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Civil Procedure

Jurisdiction

The structure of the courts has been divided into two; Superior Courts of Judicature and
Lower Courts or Tribunals.

Superior Courts of Judicature

Per Article 126(1)a of the 1992 Constitution of Ghana, the Superior Courts of Judicature
consist of;

i. The Supreme Court;

ii. The Court of Appeal; and
iii. The High Court and Regional Tribunals

These courts are courts of record in the sense that their decisions are usually reported in the
official law reports.

In Iddrisu v Amartey, it was stated that; ‘the High Court, just like all other superior courts is
a court of record. What this means is that there must be a record of everything that is done
and or directed by the court. this will therefore encompass not only processes filed before
the court, but also a record of arguments, submissions, evidence, led by the parties and
witnesses and the decisions or orders and judgements of the courts. Whenever the record of
any such process or event that is deemed to have taken place in the court is not available to
be referred to, then the record of such an event cannot be accepted as having taken place’-
DOTSE JSC.

Lower Courts and Tribunals

According to Article 162(2) of the 1992 Constitution of Ghana, the Judiciary shall consist of
such lower courts or tribunals as Parliament may by law establish.

A lower court is simply a court with limited jurisdiction as defined by the statute which set
it up. A case decided under Article 126(1) of the 1992 Constitution which touched on the
meaning of lower courts is Republic v High Court, Accra; Ex Parte Commission on Human
Rights and Administrative Justice (Addo Interested Party).

The lower courts established pursuant to Article 126 of the Constitution are detailed in
Section 39 of the Courts Act 1993 (Act 459). These courts are;

i. Circuit courts
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ii. District courts

iii. Juvenile courts; and
iv. The National House of Chiefs, Regional House of Chiefs and every Traditional
Council, in respect of the jurisdiction of that House or Council to adjudicate over
a cause or matter affecting chieftaincy.

The Supreme Court

It is the highest court in Ghana which also doubles as the Constitutional Court.

Exclusive Jurisdiction of the Supreme Court

1. According to Article 2(1) of the Constitution, a person who alleges that-

a. An enactment or anything contained in or done under the authority of that or
any other enactment; or
b. Any act or omission of any person;

Is inconsistent with, or is in contravention of a provision of the Constitution, may bring an

action in the Supreme Court for a declaration to that effect.

2. According to Article 130(1), subject to the jurisdiction of the High Court in the
enforcement of fundamental human rights and freedoms as provided in Article 33,
the Supreme Court shall have exclusive original jurisdiction in
a. All matters relating to the interpretation and enforcement of the Constitution;
and
b. All matters arising as to whether an enactment was made in excess of the powers
conferred on Parliament or any other authority or person by law or under this
Constitution.
3. According to Article 135, the Supreme Court has exclusive jurisdiction to determine
whether an official document should be produced in court because its production or
the disclosure of its contents will be prejudicial to the security of the State or will be
injurious to the public interest.

Appellate Jurisdiction of the Supreme Court

According to Article 129(1), the Supreme Court shall be the final court of appeal and shall
have such appellate and other jurisdiction as may be conferred on it by the Constitution or
by any other law.

Article 131(1) states that

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(1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court-

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been
brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in
the exercise of its original jurisdiction; or

(b) with the leave of the Court of Appeal, in any other cause or matter, where the case was
commenced in a court lower than the High Court or a Regional Tribunal and where the
Court of Appeal is satisfied that the case involves a substantial question of law or is in the
public interest.

Article 131(3) also states that the Supreme Court shall have appellate jurisdiction, to the
exclusion of the Court of Appeal, to determine matters relating to the conviction or
otherwise of a person for treason or high treason by the High Court.

Supervisory Jurisdiction

According to Article 132 of the Constitution, the Supreme Court shall have supervisory
jurisdiction over all courts and over any adjudicating authority and may, in the exercise of
that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or
securing the enforcement of its supervisory power.

Review Jurisdiction

According to Article 133(1), the Supreme Court may review any decision made or given by
it on such grounds and subject to such conditions as may be prescribed by the rules of court.

The Prerogative of Mercy

According to Section 9 of the Courts Act,

Where a person is convicted or sentenced for an offence by a Court established under the
Constitution or this Act and a petition is presented to the President for the exercise of the
prerogative of mercy in respect of the conviction or sentence, the President may, except in
the case of a sentence of death,

(a) refer the case to the Supreme Court which shall hear and determine the case as if it
were an appeal by a person convicted, or

(b) if the President desires the assistance of the Supreme Court on a point arising in the
case with a view to the determination of the petition, refer that point to the Supreme Court
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for its opinion; and the Supreme Court shall consider the point referred to it and furnish the
President with its opinion.

How to invoke the jurisdiction of the Supreme Court;

i. By appeals under article 129(1) and 131 of the Constitution.

ii. By application for judicial review or prerogative writs under Article 132.
iii. Applying for a review of its decisions under Article 133.
iv. By the invocation of its original jurisdiction under article 130 by a writ for the
interpretation or enforcement of the constitution.
v. By way of a reference from a lower court to the Supreme Court under Article
130(2) of the Constitution
vi. By an application for the determination of whether an official document should
be produced or not under article 135 of the Constitution.

The Supreme Court is duly constituted by not less than 5 judges at a regular sitting (article
128(2), not less than 7 judges for review (article 133(2) and 9 or more judges for
constitutional cases.

Article 134 permits a single justice of the court to sit as the Court.

Court of Appeal

It has no original and no supervisory jurisdiction as stated by Adade J.SC. in Takyi v

Ghassoub (Ghana) Ltd. It only hears appeals from decisions or order of the High Court, the
Regional Tribunal and the Circuit Court (in civil matters only).

According to Article 137(1) the court of appeal shall have jurisdiction throughout Ghana to
hear and determine, subject to the provisions of the Constitution, appeals from a judgement,
decree or order of the High Court and Regional Tribunals and such other appellate
jurisdiction as may be conferred on it by the Constitution or any other law.

According to section 11 of the Courts Act,

(1) In accordance with article 137 of the Constitution, the Court of Appeal has jurisdiction to
hear and determine, subject to the Constitution, appeals from a judgment, decree or an order
of the High Court or a Regional Tribunal and any other appellate jurisdiction conferred on it
by the Constitution or any other law.
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(2) Except as otherwise provided in the Constitution, an appeal lies as of right from a
judgment, decree or an order of the High Court and a Regional Tribunal to the Court of
Appeal.

(3) The Court of Appeal shall have

(a) jurisdiction to hear appeals from a judgment of a Circuit Court, in a civil cause or
matter, and

(b) in a cause or matter in which jurisdiction is conferred on the Court of Appeal under
any other enactment.

(4) A person aggrieved by a judgment of a Circuit Court in a civil cause or matter may
appeal against the judgment to the Court of Appeal.

(5) A person aggrieved by an interlocutory order or decision made or given by a Circuit

Court may appeal to the Court of Appeal against the order or decision with the leave of the
Circuit Court and upon a refusal, with the leave of the Court of Appeal, and the Court of
Appeal has jurisdiction to hear and determine that appeal.

(6) Where a party desires to appeal to the Court of Appeal in a criminal case, that party shall
give notice of appeal or notice of an application for leave to appeal within one month of the
decision appealed against.

(7) The Court of Appeal or the Court whose decision is appealed against, may extend the
time specified in subsection (6).

(8) The Court of Appeal shall not entertain an appeal unless the appellant has fulfilled the
conditions prescribed in that behalf by the Rules of Court.

(9) For the purposes of hearing and determining an appeal within its jurisdiction and the
amendment, execution or enforcement of a judgment or an order made on an appeal, and
for the purpose of any other authority expressly or by necessary implication given to the
Court of Appeal by the Constitution, this Act or any other law, the Court of Appeal has the
powers, authority and jurisdiction vested in the Court from which the appeal is brought.

Section 13 - Powers of the Court of Appeal in special cases

(1) Where it appears to the Court of Appeal that an appellant, though not properly
convicted on a count or part of the indictment or charge, has been property convicted on any
other count or part of the indictment or charge, the Court may
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(a) confirm the sentence passed on the appellant at the trial, or

(b) pass a sentence in substitution for it as may be warranted in law by the verdict on the
count or part of the indictment or charge on which the Court considers that the appellant
has been properly convicted.

(2) Where an appellant is convicted of an offence and the Justice, the jury or panel who tried
the appellant, could on the indictment or charge have found the appellant guilty of any
other offence, and on the finding of the Justice, jury or panel it appears to the Court of
Appeal that the Justice, jury or panel must have been satisfied of facts which proved the
appellant guilty of that other offence, the Court of Appeal may substitute for the verdict
found by the Justice, jury or panel a verdict of guilty of that other offence, and pass the
sentence, in substitution for the sentence passed at the trial, that is warranted in law for that
other offence.

(3) Where at the trial of the appellant, the jury or panel found a special verdict and the
Court of Appeal considers that a wrong conclusion had been arrived at by the Court before
which the appellant was convicted on the basis of that verdict, and the Court of Appeal may
order a conclusion to be recorded that appears to the Court of Appeal to be in law required
by the verdict, and make the order that is warranted in law.

(4) Where after the trial of the appellant a special verdict is found and the Court of Appeal
is satisfied that the special verdict was wrongly found, the Court of Appeal may set aside
the verdict and substitute an order of conviction or acquittal or may make the order that is
warranted in law.

(5) Where on an appeal it appears to the Court of Appeal that although the appellant was
guilty of the act or omission charged but that the appellant was insane at the time the act
was done or omission made so as not to be responsible according to law for the act or
omission, the Court may set aside the sentence passed at the trial and order the appellant to
be kept in custody as a criminally insane person in a place and in the manner directed by the
Court until the pleasure of the President is known and the President may give orders for the
safe custody of the appellant.

(6) Where the Court of Appeal is of the opinion that the proceedings in the trial court were a
nullity through want of jurisdiction or otherwise, the Court of Appeal may order the
appellant to be tried by a court of competent jurisdiction.
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(7) Where the Court of Appeal is satisfied that owing to exceptional circumstances the
interest of justice requires that there should be a re-trial, the Court may order a re-trial on
the terms and conditions specified by the Court.

The Court of appeal is duly constituted three of its members sitting on any matter over
which it has jurisdiction. It has two main divisions, namely the Civil and Criminal Divisions.

The Court of Appeal is the final appellate court in election petitions, to the exclusion of the
Supreme Court. in re parliamentary election for Wulensi Constituency; Zakaria v
Nyimakan held that there is no right of an appeal from an election petition determined by
the High Court under article 99(1) of the 1992 Constitution. Election petitions apart, all
decisions of the Court of Appeal are appealable to the Supreme Court.

The High Court

According to Article 139(2) of the Constitution, The High Court shall be constituted -

(a) by a single Justice of the Court; or

(b) by a single Justice of the Court and jury; or

(c) by a single Justice of the Court with assessors; or

(d) by three Justices of the Court for the trial of the offence of high treason or treason as
required by article 19 of this Constitution.

According to Article 140,

(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in
all matters and in particular, in civil and criminal matters and such original, appellate and
other jurisdiction as may be conferred on it by this Constitution or any other law.

The matters excluded were enumerated in Republic v High Court, Cape Coast, Ex Parte
Kow Larbie by the Supreme Court, per Amua-Sekyi JSC thus:

‘Although article 140(1) of the 1992 constitution confers on the High Court jurisdiction in all
matters, this is made subject to other provisions of the constitution. The provisions that
restrict the jurisdiction of the High Court are the following:

a. Article 2 confers original jurisdiction on the Supreme Court in actions in which it is

alleged that an enactment…is inconsistent with, or a contravention of a provision of
the Constitution.
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b. Article 130(1), which while preserving the jurisdiction of the High Court in the
enforcement of human rights provisions of the Constitution, confers exclusive
original jurisdiction on the Supreme Court in all other constitutional matters.
c. Article 273(5) gives judicial committees of the National House of Chiefs original
jurisdiction in any cause or matter affecting chieftaincy where the cause or matter lies
within the competence of two or more Regional Houses of Chiefs, or is not properly
within the jurisdiction of a Regional House of Chiefs,
d. Article 274(3)(d) gives judicial committees of regional houses of chiefs original
jurisdiction in all matters relating to a paramount stool or skin or the occupant or
queenmother of such a stool or skin
e. Article 270(1) preserves the power of traditional councils to adjudicate in disputes
concerning the validity of the nomination, election, selection, installation or
deposition of a person as a chief.

(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and
Freedoms guaranteed by this Constitution.

Per Article 33,

1) Where a person alleges that a provision of this Constitution on the fundamental human
rights and freedoms has been, or is being or is likely to be contravened in relation to him,
then, without prejudice to any other action that is lawfully available, that person may apply
to the High Court for redress.

(2) The High Court may, under clause (1) of this article, issue such directions or orders or
writs including rites or orders in the nature of habeas corpus, certiorari, mandamus,
prohibition, and quo warrant as it may consider appropriate for the purposes of enforcing or
securing the enforcement of any of the provisions on the fundamental human rights and
freedoms to the protection of which the person concerned is entitled.

The Supreme Court has held that the High Court has jurisdiction for the enforcement of the
fundamental human rights of the individual but where the human right being enforced is of
public interest, then it is the Supreme Court that has jurisdiction. Adjei Ampofo (No 1) v
Accra Metropolitan Assembly and Attorney General (No. 1).

Per Article 141, the High Court shall have supervisory jurisdiction over all lower courts and
any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders
and directions for the purpose of enforcing or securing the enforcement of its supervisory
powers.
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Although the Supreme Court has supervisory jurisdiction over all courts and adjudicating
authorities, and may therefore exercise supervisory jurisdiction over lower courts and
tribunals concurrently with the High Court, applications relating to those courts and
tribunals ought to be made in the High Court.

Thus in Republic v High Court, Accra, ex parte Industrialisation Fund for developing
Countries, the Supreme Court per Twum JSC stated ‘theoretically, the supervisory
jurisdiction of the Supreme Court may be invoked in respect of the orders or decisions by…
the circuit court or even a judicial committee of a traditional council. Consequently, the
Supreme Court has concurrent supervisory jurisdiction with the High court over all lower
courts and any lower adjudicating authority. This obvious duplication was addressed by
Practice Direction (Practice and Procedure of the Supreme Court). Para 6 of this practice
states: ‘it is also to be noted that where a cause or matter can be determined by a superior
court, other than the Supreme Court, the jurisdiction of the lower court shall first be
invoked’.

In Republic v Adrie and others; Ex Parte Kpordoave III, it was held that ‘a customary
arbitration body was an adjudicating authority created by custom and as such a creature of
the common law of Ghana. They had jurisdiction as an adjudicating authority to determine
questions affecting the rights of the subjects of the country and any decision of theirs was
recognised by law as binding on the parties who submitted to its jurisdiction. The courts
were clothed with power to enforce the decisions of such customary arbitrations and that
apart, an award of a customary arbitration could operate as estoppel per rem judicatam.
Therefore such a body could not be described as a private domestic body. If the courts had
to enforce the awards of the arbitration bodies then as inferior tribunals they had to be
amenable to the supervisory jurisdiction of the High Court’.

All decisions of the High Court are appealable to the Court of Appeal under Article 137(1),
except its decisions in treason or high treason charges which are appealable directly to the
Supreme Court under article 131(3).

It hears appeals from decisions of the district court in civil and criminal matters and from
decisions of the circuit court in criminal matters.

The court has nine divisions which are made up of the

a. General jurisdiction division

b. Commercial division
c. Land division
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d. Economic and financial crime division

e. Criminal division
f. Human rights division
g. Probate and administration division
h. Industrial and labour division
i. Divorce and matrimonial division.

The Regional Tribunal

It has the status of the High Court. it has jurisdiction to try criminal offences against the
State and public interest. it is duly constituted by a chairman who is qualified to be a High
Court judge and not less than two lay members of the public. In Republic v. Yebbi and
Avalifo, the Supreme Court held that decisions of the Regional Tribunal were of the same
status as decisions of the High Court. the Regional Tribunal created under the constitution is
now defunct and exists only in name.

The Circuit Court

The Circuit court, by practice, uses the same civil procedure rules as the high court, which is
CI 47. It has both civil and criminal jurisdiction but within the limits of Act 459 as amended
by Act 464 and Act 620.

In civil actions arising under contract or tort or for the recovery of liquidated claims, its
jurisdiction does not exceed 50,000 cedis as dictated by the Courts (Amendment)
Regulations, 2014, L.I 2211.

It has jurisdiction in land disputes. This jurisdiction is not limited in monetary terms.

It also has jurisdiction in Probate and Letters of Administration where the value of the estate
does not exceed 50,000 cedis. it has jurisdiction in matters of custody of children and
matrimonial causes.

It has jurisdiction in all criminal matters other than treason, offences tried on indictment and
offences punishable by death (section 43)

Appeals from the Circuit court in civil cases are heard in the Court of Appeal because the
High Court as well as the Circuit court apply and use the same civil procedure rules.
(section 44)

Per section 42 of the Courts Act,

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(2) Where there is a dispute as to whether or not an amount of money claimed or the value
of property in an action, [cause or matter] is in excess of the amount or value specified in
subsection (1), in relation to that action, [cause or matter], the Circuit Court shall call
evidence as to the amount or value, and if it finds that it exceeds the amount or value
specified in subsection (1), the Circuit Court shall transfer the case to the High Court.

(3) Where the amount claimed or the value of the property exceeds the amount or value
specified in subsection (1), the Circuit Court shall, notwithstanding that subsection, proceed
to hear the case if the parties agree that it should do so.

District Court

Section 47 - Civil jurisdiction of the District Courts

(1) A District Court shall, within the area of its jurisdiction, have civil jurisdiction

(a) in personal actions arising under a contract or a tort for the recovery of a liquidated
sum of money where the amount claimed does not exceed 20,000 cedis;

(b) to grant, in an action instituted in the District Court, injunctions or orders to stay
waste or alienation, or for the detention and preservation of property which is the subject
matter of that action, or restrain a breach of contract or the commission of a tort;

(c) in claims for relief by way of interpleader in respect of land or any other property
attached in execution of [a decree] [an order] made by the District Court;

(d) in civil [causes or matters] relating to the landlord and tenant of premises, or a person
interested in the premises as required or authorised by a law relating to landlord and tenant;

(e) in actions relating to ownership, possession or occupation of land, where the value of
the land does not exceed 20,000 cedis;

(f) in divorce and other matrimonial [causes or matters] and actions for paternity and
custody of children;

(g) in an application for the grant of probate or letters of administration in respect of the
estate of a deceased person, and in [causes and matters] relating to succession to property of
a deceased person, who had at the time of death a fixed place of abode within the area of
jurisdiction of the District Court and the value of the estate or property in question does not
exceed ten million cedis; and
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(h) hear and determine charges and dispose of any other matters affecting juveniles, that
is persons under the age of eighteen.

(2) Where there is a dispute as to whether or not an amount of money claimed or the value
of land or property in an action, [cause or matter] is in excess of the amount or value
specified in subsection (1) in relation to that action, [cause of matter] the District Court shall
call evidence as to the amount or value, and if it finds that it exceeds the amount or value
specified in subsection (1) the District Court shall, subject to the powers of transfer of the
Chief Justice, transfer the case to a Circuit Court.

(3) Where [in any action, cause or matter] the amount claimed or the value of the land or
property exceeds the amount or value specified in subsection (1), the District Court shall,
notwithstanding that subsection, proceed to hear the case if the parties agree that it should
do so.

Section 48 - Criminal jurisdiction of the District Courts

(1) In criminal matters, a District Court has jurisdiction to try summarily

(a) an offence punishable by a fine not exceeding five hundred penalty units or a term of
imprisonment not exceeding two years or both the fine and the imprisonment;

(b) any other offence, except an offence punishable by death or by imprisonment for life
or an offence declared by an enactment to be a first degree felony, if the Attorney-General
thinks that the case is suitable to be tried summarily, considering

(i) the nature of the offence,

(ii) the absence of circumstances which would render the offence of a grave or serious
character, and

(iii) any other circumstances of the case;

(c) an attempt to commit an offence to which paragraph (a) or (b) applies;

(d) abetment of or conspiracy in respect of that offence.

(2) Subject to this section, a District Court, in the exercise of its jurisdiction in criminal
matters shall not impose a term of imprisonment exceeding two years or a fine exceeding
five hundred penalty units or both the fine and the imprisonment.

(3) A District Court does not have jurisdiction to try an offence under paragraph (b), (c) or
(d) of subsection (1) where the enactment creating the offence has prescribed in relation to
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the offence a minimum penalty that exceeds the penalty permitted to be imposed by a
District Court under subsection (2).

(4) Where under an enactment increased punishment may be imposed upon a person
previously convicted of a crime, a District Court may impose the increased punishment, or
twice the maximum punishment prescribed by subsection (2) whichever is the lesser.

(5) The Attorney-General may, by legislative instrument, amend the amount or value
specified in subsections (1) and (2).

Section 49 - Juvenile Courts

(1) The Chief Justice may designate a District Court as a Juvenile Court.

(2) A Juvenile Court shall be composed of the Magistrate of the District Court as the
presiding person and two other persons one of whom is a social welfare officer and the
other, a person of not less than itwenty-five years both of whom shall be appointed by the
Chief Justice on the recommendations of the Director of Social Welfare.

(3) A Juvenile Court has power to hear and determine a matter civil or criminal that
involves a person under the age of eighteen and shall for that purpose have and exercise the
powers of a District Court.

NB: According to Akati v Nartey, the jurisdiction of a court to hear any particular matter
was ordinarily determined by the plaintiff’s claim and not the defendant’s defence. Hence a
defence should not ordinarily oust the jurisdiction of the court. However, in cases where it
was not clear from the plaint of the plaintiff the category into which the particular case fell,
it was the issue between the parties which determined the type of case it was.

What are civil procedure rules?

They are the body of rules that are formulated to regulate the conduct of civil actions in
court.

Types of civil procedure rules

There are general rules which apply to most civil actions but there are also special rules
governing specific types of civil action. CI 47 has examples of special rules; Order 57 on
defamation actions, order 58 on the practice in commercial court, Order 59 on Mortgage and
Money Lenders action, Order 63 on intellectual property rights and Order 67 on the
Enforcement of Human Rights Actions.
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Sources of civil procedure rules

a. The constitution
b. Statutes creating the courts, eg: courts act
c. Rules of court
d. Practice direction - these are the body of guidelines given by the superior courts
intended to direct the courts and lawyers on matters of practice and procedure. It
sometimes shows how a particular rule of court should be observed or complied
with. It also shows how a particular proceeding should be conducted. For example,
the practice direction on taking evidence in locus in quo is described in Gblevi
Family v Amanie

The rules of court are rules formulated to guide the conduct of civil proceedings in the
respective courts in the country. They are:

a. The Supreme Court Rules, CI 16 as amended.

b. The Court of Appeal Rules, CI 19 as amended.
c. The High Court (Civil Procedure) Rules, CI 47 as amended.
d. The District Court Rules, CI 59 as amended.

High Court (Civil Procedure) Rules 2004 (CI 47)

Per Order 1, Rule 1 of CI 47, the Rules shall apply to all civil proceedings in the High Court
and Circuit Court, except that the Circuit Court shall be with such modifications as may be
necessary.

The overriding objectives of the Rules are stated in Order 2, Rule 2 which provides that the
rules shall be interpreted and applied so as to;

a. achieve speedy and effective justice,

b. avoid delays and unnecessary expense,

c. and ensure that as far as possible, all matters in dispute between parties may be
completely, effectively and finally determined,

d. and multiplicity of proceedings concerning any such matters avoided.

The rules have provisions that seek to ensure that the above objectives are achieved through
the cooperation of the court, lawyers and parties. For example;
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a. Order 37 r 2 provides that it is the duty of the court, lawyers and their clients to
avoid all unnecessary adjournments and delays and to ensure that cases are disposed
of speedily as the justice of each case will require.
b. Order 37 r 3 also provides that a party who delays proceedings for 6 months cannot
proceed without giving a mandatory 28 days’ notice of intention to proceed to the
other party.
c. Order 81 generally provides that non-compliance with the rules of the court does not
nullify the proceedings or any part of it. The rule in Order 81 thus seeks to provide
parties and the court an opportunity to cure defects committed by parties in the
application of the rules. Such defects must be such that they do not go to the root of
the matter and are thus curable.
The decisions of the Supreme Court show that where the alleged defect or default is
against statute, the rules of natural justice or one that goes to jurisdiction, then such
non-compliance cannot be saved under Order 81.
For example, if a statute provides that an action shall be commenced by a petition, as
under the Matrimonial Causes Act, 1971 and a party commences a matrimonial suit
with a writ, the action will be set aside since that defect cannot be saved by Order 81
because the default or non-compliance is against a substantive statute as against CI
47. Again, if a party, contrary to the rule fails to give the requisite notice to the
opponent and proceeds with a matter, that party would be in breach of the natural
justice rule and Order 81 will not help such a party.

Order 81 thus provides;

Rule 1—Non-Compliance with Rules not to Render Proceedings Void

(1) Where, in beginning or purporting to beg in any proceedings or at any stage in the course
of or in connection with any proceedings, there has, by reason of anything done or left
undone, been a failure to comply with the requirements of these Rules, whether in respect of
time, place, manner, form or content or in any other respect, the failure shall not be treated
as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or
any document, judgment or order in it.

(2) The Court may, on the ground that there has been such a failure as stated in subrule (1),
and on such terms as to costs or otherwise as it considers just
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(a) set aside either wholly or in part the proceedings in which the failure occurred, any step
taken in those proceedings or any document, judgment or order therein; or

(b) exercise its powers under these Rules to allow such amendments to be made and to make
such order dealing with the proceedings generally as it considers just.

Rule 2—Setting aside for Irregularity

(1) An application may be made by motion to set aside for irregularity any proceedings, any
step taken in the proceedings or any document, judgment or order in it, and the grounds of
it shall be stated in the notice of the application.

(2) No application to set aside any proceeding for irregularity shall be allowed unless it is
made within a reasonable time and the party applying has not taken any fresh step after
knowledge of the irregularity.

The following cases speak to the nature and scope of Order 81 of C.I 47

In re Cole & Raven-Shear

Eredec

Republic v High Court, Koforidua, Ex Parte Ansa Otu: in this case, an application for an
order of specific performance of a contract for the sale of land as well as an interlocutory
injunction was granted to the interested party in the case. The applicants therefore sued for
an order of certiorari to quash the decision of the high court on the basis that there was an
error of law apparent on the face of the application because it contravened the rules of court.
The argument was that order 25, rule 1(1) permitted the court to grant an injunction where it
appears just and convenient to do so, and the order may be made either unconditionally or
upon such terms as the court considers just. Further Order 25, rule 9(1) required that where
an application for interlocutory injunction is made under rule 1 and 2 of this order, the court
shall, in the event where the application is opposed, require before making an order, that the
applicant shall give an undertaking to the person opposing the application to pay damages
that person may suffer as a result of the grant of the application if it turns out in the end that
the applicant was not entitled to the order. Sub-rule 2 provided that the giving of an
undertaking required under sub-rule 1 shall be a pre-condition to the making of any order
under rules 1 and 2 of this order. The applicant therefore argued that the court was
 E.A. AFENYO

mandated before making the grant, to order the interested party to give an undertaking to
the applicants to pay damages if it turned out that the interested party was not entitled to
the order sought. Failure to do this therefore entitled them to seek an order of certiorari to
quash the order of the High Court.

Held:

a. Order 81 provides in clear terms that non-compliance with the Rules do not render
proceedings null and void but is a mere irregularity, a voidable but not a void act
which may be set aside on terms.
b. Reference was made to cases including Republic v High Court; Ex Parte Eastwood
where it was said that ‘if therefore there is an error of law appearing on the face of
the record of a superior court which warrants intervention by this court by the
exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong
assumption of jurisdiction or the error is so obvious as to make the decision a
nullity’.
c. As earlier stated, the error complained of in the instant case, was not as to the wrong
assumption of jurisdiction, it being a case of the granting of an order of injunction
manifestly within the jurisdiction of the court; the error complained of was non-
compliance with the mandatory rules of court in not ensuring that the party who
succeeded in obtaining the order in h favour in the teeth of opposition by the losing
side, was made to give an undertaking to pay damages in the event of losing the suit.
I would maintain that the trial judge erred in not complying with the mandatory
terms of rule 9(1) and (2) of Order 25 of CI 47, which error of law was also apparent
on the face of the record. Beyond that, the error did not go to the jurisdiction of the
court in the sense that it did not emanate from a wrongful assumption of jurisdiction
or in violation of a constitutional provision; nor was it a nullity by any b bbb. It was
a mere irregularity curable under Order 81 of the new High Court (Civil Procedure)
Rules, 1997 (CI 47)

Boakye v Tutuyehene

Ex Parte Allgate;

All breaches of the Rules of Court are curable and may be waived by the Court in the
exercise of its discretion except three main irregularities that cannot be waived. These are;
 E.A. AFENYO

1. A breach or a violation that borders on want of jurisdiction of the court

2. A breach of a statutory provision or an enactment other than a breach of the rules of
court, and
3. A breach of any of the constitutional provisions.

Non-service of a process where service is required goes to jurisdiction. Non-service implies

that audi alteram partem is breached. This is fundamental and goes to jurisdiction. Thus, the
reason why even after the coming into effect or order 81, non-service of a process results in a
nullity is not because of non-compliance with a rule of procedure, but rather because it is an
infringement of a fundamental principle of natural justice as recognised under common law.
Similarly, breach of the principle nemo judex would result in a nullity. In contrast, short
service need not be treated as fundamental enough to go to jurisdiction. It should thus be
regarded as an irregularity that may serve as a ground for setting aside the proceedings
following it, but it does not make those proceedings null and void.

Hall & Sons v Bank of Ghana & Another

Sophia Adinyira JSC, although I agree that a court cannot conduct its business without a
code of procedure, I think that the relation of rules of practice to the work of justice is
intended to be that of a handmaiden rather than a mistress, and the court ought not to be so
far bound and tired by rules, which are after all only intended as general rules of procedure,
as to be compelled to do what would cause injustice in the particular case’.

Obeng v Assemblies of God Church

Court allowed an amendment as to the plaintiffs capacity.

Commencement of a Civil Action

Order 2 r 2 of C.I 47 stipulates that subject to any existing enactment to the contrary, all civil
proceedings shall be commenced by filing of a writ of summons.

In practice, a civil action may be commenced by a writ of summons, a petition and an

Originating Motion on Notice, depending on the nature of the dispute and the law
regulating the claim.

Writ is the default except where the law provides otherwise.

What is a writ of summons?

 E.A. AFENYO

A writ of summons is a formal judicial form filed by a plaintiff and issued out of the registry
of a court giving notice to a defendant of the claims brought against him or her and directing
him or her to enter appearance within 8 days.

Per order 83, rule 3, a writ includes a writ of summons and a statement of claim or a petition
in an action.

Who may issue a writ of summons?

This is addressed under order 4, rule 1 of C.I 47.

General rule

Rule 1 (1) provides that subject to the rules, any person may begin and carry on proceedings
in person or by a lawyer.

Body Corporate

However, rule 1(2) provides that a body corporate shall not begin or carry on proceedings
except by a lawyer, unless permitted to do so by an express provision of any enactment.

Person with disability

Further, rule 1(3) provides that a next friend or guardian ad litem of a person with disability
shall act by a lawyer. This is repeated in order 5, rule 1(4)

A person with disability has been defined in Order 5, rule 1(1) as;

 A person under the age of 18 years or

 A person who is certified by a medical officer to be incapable of managing and
administering his or her property and affairs by reason of mental disorder or
infirmity of mind.

Therefore, a person with disability must initiate an action through a next friend or defend an
action through a guardian ad litem and such personalities shall all act through a lawyer.

Contents of a Writ of Summons

A writ of summons must bear;

 The name of the court where the party intends to conduct the proceedings
 E.A. AFENYO

 Order 2, Rule 3(2): The names, residential and occupational addresses of the
plaintiff(s) and
 Order 2, Rule 3(2): The names, residential and occupational addresses of the
defendant(s).

If necessary, the names of all the plaintiffs and defendants should be typed on an additional
sheet and annexed to the writ.

Per Agbesi v Ghana Ports & Harbours Authority, any person whose name does not appear
on the writ ceases to be a party and can only become a party through an application for
joinder. The court noted, per Ansah JSC, that at the initial stage, the title of a writ of
summons must have the names of all plaintiffs or as many as it can contain on its face, or on
a piece of paper attached to the writ (if the writ cannot contain all the names). It is after this
that the heading of subsequent processes can be headed the plaintiffs and others. He further
noted that it is important that the identity and number of the parties in any suit is known at
any given stage of the proceedings. This is to enable the plaintiffs or defendant to know who
their adversaries were so that they could raise issues of estoppel and mount real defences,
etc against each other should it become necessary so to do, at any stage of the proceedings or
in the future, or for the plaintiffs claims or defendants liabilities fought on the merits. It
would also make service of court processes easier, for the parties would know who to serve
any process.

 If the plaintiff is acting through a lawyer, the name and business address of the
lawyer shall be endorsed on the writ. The lawyer must also sign the writ and indicate
his or her solicitor’s licence number.

Thus in The Republic v. High Court (Fast Track Division) Accra, Ex Parte Justin Pwavra
Teriwajah, reference was made to the dictum of Amissah JA in Akuffo-Addo v Quarshie
Idun where he interpreted section 8(1) of the Legal Profession Act, 1960 (Act 32) to mean
that ‘one cannot sign documents or represent a party as a lawyer in court unless he has
obtained a valid solicitor’s licence for that purpose which must be renewed annually.
Consequently, in this case, the decision of the trial court to dismiss an application brought
by the second applicant, a lawyer who had not renewed his solicitor’s licence for the year
2013 was upheld by the High Court.

Further in Henry Nuertey Korboe v Francis Amosa, the appellant argued that the
appellants lawyers breach of Act 32 was a breach solely attributable to the lawyer and it is
not a legal requirement or practice for clients to enquire into the licensing status of a solicitor
 E.A. AFENYO

before instructing him to work on the client’s behalf. He further submitted that section 8(6)
of Act 32 completely deals with the consequences of a lawyers breach of section 8(1) by
penalising the lawyer with criminal sanction and prohibiting him from suing any one for
recovering fees and other receivables arising from any work processes filed or other work
done during the period of default. According to the appellant, since section 8 does not
nullify or void processes filed or other work done during the period of default, the Court’s
holding that processes or legal documents filed or prepared by a solicitor who at all material
times had no valid solicitor’s licence are a nullity constitutes a grave error of law which error
occasioned a miscarriage of justice.

Per Sophia Akuffo JSC,

‘solicitors’ as defined by the Cambridge Dictionary refers to:

 
“a  type  of  lawyer  in Britain  and Australia  who is trained  to  prepare cases  and
give advice  on legal  subjects  and can  represent people  in lower courts.”

Although by the tenor of Section 1 of Act 32 there is, in Ghana, no such separation of the
Legal Profession as pertains in certain common law jurisdictions, where, as in section 8, the
term solicitor is applied it is applied as a term of science and means precisely what in the
legal fraternity is meant by ‘solicitor’, in relation to the activity the lawyer is undertaking. If
he cannot be functioning as a solicitor, then in what capacity would he be endorsing the
writ? Effectively, the writ would be legally incomplete and therefore not properly sued out;
it would be non est  because the lawyer performing the solicitor function would be
unlicensed at the material time.
 
Finally, if the Applicant (or any member of the public for that matter), whether out of
diffidence or ignorance, fails to exercise his clear right to verify the credentials and legal
capacity of his lawyer to perform the services he is engaged to undertake, that cannot give
rise to an exceptional circumstance which has resulted in miscarriage of justice such as
would merit the exercise of our review jurisdiction. Any injustice (if there be any, and I say
there is none) in the matter has been generated by the unlicensed solicitor, not this Court.

Note that it is wrong for a lawyer to just put his or her chamber’s stamp on the writ, instead
of stating his name and signing the writ. As already indicated, a writ of summons issued by
a lawyer without the lawyer’s name and signature is null and void.
 E.A. AFENYO

 Order 2, Rule 3(1): The nature of claim, relief or remedy sought by the plaintiff in the
action.
 Order 2, Rule 3(3): where the plaintiff’s claim is for a liquidated demand only, the
writ shall include in addition to the amount claimed in respect of the demand, a
statement that further proceedings will be stayed if within the time limited for
appearance, the defendant pays the amount claimed either to the plaintiff or the
plaintiff’s lawyer or into court if the plaintiff is resident outside the country or is
acting on behalf of a person so resident or if the defendant is making the payment by
an order or on behalf of a person resident outside the country.
An omission to state this on the writ can be cured under Order 81. The essence of this
undertaking is that if the claim by the plaintiff is liquidated, then payment of same
by the defendant should terminate the action.
 Order 2, Rule 4(1): before the writ is filed, it shall be indorsed
a. Where the plaintiff sues in a representative capacity, with a statement of the
capacity in which the plaintiff sues; or
b. Where a defendant is sued in a representative capacity, with a statement of the
capacity in which the defendant is sued.

Republic v High Court, Accra, Ex Parte Aryeetey

Facts: the interested party knew that his father had died testate and the will had been read,
though probate had not been taken, he failed to disclose to the court that he was one of the
executors of the will, and that probate had not been taken. The respondent therefore
challenged his capacity to sue in subsequent proceedings after judgment had been given
against him and the applicant sought to enforce such judgment.

