Sources of Gh law, Art 11, NRCD; SMCD; AFRCD; ACTS now Acts of Parliament by virtue of the Laws of GH revised edition Act, 1998, once there has been an amendment and consolidation, the amendment is not cited and mentioned, once it has been revised and consolidated, same (amendment) ceases to exist, general rule is that statutes are generally prospective except the ones which are declaratory or related to matters of procedure or evidence.
However, where a statute specifically states that it should be either prospective or retrospective, effect should be given to it
CL statutes which were merely declaratory or related to matters of evidence or procedure were to operate retroactively except where the statute expressly makes it prospective. If an enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only, statute which takes away or impairs vested rights, acquired under existing law or creates a new obligation or imposes a new duty, presumed out of respect to the Legislature to be intended not to have a retrospective operation, per Anin JA in Rep v Judicial Secretary, Ex Parte Torto whenever the intention is clear that the Act should have a retrospective operation, it must unquestionably be so construed even though the consequences may appear unjust and hard: per West v Gwynnet no statute shall be construed so as to have a retrospective operation, unless such a construction appears very clearly in terms of the Act, or arises by necessary and distinct implication.’
Per Fenuku v John-Teye general rule was that statues, other than those which were merely declaratory, or which related only to matters of procedure or of evidence, were prima facie prospective; and retrospective effect was not to be given to them unless by express words or necessary implication, it appeared that, that was the intention of the legislature.
Courts would regard as retrospective any statute which operated on cases or facts coming into existence before its commencement in the sense that it affected, no one has a vested right in procedure. Where the status or characteristic of a statute is certain or can be ascertained, a subsequent legislation affecting the same matters will not raise the matters afresh. The subsequent legislation will not have the effect of resuscitating the provisions of an existing law, and the existing law cannot have a retrospective effect. Arts of Constitution which deal with supervisory jurisdiction and judicial review including such as articles 131-132 and 161 are not procedural but substantive law and are construed prospectively per Rep v HC, Kumasi; ex parte Abubakari (No. 1).
Two types of repeals: 1-Express repeal, the statute specifically repeals the law 2-Implied repeal. there may be a conflict between two provisions. In such a case, one may be said to have purportedly repealed the other.
Per >Zakaria-supra v NyimakanBonney & Ors (No. 1) v GH Ports and Harbours Authority (No 1) whenever there is a general enactment in a statute which if taken in its most comprehensive sense would override a particular enactment in the same statute, the particular enactment must be operative and the general enactment must be taken to affect only the parts of the statute to which it may properly apply”.
Conflict between a statute and a subsidiary legislation, the statute prevails (in the hierarchy of laws, statute is higher than a subsidiary legislation) existing law which was in conflict with any provision of the Constitution is rendered void to inconsistency’s extent.
Per Adofo and Others v Attorney-General and Another SC to the extent that section 5 of PNDCL 125, a mere statute, purported to oust the general unlimited jurisdiction of the HC under article 140(1) of the Constitution, 1992, it was in conflict with that article and accordingly, section 5 of PNDCL 125 was unconstitutional, and null and void, per Kowus Motors v Check Point GH Ltd and Others, per Rep v HC Accra; Ex Parte PPE and Juric trite known rule of construction of statutes is that where two Acts conflict irreconcilably, the later one is deemed to have repealed or amended the earlier one.” Special provisions override the general provisions on the same subject-matter and the special legislation is deemed to have amended the general one.
Accrued and Vested Rights: It must be emphasised that accrued rights under a substantive law are not affected by the subsequent repeal of the law unless clear intention shown per Industrial and Commercial Workers’ Union of the Trades Union Congress v Bank of GH, per NPP v AG (CIBA) in the situations where enactments passed by parliament after the Constitution of GH, 1992 had come into effect were found to be inconsistent with a provision in the Constitution, they were held as void.
Cessation of Operation of Enactment: S32 of Act 792 “Wherein an enactment it is declared that the whole or a part of any other enactment is to cease to have effect, that other enactment shall be deemed to have been repealed to the extent
Repeals and Revocations: S33 of Act 792 repeal or revocation of an enactment which provides for a textual insertion in any other enactment or amends any other enactment by operation of law shall not affect the insertion or amendment and the text of the altered enactment shall continue to stand as altered despite the repeal or revocation.
Effect of Repeal or revocation: S34 of Act 792 repeal shall not, revive an enactment or a thing not in force or existing the time at which the repeal or revocation takes effect; affect the previous operation of the enactment that is repealed; affect a right, a privilege, an obligation or a liability acquired, accrued or incurred under the enactment that is repealed or revoked; affect an offence committed against the enactment that is repealed or revoked; affect an investigation, a legal proceeding or a remedy in respect of a right, a privilege; investigation, legal proceedings or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.
