General principles of law, norms etc. taken for granted and assumed by the courts to have been taken into account by the drafter(s) of a statute and upon which the courts will therefore find a prima facie approach to the construction of a statute or part thereof, apply although there is no question of linguistic ambiguity, Presumptions are however distinguishable from the other aids (general aids) on account of their status relating to the burden of proof.
General Purpose Presumptions:
Presumptions that Reflect Protection of Human Rights: law should always protect the individual’s fundamental human rights from abuse, per Art 30 by reason of sickness or any other cause is unable to give his /her consent, no other person including his /her spouse /family members, church members can prevent the person from receiving medical treatment on the basis of religious beliefs or faith prohibitions.
Presumption in Favour of Ethical Values and Behaviour: Public offices are presumed to act in a manner that their personal interests do not conflict with the functions of their office, prohibited from engaging in corrupt practices, per Abdulai v The Rep military officer who had sexual intercourse with the daughter of his subordinate officer convicted, Armah and others v Augi I and others lawyer who had acted previously for a family by writing a letter to trespass to inform them of his client’s interest in the land cannot act against the said family in a subsequent suit involving the same land.
Presumptions Reflecting Rule of Law: laws of the country are superior or supreme to all persons, about rule of law and not rule of men, per Asare v AG noncompliance with the prescribed procedures and processes stipulated in the Constitution by parliament would render Section 16(2) of Act 591 void.
Specific presumptions in interpretation of non-statutory documents
Presumption of consistent expression or meaning: same words in enactment bear same meaning, rebuttable even when words are defined in definition section per CL, Okwan-supra, Re Akoto case failed to construe the word ‘should’ in article 13 of the 1960 Constitution as ‘shall’. It would have followed that ‘should’ and ‘shall’ in certain circumstances may have the same meaning even though they are used in different parts of the same constitution.
Presumption against redundant words or surplusage (presumption against tautology): Parliament or contracting parties would not use words which have no practical effect, else a clear case of mistake on the part of the drafter.
Presumption relating to alterations and erasures in non-statutory documents: all interlineations, alterations and erasures should be signed by the parties as their joint deed, cannot be used against the party disputing its authenticity unless there is evidence to the contrary that the alterations or the erasures were agreed by the parties that it should form part of the contract
Presumptions against impossibility (commercial documents): Where it becomes apparent that a contract cannot be performed due to certain external factors such as impossibility and frustration, the contract may be discharged, per Trade and Transport Inc. v Lino Ltd contract could not be performed by reason of the doctrine of frustration and the contract was deemed to have been mutually discharged.
Presumption against knowledge of contents of documents executed by: Illiterates; Blind or Illiterate Testators’
Specific presumptions relating to interpretation of statutes
Presumption of Knowledge and competence of law maker: rebuttable, per Adjei-Ampofo v AG and NHC President SC struck out Section 63(d) of the Chieftaincy Act, Act 759 which made it a criminal offence for a person to deliberately refuse to honour a call from chief to attend an issue
Presumption that the law maker does not make a mistake: rebuttable, per Lord Denning in Seaford Estates Ltd v Asher, Acts of Parliament are not made with divine prescience and perfect clarity and it behoves on judges to correct the errors made by the law makers.
Presumption against tautology; that the lawmaker does not speak in vain, ut res magis valeat quam pereat becomes an important aid under this presumption. Where the text is susceptible to two meanings and one would render the text void, illegal, nonsense, meaningless or futile, it is the duty of the court to give the alternative meaning that would validate the text, rebuttable
Presumption of coherence or against internal conflict or inconsistencies: Interpretation to avoid conflict per Tuffour v AG construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say “inconsistent” results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to.