Holding 1:
the court noted that the requirement that a party indorses on the writ the capacity in which
he sues, is to ensure that a person suing in a representative capacity is actually invested with
that capacity and therefore has the legal right to sue. The requirement also enables a
defendant, if he is so minded, to challenge the capacity the plaintiff claims he has, and such
a challenge may be taken as a preliminary issue. This is because if a party brings an action in
a capacity he does not have, the writ is a nullity and so are the proceedings and judgment
founded on it. Any challenge to capacity therefore put the validity of the writ in issue. It is a
proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is
not concerned with merits so that if the axe falls, then a defendant who is lucky enough to
 E.A. AFENYO

have the advantage of the unimpeachable defence of lack of capacity in his opponent, is
entitled to insist on his rights. The submission whether a person who sued in a
representative capacity indeed has the capacity he claims to have or not, is a question of fact
and if challenged, he must prove same to avoid his suit being dismissed since it is analogous
to taking an action against a non-existent defendant. But if the representative capacity he
claims is not challenged, naturally a plaintiff assumes no such burden.
Referring to the case of Gwira v State Insurance Corporation, it was held that the applicant
must be taken to have admitted or accepted that the respondent had the capacity in which
he sued and cannot thereafter come back to court to set aside the judgment for lack of
capacity. The applicant was therefore estopped by his submission to judgment from
subsequently denying the capacity of the respondent to sue.

Holding 3:
As a matter of practice and procedure therefore, there is no gainsaying the rule that it is a
requirement that a judgment can be impeached on grounds of fraud only by a fresh action
where the necessary particulars of the fraud must be distinctly stated in the pleadings. The
proponent must not only distinctly specify the alleged fraud, but also strictly prove same
because it is not permissible to infer fraud from general situations or facts.

 Order 2, Rule 4(2): before a writ is filed by a plaintiff who acts by an order or on
behalf of a person resident outside Ghana, the writ shall be indorsed with a
statement of that fact and with the address of the person so resident.
In National Investment Bank and Others v Standard Bank Offshore Trust
Company Ltd, the Supreme Court stated that failure to comply with the pre-
requisites for the issuance of a writ under Order 2, r 4(2) renders the writ void and it
cannot be amended and waived.
Order 81 rule 2a entitles the court to set aside wholly or in part the proceedings in
which the failure to comply with a rule occurred, including any judgment or order
made therein. What this means is that even after judgment, the entire proceedings
may be set aside for non-compliance with a rule of practice. It depends on the
particular breach complained of. Therefore, the Ex Parte Allgate decision cannot be
construed as creating an inflexible rule that the court has discretion to waive non-
compliance with any rule.
 E.A. AFENYO

Where a proceeding is a nullity in terms of a particular rule of practice, it cannot be

waived by the court. For instance, where the writ is not endorsed with a cause of
action and none is disclosed in the statement of claim, such non-compliance cannot
be waived by the court. This was the courts decision in the DARYA SHIPPING case.
Capacity to sue is a very critical component of any civil litigation without which the
plaintiff cannot maintain any claim. It must be emphasized that the capacity to sue
must be present before the writ is issued; such authority must appear in the
endorsement and statement of claim accompanying the writ; it cannot be acquired
while the case is pending; and an amendment cannot be sought to introduce it for the
first time. A writ that does not meet the requirement of capacity is null and void.
Nullity may be raised at any time in the course of the proceedings, even on a second
or third appeal.
The provisions of order 2 rule 4(2) are obligatory, and it is not one of those provisions
which the court is permitted by order 81 to waive for non-compliance. As discussed
in the NAOS holding case, non-compliance with this provision renders the writ void.
That which is void cannot be waived by the court under order 81. That rule is there
to ensure that foreigners, human as well as corporate, are in existence and have an
address at which they may be reached by the defendant and by the court if need be.
This ensures that the identity of the real plaintiff is known by the defendant and the
court lest an imposter should secure judgment only for the real claimant to surface
later and saddle the defendant with another suit. It also ensures that a judgment or
order obtained against a foreigner could be executed against him in his country of
residence, through the address supplied on the writ, if need be. Lack of authority to
sue amounts to contempt of court by virtue of order 1 rule 4 therefore this provision
affords the only avenue whereby the defendant may cross check with the real
claimant whether or not he has authorized the plaintiff o sue, and if not to bring a
charge of contempt against the plaintiff. These are clear legal as well as policy
considerations that justify the construction placed on this rule by the Court in the 9
Holding case.
On the issue of amending the writ to supply the address, the court noted that the
address must be in place prior to the issuance of the writ of summons. The writ
cannot be amended after it has been issued to comply with the requirements ads this
will be contrary to the express terms of the rule. In the NAOS case, the argument that
the plaintiffs address had been disclosed in the power of attorney did not find favour
with the court. The authority of NAOS holding is clear that if the writ is issued
 E.A. AFENYO

without satisfying the requirements imposed by the rule, it is void. The court cannot
grant an amendment to cure that which is void. If the writ is void, it gives the
defendant a right to have it set aside wholly in accordance with order 81 rule 2a. it
may be likened to allowing a plaintiff to amend his case which has the effect of
defeating a defence which has since the issuance of the writ, inured to the benefit of
defendant, the court will not allow it. More importantly, since the writ is void it
cannot be amended.
In Obeng v Assemblies of God, the plaintiff had sued in its corporate name which
was correct but added the words ‘Executive Presbytery’. The court only deleted the
additional words by the amendment. The amendment was not conferred capacity on
the plaintiff. In Akrong v Bulley, the Supreme Court was minded to allow the case to
stand if they had found something on the writ and statement of claim to show that
the plaintiff had also sued in her capacity as a dependent, meaning they would not
have dismissed the writ if another legal capacity had been disclosed besides the one
which was found to be illegal. In other words, the addition of improper title to
proper one will be cured by amendment as in the Obeng v Assemblies of God case,
as the writ has already disclosed a valid capacity in law. But where the amendment
is to enable the plaintiff to acquire capacity for the first time, it cannot be granted.
On an application for review to the Supreme Court in Standard Bank Offshore Trust
Company Ltd v National Investment Bank, this position was endorsed by the
majority of the bench however, Atuguba JSC stated that the holding that the writ was
void for non-disclosure of the address of the foreign persons on whose behalf the
applicant sued was difficult to support. To him, the purpose of an address is to
identify and trace hum when necessary and can easily be cured by amendment
where it is not endorsed on a writ, without injustice to the other side in accordance
with Order 81.

Note that it is always better to comply with the rules regulating the issue of writ of
summons even though the Supreme Court has held in Hydrafoam Estates Gh. Ltd v Owusu
that defects in a writ of summons could be cured by reading the writ together with the
accompanying statement of claim.

Address For Service

Order 2, Rule 5
 E.A. AFENYO

This rule requires that;

Subrule 1:
1. Before a writ is filed, a plaintiff who sues in person must indorse his occupational
and residential address or if he resides outside the country, the address of a place in
the country to which the documents for the plaintiff may be served.
2. Before a writ is filed by a plaintiff who sues by a lawyer, the plaintiff must in
addition to the residential and occupational address of the parties, provide at the
back of the writ the lawyers firm name and business address in Ghana and also, if
the lawyer is the agent of another, the firm name and business address of his
principal.
Subrule 2:
1. Where a plaintiff sues by a lawyer, the address for service of that plaintiff shall be the
business address of the plaintiff or the plaintiff’s lawyer’s agent as indorsed on the
writ; or
2. Where the plaintiff sues in person, the address for service of the plaintiff shall be the
plaintiff’s address in the country as indorsed on the writ.
Subrule 5:
Where the address of the defendant after diligent search is not known, the plaintiff shall
indicate on the writ that the plaintiff shall direct service. ‘Plaintiff Will Direct Service’.

How to Issue A Writ of Summons

Order 2, Rule 6 provides that every writ shall be filed together with a statement of claim as
provided for in Order 11 and no writ shall be issued unless a statement of claim is filed with
it.
The writ is completed in chambers and sent to the Registrar for filing.
The writ is deemed filed if it is accepted by the Registrar of the Court and sealed upon the
payment of the appropriate filing fees.

Order 2, Rule 7
Subrule 1:
A writ is issued when it is sealed by the Registrar. Sealing of a writ occurs when the plaintiff
pays the appropriate filing fees.

Subrule 2
 E.A. AFENYO

No writ shall be sealed unless at the time it is filed for sealing, the person filing it leaves with
the Registrar a copy signed by the plaintiff, if the plaintiff sues in person or by, or on behalf
of the plaintiff’s lawyer.

Subrule 3
The officer receiving the copy shall file it and make an entry in the Cause Book.

Subrule 4
Every writ shall be dated on the day on which it is issued.

Subrule 5
No writ, notice of which is to be served out of the jurisdiction, shall be issued without leave
of the Court as provided in Order 8. So you first file the writ, and then seek leave of the court to
serve a notice of the writ outside the jurisdiction. The rule that a plaintiff must seek leave before
issuing a writ notice of which will be served outside the jurisdiction of the court is a condition that
must be complied with so long as the address of the defendant endorsed on the writ is outside the
jurisdiction of the court. When a plaintiff defaults in seeking leave of the court before issuing a writ,
an objection should be taken promptly. The law is that if the objection is not taken promptly and a
fresh step is taken after the service of the defective writ, the default becomes a mere irregularity and
will not nullify the proceedings. Motion ex parte, supported by affidavit, affidavit must indicate how
the writ will be served.

Friesland Frico Domo alias Friesland Food B.V v. Dachel Co. Ltd
Non-compliance with the rules of procedure or any existing practice is a mere irregularity
that does not automatically render proceedings following the non-compliance void. A party
who becomes aware of the non-compliance is at liberty to bring an application to the Court
and have the proceedings set aside. However, Order 81 cannot be interpreted to waive a
Courts actual lack of jurisdiction. So where for example, the whole subject matter of the
action affects an immovable property situate outside Ghana, then non compliance with
Order 8 of CI 47 cannot be waived to cure the deficiency in jurisdiction. However, the
subject matter of the action begun by the writ issued by the plaintiff for compensation for
the termination of an agency agreement executed by her in Ghana on behalf of the
defendant is manifestly within the jurisdiction of the Court.
 E.A. AFENYO

Note that for a writ of summons to be competent, it must be endorsed with a substantive
claim or relief to be enforced against the defendant. In other words, a person cannot issue a
writ for an ancillary relief only. It will be wrong for a plaintiff to only endorse his or her writ
for a claim of interlocutory injunction only.
Republic v High Court, Tema, Ex Parte Owners of MV Essco Spirit (Darya Shipping Co. –
Interested Party); the court dismissed the action because he endorsement did not disclose a
cause of action.
Rockson v Illios Shipping Co. SA & Another
Hydrafoam Estates (Gh) Ltd. v. Owusu (per lawful attorney Okine & Others)

Concurrent Writ of Summons

When a plaintiff issues a writ, he can request for a concurrent writ to be issued to him before
the expiration of the writ issued.

Order 2, Rule 8
Subrule 1:

At the request of the plaintiff, one or more concurrent writs may be issued at the time when
the original writ is issued or at any later time after the original writ is issued and before the
original writ ceases to be valid.

Subrule 2:

Without prejudice to the generality of subrule (1), a writ for service within the jurisdiction
may be issued as a concurrent writ with a writ, notice of which is to be served out of the
jurisdiction; and a writ, notice of which is to be served out of the jurisdiction may be issued
as a concurrent writ with one for service within the jurisdiction.

Subrule 3:

A concurrent writ is a true copy of the original writ with such difference, if any, as are
necessary having regard to the purpose for which the writ is issued.

Subrule 4:

A concurrent writ shall be sealed by being marked ‘concurrent’ with an official stamp, and
with the date on which it is issued.

Lokko v Lokko:
 E.A. AFENYO

The appellant and respondent, formerly married, had a dispute over a parcel of land. The
respondent was resident in the United States when the appellant issued the writ against her.
In spite of the fact that the respondent had a foreign address indicating that when the writ
was issued, it would be served out of the jurisdiction, the appellant issued the writ without
the usual leave of the court contrary to order 2, r 4 of L.N. 140A. He however applied for
leave to serve the writ out of the jurisdiction. Before the application for service outside the
jurisdiction could be dealt with, the respondent, by her solicitors, entered appearance
indicating that the respondent’s address for service was an address in Ghana.

Held:
If a writ of summons intended for service out of the jurisdiction is issued without leave, it
will be a violation of Order 2, r. 4 of L.N. 140A, a procedure with which such proceedings
are commenced. Such a fundamental error will result in the writ being declared null and
void. A void writ as this cannot be saved by Order 70, rr. 1 and 2: see Mosi v. Bagyina [1963]
1 G.L.R. 337, S.C. But the meaning of Order 2, r. 4 implies that if the writ of summons is not
intended for service out of the jurisdiction then the order does not apply; in other words no
leave need be obtained before the writ is issued and served within the jurisdiction.

If the defendant has a foreign address it is a very strong indication that the writ of summons
is intended for service out of the jurisdiction. But a foreign address per se is not a conclusive
indication that the writ would be served outside the jurisdiction. If there is evidence that in
spite of the foreign address the writ is not intended to be served out of the jurisdiction then
no leave need be sought. But if it becomes necessary later that the writ be served outside,
then a concurrent writ is issued with the usual leave.

If the defendant gives anybody a power of attorney to litigate on her behalf within the
territory and who accepts service, etc. it should be regarded as a situation where the
defendant has a foreign address, but is not intended to be served outside the jurisdiction. 
When there is evidence of solicitors and attorneys within the jurisdiction being ready to
accept service of the writ and conduct the litigation on behalf of the defendant, in spite of the
foreign address, it is a clear indication that the writ was not the type intended for service out
of the jurisdiction. In such a situation, Order 2, r. 4 of L.N. 140A does not apply, as the
defendant will be deemed to have agreed to waive the necessity of leave; for his
representatives would be presumed to have agreed to do all he would have done, as if he
were within the jurisdiction.
 E.A. AFENYO

Duration of a Writ of Summons

Order 2, Rule 9;
Subrule 1:
For the purpose of service, a writ, other than a concurrent writ, shall be valid in the first
instance for 12 months beginning with the date of its issue, and a concurrent writ shall be
valid in the first instance for the period of the validity of the original writ which is unexpired
at the issue of the concurrent writ.

Subrule 2:

Where a writ has not been served on a defendant within the time limited for its service by
this rule, the Court may by order extend its validity from time to time for a period as may be
specified in the order, not exceeding twelve months at a time, beginning with the day
following that on which it would otherwise expire, if an application for extension is made to
the Court before that day or such later day as the Court may allow.

Subrule 3:

An application for an order under subrule 2 shall be supported by an affidavit showing all
the circumstances relied on, including the date of issue of the original writ and if it has
already been renewed the date of the last renewal, and a full explanation as to why it has not
already been served.

Subrule 4:

Before a writ whose validity has been extended under this rule is served, it shall be marked
with an official stamp showing the period for which its validity has been extended.

Subrule 5:

Where the validity of a writ is extended by an order made under this rule, the order shall
operate in relation to any other writ, whether original or concurrent, issued in the same
action which has not been served so as to extend the validity of that writ until the expiration
of the period specified in the order.

Essential Matters to Consider Before Issuing a Writ.

A. An accrued cause of action: A cause of action has been defined in Letang v Cooper as
an entire set of facts or a combination of facts that give rise to an enforceable claim or
 E.A. AFENYO

a factual situation the existence of which entitles one person to obtain from the court
a remedy against another person.

B. The Parties: in order to avoid non-joinder and misjoinder of parties.

C. The capacity of the parties.

D. Jurisdiction of the court.

E. The venue or the forum:

Order 3, Rule 1- Venue of proceedings

(1) Every cause or matter that relates to immovable property or any interest in it or
for any damage to it shall be commenced in the Region in which the immovable
property or any part of it is situated.
(2) Every cause or matter that relates to movable property distrained or seized for
any cause shall be commenced in the Region in which the distraint or seizure
takes place.
(3) Every cause or matter against a public officer to recover a penalty or forfeiture
shall be commenced in the region where the cause of action arises.
(4) Every cause or matter for specific performance of a contract or in respect of a
breach of contract, shall be commenced in the region in which the contract ought
to be performed or in which the defendant resides or carries on business.
(5) If there are two or more defendants resident in different regions, the cause or
matter may be commenced in any of the Regions.

Rule 2 – Transfer of proceedings

(1) Where a cause or matter is commenced in a region other than that in which it
ought to have been commenced under rule 1, it may continue in the region in
which it was commenced unless
a. The defendant raises an objection to the jurisdiction before or at the time
the defendant is required to file a defence in the proceedings; or
b. The Court reports to the Chief Justice that in its opinion the proceedings
ought to be transferred and the Chief Justice orders the transfer.
 E.A. AFENYO

(2) No proceedings taken prior to an objection to the jurisdiction with regard to

the venue raised by the defendant under paragraph (a) of subrule 1 of this
rule shall be affected by the objection, but the Court if satisfied that the
objection is well-founded shall inform the Chief Justice that in its opinion, the
cause or matter ought to be transferred to the Region in which it ought to
have been commenced, and the Chief Justice may upon that, make such
orders as the Chief Justice considers appropriate.

F. Legal Condition Precedent: some enactments set some conditions before an action
can be commenced under it. Example:
a. Section 30 of the Legal Profession Act, 1960 requires lawyers to sue for their
fees one month after service of an invoice on the client. The condition
precedent under the law is that a lawyer can only sue a client for legal fees
one month after he or she has served the client with an invoice. A writ issued
without the satisfaction of the condition will be a nullity. Accam v Gbertey.

Service of Writ Generally – Order 7 of C.I 47

Rule 1 – Person to serve a document

A document which is required to be served on a person shall be served by a bailiff of the court
or a process server registered with the court, but a party may direct the service.

The general position of the law is that a court has no jurisdiction to proceed against a party
who had not been served, as held in the case of Barclays Bank of Ghana Ltd v. Ghana
Cables Co. Ltd

A writ is to be served personally on every defendant named in the writ unless the Rules
provide otherwise. For example under Order 7 r 12(2), where a lawyer undertakes in writing
to accept service of a writ on behalf of a defendant, the writ shall be deemed served on that
defendant when served on the lawyer.

If bailiff is able to serve, he is required to file an affidavit of service. If he is unable to serve, he must
file the affivadit of non-service.

Rule 2- Personal Service

(1) A document which is required to be served on a person shall be served personally

unless the express provisions of these Rules otherwise provides or the Court
otherwise directs.
 E.A. AFENYO

(2) These rules shall not affect the power of the Court under any provision of these Rules
to dispense with the requirement of personal service.

Rule 3 – How Personal Service is Effected

(1) Personal service of a document shall be effected by leaving a duplicate or attested

copy of the document with the person to be served.
(2) Where personal service of a document on any person is hindered by the violence or
threats or other acts of obstruction of that person or any other person with or under
that person, it shall be sufficient for the person effecting service to leave it as near
that person as may be practicable.

Rule 4- Documents not served personally

(1) Service of a document not required to be served personally may be effected

(a) By leaving it at the proper address of the person to be served; or
(b) By sending it by registered post bearing a return address and addressed to the
person to be served at the address of the person; or
(c) In any such manner as the Court may direct.
(2) For the purpose of this rule, the proper address of a person on whom a document is
to be served shall be the address provided by the person, but if at the time when
service is effected the person has no address for service, the proper address of the
person shall be
(a) In the case of an individual, his or her usual or last known place of residence or
business; or
(b) In the case of individuals who are suing or being sued in the name of a firm, the
principal or last known place of business of the firm in this country, or
(c) In the case of a body corporate, its registered or principal office; or
(d) In any other case, the business address of any lawyer who is acting for the person
in the cause or matter in connection with which the document is to be served.

Processes or Documents that Require Personal Service

The Rules require that some processes or documents are served personally on parties. What
this means is that the said processes or documents shall not be served on the lawyers of the
parties. Some of the processes or documents are;

a. Writ of summons and all originating processes such as petition and originating
motion on notice.
 E.A. AFENYO

b. Motions for committal for contempt

c. Entry of judgment or judgment after trial
d. Writs of execution, such as writ of Fifa, Writ of Possession, Writ of Delivery
e. Application for reserved price
f. Application for judicial review
g. Third party notice
h. Injunction orders
i. Notice of Appeal

Mode of Service on Particular Persons – Order 7, Rule 5

(1) Body Corporate: service of a document on a body corporate may, in cases for which
provision is not otherwise made by an enactment, be effected by serving it on the
chairman, president or other head of the body, or on the managing director,
secretary, treasurer or other similar officer of it.
Barclays Bank Gh. Ltd v Ghana Cables Co. Ltd
Ghana Commercial Bank v Tabury

(2) Stool or skin: service of a document on a stool or skin may be effected by serving it
a. On the occupant of that stool or skin or any secretary, clerk or linguist of that
stool or skin; or
b. Where the stool or skin is vacant, on the regent or caretaker of that stool or skin.

(3) Family under customary law: service of a document on a family as constituted by

customary law may be effected by serving it
a. On the head of the family; or
b. On any member of the family who is, or is acting as caretaker of any property of
that family or any person who is a principal member of the family

(4) Persons in prison: service of a document on a person who is in prison or detention

may be effected by serving it on any person apparently in charge of the prison or
place or detention, or if access cannot be readily had to the person apparently in
charge of the prison or place of detention, then on any warder, guard or similar
officer of that prison or place of detention.
 E.A. AFENYO

(5) Ministers of State or Heads of Departments: service on a Minister of State in his or

her capacity as such or a Ministry of Government Department may be effected by
serving it on the administrative head of that Ministry or that Department. For
example, for Ministers of State, service on the Chief Director of the Ministry is good
service.

(6) Persons under disability: service of a document on a person under disability may be
effected in accordance with Order 5 rule 9

Order 5, Rule 9:
(1) Where in any cause or matter a document is required to be served personally and
the person on whom it is to be served is with disability, the document shall be
deemed to have been duly served if served on the father or mother or guardian of
the person with disability or the person with whom the person with disability
resides or under whose care the person with disability is.
(2) Notwithstanding anything in subrule 1, the court may order that the document
which has been or is to be served on a person with disability or on a person other
than a person mentioned in that subrule shall be deemed to be duly served if
served on the person with disability.
(3) Notwithstanding anything in these Rules, a judgment or order that requires a
person to do or refrain from doing any act, a notice or application for the
committal of any person, and a writ of subpoena against any person, shall, if that
person is with disability, be served personally on that person, unless the Court
otherwise orders.
(4) Subrule 3 shall not apply to an order for interrogatories or for discovery or
inspection of documents.

Other persons

A. Members of the security agencies: for members of the security and allied agencies
like the Armed Forces, the Police, Immigration Service, Customs Excise and
Preventive Service and Fire Service, the court process or document is served on the
commanding officer in charge of the person to be served.
B. Members of Parliament: Under Article 117 of the Constitution, no court process shall
be served on a Member of Parliament while in Parliament, on his way to or out of
Parliament. The rationale is to ensure that the business of Parliament is not
 E.A. AFENYO

disrupted. Members of Parliament may therefore be served at any place outside the
premises of Parliament provided they are not going to or coming from Parliament.
C. Judges and Magistrates. Court processes are served on the Judicial Secretary of the
Judicial Service of Ghana.
D. Partnership: where partners are sued in the name of the firm, court process may be
served on any one or more of the partners or at the principal place of business of the
partnership within the jurisdiction on any person who is in control or management
of the partnership at the time of service. A person served as partner shall be given
the notice of service as in Form 2 in the Schedule to CI 47

Substituted Service – Order 7, Rule 6

(1) If a document is required to be served personally on any person and it appears to the
Court
(a) That three or more attempts have been made without success to effect personal
service, and that any further attempt to effect personal service may result in
undue delay; or
(b) That it is otherwise impracticable for any reason to serve the document
personally, the Court may make an order for substituted service of that
document.
(2) An application for an order for substituted service shall be made ex parte and shall
be supported by an affidavit stating the facts on which the application is founded.
The nature of personal service must be proposed in the affidavit.
(3) Substituted service of a document in relation to which an order is made under this
rule, is effected by taking such steps as the Court may direct to bring the document
to the notice of the person to be served.
(4) Without prejudice to the generality of subrule (3), the Court may direct substituted
service to be effected in any of the following ways
(a) By service in accordance with rule 4 of this Order (non-personal service)
(b) By delivery of the document to an agent of the person to be served or some other
person, if there is reasonable ground to believe that the document will through
that person, come to the knowledge of the person to be served; or
(c) By sending the document by registered post addressed to the person to be served
at an address to be specified in the affidavit made under rule 9(2) at which there
is reasonable ground to believe that it will reach the person; or
 E.A. AFENYO

(d) By notice put up at the court or some other public place in the Region in which
the cause or matter is commenced or at the usual or last known place of residence
or business of the person to be served; or
(e) By advertisement in the media within the jurisdiction of the Court.

Other Prescribed Modes of Service of Writ of Summons 

1. Order 7, Rule 13 – service of a writ on an agent of a principal outside
Ghana. 
It stipulates that where a court may order service of a writ beginning an action relating to a
contract to be effected on the agent instead of the principal where the court is satisfied on an
ex parte application that 
a. A contract has been entered into in Ghana with or through an agent who
resides or carries on business in Ghana or a body corporate that has its registered
office or place of business in Ghana; and 
b. The principal for whom the agent was acting at the time the contract was
entered into was neither a person residing nor carrying on business in Ghana or a
corporate body having a registered office or place of business in Ghana; and 
c. At the time of the application, 
I. The agent’s authority has not been revoked; or  
II. The agent is still in business relation with the principal.  
An order under subrule (1) authorising service on a defendant’s agent shall state a time
within which the defendant shall file appearance.  
A copy of the order and of the writ shall be sent by registered post to the defendant at
the address of the defendant outside Ghana if known. 
 
2. Order 7 r 15 – service of a writ in certain cases relating to land 
Where a writ is indorsed with a claim for the possession of immovable property and the
Court is satisfied on an ex-parte application that no person appears to be in possession of
that property, the Court may 
a. If satisfied that service cannot otherwise be effected on any defendant
authorise service on that defendant to be effected by affixing a copy of the writ
on a conspicuous part of the immovable property; and 
b. If satisfied that service could not otherwise have been effected on any
defendant, order that service already effected by affixing a copy of the writ on
 E.A. AFENYO

such conspicuous part of the immovable property shall be treated as good service
on that defendant.  

Computation of Time After Service 

Order 7, Rule 8 
1. Computation of any period of time after service of a document shall
commence on the day on which service is effected.  
2. However, any document served personally (under rule 3(1) on a day on
which the courts are closed for business shall, for the purpose of computing any
period of time after service of that document, be deemed to have been served on
the first available working day. 
3. Also, a document sent by registered post to be served at a persons proper
address and which is not returned by the post office as undelivered shall, for the
purposes of computing any period of time after service of that document, be
deemed to have been served on that person 21 days after the day of posting that
letter.  

In Republic v High Court, Koforidua, Ex Parte Osae-Akonnor, the courts held that the
legitimate time to effect personal service is during the times that are set for service of court
processes on parties (between 6 a.m to 6 p.m.). Therefore, where a court official attempts to
effect service outside these hours, he will be acting without authority.  

General Rule on Service of Notice of Writ of Summons Outside The Jurisdiction – Order

8 of C.I 47 
Rule 1 – Notice of a Writ or other Processes may be Served out  of Jurisdiction 
1. No writ shall be served out of the jurisdiction 
2. However, notice of a writ as in Form 3 in the Schedule may be served out of
the jurisdiction with leave of the Court.
 
Rule 2 – Application to be Supported by Affidavit 
1. the Application for leave to serve notice of a writ out of the jurisdiction shall
be supported by an affidavit stating the grounds on which the application is
made, and stating that in the deponent’s belief, the plaintiff has a good cause of
action, and showing in what place or country the defendant is or may probably
be found. 
 E.A. AFENYO

2. No such leave shall be granted unless it is made sufficiently to appear to the

court  
a. That the case is a proper one for service out of the jurisdiction; and 
b. That the case falls within one of the provisions of rule 3.  

Rule 3 – Cases where leave may be granted 

Rule 4 – Order Granting Leave to Fix Time for Appearance 

An order granting leave to serve notice of a writ out of the jurisdiction shall provide a time
limit within which the defendant to be served shall file appearance.  
The law is that when the address of the Defendant as endorsed on the Writ of Summons is outside the
jurisdiction (outside Ghana), leave of the court must be sought before even the Writ of Summons is
filed.   

Rule 5 – Methods of Service 

1. Nothing in this rule or in any order or direction of the Court made by virtue
of it shall authorise or require the doing of anything in a country in which service
is to be effected which is contrary to the laws of that country.  
2. Notice of a writ which is to be served out of the jurisdiction 
a. Need not be served personally on the person required to be served so long as
it is served on the person in accordance with the laws of the country in which
service is effected; and  
b. Need not be served by the plaintiff or the agent of the plaintiff if it is served
by a method provided for in rule 6.
 
Rule 6 – Authorities to Effect Service 
1. Where the notice of the writ is to be served on a defendant in a country in
respect to which there exists a Civil Procedure Convention that provides for
service in that Country of processes of the Court, the notice may be served 
a. Through the judicial authorities of that country; or 
b. Through a Ghana consul in that country subject to any provision of
a Convention as to the nationality of persons who may be so served.  
 
2. Where notice of a writ is to be served on a defendant in a country with
respect to which a Convention does not exist, the notice may be served; 
 E.A. AFENYO

a. Through a Government of that country, where that Government is willing to

effect service; or 
b. Through a Ghana consul in that country, except where service through such
an authority is contrary to the laws of that country. 

Rule 7 – Documents to be lodged 

Rule 8 – Sending of Documents 

The relevant documents duly lodged under rule 7 are required to be sealed with the seal of
the High Court, and the Registrar shall forward them to the Minister for Foreign Affairs
with a request that the Minister arranges for the notice of the writ to be served by the
method indicated in the request lodged under Rule 7, or where alternative methods are
indicated, by the most convenient of those methods.  

Rule 9 – Evidence of Service 

An official certificate sent to the court by the Government or judicial authority of the foreign
country or by a Ghana Consul in that country stating that the document has been served on
the person personally or in accordance with the laws of that country on a specified date,
shall be evidence of the facts so stated.  
a document purporting to be such certificate shall, until the contrary is proved, be deemed
to be such certificate.  
It is important to bear in mind that a person outside the jurisdiction cannot be served through
substituted service under order 7 r 6 

Bawa v Oyegoke
Facts: The plaintiff issued a writ of summons in ordinary form against the first defendant
who was formerly resident in Ghana, but was, at the time of the issue of writ, resident in
Nigeria, without stating the address at which the first defendant could be served. In an
ex parte application for an order of substituted service of the writ on a wife of the first
defendant resident in Ghana, 

Held, refusing the application:  

(1)      where a writ was issued in the ordinary form for service within the jurisdiction under
L.N. 140A of 1954, Order 2, r. 3 against a person who before the issue of the writ had left the
country and had since remained out of the jurisdiction, and it did not appear that the
 E.A. AFENYO

defendant had gone out of the jurisdiction to avoid service of the writ, an order for
substituted service could not be made because where a writ could not be served on a person
directly, it could not be served indirectly by means of substituted service. 

(2)      An address of a defendant was an essential feature of a writ of

summons. Consequently, the writ issued against the first defendant was invalid and it
would be improper to order substituted service if the plaintiff did not obtain an amendment.
Assuming the writ were amended by inserting the last place of abode of the defendant in
Ghana or his address in Nigeria, substituted service would not be granted because this
would be an indirect way of serving a writ on a person who otherwise could not be served
personally. 

Service of the Writ Through Airmail 

By Order 8, Rule 11, The court in giving leave to serve a document out of the jurisdiction
under this Order, may in an appropriate case direct that airmail shall be used by the party
effecting the service. 

Setting Aside A Writ or The Service of A Writ 

Setting aside the service of a writ means the writ is valid however there is a problem with
the way it was served. Setting aside writ means writ itself itself is a nullity. Eg: failing to
comply with a condition precedent.
Under the Rules of Court, setting aside a Writ of Summons is a different right from setting
aside the service of the Writ of Summons. A writ of summons may be set aside if it is
defective, for example, under the following circumstances: 
a. Where the plaintiff has no capacity 
b. Where the Writ is filed in a court that has no jurisdiction 
c. Where the Writ discloses no cause of action 
d. Where the Writ is not accompanied by the statement of claim as the rules
require 
e. Where legal conditions precedent to the issuing of a writ are not complied
with. 
f. Where an expired writ is served.  

Distinguishing Between Setting Aside A Writ and Setting Aside Service of  a Writ 
 E.A. AFENYO

Where a Writ of Summons which is not defective is wrongfully served, the defendant or the
person named in the writ may apply to set aside service of the Writ and not set aside the
Writ because in those circumstances, the Court can order or redirect the proper service of the
Writ of Summons. 

APPEARANCE – Order 9 
A defendant served with a writ of summons is required to enter Appearance, by filing a
Notice of Appearance, in the action to defend it.  

 Rule 1 –Who may File Appearance 

1. A defendant to an action may whether or not the defendant is sued in a
personal capacity or as a trustee or as a personal representative or in any other
representative capacity, file appearance in the action and defend it in person or
by a lawyer.  
 
2. The residential and occupational address of the defendant shall be stated on
the appearance whether the defendant defends in person or by a lawyer and
whether this is stated in the writ or not.  
 
3. Where the defendant defaults in stating the defendant’s residential and
occupational address on the appearance form the plaintiff may apply to the court
on notice to compel the defendant to do so and the cost involved shall be borne
by the defendant and where the defendant fails to comply with the Court’s order
within the stipulated time, the defendant shall be considered to have not entered
appearance.  

Rule 2- method of filing appearance 

1. Appearance is filed by completing a notice of appearance in triplicate in
compliance with rule 3 and handing it in at, or sending it by post to, the registry
together with two stamped envelopes, one addressed to the plaintiff’s lawyer or
to the plaintiff, if acting in person, at the plaintiff’s address for service, and the
other addressed to the defendant filing the address.  

Rule 3 – contents of notice 

 E.A. AFENYO

1. The notice of appearance shall be in as in Form 5 in the Schedule and shall

specify an address for service which shall be 
a. The defendant’s place of residence in this country or, if the defendant has no
place of residence, the address of a place in this country at or to which documents
for the defendant may be delivered or sent; and 
b. Where the defendant appears by a lawyer, the business address of that
lawyer in this country.  
2. A notice of appearance shall be dated on the day on which it is handed in at,
or sent by post to the registry, and shall be signed by the defendant if the
defendant appears in person or by the lawyer of the defendant.  
3. Where the defendant files appearance by a lawyer who is acting as agent for
another lawyer who has a place of business in the country, the notice of
appearance shall state that the first named lawyer so acts and shall also state the
name and address of the other lawyer.  
4. If the court is satisfied on application by the plaintiff that any address
specified in the notice of appearance is not genuine, the Court may set aside the
appearance.  
5. Name of the court and suit number 
6. Names of the parties 

Rule 5- Time Limited for Filing Appearance 

1. In the case of a writ served in the country, appearance is to be filed 8
days after the service of the writ or where that time has been extended by the
court, within that time as extended; and 
2. In the case of notice of a writ served outside the country, to the time limited
by an order of the Court under Order 7 Rule 13(2) or Order 8 Rule 4 or, where
that time has been extended, to the extended time. 

Rule 6 – Late Appearance 

1. A defendant may not file appearance after judgement has been entered in the
action except with leave of the Court. 
2. Except as provided in subrule 1, nothing in the Rules shall be construed as
precluding a defendant from filling appearance after the time limited for
appearance, but if the defendant does so the defendant shall not, unless the court
 E.A. AFENYO

otherwise orders, be entitled to serve a defence or do any other thing later if the
defendant had appeared within that time.  

Rule 7 –  
1. A defendant may file a conditional appearance in protest to the Writ of
Summons issued against him or her. The fact that the appearance is a conditional
one should appear on the Notice of Appearance.  
2. A conditional appearance, except by a person sued as a partner of a firm in
the name of that firm and served as a partner, is to be treated for all purposes as
unconditional appearance unless the defendant applies to the Court within the
time limited for the purpose, for an order under rule 8 and the court makes an
order under that rule.  
Rule 8 – Application to Set Aside Writ 
A defendant may at any time before filing appearance, or, if the defendant has filed a
conditional appearance, within 14 days after filing appearance, apply to the Court for an
order to  
a. Set aside the writ or service of the writ, 
b. Declare that the writ or notice of it has not been served on the defendant; or 
c. Discharge any order that gives leave to serve the notice on the defendant
outside the country.  

Amissah-Abadoo v Abadoo 
Principles:  
The term conditional appearance means an appearance in qualified terms, reserving to the
appearing party, the right to apply to the court to set aside the writ, or service thereof, for an
alleged informality or irregularity which renders either the writ, or service invalid or for lack
of jurisdiction.  
A conditional appearance or appearance under protest is a complete appearance to the
action for all purposes, subject only to the right reserved by the defendant to apply to set
aside the writ or the service thereof, on any ground which he can sustain. A defendant has
the right to appear conditionally where he has a bona fide intention to dispute the
jurisdiction of the Court. 
The plaintiff is barred from taking any step based on the appearance (e.g. applying under
Order 14), until the time fixed as above stated has expired, but he may apply to strike it out. 
At the expiration of the time fixed (see last preceeding note) if no application is made by the
 E.A. AFENYO

defendant, or if made has been dismissed, the plaintiff may proceed with the action as if an
unconditional appearance had been entered. In considering what is `reasonable time' for the
defendant's application, regard will be had to the circumstances of the case, and to whether
the condition was inserted in good faith, or merely for the purpose of delaying the plaintiff. 

