MONDAY ESSAY: The Corpse In Court: Examining Judicial Attitudes To Restraining Orders Over Dead Bodies

Introduction

Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser… As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.

Death – life’s certainty – leads to several cultural, emotional and legal complexities resulting in an unavoidable engagement with the law. This engagement of the law with death usually manifests in disputes, common of them being disputes over dead bodies. These disputes frequently pit family members against one another and at times involve medical institutions or funeral homes. The result of such conflicts is the huge financial costs, strained family and societal relationships, waste of time and the denigration of the dignity and cultural heritage of the deceased person. Courts are often called upon to intervene, exercising their discretionary power to grant injunctions to restrain a party from burying the deceased and even sometimes to order exhumation. The grant of restraining orders in disputes over dead bodies is a fact-specific exercise of judicial discretion which requires careful consideration of competing rights and interests. Ghanaian courts have developed a nuanced approach to these disputes balancing the right to bury a deceased person with considerations of public health, safety and morality. The author examines judicial attitudes to injunction applications in disputes over dead bodies in Ghana, highlighting the court’s approach to balancing competing interests and rights.

The legal right over dead bodies under Ghanaian law

When dealing with burial disputes, it is a common question to be answered, that is, “who has ownership of a deceased’s body?” Under common law, specifically as espoused in the case of R v Sharpe [1857] Dears & Bell 160, it is settled that there is no property right in a dead body or a corpse. Accordingly, the courts under common law emphasize that a corpse does not form part of the estate of the deceased person. That notwithstanding, the Ghanaian courts have decided that a corpse belongs to the customary family of the deceased. This means that under Ghanaian jurisprudence, the corpse absolutely vests in the wider family who are by law responsible for giving the deceased a funeral that is befitting of the status that the deceased attained in life and also a burial that generally is compatible with the social standing of the family in the community. This position of the law in Ghana has received judicial confirmation in cases such as Neequaye and Another v Okoe [1993-94] 1 GLR 538; Nii Kpakpo Amaate II v Daniel Sackey Quarcoopome and 3 Others, Suit No. GJ/273/2019 and Seinye Lulu-Briggs and 3 Others v Dumo Lulu-Briggs and 4 Others; Suit No. GJ/1601/2019. Ghanaian courts have, however, made it clear that though under statute and common law; the spouse and children have no inherent right to decide on the place of burial or where a deceased spouse or parent must be laid in state, it is within reason that the wishes of the living spouse or child be considered by the wider family during discussions on the funeral arrangements. Accordingly, in the Practice Directions in Determination of Application for Interim/Interlocutory Injunction to Restrain Burial of a Deceased Person 2024 (“Practice Direction”), courts are to be guided by the fact that “the corpse of a deceased person is under the control and authority of the family which includes both the immediate and the wider family members.” In the broader scheme of things, the family is obligated to arrange for a funeral that reflects the deceased’s social standing and the family’s dignity.

Judicial Attitudes to injunction applications involving dead bodies

Ghanaian courts have developed a nuanced approach to injunction applications in disputes over dead bodies, balancing competing interests and rights. In disputes over burial, courts are usually called upon to grant injunctions to restrain a party from burying the deceased pending determination of the dispute. An injunction is an equitable remedy which is discretionary such that the court grants it only when it is just and convenient to do so. Injunctions are purposed to protect a right where that legal right could be asserted either at law or equity. This means that the court will not lightly interfere with the right to bury a deceased person, and will only grant an injunction if there is clear ground for doing same. Courts are duty bound to weigh the strengths of the claim as well as the strength of the defence so as to decide what is the best action to take – whether to grant or to refuse the injunction.

Firstly, the courts consider whether the case of the applicant, in line with Order 25 of the High Court (Civil Procedure) Rules, 2004 (CI 47), is not frivolous. To ensure same, the Practice Directions require the courts to give credence to applications that are filed timeously supported by clear evidence necessitating the grant of the restraining order. In that light, applications that are brought closer to the scheduled burial and funeral arrangements may be denied as being frivolous and in clear disregard for the paramountcy and respect attached to burial rites. Connected with this first rule is the fact that the courts would ensure that the applicant has demonstrated that he or she has a legal or equitable right which needs to be protected by the court.

The courts are further enjoined to consider the status quo and to ensure that same is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter. In doing that, the court also considers the balance of convenience such that where the grant would cause serious hardship to the other party, the application would be refused. All in all, this duty requires weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief. A combined application of these guiding principles means that courts critically consider the inimical effects of restraining orders including high funeral expenses that arise in the process and ensure that nothing contributes to exacerbating these negative outcomes. A lot is at stake during funeral and burial preparations, and the last thing a court will do is to contribute to putting the lives of several bereaved family members on hold who remain anxious awaiting the end of the dispute in order to bury the deceased. The courts would only do so, when the exigencies of the situation are compelling and demand such action.

Conclusion

In conclusion, the law’s engagement with death and the dead remains a complex and sensitive area which requires careful consideration of competing rights and interests. Ghanaian courts, as has been shown in this essay, have developed a nuanced approach to injunction applications in disputes over dead bodies, balancing the right to bury a deceased person with different considerations. The grant of an injunction is a discretionary remedy exercised to preserve the status quo and prevent irreparable harm. By examining judicial attitudes to these disputes, we gain insight into the court’s approach to resolving these complex and sensitive issues. Ultimately, the court’s role is to ensure that the deceased is treated with dignity and respect, while also upholding the law and protecting the rights of the living. As Ghana’s legal landscape continues to evolve, it is essential that courts remain sensitive to the cultural, emotional and legal complexities surrounding death and the dead.

God bless!