CIVIL PROCEDURE

BIBLIOGRAPHY

(1) 1992 CONSTITUTION OF GHANA

(2) SUPREME COURT RULES, 1996 (C.I.16)
(3) SUPREME COURT (AMENDMENT) RULES 1999 C.I.24
(4) COURT OF APPEAL RULES, 1997 (C.I.19)
(5) HIGH COURT (CIVIL PROCEDURE) RULES 2004, C. I. 47
(6) DISTRICT COURT- DISTRICT COURT ORDINANCE, CAP 4
(1951 REVISION) SCHEDULE 2
(7) COURT OF APPEAL (AMENDMENT) RULES, 1999 C.I. 25
(8) COURT OF APPEAL (AMENDMENT) RULES, 1998 C.I. 21
(9) Odgers on Principles of Pleadings and Practice (14th ed.)
pp 93-98
(10) The Supreme Court Practice 1995, 1997, 1999 (White
Book) Vol. 1
(11) COURTS ACT, 1993 ACT 459
(12) DISTRICT COURT RULES, 2009 (C.I.59)
(13) COURTS (AMENDMENT) ACT, 2002 (ACT 620)
(14) CIVIL PROCEDURE A PRACTICAL APPROACH- KWAMI
TETTEH

CIVIL PROCEDURE

DEFINITION:

Civil Procedure is the body of law that sets out the rules and standards that the Courts
follow when adjudicating civil law suits (as opposed to procedures in criminal law
matters).

These rules govern how a law suit or case may be commenced, what kind of service
of process (if any) is required, the types of pleadings or statement of case/claim, motion
or applications and orders allowed in civil cases, the timing and manner of depositions
and discovery or disclosure, the conduct of trials, the process for judgment, various
available remedies, and how the Court and Registrars/Clerks must function .

Civil and Criminal

Civil procedure is initiated by the private persons and individuals, corporations,

companies, organisations for their own benefit. Claims, compensation, damages, etc.
Injunctions, accounts etc. rather than fines and imprisonment.

Criminal cases- The Republic or Regina or The State vrs. (the Person charged) - by
prosecution.

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 Procedure rules set out rules for each stage of case. Set out jurisdiction and limits of
jurisdiction.

Broadly speaking, civil procedure consists of the rules by which Courts conduct civil trials.
“Civil trials’’ concern the judicial resolution of claims by one individual or group against
another and are to be distinguished from criminal trials in which the state prosecutes an
individual for violation of criminal law.

”Procedure” is to be distinguished from”substantive law’’ in that substantive law includes

contract law, tort law and so on.

A procedural system provides the mechanism for applying substantive law to real
disputes.

A good procedural system should provide guidelines as to what information is received

by a Court judge, how that information is to be presented.

Civil Procedure is the body of law that sets out the process that Courts will follow when
hearing cases of a civil nature (a “civil action’’) as opposed to a criminal action).
It is the wheel on which the substantive law moves.
See Order 82 r 3

HIERARCHY OF COURTS IN GHANA

Co
ns
1. THE SUPREME COURT
titu
tio
2. THE COURT OF APPEAL
n is 3. THE HIGH COURT AND REGIONAL TRIBUNALS
the 4. LOWER COURTS OR TRIBUNALS AS PARLIAMENT MAY BY LAW
Su ESTABLISH
pre
me
Article 126 of the Constitution:
Co
Art 126 (1) The judiciary
urt
of 126 (1) the Judiciary shall consist of-
Gh a) The Superior Courts of Judicature comprising:
an i. The Supreme Court
a. ii. The Court of Appeal; and
Act iii. The High Court and Regional Tribunals
1(2
b) Such lower Courts or tribunals as Parliament may by law establish.
)

The inferior Courts include:

i) Circuit Courts
ii) District Courts
iii) Chieftaincy tribunals (Judicial Committees) of the Traditional Councils, Regional
Houses of Chiefs and National House of Chiefs
iv)

See also Section 39 of the Courts Act 1993, Act 459

Section 40 – establishment of Circuit Court – to be established as the Chief Justice may
by L.I. specify. Section 46 and Section 47 -Community Tribunals in each District.

2
Se
e
 Article 126(2) of the Constitution- The Superior Courts shall be superior Courts of record
and shall have power to commit for contempt to themselves and all such powers as were
vested in a Court of record immediately before the coming into force of this constitution.

THE SUPREME COURT

By Article 128(1) the Supreme Court shall consist of the Chief Justice and not less than
nine other justices of the Supreme Court.
(2) The Supreme Court shall be dully constituted for its work by not less than five
Supreme Court justices except as otherwise provided in article 133 of this constitution.

Article 133 (1) The Supreme Court may review any decision made or given by it as may
be prescribed by rules of Court.
Article 133 (2) – The Supreme Court when reviewing its decision under this article shall
be constituted by not less than seven justices of the Supreme Court.

THE COURT OF APPEAL- Articles 136 – 138

Note, not Appeal Court, but The Court of Appeal -

Article 136(1) – the Court of Appeal shall consist of:

Arti
(a) The Chief Justice
cle (b) Subject to clauses (2) and (3) of this article not less than ten justices of the Court
128
to
of Appeal; and
135 (c) Such other justices of the Supreme Court of judicature as the Chief Justice may,
See for the determination of a particular case or matter by writing signed by him,
also
Sec request to sit in the Court of Appeal for any specific period.
tion
s1
–9 136 (2) the Court of Appeal shall be duly constituted by any three of the justices
of referred to in clause (1) of this article and when so constituted, the most senior of the
the
Cou justices shall preside.
rts
Act,
199 APPEALS TO SUPREME COURT- i.e. the appellate jurisdiction of the Supreme
3 Court
AU
459
1. Article 131(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
Regional Tribunal in exercise of its original jurisdiction

(b) with the leave of the Court of Appeal, in any other cause or matter, where the
case was commenced in a lower Court 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.

2. Notwithstanding clause (1) of this article, the Supreme Court may entertain an
application for special leave to appeal to the Supreme Court in any cause or
matters civil or criminal, and may grant leave accordingly

3
 3. 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 high treason by the High Court.

4. An appeal from a decision of the Judicial Committee of the National House of

Chiefs shall lie to the Supreme Court with the leave of that Judicial Committee or
See the Supreme Court.
Court See Article 273(1) & (2) of the Constitution.
art

With leave of that judicial committee or the Supreme Court’’ –means you go to the
lower (Court) or lower adjudicating body’’ before the higher appellate Court.

cases
Cases:

Article 132- provides for the Supervisory Jurisdiction of the Supreme Court thus:
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.

Article 129-
Final
Appea
l (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 this constitution
or by any other law.

(2) The Supreme Court shall not be bound to follow the decisions of any other
Court.

(3) The Supreme Court may while treating its own previous decisions as normally
How binding, depart from a previous decision when it appears to it right to do so,
about
the and all other Courts shall be bound to follow the decisions of the Supreme
Court on questions of law.

But the Court of Appeal is subject to clause 3 of Article 129 of the Constitution, by
Article 136 (5), the Court of Appeal shall be bound by its own previous decisions;
and all lower Courts than the Court of Appeal shall follow the decisions of the
Court of Appeal on questions of law.

Clearly shows Supreme Court is at the apex of the hierarchy.

Article 130-On original Jurisdiction of the Supreme Court- subject to the

jurisdiction of the High Court in the enforcement of the Fundamental Human
Rights and Freedoms as provided in article 33 of this constitution, the Supreme
Court shall have exclusive original jurisdiction in

a) all matters relating to the enforcement or interpretation of this constitution

4
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.

So by Article 130 (2) where an issue that relates to matter or question referred to
in clause (1) of this article arises in any proceedings in a Court other than the
Supreme Court that Court shall stay the proceedings and refer the question of law
involved to the Supreme Court for determination and the Court in which the
question arose shall dispose of the case in accordance with the decision of the
Supreme Court.
But note e.g. the case of Maikankan & Others in which the Supreme Court held
that ‘’a lower Court is not bound to refer to the Supreme Court every submission
alleging as an issue the determination of a question of interpretation of the
constitution or of any other matter contained in Article 106(1) (a) or (b)” of the
1969 constitution which had similar provisions as Article 130(2) of the 1992
constitution.

It was held in that case that “if in the opinion of the lower Court the answer to a
submission is clear and unambiguous on the face of the provisions of the
constitution or laws of Ghana, no reference need be made since no question of
interpretation arises and a person who disagrees with or is aggrieved by the ruling
of the lower Court has his remedy by the normal way of appeal, if he chooses to
interpret the provision of article 106 (2) of the constitution in any other way may
entail and encourage references to the Supreme Court of frivolous submissions,
some of which may be intended to stultify proceedings or due process of law and
may lead to delays such as may in fact amount to denial of justice...” Republic
vrs. Maikankan & Others [1971]2GLR 473-478 SC.

COURT OF APPEAL

Articles 136-138 of Constitution and Section 10 and especially Section 11 of the

Courts Act.
Article 137 gives the jurisdiction of the Court of Appeal.
137 (1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and
determine, subject to the provisions of this Constitution, appeal from a judgment,
decree or order of the High Court and Regional Tribunals and such other appellate
jurisdiction as may be conferred on it by this constitution or any other law.

(2) Except as provided in this constitution an appeal shall be as of right from a

judgment, decree or order of the High Court and a Regional Tribunal to the Court
of Appeal.
See also Section 11(3) of the Courts Act
See 11(4) of Courts Act on civil appellate Jurisdiction of the Court of Appeal on
decision from circuit court– A person aggrieved by any judgment decree or order
of a Circuit Court may appeal against it to the Court of Appeal.

See 11 (5) Appeal from the Circuit Court on interlocutory matter with leave of
Circuit Court and upon refusal leave to the Court of Appeal.

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 HIGH COURT – Articles 139 to 141

Article 140 (1) on the Jurisdiction of the High Court: The High Court has
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.

(2) The High Court shall have jurisdiction to enforce the Fundamental Human
Rights and Freedoms guaranteed by this constitution.
(3)
(4)
The right of Appeal to the High Court provided by Section 15 of the Courts Act, as
amended by Section 2 of Courts (Amendment) Act, 2002 Act 620.
Section 15(1)(c) appellate jurisdiction of a Community Tribunal in civil matter

Section 2 of Courts (Amendment) Act, Act 620 amends Community Tribunal to

read District Court.
Section 11 of
Section 11(5) Appe

Article 141-on the Supervisory Jurisdiction of the High Court: 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.’’

So these includes the orders of certiorari, mandamus, prohibition, quo warranto

and habeas corpus.

The Courts Act, 1993, Act 459 specifically states these as orders that can be
issued by the High Court.

Section 16 of the Courts Act states that ‘’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 including orders in the
nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for
the purpose of enforcing or securing the enforcement of its supervisory powers”.

Procedure for prerogative writs-0.55 (old order 59 of LN140A called

See Application for Judicial Review under 0.55 of C.I.47. Refer to 0.55 rule 1
O. 51
C. I.
C.I. 47
47 See Sections 17 to 22 of the Courts Act.
form
erly
O. 59 APPELLATE JURISDICTION OF HIGH COURT
See
O. 51 Appellate Jurisdiction of the HIGH COURT- By Section 21(1)(2) of the Courts Act
as Amended by Section 3 of the Courts (Amendment) Act, 2002, Act 620- A
person aggrieved by a decision of a District Court in a civil cause or matter may
appeal against the decision or order to the High Court; and (2) A person
aggrieved by an interlocutory order or decision made or given by the District Court

6
 in a civil matter may appeal against it to the High Court with leave of the District
Court and the High Court shall have jurisdiction to hear and determine the appeal.

(Section 44 (2) of the Courts Act as amended by section 5 of Act 620 gives right
of appeal in Criminal cases from Circuit Court to the High Court.)

As noted earlier the jurisdiction to hear and determine appeals in civil cases from
the Circuit Court lies with the Court of Appeal not the High Court- See sections
11(3) and 11(4) of Courts Act (Act 459) as amended by section 1 of the Courts
(Amendment) Act, 2002.

LOWER COURTS AND TRIBUNALS

Under Article 126(1) of the constitution, the judiciary shall consists of the Superior
Courts of judicature and such lower Courts or tribunals as Parliament may by law
establish.

By the Courts Act 1993, Act 459, PART II-deals with such Lower Courts and
Tribunals. Part II of Act 459 replaced with Section 5 of Act 620. Section 39
provides that “The following are by this Act established as the lower Courts and
Tribunals of Ghana-
(a) Circuit Court and Circuit Tribunals
(b) Community Tribunals
(c) The National House of Chiefs, Regional Houses of Chiefs and every Traditional
Council, in respect of the jurisdiction of any such House or Council to
adjudicate over any cause or matter affecting chieftaincy and such other lower
Courts or tribunals as parliament may by law establish.

Of course the Community Tribunals have been re-designated as District Courts.

The Circuit Tribunals were never put in place. By Section 5 of Courts
(Amended) Act 2002, Act 620. Section 39 of Courts Act replaced as - (a) Circuit
Courts (b) District Courts, (c) Juvenile Courts (d) National Houses Regional
Houses and Traditional Councils, (e) such other lower Courts

CIRCUIT COURT-
The jurisdiction- THE CIVIL JURISDICTION OF CIRCUIT COURTS

Section 42 (1) – The Civil Jurisdiction of the Circuit Court of the following:

a. Original jurisdiction in civil matter –

(i) in personal actions arising under out of contract or tort or for the recovery
of any liquidated sum where the amount claimed is not more than ¢100
Origi
nally million now not more than GH ¢ 50,000.
S (ii) In action between landlord and tenant for possession of land claimed under
41of
a lease and refused to be delivered up.
(iii) In causes and matters involving the ownership, possession, occupation of
or title to land
(iv) To appoint guardians of infants and to make order for custody of infants
(v) To grant in any action instituted in the Court injunctions, or orders to stay
waste or alienation or for the detention and preservation of any property
7
 the subject matter of that action or to restrain breaches of contract or
commission of any tort
(vi) In claims of reliefs by way of Interpleader in respect of land or other
property attached in execution of an order made by a Circuit Court
(vii) In applications for the grant of Probate or Letters of Administration in
respect of a deceased person and in causes and a matters relating to
succession to property of a deceased person who had at the time of his
death a fixed place of abode within the area of jurisdiction of the Circuit
Court and the value of the estate or property in question does not exceed
GH ¢ 50,000 and;
b. Any other jurisdiction conferred by this Act or any other enactment

Section 42 (2) Where there is a dispute as to whether or not any amount claimed or
the value of the property is in any action, cause or matter is in excess of the amount
specified in subsection (1) of this section in relation to that action, cause or matter,
the Circuit Court in question shall call evidence as to the said amount or value and if
it finds that it exceeds the amount or value specified in sub-section (1) the circuit
court shall transfer the case to the High Court.

Section 42 (3) Where the amount claimed or the value of any property exceeds the
amount or value specified in subsection (1) of this section the Circuit Court, shall
notwithstanding that subsection, proceed to hear the case if the parties agree that it
should do so.

APPEALS FROM CIRCUIT COURT

S 44 (1) A person aggrieved by a judgment of a Circuit Court in any Civil action,
subject to this Act and Rules of Court appeal to the Court of Appeal against the
judgment.

S 44 (2) Criminal Appeals from Circuit Court – to the High Court

DISTRCIT COURT – Part II

S. 45 (1) – There shall be established in each District of the country as the C. J. may
determine.

S. 45 (2) Magistrate to be appointed by C. J. on advise of Judicial Council Subject to

approval of the President.

S. 45 (3) C. J. to specify area of jurisdiction of each District

S. 46 (1) Qualification – as amended by Courts (Amendment) Act, 2004 Act 674 from
a lawyer (simpliciter) or a person with such judicial or legal knowledge as the C. J.
shall on the advice of the Judicial Council determine.

S. 46 (1) but a person does not qualify to be appointed a magistrate of a District

Court unless the person is of high moral character and proven integrity.

S. 47 (1) Civil jurisdiction of the District Court is within the area of its jurisdiction in
the following matters;
8
 in personal actions arising under contract or tort for the
recovery of any liquidated sum where the amount claimed
does not exceed ¢50 million;

(b) to grant in any action instituted in the District Court injunctions

or orders to stay waste or alienation or for the detention and
preservation of any property the subject matter of that action,
or restrain breaches of contracts or the commission of any
tort;

(c) in claims for relief by way of interpleader in respect of land or

other property attached in

execution of a decree made by the District Court;

(d) in civil causes or matters relating to the landlord and tenant of any
premises or any person interested in such premises as required or
authorised by any 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 ¢50 million;

in divorce and other matrimonial causes or matters and actions for paternity and
custody of children;

(g) in applications 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 his 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 ¢50 million; and

(h) hear and determine charges and dispose of other matters affecting
juveniles that is persons under the age of eighteen.

(3)

S. 47 (2) Where there is dispute as to whether or not any amount claimed or the value
of any land or property in any action, cause or matter is in excess of the amount or
value specified in subsection (1) of this section in relation to that action, cause or
matter the District Court in question shall call evidence as to the said amount or value
and if it finds that it exceeds the amount or value specified in subsection (1) it shall,
subject to the powers of transfer of the Chief Justice, transfer the case to a Circuit
Court.

S. 47 (3) Where in any action, cause or matter the amount claimed or the value of any
land or property exceeds the amount or value specified in subsection (1), the District
Court shall notwithstanding that sub section, proceed to hear the case if the parties agree
that it should do so.
9
 Note differences in the jurisdiction of Circuit Court and District Court.

(1) By Section 42 of the Court Act 459 as Amended – Act 620 by Section 42 (1) (a) (i)
the jurisdiction of the Circuit Court as to liquidated sum in personal actions arising
under contract or tort or for recovery of liquidated sum is where the amount
claimed is not more than ¢100 million by section 47 (1) (a) the District Court’s
jurisdiction in these is not exceeding ¢50 million
(2) In application for and probate and administration the values of the estate should
not exceed ¢100 million and ¢50 million in Circuit Court and District Court
respective – Section 42 (1) (vii) and 47 (1) (g).
(3) ♯NB. District Court limited to value of ¢50 million in actions relating to ownership,
possession or occupation of land but Circuit Court not limited – Section 47 (1) (e)
(4) In divorce and other matrimonial causes, and actions for paternity and custody of
children the District Court is given jurisdiction in Section 57 (1) (f)
(5) The Circuit Court’s jurisdiction in Divorce matters is provided by the Matrimonial
Causes Act 1971, (Act 367)
By Section 43 – the Interpretation
Section – “Court” means the High Court or a Circuit Court. (Subject to Section 40)
(6) The chief justice may in writing transfer an undefended action under the
Matrimonial Cause Act to the District Court – Section 40 of the MCA.

By Section 49 (1) of Act 620 District Court is also designated as a Juvenile Court –
because it is provided that the C. J. may designate any District Court as a Juvenile
Court

- 49 (2) A juvenile Court shall be composed of magistrate of the District Court as

the presiding person and 2 other persons one of whom shall be a Social
Welfare Officer and the other, a person of not less than 25 years both of
whom shall be appointed by the C. J. on the recommendation of the District of
Social Welfare.

Juris 49 (3) A juvenile Court has power to hear and determine any matter civil or
dictio
n of
criminal that involves a person under the age of eighteen and shall for that
purpose have and exercised all powers of a District Court.

Section 50- jurisdiction of the District Court under the children’s Act, 1998 (Act
560)

- ‘’A District Court also has jurisdiction to hear and determine any action that
arises under the children’s Act 1998 (Act 560) and shall for the purpose of that
enactment be the Family Tribunal and exercise the powers conferred on a
Family Tribunal under that Act and any other enactment.

Family Tribunal

This by Section 33(1) of the Children’s Act the Family Tribunal is created-
thus:
There shall be a Family Tribunal which shall exercise the jurisdiction provided
under section 35 and any other provision of this Act

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Section 33(2) ‘’Any reference to a Family Tribunal in this Act shall be construed to
mean a Community Tribunal established under the Court Act, 1993 (Act 459).
Note Act 620 changes Community Tribunal to District Court.

Section 35 of the children Act (Act 560) gives the jurisdiction of the Family
Tribunal as: ’’A Family Tribunal shall have jurisdiction in matters concerning
parentage, custody, access and maintenance of children and shall exercise such
other powers as are conferred on it by this Act or under any other enactment.

General Powers of District Court.

Section 51(1) of Courts Amendment Act, 2002 of Act 620. Every District Court
shall in addition to the jurisdiction conferred by this Act, have other functions as
may be conferred or imposed in it by any other enactment.

S.41 of the Courts Act now S. 42(1) of Act 620

S. 41(1) – (1) original jurisdiction of the Circuit Court.

(i) in personal actions arising under contract or tort or for the

recovery of any liquidated sum, where the amount claimed is not
more than ¢100 million;

(ii) in actions between landlord and tenant for the

possession of land claimed under lease and refused to be
delivered up;

(iii) in causes and matters involving the ownership,

possession, occupation of or title to land;

(iv) to appoint guardians of infants and to make orders for

the custody of infants;

(v) to grant in any action instituted in the Court, injunctions

or orders to stay waste, or alienation or for the detention and
preservation of any property the subject matter of that action or
to restrain breaches of contract or the commission of any tort;

(vi) in claims of relief by way of interpleader in respect of

land or other property attached in execution of an order made by
a Circuit Court;

(vii) in applications 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 his death a fixed place
of abode within the area of jurisdiction of the Circuit Court and
the value of the estate or property in question does not exceed
¢100 million; and

11
 (b) any other jurisdiction conferred by this Act or any other
enactment.

Note 41(2) and (3) –now Section 42(2)(3) by virtue of S.5 of Act 620.

Section 42- Appeal from Circuit Court goes to Court of Appeal – subject to the
provisions of this Act and rules of Court of Appeal. Now replaced by Section 5 of
the Courts Amendment Act-as Section 44(1)- to Court of Appeal in civil and 44(2)
in criminal matters.

DISTRICT COURT-
Section 47 of Courts Act as Amended by Act 620. Civil Jurisdiction- See 47
Created by Section 46(1) of Courts Act as Community Tribunal now Section 45 of
Courts (Amendment) Act as District Court to be created in each District, the area
of the District to be specified by the Chief Justice.

Secti Now Section 45(1)(2) of Courts Amendment Act creating District Court to be
on s created by C.J. by L.I in each District –District area to be determined by C.J.
22-29
See S.46 deals with qualification of the magistrate as amended by Courts (Amend)
appe Act, 2004 a lawyer or is a person with such judicial or legal knowledge as the C.J
al to
Regio on the advice of Judicial Council shall determined.
nal-
Sect
23 S.51-General Powers of the District Court.
Secti
on 24
Act District Court shall in addition to any jurisdiction conferred by this Act, have such
759- other functions as may be conferred or imposed on it by any other enactment.
appe
al to
Supre See Section 47(2) - maintenance of children
me
Court
Decree 1977 33(1) - (now Children’s Act 1998, Act 560) caters for this.
– By section 33(1) of the children’s Act 1998 there shall be Family Tribunal which
Secti
shall exercise the jurisdiction provided under section 35 and any other provisions
of this Act. Section 33(2) –‘’Any reference to a Family Tribunal in this Act shall be
construed to mean a Community Tribunal established under the Courts Act, Act
1993 (Act 459)

Chieftaincy Act 2008 - Act 759- replaced Chieftaincy Act of 1971 of Act
370

Article 273-(1) Appellate Jurisdiction of the National House of Chiefs in cause or

matter affecting chieftaincy which has been determined by the Regional House of
Chiefs in a region, from which appellate jurisdiction there shall be an appeal to the
Supreme Court with the leave of the National House of Chiefs, or the Supreme
Court.

(2) The Appellate Jurisdiction of the National House of Chiefs shall be exercised by
a judicial Committee of the National House of Chiefs consisting of 5 persons
appointed by that House from among its members.

12
 (3) Judicial Committee of National House of Chiefs shall be assisted by a lawyer of not
less than 10 years’ standing appointed by the National House of Chiefs on the
recommendation of the Attorney General.

(5) A Judicial Committee of the National House of Chiefs shall have original
jurisdiction in any cause or matter affecting chieftaincy;
(a) which lies within the competence of 2 or more Regional Houses of Chiefs.
Court (b) which is not properly within the jurisdiction of a Regional House of Chiefs or
of
Appe (c) which cannot otherwise be dealt with by a Regional House of Chiefs
al
(Ame
ndme (6) Appeal shall lie as of right in respect of any cause or matter dealt with by a
nt) Judicial Committee of the National House of Chiefs under clause (5) of this
Rules
1999 article to the Supreme Court.
C.I 25
and
C.I. 274 (1) Regional House of Chiefs – shall be established in each Region of Ghana –
21 of (3)(c) hear and determines appeals from Traditional Councils within the region in
1998
by respect of nomination, election, selection, installation or deposition of a
inten person as a chief.
sion
of (d)Have original jurisdiction in all matters relating to a paramount stool or skin or
rule the occupant of a paramount stool or skin including a queen mother to a
27 A
Rep v paramount stool or skin
Fast (AMOASI III v. TWINTOH [1987-88] 1 GLR 554-557); (Mossi v. Bagyina [1963] 1
Truck
High GLR 338, SC)
Court
Ex
parte
(4) The original and appellate jurisdiction of the Regional House of Chiefs shall be
Abad exercised by a judicial committee of the Regional House of Chiefs.
ago

The (5) assisted by a lawyer of not less than 5 years standing

Act S. 15 of Act 370 gave exclusive jurisdiction to hear and determine a cause or
matter affecting chieftaincy which arises within its area, not being one to which
the Asantehene or a Paramount chief is a party , to the Traditional Council.

S. 15 is now replaced as section 29 of Act 759

On jurisdiction - read Mossi v. Bagyina [1963] 1GLR 338, SC; Sentum-Bonsa

Timber Land Concession [1961]1 GLR 471, SC; Amoasi III v. Twintoh
[1987-88]1 GLR 554-567, SC

13
 VARIOUS RULES OF COURT IN GHANA

By Article 157 (2) of the 1992 constitution- “The Rules of Court Committee, shall
by constitutional instrument, make rules and regulations for regulating the
practice and procedure of all Courts in Ghana.’’

157 (1) – Established a Rules of Court Committee which shall consist of –

(a) Chief Justice as Chairman
(b) 6 members of the Judicial Council other than the C.J nominated by the Judicial
Council.
(c) 2 lawyers, one of not less than 10 and the other not more than 5 years’
standing, both of whom shall be nominated by the Ghana Bar Association.

See Article 140 (4) A justice of the High Court may in accordance with rules of
Court, exercise in Court or in chambers, all or any of the jurisdiction vested in the
High Court by this constitution or any other law.

Hence Supreme Court Rules (C.I.16) 1996 as Amended by C.I.24 i.e. Supreme
Court (Amendment) Rules 1999 C.I. 24) regulates procedure in the Supreme
Court, Court of Appeal Rules 1997 (C.I. 19) as Amended by C.I. 25, 1999 and C.I.
21 (1998), High Court (Civil Procedure) Rules, 2004 (C.I.47) regulate the
procedure in the Court of Appeal and High Court respectively – and the Courts
Act.

The District Court Rules 2009 C.I. 59 now regulates the procedure in the District
Court in place of the Courts Ordinance Cap 4 (1951 Rev.) Schedule 2.

SOURCES OF CIVIL PROCEDURE

Historically, Cap4 used to regulate even the Supreme Court, later regulated the
District Court.

Supreme Court Rules 1970 C.I. 13, 1970 Rule 83- Revoked C.I.13, Replaced with
Supreme Court Rules, 1996 as amended by Supreme Court (Amendment) Rules,
C.I. 24.

Court of Appeal (Amendment) Rules 1997, C.I. 19 as amended by C.I.21 and

C.I.25.

High
Civil procedure rules of Ghana were also governed by Legislative Notice No. 140A
Court (LN 140A) of 1954.
(Civil
proce
It also became the Rules regulating procedure in the High Court- cited as High
dure Court (Civil Procedure) Rules, 1954 (L.N 140 A)
(Ame
nded
Rule
It used to be the Supreme Court Rules - Order 75 made it applicable to Supreme
1975 Court and called the Supreme Court (Civil Procedure) Rules 1954 (LN 140A) until
L.I title was substituted as “High Court (Civil Procedure) Rules 1954” -by Section 1 of
1007
High Court (Civil Procedure) (Amendment) Rules, 1975, L.I.1007.

It was replaced with the High Court (Civil Procedure) Rules 2004 C.I. 47 which
came into effect from 3rd January 2005 – See Order 82 r 4 of C.I. 47.
CA by
Court
14
s Act
1960
repla
 It was C.I. 47 which revoked the High Court (Civil Procedure) Rules, 1954 (LN
140A) by Order 82 r 6

LN 140A itself had been amended over the years in various portions. So C.I. 47
also consolidated all these amendments under itself as one document as indicated
in Order 82 r 6 of C.I. 47.

In the same vein, on the date of coming into operation of C.I. 47, L.I 1515 which
had replaced Order 60 of L.N. 140A dealing with the procedure in Probate and
Administration also ceased to apply in administration and estate causes and
matters in the High Court and Circuit Court- but was made to continue to apply in
the District Court until District Court Rules 2009 C.I.59 made provision for Probate
and Administration in its Order 31 for the District Court.

L.I. 1515 was called Probate and Administration Rules 1991 [L.I. 1515] whilst L.I
1129 was called High Court (Civil Procedure)(Amendment) (No. 2) Rules, 1977
(L.I 1129)

The Rules of Court that regulate procedure in the Court of Appeal are embodied in the
Court of Appeal Rules 1997 (C.I. 19). Rule 68 of C.I. 19 revoked the old Court of Appeal
Rules 1962 [L.I. 218] with its amendments including L.I 547 of 1967 L.I. 618 of 1969, L.I
1002 of 1975 and L.I 1128 of 1977

Unlike the High Court where the main rules are called “Orders, and Rules and sub-rules”,
in the Court of Appeal and Supreme Court all rules are called “Rules or “subrules” as the
case may be.

APPLICATION OF C.I. 47

The application of C.I. 47 is provided by Order 1 rule 1 of C.I. 47-

‘’these rules shall apply to all civil proceedings in the High Court and the Circuit
Court, except that the application to the Circuit Court shall be with such
Mut modification as may be necessary’’.
atis
mut This obviously means that the rules shall apply to the circuit Court mutatis
andi mutandis. But it may not apply for example as in Order 67 dealing with the
s–
Enforcement of Fundamental Human Right as under Article 33 of the Constitution
1992 since that falls within the exclusive jurisdiction of the High Court. So also is
Order 55 dealing with Application for Judicial Review, Order 56 dealing with
Habeas Corpus, Order 58 dealing with procedure in the Commercial Division of the
High Court (Order 58 r 1)

Order 82 r 1 – deals with matters not provided for:

1) Where in respect of any matter of procedure, no provision is made by these

Rules, the practice for the time being in force in any common law country may
where convenient be applied.

15
 FORMS Order 82 r 2

2(1) The forms contained in the Schedule to these Rules shall be used with such
modifications as the circumstances of any particular case require.

2(2) where no form is provided in the Schedule to these Rules, the Judicial
Secretary with the approval of the Chief Justice may authorise the use of a
suitable form.

Schedules are precedents or Forms. Appear in C.I 47 from pages 274 onwards,
immediately after Order 82.

Late
THE UNDERLYING PRINCIPLE OF THE RULES
Appe
aranc Order 1 rule 1(2) - These rules shall be interpreted and applied so as to
e 0.9 r
6(1) achieve speedy and effective justice, avoid delays and unnecessary
Defen expense, and ensure that as far as possible all matters in dispute
dant
may between parties may be completely, effectively and finally determined
not and multiplicity of proceedings concerning any of such matters avoided.
file
appea
rance E.g. admitting defence out of time when an application is brought to enter default
after
judgm judgment for default of pleadings, or to strike out action for want of prosecution,
ent when Reply not filed within time or Application for Directions not taken, under
has
been Order 32
enter E.g. under Order 13.
ed
excep
Read also time for an appearance – Order 9 r 5- eight (8) days or where that time
has been extended by the Court within that time as extended.

Setting aside default judgment on terms Order 13 r 8

The Court may, on application by a party affected and on such terms as it thinks
just, set aside or vary any judgment entered in pursuance of this Order.

Reply – Order 11 r 3(1) (2) -a person served with defence has seven days to
file a reply if necessary.

Application for Directions- within one month after close of pleadings –

Plaintiff shall file same –Order 32 r 2

Order 32 r 3 deals with failure of Plaintiff to apply for application for directions –
Defendant may apply to dismiss action. Order 32 r 3 (2)- Court may either dismiss
the action on terms it considers just or deal with the application as if it were an
application for directions.

Rule of joinder- to avoid multiplicity of suits- See Order 4

The new rules make the Courts more amenable to amend even more liberally than
before.

16
 Amendment catered for in Order 16 of C.I 47. In Yeboah v. Bofour [1971] 2
GLR 199 CA the Court of Appeal laid down the conditions of amendment under the
Old rules Order 28 – and stated that as a general rule the Court will allow an
amendment even up to the last moment provided
(i) That no surprise results.
(ii) It does not enable a party to set up an entirely new case or change
completely the nature of his case.
(iii) It will not 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.

It was also held that the purpose of allowing an amendment – in order that the
real issues between the parties may be finally determined.

Amakom Sawmills v. Mensah [1963]1 GLR 368, 375 SC, Akuffo Addo JSC (as
he then was) where someone claimed £G3,000 but Court assessed damages to be
£G3,100 said, ‘’it seemed such a pity that a Plaintiff in the circumstances of this
case should be awarded less damages than a Court has found to be due, merely
because of technicality of having claimed a lesser figure on the writ. In such
circumstances the ends of justice will be much better served if the Court exercises
its power under Order 28 r 12 of the High Court (Civil Procedure) Rules to amend
the figure claimed to coincide with the figure to which in its view the Plaintiff is
entitled’’

See also Ghana Commercial Bank and Another v. Kofie & Others [1963] 2
GLR 235, SC – where Plaintiff claimed amount of £G5,592 6ˢ 9ᵈ but referees found
out that the Defendant were liable for £G6,786 5ˢ and the trial Court accepted the
finding of the referee but gave judgment for Plaintiffs for £G5,592 6ˢ 9ᵈ because
by their Statement of Claim they limited the claim.

Held the Court should have considered an amendment which was brought at the
time of the judgment. The Supreme Court amended. So amendment could even
be made on appeal. See also Gwira v. SIC [1991]1GLR 398, SC

In the new rules- C.I. 47 amendments made even more liberal because of the
underlying principles of Order 1.
Amendment by Order 16 r 5(1) could be made at any stage of proceedings;
leave could be granted to amend the Plaintiff’s writ or for a party to amend his
Treat
in
pleadings.
conn
Contrary to Yeboah v. Bofour – by Order 16 r 5(2) amendment could be allowed
Davi after relevant period of limitation has expired- the Court may nevertheless grant
s
vrs leave in circumstances in the application when it considers it just to do so.
Elsi
a B.
Ltd By Order 16 r 5 (3) – amendment may be allowed to correct the name of a
[19 party- even if the effect is to substitute a new party if the Court is satisfied that
60]
3 All the mistake sought to be corrected was a genuine mistake and was not
ER misleading.
672,
676 17

Aba
 Order 16 r 5 (4) to alter capacity in which a party sues if the new capacity is
one which that party had at the date of the commencement of the proceedings or
has since acquired.

r 5(5) Amendment will be allowed under sub-rule (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 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.

This appears to be contrary to Yeboah v. Bofour- but it appears to be in tune

with the underlying principle of the new rules- ensuring that there is speedy and
effective justice, avoiding delays and unnecessary expense and ensuring that as
far as possible, all matters in dispute between parties may be completely
effectively and finally determined to avoid multiplicity of suits.

The Joinder – these principles underline joinder of action.

-see Order 4 r 5 (1) (2)

r 5 (1) No proceedings shall be defeated by reason of misjoinder or non-joinder

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

r 5 (2) At any stage of the proceedings on such terms as it thinks just either of
its own motion or on application (a) order any person improperly or unnecessarily
made a party or who for any reason is no longer a party or a necessary party
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 added as a party.

THE BIGUZZI PRINCIPLE

See also case of Ricardo Biguzzi v. Rank Leisure P/C [1999] 4 All ER 934;
[1999] 1 WLR 1926 26 July 1999 CA. Lord Woolf MR

The Court’s power under the new CPR to deal with non-compliance with time limits, were
wide enough to allow the Court to allow re-instatement of an action previously struck
out. The Court could find alternative ways of dealing with any delay which could
recompense the other party and seek to achieve justice as between the parties. The new
Civil Procedure Rules had ushered in a new regime and that it was no longer useful to
look back at decisions under the pre-CPR regime because that was a different regime.
Lord Woolf pointed out the array of sanctions made available under the CPR which might
enable a Court to do justice to the parties, after delay had occurred, without resorting to
the draconian measure of a strike out order.
- Where Mr. Biguzzi was a bar manager at a night club in Brighton – and a fight
broke out in the course of which he suffered some injuries including what was
described by Mr. Hodge, the Consultant oral and maxillofacial surgeon, as a
18
 severe injury to his mandible – claimed other Heads of damages in addition to
the injuries and loss of earning – Plaintiff sued his employers for failing to
provide him with a safe place of work, caused him to cancel his insurance
policy on the ground that he would be satisfactorily covered by Defendant’s
own policy which he was entitled under his contract which the Defendants did
not provide.
An application for the suit to be struck out by Defendants on account of delay to
fix for hearing was refused by the Court on the basis that there was no substantial
risk of a fair trial not being able to be achieved and there was no serious prejudice
caused to the Defendant by the delay which had occurred -

The basis was that the new rules should be looked at devoid of the shadow of the
old and develop its own ethos. The trial Court held that “we now have to decide
what is going to happen and we shall. We will not, I repeat, look over our
shoulders. If the Court of Appeal try and tell us judges at first instance that we
must look over our shoulders in any way at all, we will just have to find ways of
adjusting our wing mirrors”.

The Court of Appeal agreed that the hearing of the case would not do any
injustice to the Defendant despite the delay.
Old
situa
tion In that case the CPR Rule 3.4 provided that “(2) the Court may strike out a
tried Statement of Case if it appears to the Court –
to
be a. That a statement of case discloses no reasonable ground for bringing or
rigid defending the claim.
to
avoi b. That the statement of case is an abuse of the Court’s process..............” and
d most importantly
dela
c. That there has been a failure to comply with a rule, practice direction or Court
order”
So the Courts often had to take draconian steps such as striking out proceeding in
order to stop the general culture of failing to prosecute proceedings expeditiously.
E.g. CPR O. 17 r 11(9) automatic striking out of cases where the appropriate step
of seeking a hearing date was not taken by the strike out date. That led to
litigation which was fought furiously on both sides on behalf of claimants to
preserve their claim, and on behalf of Defendants to bring the litigation to an end
irrespective of the justice of the case because of failure to comply with the rules of
the Court.

ORDER 81
Irregularities may be dispensed with or over-looked and failure to comply with a rule may
not necessarily lead to the nullification of the proceedings.

In Re Coles and Ravenshear [1907] 1 KB1

The issue was turned on whether or not application for extension of time to file an
appeal should be granted when the mistake was on account of counsel’s error :

Collins MR. stated thus “Although I agree that a Court cannot conduct itself without a
code of procedure, I think the relationship with rules of practice to the work of justice is
intended to be that of a handmaiden rather than a mistress and the Court ought

19
not to be so far bound and tied by rules which after all are only intended as general rules
of procedure as to be compelled to do what would cause injustice in a case”

In the case of Republic v. High Court, Koforidua, Ex parte Eastern Regional

Development Corporation [2003 -2004] SCGLR 21, 47.

FACTS: By Article 157 (3) of the Constitution – a person sitting in a cause and having
heard the arguments of parties to that case before judgment shall not withdraw before
judgment – and shall not become functus officio in respect of that case until judgment is
delivered.

And by Orde 63 of High Court (Civil Procedure) Rules 1954 (LN 140 A) as inserted by
High Court (Civil Procedure) (Amendment) Rules, 1977 (L. I. 1107) a judgment was to be
given not later than 6 weeks after close of the case. And where judgment not delivered
within that time C. J.’s permission in writing and reason for delay was required for the
judgment to be delivered by the judge. – And a party could notify the C. J. for C. J. to fix
a date for judgment.

This has been re-enacted in Order 41 r 2 of C. I. 47.

The High Court Koforidua gave judgment in a civil suit more than 6 weeks after the
parties had filed addresses.

Applicant brought application for certiorari in the Supreme Court relying on the Supreme
Court case of Republic v. Judicial Committee of the Central Regional House of
Chiefs, Ex-parte Aaba [2001 - 2002] SCGLR 545 where the SC had held that the
Judicial Committee of the Central Regional House of Chiefs were legally obliged to deliver
their judgments, within 6 weeks unless the Chief Justice had granted extension of time
without which judgment after 6 weeks was a nullity.

Held majority 4 – 1

i) That Article 157(3) clearly showed that a Superior Court judge’s jurisdiction in
respect of which concluding argument had been made, could not be
terminated until he had given judgment and therefore rule 2A of Order 63 of
(LN 140A) as inserted by L.I 1107 which sought to terminate the jurisdiction of
a superior Court judge at a certain point in time when that judge had not
delivered his judgment, was incompatible with Article 157 (3) of the
Constitution. That the situation was different when a retired judge who had
been unable to deliver his judgment within the maximum 6 months provided
by Article 145(4) of the Constitution.

The failure of the Supreme Court in Ex parte Aaba to consider article 157(3) of
the Constitution, 1992 in relation to rule 2A of L.I.1107 rendered the decision
per incuriam.

That they would in any case depart from their own previous decision as
permitted under the constitution.

That the failure to comply with the 6 week rule was at best, a mere infraction
of a purely administrative matter that raises an internal disciplinary issue

20
 against the judge rather than a substantive or fundamental issue against the
validity of the judgment.

Ampiah & Atuguba- felt Article 157(3) of the constitution not in consistent with the L.I.
Ampiah felt the breach rendered the judgment proceedings null and void. Considers it a
big gap in our laws needing to be filled. Nigeria had ruled such non-compliance to be a
nullity nullifying ruling the judgment.

Atuguba felt that non-compliance within those time limits is a curable defect and is not
outside the purview of Order 70 r 1

But Majority – Wiredu C.J, Acquah JSC (as then was) agreed with Sophia Akuffo JSC.

Sophia Akuffo JSC @ P 147

“In its complementary character, civil procedure functions as a vehicle for the
actualisation of substantive law and this role has been likened to that of “a handmaiden
rather than a mistress” which must not be applied in such a hard and fast manner as to
cause injustice in any particular case (See Re Coles and Ravenshear [1907] 1KB1, 4
CA per Collins MR.).
In its protective character, rules of procedure promote order, regularity, predictability
and transparency which are essential for the assurance of due process in the delivery of
justice and judicial effectiveness. In its remedial or practical character, rules of procedure
serve the purpose of facilitating the sound management of litigation and process
efficiency. It is these basic characteristics of civil procedure rules that facilitate the
realisation of the overall objective of the judiciary, which is to assure access to justice for
all.

Consequently, in an application of any procedural rule (or set of rules) it is often

necessary for the Court to take into account the function of that particular rule and the
objective it is intended to serve. The function of rule 2A of L.I.1107 is to regulate the
time for the delivery of judgments; and the objective is to assure that judgments are
delivered with the least delay after the close of litigation in the High Court so that parties
might proceed with the ordering of their lives.

In other words, once parties have completed their respective parts in the litigation, with
the delivery of their closing arguments, it is the duty of the judge (pursuant to the rule)
to ensure that he delivers his judgment therein within the time stipulated. In character,
therefore, these provisions serve to protect the rightful interest of parties (as well as the
social interest) in timely and efficient delivery of justice, since justice delayed is justice
denied. If such be the objective, then two practical questions arise from a declaration
that a judgment delivered out of time is a nullity:
1) Other than visiting unnecessary hardships on litigants, what complementary,
protective, remedial or practical purpose does such a declaration serve and in
what manner does it promote the assurance of access to justice?

2) Having nullified such a judgment, is the cause or matter to be tried de novo,

with the inevitable (and, one may venture to say, needless) additional cost in
time, opportunity and money to both litigants and the judicial system, or might
the judge obtain the leave of the chief justice and then re-deliver the judgment
?

21
 Remember the underlying principle of the Civil Procedure Rules as can be gleaned from
Order 1 r 1(2).

The rules are to be interpreted.

(1) To achieve speedy and effective justice.
(2) To avoid delay and unnecessary expenses.
(3) Ensure complete, effective and final determination of disputes.
(4) Avoid multiplicity of suits.

Order 37 r 2 – Duty to Avoid Delays

Order 37 r 2 – it is the duty of the parties, their lawyers and the Court to avoid all
unnecessary adjournments and other delays and to ensure that causes or matters are
disposed of as speedily as the justice of the case permits.
See Republic v. High Court (Fast Track Division) Accra; Exparte Sian Goldfields
Ltd (Aurex Management & Investment AG/SA Ltd Interested Party) [2009]
SCGLR, 204

Order 81 – Deals with effects of non-compliance with Rules i.e. technical rules.
Takyi
Ghas
By Order 81 rule 1 non-compliance with Rules would not necessarily render
proceedings void.

Thus in Order 81 r 1 (1) it is provided that where in beginning or purporting to

begin 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
Taky
iv proceedings, or any document, judgment or order in it.
Gha
ssou
b 1(2) The Court may on the ground that there has been such a failure as stated in
[198 sub rule (1) and on such terms as to costs or otherwise as it considers just
7-
88]
2 a) set aside either wholly or in part the proceedings in which the failure occurred any
GLR
252
step taken on those proceedings or any document, judgment or order therein;
b) exercise its powers under these Rules to allow such amendments to be made and
S.
178(
to make such order dealing with the proceedings generally as it considers just.
4)
Order 81 r 2(1) and (2)- Therefore deals with setting aside for Irregularity.

Order 81 r 2 (1) ‘’An application may be made by motion to set aside for irregularity
any proceedings or any document judgment or order in it, and the grounds of it shall
be stated in the notice of the application.

Order 81 r 2(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.

22
 Effect of Non compliance –

By Order 81 – irregularities in Court proceeding may be forgiven or pardoned by the

Court in that if there is a failure on the part of a party to comply with the rules in the
appropriate case, may not necessarily nullify the proceedings.

The case of In Re Coles & Ravershear [1907] IKB 1, 4 CA per Lord Collins MR. -
on the issue as to whether or not an application for extension of time to appeal
should be granted when the mistake of not keeping to the time was that of Counsel’s
error.

PUBLICITY OF COURT PROCEEDING- Order 1 r 2

Order 1 r 2(1) Provides that all proceedings of the Court including the announcement of
its decision shall be held in public except as may be otherwise ordered by the Court in
the interest of public morality, safety or public order.

Order 1 r 2(2) – subrule (1) shall have effect subject to the provisions of the Constitution
and any other enactment in force.

Order 1 r 2(3) where in the exercise of its powers the Court orders proceedings not to be
heard in public it shall specify the reason in the Record Book and those proceedings shall
be held by the judge in the presence of only the parties, their lawyers and officers of the
Court.
Unlik
e This is also a constitutional right of the parties
Tribu
nal of
old, ARTICLE 126(3) Constitution states that “Except as otherwise provided in this
Ache
ampo
constitution or as may otherwise be ordered by a Court in the interest of public
ng order, the proceedings of every Court shall be held in public.
Akuff
o
trials See also section 102 of Courts Act 1993, Act 459 – By which Court and
tribunal proceedings are to be generally held in public –

102 (1) Except as may be otherwise ordered by a Court or tribunal in the interest
of public morality, public safety or public order, the proceedings of every Court or
tribunal including the announcement of a decision of the Court or tribunal shall be
held in public .

(2) Nothing contained in sub-section (1) of this section shall prevent a Court or
tribunal from excluding from the proceedings persons other than the parties to the
case or action and their Counsel to such an extent as the Court or Tribunal may
consider necessary or expedient.

(a) In circumstances where publicity would prejudice the interest of justice or any
interlocutory proceedings; or
(b) In the interest of defence, public safety, public morality, the welfare of persons
under age of majority, or the protection of the private lives of person
concerned in the proceedings

23
 (3) Subject to article 125 and clause 4 of Article 140 of Constitution and to any
rules of Court, a Court or member of the Court or tribunal exercising the function
under the constitution this Act or any other enactment may discharge the function
in chambers
(4) The parties to the proceedings to which sub-section (3) of the section applies
shall be informed in writing of the decision to discharge in chambers any function
referred to in that subsection.

Section 39 of the Matrimonial Causes Act 1971, Act 367 – Privacy of Proceedings
“The Court may direct that any proceedings under this Act be heard in private and may
exclude all persons except officers of the Court, the parties and their witnesses and
lawyers where the Court is satisfied that the interests of the parties or the children of the
household so require”.

Order 65 rule 20(1) of C.I 47

Where Subject to section 39 of the MCA and this rule, the witnesses at the trial of any
proceedings under this order shall be examined orally and in open Court provided that
the Court may order that it may take affidavit evidence, or such affidavit may read on
such conditions as it considers necessary.

Order 50 r 3 – application in committal for Contempt proceedings may be heard in

chambers where:

(a) the application arises out of proceedings that relate to the hardships or
adoption of an infant or wholly or mainly to the guardianship, custody,
fosterage, maintenance or upbringing of child, or right of access to a child.
(b) The application arises out of proceedings that relate to a person who suffers or
appear to suffer from mental illness.
(c) The application arises out of proceedings which a secret process, discovery or
invention is in issue; or
(d) It appears to the Court that in the interest of the administration of justice or
for reasons of national security the application should be heard in chambers,
except that in all cases, the application shall be heard in open Court.

(2) If the Court hearing an application in chambers by virtue of subrule

 decides to make an order of committal against the person sought to be

committed, it shall state in open Court.

(a) The name of that person

(b) In general terms the nature of the contempt of Court in respect of which the
order of committal is being made; and
(c) If the person is being committed for a fixed period, the length of that period.

Order 1 r 1 and Order 82 r 1- the rules cannot foresee and provide for all conceivable
situations and cater for all facts and aspects of the practice and procedure of the Court.
So Order 1 r 1 and Order 82 (1) are omnibus stipulations or provisions in rules enough
-that enable us to borrow from the rules of procedure in force in any common law
country where convenient, where no provision is made in our rules. It provide that:
“where in respect of any matter of procedure, no provision is made by these Rules, the

24
practice for the time being in force in any common law country may where convenient be
applied”

Order 35 - Dealing with Proceedings where the Court hears matters in chambers- deals
with proceedings in chambers.

By Order 35 r 1- the common feature of the judge having the power to order a cause for
matter to be disposed of in chambers- in certain situations but such power may only be
exercised in the interest of public order, public safety or public morality.

These include: Applications with respect of funds- Order 35 r 2

Order 35 r 2(1) the following applications to the Court may be disposed of in chambers:

(a) Applications for the payment or transfer of funds by any person in Court
standing to the credit.................

(b) Application for the investment or change of investment of any funds in

Court.

(c) Application for payment of dividends or interest on any funds in Court

representing or comprising money or securities lodged in Court under any
enactment.

(d) Application for the payment or transfer out of Court of any funds
mentioned in paragraph as mention in rule (c) of the subrule.

(2) This rule does not apply to application for an order under O.18.

Order 18 deals with payment into and out of Court

Other business to be disposed in chambers Order 35 r 3(1)

Under Order 35 rule 3(1) the following matters may also be disposed of in chambers:

(a) Applications as to the guardianship, parentage, custody, access to and

maintenance of infants;
(b) Any matter relating to the fosterage and adoption of children
(c) Applications connected with the management of property.
(d) Applications for or relating to the sale by auction or private contract of
property and also to the manner in which the sale is to be conducted, and for
the payment into Court and investment of the purchase money and
(e) The determination of any question of the construction arising under a deed,
will or other written instrument, and declaration of the rights of the persons
interested.

25
 COMMENCEMENT OF ACTIONS

COMMENCEMENT OF PROCEEDINGS: ORDER 2

Order 2 r 1 Subject to any existing enactment to the contrary , the party who
commences civil proceedings shall be described as “PLAINTIFF” and the opposing party
shall be described as “DEFENDANT”.

Commencement of Proceedings Or 2 r 2
Subject to any existing enactment to the contrary, “All Civil Proceedings shall be
commenced by the filing of a writ of summons”.

1. - You must obtain the writ of summons from the Registrar.

2. -You must endorse your claim on it

So every writ of summons must have an endorsement: Order 2 r 3(1)

The writ of summons is a Form as in Form 1 in the Schedule – and shall be

indorsed with a statement of the nature of the claim, relief or remedy sought in
the action.

FORM 1:

1. Date
2. Suit No. Suit No.......................
Whe 3. Court
re
addr 4. Title-names of parties
esse
s on
writ i. Writ of Summons: It is a formal official document issued out in the name of
was the Chief Justice by which she informs the Defendant of an action being
c/o
Plain commenced against him and commanding him to cause an appearance to be
tiff’s entered for him and formally notifying him that if he defaulted in entering
solici
tor appearance within 8 days of the service of the document on him default
was judgment may be given against him in his absence without any further notice
held
to be
to him again.
in
orde
r and
CONTENTS OF WRIT
did
not
reall
At the other side – we have endorsement with a statement of the nature of the claim,
relief or remedy sought in the action - Order 2 r 3 (1)

Order 2 r 3(2) the occupational and residential address of the parties shall be stated
on the writ and the address of the Plaintiff rather than the address of the lawyer of
the Plaintiff shall be used in the writ.

Order 2 r 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
(a) to the Plaintiff or Plaintiff’s lawyer; or (b) into Court if the Plaintiff is resident
outside the country or is acting on behalf of a person so resident or if the
26
 Defendant is making payment by an order on behalf of a person resident outside
the country.
If a writ does not have the proper address on it the Registrar will not accept it.
The purpose of address is to have the necessary information on it to serve the
party concerned.

Endorsement
Endorsement on the Writ- (1) is a very brief summary of the Plaintiff’s claim (2) It
discloses whether the Plaintiff has a course of action or not- so it must disclose in
brief the cause of action which the Plaintiff has for bringing the action (3) it also
indicates/discloses the relief or reliefs which the Plaintiff is seeking.

Generally speaking, subject to what modification or amendment a Plaintiff may

make in his Statement of Claim, no one would get from the Court what he has not
claimed or what necessarily flows from the claim, unless it is claimed. It is not the
detail of the pleading itself which is the Statement of Claim but it must give or
contain sufficient information to enable the Defendant to know the alleged breach
or wrong he has committed. It must envince a course of action and give a fair
idea of the Plaintiff’s case.

OTHER MODES OF COMMENCEMENT OF PROCEEDINGS

Order 2 r 2 says “Subject to any existing enactment to the contrary” all civil
A
civil proceedings shall be commenced by the filing of a writ of summons. It
proc presupposes other modes of commencing proceedings as shall be provided to the
eedi
ng contrary by any existing enactment. In fact by Order 82 r 3 “action” means a civil
com proceeding commenced by writ or in such other manner as may be prescribed by
these Rules or by any other enactment.

Under the old rules, action could also be commenced by originating summons-
that has been dispensed with by Order 2 r 2 since C.I 47 revoked LN 140A entirely
.

Commencement of proceedings
Involves invoking the jurisdiction of the Court. From Order 2 r 2 therefore- subject
to the provisions of any statute or rule, civil proceedings in the High Court and
Circuit Court may be began by three ways, viz:

(i) writ of Summons

(ii) Originating Notice of Motion
(iii) Petition

(ii) ORIGINATING NOTICE OF MOTION

An originating Notice of Motion is a process in the nature of a motion adopted where a

statute provides for the making of an application to the Court but which does not specify
the manner in which it should be brought and/or there is no specified rule of Court
regulating the procedure for bringing it. This appears to be provided for under Order 19 r
1 (2) where it is provided that “Proceedings by which an application is to be made to the
Court or a Judge under any enactment shall be initiated by motion and where an
enactment provides that an application shall be made by some other means, an
27
 application by motion shall be deemed to satisfy the provision of the enactment as to the
making of the application.

The titles are thus: In the matter of the Republic v High Court, Kumasi and in the matter
of the Application for certiorari by..........................

This is not to be confused with Order 19 r 1(1) which deals with “every application in
pending proceedings” which shall be made by motion -

-which is different from Originating Notice of Motion- in that Order 19 r 1(1) is ordinary
motion- dealing with pending interlocutory matters- as opposed to motions to initiate
actions.

But essentially they are both motion very much like motions in ordinary pending actions-
moved by the applicant or lawyer for the applicants on behalf of applicant and supported
by affidavit verifying the facts.

Examples of Originating Notice of Motion are applications for

(i) Judicial Review e.g prerogative writs Order 55

(ii) Habeas Corpus Order 56
(ii) Application for Probate or Letters of Administration under Order 66
(iv) Order 67 r 2 – Application for the enforcement of Fundamental Human Rights
as under article 33(1) of the constitution.
(v) Application under the Companies Code, 1963 (Act 179) e.g. As in Section 218-
Remedy against oppression by which any member or debenture holder of a
company or in a case falling under s.255 of this Act the Registrar may apply for
an order under this section.
(vi) Order 50 r 1(2) – committal for contempt.

(iii) PETITION
Another mode of initiating an action is by Petition (a) Example is by Order 65 r 2
which provides that: all proceedings for divorce, nullity, presumption of death and
dissolution of marriage, maintenance orders and child custody order under the
Matrimonial Causes Act, 1971 (Act 367) shall be by Petition (See Order 65 rr 1 &
2) see also section 1 of MCA “A Petition for divorce may be presented to the Court
Repre by either party.
senta
tion of
the (b) Election Petition under PNDC Law 284- Representation of the People Law and
peopl C.I. 15 (Public Elections Regulations) PART IV – Election Petition and other Legal
es law
Proceedings Section 16(1) The validity of an election to Parliament shall be
questioned only by a Petition brought under this part. CHRAJ v. E.P Church
[2001-2002] 1 GLR 356; Peoples Popular Party v. Attorney General [1971] 1
GLR 138. (2) Every election Petition shall be presented before High Court for
hearing.
Presidential election challenge shall be presented to the Supreme Court under C.I.
16 by petition.

(c) Petition for Winding up (Liquidation) under the Bodies Corporate (Official Liquidation)
Act, 1963 Act 180.
Section 1 of Act 180-
28
The official winding up of a company may be commenced by
a) a special resolution of the company.
b) a petition addressed to the Registrar
c) a petition to the Court or
d) a conversion from a private liquidation

EFFECT OF INITIATING PROCEEDINGS BY THE WRONG MEANS

What is the effect if beginning an action by the wrong process- Eg. Where a writ or an
originating action is began by some other means.

This brings to mind the effect of non-compliance with the Rules within the meaning of
Orders 81.

If the irregularity causes no “prejudice” to the other side the Court may overlook it and
permit the proceeding to proceed.

In Oyston v. Blaker [1996] 1 WLR 1326, 1336; [1996] 2 All ER 106, 116 in considering
the question of prejudice the Court should look at

(i) The gravity of the irregularity

(ii) The staleness of the claim (otiose)
(iii) The Strength of the case
(iv) The conduct of the parties and their advisers or counsel
(v) Any question of abuse of the process
(vi) Any delays and the reasons therefor

In Orielly v. Mackman (1982) 3 All E.R 1124 where the issue was: whether an
application for judicial review of the decision of the Board of Prison Visitors by a writ or
an original summons was an abuse of the process as there was a procedure laid down in
order 53 of the R. SC

HELD that where the procedures have been laid down in terms of appeal against decision
of the public authority, it should be followed. In this case they are supposed to bring an
application for judicial review but not a writ or an (originating) motion.
Boakye v. Tutuyehene [2007-2008] SCGLR 970 per Dr. Twum JSc @ 980; see
Republic v. High Court, Koforidua Exparte Ansah-Otu (Koans Building Solutions
Ltd Interested Party) [2009] SCGLR, 141.

In Re Pritchard [1963]1 All E.R 873, [1963] 1 Ch 502, 513 &523

FACT: Where a husband made no provision for the widow in his will. An originating
notice under the Inheritance Act was brought in the wrong Court. The Defendant entered
appearance and did not object to the issue of the summons. The point was subsequently
raised in the district registry.