Ghana Muslims Representative Council & Others v Salifu 

Principles 
a. In a representative action it was necessary, both in the writ and in all
subsequent pleadings, to state clearly that the parties were suing or were being
sued in their representative capacity, on behalf of the members of a defined class. 
The representative capacity should also be stated in the title of both the writ and
the statement of claim and not merely in the endorsement of the writ on the body
of the pleading.  However, where it appeared in the trial in a representative
action that the plaintiff had failed to state the representative capacity of the
parties, as in the instant case, the court would give leave even at this late stage to
amend either the writ or subsequent pleadings by adding a statement that the
plaintiff was suing on behalf of himself and all others of the defined class and the
capacity in which the plaintiffs sued and the defendants were sued. 
 
b. In law a voluntary association was a sum of individuals without any
collective capacity to sue or be sued as such.  But all the members might join to
sue as plaintiffs provided they had the same or some common interest in the
cause or matter; for the law was that a body of persons having a common interest
in a subject-matter might, when that interest was threatened or had been
violated, be represented by one or more on behalf of the whole group. Likewise,
trustees or members of an unincorporated association might sue or be sued
where there was property vested in them without joining any of the beneficiaries
whom the trustees or members represented.  These forms of action were known
as representative actions and were permissible under Order 16, r. 1, 8 or 9. In this
case the second plaintiffs had shown that they all had a common interest in the
subject-matter of the suit and they had indicated with sufficient clarity that they
were seeking to enforce the rights of the members of the G.M.R.C. in a
representative action.  They were entitled in a proper form of proceedings to
vindicate or assert their rights on behalf of the G.M.R.C. whether or not the latter
 E.A. AFENYO

was incorporated. There was no need therefore for the G.M.R.C. to sue through
its trustees. 

Ex Parte Aryeetey
Holding 2:
A conditional appearance is to enable the defendant who intends to object to the issue or
service of the writ or notice of the writ on him, or to object to the jurisdiction of the court, to
apply to the court to set aside the writ, or notice of the writ or the service thereof on him.
Such an application may encompass any irregularity or defect in the issue or service of the
writ, or notice of the writ. For example any defect in the writ or order to amend or renew the
writ, or for substituted service or service out of the jurisdiction. It is not permissible for a
defendant who has entered a conditional appearance to move the court to have the writ set
aside because he has a legal defence, even if unimpeachable, to the action; certainly such an
application is not available to a defendant who seeks to rely on a plea of res judicata since
this plea, to be successful, must satisfy certain requirements which can only be revealed
through evidence. A defendant who enters a conditional appearance therefore has no right
to apply to set the writ aside because he has a good defence to the action.
Such a defendant cannot also apply, after entry of conditional appearance, to have the writ
set aside on grounds that the action is either frivolous, vexatious or an abuse of the process
of the court. However, the court has power under Order 25, r 4 of LN 140A to summarily
stay proceedings before it on these grounds. This power, however, is governed by certain
principles; for example, only the pleadings must be looked at and affidavit evidence is
inadmissible.

The discretion of the court will also be exercised under this rule only in plain and obvious
cases; that is where it can be clearly seen that a claim or answer is, on the face of it, certainly
unsustainable.

Apart from its power under Order 25, r 4 of LN 140A to summarily stay proceedings before
it on grounds of frivolity and vexation, etc, the court also has an inherent jurisdiction to stay
an action it considers as frivolous, vexatious or an abuse of its process. There is however a
difference in procedure when the court relies on its inherent jurisdiction to set aside a writ
on these grounds and when it relies on its powers under Order 25, r 4 of LN 140A to stay
any proceedings on those same grounds. As has been stated earlier, in the case of the
practice under Order 25, r 4 of LN 140A, affidavit evidence is inadmissible and only the
pleadings must be looked at. But in the case of the exercise of the power under its inherent
 E.A. AFENYO

jurisdiction the court can consider all the facts including affidavit evidence. Although the
respondent may not be entitled after entry of conditional appearance to ask the court, in
view of the grounds alleged, for an order to strike out the applicant’s writ and statement of
claim, we do not think the learned judge can be faulted that she had no jurisdiction to hear
the application, because she actually stayed the applicant’s action because she found it “a
serious abuse of the court’s process.” In this conclusion, the learned judge, in our opinion, is
amply justified. 

Default of Appearance – Order 10 

Where a writ of summons is served on a defendant who fails to file or enter appearance
within the 8 days time limited for Appearance, the plaintiff after conducting a search in the
registry of the Court confirming the non-filing of the appearance, may apply to the court on
a motion ex parte for judgment against the defendant. The nature of the judgment to be
entered for the plaintiff depends on the claim endorsed on the plaintiff’s writ of summons
and as prescribed by the Rules of Court as follows; 

A. Claim for Liquidated Demand – Rule 1 

Where the plaintiffs claim is for liquidated demand only and the defendant fails to file
appearance, the plaintiff may, after the time limited for appearance, apply to enter final
judgment against the defendant for a sum not exceeding that claimed by the writ and for
costs, and proceed with the action against other defendants, if any.  

B. Claim for unliquidated demand – Rule 2 

The plaintiff may, after the time limited for appearance, apply to enter interlocutory
judgment against that defendant for damages and proceed with the action against other
defendants, if any.  

C. Claim in Detinue – Rule 3 

The plaintiff may, after the time limited for appearance, apply to enter judgment against the
defendant 
a. For the delivery of the goods or their value to be assessed and costs; or 
b. For the delivery of the goods and costs; or  
c. For the value of the goods to be assessed and costs and proceed with the
action against other defendants, if any.  
 E.A. AFENYO

Where the plaintiff enters interlocutory judgment for damages under rule 2 or for the value
of the goods under this rule, the Court shall fix the date on which the damages or the value
shall be assessed and direct that notice of it shall be given to the defendant against whom
the interlocutory judgment has been entered.  
A defendant who is served with such notice is entitled to attend at the assessment and be
heard on the issue of damages only.  

D. Claim for Possession of Immovable Property – Rule 4 

The plaintiff may, after the time limited for appearance, apply for judgment for possession
of the immovable property and costs as against the defendant, provided that the plaintiff
may proceed with the action against other defendants, if any, who have filed appearance.  
Where there are defendants who have been sued jointly, judgment entered under this rule
shall not be enforced against any defendant unless and until judgment for possession of the
immovable property has been entered against all the defendants.  
The rule shall not apply where possession is claimed by virtue of a mortgage.  

E. Mixed Claims –Rule 5 

Where the plaintiff makes two or more of the claims to which the rules 1 to 4 apply against a
defendant, and there is no other claim, and the defendant fails to file appearance, the
plaintiff may, after the time limited for appearance, apply for judgment against that
defendant in respect of any such claim as the plaintiff would be entitled to apply for under
those rules if that were the only claim made, and proceed with the action against the other
defendants if any.  

F. Actions not Specifically Provided For – Rule 6 

Where the plaintiff’s claim is of a description not provided for in rules 1 to 4, and the
defendant fails to file appearance, the plaintiff may, after the time limited for appearance
and upon filing an affidavit proving due service of the writ and statement of claim on the
defendant, proceed with the action as if the defendant had filed appearance.  
The nature of judgment for judgment in default of appearance and default of defence is almost the
same, however, where the rules are not specified, in default of defence, the rules state that the court
may enter judgment based on the claims of the plaintiff.
Where the plaintiff makes a claim of a description not mentioned in rules 1 to 4 but because
the defendant satisfies the claim or complies with the demands or for any other similar
reason, it becomes unnecessary for the plaintiff to proceed with the action, then, if the
 E.A. AFENYO

defendant fails to file appearance, the plaintiff may, after the time limited for appearance,
apply for the award of costs against that defendant.  
Notice of an application for leave to enter judgment under subrule 2 shall be served on the
defendant against whom it is sought to enter judgment.
  
Rule 7 – Proof of service of Writ 
1. Judgment shall not be entered against a defendant under this Order unless  
a. The plaintiff files an affidavit proving due service of the writ or notice of the
writ on the defendant; or 
b. The plaintiff produces the writ indorsed by the defendant’s lawyer with a
statement that the lawyer accepts service of the writ on behalf of the defendant.  
2. Where in an action an application is made to the Court for an order affecting
a party who has failed to file appearance, the applicant shall satisfy the court that
the party is in default of appearance.  

Rule 8 – Setting Aside Judgment 

The Court may, on such terms as it thinks fit, set aside or vary any judgment entered in
pursuance of this Order.  
The courts power to set aside default judgment is discretionary so the party applying must show that
he has a reasonable defence to the plaintiff’s claim and must give good reasons why he or she failed to
file appearance within the time prescribed by the Rules. Ghana Commercial Bank v Tabury 
There is no time limit within which to move the court to set aside the judgment.  Haruna v Arts
Council of Ghana. The  defendant or party applying will only have to move the court within
reasonable time.   

G. Moneylender’s Action – Rule 9 

No judgment shall be given in default of appearance in such actions except with leave of the
court. 
The application for leave must be by notice returnable not less than three clear days after
service of the notice and after filing an affidavit of service of the writ. 
At the hearing of the application, whether the defendant appears in court or not, the court
may,  
a. Exercise the powers of the court under the Moneylenders Act and 
b. If satisfied by affidavit or otherwise that notice has been duly served, give
leave to enter judgment for the whole or part of the claim; and 
 E.A. AFENYO

c. As regards any part of the claim to which leave to enter final judgment is
refused, give such directions as may be necessary for further proceedings in the
action, and upon such terms as may be considered just.  
 
H. Action on Mortgages – Rule 10 
Judgment shall not be entered in default of appearance except by leave of the Court. 
The court may direct the application for leave to be supported by evidence which entitles the
applicant to relief any may direct that notice of the application shall be given to the
defendant and to such other person as the court may consider proper. 
 
PLEADINGS 
Pleadings are the written statements of facts exchanged alternatively by parties within
prescribed time frame aimed at ascertaining the issues that the parties would want the court
to determine.
Order 82, Rule 3 of C.I 47 defines pleadings as the formal allegations by the parties to a
lawsuit of their respective claims and defences with the intended purpose of providing
notice of what is to be expected at the trial.
Pleadings include;
a. Statement of claim
b. Statement of Defence
c. Counterclaim
d. Defence to counterclaim
e. Reply
f. Rejoinder
g. Further and better particulars of any specific type of pleading.
Importance of Pleadings
a. To define the issues in contention. The facts narrated in the pleadings define the area
of controversy and can be extended only through amendment.
b. Serve notice to the parties as to the case each should expect. This helps the parties to
adequately prepare for the trial by assembling relevant evidence in support or in
defence of the respective claims in the action.
c. Pleadings serve as a record of issues that are eventually determined in a suit. This
helps check parties who will want to relitigate matters that have been adjudicated
upon already. The principle of public policy is that there must be an end to litigation.
 E.A. AFENYO

d. Pleadings assist the court in their case management to ensure speedy and
expeditious trials. For example, pleadings in a case will enable the court determine
whether or not an expert should be appointed to assist the court in the adjudication
process. The prompt appointment of experts ensures early disposal of cases by the
courts.

Drafting of Pleadings
a. Pleadings must contain in summary form all the material facts that a party seeks to
rely upon to prove his or her claim or defend the claim, but not the evidence by
which those facts, and the statement shall be as brief as the nature of the case admits
-Order 11, Rule 7

b. A party in pleading is not permitted to discuss particular laws. A party in a pleading

may in a pleading raise a point of law, as to jurisdiction, capacity of a party or
limitation as provided by Order 11 r 11(1) of C.I 47. The rules also allows a party to
plead a rule of customary law. Such a party under the rules is required to state the
customary law rule with particulars to show the nature and effect of the customary
rule in question and the geographical area and ethnic group to which it relates. A
party who seeks to rely on the Statute of Limitation ought to plead it as a point of
law just as a party relying on the principle of estoppel per rem judicatem. If a party
fails to plead the statute of limitation, he cannot rely on it.
Dolphyne (No. 3) v Speedline Stevedoring Co & Another.

c. Pleadings must not contain evidence.

Godka Group of Companies v. P.S International Ltd

d. Under Order 11 r 8, a party shall in any pleading, subsequent to a statement of claim,

specifically plead any matter, for example, performance, release, any limitation,
provision, fraud or any fact showing illegality;
i. which the party alleges makes any claim or defence of the opposite party not
maintainable; or
ii. which, if not specifically pleaded, might take the opposite party by surprise; or
iii. which raises issues of fact not arising out of the preceding pleading.
A defendant to an action for possession of immovable property shall plead
specifically every ground of defence on which the defendant relies, and a plea that
 E.A. AFENYO

the defendant is in possession of the immovable property in person or by a tenant

shall not be sufficient.

e. By Order 11 r 12 of CI 47, a party is required to give necessary particulars of any

claim, defence or any of the following matters pleaded including:
i. particulars of any misrepresentation, fraud, breach of trust, wilful default or undue
influence on which the party pleading relies and
ii. where a party’s pleading alleges any conduct of the mind of any person, whether
of any disorder or disability of mind or any malice, fraudulent intention or other
condition of mind. In other words, where a party pleads or alleges anything
concerning the mental capacity of another, particulars of the alleged mental capacity
shall be given in the pleadings.

The Rule Against Departure – Order 11 R 10

A party shall not in any pleading make any allegation of fact or raise any new ground or
claim, inconsistent with a previous pleading made by the party.

Subrule 1 shall not be taken as limiting the right of a party to amend or apply for leave to
amend previous pleading of the party in order to plead allegations or claims in the
alternative.

Hammond v Odoi

Adehyeman Industrial Complex v Ofosu Mensah

Nyamaah v Amponsah

Klah v Phoenix Insurance Co. Ltd

The Rule in Abowaba v Adeshina

Following the rule of law that parties in an action are bound by the facts contained in their
pleadings, a principle of law was developed in the case of Abowaba v Adeshina to the effect
that if a material fact that ought to have been pleaded was not pleaded and evidence is led
about it at the trial and is not objected to the court will consider it in determining the issue in
dispute, provided that evidence so led is admissible. However, a court is duty bound to
expunge from the record any evidence which is inadmissible whether that evidence was
 E.A. AFENYO

objected to or not. The principle of law of evidence has been adopted and applied in several
cases notably the following:

Akuffo Addo v Catheline

Edward Nasser Co Ltd v McVroom

In Re Okine (Decd) Dodoo v Okine

Form of Pleadings – Rule 6

Every pleading shall bear on its face

a. The year in which the writ in the action was issued and the number of the
action
b. The title of the action
c. The court, the region and the town to which the action is assigned
d. The description of the pleadings and
e. The time and date when it was filed.

Every pleading shall, if necessary, be divided into paragraphs numbered consecutively, each
allegation being so far as convenient contained in a separate paragraph.

Dates, sums and other numbers may be expressed in a pleading in figures or in words or
both.

Every pleading shall be indorsed

a. Where the party sues or defends in persons with the name and address of the person;
or
b. In any other case, with the name or firm and business address of the lawyer by
whom it is issued and where the lawyer is the agent of another, the name or firm and
business address of the lawyer’s principal.

Every pleading of a party shall be signed by a lawyer, if settled by the lawyer, and, if not, by
the party.

It must be addressed to the Registrar of the Court in which the action is pending and also
addressed to the opponent or his or her lawyer.

Striking Out Pleadings – Order 11 Rule 18

 E.A. AFENYO

The Court may at any stage of the proceedings order any pleading or anything in any
pleading to be struck out on the grounds that

a. It discloses no reasonable cause of action or defence; or

b. It is scandalous, frivolous or vexatious; or
c. It may prejudice, embarrass or delay the fair trial of the action; or
d. It is otherwise an abuse of the process of the court

And may order the action to be stayed or dismissed or judgment to be entered accordingly

No evidence whatsoever shall be admissible on an application under subrule 1a. In other

words, the court will consider the issue on the face of the pleading and determine whether it
discloses a reasonable cause of action or defence or not. No evidence in the form of an
affidavit is required.

Amissah Abadoo v Abadoo:

There is no dispute that the defendant is entitled to invoke both rule 4 and the inherent
jurisdiction of the court. The latter jurisdiction empowers the court to stay or dismiss actions
and strike out pleadings which are vexatious or frivolous or in any way an abuse of the
process of the court: see Reichel v. Magrath (1889) 14 App.Cas. 665, H.L. There are however
some distinctions in the application of the two. The principal distinction being that when the
court is acting under its inherent jurisdiction evidence by affidavit may be received to show
that a pleading is an abuse of the process of the court whereas under rule 4 the nature of the
action or the defect in the pleading must appear by the pleading on the particulars and no
affidavit is admissible: see Davey v. Bentinck [1893] 1 Q.B. 185, C.A. It is only in plain and
obvious cases that recourse should be had to the summary process under rule 4: see the case
of Mayor & C. of the City of London v. Horner (1914) 111 L.T. 512, C.A. If there is a point of
law which requires serious discussion an objection should be taken on the pleadings and the
point set down for argument under rule 2: see Hubbuck & Sons Ltd. v. Wilkinson, Heywood
and Clark Ltd. [1899] 1 Q.B. 86, C.A. The powers conferred by rule 4 will only be exercised
where the case is beyond doubt.  The court must be satisfied that there is no reasonable
cause of action and that the proceedings are frivolous or vexatious.  A pleading, it had been
held, will not be struck out under this rule "unless it is demurrable and something worse
than demurrable" per Chitty J. in Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch.D.
489 at p. 496.  Even though the rule does not stipulate what time an application under it
should be made the general practice has been to insist on making the application promptly
 E.A. AFENYO

But the practice is clear that so long as the statement of claim or the particulars disclose some
cause of action, or raise some question fit to be decided by a judge or a jury, the mere fact
that the case is weak and not likely to succeed is no ground for striking it out.   See Davey v.
Bentinck (supra) and Moore v. Lawson (1915) 31 T.L.R. 418, C.A. If however the action
brought is solely for a relief which the court has no power to grant or if a relief be asked on a
ground which is no ground for such relief, the statement of claim will be struck out and the
action dismissed.

Ghana Muslims Representative Council v Salifu

a pleading would only be struck out where it was apparent that even if the facts were
proved the plaintiff was not entitled to the relief he sought. The court also noted that
affidavit evidence was inadmissible on an application to strike out pleadings on the ground
that the action had no reasonable chance of success.

Harlley v Ejura Farms Ltd.

‘although the defendants by their counsel attacked the pleadings of the plaintiff by a number
of arguments, the arguments were all, without a single exception, founded on one
compendious ground, namely, that the statement of claim discloses no reasonable action. 
No arguments of any sort were directed at demonstrating that the action is frivolous and
therefore an abuse of the process of the court. This means . . . that it was not necessary for
the defendants in their motion before the High Court to invoke the inherent jurisdiction . . .
Under the rules, in an application to set aside the writ and statement of claim, the court is to
decide the question by examining the said statement of claim and writ and nothing else.  If,
however, the application is founded on the inherent jurisdiction which ... is discretionary,
then all the facts can be gone into and evidence by way of affidavits touching the facts
supported by documents is admissible . . . In this case elaborate arguments founded on the
affidavits, [p.184] the filed contract . . . the guarantee . . . and the pleadings of the defendants
were canvassed in order to show that the statement of claim discloses no cause of action . . .
If by reference only to the pleadings it is not possible to say it discloses no cause of action
but an applicant must make elaborate excursions into extrinsic material before he can invite
the court to so hold, then . . . the rule does not apply

In my opinion, in proceedings under the first part of the rule concerned with striking out the
claim because it discloses no reasonable cause of action, if indeed the pleadings cannot by
any amendment be made to disclose a cause of action, then it seems to me that it is
mandatory, not discretionary, that the pleadings be struck out, and extrinsic evidence by
 E.A. AFENYO

way of affidavits and documents cannot be looked at for the exercise. If the matter is
discretionary and the court can refuse to strike out although the pleadings disclose no cause
of action, then the court would be sanctioning a trial the result of which is already known. 
This is clearly a hopeless and expensive exercise and renders unnecessary the whole
purpose of pleadings.’.

As stated earlier a writ of summons is defined as including a statement of claim or a

petition. A writ of summons or a petition could be struck out on any of the grounds stated
above.

Okofoh Estates Ltd v. Modern Signs Ltd

Where a pleading is struck out because it discloses no cause of action or defence, the
application may be grounded on the rules of court, no extrinsic evidence is admissible.
Where is it is grounded on the court’s inherent jurisdiction, extrinsic evidence will be
admissible in determining the application.

Even though Order 11 r 18 provides that an application to strike out a pleading can be
brought at any stage of the proceedings, it has been held that the settled practice was that
such an application to strike out a pleading should be brought promptly when the offending
pleading is served. The power to strike out a pleading or part of it is discretionary and it
must be exercised fairly and taking all the circumstance of the case into consideration.

Gbenartey & Glie v Netas Properties & Investments & Others

Delivery of Pleadings

Order 11

Rule 1 – Service of Statement of Claim

A statement of claim is to be served together with a Writ of Summons.

Where the plaintiff fails to serve a statement of claim on a defendant, the defendant may
apply to the Court for an order to dismiss the action, and the Court may by order dismiss
the action or make such other order on such terms as it considers just.

Rule 2 – Service of Defence

 E.A. AFENYO

A defendant who files appearance and intends to defend the action shall, unless the Court
gives leave to the contrary, file a defence for service on the plaintiff before the expiration of
14 after the time limited for appearance.

Where notice of an application for summary judgment under Order 1 is served on a

defendant before the defendant files a defence, subrule 1 shall not apply to that defendant,
but if by the order made on the application the defendant is given leave to defend the action,
the defendant shall file a defence for service on the plaintiff within 14 days after the order is
made or within such other period as may be specified in the order.

Rule 3 – Service of Reply

A plaintiff on whom a defence is served shall file a reply if that is necessary for compliance
with rule 8, and if no reply is filed, rule 14(1) shall apply.

A reply to any defence shall be filed by the plaintiff before the expiration of seven days after
the service on the plaintiff of that defence.

Rule 4 – Subsequent Pleadings

No pleading subsequent to a reply shall be filed except with leave of the Court.

Poku v Frimpong.

Per Order 80, Rule 2, pleadings may be filed, served or amended during the legal vacation
but time does not run. What this means is that during the legal vacation, time prescribed by
the rules for the filing of pleadings are put on hold or suspended until the commencement of
the new legal year. This rule applies only to the filing of pleadings. Time prescribed by the
rules, therefore, do run for other processes that are not pleadings, for example filing a Notice
of Appearance, a Notice of Appeal and filing written submissions.

Close of Pleadings – Order 11 & R 14 & 19 and Order 32 r 2.

Rule 19

The pleadings in an action are closed,

a. At the expiration of 7 days after service of the reply or, if there is no reply but
only a defence to a counterclaim, after service of the defence to counterclaim;
or
b. If neither a reply nor a defence to counterclaim is served, at the expiration of
7 days after service of the defence.
 E.A. AFENYO

The pleadings in an action are closed at the time provided by subrule 1 notwithstanding that
any request or order for particulars has been made but has not been complied with at that
time.

Application for Directions – Order 32

At this stage, court lays down issues for trial, orders discoveries, orders pre-trial checklist to
be filed 4 clear days before case management conference``, sets mode for trials (is the trial
going to be oral or documentary), length of time the case is supposed to last, all
interlocutory proceedings must be taken (joinder, interlocutory, amendments, these will be
dealt with even before the application for directions is considered), appointment of experts,
C.I 133 – parties may opt to go for mediation, parties are ordered to file and serve witness
statements, date for case management conference is fixed.

At case management conference, the court finds out whether the orders that was made at the
application for directions stage have been complied with. If they are, court fixes a date for
hearing.

Rule 1 – Purpose of Application

1. An application for directions shall be made in appropriate actions to enable

the court consider the preparations for trial, so that
a. All matters which have not already been dealt with, may so far as
possible, be dealt with; and
b. Directions may be given as to the future course of the action as appear
best to secure the just, expeditious and inexpensive disposal of it.

Rule 2

The plaintiff is required to file notice of an application for directions for service on all the
other parties to the action within one month after pleadings are closed.

There must be at least 8 days between the date of service of the notice and the day named in
the notice for the hearing of the application.

Rule 3

Where the plaintiff fails to apply for directions in accordance with rule 2, a defendant may
do so or may apply for an order to dismiss the action.
 E.A. AFENYO

Where a defendant applies to dismiss the action, the court may either dismiss the action on
such terms as may be just or deal with the application as if it were an application for
directions.

STATEMENT OF CLAIM

Per Order 2 r 6 and Order 11 r 1, every Writ of Summons shall be filed together with a
statement of claim and where a writ of summons is served on the defendant without the
statement of claim, the defendant may apply to the court to dismiss the action as the writ
will be deemed defective or make such other order on such terms as it considers just. Order
11 r 1(2).

STATEMENT OF DEFENCE

A defendant who enters appearance to a Writ of Summons is required to file a statement of

defence within 14 days from the expiration of the time limited for the filing of the
appearance. However, where before filing a statement of defence, the defendant is served
with an application for summary judgment under Order 14, such a defendant is not required
to file a statement of defence as stated above. In that case, the defendant will be required to
file a statement of defence within 14 days after the determination of the application for
summary judgment or within such other period specified in the order, if he or she is granted
leave to defend the action. (order 11, r 2(2)

CONFESSION AND AVOIDANCE

This is where the defendant admits the facts contained in the statement of claim of the
plaintiff and in turn alleges fresh facts which given an answer to the claim, eg: frustration,
contributory negligence etcc.

A defendant may also admit the facts alleged by the plaintiff and then raise a point of law
that absolves him or her from liability, eg: the action is statute barred.

The defendant may plead any of the following points of law in a confession and avoidance:

 Frustration of contract
 E.A. AFENYO

 Contributory negligence
 Laches and acquiescence
 Statute of limitation
 Acts of God
 Acts of state
 Force majeure
 Res judicata

THE DEFENCE OF SET-OFF – Rule 17

In an action for the recovery of a liquidated claim a defendant who has a cross claim for a
sum of money may include it in his or her defence as a set-off against the plaintiff’s claim.
The right of set-off however must exist between the same parties and in the same right and
capacities before it could be a good defence in law.

Therefore, for example, a defendant cannot personally set off a debt due him or her by the
plaintiff against a claim made by the plaintiff in a representative capacity.

The defence of set-off must be specifically pleaded in the statement of defence.

Rule 17 states that where in a claim by a defendant to a sum of money (whether ascertained
or not) is relied upon as a defence to the whole or part of a claim made by the plaintiff, it
may be included in the defence and set-off against the plaintiff’s claim, whether or not it is
also included as a counterclaim.

DEFENCE OF TENDER (TENDER BEFORE ACTION) – Rule 16

This is where in a liquidated claim, the defendant makes the effort to settle the amount due
from him or her before the action is taken against him.

A defendant who intends to rely on this defence must show that he or she tendered the
amount owed and the plaintiff rejected the amount and for that matter the amount has been
paid into the court and notice given to the plaintiff of the payment.

Rule 16 states that where in any action a defence of tender before action is pleaded, the
defendant shall pay into court in accordance with order 18 the amount alleged to have been
tendered, and the tender shall not be available as a defence unless and until payment into
court has been made.

REPLY
 E.A. AFENYO

The plaintiff on whom a statement of defence is served shall file a reply if that is necessary.
If no reply is filed, then there will be a joinder of issues on the statement of defence.

A plaintiff who is minded to file a reply must do so within 7 days from the date the
statement of defence was served.

Where a counterclaim is filed by a defendant together with his statement of defence, the
plaintiff must incorporate the defence to the counterclaim in the reply.

In Re Ashalley Botwe Lands; Agbosu & Others v Kotey & Others.

The main objective of a reply is to give answers to specific matters that have been pleaded in
the statement of defence. A plaintiff may allege facts in his or her reply, in support of his
case as contained in the statement of claim but he or she is not allowed to set up in his or her
reply, a new claim or an entirely new cause of action which was not contained in his or her
writ and statement of claim.

Odoi v Hammond

REJOINDER

Order 11, R 4 states that no pleading subsequent to a reply shall be filed except with leave of
the court.

DEFAULT OF PLEADINGS – ORDER 13

Generally, a plaintiff may apply for judgment against a defendant who has entered
appearance but fails to file a statement of defence within the prescribed time. The
application for judgment in default of defence shall be on notice to the defendant.

Per Order 7 r 12(4) a judgment in either default of defence or default of appearance shall
only be granted if the person serving the writ indorses on it the date on which it is served,
the person on whom it is served and where the person is not the defendant, the capacity
in which the person is served.

Where a defendant defaults in filing a statement of defence, the nature of judgment to be

entered depends on the claim endorsed on the plaintiff’s writ of summons:

Rule 1- Claim for Liquidated Demand

 E.A. AFENYO

Plaintiff is entitled to apply to enter final judgment against the defendant for a sum not
exceeding that claimed by the writ in respect of the demand and for costs, and proceed with
the action against other defendants, if any.

This does not mean final judgment in the context of appeals. It means the judge will grant the
application without asking the defendant to bring evidence in support of his claims. Default
judgments are not on merits.

Rule 2 – Claim for Unliquidated Demand

Plaintiff is entitled to apply for interlocutory judgment against the defendant for damages to
be assessed and for costs, and proceed with the action against other defendants if any.

Rule 3 – Claim in Detinue

The plaintiff may apply for interlocutory judgment against the defendant

a. For the delivery of the goods or their assessed value and costs;
b. For the delivery of the goods and costs; or
c. For the value of the goods and costs and proceed with the action against
other defendants, if any.

Rule 4 – Claim for Possession of Immovable Property

The plaintiff may apply to enter judgment for possession of the immovable property against
the defendant and for costs, and proceed with the action against the other defendants, if any.

Where there is more than one defendant, judgment entered under the rule shall not be
enforced against any defendant unless and until judgment for possession of the immovable
property has been entered against all the defendants.

The rule does not apply where possession is claimed by virtue of a mortgage.

Rule 5 – Mixed Claims

Where the claims are mixed under rules 1 to 4, the plaintiff may apply to enter against the
defendant such judgment in respect of the claim as the plaintiff would be entitled to enter
under those rules, and proceed with the action against other defendants, if any.

Rule 6 – Other Claims

 E.A. AFENYO

Where the plaintiff makes a claim not mentioned in rules 1 to 4, and the defendant fails to
file a defence within the time fixed by the rules, the plaintiff may apply to the Court for
judgment.

On hearing the application, the Court shall give such judgment as the plaintiff appears
entitled to by the statement of claim of the plaintiff.

Where the plaintiff makes a claim to which subrule 1 applies against more than one
defendant, and one of the defendants fails to file a defence to the claim, the plaintiff may

a. If the claim is severable from the claim against the other defendants, apply
under subrule 1 for judgment and proceed with the action against the other
defendants or
b. Set down the action on a motion for judgment against the defendant in
default at the time when the action is set down for trial or is set down on a
motion for judgment, against the other defendants.

Order 59, Rule 4 - Moneylender’s Action

No judgment shall be given in default of appearance in such actions except with leave of the
court. 
Notice of the application must be served on the defendant.
At the hearing of the application, whether the defendant appears in court or not, the court
may,  
b. Exercise the powers of the court under the Moneylenders Act and 
c. If satisfied by affidavit or otherwise that notice has been duly served, give
leave to enter judgment for the whole or part of the claim; and 
d. As regards any part of the claim to which leave to enter final judgment is
refused, give such directions as may be necessary for further proceedings in the
action, and upon such terms as may be considered just.  
 
Order 59, Rule 5 - Action on Mortgages 
Judgment shall not be entered in default of defence or in default of appearance except by
leave of the Court. 
Notice of an application for grant of leave made under the rule shall be served on the
defendant.

Order 62, R 15(4) – Maritime Actions

 E.A. AFENYO

Where a defendant fails to file a defence in a maritime action, the Plaintiff shall apply for
judgment upon filing an affidavit indicating that no defence has been served by the
defendant as well as an affidavit verifying the facts on which the action is based and also
exhibit a copy of the statement of claim.

Per subrule 5, where a Plaintiff fails to file a defence to a counterclaim in a Maritime Action,
the defendant who filed the counterclaim may apply for judgment after filing an affidavit
stating that no defence has been filed and also an affidavit verifying the facts upon which
the counterclaim is based and a copy of the counterclaim.

Per subrule 9, the general rules on the application for judgment in default of appearance or
defence under Orders 10 and 13 do not apply to maritime actions. Under subrule 8, the court
may set aside or vary any default judgment entered in a Maritime Action.

Probate Actions – Order 66 R 42

Default judgments either in appearance or defence are not allowed in probate actions.
Where there is a default, the plaintiff must apply for leave to set the action down for trial as
if the defendant has appeared.

Setting Aside Default Judgment – Order 13, Rule 8

The court may, on an application by a party affected and on such terms as it thinks just, set
aside or vary any judgment entered in default of defence.

There is no time limit for such an application but it must be made within a reasonable time
upon entry of judgment.

The important ground the court will consider before setting aside a judgment is whether or
not the party applying has a good defence to the action. If the court is of the opinion that the
application to set aside the default judgment discloses no reasonable defence to the action or
no useful purpose will be served in setting aside the judgment then the application will be
refused.

COUNTERCLAIMS – Order 12

Rule 1 stipulates that a defendant who alleges that he has any claim or is entitled to any
relief or remedy against a plaintiff in respect of any matter, whenever and however arising,
may instead of bringing a separate action, make a counterclaim in respect of the matter. The
defendant shall add the counterclaim to the defence.
 E.A. AFENYO

Note that the counterclaim must be an action for which the court in which the plaintiff has
initiated the original action has jurisdiction.

In the event that the Plaintiff’s action is struck out, a Defendant who has a counterclaim may
still pursue the counterclaim against the Plaintiff whose action has been struck out. An
original plaintiff in an action with a counterclaim becomes a defendant to the counterclaim
and the defendant in the original case becomes a plaintiff in the counterclaim. A
counterclaim is therefore an independent cross action that can be pursued on its own.

A plaintiff need not file appearance to a counterclaim because he or she is already a party to
the action. A counterclaim must be brought within a pending action.

Progressive Imports Ltd v Muller

It was held that a counterclaim was not an independent action in the sense that it must be
raised in the plaintiff’s suit as a cross-action before judgment is entered.

Therefore, since in this case, the counterclaim was not raised before but after summary
judgment had been given, it could not be said to be a cross-action because after the
judgment, the claim ceased to exist.

Difference between counterclaim and set-off

Whereas counterclaim is a fresh action, set-off is a defence.

A set-off must either extinguish or reduce the claim, where however it is beyond the claim,
then a counterclaim may be filed instead of a defence of set-off. The counterclaim must be
made part of the statement of defence.

Rule 2- defence to counterclaim

Plaintiff shall file a defence to the counterclaim if plaintiff intends to defend it.

Defence must be filed within 14 days of service on plaintiff of counterclaim.

Where plaintiff serves both reply and defence, then plaintiff shall include them in the same
document.

Note that where plaintiff fails to file a defence to the counterclaim, judgment in default of
defence to the counterclaim may be entered against the plaintiff.

Rule 4 – Proceedings on Counterclaim

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A counterclaim may be proceeded with although judgment is given for the plaintiff in the
action or the action is stayed, discontinued or dismissed.

Where a defendant establishes a counterclaim against the claim established by the plaintiff
and there is a balance in favour of one of the parties, the court may give judgment in favour
of the balance but without prejudice to the court’s discretion in respect of costs.

Rule 5 – Counterclaim against additional parties

Where a defendant who makes a counterclaim against a plaintiff alleges that any other
person, whether a party to the action or not, is liable to the defendant together with the
plaintiff in respect of the subject matter of the counterclaim or claims against such persons
any relief relating to or connected with the original subject matter of the action, the
defendant may join that other person as a party against whom the counterclaim is made.

Where a defendant joins a party against whom the defendant makes a counterclaim, the
defendant shall add that person’s name to the title of the action and serve that person a copy
of the counterclaim.

Where a copy of the counterclaim is to be served on a person who is already a party to the
action, the defendant shall serve it within the period within which, under the Rules, the
defendant shall serve on the plaintiff the defence to which the counterclaim is added.

Where a copy of the counterclaim is to be served on a person who is not already a party to
the action, a copy of the writ and of the pleadings served in the action shall be served with
the counterclaim.

The provisions of the Rules relating to service of process, filing of appearance and default of
appearance shall apply to the counterclaim and the proceedings arising from it as if the
were a writ and statement of claim and the proceedings arising from it, an action and the
party making the counterclaim were a plaintiff and the party against whom it is made, a
defendant in that action.

Where the counterclaim is to be served on a person who is not already a party, the
counterclaim shall be endorsed with a notice addressed to that person stating the effect of
Order 9 r 1 and 2, which is the effect of entering appearance or non-entry of appearance.
The notice must also specify the court registry at which the person shall file his or her
appearance to the counterclaim.
 E.A. AFENYO

A person who is not already a party in the action shall become a party to the action upon
service on him or her of the counterclaim and shall file appearance to the counterclaim.

