By Ishmael Olegor
The 1992 Constitution of Ghana has created superior courts, which comprise the Supreme Court, Court of Appeal, and the High Court. The Constitution has not directly created lower courts but has given that power to Parliament.
By the enactment of the Courts Act, 1993 (Act 459), Parliament created other lower courts, including Circuit and District Courts. By Article 126 of the 1992 Constitution, the superior courts are courts of record, which means their decisions are binding on lower courts, and they can also commit for contempt when their decisions are disobeyed.
The decisions of the superior courts are binding in a hierarchical order. This means the decisions of the Supreme Court, which is the apex court of Ghana, are binding on the Court of Appeal and all other courts in the country. The decisions of the Court of Appeal are binding on the Court of Appeal itself, the High Court, and all lower courts. The decisions of the High Court are also binding on all lower courts.
In civil cases, the Circuit Court shares concurrent jurisdiction with the High Court, and decisions of the Circuit Court in such cases are appealable to the Court of Appeal and not the High Court. Order 1 Rule 1 of the High Court Civil Procedure Rules, 2004, CI 47, provides that the rules apply to all civil proceedings in the High Court and Circuit Court with applicable exceptions.
Impunity
It is, therefore, a mark of impunity and unconstitutional when a lower court refuses to obey the orders of a High Court or a Circuit Court in a civil case. Thus, when a lower court in Ghana brazenly override a High Court’s decision, in a shocking display of judicial impunity, it leaves many in awe.
Such is the case in a recent reported incident involving the custody battle over a five-year-old child, with the District Court (Family Division) in Accra issuing conflicting orders that directly contradict those of a Circuit Court.
Her Honour Dora Inkumsah Eshun of the Circuit Court had issued protective orders in favour of the mother of the child in question. However, the District Court (Family Division) judge disregarded these orders and issued her own conflicting directives, contrary to constitutional and statutory provisions.
Invasion
Reports indicate that the conflicting order of the District Court judge emboldened the father of the child in question to violently invade the residence of the mother in the company of armed police officers and bloggers in an attempt to take custody of the said child.
Some legal experts have argued that the contradictory orders of the two courts could erode confidence in Ghana’s judiciary, create confusion in the enforcement of laws, and undermine the rule of law.
Stakeholders in the justice delivery system must, therefore, recognise the importance of respecting the hierarchical structure of Ghana’s courts and address any perceived errors or grievances through appropriate appellate mechanisms.