ISSUE: The issue was whether the originating summons which was wrongly issued was
a mere irregularity which could be overlooked by the Court.

29
HELD: The defect was not a mere irregularity but a fundamental error which the
Defendant could not waive. There had therefore not been a commencement of
proceedings.
See the Republic v. High Court, Sekondi; Exparte Perko II [2001-2002] 2GLR 460
per Benin JA at 467-468; Republic v. High Court Koforidua; Exparte Asare (Baba
Jamal & ors, Interested Parties) [2009] SCGLR 460

Quartey v. Quartey [1963]1GLR 58 where the Plaintiff took originating summons for a
declaration that the marriage to the Defendant was bigamous and has no validity in law
and obtained judgment.

On Appeal
Held: Allowing the appeal – that it is clear that such a declaration was beyond the
competence of the court having regard to the nature of the proceedings initiated before
it. Such an issue could be determined only if the trial had been initiated by an
appropriate action – So the judgment was set aside

Korsah CJ. “It will be observed that these proceedings were initiated by an originating
summons under Order 54 rule 4 of the Supreme (High) Court (Civil Procedure) Rules to
determine questions (1) “arising in the administration of estate of Samuel Rodger Boi
Quartey (deceased)” and (2) “ In the matter of the Marriage Ordinance Cap 127”. It will
be observed that there is no absolute right to proceed by originating summons and a
Plaintiff or applicant by originating summons must be prepared to show that this use
thereof is required or permitted by a rule or Statute” See Re Squares Settlement [1946]
W.N.11, 115 L.J Ch 90

So if defect is fundamental or if it goes to the jurisdiction of the Courts then Order 81

cannot save it.
See the case of The Republic v. High Court Accra; Ex parte Allgate Co. Ltd
(Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041.

But if the defect is not fundamental, it would not necessarily be set aside. In Adorsu &
Others v. Sokpoli [1982-83] GLR 1133 – where an application was required to be made
by summons instead of motion it was held that “whatever the case may be this situation
appears to be one that can also conveniently be taken care of by Order 70 r 1 by treating
the application as though it were summons since in doing so no prejudice or hardship
can be said to arise against the Plaintiff /Respondent.

Shardey v. Adamtey & Shardey v. Martey & Anor (consolidated) [1972] 2 GLR 389,
CA

Where the rule under which an application was being brought was cited differently or
wrongly:

Court Held per Archer JA that citing of the rules of Court in applications before the Court
is desirable but is not so indispensable that failure to do so would rock the very
foundation of the administration of justice. When an application is made and 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
30
application is clear but the wrong rule has been quoted, an applicant should be permitted
to amend in furtherance of justice.
Per Lassey JA ... So long as the substance of motion filed has in no where been altered
as a result of the purported substitution of the correct rule applicable on the motion
paper, the Court has full power to entertain the oral application to amend, once it is
satisfied that the appeal has been entered in compliance with the rules of Court.

In Real Estate Developers Ltd v. Fosua & Another [1984-86] 2 GLR 334, CA

Where the Plaintiffs were given judgment for specific performance of agreement to
purchase houses from the Def/appellant Real Estate Company. The suits were
consolidated orally and heard. On appeal Defendant/Appellant contended consolidation
was wrong because there was no application by motion or summons

Held that even if the consolidation was ordered without regard to proper procedure in
that there was no written application by way of motion or summons, the answer was to
be found in Order 70 of the High Court (Civil Procedure) Rules 1954 (in 140A) i.e. the
rule dealing with the effect of non-compliance. In any event, counsel had been unable to
show how prejudiced or damnified the Defendant Company was by the consolidation.

CONTENT

On addresses –
Referred to case of Mallet v. Braun [1975] 1 GLR 78 – where under the old law Order 4
rr 1&2 – an address on the writ was c/o Plaintiff’s solicitor it was held to be in order and
did not really matter.

But in the case of Alpha Manufacturing Co. Ltd v. Nyamekeh [1981] GLR 470 where
the writ was not signed by party or solicitor Held: that non-compliance was fatal but not
mere irregularity as same rendered the writ null and void.

The W. A. Shelton (1887) 13PD 8

Where the address of Defendants was deliberately omitted from the writ of summons. In
that case the Defendants were a Dutch Company carrying on business in Holland and a
copy of the writ was each served on a sub agent of the Company in America and the
Managing Director of the company in Holland who both happened to be temporarily
within the jurisdiction. In an application to set aside the writ of summons, Butt J held at
p. 9 that “By the form prescribed by the orders under the Judicature Act, the address as
well as the name of the Defendant is a necessary part of the writ. I am quite aware that
this is a writ for service not out of jurisdiction but within it; still it would not have been
sealed if the officer of the Court had observed that there was no address of the
Defendant on it, or had there been the address of this foreign corporation. It is clear that
the address was purposely omitted and that being so, this writ is invalid and must be set
aside”.

In Kombat & Others v. Bediako & Ors, Ex parte Kombat [1971] 1 GLR 196 where
only the address of the 3rd Defendant was indorsed on the writ but those of the 1 st and
2nd Defendants were not.

31
Issue: Whether a writ on which the address of a Defendant had not been endorsed could
be the subject matter of an application for substituted served.

Held, per Taylor J (as he then was) – that it was inexpedient to order substituted service
in the absence of the address of the Defendant, which was an essential feature of the
writ. Also that a ruling could not be based upon speculation.

BAWA v. OYEGOKE [1977] 2 GLR 412

Where the Plaintiff issued a writ of summons in ordinary form against the 1 st Defendant
who was formerly resident in Ghana but at the time of the issue of the writ resident in
Nigeria, without stating the address at which the 1 st Defendant could be served; and
brought an Ex parte application for substituted service of the writ on a wife of the 1 st
Defendant resident in Ghana, Held by Taylor J (as he then was) refusing the application
– that an address was an essential feature of a writ of summons. Consequently the writ
issued against the 1st Defendant was invalid and it would be improper to order
substituted service if the Plaintiff did not obtain an amendment.

So address has been held to be an essential feature of a writ.

See also case of Naos Holding Inc v. Ghana Commercial Bank [2005-2006]
SCGLR407

Failure to endorse address- Wilson v. Smith [1980] GLR152 CA – did not make writ of
summons null and void. It was only an irregularity which could be cured under Order 70
r 1 of L.N. 140A

Republic v. High Court, Tema, Exparte Owners of Essco Spirit (Darya Shipping
S.A Interested Party) [2003-2004] SCGLR 689, where there was no endorsement on writ.

Order 2 r 3(1) every writ shall be in a prescribed form as in Form 1 in the schedule and
shall be indorsed with a statement of the nature of the claim, relief or remedy sought in
the action. As learnt earlier, the indorsement should envince a cause of action.

What is a cause of action?

In Letang v. Cooper [1965]1 QB 232 at page 242, Diplock LJ defined a cause of action
as: “a factual situation the existence of which entitles one person to obtain from court a
remedy against another person. If A, by failing to exercise reasonable care, inflicts direct
personal injury upon B, those facts constitute a cause of action on the part of B against A
for damages in respect of personal injuries”.
Disclosing a cause of action is to state facts from which could be inferred that one’s legal
right has been infringed. On meaning of cause of action see Cook v. Kutsoatsi [1960]
GLR 96
Note Order 2 r 3(3) where the plaintiff’s claim is for 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
Defendant pays the amount claimed;
a. To the Plaintiff or the Plaintiff’s lawyer or

32
 b. 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 payment by an
order or on behalf of a person resident outside the country.

See also Order 74 r 4(1) where the Plaintiff’s claim is for liquidated demand only, and the
Defendant within the time limited for appearance pays the amount claimed to the
Plaintiff or the lawyer or agent of the Plaintiff, the Plaintiff shall be entitled, without an
order of the Court, to costs of the action.

So it means automatic cost whether claimed against the Defendants or not and without
any order of costs, action would not have been ripe for hearing.

CONTENT OF WRIT OF SUMMONS CONTINUED

Order 2 rules 2 and 3 – referred to

Order 2 r 3 (1) shall be indorsed with a statement of the nature to the claim, relief or
remedy sought in the action (Order 2 r 3(1), (2) (3) see also Order 74 r 4

Order 57 r (2) – endorsement in defamation action –

Before a writ is issued in an action for libel it shall be indorsed with a statement giving
sufficient particulars of the publication in respect of which the action is brought to enable
them to be identified.

Order 2 r 4 (1)

Before a 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.

E.g. Opanin Kwasi Asamoah suing as the Head of his family or Kwame Boateng suing for
himself and on behalf of his brothers and sister or (on behalf of the children of the late
Opanin Yaw Nnuro)
Vrs.

Or James Nkrumah, (suing in his capacity as the sole Executor of the late Kwasi Fodah)

Or 1. Rev. Samuel Boateng

2. Rev. Nicholas Addai
3.Elder Joshua Opoku Mensah, being sued as the Trustees of Christ Ambassadors
Church /the Methodist Church, Ghana/Presbyterian Church of Ghana

Order 2 r 5 – Indorsement as to Plaintiff

Order 2 r 4(1) deals with the situation where the Plaintiff sues or the Defendant is sued
in a representative capacity.

33
But Order 2 r 5(1) (a) deals with the situation where the Plaintiff sues in person and
Order 2 r 5 (1)(b) with a situation where Plaintiff sues by a lawyer.

In such situations before the writ is filed it shall be indorsed in Order 2 r 5(1) (a) where
the Plaintiff sues in person, with the occupational and residential address of the Plaintiff
or if the Plaintiff resides outside the country to which document for the Plaintiff may be
served.

3. Where the Plaintiff sues by a lawyer, the Plaintiff shall in addition to the residential
and occupational address of the parties provide at the back of the writ the
lawyer’s 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.

Note that emphasis has been put on certain words including firm name where he sues by
a lawyer.

The Address for service of Plaintiff-

In Order 2 r 5 (2) the address for service of a Plaintiff shall be:

(a) Where the Plaintiff sues by a lawyer, the business address of the Plaintiff or the
Plaintiff’s lawyer, or the Plaintiff ‘s lawyer’s agent as indorsed on the writ or

(b) Where the Plaintiff sues in person, the Plaintiff’s address in the country as
indorsed on the writ.

See also Order 2 r 5 (3) (4)

Order 2 r 5 (3) where a lawyer’s name is indorsed on the writ, the lawyer shall declare in
writing whether the writ was filed by lawyer or with the authority or consent of the
Plaintiff, if any Defendant who has been served with or who has filed
appearance to the writ, requests the lawyer in writing to do so.

Order 2 r 5(4) If the lawyer declares in writing that the writ was not filed by the lawyer
or with the authority or consent of the Plaintiff, the Court may, on application by any
Defendant who has been served with or who has filed appearance to the writ, strike out
the writ.

What happens if the address of the Defendant cannot be ascertained: that is catered for
by Order 2 r 5(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.

VENUE OF ACTION

Order 3 deals with Venue and Transfer of proceedings

Venue of Proceedings – is provided for by Order 3 r 1.

Order 3 r 1
34
 (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 destrained or seized for
any cause shall be commenced in the Region in which the destraint or seizure
takes place.

(3) Every cause or matter against a public officer to recover 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

breach of contract, shall be commenced in the Region in which the
contract ought to have been performed or in which the Defendant resides or
carries on business

(5) All other causes or matter shall be commenced in the Region in which
the Defendant resides or carries on business.

(6) If there are two or more Defendants resident in different Region the cause or
matter may be commenced in any of the Regions .

Volde
n& In the case of WIREDU & ANOR v. MIM TIMBER CO. LTD. [1963] 2 GLR 167,
Ors
V SC where the Plaintiffs sued the Defendant in the Kumasi High Court in respect of
Ghana trespass to their concession. On appeal to Supreme Court, on the issue whether
Goldfi
elds the proceedings taken in the Land Court, Kumasi when they should have been
Ltd. taken in the Land Court, Sunyani, in whose jurisdiction the land was situate
[1999-
2000]
GLR HELD (Holding 3) the High Court under the Courts Ordinance , Cap. 4 (1951
462
Rev.) repealed, as under the Courts Act, 1960 (C.A. 9) was just one High
Yaro Court exercising jurisdiction throughout the country. It was divided into
Trans
port & judicial divisions merely for the convenient administration of justice, but not for
anor v the purposes of limiting the jurisdiction of each judicial division to only matters
Agyar
arising within its division. Thus a decision of a judicial division seized with
a case which could have been properly instituted in another division
could be valid unless at the trial an objection was raised either by a
party to the proceedings or the judge himself. Since no objection was
raised, the jurisdiction could not be challenged.

Transfer of Proceedings

Order 3 r 2(1) where a cause or matter is commenced in a Region other than that
in which it ought to have been commenced under rules it may continue in the
Region in which it was commenced unless;

35
 (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.

This means that even if an action is instituted in a Region other than the Region
permitted by Order 3 r 1, the High Court will have jurisdiction to determine the
matter unless the

(a) Defendant specifically raises an objection to the jurisdiction timeously i.e.

before or at the time he is required to file a defence in the proceedings or he
would be deemed to have waived the right to object; in which case the High
Court would have the jurisdiction to deal with the matter.
(b) The Court may also report to the Chief Justice that in its opinion the
proceedings ought to be transferred and the Chief Justice orders the transfer.

The word is may, so it is not mandatory the Chief Justice is bound to transfer when the
request is made.

Proceedings taken prior to objection:

In this connection no proceedings taken prior to the objection would be

affected by the objection – for, as provided by Order 3 r 2(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
High
Court
founded, shall inform the Chief Justice that in its opinion the cause or matter
one ought to be transferred to the Region in which it ought to have been
ct.
commenced, and the Chief Justice may upon that, make such order as the
Chief Justice considers appropriate.

It is noteworthy that in none of the situations will the suit be struck out even
if the objection is raised at the appropriate or right time, and the Court is
satisfied that the objection is well founded it 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 commenced and the Chief Justice may make such
order as she considers appropriate.

It is not struck out. The Chief Justice will not strike same out. Multiplicity of
suits will be avoided, time saved, justice ensured. Note also that this might be
so because the underlying principle is that the High Court is one Court-

So Chief Justice would then apply his/her powers of transfer in the appropriate
case where she believes that the justice of the case is required for that
transfer.

That brings us to Sections 104-106 of the Courts Act, 1993, Act 459.

(1) Section 104 of the Courts Acts gives the Chief Justice power by
order under his hand to transfer a case from any Judge or
Magistrate and from one Court to another Court of competent
36
 jurisdiction at any time or stage of the proceedings either with or
without an application from any of the parties (S. 104 as amended
by Courts (Amendment) Act, 2002 (Act 620).

(2) Section 104 (2) –The order may be general or special and shall
state the nature and extent of the transfer and in any case of
The urgency the power of transfer may be exercised by means of a
case
That
telegraphic, telephonic or electronic communication from the Chief
transf Justice.
er

(3) Section 104 (3) A transfer of a case made by telegraph, telephone

or electronic communication and not confirmed immediately by
order signed and sealed in a manner specified by the Chief Justice
or any other person authorised in that behalf by him shall be of no
effect.

But for the purpose of the topic before us Section 105(1) is apposite and must be
looked at.

Section 105 (1) says that Any judge of the High Court (or Chairman of a Regional
Tribunal) may on his own initiative or on application by any person concerned, report to
the Chief Justice any case civil or criminal pending before him, which in his opinion ought
for any reason to be transferred from him to any other Court, Judge or Regional
Tribunal)

Section 105 (2) And under section 105 the Chief Justice is satisfied that a transfer is
desirable he shall specify the Court or tribunal to which or the judge to whom that case
is to be transferred for hearing and determination and give such other directions as may
be necessary.

These provisions in s. 104 informs how the Chief Justice may deal with cases reported to
him Order 3 r 2 (1) of C.I. 47.

In the case of: SORO v. FRANS [2005-2006] SCGLR 1003.

It has been held that the power of the Chief Justice to transfer
.
cases and taking away the jurisdiction of any judge to hear and
determine any cause or matter pending before him or her, be it
part-heard case or a fresh matter is in stricto sensu reserved
exclusively in the Chief Justice under Section 104 of the Courts Act,
Or
perso
1993 (Act 459) as amended by the Courts (Amendment) Act 2002
n who (Act 620) s. 7 and schedule. A Supervising High Court Judge and
turns
the Chairman of the Regional Tribunal are also empowered to order
the transfer of case under section 106 of Act 459, but their power is
understandably subordinate to that of the Chief Justice. The
necessary implication is that whenever a judge’s jurisdiction over a
matter is taken away by the Chief Justice under his hand and seal
by virtue of section 104 of the Courts Act, 1993 (Act 459), the only
manner by which the jurisdiction may be validly restored is by
37
 another formal transfer i.e. re-transfer in the like manner, under the
hand and seal of the Chief Justice as provided for under Act 459
s.104. It does follow that, a purely administrative letter, merely
directing the affected judge to re-assume jurisdiction would not
suffice

In the instant case, the Court of Appeal was right in reversing the judgment of the High
Court in favour of the Plaintiff on the ground of nullity, namely that the High Court had
no jurisdiction without another order of re-transfer to continue with the case after it had
been transferred from him, pursuant to an order of the Chief Justice, in the exercise of
his discretionary powers under Act 459, S.104 as amended.
Per Lartey JSC
“Clearly a mere letter from the Chief Justice to one of the parties will not suffice to effect
a valid order of transfer or re-transfer of a case. If the trial judge had adverted his mind
to the provision in section 104 Act 459 (as amended), he would have been very slow in
the preparation and delivery of the judgment”

It is also to be noted that by section 106(1) of the Courts Act a judge of the High
Court in respect of civil matters shall have and exercise all the powers of the Chief
Justice with respect to the transfer of a case from one District Court to another
1. District Court or from one District Court to a Circuit Court as the case may be,
Volde subject to subsection (2) of the section.
n
2 .No
dismis In subsection (2) of section 106 it is provided that nothing in the section shall be
sal
one deemed to restrict the power of transfer vested in the Chief Justice and an order
High of transfer made by a judge under the section shall have no effect where the
Court
3. Chief Justice has transferred the case in question or the judge has, at time of
Repor making of the order, notice of an application to the Chief Justice for a transfer.

See Section 107 (1) where a judge of the High Court may either on his own
motion or on the application by any of the parties to the motion and at any stage
of the proceedings before judgment remit to a District Court any civil matter
pending before him which he considers may similarly be proceeded with by that
District Court.

(2) The power to remit conferred by this section may be exercised in the same
manner and shall be subject to the same limitations as the power conferred by
section 106 of the Act.

In the case of Republic v. High Court, Accra; Ex parte Yalley (Gyane & Attor
Interested Parties) [2007-2008] SCGLR 512. It has been held that reading section
104(1)-(3) of the Courts Act, 1993 (Act 459) as amended by Court (Amendment) Act,
2002, (Act 620) S.7 and schedule applies to all matters pending in the Courts, whether
motions or applications whether standing on their own or arising or following from a
substantive action. The Court would interpret the word “case’’ appearing in section
104(1)-(3) broadly to include contempt proceedings, which in reality are serious
substantive quasi-criminal matter carrying custodial punishment.

Subsection (2) of section 104 buttresses the point that the provisions are not intended to
be limited to substantive issues only. Subsection (2) makes reference to general or
special transfers and mandates the transferor to state the nature and extent of the
38
transfer. This presupposes that a transfer needs not necessarily cover an entire
substantive case, but parts or segments of it dealing with particular matters.

Once a matter has been placed before a judge in the absence of an order of transfer
from the Chief Justice or the High Court Judge or the Chairman of a Regional Tribunal
under section 104 of Act 459 as the case may be it is only that judge who has exclusive
jurisdiction to deal with the matter or part thereof. Consequently, no registrar- the
magistrate and circuit Court judge has power to transfer matters pending before a judge
or court to another judge without the express authorisation of the Chief Justice or the
High Court Judge or Chairman of the Regional Tribunal as the case may be and in the
manner specified under the law i.e. Sections 104 and 106 of Act 459. Any such purported
transfer by the Registrar is unlawful and a complete nullity.

See also the case of The Republic v. High Court Judge (Fast Track Division)
Accra; Ex parte Quaye and Another (Yovonoo and Others Interested Parties)
[2005-2006] SCGLR 660; where the High Court judge delivered a judgment and an
application for stay of execution of the orders of the judge was filed and dismissed and
the applicants filed the instant application in the Supreme Court to quash the dismissal of
the application for stay of execution for want of jurisdiction on the grounds that at the
time of the dismissal of the motion for stay of execution, the trial judge had been
transferred from the High Court (18) Accra to the High Court (Fast Track Division), Accra
whereas the motion for the stay of execution had been filed in the High Court (18) where
the main civil suit had been tried and determined.

HELD: unanimously granting the application, that the administrative powers of the Chief
Justice under Article 125(4) of the 1992 Constitution were known to include the powers
of transfer of judges and magistrates and cases under Section 104 of the Courts Act,
1993 (Act 459). The said power of transfer being a prerogative meant for the smooth
and efficient administration of justice could affect the exercise of a court’s jurisdiction.
Thus at the pre-trial stage in particular, a case might, for any sufficient cause, be taken
away from a judge before whom it had been pending. For example, the judge might be
asked to proceed on transfer, in which case he would lose the privilege of having
anything further to do with the pending case before him or her. Republic v. High
Court, Cape Coast; Ex parte Marwan Kort [1998-99] SCGLR 833 and dictum of
Ollennu J (as he then was) in Commissioner of Police v. Owusu (1958) 3 WALR 364
at 371 and of Georgina Wood JSC (as she then was) in Republic v. High Court,
Kumasi; Ex parte Mobil Oil (Ghana) Ltd (Hagan Interested party) [2005-2006]
SCGLR 312 at 334-335 cited. Per curiam: in the instant case, Asamoah J was transferred
from the High Court (18), Accra to the High Court (Fast Track Division (2)) Accra. That
cannot be a meaningless exercise... we think the dictum of Wood JSC in Ex parte Mobil
Oil (Ghana) Ltd is a realistic view to take of the course of administration of justice in our
judicial system and that, always, saving exceptional cases, this should be adhered to...
The adjudication, despite objection, of the applicants’ motion for stay of execution by
Asamoah J in the Fast Track Division (2) of the High Court, Accra whereas the case was
pending in the ordinary High Court (18) Accra, whence he was transferred to the Fast
Track Division (2) of the High Court of Justice, clearly contravenes the ... principles
governing the transfer of judges and cases. The observance of these principles augurs
well for transparency and public confidence in the administration of justice.

(2) Assuming that judicial divisions were for the purpose of convenient administration of
justice and not the creation of separate courts, the underlying policy of convenience
39
would be enforced because when an objection had been raised to the impropriety of
proceeding in a particular judicial division, the same could not simply be brushed as was
done in the instant case. Republic v. High Court, Kumasi; Ex parte Ackaah [1995-
96] 1GLR 270 SC; Attorney General (No.2) v Tsatsu Tsikata(No.2) [2001-2002]
SCGLR 620 and Republic v High Court (Commercial Division) Accra; Ex parte
Tetteh, Civil Motion J5/14/2005, 5 July 2005 Unreported cited.

CASE LAW under the Old Order 5 r 1 LN 140 A as amended by LI 1107.

In the case of Yaro v. Duho and Another [1982-83] GLR 1064 where the writ of
summons was commenced in the Volta Region at Ho High Court even though the
Defendants were resident in Accra but carried on their business in the Volta Region.

Held that as the Plaintiff was enjoined to commence the action in the Region which the
Defendants resided or carried on business. The residence of the owner of a business was
one thing and where the business was being carried on was another. The action could be
commenced in the Region in which the Defendants carried on their business.

In the case of WILMOT v. WILMOT [1981] GLR 521 where a Petition was filed at the
High Court, Sekondi, H, the Petitioner was resident at Sekondi sought dissolution of the
marriage between him and W, the Respondent resident in Accra, a preliminary objection
was raised by Counsel for W against the institution of the action in Sekondi instead of
Accra where she was resident,.

It was held upholding the preliminary objection on the basis that matrimonial cause was
also an action which should be commenced in the Accra Region where the Respondent
resided.

Where an action is commenced in the wrong Region, the same would neither be
dismissed nor struck out. The Court would report the pendency of the action to the Chief
Justice to enable her to exercise her power of transfer within the meaning of Order 3 r 2
– because by Order 3 r 2(1)(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
accordingly to the appropriate Court.

The suit would neither be dismissed nor struck out because the law is that the High
Court is only one High Court as provided under the Court’s Acts and the constitution.

Thus in the case of YARO TRANSPORT & ANOTHER v. AGYARE [1989-90] 1 GLR
110, Where in a running down action emanating from Sagyimasi in the Eastern Region a
preliminary objection was raised by the Defendants under Order 5 r 1(6) as amended by
the High Court (Civil Procedure) (Amendment) Rules (L.I. 1107) challenging the
jurisdiction of the Court and seeking an order for dismissal of the action on the ground
that the 1st Defendant carried on business in Kumasi whilst the 2 nd Defendant and other
witnesses were also ordinarily resident in Kumasi.

HELD, upholding the preliminary objection the Court held that there was only one High
Court in Ghana and it could be seen from the provisions of the Courts Act, 1971 (Act
372) that whereas the mention of any of the inferior Courts was qualified with the
indefinite article “a”, the mention of the High Court was preceded by the definite article
40
“the”. What the High Court (Civil Procedure) (Amendment) Rules, 1977 (L.I 1107) sought
to do was to make the regions of Ghana, regions of the one High Court.

Thus even though the action was to be commenced in the High Court, Kumasi in the
Ashanti Region where the 1st Defendant, a limited liability company, carried on business,
and the 2nd Defendant ordinarily resided, as required by Order 5 r 1(6) under L.I. 1107,
instead of dismissing the action, the Court would invoke its powers under section 100(1)
of Act 372 to save the case by making a report to the Chief Justice that the case should
be transferred to the appropriate Court.

As it was with the Courts Act 1971 Act 372 so it is with the Courts Act, 1993 (Act 459)
and the present 1992 Constitution of Ghana where the High Court is always qualified as
“the” whilst the inferior Courts are qualified with the indefinite article “a”.

In the same vein, in the case of WIREDU & ANOR v. MIM TIMBER CO. LTD [1963] 2
GLR 167, SC – where the writ of summons was issued in the Land Court in Kumasi
instead of Sunyani in that the concession which was the subject matter of the trespass
alleged by the Plaintiff was situate in Mim in the Judicial Divisions of Sunyani.

HELD the High Court was one Court and divided into judicial divisions merely for
convenient administration of justice but not for the purposes of limiting the jurisdiction of
each judicial division. Thus the decision of a judicial division seized with a case which
would have been properly instituted in another division could be valid unless at the trial
an objection was raised by a party to the proceedings or the judge himself, jurisdiction
could not be challenged.

The same principle was applied in the Wilmot v. Wilmot case – [1981] GLR 521 by
Twumasi J (as he then was) He noted that under the new rules i.e. Order 5 r 1 of LN 140
A as amended by L.I. 1107 the judicial divisions of the High Court under Cap 4 continued
their existence under a new nomenclature, namely a region of Ghana coterminous with
the erstwhile judicial division – and that the rule unambiguously comprehended not only
the concept of a substantive jurisdiction of the High Court, but also its procedural
jurisdiction with regards to venue. That by virtue of these provisions of the law even
though the High Court is only one Court in Ghana, a person does not have an unlimited
right to commence action in any region as he likes but he was obliged to do so as
specified under the rule of procedure. That when an objection was raised timeously the
Court should be disabled from hearing the case and its jurisdiction could be ousted.

So, Court held that there were two conditions under which the jurisdiction of a Court
(where an action had been wrongly commenced) could be ousted: the first was where
the judge had reported the pendency of the action to the Chief Justice and the Chief
Justice had ordered a transfer; and the second was where the Defendant had raised an
objection to the jurisdiction of the Court before or at the time he was required to plead.
In the latter instance, there was no discretionary power vested in the High Court to
exercise so that once the Defendant had raised the objection as required by law, the
jurisdiction of the Court would be ousted outright and the purported hearing of the case
would be a nullity.

Per curium: It is clear from the new Order 5 r 1 particularly sub-rule 8 that, what appears
to many to be the High Court’s jurisdictional omnipotence exists only under well-defined

41
conditions. This is borne out by the fact that a vigilant Defendant can incapacitate the
High Court by a timeous objection to its jurisdiction with regard to venue.

The following cases also illustrate the practice and procedure with regard to the venue of
trial.

In YARO v. DUHO & ANOR [1982-83] GLR 1064 which was dealt with under the LN140
A, Order 5 r 1 (6) and Order 5 r 1(8) as amended by LI 1107 like Order 3 r 1(5) C.I. 47.

It was provided by Oder 5 r 1(6) LI 1107 that: “all other actions shall be commenced in a
Region in which the Defendant resides or carries on business” and Order 5 r 1(8) LN140
as amended as in Order 3 r 2(1) of C.I. 47 that
“where an action is commenced in a Region other than that in which it ought to have
been commenced, the action may, notwithstanding, be tried in the Region in which it
was commenced unless the Court reports to the Chief Justice that in its opinion the
action ought to be transferred, and the Chief Justice orders that it be transferred
accordingly, or the Defendant raises an objection to the jurisdiction before or at the time
when he is required to plead in the action”.

In that case the Plaintiff suffered some loss due to road traffic accident involving the 2 nd
Defendant’s passenger bus driven by the 1st Defendant. The accident occurred in the
Volta Region and the Plaintiff instituted action for damages in the Volta Region in the Ho
High Court.

The Defendant then brought a motion objecting to the Court’s jurisdiction under Order 5
r 1(6) of LN 140A as amended by LI 1107 and for an order that the Court should report
to the Chief Justice for the transfer of the case to Accra to be heard there because all the
parties resided in Accra. But the Plaintiff opposed the application arguing that the
Defendants were at the material time, running a passenger bus between Accra and Aflao
in the Volta Region and that the accident occurred in the region in the course of that
transport business.

It was HELD (per Apatu Plange J) dismissing the application that the only inference to be
drawn from Order 5 r 1(6) as substituted by the High Court (Civil Procedure)
(Amendment) Rules 1977, LI 1107, S. 1 that the Plaintiff was enjoined to commence the
instant action in the Region in which the Defendants resided or carried on business. Thus
residence of the owner of a business was one thing and where the business was being
carried on was another. In the instant case, it was clear from the Defendants’ affidavit in
support of their application that they did not give any consideration to the fact that the
action could be commenced in the region in which they carried on business. Their
affidavit merely disclosed that they were resident in Accra. There was nothing in the
Defendants’ affidavit showing that they had their registered offices in Accra and that it
was from that office that they managed and controlled their transport business.

It was also held that under Order 5 r 1(8) as substituted by LI 1107, s.1 if a Defendant
intended to raise an objection to the jurisdiction, he had to do so before or at the time
when he was required to plead in the action. The only inference to be drawn from the
rule was to ensure that the Defendant raised his objection at the earliest available
opportunity to avoid any hardship to the Plaintiff. Since the Defendants at their earliest
available opportunity being the time they applied to set aside the judgment, failed to

42
raise any objection to jurisdiction, they must be deemed to have waived their objection
as to the venue or jurisdiction.

In YORTUHOR v. BRAKO & ANOR [1989-90] 2GLR 429 where the Plaintiff, the
administrator of the estate of his deceased son and head of the matrilineal family of the
deceased sued 1st and 2nd Defendant jointly and severally on behalf of the family for
damages for the death of his son under the Civil Liability Act, 1963 [Act 176] as a result
of the negligent driving of the cargo vehicle owned by the 2 nd Defendant and driven by
the 1st Defendant. The 2nd Defendant pleaded inter alia that the Court had no jurisdiction
to hear the suit because both Defendants were resident in Kumasi in the Ashanti Region.

Held by Benin J (as he then was) that by Order 5 r 1 the legislator recognised the
existence of Regions in Ghana and intended that actions be commenced in the
appropriate region failing which rule 1(8) permitted either the Court itself or the
Defendant to oust the territorial jurisdiction of the High Court in that particular region
where the action was wrongly commenced and thus deprived it of the power to hear the
suit. Those provisions were mandatory and were meant to be complied with
and no judicial discretion arose when the Defendant timeously raised an
objection to the Court’s territorial jurisdiction. However under rule 1 (8)
jurisdiction might be conferred on the High Court by acquiescence, even through
silence by the Court and the Defendant. But where as in the instant case, the
Defendant had raised an objection at the right moment the Court had no jurisdiction
and the suit must and could be transferred for hearing de novo before the High Court,
Kumasi i.e the Region where the Defendants resided and carried on their business.

In INGOS CONSTRUCTION LTD. v. BLACKWOOD HODGE (GHANA) LTD. [1981]

GLR 347

Where the Defendants brought an application for an order to transfer the substantive
libel suit to the High Court, Accra where the Defendant company were registered and
carrying on business and to be heard, but the Plaintiff resisted the application on the
ground that by virtue of Article 124 of the 1979 Constitution, there was only one High
Court and that in view of the facts deposed to in the affidavit in support of the
application, the High Court Sekondi was the most convenient venue for the trial. The
Court having accepted the affidavit evidence that the libel was published in Takoradi, and
the bank where the Plaintiffs had an account at Takoradi and the cheques which gave
rise to the statement complained of were issued on a Takoradi Bank, the manager of the
bank was resident in Tarkoradi and also all the relevant documents of the bank were
kept in Takoradi.

Held, refusing the application that LI 1107 read as a whole and rule 8 thereof in
particular and having regard to article 124 of the 1979 constitution which provided that
there was only one High Court of Justice, it seemed that the Court before which an
application was made for the transfer of a suit instituted in a region other than that
specified by LI 1107 r 1 (6) had discretion in the matter. The Court ought to look at all
the circumstances and decide whether or not to order a transfer of the suit. Every case
must turn on its own peculiar facts but the test to be applied in each particular case,
where the Defendant has applied that the matter be transferred, was whether the
Defendant would suffer some injustice if the action was heard in the region where he did
not reside or carry on business. The Defendant must be able to prove either that the
expenses or the difficulties of trial in that region would be so great that injustice would
43
be done in the sense that it would be difficult or practically impossible for the litigant
who was applying for the transfer to have had justice in that region. On the facts the
application would be refused.

In PAS TIMBER CO. LTD v. AMANING & ANOR [1987-88] 1 GLR 341, CA – The facts
of the case were that in a running down accident which occurred in the Eastern Region.
The Plaintiffs brought action in the High Court, Accra against P (the 1 st Defendants), a
limited liability company with its registered office in Sekondi and the 2 nd Defendant
resident at Akim Asene in the Eastern Region. ..... they then applied to have the action
dismissed on the ground that it should have been commenced in Sekondi or Koforidua.
The application was dismissed and the judge held that since Counsel for the parties could
not agree on a transfer either to Koforidua or Sekondi, he was entitled to exercise his
discretion to order a trial in Accra. P. appealed against the ruling. Held, allowing the
appeal by rule 1(7) LI 1107, the action ought to have been commenced either in the
High Court, Koforidua where Y resided or in Sekondi where P carried its business.

Since the cause of action arose in the Eastern Region it was obvious that the High Court,
Accra was not the proper and convenient forum where the action ought to have been
brought.

2. The failure of Counsel to agree to the transfer of the case to either Koforidua or
Sekondi in accordance with rule 1(7) of LI 1107 did not entitle the judge to exercise his
discretion to order that the case be heard in Accra. He ought to have reported the
pendency of the action to the Chief Justice under rule 1(9) of L.I. 1107. The Chief Justice
would, having regard to the circumstances of the case, then decide to give the necessary
directions as to the venue where the action should be tried. The pendency of the case
would therefore be reported to the Chief Justice for directions under L.I 1107. r 1(9).

Order 5 r 1(9) L.I 1107 amending LN140A – was as provided now under Order 3 r 2(2) of
C.I 47 and Order 5 r 1(7) of LN140A as amended by LI 1107 – is now provided for in
Order 3 r 1(6) with just a little difference Order 5.

Order 5 r 1(7) “If there are more Defendants than one resident in different Regions, the
action may be commenced in any such Region subject to any order which the Court may
upon the application of any of the parties or on its own motion think fit to make with a
view to the most convenient arrangement for the trial of such action”.

What happens where like these days, there are more than one administrative High Court
in a particular region established with the rationale of bringing the High Court to the door
steps of litigants to cut costs save time and energy?

In the case of VOLDEN & OTHERS v. GHANA GOLDFIELDS LTD [1999-2000] 1GLR
462 where the Defendant, a mining company resident at Tarkwa was sued by the
Plaintiffs, former employees of the Defendants, claiming to have contracted diseases in
the course of their employment, in the Sekondi High Court. The Defendant then applied
to the Court to transfer the suit to the High Court Tarkwa also in the Western Region for
hearing on the ground that all the parties and their witnesses as well as Counsel for the
Defendant resided at Tarkwa. It was found by the Court that only Counsel for the
Plaintiff resided at Sekondi.

44
Held: granting the application that the rationale for the creation of multiple High Courts
within one region was to let parties litigate in the High Court nearest to them and
thereby save them time, energy and expenses. Accordingly, although no provision in the
High Court (Civil Procedure) (Amendment) Rules 1977 (LI 1107 governed the situation
where there was more than one High Court in a region with jurisdiction to hear a matter,
and a Defendant against whom an action had been brought in one High Court applied to
that Court to transfer the suit to the other, it was within the discretion of that High
Court to determine the application. The test to be applied in each case was whether the
Defendant would suffer injustice if the action was heard in the Court where he did not
reside or carry on business. On the facts, it would be more expeditious, proper and
convenient to have the suit heard at the High Court, Tarkwa since on the balance of
hardship more hardship would be caused to the Defendant than the Plaintiffs, if the suit
was heard in the High Court, Sekondi, Accordingly, a report would be made to the Chief
Justice to exercise his power of transfer accordingly. –

In the aforementioned case Ansah J (as he then was) applied the dictum of Sarkodie J)
in Ingos Construction Ltd v. Blackwood Hodge (Ghana) Limited [1981] GLR 347,
348-349 –

Since C.I. 47 is fairly new and the provisions are similar we may continue to rely on
decisions based on L.I 1107 for guidance

But it is clear that the principles informing these decisions are fairness, or discretion of
the Court, balance of hardships and convenience to the parties, ensuring expeditious and
inexpensive trials, saving time and energy.

Sarkodie J’s dictum in Ingos Construction case pp348-349 seems to sum up the principle
thus: “The Court ought to look at all the that circumstances and decide whether or not to
order a transfer of the suit. It seems to me every case must turn on its own peculiar
facts but the test to be applied in each particular case, where the Defendant applies that
the matter be transferred is whether the Defendant would suffer some injustice if the
action as heard in the region where he does not reside or carry on business. The
Defendant must be able to prove either that expenses or the difficulties of trial in that
region would be so great that injustice would be done in the sense that it would be
difficult or practically impossible for the litigant who is applying for the transfer to have
justice in that region”.
Cases to consider

Oils & Fats Co. Ltd & Ors v. Hooper & Anor [992] 1 GLR 326
Republic v. High Court, Accra, Exparte Yalley [2007-2008] SCGLR 512
Volden & Ors v. Ghana Goldfields Ltd [1999-2000] 1 GLR 462

On General Power of the court to transfer cases from one judge to another, see;
Republic v. High Court Judge (Fast Track Division) Exparte Ghana Lotto
Operators Association (National Lottery Authority interested Party) [2009]
SCGLR 372.

45
See
Akoto II v
PARTIES
Kavege &
Ors [1984
– 86]2
Contents of writ, venue of writs, now parties
GLR 365 “Parties” to the action is also a very important feature in the writ and in fact in
CA, where
Plaintiff
every action. It is important to know the party who is suing or being sued and
brought determine whether he is the right person to sue or be sued.
action for
himself
and for By Order 2 r 1: A party who commences civil proceedings shall be described as
150 other
farmers
“Plaintiff” and the opposing party shall be described as “Defendant”.
for Agbesi v. GPHA [2007-2008] SCGLR 469
declaratio
n of title
to a piece But note that the rule is “subject to any existing enactment to the contrary”.
or parcel
of land in
Because an action can be began by originating notice of motion , in which case the
respect of person bringing the action is described as or is brought by the “Applicant” and
farmers in
the area.
the person against whom it is brought is the “Respondent”. If the action is a
Held a Petition it is brought by a “Petitioner” and is against or is defended by a
person
suing in
“Respondent”.
represent
ation The same person cannot be both a Plaintiff and a Defendant in the same action,
capacity
must or an applicant and a Respondent to the same action. See ELLIS v. KERR
establish [1910]1Ch 529, 537.
that
status as
well as It makes no difference that the same person is in different capacities, e.g. he
facts that
Plaintiff cannot be Defendant as administrator of A and also Plaintiff as Executor of B.
shared Person in this connection means a legal person, consequently there is no objection
common
interest to a Plaintiff being a member of a Defendant corporation, e.g.
and were
concerne
d about a The name of the party must be stated clearly but his sex may not. Title may not
common be necessary except as for avoidance of doubt. Miss, Mr., Madam, Prof, or Dr,
result.
Where no may be used.
common

However, as provided in Order 4 r 11 (1) where numerous persons have the same
interest in any proceedings other than proceedings mentioned in rule 13 of Order
4, the proceedings may be commenced and continued by or against any one or
more of them as representing all or as representing some of them.

And in Order 4 r 11(2) at any stage of the proceedings, under the rules, the Court
may on an application of the Plaintiff, and on such terms, if any, as it may think fit
appoint any one or more of the Defendants or other persons to represent all the
Defendants or some of the Defendants.

Thus in Ghana Muslims Representative Council and Others v. Salifu and

Others [1975]2 GLR 246, CA. Holding 2 it was held that 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
46
 represented. These forms of action were known as representative actions and
were permissible under Order 16 r 1, 8 or 9(of the old rules)

In practice there may be situations where the parties bringing an action are so numerous
that it becomes practically impossible to indicate all their names and addresses and
particulars on the writ, the Plaintiff may indicate the same in details in a schedule
annexed (attached) to the writ setting out full details required and for their signatures to
be secured if they are not represented by Counsel who can sign or issued the writ on
their behalf.

We have also noted and learnt that by Order 2 r 4(1) where the Plaintiff sues in a
representative capacity, the writ shall be endorsed with a statement of the capacity
before the writ is issued. The representative capacity of the Defendant should also be
similarly indicated. See the case of Ghana Muslim Representative Council v. Salifu
and Another [1975]2 GLR 246, CA.

The plaintiffs should indorse on the writ that the Plaintiffs were suing in a representative
capacity. On the issue whether the failure to indicate the indorsement was fatal, it was
held in holding 3- that 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 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 or in 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 the last 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 Plaintiff sued
and the Defendants were sued.
Gbogbolulu v Hodo [1947] 7 WACA 164, 165 and Dove v Wuta Ofei [1966] GLR 299,
317, SC were cited.

The issue was whether the failure to indorse the representative capacity on the writ was
fatal. It was held that once a legal person is indicated amendment would be permitted to
save the writ and avert multiplicity of suits.

However, the importance of capacity in any suit cannot be over emphasised.

By Order 2 r 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.
E.g; when using Power of Attorney to sue – in the capacity of an attorney, the writ
should be indorse with a statement to the effect that the Plaintiff is suing per the
Attorney.

The case of Akrong v Bulley [1965] GLR 469, SC illustrates clearly the crucial nature of
capacity in a suit.

In that case the Plaintiff, the mother of a man negligently killed by a tipper truck owned
by the 2nd Defendant and driven by the 1st Defendant brought an action under the Fatal
Accidents Act. In her writ she professed to sue as “successor and next of kin”. The writ
47
was subsequently amended by prefixing to the words “successor and next of kin” the
words “personal representative”. The Plaintiff however did not take out letters of
administration until December 1962 even though the writ was issued in March 1962 and
the amendment effected on November 1962.

The trial judge on the evidence found a case of negligence proved against the defendant.
To the Defendants’ arguments that as at the time the action was commenced, the
Plaintiff had not taken out letters of administration and that she did not disclose any legal
capacity to sue, the trial judge’s response was that the Plaintiff herself was a
“beneficiary” and therefore entitled to sue under the Fatal Accidents (Amendment) Act,
1864.

On appeal – on the issue whether or not a valid capacity to sue was disclosed on the
endorsement on the writ of summons, the Supreme Court Held (allowing the Appeal)
(1) that since at the time the Plaintiff issued her writ she had not taken out letters of
administration, she lacked capacity to sue under the Fatal Accidents Act 1846-64.

This lack of capacity was not cured by the fact that she eventually took out letters of
administration, since it took place after the period of limitation of twelve calendar months
prescribed by Section 3 of the Fatal Accidents Acts, had run out. The Plaintiff’s writ was
thus a nullity and so were the proceedings and the judgment founded upon it.

(2) Although by virtue of Section 1 of the Fatal Accidents (Amendment) Act, 1864, the
Plaintiff could have sued as a dependant of the deceased there was nothing on the
record to suggest that she did in fact sue in such capacity. The endorsement on the writ
that the Plaintiff sued as successor could not be interpreted to be equivalent to an
endorsement that the Plaintiff sued as “dependant”.

Per Apoloo JSC “I need hardly say that I reached this conclusion with no relish, especially
as the Plaintiff made out an unimpeachable case of negligence against the Defendants
on the merits. But the question of capacity, like the plea of limitation, is not concerned
with merits”.

By this, it means that a Plaintiff suing in a representative capacity is obliged by

the rules of Court to show in the endorsement in what capacity he is suing.

This principle that the question of capacity is not concerned with the merits of the case is
made even clearer in the case of Sarkodie I v. Boateng II [1982 – 83] 1GLR 715, SC
in which it was stated unequivocally by the Supreme Court that “ It is an elementary
principle that a Plaintiff or petitioner whose capacity was put in issue must establish it by
cogent evidence. And it was no answer for a party whose capacity to initiate proceedings
had been challenged by his adversary to plead that he should be given a hearing on the
merits because he had a cast-iron case against his opponent ”

In Hagan v. Kotey & 3 Others [1961] pt 11 GLR 594 it was held that where a party
sues in a representative capacity and his right to sue is challenged, he cannot succeed
unless he satisfies the Court that he possesses that capacity.

But in a case where there is no capacity disclosed but the Defendant does not object to
evidence being given to establish capacity, once the evidence has been admitted the
objection to the capacity will not be accepted, and be considered to be belated.
48
Thus in the case of Yartey & Ors v. Contruction and Furniture (West Africa) Ltd.
[1962] 1 GLR 86, SC where the appellants claimed against the Respondent £G5,000
damages for trespass and recovery of possession of a piece of land at Mile 5 Tesano, and
described themselves as the Head and Elder of Apenkwa and sued “for themselves and
on behalf of the inhabitants of Apenkwa, a Christian Community of the Presbyterian
Church of Ghana”, but did not plead that they were empowered or appointed to sue on
behalf of the whole community, although evidence in support of this allegation was
received in the High Court and not objected to by counsel for the respondent, it was held
that as the Appellants did not plead that they were specifically appointed and
empowered to sue on behalf of the whole community, counsel for the respondents
should, at the trial, have objected to evidence in proof of this allegation. Once evidence
was admitted the Court was bound to consider it.

In Gbogbolulu v. Hodo (1947) 7 WACA 164 – the facts of the case were simply that
the Plaintiffs sued the Defendants in their representative capacities for trespass to land
but the representative capacities were not indicated

On the issue whether the Courts had capacity to amend the writ when it was clear that
the suit was being brought in a representative capacity.

It was HELD at page 165 that “it is the duty of Courts to aim at doing substantial justice
between the parties and not to let that aim be turned aside by technicalities especially
when parties are unrepresented by Counsel. As soon as any question arose as to the
capacities of the respective parties it was, in our view, the duty of the Court to make any
formal amendment in the claim which would make clear the capacity in which the
Plaintiff sued and the Defendant was sued and the real point of controversy between
them, provided that, that could be done without hardship to either party.

The Court has full powers to take this course and since it appeared that no hardship
would accrue to either party by the heading of the suit being amended, even at this last
stage, so as to make clear the respective capacities of the parties, we ordered in the
course of the hearing of the appeal that the title of the suit be altered to read as now
appears as the heading of this judgment”.

In Dove v. Wuta-Ofei [1966] GLR 299, SC the Plaintiff sued in respect of plots of land
in respect of which his wife also claimed the adjoining land on the basis of conveyance to
his wife. He had judgment in the lower Court and on an appeal to the Supreme Court, an
objection was made by the appellant that the Plaintiff could not rely on the conveyance
to his wife in seeking protection under the Land Development (Protection of Purchasers)
Act, 1960 (Act 2).
It was held (dismissing the appeal) that objection of the appellant that the Plaintiff could
not rely on the conveyance to his wife on seeking protection under the Act could be met
by an amendment of the title of the suit by adding to the name of the Plaintiff the words
“for himself and on behalf of his wife Mrs. Ofei” on the basis that the appeal Court had a
right to amend the title of the suit to conform with the justice of the case with the
avowed object of avoiding multiplicity of litigation (p.317)

Proper party to sue-

Wadad Haddad Fisheries v. S.I.C [1973] 1 GLR 501.
Kimon Compania Naviera S.A.R.P v. Volta Lines Ltd [1973] 1 GLR 140
49
A.G v. Lavandosky & B.A. S.E Group [1971] 2GLR 58

WRIT AND STATEMENT OF CLAIM

- Order 2 rr 6 and 7
Order 2 r 6 stipulates 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.
This is a clear departure from LN 140A where the Statement of Claim needed not to be
filed with the writ but could be filed after the issuance or filing of the writ.

ISSUE OF WRIT Order 2 r 7

(1) Order 2 r 7 (1) The issue of a writ shall take place upon being sealed by the
Registrar.

(2) No writ shall be sealed unless at the time it is filed for sealing the person filing it
leaves within the Registry a copy signed by the Plaintiff, if the Plaintiff sues in person or
by, or on behalf of the Plaintiff’s lawyer.

(3) Provides for the administrative procedure by which the officer receiving the copy shall
file it and make an entry in the Cause Book.

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

(5) No writ, notice of which is to be served out of jurisdiction shall be issued without
leave of the Court as provided in Order 8.

The Relevant rule under Order 8 is in rule 1

Order 8 r 1 (1) states that no writ shall be served out of the jurisdiction.

It is the NOTICE OF A WRIT that may be served out of the jurisdiction with leave of the
Court. The writ is not served out of jurisdiction.

Thus it is provided in Order 8 r 1 (2) that notwithstanding sub-rule (1) notice of a writ as
in Form 3 in the schedule may be served out of the jurisdiction with leave of the Court.

Order 8 r 2(1) An application for grant of leave 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.

Order 8 r 2(2) – No 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.

Cases where leave may be granted provided under Order 8 r 3 are as follows:
50
 SEE RULE 3 OF ORDER 8

RULE 3—CASES WHERE LEAVE MAY BE GRANTED

(1) Service out of the jurisdiction of notice of a writ may be effected with leave of the
Court in the following cases

(a) if the whole subject-matter of the action begun by the writ is immovable property
situate within the jurisdiction (with or without rents or profits) or the perpetuation of
testimony relating to any such property;

(b) if an act, deed, will, contract, obligation or liability affecting immovable property situate
within the jurisdiction is sought to be construed, rectified, set aside or enforced in the
action begun by the writ;

(c) if in the action begun by the writ relief is sought against a person domiciled or
ordinarily resident within the jurisdiction;

(d) if the action begun by the writ is for the administration of the estate of a person who
died domiciled within the jurisdiction or for any relief or remedy which might be obtained
in any such action;

(e) if the action begun by the writ is for the execution, as to property situated within the
jurisdiction, of the trusts of a written instrument, being trusts that ought to be executed
according to the laws of this country and of which the person to be served with the writ is
a trustee, or for any relief or remedy which might be obtained in any such action;

(f) if the action begun by the writ is brought against a defendant not domiciled or
ordinarily resident within the jurisdiction to enforce, rescind, dissolve, annual or otherwise
affect a contract, or to recover damages or obtain other relief in respect of the breach of a
contract which.

(i) was made within the jurisdiction; or

(ii) was made by or through an agent trading or residing within the jurisdiction on behalf
of a principal trading or residing out of the jurisdiction; or

(iii) is by its terms, or by implication governed by the laws of this country;

(g) if the action begun by the writ is brought against a defendant not domiciled or
ordinarily resident within the jurisdiction, in respect of a breach

(i) committed within the jurisdiction of a contract made within or out of the jurisdiction; and

(ii) notwithstanding the fact that the breach is preceded or accompanied by a breach
committed out of the jurisdiction that renders impossible the performance of so much of
the contract as ought to have been performed within the jurisdiction;

(h) if the action begun by the writ is founded on a tort committed within the jurisdiction;

51
(i) if in the action begun by the writ, an injunction is sought that orders the defendant to
do or refrain from doing anything within the jurisdiction (whether or not damages are also
claimed in respect of a failure to do or the doing of that thing);

(j) if the action begun by the writ is properly brought against a person duly served within
the jurisdiction, but a person out of the jurisdiction is a necessary or proper party to it;

(k) if the action begun by the writ is by a mortgagee of immovable property situated within
the jurisdiction and seeks the sale of the property, foreclosure of the mortgage or delivery
by the mortgagor of possession of the property but not an order for payment of any
moneys due under the mortgage;

(l) if the action begun by the writ is by a mortgagor of immovable property situate within
the jurisdiction and seeks redemption of the mortgage, discharge of the mortgage or
delivery by the mortgagee of possession of the property but not a personal judgment; or

(m) if the action begun by the writ is in respect of a contract which contains a term to the
effect that the Court shall have jurisdiction to hear and determine any action in respect of
the contract.

(2) In this rule, "mortgage" includes a charge or lien; "mortgagee" means a person
entitled to or interested in a mortgage; and "mortgagor" means a person entitled to or
interested in property subject to a mortgage.

Leave to issue a writ is not required except in specified situations/ cases like the Plaintiff
being declared a vexatious litigant as under Section 74 of the Courts Act or as required
under Order 2 r 7(5) and Order 8 –

By section 74 of the Courts Act – Dealing with vexatious proceedings -

Section 74(1) On the application by the Attorney General the High Court may order that
no legal proceedings shall be instituted by a person in any Court without its leave if the
person has habitually and persistently without reasonable ground instituted vexatious
legal proceedings in any Court whether against the same person or not.

(2) The leave of the High Court shall not be given unless it is satisfied that the
proceedings are not an abuse of Court process and that there is prima facie ground for
the proceedings.

CONCURRENT WRITS

Concurrent writs are duplicates of the original writ issued either at the same time as the
original writ or at any time during which the original writ is valid.

It is sometimes desirable for the purpose of service to have a duplicate of the original
writ. In these cases, a concurrent writ or writs may be issued, upon production of a
praecipe being duly completed and impressed with the proper fee. A concurrent writ
must be a true copy of the original, though it may bear necessary differences according
to the purpose for which it was issued. It may contain the names of all the Defendants,
though intended for service on one only (See Trail v. Portor (1878) 1 LIr 60).

52
 Where an original writ is lost before service, a concurrent writ may be issued. Also be
made done where e.g. through accidental service of the original instead of a copy, it
becomes impossible to make the endorsement required Order 10 r 1 (4) of the English
rules.

The Concurrent writ must be sealed by being specially marked “Concurrent” with an
official stamp.

Under our Rules – C. I. 47 Concurrent writs are provided for in Order 2 r 8

Not In Order 2 r 8(1) at the request of the Plaintiff, one or more concurrent writs may
after 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 ceases to be valid.

Order 2 r 8(2) 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.

Order 2 r 8(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.

Order 2 r 8(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 [1991] 1 GLR 96, CA where the Plaintiff issued the writ of summons
against the Defendant in respect of land dispute, in spite of the fact that the
Defendant/Respondent was resident in the US at the time the Plaintiff/Appellant issued
the writ against her and she had a foreign address, the appellant issued the writ without
the leave of the Court to serve the same out of the jurisdiction.

The Defendant/Respondent; however, by her solicitors entered appearance without

protest and filed a Statement of Defence. Meanwhile one P declared that he was the
Respondent’s lawful Attorney and at his own request was served with all papers
concerned with the case. The Respondent having questioned the competence of the writ,
the trial Court ruled that as the notice of the writ to be served outside the jurisdiction
was issued without leave contrary to Order 2 r 4 of the High Court (Civil Procedure)
Rules, 1954 and (LN 140 A), it lacked validity and accordingly declared it a nullity and set
it aside.

On appeal, the appellant contended, inter alia, that even if the issuing of the writ was
irregular, the respondent was aware of the irregularity when she entered appearance
and went through with her Statement of Defence which amounted to fresh steps being
taken after the knowledge of the irregularity.
Therefore by Order 70 r 2 of LN 140 A, the application should not have been
countenanced.

HELD allowing the appeal, a writ of summons intended for service out of the jurisdiction
if issued without leave, would be a violation of Order 2 r 4 of the High Court (Civil
procedure) Rules, 1954 (L. N. 140 A). Such a fundamental error would result in the writ
being declared null and void and it could not be saved by Order 70 rr 1 and 2. However,
53
if the writ of summons was not intended for service out of jurisdiction, then Order
2 r 4 of L. N. 140 A did not apply.
If the Defendant had a foreign address it was a strong indication that the writ of
summons was intended for service out of jurisdiction. But a foreign address per se was
not a conclusive indication that the writ would be served outside the jurisdiction. Where
there was evidence of solicitors and attorney within the jurisdiction ready to accept
service of the writ and conduct litigation on behalf of the Defendant as in the instant
case, in spite of the foreign address, it was 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 did not
apply as the Defendant would 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 was within the jurisdiction.

DURATION AND RENEWAL OF WRITS

ORDER 2 RULE 9

Order 2 r 9 (1) – states that for the purpose of service, a writ, other than a concurrent
writ, shall be valid in the first instance for twelve 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 .

Order 2 r 9 (2) – provides that 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.

This means that a writ of summons is valid at first instance for 12 months from the date
of its issue if not served within that time.

It is important to note that the writ would not be invalid after twelve months if it is
served within twelve months from its issue.

Thus by Order 2 r 9(1) (2) it is stated specifically that “it is for the purpose of service”
that a writ, other than a concurrent writ shall be valid in the first instance for twelve
months beginning with the date of its issue and that it is where a writ has not been
served on a Defendant within the time limited for its service by the rules that the
extension of its validity may be required and the Court would order extension of its
validity. A case in point is Alhassan v. Boadu [1977] 2 GLR 248. Facts: The applicant issued
a writ against the defendant for damages for personal injuries under the Civil Liability Act, 1963 (Act 176). The writ
remained unserved for twelve months owing to difficulties encountered in effecting personal service on the defendant.
After the expiration of the twelve month period stipulated by Order 8, r.. 1 of the High Court (Civil Procedure) Rules,
1954 (L.N. 140A), the applicant brought the present application under Order 64, r. 6 for an extension of time within
which to apply for a renewal of the writ issued against the defendant. Held: Edward Wiredu J held (1) a writ which
remained unserved for a period of twelve months within the language of Order 8, r. 1of L.N. 140A, was
only not in force for purposes of service after the twelve months and not a nullity. (2) Under Order 64, r. 6 of
L.N. 140A, the court had power to grant an extension of time within which to renew a writ unserved after twelve
months, the object being to give the court a discretion to extend time with a view to the avoidance of injustice . Where
however an irreparable damage would be done by acceding to a tardy application, it being a departure from the
ordinary practice, the person who failed to act within the proper time ought to be the sufferer; but in other cases

54
 objection as to lateness ought not to be listened to and any injury caused by delay could be compensated for by the
payment of costs. A special circumstance, such as excessive delay, might induce a court in its discretion not to extend
the time and even though the court had power to enlarge time under Order 64, r. 6, the practice was not to do so where
but for such enlargement of time, the plaintiff’s claim would be barred. In the present case, the writ itself was issued
within the three-year period as provided by the Civil Liability Act, 1963 (Act 176). Several attempts to effect personal
service as borne out by the court’s docket and the affidavit in support of the application had proved unsuccessful. It
would therefore be unfair and unjust in the particular facts of this case to refuse to grant the application for an
extension of time to renew the writ.

It must also be noted that the concurrent writ is based upon the validity of the original
writ and its very existence depends upon the validity of the original writ therefore as
indicated in Order 2 r 9 (1) “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. It means that the concurrent writ expires with the original writ and resurrects with
it automatically upon renewal of the original writ. The concurrent writ is not renewed. It
is the original writ that is renewed upon which the concurrent writ is given life.