Rule 6 – Joinder of Causes of Action

A defendant may in one counterclaim, claim relief against the same plaintiff in respect of
more than one cause of action where

a. The plaintiff is alleged to be liable in the same capacity in respect of all

the causes of action
b. The plaintiff is alleged to be liable in the capacity of executor or
administrator of an estate or successor under customary law in respect
of one or more of the causes of action and in the plaintiff’s personal
capacity but with reference to the same estate with respect to all the
others or
c. The court grants leave upon application.

An application for leave shall be made ex parte before the filing of the counterclaim and
supported by affidavit which shall state the grounds of the application.

Rule 7 – Court may order separate trials

The court may order separate trials if a counterclaim joins two or more causes of action and
it appears to the court that the joinder of the causes of action may embarrass or delay the
trial.

The court may also on an application of any party against whom a counterclaim is made,
order separate trial or order the counterclaim to be struck out or make such other order as
the court deems just and fair.

AMENDMENTS – Order 16

The purpose of an amendment is to enable the court to determine the real issues in
controversy that has brough the parties to court. It is also to correct errors or defects in the
proceedings before the court to ensure fairness and justice.

Yeboah v Bofour

An application for an amendment (which is governed by Order 28 of the Supreme [High]

Court (Civil Procedure) Rules, 1954 (L.N. 140)) may be made as soon as the necessity arises,
and as a general rule the court will allow an amendment even up to the last moment,
provided that
 E.A. AFENYO

(i) no surprise results,

(ii) it does not enable a party to set up an entirely new case or to change
completely the nature of his case,
(iii) it is not sought to add new parties,
(iv) it will not do any injury to the opponent's case or prejudice him in some
way which cannot be compensated by costs or otherwise,
(v) the application be made bona fide and
(vi) the proposed amendment will not cause undue delay or is irrelevant or
useless or would merely raise a technical point. 

However a court will not grant leave to amend the pleadings after final decree or entry of
judgment. 

Mahama Hausa & Others v Baako Hausa & Another

Where an amendment is being sought in order to bring the pleadings in line with the
evidence adduced, it is a guiding principle of cardinal importance that generally speaking,
all such amendments ought to be made and Order 28, r. 1 in fact provides mandatorily that
“all such amendments shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties.”

Rule 1 – Amendment of Writ without leave

The plaintiff may amend the plaintiff’s writ without leave of the Court once at any time
before the pleadings are closed.

Where a writ is amended after it has been served, the amended writ shall be served on each
defendant to the action unless on an application made ex-parte the court otherwise directs.

Note that where appearance has been entered by a defendant before a writ of summons is
amended by the plaintiff, the defendant is not required to enter a fresh appearance to the
amended writ of summons because the amended writ of summons takes the place of the
original writ.

Rule 2 – Amendment of notice of appearance

A defendant shall not amend a defendant’s notice of appearance without leave of the court.

Rule 3 – Amendments of Pleadings without leave

 E.A. AFENYO

A party may, without leave of the Court, amend any of the party’s pleadings once at any
time before the pleadings are closed and where the party does so, the party shall cause the
amended pleadings to be served on the parties on the other side.

Where an amended statement of claim is served on a defendant who has already filed a
statement of defence, the defendant may amend his statement of defence without leave of
the court to respond directly to the plaintiff’s amendment. The period for the service of the
amended statement of defence shall be either the period fixed by the rules for the service of
the defence or the period of 14 days, after the amended statement of claim is served on the
defendant, which ever expires earlier.

Where an amended statement of defence is served on the plaintiff who has already filed a
reply, such plaintiff may amend the reply without leave of the court to directly respond to
the defendant’s amendment. The period for service of the amended reply shall be 14 days
after the amended defence is served on the plaintiff.

Note that reference to statement of defence and reply as stated above include references to a
counterclaim and a defence to counterclaim.

Where an amended counterclaim is served by a defendant on a party other than the plaintiff
against whom the counterclaim is made, subrule (2) shall apply as if the counterclaim were a
statement of claim and as if the party by whom the counterclaim is made were the plaintiff
and the party against whom it is made a defendant.

Where a party has pleaded to a pleading which is subsequently amended and served on that
party, if that party does not amend the pleading, the party shall be taken to rely on it in
answer to the amended pleading and the amended pleading takes effect from the date the
original pleading is filed as the original pleading ceases to exist.

Rule 4 – Application to Strike out amendment made without leave

A party served with an amended pleading without leave of the court may apply to the court
within 14 days from the date the amended pleading was served on him or her to strike out
the amendment. When the court hearing such an application is satisfied that the amendment
would not have been granted if leave of the court was sought, the court shall order the
amendment to be struck out.

Rule 5 – Amendment of Writ or Pleading with Leave

 E.A. AFENYO

The court may at any stage of the proceedings upon an application by a plaintiff or other
party grant leave to the plaintiff to amend the plaintiff’s writ or any party to amend the
party’s pleadings; on such terms as may be just and in such manner as it may direct.

Where an application to the court for leave to make the amendment mentioned in subrule 3,
4 or 5 is made after any relevant period of limitation has expired, the Court may
nevertheless grant the leave in the circumstances mentioned in that application if it
considers it just to do so.

An amendment to correct the name of a party may be allowed under subrule (2)
notwithstanding that it is alleged that the effect of the amendment will be to substitute a
new party if the Court is satisfied that the mistake sought to be corrected was a genuine
mistake and was not misleading or such as to cause any reasonable doubt as to the identity
of the person intending to sue or intended to be sued.

Mussey v Darko

The respondent, R. A. Darko, the sole owner of a business that operated under the name of
Okofoh Enterprises, issued a writ in the name of Okofoh Enterprises against the appellant in
the High Court to recover a debt of ¢4,962.86 owed to the firm.  Although the appellant
disputed the capacity of the respondent, the issue was not pursued and judgment in the
action was given for the respondent.  After judgment, counsel for the respondent applied for
an amendment of the title by substituting his name for the name of the firm.  The appellant
raised an objection to the amendment on the ground that the court had no power to grant it.

Held;

where the sole proprietor of a business mistakenly sued in the firm's name, and later gave a
reasonable explanation for his mistake, the court could treat the mistake as a mere misnomer
and grant an application to have the title to the writ amended.

Ghana Industrial Holding Corporation v Vicenta Publications

One O. was the sole proprietor of a business that operated under the name Vincenta
Publications.  The appellants were sued by O., who used the business name, and the circuit
court awarded judgment in favour of the respondent.  On appeal the appellants submitted
that a person who carries on business in a name or style other than his own name cannot sue
under the business name.  Counsel for the respondent submitted that it was not proper to
have raised such an objection on appeal and that the parties were bound by their pleadings. 
 E.A. AFENYO

He then applied to amend the name of the respondent to read "Vincent Alisa Onuku trading
under the firm name and style of Vincenta Publications."

Held, allowing the appeal:

(1) a single person cannot sue in a firm name either under rule 1 or rule 11 of Order 48A. 
Mason & Son v. Mogridge (1892) 8 T.L.R. 805 applied.

(2) Order 16, r. 2 gives the court the power to add or substitute a plaintiff where the action
has been taken in the name of the wrong person.  However, the respondent's application
was to substitute an existing person for a business name that was not a person and therefore
there was no plaintiff before the court.

An amendment to alter the capacity in which a party sues may be allowed under subrule (2)
if the new capacity is one which that party had at the date of the commencement of the
proceedings or has since acquired. Note that this has changed the position in Akrong v
Bulley which held that a writ issued by a person who lacked capacity to sue was a nullity.

An amendment may be allowed under subrule (2) notwithstanding that the effect of the
amendment will be to add or substitute a new cause of action, if the new cause of action
arises out of the same facts or substantially the same facts as a cause of action in respect of
which relief has already been claimed in the action by the party applying for leave to make
the amendment.

Rule 6—Amendment During Long Vacation

A party may amend the party’s writ or pleadings under rule 1 or 3 (1) during the Long
Vacation but, a writ or pleading shall not be amended during the Long Vacation unless the
Court allows it under rule 5.

Rule 7—Amendment of Other Documents

(1) For the purpose of determining the real question in controversy between the parties or of
correcting any defect or error in the proceedings, the Court may, at any stage of the
proceedings either of its own motion or on the application of any party, order any document
in the proceedings to be amended on such terms as to costs or otherwise as may be just and
in such manner as it may direct.
 E.A. AFENYO

(2) This rule shall not apply in relation to a judgment or order.

Rule 8—Failure to Amend After Order

Where the Court makes an order giving a party leave to amend a writ, pleading or other
document, then, if that party does not amend the document in accordance with the order
before the expiration of the period specified for that purpose in the order or, if no period is
so specified, within fourteen days after the order is made, the order shall cease to have effect
but without prejudice to the power of the Court to extend the period.

Mahama Hausa & Others v Baako Hausa & Another

If a court in granting an application for amendment confines itself to granting leave to

amend, the failure to file the amendments within the time limited must result in their
becoming ipso facto void as laid down in Order 28, r. 7. But this failure to file the
amendments within the time limited is not irremediable.  Order 28, r. 7 expressly leaves
room for the court to grant an extension of time. 

Law applied in Kwatreng II & Others v Klu.

Rule 9—Method of Amending

(1) Subject to subrule (2) of this rule, and to any direction given under rule 3 or 7, any
amendments authorized under this Order to be made a writ, pleading or other document
may be effected by making the necessary alterations to the document by hand writing and,
in the case of a writ, causing it to be re-sealed and filing a copy of it.

(2) Where the authorized amendments are so numerous or of such nature or length that to
make written alterations to the documents in order to give effect to them would make it
difficult or inconvenient to read, a fresh document, amended as authorized, shall be
prepared and, in the case of a writ, re-issued.

(3) A writ, pleading or other document which has been amended under this Order shall be
indorsed with a statement that it has been amended, specifying the date on which it was
amended, the name of the Judge who made the order authorizing the amendment and the
date of the order or, if no such was made, the number of the rule of this Order under which
the amendment was made.
 E.A. AFENYO

Rule 10—Correction of Clerical Errors (Slip Rule)

Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or
omission, may at any time be corrected by the Court either on its own motion on notice to
the parties or on an application without an appeal.

Omaboe v Kwame

the court had an inherent jurisdiction to set aside or vary its own orders which it could
exercise on three broad bases, namely: (1) if there was some clerical mistake in a judgment or
order, (2) if there was some error in a judgment or order which arose from any accidental
slip or omission and (3) if the meaning and intention of the court was not expressed in its
judgment or order. 

Applied in Shirlstar Container Transport Ltd v Ashanti Goldfields Corporation

Rule 11—Method of Applying for Leave

(1) An application for leave to amend a writ or a pleading shall be made on notice to all the
other parties to the action.

(2) The application shall specify precisely the nature of the amendment intended to be made.

(3) An affidavit may be used in an application for leave to amend under this rule.

When can a party apply for amendment?

The general rule is that amendment can be applied for by a party and same granted at any
stage of the proceedings. In practice, however, it is not so simple in that the court has to be
guided by different factors in granting or refusing an application for amendment.

The court would normally grant an amendment if the application is made before the close of
evidence. After the close of evidence, amendments are generally refused unless there is
evidence on record to support the amendment. Where the amendment will lead to the
calling of fresh evidence after close of case it will be refused. It is important to bear in mind
that each application for amendment will be determined on its merits.

As stated earlier, an amendment made in bad faith calculated to delay the proceedings will
not be granted. An amendment that will not enable the court to determine the real issues in
 E.A. AFENYO

a dispute will normally be refused. The general principle is that an amendment that seeks to
withdraw an admission offered by a party should not be allowed. The reason is that an
admission is a concession by a party of a claim by the other party. The court will only allow
such amendment if it is satisfied that the admission was made inadvertently.

The court will also refuse an amendment that has the effect of setting up a claim that is
statute barred. If a writ cannot be issued for that claim then an amendment will not be
allowed.

Effect of an Amendment

The principle is that an amended writ or pleading relates back to the date the writ or
pleading amended was filed. For example, an amended writ becomes the origin of the action
and the reliefs claimed therein are substituted for those of the original writ. When a writ or
pleading is amended, the original writ or pleading ceases to be part of the record and the
court cannot rely on such writ or pleading. Kai v Amarkye.

JOINDER OF CAUSES OF ACTION AND PARTIES

The following matters are very relevant and must be observed

a. if any of the plaintiffs is likely to put a conflicting claim or case to that of the
rest he or she should not be added to the suit.
b. If any person is made a defendant has a good ground for counterclaim
against any of the plaintiffs in the action this defendant should not be joined
because his or her counterclaim may embarrass the other plaintiffs or it may
delay the proceedings.
c. If a person sought to be joined as plaintiff is a man or woman of straw, he or
she should not be added because where joint liability is decreed for costs, the
indigent plaintiff cannot pay and execution will be levied against all the other
plaintiffs.

Joinder of Cause of Action – Order 4 R 2

(1) Subject to rule 4 of this Order, a plaintiff may in one action claim relief against the same
defendant in respect of more than one cause of action
 E.A. AFENYO

(a)  if the plaintiff claims, and the defendant is alleged to be liable in respect of all the causes
of action;

(b)  if the plaintiff claims and the defendant is alleged to be liable,

(i)  in the capacity of executor or administrator of an estate or successor under customary

law in respect of one or more of the causes of action; and

(ii)  in the defendant's personal capacity but with reference to the same estate in respect of all
the others; or

(c)  in any other case, with leave of the Court.

(2) An application for leave under subrule (1)(c) shall be made ex-parte before the issue of
the writ and shall be supported by an affidavit stating the grounds for the application.

It is important to note that claims such as damages for trespass, perpetual injunction and
order for accounts are not different causes of action. They are ancillary reliefs and may be
added to substantive claims such as recovery of possession and declaration of title to land
without leave of the court.

Note that joinder of causes of action is not the same as consolidation of suits as was done in
SGSSB v Hajaara Farms Ltd where the Supreme Court held that liability in tort and
contract may be pursued concurrently in one and same suit.

Joinder of Parties – Order 4 r 3

(1) Subject to rule 4 of this Order, two or more persons may be joined together in the same
action as plaintiffs or as defendants without leave of Court, where

(a) if separate actions were brought by or against each of them, some common question of
law or fact would arise in all the actions; and

(b) all rights to relief claimed in the action whether they are joint, several or in the alternative
are in respect of or arise out of the same transaction or series of transactions.

(2) Where the plaintiff in any action, other than a probate action, claims any relief to which
any other person is entitled jointly with the plaintiff, all persons so entitled shall, subject to
the provisions of any enactment and unless the Court gives leave to the contrary, be parties
 E.A. AFENYO

to the action and any of them who does not consent to being joined as a plaintiff shall,
subject to any order made by the Court on an application for leave under this subrule, be
made a defendant.

(3) Where relief is claimed in an action against a defendant who is jointly liable with
some other person, not severally liable, that other person need not be made a defendant to
the action; but where persons are jointly, but not severally liable under a contract and
relief is claimed against some but not all of those persons in an action in respect of that
contract, the Court may, on the application of any defendant to the action, by order stay
proceedings in the action until the other persons who are liable are added as defendants.

Where two or more persons are sued as defendants, it is not the law that the plaintiff shall
have same reliefs against all the defendants joined in the action. The plaintiff could claim
separate reliefs against each of the defendants. For example, if sam contracts York to supply
him with 500 tons of grade X rice but unknown to Sam, York supplied grade X rice and Ben,
who has been contracted by Sam to transport the rice to his warehouse caused damage to
the consignment of rice; an action could be brought by Sam against York and Ben as
defendants but Sam may claim against York damages for breach of contract for supplying
wrong grade of rice and claim against Ben the cost of the damage done to the goods.

Where two or more persons have coterminous interest in a property, for example, land, it is
unnecessary to join all such interest holders as defendants. When judgement is entered
against one of such interest holders, it will bind all others whose interest is coterminous with
the person against whom judgment was entered. A judgement entered against a grantor will
affect his grantee as was the case in Nkum v Andoh and Akwei v Cofie

Test Applied By Court in Joinder Applications.

The test applied in determining whether a person should be joined to an action is stated by
Denning in Gutner v Circuit and Another where he stated that: ‘when two parties are in
dispute in an action at law and the determination of the dispute will directly affect a third
person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the
court in its discretion may allow him to be added as a party on such terms as it thinks fit. By
doing so, the court achieves the object of the rule. It enables all matters in dispute to be
effectually and completely determined and adjudicated upon between all those directly
concerned in the outcome.
 E.A. AFENYO

This principle has been applied in cases such as Sai v Tsuru III where the supreme court
endorsed the test whether the joinder will ensure that all matters in dispute are completely
determined. The courts generally have jurisdiction to join a person whose presence is
necessary for the determination of the issues in the dispute.

Rule 5 – Misjoinder and Non-joinder of Parties

Misjoinder of a party is where a person who has no interest whatsoever in a dispute is made
a party to the action. In other word, such person is an unnecessary party. The joinder of the
person to the action is of no significance with regard to assisting the court in determining the
real issues in dispute. Non-joinder of a party on the other hand, is when a necessary party is
left out of the suit. This is where a person whose participation in the suit will assist the court
in determining the real questions in dispute is not joined to the action

(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party;

and the Court may in any proceeding determine the issues or questions in dispute so far as
they affect the rights and interests of the persons who are parties to the proceedings.

(2) At any stage of proceedings the Court may on such terms as it thinks just either of its
own motion or on application

(a) order any person who has been improperly or unnecessarily made a party or who for any
reason is no longer a party or a necessary party to cease to be a party;

(b) order any person who ought to have been joined as a party or whose presence before the
Court is necessary to ensure that all matters in dispute in the proceedings are effectively and
completely determined and adjudicated upon to be added as a party.

(3) No person shall be added as a plaintiff without that person's consent, signified in writing
or in such other manner as may be authorised by the Court.

(4) Any application by any person for an order under subrule (2) to add that person as a
party shall be made by motion supported by an affidavit showing the person's interest in the
matter in dispute before or at the trial.

(5) When an order is made under subrule (2), the writ shall within fourteen days after the
making of the order or such other period as may be specified in the order, be amended
 E.A. AFENYO

accordingly and indorsed with a reference to the order in pursuance of which the
amendment is made and with the date on which the order for the amendment is made.

(6) Where under this rule a person is ordered to be made a defendant, the person on whose
application the order is made shall procure it to be noted in the Cause Book by the Registrar
and after it is so noted

(a) the amended writ shall be served on the person ordered to be made a defendant; and

(b) the defendant so served shall thereafter file an appearance.

(7) A person ordered under this rule to be added as a party shall not become a party until
the writ is amended in relation to the person under this rule and, if the person is a
defendant, the writ has been served on the person. It therefore stands to reason that if at the
time the person joined or became a party the action is statute barred in relation to such person, he can
raise an automatic defence to the action, notwithstanding the fact that at the date the original writ
was issued the action was not statute barred. Gandaa v Gandaa & Others

Rule 4—Court may Order Separate Trials

If claims in respect of two or more causes of action are included by a plaintiff in the same
action, or if two or more plaintiffs or defendants are parties to the same action and it appears
to the Court that the joinder of causes of action or of parties may embarrass or delay the trial
or is otherwise inconvenient, the Court may

(a) order separate trials;

(b) confine the action to some of the causes of action and exclude others;

(c) order the plaintiff or plaintiffs to elect which cause of action should be proceeded with;

(d) order which plaintiff shall remain as plaintiff or shall cease to be such plaintiff;

(e) order a defendant to be struck out so as not to embarrass the defendant or cause the
defendant any expense by being required to attend proceedings in which the defendant has
no interest; or

(f)  make such other order as may be just.

 E.A. AFENYO

Nature of Liabilities Against Parties

Liabilities of parties in civil actions may be described as jointly, severally and jointly and
severally. It is thus important for the plaintiff to endorse on his or her writ of summons
whether his or her claim against the defendants is either jointly, severally or jointly and
severally as each of these liabilities have different legal effects especially when it comes to
enforcing judgments against defendants. The different liabilities are;

a. Jointly: marful-sau
b. Severally: marful-sau
c. Jointly and severally: marful-sau

Change of Parties – Order 4 R 6 & 7

(1) Where a party dies or becomes bankrupt but the cause of action survives, the action shall
not abate by reason of the death or bankruptcy.

(2) Where at any stage of the proceedings the interest or liability of any party is assigned or
transmitted to or devolves upon some other person, the Court may, for the effective and
complete determination of the matters in dispute, order that other person to be substituted
for the first-named party.

This was acknowledged in Republic v Bonsu & Others; Ex Parte Folson

(3) An application for an order under this rule may be made ex-parte.

(4) Where an order is made under this rule for a person to be made a party and the person is
already a party on the other side of the record, the order shall be treated as containing a
direction that the person shall cease to be a party on that side.

(5) When an order is made under this rule for a person to be made a party and the person is
already on the same side but in a different capacity, the order may contain a direction that
the person shall cease to be a party in that other capacity.

(6) The person on whose application an order is made under this rule shall procure it to be
noted in the Cause Book by the Registrar and after it is so noted the person shall unless the
Court otherwise directs, serve the order on every other party to the proceedings or who
becomes or ceases to be a party by virtue of the order.
 E.A. AFENYO

(7) A person may, within fourteen days after the person is served with an order made ex-
parte under this rule, apply to the Court to discharge or vary the order.

(8) A person ordered under this rule to be substituted as a party shall not become a party
until the order is served on the person under subrule (6) or, if no order is required to be
served on the person, it has been noted in the Cause Book; and where the person becomes a
party, all things done in the course of the proceedings before the making of the order shall
have effect in relation to the new party as they had in relation to the old; except that filing of
appearance by the old party shall not dispense with filing of appearance by the new party.

(9) Where under this rule a person is ordered to be made a defendant, the person shall file an
appearance, and for this purpose the time limited for filing shall begin from the date on
which the order is served on the person under subrule (6) or, if the order is not required to
be served on the person, from the date on which it is noted in the Cause Book.

Note that in general, what can be done after any of the above events occur particularly with
death and bankruptcy depends on whether the cause of action survives or not. This also
depends on whether the action which was instituted is in rem or in personam. The following
steps ought to be taken when the cause of action survives.

a. Upon the death of a sole plaintiff in a case, his or her executor/administrator

may apply to be substituted to carry on the proceedings. If one out of several
plaintiffs die, the surviving plaintiffs may continue with the case if the cause
of action is a joint one. In that case, they need not join the personal
representative of the deceased plaintiff. If the cause of action is not joint then
the personal representative of the deceased plaintiff may apply to be
substituted to carry on the proceedings.
b. Where a sole defendant in action is dead, the plaintiff may apply to substitute
the executor/administrator of the deceased defendant. The
executor/administrator of the deceased defendant may also apply to be
substituted to carry on with the proceedings. In such a situation, the case
cannot continue until the deceased defendant is substituted. If the deceased
defendant had a counterclaim the personal representative must seek an order
to proceed with the counterclaim.
c. Where one of the several defendants die in action where the liability is joint,
the liability continues in the survivors. Where all the defendants die, the
 E.A. AFENYO

action should be continued against personal representative of the last

surviving defendant. Where the liability of the defendants is jointly and
severally, the action may on the death of one defendant, be continued against
the survivors or the personal representative of the deceased and the
survivors.
d. Where the interest or liability of any party is assigned or transmitted to or
devolves upon some other person, the court may, order that other person to
be substituted for the original party so that the dispute will be effectively
determined.

Mode of Applying for substitution

Ex parte supported by an affidavit disclosing the cause of action; the stage the proceedings
have reached; the fact that the cause of action survives the deceased or event and that the
person to be substituted is the rightful person. The person on whose application the order
for substitution is made shall cause the order to be served on all the other parties in the
action and also cause the order to be noted in the cause book by the Registrar. a person
ordered to be substituted in the action only becomes a party if the order of substitution is
served on him or her. Upon service of the order on the person substituted, all things done in
the proceedings before the making of the order shall have effect in relation to the new party
as it related to the old party substituted.

A person who is served with an order of substitution obtained ex parte, may apply to set
aside, or vary the order within 14 days from the service of the order.

Rule 7—Failure to Proceed after Death

(1) If after the death of a plaintiff the cause of action survives, but no order is made under
rule 6 substituting as plaintiff any person in whom the cause of action vests, the defendant
may apply to the Court for an order that unless the action is proceeded with within such
time as may be specified in the order, the action of the plaintiff who has died shall be struck
out.

(2) The Court shall not make an order under subrule (1) unless it is satisfied that due notice
of the application has been given to the personal representatives or the customary successor
or head of family of the deceased plaintiff and to any other interested persons who, in the
opinion of the Court, should be notified.
 E.A. AFENYO

(3) The cost of the application under subrule (1) of this rule shall be borne by the estate of the
deceased plaintiff.

It is important to note that under order 36 r 6, where a party in an action dies after the close
of the defendant’s case but before judgment is delivered, the court may proceed to deliver
the judgment notwithstanding the death but without prejudice to the court’s power to order
the substitution of the deceased party.

ADMISSIONS - ORDER 23, DISCONTINUANCE – ORDER 17, DISCOVERY &

INSPECTION - ORDER 21 AND INTERROGATORIES – ORDER 22

Admissions – Order 23

A party may, in his or her pleadings admit an allegation or a claim made by the opponent.
An allegation contained in a pleading may be admitted wholly or partially by a party. The
admission so made brings to an end the controversy over that particular issue since by the
admission the party making the allegation is relieved of the burden of proving same. An
admission in a way also narrows the dispute in controversy and thus helps the court to
expeditiously try the case.

Where an admission of the truth of a fact or the authenticity of a document is made by a

party in a pleading or is made or deemed to be made by a party in response to a request to
admit, any party may apply by motion to the Court or to the Judge for such order as the
party may be entitled to on the admission without waiting for the determination of any
question between the parties, and the Court or the Judge may make such order as is just.

Rule 1—Notice of Admission of Facts

A party to a cause or matter may give notice, by that party's pleadings, or otherwise in
writing, that the party admits the truth or the whole or any part of the case of any other
party.

The mode of admission could take the form of a letter written before or after the action is commenced
in court. A party may also request the opponent to admit a particular fact or the authenticity of a
document which is relevant to the proceedings in court.

Ewusie Mensah v Ewusie Mensah

 E.A. AFENYO

Facts: The plaintiff had closed his case.  The defendant was being cross-examined.  In the
course of the cross-examination, learned counsel for the defence filed a motion under Order
32, r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) for an order to sign final
judgment upon admissions made by the plaintiff in the pleadings and during the trial.

Held: the provisions of Order 32, r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A) empowering a party to apply to the court to sign final judgment "at any stage" of a
cause or matter upon admissions of facts made either on the pleadings, "or otherwise",
entitled a plaintiff to move for judgment on admissions in the defence at any stage in the
action and notwithstanding that he had joined issue on the defence and given notice of trial. 
But where the plaintiff had, before notice of the motion, delivered a reply, a motion by the
defendant for judgment on admission would be refused.  The admissions were however
limited to pleadings and/or writing or verbal admission before trial but did not extend to
verbal admissions made during trial. 

Rule 2—Request to Admit Fact or Document

(1) A party may at any time, by serving a request to admit, request any other party to admit
for the purposes of the cause or matter only, the truth of a fact or the authenticity of a
document. The request shall be as in Form 12 in the Schedule.

(2) A copy of any document mentioned in the request to admit shall, where practicable, be
served with the request, unless a copy is already in the possession of the other party.

Rule 3—Effect of Request to Admit

(1) A party on whom a request to admit is served shall respond to it within fourteen days
after it is served by serving on the requesting party a response to request to admit. The
response shall be as in Form 13 in the Schedule.

(2) Where the party on whom the request is served fails to serve a response as required by
subrule (1), the party shall be deemed, for the purposes of the cause or matter only, to admit
the truth of the facts or the authenticity of the documents mentioned in the request to admit.

(3) A party shall also be deemed, for the purposes of the cause or matter only, to admit the
truth of the facts or the authenticity of the documents mentioned in the request, unless the
party's response
 E.A. AFENYO

(a) specifically denies the truth of a fact or the authenticity of a document mentioned in the
request; or

(b) refuses to admit the truth of a fact or the authenticity of a document and sets out the
reason for the refusal.

Rule 4—Costs on Refusal to Admit

Where a party denies or refuses to admit the truth of a fact or the authenticity of a document
after receiving a request to admit, and the fact or document is subsequently proved at the
hearing, the Court may take the denial or refusal into account in exercising its discretion
with respect to costs.

Rule 5—Withdrawal of Admission

An admission made in response to a request to admit or an admission under rule 2 or an

admission in a pleading may be withdrawn on consent or with leave of the Court. In
practice, it must be noted that a party needs to give a very good reason, for example mistake, before
the court will grant a party leave to withdraw an admission.

Rule 6—Order Based on Admission of Fact or Document

(1) Where an admission of the truth of a fact or the authenticity of a document is made

(a) in an affidavit filed by a party;

(b) in the examination for discovery of a party or a person examined for discovery on behalf
of a party; or

(c) by a party on any other examination under oath or affirmation in or out of court

any party may apply to the Court or Judge in the same or another cause or matter for such
order as the party may be entitled to on the admission without waiting for the determination
of any other question between the parties, and the Court or Judge may make such order as is
just.

Pomaa v Fosuhene: where an admission of a fact or authenticity of a document is made by a

party, the opponent is entitled to apply for judgment on the admitted fact without waiting
 E.A. AFENYO

for a trial on the admitted fact. However, such admission must be clear, unambiguous and
without reservation.

Michelleti Polla Ltd v Crabbe and Others; the application for judgement on admission
should be by motion and not oral and normally must be made before hearing of the case
commences.

Opoku v Axes: once there has been an unequivocal admission before a court in respect of a
claim or part thereof… and not withdrawn, there cannot in principle be an objection to a
decision based thereon.

Fori v Ayirebi: Although in equity estoppel must be mutual, a stranger to a former suit
could successfully plead in a later suit to which he was a party that his opponent was bound
by an admission against interest which he had made in a previous suit, i.e. that his opponent
was estopped from denying what he had sworn to in the previous suit to obtain a
declaration in his favour.

Discontinuance of Action – Order 17

A party who initiates an action in court may discontinue the action for various reasons. A
plaintiff or a defendant who has a counterclaim is this at liberty to discontinue or withdraw
the action. The courts are not supposed to instigate litigation and for that matter no court
can force a person to litigate.

Republic v High Court, Accra; Ex Parte Asakum Engineering & Construction Ltd

A plaintiff or a defendant who has a counterclaim may discontinue the action, if he or she
realises from the pleadings that he or she may not succeed or that the matter has been settled
amicably. The discontinuance could be against a defendant or some defendants. It could also
be against some of the claims endorsed on the plaintiff’s writ of summons. Where an action
is discontinued or withdrawn the case terminates and the court will have nothing to do with
the matter.

Odompre v Aryeetey

Facts: The plaintiffs instituted an action in the District Court Grade II, Suhum, for a
declaration of title to land, but later filed a notice of discontinuance even before they closed
their case. The action was accordingly struck out and costs awarded against the plaintiffs. A
 E.A. AFENYO

month later, the trial magistrate purporting to act on his own motion under the Courts
Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 42, rr, 1 and 2 summoned the parties for a
review of his previous decision granting the plaintiffs order for the discontinuance of their
action. After reviewing his decision, the magistrate gave judgment for the defendants. The
plaintiffs appealed against the decision.

Held: when a plaintiff in litigation decided to discontinue his action, and did so as in this
case, especially at a time when his case was not closed, the powers of the court were ended
as far as further hearing was concerned. The court had no discretion to exercise except in the
matter of costs, and the court then became functus officio. It had no power suo motu to
summon the parties to court again and for any reason set aside its order of discontinuance
and give judgment one way or the other as was done in this case. To do so would give the
impression on the face of such a judgment that the matter had been fully contested to
conclusion and judgment given on the merits of the case capable of operating as estoppel
per rem judicatam, when that was not the true position; the correct position in the instant
case being that the plaintiffs had not even closed their case for the defence to open and for
issues joined between the parties to be judicially determined. When therefore the court
below said it had accepted the discontinuance of 18 June 1973 by error of judgment because
the plaintiffs' case was part heard, that was a serious misdirection leading to the erroneous
decision of 9 August 1973.

Withdrawal of Appearance

Under Order 17 r 1, a party who files an appearance in an action may withdraw the
appearance at any time with the leave of the court.

Methods of Discontinuance or Withdrawal

The method used by a party to discontinue an action depends on the stage of the
proceedings. A party may discontinue an action without the leave of the court or with the
leave of the court depending on the stage of the proceedings.

Discontinuance Without Leave of the Court

 E.A. AFENYO

By Order 17 r 2(1), a plaintiff may discontinue the action against all or any of the defendants
by filing a notice of discontinuance to all or any of the claim at any time before or after being
served with the defendant’s statement of defence, provided that the defendant does not take
any other step in the action, for example, filing a reply or amended statement of claim. Upon
the discontinuance or withdrawal, the plaintiff will be ordered to pay costs which is taxable.
The discontinuance shall not be raised subsequently as an estoppel.

Discontinuance with Leave of the Court

Order 17 r 2(3) stipulates that unless otherwise provided by the rules, a plaintiff may
withdraw the record or discontinue the action without the leave of the court. What this
means is that when a plaintiff takes a fresh step after service of the statement of defence on
him or her, he or she can only discontinue with leave of the court. The rule provides that the
court may before, during or after the hearing or trial, order an action to be discontinued or
order any part of the cause of action to be struck out upon an application. Leave is normally
granted subject to such terms as costs or as to any other action as may be just. The
application for leave is by motion on notice supported by an affidavit. In granting the
application the court may order the action to be discontinued or strike out any cause of
action. The court could also impose conditions for the grant of leave including baring further
litigation on the matter by the plaintiff.

Amoako v Kwan:

Facts: In 1971 the plaintiff sued for a declaration that the appointment of the second
defendant as a customary successor was null and void.  He then filed a notice of
discontinuance which was accepted by the court.  The action was struck out.  There was no
order as to costs and the plaintiff did not ask for liberty to bring a fresh action.  Subsequently
the plaintiff instituted a fresh action in which the parties and the res litiga were substantially
the same.  Counsel for the defendants raised a preliminary issue in limine asking the court to
determine whether in view of the discontinuance of the former action, the plaintiff was
estopped from bringing the present action.

Held: by L.N. 140A of 1954, Order 26, r. 1 the court had a wide discretion as to the terms
upon which it might grant leave to a plaintiff to discontinue an action. Where the
discontinuance was with leave, unless the order which gave the leave expressly prohibited
the commencement of a fresh action it would be no bar to the plaintiff bringing a fresh
 E.A. AFENYO

action except the nature of the order concluded the matter between the parties. Where an
order merely struck out the action which was discontinued but was silent as to the right of
commencing a fresh action it did not operate as a bar to the plaintiff.  Where, on the other
hand, it dismissed the action, and was silent as to the right to bring a fresh action it operated
as an estoppel.  In the instant case, since the suit was merely struck out and not dismissed,
and since the court did not expressly forbid the plaintiff from instituting any fresh action,
and the court having made no order as to costs which might have implied that the matter
was determined between the parties the plaintiff was not estopped.

The court upon grant of leave may give the plaintiff the liberty to re-litigate the same cause.
In that case, the order granting leave must expressly grant the plaintiff the liberty to re-
litigate. If the court grants leave to discontinue simpliciter without liberty to re-litigate, it
will be presumed that the plaintiff cannot re-litigate.

Ibe v Pan African Metals

Where the court is satisfied that the action discontinued is frivolous or vexatious or an abuse
of the court process or there is a strong defence to the action, for example, estoppel or the
statute of limitation, the plaintiff will be denied the liberty to re-litigation since no useful
purpose would be served in granting him or her the liberty to come back to court on the
same matter.

Afeke v Agble

Discontinuance with consent

All the parties in an action may by consent agree to withdraw the action by filing a written
consent to withdraw.

It is important to bear in mind that under the rules cost awarded after discontinuance is a
final order and must be paid even if the plaintiff was granted liberty to re-litigate the same
issue else the fresh action will be stayed by the court, until the cost is paid. (order 17(4)

ORDER 17—WITHDRAWAL AND DISCONTINUANCE

Rule 1—Withdrawal of Appearance

 E.A. AFENYO

A party who files an appearance in an action may withdraw the appearance at any time with
leave of the Court.

Rule 2—Plaintiff may Discontinue Before Defence

(1) Except in the case of an interlocutory application, the plaintiff may at any time before
service on the plaintiff of the defendant’s defence or after the service of it and before taking
other proceeding in the action, by notice in writing wholly discontinue the action against all
or any of the defendants or withdraw any part of the alleged cause of action and thereupon
the plaintiff shall pay the defendant’s costs of the action or if the action is not wholly
discontinued, the costs occasioned by the withdrawal.

(2) Such costs shall be taxed, and the discontinuance or withdrawal shall not be a defence to
any subsequent action.

(3) Except as provided in this rule, the plaintiff shall not be entitled to withdraw the record
or discontinue the action without leave of the Court, but the Court may before, during or
after the hearing or trial upon such terms as to costs and as to any other action as may be
just, order the action to be discontinued or any part of the alleged cause of action to be
struck out.

Rule 3—Withdrawal by Consent

An action may be withdrawn without leave of the Court at any time before trial where all
the parties produce to the Registrar a written consent that the action be withdrawn.

