Unlawful Regulatory Actions

Regulatory authorities play an important role in protecting consumers, maintaining market integrity, and ensuring compliance with applicable laws and regulations. However, regulatory powers must be exercised lawfully, fairly, and within the authority granted by legislation.

Unlawful Regulatory Actions may arise where a regulator or public authority acts outside its legal powers, fails to follow required procedures, breaches applicable duties, or makes decisions that are unreasonable, disproportionate, discriminatory, or otherwise contrary to the law. 

A. EXAMPLES OF REGULATORY ACTIONS THAT MAY REQUIRE REVIEW

1. EXCEEDING LEGAL POWERS (ULTRA VIRES, MANDATE CREEP, ILLEGALITY, ETC.)

Taking action beyond the authority granted by legislation or regulations.

For example, where a statutory body exercises powers that the law has not granted to it, or uses its powers for a purpose not authorized by the law, any decision resulting from such an act may be challenged on the ground of illegality.

2. PROCEDURAL IRREGULARITIES

Failing to follow required consultation, notice, hearing, or decision-making procedures.

Procedural impropriety occurs where a decision-maker fails to follow the procedures required by law in arriving at a decision. Where a statute prescribes a specific procedure for performing a function or making a decision, that procedure must be strictly followed. Failure to do so gives the aggrieved party the right to apply for judicial review to seek redress.

3. UNLAWFUL ENFORCEMENTS

Imposing restrictions, penalties, directions, or other enforcement measures without an adequate legal basis.

4. FAILURE TO CONSIDER RELEVANT EVIDENCE

Making decisions without properly considering material information or representations.

5. DISPORPORTIONATE MEASURES

Taking enforcement action that may be excessive in relation to the regulatory objective being pursued.

6. UNREASONABLE DECISIONS

Decisions that may be legally challengeable because of serious errors in reasoning or decision-making.

This principle originates from the famous case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, which established what is commonly known as the Wednesbury principle of unreasonableness. In that case, a cinema operator was granted a licence subject to the condition that children under fifteen years of age could not be admitted to the cinema on Sundays.

The operator challenged the condition as unreasonable. The Court stated that a decision may be considered unreasonable where it meets these three tests. That; ‍

1 The decision-maker considered factors that ought not to have been considered or

2 The decision-maker failed to consider relevant factors that ought to have been considered; or

3 The decision is so unreasonable that no reasonable authority would have made it.

7. UNLAWFUL CONDITIONS OR REQUIREMENTS

Imposing requirements that are not properly supported by the regulator's statutory powers.

8. FAILURE TO GIVE ADEQUATE REASONS

Where applicable, failing to properly explain the basis for a significant regulatory decision.

B. PROTECTING YOUR RIGHTS

Businesses and individuals affected by regulatory action should obtain appropriate legal advice promptly, particularly where enforcement deadlines, licences, authorisations, financial penalties, or other significant consequences are involved.

Every regulatory authority must operate within the limits of its lawful powers. Where those limits may have been exceeded, the decision and the process leading to it can be examined through the appropriate legal channels.

C. REVIEWING REGULATORY DECISIONS

A regulatory decision should be assessed carefully against the relevant legislation, regulations, regulatory framework, evidence, and procedural requirements.

Depending on the circumstances, available remedies may include internal review, representations, complaints, appeals, judicial review, or other legal proceedings.

D. LEGAL REMEDIES

Ghana is governed by the rule of law, and public authorities are required to exercise their powers within the limits imposed by the Constitution and other laws.

When courts, adjudicating authorities, or administrative bodies or officials act outside those limits, the law provides the mechanism of Judicial Review to correct such actions.

1 JUDICIAL REVIEW GROUNDS

Judicial Review plays a critical role in ensuring accountability, fairness and legality in the exercise of public power.

Judicial review refers to the exercise of the supervisory jurisdiction of the courts to regulate and control the conduct and decisions of courts, adjudicating authorities, and administrative bodies or officials. 

It is the power of the courts to examine the actions and decisions of the court, adjudicating authorities, and administrative bodies or officials and determine whether those actions comply with the Constitution and the laws of Ghana.

2 JUDICIAL REVIEW FOCUS

This focusses on whether a decision-maker acted lawfully and reasonably and in accordance with due process as well as empowers an aggrieved person to apply to challenge such decisions where it is alleged to be unlawful.

3 JUDICIAL REVIEW LEGAL PROVISIONS

Judicial Review in Ghana is grounded in both the 1992 Constitution of the Republic of Ghana and the High Court (Civil Procedure) Rules 2004, (CI. 47).

Article 132 of the 1992 constitution

Grants the Supreme Court supervisory jurisdiction over all courts and adjudicating authorities. In exercising this jurisdiction, the Court may issue orders and directions to ensure that its supervisory authority is properly enforced. ‍

Article 141 of the 1992 Constitution

Also provides that the High Court has supervisory jurisdiction over all lower courts and adjudicating authorities and may issue orders and directions necessary to enforce its supervisory powers. ‍

Article 23 of the 1992 Constitution

Imposes an obligation on adjudicating authorities and officials to act fairly, reasonably and in accordance with the laws of Ghana. It also grants persons who are aggrieved by the actions or decisions of such bodies the right to seek redress before a court or tribunal.

When a regulatory action is declared unlawful, it is generally treated as void ab initio (invalid from the start). Affected parties can seek judicial review through courts using specific legal remedies.

POSSIBLE LEGAL OUTCOMES

When it is determined that the decision of a court, adjudicating authority, administrative body or official is unlawful, the court may grant one or more of these remedies

Certiorari

Certiorari is an order issued by the court to quash or set aside a decision made by a court, adjudicating authority, or administrative body or official. This remedy effectively nullifies the unlawful decision.

Quashes or sets aside the unlawful decision. 

Prohibition

Prohibition is a remedy used to restrain or prevent a body from performing an unlawful act. It is typically used where a body is about to act outside its jurisdiction.

Stops the regulator from carrying out an illegal act.

Mandamus

Mandamus is an order compelling a public authority to perform a duty that the law requires it to perform. For a court to grant mandamus, it must generally be shown that the applicant made a prior demand for the duty to be performed and the body refused or failed to perform that duty.

Forces the public body to perform a mandatory legal duty properly.

Quo Warranto

This is an order used to challenge the authority under which a person occupies a public office. It is often used where a person is alleged to be unlawfully occupying a public position.

Habeas Corpus

This is a remedy used to challenge unlawful detention. It compels the authority detaining a person such as the police, prison authorities, or military, to produce a detained individual before the court and justify the detention.

If the detention cannot be legally justified, the court may order the person’s immediate release.

Declaration

A declaration is a formal statement by the court defining the legal rights or obligations of parties or clarifying the legal position of a matter.

Formally clarifies the legal rights of the parties involved.

E. TAKING ACTION TODAY

If you believe a regulator or public authority has acted unlawfully, unfairly, or outside its legal powers, do not leave the matter unresolved. Early assessment can help identify your options and any important deadlines.

Contact us today for a confidential initial discussion about your situation - your regulatory dispute deserves proper scrutiny. We can help you understand the regulatory action taken against you, identify potential legal issues, and consider the appropriate next steps.

No Upfront Fee Required.

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