Although a concurrent writ bears the date of the original, it is valid only from the date of
its own issue and remains valid so long as the original remains in force. Renewal of the
original writ has the effect of renewing all concurrent writs previously issued without
their being brought to the office to be marked “renewed”.

3. The order to extend its validity may be made from time to time and for a period as
may be specified by the order, but the period should not exceed twelve months at a
time.

4. The extension if ordered must begin with the day following that on which it would
otherwise expire.

5. The extension is permissible if the application for extension is made to the Court
before that day or such later day as the Court may allow.

This appears to be a departure from Order 8 r 1 of LN 140 A where the application was
to be made before the date on which it expired.

Order 2 r 9 (3) – provides that an application for an order for the renewal of the writ as
under sub rule (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 last renewal and a full explanation as to why it has not already been served.

The This means that the rule is not meant to aid an indolent Plaintiff who would not
applica
diligently seek to serve the Defendant.

An explanation for the failure to serve within the period of the validity of the writ
would have to be given to the Court for the application to be granted. Thus it was
refused on appeal by the Court of Appeal in the case of Ofori & Anor v. Lartey [1978]
GLR 490, CA on the ground that the cause of action was gone and the Defendant could
not rely on Statute of Limitation if renewed. Facts: The respondent sued the appellants for damages
under the Civil Liability Act, 1963 (Act 176), on 11 June, 1970. The appellants were however not served with the
writ. Consequently the writ was struck out on a registrar’s summons taken on 28 January 1972. The respondent
thereupon applied for reinstatement of the writ on the ground, among others, that ill-health prevented his pursuing his
action with diligence. Anterkyi J. struck out the registrar’s summons on the ground that it was a nullity and claiming
an unfettered discretion under Order 64, r. 6 he enlarged the time for the renewal and reinstated the writ. Held: It was
allowed on appeal that Order 8, r. 1 expressly required that applications for renewal of writs should be made before
55
 the expiry of twelve months after the writ had been issued. Consequently since a whole year had elapsed after the
issuance of the respondent’s writ and it had not meanwhile been renewed, the writ was dead in terms of the Order.

Order 2 r 9(4) requires that “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”

Order 2 r 9(5) provides that “Where the validity of a writ is extended by an order
See made under this rule, the order shall operate in relation to any other writ, whether
Ofori v
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.

This means that the concurrent writ is renewed automatically by the renewal of the
original writ.

Let us look at Case Law:

As we have learned, a writ is valid for twelve months in the first instance if not served,
until it is renewed for a period not exceeding twelve months.

In the case of Trow v. Ind Coope Ltd [1967] 2 QB 899 2 All ER 900, CA where a writ
was issued on 10th September 1965 at 3.05pm and was not served until 10th September
1966 at 11.55pm and the issue before the Court was whether the service was within
time.

HELD: that the validity of the writ expired on 9th September 1966 because the 12 months
period included the whole day of the day of issue even though most of that day of issue
had elapse before the writ was issued. i.e. the validity of writ begins with the actual day
on which it is issued. The writ was therefore set aside.

See the case of Re Jones, Eyre & Cox (1877) 25 WR 303; Re Kerly, Sons & Verdon
[1901] 1 Ch 471, 479 – that after the appropriate period or such further renewal period,
the writ cannot be effectively served; but it remains efficacious for other purposes e.g.
for the purpose of renewal or further renewal. If the writ is not served within the
appropriate period or any later renewal, it is not a nullity but service after that time is an
irregularity which may be objected to after giving notice of intention to defend and
applying in due time to do so (Singleton L J).
See Singleton LJ in Sheldon v. Brown Bayley’s Steelworks Ltd. [1953] 2 Q. B 393,
400 where it is open to the Defendant served with expired writ to apply to set aside
same otherwise may be deemed to have waived such irregularity in service.

On the principle that it is for the purpose of service that the writ shall be invalid unless
renewed after 12 months – the case of Alhassan v. Boadu [1977] 2 GLR 248 is
apposite.
FACTS: the applicant issued a writ against the defendant for damages for personal
injuries under the Civil Liabilities Act, 1963 (Act 176) but the writ remained unserved for
twelve months owing to difficulties encountered in effecting personal service on the
Defendant. After the expiration of the twelve months period stipulated under O. 8 r 1 of
LN 140 A the applicant brought an application under O. 64 r 6 for extension of time
within which to apply for renewal of the writ issued against the Defendant.

56
 HELD: a writ which remained unserved for a period of twelve months within the
language of Order 8 r 1 of LN 140 A, was only not in force for the purpose of
On the service after the twelve months and not a nullity and that under O. 64 r 6 of LN
principl
e that 140 A the Court had power to grant an extension of time within which to renew a
writ unserved after twelve months, the object being to give the Court a discretion
to extend the time with a view to the avoidance of injustice. Where however an
irreparable damage would be due by acceding to a tardy application, it being a
departure from the ordinary practice, the person who failed to act within the
proper time ought to be the sufferer, but in other cases objection as to lateness
ought not to be listened to and any injury caused could be compensated for by
the payment of costs. A special circumstance, such as excessive delay might
induce a Court in its discretion not to extend the time and even though the Court
had power to enlarge time under Order 64 r 6, the practice was not to do so
where but for such enlargement of time, the Plaintiff’s claim would be barred. In
the present case, the writ itself was issued within the three-year period as
provided by the Civil Liability, Act, 1963 (Act 176). Several attempts to effect
personal service as borne out by the Court’s docket and the affidavit in support of
the application had proved unsuccessful. It would therefore be unfair and unjust
in the particular facts of this case to refuse to grant the application for an
extension of time to renew the writ.

So in the case of Ofori & Anor v. Lartey [1978] GLR 490, CA – where a writ was issued
by the Respondent against the Appellants claiming damages under the Civil Liability Act,
1963 (Act 176) on 11 June 1970, but the writ was not served on the Appellant and as a
result was struck out on a Registrar’s summons taken on 28th January 1972. The
Respondent applied for the reinstatement of the writ on the ground, inter alia that ill-
health prevented his pursuing his action with diligence and the trial Court struck out the
Registrar’s summons on the basis that under O. 64 r 6, the Court had discretion to
enlarge the time for the renewal of the writ, and reinstated the writ.

On appeal on the issue whether the writ having expired not renewed before the 12
months expired and when the period of limitation of 3 years under the Civil Liability Act
had expired the judge had the discretion to renew the same.

HELD Allowing the Appeal

1) That Order 8 r 1 expressly required the application for renewal of writs should
be made before the expiry of twelve months after the writ had been issued,
consequently since a whole year had elapsed after the issuance of the
respondent’s writ and it had not meanwhile been renewed, the writ was dead
in terms of the Order. The subsequent restoration of the suit to the list
following upon the order discharging the striking out could not cure that fatal
defect.

2) That as Order 8 r 1 restricted application for renewal of a writ to a period

before the end of twelve months, time could not be enlarged to overreach
vested or accrued rights................. The power to enlarge time could not apply
to the renewal of a writ when by virtue of a statute the cause of action was
gone.

So where the cause of action has elapsed due to statute of limitation application for
renewal would not be granted. See Doyle v. Kaufman (1877) 3 QBD 7, 8 CA – Dictum
57
of Cockburn C. J. applied in the case. See also Chappel v. Cooper [1980] 1 WLR 958, 2
All ER 463, CA, Heaven v. Road & Rail Wagons Ltd. [1965]2 QB 355, [1965] 2 All ER
409, Sheldon v. Brown Bayley’s Steelworks Ltd. [1953] 2 Q. B 393.

Potsia & Another v. Klu [1973] 2 GLR 47. It was a case where the writ was renewed
before it expired and the original writ was endorsed by the Court’s registrar to that effect
and a copy of the writ which bore no endorsement of renewal as appearing on the
original writ was served on the Defendant.
Subsequently, the Defendant entered Conditional Appearance and applied and sought
the setting aside of the writ on the ground of the omission to endorse the fact of the
renewal on the copy of the writ served him in the sense that the writ was not in force
when it was served on him.

The application to set aside the writ was refused because the effect of the renewal of the
original of a writ was to renew the copy. Since the original in the instant case had been
duly renewed, service of the copy on the Defendant was regular and the writ was
therefore in force. What matters in the eyes of the law for purposes of service, was
whether the writ was in force.

The validity of the writ for that purpose or any other could either under Order 8 r 2 be
verified by the “production of a writ” which under the rule meant the production of the
original if the Defendant so required or be ascertained by a search directed to the
registry.

Obiter “Even though under Order 8 r 1 a writ was not in force for purposes of service
after the expiration of twelve months, it was still a writ.
Consequently, an unconditional appearance by a Defendant to such a writ was a step in
the action and amounted to a waiver with regard to service so as to prevent such a
Defendant from being able to contend successfully that the service on him was bad. But
in the instant case, the Defendant, having entered a conditional had not waived his right
to challenge the service.

It has been held that service of the writ on one of two Defendants within the appropriate
period does not make it valid for service on any of the Defendants outside the
appropriate period and therefore even though the writ may have been duly served on
one Defendant, renewal of the writ must be obtained so as to make it available for
service as against each Defendant who has not been served within the appropriate
period (Jones v. Jones [1970] 2 QB 576, 3 All ER 47, CA). This requirement applies in
respect of each Defendant named in the writ. Both common sense and the reasoning in
Jones v. Jones indicate that it cannot apply without adjustment in respect of a
Defendant who is not named on a writ as originally issued, but who is added by way of
amendment or joinder; in respect of such a defendant, the rule must be construed as
requiring service on that Defendant within the appropriate period from the date of the
amendment by which he is added.

The principle deduced from the cases may be set out as follows:
1. It is the duty of the Plaintiff to serve the writ properly. He should not delay for the
period of its validity, if he does so and get into difficulties as a result, he will get scanty
sympathy.
2. Accordingly, there must be good reason for the grant of an extension of time to do so.
This is so even if the application is made during the validity of the writ and before the
58
expiry of the limitation period. The later the application is made, the better must be the
reason.
3. It is impossible to define or circumscribe what is a good reason. Whether a reason is
good or bad depends on the circumstances of the case. Normally, the showing of good
reason for failure to serve the writ during its original period of validity will be a necessary
step to establishing good reason for the grant of an extension (Wardon v. Whitecroft
Scovill Ltd). [1988] 1 All ER 996, H.L [1988] 1 WLR 309

Examples of reasons which have been held to be good are:

a) Clear agreement with the Defendant that service of the writ be
deferred.
b) Impossibility or great difficulty in finding or serving the Defendant, more
particularly if he is evading service

Examples of reasons held to be bad are

a) Negotiations are proceeding in absence of a clear or actual agreement

that service be deferred. It is dangerous because writ could be
forgotten until after limitation period has elapse. Offers may be
withdrawn and the Plaintiff will be left remediless save against his
solicitor.
b) Legal aid is awaited – Baker v. Bowketts Cakes Ltd. [1966] 2 All ER
290, CA and Stevens v. Services Window and General Cleaning
Ltd. [1967] 1 All ER 984.
c) There is difficulty in tracing witnesses or obtaining expert or other
evidence and this is even in building cases (Portico Housing
Association v. Brian Moorehead and Partners (1985) 1 Const. LJ,
CA
d) Carelessness.

Effect of Renewed Writ

The renewal of original writ has the effect of renewing all unserved concurrent writs
previously issued, and the renewal of a concurrent writ renews any unserved original or
other concurrent writs previously issued. Potsia v. Klu (cited supra)

ORDER 80
Note that Order 64 r 6 of LN140A has its equivalent in Order 80 of C I 47

Order 80 r 1(2): where the act is required to be done within a specified period after or
from a specified date, the period begins to run immediately after that date.

Order 80 r 1(3): where the act is required to be done within or not later than a specified
period before a specified date, the period ends immediately before that date.

Order 80 r 1(4): where an act is required to be done on a specified number of clear days
before or after a specified date, at least that number of days shall intervene between the
day on which the act is done and that date.
To serve on the first day of the month means that second, third, fourth and fifth days
will be four clear days and the sixth day will be the applicable day on which a defaulting
date would start.

59
 SERVICE OF WRITS

Order 7, Order 6 rule 3,

Order 5 rule 9, Order 8 rr 6 & 9

Order 8 (Form 3 & 4)

Order 7 deals with serving generally.

MODE OF SERVICE

1. Order 7 r 1 deals with the person to serve a document:

It says “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 service”. The bailiff is an officer of the Court who serves documents of the Court.
It is necessary for a bailiff who is an officer of the Court to serve independent of the
parties, because he has to make or fill a document known as “return of service”. In other
words he must prove service indicating the person on whom the document was served,
time and date served and at which place served or where necessary fill or depose to an
affidavit of non-service.
Proof
of
servic
e
2. The service therefore unlike England where service of writ is done by the Plaintiff
Barcla or his solicitors or their agents. In Ghana it is by bailiffs who are officers of the Court.
ys
Bank As noted earlier any one may invoke the jurisdiction of the Court or become
of
Ghana amenable to it provided only that the Defendant has been served with a writ of
Ltd.
Ghana
summons or its equivalent i.e. other modes of initiating action.
Cables
Ltd.
[1998-
99] SC
GLR1 3. As a general rule, service of documents must be personal unless personal service is
Audi dispensed with as provided for under the rules. E.g. application for substituted service
altera or application for leave to issue writ of summons for service of notice of writ out of
m
parte the jurisdiction or garnishee or interlocutory judgment in default of appearance etc.
m rule
So Order 7 r 2 provides for personal service thus:
The

Order 7 r 2 (1) A document which is required to be served on a person

shall be served personally unless the express provisions of these Rules
otherwise provide or the Court otherwise directs.

So e.g. the Court may on application order or direct substituted service or on its
own, order service of hearing notice on parties or their counsel.

Order 7 r 2 (2) this rule shall not affect the power of the Court under any
provision of these Rules to dispense with the requirement of personal service.
60
 1. How is Personal Service to be effected?

By Order 7 r 3(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 .

Order 7 r 12(1) provides that a writ shall be served separately on each Defendant .

Order 7 r 12(2) – a lawyer can undertake in writing to accept service of a writ on

behalf of the Defendant and it shall be deemed to have been duly served on that
Defendant even though served on the lawyer.

2. What if the person to be served refuses service or prevents service

in the normal way or if personal service in the normal way is
hindered?

Order 7 r 3(2) provided that “where personal service of a document on any person is
hindered by 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 .

3. How is service to be effected in actions by or against partners?

Order 6 rule 3- deals with this situation.

By Order 6 r 3(1) where by virtue of rule 1 partners are sued in the name of a firm, the
writ may except as specified in sub-rule (2) be served (a) on any one or more of the
partners or (b) at the principal place of business of the partnership within the
jurisdiction on any person who has at the time of service the control or
management of the partnership business there.

Order 6 r 3 (2) where service of the writ is effected in accordance with sub-rule(1) the
writ shall be deemed to have been duly served on the firm, whether any member of the
firm is out of the jurisdiction or not.

Order 6 r 3 (4) Every person on whom a writ is served under subrule (1) shall at the time
of service be given a written notice as in Form 2 in the schedule stating whether the
person is served as a partner or as a person who has control or management of the
partnership business or both as partner and as such a person and any such person on
whom a writ is served but to whom no such notice is given shall be deemed to be served
as a partner.

4. How is a person with disability to be served?

Order 5 deals with persons with disability.

61
Order 5 r 1(1) defines a person under disability for the purpose of judicial
proceedings under these rules as meaning a person under the age of eighteen 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.

Order 5 r 1(2) - the Court may where it considers it desirable in any action order a
medical examination of the person claimed to be person with disability .

By Order 5 r 1(3) and Order 4 r 1(3) a person under disability sues and conducts his
case by his next friend or guardian ad litem as the case may be. Under Order5 r 1 (4) a
next friend or guardian ad litem shall act by a lawyer.

Service of documents on persons with disability – Order 5 r 9-

By Order 5 r 9(1) where the person to be served personally with a document in any
cause or matter is a person under disability, service of the document 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, the person with
disability shall be deemed to have been duly served.

Order 5 r 9(2) notwithstanding anything in subrule (1) the Court may order that a
document on a person with disability or on a person other than a person mentioned in
that sub-rule shall be deemed to be duly served if served on the person with disability .

Order 5 r 9(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 .

Order 5 r 9(4) Subrule (3) shall not apply to an order for interrogatories or for the
discovery or inspection of documents.

Service on Particular Person - Order 7 r 5

Order 7 r 5(1)- By this rule service of a document on a body corporate may, in cases for
which provision is not otherwise made by any enactment be effected by serving it on;

(1) The Chairman; or

(2) President; or
(3) other Head of the body; or
(4) the Managing Director; or
(5) Secretary; or
(6) Treasurer; or
(7) Others similar officer of it.

62
Order 7 r 5(2) service of document on a stool or skin may be effected by
serving it,

(a) on the occupant of that stool or skin or on any secretary, clerk or linguist of
that stool or skin.

(b) where the stool or skin is vacant, on the regent or caretaker of the stool or
skin.

Order 7 r 5(3) Service of 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 acting as caretaker of any property of that
family or on any person who is a principal member of the family.

Order 7 r 5 (4) – deals with service of a document on a person who is in prison

or detention –

It may be effected by serving it on any person apparently in charge of the prison or

place of 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.

Order 7 r 5(5) Service on a Minister of state in his capacity as such or Ministry

or Government Department may be effected by serving it on the
administrative head of that Ministry or that Department.

Order 7 r 5(6) Service of a document on a person under disability may be effected in

accordance with Order 5 rule 9.

Service as provided under section 263 of the Companies Act, 1963 Act 179
Under Order 7 r 5(1) service of a document on a body corporate may, in cases for
which provision is not otherwise made by any 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.

But section 263 of Act 179 is an enactment that provides for service of documents on
a company.

By s. 263(1) a document may be served on a company by leaving it at, or sending it by

post to, the registered office of the company or the latest office registered by the
Registrar as the registered address of the company.

By s. 263 (2) Any document to be served by post on a company shall be posted in such
time as to admit of its being delivered in due course of delivery within time, if any,
prescribed for the service thereof, and in proving service it shall be sufficient to prove

63
that a letter containing such document was properly addressed, prepared and posted,
whether or not by registered post.

S. 263(3) if a company has no registered office service upon any director of the
company or, if the company has no director or if no director can be traced in Ghana,
upon any member of the company, shall be deemed good and effectual service upon
such company.

S. 263(4) – If it shall be proved that any document was in fact received by the board of
directors, managing director or secretary of a company such document shall be deemed
to have been served on the company notwithstanding that service may not have been
effected in accordance with the foregoing subsections of this section.

S. 263(5) Nothing in this section shall derogate from any provision in this code relating
to the service of any document, or from the power of any Court to direct how service
shall be effected of any document relating to legal proceedings before that Court.

CASE LAW

DAKAR LTD v. INDUSTRIAL CHEMICAL & PHARMACEUTICAL LTD. [1981] GLR

453

FACTS: The Defendant Company (ICAP) were a limited liability company registered
under the companies Code 1963 Act 179 with a registered office in the country. The
Plaintiffs (D Ltd.) brought action to recover the sum of ¢4,402,700 being the balance of
the price of goods sold and delivered by D Ltd to I CAP. On failing to get any employee
of I CAP to accept service, D Ltd. brought the instant ex parte application under the High
Court (Civil Procedure Rules, 1954 (LN 140 A) , Order 10 for an order of substituted
service against ICAP.

HELD- per Taylor J (as he then was) dismissing the application

(1) It is clear on reading Order 9 r 8(2) of LN 140A in conjunction with section 263
of the Companies Code, 1963 (Act 179) that service of a company registered in
or with a registered office in Ghana was to be effected under the provisions of
Act 179 and not under the rules of Court.

(2) The procedure for and effect of serving a limited liability company which had a
registered office was clearly indicated by the combined effect of the
Companies Code, 1963 (Act 179), S.263 and the Interpretation Act 1960 (CA4)
S. 13(2) and 32. By Act 179, S. 263 service of a document on a company
should be effected by leaving the document at, or sending it by post to the
registered office of the company or the latest office registered by the Registrar
General as the registered address of the company. By the Interpretation Act,
1960 (CA4) S.13(2) where an enactment authorised or required a document to
be served, that could be effected by prepaying, registering and posting an
envelope containing the document, addressed to the person on whom the

64
 document was to be served at his last known address; and, unless the contrary
was proved, the document should be deemed to have been delivered in the
ordinary course of post. A “person” as defined by C.A.4, S.32 included a body
corporate whether a corporation aggregate or a corporation sole.

(3) The Courts would order substituted service only where it appeared to the Court
that, for any reason, personal service could not be conveniently effected.
Personal service under LN 140 A Order 10, meant service on the person of the
Defendant. That mode of service was thus applicable only to service on
human beings as parties in whatever capacity, whether as Plaintiffs or
Defendants or the human agents and servants of such parties, not on
dehumanised, artificial entities like governments or companies like the
Defendant company.

(4) Where at the date of issue of a writ, personal service could not be made, then
substituted service would, as a general rule, be refused. The jurisdiction to
order substituted service therefore depended on failure of the prescribed
process of personal service in the circumstances. If the prescribed procedure
was not personal service but another mode of service then prima facie there
would be no jurisdiction to order substituted service in terms of LN 140A Order
10. Consequently, the present application for substituted service on the
Defendant company founded on Order 10 was misconceived.

Per curiam: In so holding, I do not wish to be understood as saying

categorically that substituted service can never in any circumstances
whatsoever be ordered against a company.............. I think perhaps in
appropriate cases..... substituted service may well be prayed in aid by the
Courts even against a company, but then that will be under the inherent
See
jurisdiction, not under Order 10 of LN 140A. Nevertheless, the circumstances
S.13
that would justify a Court in ordering substituted service on a company must
& be rare indeed. I suppose in cases where a company has no registered office
S.32 and where the directors and the members endeavour to evade service, a Court
of may very well consider substituted service as an appropriate mode of effecting
service where personal service cannot be effected on the directors and
members...In my opinion, for substituted service of the nature envisaged by
the Plaintiffs to be ordered against the Defendants, if indeed such a procedure
is feasible, then all other available normal processes pertaining to service on a
company ought to have been exhausted.

BARCLAYS BANK OF GHANA LTD. v. GHANA CABLE CO. LTD AND OTHERS
[1998-1999] SCGLR 1

The Plaintiff bank issued a writ of summons claiming over ¢24 million with interest, being
outstanding loan granted to the first Defendant, a company registered under the
65
Companies Code, 1963, and guaranteed by the remaining five Defendants (three
registered companies and two individuals). Notice of Appearance was purportedly
entered on behalf of all the Defendants by a firm of solicitors. Subsequently, the bank
took out summons for final judgment under Order 14 r 1 of LN 140A. At the hearing of
the summons a lawyer from the firm of solicitor’s announced himself as appearing for the
Defendants and the High Court entered final judgment against the Defendants for the
amount claimed with the consent of the lawyer.

Almost five years after the entry of the final judgment the Defendants filed a motion per
another lawyer for an order to set aside the final judgment for want of service on them,
of the writ of summons, the Statement of Claim and the motion for final judgment. In
the affidavit in support of the motion, the Defendants averred that a search conducted at
the Court’s Registry had revealed that the four Defendant companies had been served
through one Madam Alice as their secretary, a person who was in fact unknown to them
and contended that the said Madam Alice had no authority to receive service on their
behalf.

However, the High Court refused the application to set aside the judgment on the ground
that the said Madam Alice might have held herself out to the bailiff as the secretary of
the Defendants. On Appeal, the Court of Appeal unanimously allowed the Appeal and set
aside the final judgment on the ground that the Defendants, had not indeed been served
with the writ of summons. The Plaintiff bank then appealed to the Supreme Court. The
Supreme Court also found that the Defendants had, in truth, not been served with the
writ of summons.

HELD, unanimously dismissing the appeal- that since on the facts, the Defendants had
not in fact been served with the writ of summons issued by the Plaintiff bank, the High
Court had no jurisdiction to enter final judgment against them. Therefore the Court of
Appeal was right in setting aside the judgment.

Per Acquah JSC, Charles Hayfron-Benjamin JSC concurring - A Court has generally no
jurisdiction to proceed against a party who has not been served. Accordingly when a
Defendant complains that he has not been served with a writ of summons or any
process which requires his personal service, the Court is duty bound to examine that
complaint thoroughly and make a definitive finding irrespective of whether there is proof
of service or entry of appearance on behalf of that Defendant .

Brakowa v. Awuakyewah (1956) WALR 164, and Brakowaah v. Awuakyewah &

Gyasi [1961]1 GLR 164, SC applied.

Per Acquah JSC, Charles Hayfron-Benjamin JSC concurring – The true legal position
therefore is that service on a company by post should be in accordance with Section 263
(1) of Act 179 and not Section 13 (2) of CA 4. And this in effect is that the letter
containing the document should be addressed either to the registered office or the latest
office registered as the registered address of the company, prepaid and posted early
enough to ensure that the letter is received in such a time as to enable the company file
their relevant papers within the time provided by the procedural rules of Court... Thus
66
 although section 263 (1) of Act 179 talks of “leaving it at” the registered office or
address of the company, the bailiff must obviously leave it with someone who is in a
position to bring the document to the attention of the company... In Ghana, one can take
a cue from sections 263 (3) and (4) of Act 179 and comfortably hold that a document left
with a director or a member of the company at the registered office or address, should
be sufficient service on the company within the expression “leaving it at” in section 263
(1) of Act 179.

Dictum of Taylor JSC in Dakar Ltd. v. Industrial Chemical & Pharmaceutical Co.
Ltd. [1981] GLR 453, 459 criticised.

(2) Orbiter per Kpegah JSC: Where an appearance is entered on behalf of a Defendant
without authority, although the Court will not enquire whether the said solicitor had
authority to do so or not, the Defendant has the right to set aside any process based on
such unauthorised entry of appearance, otherwise grave injustice would be done to him.

Pp 14 and 15 criticises Taylor JSC in Dakar v. ICAP for his resort to interpretation Act
1960 on the basis that he did not have to resort to CA 4 because Section 263 (2)
specifically deals with that issue and by s. 263 (2) of Act 179 registration of letter is
not mandatory. But the expression “properly addressed” therein clearly requires,
in terms of s. 263(1), that the letter should be addressed to either the registered
office or the latest office registered as the registered address of the company and
not the last known postal address CA 4 and did not have to be resorted to if the
meaning or scope of the word of an enactment is apparent from the context of the
enactment or the enactment contains its own interpretation specifying the scope
of or meaning of the word.

Note the following cases (principles on service of documents).

Ofori v. Lartey [1978] 1 GLR 490, CA at p 492 “It is trite law that proceedings against a
party are deemed to commence only after service of a writ or notice on that party ”.

Vasquez v. Quarshie [1968] GLR 62, holding 3 headnotes at p 63 “A court making a

decision in a case where a party did not appear because he has not been notified would
be doing an act which was a nullity on the ground of absence of jurisdiction ”

PROOF OF SERVICE
Order 7 r 9 and 11
Order 7 r 9(1) says that the affidavit of service of a document must state by
and on whom the document was served, the day of the week and the date
and the hour on which it was served, where it was served and how .
i.e.
1. The person who is serving
67
 2. The person on whom it is being served
3. The day of the week
4. The date
5. The hour (or time)
6. Place of service
7. And mode of service e.g. personal, substituted, leaving it as near as possible
to the person etc.

Order 7 r 9 (2) – Affidavit of service of a documents sent by registered post in

accordance with rule 4 (1) (b) or rule 6 (4) (c) – i.e. dealing with service not personally
but by sending it by registered post bearing a return address and addressed to the
person to be served at the address of the person – and substituted service – by sending
the copy 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 r 9(2) at which there is a
reasonable ground to believe that it will reach the person –

In such a case – the affidavit of service shall state by (1) whom the document was
posted (2) the registered number of the letter and (3) the name of the person to whom
the document was posted and (4) the address to which the document was posted and
(5) the Certificate of posting issued by the post office shall be exhibited with the
affidavit.

Order 7 r 9(3) – An affidavit of service signed by the person who effects service shall,
on production without proof of signature, be prima facie evidence of service.

Note that it is prima facie evidence but not conclusive evidence. So when challenged it
will have to be proved. See the case of Barclays Bank v. Ghana Cable supra which
held that when a Defendant complains that he has not been served with a writ of
summons or any process which requires his personal service, the Court is duty bound to
examine that complaint thoroughly and make a definitive finding irrespective of whether
there is proof of service or entry of appearance on behalf of that Defendant.

In Brakowaah v. Awuakyewah & Gyasi [1961] 1 GLR 164, SC

Where the Plaintiff issued a writ to challenge the sale of his cocoa farm by a writ of fifa
when judgment had been entered against him without being served with the writ. The
bailiff had proved service and made the necessary entries of service on the original writ
of summons that the Defendants were served, but the bailiff who effected the service
was not called as a witness. But the native court dismissed the Plaintiff’s claim and this
was confirmed on appeal. But on appeal to the West African Court of Appeal, it was
found that the evidence as to service of the writ was unsatisfactory and that the native
Court had misdirected itself as to proof of service, the WACA held at page 165 as
reported in Brakowaah v. Awuakyewah (1956) 2 WALR, 164 that “it is settled rule of
law and practice that no court of law can give judgment against a party in a suit in which
a copy of the writ of summons has not been served on the party concerned ”

68
So the case was remitted to the native Court for rehearing after allowing the appeal.

At the hearing, further evidence was led on the Plaintiff’s claim of non-service. The bailiff
who had endorsed the proof of service on the writ also testified, after which the native
Court again found against the Plaintiff and dismissed her claim.

On appeal to the land Court, the record was subjected to a thorough and painstaking
analysis which revealed evidence in support of the Plaintiff’s contention. The appeal was
accordingly allowed and judgment in respect of which the Plaintiff’s cocoa farm was sold
was declared a nullity and set aside. On further appeal to the Supreme Court at page
166 as reported in [1961] 1 GLR 164, the Supreme Court observed in respect of the
bailiff’s evidence insisting that he had served the Plaintiff:

“That the bailiff is an interested person is plain. He had a stake in the game. He had
created a make-believe which he had to support in order to save his own skin”. So the
Supreme Court dismissed the appeal and upheld the Land Court’s decision to invalidate
the judgment of the native Court.

In the Barclays Bank v. Ghana Cable at page 11, it was observed that in that case of
Boakyewaah v. Awuakyewaah as regard the complaint of non-service that both the
WACA and the Supreme Court did not regard the bailiff’s proof of service as conclusive
on the issue of service. Evidence was received and examined to determine whether the
Plaintiff was served and when it was established that she was not served, the judgment
procured thereby was declare a nullity and set aside. It is therefore evidently clear that
proof of service or entry of appearance on behalf of a Defendant raises only a rebuttable
and not a conclusive presumption of service on the party.”

Order 7 r 11(1) – dealing with Record and Proof of service by bailiff

Order 7 r 11(1) A Process Book, in such form as the Judicial Secretary may direct, shall
be kept at every Court for recording service of process by bailiff and process servers .

(2) Every entry in a Process Book or an office copy of it shall be prima facie
evidence of the matters stated in it.

See also Order 7 r 12(4) – where writ is duly served on a Defendant then the person
serving must endorse it with the date on which it is served, the capacity in which he is
served if not served on the Defendant or else the Plaintiff is not entitled to enter
judgment in default of appearance or defence.

Order 8 rule 9 – Evidence of Service, in order words proof of service, but deals with
proof of service out of jurisdiction because Order 8 deals with service out of jurisdiction.

Order 8 r 9(1) – where a document has been sent to another country in pursuance of
rule 8, an official certificate sent to the Court by the Government or judicial authority of
that country or by a Ghana Consul in that country, and 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.

69
Order 8 r 9(2) – A document purporting to be such certificate shall until the contrary is
proved, be deemed to be such certificate.

Order 8 r 9(3) that where a certificate is produced in relation to the service of a

document under this Order, Order 7 rule 12 (4) shall not apply in relation to that service .

SUBSTITUTED SERVICE

Order 7 rules 4, 6 & 9(2)

Substituted Service-

Where efforts to serve a party are unavailing or have proved futile after diligent efforts to
service him especially when he has been evading service then substituted service may be
resorted to. Substituted service is not to satisfy the lazy or indolent party, but the Court
in granting the application for substituted service would want to be satisfied that diligent
efforts at service were made to serve the person to be served personally or in the normal
way, but same failed. You must satisfy the Court that the person is within jurisdiction or
that you have cause to believe that the person is within jurisdiction but is intentionally
evading service. If he is outside jurisdiction, it is not a ground for applying for substituted
service.

Where personal service not required

Order 7 r 4(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.

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 such manner as the Court may direct.

Proper Address - what is it? - for the Purpose of the rule

Order 7 r 4(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 case of an individual, his or her usual or last known place of residence or

business or

b) in the case of an individual 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 corporate registered or principal office,

or in any other case, business address of any lawyer who is acting for the

70
 person in the cause or matter in connection with which the document is to be
served

Order 7 r 4(3) – Nothing in this rule shall be taken as prohibiting the personal service
of any document or as affecting any enactment which provides for any other manner in
which documents may be served on bodies corporate.

Order 7 r 6- substituted service

Order 7 r 6(1) – sets out the circumstances for which a party may resort to substituted
service.

- 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 (b) further attempt to effect personal service
may result in undue delay or

c) 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.

NB: Application is made exparte

-Refer to introduction to substituted service

In KOMBAT & OTHERS v. BEDIAKO & OTHERS; EX PARTE KOMBAT [1971] 1GLR
196 – 201 where on the same day as the Plaintiff issued the writ of summons
accompanied by Statement of Claim he applied for substituted service of the documents
by prepaid post upon the 3rd Defendant as in Order 10 r 1 (e) of LN 140 A, the address of
the 3rd Defendant was endorsed on the writ but the addresses of the 1st and 2nd
Defendants were not indicated. On the face of the affidavit however, it was not clear
whether the 3rd Defendant knew the address of the 1st and 2nd Defendants.

The issues raised by the Court were whether the writ on which the address of a
Defendant had not been endorsed could be the subject matter of an application for
substituted service and whether it was proper to proceed ex parte.

HELD that substituted service could only have been resorted to where personal service
could not have been effected for reasons stated with great particularity in an affidavit .

It is inexpedient to order substituted service in the absence of the address of the

Defendant which is an essential feature of the writ.

Since the 3rd Defendant was in effect being asked to serve the writ for the applicants, it
was only fair and just that the application be made on notice. That in spite of the
ambiguities and confusion in the affidavit, it would not have been proper to correct it nor
could a ruling have been made based on a speculative interpretation.

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S. A TURQUI & BROS. v. DAHABIEH [1987 – 88] 2 GLR 486
The respondent (D) an alien trading under a business name of TTC rented premises of
the appellants (SAT) a partnership of alien traders, for his trading business.
Due to the Ghanaian Business (Promotion) Act, 1970 (Act 334) in July 1970 the parties
stopped their business activities whilst they sought exempt from the Act. D meanwhile
closed his shop D travelled to Lebanon and did not return until 28 April 1976.Whilst D
was out of jurisdiction SAT brought action in the High Court against the trading name
TTC for recovery of the store for their personal occupation. SAT filed motion Ex-parte for
substituted service on TTC alleging in their affidavit that they had made several attempts
to serve TTC but on each occasion found the store locked and since they believed the
“Defendants” were evading service. The application was granted and SAT subsequently
applied for Ex-parte was granted default judgment in default of appearance. They went
into execution and had bailiffs remove D’s goods worth over ¢400,000 from the store and
kept them in one small room but left his furniture in the backyard. On D’s return he as 1 st
Plaintiff and TTC as 2nd Plaintiff brought action in the High Court against SAT for a
declaration that the Ex-parte judgment SAT obtained against them was vitiated by fraud
and therefore null and void and therefore the judgment and all subsequent processes
should be set aside.

The Court ignored the charge of fraud and yet gave judgment for D on the grounds that
the writ in the first case was issued against TTC, a business name which had no
corporate personality but that SAT knew that D was out of jurisdiction and so the order
for substituted service was a nullity. It also held that the writ of possession was a nullity
because it was issued without leave and before SAT obtained the order for substituted
service of the judgment after trial. The Court awarded exemplary damage in favour of D.

On appeal on the ground inter alia that the decision that the suit could not be issued
against a business name was wrong, the Court of Appeal found inter alia that SAT were
aware that the D was out of jurisdiction when they commenced the trial and they
deliberately gave the trial Court the false impression that TTC was a business carried on
by more than one person.

HELD that under Order 48 r 1 of LN 140 A and under the Private Partnership Act, 1962
(Act 152) a partnership of two or more persons carrying on business within jurisdiction
could sue or be sued in the name of their firm. However a business name being mere
trading name used by one person could not commence an action because it was a mere
expression and not a legal personality. Accordingly, TTC would be struck out of the
appeal as the 2nd Plaintiff-respondent.

(1) However, Order 48 A r 11 of LN 140 A provided that an action could be

maintained against any person carrying on business within jurisdiction in
his business name. Accordingly, the decision of the High Court that TTC,
the business name under which D carried on his business activities could
not be used to sue him was per incuriam and the voiding of the Ex-parte
judgment on that ground was wrong and unsound.

(2) The Ex-parte judgment obtained by SAT against TTC was a nullity because
a. It was clear from the wording of Order 48 A r 11 of LN 140 A that it was
in fact the proprietor or owner of the business name who was being
sued but not the dehumanised concept in the abstraction that was

72
 represented by the business name and which was used merely as
strategy to reach the person operating under that name. Consequently,
it was the proprietor or the person owning the business name or the
person with the control and management of the business who must be
served with the writ and all other processes. On the evidence SAT only
made efforts to serve TTC but D, the real person against who judgment
was obtained, did not have any of the Court processes which
culminated in the ex-parte judgment served on him. Accordingly, that
failure rendered the ex-parte judgment null and void and the High Court
rightly set it aside.
b. Under Order 10 r 1 of LN 140 A it was only where it appeared to the
Court either after or without an attempt at personal service that for any
reason personal service could not be conveniently effected that
substituted service shall be ordered by the Court. The uncontroverted
evidence showed that at the date of the issue of the writ (in the original
case) up to the date when substituted was effected and judgment
obtained, D was out of the jurisdiction and by law his trading activities
had been banned and since he had no one in control of his office it was
impossible to serve the writ personally.
In the case of AUSTIN ROVER GROUP LTD. V CROUCH BUTLER
SAVAGE ASSOCIATES (1986) 1 WLR 1102 it was held in an orbiter
that the “last known” address means last known to the Plaintiff rather
than the last known to the public.

SERVICE OUTSIDE THE JURISDICTION

ORDER 8 – deals with service out of jurisdiction.

Order 8 r 1(1) no writ shall be served out of the jurisdiction

Order 8 r 1(2) provides that notwithstanding sub rule (1) NOTICE of a writ as in Form 3
in the schedule may be served out of the jurisdiction with the leave of the Court.

So it means that a writ issued in Ghana is not to be served out of the jurisdiction. What
may be served out of jurisdiction is the notice of the writ as in the Form 3 page 277 of
C. I. 47.

But this Notice in Form 3 can be served only after leave has been sought from and
granted by the Court.

At this junction we must look at Order 2 r 7(5) – dealing with writ, notice of which is to
be served out of the jurisdiction. By that rule “No writ, notice of which is to be served out
of the jurisdiction shall be issued without leave of the Court provided under Order 8”
It means that:

(1) Even before issuing the writ notice which is to be served out of
jurisdiction leave must be applied for and given for or before the
73
 issuance of the writ (i.e. you must make (file) an application for the
leave to issue the writ notice of which is to be served outside
jurisdiction)
(2) When the application for leave to issue the writ is granted, then you
must comply with the order granting it by then issuing the writ.
(3) Then the Notice of the writ as in Form 3 ought to be drawn up in
preparedness to be served after the application for leave for the notice
to serve the writ outside jurisdiction has been granted.
(4) Then the Application for leave to serve the notice of the writ outside
jurisdiction as in Form 3 is made to the Court (i.e. you file the same).

HOW TO APPLY FOR LEAVE TO SERVE NOTICE OF WRIT OUTSIDE

JURISDICTION – (Mode of application)

This is provided for by Order 8 r 2

(1) The application for the grant of leave to serve the notice of the writ out
of jurisdiction shall be supported by an affidavit stating the grounds on
which the application is made and stating that:
a. In the deponent’s belief, the Plaintiff has a good cause of action and
b. Showing in what place or country the Defendant is or may probably
be found (Order 8 r 2(1))

Order 8 r 2(2) provides that leave shall not 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
Order 8 r 3 deals with case where leave may be granted –

Order 8 r 3(1) says service out of jurisdiction of notice of a writ may be effected with
leave of the Court in the following cases
(a) – (m)

Order 8 r 4 – The 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.

CASE LAW
Remember that the law requires that the Plaintiff seeking leave for the notice of the writ
to be served out of jurisdiction must show sufficient grounds for the application – and in
particular show that he has a good cause of action or good grounds for the reliefs he is
claiming.
For this see the case of SEACONSAR FAR EAST LTD. v. BANK MARKAZI
JAMHOURI ISLAMI IRAN [1994] 1 AC 438

Remember also the case of Lokko v. Lokko [1989-90] 1 GLR 96 where the Plaintiff
issued a writ of summons against the Defendants by which the address for service and
on the Plaintiff’s own showing, the 1st Defendant was not resident in the jurisdiction.
After the issues were set down for trial the 1st Defendant applied to the Court to have the
writ set aside as not properly issued under Order 2 r 4 of the High Court (Civil Procedure)

74
Rules (L.N. 140 A). In reply counsel for the Plaintiff contended that failure to obtain leave
was a mere irregularity which the Defendant had waived by entering unconditional
appearance and filing a defence and that the irregularity had been therefore cured by
Order 70.

The High Court granted the application on the ground that Order 2 r 4 of LN 140A
provided that where a Plaintiff intended to proceed against a Defendant who was outside
the jurisdiction, the intended Plaintiff must first obtain leave of the Court before issuing
the writ and that in the instant case, the address for service clearly showed that the first
Defendant was resident in New York and since the Plaintiff never obtained leave before
issuing the writ, the law had been violated and the writ was incurably bad and
completely null and void.

However, the Court of Appeal held otherwise in the case of Lokko v. Lokko [1991] 2
GLR 184, CA that a writ notice of which is to be served outside issued without leave was
fundamental and incurably bad and null and void. However, if the notice of the writ is
not meant to be served outside the jurisdiction, it would not be null and void despite its
foreign address.
In that case the facts were that the parties were in dispute over a piece of land. The
Defendant/Respondent was resident in the United States at the time the
Plaintiff/Appellant issued the writ of summons against her, but in spite of the fact that
the Respondent had a foreign address; the appellant issued that writ without the leave of
the Court to serve the same out of the jurisdiction. However, the Respondent by her
solicitors entered appearance without protest and filed a Statement of Defence.
Meanwhile one P declared that he was the Respondent’s lawful attorney and at his own
request was served with all papers connected with the case. The Respondent questioned
the competence of the writ and the trial Court ruled that as the writ was to be served
outside the jurisdiction but was issued without leave contrary to Order 2 r 4 of LN 140A it
lacked validity and accordingly declared it a nullity and set aside.

On appeal, the appellant contended inter alia that even if the issuing of the writ was
irregular, the Respondent was aware of the irregularity when she entered appearance
and went through with her Statement of Defence which amounted to fresh steps being
taken after knowledge of an irregularity.

The Court of Appeal held allowing the appeal that a writ of summons intended for service
out of the jurisdiction if issued without leave, would be a violation of Order 2 r 4 of the
High Court (Civil Procedure) Rules, 1954 (LN 140A) and that such a fundamental error
would result in the writ being declared null and void and it could not be served by Order
70 rr 1 & 2. However, if the writ of summons was not intended for service out of the
jurisdiction, then Order 2 r 4 of LN140A did not apply. If the Defendant had a foreign
address, it was a strong indication that the writ of summons was intended for service out
of the jurisdiction. But a foreign address per se was not a conclusive indication that the
writ would be served outside jurisdiction. Where there was evidence of solicitors and
attorneys within jurisdiction ready to accept service of the writ and conduct litigation on
behalf of the Defendant, as in the instant case, in spite of the foreign address, it was 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 did not apply as the Defendant would be deemed to have
agreed to waive the necessity of the leave; for his representatives would be presumed to
have agreed to do all he would have done as if he was within the jurisdiction.

75
In the case of BAWA v. OYEGOKE [1977]2 GLR 412 in which the Plaintiff issued the
writ of summons in the ordinary form against the 1st Defendant who was formerly
resident in Ghana, but was, at the time of the issue of the writ, resident in Nigeria,
without stating the address at which the 1st Defendant could be served, in an ex parte
application for an order of substituted service of the writ on the wife of the first
Defendant resident in Ghana.

HELD: it was held, refusing the application that where a writ issued in the ordinary form
for service within the jurisdiction under LN 140A, Order 2 r 3 1954 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 Defendant had gone out of the jurisdiction to
avoid service of the writ, an order of 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.

The issue was whether substituted service could be ordered despite the fact that there
was omission of the Defendant’s address on the writ.

In the case of SHIRLSTAR CONTAINER TRANSPORT LTD. v. KADAS SHIPPING

CO. LTD. & ORS [1989-90] 1 GLR 401 – the writ of summons was previously issued
against the five named Defendants and the Plaintiffs brought an ex parte application for
leave to serve the same out of jurisdiction on the 3rd, 4th and 5th Defendants who were
described as resident in the United Kingdom whilst the 1st and 2nd Defendants were
described as resident in Ghana. The application was granted by Brobbey J. Subsequently,
counsel for the 3rd, 4th and 5th Defendants entered conditional appearance on their behalf
and brought the instant application to set aside the writ of summons. The action against
the 3rd and 4th Defendants was dismissed as having been withdrawn. Counsel for the 5 th
Defendant however argued inter alia that: (1) The Plaintiffs ought to have obtained
leave of the Court prior to the issuing out the writ of summons as provided by Order 2 r
4 of LN140- as a mandatory condition and therefore the writ of summons was not
properly and lawfully issued and thus the Plaintiffs’ writ must be set aside as incompetent
and (2) the Plaintiff did not satisfy the conditions laid down under Order 11 r 4 which
required that a writ of summons should state the grounds that grounds upon which the
application was made. On the issue as to whether the writ should be set aside due to the
fact that leave had not been obtained for service out of jurisdiction.

It was Held, dismissing the application by Lamptey J. (as he then was) that:

(1) Where (as in the instant case) some of the Defendants resided within
the jurisdiction while others resided out of the jurisdiction it would be
undesirable, unfair and unjust to contend that Order 2 r 4 of the High
Court (Civil Procedure) Rules 1954 (LN140A) (which prohibited the
issued without the leave of the Court of a writ of summons for service
out of the jurisdiction) should be religiously complied with if the failure
to so comply with that rule would lead to the whole writ of summons
being invalidated.

(2) The power granted the Court or judge by Order 11 r 1 of LN140 A to

order service out of the jurisdiction of writ of summons was
discretionary and not mandatory. If for reasons stated by the rule there
76
 arose the need to revise that order in any way whatsoever, that
application to review and set aside or both must necessarily go before
the judge that made the order.

(3) The failure by the Plaintiffs to state the grounds upon which they made
the application as mandatorily required by Order 11 r 4 of LN 140 A was
not fatal because they had filed a comprehensive Statement of Claim
together with the writ of summons. The Court or judge was entitled to
look at the Statement of Claim in considering the application presented
by the Plaintiffs. The High Court was entitled on that basis and on the
facts to make an order for service of the writ of summons on the 5th
Defendant company out of the jurisdiction.

Per curiam- The latter part of Order 11 r 4 i.e that the application “shall state the
grounds upon which the application is made”, is merely directory and therefore non-
compliance with it cannot be fatal. For if the affidavit in support as required by Order 11
r 4 contained the other matter specified and indicated in that rule, it would be grossly
unjust and indeed unconscionable to hold that the application to set aside must succeed
because that affidavit did not also state ”the grounds on which the application was
made.”

See Order 8 r 3(1)(j) of C.I. 47 similar to Order 11 r 1(g) of LN140A referred to and
relied on by Lamptey J.

SPILIADIA MARTIME CORPORATION v. CONSULEX LTD; THE SPILIADA [1986]3

ALL ER 843 HL.

Methods of service of notice of writ out of jurisdiction are provided for under Order 8 r 5

Order 7 rules 12 and 15 shall apply to the service of notice of a writ out of the
jurisdiction, subject to this rule i.e. Order 8 r 5 and subject to rule 9.

Order 8 r 5(2) provides that “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.”

Order 8 r 5(3) Notice of the writ to be served out of the jurisdiction 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.

Order 8 r 6 deals with authorities to effect service

Order 8 r 6 (1) where notice of the writ is to be served on a Defendant in a country with
respect to which there exists a Civil Procedure convention that provides for service in
that country of process of the Court, notice may be served a) through the judicial

77
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 served.

Order 8 r 6(2) – where it is to be served on a Defendant in a country in respect of which

a convention does not exist the notice may be served.

a) through the 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.

Order 8 r 7(1) where leave is granted to serve notice of a writ out of the jurisdiction, the
person who requires the service shall lodge in the registry,

a) a request for service abroad as in Form 4 in the schedule;

b) the document to be served and a translation of it in the official language
of the country in which service is to be effected, certified by the person
making it to be a correct translation; and
c) a copy of the document and a translation of it for each person to be
served.

Order 8 r 7(2) where a convention exists with respect to the country in which service is
to be effected, the request for service abroad shall specify whether service is to be
effected through the judicial authority of that country or through a Ghana Consul in that
country.

Order 8 r 7(3) where a convention does not exist with respect to that country, the
request for service abroad shall specify whether service it to be effected through the
Government of that country or through Ghana Consul in that country.

Order 8 r 7(4) Every request lodged under the rule shall contain an undertaking by the
person making the request to be personally responsible for all expenses incurred by the
Minister for Foreign Affairs in respect of the service requested and, on receiving due
notification of the amount of those expenses, to pay that amount to the Registrar for
transmission to the Minister for Foreign Affairs.

Order 8 r 7(5) provides that a translation need not be lodged under subrule (1) if the
official language of the country concerned is English or if the document is to be served
by a Ghana consul unless by the terms of a convention such a translation is required.

Order 8 r 8- provides that documents duly lodged under r 7 shall 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 the methods.

Order 8 r 9 Evidence of Service (Proof of Service)

1) where documents have been sent to another country pursuant to rule 8, an

official certificate sent to the Court by the Government or judicial authority of
78
 that country or by a Ghana consul in that country, and 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.

2) A document purporting to be such certificate shall, until the contrary is proved,

be deemed to be such certificate.

3) Where a certificate is produced in relation to the service of a document under

the Order, Order 7 rule 12(4) shall not apply in relation to that service.

Remember Order 7 r 12(4) provides that a writ duly served on the Defendant other than
by virtue of Order 7 r 12(2)(3) i.e. where a lawyer undertakes in writing to accept service
of a writ on behalf of the Defendant and the writ is deemed to be duly served on the
Defendant when served on his said lawyer and where the writ is not served but
Defendant enters unconditional appearance and is thus deemed served from date of the
unconditional appearance - then until the person serving it endorses 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, the Plaintiff shall not be entitled
to enter any judgment against that Defendant in default of appearance or in default of
defence.

By Order 8 r 9(3)- Order7 r 12(4) will not apply where a certificate is produced in relation
to the service of a document under Order 8.

SERVICE OUT OF JURISDICTION CONTINUED

Service of notices or proceedings – Order 8 r 10

Service out of the jurisdiction of any notice or order given or made in any cause or matter may
be effected with leave of the Court. – Order 8 r 10 (1).

Order 8 rule 2 shall apply as far as applicable to an application for the grant of leave under this
rule as it applies to an application for the grant of leave under rule 1 & r 2 of this order.

It means that as far as practicable in the application for leave under Order 8 r 10. Order 8 r 1(2)
and Order 8 r 2 requiring leave and requiring that the application be supported by 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 that Defendant is or
may probably be found, and showing sufficient ground for the application and showing that it is a
proper one for the service out of the jurisdiction and that the case falls within one of the
provisions of rule 3, shall be complied with.

By Order 8 r 10(3) rules 5 and 9 of Order 8 shall apply to any document in respect of which leave
has been granted for service out of the jurisdiction under the rule (i.e rule 8) as they apply to
notice of a writ.
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Rule 5 deals with methods of service out of jurisdiction and rule 9 deals with evidence of service
– So these rules shall apply to notices and or orders to be served outside jurisdiction.
Order 8 r 10 (4) where a person is to be served with a document under this rule, a copy shall be
served on the person, together with an intimation in writing that a process in the form of the
copy has been issued or otherwise initiated.

Service by Airmail
The Court, in granting leave to serve a document out of the jurisdiction under this Order (i.e
Order 8), may in an appropriate case direct that airmail shall be used by the party effecting the
service – Order 8 rule 11.
By Order 82 r 11 “airmail” is defined to include international courier service.

Order 11 rule 1 should be noted –

It is clear from this rule that even though it is the notice of the writ which may be served out of
jurisdiction by Order 11 r1(1) that “the Plaintiff shall serve a Statement of Claim on each
Defendant at the same time as the writ of summons or notice of the writ is served on that
Defendant”.

Order 11 r 1(2) where the Plaintiff fails to serve a Statement of Claim on a Defendant, that
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 order on such terms as it considers just.

SETTING ASIDE WRIT OR SERVICE OF WRIT - Order 81, Order 9 r 8, Order 19 r 1 and
4. EXAMINABLE

In accordance with general principle of practice; the order to issue a writ of summons the service
of which is to be served out of the jurisdiction and to serve the notice of the writ outside the
jurisdiction having been made through an ex parte application, can be set aside on application by
the Defendant after service.
A writ of summons or the service of the same may be set aside on good grounds. But the
irregularity upon which an application is being brought to set aside the writ may not necessarily
be considered to be fundamental enough to lead to the nullification of the writ or the service of
the writ.
In this connection, Order 81 may be called into question. Order 81 deals with effect of non-
compliance with the rules. Order 81 r 1 states non-compliance with the rules may not necessarily
render the proceedings void.
By Order 81 r 1(1) “where, in beginning or purporting to begin 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 failure to comply with the requirements of these Rules, whether in respect of
time, place, manner, or form or content or in any other respect, the failure shall not be treated
as an irregularity and shall not nullify the proceedings, or any document, judgment or order in it.

80
By Order 81 r 1(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 (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.

How and under which circumstances would an application be brought to set aside the
irregularity? Order 81 r 2 deals with setting aside for irregularity

Order 81 r 2(1) an application may be made by motion to set aside for irregularity any
proceedings, any step taken in proceedings or any document, judgment or order in it, and the
grounds of it shall be stated in the notice of the application. But under Order 81 r 2(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.
Boakye v. Tutu [2007-2008] SCGLR 970, 980.

So failure to comply with requirements of the rules may not necessarily nullify the proceedings or
any step taken thereon or any order made on it, but the Court has power to set aside the
proceedings or any step taken or order made thereon wholly or in part and (ii) allow such
amendments to be made and to make such orders dealing with the proceedings as it considers
just – but of course subject to such terms as to cost or otherwise.

1. So it may be set aside wholly or in part.

2. It may be amended – Order 81 r 1

But a party seeking an application to set aside the writ of summons or the service of it – or if a
party wants to set aside the proceedings must comply with Order 81 r 2(1) by coming by motion
seeking to set aside the irregularity and any step taken on it or any document, judgment or order
on it.

The motion should state the grounds for it in the notice of the application. But the motion will
not be granted or allowed unless

i) It is made within a reasonable time, and

ii) The party making the application has not taken any fresh step after knowledge of the
irregularity.

In WUSU v. DONKOR & OTHERS [1982-83] GLR 616- where the 1st and 4th Defendants had
obtained judgment against the Plaintiff in the High Court and in pursuit thereto levied execution
against his house and cocoa farms and same sold in 1966 by writ of fi fa in execution of the
judgment. The Plaintiff therefore brought action in the High Court claiming that the properties
81
were sold in contravention of Order 42 r 46 of the High Court (Civil Procedure) Rules 1954 (LN
140A) because the properties were all attached and sold without first attaching and selling his
movables. He therefore contended that the whole sale was illegal, null and void ab initio.

On the evidence it was found that it was almost 15 years since the Plaintiff’s properties were
attached and sold to the Defendants under the writ of fi fa and that the other Defendants, as
bona fide purchasers without notice, had been in possession of the properties and had greatly
improved upon them.
The Court held dismissing the action inter alia
1. That non-compliance with the provisions of Order 42 r 46 would not make the
proceedings a nullity but voidable i.e to be treated as an irregularity which might be set
aside. If the immovable properties of a person had been wrongfully attached and he was
aware of the fact, he could apply to the Court to have the attachment set aside. But
whether a Court can set aside such a sale as of right or in its discretion depends upon
whether the sale is void ab initio or only irregular. If it is only irregular, Order 70 of
LN140A would apply to the situation, if it is void the Court would set aside the sale as a
matter of course.
2. Order 70 r 2 of LN140A required that any application to have the proceedings set aside
must be brought within a reasonable time or at a time when the aggrieved party had not
taken any fresh step after knowledge of the irregularity. In the instant case the Plaintiff
had been aware of the attachment and sale of the immovable properties for almost 15
years and the purchaser had been in possession of the properties and had greatly
improved upon them. By reason of that delay, and the Plaintiff’s own conduct, the Court
could not exercise a discretion in his favour to set aside the attachment and sale of his
properties even if there was non-compliance with the provisions of Order 42 r 46.

In the case of FAH v. BEDIATUO II & ORS [1964] GLR 468 the Plaintiff/Applicant had
instituted action in Court and a date had been set for the hearing of the suit but the Plaintiff did
not appear. Counsel for the Plaintiff who had been served with hearing notice appeared and
asked for an adjournment. On the adjourned date, Plaintiff failed to appear and judgment was
given in favour of the Defendants. The Plaintiff then brought an application under Order 70 rr 1
and 2 of LN 140A to set aside the judgment on the ground that the trial was irregular because he
was not personally served with hearing notice. The bailiff testified that both Plaintiff and his
solicitor were served personally with notices of the hearing date.

It was HELD as follows:

1. The correct interpretation of Order 70 r 1 is that non-compliance with the rules of

procedure, such as unsatisfactory service, does not render any proceedings void unless
the Court so directs. The power of the Court to give such direction applies only to
proceedings which are voidable but not to those which are a nullity.

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 2. Where proceedings are nullity they are automatically void and any person affected by
them can apply to have them set aside ex debito justiciae in the inherent jurisdiction of
the Court without invoking Order 70 r 1.
3. Since counsel for the Plaintiff was served with hearing notice there was therefore, no
question of a defect or an irregularity in the proceedings inasmuch as service upon
counsel was sufficient service within Order 9 r 19(2)
4. If there had been an irregularity in the proceedings, the appearance in Court of counsel
for the Plaintiff to apply for adjournment amounted to taking steps in the action in the
knowledge of the irregularity within the meaning of Order 70 r 2 and the Plaintiff
therefore could not complain.
5. Where there is an irregularity in any proceedings and that irregularity can be cured, the
court will in such a case re-open the whole matter and set aside the proceedings. In this
case there was no such irregularity.
6. So counsel appearing in Court to seek adjournment was held to amount to taking step in
the action in the knowledge of the irregularity within the meaning of Order 70 r 2.

In the case of Republic v. Akim Abuakwa Traditional Council; Ex parte Sakyiraa II

[1977] 2 GLR 115, the filing of an affidavit was held to amount to taking a fresh step –

In that case, the Queen mother of Akim Abuakwa Traditional Council brought application for
certiorari against the decision of the Okyeman Council which had declared her summarily
destooled for failure to attend council meeting on three occasions as she did not approve of the
nomination of a candidate for the stool by the kingmakers.

Counsel for the Respondents objected to the application inter alia, on the grounds that the rule
of procedure requiring that a copy of the Order be attached to the application and the
requirement that the clerk or the registrar of the Court whose order it was sought to be quashed
should be served with the notice of motion were not complied with.

