The doctrine of stare decisis parades in a fanciful new robe in the Supreme Court: Ex Parte Opuni (No. 2)
The Supreme Court has, in a four to three majority decision of its review panel, overturned its earlier three to two majority decision of the ordinary bench in Ex parte Opuni. In the earlier decision, the Court granted an order of prohibition to restrain the trial judge in the criminal proceedings pending at the High Court (Honyenuga, JSC sitting as an additional High Court judge) from continuing to sit and hear the case. The Attorney-General, being dissatisfied with the decision, applied for a review of the decision and it is that application that resulted in the four to three majority decision under reference. The decision of the review panel is most interesting, not least because the minority decision is more convincing and has more depth and meat but also for the majority panel’s rather curious exposition of the doctrine of stare decisis.
What is the doctrine of stare decisis or judicial precedent?
The first elementary principle of stare decisis, also known as judicial precedent, is that, the law declared by a higher court in a hierarchy of courts enjoys a higher authority than that declared by a court lower in the hierarchy. Put in another form, the judgment of a court of appeal is binding upon all courts from which appeal lies to it, either direct or through an intermediate appellate court. So, for instance, a judgment of the Supreme Court of Ghana in either a civil or criminal case is binding on the Court of Appeal, the High Court, the Circuit Court and the District Court. By the same token, a judgment of the Court of Appeal in a civil case, which does not conflict with a judgment of the Supreme Court, is binding on the High Court, the Circuit Court, and the District Court, and so on. By the principle of judicial precedent, the Supreme Court is not bound to follow the decisions of any other court.
The origins of the doctrine of stare decisis
The doctrine of stare decisis or binding precedent is said to be of comparatively recent growth in England; it cannot be claimed as a time-honoured institution and there is no historical foundation for the proposition that this is a cornerstone of the common law structure. Other known common law countries such as the United States, South Africa, Canada, Australia, India and Pakistan do not follow any coercive regime of judicial precedent. The doctrine of stare decisis, then, has been said to historically have no deep roots in the common law. Indeed, the rule that English appellate courts are bound by their own decisions was established not too long ago. The common law, therefore, does not necessarily subsume a stringent theory of stare decisis.
The rational for stare decisis
There is no universal, uniform rule of stare decisis. As noted earlier, none of the known common law jurisdictions adhere to the principle that the court of highest resort is bound by its own previous decisions. And even in England, historically, the rule was followed only by the Court of Appeal and the House of Lords; the Privy Council which was the highest appellate court for England as well as most Commonwealth countries, including Ghana, was not bound to follow its previous decisions. Certainty in the law is the only real argument advanced in favour of the doctrine of coercive precedent. Currently, the UK Supreme Court is the highest appellate court in the United Kingdom. Its decisions bind all inferior courts but do not bind itself. This is said to give the UK Supreme Court scope for judicial creativity to tackle manifest inadequacies in the law.
The doctrine of stare decisis under the 1992 Constitution and the majority decision in Ex parte Opuni (No. 2)
The Constitution provides that “[t]he Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.” This provision is in line with the general trend in common law countries where a final appellate court is at liberty to depart from its own previous decisions if it considers that the decision was given per incuriam or should, for any other exceptional reason, not be followed. Therefore, a precedent is normally binding and ought to be followed until it is realized that the decision was erroneous or that it no longer meets the demands of society.
Writing on a similar provision in the 1960 Republican Constitution of Ghana, Bennion noted as follows: “Article 42 (4) is intended to provide a suitable combination of certainty and flexibility in the enunciation and development of legal principles. Once the Supreme Court, as the highest Court available to Ghanaians, has delivered itself of a proposition of law relevant to its decision in a particular case, that proposition is binding without modification in the High Court and the inferior courts. It is also binding in principle in the Supreme Court itself, but the use in this connection of the expression “in principle” is intended to indicate that the Supreme Court may, in a particular case, depart from its own previous decision if it considers that the decision was given per incuriam or should for any other exceptional reason not be followed.” (Emphasis supplied)
Justice Ollenu also had occasion to comment on the same Article 42 (4) thus: “Our view is that the words ‘in principle’ are intended to create an elastic rule, to save the Supreme Court in embarrassing situations and to enable it to re-examine its own previous decision to correct or differ from it when it finds such decision to be either manifestly wrong, not only because it was given per incuriam, but because of inconsistency with some principle of law or custom, and is, therefore, a decision which for some good reason or the other should not be followed. In our view, the Article lays down a flexible rule intended to enable the court to mold and develop the law, the common law no less than the customary law, to meet the needs of economic and social changes which are taking place in our new and developing nation, without the necessity to resort to Parliament each time to rectify an error in the law brought about by a wrong decision.”
