ADDENDUM

The provision in the law of Ghana for reference to our formula in repugnancy and residual contexts (Courts Ordinance, cap. 4, s. 87 (1)) has been repealed with the rest of that Ordinance by the [Ghana] Courts Act, i960, s.

the rules of estoppel and such other of the rules generally known as the doctrines of equity as have heretofore been treated as applicable in all proceedings in Ghana shall continue to be so treated.

Since ‘justice, equity and good conscience* is not a rule of common law or equity, and, as we have seen, does not even refer of necessity to common law or equity (though to establish what is consistent with equity and good conscience it would be advisable to inform oneself of what the common law, equity and statute law of England have to say on the topic at issue), it seems to follow that reference to it is abolished in Ghana. It may be asked whether a fundamental rule can be abolished by statute; in other words whether Parliament is bound by fundamental laws which the courts will apply in interpreting the intention of Parliament. Technically the answer in this day and age must be yes to the first question, and no to the second. The result would be that where residual law is needed, or a custom is impugned on the ground of being repugnant to ‘natural justice, equity and good conscience’ (as distinct from the common law rules of ‘reason’ and ‘public policy’), the plaintiff must fail, or the custom must be admitted, because where the formula is missing, the case must proceed as if no alternative were available. But the function of the judge being what it is (see p. 119 above), decisions (perhaps in contexts other than these last) founded on the principles of justice and natural equity, reason, and good conscience will continue to be given, pending a distinct prohibition from the legislature. As a result the way is still open for the consultation of comparative legal material. Customs will, in any case, be admitted if they are not ‘repugnant’ in the legally trained opinions of the Ghana judges (see pp. 114, 148 above), and, where necessary, material from foreign systems of law will still be imported at those same judges’ discretion to fill gaps left by the positive law.