HELD – granting the application, inter alia

1) That since the parties had tacitly agreed to fight on the affidavits which contained all the
essential facts necessary to enable the Court to come to a proper conclusion, and the
order complained of was not disputed by the respondent, the failure of the applicant to
file a copy of the order she was seeking to be quashed as required by Order 59 r 7(1) of
LN140A was in this particular case not a fundamental defect as would vitiate the entire
proceedings. It was a mere irregularity which was curable under Order 70 r 1 of LN140A.

2) Since the Respondents became aware of the infringement of Order 59 r 7(1) of LN140A
when they were served with the pursuant notice, what they should have done was then
to have the application dismissed on the ground of the said irregularity. They however
chose not to do so, but file an affidavit in opposition to the present motion for an order of
certiorari. The filing of the said affidavit amounted to a fresh step within the meaning of
Order 70 r 2 of LN140A. Consequently, the Respondents could be properly held to have
waived the irregularity in the motion and they could not now be heard to complain of the
said irregularity.

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 3) The notice of service having been served on the Acting President of Akim Abuakwa
Traditional Council who received it on behalf of the council, and since this Court did not
exercise its discretion under Order 59 r 4 of LN140A in directing that any other person of
the council ought to be served, it must be taken that this Court was satisfied that under
the circumstance it was not necessary to serve the registrar and the clerk of the Akim
Abuakwa Traditional Council with a copy of the motion. Non-compliance with Order 59 r
4(2) could not therefore be said to be fatal to the application.

WADAD HADDAD FISHERIES v. STATE INSURANCE CORPORATION [1973]1 GLR 501

Where the Plaintiffs, a firm solely owned by one Madam R and carrying on business under the
name Wadad Haddad Fisheries insured their fishing vessel with the Defendants against all risks
and the vessel sank. The Plaintiff sued in the firm’s name for the sum insured. A preliminary
objection was raised as to their capacity to sue since they ought not to have sued in the firm’s
name since R’s name should have been used as the sole proprietress. The Plaintiffs’ answer was
that even if they lacked capacity they should be allowed to amend by substituting Madam R as
Plaintiff and that the insurers were estopped under Order 70 r 2 because the objection was not
raised “within a reasonable time” but was raised after the insurer had taken fresh steps after the
knowledge of the irregularity.

HELD – inter alia

1. That a single person carrying on business in a firms name could be sued as a defendant
under the name of the firm on the construction of Order 48 A rr 1 & 11. However that
person could not institute an action in the firm’s name. Consequently all actions by the
Plaintiffs as a firm, ought to have been brought in the name of R, as the sole owner (see
GIHOC v. Vicenta Publications [1971]2 GLR 24, 26 CA which was applied.

2. That the failure of the Plaintiff to comply with the mandatory provisions of Order 48 A r 1
constituted a defect which did not amount to a mere irregularity under Order 70 r 1 but
which rendered void the whole proceedings. Since the Plaintiffs had no legal status either
as an individual person, or as a corporate person, there was no Plaintiff before the Court
and so there was nothing to substitute or amend in order to save the proceedings.
3. The Defendants were therefore not estopped from challenging the legal capacity of the
Plaintiff, because they became aware of the defective nature of the Plaintiffs’ writ of
summons only after the case for the parties had closed. In any event, since the defect
was fundamental, it was not open to the Defendants to waive it. Consequently, even if it
had been found that the Defendants took a “fresh step” after becoming aware of the
irregularity, that would neither have made any difference or prevented the Court from
setting aside the proceedings, because the Court having found the proceedings to be a
nullity, it was bound to set them aside and the Defendants were entitled ex debito
justiciae to have them set aside.

So we can conclude that where the defect or irregularity is on the lack of capacity or locus
standi- then the same is so fundamental that the proceedings would be considered a nullity and
incurable and the Court would have no discretion to cure the defect but was duty bound to set
the same aside- even where the Defendant had taken a fresh step.

See Craig v. Kanssen [1943] 1 KB 256, 1 All ER 108 & Mosi v. Bagyina [1963] 1 GLR 337, SC

In OFORI v. DONKOR [1976] 1 GLR 275

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 1. Where judgment was entered against the Defendant for failing to file his Statement of
Defence. After judgment had been given the Defendant filed his defence but his counsel
brought an application to set aside the judgment on the ground that the Plaintiff’s
Statement of Claim had been filed out of time without the order of the Court extending
the time within which to file the Statement of Claim out of time and therefore contended
that the Statement of Claim was of no effect and it was wrong to have given judgment
thereon. It was HELD, dismissing the application that by Order 70 r 1 of LN140A the
Statement of Claim filed out of time could not be treated by counsel for Defendant as
void until it was so declared by the Court and that counsel should have rather asked the
Court to set aside the Statement of Claim on the ground of irregularity otherwise counsel
was duty bound to file a Statement of Defence on behalf of his client.

2. That usually default judgments due to blunders by counsel or solicitor could be set aside
subject to payment of costs to the party in whose favour the judgment was given.
However, in the instant case, counsel for the Defendant after taking a decision which
turned out to be damaging to his client, made matters worse when he took a fresh step
by filing a Statement of Defence after knowledge of the irregularity surrounding the filing
of the Statement of Claim. Since Order 70 r 2 of LN140A was mandatory in its terms, the
Court would not grant the application for an order setting aside judgment when the party
applying had taken a fresh step after knowledge of the irregularity.

So the principle here is that the filing of a defence amounted to a fresh step- MUMUNI &
ANOR v. ZAKARIA & ANOR [1992] 1 GLR 208 – In this case the Plaintiffs issued a writ of
summons on 17th May 1989 for damages in a running down case. The Defendants failed to enter
appearance and Plaintiffs obtained judgment against them. When Plaintiffs attempted to go into
execution the Defendants then applied for and obtained leave to enter appearance out of time.
The Court then on its own motion set aside the default judgment and ordered the Defendants to
file their Statement of Defence on or before 4 October 1989. The Plaintiffs successfully applied to
vacate the order setting aside the default judgment thereby restoring it. The Defendants
meanwhile failed to file the Statement of Defence within the time granted by the Court but
nevertheless did so on 13 October 1989. They then moved the Court on notice to set aside the
default judgment and for an order to defend the action on the basis of the Statement of Defence
filed. The Plaintiffs opposed the motion on the ground that since the defence was filed out of the
time given by the Court in disobedience to its order, it was void. Yet they went on to file a reply
to which in substance sought to answer directly the substance of the Statement of Defence and
made further allegations of fraud and estopped by admission against the Defendants. HELD-
Granting the application to set aside the default judgment.

1. That that on the authorities, a defence filed out of the time stipulated under the rules
cannot be ignored by the Court. The Defence filed in disobedience of a valid Court
order was void. But since under the rules the Defendants after appearance had 14
days to file their defence the abridgement of the time though permitted under the
rules could only be made on application by a party. Therefore the order abridging the
time by the Court suo motu was void. Accordingly the defence filed out of time cannot
be ignored by the Court. And even if there had been an application for default of
defence, the Plaintiff would only be entitled to costs. Accordingly the Statement of
Defence filed out of time before the Court was properly before the Court.

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 2. To constitute a waiver under Order 70 rule 2 of LN140A it must be shown that a party
alleged to have waived his objection had taken some step which was only necessary
or useful if the objection had actually been made. In the instant case, in their reply,
the Plaintiffs after objection to the defence filed, then went on and not only to meet
the averments in the Statement of Defence but also to take legal objections to the
pleadings. The reply to a Statement of Defence being an important and useful part of
the pleadings, was a fresh step within the meaning of Order 70 r 2 of LN140A.
Accordingly the Statement of Defence filed was valid and therefore the application to
defend the action in the light of the defence filed would be allowed.

So the principle is that a reply filed to meet the averments in the defence and/or raise objection
to the pleadings is a fresh step within the meaning of Order 70 r 2.

OIL & FATS CO. LTD & OTHERS v. HOOPER & ANOTHER [1992] 1 GLR 326, CA where
the Plaintiffs/Respondents brought action against the Defendant/Appellants in the High Court,
Cape Coast instead of Accra where the Defendants/Appellants- a company had its registered
offices and carried on its business but filed the Statement of Defence before applying to the Chief
Justice for the transfer of the suit to the High Court Accra, and after refusal by the Chief Justice,
applied to the Court i.e. High Court Cape Coast for the transfer of the suit to Accra which was
refused. On Appeal to the Court of Appeal the Court accepted the contention of the appellants
that the suit should have been commenced in the High Court yet dismissed the appeal.

HELD- that where an action was brought against the Defendant in the wrong region contrary to
the mandatory provisions of Order 5 r 1 of LN 140A as amended by L.I. 1107 the Court under
rule 1(8) of L.I 1107 was clothed with jurisdiction to try the suit unless the judge reported the
matter to the Chief Justice for a transfer to the proper venue, or the Defendant raised objection
to the jurisdiction as to venue before or at the time he was required to plead to the action.
Accordingly, the appellants should have raised their objection to the venue when they entered
their conditional appearance. Since they failed to do that and rather went on to file their
Statement of Defence, they had taken a fresh step after discovering the irregularity. Accordingly,
in terms of Order 70 r 2 of LN 140A they would be taken to have waived their right to object to
the venue.

MERCER v. GUINEA PRESS LTD. [1967] GLR 638 – There is an orbiter that-where an entry
of appearance was made under protest or was made conditional then such an appearance was
not a “fresh step “ within the meaning of Order 70 r 2-

So filing conditional appearance did not amount to a fresh start.

QUAIKO v. MOBIL OIL (GHANA) LTD & ANOTHER [1977] 1 GLR 461, 466

FACTS: The Plaintiff, an infant sued by the next fiend for damages for personal injuries. The 2 nd
Defendant, having filed an unconditional appearance to the writ of summons and following the
same with the Statement of Defence then applied for the suit to be struck out for non-
compliance with Order 16 r 19 of LN140A which provided that before the name of any person
should be used in an action as the next friend of an infant, such a person should sign a written
authority for that purpose for the same to be filed in the registry of the Court.

HELD per Griffiths- Randolph

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 1. That though the filing of signed written authority was a pre-requisite under Order
16 r 19 of LN140A for instituting an action on behalf of an infant, the omission to
file that document at the commencement of the suit was not always fatal to the
case because the real concern of Defendant in such an action, was to ensure that
there was a person with full legal capacity responsible for the propriety of the
action who would give security for costs to the Defendant.
2. An irregularity in the issue or service of Writ of Summons or an informality
connected therewith might be waived by the entry of an unconditional
appearance. Consequently, having entered unconditional appearance, followed by
the Statement of Defence, the 2nd Defendant was deemed to have waived the
irregularity arising from non-compliance with Order 16 r 19.

On the issue as to whether the 2 nd Defendant had not waived his right to set aside the writ due
to his entry of unconditional appearance ---

Per Griffiths Randolph J at page 466

“it is necessary also to explain that under the rules of Court, a Defendant wishing
to take objection to an irregularity in the issuance or service of a writ of summons
or an informality connected therewith, has first of all to enter a conditional
appearance i.e. an appearance under protest, which serves to indicate to the
other side that he has some reservations about the writ of summons on him and
then file an application to have the case struck out and that the irregularity may
be waived by the entry of unconditional appearance. Vide In re Brocklebank
(Supra) where it was held that if the Defendant allowed the summons to proceed
in the ordinary way despite the irregularity then the adjudication founded upon
the non-compliance would be valid, so that as an unconditional appearance had
been entered for the second defence herein, followed by the filing of a Statement
of Defence, he is deemed to have taken a further step in default, i.e he has taken
a fresh step after knowledge of the irregularity, and thereby waived the
irregularity; Vide Order 70 r 2 of the Rules of Court’’

ASARE AND ANOTHER v. KAJIMA-SHIMIZU JOINT VENTURES & ANOTHER [1992] 2

GLR 284

Where the Plaintiff and Co-Plaintiff the paramount chief of Assin Atandansu Traditional Area and
a divisional chief of the same traditional area respectively brought action in their representative
capacities to claim two different and separate pieces of land at different places and separate acts
of trespass allegedly committed on the two different parcels of land and the Defendants entered
conditional appearance and then raised a preliminary objection as to the propriety of joining the
suit on the ground that the Plaintiffs had no common interest between them as to justify their
joining together as Plaintiffs. The Plaintiffs resisted the motion on the ground that the Defendant
could only raise a preliminary point of law by their pleadings after entry of appearance but the
Defendants responded that under Order 15 of LN140A as substituted by LI. 1129 an objection to
misjoinder could be raised as a preliminary point of law which could be raised at any time in a
trial.

Benin J. (as he then was) HELD allowing the preliminary objection – that entry of an
unconditional appearance amounted to a fresh step since he would then be deemed to have
waived his right to object. The entry of conditional appearance was an appearance for all

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purposes except the right reserved in the Defendant to object to the writ or its service on legal
grounds. In the instant case, as the objection was all about misjoinder of parties and causes of
action which was then an irregularity, even if the Defendant neglected to set it aside within
reasonable time or took a fresh step in the action before doing so, that would not cure the
misjoinder. Therefore even if the conditional appearance was treated as an unconditional one it
did not preclude the Defendants from applying to the Court to deal with the question of
misjonder, because there was no time limit within which the Defendants must apply, although
considerations of convenience would require that the application should be made promptly.
Hence as the Defendants claimed to have been embarrassed by the misjoinder, the appropriate
time to object was before they pleaded, for it was only when they had got the proper Plaintiffs
with the appropriate cause of action that they would be enabled to plead without any
embarrassment or inconvenience to themselves.

The Order 25 r 2 and 3 of LN140A read together showed that a point of law might only be raised
if the objection was a serious point of law which went to the root of the action or a substantial
part thereof. The procedure Under Order 25 r 2 was applicable where the application was to
strike out a pleading for showing no cause of action or answer. It was therefore left the
discretion of the party who wished to raise the objection to do so, and neither party could
compel the other to raise the objection by his pleading. In the instant case, the Defendants’
objection was not that the Plaintiff had no cause of action against them but that there was a
misjonder of parties and causes of action. However, under Order 15 r6 of LN140A no
proceedings should be defeated by reason of the misjoinder of any party. According, since a
decision on the issue did not dispose of the case that in whole or in part Order 25 rr2and 3 of
LN140A were inapplicable.

Setting Aside – Power to set aside also in Order 9 r 8 as in Order 81 r 2

Order 10 r 8 – The Court may, on such terms as it thinks fit, set aside or vary any judgment
entered pursuant to this order –

The Order deals with default of appearance. So the Court has power to set aside or vary
judgment entered for default of appearance upon terms as it thinks fit.

Order 9 r 8; Order 19 rr 1 and 4

Order 9 rule 8

1) A Defendant may at any time before filing appearance or 2) if the Defendant has filed a
conditional appearance, within fourteen 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.

These are remedies open to the Defendant who wishes to contest the proceedings or the
regularity of the writ - He must make an application to set the same aside – and the orders open
then to the Court are as in (a) (b) and (c) of Order 9 r 8 above.

The applications should comply with Order 19 rr 1 and 4

Order 19 r 1 requires that every application in pending proceedings shall be by motion.
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Order 19 r 4 ..............................................
ENTRY OF APPEARANCE

Where a writ of summons or a petition has been served on a party, either personally or by
substituted service or any of the mode of service and he wishes to contest the suit he must enter
appearance. The failure to enter appearance may result in default judgment being entered
against him without notice to him. By entering appearance the Defendant is submitting to
the Court’s jurisdiction and indicating that he is ready to participate in the action or
proceedings to defend the same.

Remember that a writ of summons contains a notification that an action has been initiated or
instituted against the Defendant and commands him to cause an appearance to be entered
within 8 days if he intends to dispute the claim or defend the action or else judgment may be
entered against him. This is in accordance with the Rules.

Appearance or Entry of Appearance is generally provided for in Order 9 of the Rules.

WHO MAY FILE APPEARANCE?

A Defendant to an action may, whether or not he is being 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 – Order 9 r 1(1)

So appearance may be in person or through a lawyer. But this is subject to Order 5 r 1 of the
Rules. Remember Order 5 r 1(3) says that subject to these Rules, anything which in the ordinary
conduct of any proceedings is required or authorised by these rules to be done by a party to the
proceedings shall, if the party is a person with disability, be done by his or her next friend or
guardian ad litem.

It means that if the appearance of a person with disability is to be done, then the appearance is
required to be done by the guardian ad litem – but by Order 5 r 1(4) a next friend or guardian ad
litem shall act by a lawyer.

Remember also that a person with disability, has been defined in Order 5 r 1(1) for the purposes
of judicial proceedings to be 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.

Method of Filing the Appearance

The appearance in the High Court does not consist in physical appearance in Court but it is a
process filed in a specified manner to indicate that an appearance has been entered.
This process is indicated in Order 9 rr 2 and 3
Order 9 r 2(1) - The process is that the appearance is filed by completing a notice of appearance
in triplicate in compliance with rule 3 of the Order and handing it in at, or sending it by post to,
the Registry together with two stamped envelopes, one addressed to the Plaintiff’s solicitor or to
the Plaintiff, if acting in person, at the Plaintiff’s address for service, and the other addressed to
the Defendant filing the appearance.

If two or more Defendants to an action file appearance by the same lawyer and at the same
time, only one set of notices in triplicate need to be completed and delivered for those
Defendants – Order 9 r 2(2)

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But if partners are sued as partners in the name of their firm they shall appear individually in
their own names, but all subsequent proceedings shall continue in the name of the firm.

Contents of the Notice of Appearance – Order 9 r 3

1. Order 9 r 1(2) requires that 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 or not this is stated on the writ.

Where however 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 -
Order 9 r 1(3)

2. The Notice of Appearance shall be as in Form 5 in the Schedule – and shall specify an
address for service.

The address for service 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 appeared by a lawyer, the business address of that lawyer
in this country. See Order 9 r 3(1)

3. The notice of appearance shall be dated on the day on which it was 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: Order 9 r 3(2)

- Order 9 r 3(3) requires that 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.

But 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. Order 9 r
3(4). This means there must be address but the Court will not entertain fictitious address
– and if a fictitious address is received it would be set aside if brought to the notice of the
Court.

Time Limited for Appearance Order 9 r 5

As noted already the time limited for appearance to a writ is 8 days as indicated on the writ. This
is provided for in Order 9 r 5(a) – in the case of a writ served in the country, 8 days after the
service of the writ or where that time has been extended by the Court, within that time as
extended-

This is because by Order 80 r 4 the Court has the discretion, subject to terms to, by order,
extend or reduce the period within which a person is required or authorised by the Rules, or by
any order or direction, to do any act in any cause or matter. And the Court may extend any such
period although the application for extension is not made until after the expiration of that period.

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We have to also look at this rule, Order 80 r 1 (5). Where the period required to do anything by
the rules or order or direction or judgment is a period of seven days or less and would include a
Saturday, Sunday or a public holiday, that day shall be excluded.

Note the provisions of Order 80 r 1 generally as to when time runs. – By Order 80 r 1(2) – time
runs immediately after that date etc.

Note Order 7 r 13(2) – dealing with order under sub-rule 1 dealing with service on a Defendant’s
agent –

Order 7 rule 13(1) deals with service on Defendant’s agents in Ghana – and states that upon a
writ being issued under the circumstances where the contract was entered into with the
Defendant’s agent in Ghana or their agents - the Court may make an order authorising service of
the writ beginning an action relating to the contract to be effected on the agent instead of the
principal –

In such a situation Order 7 r 13 (2) requires that the order for service on the agent instead of the
Principal shall state a time limit within which the Defendant shall file appearance. But Order 9 r
5(b) the time limited for appearance would be the time limit stated by the Court in that order.

Time Limit for Appearance in respect of service of notice of a writ out of the
jurisdiction

In the same way - By Order 8 rule 4 - 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.

Therefore Order 9 r 5 (b) provides that the time limit will be the time provided by the Court.

Time Limit for Appearance where time extend under Order 80 r 4

Order 9 r 5 (b) also provides that where the time limited for appearance has been extended- e.g.
as under Order 80 r 4 then the time limit would be up to the extended time.

TYPES OF APPEARANCE

There are two types of appearance:

(1) Unconditional Appearance, or

(2) Conditional Appearance

(1) Unconditional Appearance

If the Defendant enters appearance unconditionally he thereby acknowledges the Court’s
jurisdiction, the regularity of the writ and the regularity of the service of the writ.

(2) Conditional Appearance

Where however, the Defendant has any reason to question or challenge the jurisdiction of the
Court or question the regularity of the writ or the service of the same he must enter a
“Conditional Appearance”. By so doing the Defendant has given notice to the other side (Plaintiff)
that he intends to challenge or question the jurisdiction of the Court, the regularity of the writ or
its service. If the Defendant does not challenge or question the regularity of the writ or its
service promptly or timeously he may be deemed to have waived it. Note however that this does
not apply to the question of jurisdiction – which generally cannot be waived or conferred but can
be raised at any time even on appeal or a final See the cases of Mosi v. Bagyina [1963] 1 GLR
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337, SC, Amoasi II v. Twintoh [1987 - 88] 1 GLR 554, SC- to the effect that where there is no
jurisdiction, there is no time limit to raise it.

Order 9 rr 7 & 8 deals with Conditional Appearance

Order 9 r 7(2) however provides that 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 Defendants 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.

The time limit is provided by Order 9 r 8 to be 14 days after filing appearance.

It means that the conditional appearance would be automatically considered to be an

unconditional appearance if after 14 days of the filing of conditional appearance the Defendants
do not take the step required by Order 9 r 8 and the suit will take its normal course.

Order 9 r 8 is the procedure by which the Defendant ventilates the grievances he has against the
regularity of the writ or its service and or the attacks the jurisdiction of the Court.

The purpose of Conditional Appearance is therefore to halt or stop the proceedings for the said
14 days for the protest or the basis of the conditional appearance to be gone into.

So the procedure to follow is Order 9 r 8 by which a Defendant may at any time before filing
appearance, or if the Defendant has filed a conditional appearance, within fourteen 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.

This rule gives an indication as to the rationale or purpose of Conditional Appearance as can be
gleaned from what follows from conditional appearance. The case of Republic v. High Court,
Denu; Ex parte Avadali IV [ 1993-94] 1 GLR 561, per Adade JSC on page 566 gives the
essence or principle behind conditional appearance.

In that case Respondent had brought action in the High Court for a declaration that as a head of
the Anyigbe clan (hlotator) of the Agave Traditional Area he was entitled to manage the lands
and other properties of the clan. The Applicants entered Conditional Appearance to the writ and
moved the Court to strike out the action on the ground that the Respondent’s claim was a
Chieftaincy matter and therefore the High Court had no jurisdiction to try it.

The Respondent on his part contended that the Applicant having entered Conditional appearance
ought to have filed a Statement of Defence pleading the facts he intended to rely upon before he
could move the Court to set the writ aside or take advantage of the contents of any exhibits
attached to the motion.

The High Court dismissed the Applicant’s motion on the ground that the suit was not a cause or
matter affecting chieftaincy.

The Applicant being aggrieved by the decision applied to the Supreme Court for certiorari to
quash the decision of the trial Court. The Supreme Court found from the exhibits in the affidavit
that an extract of the history of Agave showed that the hlotator for the head of the Anyigbe clan
was a chief.

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The Supreme Court therefore in granting the application

HELD1. That apart from the general law that objections to jurisdiction might be taken at any
time, a Defendant might appear unconditionally and raise the issue of jurisdiction in his
Statement of Defence as a defence and at the appropriate time ask the Court to take that issue
and try it in limine or he might file a conditional appearance and move the Court to set aside the
writ of summons and the Statement of Claim. In the latter case since there will be no Statement
of Defence at that stage, the Defendant’s reason for objecting to the Court’s jurisdiction could
only be stated in the affidavit. Accordingly, in the instance case, the Respondent’s contention
that having filed a conditional appearance, the applicant had to raise his grounds against the
Court’s jurisdiction in a Statement of Defence was wrong.

2. That the applicant was therefore entitled to attach to his affidavit any material which would
help him persuade the Court that his protest to the jurisdiction of the Court was well founded.
Accordingly the application to strike out the action was properly before the Court.

3. That however, the High Court had no jurisdiction to determine the matter because the position
of the head or hlotator of the Anyigbe clan was a chiefly one and therefore the suit was a cause
or matter affecting chieftaincy over which the High Court had no jurisdiction.

But it is the definition of conditional appearance appearing on page 566 per Adade JSC that must
be looked at. It said quoting from the White Book (1959) at page 198. The term ‘conditional
appearance means an appearance in qualified terms, reserving to the appearing
Defendant the right to apply to the Court to set aside the writ, or the service thereof,
for an alleged informality or irregularity which renders either the writ or service
invalid, or for lack of jurisdiction. There is no real distinction between ‘conditional
appearance’ and ‘appearance under protest’. The latter term is more usually applied
to an appearance by a person served as a partner......but who denies that he is a
partner....”

The whole purpose of a conditional appearance is to stop the case in its tracks; stop it from
being gone into at all-on this occasion, for the reason that the Court has no jurisdiction to hear
it..........”

This dictum is obviously in tune with Order 9 rr 7 & 8 – These rules seem to reflect this dictum.

QUAIKO v. MOBIL OIL (GHANA) LTD. & ANOR [1977] 1GLR 461, 466 to the effect that
failure to file conditional appearance, or the filing of unconditional appearance and taking fresh
step would amount to waiver of the objection as to irregularity in the issue connected
with it or service of the writ or an informality, of course except fundamental or
jurisdiction objection.

EDUSEI v. DINERS CLUB SUISSE SA [1982-83] GLR 808, CA – where summary judgment
was entered against the Defendant after unconditional appearance, nevertheless appealed
against the same in the Court of Appeal, on the ground inter alia that the transaction took place
in Zurich so the Courts in Ghana could not entertain the action.

HELD dismissing the appeal that there was nothing on the evidence to show that Zurich was
intended as the exclusive forum for the settlement of disputes between the parties.
That, besides, by appearing unconditionally to the writ, the Defendant was deemed to have
waived any issue relating to the appropriateness of the forum.

ACKERMAN v. SOCIETE GENERALE [1967] GLR 212

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The Plaintiff was an Israeli national. And by a contract drawn in the French language but
executed in Ghana he agreed to serve the Defendants, an external French Company as their
works supervisor at Tema. The Defendants were carrying on the business of constructing estate
houses at Tema and had their factory at Tema. The Plaintiff’s salary was made payable in the
French currency. In an action for damages for breach of contract, the Defendants entered an
unconditional appearance to the writ and raised a preliminary objection as to jurisdiction on the
grounds that the Defendant was an external company. b) the contract was drawn in French and
the Plaintiff’s salary was payable in francs, thus the proper law governing the transaction was
French Civil law.

HELD that where a Defendant entered an ordinary appearance without any condition or protest
reserving his right to object to the irregularity of the writ or service or the jurisdiction of the
Court, he was debarred from raising an objection afterwards.

1. The proper law of the contract was the law of the country with which the contract
was most closely factually connected. On the facts the proper law of the contract
was Ghana.
2. Whether a corporation aggregate, like the Defendant, was resident in a particular
country (Ghana) for the exercise of the country’s jurisdiction, would be dependent
on the fact that at the commencement of the action, business as in the instant
case, was being carried on at some definite and more or less permanent place in
the country that arrogated to itself the right to adjudicate.

By filing a conditional appearance therefore, the Defendant preserves and becomes entitled to
his right to raise the objection thereafter.

The case of Brocklebank; Ex parte Brocklebank referred to by Griffiths Randolph in the

Quaiko v. Mobil case- that case preserves the right to raise objection upon entering conditional
appearance.

AMISSAH – ABADOO v. ABADOO [1973] 1 GLR 490

In this case a man devised certain properties to his wife and children and before probate was
granted, the deceased’s brother issued a writ of summons against the widow for a declaration
that the property was his family property. The widow entered conditional appearance and
followed with an application for the writ to be struck out on the ground that it disclosed no
reasonable cause of action against her under Order 19 rule 29 and under the inherent jurisdiction
of the Court. The widow contended that not being the executor or the Chief Justice whom the
property vested by virtue of the Administration of Estates Act 1961 (Act 63) S. 1(2)(b) since
probate had not been taken. The Plaintiff between contended that the Defendant ought rather to
file a defence and indicate grounds of objection in her defence in the action and should have
waited for the Statement of Claim to be served on her to be able to find out whether a cause of
action had been disclosed against her.

HELD
1. That it was Order 25 rule 4 of LN 140 that gave the right remedy to strike out
summons and pleadings for disclosing no reasonable cause of action, not order
19 r 29. The Court therefore treated the application like having been brought
under Order 25 r 4.

2. A Defendant might enter a conditional appearance where he intended to have

a writ or service of the writ set aside on the ground of irregularity in the writ
or the service of the writ or to deny jurisdiction. Irregularity here included the
irregularity in the issue or service of the writ or in the form of the writ. The
Defendant’s application did not attach the Plaintiff’s writ on any of the above

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 grounds. Her sole complaint that the writ did not disclose any reasonable
cause of action was not among the grounds which justified her entering
conditional appearance and consequently the conditional appearance would be
treated as unconditional appearance under Order 25 r 4 of LN 140 A.

3. Under Order 2 r 4 the Court must be satisfied that there was no reasonable
cause of action and that the proceeding were frivolous and vexations and this
must be clear on the pleading. No affidavit evidence was permissible. Where
the Court was acting under its inherent powers, however, affidavit evidence
was received to show that the pleadings was an abuse of the Court’s process.
A stay would not be ordered before the delivery of a Statement of Claim. Had
the claim, she could have seen that it disclosed a reasonable cause of action
against her.

Per curiam; The Defendant’s reliance on Act 63 is untenable. The relevant principle in the
Amissah Abaidoo case is that “A case not disclosing a reasonable cause of actions” not a basis or
ground for entering conditional appearance to set aside a writ.

Where there was no time limit under the old rules- application to set aside the writ after
conditional appearance had to be made within a reasonable time.

-RENAULT VEHICLE INDUSTRIES LTD. v. ASHANTI ENGINEERING INDUSTRIES

[19991] 1 GLR 443, CA. The English time limit of 14 days was invoke, on the basis of Order 74 of
LN140A.

Under the old rules since no time limit was given as to when the application could be made to set
aside the writ or service after entering conditional appearance, the English rules requiring the
application to be made within 14 days was adopted in the case of DEDE II v. ANSAH &
OTHERS [1980] GLR 746.

REPUBLIC v. HIGH COURT, ACCRA; EX PARTE ARYEETEY [20003-2004] SC GLR 398, 408
Kpegah JSC in holding 3 said that 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 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, or for substituted
service or service outside the jurisdiction. It is not permissible for a defendant who has entered
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 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 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 the High Court (Civil Procedure) Rules, 1954
(LN140 A) 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, i.e. where it can be clearly seen that a claim or answer is on the face of
it, certainly unsustainable. In the case of APPIAH v BOAKYE (1993-94) 1 GLR 417 at 423, this
court speaking per Abban JSC (as he then was) said “we must make it clear at this stage that in
dealing with applications under Order 25 r 4 of LN 140A, where the defendant is contending that
the statement of claim does not disclose any reasonable cause of action, the court should

95
concern itself only with the allegations admissible in the pleadings. No evidence is admissible.
Only the pleadings should be looked at to determine whether or not they disclose a reasonable
cause of action.
Apart from its power under Order 25 r 4 of LN140A to summarily stay proceedings before it on
the grounds of frivolity and vexations etc, the court also has an inherent jurisdiction to stay an
action it considers as frivolous or vexatious or an abuse of its process. There is however a
difference in procedure when the court relies on its powers under Order 25 r 4 of LN140A to stay
proceedings on those same grounds. As has been stated earlier, in the case of the practice under
Order 25 r 4, affidavit evidence must be looked at. But in the case of the exercise of the powers
under its inherent jurisdiction, the court can consider all the facts including affidavit evidence.

Order 10, Order 9, Order 9 r 3, Order 10 r 7, Order 7 r 9 & 11-

DEFAULT OF APPEARANCE Order 10

Order 10, Order 9, Order 19 r 1

Default of Appearance simply means failure to enter or file appearance within the time
limit.

What happens when a Defendant fails or refuses to enter appearance?

The Plaintiff, if he is diligent and wants the case to be dealt with rather than hanging on
indefinitely because the Defendant is not taking any step or has ignored the writ and has failed
to enter appearance, when he has been duly served with the writ, the Plaintiff will apply to the
Court to obtain judgment in default of appearance.

By Order 9 r 5- the time limit for appearance is 8 days after service of writ unless extended by
the Court in which case, the extended time becomes the time limit. Or in case of notice of service
out of jurisdiction the time given by the Court will be the time limit.

If the Defendant however enters appearance after the time limit, the appearance may be
accepted once judgment has not been entered. And from the reading of Order 9 r 6, he would
not need leave to file it or extension of time to file it.

For by Order 9 r 6(1), it is provided that a Defendant may not file appearance after judgment has
been entered in the action except with leave of the Court.

It means that leave would be required if there has been default judgment or judgment in default
of appearance, otherwise the appearance would be accepted or permitted without leave.

This is even made clearer in Order 9 r 6(2) which provides that except as provided by subrule (1)
nothing in these Rules shall be construed as precluding a Defendant from filing appearance after
the time limited for appearance, but if the Defendant does so, the Defendant shall not, unless
the Court otherwise orders, be entitled to serve a defence or do any other thing later than if the
Defendant had appeared within that time.

So it means that a Defendant who files a late appearance is not entitled to file or cannot file his
defence out of time without leave of the Court.-

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Back to the question as to what happens if the Defendant fails or refuses to enter
appearance.

Default of Appearance is specifically provided for by Order 10.

The Plaintiff may apply to the Court for judgment in default of appearance if the Defendant fails
to enter appearance within the time limited for entering appearance.

But there are two (2) types of judgment that may be applied for. It may be for:

1. Final judgment or
2. Interlocutory Judgment, depending on the nature of the claim or the reliefs sought.

By Order 10 rule 1(1) where the Plaintiff’s claim against the Defendant is for a 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 proceed with the action against
other Defendants, if any.

Order 10 r 1(2) states that a claim shall not be prevented from being treated for the purposes of
this rule as a claim for liquidated demand, by reason only that part of the claim is for interest
accruing after the date of the writ at an unspecified rate, but any such rate shall be calculated
from the date of the writ to the date of entering judgment or final payment at the same rates
as the prevailing commercial bank rate.

So liquidated claim (amount) deals with specific amount claimed that would not need
evidence to quantify. If the facts as pleaded by him warrant it, the Court will give the Plaintiff
final judgment without evidence.

Unliquidated claim is that which may need evidence to quantify e.g. general damages for
trespass or damages for trespass which need to be specifically proved in evidence. See the case
of Fofie v. Pomaa [1974] 2 GLR 6.

By Order 10 r 2 – where the Plaintiff’s claim against the Defendant is for an unliquidated demand
only, and the Defendant fails to file appearance, the Plaintiffs 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 .

The interlocutory judgment will specify that the Plaintiff is entitled to some damages but would
not say how much because at that stage of the proceedings the judge has not enough facts to
assess the damages. Quantum of the damages would be assessed later by the Court and then
give the final judgment based upon the assessed damages based upon evidence given by the
Plaintiff.

So it is provided in Order 10 r 3(2) that where the Plaintiff enters interlocutory judgment for
damages under rule 2 or for the value of goods under this rule, the Court shall fix the date on
which damages or value shall be assessed and direct that notice of it shall be given to the
Defendant against whom the interlocutory judgment has been entered.

Order 10 r 3(3) - makes provision for a Defendant who is served with such a notice to be entitled
to attend at the assessment and be heard on the issue of damages only.

But Order 10 r 3 deals with claim in detinue as well.

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By Order 10 r 3(1) where the Plaintiff’s claim against the Defendant relates to detention of goods
only, and the Defendant fails to file appearance, 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 good to be assessed and cost and proceed with the action
against other Defendants, if any.

Claims for Possession of Immovable Property – Order 10 r 4 (Recovery of possession

or recovery of immovable property)

Order 10 r 4(1) where the Plaintiff’s claim against a Defendant is for possession of immovable
property only, and the Defendant fails to file appearance, the Plaintiff may, after the time limited
for appearance, apply for judgment for possession of the immovable property and cost against
the Defendant; provided that the Plaintiff may proceed with the action against the other
Defendants, if any, who have filed appearance.

But 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 - See Order 10 r 4 (2).

But under Order 10 r 4 (3) this rule shall not apply where possession is claimed by virtue of a
mortgage. It says this rule shall not apply to this subrule, because default of appearance in
actions on mortgage is catered for under Order 10 r 10.

Mixed Claims: - Order 10 r 5

Where the Plaintiff makes two or more claims to which rules 1 to 4 apply against the 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.

Other claims or Actions not specifically provided for – Order 10 r 6

Where the Plaintiff makes a claim of a description not mentioned in rules 1 to 4 against a
Defendant, 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 the Statement of
Claim on the Defendant, proceed with the action as if the Defendant had filed appearance- Order
6 r 6(1) – Order 10 r 6(1).

This means that the case will proceed as if the Defendant had entered appearance. So it means
that in these cases - judgment is not given automatically in default of appearance or if the
Defendant defaults in appearance but the action will proceed as if the Defendant had entered
appearance and the Plaintiff will go on to adduce evidence to prove his case before judgment will
be given on the evidence. E.g. where claim is endorsed for accounts or specific performance or
for a declaration or for the Rectification of a document, then the Plaintiff must file affidavit of
service and go on with the action before judgment. See Conca Engineering v. Moses [1984 –
86] 2 GLR 319.

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What happens if in claim not mentioned in rules 1 to rule 4 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, if the Defendant fails to file appearance? In such a situation,
by Order 10 r 6(2) the Plaintiff may, after the time limited for appearance, apply for the award of
costs against that Defendant. In that case, the Plaintiff’s application shall be by leave of the
Court. The application for leave to enter judgment under subrule (2) shall be on notice. So to be
served on the Defendant against whom it is sought to enter judgment.

How is an application to be brought for judgment in default of Appearance?

The mode of the application is set out in Order 10 r 7.

But remember that by Order 10 the Plaintiff may apply and that in Order 19 r 1(1) every
application in pending proceedings shall be by motion.

In addition, by Order 10 r 7(1),

(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
statement that the lawyer accepts service of the writ on behalf of the
Defendant.

In the application the applicant must (shall) satisfy the Court that the party is in default of
appearance when in an action an application is made to the Court for an order affecting a party
who has failed to file appearance – Order 10 r 7(2). In Fofie v. Pomaa [1974] 2 GLR 6, the
Plaintiff as a mother and next friend of her infant children issued a writ of summons against the
Defendant as their father claiming ¢ 20.00 a month as maintenance for each child and ¢5,000.00
as expenses which she had incurred in maintaining the children for 6½ years. Service of the writ
on the Defendant was endorsed by the serving baliff as required by the rules.

Upon the failure of the Defendant to enter appearance, the Plaintiff applied for and obtained final
judgment for her claims for default of appearance and immediately caused a writ of fi fa to issue
against the properties of the Defendant. The Defendant thereupon applied and obtained leave to
enter late appearance and also applied by motion on notice to set aside the default judgment on
the grounds that the judgment was a nullity since service of the writ on him was not endorsed in
accordance with the relevant rules and (2) that the Plaintiff was not entitled to final judgment
since the ¢5,000.00 claimed could not represent a liquidated demand but constituted provable
damages.

HELD a liquidated demand was in the nature of a debt; i.e. a specific sum of money due and
payable under or by virtue of a contract. The amount in question must either be already as
ascertained or capable of being ascertained as a matter of arithmetic. If the ascertainment of a
sum required investigation beyond mere calculation even though it be specific or named as a
definite figure, then the sum was not a debt or liquidated demand within the meaning of Order
13 r 17 of LN 140A but constituted damages, in which case the Plaintiff was entitled only to
interlocutory and not final judgment. In the instant case, if the action had been contested the
Plaintiff could not have been entitled to the ¢5,000.00 claimed as a matter of arithmetic

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calculation but would have been obliged to justify the expenses incurred; the ¢5,000.00 claim
was therefore not a liquidated demand.

A.B.K. Pharmaceutical Industries Ltd. v. Social Security Bank [1992]1 GLR 562. Where
the Plaintiff/Respondent obtained final judgment in default of appearance against the 1 st
applicant, a customer of the bank for ¢28,352,778 being outstanding indebtedness on a loan
facility granted them by the bank. Subsequently the applicant applied to set aside the judgment
on the ground that when the final judgment was entered they had made part payment of ¢15
million in respect of the indebtedness in Accra and thus the amount in the judgment exceeded
the actual amount. They however admitted that the payment made was not communicated to
the Respondents’ solicitor nor the branch manager in Adum, Kumasi yet they failed to lead any
evidence in support of the alleged payment.

HELD dismissing the application – That where a Plaintiff signed judgment in default of
appearance for an amount which exceeded that which was due to him, the Defendant was
entitled to have the judgment set aside subject to the right of the Plaintiff to apply to have the
sum reduced to the proper amount. However, to succeed in such an application, the Defendant
must establish that the Plaintiff had or should have had knowledge of the reduced amount before
signing for judgment. In the instant case, since the applicants failed to disclose to either the
Adum Branch of the bank, the Plaintiffs in the substantive suit, or their solicitor of the fact of the
payment which was peculiarly within the knowledge of the applicants at the time the respondent
signed judgment and besides the applicants led no evidence in support of the alleged payment,
they were not entitled to set aside the judgment.

Moneylender’s Action – Order 10 r 9; 1951 (Cap 176) as amended by Money Lender’s

Ordinance

Money Lender has been defined in the Interpretation Section i.e. Section 2 of the Moneylender’s
Ordinance 1951(Cap 176) as amended by the Moneylender’s (Amendment) Decree, 1966 (NLCD
88) and the Moneylender’s Ordinance (Amendment Law) 1983 (PNDC Law 157) thus:
“Moneylender means and includes every person whose business is that of money lending or who
carries on or advertises or announces himself or holds himself out in any way as carrying on that
business, whether or not he also possesses or owns property or money derived from sources
other than the lending of money and whether or not he carries on the business as a principal or
as an agent, but shall not include Cap 190

a) Any society registered under the co-operative societies ordinance or

b) Any body corporate, incorporated or empowered by Special Ordinance to lend
money in accordance with such ordinance or
c) Any person bona fide carrying on business not having for its primary objective
the lending of money, in the course of which and for the purpose whereof, he
lends money, or
d) Any person or body corporate exempted from the provisions of the Ordinance
by Order in Council or Cap 189
e) Any pawnbroker licensed under the Pawnbrokers Ordinance, where the loan is
made in accordance with the provisions of the Pawnbroker’s Ordinance and
does not exceed the sum of fifty pounds.

By Order 10 r 9(1) – No judgment shall be given in default of appearance except with the leave
of the Court in an action brought by a money lender or an assignee for the recovery of money

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lent by the money lender or for the enforcement of any agreement or security relating to any
such money.

By Order 10 r 9(2) the application for leave to enter judgment in such an action shall be made on
notice returnable not less than three (3) clear days after service of the notice and after filing an
affidavit of service.

But even so at the hearing of the application, whether the Defendant appears in Court or not, the
Court may do the following:

a) exercise the powers of the Court under the Money Lender’s Ordinance 1940
(Cap 176) 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
c) as regards any part of the claim to which leave to enter final judgment is
refused, give such directions or make such order as may be necessary for
further proceedings in the action, and upon such terms as may be considered
just.

Actions on Mortgages – Order 10 r 10

Under the Mortgages Act, 1972 NRCD 96 a mortgage for the purposes of the Act is a contract
charging immovable property as security for the due repayment of debt and any interest accruing
thereon, for the performance of some other obligation for which it is given, in accordance with
the terms of the contract – Section 1 (1)

Section 1 (2) A mortgage shall be an encumbrance on the property charged and shall not, except
as provided by this Decree operate so as to change the ownership, right to possession or other
interest (whether present or future) in the property charged.

Order 10 r 10(1) – In mortgages actions judgment shall not be entered in default of appearance
except by leave of the Court.

Even so, by Order 10 r 10 (2) the Court may require the application for leave to be supported by
evidence which entitles the applicant to relief and may direct that notice of the application
shall be given to the Defendant and to such other person as the Court may consider proper.

In the rules, Order 10 r 10(1) actions on Mortgages in which Order 10 r 10 applies are listed as in
(a) to (f)

SETTING ASIDE JUDGMENT

The Court prefers that cases be always determined on merit. Thus, judgment in default can be
set aside if good cause is shown. The principle is set out in the case of EVANS v. BARTLAM
[1937] AC 473, 480 per Lord Atkin thus: “ The principle obviously is that unless and until the
Court has pronounced a judgment upon the merits or by consent, it is to have power to revoke
the expression of its coercive power where that has only been obtained by a failure to follow any
of the rules of procedure”.

But we are dealing with setting aside default judgment. Thus by Order 10 r 8 “the Court may on
such terms as it thinks fit, set aside or vary any judgment entered in pursuance of this Order”.

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If the judgment had been obtained without service of the writ or notice of it or that there was
proof of service or acknowledgement of service on a person who at the material time was dead
or on a non-existing or non-existent company according to law or the court lacked of jurisdiction
in respect of the matter which will make the judgment null and void, it would be set aside.

The Court can set aside judgment regularly obtained or irregularly obtained. So judgment in
default is no bar to an application to set aside service of the writ and all subsequent proceedings
including on the ground that the service out of the jurisdiction was wrongly obtained.

Even if the judgment is regular, on the principle of Evans v. Bartlam it could be set aside.

In practice, the application to set aside the default judgment ought to be supported by an
affidavit showing a reasonable excuse or explanation for the default i.e. for failing to enter
appearance, and (2) stating facts showing a good defence on the merits or a reasonable or
arguable defence or raising triable issues.

It also makes sense that a judgment liable to be set aside on the basis of being a nullity or
irregular would be set aside automatically or as of right – “ex debito justitiae”

But all told, where judgment is regularly obtained through default the Court’s attitude in setting
the same aside is amply demonstrated by Lord Russell of Killowen’s judgment in Evans v.
Bartlam [1937] 2 All ER 646 thus: “The contention no doubt contains this element of truth that ,
from the nature of the case, no judge could, in exercising the discretion conferred on him by the
rule, fail to consider both (a) whether any useful purpose could be served by setting aside the
judgment and obviously no useful purpose would be served if there was no possible defence to
the action; and (b) how it came about that the applicant found himself bound by a judgment,
regularly obtained, to which he could have set up some serious defence. But to say that these
two matters must necessarily enter into the judge’s consideration is quite a different thing from
asserting that their proof is a condition precedent to the existence or exercise of the discretionary
power to set aside a judgment signed in default of appearance”.

In SAFO-ADU v. BOAMPONG [1974]2GLR 107, 109. – It was a case where the Plaintiff
obtained judgment in default of appearance against the Defendant who applied to set the same
aside on the grounds that 1) at the time of the trial he was in political custody and as such he
could not make himself available 2) as the damages awarded against him was quite substantial
he was likely to suffer hardship if the judgment was made to stand and 3) in view of 1 and 2 he
had a reasonable defence to the action if the matter was re-open” The evidence on record
showed that though the Defendant was in custody, the hearing notice was served on him, and
that the Defendant had instructed his solicitor to take up the matter, but that during the trial
counsel for the Defendant was persistently absent from Court though he had notice of the
hearing dates.

But there was neither affidavit nor oral evidence by the Defendant or his counsel giving the
reasons for counsel’s absence from Court.

Held that the Court had unlimited discretion to set aside a default judgment but in exercise of
such discretion, the Court must have regard to the guiding consideration as to whether or not the
applicant had shown either by affidavit or oral evidence that he had a reasonable defence to the
action.

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That there was evidence that the Defendant had due notice of the trial through his solicitor who
persistently absented himself from Court during the trial and the fact that the Defendant was in
custody or that damages awarded were substantial did not amount to a reasonable defence.

The omission of counsel for the Defendant to give a reasonable explanation as to his persistent
absence from Court during the trial was fatal to the success of the application.

As the Defendant’s Solicitor had not withdrawn himself from the record, legal process could
properly be served on the solicitor and if such process was in fact served it was presumed to
have come to the knowledge of the Defendant. The Defendant could not therefore deny that he
was served with the hearing notice since his solicitor was responsible for the conduct of his case.

Per Mensa Boison on p 109: “The rule does not appear to impose any limitation on the discretion
of the Court or on the matters that the Court may consider in exercising its discretion to set aside
such a judgment. That was the judgment of the House of Lords in the case of Evans v.
Bartlam [1937]2 All ER 646, when considering a similar application in default of appearance
under the corresponding English rules in Order 13 r 10 and Order 27 r 15. In my opinion, the
spirit of Order 36 r 18 is the jurisdiction is not to be fettered. But in Evans v. Bartlam (supra) it
was nevertheless stated by the Lord Russell of Killowen at P 651 that “The Contention no doubt
contains this element of truth, that... etc

The case of Agyeman v. Ghana Railway and Port Authority, Takoradi ; Court of Appeal 31
March 1969 unreported; digested in (1969) C.C. 60 relied on by the learned Counsel for the
applicant in my view affirms the point that the matter is one of discretion and that in exercising
such a discretion the guiding consideration is whether or not the applicant has a reasonable
defence. That was a case of default of appearance, and this was what the Court of Appeal said:

“The principle which guides a judge in the exercise of his discretion to set aside a judgment
obtained in default of appearance (or of defence for that matter) is we think ----- that the party
praying for the exercise of the Court’s discretion must disclose either by affidavit or some other
acceptable means that he has a reasonable defence to the claim and that it would be, in the
circumstances, unjust to leave his case unadjudicated upon”

The Court nevertheless underlined the fact that the matter was one of discretion when it said
further:

“In the area of judicial discretion when there is no binding precedent properly so-called, as each
case has to be dealt with strictly on its own merits and on the view which the judge takes of the
particular circumstances calling for the exercise of his discretion. In other words, the operative
circumstances must be such that it would amount to injustice to leave the Defendant’s case
unadjudicated upon”.

GHANA COMMERCIAL BANK v. TABURY [1977] 1GLR 329

QUARMYNE v. AFEYESI [1984-86] 2 GLR 430
LAMPTEY v. HAMMOND [1987-88] 1 GLR 327, 339
BOTCHWAY v. DANIELS [1991]2 GLR 262
HARUNA v. ARTS COUNCIL OF GHANA [1992]2GLR 1
CONCA ENGINEERING (GHANA) LTD. v. MOSES [1984-86] 2 GLR 319

103
 PLEADINGS

Order 82 r 3 defines pleading thus: “Pleading” means the formal allegations by the parties to a
law suit of their respective claims and defences with the intended purpose of providing notice of
what is to be expected at the trial”.

Per Lawton L. J. in Rolled Steel Products v. British Steel Corp [1985] 3 All ER 52, 96 –
“Pleadings are formal documents which have to be prepared at the beginning of litigation. They
are essential for fair trial of an action and saving of time at the trial. The saving of time keeps
down costs of litigation. A Plaintiff is entitled to know what defences he has to meet and a
defendant what claims are being made against him. If the parties do not know, unnecessary
evidence may be got together and led or, even worse, necessary evidence may not be led.
Pleadings regulate what questions may be asked of witnesses in cross-examination”

It is:

1) The formal allegation by the parties. The formal versions of the parties. Not
informal or off-record allegations but formal written allegation of the
respective claims or defence of the parties or defences as the case may be –
on which they rely

2) Intended to be providing notice of what is to be expected at the trial

A Pleading therefore is a party’s written statement of the facts on which he relies for his claim or
defence as the case may be.
Pleadings come into existence only in actions begun by writ or Petition and not by any other
mode. An originating Notice of motion, originating summons are not pleadings nor is the affidavit
in support thereof.

General Principles Governing Pleadings

1) Pleadings define clearly and precisely issues or questions in controversy

between the parties which the Court is called upon to decide on

THORP v. HOLDSWORTH [1876] 3 Ch D 637, at 639 Jessel MR – on the

object of pleading – to bring parties to issues, narrow them to issues and
thereby limit expense and delay especially as regards amount of testimony
required.

2) Pleadings give a fair and adequate notice to each party of the case of his
opponent so that he can prepare his own case for trial. It would therefore
prevent surprises to the other side.
Esso Petroleum Co Ltd v. Southport Co. [1956] AC 218, 238

In Dam v. Addo [1962] 2 GLR 200 SC the Supreme Court quoted the dicta of Lord Normand in
Esso Petroleum at p 238-239 and adopted same in page 201 – that the function of pleadings is
to give fair notice of a case which has to be met, so that the opposing party may direct his
evidence to the issue disclosed by them . To condemn a person on ground of which no fair notice
has been given may be as great a denial of justice as to condemn him on a ground on which his
evidence has been improperly excluded.

104
 It was also held in the Dam v. Addo case that a Court must not substitute a case proprio motu
nor accept a case contrary to, or inconsistent with, that which the party himself puts forward
whether he be the plaintiff or defendant.

3) Pleadings give sufficient notice or information as to the nature of the case of

the respective parties to enable them to know exactly the matters in dispute
between them, so that each would know the others version to prepare for it.

Defines 4) Pleadings inform the Court what are the precise matters in issue between the
confirms parties, the issues raised by them and sets the limits of the action and the
of the Court may not go beyond them without amendment properly made.
action Blay v. Polard and Morris [1930] 1 KB 628, 634
Sets the
limits of
the 5) Pleadings constitute a permanent record of the issues and question raised in
action an action and decided on. This makes it easier to prevent future litigation upon
matters already adjudicated upon between the parties or those privy to them
e.g. for purposes for res judicata – or estoppel
HOYSTED v. COMMISSIONER OF TAXATION [1926] AC 155.

 See Appea v. Asamoah [2003 – 2004] SCGLR 226 to determine the

nature of estoppels – Hammond v. Odei & Anor.

OTHER CASES: In a case in which the Plaintiff relied on two previous judgments to rely
on estoppels. It was held that the tendering of the pleadings was necessary to
determine the nature of the estoppel

POKU v. FRIMPONG [1972] 1 GLR 230, per Azu-Crabbe JSC at page 236 “The Pleadings
consist of the Statement of Claim delivered by the Plaintiff; the Statement of Defence, which is
the answer of the Defendant; the reply, which is the Plaintiff’s answer to the Defendant; and all
subsequent pleadings, which are rarely delivered, such as the rejoinder, the surrejoinder, the
rebutter and the surrebutter.
All except rejoinder are rare to the point of extinction- per Lawton L.J in Rolled Steel Products
v. British Steel.

So what pleadings consist of has been indicated in the Poku v. Frimpong case as;

1. The Statement of Claim – delivered by the Plaintiff

2. The Statement of Defence – the defendant’s answer to the statement
of claim
3. The reply – i.e. Plaintiff’s answer to the defence
4. There are other subsequent pleadings which are rarely delivered such
as rejoinder (defendant) the surrejoinder (plaintiff) the rebutter
Counterclai (defendant) and the surrebutter (plaintiff).
m All except rejoinder are rare to the point of extinction – Quote per
4. Lawton L.J. in Rolled Steel Products v. British Steel.
Rrejoinder
NB: However, Order 11 r 4 provides that “No pleading subsequent to a
with Leave
as in O. 11 reply shall be filed except with leave of the Court.
r4
Dam v. Addo [1962] GLR 200- that the function of pleading is to give fair notice of a case which
has to be met, so that the opposing party may direct his evidence to the issue disclosed by them.

105
A generally indorsed writ of summons is not pleading. Murray v. Stephenson (1887) 19 QBD
60; Wallis v. Jackson 23 ChD 204, but a statement of claim indorsed on the writ is – Anlaby
v. Praetorius (1888) 20 QBD 764; Robertson v. Howard (1878) 3 CPC 280 NB.

The case of Hammond v. Odoi and Anor [1982-83] GLR 1215; 1235 – deals with the
essence of pleadings. In that case, the Supreme Court held that it was wrong for the Plaintiff in
his reply to raise new matters different from the averments or allegations in the Statement of
Claim which were not intended to be a “set off” nor controvert anything pleaded in the
Statement of Defence. On the contrary the reply raised a new matter and abandoned the earlier
stand and that amounted to a departure from his pleadings contrary to Order 19 r 17 of LN140
A. Per Charles Crabbe JSC at page 1235 “Pleadings do not only define the issues between
the parties for the final decision of the Court at the trial; they manifest and exert
their importance throughout the whole process of the litigation. They contain the
particulars of the allegations of which further and better particulars may be
requested or ordered, which help still further to narrow the issues or reveal more
clearly what case each party is making. They limit the ambit and range of the
discovery of documents and the interrogations that may be ordered. They show on
their face whether a reasonable cause of action or defence is disclosed. They provide
a guide for the proper mode of trial and particularly for the trial of preliminary issues
of law or of fact. They demonstrate upon which the burden of proof lies, and who has
the right to open the case. They act as a measure for comparing the evidence of a
party with the case which he had pleaded. They determine the range of admissible
evidence which the parties should be prepared to adduce at the trial. They provide
the basis for the defence of res judicata in subsequent proceedings by reference to
the record in the earlier proceedings.”

Pleadings are the nucleus around which the case – the whole case-revolves . Their very
nature and character thus demonstrate their importance in actions, as for the benefit of the
Court as well as for the parties. A trial judge can only consider the evidence of the parties in the
light of their pleadings. The pleadings form the basis of the respective case of each of the
contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence
that they would lead. Amendment is the course to free them from such fetters. The pleadings
thus manifest the true and substantive merits of the case”

Before this Crabble JSC had said in page 1234 that “the function of pleadings as indicating the
role of the Court is thus described by Master I.H Jacob: The Present Importance of Pleadings” in
Current Legal Problems (1960), pp 171-174 & 175-176.

“As the parties are adversaries, it is left to each of them to formulate his case in his own way,
subject to the basic rules of pleadings ---- For the sake of certainty and finality, each party is
bound by his own pleading and cannot be allowed to raise a different or fresh case without [ due
amendment properly made]. Each party thus knows the case he has to meet and cannot be
taken by surprise at the trial. The Court itself is as much bound by the pleadings of the parties as
they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry
into the case before it other than to adjudicate upon the specific matters in dispute which the
parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to
its own character and nature if it were to pronounce upon any claim or defence not made by the
parties. To do so would be to enter the realms of speculation....... Moreover, in such event, the
parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on
a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at
106
 all and may thus be a denial of justice. The Court does not provide its own terms of
reference or conduct its own enquiry into the merits of the case but accepts and acts upon
the terms of reference which the parties have chosen and specified in their pleadings. In the
adversary system of litigation, therefore, it is the parties themselves who set the agenda
for the trial by their pleadings and neither party can complain, if the agenda is strictly
adhered to. In such an agenda, there is no room for an item called ‘Any other business’ in the
sense that points other than those specified may be raised without notice”.

The purpose of pleadings therefore is not to play a game at the expense of the litigants but to
enable the opposing party to know the case against him.

The fact that a party is not permitted to make any allegation of fact or raise any new ground or
claim inconsistent with a previous pleading made by him is codified in Order 11 r 10.

By Order 11 r 10(1) 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.
0.11
deals By Order 11 r 10 (2), 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.

So a guiding principle is that a party is bound by his pleading and cannot plead one set of facts
and at the trial put up a different case. If a party finds that he has to change his case he must
make amendment (s) to his pleading.
Not
evide
nce
only
legal DRAFTING PLEADINGS
infere
nce
from 1. The first rule or principle is that a party is bound by his pleadings and cannot plead
facts
permi one set of facts and at the trial and put up a difference case. If a party finds that he
tted
reserv
has to change his case, he must make amendment(s) to his pleading.
e
evide
nce at
2. A party must plead all the material facts on which he relies for his claim or defence.
the Order 11 r 7 requires that a party pleads facts, material facts only but he is not
trial
unnec
required to plead evidence by which he will prove the facts. In William v. Wilcox
essary (1838) 8 A & E 314 per Lord Denman C.J @ 331 “it is an elementary rule in pleading
,
that when a statement of facts is relied on, it is enough to allege it simply without
setting out the subordinate facts which are the means of proving it or evidence
sustaining the allegation”. In Bruce v. Odhams Press Limited [1936] 1 All ER 287
per Scott L.J. @ p 294 “ the word “material” means necessary for the purpose of
formulating a complete cause of action; and if any one material fact is omitted the
statement of claim is bad” .

