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COURTS ACT

      

ACT 459 ( 1993)

        

 

PART III - COMMON LAW AND CUSTOMARY LAW

 

54. (1)  Subject to this Act and any other enactment, a court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law:

Rule 1. An issue arising out of a transaction shall be determined  according to the system of law intended by the parties to the transaction to govern the issue or the system of law which the parties may, from the nature or form of the transaction be taken to have intended to govern the issue.

 

Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person's estate shall be the personal law of that person,

Rule 3. In the absence of any intention to the contrary, the law applicable to an issue as to title between persons who trace their claims from one person or group of persons or from different persons all having the same personal law, shall be the personal law of that person or those persons.

Rule 4. In applying Rules 2 and 3 to disputes relating to titles to land, due regard shall be had to any overriding provisions of the law of the place in which the land is situated.

Rule 5. Subject to Rules I to 4,the law applicable to any issue arising between two or more persons shall, where they are subject to the same personal law, be that law; and where they are not subject to the same personal law, the court shall apply the relevant rules of their different systems of personal law to achieve a result that conforms with natural justice, equity and good conscience.

Rule 6. In determining an issue to which the preceding Rules do not apply, the court shall apply such principles of the common law, or customary law, or both, as will do substantial justice between the parties, having regard to equity and good conscience.

Rule 7. Subject to any directions that the Supreme Court may give in exercise of its powers under article 132 of the Constitution, in the determination of any issue arising from the common law or customary law, the court may adopt, develop and apply such remedies from any system of law (whether Ghanaian or non Ghanaian) as appear to the court to be efficacious and to meet the requirements of justice, equity and good conscience.

            (2)          Subject to this Act and any other enactment, the rules of law and evidence (including the rules of private international law) that have before the coming into force of this Act been applicable in proceedings in Ghana shall continue to apply, without prejudice to any development of the

rules   which may occur.

 

55.     (1) Any question as to existence or content of a rule of customary law is a question of law for the court and not a question of fact.

(2) If there is doubt as to the existence or content of a rule of

customary law relevant in any proceedings before a court, the court may adjourn the proceedings to enable an inquiry to be made under subsection (3)of this section after the court has considered submissions made by or; on behalf of the parties and after the court has considered reported cases, textbooks and other sources that may be appropriate to the proceedings.

(3) The inquiry shall be held as part of the proceedings in such manner as the court considers expedient, and the provisions of this Act relating to the attendance and testimony of witnesses shall apply with such modifications as may appear to the court to be necessary.

(4)          The decision as to the persons who are to be heard at the inquiry shall be one for the court, after hearing the submissions on it made by or on behalf of the parties.

(5)          The court may request a House of Chiefs, Divisional or Traditional Council or other body with knowledge of the customary law in question to state its opinion which may be laid before the inquiry in written form.

 

PART IV - EXERCISE OF JURISDICTION, EVIDENCE AND RULES OF COURT

 

56,(l) Subject to this section, the Jurisdiction of the courts of Ghana in criminal matters is exercisable only in respect of an offence committed within the territory of Ghana including its territorial waters and air space and in respect of offences committed on any ship or aircraft registered or licensed in Ghana.

(2) When an act which if done within the jurisdiction of a court, would be a criminal offence, is done partly within and partly outside the jurisdiction, every person who within or outside the jurisdiction does or abets any part of the act may be tried and punished as if the act had been done wholly within the jurisdiction.

(3) A citizen of Ghana who -

(a)      while employed in the service of the Republic of Ghana or of any statutory corporation does an act outside Ghana which if done in Ghana is punishable as an offence; or

(b)      does an act outside Ghana which if done in Ghana would

constitute the offence of murder or an offence under section 183A of the Criminal Code, 1960 (Act 29); or

(c)      does outside Ghana any act which if done in Ghana constitutes an offence involving or resulting in the misappropriation, dissipation or loss of -

(i) public funds;

(ii) government property including damage to government property; (iii) property belonging to a statutory corporation including damage. to the property of the statutory corporation;

      (d)          does any act on the premises of a Ghanaian diplomatic

      mission which if done in Ghana would be punishable as an offence, commits an offence as if the offence was done in Ghana and may, subject to section 46 of the Criminal Procedure Code, 1960 (Act 30) be prosecuted and punished in Ghana.

(4)      Any person (whether a citizen of Ghana or not) is liable to be tried and punished in Ghana for the respective offence if he does an act which if done within the jurisdiction of the courts of Ghana would have constituted any of the following offences -

(a)      slave trade or traffic in slaves;

(b) piracy;

                   (c)     traffic in women or children;

     falsification or counterfeiting or uttering of false copies or counterfeits

     of any official sea] of Ghana or any currency, instrument of credit,

     Stamp, passport or public document issued by the Republic or under its authority;

     (e) genocide;

(1)      any offence against the property of the Republic;

(g)      any offence against the security, territorial integrity or

     political independence of the Republic;

(h)      hijacking;

(i)      unlawful traffic in narcotics;

(i)      attacks on any international communications system, canal

     or submarine cable;

(k)  unauthorised disclosure of an official secret of the Republic ;an offence by or against a person in the employment of the Republic or a statutory corporation while acting in the course of the duties of such employment;

(m) traffic in obscene publications; and

(n) any other offence which is authorised or required by a convention or treaty to which the Republic is a signatory to be prosecuted and punished in Ghana wherever the offence was committed.

 57. Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal ,a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal any cause or matter affecting chieftaincy.

58. In any proceedings, and at any stage of the proceedings, a court either on its own motion or on the application of any party, may summon any person to attend to give evidence, or to produce any document in his possession or excerpts from it subject to any enactment or rule of law.

59. In a criminal case if the court is satisfied by evidence on oath that a person can give material evidence and will not attend court unless compelled to do so, the court may immediately issue a warrant for the arrest and production of the  witness before the court at a time and place specified in the warrant.

60.     (1) Where a witness has been arrested on warrant the court may order the release of the witness from custody for his appearance at the hearing of a case, on such security as it may determine.

(2)          If the witness fails to furnish proper security, the court shall order his detention for production at the hearing.

61.(1) Any person summoned as a witness who -

(a)          without reasonable excuse fails to attend court as required by the summons after having had reasonable notice of the time and place at which he is required to attend; or

(b)          having attended court departs without reasonable excuse

and without having obtained the permission of the court;

or

(c)          fails without reasonable excuse to attend after adjournment

of the court after being ordered to attend, may be proceeded against by warrant to compel his attendance, and commits an offence and may be dealt with summarily by the court for contempt of court and sentenced immediately to a fine not exceeding C50,000.00 or six months imprisonment or both.

  (2)    The fine may be levied by attachment and the sale of any movable  property belonging to the witness.

  (3)    For good cause shown, the High Court, Regional Tribunal or Circuit Tribunal may remit or reduce a fine imposed under this section by a Community Tribunal.

 

 

 

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