Rule 4—Stay of Subsequent Action Until Costs are Paid

If any subsequent action is brought, before payment of the costs of a discontinued action for
the same, substantially the same cause of action, the Court may if it thinks fit order a stay of
the subsequent action until the costs are paid.

Discovery And Inspection – Order 21

Rule 1—Mutual Discovery of Documents

(1) After the close of pleadings in an action there shall be discovery of documents in
accordance with this Order.
 E.A. AFENYO

(2) Nothing in this Order shall be taken as preventing the parties from agreeing to dispense
with or limit the discovery of documents which they would otherwise be required to make
to each other.

Rule 2—Discovery by Parties Without Order

(1) Subject to this rule, a party in an action shall within fourteen days after the pleadings in
the action are closed between that party and any other party, make and file for service on the
other party a list of the documents which are or have been in that party's possession,
custody or power relating to any matter in question between them in the action.

(2) Without prejudice to any directions given by the Court under Order 15 rule 4 (1), subrule
(1) of this rule shall not apply in third party proceedings, including proceedings under
Order 15 involving fourth or subsequent parties.

(3) Unless the Court otherwise orders, a defendant to an action arising out of a motor
accident shall not make discovery of any documents to the plaintiff under subrule (1).

(4) Subrule (1) shall not be taken to require a defendant

(a) to an action for the recovery of a penalty under any enactment to make a discovery of
any documents; or

(b) to an action to enforce a forfeiture to  make discovery of any documents relating to the
issue of forfeiture.

(5) subrules (3) and (4) shall apply to a counterclaim as they apply to an original action.

(6) On the application of any party required by this rule to make discovery of documents,
the Court may

(a) order that the parties or any of them shall make discovery under subrule (1) of such
documents or such matters in question, as may be specified in the order; or

(b) if satisfied that discovery is not necessary, order that there shall be no discovery of
documents by any of the parties.

(7) An application for an order under subrule (6) shall be made before the expiration of the
period for discovery of documents under this rule.
 E.A. AFENYO

(8) A party entitled to discovery under this rule may, at any time before the application for
directions in the action is made, serve on the party required to make the discovery a notice
requiring that party to make an affidavit verifying the list that that party is required to make
under subrule (1), and the party on whom the notice is served shall within fourteen days
after service of the notice, make and file an affidavit in compliance with the notice and serve
a copy of the affidavit on the party by whom the notice was served.

Rule 3—Discovery by Court Order

(1) Subject to rule 6, any party to a cause or matter may apply at the stage of the application
for directions for such discovery as is necessary and the Court may, on the application of the
party, order any other party to the cause or matter to serve on the applicant a list of the
documents which are in respondent's possession, custody or power relating to any issue in
the cause or matter, and may at the same time order the respondent to file an affidavit
verifying the list and serve a copy of it on the applicant.

(2) Notwithstanding subrule (1) the Court may after the application for directions, upon an
application by a party for reasonable  cause shown, order any other party to make discovery.

(3) Notwithstanding subrules (1) and (2), an order under this rule may be limited to such
documents only, or to only the issues in the cause or matter as may be specified in the order.

Rule 4—Persons Entitled to List

(1) A defendant who pleads in an action is entitled to have a copy of any list of documents
served by any other defendant on the plaintiff under rule 2 or 3; and a plaintiff against
whom a counterclaim is made in an action is entitled to have a copy of any list of document
served by any other defendant to the counterclaim on the party making the counterclaim
under rule 2 or 3.

(2) A party required by subrule (1) to supply a copy of a list of documents shall supply it
free of charge on request made by the party entitled to it.

(3) In this rule, "list of documents" includes an affidavit verifying a list of documents.

Rule 5—Order for Discovery of Particular Documents

 E.A. AFENYO

(1) Subject to rule 6, the Court may at any time, on the application of any party to the cause
or matter, make an order requiring any other party to make an affidavit stating whether any
document specified or described in the application, has at any stating whether any
document specified or described in the application, has at any time been in that party's
possession, custody or power, and if not then in the party's possession, custody or power,
when that party parted with it and what has become of it.

(2) An application for an order under this rule shall be supported by an affidavit stating the
belief of the deponent that, the respondent from whom discovery is sought under this rule
has, or at some time had, in the respondent's possession, custody or power the document
specified or described in the application and that it relates to one or more of the issues in the
cause or matter.

(3) An order may be made against a party under this rule notwithstanding that he has made
or been required to make a list of documents of affidavits under rule 2 or 3.

Rule 6—Discovery to be Ordered only if Necessary

On the hearing of an application for an order under rule 3 or 5, the Court shall refuse to
make the order if it is of the opinion that discovery is not necessary either to dispose fairly of
the cause or matter or to save costs.

Rule 7—Inspection of Documents Referred to in List

A party who serves a list of documents on any other party in compliance with this Order
shall at the same time serve a notice on that other party, stating a time within seven days
after the service, when that other party may inspect and take copies of the documents other
than any of those to which the party objects to produce, at a place specified in the notice.

Rule 8—Inspection of Documents Referred to in Pleadings and Affidavits

(1) A party may at any time serve a notice on any other party in whose pleading or affidavit
reference is made to a document to produce the document for the inspection of the party
giving the notice and to permit the party giving the notice to take copies of it.

(2) A party on whom notice to inspect documents is served shall within four days after
service of the notice inform the party giving the notice of a date within seven days after the
service of the notice to inspect documents and of a time between 9.30 a.m. and 4.30 p.m.
 E.A. AFENYO

when the documents may be inspected at the office of the lawyer of the party served, or at
some other convenient place, and shall at the time and place named make the documents
available for inspection.

(3) A party on whom notice to inspect documents is served shall within four days after
service of the notice inform the party giving the notice, of documents the production of
which are objected to and the grounds of the objection.

Rule 9—Order for Production for Inspection

(1) If a party who is required by rule 7 to serve a notice or who is served with a notice under
rule 8 (1)

(a) fails to serve the notice under rule 7, 8 (2) or 8 (3);

(b) objects to produce any documents for inspection; or

(c) offers inspection at an unreasonable time or place,

the Court may, subject to rule 11 (1), on the application of the party entitled to inspection,
make an order for production of the documents in question for inspection at such time and
place, and in such manner, as it thinks fit.

(2) Notwithstanding subrule (1), but subject to rule 11 (1), the Court may, on the application
of any party to a cause or matter, order any other party to permit the party applying, to
inspect any documents in the possession, custody or power of that other party which relates
to any issue in the cause or matter.

(3) An application for an order under subrule (2) shall be supported by an affidavit
specifying or describing the documents of which inspection is sought and stating the belief
of the deponent that they are in the possession, custody or power of the other party and that
they relate to an issue in the cause or matter.

Rule 10—Order for Production to Court

At any stage of the proceedings in any cause or matter the Court may, subject to rule 12 (1),
order any party to produce to the Court any document in the party's possession, custody or
 E.A. AFENYO

power relating to any issue in the cause or matter and the Court may deal with the
document when produced in such manner as it thinks fit.

Rule 11—Production to be Ordered only if Necessary

(1) An order for the production of any document for inspection or to the Court shall not be
made under any of these Rules unless the Court is of opinion that the order is necessary
either to dispose fairly of the cause or matter or to save costs.

(2) Where, on an application under this Order for production of a document for inspection
or to the Court, privilege from the production is claimed or objection is made to the
production on any other ground, the Court may inspect the document to decide whether the
claim or objection is justified.

Rule 12—Production of Business Records

(1) Where production of any business records for inspection is applied for under these Rules,
the Court may, instead of ordering production of the original records for inspection, order a
copy of any entries in it to be supplied and verified by an affidavit of a person who has
examined the copy with the original records.

(2) The affidavit shall state whether or not there are in the original records any and if so
what erasures, interlineations or alterations.

(3) Notwithstanding that a copy of an entry in any record has been supplied under this rule,
the Court may order the production of the record from which the copy was made.

Rule 13—Withholding Document or Record in the Public Interest

This Order shall be without prejudice to any rule of law which authorizes or requires the
withholding of any document or record on the ground that the disclosure of it would be
injurious  to the public interest.

Rule 14—Failure to Make Discovery

(1) If any party who is required by any of these Rules, or any order made under them, to
make discovery of documents or records, or to produce any documents or records for the
purpose of inspection or any other purpose, fails to comply with any provision of that rule
 E.A. AFENYO

or with that order, then without prejudice to rule 9 (1), the Court may make such order as it
considers just including, in particular, an order that

(a) the action be dismissed;

(b) the defence be struck out and judgment entered accordingly;

(c) where the document is favourable to the party's case, the party may not use the
document at the trial, except with leave of the Court; or

(d) where the document is not favourable to the party's case, the party may be committed for
contempt.

(2) Service on a party's lawyer of an order for discovery or production of documents or

records made against that party shall be sufficient service to found an application for
committal of the party disobeying the order, but the party may show in answer to the
application sufficient cause for the failure to obey the order.

(3) Where an order made against the client of a lawyer is served on the lawyer and the
lawyer fails without reasonable excuse to give notice of it to the client, the lawyer shall be
liable to committal for contempt.

Rule 15—Revocation and Variation of Orders

Any order made under this Order, including an order made on appeal, may, on sufficient
cause shown, be revoked or varied by a subsequent order or direction of the Court made or
given at or before the trial of the cause or matter in connection with which the original order
was made.

Interrogatories – Order 22

Rule 1—Discovery by Interrogatories

(1) A party may apply for an order

(a) giving the party leave to serve on another party interrogatories relating to any matter in
question between the applicant and that other party in the cause or matter; and
 E.A. AFENYO

(b) requesting that other party to answer the interrogatories on affidavit within such period
as may be specified in the order.

(2) The interrogatories shall be as in Form 10 in the Schedule and the answer shall be as in
Form 11 in the Schedule.

(3) A copy of the proposed interrogatories shall be served with the application, or the notice
under Order 32 rule 4 or rule 9 by which the application for the leave is made.

(4) On the hearing of an application under this rule, Court shall give leave only of the
interrogatories which it considers necessary either to dispose fairly of the cause or matter or
to save costs.

(5) In deciding whether to give leave the Court shall take into account any offer made by the
party to be interrogated to give particulars or to make admissions or to produce documents
relating to any matter in question.

(6) A proposed interrogatory which does not relate to a matter mentioned in paragraph (a)
of subrule (1) shall be disallowed, notwithstanding that it might be admissible in oral cross
examination of a witness.

Rule 2—Interrogatories where Party is a Body of Persons

Where a party is a body of persons, whether corporate or not, being a body which is
empowered by law to sue and be sued whether in its own name or in the name of an officer
or other person, the Court may, on the application of any other party, make an order
allowing that other party to serve interrogatories on such officer or member of the body as
may be specified in the order.

Rule 3—Statement as to Party Required to Answer

Where interrogatories are to be served on two or more parties or are required to be

answered by an agent or servant of a party, a note at the end of the interrogatories shall state
which of the interrogatories each party or, an agent or servant is required to answer.

Rule 4—Privilege
 E.A. AFENYO

Where a person objects to answering any interrogatory on the ground of privilege, the
person may state the objection in the person's affidavit in answer.

Rule 5—Insufficient Answers

If a person on whom interrogatories have been served answers any of them insufficiently,
the Court may make an order requiring the person to make a further answer either by
affidavit or on oral examination as the Court may direct.

Rule 6—Failure to Comply with Order

(1) If a party against whom an order is made under rule 1 or 5 fails to comply with it, the
Court may make such order as it considers just including, in particular, an order that the
action be dismissed or, an order that the defence be struck out and judgment be entered
accordingly.

(2) If a party against whom an order is made under rule 1 or 5 fails to comply with it, then,
notwithstanding subrule (1), he shall be liable to committal for contempt.

(3) Service on a party's lawyer of an order to answer interrogatories made against the party
shall be sufficient service to found an application for committal of the party disobeying the
order, but the party may show in answer to the application that the party had no notice or
knowledge of the order.

(4) A lawyer on whom an order to answer interrogatories made against a client is served and
who fails without reasonable excuse to give notice of it to the client shall be liable to
committal for contempt.

Rule 7—Use of Answer to Interrogatories at Trial

(1) A party may put in evidence at the trial of any cause or matter, or of any issue in it, some
of the answers to interrogatories, or part of an answer, without putting in evidence the other
answers or, the whole of that answer.

(2) Notwithstanding subrule (1), the Court may look at the whole of the answers and if it is
of the opinion that any other answer or other part of an answer is so connected with an
answer, or any part of it used in evidence that the one ought not to be used without the
other, the Court may direct that, that other answer or part shall be put in evidence.
 E.A. AFENYO

Rule 8—Revocation and Variation of Orders

An order made under this Order, including an order made on appeal may, on sufficient
cause shown, be revoked or varied by a subsequent order or direction of the Court made or
given at or before the trial of the cause or matter in connection with which the original order
was made.

AFFIDAVITS- Order 20

What is an affidavit?

An affidavit is a document containing facts within the personal knowledge or belief upon
information of a person, narrated by a person referred to as a deponent and sworn on oath.

It is normally used to support, oppose an application in court or made to verify the

occurrence of an event.

Uses of affidavit under the rules of Court

The rule under Order 19 rule 4 requires every application to be supported by an affidavit
deposed to by the applicant or some other person duly authorized by the applicant
indicating the facts relied upon by the applicant.

Order 25 rule 1(3) specifically requires that in an application for injunction, the applicant
shall attach to the motion paper an affidavit in support and a statement of case fulling
setting out arguments, including relevant authorities in support of the application.

Swearing an Affidavit

According to order 20 rule 2, affidavits are to be sworn before a Judge, Magistrate, Registrar
of Courts, Commissioner for Oaths and any officer empowered by the Rules of Court.

The Oaths Act, 1972 (NRCD 6) by its section 9 empowers the Chief Justice, any other
Justices of the Superior Court, a Circuit Judge, a District Magistrate, the Judicial Secretary, a
Notary Public and a Commissioner of Oaths to administer lawful oaths or take affirmation
or affidavit, which may be required to be taken for the purpose of complying with the laws
of the Republic.
 E.A. AFENYO

Note should be taken that an affidavit cannot be sworn before the lawyer of a Party
according to Order 20 rule 11.

Title of Affidavit

Under Order 20 rule 3, an affidavit shall bear the same title as the title of the suit in which
the application for that affidavit in support is made.

Where a cause or matter has more than one title, it is sufficient to state the title of the first
matter followed by the words "and other matters".

Where there is more than one plaintiff or one defendant, it is sufficient to state the full name
of the first followed by the words "and others" or "and another".

Forms of Affidavits - Order 20 rule 4

(1) Every affidavit shall be printed, written or typed and shall be numbered consecutively.

(2) Every affidavit shall be expressed in the first person and shall state the place of residence
of the deponent and the occupation of the deponent or, if the deponent has none, the
description of the deponent and whether the deponent is, or is not employed by a party to
the cause or matter in which the affidavit is sworn.

(3) Every affidavit shall be divided into paragraphs numbered consecutively, each
paragraph being as far as possible confined to a distinct portion of the subject.

(4) Dates, sums and other numbers may be expressed in an affidavit in figures or in words
or both.

(5) Subject to rule 6 an affidavit shall be signed by the deponent and the jurat shall be
completed and signed by the person before whom it is sworn.

(6) The jurat shall state the full address of the place where the affidavit was sworn, the date
when it was sworn and the name and title of the person before whom it was sworn.
 E.A. AFENYO

Affidavits by two or more persons jointly-Rule 5

Where an affidavit is made by two or more deponents, the names of the person making the
affidavit shall be inserted in the jurat except that if the affidavit is sworn by both or all the
deponents at one time before the same person, it is sufficient to state that it was sworn by
both or all of the "above named" deponents.

Affidavit by an Illiterate or Blind Person-Rule 6

When an illiterate or blind person makes an affidavit, there should be a certificate in the
jurat by the person administering the oath that:

1. the affidavit was read to the deponent in the presence of the person administering
the oath;
2. that the deponent seemed perfectly to understand the contents;
3. that the deponent signed or marked the affidavit in the presence of the person
administering the oath.

An affidavit deposed to by a blind or illiterate person without the certificate shall not be
used in evidence unless the court is satisfied that it was read to that person and they
appeared to have perfectly understood the content of it.

Use of Defective Affidavits

Where any affidavit is filed despite it not meeting the requirements of the form and content
set out in the rules, such affidavit may nonetheless be adopted by the Court on such terms
and conditions as the Court may deem fit.

The law in Order 20 rule 7 is that, the court may grant leave for an affidavit to be filed or
used in evidence notwithstanding irregularity in its form. This rule is illustrated in Republic
v Edward Wiredu; ex parte Amidu.

Contents of Affidavit
 E.A. AFENYO

An affidavit is sworn evidence and hence by Order 20 rule 8 must contain only facts, which
the deponent can prove. It may contain a statement of information or belief of the existence
of facts or both if the rules permit.

Scandalous Matters

Under Order 20 rule 9, the court may order any matter which is scandalous, offensive,
irrelevant or otherwise oppressive to be struck out from the affidavit.

In Rossage v Rossage, it was held that an affidavit containing hearsay evidence will be
struck out as being irrelevant.

Alterations of Affidavit

Under Order 20 rule 10(1), an affidavit which has in the body or jurat any interlineation,
erasure or other alteration shall not be filed or used in any proceedings without leave of the
Court unless the person before whom the affidavit was sworn has initialled the alteration
and, in the case of an erasure, has re-written in the margin of the affidavit any words or
figures written on the erasure and has signed or initialled them.

Sub-rule 2 provides that where an affidavit is sworn at any office of the Court, the official
stamp of that office may be substituted for the signature or initials required by this rule.

Filing an Affidavit-Order 20 rule 12

(1) Every affidavit used in any proceedings shall be filed in the registry of the Court in
which the proceedings are brought.

(2) Every affidavit shall be indorsed with a note showing on whose behalf it is filed and the
date of filing and an affidavit which is not so indorsed may not be filed or used without
leave of the Court.

Documents to be exhibited-Order 20 rule 14

(1) Any document to be used in conjunction with an affidavit shall be exhibited and not
merely annexed or attached to the affidavit.
 E.A. AFENYO

(2) Any exhibit to an affidavit shall be identified by a certificate of the person before whom
the affidavit is sworn.

Affidavit Taken in Other Countries-Order 20 rule 15

A document purporting to have fixed, impressed, or subscribed on it the seal or signature of

a court, judge, notary public or person with authority to administer oaths in any country
outside Ghana in testimony of an affidavit taken before that court, judge, notary public or
person, shall be admitted in evidence without proof of the seal or signature of that court,
judge, notary public or person.

Making an Application

Applications are prayers made to the Court by parties before it for reliefs related to the
action. They are made in the course of civil actions. Basically, there must be proceedings
pending in court in order for an application to be made. Such applications are generally
referred to interlocutory applications. Common examples of interlocutory applications are
motion for injunction or motion for the preservation of a subject matter of dispute and
motion for stay of execution.

Applications are made formally to the judge and they are heard in open court. However, the
rule allows the judge to hear a non-contentious application in chambers.

However, certain causes of actions like accountability of family property are began by
motion which suggests that they are originating motions on notice.

The law is, parties are supposed to move their applications before the court. However, the
Supreme Court in Republic v Court of Appeal; Ex parte Eastern Alloys Co. Ltd has held that
a court can determine an application or motion filed but not moved by the applicant.

Governing rules

The rule is that, every application in a pending action shall be made by motion as stated out
in Order 19 rule 1(1) of C.I. 47.

A motion is a process filed in court and addressed to a judge praying for an order directing
that something must be done in a party’s favour.
 E.A. AFENYO

The law states that, “proceedings by which an application is to be made to the Court or a
Judge of the Court under any enactment shall be initiated by motion and where an
enactment provides that an application shall be made by some other means, an application
by motion shall be deemed to satisfy the provision of the enactment as to the making of the
application”

Hence, in practice, there are two types of motions:

1. Interlocutory motion-Order 19 rule 1(1)

2. Originating Motions on Notice-Order 19 rule 1(2)

Order 19 rule 1(3) provides that no motion shall be made without notice to all parties to be
affected by the motion. This rule is the basis of general principle of practice that all motions
are to be on notice to the opposite party unless the rules otherwise provide.

The civil procedure rules in order 19 rule 1(4) have gone to the extent of specifying that if on
hearing a motion the Court is of the opinion that any person to whom notice has not been given
ought to have or to have had notice, the Court may either dismiss the motion or adjourn the
hearing in order that the notice may be given upon such terms as it considers just.

An application may be brought by any party in an action at any stage of the proceedings. A
stranger to an action may also bring an application in the action, for example, an application
for joinder.

It must be noted that when a party intends to oppose an application from the opposite party
on points of law, no affidavit is needed. Such a party may make reference to the pleadings
which are already on record.

Statement of Rule Under Which the Application is made

As a general rule, a party is required to state the rule under which the application is made or
the rule grounding the application.

On the other hand, the courts have also ruled that, failure to so state the order under which a
party is applying to the court is no longer fatal as the court looks at substance and not the
form of the application.

Case for reference is Okofoh Estate Ltd v Modern Signs Ltd.

 E.A. AFENYO

In this case, the respondent made an application to strike out pleadings for want of a
disclosure of a reasonable cause of action and that it was frivolous and vexatious.
Respondent failed to state the order under which the application was brought and the
learned judge did not consider the application of the rule at all. On appeal, the court held
that the words used in the application suggested that it was being brought under a specific
order.

Per Akuffo JSC,

“Consequently, in the instant case, since the respondents' notice of motion before the High
Court did not disclose the rule or procedure under which the application was made, the
court should have first ascertained which of its powers was being invoked, and therefore
which procedure was to be applied. The most practical manner for the properly applicable
practice would be to examine the specific words used in formulating the grounds for the
application. Since the respondents' application was "to dismiss suit for non-disclosure of
cause of action" but did not ask the court to dismiss the action for being an abuse of the
process of the court and furthermore, in the supporting affidavit an abuse of the process was
neither alleged nor showed, it was apparent on the face of the application that it was made
under Order 25, r 4 of LN 140A”

The courts are therefore to interrogate the purpose of the application in order to determine
which order it is made under.

This position on the law is also grounded by the Court of Appeal decision of Shardy v
Adamtey & Martey.

Per Archer J.A. The citing of rules of court in applications before the court is desirable, but is
not so indispensable that failure to do so would rock the very foundations of the
administration of justice.  When an application is made and the relevant rule is cited, it
enables the court to ascertain whether the application is properly before it and also what
powers it has under the rule.  There are cases where an application is not governed by any
rule of court or by the inherent jurisdiction of the court.  In such cases the court has no
hesitation in dismissing or striking out the application.  But where an application is clear but
the wrong rule has been quoted, an applicant should be permitted to amend in furtherance
of justice.

Service of Notice of Motion

 E.A. AFENYO

As already mentioned, notice of every motion must be served on the Party who will be
affected by the consequences of the application.

Unless the Court gives leave to the contrary or any of these Rules otherwise provides, there
shall be at least three clear days between the service of notice of a motion and the date named in the
motion for the hearing of the motion. This is the standard procedure indicated by order 19 rule
2(1).

Yet, leave may be given by the court to serve short notice of the motion. Order 19 rule 2(2)
provides where leave has been given under subrule (1) to serve short notice of motion, that
fact shall be stated on the notice.

Service of Writ Together with Motion

Order 19 rule 2(3) specifies that notice of a motion to be made in an action may be served by
the plaintiff on the defendant with the writ or at any time after service of the writ whether or not
the defendant has filed appearance.

This permits a plaintiff to file his or her writ of summons together with a motion on notice.
For example, in an action for trespass, the plaintiff may simultaneously file a motion for
interlocutory injunction restraining the defendant from continuing the trespass.

Types of Motions

There are two basic types of motions, namely, Motion ex-parte and Motion on Notice.

Motion ex-parte

This is where the other party in the action is not put on notice. This is allowed under order
19 rule 3.

Order 19 rule 3(1) is to the effect that an application by motion may be made ex-parte where
any of these Rules provides or where, having regard to the circumstances, the Court
considers it proper to permit the application to be made.
 E.A. AFENYO

The first ground therefore is, where the rules of court provide or the court considers it
proper to do so.

Now, order 19 rule 3(2) provides that the Court may make an order ex-parte on such terms
and subject to such undertaking as it considers just where it is satisfied that delay caused by
proceeding in the ordinary way would or might entail irreparable damage or serious mischief.

That is, that delay and irreparable damage will be caused in going on notice.

By the rules of court in order 19 rule 3(3), the Court shall not grant an application made ex-
parte  under subrule (2) unless the applicant shows to the satisfaction of the Court good
reason for making the application ex-parte  and the precise nature of the irreparable damage
or serious mischief which will be occasioned by proceeding in the ordinary way. 

It is incumbent upon the party making the application to show:

o That He/she has good reason for making the application ex-parte
o The precise nature of the irreparable damage or serious mischief which will
be occasioned if brought on notice.

From the above, an ex-parte motion will be made under the following circumstances:

a. Where the rules of court provide so;

b. Where the delay and irreparable damage will be caused in going on notice for
example in applications for anton piller orders or mareva injunctions;
c. Where the matter requires some urgency;
d. Where at the stage of proceedings the other party cannot be put on notice. For
example, an application for substituted service.

Despite the grounds enumerated for coming ex-parte, the Court in its discretion may refuse
to hear an application ex-parte  and may direct that notice shall be given to all the parties
affected by the application. This is the law in Order 19 rule 3(4).

A motion ex-parte granted by the court may be set aside on grounds that the applicant
suppressed or misrepresented facts to the court.

Under Order 25 rule 1(9), when an application for injunction is made by an ex-parte motion,
the court may grant the application for 10 days only after which the order for injunction will
 E.A. AFENYO

lapse. The rationale is to encourage parties as much as practicable to apply for reliefs on
notice.

Examples of applications generally made ex parte

a. Motion for leave to issue a writ notice of which will be served outside the
jurisdiction.
b. Motion for leave to serve notice of writ outside the jurisdiction.
c. Motion for the substitution of a party.
d. Motion for leave to serve third party notice.
e. Motion for judgment in default of appearance.
f. Motion for garnishee order nisi
g. Motion for charging order nisi.
h. Motion for interim injunction in urgent cases.
i. Motion for leave to issue writ of possession or writ of sequestration.
j. Motion for substituted service.
k. Motion for leave to join causes of action.

Motion on Notice

This is where the opposite party is served with the motion requesting the party to appear at
the hearing. With such motions, all persons affected by the application are made to attend
court and be heard. There must be three clear days between the date of service of the motion
on notice and the hearing date or what is referred to as the Return Date.

A party served with a motion on Notice may oppose the motion by filing an affidavit
narrating all the facts he or she relies on in opposing the application. However, the courts
have noted in Bonsu v Eyifah that a party intending to oppose an application on points of
law need not file an affidavit in opposition. Such parties may make reference to the
pleadings which are already on record.

Motion on Notice for Summary Judgment

It must be noted that under Order 14 rule 2(3), a motion for summary judgment must be
served not less than four clear days before hearing.

Motion on Notice for Matrimonial Causes

Also under Order 65 rule 4(1), a motion on notice in a matrimonial case must be served at
least 5 clear days between service of the motion and the date of hearing.
 E.A. AFENYO

Affidavits in Support of Motions

Applications are made in the form of motions and they are normally accompanied by
affidavits which set out the reasons for which the application is made by the party.

An affidavit is written evidence. It is written evidence in the name of a person, called the
deponent, by whom it was voluntarily signed and sworn to or affirmed.

In Republic v High Court Kumasi; ex parte Atumfuwa & Another, Hayfron-Benjamin JSC
defined defined an affidavit as follows:

“An affidavit is of course as written document signed by a deponent and sworn to by him
before a Commissioner of Oaths or some other person duly authorized by Statute to exercise
such function”

Except as provided by the rules of Court, every notice of application must be supported by
an affidavit. This is contained in order 19 rule 4.

A Respondent to an application is entitled to file an affidavit in opposition to the

application.

Evidence supporting a motion is generally by affidavit. The court, however, has the power
on the application of a party to order the deponent of an affidavit to appear in court to be
cross-examined, and where such a deponent fails to attend court, his or her affidavit shall
not be used as evidence in the proceedings. Where there is a conflict of facts between the
affidavits filed by the opposing parties, the court will have to take oral evidence to resolve
the conflict.

Applications not requiring affidavits

As stated earlier, unless provided by the rules of Court, every notice of an application must
be supported by an affidavit. However, an application for directions in Order 32 and
application founded on points of law are a few exceptions.

If at the hearing of the application no affidavit in opposition is filed and no points of law are
raised, it will be deemed that the facts in the applicant’s affidavit have been accepted.

Application for amendments also do not require affidavits.

 E.A. AFENYO

Application for court’s inherent jurisdiction

There are instances when the court may be moved by a motion where no statutory provision
has been made for the nature of application. Lawyers invoke the inherent jurisdiction of the
court.

What is an interlocutory injunction?

It is an equitable relief to prevent a party from undertaking an action.

As an ancillary relief it cannot stand on its own hence must be supported by a substantive
suit. Therefore, as provided by Order 25 rule 1(12) of C.I 47, a plaintiff cannot make an
application before the issue of a writ.

What is its purpose?

After the commencement of a civil action, there may be the need for the subject matter of the
suit to be preserved pending the final determination of the matters in dispute.

An application for injunction or for preservation of property is the means of achieving of

this goal.

What is the test for granting an interlocutory injunction?

The courts are minded to grant an interlocutory injunction in all cases where it is just and
convenient to do so, according to Order 25 rule 1(1) of C.I. 47.

However, before the courts made this determination, they are guided by certain principles
developed in case law.

In 18th July Ltd. V. Yehans International Ltd., Anin Yeboah JSC, aptly laid down the
guidelines for grant of an interlocutory injunction:

1. There must be a serious question to be tried. Applicant must show that the claim was
not frivolous and must demonstrate that he had a legal or equitable right which the
court should protect. This requirement was introduced by the revolutionary 1975
case of American Cynamid v Ethicon Ltd;
2. Applicant must show that granting the injunction will ensure that the status quo was
maintained so as to avoid any irreparable damage to the applicant pending the
hearing of the matter. In Attorney General v Hallett, Alderson B described an
irreparable injury as one which if not prevented by an injunction, compensation
 E.A. AFENYO

afterwards by any degree which the court can pronounce in the result of the cause,
cannot cure; and
3. Applicant must prove that the balance of convenience would tilt in the favour of the
respondent, causing undue hardship to him. In Bilson v Rawlings, the applicant
seeking an injunction to restrain the defendant from being nominated by the Interim
National Electoral Commission, contended that the defendant was not fit to contest
for presidential elections because he was a dual national of Ghana and the UK.
Esselfie-Bondzie J ruled that greater hardship would be caused to the first
defendant if he was prevented from contesting the presidential election, it was the
duty of the court to refuse the interim injunction. On the balance of convenience and
hardship therefore, the application was refused.

Dr. Date-Bah JSC (as he then was) in Welford Quarcoo v. Attorney-General also enumerated
requirements for the grant of interlocutory injunctions as:

1. First, that the applicant must establish that there is a serious question to be tried;
2. Second that he or she would suffer irreparable damage which cannot be remedied by
the award of damages, unless the interlocutory injunction is granted;
3. Finally, that the balance of inconvenience is in favour of granting him or her the
interlocutory injunction. The balance of convenience of course means weighing up
the disadvantages of granting the relief against the disadvantages of not granting the
relief.

Procedure for application

o To begin with, the applicant shall attach to the Motion paper and supporting
affidavit, a Statement of Case setting out fully arguments, including all relevant
legal authorities, in support of the application-Order 25 rule 1(3).
o A respondent who desires to oppose the application shall file an affidavit in
opposition as well as a Statement of Case containing full arguments and the legal
authorities to be relied on-Order 25 rule 1(4).
o In case of urgency, a party may make the application ex-parte supported by an
affidavit-Order 25 rule 1(7).
o An application made ex-parte under subrule (3) shall not be granted unless the
applicant gives sufficient reasons for making it ex-parte and specifies some irreparable
 E.A. AFENYO

damage or mischief which will be caused to the plaintiff if the plaintiff proceeds in the
ordinary way-Order 25 rule 1(8).
o Where an order is made pursuant to an application made ex-parte it shall not remain
in force for more than ten days-Order 25 rule 1(9).
o If no application is made on notice to extend the order it shall lapse after the
expiration of ten days from the making of the order unless the Court otherwise
directs-Order 25 rule 1(10)
o The Court may upon application by any party affected set aside an order made ex-
parte under Order 25 rule 1(7) on such terms as it considers fit-Order 25 rule 1(11)

Subsequent Orders of Detention

By Order 25 rule 2(1), on the application of any party to a cause or matter the Court may
make an order for the detention, custody or preservation of any property which is the subject-
matter of the cause or matter or in respect of which any question may arise in the action, or
may order the inspection of any such property in the possession of a party.

Factors to be considered:

1. There must be a valid pending dispute over the ownership of the property,
necessitating its preservation, pending the determination of the suit;
2. The applicant must establish a prima facie claim to the property;
3. The order of preservation must be directed against the depreciation of the value of
the property;
4. The application must be declined if it will serve no useful purpose.

Undertaking as to Damages

Under Order 25 rule 9(1), where an application is made under rules 1 and 2 of this Order the
Court shall, if the application is opposed, require, before making an order, that the applicant
shall give an undertaking to the person opposing the application to pay any damages that
person may suffer as a result of the grant of the application if it turns out in the end that the
applicant was not entitled to the order.

Order 25 rule 9(2) provides that the giving of an undertaking required under subrule (1)
shall be a precondition to the making of any order under rules 1 and 2 of this order.
 E.A. AFENYO

The Supreme Court has held that it is not in all cases that a court hearing an injunction
application which is opposed should order the applicant to provide an undertaking.

The court has held that each case must be considered on its merit, as the order is
discretionary.

Case in point is Republic v High Court Koforidua, ex parte Ansah Otoo and Another.

APPLICATION FOR SUMMARY JUDGMENT – ORDER 14

A summary judgment is a final judgment awarded by the court without going to trial after
the Plaintiff has established his case and proven to the Court that the Defendant has no
defence to the action, on the face of the affidavit evidence. Summary judgment may be in
respect of the whole or part of the claim of the plaintiff.

Application for Summary Judgment

The aim of this rule is to enable a plaintiff who has served a writ and a statement of claim on
a defendant to obtain judgment without a trial. The rationale is to short circuit the trial by
obtaining final judgement without proceeding.

The court emphasized in Kuma v Bart-Plange that one of the situations where a plaintiff can
proceed and obtain judgment without an actual trial is, under Order 14 for summary
judgment. 

Kpegah JSC explaining the purpose of this rule declared that, the procedure here is
intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to
judgment, and where therefore it is inexpedient to defend for mere purposes of delay.

This was reiterated in Sam Jonah v Duodu-Kumi, where the Supreme Court highlighted
that, the objective of Order 14 is to facilitate the early conclusion of actions where it is clear
from the pleadings that the defendant therein has no cogent defence. It is intended to ‘prevent
a plaintiff being delayed when there is no fairly arguable defence to be brought forward.

Conditions for summary judgment

The conditions for the application of summary judgment are set out in order 14 rule 1 of C.I.
47.
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In the High Court decision of Kpegah JSC in Yartel Boat Building Co v. Annan, the court
summarized the 3 main conditions as regards the application for summary judgment as
follows:

Before the plaintiff could bring an application for summary judgment:

(a) the defendant must have been served with a writ and statement of claim;

(b) the defendant must have entered an appearance. This principle was applied in Kuma v
Bart-Plange; and

(c) the affidavit in support of the application must not only depose to facts indicating that
the plaintiff’s claim was real and considerably unimpeachable but must also contain an
averment that the defendant had no defence to the action. In other words, it must be clear
that the defendant has no reasonable defence to the action.

Methods of application

Order 14 rule 2 contains the laid down procedure for making an application for summary
judgment.

These are the steps to undertake in applying for summary judgment:

1. The application must be brought by motion on notice, supported by an affidavit.

2. The application shall set out the reliefs sought by the plaintiff.
3. The affidavit shall verify the facts on which the claim is based.
4. The affidavit shall state that there is no defence to that claim except to the amount of
any damages.
5. The notice of the application, a copy of the affidavit in support shall be served on the
defendant not less than 4 clear days before the date mentioned in the motion for
hearing of the application. (the return date of the motion shall be at least 4 clear days
from the date of service).

Remedy of the Defendant

On being served with an application for summary judgment, the defendant may show cause
why the summary judgment should not be granted in agreement with Order 14 rule 3(1).

The defendant may show that he has a good defence to the claim on its merit and thus may
raise reasonable defences relevant to the case.
 E.A. AFENYO

This may done either in a statement of defence or an affidavit in opposition.

Where the defendant is a body corporate, any director, manager or secretary or officer of it,
may attend the hearing of the application to be examined on oath or to produce any
document it appears desirable to the court in showing cause. This is codified in Order 14
rule 3(2).