3. Order 11 r 7(1) provides that subject to rules 10 to 12 every pleadings shall contain
only a statement in a summary form of the material facts on which the party pleading
relies for the claim or defence, but not the evidence by which those facts are to be
proved, and the statement shall be as brief as the nature of the case admits. See
Parton, Townsend v. Parton-

4. Order 11 r 7 (2) the effect of any document or the purport of any conversation
referred to in the pleading shall, if material, be briefly stated, and the precise words of

107
 the document or conversation shall not be stated, except in so far as those words are
themselves material. – Subject to subrule.
Formulatin
ga
complete
In the case of Re Wrighton [1908] Ch 799 it was stated that “the plaintiff is not
cause of entitled to relief except in regard to that which is alleged in the pleadings and proved
action; and
if any one at the trial”
material
fact is
omitted,
the
Statement 5. We plead facts not law-
of Claim is
bad” in the
case of Re Thus in Order 11 r 7(3) it is provided that a party need not plead any fact if it is
Wrightson
[1908] 1 Ch
presumed by law to be true or the burden of disproving it lies on the other party,
799 it was unless the other party has specifically denied it in that party’s pleading.

So a party is not required to plead a presumption of law unless it is rebutted. E.g. in

cheque every bill of exchange is presumed to be given for valuable considerations but
you plead facts of same if the other party rebuts the presumption. E.g. that by Law
PNDC Law 111, one is not entitled to property or that there is lack of jurisdiction or
lack of capacity because he is not a head of family etc.

However a point of law may be raised in the pleading as provided by Order 11 r 11(1)
ABAKA v. ANSAH [1965] GLR 688 per Archer J (as he then was) at page 693. In
ABAKA v. ANSAH [1965] GLR 688, 693 where the appellant purchased from the
Respondent a truck by a credit sale agreement by which upon a failure to pay the
balance, after a deposit, within a certain time, the Respondent could seize the vehicle.

When upon failure to pay the balance the Respondent seized the vehicle and appellant instituted
the action for breach of contract and wrongful seizure. Judgment was given for Respondent. On
appeal-

On the issue as to whether the Appellant needed to plead a particular statute.

HELD: per Acher J (as he then was) dismissing the appeal – that “The Respondent’s Counsel has
argued that this ground has taken him by surprise in the appellate Court as it was never raised in
the Court below and was never pleaded and he relied on Order 19 r 16 of LN 140A. In my view,
it is not necessary for the appellant to plead section 57 of the Ghana Sale of Goods Act, 1962
specifically. The appellant could have raised that point of law in his pleadings. At page 369 of the
Annual Practice 1964 (White Book), the last paragraph of the notes reads: “The pleader must
plead facts, and not law.... [cases cited]. The practices of the Courts are to consider and deal
with legal result of pleaded facts, although the particular result alleged is not stated in the
pleading”.

Then at page 370, the following note is stated; “There is a vital distinction between pleading law,
which is not permitted and raising a point of law in a pleading, which is permitted......pleading
law obscures or conceals the facts of the case, raising a point of law defines or isolates an issue
or question of law on the facts as pleaded”.

And where the party pleading relies on a rule of customary law, that rule shall be stated with
sufficient particularity to show the nature and effect of the rule on question and the geographical
area and ethnic group to which it relates – Order 11 r 11(2).

6. A statement that a thing has been done or that an event has occurred, which is a thing or
event the doing or occurrence of which constitutes a necessary condition precedent for
the case of a party is to be implied in the party’s pleading – Order 11 r 7(4).
(E.g. res ipsa loquitor?)
108
 Lipkin Gorman v. Karpnale Ltd [1989] 1 WLR 1340, 1352 – per May LJ that the requirements
of pleadings should be strictly observed.

In Farrell v. Secretary of State for Defence [1980] 1 All ER 166 per Lord Edmund- Davies at
p 173:
“It has become fashionable in these days to attach decreasing importance to pleading and it is
beyond doubt that there have been times when an insistence on the complete compliance with
their technicalities put justice at risk and indeed may on occasion have led to it being defeated.
But pleadings continue to be an essential part in civil actions. To shrug off a criticism as a mere
“pleading point” is therefore bad law and bad practice. For the primary purpose of pleadings
remains and it can still prove of vital importance. That purpose is to define the issues and
thereby inform the parties in advance of what case they have to meet and so enable them to
take steps to deal with it”.

On the principle that pleadings should be in Summary, Form – Order 11 r 7(1) – see also Re
Parton, Townsend v. Parton 45 LT 756 per Kay J that “though pleadings must now be concise
they must also be precise”. See Hill v. Hart Davies (1884) 26 ChD 470, Odgers on Principles of
pleadings and Practise (14th ed) pages 93-98.

Summary Form- It cannot be too often stated that the relevant matter must be stated briefly,
succinctly, and in strict chronological order. Pleadings should be as brief as the nature of the case
will admit. The Court has inherit jurisdiction to deal with prolix documents ( Hill v. Hart-Davies).
But no document is prolix which merely states facts that are material, however, numerous. The
same person or thing should be called by the same name throughout the pleading [White Book
1997] vol. 1 page 295.

7. If a party has filed a subsequent pleading, he may not raise any new allegation of fact not
consistent with his previous pleading unless it is by way of amendment.
- Order 11 r 10 (1) A party shall not in any pleading make any allegation of fact or raise
any new ground, inconsistent with a previous pleading made by the party. (Order 11 r
10(2) – 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 allegation or claims in
the alternative.

8. New facts or matters which have arisen at any time whether before or after the issue of
the writ may be pleaded subject to rules 7(1), 10 and 15(2) of Order 11 – Order 11 r 9

By Order 11 r 15(2) a Statement of Claim shall not contain any allegation or claim in
respect of a cause of action unless that cause of action is mentioned in the writ or arises
So the
Statem
from facts which are the same as, or include or form part of, facts giving rise to a cause
of action so mentioned; but subject to that, a Plaintiff may in the Plaintiff’s Statement of
Claims, alter, modify or extend any claim made by the Plaintiff in the indorsement of the
writ without amending the indorsement.

Order 11 r 15(1) a Statement of Claim shall state specifically the relief or remedy which
the Plaintiff claims; but costs need not be specifically claimed.

9. Admissions and denials – All material facts stated in pleadings which are not denied
expressly or by necessary implication will be taken as admitted. So a party who wishes to
deny any allegation of fact pleaded by the opponent must do so specifically. So a
Defendant who wishes to deny any allegation pleaded by the Plaintiff must do so
specifically. Similarly a Plaintiff who wants to deny any allegation contained in the
Defendant’s defence and or Counterclaim must do so specifically. A party must deal

109
 specifically with any fact of which he does not admit. A denial must not be evasive. It
must answer point of substance or he must either admit frankly or deny it bluntly.

See Order 11 r 13- read

Read also Order 11 r 14

Order 11 r 8
Order 11 r 8 (1) – means that whenever a party has a special ground of defence or raises an
affirmative case to destroy a claim or defence, as the case may be, he must specifically plead the
matter on which he relies for such purpose “The effect of the rule is, for reasons of practice and
justice and convenience, to require the party to tell his opponent what he is coming to the
Court to prove”( per Buckley LJ in Robinsons Settlement, Crant v. Hobbs [1912]1 Ch 717,
728; but the rule does not prevent the Court from giving effect in proper case to defences which
are not pleaded (ibid and see Price v. Richardson [1927] 1 KB 448, 453.

10. MECHANICAL RULES IN PLEADINGS

There are formal requirements of Pleadings as provided for by Order 11 r 6
(i) Order 11 r 6 (1) every pleading in an action shall bear on its face –
a) The year in which the writ in the action was issued and the number of the
action; (Suit No.)
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 pleading; and
e) The time and date when it was filed
2. Every pleading if necessary, shall be divided into paragraphs numbered consecutively;
each allegation being so far as convenient contained in a separate paragraph – Order
11 r 6(2)
3. Dates, sums and other numbers may be expressed in a pleading in figures or in words
or both.
4. Every pleading of a party shall be indorsed
a) where the party sues or defends in person with the name and address of
the person or
b) in any other case, with the name of a 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 – O. 11 r
6(4)
- Order 11 r 6 (5) – every pleading of a party shall be signed by a lawyer, if settled by the
lawyer, if not, by the party.
11. Particulars of pleading:
Pleadings of Particulars: Order 11 r 12 cases or situations or allegations in respect of
which particulars should be given. “The requirement to give particulars reflects the
overriding principle that the litigation between the parties, and particularly the trial should
be conducted fairly, openly, without surprise and as far as possible, so as to minimise
110
 costs”. See per Edmund-Davies LJ in Astrovlanis Compania Naveira S. A v. Linard
[1972]2 QB 611; 2 All ER 647

The function or purpose of particulars is accordingly,

(i) to inform the other side of the nature of the case that they have to meet as
distinguished from the mode in which the case is to be proved – Aga Khan v.
Times Publishing Co. [1924] IKB 675, 679. Thorp v. Holdsworth (1876) 3
ChD 637, 639 Jessel MR; Philips v. Philips (1878) 4 QBD 127
(ii) to prevent the other side from being taken by surprise at the trial – Thorp v.
Holdsworth (supra); Per Cotton L.J in Spedding v. Fitzpatrick (1888) 38 ChD
410, 413.
(iii) to enable the other side to know with what evidence they ought to be prepared
and to prepare for trial (Per Cotton L.J in Spedding v. Fitzpatrick; Jessel MR in
Thorp v. Holdsworth.
(iv) to limit the generality of the pleading (per Thesiger LJ Saunders v. Jones
(1877)7 ChD 435 or of the claim or evidence ( Milbank v. Milbank [1900] 1 ChD
376, 385
(v) to limit and define the issues to be tried and as to which discovery is required (Per
Vaughan Williams LJ in Milbank v. Milbank [1900] 1 GLR 376.
(vi) to tie the hands of the party so that he cannot without leave go into any matters
not included (Per Brett LJ in Philips v. Philips [1878] 4 QBD 127, 133). But if the
opponent omits to ask for particulars evidence may be given which supports any
material allegation in the pleadings ( Dean of Chester v. Smelting Corp [1902]
W.N. 5. Hewson v. Cleeve [1904]2 Ir R 536

WHERE PARTICULARS REQUIRED

e.g. in Whenever either party is imputing fraud, negligence, or misconduct to his opponent,
proba
the facts must be stated with special particulars and care.
te
action Thus, in an action of wrongful dismissal, a plea justifying the dismissal on the ground that
where
the servant was incompetent or dishonest must state the charge specifically and in detail;
it is
plead so must a plea justifying the publication of defamatory words on the ground that they are
ed
that
true; so must all charges of bad workmanship, want of skill, negligence, and contributory
the negligence. As Lord Penzance said in MARRINER v. BISHOP OF BATH & WELLS
testat
or [1893] P. 145, ‘The Court will require of him who makes a charge that he shall state that
was charge with much definiteness and particularity as may be done, both as regards time
of
and place”.
These have been provided for in Order 11 r 12 (1)

Subject to sub-rule (2) every pleading shall contain the necessary particulars of any claim,
defence or other matter pleaded including, but without prejudice to the generality of the
foregoing words
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue
influence on which the party pleading relies and,
111
 (b) where a party alleges any condition of mind of any person, whether of any disorder or
disability of mind or any malice, fraudulent intention or other condition of mind,
except knowledge, particulars of the facts on which the party relies.

So a party relying on fraud must not only plead the same but in his pleading, he must state his
case with utmost particularity or the pleading may be struck out under the rules or under the
inherent jurisdiction of the Court – See D. H. Lawrence v. Lord Norreys (1890) 15 App Cas
210, 210).
In a case involving concealed fraud, the Court of Appeal held inter alia that “In such an action
general averments of fraud are not sufficient: the Statement of Claim must contain precise and
full allegations of facts and circumstances leading to the reasonable inference that the fraud was
the cause of the deprivation, and excluding other possible causes. In default of such allegation
the Court may, by virtue of its inherent jurisdiction, dismiss the action as an abuse of the
procedure, where the claim is incapable of proof and without any solid basis”

In Wallington v. Mutual Society (1880) 5 App Cas 685, 687 it was held that “General
allegations, however strong may be words they are stated, are insufficient to amount to an
averment of fraud of which any Court ought to take notice”

Heward-Mills v. Heward-Mills [1992] 1 GLR 153, CA per Adjabeng JA

In that case the parties except the 3 rd Defendant/Appellant, were beneficiaries under the will and
codicil of their late father (the testator) and had since probate was granted after his death in
1964 been enjoying properties left them under the will. The 3 rd Defendant was the executor of
the will of a brother of the parties who was also a beneficiary. The Plaintiff/Respondent issued a
writ of summons in 1991 after filing an affidavit and a citation seeking revocation of probate of
the will and codicil and called for accounts of rents and profits accruing from properties of the
testator which came into the Defendants’ hands jointly and severally.

When the Defendants were served with the writ, they entered a conditional appearance and filed
a motion under Order 12 r 24 of LN 140 A for an order setting aside the writ of summons on
various grounds including that the action was statute barred since it was instituted more than 12
years after the grant of probate and that the writ did not disclose any cause of action against the
3rd Defendant. The High Court refused to set aside the writ and ordered the case to proceed on
its merits.
The Defendants appealed against the decision.
Held at p 164 per Adjabeng JA that the Plaintiff’s action was statute barred under Section 8 of
the Limitation Decree 1972 (NRCD 54) since he did not commence his action within 12 years of
the grant of probate and he did not plead concealed fraud as provided under section S. 22 of
NRCD 54 in order to exempt his action from the operation of Section 8. His averment that the
signatures of the testator and attesting witnesses “appearing on the will and codicil ...... were not
their act and deed and forensic laboratory tests have disclosed and confirmed that they were
signed by somebody else” could not be said to be fraud pleaded as required by law. Order 19 r 6
of LN 140A provided that when a party was relying on fraud to challenge a will, particulars of the
112
fraud must be pleaded, with dates and items if necessary. Having failed to specifically plead
fraud, the Plaintiff’s action brought after 26 years of the grant of probate should have been
struck out by the trial Court for being frivolous and vexatious per Adjabeng JA: “It has also been
settled by the Court’s that fraud must not only be pleaded by a party who relies on it but that
particulars thereof must also be given”.

3. Agreement – Pleading should state the date of the alleged agreement, the names of
all parties to it, whether it was made orally or in writing, in the former case by whom
it was made and in the latter case identifying the document, and in all cases setting
out the relevant terms relied upon. [Turquand v. Fearon (1879) 48 LJ QB 703.]
If the agreement be not under seal the consideration must be stated. The precise
words used in the making of the oral agreement need not be stated. Where a contract
is alleged to be implied from a series of letters or conversations or otherwise from a
number of circumstances, the contract should be alleged as a fact, and the letters,
conversations or circumstances set out generally, and further particulars requiring
details will not generally be ordered. For instances of implied contracts see Brogden
v. Metropolitan Railway (1877) 2 APP Cas 666; Hussey v. Horne-Payne (1879)
4 App Cas 311.

So in an agreement the particulars needed to be pleaded are the dates, the parties and whether
it was in writing or oral as well as the relevant terms or conditions of the agreement.

Thus in WANYINARA v. BASSAN [1972] 2 GLR 277 @ 280 per Edusei J; where the Plaintiff,
customary successor to T, applied for further and better particulars after the defendant had filed
his Statement of Defence, the Defendant in his pleadings having stated that he bought the house
from one K but failed to give details concerning how K came by the property. He also did not
state the date of purchase, nor did he give the purchase price of the house.
It was HELD that the purpose of pleadings is to set out in a summary form the material facts on
which a party relies for his claim or defence so that the opposite party is not taken by surprise at
the trial. The opposite party must come to Court knowing the case he has to meet. Therefore
having stated that the house was the self-acquired property of his vendor, the Defendant should
have proceeded to give facts constituting how it came to be the self acquired property of his
vendor.
At page 280 per Edusei J: “As regards paragraph 16 of the Statement of Defence .......it is
correct that the Defendant has stated that he bought the house from Ekra Kobina but the mode
of purchase has not been stated i.e. whether it was by a deed of conveyance or by customary
law. The date of the sale is not known and the purchase price has not been stated.

4. Defamation: - the requirement of Particulars – in Defamation cases are provided for

in Order 57 r 3-
Order 57 deals with Defamation Action – it is provided in Rule 3 that there is an obligation to give
particulars.

113
3(1) where in an action for libel or slander the Plaintiff alleges that the words or matters
complained of have been used in defamatory sense other than their ordinary meaning he shall
give particulars of the facts and matters on which he relies in support of the sense alleged.
3(2) where in the action for libel or slander the Defendant alleges that in so far as the words
complained of consists of statement of fact, they are true in substance and in fact, and in so far
as they consist of expressions of opinion, they are fair comment on matter of public interest, or
pleads to the like effect, the Defendant shall give particulars stating which of the words
complained of the Defendant alleges are statements of fact and of the facts and matters the
defendant relies on in support of the allegation that the words are true.

3(3)
3(4)
5. Fair Comment- It means that it is necessary in a plea of fair comment for the
Defendant to specifically state the facts he relies upon for the plea so that it could be
ascertained whether or not indeed they amounted to fair comments.
Unless defamatory words themselves clearly show what the facts in issue are, a plea of
justification should set out the facts relied upon in support thereof, so as to comply with the rule.
Where the Defendant pleaded that the alleged libels were report of public proceedings, and
“were true in substance and fact” it was held that the Plaintiff was entitled to know whether this
plea meant that the Defendant had truly reported what was said, or that what he reported was
true. Hennessy v. Wright (1888) L.J QB 594). The Defendant must always make it clear how
much of the alleged libel he justifies; if his plea leaves this doubt it will be struck out as
embarrassing (Fleming v Dollar (1889) 23 QB D 388).

As to the plea of fair comment where the facts truly stated warrant the imputations- Hunt v.
Star Newspaper Co. Ltd. [1908] 2 KB 309, CA.

In that case at page 320 Fletcher Moulton L.J said: “In the next place, in order to give room for
the plea of fair comment, the facts must be truly stated. If the facts upon which the comment
purports to be made do not exist, the foundation of the plea fails. This has been so frequently
laid down authoritatively that I do not need to dwell further upon it. Finally, comment must not
convey imputations of an evil sort so far as the facts truly stated warrant the imputation”.

In STANDARD ENGINEERING CO. LTD v. NEW TIMES CORPORATION [1976]2 GLR 409,
per Edusei J at p 411 where in an action for damages for libel against the Defendant for an
article published in the Defendant’s newspaper, the Defendant relied on the defence of fair
comment but gave no particulars of the matters relied upon in proof of the plea of fair comment
notwithstanding the Court giving an order for the facts relied upon to be pleaded and an
application was brought to strike out paragraph 4 of the defence, for disclosing no amount to the
claim”.
HELD granting the application that “In a defence of fair comment, the Defendant, must state the
facts on which the plea is based so that the Plaintiff will also know the case he has to meet and
prepare for it.
114
That it is absolutely necessary for the Defendant to state facts on which he relies for his plea of
fair comment and it is only by the express statement of the facts that anyone can say whether
the comment thereon is fair or not-

6. Innuendo- LEWIS v. DAILY TELEGRAPH LTD [1963] 2 All ER 151 also reported in
[1964] AC 234; 281 by that case it was held that “For a legal innuendo particulars are
mandatory and the innuendo cannot be proved without them” per Lord Delvin. So
particulars must be given, and will be ordered if necessary, of the facts and matters
relied upon in support of such innuendo alleged, which strictly constitutes a separate
cause of action.
In fact such particulars must consist of extrinsic facts and matters beyond the ordinary and
natural meaning of the words complained of, and unless they do so, they and the innuendo in
support of which they are given will be struck out.

7. Misrepresentation - Particulars of any misrepresentation must be contained in the

pleading. The Statement of Claim must show the nature and extent of each alleged
misrepresentation (Newport, etc; Co v. Paynter (1887) 34 ChD 88), by whom and
to whom it was made, and whether verbally or in writing – in the latter case
identifying the document (Seligmann v. Young (1884) W.N. 93)

WILKINSON v. EDUSEI [1963] 1 GLR 393 @ 396 per Ollennu JSC. In that case, A offered to
assign a lease of land to R for £G3,000 and A’s solicitors made available to R’s solicitors all
documents and title deeds concerning the land including judgments confirming A’s title and after
R’s solicitors had completed their investigation a deed of assignment was prepared and executed,
the deed contained only one covenant by A to the effect that he had not at any time done or
been privy to any act whereby he was prevented from assigning the land or whereby any part of
the land was encumbered.
A then placed R in possession. 3 weeks later, a third party entered the said land and started to
build on it. R then sued A for damages for failure of consideration and for damages for breach of
covenant for quiet enjoyment. In the High Court R’s claim was upheld and the Court held that A
had been guilty of deceit and that A had no title which he could assign. On appeal – counsel for
R conceded that the trial judge was wrong in holding that A had “no valid lease and that he had
no title to assign”

HELD inter alia, allowing the appeal that as R did not plead deceit or misrepresentation, no
evidence should have been admitted on those matters and such evidence as slipped in by
oversight should have been ignored completely by the trial judge in the consideration of her
decision (Wallingford v. Mutual Society (1880) 5 APP Cas 685, 697 HL and Philips v.
Philips (1878)4 QBD 127, 133 CA cited. At p 396 Ollennu JSC said “The Respondent did not
plead deceit or misrepresentation, therefore the evidence should not have been admitted by the
Court on those matters, and where by oversight such evidence slipped in, the Court should have
ignored it completely in the consideration of its decision: (See Wallingford v. Mutual Society,
115
 and Philip v. Philip). The learned judge therefore erred in admitting evidence of such matters,
and further erred in acting upon them when fraud and deceit were not in issue before her”.

8. Negligence – negligence must also be pleaded with particularity – i.e. the facts
constituting negligence must be stated precisely on which that duty of care which has
been breached should be indicated, the nature or precise breach complained.
Contributory negligence when relied upon by a party should also be pleaded with
particulars.
ASANTEKRAMO alias KUMAH v. ATTORNEY GENERAL [1975] 1 GLR 319 –
Genera where special damages were not pleaded so the Court did not give the same. See
l
damag facts and holding. See case in detail.
es are
not
necess
ary
since
9. Damages – Particulars should be given of Special Damages but not general
they
flow
damages. Where the Plaintiff claims that he has suffered damage i.e. injury of a kind
from
infring
which is not the necessary and immediate consequence of the wrongful act, it is his
ement
of duty to plead full particulars to show the nature and extent of damages i.e. the
one’s
legal
amount which he claims to be recoverable, irrespective of whether they are general or
e.g
trespa
special damages, so as fairly to inform the Defendant of the case he has to meet and
ss is
to assist him in computing a payment into Court, and the mere statement or prayer
that he claims “damages” will not support a claim for such damages ( Perestrello e
Companhia Limitada v. United Paint Co. Ltd; Same v. Same [1969] 1 WLR
570; [ 1969] 3 All ER 479, CA (loss of profit for breach of contract). The Plaintiff must
plead any special circumstances which he alleges will lead to his sustaining in the
future losses which would not in the ordinary way be expected to flow from the
wrongful act e.g. inability to set up a business on his own account. A fortiori if the
Plaintiff is able to base his claim for damages upon the precise calculation, he must
plead particulars of the facts which make such a calculation possible. Such particulars
should also be pleaded where the Plaintiff bases his claims, not on a precise but on an
estimated calculation of his damages.

Facts relied on to support claim for aggravated damages should be specifically pleaded
A claim for exemplary damages must also be specifically pleaded.
In ASARE v. OFOSUHENE [1980] GLR 366, A was a deputy bank manager. O was a warrant
officer in the Ghana Army and accompanied a GNTC salesman to A’s bank to sell textiles to the
employees. After A had found out from the salesman the price and quality of textiles he had to
sell to the bank and was leaving, the salesman asked him to hurry up because they had other
places to go. A told him they had come at the wrong time. O then cut in to tell A it was not for
him to tell them when they should have come. When A informed O that as the manager he
would know the best time for the sales, O became vituperative and started abusing A. When A
retorted, O assaulted him with a cane. He hit A at various parts of his body, held his tie and
squeezed the tie against his neck whilst still assaulting him with the cane. On O’s invitation
another soldier also rained blows on A’s head with his fists. All those took place within the
precincts of the bank and in the full view of A’s junior officers and a large crowd of passers-by.
116
 Eventually, A was rescued by a policeman on duty at the bank. Subsequently, O in the company
of four other soldiers poured on A in his office and beat him up, pulled him from his chair and
dragged him to the corridor where they bashed him about till A was rescued by a senior army
officer who was passing by. A therefore brought the action for ¢250,000 as exemplary damages
against O for the assault committed on him. The trial judge found that A’s physical injuries were
slight.
On the issue whether the facts justified the award of exemplary damages,
HELD – that the Court would award exemplary damages to vindicate the strength of the law and
not to justify such awards as a liberal measure of compensation to the Plaintiff. The award of
exemplary damages was limited to three categories of cases; viz
i) Whether there had been oppressive, arbitrary or unconstitutional action by
servants of government,
ii) Where the Defendant’s conduct had been calculated by him to make
profit for himself which might well exceed the compensation payable to
the Plaintiff and
iii) Where a statute expressly authorised such an award.
In the instant case, even though O was a soldier and he committed the
assault in the course of his duties and therefore the first category would
seem to apply, his conduct was still the act of an individual and his
conduct could therefore not be punished by exemplary damages (relied
on Rookes v. Barnard [1964] AC, 1129 or [1964] All ER 367, and
CASSEL & CO. LTD. v. BROWNE [1972] 1 All ER 801 confirming
Rookes case). The Plaintiff on the facts suffered indignity, disgrace and
humiliation at the hands of O, the Defendant, was rather entitled to
aggravated damages assessed at ¢5,000.
Ma
rfo CHAHIN & SONS v. EPOPE PRINTING PRESS [1963]1 GLR 163, SC –
v per Blay JSC – where special damages are claimed it is not enough for
Ad
the Plaintiffs to write down the particulars, they have to prove them.

In MARFO & OTHERS v. ADUSEI [1965] GLR 320, SC where an action was brought to
set aside a sale of farms on the ground of wrongful sale of same arising from mortgaged
farm, and general and special damages were claimed, judgment was given to the
Plaintiff on the ground that one of the farms was not covered by the mortgage.

On appeal to the Supreme Court, the appeal was allowed in part –

The Court held that with regard to the claim for special damages, evidence should have
been led to prove conclusively the bunches of plantain taken from the mortgaged farm
and those from the farm illegally sold to enable the learned trial judge to assess the
damage suffered by the Plaintiff in respect of the farm not covered by the mortgage.
There was no evidence to support the trial judge’s conclusion that the Plaintiff had lost a
thousand bunches of bananas as a result of the illegal sale of that farm. Therefore the

117
Plaintiff could only be awarded special damages in respect of the proceeds of cocoa from
the farm which was proved and accepted by the trial judge.

Order 11 r 12 (2) Debt – Where it is necessary to give particulars of debt, damages or

expenses and those particulars exceed 3 pages, they may be set out in a separate
document referred to in the pleading and the pleading shall state whether the
document has already been served and, if so, when, or if it is to be served with the
pleading.

So a schedule referred to in the pleading may be attached or served as a schedule to the

pleading.

Order 11 r 12 (6) and (7) Further Particulars – Where further particular may be required
the party requiring the same under the rule may first apply to the other party for such
particulars by letter. Order 11 r 12(6)

Order 11 r 12 (6) The applicant can then go for an order of the Court for the particulars
required only after applying by letter, unless the Court is of the opinion that there are
sufficient reasons for the application not having been made by letter.
Read also Order 11 r 12(7).

Order 11 r 8 – Matters to be specifically pleaded

Order 11 r 8 (1) A party shall in any pleading subsequent to a Statement of Claim plead
specifically any matter, for example, performance, released any limitation provision,
fraud or any fact showing illegality
a) Which a party alleges makes any claim or defence of the opposite
party not maintainable; or
b) Which if not specifically pleaded, might take the opposite party by
surprise; or
c) Which raises issues of fact not arising out of the preceding pleading
Order 11 r 8(2) without prejudice to subrule (1), 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 the defendant is in possession of the immovable property in
person or by tenant shall not be sufficient.

THE RULE IN ABOWABA v. ADESHINA (1946) 12 WACA 18, 19 – 20

FACTS: The Defendant to a claim for possession and declaration of title pleaded an
allotment to his predecessor in title by Chief Oloto. It was undisputed, however, that the
sale to the Defendant was made without the consent of Chief Oloto and was therefore
liable to forfeiture. The Defendant, without pleading waiver, adduced, without objection
from the Plaintiff, evidence of waiver.

HELD
(ii) that, as the waiver was a very material fact in the defence, it should
have been pleaded;
(iii) the penalty for failing to plead a material fact is the exclusion, upon
objection being taken of evidence to establish it,
(iv) the Plaintiff, having taken no objection at the trial, the evidence of
waiver was admissible, and the Plaintiff could not take the objection
on appeal.
118
Per curiam: the Defendant in a suit for possession of land must in Nigeria plead all
material facts upon which he relies to answer the Plaintiff’s claim.
The rule is stated thus on pages 19 and 20 of the report: “ The object of pleadings is
to compel the parties to define the issues upon which the case is to be
contested and to prevent one party from taking the other by surprise, by
leading evidence on material facts of which the other has no due warning. The
penalty for failing to plead a material fact is the exclusion, upon objection
being taken, of evidence to establish it. There are certain types of evidence, such
as hearsay, unstamped or unregistered documents which are inadmissible per se, they
cannot form the basis for a decision, and objection to them may be taken at any stage of
a trial or on appeal, but in our opinion the case is different where evidence, which could
have been ruled out as inadmissible because it is adduced to prove a material fact which
was not pleaded, has nevertheless been adduced without objection and is before the
judge.
In our opinion the evidence as to waiver of forfeiture in this case falls within the latter
class, and the trial judge was bound to take it into consideration, and the appellant not
having raised his objection at the trial is precluded from doing so on appeal”

This principle has been applied in the Ghanaian Court –

In the case of MARFO & OTHER v. ADUSEI [1963] 1 GLR 225, SC per Mills –Odoi JSC
pp 229 – 230 quoting Abowaba v. Adeshira “The penalty for failing to plead a material
fact is the exclusion, upon objection being taken etc......

The principle was also relied upon in YARTEY & OKO v. CONTRUCTION &
FURNITURE (WEST AFRICA) LTD [1962] 1 GLR 86 SC, per Adumoa – Bossman JSC
at page 90 – In that case the appellants had sued describing themselves as the Head
and elder of Apenkwa and sued for themselves and on behalf of the inhabitants of
Apenkwa, a Christian community of the Presbyterian Church of Ghana”. They did not
plead that they were empowered or appointed to sue on behalf of the whole community,
although evidence in support of this allegation was received in the High Court and not
objected to by counsel for the Respondents.

HELD: As Appellants did not plead that they were specifically appointed and empowered
to sue on behalf of the whole community, counsel for the Respondents should, at the
trial, have objected to evidence in proof of this allegation. Once the evidence was
admitted, the Court was bound to consider that evidence.

Pg 90 – the case of Abowaba v. Adeshina quoted. See other cases relied upon
Akosah v. Owusu [1963] 2 GLR 277 per Akufo-Addo JSC (as he then was) at page 280,
Bank of West Africa v. Ackun [1963] 1 GLR 176 per Sarkodee- Addo JSC at page 180,
Boakyem and others v. Ansah [1963] 2 GLR 223 per Akufo- Addo JSC (as he then
was) at 227, C.F.A.O v. Archibald [1964] GLR 106-107, per Mills- Odoi JSC at 504-505,
Akufo-Addo v. Catheline [1992] 1 GLR 377 per Amua-Sekyi JSc at 415, Fofie v.
Zanyo (1992) 2GLR 475 per Edward Wiredu JSC (as he then was) at 560.

STRIKING OUT PLEADINGS

ORDER 11 r 18
18. (1) 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
119
 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.

(2) No evidence whatsoever shall be admissible on an application under subrule (1)(a)

By this you can object to the pleadings even before the case comes to trial – or at any
stage of the proceedings.
It is the pleading that would be struck out not the writ under Order 11 r 18.
And the pleading can be struck out at any stage of the proceedings
Any pleadings or certain paragraphs or portions of the pleading only may be struck out.

The grounds for striking out the pleading:

(a) That it discloses no reasonable cause of action or defence
(b) It is scandalous, frivolous or vexatious
(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.

The Court may:

(1) Order the action to be stayed
(2) Or Dismissed
(3) Or judgment entered accordingly.

INHERENT JURISDICTION TO STRIKE OUT

Apart from the rules – or these grounds of striking out the action in the rules, the Court
also has inherent jurisdiction to prevent an abuse of the process and has inherent
jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or
an abuse of the (its) process (See Reichel v. Magrath (1889) 14 App Case 665, per
Halsbury LJ at 668. It has inherent jurisdiction to stay, dismiss or set aside service of it
or stay or dismiss the hearing, actions it holds to be frivolous or vexatious. This inherent
jurisdiction is in no way diminished or affected by this rule.

The Court however will not exercise this jurisdiction except with great circumspection.

It is likely to exercise it in a case, where the action or claim is spurious which the Plaintiff
clearly cannot prove and which is without any solid basis. Thus the House of Lord
dismissed an action which appeared to it to have been brought to try a hypothetical
case. (Glasgow Navigation Co. v. Iron Ore Co. [1910] AC 293. If the action is clearly
vexatious or oppressive the proper course of action is to dismiss it. For an instance of
this, see Webster v. Bakewell R. D. C. (No. 2) (1916) 115 LT 679 where the Plaintiff
had no substantial interest in the subject of the litigation, had suffered no damage which
could not easily be rectified, and the action was a useless piece of litigation.

Re-litigating a matter – If a person seeks to raise anew a question which has already
been decided between the same parties by a Court of competent jurisdiction, this fact
may be brought before the Court by affidavit, and the Statement of Claim, though good
on the face of it, may be struck out and the action dismissed; even though a plea of res
120
judicata might not strictly be an answer to the action, it is enough if substantially the
same point has been decided in a prior proceedings ( MacDougall v. Knight (1889) 25
QBD1. The court will strike out a fresh action which, it is clear is res judicata.

On the principle that the Court has an inherent power or jurisdiction to prevent the
prosecution of frivolous actions and the abuse of the legal machinery, and that that
point can be raised in limine; see the case of ANYIMAH III v. KODIA IV [1962] 2 GLR
1.

1. STRIKING out for Disclosing No reasonable cause of action or defence.

By Order 11 r 18(1) (a) the Court may at any stage of the proceedings order any
pleading or anything in the pleading to be struck out for disclosing no cause of action or
defence.

A reasonable cause of action means a cause of action with some chance of success when
only the allegations in the pleadings are considered not necessary that it may ultimately
succeed. (Drummond–Jackson v. British Medical Association [1970] 1 WLR 688;
[1970] 1 All ER 1094, CA.

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
may be weak, and not likely to succeed, is no ground for striking it out for disclosing no
cause of action.
(Moore v. Lawson (1915) 31 TLR 418, CA, Wenlock v. Moloney [1965] 2 All ER 871,
CA.
Nor is the fact that the statute of fraud 1677 (which was merely a provision as to
evidence) might be a bar to the claim ( Fraser v. Pape (1904) 91 LT 340, CA. In such a
case application may be made under the appropriate rule – for the trial of a preliminary
issue – see ADDIS v. CROCKER [1961] 1 QB 11, [1960] 2 All ER 629.

In an application brought under Order 11 r 18 (1) (a) it is provided in Order 11 r 18 (2)

that: “No evidence whatsoever shall be admissible on an application under subrule (1)
(a).”

This provision is in consonance with case law. For where evidence is required before the
application would be determined, the application would be refused.

Thus where the Defendant pleads a defence under the Limitation Act where it appeared
from the Statement of Claim that the cause of action arose outside the statutory period
of limitation, it was held that the Statement of Claim would not be struck out.

However if the Defendant pleads a defence under the Limitation Act, he can seek the
trial of a preliminary issue, or in a very clear case, he can seek to strike out the action or
claim upon the ground that it is frivolous, vexatious and an abuse of the process of the
Court and in that case if Statement of Claim discloses that the course of action arose
outside the period of limitation and there is nothing before the Court that the plaintiff
would escape from that defence, the claim will be struck out as being frivolous, vexatious
and an abuse of the process of the Court.

121
In the case of OKOFOH ESTATES LTD v. MODERN SIGNS LTD [996-97] SCGLR 224,
it was held that an error apparent on the face of the record had been committed by
taking into account, extrinsic evidence and that the Court fell beyond the bounds of its
jurisdiction in an application to dismiss action for disclosing no cause of action and thus
the ruling would be set aside.

See Ghana Muslims Representative Council & ORS v. Salifu & Ors [1975] 2 GLR
246, CA at p. 261 per Azu-Crabbe C.J held that it was a matter within the judicial
discretion of a judge whether or not to strike out pleadings or stay proceedings on the
ground that the pleadings disclosed no reasonable cause of action or defence or that the
action had no reasonable chance of success. The jurisdiction of the Court must,
however, be exercised with extreme caution. 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. In any case affidavit evidence was inadmissible on an application to
strike out pleadings on the ground that the action had no reasonable chance of success.
Wenlock v. Moloney [1965] 2 All ER 871, 873 CA applied.

i. Per Azu-Crabbe CJ
“It is clearly a matter in the judicial discretion of the judge, and a pleading will
only be struck out under the rule in a plain and obvious case, where it is apparent
that even if the facts are proved, the Plaintiff is not entitled to the relief he
seeks ........ The jurisdiction conferred by this rule, it has been said, is one, to be
exercised with extreme caution......”

ii. Reasonable Defence – same

Principle as reasonable cause of action

- The Court will strike out a defence which does not disclose a reasonable
defence. Though will not strike same out as being weak, it will strike out a
defence which is a sham or spurious.
- CRITCHELL v. L & S W RLY [1907]1KB 860

2. SCANDALOUS, FRIVOLOUS OR VEXATIOUS

i) Scandalous:
The Court has a general jurisdiction to expunge a scandalous matter in any
record or proceeding. E.g insulting, outrageous, irrelevant averment and
indecent language. Allegations of dishonesty and outrageous conduct etc
are not scandalous, if relevant to the issue.

“The mere fact that these paragraphs state a scandalous fact does not make them
scandalous” per Brett LJ in Millington v. Loring (1881) 6 QB.D 190, 196

But if degrading charges be made which are irrelevant, or if, though the charge be
relevant, unnecessary details are given, the pleading becomes scandalous (Blake v Albion
Assurance Society (1876) 45 LJ CP 663

In CHRISTIE v. CHRISTIE (1873) LR 8 Ch App. 499, 503 per Selbourne LC, it was
said: “The sole question is whether the matter alleged to be scandalous would be

122
admissible in evidence to show the truth of any allegation in the pleading which is
material with reference to the relief prayed”

In Brooking v. Maudslay (1886) 55 LT 343 the Plaintiff made allegation in his

Statement of Claim of dishonest conduct against defendant, but stated in his reply that
he sought no relief on that ground. The allegation thus became immaterial, and was
struck out as scandalous and embarrassing. So in an action on marine policies, a
paragraph which purported to state what took place at an official inquiry held by the
Wreck Commissioners was struck out as an attempt to discredit the Plaintiffs and to
prejudice the fair trial of the action (Smith v. British Insurance Co. [1883] WN 232

If any unnecessary matter in a pleading contains any imputation on the opponent, or

makes any charge of misconduct or bad faith against him or anyone else, it will be struck
out, for then it becomes scandalous (Lumb v. Beaumont (1884) 49 LT 772; Brooking
v. Maudslay

In Murray v. Epson Local Board [1897] 1 Ch 35 an imputation that a member of the

Board was opposing the Plaintiff’s claim, not on public grounds, but for his own private
interest, was struck out.

ii) Frivolous or vexatious: By these words are meant cases which are obviously
frivolous or vexatious or obviously unsustainable per Lord Lindley LJ in Att-Gen
of Lancester v. L & N W Ry [1892] 3 Ch 274, 277

In Young v. Holloway (1895) P. 87, 90 per Jeune P the Pleading must be “so clearly
frivolous that to put it forward would be an abuse of the process of the Court”. So for
instance it is vexatious and wrong to make solicitors or others, parties to an action
merely in order to obtain from them discovery or costs.

The expression “frivolous or vexatious” includes proceedings which are an abuse of the
process.

A pleading is frivolous or vexatious where a matter is factually weak, worthless and futile
and is obviously unsustainable.

IN GHANA BAR ASSOC. & ANOR v. WARD–BREW [1993-94] 2 GLR 509 where the
Plaintiff was disqualified from standing for elections in the GBA because he had gone
against the resolution of the Association not to appear or practice before the public
tribunals and was not in good standing.
The respondent sued in the High Court seeking declaration that his disqualification was
invalid. The applicants filed an application to seek to strike out the action on the ground
that the Respondent was even given the chance to rectify the defects in his nominations
papers and failed to respond and therefore his action was vexatious and an abuse of the
process.
HELD per Omari-Sasu J that “ In order to succeed in their application, the applicants had
to show that the Respondent’s action was vexatious in the sense that it was annoying,
harassing or distressing for its triviality and judicial discretion was to be used to
determine whether an action complained of was in fact vexatious . However, given the
provisions of the Public Tribunal Law, 1982 (PNDCL 24) under which a person who was a
subject of inquiry by the Public Tribunal was entitled to be represented by Counsel of his
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choice, as well as rule 5(1) of LI 613 which enjoined lawyers to accept briefs in the
Courts before which they practised and provided that any refusal to accept a brief should
be discretionary the Respondent’s action in which he claimed that he was being wrongly
punished for practising his profession in legal forums where the law allowed the presence
of counsel, could not be said to be vexatious. The application was accordingly dismissed
as unmeritorious.

3. “Tend to prejudice, embarrass or delay the fair trial of the action” – The
Court is “disposed to give a liberal interpretation to these words. At the same time
parties must not be too ready to find themselves embarrassed.”

“The rule that the Court is not to dictate to parties how they should frame their case, is
one that ought always to be preserved sacred. But that rule is, of course, subject to this
modification and limitation that the parties must not offend against the rules of pleading
which have been laid down by the law; and if a party introduces a pleading which is
unnecessary, and it tends to prejudice, embarrass, and delay the trial of the action, it
then becomes a pleading which is beyond his right” per Bowen LJ in KNOWLES v.
ROBERTS (1888) 38 Ch D 263, 270.

If the Defendant does not make it clear how much of the Statement of Claim he admits
and how much he denies, his pleading is embarrassing ( British and Colonial Land
Association v. Foster (1887) 4 TLR 574; Stokes v. Grant (1879) 4 CPD 25)

A plea of justification is embarrassing if it leaves the Plaintiff in doubt what the

Defendant has justified and what he has not ( Fleming v. Dollar (1889) 23 QBD 388;
Davis v. Billing (1892) 8 TLR 58)

But mere prolixity is not of itself embarrassing. Nor will a statement be struck out as
embarrassing merely because the other party declares that it is untrue (per Bramwell L.J
in Turquard v. Fearon (1879) 40 L.T 543, 544)

The mere fact that a Statement of Claim embraces several causes of action is not
embarrassing, if they are distinctly pleaded. A claim for alternative relief is not
embarrassing (Bagot v. Easton) (1877) 7 Ch D1, 8. Similarly inconsistent defences (See
Re Morgan (1904) 35 Ch D 492,

But if a claim against executors personally in their private capacity be improperly joined
with a claim against the estate of their testator, it will be struck out.

A pleading is not embarrassing because the law stated or reasons alleged may be bad.
Unless it is clear on the face of allegation that they are irrelevant, they will not be struck
out on that ground – London Corp v. Horner (1914) 111 LT 512

Where the Plaintiff in an action for damages for personal injuries joined an insurance
company as Defendants, a claim for a declaration to the effect that the insurance
company was liable to satisfy the judgment was struck out as embarrassing. Carpenter
v. Ebblewhite [1939] 1 KB 347

The mere fact that...

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In Brooking v. Maudslay – in which the Plaintiff made allegations of dishonest conduct
against the Defendant but further pleaded that he was seeking no relief on that ground,
the allegation was struck out as scandalous as well as embarrassing.

4. “Abuse of the process of the Court

This confers upon the Court in express terms powers which the Court has hitherto
exercised under its inherent jurisdiction where there appeared to be “an abuse of the
process of the Court”. This term connotes that the process of the Court must be used
bona fide and properly and must not be abused. The Court will prevent the improper use
of its machinery, and will, in a proper case, summarily prevent its machinery from being
used as a means of vexation and oppression in the process of litigation – Willis v. Earl
Beauchamp (1886) 11 P 59, 63 per Bowen LJ
See Anyimah III v. Kodia IV [1962]2 GLR 1.

The categories of conduct rendering a claim frivolous, vexatious or an abuse of process

are not closed but depend on all the relevant circumstances and for this purpose
considerations of public policy and the interests of justice may be very material.
A landlord’s claims for possession relying on notice to quit given by one of joint tenants
may be an abuse of the process if the Landlord knows of the existence of an injunction
restraining the tenant giving the notice from excluding his joint tenant from the
premises: Harrow London Borough Council v. Johnstone (1995) 93 L GR 435, CA.

Example of Abuse of the process

i) Re-litigation – The power to strike out a claim as being an abuse of the

process is not limited to a case where the claim is a sham or not honest or not
bona fide, and accordingly where sample cases had been selected ..............
It is an abuse of the Court process and contrary to justice and public policy for a party to
re-litigate – e.g issue of fraud after the self-same issue has been tried and decided upon;
or to litigate over an identical question which has already been decided against a party
even though the matter is not strictly res judicata (Stephenson v. Garret).

It is an abuse of the process of the Court to raise in subsequent proceedings matters

which could and should have been litigated in earlier proceedings ( Yat Tung
Investment Co. Ltd v. Dao Heng Bank Ltd [1975] A.C 581

ii) Collateral purpose: where the issue of the writ making a claim which is
groundless and unfounded in the sense that the Plaintiff does not know of any
facts to support it is an abuse of the process of Court and will be struck out.

iii) Spurious claim

Hopeless proceeding – even where proceedings were viable when instituted have
by reason of subsequent event become inescapably doomed to failure, may be
dismissed as being an abuse of the process of the Court ( Domer v. Gulf Oil (Gt
Britain) 1975) 119 S.J. 39 2

iv) Delay
Remington v. Scoles (1897) 2 Ch 1, where it was found out that the Defendant sought
to deny allegations that had been previously admitted on oath the defence was struck

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out as being dishonest and put forward merely to delay the Plaintiff from obtaining
judgment.

Reichel v. Magrath (1889) LR 14 AC 665, 668 “I think it will be a scandal to the

administration of justice if the same question having been disposed of by one case, the
litigants were to be permitted by changing the form of the proceedings to set up the
same case again. I believe there must be an inherent jurisdiction in every Court of justice
to prevent such an abuse of its procedure”

As noted – Where the ground by which the application is made to dismiss an action or to
strike out pleading for disclosing no reasonable cause of action or defence, evidence,
particularly including affidavit is inadmissible.

It will however, be admissible in application on any of the other grounds stated in Order
11 r 18 or where it is brought to invoke the inherent jurisdiction of the Court – In that
case affidavit evidence is normally resorted to. Okofoh Estates v. Modern Signs Ltd
[1996-97] SCGLR 224; Republic of Peru v. Peruvian Guanco (1887) 36 Ch D 489,
498 and Wenlock v. Moloney [1965] 1All E.R 87.

DELIVERY OF PLEADINGS

Order 11 Rule 1-5 (See Order 80 r 2), Order 11 r 1

The rule requires the Statement of Claim shall (must) be served on each Defendant at
the same time as the writ or notice of the writ is served on the Defendant – Order 11 r
1(1).

The Defendant can apply for an order dismissing the action if the Statement of Claim is
not filed. No time limit is given for that because the Statement of Claim must be filed
together with the writ as required in Order 2 r 1 and served together as required in
Order 11 r 1(1).

A Defendant who intends to defend the action and has filed appearance shall also file his
defence for service on the Plaintiff before the expiration of 14 days after the time limited
for appearance – Order 11 r 2(1)

In case of being given leave to defend action after an application for summary judgment
under Order 14, if the application is served on the Defendant before the Defence is filed,
then sub rule (1) shall not apply to the Defendant but the Defendant shall rather be
required to file the Defence within 14 days starting from the time that the order for leave
to defend the action was given or within such period as the order giving the leave will
specify.
Under Order 80 r 2, time will not run in serving, filing or amending a pleading in times of
the vacation in any year-
However notwithstanding Order 80 r 2 pleadings may be filed during the Long vacation-
Order 11 r 5

Order 11 r 3: Service of Reply

By Order 11 r 3(1) the Plaintiff on whom a defence is served is entitled to file a reply if
that is necessary for compliance with rule 8. But he is not obliged to reply. If he does not
reply, then rule 14(1) shall apply.
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 - In other words, he would be taken to have joined issues on the defence. But if he
exercises the option of filing a Reply, then he must do so within 7 days after the
service on him of the defence – Order 11 r 3 sub rules (1) & (2)

But there is finality in pleading - If a party wants to file a pleading subsequent to a

reply he can only do so with the leave of the Court – See Order 11 r 4 which provides
that “No pleading subsequent to a reply shall be filed except with leave of the Court”.

Order 11 r 1-5 (See also Order 80 r 2)

Is this a codification of the Rule in MacFoy v. UAC Ltd [1961] 3 ALL ER 1169 per Lord
Denning at pages 1172-1173?

CLOSE OF PLEADINGS
Note Order 11 rule 14 –

(1) If there is no reply to a defence, there shall be a joinder of issue on that defence.

(2) Subject to subrule (3),

(a) there shall be at the close of pleadings a joinder of issue on the pleading last
served; and

(b) a party may in the party's pleading expressly join issue on the preceding pleading.

(3) There shall be no joinder of issue on a statement of claim or counterclaim.

(4) A joinder of issue shall operate as a denial of every material allegation of fact made in
the pleading unless, in the case of an express joinder of issue, any such allegation is
excepted from the joinder and is stated to be admitted, in which case the express joinder
of issue operates as a denial of every other such allegation.

Order 11 rule 19- (1) The pleadings in an action are closed,

(a) at the expiration of seven 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 seven
days after service of the defence.

(2) 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.

And
Order 32 Rule 2(1) - In every action to which rule 1 applies, 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.

If the Defendant is served with the Statement of Claim he must file a defence, after he
has entered appearance i.e. if he wishes to defend. If he files the defence the Plaintiff

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may file a reply within 7 days after service of the same. He may however, file a defence
to counterclaim, normally embodied in the Reply if he wishes to reply.

Pleadings are deemed close 7 days after service of reply or if no reply after the time
limited for reply or after defence to the Counterclaim, if no reply.

Order 11 r 19 deals with close of pleadings.

Order 11 r 19 (1) Pleadings in an action are closed,

(a) at the expiration of seven days after service of the reply or if there is no reply
but only a defence to a Counterclaim after the service of the defence to
Counterclaim; or
(b) if neither a reply nor a defence to Counterclaim is served, at the expiration of
seven days after service of the defence.

Order 11 r 19 (2)
The pleadings in an action are closed at the time provided in sub rule (1)
notwithstanding that any request or order for particulars has been made but has not
been complied with at that time

The close of pleadings under the rule is of vital significance in two important respects
namely:
1) It operates to create an implied joinder of issues on the pleading last served –
Order 11 r 14 (2) (a).
2) It fixes the dates by reference to which the application for directions in this
action must be issued – Order 32 r 2(1)
So pleadings are closed:
1. Where the Defendant serves a defence only and the Plaintiff serves a Reply, then
seven days after the Reply.
2. Where there is no Reply filed, seven days after the service of the defence.
3. If the Defendant serves a defence and a Counterclaim and a reply and defence to
Counterclaim are served, seven days after the service of reply and defence to
Counterclaim.
4. If a reply or defence to Counterclaim is served, seven days after the said service.
5. Where neither reply nor defence to Counterclaim is served, seven days after the
service of the defence.
6. Wherever the time for the service of a reply or defence to Counterclaim or both
has been extended by order of the Court or by written consent of the parties, the
pleadings are not deemed to be closed until the expiry of such further time.
7. But the date on which pleadings are closed is in no way dependent upon the
service of particulars, still lies, upon any request for particulars (Order 11 r 19(2))

STATEMENT OF CLAIM
Order 2 r 6; Order 11 r 1
The Statement of Claim is the first pleading delivered in any action commenced by a writ.
It is the document in which the Plaintiff sets out the factual basis for his claims or relief
which he seeks against the Defendant.

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By Order 2 r 6 remember that every writ shall be filed together with a Statement of
Claim as provided for in Order 11 and that no writ shall be issued unless a Statement of
Claim is filed with it.

Remember also that by Order11 r 1 the writ of summons and the Statement of Claim
must be served together on the Defendant at the same time – Order 11 r 1(1); - and
that if the Statement of Claim is not so served the Defendant could apply to the Court for
an order to dismiss the action.

Under Order 11 r 15(1) – a Statement of Claim is required to “state specifically the relief
or remedy which the Plaintiff claims, but costs need not be specifically claimed. See
HARRIS v. ASHFORD [1950] 1 All ER 427

The practice is that the prayer for the relief or remedy comes at the end of the
statement of facts and to start “The Plaintiff claims ............” and then set out separately
and distinctly in numbered paragraphs the items of relief or remedy which are claimed.

It may be stated in practice as “wherefore the Plaintiff claims as per the Writ of
summons” without repeating the reliefs or remedies if they are set out in the
indorsement on the writ.

Costs need not be specifically pleaded, obviously because they are discretionary.

By Order 11 r 15(2) “ A Statement of Claim shall not contain any allegation or claim in
respect of a cause of action unless that cause of action is mentioned in the writ or arises
from facts which are the same as or include or form part of, facts giving rise to a cause
of action so mentioned; but subject to that, a Plaintiff may in the Plaintiff’s Statement of
Claim alter, modify or extend any claim by the Plaintiff in the indorsement of the writ
without amending the indorsement”

Mixed Claims
This provision makes it possible to make mixed claims. Thus a Plaintiff should always
claim in the one action every kind of relief to which he is entitled – be it damages, an
injunction, a declaration, a receiver or other remedies e.g. Interest. He will not be
allowed to bring a second action against the same Defendant (or his privies) on the same
cause of action in order to obtain relief which he might have obtained in the first action
(Serrao v. Noel (1885) 15 QBD 549; M. Isaacs & Sons v. Salbstein [1916] 2 KB 139,
CA
See also In Re Yendi Skin Affairs [1981] GLR 886, CA
But the allegations or claims in a Statement of Claim must be based on a cause of action
which is mentioned in the writ or which arises from facts that are the same as, include or
form part of facts that gave rise to the already mentioned cause of action.

Where damages claimed are unliquidated such as general damages, the Plaintiff needs
not insert a specific figure, but may claim damages generally (per Vaughan Williams J. in
London & Northern Bank Ltd v. George Newners Ltd. (1899) 16 TLR 433, 434.
If even the Plaintiff omits to ask for damages the Court may nevertheless award
damages if justice so requires (L.C. & D Ry Co. v. S.E. Ry Co [1892] 1 Ch 120 P 152.

As stated a Plaintiff need not ask for costs or general or other relief; the Court will
always grant him any general or other relief to which he is entitled, provided it be not
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 “inconsistent with that relief that is expressly asked for” ( Cargill v. Bower (1878) 10 Ch
D 502, 508.

Though allegations or claims in a Statement of Claim must be based on a cause of action

which is mentioned in the writ or which arises from facts that are the same as, include or
form part of facts that gave rise to the already mentioned cause of action, - subject to
that – a Plaintiff may in his Statement of Claim alter, modify, extend the claim he made
in the indorsement of the writ, without amending the indorsement on the writ. This is
based on the principle that the Statement of Claim may cure a defect in the writ of
summons as if it were being amended.

Where a cause of action is not mentioned in the writ (or omitted from the same) then
the Plaintiff cannot rely on the same.

Orde A Plaintiff cannot claim a relief which is inconsistent with the relief that he has
r 11 explicitly claimed (see Cargill v. Bower [1878] 10 Ch D502). See also Order 11 r
10(1) providing that a party shall not in any pleading make any allegation of fact
or raise any new grounds or claim inconsistent with a previous pleadings made by
the party; except by amending – Order 11 r 10(2)
See also Order 11 r 15(2)

A Plaintiff may however rely upon relief thereunder in the alternative ( Bargot v. Easton
(1877) 7 CH D 1) so there is nothing to prevent a party from setting two or more
inconsistent sets or material facts and claiming relief thereunder in the alternative. A
Plaintiff may therefore rely on several different rights “alternatively, although they may
be inconsistent” Philips v. Philips (1878) 4 QBD 127, 134; Re Morgan (1904) 35 Ch
D492. But whenever such alternative claims are pleaded, the facts belonging to each of
them respectively must not be mixed up, but should be stated separately so as to show
on the basis of which facts each relief is claimed ( Davy v. Garrett (1878) Ch D 473,
489; Watson v. Hawkins (1876) 24 WLR 884

Alternative relief may be claimed; and the Plaintiff may obtain judgment in default of
defence in the alternative which he selects, provided that his allegations entitle him to
such relief. If he claims specific performance, or alternatively rescission and forfeiture of
the deposit, he may elect to adopt the latter alternative ( Farrant v. Oliver [1922] WN
47 followed in Glover v. Broome [1926] WN46; even after judgment for specific
performance, if it is disobeyed by Defendant, he may on motion obtained an order for
rescission and forfeiture of deposit (Holford v. Trim [1979] 2 WLR 487; and see
Johnson v. Agnew [1979] 2 WLR 487)

See HARRIS v. ASHFORD [1950] 1 All ER 427

ORDER 57 r 3(3) – Defamation

In an action for libel or slander where the Plaintiff alleges that the Defendant maliciously
published the words or matters complained of, the Plaintiff need not give particulars of
the fact on which the Plaintiff relies in support of the allegation of malice in the
Statement of Claim.
But if the Defendant pleads that any of those words or matters are fair comments on a
matter of public interest or were published on a privileged occasion and the Plaintiff
intends to allege that the Defendant was actuated by express malice, the Plaintiff shall
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serve a reply giving particulars of the facts and matters from which the malice is to be
inferred.

Note that as a Defendant is a Plaintiff in respect of his Counterclaim the rule shall apply
to a Counterclaim for libel and slander as if the party making the Counterclaim were the
Plaintiff and the party against whom it is made, the Defendant – Order 57 r 3(4)

Money lender’s Action – Order 59 r 3

Order 59 – deals with Moneylender’s and Mortgage Action
Moneylender’s action is interpreted in Order 59 r 1(2) under the Order to have the
meaning assigned to it by the Moneylender’s Ordinance, 1940 (cap 176) in these terms
“moneylender’s action” means an action for the recovery of money lent by a
moneylender or for the enforcement of any agreement or security relating to money lent,
which is an action brought by the lender or an assignee;

By Order 59 r 3 Every Statement of Claim in a moneylender’s or a mortgage action shall

state,
a) the date on which the loan was made.
b) the amount actually lent to the borrower.
c) the rate per centum per annum of interest charged.
d) the date when the contract for the repayment was made.
e) the fact that a note or memorandum of the contract was made and was
signed by the borrower’.
f) the date when a copy of the note or memorandum of the contract was
made and was signed by the borrower.
g) the date when a copy of the note or memorandum was delivered or sent to
the borrower
h) the amount repaid.
i) the amount due but unpaid.
j) the date up which the unpaid sum become due; and
k) the amount of interest accrued due and unpaid on the sum.

Probate Action -Order 66

Order 66 r 40(3) – provides that where the Plaintiff disputes the interest of a Defendant
in a probate action the Plaintiff shall state in the Plaintiff’s Statement of Claim that the
Plaintiff denies the interest of the Defendant

Probate action is defined in the interpretation rule i.e. Order 66 r 32 thus: “For the
purpose of contentious probate matters as provided for under this Order, “probate
action” means an action for the grant of probate of the will or letters of administration of
the estate of a deceased person, or for the revocation of such grant or for a judgment or
order pronouncing for or against the validity of an alleged will, being an action which is
contentious or not common form probate business.

