1 THE LAW AND PRACTICE OF JUDICIAL REVIEW BY JUSTICE ...

In short, my purposive interpretation of article 141 of the 1992 Constitution is
that it is not inconsistent with the continued existence of the common law
relating to the prerogative writs and orders. Accordingly, the body of English
administrative case law which has evolved around these orders is available to
the Ghanaian High Court as persuasive authorities, to be customised to our
circumstances as appropriate. The development of administrative law
through judicial review was one of the crowning achievements of the English
jurisdiction in the second half of the twentieth century and it would be
defeating one of the purposes sought by the Constitutional Commission which
proposed the establishment of the High Court under the 1969 Constitution, if
the Ghanaian jurisdiction were, through an interpretation by this Court, to be
deprived of the benefit of this common law advance in the protection of the
liberty of the citizen in his or her dealings with the administration. In sum,
article 141 of the 1992 Constitution is supplemented by the existing common
law on the prerogative orders.”
This point about the jurisdiction of the High Court not being limited to “lower courts
and adjudicatory authorities in The Gambia” is an important one, since if judicial
review is thus limited, then public officials and bodies which are not adjudicatory
would escape the jurisdiction. Mandamus, for example, is usually directed at such
officials and bodies, rather than at lower courts and adjudicatory authorities.
My judicial remarks in the Ex parte CHRAJ case set out above are fully relevant to
the Gambian jurisdiction as well. In this jurisdiction, they are buttressed by section
16 the Law of England (Application) Act (Cap. 5 of the 1990 Revised Edition of the
Laws of the Gambia. It provides that in any case in which the High Court of Justice
in England was immediately before the eighteenth day of February, 1965, by virtue of
the provisions of section 7 of the Administration of Justice (Miscellaneous
Provisions) Act, 1938, empowered to make an order of mandamus, prohibition or
certiorari, the High Court shall have power to make a similar order. The provision
also lays down an obligation for Rules of Court to be made under subsection 55(1) of
the Courts Act:
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