Outcome of Summary Judgment Hearing

On hearing the application for summary judgment, the court may exercise its power
pursuant to Order 14 rule 5 and do any of the following:

a. Enter judgment for the plaintiff against the defendant on the relevant claim or part of
the claim unless the defendant shows that there is an issue in dispute which ought to
be tried. (enter judgment unless there is an issue to be tried)
In Sam Jonah v Duodu-Kumi, the Supreme Court granted an application for
summary judgment where it was difficult to fathom how the defendant’s contention
would amount to a genuine or plausible defence to any of the plaintiff’s claims such
as would justify a trial.
b. Grant the defendant leave to defend the action with respect to the claim or part of it,
unconditionally or on terms such as security. (leave to defend unconditionally or
conditionally). In the Sam Jonah v Duodu Kumi, the Supreme Court also granted
leave for the defendant to defend the amount of money in arears remaining to be
paid to the plaintiff.
c. Dismiss the application with costs to be paid by the plaintiff, if it appears that the
case was not within Order 14 or that the plaintiff knew the defendant will rely on a
contention that would entitle the defendant to an unconditional leave to defend the
action (dismiss the application).
Stay of the execution of judgment

The court may stay the execution of the judgment given against the defendant pursuant to
Order 14 rule 5(2), until after the trial of any counterclaim raised by the defendant.

Filing a reply after an application

The courts have noted that, where a plaintiff files a reply after making an application for
summary judgment, that plaintiff is deemed to have started a fresh action and this brings the
summary judgment application to an end.
 E.A. AFENYO

The law was spelt out in Enterprise Aluminium v Sikasi Gh Ltd where the court held, per
Gbadegbe JSC that by filing a reply, the plaintiff is deemed to have taken a fresh step which
decisively put an end to the prior application under Order 14.

The learned judge further indicated that it was not open to the plaintiff retract the effect of
the unequivocal step taken by way of the filing of a reply. That that meant that if anything at
all, the plaintiff could only apply for directions in the case.

Setting Aside a Judgment

Order 14 rule 9 discloses the steps for setting aside a judgment.

1. A judgment entered against a defendant who fails to appear at the hearing of an

application under Order 14 may be set aside or varied by the court on terms as it
considers just.
2. The application must be brought within 14 days of the service on the defendant of
the notice of judgment.
A remedy for a person who appears at the hearing for summary judgment is to appeal the
judgment so entered. This was the holding of the court in Progressive Imports and Exports
Shipping Ltd v Muller.

Summary Judgment on Counterclaim

By Order 14 rule 10, where a plaintiff is served with a counterclaim, the defendant at any
time after the service of the counterclaim, may apply for summary judgment against the
plaintiff on grounds that the plaintiff has no defence to the counterclaim or to a particular
part of the counterclaim.

Under Order 14 rule 11, where the judgment is taken under Order 14 for a claim or
particular part of the claim or counterclaim, the action may proceed to trial as regards any
other claims not included in the summary judgment obtained summarily.

Actions excluded

The rule on summary judgment shall not apply to the following actions as provided in
Order 14 rule 12

a. Probate, Matrimonial and Maritime proceedings;

b. A claim or counterclaim for defamation, malicious prosecution, seduction or breach
of promise to marry.
c. Claim or counterclaim based on allegation of fraud.
 E.A. AFENYO

Difference between summary judgement and judgement in default of appearance or default

of pleadings

While the rules provide a time within which a party may apply to set aside a summary
judgment, which is 14 days, judgment in default of appearance and default of pleadings
may be set aside within a reasonable time. The rules do not prescribe a time frame within
which to set aside a default judgment. All the defaulting party needs to do is to file an
application to set aside the default judgment within a reasonable time and demonstrate that
he or she has a reasonable defence to the action.

Summary Judgment vs Judgment against a party who fails to attend a trial under order 36

When such a judgment is entered against a party who failed to attend the trial, that party
has 14 days from the date of the trial to apply to set aside the judgment, under order 36 r 2.

Application for Directions – Order 32

What is application for directions

It is the preparation stage of the suit for the trial. At this stage, the court the parties to the
suit consider how the trial would be conducted. It provides the opportunity for the court to
identify the issues for the trial.

Purpose

The purpose of application for directions as stated in Orde r 32 rule 1(1) is to ensure that:

1. all matters which have not been dealt with are dealt with;
2. directions may be given as to the future course of the action as appear best to secure
the just, expeditious and inexpensive disposal of it.

Generally, the directions are intended to make sure that everything to do with the case is
known to the court and to both parties before there is a full court hearing. The court has to
be convinced that the issue is ready for trial and may, depending on the facts recommend an
out-of-court amicable settlement.

This rule applies to all actions except:

a. actions in which directions are given under

i. Order 11 rule 19 (Close of pleadings);
 E.A. AFENYO

ii. Order 14 rule 6 (Where leave to defend is given or execution stayed under
rule 5, the Court may give such directions as to the further conduct of the
action as may be given on an application for directions, and may order the
action to be set down for trial forthwith or at such date as the Court considers
proper).
iii. Order 25 rule 7 (Directions given in applications for interlocutory injunctions
for a further conduct of the case)
b. actions in which an order for the taking of an account is made under Order 29 rule 1;
c. actions for the infringement of a patent; and
d. actions or proceedings under Order 65 (Matrimonial causes).
Under the Commercial Court rules, Order 58 is to the effect that, at the close of pleadings no
application of directions is taken. Rather, the Administrator of the court assigns the case to
one of the Judges to conduct pre-trial hearing.

Governing Rules

The rules are contained in Order 32 of the C.I. 47

Notice of Application

Order 32 rule 2(1) insists that the plaintiff shall within one month after the pleadings in the
action are closed, file notice of an application for directions for service on all the other parties
to the action.

There shall be at least 8 days between the date of service of the notice and the date stated in
the notice for hearing of the application.

The applications for directions shall contain the proposed issues for the trial by the Plaintiff.
The Defendant may file additional issues for consideration by the court. The Supreme Court
concluded in Gavor v Bank of Ghana that the court cannot ignore issues set down by the
parties and resort to setting down its own issues which it based its judgment.

Failure to File Application

Where the plaintiff fails to apply for directions as required by the rules, the defendant is
entitled to apply for directions or may apply for the action to be dismissed. However, when
the defendant applies for the action to be dismissed, the court may dismiss the action on
such terms or deal with the application as if it was an application for direction. This is the
effect of Order 32 rule 3(1) and (2).
 E.A. AFENYO

Directions required by other parties

By Order 32 rule 4, any party who is served with an application for directions shall apply at
the hearing of that application for any order or directions which that party may desire as to
any matter capable of being dealt with on an interlocutory application, provided the orders and
directions differ from that which is sought in the main applications for directions.

The notice for further directions shall be filed not less than 7 days before the hearing of the
applications for direction.

Orders Suo Motu

In practice, at the hearing of the application for directions, the court may on its own motion
consider whether any order is to be made or direction given.

This includes:

 Appointment of expert witness to assist in trial: at the hearing of an application, a

surveyor or auditor may be appointed with the consent of the parties to assist the
trial.
 Appointment of a manager or receiver.
Order 32 rule 6 permits the court to encourage the parties to make admissions and
agreements as to the conduct of the proceedings which ought to be reasonably made by the
parties. Such admissions shall be incorporated into the order to be made by the court upon
the hearing of the application.

Applications for directions has been described by Justice Benin in Armah v Hydrofoam
Estates Limited as a stock taking exercise and case management stage. He disclosed that it
was crucial for identifying the issues for trial after examination of pleadings by the judge.
However, he admitted that, even though same is crucial, default of not taking same does not
nullify subsequent proceedings.

Impact of C.I. 87 (Pre-trial Conferencing) on Applications for Directions

As part of the reforms to ensure speedy disposal of cases, the High Court (Civil Procedure)
Rules, 2004 has been amended by the High Court (Civil Procedure) Rules, Amendment, C.I.
87 with the introduction of the use of witness statements during trials.

By Order 32 r 7A of C.I. 47 as amended by C.I. 87 enjoins the court to make directions for
the case management and also fix a date for a case management conference.
 E.A. AFENYO

The parties are required under the rule to lodge with the Registrar of the court, a pre-trial
check list 4 days before the date fixed for case management.

Under the rule, where a party fails to comply with any of the directives of the court, the
judge may undertake the following:

1. Strike out the action, if the defaulting party is the plaintiff;

2. Strike out the defence and counterclaim, if the defaulting party is the defendant;
3. Order the payment of costs
4. Make appropriate orders.
The court is also enjoined by Order 38 r 3B of C.I. 47 as amended by C.I. 87 to order the
parties at the application for direction stage to file and serve witness statements of their
respective statements which they intend to rely upon at trial.

Under Order 38 r 3D of C.I. 47 as amended by C.I. 87, where a party fails to file and serve a
witness statement within the time specified by the court, that witness shall not be called to
give oral evidence unless with the leave of the court.

By provision of Order 37 r 3E of C.I. 47 as amended by C.I. 87, the witness statement filed
by the respective parties shall stand as evidence in chief of the witnesses and they will be
subjected to cross-examination on the statement filed, whether or not the statement or any
part of it was referred to during the evidence of that witness.

Inroads of C.I. 87

1. Case management;
2. Pre-trial check list that must be filed 4 days before the date fixed for case
management by the parties;
3. Witness statements ordered at the application for direction stage by the judge to be
filed by and served on both parties within time specified.
4. Witness statement to stand in as evidence in chief of the witness on which it shall be
subjected to cross examination.

There is also Pre-Trial Settlement designated for commercial disputes. If this does not
succeed, the court moves into case management conference.
 E.A. AFENYO

The court is again enjoined by Order 38 r 3B of CI 47 as amended by CI 87 to order the

parties at the application for direction stage to file and serve witness statements of their
respective witnesses which the parties intend to rely upon at the trial.

Under order 38 r 3d of CI 47 as amended by CI 87, where a party fails to file and serve a
witness statement within the time specified by the court, that witness shall not be called to
give oral evidence unless with the leave of the court. By the provision of order 38 r 3E of CI
47 as amended by CI 87, the witness statement filed by the respective witnesses shall stand
as the evidence in chief of the witnesses and they will be subjected to cross-examination on
the statement filed, whether or not the statement or any part of it was referred to during the
evidence in chief of that witness. (Order 38 r 3F of CI 47).

Setting of the date for trial

Order 34 rule 2(2) of C.I. 47 as amended by C.I. 87, provides that, as soon as practicable, the
Registrar of the court shall issue a notice to the parties specifying the date on which the
action will be tried and the notice shall be served at least a month before the date set for
hearing, unless the date has been fixed by the judge.

Under the rule, the Registrar of the court is to set the date after the parties have filed their
pre-trial check list and the court has held the case management conference or pre-trial
review.

The effect of this rule is that a date for hearing may either be given by the Judge or the
Registrar but in each case parties must be filed their pre-trial check list and the court must have
held the case management or pre-trial review.

What is a trial?

A trial therefore is the stage in the proceedings where the parties are given the opportunity
to testify on oath or affirmation in support of their claims before the court. At the trial, the
court hears the parties and their witnesses.

Inroads to conduct of trials

With the amendment of Order 38 of CI 47 by CI 87, a new procedure for the hearing of civil
cases in the High Court and the Circuit Court has been introduced.

1. Firstly, Order 38 rule 3A of CI 47 as amended by CI 87 now allows the court to

receive evidence through video link and other means.
 E.A. AFENYO

2. Secondly, by Order 38 rule 3B of CI 47 as amended by CI 87, parties are now

required to serve witness statements to be used at trial.
3. Order 38 rule 3E (2) provides that where a witness is called to give oral evidence, the
witness statement of the witness will stand as the evidence in chief.
4. Order 38 rule 3F of CI 47 provides that the witness called may be cross-examined on
the witness statement, whether or not any part of it was referred to during the
evidence in chief of that witness.

Proceedings at Trial – Order 36

Governing Law

The rules regulating proceedings at trials are laid down in Order 36 of CI 47.

Where parties are absent

To begin with, on the date fixed for hearing, if the action is called and all the parties are
absent, the court may strike out the action from the cause list.

If the plaintiff attends the hearing, but the defendant fails to attend, the defendant’s
counterclaim, if any, may be dismissed and the plaintiff called upon to prove his or her case.

Where the defendant attends and the plaintiff fails to attend, the court may dismiss the
action and call the defendant to prove the counterclaim, if any.

The court is also encouraged under the law to make such orders as it may think just.

The court is therefore entitled to proceed with the trial even where a party is absent without
any good reasons. A party who fails to attend court for the trial may be deemed to have
abandoned the case.

A party who refuses to testify in the absence of his lawyer

Case law reveals that, where a lawyer is absent from a trial hearing but his client is present
yet refuses to testify, it would be deemed that his client who is a party to the suit was
present in court for all purposes and the demands of natural justice have been met. Case in
point is Omaboe v. Kwame.

In this case, the High Court had entered judgment in favour of the respondent for title to a
piece of land and granted her other ancillary reliefs.  Before doing so, the respondent had led
evidence to support her claim. The appellant was himself in court but his counsel was
absent.  He wrote to the court requesting adjournment to a named date but the judge
 E.A. AFENYO

declined to accede to his request.  As the appellant was himself in court, he was given an
opportunity to present to the court his side of the case but said he could not do so. After the
entry of judgment, the appellant, by his counsel applied to have this judgment set aside by
invoking the inherent jurisdiction of the court to do so.

The rules of court permitted the setting aside of a judgment where one of the parties was
absent and the court is given a discretion to do so on such terms as it deems fit.   In this case,
the appellant was present in court and the judgment against him was pronounced in his
presence when he declined to lead evidence to rebut at least the prima facie case of title
made by the respondent.

The judge did not grant the application.  In his opinion, since the appellant was not absent
when the judgment was given, he could not come under the rule to set aside the judgment.
The judge was aware that in certain cases, the court has an inherent jurisdiction to set aside
its own orders but held that this is not a proper case in which it can exercise that power. 

On appeal to the Court Appeal against the order not to set aside the judgment, Apaloo C.J
was of the opinion that it would not interest the course of justice for the judgment to be set
aside since the appellant was present and was given the opportunity to make his case but
failed to.

The learned judge noted the following:

1. judgment was obtained in the presence of the party who seeks to have it set aside. 
2. he was afforded an opportunity to meet his opponent's case by such evidence as he
had. He declined to do so.
3. no blame of any sort can be attributed to the respondent or indeed the court. 
4. there is justice to the plaintiff as well as the defendant and it would be unjust to the
plaintiff if the court were to give itself power to vacate a judgment regularly obtained
by the plaintiff in accordance with its own rules when the other party, while present
at the hearing, chose, for reasons of his own, not to meet his opponent's case. 

Generally, where a party is given an opportunity to be heard and he or she abuses that
opportunity or deliberately fails to be present at the hearing, he or she cannot complain
about unfair hearing. Case for reference is Republic v. High Court (Human Rights Division),
Accra; ex parte Akita.
 E.A. AFENYO

On the other hand, if that party has not been given adequate notice of the hearing, it will be
deemed that the rules of natural justice have been violated and therefore the court did not
exercise jurisdiction over that person, rendering the trial a nullity. This principle of law was
applied by the Court of Appeal in Ayariga and Another v Sugri (unreported).

The court further held in this case that, although rule 1(1) of Order 36 of High Court [Civil
Procedure] Rules, C.I. 47 permitted the court to proceed with the trial if the plaintiff appears
and defendant is absent and vice versa, the permission is subject to the judicious exercise of
the court’s discretion. Where the defendant was not notified of the hearing as appears in this
case, proceeding to hear the plaintiff in the absence of the defendant cannot pass as a
judicious exercise of the court’s discretion in the circumstance under the rule.

“The fact that notice of adjourned date was not served on the defendant personally in
compliance with the statutory directions in my view nullifies completely whatever occurred
subsequently”.

Ratio Decidendi in Karletse-Panin v. Nuro

When a party fails to attend court and his case is dismissed, the dismissal of the case cannot amount
to res judicata to bar a fresh action. The simple reason is that the action was not tried on its merits.

Setting aside judgment obtained under Order 36

Where a party is served with a notice of trial but fails to attend the trial and judgment is
entered against him or her, such a party may apply to set aside judgment within 14 days
after the trial, under Order 36 rule 2 of C.I. 47.

The time may be extended under Order 80 rule 4 of C.I. 47.

Inspection by Judge or Locus in Quo

As part of the trial, it may become necessary for the judge to inspect any place or thing that
has relevance in the determination of the case as provided in Order 36 rule 5 of C.I. 47.

During the trial of a land case, the judge may visit and inspect the land to verify the identity
of the land in dispute.

The procedure to be adopted when a judge is to embark on such inspection is contained in

Practice note No.2; Gblevi Family v Amanie
 E.A. AFENYO

“The practice to be followed by a local court after visiting the locus in quo was stated by this
court in Kwami and Kofi v. Adzonu and others (see Practice Note above) and it is further
directed that it should be as follows:-

The court should be accompanied by the parties and any relevant witnesses to the
inspection.  The parties or the witnesses there point out such places and things which are
material to the case, etc. If certain other persons, who may assist the court in arriving at a
decision in the matter are found on the land but who have not given evidence in court, are
heard, those other persons should be asked to appear before the court when it re-assembles.

Then when the court re-assembles all the persons who were used at the view must be put
into the witness box, and on oath state what part they took in the recent visit to the locus
and what each did. 

The parties, that is the plaintiff and the defendant are to be given an opportunity of cross-
examining those witnesses who after the inspection are called by the court itself, and at that
stage must be deemed to be witnesses called at the instance of the court”

It has been held in Amane v Kwabla that the court must not delegate its function under
Order 36 rule 5 to a person to undertake the inspection and report to the court.

Evidence at Trial

Parties in an action are to adduce evidence at the trial to support their respective claims.

What the witness states on oath or affirmation constitutes evidence.

The oral examination at the trial takes three forms; evidence-in-chief, cross-examination and
re-examination. With the amendment of CI 47 by CI 87, oral evidence in chief has become a
thing of the past in most civil trials.

Governing law

Order 38 3B(2) of CI 47 as amended by CI 87 requires parties and their witness in most civil
actions to file and serve witness statements.

Order 38 rule 3E(2) of CI 47 as amended by CI 87 provides that the witness statement filed
by a party shall stand as the evidence-in-chief.

Evidence by Affidavit
 E.A. AFENYO

The court may allow the use of affidavit evidence in an action. Under Order 38 rule 2, the
court may order the deponent of the affidavit to appear in court to be cross-examined on the
facts contained in the affidavit.

Subject to such an order from the court calling on a deponent to attend court-examination, a
deponent need not attend the trial.

However, when a deponent fails to attend the court to be cross-examined as ordered, the
affidavit would not be used by the court as evidence except with the leave of the court.

Writ of Subpoena

Under Order 38 rule 10 to 13 of CI 47, a party may request the court to issue a writ of
subpoena against a person or institution to testify at a trial or produce documents that are
relevant for the trial.

A writ of subpoena is to be served personally and when served it will continue to have effect
until the conclusion of the trial for which it was issued.

Evidence by Deposition

By Order 39 of CI 47, the court may in any matter where necessary and in the interest of
justice make an order for the examination on oath of any person, at any place before a judge,
an officer or examiner of the court or some other person.

If the person to be examined is outside the jurisdiction, an application may be made for an
order for the issue of a letter of request to the judicial authorities of the foreign country for
evidence to be taken.

If the laws of the foreign country allow the examination of persons before a person
appointed by the court, an order may be obtained appointing a special examiner to take the
evidence of the person in that foreign country. An application may also be made for the
appointment as a special examiner of a Ghanaian consul in the foreign country, if there
exists a civil procedure convention that provides for the taking of evidence of any person in
that country or with the consent of Ghana’s minister for foreign affairs.

When an order is made for the issue of a letter of request to the judicial authorities of a
country to take the evidence of any person in that country, the party who required the order
shall prepare the letter of request and lodge it with the Registry of the court. If the person is
to be examined on interrogatories, a copy of the interrogatories and cross interrogatories to
 E.A. AFENYO

be put to the person to be examined shall also be lodged in the Registry. The party who
obtained the order will then file an undertaking that he will be responsible for expenses to
be incurred by the Minister for foreign affairs in respect of the letter of request. The party
shall upon receiving due notification of the amount of expenses pay the amount of the
Minister and produce the receipt for the payment to the Registrar. the forms to be used in
this transactions are forms 16, 16A and 16B in the schedule of CI 47.

Attendance of a person to be examined by an officer or examiner may be enforced by writ of

subpoena in the same manner as the attendance of a witness at a trial. A person who wilfully
disobeys any order made against him under the rule on deposition shall be liable to
committal for contempt of court.

The examiner shall notify the party who obtained the order of the place and time the
examination shall be taken and the time shall be as soon as practicable, taking into account
the convenience of the persons to be examined. The party who obtained the order receiving
the notice from the examiner, shall immediately give notice of the appointment to all the
other parties.

Normally, the examination is conducted in the presence of the parties, their lawyers or
agents. Deposition may also be taken by the consent of the parties in an action where the
action is being tried. In such a case, the court may request a judge or magistrate nearest to
the witness to take the evidence before the parties or their agents and the evidence
transmitted to the court hearing the case.

Judgments

A decision of a court may be a Judgment, an Order or a Ruling.

Declaratory Judgments

Declaratory judgments are judgments which states the position/findings of the court on the
issues presented before it by the parties.

Such judgments do not require a party to either do something or refrain from doing
anything.

Such declaratory reliefs merely declare the rights of the parties and do not require them to
do anything.

Declaratory Judgments are not executable.

 E.A. AFENYO

Order 41 rule 1 of CI 47 empowers the court to make binding declaratory judgments and
any other consequential orders. It provides that no cause or matter shall be open to objection
on the ground that a mere declaratory judgment or order is sought, and the Court may make
binding declarations of right whether or not any consequential relief is or could be claimed.

This rule has been upheld in Anang Sowah v Adams.

Time for Delivery of Judgment

Under Order 41 rule 2(1) of CI 47 a court must deliver its judgment within 6 weeks after
close of case. However, the inability of a Court to deliver itself of its judgment within the
stated period, does not take away the jurisdiction of the court to deliver judgement.

Failure to deliver a judgment within that period does not invalidate any judgment given
after the period at the instance of any of the parties. This principle was pronounced in ex
parte Eastern Regional Development Corporation.

Nonetheless, Order 41 rule 2(4) of CI 47 is to the effect that, where for any reason judgment
has not been delivered within the period of six weeks, the Court shall forthwith inform the
Chief Justice in writing of that fact and shall state the reasons for the delay and the date
upon which it is proposed to deliver judgment.

ENFORCEMENT OF JUDGEMENTS

Generally, judgments are enforced with writs of execution.

Order 44

Rule 1—Interpretation

In this Order, unless the context otherwise requires, "writ of execution" includes a writ of
fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any other writ
in aid of execution.

Rule 2—Effect of Writ of Execution

(1) A writ of execution may be put into effect in any part of the country.
 E.A. AFENYO

(2) A writ of execution against goods shall bind the property in the hands of the judgment
debtor as from the time when the writ is issued, but shall not prejudice the title to the goods
acquired by any person in good faith and for valuable consideration unless at the time when
the person acquired title the person had notice that the writ or any other writ by virtue of
which the goods of the judgment debtor may be seized or attached has been delivered to
and remained unexecuted in the hands of the Registrar.

(3) The immovable property of a judgment debtor shall not be levied in execution if the
judgment debtor shows that the judgment debtor has sufficient movable property within the
jurisdiction to satisfy the judgment or order and costs.

(4) Where the execution is levied against immovable property, there shall be endorsed on the
writ of execution a statement that there was not sufficient movable property to satisfy the
judgment debt.

(5) Subject to subrule (3) all property movable or immovable, belonging to the judgment
debtor, and whether held in the judgment debtor's name or by another person in trust for
the judgment debtor or on the judgment debtor's behalf, is liable to attachment and sale in
execution of the judgment or order.

Rule 3—Necessity for Leave to Issue Writ of Execution

(1) A writ of execution to enforce a judgment or order may not issue without leave of the
Court in the following cases

(a) where six years or more have elapsed since the date of the judgment or order;

(b) where any change has taken place, whether by death or otherwise, in the parties entitled
or liable to execution under the judgment or order;

(c) where the judgment or order is against the assets of a deceased person coming into the
hands of his or her executors or administrators after the date of the judgment or order, and
it is sought to issue execution against the assets;

(d) where under the judgment or order, any person is entitled to relief subject to the
fulfilment of any condition which it is alleged has been fulfilled, or
 E.A. AFENYO

(e) where any goods to be seized under a writ of execution are in the hands of a receiver
appointed by the Court or a sequestrator.

(2) Where the Court grants leave for the issue of a writ of execution and the writ is not
issued within one year after the date of the order granting the leave, the order shall cease to
have effect, without prejudice to the making of a fresh order.

Barred Executions

When a judgment is not executed for 12 years, a judgment creditor will be barred from
executing the judgment. Section 5(2) of the Limitation Act, 1972 (NRCD 54) prohibits all
actions brought upon a judgment after 12 years. The section provides that ‘an action shall
not be brought upon a judgment after the expiration of 12 years from the date on which the
judgment became enforceable’.

Method of Execution

The first step in the enforcement of a judgment or order of the court is for the successful
party to file an entry of Judgment in the Registry of the Court.

In the District Court, the first step is for the judgment creditor to apply for a formal decree.
This process is to remind the judgment debtor to discharge the obligations under the
judgment. It also makes certain the nature of the obligation under the judgment. Where the
judgment debtor fails to satisfy the judgment debt, the judgment creditor may proceed to
enforce the judgment seven days after the service of the entry of judgment.

Writ of Fieri Facias (Fi Fa) – Order 45

This writ is normally resorted to in judgments or orders for the payment of money.

It is accompanied by a praecipe detailing the particulars of attachment. The particulars of

attachment indicate the list of goods that the sheriff is requested to seize under the writ of fi
fa.

Normally, when a judgment debtor fails to satisfy the judgment debt after service on him or
her of the entry of judgment, the sheriff of the court may proceed to execute or enforce the
judgment.
 E.A. AFENYO

Where the judgment debtor has demonstrated that he has movable properties, those
properties must be attached first before the immovable properties.

Properties taken in execution are to be sold through a public auction. The properties can
only be sold after the court has fixed the reserved price under section 16(2) of the Auction
Sales Act, 1989 (PNDCL 230).

Reserved price

It is fixed by the court upon application by the judgment creditor through a motion on
notice to the judgment debtor. The judgment creditor will have to attach the valuation report
on the goods that have been seized and taken into execution.

The valuation report will normally determine the market value and the foresale value of the
goods. The court will fix the reserved price based on the fore sale value as provided by the
report.

If the judgment debtor is of the view that the values of the goods as provided by the
valuation report are low, he could also commission a valuer to also present a second
valuation report to the court by filing an affidavit in opposition and attaching the valuation
report. When this happens, the court will fix the reserved price based on the two valuation
reports.

The court could also appoint an independent valuer to value the goods taken in execution
for purposes of fixing the reserved price.

The reserve price is the minimum price at which the goods can be sold at the auction.

After the Reserved Price has been fixed by the court, the auctioneer appointed by the sheriff
shall proceed to conduct the public action after giving the appropriate notices.

By Order 45 rule 9 where the goods to be auctioned are movables, notice must be posted in a
newspaper in the community or on a public notice board in the community for 7 days. If the
good to be auctioned is immovable then the notice shall be for 21 days.

Irregularities
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Under Order 45 rule 10, an auction sale may be set aside if the sale is irregular. The
application to set aside a sale of irregularity must be brought within 21 days after the sale.

No sale shall be set aside for irregularity unless the court is satisfied that apart from
irregularity, the party complaining must have suffered substantial injury by reason of the
irregularity.

The irregularities in the conduct of the sale makes the sale voidable and the party
complaining must take steps to set it aside within the 21 days.

In Manu v Yeboah, the court aptly laid down the law in respect of void and voidable auction
sales.

The court ruled that, an auction sale could be categorised as regular, irregular or illegal.

Where the sale was regularly conducted, the purchaser's title to the property could not be
impeached.

Where the sale was irregularly conducted, it was voidable and could be set aside if a
timeous application to avoid it or set it aside was made and a substantial injury was
sustained.

In the case of an illegal sale, however, the sale was void ab initio and no title whatsoever
passed; time was also no bar in such a case.

This principle is reiterated in Marfo v Adusei.

Zakari v Nkusum Mart:  An irregular auction was voidable, any person damnified by it was
entitled to bring an application within 21 days of the sale to have it set aside.  Where no such
application was brought, then under Order 51, r. 19 of L.N. 140A (now order 4 rule 11) the
sale became absolute.

Statutory Notice

Once the statutory notice had been posted up for the minimum period required by law,
there was no obligation on the auctioneer to repeat the length of notice in case of
postponement, even if indefinite. This was affirmed in Republic v Circuit Court Registrar,
ex parte Arthur.
 E.A. AFENYO

Therefore, this means that where a sale is advertised for the prescribed time and the sale is
postponed, the sale need not be advertised again.

However, where a sale is declared null and void for illegality and a re-sale is ordered by the
court, the re-sale must be advertised again for the statutory period, that is 7 days for
movables and 21 days for immovable properties.

Absolute sale

Where no application is brought within 21 days to set aside the sale or where such
application is brought but is dismissed by the court, the sale will then become absolute and a
Certificate of Purchase will be issued to the purchaser.

The Certificate of Purchase shall be a valid transfer of the right, title and interest of the
judgment debtor in the property sold.

Nonetheless, the courts have couched the law that a certificate of purchase issued after a
court sale under a writ of fi. fa. did not of itself confer an indefeasible title. The purchaser
stepped into the shoes of the execution debtor and purchased only such right, title or interest
as the execution debtor could be shown by admissible evidence to have had in the property.

This was reflected in the decision of the court in Kumah & Another v Himah.

One Kwabena Anane obtained judgment against three members of the defendants' family,
on a promissory note they had issued to him.  Under a writ of fi. fa. issued at the instance of
Kwabena, three lots of property, including a cocoa farm were offered for sale at an auction.
The plaintiff bought the property and he was issued with a certificate of purchase. The
defendants claimed that the farm belonged to them.

The plaintiff therefore brought an action for a declaration of title to the farm. The plaintiff
relied almost exclusively on his certificate of purchase as vesting title to the farm in him and
tendered the docket in the earlier suit and the execution proceedings in evidence.

The co-defendant gave evidence of his acquisition of the land about 28 years prior to the
action and his cultivation of three seasonal cocoa farms on it. He gave out the names of his
adjoining boundary owners and details of boundary features.

The Court of Appeal held that in the instant case since there was no evidence about the
nature and quantum of the execution debtors' interest, title or right in the farm, the plaintiff
failed to provide his derivative right, title or interest in the farm notwithstanding the
 E.A. AFENYO

certificate of purchase tendered by him because a certificate of purchase did not in law
constitute a covenant for title.

Garnishee Order

Order 47

This is the process by which money due to the judgment debtor from a third party can be
attached and used to satisfy the judgment debt.

Garnishee proceedings are instituted by a Judgment Creditor asking the court to make an
order against a third party who holds money belonging to the Judgment Debtor asking to
show cause why the money should not be paid to the judgment creditor in satisfaction of the
judgment debt.

Process:

1. An order is first made upon an ex parte application for the garnishee (third party) to
appear in court to show cause why it should not be ordered to pay the judgment
debt.
2. The first order directed at the Garnishee is called Garnishee Order nisi. The order
will be served on the garnishee and the judgment debtor and both shall be bound
upon service on them of the order. The order shall specify the return date on which
the garnishee is expected to attend court and show cause.
3. On the return date, if the garnishee does not dispute the debt, an order absolute is
made against the garnishee to pay the money in its custody to the judgment creditor.

The order is made absolute after the third party has confirmed to the court that there is no
reason why the money should be paid to the judgment creditor.

However, it was decided by the English Court of Appeal in Roberts v. Death that a
garnishee order nisi obtained by a judgment creditor to attach money owing to a judgment
debtor, ought not to be made absolute if there is reasonable ground for believing that the
money sought to be attached is trust money and not really the money of the judgment
debtor.
 E.A. AFENYO

The law reiterated by Apaloo JSC in the consolidated suits of Akande v Kwakye and
Another & Lomnicky & Co. Ltd v Kwakye and Another.

Charging Orders

Order 49

This is a charge imposed on any immovable property or securities of a judgment debtor, to

secure the payment of money in satisfaction of the debt.

Process for immovable property charge:

1. An ex parte application is made by the judgment creditor for an order to show cause
why the charge should not be imposed
2. An order shall in the first instance be an order to show cause, specifying the time and
place for further consideration of the matter and imposing the charge until that time
in any event-Order 49 rule 1(2)
3. The application shall be supported by an affidavit
(a) identifying the judgment to be enforced, and stating the name of the judgment
debtor on whose immovable property or interest it is sought to impose a charge and
the amount remaining unpaid under the judgment or order at the time of the
application;
(b) specifying the immovable property on which it is sought to impose a charge; and
(c) stating that to the best of the information or belief of the deponent the immovable
property or interest in question is the judgment debtor's and stating the sources of
the deponent's information or the grounds for the deponent's belief - Order 49 rule
1(5)
4. Unless the Court otherwise directs, a copy of the order shall, at least 7 days before
the time appointed for the further consideration of the matter, be served on the
judgment debtor and if the judgment debtor does not attend, proof of service shall be
given - Order 49 rule 1(6)
5. Under Order 49 rule 1(7) on the further consideration of the matter the Court shall, it
appears that there is sufficient cause make the order, make the order absolute with or
without modification. A receiver is appointed to enforce the order (they are
appointed by a Court to enter into an immovable property belonging to the
 E.A. AFENYO

Judgment Debtor and collect all revenue accruing to the Judgment Debtor from the
property or from the business conducted by the judgment debtor within the
property)

Securities

Under Order 49 rule 2 of CI 47, the court may by order impose a charge on any interest in
securities to which a judgment debtor is beneficially entitled.

The securities which are subject to such orders include the following:

a. Government stocks in the name of the Accountant-General;

b. Any stock of a company registered under an enactment;
c. Any dividend of or interest payable on stocks mentioned above.

The order is to prevent the transfer of shares and stocks as they stand charged with the
payment of the judgment debt.

Process for charging securities:

1. An application for shall be made ex-parte supported by an affidavit

(a) identifying the judgment or order to be enforced, stating the amount unpaid
under it at the date of the application, and showing that the applicant is entitled to
enforce the judgment or order; and
(b) stating that to the best of the information or belief of the deponent the judgment
debtor is beneficially entitled to an interest in the securities in question, describing
that interest, and stating the sources of the deponent's information or the grounds for
the deponent's belief-Order 49 rule 3
2. Unless the Court otherwise directs, a copy of the order to show cause shall, at least
seven days before the time appointed for the further consideration of the matter, be
served on the judgment debtor, and if the judgment debtor does not attend, proof of
service shall be given-Order 49 rule 4(1)
3. Notice of the order to show cause, with a copy of that order, shall as soon as
practicable be served
(a) on the Bank of Ghana where the order relates to government stock;
(b) on the company concerned where the order relates to other stock; and 
 E.A. AFENYO

(c) on the Accountant-General where the order relates to stock standing in the name
of the Accountant-General-Order 49 rule 4(2)
4. While the order to show cause is in force, no disposition made by the judgment
debtor shall be valid as against the judgment creditor-Order 49 rule 5(1).
5. Until the order to show cause is vacated, the Bank of Ghana or other person shall not
permit the transfer of any stock specified in the order, or pay dividend or interest
payable, except with the authority of the court-Order 49 rule 5(2).

Writ of Possession

A judgment or order for the recovery of possession of immovable property may be enforced
by a writ of possession according to Order 43 rule 3(1).

It is resorted to where a judgment or an order requires the giving up of an immovable

property or for ejection.

As maintained by Order 43 rule 3(2) of CI 47, a writ of possession to enforce a judgment or

order for the recovery or possession of immovable property shall not be issued without
leave of the Court, except where the judgment or order was given or made in a mortgage
action under Order 56.

The leave shall not be granted unless the court is satisfied that all persons in actual
possession have received the notice of the proceedings to enable a person to apply for any
relief to which the person may be entitled, as stipulated in Order 43 rule 3(3) of CI 47.

What this rule means is that people in the occupation of a property subject of the writ of
possession must be notified of the execution proceedings whether they were parties to the
action or not.

Key Point

The Supreme court in a recent practice direction has directed that trial courts to whom writs
of possession are applied must study the judgments upon which the executions are applied
and clearly delineate the boundaries of the land in respect of which the writ of possession
applies.
 E.A. AFENYO

Where there is a survey map or site plan and the judgment has been based on such a survey
map or site plan, then the writ of possession must be referable to the said plans.

The direction from the court is based on the prescribed forms pursuant to Order 43 rule 13,
particularly forms 18C and 18D provided in the schedule to CI 47. These forms contain an
indication for detailed description of the property or premises in respect of which the writ
has been applied for. Therefore, the judgment creditor who is applying for a writ of
possession must provide a detailed description of the land or premises as defined in the
judgment which is being enforced through the writ of possession.

A writ of possession which does not conform to Order 43 rule 13 risk being declared
impotent based on the decision in Nene Narh Matti and others v. Osei Godwin Teye and
others.

The writ of possession may include provision for enforcing the payment of any money
adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ;
for example, amount awarded as damages for trespass and costs awards.

Writ of Delivery

According to Order 43 rule 4(1)(a), a judgment or order for the delivery of goods which does
not give a person against whom the judgment is given or order is made, the alternative of
paying the assessed value of the goods, may be enforced by a writ of delivery to recover the
goods without alternative provision for recovery of the assessed value referred to in this rule
as a "writ of specific delivery".