It is in the light of the foregoing that the Supreme Court’s majority decision of the review panel in Ex parte Opuni (No. 2) (per Dotse, JSC in his concurring opinion) is most disturbing. In criticizing the majority decision of the ordinary bench in the case (Ex parte Opuni No. 1), Dotse, JSC made three profound statements. Firstly, he stated that by Article 193 (3) of the Constitution, Honyenuga, JSC was bound to follow the Supreme Court’s decision in Ekow Russel v Republic when he sat and tried the Opuni case at the High Court as an additional High Court judge. Therefore, “[t]there was no way he could have departed from it”. Secondly, Dotse, JSC stated that the Justices of the Supreme Court who gave the majority decision of the ordinary bench under the Court’s supervisory jurisdiction had to depart from the Supreme Court’s decision in Ekow Russel v Republic in their quest to arrive at their decision. This, His Lordship lamented, was not well founded and it was “quite an enormous task indeed”. Thirdly, Dotse, JSC opined that to ensure that the constitutional provisions that guarantee the doctrine of stare decisis is not abused, the Supreme Court had to “restore the dignity and respectability that this common law doctrine has afforded the legal and judicial system”.
Now, an analyses of these three statements will expose the flaws inherent in Dotse, JSC’s concurring opinion.
1.Must a High Court follow a decision of a higher court at all costs under the doctrine of stare decisis?
From the dictum of His Lordship, he answers the above question in the affirmative. And he goes further to support the assertion by quoting Article 193 (3), with emphasis on the words “and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law” for good measure. But is this an inflexible rule such that Honyenuga, JSC sitting as an additional High Court judge was bound to follow the Supreme Court’s decision in Ekow Russel v Republic even if he deemed the decision to be wrong? Respectfully, I do not think so. Implicit in Dotse, JSC’s dictum is the suggestion that, Honyenuga, JSC probably found Ekow Russel v Republic to have been wrongly decided but he felt constrained to depart from it because of the fetters placed on him by Article 193 (3). It is submitted that such a constricting and slavish adoration of precedent could not have been the intendment of the Constitution. Admittedly, judicial precedent creates certainty in the law. But that fact alone cannot bind lower courts to suffer atrocious decisions and those given per incuriam by higher courts.
A veritable example of a case in which a lower court refused to follow the decision of a higher court is Amponsah v Appiagyei & Ors; Amoah v Anthony & Ors; Boakye & Anor v Effah & Anor; Boateng & Ors v Boahen & Anor (Consolidated). In that case, Amuah-Sekyi, J. (as he then was) sitting at the High Court, Kumasi, refused to follow the Court of Appeal’s decision in Bonsu v State Insurance Corporation. His Lordship reasoned that, the decision in the Bonsu case was in conflict with authoritative pronouncements of courts of co-ordinate jurisdiction and was also at variance with statutory law. He delivered himself as follows: “The principle of judicial precedent requires that a lower court takes due notice of, and apply decisions of a higher court which are binding on it. This, however, does not mean that such decisions ought to be slavishly followed even when they are demonstrably wrong. I think I shall take my cue from Taylor J. (as he then was) who, in Nkrumah v Manu  1 G.L.R 176, refused to follow the decision of the Court of Appeal in Attiase v Abobbtey, 21 July 1969, unreported; digested in (1969) C.C. 149 on the ground that it ran counter to statutory provisions. Although in Sogbaka v Tamakloe  1 G.L.R 25, Francois J. (as he then was) disagreed with him and said that as a binding decision of a higher court it ought to have been followed, in Kyei v Donkor 1 G.L.R. 366, the Court of Appeal, after examining the relevant statute came to the conclusion that the decision of Taylor J. in Nkrumah v Manu (supra) was right, and declined to follow their own decision in Attiase v Abobbtey (supra).” (Emphasis supplied)
As has been demonstrated in the preceding paragraphs, Honyenuga, JSC, the additional High Court judge, was not bound to follow a Supreme Court decision that was wrong, given per incuriam, was contrary to statute and so forth. So, when he decided to follow Ekow Russel v Republic slavishly (in the words of Amuah-Sekyi, J. (as he then was)), he was the one who should have attracted Dotse, JSC’s rebuke. In the circumstances, Dotse, JSC’s dictum that Honyenuga, JSC (sitting as an additional High Court judge) was bound to follow the Supreme Court’s decision in Ekow Russel v Republic, in the Opuni case even when the said decision was wrong, rings hollow at best. This view runs contrary to all notions of justice. It portends an invidious fetter on the growth and development that our ‘legal and judicial system’ need to survive in this fast-advancing and technology-driven 21st Century.
