Ouster clause may be defined as a provision embodied in a written contractual document or in a statute or a national constitution which seeks to oust the normal jurisdiction of the courts.
Judicial power of GH is vested in the judiciary Art 125(3), final power to adjudicate is exclusively vested in the judiciary. The courts are the final arbiters in all matters including civil, criminal and constitutional matters Art 125(5), confers jurisdiction in all matters on the judiciary, judiciary consists of the superior courts and the lower courts.
The lower courts are creatures of statute. Section 39 of the Courts Act, the judicial committees of the various traditional councils are mentioned as forming part of the lower courts, they merely exercise judicial functions and do not possess judicial power. They cannot therefore enforce their own judgments, Judicial Committee of the Traditional Councils, Regional House of Chiefs, NHC and with the leave of the NHC of Chiefs or where it is refused, the leave of the SC to the SC, administrative bodies such as the Labour Commission, Commission on Human Rights and Administrative Justice (CHRAJ), Disciplinary Committee of the General Legal Council and the Disciplinary Committee of the Medical and Dental Board exercise some sort of judicial responsibilities or functions but all their decisions are appealable to either the HC or the COA depending on the nature of that administrative body.
Most organizations use internal mechanisms to resolve their dispute but cannot oust the jurisdiction of the court. Their decisions shall not be final as they do not exercise judicial power which is exclusively vested in the judiciary.
Per Adofo and others v AG a statute which provides for a total ouster of the jurisdiction of the courts in relation to rights which would otherwise be justiciable is void, it is permissible in an agreement to incorporate an exclusionary clause to refer disputes to a domestic tribunal before recourse to courts. Per Lawlor v Union of Post Office Workers Trade union rules clearly cannot oust the jurisdiction of the Courts. Contracts may provide that recourse to domestic tribunals shall be exhausted before there is recourse to the courts, and the courts may recognize and give effect to that contract; but that does not oust its jurisdiction.
It is against public policy to oust the jurisdiction of the court even though its jurisdiction could be deferred. Per Baker v Jones although parties to contract may, in general, make any contract they like, there are certain limitations imposed by public policy, and one of those limitations may be that parties cannot, by contract oust the ordinary courts from their jurisdiction, courts’ jurisdiction is postponed in certain situations but the courts cannot be excluded entirely from taking a final decision on a matter neither can the powers and authority of a court which exercises supervisory jurisdiction over a lower adjudicating body be ousted, domestic tribunal cannot completely oust the jurisdiction of the court as the final arbiter in any mater.
Any clause in an agreement which seeks to make a domestic tribunal the final arbiter on a question of law is a nullity. Per Lee v Showmen’s Guild of Great Britain Lord Denning well-known principles that parties cannot by contract oust the ordinary courts of their jurisdiction…They can, indeed, make the tribunal the final arbiter of question of fact but they cannot make it the final arbiter on question of law.
Per Essilfie v Tetteh even though exclusionary clauses were part of the parties’ contract, they were nevertheless subject to the control of the courts because the right of an individual to resort to het law courts for the adjudication of his dispute was so fundamental in our social structure and essential in ensuring peace and stability that, public policy would not permit complete ouster of the jurisdiction of the courts. However, where the exclusionary clause provided for an initial recourse to the domestic tribunal, especially in dispute involving issues of fact before recourse to the ordinary courts, the court would generally recognise and give effect to it.
However, even in disputes involving issues of fact whenever there was a breach of or a threatened breach of the principles of natural justice by the domestic tribunal the court would assume jurisdiction over the matter. Furthermore, the court was the final arbiter on questions of law and any clause to the contrary was therefore invalid. However, even though the courts were not bound by any express provision in a contract that a plaintiff had to exhaust his domestic remedies before resorting to the court, the plaintiff would have to show cause why the court should interfere with the contractual position, where a case involves the interpretation of various sections of the contractual documents, the courts were better suited and not the domestic tribunal.