The generalia speciali bus non derogant rule (The implied Rule): The presumption is that specific laws or provisions override general laws or general provisions on the same subject matter:
In Re Parliamentary Election for Wulensi Constituency, Zakaria v Nyimakan HC for an election petition under Article 99(1) should supersede the general appellate jurisdiction of the SC under Article 131(1)(a), general provisions may be properly construed to override specific provisions, e.g. where the general law was passed after the specific provision, implied repeal rule-statutes which are said to have repealed them do not expressly state so, special legislation is deemed to have impliedly repealed a general provision or statute where the two Acts or provisions conflict irreconcilably, rebuttable, position of a word or text in an enactment cannot determined which one is to override the other, conflict between a constitution and any other enactment would be deemed to have been amended by the constitution, a conflict between a substantive enactment and a subsidiary legislation would be resolved in favour of the substantive legislation, common law principle and a subsidiary legislation would be resolved in favour of subsidiary legislation, per Kpobi Tetteh Tsuru III v AG Dotse JSC Constitution shall be the basic law, SC Rules, 1996 (CI 16) which is what is known generally as subsidiary legislation, is the third trier on the sources of law in GH, subsidiary legislation is therefore subordinate to constitutional provisions and substantive Acts of Parliament
Presumption against interference with vested rights: civil matters, rights accrued or acquired under a substantive enactment shall not be interfered with. Art 107 Parliament shall have no power to enact retroactive legislation to affect any right acquired under a repealed or amended enactment, per Rep v Commissioner for Chieftaincy Affairs; Ex parte Adja Wao II section 11 of the Interpretation Act, where an enactment confers power to grant a licence, authorisation or permit, the power includes power to revoke, suspend or amend the licence, authorization or permit, right of the applicant as a chief a constitutional right; and that such a constitutional right could not be taken away by an alleged implied power in section 11 of the Interpretation Act
Presumption against unclear changes in existing law: where the existing law and the new law conflict but could be reconciled, that existing law is construed with any modifications, adaptations and exceptions to bring it in conformity with the new law, where the existing law is a special legislation and the new one is a general one and there is conflict which is irreconcilable, the special legislation overrides the general provisions
Presumption against unclear changes in common law: rebuttable presumption that Parliament does not intend to effect an alteration or a change in the existing common law unless such a change is stated in the enactment in question either expressly or by necessary implication. S5 of the Contracts Act third party S10 no promise shall be invalid by reason only that consideration for it is supplied by some other person, conflict between an enactment and the common law, the enactment prevails over common law, per Ahenkorah v Ofe taking away the common law jurisdiction of the HC to issue supervisory orders in respect of chieftaincy matters. That contention was rejected the court holding that there was nothing in the language of section 88 evincing a clear legislative intention that in no circumstances could the HC intervene by the issue of supervisory powers over the inferior bodies vested with exclusive jurisdiction to determine chieftaincy matters.
Presumption against retrospective law: all substantive enactments are prospective unless the statute specifically states that it should be retroactive. All laws on procedure, evidence, validation declaratory and consolidation are presumed to be retroactive unless the statute provides otherwise
Presumption against creating or enlarging existing jurisdiction
Presumption against ouster clauses: no person or authority should be permitted to take a final decision in a matter without permitting the courts to pronounce on the matter, per Boyefio v NTHC Properties Ltd where a contract provides for an internal mechanisms or domestic tribunal as a first point of call in dispute resolution, an aggrieved party cannot sidestep the domestic tribunal except where he or she may offer substantial reason for the sidestepping, e.g. breach of NJ, interpretation, oust the jurisdiction of the HC, felony
Presumption against extra-territorial extent or application of legislation: Laws are made to regulate the conduct of the people in a country and not to govern people in other countries, presumes that law of a foreign country to be as the law of GH, rebuttable, s40 of the Act 323
Presumption of compliance with international law:
Presumption against impairing obligations or permitting advantage from one’s own wrong: “nullus commodum capere potest de injuria sua propria.” Per Obeng and others v Assemblies of God Church, GH SC found that the 1st Defendant fraudulently changed the title deeds of the plot on which the church is situated and could not benefit form his own fraud, rebuttable
Presumption against evasion: an act not been criminalized by law but may thwart the efforts of a statute to achieve its object, e.g. it is a criminal offence to evade payment of tax but it is permissible to avoid it.
Presumption that ancillary rules of law apply
Presumption that rules of constitutional law apply: constitutional law applies in all cases, per Aboagye v GCB Ltd constitutional rights are binding on all adjudication and administrative bodies as well as courts and tribunals, rebuttable, constitutional law principle which has not been incorporated in the constitution would not be treated as binding law and statute or common law may override it.
Presumption that public law decision-making rules apply: include rule making, and adjudication of government agency action, rule of law, transparency, accountability and probity, judicious and equal access to state resources, liberty and freedom
Presumption that rules of equity apply
Presumption that ancillary legal maxim applies: person should be heard in any matter affecting his or her right before a decision is rendered, e.g. Act of God, Reliance on illegality (allegans suam turpitudinem non est audiendus)- a person alleging his own wrong is not to be heard, cannot use his own wrong as a defence in law, hear both sides, Judge in own cause, De minimis principle, Impossibility (Lex non cogit ad impossibilia)-law does not compel to impossible ends.
Presumption of correctness (Omnia praesamuntur rite et solemniter essa acta): S37 of Act 323 official duty has been regularly performed applies to official acts and not private matters, e.g. volenti principle, rebuttable, per Mate Kole and Azago I v EC & AG (No. 2) even though the original legislative instrument which was valid did not have commencement, it was presumed to have taken effect after the twenty-one parliamentary sitting days