THE ACADEMIC
During my formative years as an eager student at the Legon Faculty of Law in the late 1980s, I found myself captivated by the true legal luminaries who had graced the halls of the institution.
Stories of accomplished academics who had once been a part of the Faculty, but had since ventured beyond the nation’s borders, would often circulate.
Names like Anselmus Kodzo Paaku Kludze, Tawiah Modibo Ocran, Albert Kodzo Fiadjoe and Samuel Kofi Date-Bah were uttered in respectful, almost-hushed reverential tones.
Despite their physical absence, we encountered them primarily through their contributions to esteemed legal publications such as the University of Ghana Law Journal and the Review of Ghana Law.
Among these illustrious figures, Samuel Kofi Date-Bah stood as a towering presence. Hardly anything in the legal realm escaped his keen attention and restless pen.
He prolifically authored articles covering constitutional provisions, landmark cases, and even comprehensive textbooks. By my calculation, between 1970 and 1978, he contributed more than 45 articles to UGLJ and RGL combined.
One particularly notable piece was ‘The Law of Slander in Ghana: A Sequel to ATTIASE v ABOBBTEY.’ In this work, he eloquently advocated for individuals to cultivate resilience to verbal attacks and insults within the public sphere. He said:
‘Life in a democratic community demands a high degree of tolerance. It is desirable on policy grounds therefore that attempts be made to blunt the unduly sensitive feeling of the average Ghanaian towards insults by denying him a civil remedy for mere vituperation.
Where the insult is such as is likely to lead to a breach of the peace, the law may intervene through the criminal law to punish the guilty party in the interests of law and order.
Where, however, the criminal law test of likelihood to lead to a breach of the peace is not satisfied, it is thought that the law should not grant damages to an insulted party, merely to assuage his feelings. Such insulted persons should be encouraged to disregard the various petty insults that Ghanaians are apt to take too seriously.’
THE LITIGATOR
Any attempt to pigeonhole Date-Bah as merely an academic figure would be a gross misconception. This is evident because a diligent law student would also have encountered his presence within legal reports as an active litigator.
One instance of his involvement was as counsel in 1977 for the prevailing plaintiff in NTEM v ANKWANDAH, helping to dispel then and still pervading yet false notion that once you succeed in building your house to the so-called ‘lintel level,’ the law would protect you even if you had not title to the land.
While this judgment was pivotal in shaping the notion of constructive registration of land documents (which remained the law until it was overturned by the Supreme Court in 1989 in ODAMETEY v CLOCUH), what intrigued me most was the intellectual clash between the academic persona of ‘Dr Date-Bah’ (the Achimota legend) and the esteemed litigator, the late E D Kom, Esq (the Kwabotwe legend), who is revered in story and memory.
Mr Kom, realising the difficulty of his case, attempted to introduce the now-repealed Land Development (Protection of Purchasers) Act, 1960 (Act 2) as a last-ditch effort to bolster the defendant’s stance, arguing that his client’s investment in the land warranted protection under the Act. However, Dr Date-Bah vehemently opposed this late-stage introduction, stating that it would unfairly surprise his side and lead to injustice.
Apaloo CJ acknowledged the substance of Dr Date-Bah’s objection, stating, ‘I believe Dr Date-Bah has a valid point, and I understand the weight of his argument.’ Nevertheless, the court determined that Mr Kom could invoke Act 2, but only as a point of law, not one requiring further evidence.
In the conclusion, the court ruled that Mr Kom’s client (the defendant) had acquired land designated as stool land from individuals. His sole evidence of ownership was a statutory declaration. Upon entering the land, the plaintiff contested his claim, reported him to the police, and engaged legal representation to caution him.
The defendant disregarded all of these while investing a substantial amount in developing the land. Dr Date-Bah’s cross-examination had revealed, and the court concurred, that the defendant had also challenged the plaintiff’s title without disclosing the source of his own authorisation, and even audaciously cautioned the plaintiff ‘to cease any further criminal and civil acts which she has been committing against me for some time now.’
Even when the plaintiff’s lawyers requested details of his ownership to facilitate a peaceful resolution, the defendant ignored this plea.
He continued construction undeterred even after being sued, even though one of the claims sought was repossession.
Ultimately, Dr Date-Bah’s client emerged victorious in both the High Court and the Court of Appeal. Anyone who won a case against the courtroom behemoth that E D Kom, Esq, was, must have been a courtroom behemoth too.
THE ‘REALIST- PURPOSIVIST’ JUDGE
His Lordship’s appointment to the Supreme Court in 2003, alongside figures like Kludze and Ocran JJSC, breathed new life into the study of Ghana’s judicial history.