Types of Ouster Clauses: three 1-Ouster clauses in private documents agreements non-statutory ouster clauses 2-Statutory ouster clauses 3-Constitutional ouster clauses.
Clauses in documents: initial recourse to the domestic tribunal and postpone the invocation of the jurisdiction of the courts, form of arbitration, mediation, customary arbitration, negotiated settlement and domestic tribunals. The courts give effect to such provision provided it does not completely oust the jurisdiction of the court or it does not infringe the principles of natural justice, offend public policy or involve interpretation of some sections or clauses in the agreement, S1 of ADR Act, 2010 (Act 798) prohibits the application of the act to matters of national or public interest; environment, enforcement and interpretation of the Constitution; or matter that by law cannot be settled by an alternative dispute resolution.
Whether or not parties can by themselves oust the jurisdiction of the court in relation to questions of fact, Lee v Showmen’s Guild of Great Britain that P’s claim for interim injunction to restrain the holding of elections for president of the union would be granted even though the plaintiff had not exhausted or embarked on the domestic rules afforded by the rules of the union since those rules were not binding on the court so as to oust its jurisdiction to grant such relief as it considered fit. This position is however not accurate since the Constitution has imposed final judicial power in the judiciary.
This includes both questions of law and questions of fact. Where parties by themselves agree to use administrative tribunals or domestic tribunals to resolve their conflict or dispute, the they are mandated to exhaust the remedy. There are few exceptions to this general rule: breach of the rules of natural justice, offend public policy, falls outside the arbitration clause, clear evidence by the parties that they will not make use of the internal mechanism, document does not provide for the forum where the matter should be resolved, law says it cannot be settled.
In re Timber and Transport Kumasi Krusevac Co Ltd; Zastva v Bonsu an exclusionary clause in the agreement provided that it should remain irrevocable for ten years, and that no member or director of the newly named company could present a petition or make an application to the court seeking the winding up or the liquidation of the company or in any way seek to attempt to bring the existence of the company to an end, Amua-Sekyi J it was not the court which had decreed that the petitioners should not come before the court until after the expiration of ten years; the parties themselves had so agreed, COA nevertheless, allowed d the petitioner’s’ appeal and remitted the petition to the HC for hearing on the grounds that it appeared possible that there had been a fundamental breach of the agreement by the respondents who had allegedly shown by their conduct that they no longer regarded the contract as being, and if that were the case, the petitioners would be justified in treating the agreement as at an end.
Ouster clauses in statutes: expressly or by necessary implication prohibit or restrain the ordinary courts from dealing with certain matters or from exercising any supervisory or review power over other lower bodies or tribunals.
1-Partial ouster clause, an ouster clause which simply confers exclusive jurisdiction in specific matters on an inferior body or tribunal etc. but does not take away the jurisdiction of the ordinary courts to review decisions of these bodies by issue of prerogative orders, might not give the inferior body or tribunal exclusive jurisdiction in the matter yet might go on to completely bar the ordinary superior courts from reviewing decisions or judgments of this lower body or tribunal
2-Complete ouster clauses, confer exclusive jurisdiction on an inferior body in respect of a particular matter and in addition purports to completely bar the ordinary superior courts from reviewing the decision or judgment in any way, this presumption is to the effect that a statute should not be construed as taking away the jurisdiction of the ordinary court particularly the superior courts, in the absence of clear and unambiguous language to that effect. Per >Anisnimic Case; Ex Parte Ofosu ArmahMosi v Bagyina.
Some enactments set up internal tribunals in institutions to have the first bite at disputes arising within those institutions before recourse is made to the courts, internal tribunals include the Labour Commission, Disciplinary Committee of the GLC and Disciplinary Committee of het Medical and Dental Board, per Boyefio v NTHC Properties Ltd where a person ignores the internal tribunal and comes to court in respect of any such internal disputes, the courts would invariably order him to go back to the internal tribunal if that person has no substantial reason for sidestepping the internal tribunal per Kraletse Panin an appeal is a creature by statute so failure to avail yourself within the time limited and the procedure prescribed by the statute barres you from bringing the action, per Tsikata v Rep in GH a criminal appeal from the HC to the CA is not a creature of statute but a creature of the constitution depending on the body which created it.