This writ is used when an order is made for the return of movable property to a successful
party and there is a default.

The writ directs the sheriff to cause the delivery of the movable property mentioned in the
writ to the judgment creditor. If the judgment does not give the judgment debtor the
alternative of paying the assessed value of the goods, then a writ of specific delivery will be
issued with the leave of the court.

By Order 43 rule 4(2), a judgment for the delivery of goods or payment of their assessed
value may be enforced by either:

a. A writ of delivery to recover the goods or their value

 E.A. AFENYO

b. A writ of specific delivery with leave of the court

c. An order for committal or a writ of sequestration if Order 43 rule 5 applies.

A writ of delivery and a writ of specific delivery to recover goods or their value may include
the enforcement of payment of any money which is to be enforced by a writ by Order 43
rule 4(3).

Further, an order for the payment of the assessed value of good may be enforced by the
same means as any judgment for the payment of money, as contained in Order 43 rule 4(4).

Writs of Sequestration

These writs are issued and directed to Commissioners ordering them to take possession of a
property of someone who has been committed for contempt until the person has been
cleared of his contempt or the court has ordered otherwise.

It is therefore used when a judgment requires a person to do an act; for example to pay
money within a stated period of time, particularly under order 43 r 5.

However, unlike a writ of fieri facias, this writ is directed to two or more people called
Commissioners who are not officers of the Court.

Also, with sequestration you apply with leave, with the fifa you don’t need leave unless it
falls within the stated exceptions.

The Commissioners are empowered under Order 43 rule 1(3) of CI 47 to enter unto any
immovable property of the judgment-debtor to receive the rents, if any, and pay same into
the court. They are also to take hold of the movable properties without selling them until the
judgment debt is satisfied or the court directs otherwise.

Under Order 44 rule 6, the writ may only be issued with the leave of the court.

Committal for Contempt

Order 50 of CI 47 is to the effect that committal proceedings are to commenced by the

application to the court. The application which is to be on notice shall be supported by an
affidavit stating the grounds of the application. Case in point is Boamah & Ansah Sikatuo v
Amponsah.
 E.A. AFENYO

The application which is to be on notice shall be supported by an affidavit stating the

grounds of the application. The court may also dispense with service of the notice of motion
if it thinks fit under Order 50 rule 1(5).

Under Order 50 rule 2, the court on its own motion may order a person to show cause why
he or she should not be committed for contempt.

Enforcement of Judgment to do or Abstain from Doing an Act

Pursuant to Order 43 rule 5, where a person required by a judgment to do an act within a

time specified in the judgment refuses or neglects to do it within that time or within that
time as extended or reduced under Order 80 rule 4; or

a person disobeys a judgment or order requiring the person to abstain from doing an act, the
judgment or order may be enforced by one or more of the following means

(a) a writ of sequestration against the property of that person with leave of the Court;

(b) a writ of sequestration against the property of any director or other officer of the body
where that person is a body corporate, with leave of the Court; or

(c) an order of committal against that person or, where that person is a body corporate,
against any director or other officers.

Under Order 43 rule 7, a judgment or order shall not be enforced as above unless a copy of
the judgment or order has been served personally on the person required to do or abstain
from doing the act in question.

In the case of an order requiring a person to do an act, the copy of the order must be served
before the expiration of the time within which the person is required to do the act.

An order requiring a body corporate to do or abstain from doing an act shall not be enforced
unless a copy of the order is served personally on the officer against whose property leave is
sought to issue a writ of sequestration or against whom an order of committal is sought.
Where the body corporate is required to do an act, the copy must be served before the
expiration of the time within which the body corporate is required to do the act.

Execution by or against a Non-Party

 E.A. AFENYO

Order 43 rule 9(1) of CI 47 provides that any person, not being a party to the cause or
matter, who obtains any order or in whose favour any order is made, is entitled to enforce
obedience to the order by the same process as if the person were a party.

In the same vein, any person, not being a party to the cause or matter against whom
obedience to any judgment or order may be enforced, is liable to the same process for
enforcing obedience to the judgment or order as if the person were a party according to
Order 43 rule 9(2) of CI 47.

Payment of Judgment Debt by Instalment

Order 41 rule 8(1) allows a judgment-debtor to apply to the court to be allowed to pay the
judgment debt by instalment for any sufficient reasons.

Where the court orders instalment payment, the execution of the judgment is stayed until
after a default of an instalment payment, then execution may be issued for the whole balance
due to the judgment debt.

The courts have held in Republic v High Court, Accra, ex parte Kumoji that when a
judgment debtor defaults on paying an instalment, the judgment creditor may commence
execution with the leave of the court.

However, where in the event of a default, a creditor proceeded and went into execution
without leave of the court, the execution was illegal, wrongful and void and the judgment
debtor was entitled to have it set aside as of right. This was rendered by the decision in
Fiankuma v Cobbina.

Under Order 51 rule 9(1) of CI 47 an appeal does not operate as a stay of execution. A
judgment-debtor must formally apply to the court for an order staying the execution of the
judgment.

Application For Stay of Execution

The rules permits the application to be made to the court that entered judgment, and upon
refusal, the application could be repeated in the appellate court if the judgment debtor has
an appeal pending against the judgment.

Procedure
 E.A. AFENYO

An application is made by motion on notice to the judgment-creditor.

According to Order 51 rule 9(2), when an application for stay of execution is pending for
determination, any proceeding for execution of the judgment shall be stayed for the period
that the application is pending.

When the application is refused, the execution of the judgment shall remain stayed for 7
days.

Under rule 27 of the Court of Appeal Rules, CI 19, the court may stay the execution of a
judgment appealed against and during the pendency of the application, any execution
proceeding will be stayed.

Stay of execution for judgment for the payment of money

Order 45 rule 15(1) provides that a judgment for the payment of money may be stayed by
the court on the application of the judgment debtor at the time of the judgment or after the
judgment.

The court upon such an application may stay execution of the judgment if there are special
circumstances which render it inexpedient to enforce the judgment or that the applicant is
unable from a just cause to pay the money.

According to Order 45 rule 15(4), the affidavit in support of the application shall provide the
necessary evidence, for example the income of the applicant and any amount of liabilities to
substantiate the applicant’s inability to pay the judgment debt.

The order granting stay of the judgment may be absolute or for such period and subject to
conditions the court deems fit to impose.

In the 2017 Court of Appeal decided case of Abeka v HFC (Ghana) Ltd, the Ayebi JA noted
that the courts have isolated five principles which are generally considered in the grant or
refusal of an application for stay of execution pending appeal.

These are that:

a. whether or not the appeal is brought bona fide to test the rightness of the judgment
appealed against;
 E.A. AFENYO

b. whether or not the appeal is frivolous or has a bright chance of success;

c. whether or not the refusal or grant would work greater hardship on either party;

d. whether or not the appeal if successful will be rendered nugatory by the execution; and;

e. whether or not the affidavit in support has disclosed exceptional circumstances

warranting the grant of stay.

All the same, when all these principles are weighed, it is apparent that the avoidance of an
appeal being rendered nugatory has become the main objective in the grant of applications
for stay of execution pending appeal.

Principle of law gleaned from Nana Kwasi Agyeman VIII v. Nana Hima Dekyi XIII and
Bannerman v. Fretete Odomankoma Jewellery Ltd.

To enable the court to exercise its discretion judiciously to determine an application for stay
of execution, the applicant must allege and prove by the affidavit in support of the motion
the existence of special circumstances why the application should be granted. It has been
held that a mere allegation of misdirection, or a series of allegation of misdirection, is not a
special circumstance.

The law has been applied in Appiah v. Barnor, Eboe v. Eboe, Republic vrs Briscoe
Committee of Inquiry, Ex-Parte R.T Briscoe (Ghana) Ltd and Takyi vrs Ghassoub (Ghana)
Ltd.

Further, under Order 43, r 11, a court may also grant stay of execution upon the application
of the judgment debtor on grounds of matters which have occurred after the date of the
judgment. The court may grant the application on such terms as it thinks fit.

The court may also grant stay of execution of a judgment, under order 14 r 5(2), pending the
trial of a counterclaim by a defendant after a summary judgment has been entered for a
plaintiff, subject to any conditions that the justice of the case requires.

Enforcement of Judgment Against the State

The procedure for enforcing a judgment or order against the state is provided by the State
Proceedings Act, 1998 (Act 555).

A party who obtains judgment against the state, like in all civil cases, must first file an Entry
of Judgment to be served on the Attorney-General and any other named judgment debtor.
 E.A. AFENYO

Further, section 15 of the State Proceedings Act, 1998 provides that when a court makes an
order in civil proceedings in favour of a person against:

a. The Republic
b. A Department of the Republic and
c. An employee of the Republic, then the court on an application of the person shall
issue a certificate containing the particulars of the particulars of the judgment or
order to the person.

The application for the certificate shall be made any time after 21 days from the judgment or
order.

The judgment or creditor shall apply for the certificate by Motion ex parte.

If the judgment is for the payment of money, then the certificate shall specify the amount of
money payable together with interest. A copy of the certificate may be served on the
Accountant General if the judgment or order relates to the payment of money and on the
Attorney-General in any other case.

In practice however, it is advised that the certificate be served on both the Accountant-
General and the Attorney-General.

Section 16 of the State Proceedings Act, 1998 provides that an order or judgment in favour
of the Republic against a person may be enforced in the same manner as an order or
judgment between private persons.

Therefore, if the judgment or order is not satisfied by the State after the service of the
certificate as provided above, the judgment creditor may proceed to enforce the judgment by
adopting any of the methods of execution.

The Supreme Court has held in Republic v High Court, Accra, ex parte Attorney-general
(Maud-Nongo interested party) that public funds and government property may be
attached to satisfy judgments against the state. In this case, it was also held that the failure of
the plaintiff to obtain the Registrar’s certificate before applying for the garnishee order was
fatal to her case in that the high court that granted the order did not have jurisdiction to do
so in the absence of a certificate as required by section 15 of the State Proceedings Act.

Enforcement of Foreign Judgments

The procedure for the enforcement of foreign judgments in Ghana is provided for by
sections 81, 82 and 83 of the Courts Act as well as Orders 71 and 72 of CI 47. Under section
81 of Act 459, a judgment creditor under a foreign judgment can apply to enforce the
judgment in Ghana, if the country of origin of the judgment has a reciprocity regime with
Ghana. Reciprocity in the enforcement of judgment is granted by the President through a
legislative instrument. An example of such executive instrument is the Foreign Judgments
and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993, LI 1575.

The judgment of a foreign country to which a legislative instrument extends shall be

enforced in Ghana under the following conditions:

 If it is a judgment of a superior court

 If it is final and conclusive between the parties
 E.A. AFENYO

 If there is payable under the judgment a sum of money other than taxes or other
charges of a similar nature.
 If the judgment was given after the coming into force of the legislative instrument
granting the right to enforce judgments from the foreign country.

Procedure for Enforcement - Order 71

A judgment creditor may enforce a foreign judgment by applying for leave to register the
judgment in the High Court. The application is made by a motion ex parte supported by an
affidavit showing the following:

 Exhibiting the judgment or a certified copy of it and where the judgment is not in
English, it must be translated and certified by a notary public.
 Provide the names, trade or business and last known place of abode of the judgment
creditor and judgment debtor.
 State that the judgment creditor is entitled to enforce the judgment and that
judgment has not been satisfied.
 That the judgment can be enforced at the country of the original court.
 That if the judgment is registered, the registration would not be set aside under
section 83 of the Courts Act, Act 459.
 State the amount of interest due on the judgment from the original court.
 State the cedi equivalent of the amount due on the judgment calculated at the Bank
of Ghana exchange rate prevailing at the date of the judgment.

Order for Registration - Order 71, R 5

Where the court grants the application for leave to register the foreign judgment, the order
will be drawn by the Registrar of the court and the order shall be served on the judgment
debtor. The order must state the period within which an application may be made to set
aside the registration. It must also contain a notice that execution shall not proceed until
after the expiration of the period so indicated in the order.

Notice of Registration – Order 71 R 7

The rule provides that a notice of registration be served on the judgment debtor personally
unless the court orders otherwise. The notice may be served outside the jurisdiction without
leave and it shall be served in the same way as a writ of summons. The notice of registration
shall contain the following:

 Full particulars of the judgment and the order for registration.

 Name and address of the judgment creditor or his lawyer or agent on whom any
notice by the judgment debtor may be served.
 The right of the judgment debtor to apply to have the registration set aside.
 The period within which an application to set aside the registration may be made.

After the service of the notice, there shall be an endorsement of service by the person who
effected the service. If no endorsement of service is made, the judgment creditor shall
execute the judgment on the judgment debtor, without the leave of the court.

Application to set aside registration of foreign judgment

 E.A. AFENYO

A judgment debtor or a party may apply to set aside the registration of the foreign judgment
and not the judgment. The judgment was not entered by a court of Ghana. The court in
Ghana only registered the judgment for purposes of execution, so it is the registration of the
judgment that can be set aside.

Under section 84 of the Courts Act, Act 459, a party can apply to set aside the registration of
a foreign judgment if the registering court is satisfied as follows:

 If an appeal is pending or
 That the applicant is entitled and intends to appeal.

The court will also consider other grounds under section 83 of the Courts Act as stated
below:

 That the foreign judgment is not a judgment to which the Courts Act applies or was
registered in contravention of the Act.
 That the original court did not have jurisdiction in the case.
 That the judgment debtor did not receive notice of the proceedings in sufficient time
to enable the judgment debtor defend the proceedings.
 That the foreign judgment was obtained through fraud.
 That the foreign judgment if enforced would be against public policy in Ghana.

Under order 71 r 9, an application to set aside the registration of a judgment shall be

supported by an affidavit. The court hearing the application may order any issue between
the judgment creditor and the judgment debtor to be tried in any manner in which an issue
in an action may be tried. The court on hearing the application may set aside the registration
if satisfied that a sufficient reason has been shown for setting aside the registration.

Executing the Foreign Judgment – Order 71 r 10

The judgment creditor of a registered foreign judgment shall not execute it until after the
expiration of the period within which to set aside the registration. Where an application is
made to set aside the registration of a foreign judgment, execution of the judgment shall not
be issued until after the application is fully determined and the Registrar of the Court is
satisfied that the notice of the registration of the judgment and any order of the court have
been served on the judgment debtor.

Interpleader Proceedings- Order 48

Order 44, rule 2(5) of C.I 47 permits all property of the judgment debtor, whether movable
or immovable, held in the judgment debtor’s name or by another person in trust for the
judgment debtor to be attached and sold in the execution of the judgment or order.
However, where property which does not belong to the judgment debtor is wrongly
attached in the execution of a judgment, the person whose property has been wrongly
attached will have to put in a claim against the execution. The claim put in by the owner of
the property commences interpleader proceedings. An interpleader is an application by a
party who is in possession of a property praying the court to invite persons interested in the
property to attend court and contest title to the property so that it can be determined who
has legal title to the property.

Under Order 48 rule 1 of CI 47, there are two types of interpleader proceedings. These are
the Registrar’s Interpleaders and Stakeholder’s Interpleader.
 E.A. AFENYO

Registrar’s Interpleader

The Registrar’s interpleader occurs where the Registrar in executing a judgment, seizes the
property or intends to seize property allegedly belonging to the judgment debtor and a
person other than the judgment debtor claims the property. In such situation, the person
who lays claim to such property (the claimant) is required to file a Notice of Claim to the
Registrar of the court where the writ of execution is issued. The notice of claim is then
served on the judgment creditor who is required to file a Notice to either admit or deny the
claim. Where the claim is admitted by the judgment creditor, the property is restored to the
claimant. Where the claim is denied by the judgment creditor, the Registrar is required to
initiate interpleader proceedings to determine whether the property belongs to the claimant
or the judgment debtor.

In Salama v Sharani, Abban J succinctly stated that

“Interpleader proceedings should not be confused with an ordinary action.  The most
important object of these interpleader proceedings is to enable the deputy sheriff, who has
seized the property and is now in possession thereof, to obtain a relief and to get a decision
of the court as regards the person to whom he has to release the property”

M.S. obtained judgment against Z. and proceeded to attach a house in the possession of Z. in
execution of the judgment.  A.S., a brother of Z., put in an interpleader, claiming that the
house in question was not the self-acquired property of Z. but was family property.  In the
course of his address after evidence had been led on both sides as to the ownership of the
house, learned counsel for the claimant contended that the court ought to have made the
judgment creditor the plaintiff in the interpleader proceedings because the burden was on
him to show that the house he had caused to be attached belonged to the judgment debtor.

Held:

(1)  the most important object of an interpleader suit was to enable the deputy sheriff against
whom the claim was made and who had seized the property and was now in possession
thereof, to obtain relief and to get a decision of the court as regards the person to whom he
had to release the property.

(2)  In an interpleader proceedings for a claim of property attached, possession at the time of
attachment determined who was to be the plaintiff and must therefore undertake the burden
of proof. Whoever happened to be in possession of the property, at the time of seizure, was
supposed to have nine-tenths of the law and therefore had a lighter burden of proof.  If the
claimant happened to be in possession then he was made the defendant; if on the other hand
the judgment debtor was in possession at the time of seizure as in the present case, the onus
of proof would be on the claimant and he would have to be made the plaintiff.  The words
"plaintiff " and defendant in L.N. 140A of 1954, Order 57, r. 7 were not used in their technical
sense because this was not an action. 

Tetteh v Mensah

Order 57, r. 10 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) gave
discretionary powers to the High Court to bar a claimant who failed to comply with orders
of the court in an interpleader suit and whose action was dismissed on that ground from
instituting a fresh action.  However, where the judge did not exercise that discretion to bar
the claimant, the claimant would not be prevented from instituting an action to defend his
 E.A. AFENYO

title to property seized in execution of a judgment debt.  Since the trial court did not exercise
its discretion to bar the plaintiff on dismissing the interpleader suit, the judge who
continued the case after that order erred in holding that the dismissal of the interpleader suit
barred the plaintiff from instituting the instant action.

Afari v Nyame

A purchaser at a sale in execution acquires nothing more than the right, title and interest of
the execution-debtor.  In July, 1951, Kwame Amponsah Darko had no right, title or interest
in the farms in dispute because he had already disposed of the same to the respondent as far
back as December, 1950.  Therefore Amponsah Darko obtained no title to the farms in
dispute by the sale under the attachment.  Consequently, the respondent who bought from
the said Amponsah Darko, also acquired no right, title or interest in the land. 

A person whose property has been attached in execution of a decree against another person
is not obliged to interplead, therefore his omission to interplead will not operate as a bar to a
claim he makes against a person who purports to purchase the property at such a sale. 
Again if an owner of property wrongfully attached interpleaded, but the auctioneer sold the
property before he could have [p.601] notice of the interpleader, that sale will not preclude
the owner from bringing a substantive action against the execution-creditor, the auctioneer
and the purchaser or any of them for declaration of title or for trespass.  There may be no
irregularity in the conduct of the sale and therefore the sale may not be set aside; but the
validity or legality of the procedure and conduct of the sale does not of itself make the sale
effective to pass any right, title or interest in the property to the purchaser if the execution-
debtor had no attachable interest in the property. 

Stakeholder’s Interpleader

The Stakeholder’s interpleader occurs where a person under liability for any debt, money or
goods and with no interest in the property (for eg: a bank), has been sued or expects to be
sued by rival claimants making adverse claims to the property in his possession. That person
applies for relief by a motion on notice to all claimants.

Where the person is already a defendant in the action, he or she can interplead at any time
the writ of summons is served on him or her. In such situation, the court will stay the
proceedings until the interpleader is determined.

The applicant in a stakeholder’s interpleader must show that he or she has no claim of
interest in the subject matter of the action; that he does not collude with the claimant and he
is willing to pay or transfer the subject matter into court and dispose of it as the court deems
fit.

At the hearing of the application for the interpleader, the court may order each claimant to
file their particulars of claim and either maintain or relinquish them. Any applicant who
wishes to maintain his claim must file his particulars within 7 days from the order of the
court. Any applicant who fails to file accordingly shall be deemed to have abandoned the
claim. At the hearing of the interpleader action, the court can order any of the claimants to
be the defendant in the action. Alternatively, the court may order that any issue between the
parties be stated and tried and the court determines which of the claimant becomes the
plaintiff or defendant. Where the parties consent or where the issues between the parties is
one of law and the facts are not in dispute, the court may determine the matter summarily
and make such orders as deemed fit.
 E.A. AFENYO

When a claimant fails to attend court in response to the court’s order or fails to comply with
any order of the court, the claimant and all people claiming under him or her shall be barred
from proceeding against the applicant. The order barring such a claimant will not affect the
rights of the claimants as between themselves.

It has been held that if a person fails to interplead upon the wrongful seizure of his or her
property, he or she could still commence an action against the purchaser of the property for
declaration of title. The action will be to the effect that the judgment debtor has no title or
interest in the property taken in execution and for that matter, no legal title could be
transferred to the purchaser.

Appeal In Interpleader Proceedings

Interpleader proceedings are regarded as interlocutory proceedings so any appeal against

any decision of the court after the determination of interpleader proceedings must conform
to the rules regarding interlocutory appeals (Agoti v Agbenoku).

It is important to note that under order 44 r 12, a person may make a claim to a property
taken or intended to be taken in execution. The notice of claim shall give notice to the
judgment creditor to either admit or deny the claim. Where the judgment creditor denies the
claim, the Registrar shall apply to the court for a relief. The court then proceeds to hear the
dispute in the same way as interpleader proceedings under order 48. However, when
judgment is given in proceedings under order 44 an appeal against such a decision shall be
lodged within 14 days from the date of judgment or order as provided by order 44 r 13(5).

APPEALS AND APPLICATION FOR REVIEW

Introduction

After judgment has been entered by the court, any party aggrieved by the decision may
appeal to the appropriate higher court. Persons who are not parties in an action but are
adversely affected by the decision of the court, may also appeal. This was held in John
Kwadwo Bobie v 21st Century Construction Co. Ltd.

An appeal is a process filed in an appellate court inviting the court to set aside or vary a
decision of a lower court on grounds that it was given in error of law or fact.

A respondent to an appeal may also cross-appeal or file a notice of variation of judgment.

This happens when a respondent also seeks the intervention of the appellate court to set
aside part of the judgment or vary the judgment. Cross-appeal is a term of art used in the
High Court and the Supreme Court. At the Court of Appeal, it is referred to as Notice of
Variation of Judgment.
 E.A. AFENYO

One of the most fundamental rules of appeals is that an appeal is a creature of statute. No
one has the right to appeal unless that right has been conferred by the constitution or by
statute.

This principle of law has received considerable mention in a wealth of decisions, namely,
Nye v Nye.

In Bosompem v Tetteh Kwame, the court famously couched the law thus, “no right of appeal
exists save as conferred by statute’.

Also, in In re Amponsah, it was stated that an appellate court has no inherent jurisdiction to
entertain an appeal from an order or decision given by a court below it. In all causes or
matters, an appeal lies only if given by statute.

Further, in Frimpong v Poku, Akuffo Addo JSC stated that a right of appeal is always
conferred by statute, and when a statute conferring the right lays down conditions
precedent to the vesting of that right in a litigant, it is essential that those conditions must be
strictly performed otherwise the right does not become vested’.

Persons to Appeal

The parties to the actions may appeal. Also, persons who are not parties in an action but are
adversely affected by the decision of the court, may also appeal.

In the case of John Kwadwo Bobie v 21st Century Construction Co Ltd, the Supreme Court
held that an aggrieved person, who was not a party to a suit may seek leave of the appellate
court to appeal against a judgment that affects him.

Types of Appeal

a. Appeal against a final decision-where a judgment finally disposes of the rights of the
parties in the case then it is final.
b. Appeal against an interlocutory decision-if the decision does not finally dispose of
the rights of the parties, then the decision is interlocutory. It does not deal with
substantive matters.

In Pomaa & Others v Fosuhene, it was stated that an inference whether a decision or order
was final or interlocutory was dependent essentially on the nature of the decision or order
and consequently on the answer to the question whether the decision or order disposed of
the rights of the parties or the matter in controversy. An interlocutory decision did not
assume finally to dispose of the rights of the parties. It was an order in procedure to
preserve matters in status quo until the rights of the parties could be determined. The test
was not to look at the nature of the application but at the nature of the order made’.

Similarly held in Karletse – Panin v Nuro.

 E.A. AFENYO

Commencement of Appeals

An appeal is commenced with the filing of NOTICE OF APPEAL. The Notice of Appeal
must be filed within the time prescribed by the respective statute or rule that regulates the
appeal.

The Notice of Appeal must be filed in the registry of the court that delivered the judgment,
which is the subject of the appeal and must be served on the respondent.

Upon filing the notice of appeal, the Registrar shall include in the record any process whose
inclusion is objected to by a party. When the record of appeal is completed, it will be
despatched to the appellate court and the parties will be invited to purchase their copies.

Time to File Appeals

The time periods for filing appeals are of extreme importance because the appeal will be
struck out of filed out of time specified in the rules.

The rationale underlying the necessity for time limits was emphasized by the Supreme
Court in Doku v Presbyterian Church of Ghana. The position taken was that it was in public
interest that there should be an end to litigation, and accordingly the Supreme Court had set
limits to guide litigants with a view to achieving certainty and procedural integrity,
otherwise litigants in appeals may conveniently take their time to resurrect litigation.

The significance of times for filing appeals was further emphasized in Tindana (No.2) v
Chief of Defence Staff and AG when the court reached the conclusion that, the issue of
whether or not an appeal was filed outside the statutory period was one which went to
jurisdiction.

Appeals from District Court to High Court – Order 51 of CI 47

All civil appeals from the district court lie in the High Court.

Final Decision

The time limited for appeals against a final decision is 3 months from the date the
judgement was delivered.

This time can be extended by the District Court or the High Court upon an application
brought not more than one more after the expiration of the original time allowed for the
appeal (3 months).

Interlocutory Decision

The intending appellant must first seek leave of the District Court within 14 days from the
date of the decision.

If the leave is refused by the District Court, it must be repeated in the High Court within 14
days from the date of the refusal.
 E.A. AFENYO

In any case, the Notice of Appeal shall be filed within 14 days after the leave either by the
District Court or the High Court.

Appeals from Circuit Court

Civil appeals from the Circuit Court lies in the Court of Appeal and is regulated by Rule 9 of
the Court of Appeal Rules, CI 19 as amended and section 11 of the Courts Act, Act 459.

Final Decision

The party has 3 months from the date of the judgment to appeal unless the Court below or
the Court of Appeal extends the time upon application.

The time can be extended by the Circuit Court or the Court of Appeal upon an application.

However, no application for extension of time in which to appeal shall be made after the
expiration of 3 months from the expiration of the time prescribed, that is the initial three
months.

No application shall be made to the Court for extension of time within which to appeal after
6 months from the date of the decision appealed against.

Where a person has applied to the court below for extension of time within which to appeal
and after a period of not less than one month the court below fails or refuses to grant the
application, the applicant may subject to sub-rule (5) of this rule move the Court to
determine the application.

Interlocutory Decision

The party must first seek leave of the Circuit Court, within 21 days from the date of the
order.

When the application for leave is refused, the party must repeat the application in the Court
of Appeal within 21 says from the date of the refusal.

Where the leave is granted either by the Circuit Court or the Court of Appeal, the party shall
then file the Notice of Appeal within 21 says in the registry of the Circuit Court.

In all cases, the time prescribed for the filing of interlocutory appeals shall not be extended.

Appeals from the High Court

A party aggrieved by a decision of the High Court may appeal to the Court of Appeal.

Interlocutory Decision

If the decision is an interlocutory decision, the party has a right to file the Notice of Appeal
within 21 days from the date of the judgment. The party does not leave to appeal against the
decision as is the case for interlocutory decisions of the Circuit Court and District Courts.
However, it is important to bear in mind that the 21 days is not subject to extension.
 E.A. AFENYO

The Supreme Court in Opoku v Axes Co Ltd. ruled that, while an application may be made
for an extension of time within which to appeal against the final decision of the trial court to
the CA. No such extension is permissible for interlocutory rulings.

Final Decision

The party intending to appeal has 3 months from the date of the judgment to file the appeal.

The time may be extended by the High Court or the Court of Appeal, but the application for
extension shall not be brought after the expiration of 3 months from the expiration of the
time prescribed for filing the appeal.

No application shall be made to the Court for extension of time within which to appeal after
six months from the date of the decision appealed against.

Where a person has applied to the court below for extension of time within which to appeal
and after a period of not less than one month the court below fails or refuses to grant the
application, the applicant may move the Court to determine the application.

Appeals from the Court of Appeal

The time limits for filing appeals from the court of appeal to the Supreme Court is virtually
the same as that from the High Court to the Court of Appeal.

Under Rule 8 of the Supreme Court rules, 1996, CI 16 as amended, a party intending to
appeal to the SC against an interlocutory order of the Court of Appeal may file the appeal
within 21 days.

Final Decision

The time for filing appeals against final decisions is 3 months, unless the time is extended by
the Court below or the Supreme Court.

However, no application for extension of time to appeal against a final decision shall be
brought after 3 months from the end of the period prescribed for filing an appeal.

Under rule 8(6), where a person has applied to the court of appeal for an extension of time
within which to lodge a civil appeal and after a period of not less than one month, the
application is refused or dismissed, the applicant may move the Supreme Court to
determine the application.

Per Article 131(1)b of the Constitution, a party who intends to appeal against the decision of
the Court of Appeal in a cause or matter that originated from a court lower than the High
Court must first seek leave of the Court of Appeal. The Court of Appeal will only grant the
leave if satisfied that the case involves a substantial question of law or is in the public
interest.
 E.A. AFENYO

Per Rule 7 of CI 16, the application for leave to appeal under 131(1)b shall be on notice and
filed in the Court of Appeal within 14 days from the date of the decision against which leave
of appeal is sought.

An application for special leave to appeal under Article 131(2) of the Constitution shall be by
motion on notice and filed in the Supreme Court within 14 days after the refusal of the Court
below to grant leave to appeal.

The Supreme Court has held that a party intending to appeal against the decision of the
Court of Appeal in a repeat application must seek leave of the Supreme Court before filing
the appeal.

For example, an applicant in a repeat application for stay of execution who is dissatisfied
with the decision of the Court of Appeal and intends to appeal to the Supreme Court needs
to obtain the special leave of the Supreme Court before filing the appeal against the decision.

In Kwasi Owusu and Another v Joshua Nmai Addo and Another, the Supreme Court held
among others that the right to appeal to the court in respect of an order of the Court of
Appeal dismissing a repeat application is not an automatic right but one carefully
circumscribed by Article 131(2) of the Constitution. It is a right exercisable by special leave.

Appeal from the National House of Chiefs

Under Article 131(4) of the Constitution, an appeal from a decision of the Judicial Committee
of the National House of Chiefs shall lie in the Supreme Court with the leave of the judicial
committee or the supreme court.

Time to cross-appeal or apply for variation of judgment

Rule 9 of CI 16 provides that a respondent who intends to cross-appeal shall do so within 14

days after the service of the Notice of Appeal on him or her.

Rule 15 of CI 19 provides that a respondent has to file the notice of that judgment to be
varied within one month from the date of service on him or her of the Notice of Appeal.

Computation of time for appeal

By section 44(3) of the Interpretation Act, where an enactment provides than act shall be
done from or after the date of judgment, the date of judgment shall not be counted.

Preliminary Objections

A respondent who intends to raise a preliminary objection to the hearing of an appeal shall
give notice to the appellant. Under rule 16 of the Court of Appeal rules, the respondent is
required to give the appellant three clear days notice.

Contents of Notice of Appeal

According to rule 8(2) of the Court of Appeal Rules, CI 19, the Notice of Appeal contains:
 E.A. AFENYO

a. the whole of the decision which is being appealed against or the specific part
complained of;
b. the grounds of appeal
c. the reliefs sought’
d. the parties who would be affected by the appeal (names and addresses within the
jurisdiction)
the appellant is bound by the grounds of appeal, even though a party has the right to file
additional grounds by way of amendment. Leave must be sought first for the amendment of
the grounds.

When the court raises a ground of appeal on its own motion, the parties must be given the
opportunity to argue that ground before the court can rest a decision on the ground so
raised.

The appellate court may strike out grounds that are argumentative or narrative.

If the grounds of appeal allege misdirection or error of law, the appellant shall provide the
particulars of the misdirection and error of law, in the Notice of Appeal. This is to give the
court and respondent advance notice of such errors or misdirection so that there could be an
early response to facilitate the disposal of the appeal.

The rules also provide that the ground of appeal should not be vague or in general terms or
such that it discloses no reasonable ground of appeal, except the general ground that the
judgment is against the weight of evidence.

The rules allow a party to allege in the grounds of appeal that the judgment is against the
weight of evidence adduced at the trial. This ground is what is referred to as the omnibus
ground. Where this ground is alleged, the onus is on the appellant to show that the trial
court failed to consider relevant evidence on record before arriving at its decision.

The Supreme Court has recently held in Owusu-Domena v Amoah that both factual and
legal arguments could be made under the omnibus ground of appeal and in particular
where the legal arguments would help promote the determination of the factual matters.

Power of Court on Hearing Appeal

An appellate court upon hearing an appeal may make any of the following orders:

a. the court may rehear the case or remit it to the court below to be heard de novo
b. the court may direct the court below to inquire into matter and certify its finding
before judgment is delivered.
c. Allow the entire appeal or in part.
d. Dismiss the appeal
e. Make fresh orders that ought to have been made by the trial order.

Conditions of Appeal

The conditions of appeal are the requirements necessary for processing the appeal such as
filing of Notice of Appeal, depositing security for costs, etc…
 E.A. AFENYO

The general rule is that the appellate courts shall not entertain appeals unless the conditions
of appeals as set out in the Rules of Court have been fulfilled by the appellant. This is
embedded in section 4(5), section 11(7) and section 21(4) of Act 459 in respect of the
Supreme Court, Court of Appeal and High Court’s appellate jurisdictions.

In Agbeyewu v Ocansey, it was held that an appeal which fails to fulfill the conditions of
appeal is incompetent.

PROBATE AND ADMINISTRATION OF ESTATE – ORDER 66

Probate simply means an application to the court to grant you authority to administer the
estate of a deceased in a will you have been appointed executor.

Grant of Probate or L/A

Under Order 66 rule 1(1) of C.I 47, application for probate or letters of administration in
respect of the estate of a deceased person may be made only to the court with jurisdiction
where the deceased had as at the time of his death a fixed place of abode.

However, where a person dies within or outside the country without a fixed place of abode,
the court in the area where any property of the deceased may be found shall have
jurisdiction for the purpose of the grant of probate or letters of administration.

Order 66 rule 1(3) provides that where there are properties within more than one court, the
application shall be made to only one of the courts in respect of all the properties.

Powers of Court in Probate and Administration Actions

Order 66 rule 2 empower a court to which an application for probate or letters of

administration is made may make such interim orders or measures to preserve the property
of the deceased and take such necessary measures it considers necessary.

By Order 66 rule 57, the court may make a grant for the preservation of an estate of a
deceased even before those entitled to the grant apply; such a grant may be made ex parte
upon the application of a creditor of the deceased or a person with interest in the estate.

Intermeddling

This occurs where a person not named as executor or appointed by the court as an
administrator takes possession of or otherwise deals with property of a deceased person.
Such person shall be subject to the same obligations and liabilities as an executor or
administrator. In addition, be guilty of the offence of intermeddling and liable on summary
conviction to a fine not exceeding 500 penalty units or twice the value of the estate
intermeddled with or to imprisonment for a term not exceeding 2 years or to both.

This is the rule in Order 66 rule 3 of CI 47.

 E.A. AFENYO

The Court in In Re Appau (decd); Appau v. Ocansey held that it was explicit that a person
who merely took possession of or administered the estate or asset of a deceased person was
liable for intermeddling so long as that person was not an administrator.

Being a Customary Successor is no defence to intermeddling. In the same In Re Appau

(Decd); Appau v. Ocansey, a customary successor was considered a minority interest holder
in the estate of the deceased under the Intestate Succession Law 1985, PNDCL 111 and
therefore was not justified in selling the deceased vehicles before letters of administration
was granted.

Under Section 61 of the Administration of Estates Act, 1961 (Act 63) as well, a grant of
probate is necessary to entitle an executor to administer the property, whether movable or
immovable. However, before probate the executor may, for the benefit of the estate,
exercise the functions which pertains to his office but shall not be entitled to make a
disposition of property.

Neglect to apply for probate

Order 66 rule 4 provides that where a person named executor in the will of a deceased
person takes possession of and administers or otherwise deals with any part of the property
of the deceased, and does not apply for probate within three months after the death, or
after the termination of any proceedings in respect of probate or administration, the person
may in addition to any other liability which the person may incur, be guilty of contempt of
Court, and shall also be guilty of the offence of intermeddling and liable on summary
conviction to a fine not exceeding 500 penalty units or to imprisonment for a term not
exceeding 2 years or to both.

The Court of Appeal in Eric Akwetey Siaw and Others v Tetteh Siaw-Sappore and Others
held that a court handling an estate matter in a civil proceeding, can deal with the offence of
intermeddling although it is a criminal offence.

Production and Examination of Testamentary Papers

Under Order 66 rule 5 of CI 47, the court may order any person who has in his possession a
document purported to be a testamentary of a deceased person to produce such document
in court.