Their combined intellectual prowess set a bar that will likely prove challenging to surpass, both historically and in the years to come. I firmly believe Justice Date-Bah’s most enduring judicial legacy lies in his refusal to allow legal technicalities and arcane procedures to obstruct justice.
To do this, he relied heavily on and combined two jurisprudential philosophies: first, ‘American Realism,’ (to wit, ‘law is what judges decide’) and, second, ‘Purposivism,’ which ascertains the purpose of a legal provision and then interprets the provision in accordance with that ascertained purpose, as opposed to the literal meaning of its text.
These combined to resonate very strongly in his interpretation of the Constitution and laws. He summed his position up in ASARE v ATTORNEY-GENERAL as follows:
‘What interpretation is to be given to the words should depend upon the court’s perception of the purpose of the provision and the context of the words, rather than on their dictionary meaning.’
That is why he rejected the literal interpretation of Article 296 regarding the exercise of discretionary power by the Electoral Commission in creating new constituencies, in RANSFORD FRANCE v ATTORNEY-GENERAL, as follows:
‘An expansive literal interpretation would lead to grave mischief. It would lead to a nuclear meltdown, so to speak, of government, as we have known it since 1969. It would be thoroughly impractical for public officials and agencies in general to publish regulations governing their discretions before they could exercise them, on pain of the invalidity of those discretionary decisions.’
He was also not shy to challenge previous judicial positions. Regarding the justiciability or otherwise of the Directive Principles of State Policy in the Constitution, he argued in GHANA LOTTO OPERATORS ASSOCIATION v NATIONAL LOTTERY AUTHORITY that:
‘First, the Constitution, 1992 as a whole is a justiciable document. If any part is to be non-justiciable, the Constitution, 1992 itself must say so. I have not seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me that chapter 6 is not justiciable. The evidence to establish the non-justiciability must be internal to the Constitution, 1992, not otherwise.’
Further, since 1975, Ghanaian legal practitioners have relied on the English case of AMERICAN CYANAMID v ETHICON to outline criteria for granting or denying interlocutory injunction applications. But in WELFORD QUARCOO v ATTORNEY-GENERAL & ELECTORAL COMMISSION, His Lordship established the Ghanaian rendition of these criteria:
‘First, the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages unless the interlocutory injunction is granted; and finally, that the balance of convenience is in favour of granting him or her the interlocutory injunction.’
Also, in the realm of Civil Procedure, His Lordship charted a new path of thinking when he restated and clarified the effect of order 81 of the High Court (Civil Procedure) Rules on non-compliance with the rules. In REPUBLIC v HIGH COURT REGISTRAR & AMALGAMATED BANK, EX PARTE ALLGATE COMPANY LTD, His Lordship overruled the existing rule in AZINOGO v W E AUGUSTT, which had been that short service in civil proceedings was a nullity that affected the validity of subsequent proceedings. He held that such non-compliance was an irregularity and not a nullity unless the non-compliance breached the Constitution, statute or the rules of natural justice or went to jurisdiction.
In the spirit of disclosure and transparency, I must acknowledge two specific cases that involved the present writer from the Bar and His Lordship on the Bench, and which probably teased His Lordship’s judicial philosophy out, more than any other cases.
First, ATTORNEY-GENERAL v BALKAN, which centered on whether a power purchase agreement between Ghana and a company with 100% foreign control but incorporated in Ghana, was an international business transaction requiring parliamentary approval under article 181(5) of the Constitution. Defendants’ counsel nailed his flag to the mast of the Court’s previous decision in FAROE ATLANTIC v ATTORNEY-GENERAL, where it was held that a transaction is international when the other party was a foreign company.
He hanged his hat on the argument that since the operating company in this matter was incorporated in Ghana, the transaction was not international and did not require parliamentary approval.
The Attorney-General argued that the Court should lift the veil of incorporation and treat the company as foreign because of its foreign ownership and control.
His Lordship easily pivoted from the two arguments, concluding that the contractor’s incorporation and foreign ownership were immaterial: the essential factor was whether the transaction itself held sufficient ‘international’ attributes to merit classification as international. He held that the transaction contained enough of such attributes and was therefore international.
The defendants’ counsel had also argued that the Attorney-General’s stance on article 181(5) would absurdly necessitate parliamentary approval for every airline ticket purchase from British Airways or a local airline with foreign shareholders, paper supply to the government by a local company importing the paper, and any contract for government vehicle supply due to the notable prevalence of imported cars on Ghana’s roads.
His Lordship responded that the court would purposively interpret article 181(5) to ‘imply’ into it, the word ‘major.’ He said:
‘…the examples given by the defendants… demonstrate the need to articulate a criterion for distinguishing between the international business transactions intended to be scrutinised, and approved, by Parliament and those which are not.