At any rate, the majority decision of the review panel re-echoes the dilemma of the Court of Appeal or Supreme Court judge who is appointed to sit as an additional High Court judge. As Dotse, JSC candidly pointed out, Honyenuga, JSC felt himself disabled from departing from Ekow Russel v Republic when he sat as a High Court judge. He, most likely, did not want to incur the wrath of his brethren upstairs. Will a substantive High Court judge in Honyenuga, JSC’s situation feel such trepidation? I doubt so. When the Justice Taylors and Amuah-Sekyis declined to follow wrong decisions of higher courts when they were substantive High Court judges, they did so without fear. They had no brothers and sisters in higher courts whose possible proses of opprobrium could stifle them into inaction.
2.Was it right for the majority panel of the ordinary bench not to follow the Supreme Court’s decision in Ekow Russel v Republic while exercising supervisory jurisdiction?
It is quite surprising that although Dotse, JSC was comfortable with the additional High Court judge’s decision to follow Ekow Russel v Republic, a wrong decision of the Supreme Court, in obsequious regard for the doctrine of judicial precedent, His Lordship was beside himself with angst when the majority panel of the ordinary bench refused to follow that decision by exercising their right under Article 193 (3) of the Constitution.
His Lordship even went on to add that the path on which the majority panel of the ordinary bench chose to tread presented “quite an enormous task indeed”. It is difficult to see what underscored His Lordship’s difficulty with the majority panel’s decision to depart from the Supreme Court’s decision in Ekow Russel v Republic. He could not fault their decision as baseless since Article 193 (3) expressly gives the Supreme Court the power to depart from its own decisions when deemed necessary. He could also not impeach their decision for reason that the decision in Ekow Russel v Republic was good; he appears to agree that, that decision was bad just that the additional High Court judge, sitting qua High Court judge, in his opinion, could not depart from it.
Dotse, JSC’s words seem to suggest that he was unhappy with the majority panel of the ordinary bench because they chose to depart from Ekow Russel v Republic at a time they were exercising ‘supervisory jurisdiction’. This is what His Lordship said in the course of delivering his concurring majority opinion on the review panel: “For a majority panel to just write off an established principle of law as contained in the Ekow Russel decision and depart from it under the exercise of the supervisory jurisdiction of the Court is, in my opinion, not well founded”. Unfortunately, after making such a profound statement, His Lordship failed to expatiate on this novel restatement of the law on judicial precedent. It bears stating that Article 193 (3) does not set forth any special jurisdiction the Supreme Court must be exercising before it could depart from its previous decision. Once the article is silent on the type of jurisdiction that can clothe the Supreme Court with jurisdiction to depart from its previous decision, it is submitted that the Supreme Court, whenever it finds it necessary to do so, could depart from its prior decision and the nature of the jurisdiction it may be exercising – be it original, appellate or supervisory – will be wholly immaterial.
3.Does the doctrine of stare decisis as stipulated under the Constitution enjoy a strict application regime?
From the discussions thus far, it is clear that the doctrine of stare decisis as known under the common law and Article 193 (3) of the Constitution is not a strict and unbending rule. It is with this background in mind that Dotse, JSC’s dictum seeking to smear a most sacrosanct unction of strict application on the doctrine of judicial precedent appears problematic. The Supreme Court of Ghana, just like those of other Commonwealth countries who follow the common law tradition, are not bound to always follow their own decisions. Lower courts are also to follow the decisions of higher courts, but not slavishly.
 Republic v High Court (Criminal Division 1); Ex parte Stephen Kwabena Opuni (Attorney-General Interested Party), Civil Motion No. J7/20/2021, unreported decision of the Supreme Court dated 26th October, 2021.
 Ollenu, N.A “Judicial Precedent in Ghana”  Vol. III No. 2 UGLJ 139—164.
 Article 129 (2) of the Constitution and Section 2 (2) of the Courts Act, 1993, (Act 459).
 Asante, S.K.B “Stare decisis in the Supreme Court of Ghana”  Vol. 1 No. 1 UGLJ 52—67.
 See: Asante, S.K.B (supra)
 See: “Sources of English Law”
 Article 129 (3) of the 1992 Constitution.
 Bennion, CONSTITUTIONAL LAW OF GHANA.
 See note 2 supra.
 Republic v High Court (Criminal Division 1); Ex parte Stephen Kwabena Opuni (Attorney-General Interested Party), Civil Motion No. J5/58/2021, unreported decision of the Supreme Court dated 28th July, 2021.
 [2017-2020] SCGLR 469
 [1982-83] GLR 96
  1 G.L.R. 303, C.A.
 For my earlier blog article on the additional judge concept, see: https://fsboateng.com/2021/08/13/the-additional-judge-concept-revisited/
Francisca Serwaa Boateng is the Founder & Managing Counsel of FSB Law Consult, Accra