Article 137 (2) All these administrative bodies which exercise quasi-judicial functions are amenable to the supervisory jurisdiction of the HC or the SC or both depending on the nature of that administrative body. Where both the HC and the SC have concurrent supervisory jurisdiction over lower adjudicating bodies and the lower court, paragraph 6 of the Practice Direction [1981] GLR 1 provides that the jurisdiction of the HC shall first be invoked.
HC has jurisdiction in all matters except those specifically taken out of its jurisdiction such as causes or matters affecting chieftaincy.
The decisions of the judicial committee of the NHC are appealable to the SC. The decisions of the other administrative bodies such as the Disciplinary Committee of the GLC and the Medical and Dental Board are appealable to the COA.
Ouster clauses in national constitutions: 1992 Constitution: indemnity or ouster clauses in section 34(3) -(5) The indemnity clauses, Transitional provisions are generally provisions that sees to the transfer of power from one regime to another. The second essence of transitional provisions is to provide indemnity for some people.
Art 299 transitional provisions shall have effect notwithstanding anything to the contrary in this Constitution. Indemnity Clause take away the power or jurisdiction of all courts or tribunals to entertain any proceedings or grant any order in respect of any matter relating to the unconstitutional and violent overthrow of the Governments of GH by the 1966, 1972, 1979, and the 1981 coup d’états.
What is the extent or ambit of the ouster clause or indemnity accorded by S 34(3) -(5)? S 34(3) seeks to prevent the court form questioning in any proceedings whatsoever the executive, legislative or judicial action taken or purported to have been taken either by the PNDC and AFRC or by any person appointed by those regimes even if, as stated in section 34(4), the action “was not taken in accordance with any procedure prescribed by law.”
Per Kwakye v AG former Inspector-General of Police, sued in the SC for a declaration that he was never tried and convicted by the special court set up under het Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3) and that his purported imprisonment of 25 years by the special court was an infringement of his fundamental human rights under the 1979 Constitution and therefore void, that even though there was no proof of judicial action, i.e. an action satisfying the requirements of the law both procedurally and substantively, there was proof of a purported judicial action taken, i.e. an action which looked like or was intended to be or had the outward appearance of a judicial action, indemnity clause, to the effect that the purported judicial action would not be questioned even if not taken “in accordance with any procedure prescribed by law.”
Archer JSC true meaning of section 15(2) whenever the court is satisfied that the AFRC took or purported to take an executive, legislative or judicial action, then that court shall not question the validity, the correctness, the fairness or the justice of that decision or action, minority, particularly Taylor JSC, took the view that the need for calling of evidence was “not just a procedural requirement, it was a substantive requirement.”
He held that in the absence of evidence orally or by affidavit, there could be no trial or appearance of a trial or a purported trial, per NPP v AG (the 31st December case) Amua-Sekyi JSC criticized the SC majority decision in Kwakye as wrongly decided for its reliance on the ouster clause in section 15(2) of the 1979 transitional provisions, Amua-Sekyi JSC if our predecessors in this court in the Kwakye case had confirmed section 15(2) of the transitional provisions of the 1979 Constitution to the indemnity granted by section 15(1) (the same as section 34(2) of the 1992 transitional provisions) as they should, they would have seen that they had jurisdiction to grant the relief sought by Kwakye.”
His lordship therefore rejected the defence contention in the 31st December Case that the SC had not jurisdiction to determine the plaintiff’s claim. His lordship so held on the grounds, inter alia, that section 34(3) did not apply to the facts of the case before the court.