For, clearly it would be impractical for Parliament to scrutinise and approve every single business transaction with international ramifications entered into by the Executive.
The hypothetical examples given in the defendants’ Statement of Case… constitute a reductio ad absurdum of one perception of the principle embodied in article 181(5).
In our view, to give effect to the framers’ purpose, there is need to imply into article 181(5) an understanding that only major international business or economic transactions are to be subject to its provisions. We do, however, agree with the defendants that Parliament needs to exercise its legislative power in relation to article 181(5) in order to clarify which transactions are to be viewed as major.’
Consistent with his said jurisprudential stance, he added that ‘the sunlight of Parliamentary scrutiny of major transactions entered into by the Executive is likely to be a powerful spur to probity in such transactions.
That is why it is unlikely that the framers would have intended to give to Parliament the veto power implied in the defendants’ interpretation of article 181(5).
The purposive interpretation we have given to this provision is therefore in accord with our reading of its objective purpose. Indeed, the framers’ commitment to probity and accountability as a value of the Constitution is reflected in one of the Preambles to the Constitution, which reads as follows: “AND IN SOLEMN declaration and affirmation of our commitment to Freedom, Justice, probity, and accountability… On the other hand, the framers could not have intended the obvious and foreseeable paralysis from overload in Parliament that would ensue from interpreting the provision as covering every single business or economic transaction with an international dimension.
The implication into article 181(5) of the attribute of being “major” before a transaction enters into its ambit would thus seem to us to be necessary and reasonable and within the spirit of the provision.’
Second, in REPUBLIC v HIGH COURT (COMMERCIAL DIVISION), ACCRA, EX PARTE ATTORNEY-GENERAL (NML CAPITAL & REPUBLIC OF ARGENTINA – INTERESTED PARTIES), the present writer (this time representing the First Interested Party) audaciously executed a pre-judgment attachment of the Argentine war frigate, the ARA Libertad, carrying more than 300 naval sailors from several countries, and which was visiting Ghana.
This was over international debts owed by Argentina. Argentina then commenced arbitral proceedings against Ghana at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, leading to an ITLOS order for Ghana to release the vessel.
The Attorney-General initiated these proceedings in the Supreme Court to, inter alia, enforce the ITLOS directive.
Counsel for the First Interested Party however contended that as of the date in question, although Ghana ratified the UN Convention on the Law of the Sea (UNCLOS), Ghana had not fully incorporated UNCLOS into Ghana’s legal framework by Parliament, and therefore lacked domestic legal effect.
He also argued that unlike the United States and United Kingdom, which had specific statutes prohibiting warship seizures, Ghana had no such statutes.
Furthermore, Argentina had unequivocally waived any immunity from asset attachments in relevant contractual documents.
His Lordship intervened to address these issues. He concurred that without full domestic incorporation, the portions of UNCLOS relevant to the dispute held no legal weight in Ghana, and the ITLOS decision carried no significance locally.
However, he argued that even though Ghana lacked legislation preventing warship seizure, ‘there is no reason why a Ghanaian court cannot do what the US has done by legislation.’
He added that where a court faces a unique issue without binding local precedent, ‘the common law permits it to make law, within the constraints imposed by the common law judicial method.’ Undisguised American Realism, right there.
He also highlighted the potential risk to Ghana’s peace and security that the seizure of a war vessel might bring, adding that even if Argentina ‘waived its immunity through the contractual waiver clause, that waiver of immunity is not binding on the Ghanaian courts, in so far as it relates to a military asset.
Customary international law permits sovereign States to decide whether to accord a wider immunity in their municipal law than required under international law.
There is thus no obligation in municipal law to recognise waivers of sovereign State immunity in all circumstances, except those required by public international law.’
Thus, even if sovereignty implied that Argentina could waive its sovereignty, a host state’s public policy may lead its courts to reject sovereignty waiver over a warship.
He added that because seizing military assets, particularly a warship, carried inherent risks of triggering military conflict or diplomatic tensions that could undermine the nation’s security, the law, in principle, should allow excluding foreign law on public policy grounds, when enforcing a right under foreign law contributes to the risk of military conflict or insecurity.
While conceding that this may represent a novel aspect of public policy in relation to conflict of laws and foreign law enforcement, he insisted that it was reasonable and valid to assert that Ghanaian court enforcement of foreign law rights should not jeopardise the nation’s broadly defined security, and that the state’s fundamental public policy must encompass the imperative of preserving its security.
One of the most significant tributes to a legal scholar is the citation of their work by fellow lawyers. For judges, it is a pinnacle achievement when their writings receive favourable acknowledgment from peers.
