Law of Interpretation in Ghana: Complete Guide for the Pre-Bar Course

If you are preparing for Ghana’s Pre-Bar Course, the law of interpretation is one subject you cannot afford to treat casually.

It sits quietly behind almost every other course you studied during the LLB; Constitutional Law, Ghana Legal System, Company Law, Land Law, Criminal Law, because every one of those subjects eventually asks the same question: what did the words in this document, statute, or Constitution actually mean?

This guide walks through the subject the way it is taught during the pre-bar, from the basic definitions through to the rules courts use to unlock the meaning of constitutional provisions, statutory provisionsWills, contracts, statutes, and the 1992 Constitution.

What Does ‘Interpretation’ Actually Mean?

At its simplest, interpretation is the process of discovering the meaning that the maker of a document intended those words to carry.

Legal writers have long debated whether ‘interpretation’ and ‘construction’ describe two different exercises or the same exercise wearing two names. Some scholars, treat construction as the general reading of a text and interpretation as the special exercise triggered only once ambiguity appears. Others, see no meaningful difference between the two words at all, treating the distinction as a matter of nuance rather than substance.

For practical purposes, and certainly for examination purposes, it is safe to adopt the view that both words point to the same underlying task: ascertaining the true or legal meaning of language used by a legislature, a testator, or contracting parties, so that the document can be applied to a given set of facts.

Why the Law of Interpretation Matters

Language is rarely perfect. The same set of words can honestly be read in more than one way by different readers, depending on their background, training, and expectations.

A statute that criminalises ‘an act intended to sabotage the economy’ still leaves open exactly which conduct qualifies. A Will that leaves property to a testator’s ‘children’ still leaves open whether nephews and nieces in the care of the person are included. A constitutional clause drafted decades ago may need to speak to circumstances the framers never imagined.

Courts also rely on interpretation to correct plain drafting slips in legislation, so that a statute is not defeated by a draftsman’s oversight. Ghanaian case law recognises this corrective role, while also insisting that judges must not rewrite legislation under the guise of interpreting it. The tension between respecting the actual words used and giving effect to the evident purpose behind them runs through the entire subject.

The Legal Basis of Interpretation in Ghana

The power of Ghanaian courts to interpret documents and legislation is not left to informal practice; it rests on identifiable legal foundations.

General judicial authority to construe statutes and documents flows from the Courts Act, 1993 (Act 456)and other enactments. Where the 1992 Constitution itself is in question, Article 130(1) gives the Supreme Court exclusive original jurisdiction over:

• All matters relating to the enforcement or interpretation of the Constitution.

• All matters concerning whether an enactment was made in excess of the powers conferred on Parliament or any other authority.

Article 130(2) adds a reference jurisdiction. If a genuine constitutional interpretation question arises in any other court, that court must stay its proceedings and refer the question to the Supreme Court, whose interpretive opinion then binds the referring court.

Not Every Question Is a Reference Question

Ghanaian courts have been careful to prevent this reference power from being abused to stall ordinary litigation. Building on the guidance in the case of Republic v Special Tribunal; Ex parte Akosah [1980]GLR 592 a lower court need only refer a matter where there is a genuine, non-fanciful question of interpretation.

This includes situations where the words are genuinely ambiguous, where rival meanings have been placed on a provision by the parties, where two constitutional provisions conflict, or where two constitutional institutions appear to clash on their face. Where the meaning is already plain, no reference is warranted, and the aggrieved party’s remedy is an ordinary appeal.

Ascertaining the Intention of the Law-Maker

Once a Bill has passed through the constitutionally prescribed process and becomes an Act, it is treated as an authentic expression of Parliament’s will, and the court’s task is to give effect to that will as it appears from the actual words used.

The same idea applies to a testator’s Will or to a contract between private parties. The interpreter looks for what the maker actually said, not for what the interpreter privately thinks the maker ought to have said.

Commentators distinguish ‘intention’ from ‘motive’. Intention concerns the legal meaning Parliament attached to the words it used, while motive concerns the underlying political reasons for legislating. An interpreter’s task is confined to the former; chasing political motive is not the interpreter’s business.