Per Rep v Police Council, ex parte Kwagyire. repeal of an enactment did not affect legal proceedings commenced before the repeal and continued thereafter, per In re Bonney; Bonney v Bonney Section 8(1)(b)(c) and (e) of CA 4, any liabilities which attach to the said companies would be transferred to the new authority created by PNDCL 160, i.e. GH Ports and Harbours Authority in accordance with Section 8 of CA 4, the fact that PNDCL 160, 556 and 7 made no mention of transfer of liabilities does not affect the operation of CA 4to all legislations in GH including PNDCL 160.
Unless there is a clear intention of the legislature expressed to the contrary, a new establishment which takes over an old one shall assume all its acquired, incurred and vested rights as well as liabilities and privileges of the old enactment. Where the act was incomplete or partially done under the repealed statute, no right would be said to have accrued under the repealed legislation. Per British Airways and Another v AG person could not be investigated, tried or convicted under a repealed legislation unless the amending enactment saves the provision, PNDCL 150 under which the plaintiffs were being tried, had been repealed and was not saved by the amending enactment, in view of article 19(11) of the Constitution, 1992, section 8 of CA 4 is inapplicable to the criminal cases pending against het plaintiffs. It is unconstitutional today to convict or punish any person unless a written n law defines the offence or provides sanctions for same as required under article 19(11) of the Constitution, 1992
Any investigation, legal proceedings or remedy in respect of the Act should be in accordance with the repealed law. Any penalty or punishment for a future obligation and/or liability should also be in accordance with the repealed legislation, any substantive right acquired under the repealed legislation should be addressed under it, per Francis Kojo Fiebor v The Rep committed the offence of robbery and was tried and convicted, the Courts were empowered by the Act to impose life sentence. At the time of his appeal before the CA, the Act under which the appellant was convicted had been amended and authorized the Court to pass a lesser term of imprisonment, appellant’s right accrued under the repealed law and not Act 646 and cannot therefore take benefit under it, if he had not been sentenced but was convicted, he could have benefited from the lesser sentence
The 1992 Constitution and Retrospective Legislation Retroactivity: Art 107 prohibits Parliament from enacting laws to alter a judgment of any Court or to make any laws which will operate retroactively exception is in the case of a law enacted under Articles 178-182 of the Constitution, (Declaratory law is a law which only makes a declaration (only states what the position is) Law of evidence is set of rules which govern adjudication. The reason for the exception is because the rules do not affect rights.
Procedural law generally is that nobody has a vested right in procedure, any statute which imposes a limitation or adversely affects the personal rights and liberties of any person and or imposes a burden, obligation or liability on any person cannot be retroactive else it would be unconstitutional. Any statute which would operate retrospectively to affect accrued rights, acquired rights, vested rights or incurred or acquired rights and liberties of any person would be in conflict with art107, per Ex Parte Torto-supra all laws are supposed to be prospective except where parliament orders or directs otherwise
It should be noted that in respect of civil matters, the consequences of a repeal in section 8 of CA 4 still applies.
Criminal offences and sentences are prospective: In criminal sentencing, the law is settled that the sentence should be based on the law at the time the offence was committed except in cases where the substituted enactment reduces or mitigates the sentence or penalty or forfeiture. Art19(6) where an act or omission did not constitute a criminal offence at the time it was done, the person cannot be tried for the offence if the act or the omission is subsequently criminalized, per Bosso v The Rep the period spent in lawful custody before sentence should be taken into consideration, per Rep v Francis Ike taking into consideration the period spent by the accused person in lawful custody before the completion of his or her trial does not mean that het sentence should operate retroactive from the date he or she was remanded, imprisonment shall commence on and include the whole of the day on which it is pronounced.
Legal Effects of Amendment: amendment shall not affect a right or liability or obligation acquired before the amendment came into force, three types 1-Textual amendments: principal statute is altered by adding or inserting or striking out; or by striking out and inserting or substituting; or deleting particular words, example of amendment by deletion is the amendment to Section 120 of the Evidence Act, Act 323.
Under the principal enactment neither a policeman nor a member of the Armed Forces could act as an independent witness, textual amendments are often contained in the schedules to the amending enactment strong>2-Indirect Express amendment or Referential Amendment : the amending enactment states that the principal enactment is to be read differently from what it actually says, principal and the amending enactments are read and construed together to ascertain the true position of the law, per Perry Herzfeld et al amending Act provides that the principal Act is to be read as if it said something different from what it actually says or provides a “gloss” on the principal Act, amending enactment cannot be used in isolation and it is enacted to give proper directions as to how the principal enactment is to be construed 3-Henry VIII Powers principal enactment confers power on a body exercising delegated legislation to amend the enactment. The amendment made by the delegated body has the same legal effect as amendment by the legislature.