Recommended Structure of a Statement of Claim

1. Introductory Matters: that is introductory averments stating;
i. Who the parties are
ii. Where they live

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 iii. What business they carry out
2. Statement of the plaintiff’s right alleged to have been infringed or violated
3. Statement or averment as to the breach or wrong complained of
4. Statement or averment as to allegations of damage caused or incurred
5. Claim for remedy or relief

STATEMENT OF DEFENCE
A Defendant who has been served with a Statement of Claim has 14 days from the time
limited for appearance to file defence if he intends to defend or default judgment will be
entered against him. The defence is in the form of Statement of Defence.

He is obliged to file the Statement of Defence if he intends to defend the action. See
Order 11 r 2(1) which provides that “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 fourteen days after the time limited for
appearance”

This will be 22 days from the time he was served with the writ and Statement of Claim.
By the time limited for appearance means irrespective of the time appearance was
entered within the time limited for appearance -Order 11 r 2(2). But where notice of an
application for summary judgment under Order 14 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 fourteen days after the
order is made or within such other period as may be specified in the order.

This is obviously because the Court can extend the time for filing the defence as under
Order 14 before the Defendant files a defence after entering appearance and leave is
granted to him to file a defence – and is required to file the defence within 14 days after
the date of the order or such other period as the Court may give.

3. Where the Defendant applies to set aside the writ of summons under Order 9 r
8 and same fails then it would appear that the time of 14 days would not run
until the application is determined and the Court may extend the time.

4. Or where an application is brought to strike out the Statement of Claim as

under Order 11 r 18, then the time for the filing of the defence would not
run until the application is determined and the Court may extends the time.
See Order 80 r 4(1)(2) – dealing with extension or reduction of time

5. The parties may by consent in writing without any order of the Court
extend the period within which a person is required under the rules or
which by order or direction, is to serve, file or amend a pleading or other
document – Order 80 r 4(3)

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PRELIMINARY QUESTIONS

Ways of approaching the drafting of the defence –

Like the Statement of Claim, the Statement of Defence needs certain considerations –
certain preliminary questions or enquiries need to be ascertained. The Defendant ought
to:

1. Examine the Statement of Claim and ask himself:

i. Whether the Statement of Claim discloses a reasonable cause of action.
ii. Or whether it is scandalous, frivolous or vexatious.
iii. Or would it prejudice, embarrass and or delay the fair trial of the action
iv. Or is it an abuse of the process of Court.
v. Whether it is a proper case for the Statement of Claim or any pleading
therein contained to be struck out on application
vi. Is any claim improperly pleaded or have all been properly pleaded.
vii. Have particulars or enough or requisite particulars pleaded and given in
the appropriate case.
viii. Would further and better particulars be required or needed to be
applied for.
ix. You may also consider whether the Plaintiff has brought the proper or
appropriate Defendant or Defendants to Court – and if not what action
to take-whether to join other parties or to seek a party improperly
joined to be struck out as a party
x. Whether or not claims or causes of action have been joined which
cannot conveniently be tried together.
xi. Whether or not the appropriate venue had been chosen and whether it
is a case where the objection could be raised as to the jurisdiction on
account of improper venue for the pendency of the action to be
reported to the Chief Justice to transfer the same to the appropriate
forum or Region.
xii. If the Defendant intends to claim indemnity, whether he ought to apply
for third party notice or are third party proceedings required.
xiii. Whether it would be a matter that should be referred to arbitration.
xiv. Consideration as to whether the Defendant has the documents he may
require for the case or to be informed in drafting the defence.
xv. If documents have been mentioned in the Statement of Claim, which
necessitates the filing or discovery of documents.
xvi. Find out whether it is a proper case for which security for cost would be
required especially if the Plaintiff is resident out of the jurisdiction.

2. Drawing up the Statement of Defence

There are a number of ways to do so;
i) One way is to deny everything i.e. Every material fact or averment.
ii) Deny the facts and proceed to a plead facts to answer them or
iii) Admit the facts that you in fact intend admitting,
iv) Or admit some facts, but proceed to allege or plead facts of your own
which will neutralise or answer those of the Plaintiff’s or
v) May admit the facts but question their legal effects

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So you may plead facts to answer those admitted or denied. Then importantly, you may
plead every material facts of your own on which you want to rely to defend the action,
giving the appropriate particulars.

Observe the rules of pleading by stating the material facts distinctly and separately, each
subject being in one paragraph: deal specifically with every material fact alleged in the
Statement of Claim admitting or denying and answering further where necessary.

General Principles

1. Admissions & denials

A Defendant must properly admit material facts in respect of which there is no

controversy. E.g. There is no need to deny that a land is situate at Aburi when in
fact it is situate at Aburi since costs would be involved or incurred in proving or
disproving it, win or lose and unduly delays trial.

If the Defendant wants to make an admission he must make it clearly. There would be
no implied admission i.e. When a Defendant fails to admit a specific fact contained in the
Statement of Claim.
A complete denial is known as traverse. A traverse is a complete denial i.e. you deny
everything –

By Order 11 r 13(2) a traverse may be either made by a denial or by a statement of non-

admission and either expressly or by necessary implication. But remember also Order 11
r 13 (1) that subject to sub-rule (4) of this rule any allegation of fact made by a party in
the party’s pleading shall be deemed to be admitted by the opposite party unless it is
traversed by that party in pleading or a joinder of issue under rule 14 operates as a
denial of it.
Of course sub rule (4) says that any allegation that a party has suffered damage and any
allegation as to the extent of damage or the amount of damages shall be deemed to be
traversed unless specifically admitted.

But Order 11 r 13(3) says subject to sub rule (4) every allegation of fact made in a
Statement of Claim or Counterclaim which the party on whom it is serve does not intend
to admit shall be specifically traversed by the party’s defence to Counterclaim and a
general statement of non-admission shall not be a sufficient traverse of them.

A traverse should not be evasive. Eg a plea that the Defendant never offered a bribe of
£500 is evasive. The words “or any other sum” should be added ( Tildesley v. Harper
(1876) Ch D 403).

Armah v. Addoquaye [1972] 1GLR 109;

In our opinion, a point of fundamental importance in the rules of pleading is raised by

this appeal, namely: Were the plaintiff's material averments of root of title in paragraph
(2) of his statement of claim denied in the statement of defence, or must they be taken
to have been admitted? Order 19 of the Supreme [High] Court (Civil Procedure) Rules,
1954 (L.N. 140A), contains three important rules about traverses, and their common
object is to compel each party in his turn to admit fully, or deny fully, each allegation of
fact in the pleading of his opponent.  Order 19, r. 14 reads:
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"Every allegation of fact in any pleading, not being a petition or summons, if not denied
specifically or by necessary implication, or stated to be not admitted in the pleading of
the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or
person of unsound mind not so found by inquisition.”

Order 19, r. 18 reads:

"It shall not be sufficient for a defendant in his defence to deny generally the grounds
alleged by the statement of claim, or for a plaintiff in his reply to deny generally the
grounds alleged in a defence by way of counterclaim but each party must deal
specifically with each allegation of fact of which he does not admit the truth, except
damages."

Order 19, r. 20 reads:

"When a party in any pleading denies an allegation of fact in the previous pleading of the
opposite party, he must do not so evasively, but answer the point of substance.  Thus, if
it be alleged that he received a certain sum of money, it shall not be sufficient to deny
that he received that particular sum of money, but he must deny that he received that
sum or any part thereof, or else set out how much he received; and if an allegation is
made with divers circumstances, it shall not be sufficient to deny it along with those
circumstances.”

The Annual Practice 1962, p. 473 describes the main object of these rules as "to secure
that each party in turn should fully admit or clearly deny every material allegation made
against him, so that they may promptly arrive at an issue." In Thorp v. Holdsworth
(1876) 3 Ch.D. 637, where the defence merely alleged that "the terms of the
arrangement were never definitely agreed upon as alleged," it was held that such a
traverse was an evasive denial within Order 19, r. 19 (the equivalent rule in our rules is
[p.113] Order 19, r 20), and that it admitted an agreement was in fact made as alleged.
Jessel M.R. made the following pertinent observation on the object of pleadings at pp.
639-641:

“The whole object of pleadings is to bring the parties to an issue, and the meaning of the
rules of [this Order] was to prevent the issue being enlarged, which would prevent either
party from knowing when the cause came on for trial, what the real point to be
discussed and decided was ... [The defendant] is bound to deny that any agreement or
any terms of arrangement were ever come to, if that is what he means; if he does not
mean that, he should say that there were no terms of arrangement come to, except the
following terms, and then state what those terms were."

Odgers in his work on Pleading and Practice (18th ed.) at p. 131 makes a similar point:

"It is in the power of the party either to admit or to deny each allegation in his
opponent's plea, as he thinks fit.  If he decides to deny it, be must do so clearly and
explicitly. Any equivocal or ambiguous phrase will be construed into an admission of it. 
There is no third or intermediary stage.  If the judge does not find in the pleading a
specific denial or a definite refusal to admit, there is an end of the matter; the fact
stands admitted."

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Under Order 32, r. 6, it is permissible for any party at any stage to move for such
judgment on admissions of facts made, either on pleadings, or otherwise, as upon such
admissions he may be entitled to, without waiting for the determination of any other
question between the parties. And it was held in Brown v. Pearson (1882) 21 Ch.D. 716,
that a plaintiff may move for judgment on admissions in the defence, at any stage in the
action and notwithstanding that he has jointed issue on the defence, and given notice of
trial.  It is therefore clear that if the solicitor for the defendant omits either through
negligence or slovenly pleading to deny specifically any fact which he should on his
instructions have denied, he is liable to incur the penalty of having judgment or any
suitable order entered against his client on the facts deemed thereby to have been
admitted.

In the instant case, paragraph (2) of the statement of claim contained important
averments establishing the links in the plaintiff's root of title. It reads:

“(2) The plaintiff bought the said piece of land from Mesdames Emma Mills and Helena
Mills joint head of the Ablorh Mills [family] the original owners by an indenture dated 26
March 1955 and registered in the Deeds Registry with the No. 2338/1955."

There was surprisingly, no traverse of either the whole or any part of these allegations in
the statement of defence.  The former solicitor for the defendant did not even bother to
include a general traverse in the statement of defence.  In the circumstances, since the
defendant is neither an infant [p.114] nor a lunatic nor a person of unsound mind, under
Order 19, r. 14, the various facts contained in the said paragraph (2) of the claim must
be deemed to be admitted, and no further proof of them was required. Consequently,
the fact that Ablorh Mills was the original owner of the land; that Emma and Helena Mills
were the joint successors of Ablorh Mills (deceased) and successors-in-title; that the
plaintiff bought the land from them; that the sale of the land to the plaintiff was
evidenced by a deed of conveyance which had been duly registered — all these facts,
were not denied specifically or by necessary implication. The plaintiff’s onus was
therefore considerably lightened.  Even though the plaintiff’s solicitor surprisingly omitted
to draw the trial  court’s attention to these points, yet the learned circuit judge who
rightly referred to the onus incumbent on a plaintiff seeking declaration of title ought to
have borne the state of the pleadings and Order 19, rr 14, 18 and 20 in mind when
considering whether or not the plaintiff had discharged the onus probandi. For the
reasons stated, we uphold the ground of appeal canvassed before us by Mr. Anancy that
the trial judge misdirected himself on the issues arising from the pleadings.

Thorpe v. Holdsworth (1836) 3 Ch D 637; Brown v. Pearson (1882) 21 Ch D 716.

If a Defendant intends to rely on any matter such as fraud, performance release,
limitation or any fact showing illegality which the party alleges makes any claim of the
Plaintiff not maintainable or which, if not specifically pleased might take the opposite
party by surprise or which raises issues of fact not arising out of the preceding pleading,
he must plead same specifically – Order 11 r 8

2. Confession and Avoidance

Where you admit facts or some of it but proceed to allege facts of your own which will
neutralise those of the Plaintiff – and where you admit the facts but question their legal
effect it is known as confession and avoidance.
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Remember the rule is that – whenever a party has a special ground of defence or raises
an affirmative case to destroy a claim or defence, as the case may be, he must
specifically plead the matter on which he relies for such purpose. “The effect of the rule
is, for reasons of practice, justice and convenience, to require the party to tell his
opponent what he is coming to the Court to prove” per Buckley LJ in Re Robinson’s
Settlement, Gant v. Hobbs [1912] 1 Ch 717, 728

 But the rules does not prevent the Court from giving effect in proper cases to
defences which are not pleaded ( Re Robinson’s Settlement; See also Price
v. Richardson [1927] 1 KB 448, 453

Confession and Avoidance – is provided for in Order 11 r

Where a Defendant admits facts or some of it but proceeds to allege facts of his own
which will neutralised or defeat those of the Plaintiff or where he admits facts but
questions their legal effect, it is known as Confession and Avoidance.

So a Defendant may confess and avoid. For, it is often not enough for a party to deny an
allegation in his opponent’s pleading; he must go further and dispute its validity in law,
or set up some affirmative case of his own in answer to it. It will not serve his turn
merely to traverse the allegation; he must confess and avoid it.

Thus, if the Plaintiff sets up a contract which was in fact made, it will be idle for the
Defendant merely to traverse (i.e. to deny the making of the contract, he should confess
(i.e. admit) that he made the contract, but avoid the effect of that confession by
pleading the Statute of Frauds (Conveyancing Act) or Limitation Act or setting up that the
contract has been duly performed or rescinded.

A Defendant, however, is not bound to admit an allegation which he seeks thus to avoid,
or which he alleges to be bad in law. He may at the same time deny its truth, so long as
he makes it quite clear how such he is denying. He may indeed take all three courses at
once; the same allegation may be traversed in point of fact and objected to as bad in law
and at the same time a collateral matter may be pleaded to destroy its effect.
Any number of defences may now be pleaded together in the same defence, although
they are obviously inconsistent. A Defendant may raise by his defence, without leave, as
many distinct and separate and therefore inconsistent defences as he may think proper –
subject only to this, that embarrassing defences may be struck out as under Order 11 r
18.

But all these defences must be clearly and distinctly pleaded, and the facts upon which
each is grounded should be stated separately.

 As a rule, each answer to the action should be pleaded in a separate

paragraph. The Defendant must make it quite clear what line of defence he is
adopting. Special defences of this kind must not be mixed up with traverses or
insinuated into pleas which deny the facts alleged by the Plaintiff ( Belt v.
Lawes (1884) 51 LJ QB 359.

The purpose of a traverse is to contradict, not to excuse or justify the act complained of;
its object is to compel the Plaintiff to prove the truth of the allegation traversed, not to
dispute its sufficiency in point of law. All matters justifying or excusing the act
complained of must be specifically and separately pleaded ( Attorney-General v. Lord
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Mayor of Sheffield (1912) 106 LT 367); so must all matters which go to show that the
contract sued on is illegal or invalid, or which if not expressly stated, might take the
opposite partly by surprise, or would raise issues of fact not arising out of the preceding
pleading and no evidence of such matters can, as a rule, be given at the trial if they be
not expressly pleaded. The last three sentences were quoted with approval by Havers J
in Davie v. New Merton Board Mills Ltd [1956] 1 WLR 233; [1956] 1 All ER 379.

In Re Robinson [1912] 1 Ch 717, 728 Buckley LJ said: “It (this rule) is not confined to a
case where a statute is the thing to be pleaded; it applies to all cases of grounds of
defence or reply which, if not raised, would be likely to take the opposite party by
surprise, or raise issues of fact not arising out of the pleadings. Where the Defendant
ought to plead things of that sort the rule does not say that if he does not the Court shall
adjudicate upon the matter as if a ground valid in law did not exist which does exist”.

On confession and avoidance see the case of CFAO v. Archibold [1964] GLR 718, SC
Per Adumua-Bossman JSC at pages 721-722

3. Set-off – Order 11 r 17
A set-off is a monetary cross-claim which is also a defence to the claim made in the
action. The set-off is pleaded as a defence to the Plaintiff’s claim if the Defendant set-off
instead of maintaining a separate action.

It is provided for in Order 11 r 17 – as defence of set-off thus: - “Where a claim by a

Defendant to a sum of money (whether of an ascertained amount or not) is relied upon
as 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 added as a
Counterclaim”.

It means that if the set-off defence succeeds it may reduce or avoid completely, the
Plaintiff’s claim but the Defendant cannot recover anything until he Counterclaims. If the
Plaintiff obtains judgment or discontinues the action, the set-off comes to an end –

A set off is a claim of the Defendant to a sum of money, ascertainable or not, which the
Defendant relies on as a defence to the whole or part of Plaintiff’s claim.

A set off can be made against a claim in debt or for unliquidated amounts or for
damages. The Defendant may state claim in contract and one in tort and vice versa. For
the purposes of set-off, debt and damages have apparently been put on the same
footing provided that in case of damages, the latter arise out of the same transaction as
cross-claim. Also set off can be made against the price of services, damages for bad
work – Basten v. Butter (1806) 7 East 479.

But a set-off in contract must arise in the same transaction as claim. A Defendant
claiming a set-off must state in full details of debt and other matters set-off. All facts
must be given to put the Plaintiff on his guard – should not take him by surprise.

Set-off must not be greater than the Plaintiff’s claim. The Court cannot give judgment for
set-off for amount bigger than the claim.

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It is not the form of the pleading, but the true nature of what is pleaded, that determines
whether what is pleaded is or is not a set-off. “The question as to what is a set-off is to
be determined as a matter of law and is not in any way governed by the language used
by the parties in their pleadings” per Morris L.J – HANAK v. GREEN [1958] 2 QB 9, 26

- Set-off applies where the parties are the same, in the same right- So a set-off was
only available in respect of debts or liquidated demands due between the same
parties in the same right. So, against a claim by the Plaintiff as executor or
trustee, the Defendant cannot set-off a debt due to him from the Plaintiff
personally (Rees v. Watts (1855) 11 Ex 410 – and conversely to a claim against
the Defendant as Executor, the latter cannot set-off a debt due to him personally
(Re Dickinson [1888] WN 94; Phillip v. Howell [1901] 2 Ch 773 – nor to a
claim against an executor personally a debt due to him as executors ( Nelson v.
Roberts (1893) 63 L.T 353) Nor, against a claim by the Plaintiff, can a debt due
from his agent personally be set-off unless Plaintiff authorised or allowed the
agent to contract as principal ( George v. Clagett (1797) 7 T R 359, Smith’s LC
vol 11; Ex parte Dixon (1876) 4 Ch D 133 Nor against a claim to a several debt
can a joint debt be set-off (Re Pennington & Owen Ltd [1925] Ch 825, CA;
Dole Dried Fruit & Nut Co v. Trustin Kerwood Ltd [1990] 2 Lloyd’s Rep 309,
CA. See Kwagyare v. Agyei [1992] 1 GLR 189, CA

4. Implied Admissions
Order 11 r 13(1), Order 11 r 13(4), Order 5 r 7
By Order 11 r 14 joinder of issues
See Order 11 r 13 (4), where allegation that a party has suffered damage and any
allegation as to the extent of damages or the amount of damages shall be deemed to be
traversed, unless specifically admitted.

Order 5 rule 7 – Admission by person with disability not to be implied from pleading –
So provided in Order 5 r 7 that, notwithstanding any other provision in these Rules, a
person with disability shall not be taken as admitting the truth of any allegation made in
the pleading of the opposite party by reason only that the person with disability has not
traversed it in his pleading.
See Armah v. Addoquaye [1972] 1GLR 109, CA where a paragraph in the statement of
claim had not been traversed either specifically or generally, it was held by the Court of
Appeal that since the Defendant was neither an infant or a lunatic nor a person of
unsound mind, the facts contained in that paragraph must be deemed to be admitted
and no further proof of them was required.
Remember however the general principle of pleading that there is an implied admission
of every allegation of fact made in a pleading which is not traversed. Such an admission
has the same value and effect as if it were an express admission. (See Byrd v. Nunn
(1877) 5 Ch D 781; 7 Ch D 284, CA)

But a specific denial is held to qualify general denial- Symonds v. Jenkins (1876) 34 LT
277, title denied);

Exceptions (i) Joinder of issue Order 11 r 14

(ii) Omission to plead damages Order 11 r 13(4)
(iii) omission to plead particulars
(iv) Persons under disability Order 5 r 7

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 5. Denial or Non-Admission
A traverse may be made either by a denial or non-admission and either expressly or by
necessary implication. As stated denial is a traverse but the Defendant reserves the right
to call evidence of fact contrary to the Plaintiff’s contention, whilst a non-admission is a
traverse that contains no such reservation. See Akyer v. Ghana Industrial
Development Corporation and Others [1963] 2 GLR 291, per Adumua-Bossman JSC.

In Adkins v. Metropolitan Tramways[1893] 63 LJ QB 361 a case in which the Plaintiff

set out in his statement of claim several allegations of fact on which to support a claim
for personal injuries and damages against the defendant owing to their alleged
negligence. The defendant simply stated in the statement of defence that they ‘deny
each and all the several statements and allegations set out in paragraph 2 of the
statement of claim’. The Plaintiff applied to strike out such a statement of defence and
appealed from the refusal to allow the application. On appeal it was held that the form of
defence was intended and did in effect specifically deny each and every material
allegation of the statement of claim. Hawkins J in the course of the judgment for the
court made this pertinent and significant observation: “I should have thought that when
a man says ‘I deny each and every allegation that constitutes a cause of action in your
statement of claim’ that is equivalent to a denial specifically given and drawn out at
length to each of such allegations. This is a way off the old plea of the general issue,
which no one alleges to be now sustainable”.

Adkins v. Metropolitan Tramways was expressly adopted and confirmed in the

subsequent case of John Lancaster Radiators Limited v. General Motor Radiators
Ltd [1946]2 All ER685;176 LT. 178; S.J 63, CA. That was “an action in which the Plaintiff
alleged that the defendant had wrongly and maliciously conspired to defraud and injure
the plaintiffs in their business, the statement of claim set out (inter alia) several acts
alleged to have been done by the defendant in furtherance of the conspiracy. The
defence contained a clear and comprehensive denial of the alleged conspiracy, a general
denial of all the acts alleged to have been done in furtherance thereof and denial of
every item of damage. It further stated: ‘the defendants ....... deny each and every
allegation in the statement of claim contained as fully as if the same were herein set
forth and denied seriatim’.
The defence did not, however, set out and deal specifically with, each allegation. The
plaintiffs appealed to have the defence stuck out’. The Court of Appeal (Morton, Tucker L
J J.) held that ‘it was obligatory on a defendant to deny one by one each allegation in the
statement of claim, and as the defendant had denied every allegation of fact in the
statement of claim, it could not be said that the defence tended to prejudice... the fair
trial of the action’ to warrant it being struck out. In the course of the principal judgment
by Morton LJ, he stated as follows: ‘the defendant have chosen to plead in a manner
which alleges, in effect, that the statement of claim and every allegation of fact in it is
incorrect from the beginning to the end... the plaintiffs are left in no doubt about the
attitude of the defendant in regard to every single allegation in the statement of claim.
They deny every one of them’’.

6. Specific & Not General Denial

Every allegation of fact must be specifically denied or specifically not admitted. This
applies to only allegation of fact not matters of law which need not be traversed.

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As stated earlier a Defendant should not traverse any matter which the Plaintiff could
have raised but did not raise against him. He ought not to anticipate what the Plaintiff
may allege against him in the Plaintiff’s Reply.

A general denial or a general statement of non-admission of allegation of fact is not

sufficient traverse: “take matter by matter and traverse each of them separately” per
Thesiger LJ in Byrd v. Nunn (1877) 7 Ch D, 284, 287

In practice, we begin or end, as the case may be, a Statement of Defence thus: “Save as
herein below (before) expressly admitted the Defendant denies every allegation of fact
contained in the Statement of Claim as if the same were set out in extenso and denied
seriatim”. See Akyer v. Ghana Industrial Development Corp. [1963] 2 GLR 291.

Express Admission Order 23 r 6(2)

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.

So parties are required to admit facts in respect of which there is no controversy and the
Defendant should not deny clear and plain, acknowledged and admitted facts. Where an
admission of fact is properly made, there will be no issues between the parties in respect
of the case/matter and therefore no evidence will be required in respect of those facts:

But under Order 23 r 6 if the Defendant makes a sufficient admission of fact in his
defence, the Plaintiff may apply for judgment on admission in respect of the admitted
facts.

Specific and Not General.

1) Akyer v. G. I.D
2) Thorp v. Holdworth per Jessel M.R
3) Order 11 r 8 – matters to be specifically pleaded

Plea in possession Order 11 r 8(2)

A Defendant in an action for recovery of possession of land must plead specifically every
ground of defence upon which he relies and a plea that he is in possession of the land by
himself or his tenant is not enough.

By Order 11 r 8 (2) – 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

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that the Defendant is in possession of the immovable property in person or by a tenant
shall not be sufficient. But see Section 11 (4) and 12 of Evidence Act, 1975 (NRCD 323)

Odonkor v. Amartei [1992-93] GBR 59

Tender Before Action – Order 11 r 16

Read – Defence of Tender –

“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.

The effect of this rule is as follows:

If the Defendant desires to rely on the defence of tender before action he must:
a) Plead the fact of tender before action, state the fact of payment in and the
amount in the defence;
b) Pay the money into Court, with his defence; and
c) Give notice to the Plaintiff of the payment into Court

A defence of tender is a defence at common law and only applies to a liquidated claim. It
is a good defence to an action to recover a debt (The Mona [1894] P 265). It cannot be
pleaded as a defence to a claim for unliquidated damages (DAVYS v. RICHARDSON
(1888) 2 QBD 202, 205, CA damages for wrongful dismissal), even though that claim
should be quantified. But it is not invalidated because the amount paid into Court under
this rule far exceeds the amount tendered, nor because the amount tendered and
subsequently paid into Court does not include interest, unless it be in respect of a debt
bearing contractual or statutory interest (John Laing Construction Ltd. v. Dastur
(1987) 1 WLR 686, [1987] 3 All ER 247 CA, supplied in Smith v. Springer [1987] 1
WLR 1720, [1987] 3 All ER 252, CA.

If the defence of tender is served before the application for summary judgment under
Order 14, it would not be proper to issue such a summons thereafter (Raymond v.
Manders (unreported), CA January 13, 1913). But the defence of tender may be made
by the Defendant in his affidavit, stating therein that he is willing to pay the amount
tendered into Court. If leave to defend is given, he pays the money into Court with his
defence of tender under this rule.

Accord & Satisfaction

Accord and satisfaction is a situation where parties by subsequent agreement have
satisfied a former agreement (accord) and the latter agreement has been performed
(satisfaction) or (satisfied). This becomes a good defence and ought to be specifically
pleaded.

This illustrated in the case of Asunke v. Jaja and Anor [1968] GLR 993, 999, it was
proved in paragraph 81A (3) of the Income Tax Decree, 1966 (NLCD 78) as inserted by
the Income Tax (Amendment) Decree 1968, (NLCD 265) paragraph 4(1)(a) that “ no
insurance company shall pay money in respect of any claim make under the policy issued
by that company unless the person to whom the money is payable under the policy

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produces to the company a tax clearance certificate issued in respect of himself and valid
for the year of assessment in which the money is to be paid”

The Plaintiff had obtained judgment against the Defendants and awarded damages and
the Defendants were granted stay of execution in respect of part of the damages
awarded to the Plaintiff. The State Insurance Corporation, the insurers of the 1st
Defendant’s vehicle then entered into negotiation for settlement and agreed to pay the
judgment debt on behalf of the Defendants to the Plaintiff. The Plaintiff signed the
requisite discharge vouchers indicating the payment of the agreed sum, but the S.I.C
subsequently declined to make any payment to her until she had produced a tax
clearance certificate. The Plaintiff therefore proceeded to attach the 1 st Defendant’s
vehicle in execution whereupon the 1st Defendant applied for stay of execution.

HELD:
1. The words of paragraph 81A (3) of the Income Tax Decree, 1966 as inserted by
paragraph 4(1) (a) of NLCD 265 were demonstrably clear and did not admit of
ambiguity. The provisions of the said paragraph were applicable where payments
were to be made under a policy of insurance. The rights of a third party vis-a-vis
the insurance company were governed by the Motor Vehicle (Third Party
Insurance) Act, 1958 (No 42 of 1958), and not a policy of Insurance. Since the
Plaintiff, as a third party, was not claiming under any policy but under a statute
she was not bound under any legal obligation, statutory or otherwise, to produce
a tax clearance certificate before the payment could be made to her. Dicta of
Bayley J in R v. Ramgate (Inhabitants) [p.994] (18270 6 B. & C.712, at p 715
and of Lord Warrington of Clyffe in Barrell v. Fordee [1932] AC 676, 682 HL
adopted.

2. The discharge certificate did not represent the true position of what took place
between the parties. The document was prepared by the insurers of the 1 st
Defendant and was of totally different description or character from what the
Plaintiff intended it to be. It was false in every particular, and such a document
being void against the Plaintiff could not be relied upon by the 1st Defendant.
Gallie v. Lee [1968] 2 All ER 322 cited.

Order 12
COUNTERCLAIM
A Counterclaim is in the nature of cross-action with existence on its own and
independent of the Plaintiff’s action.

If a Defendant has any cause of action against the Plaintiff he does not need to bring a
separate action but may, instead of bringing a separate action against the Plaintiff, make
a Counterclaim against the Plaintiff in respect of the matter.

This is provided for in Order 12 r 1(1) “A Defendant who alleges that he has any claim or
is entitled to any relief or remedy against a Plaintiff in an action in respect of any
matter, whenever and however arising, may, instead of bringing a separate action,
make a Counterclaim in respect of that matter”.

1. A Counterclaim may be for either liquidated or unliquidated damages.

2. It may exceed the amount of the Plaintiff’s claim, or be less than it.
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 Features of Counterclaim/Extent of Counterclaim
A Counterclaim must also have a relief making a claim against the Plaintiff- i.e. must
have a claim against the Plaintiff otherwise it is not a Counterclaim. Furness v. Booth
(1876) 4 ChD, 587, 589 per Jessel M.R. “A pleading which asks no cross-relief
against a Plaintiff either alone or with some other person is not a Counterclaim.”

It needs not be a claim against the Plaintiff in the same capacity as that in which he sued
(Re Richardson [1933] WN 90.)

A Counterclaim does not need to relate to or be in any way connected with the Plaintiff’s
action or arise out of the same transaction. It does not have to be “an action of the same
nature as the original action” as stated per Fry J in Beddall v. Maitland (1881) 17 ChD
174, 181. It does not have to be analogous to it. However, it must be of such a nature
that it can be conveniently tried together by the Court and at the same time as the
Plaintiff’s action or claim.
See Order 12 r 7

A Counterclaim may be for either liquidated or unliquidated damages; it may exceed in

amount the Plaintiff’s claim, or be less than it. It may have arisen since the issue of the
writ (Beddall v. Maitland) (1881) 17 ChD 174, 187.

In short, if the Defendant has a valid cause of action of any description against the
Plaintiff, there is no necessity for him to bring a cross-action/separate action, unless his
cause of action is of such a nature that it cannot be conveniently tried by the same
tribunal or at the same time as the Plaintiff’s action.

A set-off remains what it was – a defence to the Plaintiff’s claim or to a portion of it.
Every set-off can be pleaded as a Counterclaim, if the Defendant so desires; but every
Counterclaim cannot be pleaded as a set off.

A Counterclaim is practically a cross-action; and the Court will therefore give judgment in
the Plaintiff’s action both on the claim and Counterclaim.

As stated earlier the Defendant’s Counterclaim need not be “an action of the same
nature as the original action” (per Fry J in Beddall v. Maitland (1881) 17 ChD 174,
181) or even analogous thereto.

A Counterclaim may be in tort, contract or equity, liquidated or unliquidated claim, more

or less than Plaintiff claimed. It might arise before or after issue of the writ. If it arose
after issue of the writ, it must be so pleaded.

A “claim founded on tort may be opposed to one founded on contract or vice versa” per
Cockburn C J in Stoke v. Taylor (1880) 5 QBD 569, 576.

But if a third person is added to as a Co-Defendant to the Counterclaim against the

Plaintiff the relief must relate to or be connected with the subject matter of the original
action.

A Counterclaim will however be allowed jointly or in separate Counterclaim against each

of two Plaintiffs in a joint action brought by them. ( M.S. & L Ry and L & N. W. Ry v.
Brooks (1877) 2 Ex D 243;
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A Defendant may Counterclaim against one Plaintiff and deny all liability to the other.
On a Counterclaim against two Plaintiffs, the Defendant may recover judgment against
one (Hall v. Fairweather (1902)18 TLR 58.

To what extent is a Counterclaim an independent action

A Counterclaim is independent and it is only for convenience that it is made jointly. It is
substantially a cross-action, not merely a defence to the Plaintiff’s claim. It must be of
such a nature that the Court would have jurisdiction to entertain it as a separate action
(Bow Maclachlan & Co. v. The Camosun [1909] AC 597; Williams v. Agius [1914]
AC 522.

As per Bowen LJ in Amon v. Bobbertt [1889) 22 QBD 543, 548. “A Counterclaim is to

be treated for all purposes for which justice requires, it to be so treated, as an
independent action”.

Thus if after the Defendant has pleaded a Counterclaim, the action of the Plaintiff is for
any reason stayed, discontinued or dismissed, the Counterclaim may be proceeded with-
See also Order 12 rule 4 (1) “A Counterclaim may be proceeded with although judgment
is given for the Plaintiff in the action or the action is stayed, discontinued or dismissed”.

Thus where the Plaintiff’s claim was held to be frivolous, the Court still granted the
Defendant the relief prayed for by his Counterclaim ( Adams v. Adams (1802) 45 ChD
426; [1892] 1 Gh 369)

But the issues of fact raised by the claim and the Counterclaim should as a rule be tried
together, as that was Defendant’s object in pleading the Counterclaim ( Piercy v. Young
(1879) 15 ChD 475, 478).

Counterclaim is treated as a Statement of Claim-

Order 12 r 3 – Without prejudice to the general application of Order 11 to a Counterclaim

and defence to Counterclaim or to any provision of it which applies to either of those
pleadings specifically

(a) rule 1 of this Order shall apply to a Counterclaim as if it were a Statement of Claim
and the Defendant making it a Plaintiff; and
(b) Orders 13, 14 and 46, with the necessary modifications, apply to a defence to
Counterclaim as they apply to a defence.

See per Jessel M.R in Furness v. Booth [1876] 4 CRD, & Re Richardson [1933] WN
90

Thus by Order 12 r 2 there must be a defence to the Counterclaim if the Plaintiff intends
to defend the Counterclaim and file a defence to the Counterclaim by which all the rules
and principles applicable to pleadings in respect of the Statement of Defence will apply.

Order 12 r 2(1) “A Plaintiff on whom a Defendant serves a Counterclaim shall if the

Plaintiff intends to defend it, file a defence to the Counterclaim”
Order 12 r 2(2) “where a Plaintiff serves both a reply and a defence to Counterclaim
on any Defendant, the Plaintiff shall include them in the same document”.

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Thus as the Counterclaim is embodied in the Statement of Defence, so is the defence to
the Counterclaim embodied in the Reply.

Similarly by Order 12 r 2(3) “A defence to Counterclaim shall be filed by the Plaintiff

before the expiration of fourteen days after the service on the Plaintiff of the
Counterclaim to which it relates”.

See also Order 12 r 4(1) and 4(2)

By Order 12 r 4(2) 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 for the balance, but without prejudice to the Court’s discretion
in respect of cost.

So from the foregoing we can say that the Defendant is a Plaintiff in respect of his
Counterclaim and the Plaintiff is a Defendant to the Counterclaim.

See Malm v. Lutterodt & Apea v. Asamoah

See Order 13 r 7(1) “A Defendant who Counterclaims against the Plaintiff shall be treated
for the purposes of this Order as if the Defendant were a Plaintiff who has made against
a Defendant the claim in the Counterclaim”.
Order 13 r 7(2) - where the Plaintiff fails to file defence to Counterclaim, the order shall
apply as if the Counterclaim were a Statement of Claim and defence to Counterclaim a
defence with the period fixed for filing defence were a reference to the period fixed for
filing defence to counterclaim.
A Counterclaim is to be treated as a cross-action and is not affected by anything which
relates solely to the Plaintiff’s claim. Thus as stated, where the Plaintiff discontinues his
action after the Counterclaim has been served, he cannot prevent the defendant from
enforcing against him the causes of action contained in the Counterclaim ( McGowan v.
Middleton (1883) 11 QBD 464 CA).

So where the Plaintiff served no Reply and his action was accordingly dismissed, the
defendant moved for judgment on his Counterclaim and obtained judgment ( Roberts v.
Booth (1893) 1 Ch 52 following Jones v. Macauley (1891) 1 QB 221).

So if an action is dismissed for being frivolous, the Counterclaim is not affected and the
Defendant may be granted the relief which he seeks thereby ( Adams v. Adams (1892)
45 Ch D 425, [1892] 1 Ch 369). So it is if the Plaintiff admits facts pleaded in the
Counterclaim (Wood v. Goodwin (1884) WN 17).

On the other hand, where the Defendant applies to dismiss the action for want of
prosecution and he has made a Counterclaim against the Plaintiff arising out of the same
facts as were to be investigated in the action, and both parties are guilty of
corresponding delays, both claim and Counterclaim will ordinarily be dismissed for want
of prosecution. (Zimmer Orthopaedic Limited v. Zimmer Manufacturing Co.
[1968] 1 WLR 1349; [1968] 3 All ER 449, CA).

Making the Counterclaim (setting up a Counterclaim)

The right of action by way of Counterclaim can only be exercised by the service of a
pleading embodying the Counterclaim.
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A Counterclaim is therefore made when it is properly formulated and pleaded (Order 12 r
3), and when made, it must be added to the defence.
See Order 12 r 1(2) - which provides that: “ The Defendant shall add the Counterclaim to
the defence”.

So in drawing up the Statement of Defence you don’t separate them as two separate
documents, you may add your Counterclaim. You make reference to the paragraphs in
your Statement of Defence. Thus the Defendant who seeks to make a Counterclaim must
not file a separate document or process but must add the Counterclaim to the Statement
of Defence.

In practice it would then be entitled “Statement of Defence and Counterclaim or

“Statement of Defence” and thereafter in the same Statement of Defence, a portion or
paragraphs headed “Counterclaim” to distinguish them from the main Statement of
Defence, but which are part of the same numbering of the paragraphs in the same serial
of the Statement of Defence.

If those facts to be relied upon in the Counterclaim are already stated in the Statement
of Defence, there is no need to repeat the same but could be linked to the Counterclaim
stating that the Defendant repeats the averments in the Statement of Defence, by way
of Counterclaim. E.g. By way of Counterclaim the Defendant repeats the allegations
contained in paragraphs so and so of the Statement of Defence and claims as follows:
then the reliefs claimed in the Counterclaim are stated.

Counterclaim against Additional Parties.

This is provided for under Order 12 r 5. It provides in Order 12 r 5(1) that:

(1) Where a Defendant who makes a Counterclaim against the 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 other person 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.

Order 12 r 5 (2)- Where a Defendant joins a person as 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.

Order 12 r 5(3)- 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 these Rules the Defendant shall serve on the Plaintiff the
defence to which the Counterclaim is added.

Order 12 r 5(4)- 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.

Order 12 r 5(5)

Order 12 r 5(6)
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 Order 12 5(7)

Order 12 r 5(8)-appearance-
From these rules, it is clear that the principle contained therein is that, “as far as
possible, all matters in controversy between the parties may be completely and finally
determined, and all multiplicity of proceedings concerning any of those matters avoided”.
It means that a Defendant may plead Counterclaim against the Plaintiff along with some
other person not already a party to the action. Such a person is described as a
“Defendant to Counterclaim” or Defendant by Counterclaim i.e. writing the name of such
person with Defendant by Counterclaim in the title of the action provided that the
defence alleges that such a person is liable to the Defendant along
with the Plaintiff in respect of the subject matter of the Counterclaim.
However in a Counterclaim, the Defendant may seek reliefs jointly or severally or in the
alternative. But the Defendant cannot Counterclaim against any co-Defendant or third
person alone without the Plaintiff. But if he is claiming contribution, indemnity or than
from that other person, the proper cause of action will be to commence third party
proceedings as under Order 15.

Apart from that, the rule allows the joinder of a person to the Counterclaim made against
the Plaintiff, not only where that person is liable “along with” the Plaintiff but also where
the relief claimed against that person relates to or is connected with the original
subject matter. But it is alternative and additional to third party procedure and arises
when the Defendant makes a Counterclaim against the Plaintiff and an additional party
or a co-Defendant.
However the rule only applies subject to the following conditions and circumstances:
1. The Plaintiff must be a Defendant to the Counterclaim ( Harris v. Gamble (1878)
6 ChD 748; Furness v. Booth (1877) 4 ChD 587) otherwise recourse must be
had to 3rd party and similar proceedings in the case of claim for indemnity against
Co-Defendant (Central African Co. v. Grove (1879) 48 CJ Ex 510). But the fact
that the 3rd party could not have been a Defendant to the Plaintiff’s claim makes
no difference (Turner v. Hednesford Gas Co. (1879) 3 Ex D 145.
2. The rule applies where the Defendant’s claim against the Plaintiff and third person
is made jointly or in the alternative ( Smith v. Buskell (1919) 2 K B 362; see
Child v. Stenning (1877) 7 Ch D 413; Dear v. Swoder (1878) 4 Ch D 476 – or
where it is made in the alternative only (negativing Time Cold Storage Co. v.
Lowther (1911) 2 KB 100 decided under the former 0.12 r 11 of the old English
rules).
3. A third person not a party cannot be joined as co-Plaintiff with Defendant
(Pender v. Taddei [1898] 1 QB 798 nor as Co-Defendant with Plaintiff in respect
of a cause of action vested in him jointly with Defendant (ibid), but the Court may
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 compel Plaintiff to add as Co-Defendant a person who has a Counterclaim jointly
with the original Defendant (Montgomery v. Foy [1895] 2 QB 321).
4. The Counterclaim under this rule must ask for relief relating to or connected with
the subject matter of the Plaintiff’s claim.
5. The Counterclaim need not be an action of the same nature as the original action.
Re Richardson: Richardson v. Nicholson [1933] W N 90 following Beddall v.
Maitland (1888) 17 Ch D 181 and disapproving Macdonald v. Carrington
(1879) 4 CPD 28 (and see McEwan v. Crombie (1883) 25 Ch D 175, P 177;
Stumore v. Campbell & Co [1892] 1QB 314)
6. If the claim and Counterclaim are based upon the same agreement, which, on
consideration of the claim, is found to be illegal, the Counterclaim cannot be
enforced (Kenyon v. Darwen Cotton Manufacturing Co. [1936] 2 KB 193, CA
Order 12 r 5(7) - The person on whom copy of Counterclaim is served under sub
rule (2) if not already a party, becomes a party to it as from the time of service, with the
same rights in respect of defence to the Counterclaim and otherwise as if the person had
been duly sued in the ordinary way by the person making the Counterclaim. So from the
time of service of a copy of the Counterclaim, the additional party becomes a party to
the action “with the same rights in respect of his defence to the Counterclaim and
otherwise as if he had been duly served in the ordinary way by the party making the
Counterclaim.
Order 12 r 5(8) – A person who is not already a party to the action shall file appearance
to the Counterclaim.

Order 13 r 7 – Default of defence to Counterclaim

- Order 13 r 7(1) A Defendant who Counterclaims against a Plaintiff shall be treated for
the purposes of this Order as if the Defendant were a Plaintiff who has made against a
Defendant the claim in the Counterclaim.
Order 13 r 7 (2) Where the Plaintiff or any other party against whom a Counterclaim is
made fails to file a defence to Counterclaim, this Order shall apply as if the Counterclaim
were a Statement of Claim, the defence to Counterclaim a defence and the parties
making the Counterclaim and against who it is made were Plaintiffs and Defendants
respectively, and as if reference to the period fixed by these Rules for filing the defence
to Counterclaim.
Order 12 r 7
“7. (1) If claims in respect of two or more causes of actions are included by a defendant
in a counterclaim, and it appears to the Court that the joinder of causes of action may
embarrass or delay the trial or is otherwise inconvenient, the Court may order separate
trials or make such other orders as may be just.

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 (2) If it appears on an application of any party against whom a counterclaim is made
that the subject matter of the counterclaim ought for any reason to be disposed of
by a separate action, the Court may order the counterclaim to be struck out or
may order it to be tried separately or make such other order as may be just
(3) Rules 1, 5, and 6 of this Order shall have effect subject to this rule.

This rule then protects Plaintiffs and Defendants to counterclaim from wrongful, improper
on inconvenient counterclaims. Since counterclaims are permissible unless it is
inconvenient to try the case with the counterclaim, if a party can satisfy the Court that
the counterclaim is such that it cannot be conveniently disposed of in the pending action
or would embarrass or delay the trial of the action the Court may strike out the
counterclaim, order a separate trial of the counterclaim or make such other order as may
be just.

Title of Counterclaims against Additional Party

Where the Defendant makes a counterclaim not only against the Plaintiff, but also
against an added party, the title of the action must show that this has been done. The
practice is for this to be done as follows:

“BETWEEN: A. B ......... PLAINTIFF

AND
C.D ........ DEFENDANT
(by original action)

AND BETWEEN C.D --- PLAINTIFF

AND
A.B AND X.Y --- DEFENDANTS
(by counterclaim)

So where the Defendant makes a counterclaim against a person not already a party to
the action, he must first add that person’s name to the title of the action (as above) and
he must then make/issue a copy available to be served on the person(s) concerned.

A copy of the counterclaim adding a person or a party must be served on all the other
Defendants to the counterclaim. If any such person is already a party to the action,
service of the counterclaim must be served on the Plaintiff by the ordinary mode of
service including resort to substitution service where necessary.

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 Order 11 r 3; 14(1); 8(1)
REPLY
As we have learnt already 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 –
Order 11 r 3(1)

The time limited for filing a Reply by the Plaintiff is before the expiration of seven (7)
days after the service on the Plaintiff of that defence. It may not be necessary to file and
serve a reply if the Plaintiff merely wishes to deny the allegation in the Statement of
Defence because if no reply is filed there is a joinder of issues to the defence meaning
that all material facts in the defence are put in issue - Order 11 r 14(4)

But Reply may be necessary for compliance with rule 8 even if it is not compulsory to file
a reply. This is because by the rules of pleading a party subsequent to a Statement of
Claim shall plead specifically any matter e.g. performance, release, any limitation
provision, fraud or any fact showing illegality (a) which the party alleges makes any claim
or defence of the opposite party not maintainable or (b) which if not specifically pleaded
might take the opposite party by surprise; or (c) which raises issues of fact not arising
out of the preceding pleading – Order 11 r 8(1).

Reply is necessary where the Plaintiff needs to set up some affirmative case of his own in
answer to the facts alleged by the Defendant, especially in compliance with Order 11 r
8(1). Remember also that by Order 11 r 3(1) where no reply is filed rule 14(1) shall
apply. And Order 11 r 14(1) deals with where there is no reply to a defence – then there
shall be a joinder of issues on that defence subject to sub-rule 3 which provide that there
shall be no joinder of issue on a Statement of Claim or counterclaim.

The Reply is not the same as defence to counterclaim even though the Defence to
Counterclaim may be embodied in the Reply: but both are pleading which are for the
Plaintiff to serve, the Reply in answer to the defence and the defence to the counterclaim
in answer to the counterclaim.
If, as is more often the case, the Plaintiff desires to answer both the defence and the
counterclaim, he must serve only one document incorporating both the reply and the
defence to the counterclaim. The practice is to entitle the whole pleading, “Reply and
defence to counterclaim” but to divide into two sections, the first headed “Reply” and the
second headed “defence to counterclaim” , but with a continuous numbering of the
paragraphs in both sections.
Where Reply necessary:

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 1) It is unnecessary to serve a reply if the Plaintiff only wishes to deny the
allegations contained in the defence, since if no reply is served, all material facts
alleged in the defence are put in issue. A reply merely “joining issue” is therefore
unnecessary.
2) On the other hand, it is frequently necessary for the Plaintiff to set up some
affirmative case of his own in answer to the facts alleged by the Defendant. Thus,
a reply is necessary if it is required to comply with Order 11 r 8(1) i.e. The Plaintiff
must serve a reply and plead specifically any matter, for example, performances
release, any relevant statute of limitation, fraud or any fact showing illegality
which he alleges makes the defence not available or which might otherwise take
the Defendant by surprise or raises issues of fact not arising out of the defence
3) The Plaintiff may in his reply admit part of the defence; he may traverse or
confess and avoid or both traverse and confess and avoid allegations in the
defence. As per James L J in Hall v. Eve (1876) 4 Ch D 341, 345 “The reply
is the proper place for meeting the defence by confession and avoidance” so is
any equitable ground of reply like James L J explained in the Hall v. Eve (1876) 4
Ch D 341, 345 “In the present case the Plaintiff by the Statement of Claim says ‘I
am entitled to specific performance of a certain agreement.’ The Defendant by the
Statement of Defence states you have committed breaches of the agreement
which entitle us to put an end to it and we have put an end to the agreement; the
Plaintiff in his reply says ‘your allegations are not true and if they are, the things
which you say I have done, I was induced to do so by yourself and therefore it is
inequitable to set up that defence’. A man is entitled to say and there can be no
question that a man ought to be at liberty to say ‘put you to proof of what you
allege” and to further says “if what you allege is true ........’ The only question is
whether he is entitled to put that into his reply. I am of the opinion that on the
plain rules, the reply is the proper place in which to meet the defence by
confession and avoidance”.
The Plaintiff must therefore be careful not merely to join issue where he ought to
allege new facts.
The danger of not doing so is well illustrated in Kronstein v. Korda [1937] W.N. 67,
CA Where for example, the Defendant has pleaded the Limitation Act, it may be
necessary for the Plaintiff to plead facts which take the case out of the statute. The
better practice is for the Plaintiff to plead the facts relating to an acknowledgement to
take the case out of the statute in the Statement of Claim and not in a reply ( Busch v.
Stevens [1963] 1 QB1, [1962] 1 All ER 412)

4) The Plaintiff must not however, put forward in his reply a new cause of action
which is not raised either on the writ or in the Statement of Claim ( Williamson v.

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 L & N.W Ry (1879) 12 ChD 787); that would be a “departure” which is not
permitted under the rules in Order 11 r 10
– Read –
See the case of Odoi & Anor v. Hammond [ 1971] 1 GLR 375, CA per Azu Crabbe JA
(as he then was) @ pp 385-387
See also Hammond v. Odoi & Anor [1982-83] GLR 1215
ODOI & ANOR v. HAMMOND [1971]1 GLR 375, CA –
HELD in holding (4) that the Plaintiff was by his reply setting up a case which was
completely inconsistent with his former pleading without asking leave to amend
his Statement of Claim. The learned trial judge should therefore have disregarded
that part of the reply and the evidence in support thereof which was at variance with the
case put forward in the Statement of Claim.
Per Azu Crabbe JA (as he then was): “The main purpose of a reply in pleadings is to
raise in answer to the defence any matters which must be pleaded by way of confession
and avoidance, or to make any admission which the Plaintiff may consider it proper to
make:
“[T]he reply is the proper place for meeting the defence by confession and avoidance”
per James L.J in Hall v. Eve (1876] 4 Ch D 341, pp 345-46, CA. The Plaintiff may allege
new facts in his reply in support of the case pleaded in his statement of claim, but he is
not permitted to set up in his reply a new claim or cause of action which was not raised
either in the writ or in the statement of claim. In his reply, he can explain and define his
original claim

HAMMOND v. ODOI [1982-83] GLR 1215, SC

REJOINDERS Order 11 r 4- Subsequent pleadings

Order 11 r 4 – No pleading subsequent to a reply shall be filed except with leave of the
Court.
Rejoinder is the Defendants’ answer to a Reply, if any.
Order 11 r 4 enables the Court to order the service of any pleading subsequent to a
Reply. The pleadings subsequent to reply retain their old names; Rejoinder (by
Defendant); surrejoinder (by Plaintiff); rebutter (by Defendant); surrebutter (by Plaintiff).
None of these names for pleadings occurs in the former or present rules. All except
rejoinder are rare, to the point of extinction; and even rejoinder is seldom seen. It may
be necessary, for example, where the Defendant raises a counterclaim for libel and the
Plaintiff in his reply and defence to counterclaim pleads qualified privilege to which the
Defendant wishes to plead express malice, which he can only do in a rejoinder; or where
the Plaintiff raises a counterclaim to the Defendant’s counterclaim, to which the defence
can only be contained in rejoinder.

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It stands to reason that leave to serve rejoinder or subsequent pleading will not be
granted unless it is really required, so as to raise matters which must be specifically
pleaded e.g. under rule 8 of Order 11

DEFAULT PLEADING
What happens where a party who is required to file pleadings fails to do so within the
requisite time?
If he fails to do so then he is in default of pleading. We have dealt with default of
Appearance- which applies to the Defendant (not Plaintiff) who fails to enter appearance
with 8 days of service of the writ of summons.
So there may be:
1. Default in the service of the statement of claim (for which it is provided in Order 2
r 6 and Order 11 r 1.
2. Default of defence (Order 13)
3. Default in filing or failure to file a Reply Order 11 r 3, 8 and 14
4. Failure or default in filing a Defence to counterclaim Order 13 r 7

1. DEFAULT IN SERVICE OF STATEMENT OF CLAIM- Order 2 r 6 and Order 11 r

1.
By Order 2 r 6. Every writ of summons shall be filed together with a statement of claim
as provided for under Order 11 and no writ shall be issued unless a statement of claim is
filed with it.
Then in Order 11 r 1 the Plaintiff shall serve a statement of claim on each Defendant at
the same time as the writ or notice of the writ is served on that Defendant and where
the Plaintiff fails to serve a statement of claim on a Defendant, that 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 order on such terms as it considers just .
So a Defendant could apply to dismiss the action. The action is dismissed. Note that
action is dismissed but no judgment is given and thus the Defendant cannot apply for
judgment on the basis of default of service or filing of statement of claim. We say he
cannot sign judgment but must apply under this rule to dismiss the action.

The effect of the order to Dismiss:

An order to dismiss an action for a reason which goes to the foundation of the whole
cause of action, and which is the result of a determination, after hearing the parties, or
of the whole fundamental part of the whole claim, and the effect of which is finally to
determine the rights of the parties, is final for all purposes ( Bozson v. Altrincham Cl.

154
D.C. [1903]1KB 547). However an order for dismissal for default of pleading or want
of prosecution is no bar to the commencement of a fresh action unless the order
contains some express provision to the contrary. See Pople v. Evans [1969] 2 Ch
255; [1968]2 All ER 743 per Lord Denning MR.

Where on the other hand, the effect of a judgment of dismissal under Order 36 r 1
where the case is called on for trial and the Plaintiff does not appear, is “the same as if
the action had been dismissed on the merits” (per Esher MR, Amour v. Bate [1891]2QB
233,235.

2. DEFAULT OF DEFENCE Order 13; Order 7 r 12 (4)

Where the Defendant seems to have defaulted or has defaulted in filing a defence the
Plaintiff cannot be entitled to judgment in default of defence until there is proof of
service of the writ on the Defendant – See Order 7 r 12(4) –which provides that.
The judgment in default of defence may be interlocutory or final.

(i) Claim for liquidated demand- Order 13 r 1 (1) where the Plaintiff’s claim
against a Defendant is for a liquidated demand only and the Defendant fails to
file a defence to the claim, the Plaintiff may, after the expiration of the period
fixed by these Rules for filing the defence, apply, to enter final judgment
against that 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.
Order 13 r 1(2) A claim shall not be prevented from being treated for the purpose of this
rule as a claim for a liquidated demand by reason only that part of the claim is for
interest accruing after the date of the writ at an unspecified rate, but any such rate
shall be computed from the date of the writ to the date of entering judgment or final
payment at the prevailing commercial bank rate.
Compare Order 13 r 1 with Order 10 r 1 – where provisions are the same. So
judgment given will be final judgment. So there will be no assessment since it is for
liquidated demand. Secondly, the judgment sum should not exceed the amount/sum
claimed – and the action shall continue against other Defendants if any, who have not
defaulted in filing a defence. Interest will also be treated as a liquidated demand and
shall be computed from the date of writ to the date of entering judgment of final
payment, at the prevailing commercial bank rate
But where two Defendants are sued on a claim on which the Plaintiff has a right of action alternatively, but not
jointly, a judgment against one of them is equivalent to an election to sue that one and a bar to further proceedings
against the others (Morel Bros v Westmorland [1903]1KB 64, CA. See Sullivan v Sullivan [1912]2 Ir R 116. Also
where a judgment entered against one of two Defendants alternatively liable cannot be set aside by order to enable
the Plaintiff to obtain judgment against the other (Cross & Co v. Matheres [1904] 91 L.T 459.

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 (ii) Claim for Unliquidated demand- Order 13 r 2 – where the Plaintiff’s claim
against a Defendant is for an unliquidated demand only and the defendant fails
to file a defence to the claim, the Plaintiff may, after the expiration of the
period fixed by these Rules for filing the defence apply to enter interlocutory
judgment against the Defendant for damages to be assessed and for costs,
and proceed with the action against other Defendants, if any.
So being interlocutory judgment, it would be followed by assessment of
damages and the case will process against other Defendants who have not
defaulted in filing their defence, if any.
Note that assessment of damages is regulated by Order 40 of the rules, - By Order 40(1)
where interlocutory judgment is given for damages to be assessed it shall be assessed by
the Court, subject to rule 2.
The Court may if it considers fit, order particulars to be filed before any assessment of
damages.
Rule 2 of Order 40 – where the interlocutory judgment is given for damages to be
assessed and it appears to the Court that the amount of damages is substantially a
matter of calculation, the Court may direct that the amount for which final judgment is to
be entered shall be ascertained by an officer of the Court.

Witnesses may be called and production of documents may be required before the officer
and may be compelled to attend by subpoena and the officer may adjourn the enquiry
from time to time.
The amount found by the officer is presented to the Registrar and added to the
judgment.
Order 40 r 3 deals with default judgment against some but not all Defendants- In that
case, interlocutory judgment for damages to be assessed is given in default of
appearance or in default of defence, the action proceeds against other Defendants, the
damages under the judgment shall be assessed at the trial unless the Court otherwise
orders.

5. Claim in detinue – Order 13 r 3

Where the Plaintiff’s claim against a Defendant relates to the detention of goods only,
and the Defendant fails to file a defence to the claim, the Plaintiff, may after the
expiration of the period fixed by the Rules for filing a defence, apply to enter
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 values of the goods and costs and proceed with the action
against the other Defendants, if any.

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Compare with Order 10 r 3 on interlocutory judgment in default of appearance for
detinue, where the Court was required to fix a date and serve the Defendant is provided
for – since likely to be brought ex parte unlike Order 13 r 3 where the application ought
to be on notice.
But both under 13 r 3 and Order 10 r 3, damages would have to be assessed since the
judgment is interlocutory.

6. Claim for possession of Immovable Property

Order 13 r 4(1) where the Plaintiff’s claim against a Defendant is for possession of
immovable property only, and the Defendant fails to file a defence to the claim, the
Plaintiff may, after the expiration of the period fixed by the Rules for filing a defence,
apply to enter judgment for possession of the immovable property against the
Defendant and for costs, and proceed with the action against other Defendants, if any.
(4) Where there is more than one Defendant, 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.
By under Order 13 r 4(3) this rule shall not apply where possession is claimed by
virtue of a mortgage.
Compare Order 13 r 4 with Order 10 r 4 dealing with default of appearance in
claims for immovable properties and the provision are the same.

(v) Mixed Claims

Order 13 r 5 – where the Plaintiff makes against two or more Defendant claims to which
rules 1 to 4 apply and does not make any other claim, and the Defendant fails to file a
defence to the claim, the Plaintiff may, after the expiration of the period fixed by these
Rules for filing the defence, 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.
Compare this Order 13 r 5 with Order 10 r 5-same

7. Moneylender’s Action Order 59 r 4 if defence

Order 59 r 4 (1) In a moneylender’s action Order 59 r 5 judgment in default of
appearance or in default of defence shall not be entered except with leave of the Court.
Order 59 r 4(2) Notice of the application for the leave under this rule shall be served on
the Defendant.
Order 59 r 4(3) – On hearing the application whether or not the Defendant appears the
Court may
a) exercise the powers of the Court under the moneylenders Ordinance 1940 Cap 176
b) give leave to enter final

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c) as regard......................

8. Mortgages Action Order 59 r 5

Order 59 r 5(1) in mortgages action judgment in default of appearance or of defence
shall not be entered except with leave of Court.
Order 59 r 5 (2) Notice of the application for leave on the Defendant is required to be
served.