Ghanaian authority also draws a firm line around extrinsic evidence of intention in the case of Wills. As the Supreme Court explained in In Re Attah (Decd); Kwako v Tawiah [2001-2002] 1 GLR 339, a court looks for the testator’s intention as expressed in the actual words of the Will. Extrinsic evidence of what the testator supposedly meant is generally inadmissible, subject to two recognised exceptions: cases of equivocation or latent ambiguity, and evidence admissible under the ‘armchair principle’, which allows a court to sit, so to speak, in the testator’s chair and consider the surrounding circumstances known to him at the time of writing.

Basic Rules for Construing Non-Statutory Documents

Non-statutory documents include Wills, conveyances, contracts, insurance policies, and guarantees. The leading Ghanaian authority, Biney v Biney [1974] GLR 318, distilled the core interpretive principles that apply to such documents:

• Construction must come as close as the law allows to the actual mind and intention of the maker.

• That intention must be gathered from within the four corners of the written instrument itself, not from speculation about what should have been written.

• Technical words of limitation are given their strict, technical legal effect.

A fourth principle, added by later writers and reflected in decisions such as Boateng v VOLTA ALUMINIUM CO LTD [1986] DLCA896, is that a document must be read as a whole. Individual clauses are not interpreted in isolation; the entire instrument is weighed together so that its true sense emerges, a point the Court of Appeal applied when construing overlapping termination clauses in an employment contract.

Ghanaian courts have also shown that context can widen or narrow an apparently plain word. In Impraimv Baffoe [1980] DLHC 1070, the word ‘children’ in a family house devise was read, in its particular context, to extend to grandchildren, because only that reading served the testator’s evident purpose of preserving a family house for the whole extended family.

By contrast, in Addai v Donkor [1971] 1 GLR 209, the Supreme Court held that ‘children’ in an English-language Will prepared by a lawyer bore its ordinary English meaning of sons and daughters only, excluding grandchildren, since the drafter must be taken to know the difference between the words ‘children’ and ‘descendants’. The lesson for students is that context governs, but context cannot override language that was chosen deliberately and precisely.

Where words have acquired a settled technical or legal meaning, for instance, historic words of limitation in a pre-1881 conveyance, the courts apply that technical meaning rather than the layperson’s everyday sense, as illustrated in Biney v Biney [1974] GLR 318, and Arbenser v Hesse and Another​[1980]JELR 65043

Construction of Statutes: Literal, Technical, Secondary, and Purposive Approaches

Statutory interpretation begins, as a matter of orthodoxy, with the language of the statute itself. Where that language is genuinely clear, courts traditionally apply the plain meaning rule and look no further. Where a word carries a special or technical sense within a particular trade or branch of law, that technical meaning prevails over the everyday meaning. Where the ordinary meaning would produce an absurd, unreasonable, or repugnant result, courts lean toward a construction that avoids the absurdity.

A cardinal canon recognised across common law jurisdictions, and echoed in Ghanaian teaching materials, is that a legislature is presumed to say in a statute what it means, and to mean what it says. Where the words are unambiguous, that presumption effectively ends the inquiry. Where they are not, the court moves on to secondary tools: canons of construction, presumptions, and external context, treated not as binding rules but as aids or ‘axioms of experience’ that a court weighs alongside everything else.

Modern Ghanaian practice increasingly favours what is called the purposive approach, reading a statute in the light of the mischief or object Parliament was addressing, rather than clinging to a literal reading that defeats that object. The Interpretation Act, 2009 (Act 792) is the principal Ghanaian statute governing how enactments generally are to be read, and students preparing for examinations are expected to be thoroughly familiar with its provisions alongside the common law canons discussed in this guide.

Aids to Interpretation: Internal and External

Aids to interpretation are conventionally divided into internal aids, found within the document or statute itself, and external aids, found outside it.

Internal Aids

Within a non-statutory document, non-operative parts such as recitals, punctuation, and marginal notes may carry persuasive, if limited, legal weight, while operative parts such as parcels, the habendum, schedules, provisos, and definition clauses carry fuller interpretive force.

Within a statute, non-enacting or descriptive parts, the long title, short title, preamble, headings, marginal notes, and footnotes, are generally treated as guides to purpose rather than binding text, whereas enacting or operative parts, such as sections, schedules, provisos, saving provisions, and interpretation sections, form the substantive law itself and carry full legal effect.