In this regard, His Lordship’s contributions are abundant, as his judgments have become a wellspring for other judges across the legal spectrum.
For instance, his Ghanaian adaptation of the AMERICAN CYANAMIDinterlocutory injunction criteria is cited with approval by Pwamang JSC in GHANA INDEPENDENT BROADCASTERS ASSOCIATION v ATTORNEY-GENERAL & NATIONAL MEDIA COMMISSION (NO 1).
His stance expressed in ASARE v ATTORNEY-GENERAL that word meanings should hinge on the court’s interpretation of a provision’s intent and context, rather than strict dictionary definitions, is favourably cited by Prof Kotey JSC in DONKOR v ATTORNEY-GENERAL.
His viewpoint on applications seemingly invoking the Supreme Court’s supervisory jurisdiction but effectively aiming to ‘freeze the status quo pending appeal or stay of proceedings pending appeal,’ as illustrated in ACCRA RECREATIONAL COMPLEX LTD v LANDS COMMISSION, gains approval from Sophia Adinyira JSC in ATTORNEY-GENERAL v APAADE LODGE.
Additionally, his position in ARTHUR (NO 1) v ARTHUR (NO 1) that ‘marital property is … property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition,’ finds resonance with Appau JSC in MARFOA v AGYEIWAA. His statement in ADOFO v ATTORNEY-GENERAL & COCOBOD that ‘the unhampered access of individuals to the full enjoyment of individuals to the court is a fundamental prerequisite to the full enjoyment of fundamental human rights. This court has a responsibility to preserve this access in the interest of good governance and constitutionalism,’ is applauded by Sophia Adinyira JSC in CENTER FOR JUVENILE DELINQUENCY v GHANA REVENUE AUTHORITY & ATTORNEY-GENERAL.
He, however, did not hesitate to diverge and dissent from his colleagues on the bench. In DEXTER JOHNSON v THE REPUBLIC, the majority concluded that the mandatory imposition of the death penalty under section 46 of the Criminal Offences Act, 1960 (Act 29), did not violate the Constitution, citing that the Constitution itself prescribed the death penalty for high treason. His Lordship dissented vehemently:
‘The fact that the 1992 Constitution provides for the penalty of death for high treason (article 3), is not determinative of the issue before this court, which is the quite distinct one of whether the mandatory nature of the death penalty for murder, a criminal offence with a very wide range of moral culpability scenarios, is compatible with specific provisions in the Ghana Constitution which are in pari materia with constitutional provisions in other Commonwealth jurisdictions.
The range of moral culpability associated with high treason is of a more limited nature. Accordingly, the same arguments cannot be deployed against the law making the penalty for high treason mandatory.’
History was on the side of this compelling dissent because on 25 July 2023, Parliament voted to repeal the death penalty as punishment for all statutory offences, effectively elevating His Lordship’s dissent in DEXTER JOHNSON into law.
CONCLUSION
Although the topic given to me by the organisers of this award on analysing Justice Date-Bah’s jurisprudence, was apt, my research revealed a lot more to His Lordship than that. I hope that in these few pages, I have set out some different legal aspects to the man we are here to honour. But this honour is best captured in his own words in his final and parting judgment in ARTHUR (NO 1) v ARTHUR (NO 1), delivered on 26 July 2013. He said:
‘This has been my valedictory delivery of a judgment of this court. I have no further judgments to deliver before my retirement in August this year.
I must place on record that it has been a rare and fruitful privilege to have served on the Supreme Court of Ghana, a Supreme Court like no other, given the multiplicity of its jurisdictions. I am done.’
Your Lordship, we must also place on record that having you serve Ghana as an academic, lawyer and judge has been a rare, invaluable, matchless, exceptional and extraordinary privilege.
It has also been a fruitful, fertile, rich, prolific, successful, rewarding and profitable privilege. I commend to you the words of the hymnist William G Tarrant in the second verse of his hymn titled ‘Now Praise we Great and Famous Men’ as follows:
‘Praise we the wise and brave and strong,
Who graced their generation;
Who helped the right, and fought the wrong,
And made our folk a nation.’
You surely deserve this lifetime recognition and much more. Thank you. And in the Akwapim twang of the Christian and Juliana Awukubea Opoku family of Ahwerase-Akwapim to which you belong and into which I am married, ‘mprenpren, Ghana nyinaa da wo ase pa paa pa.’
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Written and delivered by Ace Anan Ankomah, Senior Partner, Bentsi-Enchill, Letsa & Ankomah, at the Honorific Lecture & Award, Celebrating the Lifetime Achievements and Works of Professor Justice Samuel Kofi Date-Bah by the UPSA Law School, 31st August 2023.