9. Probate Action (Order 66 r 42)

Order 66 r 42(1) – A judgment shall not be given in default of pleadings in a probate
action.
Order 66 r 42(2)- where any party to a probate action fails to file a pleading which the
party is required by this order to file, then unless the Court strikes out the action, the
other party, may after the expiration of the period fixed under this Order for the filing of
that pleading, apply to the Court for leave to set down the action for trial.-
So on default,
(i) Court may strike out action
(ii) The other party may apply to the Court to set down the action for trial.

10. Maritime Action- Order 62 r 15

The party not in default may apply to the Court for judgment in default after
(i) An affidavit showing non-service of the defence or defence to
counterclaim during the period fixed for service.
(ii) An affidavit verifying the facts on which the action is based together
with a copy of the statement of claim or counterclaim as the case
may be
(iii) And if the Court satisfied that the claim is well founded, on hearing
the application, may give judgment for the claim and may at the
same time order the property against which the action or
counterclaim is brought to be valued and sold and the proceeds paid
into Court or may make such other orders as it considers fit. But
Order 62 r 15(9) provides specially that Order 10 and 13 shall not
apply to maritime actions.

11. Other claims Order 13 r 6; Order 10 r 6

Order 13 r 6(1) where the Plaintiff makes against a Defendant a claim of a description
not mentioned in rules 1 to 4 and the Defendant fails to file a defence to the claim, the
Plaintiff may, after the expiration of the period fixed by these Rules for filing the defence,
apply to the Court for judgment.

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Order 13 r 6(2) on the hearing of the application the Court shall give such judgment as
the Plaintiff appears entitled to by the statement of claim of the Plaintiff.

Order 13 r 6(3) where the Plaintiff makes a claim to which surule (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 against the Defendant in default 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.
Compare with Order 10 r 6- where there is default of appearance in other claims not
specifically provided for, the plaintiff may upon filing affidavit proving due service of the
writ and statement of claim proceed with the action as if the defendant had filed
appearance – Order 10 r 6(1) or where the plaintiff make other claims not specifically
mentioned and 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 Defendant fails to file appearance, the Plaintiff may apply for award of
cost against the Defendant – Order 11 r 6(2) and Order 10 r 6(3) where notice of the
application for leave to enter judgment under Order 10 r 6 (2) shall be served on
Defendant against whom it is sought to enter judgment.
Proof of Plaintiff’s case in these cases of default, where the Plaintiff moves the Court,
judgment is given on affidavits and it is not necessary to prove the party’s case by
evidence but that evidence would be based on the pleadings alone (Smith v. Buchan
(1888) 58 LT 710: Young v. Thomas [1892] 2 Ch 135, CA
It is therefore not necessary on hearing of the motion for judgment to prove the case by
evidence (Webster v. Vincent (1898) 77 LT 167)

DEFENCE FILED OUT OF TIME

What happens if for example before the motion for judgment in default of defence, the
defence is filed, though out of time?
Although these rules seem to be mandatorily giving the right to judgment, it has been
held that it is not mandatory but gives the Court the discretion or power, in the
appropriate case, to give judgment or to extend the time to plead as the justice of the
case may demand or require.

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See the case of WALERSTEINER v. MOIR [1974] 3 All ER 217
Republic v. High Court Koforidua and Anor Ex parte Ohene [1995-6] GLR 1, 6-7
per Hayfron Benjamin JSC
As a matter of fact, a defence served or filed after the expiration of the prescribed time
but before judgment has been given cannot be disregarded or ignored, and will generally
prevent the Plaintiff from entering judgment, even though it is not served until after the
Plaintiff has served his notice of motion for judgment under the rules.
Remember the case of Mumuni & Anor. v. Zakaria [1992] 1GLR, 208
In that case, the Defendant may be ordered to pay costs occasioned by his delay (GILL
v. WOODFIN (1884) 25 ChD 707, CA GIBBINGS v. STRONG (1884) 26 ChD 66
CA c/f GRAVES v. TERRY (1882) 9 QBD 170)
In such a case, the Court will have regard to the contents of the defence served out of
time, and deal with the case in such a manner that justice can be done – See Gibbings
v. Strong; Montagu v. Land Corporation etc (1884) 56 LT 730
And where the Defendant had not even acknowledged service, the Court gave judgment
in the Chancery Division but suspended it for a period, directing notice to be given to the
Defendant’s solicitor (Butterworth v. Small wood [1924] WN 82

ENTERING JUDGMENT AFTER EXPIRATION OF REQUISITE PERIOD

Even so, care must be taken not to enter judgment until due time has expired, or
Defendant will be entitled ex debito justitiae to have it set aside (Anlaby v. Practorius
(188) 20 QBD 764, 771).
Ex debito justitiae means ‘as a debt of justice; as a matter of right, in
accordance with the requirement of justice’.
Care must also be taken to enter judgment only for the amount of what is actually due at
the time where judgment is entered, otherwise the Defendant is entitled ex debito
justitiae to have it set aside (Hughes v. Justin [1894] 1QB 667, CA; Muir v. Jenks
[1913] 2 KB 412, CA However, an error in entering judgment arising from accidental
slip or omission may be corrected (Armitage v. Parsons [1908] 2 KB 410, CA)
Republic v. High Court, Koforidua and Anor Ex parte Ohene [1995-96] GLR 1,
6-7 Hayfron Benjamin JSC. Where the Plaintiff brought an action against the
Defendants and upon receipt of the writ of summons the 1 st Defendant instructed his
solicitors to enter appearance on his behalf. However the Solicitors without finding out
whether the 2nd Defendant had received the writ of summons, and without any
authorisation from him, entered appearance for both Defendants. It turned out that the
2nd Defendant had not been served with the writ of summons by that time. When the 2 nd
Defendant was eventually served with the writ, he instructed his own solicitors who
entered appearance on his own behalf and belatedly filed a statement of defence. But
the Plaintiff moved the Court for judgment in default of defence and the trial judge

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disregarded the statement of defence but relied on the prior appearance entered on
behalf of the 2nd Defendant and granted judgment against him.
The 2nd Defendant therefore brought an application for certiorari to quash the
proceedings of the trial Court.
It was held, granting the application inter alia that since the Plaintiff action was for, inter
alia, declaration of title to land and perpetual injunction and not a claim as landlord for
recovery of possession from the applicant Defendants as his tenants, the effect of default
of defence by the application should be determined under O 27 r 11 of LN 140A and thus
the High Court was bound to have regard to a defence filed at the time and deal with it
in such a manner that justice could be done. Accordingly, in the instant case, the High
Court was wrong in concluding that the applicant’s defence was a nullity Gill v.
Woodfin (1884) 25 Ch D 707, CA Gibbings v. Strong (1884) 26 Ch D 66, CA and
Montagu v. Land Corporation of England (!887) 56 LT 730 cited.
Even though the trial High Court had breached Order 27 r 11 of LN 140 A, since the
Court only erred within jurisdiction, certiorari did not lie to quash the trial High Court’s
judgment and orders. However, since Order 27 r 11 of LN 140 A had been breached, the
judgment was void. Accordingly, the applicant was entitled ex debito justitiae to have
that judgment set aside and the Court would so order – Dictum of Akufo-Addo JSC (as
he then was) in Mosi v. Bagyina [1963] 1 GLR 337, 344, SC cited.

3. Failure to file Reply

Order 11 rr 3, 8, 14 and 19
Order 11 r 3 - A reply to be filed before the expiration of seven days after service on the
Plaintiff of the defence - Order 11 r 3(2)
Order 11 r 3(1) - Plaintiff shall reply only if necessary for compliance with r 8 and if no
reply is filed rule 14(1) shall apply
Order 11 r 8 – considered
Order 11 r 14(1)
But we need to have a closer look Order 11 r 19 (1) dealing with close of pleadings
- Pleadings are closed
(a) At the expiration of seven days after service of the Reply or if there is no reply
but only a defence to counterclaim, after service of defence to counterclaim or
(b) If neither reply or defence to counterclaim is served, at the expiration of seven
days after service of the defence
And pleadings are closed irrespective of a request or order for particulars has been made
but not complied with Order 11 r 19(2)
4. Failure to file a Defence to Counterclaim Order 13 r 7
Order 13 r 7(2) If a Plaintiff or person against or whom a counterclaim is made defaults
in filing defence to counterclaim on the Defendant, the Order shall apply as if the

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counterclaim were a “statement of claim”, the defence to the counterclaim a defence and
the parties making the counterclaim a defence and the parties making the counterclaim
and against whom it is made were Plaintiffs and Defendants respectively and as if
reference to the period fixed by these Rules for filing the defence were a reference to the
period so fixed for filing of the defence to counterclaim
Order 13 r 7(1) – a Defendant who counterclaims against a Plaintiff shall be treated for
the purposes of this Order as if the Defendant were a Plaintiff who has made against a
Defendant the claim in the counterclaim.

SETTING ASIDE DEFAULT JUDGMENT

Order 13 r 8 compare with Order 10 r 8 and Order 62 r 15 (8)
The Court has power to set aside or vary any judgment entered in default under the
rules, on such terms as it thinks fit. The principle upon which the Court exercises this
power is as per Lord Atkin in Evans v. Bartlam [1937] AC 473, 480 “The principle
obviously is that unless and until the Court has pronounced a judgment upon the merits
or by consent, it is to have power to revoke the expression of its coercive power where
that has only been obtained by a failure to follow any of the rules of procedure ”.
Judgment in default is no bar to an application to set aside service of the writ and all
subsequent proceedings, including judgment, on the ground that service out of the
jurisdiction was wrongly ordered. Hewitson v. Fabre (1888) 21 Q BD 6.

Under Order 13 r 8, the Court may on application by a party affected and on such terms
as it thinks just, set aside or vary any judgment entered in pursuance of this Order. This
is comparable to Order 10 r 8 – dealing with setting aside judgment in default of
appearance. – “The Court may, on such terms as it thinks fit, set aside or vary any
judgment entered in pursuance of this Order.
Order 62 r 15(8) – where in a maritime action – judgment by default could be set aside.
It provides that “The Court may, on such terms as it thinks just, set aside or vary any
judgment entered in pursuance of this rule”; and the rule deals with judgment by
default.
Order 62 r 15(8) – see Refusal to set aside default judgment: Ghana Football
Association v. Apaade Lodge Ltd [2009] SC GLR 100......

Order 14
SUMMARY JUDGMENT
There are instances where there is no answer or any considerable defence to the
Plaintiff’s claim or that the defence is a mere sham or does not disclose any triable issues

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or that the Defendant does not have a defence to a claim. The Plaintiff may be entitled
to apply for summary judgment in any such case.
Summary judgment is available where a party can depose that to his belief there is no
defence to the relevant part of the claim . The rule retained its number in the English
1962 rule revisions and was introduced in the 19 th Century to meet commercial demand
for efficient debt collecting. Its ambit has significantly developed and has become a
procedure for swift determination of a point of law.

It enables a Plaintiff to obtain a quick judgment where there is plainly no defence to the
claim. Eg. If the Defendant’s only suggested defence is a point of law and the Court can
see at once that the point is misconceived or if arguable, can be shown shortly to be
plainly unsustainable, the Plaintiff is entitled to judgment.

This is provided for under Order 14

Order 14 r 1 – dealing with application for Summary Judgment
(1) Where in an action a Defendant has been served with a Statement of Claim and has
filed appearance, the Plaintiff may on notice apply to the Court for judgment against the
Defendant on the ground that the Defendant has no defence to action included in the
writ, or to a particular part of such a claim, or that the Defendant has no defence to such
a claim or part of a claim, except as to the amount of any damages claimed.

Preliminary requirements: - Under Order 14 r 1 the following are the conditions

precedent for the Plaintiff employing the summary process of Order 14
(a) The Defendant must have been served with a statement of claim
(b) The Defendant must have entered appearance to the writ; and
(c) The Plaintiff must have deposed to an affidavit to the effect that in the deponent’s
belief, the Defendant has no defence to the action or that claim or part of a claim
or no defence except as to the amount of any damages claimed in compliance
with Order 14 r 2.
See Yartel Boat Building Co Ltd v. Annan [1991] 2GLR 11.
Order 14 r 2 provides for the method of making the application. Order 14 r 2(1) states
that the notice of the application shall set out the reliefs sought by the Plaintiff.
Order 14 r 2(2) The notice shall be supported by an affidavit verifying the facts on which
the relevant claim or part of a claim is based and stating that in the deponent’s belief the
Defendant has no defence to the action or that claim or part of a claim or no defence
except as to the amount of any damages claimed.
Order 14 r 2 (3). The Defendant should be given not less than 4 clear days notice before
the day named in the notice for the hearing of the application. It states that “Notice of
the application, a copy of the affidavit in support and of any exhibit relating to it shall be

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served on the Defendant not less than four clear days before the day named in the
notice for hearing the application.

a) Function and Application

Order 14 rr 1 & 2. These rules therefore set out the functions and application of
summary judgment. The function of Order 14 is to provide an opportunity to a Plaintiff
who can show cause that the Defendant has no answer to his case to obtain judgment
on his claim or part of his claim in a summary fashion. By summarily obtaining judgment
is meant obtaining judgment without going through a full trial, if the Defendant has not
been able to set up a good or bona fide defence or raise an issue or a triable issue to be
tried. This applies where for example the Defendant’s defence or the Plaintiff’s defence
to the counterclaim has no hope of success and the defence raised would be a sham or
has no real hope of success but to go through a full trial may merely delay the trial or
judgment unduly.
As Lord Esher MR said in ROBERT v. PLANT 91895) 14 R, 225 [1895] QB 597,
CA, “it is a strong thing to give such a power to a judge and this Court and all the Court
have said, therefore, that they would watch strictly the exercise of power. But they did
not mean by that that they would give effect to every pettifogging objection which the
ingenuity of the Defendant could raise”.

Pettifog means trivial. Pettifog is to practice legal deception or trickery;

quibble about petty points. Quibble means an evasion of the point of an
argument by raising irrelevant distinctions or objections.

In ATLANTA TIMBER CO. v. VICTORIA TIMBER CO. LTD [1962]1GLR 221- it was
held by Charles J. that “the purpose of Order 14 r 1 of the rules of Court is to enable a
Plaintiff to obtain summary judgment without trial if he can prove his claim clearly. Thus
even if the statement of defence may have been filed, the Court is not precluded from
entertaining a request for summary judgment. If the defence is unable to set up a bona
fide defence or raise an issue against the claim which ought to have to be tried, then the
application should be granted”. Robert v. Plant referred to.
But in Atlanta Timber v. Victoria Timber it was also held that where there are triable
issues especially where the issues could not be decided merely on the affidavit filed then
summary judgment would be refused.
Read the case of Sanunu v. Salifu [2009] SCGLR 586

b) Conditions:
Order 14 r 1 & 2. The conditions under which the application may be filed can be
gleaned from Order 14 rr 1 & 2.

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In YARTEL BOAT BUILDING CO. v. ANNAN [1991]2 GLR 1- where under LN 140 A
the writ taken by the Plaintiff was not accompanied with a statement of claim, but the
Plaintiff applied for summary judgment but rather gave a detailed account of the debt
which he was claiming and served both the writ of summons and the application for
summary judgment at the same time. The defendant had not entered appearance.
Kpegah J (as he then was) held that before Plaintiff could bring any application for
summary judgment under Order 14,
a) The Defendant must have been served with a statement of claim.
b) The Defendant must have entered appearance
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 the instant case, the Plaintiff’s affidavit satisfied the rule. However, since no statement
of claim was served on the Defendant, and the Defendant had not entered appearance
before the Plaintiff took out the application for summary judgment the procedure
adopted by the Plaintiff was clearly inadmissible under Order 14.

At page 15 Kpegah J (as he then was) said: “The preliminary requirements before Order
14 can be invoked to aid a Plaintiff have been restated in The Supreme Court Practice
(1967) Vol 1 at p 113
“The following are the conditions precedent for the Plaintiff employing the summary
process of Order 14
a) The Defendant must have entered appearance
b) The statement of claim must be or have been served on the Defendant and
c) The affidavit in support of the application must comply with the
requirement of Rule 2.........
“An averment that the Defendant has no defence to the action should be an integral part
of the affidavit; not to downplay the fact that facts must be deposed to indicating that
the Plaintiff’s claim is real and considerably unimpeachable. I must here say that the
affidavit in support of the application amply satisfies rule 2 of Order 14. This appears to
be the only commendable aspect of the application.
“No statement of claim was served; not only that; the Defendant has not entered
appearance as required by the rules before the Plaintiff took out the summons for
summary judgement. To complicate matters for the Plaintiff, the writ and the summons
for judgment were not only filed and sealed at the same time but served together; a
clearly inadmissible procedure under Order 14.”

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 C) Process: (under Order 14-)
The process or the mode of making the application have been laid down in Order 14 rr 1
& 2. It has also been lucidly laid down in the case of Yartel Boat Building Co. v.
Annan cited above.
To the requirements set out in the Yartel case must be added the following:
i) That the application must supported by an affidavit which
a) Must verify the facts on which the relevant claim or part of the claim is
based and stating that in the deponent’s belief there is no defence
except as to amount of damages claimed.
By Order 14 r 4, unless the Court otherwise directs, an affidavit under rr 2 or 3 may
contain statement of information and belief with the sources and grounds on which
they are based.

So it is required that the affidavit may contain statement of information or belief provided
the sources of information and grounds for belief are stated.
But in any case Order 14 r 2 (3) must be complied with; that is, a copy of the affidavit in
support and of any exhibit relating to it must be served in addition to the Notice of the
Application, not less than four clear days before the return date.

In the case of AZINOGO v. W. E. AUGUSTT & CO. LTD . [1989 -90] 2 GLR 278 –
282, CA.
It was an action in which the Plaintiff applied for summary judgment under Order 14 and
the return date was 4th December 1987 and the Defendant was served with the motion
for judgment on 1st December 1987 and the High Court gave summary judgment for the
Plaintiff.
On appeal it was HELD allowing the appeal that “clear days” had been construed to
exclude the date from which the period commenced and the day when the act was done,
from the computation of the notice period. In order words, the date on which a particular
process was actually served and the date on which the thing was to be done. In the
instant case, since the motion was actually served on the Defendant on 1 st December
1987, although it had been filed on 27 th November 1987, the appellant had no four clear
days she had only two. The rules require that the application must be served on the
Defendant not less than four clear days before the return date.
“I am of the opinion that there was violation of the rules” per Ampiah JA (as he then
was). It was further held that the failure to observe the 4 clear days rule was not a mere
irregularity but a mandatory provision and as such the non-compliance with the same
made the process void and making the Defendant entitled ex debito justitiae to have the
judgment founded on it, set aside.

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In the case of the Republic v. High Court Registrar and Amalgamated Bank, Ex
parte Allgate Company Ltd. (unreported, 16th July 2008, Suit No. JS/22/2008,
Supreme Court) Date Bah JSC stated that the Azinogo v. W. E. Augustt can no
longer be supported under the current rules of Court and that short service is an
irregularity and does not become a nullity automatically.
However, Baffoe Bonnie JSC stated that the failure to give four clear days notice before
moving the application renders the proceedings irregular and not void.

d. “Showing Cause” Order 14 r 3

Order 14 r 3 provides that a Defendant may show cause against the application by
affidavit or otherwise to the satisfaction of the Court (Order 14 r 3).
Where the Defendant proceeds to show cause, the court may order the Defendant or in
the case of a body corporate, any director, manager, secretary or similar officer of it, or
any person purported to act in such capacity to attend and be examined on oath or to
produce any document if it appears to the Court that special circumstances make this
desirable – Order 14 r 3(2)
The Defendant may show cause against the Plaintiff’s application :
i) By a preliminary or technical objection e.g. that the case is not
within Order 14 or that the statement of claim or affidavit in
support is defective, such as no due verification of claim. If the
objection is fatal, the Court will dismiss the application or give
unconditional leave to defend but if the defect is capable of
amendment, give leave to amend and proceed on the application
as amended subject to the question of adjournment and costs.
ii) On the merit e.g. (a) that he has a good defence to the claim on
the merits or (b) that a difficult point of law is involved or (c) a
dispute as to the facts which ought to be tried, or (d) a real
dispute as to the amount due which requires the taking of an
account to determine or, (e) or any other circumstances showing
reasonable grounds for a bona fide defence.
By Order 14 r 3(1) a Defendant may show cause against the application by affidavit or
otherwise to the satisfaction of the court. Even though in practice the Defendant may
show cause by affidavit, it is not an essential prerequisite. A defence filed may be
sufficient to enable the Defendant to get leave to defend once it is not a sham defence.
The use if the term “or otherwise “ is not intended to open wide the door for giving leave
to a Defendant who has no real defence; the primary obligation remains on the
Defendant to “satisfy the Court that there is a triable issue or question or that there
ought to be a trial for some other reason”.
See Afodofe v. Central Ins Co. Ltd. [1992) GLR 207

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See also Wilson v. Smith [1980] GLR 152

A Defendant may attack the application by a good defence or on technical grounds e.g
by showing its non-compliance with order 14 r 1 as being incompetent.

A Defendant who wants to resist an application under Order 14 must make sure that in
his affidavit showing cause, he discloses what in law, is a defence.

The Defendant’s affidavit must as far as possible, deal specifically with the Plaintiff’s
claim and affidavit and state clearly and concisely what the defence is, and what facts
are relied on to support it. It should also state whether the defence goes to the whole or
part of claim, and in the latter case it should specify the part.

A mere general denial that the Defendant is indebted will not suffice (Wallingford v.
Mutual Society (1880) 5 App Cas 685 per Lord Blackburn, p 704; Re General
Rail Syndicate, Whiteley’s case [1900]1 Ch 365 per Lindley MR p 369, unless
the ground on which the Defendant relies as showing that he is not indebted are stated.
Anon [1875]WN 249, per Quain J, p 250. If the affidavit commences with a
statement that the Defendant is not indebted to the Plaintiff in the account claimed, or
any part thereof, it should state why the Defendant is not so indebted and state the real
nature of the defence relied upon. (Re General Real Syndicate, supra)
Again, it is not enough for the Defendant to show a case of hardship by creating
unenforceable right, e.g past promise by the Plaintiff unsupported by valuable
consideration (Woolston v. Baines (1876)W.N 74, nor a mere inability to pay
(Besant v. Townsend 22 LR Ir 389, nor allegation that the Plaintiff has given time for
payment which constitutes no defence unless these be consideration ( Hookham v.
Nayler (1905) 22 T.L.R 241. If the defence relied on is fraud the affidavit should state
the particulars of fraud ( Wallingford v. Mutual Society (1880) 5 App Cas 685. A mere
vague general allegation of fraud is useless. Similarly, if a legal objection is raised, the
facts and the point of law arising thereon must be clearly stated.
Indeed in all cases, sufficient facts and particulars must be given to show that there is a
triable issue- Order 14 r 3 (1).

But as provided in Order 14 r 4 - matter of hearsay is a admissible in the Defendant’s

affidavit (Harrison v. Bottenhem (1878) 26 WR 362, CA) provided that the sources
and grounds of information or brief are disclosed. Re: Young Manufacturing Co.
[1900] 2 Ch 753, CA. The Defendant’s affidavit is not conclusive and does not preclude
him from relying on defences not raised in it (Ray v. Newton [1913]1 KB 249 per
Hanilton L-J p 258).
A Defendant may attack the application by a good defence or on technical grounds; e.g.
by showing its non-compliance with Order 14 r 1- as being incompetent. A Defendant

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who wants to resist an application under Order 14 must make sure that in his affidavit
showing cause, he discloses what in law, is a defence.
Cases:
Afodofe v. Central Insurance Co . [1992]2 GLR 207 where the applicant had
obtained judgment against the Defendants, the tortfeasors and the insured of the
Respondent and brought action against the Respondent under section 10(1) of the Motor
Vehicles (Third Party Insurance) Act 1958 to enforce judgment and costs. The
Respondents had filed their defence denying liability and contending that the judgment
relied upon was a nullity in that neither the Defendants nor that counsel had been served
with hearing notices. However At the hearing of the application for summary judgement
the Respondent had not filed an affidavit in opposition.
Held, dismissing the application that Order 14 r 3(1) of the rules obliged a Defendant to
show cause against the granting of an application for summary judgment “by affidavit or
otherwise to the satisfaction of the Court”. The expression “otherwise” permitted the
Defendant to show cause by ways other than an affidavit in opposition.
Accordingly, before a Court could enter summary judgment for a Plaintiff, it should
satisfy itself that on the totality of the pleadings, the Defendant indeed had no defence
to the action. Accordingly, where the Defendant had already filed a defence, as in the
instant case, it should be scrutinised to determine whether it disclosed a defence in law.
Consequently, the failure of the respondents to file an affidavit in opposition did not bar
them from showing cause. Since their defence disclosed a triable issue, they would be
granted leave to defend the action. In Sheppards & Co. v. Wilkinson & Jarvis
(1889) 6 T.L.R 13, CA – referred to in the Afodefe case. It was said by the English
Court of Appeal that: “The summary jurisdiction conferred by this order must be used
with care. A Defendant ought not to be shut out from defending unless it was very clear
indeed that he had no case in the action under discussion”.
Afodefe case ---and that it would be a travesty of justice to refuse a Defendant leave to defend
the action where the defence discloses triable defence

Also referred to in the Afodofe case was the case of GHASSOUB v. DIZENGOFF (W.A)
[1962]2 GLR 133, 136, SC where Akufo- Addo JSC (as he then was) pointed out
that where a Defendant files his defence to a specially endorsed writ, the Plaintiff may
either still take out his summons or refrain from taking such summon and rather let the
suit take its normal course.

In JACOB v. BOOTHS DISTILLERY CO. (1901) 85 LT 262, it was held that

“Judgment should only be ordered under 14 where assuming all the facts in favour of the
Defendant, they do not amount to a defence in law. Where there is a triable issue,
though it may appear that the Defendant is not likely to succeed, the Defendant should

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not be shut out either way by giving judgment against him or by being put under terms
to .....(head notes)

In J.G. SARKIS v. TIMBER & TRANSPORT CO LTD [1975] 1 GLR 39, CA

Where the action had been brought against the Defendants as drawers of two cheques
which had been dishonoured; and the Plaintiff applied for summary judgment under 0.14
r. 1 and the Defendants alleged in their affidavit in opposition facts which revealed
a) Total absence or failure of consideration for the cheques and
b) The question of accounts to be gone into. But the trial judge entered judgment
for the Plaintiff
On appeal the Court of Appeal allowed the same and HELD that since the Defendants’
affidavit in opposition disclosed triable issued e.g. total failure of consideration and the
question of accounts, they were entitled ex debito justitiae to be granted leave to defend
the action on the merits- Jacobs v Booths supra applied.

WILSON v. SMITH (1980) GLR 152, CA,

In this case it was held that – it was the Defendant’s responsibility of satisfying the judge
that he had a good defence to the action on merits was not required to be discharged in
any particular way.
There was no necessary format provided and it seemed enough if the Defendant used a
procedurally recognised format such a statement of defence. Though Order 14 r 3(a) of
LN140 A required that the Defendant might show cause against such an application by
affidavit or a judge might allow the Defendant to be examined on oath, that provision
was not expressed in mandatory terms.
It did not require affidavit in opposition as the only legally permissible mode
of resisting summary judgment. The Defendant’s responsibility of satisfying
the judge that he had a good defence to the action on the merits was not
required to be discharged in any particular way.

It indicated some way whether some cause could be shown, but it would not be read as
exclusive when in the language of Order 14 r 1 of LN 140A the Defendant’s responsibility
was generally to satisfy the judge that he had a good defence. Where the defence was
not a sham one, a judge who was still not entirely satisfied could properly exercise his
discretion under Order 14 r 3(a) and allow the Defendant to be examined on oath. This
would be a better course than to disregard a defence on the file.

The argument that the defence which was in fact filed was not proper because leave to
do so was not obtained, was unacceptable.

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The granting of leave to defend an action was not a necessary precondition to filing a
defence to a specially indorsed writ. One must distinguish between leave to defence the
action which was required from leave to file a defence which was not a statutory
requirement.
Per Anin J.A “The Defendant may in the words of Order 14 r 1 (a) satisfy the judge that
he has a good defence to the action on the merits or may disclose such facts as may be
deemed sufficient .....The fact that a Defendant has delivered a defence may be
sufficient to enable him get leave to defend ........Unless a defence filed before the
Plaintiff’s application for summary judgment is held by the judge to be a mere sham, it
deserves to be considered on its merits and scrutinised for any triable issues it may
disclose”

In Duncan v. Kawoaco Ltd [1981] GLR 476 where the Plaintiff sued Defendants for
the amount of goods involved in goods supplied to the Defendants but cheque for the
amount was dishonoured. The Plaintiff brought application for summary judgment. The
Defendants in their affidavit denied that the Plaintiff supplied the goods to them against
the cheque issued and explained that the cheque was issued to the Plaintiff on the
express understanding that he was not to present the cheque since the Defendant had
no such amount to their credit with their bankers.
On the issue whether summary judgment under Order 14 was the appropriate procedure
to adopt.
Held dismissing the application that the principles the Courts have applied in dealing with
application for summary judgment was well known. The defence to be set up need only
to show that there was a triable issue and leave to defend ought then to be given unless
there is clearly no defence in law and there was no possibility of a real defence on the
question of fact. The Court would be entitled to look at the statement of defence filed
without leave. The fact that a bona fide defence has been delivered might very well be
sufficient to enable a Defendant to get leave to defend although if it could be shown that
the defence was a sham, leave to the Defendant might be refused and the Plaintiff would
be given summary judgment.
The Court referred to and applied the dictum of Bowen LJ. in Blaiberg v. Abrams
(1910) 77 L.TJ. 225, CA, ‘‘in deciding whether the defence set up is real defence or not,
all the circumstances must be looked at’’. When all the circumstances are looked at, what
emerges is that the Defendant has put forward a defence, which if it can be proved, the
action against him must fail. It may be that he will not be able to prove it at the trial,
that is not the question. The question is the outcome of the action on the assumption
that he is able to prove what he alleges.

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Since the action will end in his favour if he is able to substantiate his defence, I am firmly
of the view that summary judgment must be refused and the Defendants given
unconditional leave to defend.
That summary judgment was ill-suited to test the claim of the parties and leave to
defend, in order to canvass the fraud, was always given.

See Yirenkyi v. Tormekpey [1987-1988]1GLR 533, CA and Sadhwani v. Al-Hassan

[1999-2000]1GLR 19, 27-28.

d) Orders Available to the Court: Order 14 rr 5 & 6 –

Order 14 r 5 - Hearing of Application
Order 14 r 5 (1) – On the hearing of the application the Court may
a) give such judgment for the Plaintiff against the Defendant on the relevant claim or
part of a claim as may be just having regard to the nature of the remedy or relief sought,
unless the Defendant satisfies the Court, with respect to that claim or part of it, that
there is an issue or question in dispute which ought to be tried or that there ought for
some other reason to be a trial of that claim or part of it.

b) give the Defendant leave to defend the action with respect to the relevant claim or
part of it either unconditionally or on terms such as giving security or otherwise; or

c) Dismiss the application with costs to be paid forthwith by the Plaintiff, if it appears
that the case is not within this order or that the Plaintiff knew that the Defendant relied
on a contention which would entitle the Defendant to unconditional leave to defend the
action.
Order 14 r 5 (2)- The Court may, subject to any conditions that the justice of the case
requires, stay execution of a judgment given against a Defendant under this rule until
after the trial of any counterclaim raised by the Defendant.

So when the application (case comes off for hearing

1. The Court will consider the Plaintiff’s claim and affidavit vis-a-vis the
Defendant’s affidavit in opposition and or defence, if any – and if it is satisfied
that the application is within Order 14- and if the Defendant’s affidavit and or
defence do not satisfy the Court or do not have merit or do not entitle him to
defend the action or claim, the Court will enter judgment for the Plaintiff.
Thus in Anglo-Italian Bank v. Wells (1878) 38 LT 197 per Jessel MR @
pages 199 & 201 it was held that Order 14 is intended, to prevent a person
clearly entitled to money from being delayed where there is no fairly arguable
defence to be brought forward.

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 When a judge is satisfied not only that there is no defence but no fairly
arguable point to be argued on behalf of the Defendant it is the duty to give
judgment for the Plaintiff”. - So however difficult a point of law is, once it is
understood and the Court is satisfied that it is really unarguable, it will give
final judgment (per Lord Greene MR in Cow v. Casey [1949] IKB 474, 481).
Remember that the idea behind application under 0.14 is that if a Plaintiff
brings his action and it is apparent that the Defendant has no real defence, the
Court should not waste time to go through the trial but give judgment in order
to shorten proceedings and reduce costs.
Where Plaintiff has obtained summary judgment against the Defendant on his
claim the Defendant in his turn will be entitled to summary judgment in his
counterclaim.

2. The Court may give the Defendant leave to defend unconditionally or upon
terms such as giving security or otherwise. See Wilson v. Smith The power
to give summary judgment under Order 14 is “intended only to apply to cases
where there is no reasonable doubt that the Plaintiff is entitled to judgment,
and where therefore it is inexpedient to allow a Defendant to defend for mere
purposes of delay” -(Jones v. Stone [1894] AC 122)
As a general principle or rule, where a Defendant shows that he has a fair case for
defence, or a reasonable ground for setting up a defence, or even a fair probability that
he has a bona fide defence, he ought to have leave to defend ( Saw v. Hakim (1889) 5
TLR 72; Ray v. Barker (1879) 4 Ex D 279
Leave to defend must be given unless it is clear that there is no real substantial question
to be tried (Codd v. Delap (1905) 92 LT 510 HL
ii) That there is no dispute as to facts or law which raises a reasonable
doubt that the Plaintiff is entitled to judgment (Jones v. Stone)
Order 14 was therefore not intended to shut out a Defendant who could show that there
was a triable issue applicable to the claim as a whole from laying his defence before the
Court, or to make him liable in such a case to be put on terms of paying into Court as a
condition of leave to defend (See Jacobs v. Booths Distillery Co. (1901) 85 LTD 262
HL
Thus in an action on bills of exchange, where the Defendant set up the plea that they
were given as part of a series of stock Exchange transactions and asked for an account,
it was held to be a clear defence, and entitled the Defendant to unconditional leave to
defend (Carter v. Countess of Warwick (unrep) CA June 2, 1910.
“The summary jurisdiction conferred by this Order must be used with care. A Defendant
ought not to be shut out from defending unless it is very clear indeed that he has no

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case in the action under discussion” See Sheppards & Co v. Wilkinson (1889) 6TLR
13)
iii) Unless it is obvious that the allegation of fraud is frivolous and practically
moonshine Order 14 ought not to be applied. Where the Defendant sets
up a defence of fraud or that a judgment was obtained by fraud he is
entitled to be given leave to defend
iv) Summary judgment under Order 14 should not be granted when any
serious conflict as to matter of fact or any real difficulty as to matter of
law arises (Crawford v. Gilmore 30 LR Ir 238; Electric & General
Contract Corporation v. Thomson-Houston etc Co (1895) 10 TLR
103)
v) Where there is “a fair probability of a defence” unconditional leave to
defend ought to be given (WARD v. PLUMBLEY (1890) 6 TLR 198
vi) Leave to defend should be given where there is reasonable ground for an
inquiry or account in order to ascertain the amount recoverable
(Contract Discount Corp Ltd v. Furlong [1948] 1 All E.R 274,
Wallingford v. Mutual Society (1880)5 App case 685. But judgment
may be given for part of the total sum which may be found to be due on
an account, where it is clear that there is no defence as to that part, with
unconditional leave to defend as to the balance ( Lloyds Bank Ltd v.
Ellis–Fewster [1983] 1 WLR 559;[1983] 2 All ER424, CA.

3. The Court may also give conditional leave to defend – e.g order security for
cost or payment into Court of the whole or part of the sum claimed. This may
be granted in a situation where there is something suspicious in the Defendant
mode of presenting his case or the Court is left with doubt about the
Defendant’s good faith. See M.V. YORK MOTORS v. EDWARDS [1982]1 All
ER 1024 at page 1028, Fieldrank Ltd v. E. Stein [1961] 1 All ER 681.
i. Thus it is open to the Court, when it makes an order for an account to be
taken and for payment of the amount found to be due, to make an order
for interim payment of such amount as it thinks fit.
ii. A condition of paying some or all of the money or damages into Court, or
giving security, is imposed where there is good ground in the evidence for
believing that the defence set up is a sham defence or the judge “is
prepared very nearly to give judgment for the Plaintiff”. ( Wing v. Thurlow
(1893) 10 TLR 53, Lord Diplock in M.V Yorke Motors (a firm) v.
Edwards [1982] 1 All ERR 1024, 1028 Fieldrank Ltd v. E. Stein [1961] 3
All ER 681, CA – Conditional leave may be granted where there is

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 something suspicious in the Defendant‘s mode of presenting his case, or
the Court is left with a real doubt about the Defendant’s good faith.
iii. Leave to defend conditional on the full amount being paid into Court may
be ordered where the defence is “shadowy” per Lord Denning MR. In VAN
LYNN DEVELOPMENTS LTD v. PELIAS CONSTRUCTION CO. [1969]
1QB 607; [1968] 3 All E.R 824

Where there is little or no substance in it, the case is almost one in which summary
judgment should be ordered (IONIAN BANK LTD. v. COUVREUR [1969] 1 WLR 781;
[1969] 2 All ER 651, CA

When granting conditional leave to defend, the Court is required to consider all the
circumstances, which include the financial circumstances of the Defendant, and for
practical purposes should not impose a condition, e.g that would be tantamount to giving
judgment for the Plaintiff, notwithstanding the Court’s opinion that there was an issue or
question in dispute which ought to be tried;
But the fact that the Defendant does not have a house of his own, but is living with a
relative in the relative’s house, that he is unemployed and in receipt of supplementary
benefit or that he is legally aided with a nil contribution, does not mean that he cannot
find a sum by way of security as a condition of being granted leave to defend, since he
may be able to raise capital from friends, business associates or relatives ( M. V Yorke
Motors ( a firm) v. Edwards [1982] 1All ER 1024 HL

4. By Order 14 r 5 (2) the Court may, subject to the conditions that the justice of
the case requires, stay execution of a judgment given against a Defendant
under this rule until after the trial of any COUNTERCLAIM raised by the
Defendant.
So the Court has express power to stay execution on any judgment against a Defendant
pending the trial of any counterclaim made or raised by him in the action.

5. DIRECTIONS
Order 14 r 6 – provides that “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.
This rule makes it obligatory on the Court to give directions as to the further conduct of
the action whenever leave to defend is given or execution is stayed in r 5, whether
conditionally or unconditionally and whether as to the whole or part of the claim and
whether of the claim or the counterclaim.

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So the Court may given such directions as to the further conduct of the case or of the
parties and may order the action to be set down for trial

6. DISMISS THE APPLICATION – with costs to be paid forthwith –

Where the case was not within the order or it appears to the Court that the Plaintiff knew
or ought to have known that the Defendant relied on a defence or triable issue which
would entitle him to unconditional leave to defend.
So it will be dismissed if the Plaintiff knows that of arguable defence – i.e if he knows
that the Defendant is relying on a contention which would entitle him to unconditional
leave to defend, because he cannot properly invoke the jurisdiction of the Court under
Order 14 to given him summary judgment.
The cost is made to be paid forthwith. The dismissal will be ordered where
i) No statement of claim has been served
ii) No appearance has been entered
iii) The endorsement on the writ includes a claim or claims outside the
scope of this order e.g as under Order 14 r 12
iv) The affidavit in support of the application is defective e.g omitting to
state the deponent’s belief that there is no defence to the claim or
part to which the application relates. In all such cases the application
should be dismissed.
Where the application is dismissed, the parties are restored to the same position in the
action as they were before its issue.

If no other time is limited by the order, the Defendant must file his defence within 14
days after the order for leave to defend. See Order 11 r 2(2) – or within such period as
the Court may prescribe if the application was served on the Defendant before the
defence was filed.

Delivery up of Chattel – Order 14 r 7 –

Where the Court gives judgment under this Order for the delivery up of a specific chattel,
it shall have the same power to order the Defendant to deliver up the chattel without
giving the Defendant the option to retain it upon paying its assessed value, as if the
judgment had been given after trial.

So the Court has power as if it were judgment after trial, and had power without giving
the Defendant the option to retain the chattel upon paying its assessed value. This is a
deviation from the previous situation where the Defendant could be given the option of
delivering up the goods or paying their assed value.

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Relief against Forfeiture – Order 14 r 8
Where the Court gives judgment under this Order for possession of land on the ground
of forfeiture for non-payment of rent, a tenant shall have the same right to apply for
relief as if the judgment had been given after trial. This is because of the rule that re-
entry is regarded merely as security for the payment of rent. (See per Stirling J in
Howard v. Fanshawe [1895] 2ch 581 per Lord Greene M.R in Chandless –
Chandless v. Nicholson [1942] 2 KB 303. Save in exceptional circumstance, therefore,
the Court grants relief from forfeiture for non payment of rent where all the arrears of
rent and cost have been paid or tendered (Gill v. Lawis [1956] 2QB 1, CA
In Ghana, Section 30 of the Conveyancing Act, 1973 [NRC 175] provides that the tenant
has the right to apply for relief against forfeiture as if there has been a full trial – i.e
where the tenant has forfeited his lease through non-payment of rent.

Setting Aside Judgment – Under Order 14 r 9

A judgment given against a Defendant who does not appear at the hearing of an
application under this Order may be set aside or varied by the Court on such terms as it
considers just upon an application brought within fourteen days of the service on the
Defendant of notice of the judgment.
MORKOR v. KUMA (No. 1) [1999-2000] 1 GLR 721, SC
See Order 14 r 12 – Actions and claims excluded under Order 14. Summary judgment
shall not be given under this Order with respect to
(a) Probate, matrimonial or maritime proceedings.
(b) A claim or counterclaim for defamation, malicious prosecution, seduction
or breach of promise of marriage; or
(c) A claim or counterclaim based on an allegation of fraud
See also Order 14 rr 10 and 11

JOINDER OF CAUSES OF ACITON AND PARTIES

The principle is that wherever possible multiplicity of suits should be avoided. Remember
Order 4
The principle is that wherever possible multiplicity of suits should be avoided. For
litigation costs money, time and causes inconvenience
By Order 4 r 1(1) it is provided that subject to these rules, any person may begin and
carry on proceedings in person or by a lawyer.
Order 4 r 1 (2) 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.

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Order 4 r 1 (3) A next friend or guardian ad litem of a person under disability shall act by
a lawyer.

JOINDER OF CAUSES OF ACTION (Order 4 r 2)

Order 4 r 2 provides that Plaintiff may, without leave join in one action several causes of
action even if in the alternative, against the same Defendant, subject to the power of the
Court to order separate trials under rule 4.
So Order 4 r 2(1) states “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.
a) If the Plaintiff claims and the Defendant is alleged to be liable in respect of
all causes of action.
b) If the Plaintiff claims and the Defendant 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.
c) In any other case, with leave of the Court.
Order 4 r 2 (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.
So cases of action may be joined without leave in the circumstances as above but in any
other cases, leave may be sought. But where reliefs are sought in respect of several
distinct claims founded in distinct grounds, they must be stated separately and distinctly.
But the causes of action which are joined can be excluded or separated by the order of
the Court to be fined separately if the joinder may embarrass or delay the trial or is
otherwise inconvenient. So the Plaintiff must have, if necessary, to justify the joinder as
being reasonable and convenient as provided for in Order 4 r 4.
The meaning of “cause of action” Per Lord Esher MR, in READ v. BROWN (1888) 22
QBD 128, 131 – The words cause of an action “comprise every fact (though not every
piece of evidence) which it would be necessary for the Plaintiff to prove, if traversed, to
support his right to the judgment of the Court’’.

Lord Esher M.R. also states in Coburn v. Colledge [1897] IQB702, 707, CA that ’’if the
Plaintiff alleges the facts which if not traversed, would prima facie entitled him to
recover, then he makes out a cause of action’’.
The phrase comprises every fact which is material to be proved to enable the Plaintiff to
succeed (See Cooke v. Gill (1873) LR 8CP107, 108 ps Brett LJ
The words cause of action have been defined as meaning ‘‘simply a factual situation the
existence of which entitles one person to obtain from the Court a remedy against
another’’ per Diplock LJ in LETANG v. COOPER (1965) 1QB232, 242.

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In Bennet v. McIlwraith (1896) 2 QB464 established that a Plaintiff may join in one
action a claim against a principal on a contract made by his agent, and his alternative
claim against the alleged agent for contracting without authority.
The same person cannot be both Plaintiff and Defendant in the same action, even what
he is acting in different capacities.
See ELLIS v. KERR (1910) 1 Ch 529, 537

Thus he cannot be Defendant as administrator and also Plaintiff as Executor of B. A

beneficiary can be added to represent the state.
A Defendant cannot also next friend of a Plaintiff under disability or a Plaintiff, guardian
ad litem of the Defendant.
The name of a person who is a party in more than one co-party, must be inserted only
once in the record.
A note will be added that he sues or is sued both personally and ’’as trustee of the will
if.........’’ as the case may be.

b) APPLICATION FOR LEAVE

i) Where the circumstances of the joinder fall aside the circumstances set
out under Order 4 r 2 (i) (a) or (b) then the Plaintiff ought to apply to
the Court for leave to join the causes of action
ii) The application shall be made ex parte
iii) The application shall be made before the issue of the writ
iv) The application shall be supported by an affidavit stating the grounds
for the application
Unless the proposed joinder of causes of an action is glaringly improper or is obviously
embarrassing or likely to cause delay or inconvenience leave to join several causes of
action will generally be allowed, leave
If leave is granted, because it is brought ex parte the Defendant reserves right to object
on the grounds that the causes of action so joined cannot be conveniently tried together
or that the joinder may cause embarrassment or delay and the provision of order 4 r 4
may be involved.

What if the Plaintiff did not obtain leave?

In that case the Defendant would be entitled to enter Conditional Appearance and apply
to set the writ aside on account of the improper joinder of the causes of action. Setting
aside the writ could be brought under Order 9 r 8 –

Order 4 r 4 – where the Court has power to order separate trials – even where the
Plaintiff properly joined the causes of action in the same action, with or without leave of

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the Court, the Defendant apply to involve the power of the under rule 4 to make any one
or more of the Orders it has discretion to make under Order 4 r 4 (a) to (f)

Order 4 r 4 provides that: as follows:

If claim 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 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) Or the Plaintiff or Plaintiffs to elect which causes of action should be proceeded
with,
d) Order which Plaintiff shall remain as Plaintiffs or shall cease to be such Plaintiff
e) Order a Defendant to be stuck 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.

On Application for leave see:

Lloyd v. GW etc Dairies Co [1907] 2KB 727;
2. Re Derbon (1888) 58LT51

C) JOINDER OF PARTIES - Order 4 r 3

1. Right to commence action under Order 4 r 1
1. Where it is provided that ’’any person’’ may begin and carry on proceedings in
person or by a lawyer
2. But if that person is a body corporate it cannot begin an action except a lawyer
unless it is permitted to do so by an express provision of an enactment
3. It is also mandatory that a next friend or guardian ad litem of a person with
disability should act by a lawyer.
To avoid multiplicity of suits, for convenience and to avoid costs and save time, several
Plaintiffs may join in one action where they have the same interest in the same subject
matter and with common question of law and fact to be determined and when this may
take place where claim arise out of the transaction or series of transactions.

This has been provided for under Order 4 r 3

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 the Court,
where

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 a) If separate action 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.
Order 4 r 3 (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 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 sub rule, be made a Defendant.
Order 4 r 3 (3) where relief is claimed on 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 actions but where persons are jointly, but not severally liable under a
contract and relief is claimed against some but not all 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 on the action until the other persons who are liable are
added as Defendants.

2. Common Question and Same Transaction

Under Order 4 r 3, joinder of parties is allowed as of right, subject to the discretionary
power of the Court under 4 r 4 where conditions mentioned in order 4 r 3(1)(a)(b) exist.
These two conditions for which joinder of parties, whether as Plaintiff or as Defendants
are allowed as of right are:
i) That there are some common question of law or fact and;
ii) The right to relief must in each case be in respect of or arise out of the
same transaction or series of transaction.
Both conditions must exist and it is not enough for one condition to exist- STROUD v.
LAWSON [1898] 2 QB 54 - See also Aegis Shipping Ltd v. Volta Lines Ltd [1973]
1GLR 438.
The whole of transactions or series of transaction need not be implicated in the reliefs
sought by each party “where the investigations would to a great extent be identical” per
Fletcher Moulton LJ in Markt & Co v. Knight Steamship [1910] 2KB 104 and Stroud
v. Lawson
But the “relief” in respect of which the parties must be joined must be reliefs arising out
of the same set of circumstances or circumstances involving a common question or law
or fact – Thomas v. Moore [1918] 1 KB 555. So in so in Universities of Oxford and
Cambridge v. Gill [1899] 1 CH 55, the two universities joined in an action against a
firm of publishers to restrain Defendants from using certain titles to their publications

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(eg. Oxford and Cambridge edition) calculated to induce the belief that such publications
were those of the universities.
In DRINCQBIER v. WOOD [1899] 1CH 393, four Plaintiffs were joined in an action
against a firm of publishers to retrain Defendants from using certain titles to their
publications (e.g Oxford & Cambridge edition) calculated to induce the belief that such
publications were those of the universities.
In DRINCQBIER v. WOOD [1899]1 Ch 393 four Plaintiff were joined in an action
against the company alleging false statements in a prospectus and claiming damages
because the claims to the relief arose out of the same transaction.

In the case AEGIS SHIPPING LTD v. VOLTA LINES LTD [1973]1 GLR 438- where it
was held by Abban J. (as he then was) that both conditions must be satisfied before a
joinder can be made – and that before two or more persons could be joined in the same
action as Plaintiff or Defendant., it is was a prerequished that a) the right to a relief
alleged to exist in each Plaintiff should be in respect of or arise out of the same
transaction and b) there should be a common question of fact or law.

iii) Joinder of Joint Plaintiffs- Order 4 r 3 (2)

Where two or more persons are entitled to any relief jointly (eg where a contract is made
with several persons jointly) all such persons must join the action as Plaintiffs except
where any statute provides otherwise or the Court gives leave to the contrary. But if any
of them (would not) will not join the Plaintiff or will not consent to being joined as
Plaintiff, he must be made a Defendant unless the Court makes any order on an
application for leave under subrule (2) to the contrary. See Puley v. Robinson [1887]
20 QBD 155.
But this subrule does not apply to a probate action.
In Pilley v. Robinson [1887] 20 QBD 155- it is to the effect that the Defendant could
apply to compel the Plaintiff to join his co-contractor either as co-Plaintiff, if he consents,
or as Co-Defendant if he does not;
In Roche v. Sherrington [1982] 2 All ER 426 it was held that where two persons are
prima facie jointly entitled with the Plaintiff to any relief to which he might be entitled in
respect of loans alleged to have been made to the Defendant, they have to be made
parties to the action in the absence of sufficient evidence justifying the giving of leave to
the contrary, and accordingly the action will be stayed until they are so joined or until
further order.

iv) Joinder of Joint Defendants - Order 4 r 3(3)

Where the liability of two or more persons is joint and not several the Plaintiff may
choose which of them he wishes to sue and he need not join, nor can he be compelled to

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join the other persons also liable to him, but if the joint liability arises under a contract,
the Defendant may apply to the Court to stay proceedings until the other persons are
added as Defendants.

v) ORDERING SEPARATE TRIALS (Order 4 r 4) read – considered-

Gives discretionary powers to the Court. It entitles the Court to exercise supervisory
control over both the joinder of parties and joinder of causes of action and applies where
either of them may “embarrass or delay the trial or is otherwise inconvenient”.

The Court is given the initiative but it would generally act upon the application of a party.
In Thomas v. Moore [1918] K555,569 CA, Bankes LJ stated that the application should
be made promptly, as soon as it appears that the joinder might be embarrassing, etc;
but it may be made at the trial. In the same case, Pickard LJ said “joinder of parties and
joinder of causes of action are discretionary in the sense that if they are joined there is
no absolute right to have them struck out, but it is discretionary in the Court to do so if it
thinks it right”
The party if challenged, must justify the joinder and no extra burden should be imposed
on the Defendant through the party needlessly enlarging the area of dispute (per Collins
MR in Soachaur Corp. v. Wild [1903] 1 CH 410,422, where the party was limited in the
first instance to 3 out of 23 causes of action for infringement of patent.
The Court has very wide powers to protect a Defendant against being prejudiced by the
joinder of parties or of causes of action which cannot conveniently be tried together. The
claim of several parties may arise out of the same series of transactions and there may
be questions of fact or law common to them all, yet the common factor may be
completely put in the background by the issues peculiar to the separate parties,
moreover at the date of the issue of the writ, a common question of law or fact may
arise which may disappear as soon as the Defendant is served; e.g. several persons
injured in a railway accident joined in one action, where at the time of the issues of the
writ liability had not been admitted; if the Defendant serves a defence admitting liability,
the continued joinder of several parties would probably be found inconvenient and
embarrassing. Each case as it arises must be dealt with upon its special facts. (See
Thomas v. Moore [1918] 1 KB 555.

NOTE: THAT Order 33 r 4 (2) –

Where the Court has, in addition, powers to order different question or resins to be tried
at different places or by different modes of trial and one or more questions or issues may
be ordered to be tried before the others.

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The Court also has powers under causes or matters pending in the same Court to be
consolidated or such terms as it considers just, or order them to be tried at the same
time or one immediately after another, or may order any of them to be stayed until the
determination of any other of them, where it appears to the Court;
a) that some common questions of law or fact arises in both or all of
them, or
b) that the rights to relief claimed are in respect of or arise out of the
same transaction or series of transactions, or
c) that for some other reasons it is describable to make an order under
this rule.

NOTE also that Order 4 r 3 deals with joinder of parties when the action is being
instituted.
But there may be situation where there may be the need to join parties after the action
has been instituted or commenced. This situation has been provided for under Order 4
rule 5 (2).

MISJOINDER & NON-JOINDER OF PARTIES

Order 4 rule 5 deals with Misjoinder and non-joinder of parties.
Misjoinder is joining the wrong person or a person whose presence in the proceedings is
improper or unnecessary.
Non-joinder is omitting to join one who should be joined or whose presence is necessary
or essential.
The rule of that misjoinder and or non-joinder by themselves do not defeat an action,
but that the Court has power to join those who were not joined but should have been
joined and to strike out the names of those who should not have been joined.
This rule stands in relation to parties as Order 16 (amendment) stands in relation to
amendment of pleadings and other documents and as Order 81 stands in relation to non-
compliance. These provisions are all designed to save rather than to destroy, to cure that
which is capable of cure (See per Holroyd Pearce L. J. in Pontin v. Wood [1962] 1 Q B
594, 609.
Order 4 r 5 (1) states
“No proceedings shall be defeated by reason of misjoinder or non-joinder of any party,
and the Court may in any proceeding determine the issue or questions in dispute so far
as they affect the rights and interests of the parties who are parties to the proceedings”

Order 4 r 5(2) “At any stage of the proceedings the Court may on such terms as it thinks
just either of its own motion or application.

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 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 matter in dispute in the
proceedings are effectively and completely determined and adjudicated upon
to be added as a party”

This rule prevents an action from being defeated by the misjoinder or non-joinder of
parties, and it provides for any necessary amendment in respect of the parties to an
action being made or any stage of the proceedings ( Van Gelder v. Sowerby Bridge
Society (1880) 44 chD 374 pp 391 and 394 CA). Under the Old English rule of practice
an objection could be raised as to misjoinder of parties for which the Plaintiff could be
non-suited. It was a subject of a plea of abatement a technical objection irrespective of
the merits of the case.
The purpose of Order 4 r 5 (1) is to prevent an action from being defeated simply by the
mere joinder of an unnecessary party.

However, the rule does not alter the legal principles with regard to parties to action, and
in no way qualified the necessity for having before the Court the proper parties
necessary for determining the point at issue ( Kendall v. Hamilton; Attorney General
v. Ponty Pridd Waterworks Co. [1908] 1 Ch 288.
Generally speaking, the Court will make all such changes in respect of parties as may be
necessary to enable an effectual adjudication to be made concerning all matters in
dispute. So the test for joining is that anyone whose presence before the Court is
necessary or to ensure that the dispute is effectively and completely determined and
adjudicated upon is added as a party of course the main reason is to avoid multiplicity of
suits.
MARSDEN (1891 – 1894) All ER 458; [1892] 1 Ch 487, per Lindley LJ at p 490 it was
held that “If the Court cannot decided the question without the presence of the other
parties, the course is not to be defeated but the parties are to be added so as to put the
proper parties before the Court”

In PIUS v. MENSAH & ANOR [1965] GLR 242 where a co-Defendant was joined as Co-
Defendant for the Defendant.
On appeal it was argued and contended that the joinder of the Co-Defendant was wrong
and that the irregularity vitiated the trial.
HELD: The joinder of the Co-Defendant was set aside and found to be wrong in law and
the Co-Defendant was struck out of the action with cost.

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Nevertheless, the Court held that the misjoinder did not vitiate the whole proceedings
and the appeal failed against the Defendant.

So the principle is that mere misjoinder or non-joinder which is capable of being

remedied will not defeat a claim and is no defence ( Abonloft v. Oppenhemmer [1882]
3 OWR 430).

In OMANE & ANOR v. POKU & ANOR [1972] 1 GLR 295 – In that case B, a national
of Ivory Coast who had lived in Ghana for over 60 years died intestate leaving properties
including two cocoa farms. O also an Ivorian national claimed that he was related to B
and that during the lifetime of B, both of them became part of the family of the Bretuo
clan at Kona, Ashanti. He said he was elected by the said family as successor to the
deceased. O instituted the proceedings against P for a declaration of title to the two
farms which P alleged were gifts to him by B shortly before his death, and for which he
gave ‘aseda’ in the presence of witnesses. P also counterclaimed for a declaration of title
to the farms.
In the course of the proceedings A, the son of B by a woman B married Ashanti, applied
to be join as Co-Defendant without objection from either side.
In his affidavit in............................................
The rule in joinder or amendment does not apply to substitution or addition where the
person originally made a party was dead at the date of the writ (See Tetlow v. Orela
Ltd. [1920] 2 Ch 24) or was non-existent (Lazard Brothers & Co. v. Midland Bank
Ltd. [1933] AC 289 per Lord Wright p 296).

An action begun in the name of a Plaintiff which did not exist as a legal entity at the time
the writ was issued, the proceedings will be a nullity and the Court has no jurisdiction to
join a valid party for such proceedings ( Fielding v. Righsy [1993] 1 LL ER 294, 298
CA).

Thus in BENYARKO v. MENSAH [1992] 2 GLR 404 where one A described himself as a
Pastor of the Church of Christ Mission brought an action against the Defendants “for and
on behalf of Church of Christ Mission”.
He subsequently brought a motion seeking leave to amend the title of the suit to read
that he brought the action “for and on behalf of the trustees of the church of Christ” and
to amend a paragraph of the statement of claim to read “the Plaintiff is a Pastor of
Church of Christ and representative of the Trustees of the Church of Christ and brings
this action on their behalf”. At the hearing of the application, Counsel for the Defendant
opposed the application on the grounds inter alia that the actual Plaintiff which sued per
A as its attorney was the Church of Christ Mission which did not exist, and even if it
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existed it was not registered under the Trustees Incorporation Act, 1962 (Act 106).
Counsel for the Defendant argued further that the amendment, if granted would mean
that A was suing on behalf of a different group which was registered under Act 106 and
had legal personality. Counsel for the Plaintiff did not contest the claim that the Church
of Christ did not exist and that even if it existed it was not registered but rather argued
that the addition of the word “mission” in the title of the original writ was through sheer
inadvertence and prayed that the amendment be permitted for the title to reflect the
identity of the party actually suing.