External Aids

External aids to statutes include legislative or parliamentary history, including Hansard debates in appropriate cases, and directive principles of state policy.

External aids applicable to non-statutory documents include the contra proferentem rule (an ambiguous clause is construed against the party who drafted it or who benefits from the ambiguity) and the falsademonstratio rule (an inaccurate description does not vitiate an instrument if the true subject matter or object is otherwise identifiable).

External aids of general application include textbooks and academic commentary, dictionaries, established practice or custom, and, ultimately, ordinary common sense.

Linguistic Canons of Construction

Beyond the broad approaches above, several specific Latin-named canons guide the reading of lists and general words. Students should know each by name, meaning, and a simple illustration:

• Expressio unius est exclusio alterius: the express mention of one or more things of a class implies the exclusion of others not mentioned.

• Ejusdem generis: where general words follow a list of specific things of the same class, the general words are read as limited to that class.

• Noscitur a sociis: a word takes its colour and meaning from the words that surround it.

• Ut res magis valeat quam pereat: a provision should, where fairly possible, be read so that it operates rather than fails.

These canons are not mechanical formulas. They are presumptions of ordinary drafting practice that a court may displace where the surrounding context points the other way.

Presumptions in the Law of Interpretation

Presumptions occupy a central place in this subject because they encode background assumptions about how a competent law-maker or careful drafter is taken to behave, unless the contrary clearly appears. Broadly, they fall into general purpose presumptions, for example presumptions favouring the protection of human rights, ethical conduct, and the rule of law, and specific presumptions tied to particular kinds of documents.

Presumptions Relating to Non-Statutory Documents

• A presumption of consistent expression or meaning throughout the document.

• A presumption against redundant words or mere tautology.

• A presumption against absurd results, especially in commercial documents read with commercial common sense.

• Presumptions concerning alterations and erasures appearing on the face of a document.

• A presumption against commercial or practical impossibility.

• Protective presumptions concerning documents executed by illiterate persons, historically reinforced by the Illiterates’ Protection Ordinance.

Presumptions Relating to Statutes

• A presumption that the law-maker is knowledgeable and competent, and does not make mistakes.

• A presumption against tautology, that the legislature does not speak in vain.

• A presumption of coherence, avoiding internal conflict, reinforced by the generalia specialibus non derogant rule (a specific provision is not overridden by a later general one) and the implied repeal rule.

• A presumption against interference with vested or accrued rights.

• A presumption against unclear changes to existing statute law or the common law.

• A presumption against retrospective operation of legislation.

• A presumption against creating or enlarging jurisdiction, including a presumption against ouster clauses and a presumption against extra-territorial application, alongside a presumption of compliance with international law.

• A presumption against permitting a person to benefit from their own wrong, and a related presumption against evasion of the law.

• Presumptions that ancillary bodies of law apply, constitutional law principles, public law decision-making standards, and equitable principles.

A cluster of ancillary Latin maxims is also presumed to apply unless displaced, including actus dei neminifacit injuriam (an act of God harms no one in law), audi alteram partem (hear the other side), nemo iudexin causa sua (no one may judge their own cause), de minimis non curat lex (the law does not concern itself with trifles), lex non cogit ad impossibilia (the law does not compel the impossible), and omniapraesumuntur rite et solemniter esse acta (all acts are presumed to have been done correctly and formally).

Repealed and Retroactive Legislation

This part of the subject examines what happens when legislation is repealed, expressly or by implication, and when legislation is said to operate retrospectively.

Students must be able to explain the legal consequences that follow a repeal: a repealed enactment does not automatically revive anything that was not in force before it, its previous operation while it was in force is generally not undone, rights or obligations already acquired or accrued under it are typically preserved, and care must be taken where the applicable law changes while a court action is still pending.

The 1992 Constitution’s own provisions on accrued rights must also be read alongside the general common law presumption against retrospective legislation. Legislative amendment is treated as a distinct but related topic, covering the meaning and types of amendment, the essential elements of a valid amendment, and how an amendment operates in time.

Ouster Clauses and Judicial Review

An ouster clause is a provision in a private document, a statute, or even the Constitution that purports to make a decision ‘final’ and to shut out further recourse to the courts.

