“What will be the purpose of defining by statute the limit of a tribunal’s power
if by means of a clause inserted in the instance of definition those limits could
safely be passed?”

REMEDIES AND ADMINISTRATIVE DECISIONS

Remedy in this context refers to the varieties of awards or relieves that may be granted by the reviewing
courts following an application for the Judicial review. These remedies for historical reasons are
divided into two. These are PUBLIC LAW REMEDIES and PRIVATE LAW REMEDIES. Included in
the public law remedies are the prerogative writs. The prerogative writs are Certiorari, Mandamus, Quo
Warranto, Habeas Corpus and Prohibition. The private writs are Injunction, Declaration and Damages.
These remedies are not mutually exclusive.
Peter Cane said in respect of remedies:
“Leaving damages aside, these remedies perform four main functions. The mandatory
function of ordering something to be done is performed by Mandamus and Injunction; the
prohibition function of ordering something not to be done is by Prohibition and Injunction. The
execution of depriving a decision of legal effect is performed by Certiorari; and the declaratory
function of declaring a function is performed by a Declaration”.

A. PUBLIC LAW REMEDIES

1. Certiorari
In 1938, England abolished the Administration of Justice (Miscellaneous Provision) Act, 1938 and
established the prerogative Order. Ghana however still uses the writs because it inherited it in 1876
from the common law. Read REP. v HIGH COURT DENU; EX-PARTE, KUMARLEY [2003-
2004] SCGLR 719 (obiter dicta of Twum J). In REP. v FAST TRACK HIGH COURT ACCRA;
EX-PARTE, CHRAJ; ANANE INTERESTED PARTY (2003-2004) SCGLR (Comments of Date-
Bah that the comments by Twum was an orbiter).
The writ of certiorari is a procedure through which the reviewing court investigates the legality of the
administrative body’s decision which is being complained of and would quash or nullify the decision if
found to be ultra vires. The writ instructs the person or body whose decision is challenged to deliver the
record of the decision to the office or the Queen’s Bench Division to be quashed or to be deprived of
legal effect.

In Ghana, this is exercised by the High Courts and under Section 16 of the Courts Act, 1993, the
High Court has supervisory jurisdiction over all lower courts and all lower adjudicatory bodies.

It is to be noted that the award of the prerogative writs are discretionary and not of right. This is
established in the case of REP. v AGBOKA VI; EX-PARTE, DEI III [1984-86] 1 GLR 581.

Certiorari can only be issued where that inferior body was exercising judicial or quasal judicial power.
It will not lie against that person or body if it is exercising purely administrative power.
Where a more appropriate remedy is available, certiorari may not be granted. If the granting will achieve
no real or just results, the courts may not grant. There must be something called a determination which
affect the right of the applicant for certiorari to be granted. This means that there must be an issue in
dispute upon which an issue of Judicial Review could be based.

2. Prohibition
As the name implies, Prohibition performs the function of ordering a body amenable to it to
refrain from illegal action. It is a writ issued by a higher court to prevent an inferior tribunal or
administrative authority from exceeding or from continuing to exceed its authority or from
behaving in a ultra vires manner while dealing with matters affecting the interest of the
complainant. The contrast between certiorari and prohibition is that, prohibition is a preventive
remedy rather than a corrective remedy. In other words, certiorari has a retrospective effect
nullifying an already existing ultra vires or illegal act whilst prohibition is prospective. It stops
the continuity of an ongoing course of action or restrains the execution of an already made
decision before hand. An example is in the case of REPUBLIC v ANGLO TRADITIONAL
COUNCIL; EX-PARTE, HOR II [1979] GLR 234 (CA).
3. Mandamus
The writ of mandamus is designed to enforce the performance of governmental bodies of their
legal or quasal legal duties.
Even though technically, these distinctions are identified the distinction is practically not a clear
cut.
Mandamus may force a decision maker to take relevant considerations into account as evidence
in the case of R. v BRIMINGHAM LICENSING PLANNING COMMITTEE; EX-PARTE,
KENNEDY [1972] 2 QB 140.
It can also be issued to prevent the misuse of power conferred on the authority as happened in
PADFIELD v MINISTER OF AGRIC, FISHERIES AND FOOD [1968] AC 997.
Sometimes, mandamus and certiorari may be issued together. For instance where there is a
breach of natural justice. Refer to the case of THE REP. v CHIEF ACCOUNTANT,
DISTRICT TREASURY, KUMASI; EX-PARTE, BADU [1971] 2 GLR 285.

4. Quo Warranto
The English Law has abolished the writ and replaced it with injunction. However, it still stands
in the Ghanaian legal system (High Court Civil Procedure Order 55).
Originally, it was a writ that was issued to inquire into the authority of franchise claimed by a
subject as was in the case of REP v SEGOE II, EX-PARTE; BAFFO V [1979] GLR 378.
The difference between quo warranto and mandamus is that, whereas quo warranto questions the
election into a public office, mandamus is used to compel an election into a vacant public office.

5. Habeas Corpus
It is used to obtain the release of a person unlawfully detained. The person illegally detained
applies to the court requesting an order for his practically released. The Habeas Corpus Act,
1964 has codified the common law principles on the application and procedures for issuance of
habeas corpus. This is under Order 56 of C.I.47 and is practically demonstrated in the case of
THE REP. v COMMANDING OFFICER OF 3BN, EX-PARTE; KWAKU & ANNOR.
[1975] 1 GLR 59. It was held in the above case that the common law principles have been
codified.
However, in REP, v COMMANDING OFFICER OF 3BN, EX-PARTE, ZAMBRAMA
[1978], it was held that the situation as raised in the case of KWAKU & ANNOR. has not arisen.
It was therefore not accepted that the common law principles have been codified. It was also
established in THE REPUBLIC v DIRECTOR OF PRISONS & OTHERS, EX-PARTE
 ODURO that, the common law status has been overtaken by statutory provisions. It was held
that the applicant was not qualified to institute the action under the statutory provisions as he did
not have the authority of the person on whose behalf he applied for the writ.

B. PRIVATE LAW REMEDIES

These remedies are tagged private because they were originally used in private law but have now
become tools in public law.

1. Injunction
Injunction is an equitable remedy. It is discretionary, granted at the discretion of the court.
In public law, injunction turn to be negative in nature because mandamus will be resorted to, to
compel an authority to carry out its duty. In both public and private realm, injunction can be
given as a final or interim relief. In the interim, it is referred
to as the interlocutory injunction. It is used to maintain the status quo as a provisional remedy
pending the outcome of the substantive matter. Normally, it is granted where there is eminent
danger of irreparable injury or danger which may not be repaired by the award of damages.

2. Declaration
When a person asks for declaration, he is asking the court to make a ruling on what the law is on
a particular issue or matter.
The scope of declaration is wider than the prerogative writ. A declaratory judgement usually
declares what the legal rights of the parties to the action are. It declares the law without coercive
effect. A declaration only spells out the rights of the parties.

3. Damages
Damages are sometimes used interchangeably with compensation.
In the public law realm, the purpose of awarding damages is to repair the pecuniary or non-
pecuniary damages suffered as a result of administrative wrong.
Damages will not be awarded merely because one has suffered some comparable injury as a
result of an administrative wrong.
In order to be compensated, one must demonstrate that, apart from the wrong done by the public
authority; one’s private rights have been infringed upon. Therefore, in order to claim damages, it
is necessary to proof that a private law wrong has been done to the person.
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END OF LECTURE