Also, where it appears to the court that there are reasonable grounds to believe that a person
has knowledge of any paper purporting to be a testamentary document, the court may order
such a person to appear and be examined in court and for the paper to be produced,
pursuant to Order 66 rule 6 of CI 47.

The Court is empowered to make such orders and examination, whether or not any
proceedings relating to probate or administration is pending before the Court.

Notice to Executors to Prove Will or Renounce Probate

In Order 66 rule 7, the court may of its own motion or on the application of any person who
claims an interest under a will give notice to the executors named in the will to come in and
prove the will or renounce probate.
 E.A. AFENYO

The executors or any one or more of them shall within 14 days after receipt of the notice
come in and prove the will or renounce probate.

Where the executor fails to prove the will or renounce probate as required then the right of
executorship shall be extinguished and an application for letters of administration with will
annexed may be made by the person entitled to it.

In In re Duncan (Dec’d): Duncan v Duncan, it was held that “the circumstances under which
letters of administration with will annexed would be granted were:

1. Where the will appointed no executors,

2. Where the executor appointed in the will predeceased the testator or died before the
administration of the estate was carried out;
3. Where the executor had renounced or refused to act;
4. Where the appointment of the executor was void for uncertainty.

Application for Probate

a. Motion ex parte
b. Affidavit by the executors identifying the deceased person, as well as the named
executors; the place and date of death of the deceased; the date of the last will; last
place of abode of the deceased; value of the estate;-in compliance with Order 66 rule
8 and 9(1)
c. Oath for Executor-this is a statutory form to be completed and signed by the executor
before a Commissioner of Oaths.
d. Affidavit of witness in proof of due execution of a Will-this is also statutory form to
be completed by the attesting witnesses.
e. Declaration of movable and immovable property of the testator-this is also a
statutory form to be completed and signed by the executors.
f. Death Certificate or any evidence of death-in compliance with Order 66 rule 9(2)
g. Copy of the last Will.

Application for Letters of Administration

a. Motion ex parte
b. Affidavit by applicants identifying the deceased person, naming the applicants and
their interest in the estate; the place and date of death of the deceased; last place of
abode of the deceased; value of the estate; whether married and survived by spouse;
names of children and their ages-Order 66 rule 8 and 9(1)
c. Affidavit of head of family confirming facts as contained in the affidavit of the
applicants.
d. Oath of Administrators not with will annexed-this is a statutory form to be
completed by applicants.
e. Declaration of movable and immovable property of the testator or intestate-this is
also a statutory form to be completed and signed by the executors.
f. Death Certificate or any evidence of death-Order 66 rule 9(2)
 E.A. AFENYO

Notice of Grant

According to Order 66 rule 10, when an application for letters of administration is granted,
notice shall be posted for not less than 21 days or such other period as the court may order
in the following manner:

A. On the notice board of the court where the application was made;
B. Any public place within the jurisdiction of the court where it is likely that notice will
be seen by those who have interest in the estate; and
C. The last known place of abode of the deceased person.

Caveat

A caveat is a notice filed by a person who is interested in the estate of the deceased person
requesting that nothing is done in the estate of the deceased person until he or she has been
heard.

By filing a caveat, the person is in effect stating that no grant of probate or letters of
administration is issued without notice to him or her.

In Moran v. Place, Lord Lindley stated that: A caveat is not a notice to any opponent in
particular. It is a notice to the registrar or office of the court not to let anything be done by anybody in
the matter of the will or goods of the deceased, without notice to the person who lodges the caveat

The caveat is filed either before or after an application has been made for probate or letters
of administration, but before the grant.

What happens when a caveat is filed?

When a caveat is filed, it shall be brought to the notice of the court by the Registrar and the
effect of the caveat is that nothing ought to be done on the application until the caveator is
heard. The court shall then direct the Registrar to notify the applicants or their lawyer of the
caveat that has been filed. The caveat shall remain in force for 3 MONTHS from the date of
filing but can be renewed from time to time.

Under order 66 rule 11(8), the person who files the caveat shall be warned by the Registrar
at the instance of the applicant or persons interested in the estate to file an affidavit of
interest stating the nature and particulars of any interest that person may have in the estate
of the deceased.

If the warning is ignored the applicant shall move the court in respect of the motion for
grant of probate or letters of administration and where the court deems it fit, order that
notice be served on the caveator. However, if it is obeyed a copy of the affidavit filed is
served on the applicant. The applicant shall then move the court to grant probate or letters
of administration on notice to the caveator.

When the motion comes on for hearing and the parties agree among themselves as to the
person to whom a grant of probate or letters of administration shall be made, the court will
order the removal of the caveat and a grant be made to that person.
 E.A. AFENYO

Where there is no agreement the court shall determine who is entitled to a grant of probate
or letters of administration summarily or may order the applicant to issue a writ against the
caveator with 14 days from the date of the order to determine who is entitled to grant of
probate or letters of administration.

Exceptions

The mere filing of an affidavit by a caveator does not automatically require that the court
direct the applicant to issue a writ. The affidavit must disclose the caveator’s interest. This
position of the law was reflected in In Re Ennin Alias Bodom (decd); Nti v. Serwaah

The law provides requires that, letters of administration should not be granted unless the
caveat is removed. Case for reference is In Re Hervie (decd); Addo v. Boye & Anor

Order for Priority for Grant where Deceased leaves a Will

Order 66 rule 12

(1) Where a person dies leaving a will, the person entitled to grant of probate or letters of
administration with the will annexed shall be determined in accordance with the following
order of priority

(a) the executor(s) named in the will;

(b) any specific legatee or devisee or any creditor or the personal representative of any such
person, provided that administration shall be given to a living person in preference to the
personal representative of such a deceased person who would, if living be entitled in the
same degree;

(c) any legatee or devisee whether residuary or specific who claims to be entitled on the
happening of any contingency;

(d) any residuary legatee or devisee holding in trust for any other person;

(e) the ultimate residuary legatee or devisee where the residue is not disposed of by the will;
or

(f) any person who has no interest under the will of the deceased but who would have been
entitled to a grant if the deceased had died intestate

Order of Priority of grant where a Person Dies Intestate after Enactment of P.N.D.C.L. 111

Order 66 rule 13

Where a person dies intestate on or after 14th June 1985, the persons who have beneficial
interest in the estate of the deceased shall be entitled to a grant of letters of administration in
the following order of priority

(a) any surviving spouse;

(b) any surviving children;

(c) any surviving parents;

(d) the customary successor of the deceased

 E.A. AFENYO

The order of priority seems to depend on the quantum of the applicant’s share. Case for
reference is In Re Essuman (decd); Essuman & Anor v. Teschmaker

Grant to two or more persons entitled in the same degree

Order 66 rule 14

The number of persons to whom a grant of letters of administration may be made shall not
exceed four. Where two or more persons are entitled to a grant in the same degree, the Court
may make a grant to any one of them without joining the o88thers.

Where there is a dispute between persons entitled to a grant in the same degree, the Court
shall summarily determine the dispute and may make a grant to such of them as it considers
fit.

Under section 77 of the Administration of Estate Act, 1961, Act 63, if there is any beneficiary
under an estate who is an infant or if a life interest arises under a will or intestacy, then there
must be at least two individuals or trust corporation with or without an individual as the
administrator.

Citation to refuse or accept grant of probate

Order 66 rule 15

(1) Where a person who has a prior right to a grant of probate or administration delays or
refuses to take it and does not agree to renounce the person’s right, a person who has an
inferior right may serve a notice on the person with prior right calling on the person with
prior right to take a grant or renounce the right.

(2) If upon being served with a notice under subrule (1), the person with prior right does not
apply for a grant or renounce the right within fourteen days, the person serving the notice
may apply for a grant and the Court shall make a grant to the applicant if it is of opinion
that it is desirable to do so.

The effect is that where an executor declines to take probate or there is inaction on his part, a
person with an inferior right may serve notice on the executor (who has a prior right) calling
on him to take a grant or renounce the right.

If within 14 days the person with prior rights does not apply for a grant or renounce the
right, the Court will proceed to make a grant to the person with inferior interest. The process
is known as clearing off.

Double Probate

Order 66 Rule 24 of C.I.47 provides for the grant of double probate.

Where on the grant of probate, the estate of a deceased is granted to one of the executors
named in the will, the Court may make the same grant to any other executor named in the
will, and the grant shall be as in Form 33 in the Schedule.
 E.A. AFENYO

In certain circumstances an original grant of probate may not be made to all the executors
under the Will. And at a subsequent date, a further grant to the excluded executors is made.
The two grants run concurrently. Principle of law was established In Re Walton (decd);
Walton v. Acquah.

Proof of Wills

This refers to proceedings taken in court to admit the Will of a deceased person to probate,
signifying that the will is valid. There are two methods by which a Will is proved in court.
These are proof will in common form and proof will in solemn form.

Proof of Will in Common Form

Where there is no dispute a will is proved in common form under Order 66 rule 25

The Order provides that where a will appears regular on the face of it, and there is no
dispute as to its validity, an application for probate may be sufficiently supported by an
affidavit deposing to due execution and attestation of the will and by such other documents
or papers as the court may require. Case for due reference of this law is Yankah & Ors v.
Administrator-General and Anor.

Proof of Will in Solemn Form

Order 66 rule 26(1): Where for any reason the executors of a will are in doubt as to its
validity or the validity of the will is disputed, the executors may if they consider it necessary
to do so, prove the will in solemn form in an action commenced by writ asking the Court to
pronounce the will as valid.

Details of the procedure in Order 66 Rule 26 of C.I 47.

(2) Any person who claims to have an interest in the estate of a deceased person may by
notice in writing request the executors named in the will of the deceased to prove the will in
solemn form.

(3) The notice required to be given under subrule (2) shall state

(a) the name, address, and description of the person filing it;

(b) the interest the person has in the estate of the deceased; and

(c) the specific grounds upon which the validity of the will is disputed.

(4) The notice must be signed by the person who desires proof in solemn form or by the
person's lawyer and shall be filed in the registry and served on all executors named in the
will and the beneficiaries under the will.

(5) Where a notice is served on an executor under subrule (4) the executor shall not later
than 8 days after the service, file in the registry an answer to the notice stating the intention
of the executor either to prove the will in solemn form or to renounce probate and the
Registrar shall upon receiving such answer serve the person who files the notice with a copy
of the answer.

(6) If an executor who is served with notice under this rule declares the intention to
renounce probate or fails to file an answer as required under subrule (5)
 E.A. AFENYO

(a) the right of the executor to executorship shall wholly cease and the representation of the
testator and the administration of the estate may be effected as if the executor had never
been appointed; and

(b) in the case where the executor defaults in filing an answer and shows good cause for
failing to file it, the Court may extend the time within which the executor must file an
answer.

(7) An extension of time given under subrule (6) (b) shall be upon such terms if any, as the
Court may see fit to impose.

Rule 27—Issue of Writ to have will Pronounced Valid

(1) An executor who files an answer under subrule (5) of rule 26 stating the executor's
intention to prove the will, shall not later than eight days after filing an answer, issue a writ
claiming that the will must be pronounced valid and admitted to probate.

(2) If the executor fails to issue a writ within the time specified in subrule (1) the person who
issues the notice may apply to the Court for an order that the right of the executor to the
executorship shall cease, and the Court may either make that order or extend the time
within which the executor must issue a writ and upon such terms, if any, as it considers just.

(3) A writ issued under subrule (1) shall join as defendant the person who issues the notice
calling on the executor to prove the will in solemn form; and the Court may either of its own
motion or on application, join as plaintiff or defendant any person who claims or appears to
have an interest in the estate of the deceased.

(4) Where the executor who files an answer under rule 26(5), renounces probate or having
been served with a notice fails to file an answer or having filed an answer fails to issue a writ
and the Court makes an order under subrule (2), any person named as a beneficiary in the
will may issue a writ to establish the validity of the will and to claim grant of letters of
administration with will annexed.

(5) In an action brought under subrule (4) the person who files and serves a notice on the
executor shall be joined as a defendant but the Court may either on application or of its own
motion, order to be joined as plaintiff or defendant any person who claims, or appears, to
have an interest in the estate.

Rule 28—Action to Declare will Invalid

(1) Any person who claims to leave an interest in the estate of a deceased testator may,
instead of issuing a notice to the executor to prove the will under rule 26 (2) of this Order,
bring an action against the executor for a declaration that the will is invalid.

(2) In an action brought by an interested party under subrule (1), the Court may join as
plaintiff or as defendant any person who claims or appears to have an interest in the estate
of the deceased.

Rule 29—Action to revoke grant of Probate or Letters of Administration

(1) Where grant of probate or letters of administration has been issued, any person who
seeks to have the grant revoked by the Court may issue a writ to seek the relief.
 E.A. AFENYO

PROBATE ACTION

Order 66 rule 32

It is an action instituted for the court to determine who has the right to apply for and receive
Letters of Administration (with or without will annexed) or a probate to distribute the
estate of the deceased persons or to revoke the grant of any such of such authorities.

A probate action is an action commenced with a writ for any of the following:

a. Grant of probate or letters of administration of a deceased person;

b. For the revocation of the grant of probate or letters of administration;
c. For an order or judgment pronouncing for or against the validity of a Will.

Order 66 rule 33

A probate action shall be commenced by writ. The writ must be accompanied with a
statement of claim and indorsed with a statement of the nature of the interest of the plaintiff
and of the defendant in the estate of the deceased.

Under Order 66 rule 37, when an action is brought for the revocation of a grant of probate or
letters of administration of the estate of a deceased person, the plaintiff shall serve a Notice
on the person to whom the probate or letters of administration is granted requiring such
person to deposit with the registrar of the court, the probate or letters of administration.

A person served with the notice shall comply not later 4 days from the date the notice was
served. Where a person fails to comply with the notice, the plaintiff shall apply to the court
for an order that the person deposits the probate or letters of administration with the
Registrar of the court within such time that the court will specify.

Intervention

Order 66 rule 34

A person not already a party to a probate action may apply to the Court for leave to
intervene in the action. The application must be supported by an affidavit which shows the
interest of the applicant in the estate of the deceased and shall be served on all the existing
parties.

Where the Court grants leave under this rule, it may give such directions as to the service of
pleadings, filing of affidavit or of testamentary scripts and other matters as it considers
necessary.

Application for notice to an interested person

Order 66 rule 35

On the application of the plaintiff or of any other party who has pleaded in a probate action
a notice may be issued against any person not already a party to the action who has an
interest adverse to the applicant notifying that person that if that person does not enter an
appearance in the action, judgment may be given without further notice to that person.
 E.A. AFENYO

A notice under this rule shall be issued out of the registry and shall be accompanied by an
affidavit sworn by the applicant specifying the alleged adverse interest of the person on
whom it is served. Issue of a notice takes place upon its being sealed by the Registrar.

A notice issued under this rule shall be served personally unless in a particular case the
Court considers it necessary to order some other mode of service.

Appearance

Order 66 rule 36

A person authorized to intervene shall enter appearance within the time specified in the
order authorizing him or her to intervene or within 8 days from the date of service of the
order.

No judgment in default of appearance shall be taken in a probate action. Where the

defendant fails to enter appearance, the plaintiff shall file an affidavit of due service of the
writ and statement of claim and set down the action for trial.

Affidavit of Testamentary Script

Order 66 rule 38

In this rule "testamentary script" means a will or a draft of it, written instructions for a will
made by or at the request or under instructions of the testator and any document purporting
to be evidence of the contents or to be a copy of a will which is alleged to have been lost or
destroyed.

Unless the Court otherwise directs, the plaintiff and every defendant who has entered an
appearance in a probate action shall swear an affidavit describing any testamentary script of
the deceased person whose estate is the subject of the action.

The affidavit shall disclose whether the party has knowledge or possession of any
testamentary script of the deceased or that he does not know the person has possession of
any testamentary script.

The affidavit of testamentary script shall be filed within 14 days after the entry of
appearance or where no appearance is entered, it must be filed before the action is set down
for trial. Any testamentary script in possession of a party shall be annexed to the affidavit.

Pleadings in Probate Action

Order 66 rule 40

Every writ in a probate action shall be accompanied with a statement of claim which shall be
served on the defendant in the action and any person who intervenes.

Every defendant who is served with a writ and a statement of claim and who enters an
appearance shall file a statement of defence not later than fourteen days after appearance.
 E.A. AFENYO

Where the plaintiff in a probate action disputes the interest of a defendant, the plaintiff shall
state in the plaintiff's statement of claim that the plaintiff denies the interest of the
defendant.

In an action for the grant of letters of administration, in which a person is disputing the
claim by another, the person disputing the claim must put in his pleading that if the
allegations made are proved, the disputing person would be entitled to an interest in the
estate.

Any party who pleads that at the time when a will, the subject of the action is alleged to
have been executed, the testator did not know and approve of its contents shall specify the
nature of the case on which the party intends to rely.

A party pleading that a testator did not know or approve of the contents of a Will shall
plead the following:

(a) that the will was not duly executed;

(b) that at the time of the execution of the will, the testator was not of sound mind, memory
and understanding;

(c) that the will was a forgery; or

(d) that the execution of it was obtained by undue influence or fraud.

Counterclaim

Order 66 rule 41

A defendant to a probate action who alleges that the defendant has any claim or is entitled
to any relief or remedy, in respect of any matter relating to the grant of probate or letters of
administration of the estate of the deceased person which is the subject of the action, shall
add to the defence a counterclaim in respect of the claim, relief or remedy.

Default of Pleading

Order 66 rule 42

No judgment in default of pleadings shall be entered. Where a party fails to file a pleading,
the other party shall with the leave of the court set down the action for trial.

Discontinuance of Probate Action

Order 66 rule 43

A probate action can only discontinue the action with the leave of the court and upon
discontinuance of the action, the court may further order the grant of probate or letters of
administration to the person so entitled.

ADMINISTRATION ACTION
 E.A. AFENYO

Order 66 rule 44

This is an action in aid of the administration of the estate of a deceased person under the
direction of the court, or for the execution of a trust by a Will under the direction of the
court.

In the course of administering of an estate, there could be challenges that can only be
resolved by the court.

Administration action is that action which is brought to court for direction as to how an
estate could be administered to ensure that justice is done to the estate of a deceased person.

Administration action may therefore be brought for any of the following:

a. any question that arises in the administration of the estate of a deceased person or in
the execution of a trust;
b. any question as to the composition of any class of persons who have a claim against
the estate of a deceased person or a beneficial interest in the estate of such a person
or in any property subject to a trust;

c. any question as to the right or interest of a person who claims to be a creditor of the
estate of a deceased person or to be entitled under a will or on an intestacy of a
deceased person or to be beneficially entitled under a trust.

Administration action also includes actions for the grant of the following reliefs:

(a) an order requiring an executor or administrator to furnish and if necessary, verify

accounts;

(b) an order requiring the payment into court of money held by a person in trust in the
person's capacity as executor, administrator or trustee;

(c) an order detecting a person to do or abstain from doing a particular act in the person's
capacity as executor, administrator or trustee;

(d) an order approving any sale, purchase, compromise or other transaction by a person in
the person's capacity as executor, administrator or trustee;

(e) an order directing any act to be done in the administration of the estate of a deceased
person or in the execution of a trust which the Court could order to be done if the estate or
trust were being administered or executed under the direction of the Court.

Parties to an Administration Action

Order 66 rule 47

Under this rule all executors or administrators of an estate or trustees of a trust shall be
parties to the action. Where an action is brought by the executors, administrators or trustees,
any of them who objects or does not consent to be joined as plaintiff must be made a
defendant in the action.
 E.A. AFENYO

However, persons who have beneficial interest in or claim against the estate or have
beneficial interest under a trust, the subject of an administration action need not be parties to
the action. But where appropriate, a plaintiff may make such persons parties having regard
to the nature of the relief claimed in the action.

Limited and Special Grants

These are grants that are made specifically to last for a period of time or to abide by the
occurrence of an event that are made by the court on application. Examples are:

Loss, damaged or unobtainable wills

where the original will or codicil is lost, destroyed or damaged, an application may be made
to the court, admitting the will to proof as contained in a copy, draft or by parol evidence.
Upon hearing such an application, the court may grant probate until the original will or
codicil or a more authentic copy is found. Further, where a will is unobtainable within the
jurisdiction because it is in the custody of a foreign court or official or person resident
abroad, duly authenticated copies may be admitted to probate either without limitation or
until the original copy is produced and admitted to probate.

Grant to persons with power of attorney

where a person entitled to a grant of letters of administration is resident outside the

jurisdiction, the court may make a grant to the person’s attorney for the persons use and
benefit until the person obtains a grant. With such applications, the power of attorney
appointing the Attorney must be notarised and deposited in the registry of the court. The
affidavit in support of the application shall be accompanied by an official copy of the power
of attorney. Where the person entitled to a grant is an executor, and he is outside the
country, a grant of letters of administration with will annexed may be made to his attorney
for the use of the person until the executor applies for and obtains the probate. Where there
are other executors the application will not be granted until a notice has been served on the
other executors. Under the circumstances of this case, the court will not grant probate to the
attorney so appointed, because the attorney is not named executor in the will. For that
matter, the court will grant letters of administration with will annexed, so that the
administrator so appointed shall administer the will.

Grant for use of minors

where the person entitled to the grant is less than 18 years, a grant shall be made to the
guardian for the child’s use and benefit until the child attains full age or age of majority,
 E.A. AFENYO

which is still 21 years. The affidavit in support of the application shall show that the person
entitled to the grant is not of full age and also provide particulars of the estate.

Where a sole executor is a child, his or her guardian may be granted letters of administration
with will annexed, until the child attains full age when a probate may be granted to the
person. The court may instead of making a grant to the child’s guardian, make a grant to any
other person as it deems fit. Where one of several executors is a child, probate may be
granted to any others provided the right of the child to a grant shall be reserved on the child
attaining full age. It is important to bear in mind that under order 66 r 50 (6), the right of an
executor who is a child to probate on attaining the age of 18 shall not be renounced by a
person on the child’s behalf.

Persons who can be made guardians

The rule identifies the following persons as those who can act as guardians of any child.

a. The child’s parents acting jointly including adoptive parents

b. A guardian appointed by one of the parents to be the testamentary guardian
after that parents death to act jointly with the surviving parent. But where
there is an objection by either the surviving parent or the testamentary
guardian either could apply to the court for directions.
c. Any guardian appointed by a court of competent jurisdiction in cases where
the child has no testamentary guardian or where the guardian has died or
refused to act or where the child has no parents or persons with parental
rights.

Disability Grants

Where a person entitled to a grant is medically certified as suffering a mental or physical

disability which makes him unable to manage his affairs, a grant may be made for his or her
use and benefit during the period of disability. The court will make a grant only to another
person if there are no persons entitled in the same degree as the person with disability.
Where one of several executors is with a mental or physical disability, a grant can be made
to the others. In the interest of the person with disability, the court may grant to a person
entitled to the residuary estate if there is a will or on intestacy to any person the court
considers fit where the person has an interest in the estate.

Incapacity after Grant

 E.A. AFENYO

Where a person to whom a grant is made later becomes incapacitated, the grant shall be
revoked and a new grant shall be made on the application of any person interested in the
estate or any other person as the court considers fit.

Grant in respect of person serving prison sentence

The court shall not make a grant to a person serving prison sentence. Where a person
entitled to a grant is in prison, a grant can be made to his or her attorney or the court may
appoint another person as administrator in his or her place. Where a person to who a grant
is made is subsequently jailed, the grant will be revoked and a new grant made to the
person’s authority.

Grant Limited by terms of a will

A testator may appoint a general executor and another as a special executor for a specific
purpose. Both may apply for a grant of probate but their powers shall be distinguished. If an
application is made by one of the executors, only a grant may be made to the one reserving
the right of the other executor.

Absolute Grant

Where any personal representative to whom a grant has been made resides outside the
country, the court on the application of any creditor or person interested in the estate of the
deceased may make limited grant to such persons until the absent personal representative
returns to the jurisdiction.

Grant for the preservation of the estate

The court may make a grant for the preservation of an estate before those entitled to a grant
apply. The applicant may be made ex parte by a creditor or a person who has interest in the
estate. A grant made by the court for the preservation shall be limited for the collection and
receipt of property that forms part of the estate and any other acts the court will direct. A
grant for preservation may be made to the Administrator-General.

Administration Pendente Lite

When a probate action is pending an application may be made to the court to grant
administration pendente lite in accordance with section 80 of the administration of estate act.
An application may be made by one of the parties to the suit or by a person interested in the
estate. If the person to be appointed is connected to the suit the consent of the parties shall
 E.A. AFENYO

be sought unless the court decides otherwise. A person appointed shall submit accounts to
the court and shall provide security and shall be remunerated as directed by the court.

De Bonis Non

This refers to grants for unadministered assets. Where all the persons to who a grant of
probate or letters of administration has been made are dead without completing
administration and the chain of representation has been broken, a grant of letters of
administration with will annexed or letters of administration shall be made in respect of the
unadministered assets to those entitled.

Second Grant

Where a limited grant is made to one person for the use of another and that person dies
before completing the administration, or where the original grant is limited in time or until
the happening of an event and the time expires or the event occurs, the court shall make a
re-grant to such person as entitled to it.

THIRD PARTY PROCEEDINGS

Where a defendant in a civil action claims that he is entitled to a relief against a person who
is not a party to the action, such a defendant may apply for third party notice to be issued
and served on the person. The circumstances under which a defendant may apply for a third
party ]proceedings in Order 15 rule 1(1) are as follows:

1. The defendant must have a claim against a third party in an action;

2. The third party must not already be a party to the suit
3. The defendant must be entitled to a contribution or indemnity against a third party;
4. The defendant must be entitled to a relief or remedy from the third party;
5. The relief or remedy must relate to or be connected to the original subject matter of
the action;
6. The relief or remedy must be substantially the same as the relief or remedy claimed
by the plaintiff;
7. Any issue arising between the defendant and plaintiff is substantially the same as
that arising between the defendant and third party;
8. The effective determination of the matter will require the presence of a third party.

Procedure

An application for third party notice is motion ex parte supported by an affidavit under
Order 15 rule 1(2) and must disclose the following:
 E.A. AFENYO

(a) the nature of the claim made by the plaintiff in the action;

(b) the stage at which the proceedings have reached;

(c) the nature of the claim made by the applicant or particulars of the question or issue
required to be determined;

(d) the facts on which the proposed third party notice is based; and

(e) the name and address of the person against whom the third party notice is to be issued.

When the leave is granted, the third party notice shall be served within 14 days after the
date of the order granting the leave as specified in Order 15 rule 1(3).

Third Party Notice

Order 15 rule 2 encapsulates the contents of a third party notice which shall be as in Form 6
in the Schedule.

A notice shall contain a statement of the nature of the claim made against the defendant and
the nature and grounds of claim made by the defendant against the third party.

It should also contain the question or issue required to be determined.

The notice will be sealed by the Registrar when a copy signed by the applicant or his lawyer
is delivered to the Registry.

Service of Third Party Notice

The law in Order 15 rule 3 is that copy of the writ and pleadings filed in the action shall be
served with every third party notice.

When a third party notice is served, the third party shall as from the time the notice is
served be a party to the suit and shall have the same right as to defence as if the defendant
had issued a fresh writ against that third party.

Appearance by Third Party

The third party upon service of the notice may file an appearance within 8 days from the
date of service of the notice or within such further time as the court will direct in the notice.

A third party notice is issued and sealed is treated like a writ of summons and the defendant
who issued it is regarded as a plaintiff and the third party regarded as a defendant in the
proceedings.

Third party directions

The rules on directions are set out in Order 15 rule 4.

 E.A. AFENYO

When the third party enters appearance the defendant shall by notice served on all other
parties, apply for directions.

If no notice for directions is served on the third party, the third party may not earlier than 8
days after filing appearance, apply for directions to be taken or apply to set aside the third
party notice by notice served on all other parties to the action.

When application for directions is heard, the Court may give the third party leave to either
defend the action alone or jointly with any defendant or appear at the trial and participate in
the trial.

What the Court May Do Upon Hearing the Application-Order 15 rule 4(3)

When the court hears the application, it may make any of the following orders:

(a) if the liability of the third party to the defendant who issued the third party notice is
established, order such judgment as the nature of the case may require to be entered against
the third party in favour of the defendant;

(b) order any claim, question or issue stated in the third party notice to be tried in such
manner as the Court may direct; or

(c) dismiss the application and terminate the proceedings on the third party notice, and may
do so either before or after any judgment has been signed by the plaintiff against the
defendant.

Default of the Third Party

Order 15 rule 5 provides that:

Where a third party fails to file appearance or defence as may be directed by the court, the
third party shall be deemed to have admitted any claim contained in the third party notice
and shall be bound by any judgment or decision entered on the third party notice.

If default judgment is entered against the defendant who issued the third party notice, he or
she may at any time after satisfying the judgment or with the leave of the court before the
satisfaction of the judgment, enter the judgment against the third party in respect of any
contribution or indemnity claimed in the notice.

Where a third party or a defendant who issues a third party notice defaults in filing any
pleading as ordered in the proceedings, then application of the third party or defendant, the
court may enter judgment for the applicant as entitled on the pleadings.

Setting Aside Proceedings

By Order 15 rule 6, the Court may, at any stage of an action set aside proceedings on a third
party notice within the action.

Judgement Between the Defendant and Third Party

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Under Order 15 rule 7(1), the court may in third party proceedings either at trial or on
application enter judgment as the nature of the case requires either for the defendant or the
third party.

However, under Order 15 rule 7(2), where judgment is entered for the plaintiff against the
defendant and also judgment is entered for the defendant against the third party, the
execution shall not issue against the party without the leave of court until the judgment
against the defendant has been satisfied.

ADJUDICATION OF ELECTION DISPUTES

In Ghana, the jurisdiction to adjudicate electoral disputes under Articles 64 and 99 of the
Constitution, dealing with Presidential and Parliamentary elections is vested in the
Supreme Court and High Court respectively.

The Court of Appeal serves as the final appellate court in decisions of the High Court in
Parliamentary election disputes. The lower courts (the Circuit and District Courts have
jurisdiction only in electoral offences, but not causes challenging election results.

Parliamentary Elections

By Article 99(1)(a) of the Constitution, the High Court shall have jurisdiction to hear and
determine any question whether a person has been validly elected as a member of
Parliament or the seat of a member of Parliament has become vacant; and by Article 99(2) of
the Constitution, a person aggrieved by the decision of the High Court may appeal to the
Court of Appeal.

The law that govern electoral dispute with respect to Parliamentary Elections is the
Representation of Peoples ACT (PNDCL 284). Section 16 clothes the High Court with
jurisdiction to determine election disputes.

Persons who may bring petition

According to section 17, an election petition may be presented by one or more of the
following persons:

(a) a person who lawfully voted or had a right to vote at the election to which the
petition relates;

(b) a person claiming to have had a right to be elected at the election;

(c) a person alleging himself to have been a candidate at the election;

(d) a person claiming to have had a right to be nominated as a candidate at the

election.

Contents of the Petition

The petition to be filed shall as much as practicable contain the following:

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a. Name and address of the petitioner and his or her counsel, if any, which shall be the
address for service
b. Name and address of the respondent and his or her counsel, if any, which shall be
the address for service
c. Petition to be signed by petitioner and or his or her counsel
d. Must contain the statement of the nature of the claim, nature and extent of the reliefs
being sought and the grounds upon which the reliefs or remedies are being sought.
e. Must contain a statement of the facts relied on to be verified by an affidavit and the
law in support of the petition.
f. The number of witness to be called, if any
g. It must be properly headed. Eg: In Re the Representation of the People Act, 1992
(PNDC Law 284) and In Re Parliamentary Election for Akomko Constituency etc.

The respondent upon service of the petition shall file answer to the petition.

Time for presenting petition

Section 18(1) of PNDCL 284 provides that an election petition shall be presented within
twenty-one days after the date of the publication in the Gazette of the result of the election to
which it relates.

This statutory-bar of 21 days was confirmed in Michael Yeboah v J.H Mensah.

The Honourable J.H. Mensah M.P. for Sunyani East had appeared before the High Court,
Sunyani on the 12th May 1997 in connection with an election petition filed by some
applicants to unseat him as the elected member of Parliament for Sunyani East constituency
on certain grounds stated in the petition and that the High Court, Sunyani had dismissed
the said petition on the ground that it had not been filed within the statutory period of 21
days.

On appeal, the Supreme Court was of the view that such a judgment constituted a judgment
in rem and operated to conclude the matter for all time.

However, a petition questioning an election on an allegation of corrupt practice and

specifically alleging a payment of money or other award to have been made by the person
whose election is questioned or to have been made on his behalf to his knowledge, may be
presented within twenty-one days after the date of the alleged payment.

The court has reinforced this law in the recent case of Republic v High Court Koforidua, ex
parte Asare (Baba Jamal Interested Party)

Section 18(2) of PNDCL 284 also requires the petitioner to pay to the High Court security
for cost which is determined by the court within the 21 days. Failure to pay security for cost
within 21 days invalidates the petition.

Section 18(3) insists that the time limit for presentation of the petition shall not be extended.

In the case of Salifu v Electoral Commission and Ambrose Dery, the court, per Koomson J
held among others that no person could bring an action for judicial reliefs after 21 days
except where a person was alleging corrupt practice and specifically alleging payment of
money or other reward.
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Reliefs to be granted by the Court

Under section 19 of PNDCL 284, after the hearing of an election petition the High Court
may make any of the following orders:

(a) declare that the election to which the petition relates is void;

(b) declare that a candidate other than the member whose election is questioned was
duly elected; or

(c) dismiss the petition and declare that the member whose election is questioned
was duly elected.

Applicable rules of procedure

Section 26 provides that the rules of procedure for presentation and hearing of a petition
under this Part shall be the same as the rules of procedure applicable to a civil cause or
matter before the High Court.

In other words, the High Court (Civil Procedure) Rules, CI 47 as amended by CI 87 shall
regulate the proceedings in election disputes.

Appeals in Parliamentary Elections

Article 99(2) of the Constitution provides that a person aggrieved by the decision of the
High Court in a parliamentary election case may appeal to the Court of Appeal.

The Supreme Court has held that the Court of Appeal shall be the final appellate court for
parliamentary election disputes, notwithstanding Article 131(1)(a) of the Constitution. This
was the decision in the case of Re Parliamentary Election for Wulensi Constituency;
Zakaria v Nyimakan.

Presidential Elections

Article 64(1) of the Constitution provides that the validity of the election of the President
may be challenged only by a citizen of Ghana by a petition presented to the Supreme Court
within 21 days after the declaration of the results.

The Rules of Court Committee established under Article 157 of the Constitution is required
under Article 64(3) of the Constitution to make rules to regulate practice and procedure for
petitions to the Supreme Court. Pursuant to Article 64(3) and Article 157 of the Constitution,
the Rules of Court Committee has made rules, namely, the Supreme Court (Amendment)
Rules, 2012, CI 74, to regulated Presidential Election disputes.

The Supreme Court (Amendment) Rules, 2012, CI 74, by rule 68 repeats the constitutional
provision in Article 64(1) and provides that a presidential election dispute shall be
commenced by presenting a petition (not less than 7 copies) to the Registrar of the Supreme
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Court and the petition presented shall be presented within 21 days after the declaration of
the election results.

Contents of the Petition

The contents of a petition to challenge the presidential election is provided under rule 68(3)
of CI 74. The petition shall state the following:

a. The full name and particulars of the citizenship of the petitioner, and how the
citizenship was acquired
b. The residential, electronic and telegraphic address, where available of the petitioner,
and the business address of counsel for the petitioner, where the petitioner is
represented by counsel
c. The grounds for challenging the validity of the election
d. The facts relied on to be verified by an affidavit and the law in support of the
petition.
e. The number of witnesses to be called.
f. The reliefs sought
g. Any other matters that the court may determine.

Under rule 69(1) of CI 74, a respondent served with the petition shall within 3 days after
service file a notice of appearance personally or by counsel.

The notice of appearance shall contain particulars of the address of the respondent and
business address of counsel.

Under rule 69A, a respondent who intends to oppose the petition shall file an answer (not
less than 7 copies) within 10 days after the petition is served.

The respondent may in the answer raise a preliminary objection, if any.

The answer shall contain a statement of the facts to be relied on by the respondent, verified
by an affidavit and for the preliminary objection, state the law in support of the legal
arguments to be relied on.

The respondent may apply for better and further particulars of the petition on filing the
answer and the petitioner, subject to the court’s discretion, shall supply the particulars
requested before the date set for the hearing of the petition.

Under rule 69B of CI 74, a document required to be served in the proceedings may be sent
electronically and hard copies submitted to the Registrar for verification.

Hearing the Petition

By rule 69C of CI 74, where the petition and the answer are served and the application for
better particulars has been determined, the court shall hear the petition within 15 days after
the due service of the petition and answer.

The Registrar shall give notice of the time and place of the hearing within 48 hours of the
court fixing the date for the hearing of the petition.

The hearing shall take place in open court and the court shall be duly constituted of not less
than 5 Justices of the Supreme Court.
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The court shall deliver its opinion not later than 15 days from the close of the hearing.

Under rule 70B and 71 of CI 74, the death of a petitioner or the respondent shall not abate
the hearing of the petition. The petition shall not be withdrawn without the leave of the
court and due notice given as directed by the court.

Where there is more than one petitioner, an application for leave to withdraw the petition
shall not be made without the consent in writing of the other petitioners.