The 1992 Constitution itself contains indemnity or ouster-type provisions, and students are expected to know how such clauses interact with the courts’ supervisory jurisdiction and judicial review. This includes identifying who is amenable to judicial review, the recognised grounds of review, and the fora exercising supervisory jurisdiction, together with the classic remedies of certiorari, correction of errors of law on the face of the record, injunctions, and, in matters touching chieftaincy, the writ analogous to quo warranto.

The Major Approaches to Statutory Interpretation

Ghanaian courts, following the wider common law tradition, recognise several named approaches to reading statutes:

• The literal or literalist approach: giving words their plain, ordinary, grammatical meaning even where the outcome seems harsh, provided the language is genuinely clear.

• The golden rule: modifying the literal meaning only so far as necessary to avoid an absurd or repugnant result.

• The mischief rule, associated with Heydon’s Case: asking what defect or ‘mischief’ in the previous law Parliament intended the new provision to remedy, and reading the provision to suppress that mischief and advance the remedy.

• Textualism and strict constructionism: closely allied to the literal approach, insisting that the enacted text, not speculation about legislative purpose, controls.

• The modern purposive approach: reading the statute as a whole in the light of its evident object, an approach increasingly favoured in Ghana and reinforced by principles in the Interpretation Act, 2009 (Act 792).

Comparative scholarship, distinguishes shades of purposive reading, from a narrow, subjective search for the actual purpose the drafters had in mind, to a broader, more objective search for the purpose a reasonable lawmaker would be taken to have had, sometimes described as the ‘ultimate purpose’. Examination candidates should be able to compare these approaches critically rather than simply listing them.

Interpreting the 1992 Constitution

Constitutional interpretation borrows from, but also goes beyond, ordinary statutory interpretation, because a constitution is both a legal instrument and a political charter meant to endure across generations.

Key concepts students must master include the supremacy of the Constitution, respect for the democratic values set out in the Preamble (including the rule of law, justice, and human rights), the idea of the Constitution as a ‘living organism’ capable of growth, the distinction between the letter and the spirit of the Constitution, the doctrine of separation of powers, and the place of the Directive Principles of State Policy.

This part of the course also covers the historical development and enforcement of fundamental human rights under the 1992 Constitution, the political question doctrine and the extent to which Directive Principles are justiciable, and the historical role the Supreme Court of Ghana has played, and continues to play, in shaping constitutional interpretation through its exercise of the original and reference jurisdiction under Article 130.

Final Thoughts for Pre-Bar Students

The law of interpretation rewards students who resist the temptation to memorise Latin maxims in isolation. Examiners are far more interested in whether a candidate can apply the correct rule, canon, or presumption to a concrete set of facts, and can explain why one interpretive approach was preferred over another in a given Ghanaian case.

Build your revision around the recommended texts for this course, work through the recognised leading cases summarised above, and always ask, for every problem question: what is the document, what is the apparent ambiguity, and which rule of interpretation genuinely resolves it, rather than merely sounds impressive.

Frequently Asked Questions (FAQs)

What is the law of interpretation?

The law of interpretation is the body of rules, canons, and presumptions that courts use to discover the meaning intended by the maker of a document, whether that maker is Parliament, a testator, or contracting parties.

What is the difference between interpretation and construction?

Some scholars distinguish the two, treating construction as the general reading of a text and interpretation as the special exercise triggered once ambiguity appears. For examination purposes, both terms are generally treated as pointing to the same task of ascertaining true legal meaning.

What law governs statutory interpretation in Ghana?

The principal legislation is the Interpretation Act, 2009 (Act 792), applied alongside common law canons of construction and the presumptions developed through Ghanaian case law.

What are the main approaches to statutory interpretation?

The main approaches are the literal rule, the golden rule, the mischief rule, textualism, and the modern purposive approach, which is increasingly favoured by Ghanaian courts.

When must a court refer a matter to the Supreme Court under Article 130?

Only where there is a genuine, non-fanciful question of interpretation, for example where the words are genuinely ambiguous or two constitutional provisions conflict. Where the meaning is already plain, no reference is warranted and the ordinary appeal process applies.

Why does the law of interpretation matter for Pre-Bar students?

It underpins almost every other subject on the course. Constitutional law, Company Law, Land Law, Criminal Law, and all eventually turn on what the words in a statute, Will, or contract actually mean.