HELD: that the basic injunction of Order 15 r 6 of the High Court (Civil procedure)
(Amendment) (Nos) Rule 1977 (L. I. 1129) which was the proper rule to look at when an
application was being made to substitute a party or add another to a suit was that the
Court could not create a new party.
The underlying assumption was that there must be a party or parties to the action who
existed either as natural or juristic person or persons before a Court could invoke the
powers it had under Order 15 r 6(2) of L. I. 1129 to effect any necessary amendment in
respect of the parties at any stage of the proceedings.
Hence where the Plaintiff who initiated the proceedings did not exist either as a natural
or juristic person, the Court could not permit an amendment that sought to substitute a
new party for the non-existent Plaintiff. Accordingly, since in the instant case, the Church
of Christ Mission in whose name the Plaintiff originally, sued did not exist either as a
natural person or juristic person, it could not be said that the writ was issued in the
name of the wrong person as to justify the Court in exercising the discretion it had under
Order 15 r 6 of L. I. 1129 to effect the necessary amendment in respect of the parties.
To permit the amendment sought could clearly have been to create new Plaintiff.
So the Court held that the Court cannot create a new party. That the underlying
assumption is that there must be a party or parties to the action who existed either a
natural or juristic person before a Court could invoke the powers to make any necessary
amendments ----- hence where the Plaintiff who is send to have initiated proceedings did
not exist either as a natural or juristic person the Court could not permit an amendment
that sought to substitute a new party for the non-existent Plaintiff.

In the cases of Tetlow v. Orela Ltd. [1920] 2 Ch 24, 26 per Russel J, Lord Wright in
LAZARD BROS. & CO. v. MIDLAND BANK LTD. [1933] AC 289, 296 -297, GIHOC v.
VICENTA PUBLICATIONS [1971] 2 GLR 24, CA, WADAD HADDAD FISHERIES v.
S. I. C. [1973], GLR 50 and INTERIM EXECUTIVE COUNCIL v. DIVINE CHURCH
OF GHANA [1984 – 86] 1 GLR 529 CA were applied.
It also referred to the case of KIMON COMPANIA NAVIERA v. VOLTA LINES LTD.
(Consolidated) [1973] 1 GLR 140 which was applied – to the effect that a person suing

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by a lawful attorney could only sue in the name of the principal and not in his own name.
If therefore, the principal had no legal personality, as in the instant case, he could not
acquired one by suing through an attorney.

In Tetlow v. Orela Ltd. [1920] 2 Ch D 24

In that case a writ was issued in the name of Joseph Tetlow as Plaintiff to restrain the
Defendant from infringing the Plaintiff’s trademark by passing off their toilet product as
the Plaintiff’s. The case pursued its normal course till later when it was discovered that
the Plaintiff had been dead nearly eight years at the date of the writ. By his will, the
business was devised to his wife Ida J Tetlow who was the executrix and had been
carrying on the business. The writ was apparently issued in the mistaken belief that
Joseph Tetlow was alive. The widow applied to be substituted ass the Plaintiff.

And Russel held and said in page 26 that “in my opinion that rule means that where an
action has been commenced between two living parties by a living Plaintiff, and the living
Plaintiff afterwards turns out to be the wrong person, an application may be made to the
Court and the Court can substitute another person, an application may be made to the
Court and the Court can substitute another person as Co-Plaintiff as the case may be.
But it does not justify the Court creating a Plaintiff in an action for the first time”.

Rational behind the Rule i.e. Order 4 r 5

1. Avoid multiplicity of suit. As noted earlier the purpose of joinder is to avoid
multiplicity of suits. It was thus held in BYRNE v. BROWN (1889) 22 QBD 657
per Esher MR at pp 666-667 that “the power that this rule gives to the Court to
strike out, add or substitute parties is to ensure that all parties to the dispute
relating to the subject matter are brought before the Court at the same time, in
order that the dispute may be determined without delay, inconvenience and the
expense of separate action and trials.

In MONTGOMERY v. FOY, MORGAN & CO. [1895] 2 QB 321, 324 Lord Esher looked
at the question of multiplicity of suits and said “I can find no case which decides that we
cannot construe the rule as enabling the Court under such circumstances to effectuate
what was one of the great objects of the judicature Acts; namely, that where there is
one subject matter out of which several dispute arise, all parties may be brought before
the Court and all these dispute may be determined at the same time without the delay
and expense of several actions and trials

In Bentley Motors v. Lagonda Ltd. [1945] 2 All ER 211, 213, Evershed stated that “if
the rule is inapplicable to such cases, the party sought to be joined must proceed by

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separate actions to enforce his claims and in that separate action, obtain sending its
determination, a suspension of the original action. In my judgment one of the main
purposes of the rule is to render unnecessary such multiplicities of proceedings”.

In USSHER & ORS v. DARKO [1977] 1 GLR 476, CA per Apaloo J. A., (as he then was)
Opp 485 – 486 indicating that “the object which the rules as to joinder were designed to
achieve, namely, the avoidance of multiplicity of actions on the same subject matter “at
page 485 relying on the Montgonery case.
In the Ussher & Ors v. Darko it was held by the Court of Appeal that the jurisdiction of
a Court to join a party to an action to avoid multiplicity of suits under Order 16 r 11 of LN
140 A, might be exercised at any stage of the proceedings, so long as anything remained
to be done in the action.
It could be exercised even after the admission of liabilities by one of the two possible
Defendants and even after judgment, though all that remained was the assessment of
damages. Whether the application should be acceded or denied, was a matter for the
exercise of the trial judge’s discretion and save that such discretion should be exercised
judicially and in a manner conformable with justice, no fixed rules existed as to when or
how it should be exercised. Such exercise must depend on the facts and special
circumstances of each case. On the facts of the instant case the refusal to join E to the
action was wrong and the reasons giving for the refusal were supportable.

Bentley Motors was also relied upon.

In Coleman v. Shang [1959] GLR 390,CA per Van Lare Ag CJ, it was held at page 398
that ”the purpose of the rule (order 16 r 11) is to secure the determination of all disputes
relating to the same subject matter without delay and without the expense of separate
actions”. It quoted Esher MR in the Montgomery case. It also quoted Bentley Motors case
to show that the main objects of Order 16 r 11 is to enable the Court “effectually and
completely to adjudicate upon and settle all questions involved”, so as to render
unnecessary multiplicity of proceedings. See also Denning MR in Gurtner v Circuit [1968]
2 QB 567

However in Bonsu and Anor. v. Bonsu [1971] 2 GLR 242 per Taylor J (as he then
was), at pp259 -260
HELD that in an application for joinder the mere allegation that the Respondent would be
embarrassed by the joinder without specifying the nature of the embarrassment cannot
per se operate to disallow joinder. In this case since the nature of the embarrassment
was not indicated the submission relating to embarrassment was misconceived.

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 2. That A Court has no jurisdiction to order joinder if the sole and only reason for
doing so was to enable an intervener to prosecute a counterclaim was not one of
the prescribed purpose in Order 16 rule 11. On the other hand, a Court would
grant a joinder even though the sole and only purpose of doing so would be to
enable an intervener to prosecute a counterclaim if such joinder would enable the
Court effectually and completely to adjudicate and settle all questions involved in
the action.

3. The three classes of cases which counsel for the respondent argued that any
application for joinder must fall within were not exhaustive, but ere rather
instances and illustrative of cases in which joinder would as a matter of discretion,
be allowed. The test for joinder would in each case be whether the order being
sought for by the Plaintiff would directly affect the intervener in the enjoyment of
his legal right – Dicta of Devlin (as he then was) in AMON v. RAPHAEL TUCK &
SONS LTD. [1956] 1 All ER 273, 275 APPLIED.

4. The proportion that the jurisdiction of the Court to order joinder was based on
duty to do justice would be misleading if what was meant by justice was not
properly defined because the true legal notion of justice have been circumscribed
by the demands of the law in that the Court administer justice according to three
and only three yardsticks: statute, case law and well defined rules of practice. The
power of joinder must be in respect of parties who ought to have been joined or
whose presence before the Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all questions involved in
the cause or matters.

5. To grant an order of joinder was discretionally but the exercise of such discretion
is governed by the principle that the Court has jurisdiction to join a person whose
presence is not necessary for that purpose. On the evidence the presence of the
company before the Court was not necessary for the reasons prescribed in O. 16 r
11 – Dicta of Lindley LJ in Moser v. Marden and of Devlin J (as he then was) in
Amon v. Raphael Tuck & Sons Ltd. and of Ollennu J (as he then was) in
Appenteng v. Bank of West Africa [1961] GLR 81, 82 applied.

FACTS: In the Bonsu v. Bonsu case the Plaintiff the Deputy M. D. The Defendants (1 st
Defendant being M. D.) for libel by which he claimed that they had published two letters
stating that he was not a suitable person to hold the post of deputy M. D. In that as a
director he had dishonestly and fraudulently conducted the affairs of the company. The
Defendants counterclaimed against the Plaintiff for special and general damages in
respect of alleged breach of contract by the Plaintiff in connection with work entrusted to
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him by the Company. the Plaintiff then brought an application to join the company on the
ground that it was the person to be directly affected by the counterclaim and that in the
interest of justice it would be better to avoid multiplicity of actions and also that the
presence of the company was necessary to enable the Court to effectually and
completely to adjudicate upon and settle all questions involved in the action.

In Coleman v. Shang, at p 398 Van Lare JA delivering the judgment of the Court of
Appeal had stated that “the purpose of Order 16 r 11 is to secure the determination of all
disputes relating to the same subject matter without delay and without expenses of
separate actions”

This was criticised by Taylor in Bonsu v. Bonsu when he said the dictum of Van Lare
was “too wide”.

He rather adopted of Devlin J (as he then was) at p 285 in AMON v. RAPHAEL TUCK
& SONS 196 and quoted the same thus “I do not, with difference to those who have
thought otherwise, agree that the main object of the rule is to prevent multiplicity of
actions though it may incidentally have that effect. The Court has other ways of doing
that which are amply sufficient for the purpose – by ordering consolidation, or the
bringing of actions on together, or third party proceedings, and so an. The primary
object of the rule, i believe is to replace as to “abate” an action in which all the proper
parties were not before the Court.

The rule is more flexible than the plea but its object is fraudulently the same, it is not to
marry a future action to an existing one, but to ensure that all the necessary parties to
the existing one using “necessary” in the broad sense of being necessary to effectual and
complete adjudication in the existing action are before the Court. It does incidentally
keep down Multiplicity of actions, because if the necessary parties cannot get before the
Court in an existing action, they will naturally try to do so in another action but that
appears to me to be a desirable consequence of the rule rather than its main object”.

vii) Duty to do justice

Another rational is said to be to do justice or the duty of the Court to do justice.

In Ohene v. Principal Secretary of Ministry of Finance [1971] 1 GLR 102, - where

the Plaintiff sued the Principal Secretary of the Ministry Finance instead of the Attorney
General.

It was held that under Order 16 r 11 the Attorney General could be substituted by the
Court as the Defendant and the name of the Principal Secretary, Ministry of Finance was
struck out.

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This was resorted to by Hayfron-Benjamin J who in page 104 stated that the Court had
“the power either upon or without the application of either party to substitute a party as
Plaintiff or Defendant on such terms as may seem just”

In the Amon v. Raphael Tuck case Devlin J had been of the view that the rule did not
give such wide powers to the Court to join any party just because it was convenient and
just to do so. But he adopted by Taylor J in Bonsu v. Bonsu.

Accordingly in page 260 of Bonsu v. Bonsu Taylor J considered the case of Ohene v.
Principal Secretary, and the dictum of Hayfron-Benjamin J and said that the notion of
justice was not necessary for the decision and fact that the power of Court is more
elaborate than that and that it was not just any party who could be joined but joinder
was in respect of parties “who ought to be been joined or whose presence before the
Court may be necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all questions involved in the cause or matter”

To Taylor J “there is always a real danger when vague ideas of justice undefined by
statute or cure all magic ward – without appreciating the actual, position, namely, that
the true legal notions of justice are circumscribed by the demands of the law and that in
this Court we administer justice according to three and only three yardsticks: statute,
case law or our well defined practice”

Denning MR in GURTNER v. CIRCUIT [1968] 2 QB 567 disagrees with Devlin J in the

Amon case and stated his preference for a wider interpretation of the rule as stated by
Lord Esher in Bryne v. Brown – to the effect that the main reason for a joinder was to
prevent multiplicity of suits.

However, in Vandervell Trastees v. White [1971] AC 912, Viscount Dilhorne at page

935 in delivering the judgment of the House of Lords referred to the Amon case and
criticised the view of Denning MR with regard to the alleged wider construction and
stated, “Whether this interpretation is wider than that stated by Devlin J is not necessary
to consider. My difficulty in accepting Denning’s under interpretation is that it appears to
me to be wholly unrelated to the wording of the rule. I cannot construe the language of
the rule as meaning that a party can be added whether it is just or convenient to do so.
That could have been simply stated if the rule was intended to mean that”.

viii) The test – under Order 4 r 5 (2) (b)

It appears that the proper test is as stated in Amon v. Raphael Tuck as follows: “the
beginning and end of the matter is that the Court has jurisdiction to join a person whose
presence is necessary for the prescribed purpose and has no jurisdiction under the rule
to join a person whose presence is not necessary for that purpose”.

See also Bonsu v. Bonsu;

Appenteng & Ors v. Bank of West Africa & Ors [1961] GLR 81, per Ollennu J (as he
then was).
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In that case the Plaintiff sued the 3 Defendants jointly and severally for £G 147,000
damages, general and special for negligence and for breach of trust. The 2 nd Defendant
applied for the Court under Order 16 r 11 of the Supreme Court (Civil procedure) Rules
1954 for an order that one John Haymes be joined to the suit as 4 th Defendant on the
ground that at all material times to the case he was the manager of the Bank of West
Africa Ltd., the first Defendant therein and that his presence was necessary to enable the
Court effectually and completely to adjudicate upon and settle all the questions ....... in
the case. But the 1st Defendants and John Haymes opposed the application.

HELD: that since the Plaintiffs make no claim directly or inferentially against John
Haymes, the party sought to be joined and since Plaintiffs’ claim as it stands can succeed
without Haymes being joined, the 2nd Defendant application must be refused.

Obiter: If the 2nd Defendant considers that he is entitled to an indemnity from John
Haymes, or any other person his proper course is by third party proceedings

Ollennu J as he then was said at page 82: “In an application for joinder, the most
important question which the Court has to answer is would the joinder of the party
enable the Court effectually and completely to adjudicate upon and settle all questions
involve in the cause? If it would, the application should be refused.

“To arrive at the correct answer in a case like this where the application is by the
Defendant and not by the Plaintiff, the Court must be guided by certain considerations
and principles. The Court must first of all look at the Plaintiff writ of summons, his
pleadings and the reliefs he seeks, if the Plaintiff makes no claim either directly or
inferentially against the party sought to be joined or if the claim could succeed without
the party sought to be joined being made a party, the application must be refused. In
other words, would an order for which the Plaintiff is asking in the action directly affect
the party sought to be joined, not in his commercial interest but un enjoyment of his
legal right? See Amon v. Raphael Tuck & Sons. If an order on favour of the Plaintiff
on his claims will not directly affect the party whom a Defendant seeks to have joined,
the application will be refused. In such a case if a Defendant requires indemnity against
another party, his proper procedure is to have a third party notice served”

In the Appenteng v. B. W. A. Case Ollennu referred to Woods v. Martins Bank Ltd.

& Anor [1959] 1 QB 55 which counsel for the applicant had cited. In that case a claim
against a bank and the manager of the bank for damages for negligence, where it was
held that the Plaintiff was entitled to recover against both the bank and the manager –
Counsel for the applicant contended that O. 16 r 11 and the case of Woods v. Martins
Bank Ltd. & Anor entitled the person sought to be joined to be a party whose presence
before the Court was necessary as a person who could be liable jointly with the first
Defendant bank, his employers – But Ollennu J (as he then was) believed and held that
“All that the case of Woods v. Martins Bank Ltd. decides was that a bank manager
who gives negligent advise to the bank’s customer, causing the customer to suffer
damage, may be liable jointly with his employers in an action for damages for

193
negligence. In my opinion that case is not a case of joinder and is not authority which
can be of assistance to the Court on a matter of this nature”

See Aegis Shipping v. Volta Lines [1973] 1GLR 438 per Abban J.
Asare v. Kajima – Shimuru
Montero & Anor v. Redco Ltd. & Anor [1984 – 86] 1 GLR 710 Abban JA cited the
case of Aegis with approval and emphasised that the test was whether the presence of
the person sought to be joined was necessary in order to enable the Court to dispose of
all matter in controversy effectually and completely you cannot force anyone to sue.

Zakari v. Pan American Airways Inc & Anor [1982 – 83 GLR 975 – in an application
for joinder, the most important question was whether the joinder of a party would enable
the Court effectually and completely to adjudicate upon and settle all questions involved
in the case. If it would, then the application would be granted but not otherwise.

Order 4 r 5 (3) – should be noted

No person shall be added as a Plaintiff without that person’s consent, signified in writing
or in such other manners as may be authorised by the Court.

Application – Order 4 r 5 (4)

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

By Order 4 r 5 (2) the order may be made at any stage of the proceedings either suo
motu or on application.
The rule does not say that the application should be ex parte. So by Order 19 r 3, it
should be on notice.
See the case of Tildesley v. Harper [1876] 3 Ch D277 to the effect that the application
should be served on all parties to the action.

In GYEBI & ANOR v. ADUHENE [1981] GhR 777.

The Plaintiff sued the Defendants for breach of a tenancy agreement by sub-leasing
portions of the land to 23 persons and by Ex parte application sought to join the 23.
The Defendants applied for an order to vacate the joinder for being brought ex parte and
that it would unduly delay the trial.
Held that Order 15 r 10 of LN 140 A as amended by LI 1129 permitted applications ex
parte only in cases where a party in possession of land which was the subject matter of
the suit, applied to be joined as a Defendant in order to protect his interest – as an
exception - But the Plaintiff desired to seek an order of the Court to join any party as a
Defendant, it was imperative that the application be made on notice to the Defendants.
That was especially so where (as in the instant case) the trial had advanced to a far
extent that the joinder might inure to embarrass the Defendant or delay the trial to the
detriment of the Defendant in terms of expenditure of time, energy and money.
Nevertheless, in the instant case, the Court would exercise the discretion given under
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Order 15 r 15 (1) to treat the ex parte application as valid and to allow the Plaintiff to
join as many Defendants as he might wish to sue. The Plaintiff would however, pursue
his case against the original Defendants separate from his case against the new
Defendants because not only had considerable time, energy and money been consumed
by the parties, but also the issues involved in the case were such that the joinder of the
23 persons would embarrass the Defendants. If the case against all the Defendants were
tried together, the original Defendants would not benefit adequately from the right to
cross-examine the other Defendants.

See Ghana Co-operative Bank v. Mankoadze Fisheries and Anor [1992] GhR 130,
per Asare Korang J (as he then was) At any stage of the proceedings – and Anor [ 19]

The application may be made at any stage at the trial ( Showell v. Winkup (1889) 60
LT 389, IVES v. BROWN [1919] Ch 314-

The Application could be made after an admission of liability by one of two possible
Defendants ( The W.H. Randall [1928] P41, or even after judgment so long as anything
remains to be done in the action, though it be only an assessment of damages. ( The
Duke of Buccleuch (1892) P 201
Ghana Co-operative Bank v. Mankoadze [1992]1 GhR 130, 132 per Asare Korang J
(as he then was) – held that ’’It seems to me that having regard to the only exhibit relied
on by the Plaintiff to buttress their claim, the joint and several liability of the Defendants
to satisfy the sum of money said to be owed the Plaintiffs is a doubtful proposition. I
have not been satisfied on the Plaintiffs’ affidavit that the second Defendant is in any
manner connected with this action or that he has at any time been indebted to the
Plaintiffs. The Court in such a situation, is empowered to strike out the name of the
Defendant who has been wrongly joined under Order 16 r 11 of LN 140 A which reads in
similar terms as the present Order 4 r 5(1) and (2)

Order 32 r 1, 8 and 9
Application for joinder may be made as one of the orders the Court can make under
Order 32 r 1 application for direction – and supported by an affidavit filed without leave
of the Court under Order 32 r 8(1) and (2)

When an application is made after Application for Direction, Order 32 r q (2) requires
that it is made under the application for direction, with two clear days notice to the other
party.

a) Pursuant Amendment
Order 4 r 5 (5) when an order is made under sub rule (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 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 amendment is
made. E.g. Writ amended and endorsed – as for: ’’Amended writ or summons pursuant

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to the order of the honourable Court dated 1 st April 2010 joining the co- Plaintiff to the
action’’

That failure to amend within the time limited for that purpose results, would render the
same ip so facto void – Ayiwah & Anor v. Badu & Ors [1963] 1 Gh R 86, Sc
See also Order 16 rule 8 – ’’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’’

Order 80 r 4(3) But this must be at with Order 80 r 4(3) in mind. By that rule, the period
within which a person is required by these rules, or by any order or direction, to serve,
file or amend a pleading or other document may be extended by consent ( given in
writing) without any order of the Court being made for that purpose.

i) Noting in Cause Book: Order 4 r 5(6)

The rule requires that ’’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

By Order 82 r 3 the Cause Book is define to mean ’’the book kept in the Registry in which
the number and other details relating to any proceedings are entered’’

j) Service of Amended Writ

Order 4 r 5(6) (a) requires that the amended writ shall be served on the party ordered to
be made a Defendant – i.e. as if it were an original writ i.e. personally or where service is
impracticable by .......... service
Remember the provision of Order 11 r 1 and Order 2 r 6
Every writ to be filed together with a statement of claim (Order 2 r 6)
Writ of Summons shall be served with statement of claim at the same time. And the
Plaintiff who fail, to serve a statement of claim on a Defendant will entitle the Defendant
to apply for the dismissal of the action.

k) Entry of Appearance – required by Order 4 r 5 (6) (b) – the Defendant so

served with the Amended writ after having being joined shall enter appearance.
Obviously all rules of appearance will apply to him (it)
By Order 4 r 5 (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.

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It does not deal with the fact that the person shall not become a Defendant until the writ
has been served on him. The Plaintiff joined shall also not become a party until the writ
is amended in relation to the person.

In practice all pleadings so far would be served on the new party.

The notional meaning of Order 4 r 5 (7) is that a person added as a Defendant does not
become a party until the writ has been served on him.
There again, there is disagreement as to the interpretation. In Seabridge v. H. Cox &
Sons (Plant Hire) Ltd [1968] 2 QB 46, CA coram Denning, Diplock & Salmon LLJS took
the view contrary to this interpretation. It was an action brought by the Plaintiff in an
action for damages for personal injuries and sought to add an additional Defendant and
attained leave according, It was held that it only ’’means that he is not affected by
notices and he cannot enter appearance until he is served’’ But this was overruled by
Kelteman v. Hansel Properties.
In Kelteman v. Hansel Properties Ltd [1987] 1 AC 189 Lord Keith of Kinkal stated
that ’’that was a very powerful Court but, with the greatest of respect to it, I have been
unable to accept the reasoning of Lord Denning M.R as convincing. In my opinion the
plain language of the rule must prevail and the Seabridge case should be overruled as
wrongly decided’’

He stated further ’’ A cause of action is necessarily a cause of action against a particular

Defendant, and bringing of the action which is referred to must be bringing of the action
against the Defendant in respect of that cause of action........ In my opinion there are no
good grounds in principle or in reason for the view than an action is brought against an
additional Defendant at any earlier time than the date upon which that Defendant is
joined as a party’’

In an earlier case Byron v. Hooper in 1844 it was stated thus ’’the person is permitted
to add new Defendants to his amended bill, in order to save delay and expense; but each
Defendant so added is to be considered as sued by the proceeding which makes him a
Defendant, and the date of his being added is the date of the suit’s commencement
against him’’

l) Effect of Joinder
(i) A person added/joined as a party does not become a party until the writ is
amended in relation to him and
(ii) If he is a Defendant until he is served with the writ (Order 4 r 5(7)
Otherwise he does not become a party.

GANDAA v. GANDAA & OTHERS [1989 -90] 2 GLR 58- where the Court of Appeal
order for joinder of a C-Defendant did not stipulate any condition – but as under the
rules the writ had to be amended within 14 days after the order of joinder and failure to
amend within the proper time under the rules of amendment would result in the order

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ceasing to have effect unless further extended, and the time to amend had long expired,
and there was no amendment of the writ, the Co-Defendants were not party to the suit
and therefore had no pleadings to amend.

II) That though the order of joinder was made in favour of the Co-Defendants, it
was the duty of the Plaintiff to amend the writ and have it served on them as
stipulated under L. I. 1129. Before the registry
So it appears that the amendment of the original unit adding or substituting a person as
a party under Order 4 r 5 is equivalent of the issue of a new writ against that person and
the Plaintiff has to be served with the writ for him to enter appearance.

See also (Offie v. Essuman & Ors, CA (unreported, suit No. HI/148/2005 4 th March
2008.

m) Want of Parties – Order 11 rr 8 and 18

Order 33 r 5 – By which if an action is defective for want of parties, the point could be
raised under Order 11 r 18 or Order 33 r 5

n) Misnomer
It is important that the names of parties are properly described or appropriately stated.
If e.g. the Defendant is misnamed the Plaintiff will have great difficulty in serving the
Defendant.

A Defendant may by entering appearance or acknowledging service correct any mistake

in the names by which he is sued so long as it is clear that he is the Defendant sued. It
does not relieve the Plaintiff from the necessity of amending his writ, if the alteration of
name is material.

Where there is a bona fide mistake as the name of the party or the action is brought by
or against a party in the wrong name, the proper procedure is to apply to the Court for
leave to amend the same and the rules of amendment will apply as in Order 16 r 5 (3) –
which states that 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.

The question is no longer whether the amendment sought is the correction of a more
misnomer or the substitution of a new party but whether in all the circumstances of the
case. The mistake was genuine and was not misleading or raised any reasonable doubt
as to the identity of the Plaintiff or Defendant, each case must depend upon its own
facts. (See Whittam v. M J. Daniel & Co. Ltd. [1962] 1 Q B 271

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So in Mussey v. Darko [1977] 1 GLR 147, CA – where the Respondent had sued to
recover debt of ¢4,962.86 in the name of Okomfoh Enterprise when the R. A. Darko was
the sole owner of a business that operated under the name of Okomfoh Enterprise.

Though the Appellant disputed the capacity of the Respondent, the issue was not
pursued and judgment 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 and the appellant raised an objection to the amendment on the ground that
the Court had no power to rant it. The objection being overruled and leave being granted
for the amendment of the title.

HELD: - dismissing the appeal that the sole proprietor of a business having 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.

Per Francois J. A. as he then was) “the High Court was not functus officio when it
allowed the Plaintiff to amend the title of the suit. If it had jurisdiction at that stage to
allow the Plaintiff to go into execution, it had jurisdiction to amend the title such
amendment have been allowed where the purpose of justice require, or where it is
necessary to put right something which is incorrectly stated and to keep its record in line
with the real position...... the Court below had the power to correct a misnomer or a
misdescription in title to do substantial justice.

In GPHA v. Issoufou [1991] 1GLR 500, 522 also [1993 – 94 1 LR 24, 36 – 37, SC

BIRCH v. ASEMPA [1992] 2 GLR 416, 436 -7

Joinder by consolidation – this is afforded for by Order 31 r 2.

Where 2 or more causes or matters are pending in the same Court the Court may order
those causes or matters to be consolidated on such terms as it considers just, or may
order them to be tried at the same time or one immediately after another, or may order
any of them to be stayed until the determination of any other of them if it appears to the
Court that
a. Some common question of law or fact arises in both or all of them, or
b. The right to relief claimed are in respect of or arise out of the same
transaction or series of transaction; or
c. For some other reasons it is describable to make the order under the rule.

So the conditions are as set out in (a) to (c)

And in that application the Court can make the following order:
i) Make an order for the consolidation or make an order for them to be tried at
the same time or
ii) Make an order for one to be tried immediately after another
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 iii) Make an order for any of them to be stayed pending the determination of any
other of them.
See Stone v. Press Association [1897]2 QB 159; Horwood v. Statoman
Publishing 141 LT 54.

o) Representation Proceedings – Order 4 r 11-

It may be convenient to join many parties to the action. However where the parties are
numerous but have the “same interest” the rules permit one or more members of the
group to represent the whole or part of the whole groups. Especially where the persons
are numerous but not constituting a corporate unit. So a representative action may be
brought where you have a large group of people, unincorporated but clearly identifiable
– if the group has interest and the interest are affect one or some may represent the
group instead of each and every member bringing his own action. Eg inhabitants of
village house owners in a nucuty, big body of sludants.

2. The persons in the class or group must have common grievance.

3. The relief sought must in its nature be beneficial to all the members of the class,’’
see Order 4 r 11
11 (i) Where numerous persons have the same interest in any proceedings
other than proceedings mentioned in rule 13 of this Order, the proceedings
may be commenced, and unless the Court otherwise orders, continued by or
against any one or more of them as representing all or as representing some
of them.
(iii) At any stage of proceedings under this rule the Court may on the
application of the Plaintiff, and on such terms, if any, as it thinks fit,
appoint any one or more of the Defendants or other persons to represent
all the Defendants or some of the Defendants.
It is an essential condition of a representation action that the persons who are to
represent and the persons or persons representing them should have the same interest
in the same proceedings (Roche v. Sherrington [1982] 2 All ER 426. In order that this
rule should apply the necessary qualifications to be satisfied are that all the members of
the alleged class should have a common interest that all should have a common
grievance and that the relief is in its nature beneficial to all Smith v. Cardift Corp
[1954] 1 QB 210, CA Pan Atlatic Ins Co & Republic Ins v Pine Top Ins. Co. [1989]1
Lloyd’ Rep. 568, CA

The critical words of this rule are contained in subrule 1 – that the numerous persons
represented, whether as Plaintiffs or as Defendants should “have the same interest” in
the proceedings. “Given a common interest and a common grievance, a representative
suit is on order if the relief sought is in its nature to all whom the Plaintiff proposes to
represent”. See the speech of Lord Macnaghten in BEDFORD (DUKE OF) v. ELLIS
[1901] AC1, 8- 6 persons were heed entitled to sue on behalf of themselves and all other
grower of vegetables, fruits, roots, flowers, herbs in an action against owners of a

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markets for the infringement of the statutory rights under a local Act of such growers
claiming a declaration as to those rights, an action and an account.

MARKT & CO. v. KNIGHT STEAMSHIP CO. LTD. [1910] 2 KB 1021.

SMITH v. CARDIFF CORP. [1954] 1 QB 210- Clearly enunciated about numerous

persons, same subject matter, common interest, and benefit to all of them, that one or
more of such persons may sue...... on behalf of or for the benefit of all persons so
interest. Common interest, common grievance, beneficial to, see Banahene v. Hima
[1963] 1 GLR 323.

The one or those suing is the Plaintiff or Plaintiffs for all technical matters yet the
decision may benefit all. Where some members are being intransigence or stand aloof or
not prepared to go with the one you, then the action is brought by one or more of them
on behalf of the members except the intransigent members. If the intransigence is in the
form of opposition, then they may be brought in as Defendants. ( Fraser v. Cooper Hall
& Co. [1882] 21 Chd 718).

In the Markt case it was held that a representative action would not lie to establish the
right of numerous persons to recover damages, each in his own several right, where the
only relief claimed is to recover such damages; for none of the persons sought to be
represented have any interest in the damages recoverable by the particular Plaintiff
claiming to represent them, and that accordingly, different owners of cargo, shipped in a
general ship, cannot be represented by one or or a selected few of such cargo owners in
an action merely claiming damages for the loss of the cargo of all such cargo owners. In
such a case where the alleged ground of liability is common to all the cargo owners, it is
rule 3 and not rule 11 which is applicable.

It was further held in the Market case that the mere existence of a common “wrong” will
not necessarily suffice if there is no common “right” or common purpose and therefore
the rule does not apply to the case of persons suing in respect of a loss by a causes
common to all when each relies on separate contract and where the claim of each must
depend on its own merits.

On Representative Action see the following cases

Banahene v. Hima [1963] 1 GLR 323, SC, John v Rees [1970] Ch 345, Moon v.
Atherton [1972] 2 QB 435, Ghana Muslims Representative Council and Others v
Salifu & Others [1975] 2 GLR 246, CA person suit in rep capacity must establish
the ......................

Akoto II and others v. Kavege and others [1984-86] and GLR 365, CA INTERIM
EXECUTIVE COUNCIL v. INTERIM EXECUTIVE COMMITTEE OF APOSTOLIC
DIVINE CHURCH [1984-86] 1GLR 529, CA

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NKUA v. KONADU & BOATENG [2009] SCGLR 134
Moon v. Atherton – In a representative action the Court has power to amend the
proceedings by substituting a person represented though not named in the writ for the
named Plaintiff so as to bring him in as at the date of the original writ even though the
effect of doing so is to prevent the claim been statute-barred.
Section 324 of the Companies Act, Act 179

Order 4 r 11 (4) A judgment or order given in proceedings under this rule shall bind all
persons acting as representatives of the parties, but shall not enforced against a person
not a party to the proceedings except with leave of the Court.
Order 4 r 11(5) notice of application for the grant of leave under sub rule (4) shall be
served personally on the persons against whom it is sought to enforce the judgment or
order unless the Court otherwise orders.
Order 4 r 11 (6) A person bond by the judgment or order, against whom an application is
made under sub rule (4) may nevertheless dispute liability to have the judgment or order
enforced against that person on the ground that, that person is entitled to be exempted
from the liability by reason of fact and matters peculiar to that person’s case
Order 4 r 11 (7) The Court hearing an application for the grant of leave under sub rule
(4), may order the question whether the judgment or order is enforceable against the
person against whom it is made, to be tried and determined in any manner in which any
issue or question in any action may be tried and determined.

FORM OF REPRESENTATIVE ACTION/ CONCLUSION/SUMMARY

So in a representative proceeding the group or class of persons sought to be represented
must be defined in the writ with sufficient clearness and precision. A claim to represent
merely ’’some of’’ the members of a class without defining which members would not be
maintainable (Markt & Co Ltd v. Knight Steamship Co Ltd [1910] 2 KB 1021, pp
1033, 1034.
It may be necessary to define the persons sought to be represented by reference to the
date on which the cause of action arose in respect of which the claim is brought
(Campbell v. Thompson [1953]1QB445)
If any of the persons sought to be represented are excepted for any reason, this fact
must appear in the definition or description of the class and such persons must be made
parties in their personal capacities (FRASER v. COOPER (1883)21 CLD 718
The representative capacity of the Plaintiffs or Defendants indorsed on the writ of
summons (Re Royle (1877) 5 CLD 540)
The representative capacity of the Plaintiffs ought also to be stated in the title of the writ
and of the statement of claim ( Re Tottenham [1866] 1CL 628) and it is desirable that it
should also be stated in the body of statement of claim and in the prayer.
See Ghana Muslim Representative Council & others v. Salifu [1975] 2 GLR 246,
CA

It is irregular to name parties twice over in the record first in their personal capacity and
secondly, in their representative capacity (Hardie & Lane v. Chilterm [1928] 1 KB 663

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Representative Plaintiffs – A person or persons claiming to represent numerous other
persons having the same interest may begin an action as the representative Plaintiff or
Plaintiffs. No leave or representation order is necessary either before or after the action
is begun; but nevertheless, the representative Plaintiffs may apply for such and order.
In a representative action began in the name of one person, every person represented
though not named on the record is a party to the action within the meaning of the
Supreme Court 1981 5151 (1) and the Court has power to add him as a necessary party
under Order 4 r 5 or to amend the proceedings by substituting the unnamed person for
the named Plaintiff so as to bring him in as at the date of the issue of the original writ
(Moon v. Atherton [1973] 2QB 435; [1972] 3 A11ER145,CA)

On the other hand, represented parties in a representative action are not ’’party to the
proceedings’’ and therefore the Court has no power to order that they should make
discovery of document under ( Ventouris v. Mountain [1990]1WLR 1370
The Representations have full control of the litigation. They are the parties not all the
members they represent. If judgment is given for them or against them But judgment
given in a representative action is binding on all persons on whose behalf it is brought or
on whose behalf it is defended. But it may be enforced..........person who belong to the
group but who was not named as party except by the order of the Court. On hearing the
application for leave to enforce it, anyone against whom it is enforced has to explain to
the Court why it should not be enforced against him.

Representative Defendants: One of the objects of this rule is to facilitate the bringing of
action against unincorporated aggregates of persons (per Lord Atkinson in London..........
for Protection of Trade v. Greenlands Ltd [1916]
2 AC 15, 30 where a Plaintiff therefore desires in a suitable case to sue any combination
of persons under a title purporting to be the name of a society or club, or association
(not being a registered society or a partnership firm) it is the practice to allow him to sue
two or more members by their names with the added statement that they are ‘‘sued on
their own behalf and on behalf of all other members of the claim’’

The statement showing the representative capacity of the Defendant must be indorsed
on the writ before it is issued – and shall be stated in the title of the action ( Re
Tottenham [1896] 1 Ch 628 GMRC & Ors v. Salifu & Ors [1975]2 GLR 246, CA)

No Lease is required by the Plaintiff to bring the action against representative Defendant
Defendants; nor does the Plaintiff require in the first instance any leave or order in
selecting the person he will sue as representing the others. But at any stage after the
proceedings have begun the Plaintiff may apply for a representation order.

It should be shown in the application that the Defendants are “numerous” ( Wiban v.
Church (1878) 9 Ch D 552, 559.

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The Court may by order appoint one or more persons to represent all the other persons
having the same interest in the proceedings in question, or all of such persons except
some, naming or otherwise identify these. The appointment under such an order is the
equivalent of a direction, so that individual may be appointed against their own will to
defend on behalf of others (Wood v. McCarthy [1893] 1 QB 775, where two officers of
a labour protection league were ordered to represent all members of the league). In
Bedford (Duke of) v. Ellis [1901] AC 1, pp 10 and 11 it is said that “If you cannot
make everybody interested party, you must bring as many that it can be said they will
fairy and honestly try the right”

In Frazer v. Cooper (1882) 2 1 Ch D 718, which was a bondholders’ action one

Defendant was allowed to represent himself and all the dissentient bondholders.

But before authorising a person to represent himself and other as Defendant, the Court
must be satisfied that he is authorised to represent them. ( Morgans’ Brewery v.
Crosskill [1902]1 Ch 896; London Association, etc v. Crosskill [1902] 1Ch 896] 2
Ac 1539 and may require a meeting to be called for the purpose (ibid).

See Companies Act, Act 179

Section 324 – Representative Actions provided for - - that where under any section of the
Code it is provided that if legal proceedings are instituted by any he shall sue in a
representative capacity on behalf of himself and other members of a class the following
provisions shall apply, that is to say.................

Order 16
AMENDMENT
Amendment may take various forms – adding, deleting, substituting or completely
changing whole document (pleadings, title, indorsement) and substituting something for
it or may be to correct defects and errors in the document or proceedings.

Amendments are very important not only for examination but for legal practice.

a) Overriding Principle – Order 16 r 7

With regards to amendment is contained in Order 16 r 7 namely: that generally
speaking, all amendments will be allowed at any stage of the proceeding and of any
document in the proceedings (Other than a judgment or order) on such terms as to costs
or otherwise as the Court thinks just. This principle is subject to the countervailing rule of
practice that an amendment will be refused or disallowed when, it were made it would
result in prejudice or injury which cannot be properly compensated for by costs.
Accordingly, as a general rule either party is allowed to make any amendment in his own
pleadings or other proceedings which is reasonably necessary for the due presentation of
his case on payment of the costs occasioned by the amendment provided there has been
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no undue delay on his part and provided also that the amendment will not injure or
prejudicially effect any vested right of his opponent. But if the application is made mala
fides or if the proposed amendment is sought to be made after delay or will in any other
way unfairly or cause detriment to the other party, or is irrelevant or useless or would
raise merely a technical point, leave to amend will be refused.

It is a guiding principle of cardinal importance on the question of amendment that,

generally speaking, all such amendments ought to be made “for the purpose of
determining the real question in controversy between the parties to any proceedings or
of correcting any defect or error in any proceedings per Jenking & J in G. L. Baker Ltd.
v. Medway Building & Supplies Ltd. [1958] 3 All ER 540, 546, [1958] 1 WLR 1216,
1231.
Thus in Order 16 r 7 the principle been provided for thus:
Order 16 r 7 (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 state 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”

Order 16 r 7 (2) “this rule shall not apply in relation to a judgment or order”.
The purpose of Amendment:
1. Determining the real question in controversy between the parties.
2. Correcting any defect or error in the proceedings.

“It is a well established principle that the object of the Court is to decide the rights of the
parties; and not to punish them for mistakes they make in the conduct of their cases by
deciding otherwise than in accordance with their rights .......... I know of no kind of error
or mistake which, if not fraudulent or intended to overreach, the Court ought not to
correct, if it can be done without injustice to the other party. Courts do not exist for the
sake of discipline, but for the sake of deciding matters in controversy, and I do not
regard such amendment as a matter of favour or grace.

------it seems to me that as soon as it appears that the way in which a party has framed
his case will not lead to a decision of the real matter in controversy, it is as much a
matter of right on his part to have it corrected if it can be done without injustice, as
anything else in the case is a matter of right” (per Bowen LJ 710 -711 – with which
observations A. L. Smith LJ expressed “emphatic agreement” in Shoe Machinery Co. v.
Cultan [1896] 1Ch 108, 112.

In Tiledesley v. Harper (1876) 10 ChD 393, 396, 397, Bramwell L. J. said “My practice
has always been to give leave to amend unless I have been satisfied that the party
applying was acting mala fide, or that, by his blunder, he had done some injury to his
opponent which could not be compensated for by costs or otherwise”. However
negligence or careless may have been the first omission, and however late the proposed

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amendment, the amendment should be allowed if it can be made without injustice to the
other side. There is no injunction if the other side can be compensated by costs” (per
Brett MR Clarapede v. Commercial Union Association (1883) 32 WR 262,263;
Weldon v. Neal (18870 19 QBD 394; 396.

An amendment ought to be allowed if thereby “the real substantial question can be

raised between parties” and multiplication of legal proceedings avoid ( Kurtz v. Spence
(1888) 36 Ch D 774;

In Mahama Hausa v. Baako Hausa [1972] 2 GLR 469; CA where in an action for
declaration of title to property the Defendant pleaded title by way of an oral will and later
amended to oral gift interiors and later sought again to amend to oral will at the close of
the evidence. Judgment was given to Plaintiffs and Defendants counterclaim was
dismissed. Defendant appealed and the Court of Appeal dismissed the appeal but Held as
per Bentsi – Enchill JSC. Relied on Bowen L. J. in Cropper v. Smith (1884) 26 Ch D
700, pp 710 711, CA thus: he sought leave to make this amendment in order as he
expressly stated to bring his pleading in line with the evidence adduced. This application
was refused by the learned trial judge. The reason he gave is that “this proposed
amendment would change the whole tenor of the case as it goes to the root of the
matter “with respect to him, I think that the amendment should have been allowed and
for the limited purpose expressly stated by the defence Counsel, namely to bring his
pleadings in line with the evidence adduced. It is a guiding principle of cardinal
importance on the question of amendment that, generally speaking all such amendments
ought to be made and Order 28 r 1 of the Supreme (High) Court (Civil Procedure) Rules
1954 (L. N. A. 40 A), in fact provides mandatorily that “ all such amendments shall be
made as may be necessary for the purpose of determining the real question in
controversy between the parties” The words of Bowen L. J. in Cropper v. Smith (1884)
26 h D 700 at pp 710 – 711, CA are appropriate in this regard:
“It is a well established principle that the object of the Courts is to decide the rights of
the parties, and not to punish them for mistakes they make in the conduct of their cases
by deciding otherwise than in accordance with their right .......... I know of no error or
mistake which, if not fraudulent or intended to over-reach, the Court ought not to
correct, if it can be done without injustice to the other party. Courts do not exist for the
sake of discipline, bit for the sake of deciding matters in controversy, and I do not regard
such amendment as a matter of favour or grace .................. It seems to me that as
soon as it appears that the way in which a party has framed his case will not lead to a
decision of the real mater in controversy, it is as much a matter of right on his part to
have it corrected, if it can be done without injustice, as anything else in the case is a
matter of right.

In ADJELEY v. SOWA & ANOTHER [1966] GLR 754 where the Plaintiff filed a writ of
summons and a statement of claim for return of the sum of £G12,700 from the
Defendants on the grounds that the consideration had failed. He filed an amendment to
the writ of summons by adding a claim for eleven per cent interest on the sum claimed.

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HELD that where it appeared that the way the party had framed his case would not lead
to a decision on the real matter in controversy it was a matter of right on his part to
have it convicted if it could be done without injustice to the other party. However
negligent or careless a party might have been and however late the proposed
amendment, it ought to be granted if it was made bona fide and caused no injustice to
the other party or the other party could be compensated by costs or otherwise Cropper
v. Smith (1884) 26 ChD 700 at pp 710 711, CA; Tiledesley v. Harper (1878)10 ChD
393 at pp 396-397, CA, Clarapede & Co v Commercial Union Association (1883) 32
WR 262, CA & Weldon v. Neal (1887) 19 QBD 3943, CA applied.

GANDAA v. GANDAA & OTHER [1989-90]2 GLR 58 per Benin J (as he then was)
Holding 3
HELD that the purpose of an amendment is to enable the Court to determine the
question in controversy between the parties. All the factors considered by the Court had
been devised to deal with the justice of the cases before them. Therefore the facts and
circumstances of each case must be examined closely in deciding whether or not an
1/ Amendment ought to be allowed. This if a party knew of some facts right from the
commencement of an action but failed to plead them, he might not be allowed to plead
them at a later stage in the proceedings as it could unduly delay the trial or prejudice the
other party’s case.

2/ But if he was not aware of the same facts when he pleaded at first, it might afford a
sufficient reason to allow him to amend since he would be said to have acted in good
faith. However, an amendment which would alter or contradict the evidence already
given, instead of bringing the pleadings in line with evidence already led, must not be
allowed.

In YEABOAH & ANOTHER v. BOFOUR [1971] 2 GLR 199 @ 217 CA, - Also gave
conditions and circumstances which amendment would be allowed in holding 7 & 8.

In that case the Plaintiff instituted action in the Circuit Court and claimed inter alia,
damages for N¢400.00 and after judgment before the same was signed, sought to
amend it to read N¢4,000.00 instead of N¢400.00. the amendment was granted.

HELD on appeal that an application for amendment 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
(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.

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 (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 to the pleadings after final decree or entry of judgment.

Holding 8. The granting or refusal of an application for leave to amend pleading, even at
the last moment in proceedings, is a matter entirely within the discretion of the trial
judge. And the discretion to allow an amendment will be exercised in order that the real
issues between the parties may be finally determined. The Court of Appeal will not
interfere with the exercise of that discretion unless it is satisfied that the judge applied a
wrong principle or can be said to have reached a conclusion which would work a
manifest injustice between parties. In this case the trial judge exercised his discretion
properly in allowing the Plaintiff to amend his claim or enable the Court to award such
damages as would fully compensate the Plaintiff for the loss of his house. Dicta of Bowan
LJ in Cropper v. Smith (1884) 26 ChD 700 at pp 710-711, CA; of Bramwell L. J in
Tildesley v. Harper (1878) 10 ChD 393 at pp 396-397, and other cases applied.

But see Order 16 rr 5(2) (3) and 5(5)

See also Order 11 rr 9, 10

See also Order 81 r 1(2)(b) allowing amendment – which we have discussed already.

See also Order 4 r 5 which gives the Court power to add, substitute or strike out parties
which may be exercised suo motu or an application.

Other cases: KABBARA BROS TRANSPORT v. ANIN & ORS [1966] GLR 751
DEEGBE V NSIAH & ANOR [1984-86] 1 GLR 545 CA.

In Deebge v. Nsiah & Anor [1984 - -86] 1 GLR 545, CA it was held that “Where the
writ or the statement of claim discloses in toto no cause of action, there cannot be
granted an amendment so as to disclose a cause of action. In my view the amendment
sought is not being made bona fide. If it is allowed it would open the way for the Plaintiff
to lead evidence of perjured invention to bolster his claim. I hold this view because the
Plaintiff prepare the writ and the statement of claim, all the averments in them must
therefore be taken as the true facts in the alleged agreement per Edusei J. A.

FACTS:
KABBARA BROS TRANSPORT v. ANIN & ORS [1966] GLR 751 - where the Plaintiff
sued on account of the wrong sale/conversion of their vehicle by auction that the Sheriff:
And the Plaintiffs’ counsel had intimated that the word “cost” in the claim should read
“lost” and that it was a typographical error and indicated that he would seek leave to
amend the claim.

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HELD: per Adusei J that “I should be doing the Plaintiffs great injustice if i shut them out
now by dismissing second leg of the claim at this stage of the proceedings. It is the
accepted practice to allow a Plaintiff to amend at the hearing when such amendment is a
substantial one and it is such that the Plaintiff could not succeed without it provided of
course that he is acting in good faith. However, the amendment is usually allowed on
payment of costs incurred up to date and any costs thrown away by reason of the
amendment; see Bowdens Patents Syndicate Ltd. v. Herbert Smith & Co. [1904] 2
Ch 86.

Ghana Airways v. Ado [1992] 2 GLR 379 where an employee was made to stay at
home for 6 years under the illusion that his employers were carrying on further
investigations after criminal action against him had terminated by way of nolle prosequi
and the company/employers sought to amend their defence by pleading that the action
was statute barred.

HELD: An applicator amend a defence to include a plea of the statute of limitation could
be allowed even at the trial provided it was omitted earlier on by inadvertence, it was not
unduly delayed and the other party could entirely be compensated in costs, or it would
not be plainly unjust to do so, or it was not brought in bad faith. “inadvertence” in the
context meant negligence or carelessness on the part of the solicitor is not pleading it.
Accordingly, it required rather cogent and satisfactory evidence from the solicitor,
especially where the same solicitor drew up the pleadings as in the instant case.
However, no evidence was led in support of the bare assertion that the omission
occurred through inadvertence.

Further, since the grant of a late amendment was a discretionary remedy, an application
had to act in utmost good faith, but on the evidence it was the Defendants who led the
Plaintiff to believe that there were investigations still going on against him even after the
criminal case was determined in Court and thus he should wait. In the circumstances, a
grant would mean that the Court would be condoning deceit and/or misrepresentation on
the part of the Defendants. And besides, since the injury to the Plaintiff from being
thrown out of Court through the collusion of the Defendant could never be compensated
with any costs the application would be rejected.

Amendment of Writ without Leave (Order 16 r 1)

Order 16 r 1 (1) The Plaintiff may, without leave of the Court, amend the Plaintiff’s writ
once at any time before the pleadings are closed.

Order 16 r 1 (2) Where a writ is amended under this rule after it has been served, the
amended writ shall be served on each Defendant to the action under an application
made ex-parte the Court otherwise directs.

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So it means it can be amended without leave before or after it has been served once
pleadings are not closed – once –
Note that the rule applies to writ and not statement of claim if it be indorsed on the writ
– even though the same principle of amending without leave before close of pleadings
are provided for in.
So it means amendment could be made once as of right whether it coursers in altering
the name of the parties or addition of a new cause of action or otherwise, and whether
or not the writ is indorsed with statement of claim. And this can be done whether before
the close of pleadings.

The object of this rule clearly is to correct mere or accidental mistakes, errors, slips or
omissions and to save costs by eliminating the necessity of application. E.g. Thus where
a date or a figure has been wrongly stated or the name of a party has been wrongly
spelt or a Christian name requires to be altered or a description such as “made” or
“married woman” to be added or altered provided in all cases that the identity is the
same or generally where the amendment is merely formal in character, or in its effect,
the amendment may be made without leave.

The Amended writ should state the date on which the amendment is made and that such
amendment is made under this rule thus:
“Amended this - day of under Order 16 r 1”.

If the writ of summons is amended it must be served on all the parties. If the writ was
amended after service.

If the Plaintiff in his statement of claim omits all mention of a cause of action or a claim
for relief which is stated on his writ, he shall be deemed to have elected to abandon it,
and in this case no amendment of the writ is necessary – ( Cargill v. Bower (1878) 10
Ch. D. 502, p 508 and see Wilmott v. Freehold Property Co. (1885) 51 LT 522

So it means that if the Plaintiff amends the reliefs endorsed in the writ he should also
amend the Statement of claim to reflect the amendment or the relief which is not
repeated in the statement of Claim will be deemed to have been abandoned as was held
in Cargill v. Bower – relied upon in HASNEM v. ECG [1992] 2 GLR 250. THE CASE IS
TO THE EFFECT THAT A RELIEF THAT IS NOT REPEATED IN THE Statement of Claim is
deemed to have been abandoned

Where the Plaintiff had sued the Defendant, electricity Co. of Ghana for values of
electronic gadgets and appliances or items damaged when the in their premises was
switched and was attributed to a faulty underground cable supplying power to the
Plaintiff’s premises for negligence which was denied after hearing but before addresses,
the Plaintiff brought an application to amend their writ of summons to reflect the current
values of the items allegedly damaged and the Defendants opposed the application on

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the ground that the Plaintiffs had not filed an affidavit explaining their delay in seeking
the amendment.

HELD: THAT THE Plaintiffs’ application to amend their writ of summons to show the new
values of the damaged items as at the time of the judgment would be dismissed
because:
a) The application did not seek to amend the Plaintiffs’ statement of claim.
However, the principle was that a relief which was not repeated in the
statement of claim was not to be treated as abandoned. Besides is the
amendment was granted the statement of claim would throw the value of the
items at the time the cause of action accrued whilst the writ of summons
would show the new value. The amendment would therefore be useless.
Accordingly, it would be dismissed with costs.

b) An amendment that would raise a case that would necessarily fail should not
be allowed. Since the Plaintiffs’ claim was for damages for breach of contract
and/or negligence, the guiding principle was restitutio in integrum.
Accordingly, the Court would have to decide the value of the items damaged or
destroyed to the owner at the time and place of the damage or destruction.
Since the amendment sought to claim the current value of the items damaged,
the claim would necessarily fail at the trial if the amendment was granted.

c) Amendment of Notice of Appearance

Order 16 r 2 and Order 17 r 1
Order 16 r 2 says that “A Defendant shall not amend the Defendant’s notice of
appearance without leave of the Court”.

E.g. where the address in the notice is omitted or wrongly given or anything wrongly
stated therein could be amended with leave of the Court i.e. by applying for leave to
amend. The after leave is granted, the amendment is effected by lodging/filing a fresh
notice of appearance amended as so authorised (i.e. embodying the amendment), and
headed in the like manner as amended document. E. g. “Amended Notice of Appearance
pursuant to the order of the Court dated.....”. And of course a would be duly served on
the Plaintiff.

In this connection we must look at the rule in Order 17 r 1 which states that “A party
who files an appearance at any time with leave of the Court”

d) Amendment of Pleading without Leave

Order 16 rr 3 – 6, Order 11 r 19, Order 82 r 3, Order 11 r 14 (2).
Order 16 r 3 (1). It also provides that Pleadings may be amended once without leave any
time before the close of pleadings and cause the amended pleadings to be served on the
parties on the other side.
Order 16 r 3 (2) where the amended statement of claim is served on a Defendant.

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 a) the Defendant, if a defence has been filed to the claim, whether amended or
not, may amend the defence without leave of the Court to respond directly to the
Plaintiff’s amendment; and
b) the period for service of the defence or amended defence, shall be either the
period fixed under these Rules for service of defence or a period of fourteen days
after the amended statement of claim is served on the Defendant, whichever
expires later.

Order 16 r (3). Where an amended defence is served on the Plaintiff by a Defendant.

a) The Plaintiff, if a reply had been filed whether amended or not, may amend
the reply without leave of the Court to respond directly to the Defendant’s
amendment and
b) The period for service of the reply or amended reply shall be fourteen days
after the amended defence is served on the Plaintiff.

Note as provided in Order 16 r 3 (4) that in subrules (2) and (3) references to a defence
and a reply include references to a counterclaim and a defence to counterclaim
respectively.
Order 16 r 3 (5) – where an amended counterclaim is served by a Defendant on a party
other than the Plaintiff against whom the counterclaim is made, subrule (20) 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.
Order 16 r 3 (6) – which provides that where a party has pleaded to a pleading which is
subsequently amended and served on the party under subrule (1), if the party does not
amend the pleading under the foregoing provisions of this rule, the party shall be taken
to reply on it answer to the amended pleading, and Order 11 r 14 (20) shall have effect
in such a case as if the amended pleading had been served at the time when the
pleading, before its amendment under subrule (1), was served.
NOTE THAT:
1. Order 16 r 3 deals with amendment of pleadings – not of writ or of other
documents
2. Applies to all pleadings before the close of pleadings and not after
3. The main object of the absence of leave as in Order 16 r 3 just as in Order 16
r 1, is to save costs and time for permitting or allowing amendments of
pleadings as of right of seeking leave to amend by application.
4. It is also necessary that the amendment should be set out clearly and precisely
and the party should file the amendment on which it is indicated (indorsed
with) in a statement to the effect specified date with reference to the relevant
rule: E. g. “Amended this ……day of…………..2011 under Order 16 r 3” or
“Amended Statement of Claim [Statement of Defence, Reply, Counterclaim etc]
dated this day of 2011” or the like effect
5. It is also imperative that it must be served on the other party.
6. It must also be noted that amended without leave is allowed only ONCE

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 All subsequent or further amendments or re-amendment should be by the Court as
under Order 16 r 5. It does not apply to amendment after pleadings for which leave must
be sought – Order 16 r 5.

It means that the period for amending the statement of claim without leave will be
longer than for amending the defence and the period for amending the defence will be
longer than the Reply or the defence to the counterclaim, to the extent that in all cases it
must be before the time limited for the close of pleading.

Thus 7. A person or party served with the amended pleadings may also amend his
the
Defend pleadings without leave to respond to the amended part of the other party’s
ant
served pleadings, or he deemed to have still relied on his pleadings not amended or
with
the
amend
joined issues on the averments in the amendments (for this see Order 11 r 14
ed
statem
(2).

8. Fourteen days across the board is given from the service of the amended
pleadings unless he has a longer period outstanding in the statutory period for
filing his pleading.

9. A party on who an amended pleading is served is only allowed to amend to

“respond directly” to the other party’s amendment by his amendment.
Therefore he is not allowed to introduce new matter in the amendment
without leave in response to the amendment; unless he is amending his
pleadings in his own right but not as a response to the other party’s
amendment – see Order 16 r 3 (2) (a) and Order 16 r 3 (3) (a).
He only has the right to answer those parts of the amended pleadings which related to
(new) amended allegations in the amended pleadings and does not extend to other parts
that are not affected by the amendments made
e.g. where the Plaintiff is given leave to amend his statement of claim, the Defendant is
not entitled in the absence of express leave to do so, to introduce any amendments that
he chooses but his implied right to amend his defence is limited to making only such
amendments as are consequential with the amendments made in the statement of claim
i.e. it extends to amending only those parts of the defence which relate to the amended
allegation made in the statement of claim and does not extend to the parts which relate
to allegations in the statement of claim not affected by the amendments made therein.
(Squire v. Squire [1972] Ch 391; 1 All ER 891, CA.

The same principles applies to the amended statement of claim made without leave and
also mutatis mutandis, to the amendment of other pleadings, e.g. defence and
counterclaim, whether made with or without leave.

Order 16 r 4 – Application to strike out amendment made without leave

This rule enables a Defendant to apply to the Court to disallow an amendment of the
pleadings amended under Order 16 r 3(1) – i.e. made without leave – to apply to the

213
Court to disallow the amendment made without leave. And the Court is obliged to strike
out such an amendment if it is satisfied that an application for leave made at the date of
the amendment would have been refuse.

If the amendment renders the pleadings embarrassing, it may struck out as in Order 11 r
18 as in Machados v. Fontes [1897] 2Q b 231, CA.

It is said that the procedure indicated in rule 4 must be followed whenever is made
under r. 1 or r 3 of the Order. Bourne v. Coulter (1884) 50 LT 321. If the amendment
raises a doubtful point of law, its validity may be argued before the trial could also be
made at the application for directions stage as under Order 33 rr 3 and 4 (2) as in
Cocksedge v. Metropolitan Coal, etc. Association (1891) 39 WR 637.

Read Order 16 r 4 (1) within fourteen days after the service on a party of a pleading
amended under rule 3 (1) the party apply to the Court to strike out the amendment.
(2) Where the Court, hearing an application under this rule, is satisfied that if an
application for leave to make the amendment in question had been made under rule 5 at
the date when the amendment was made, leave to make the amendment or part of the
amendment would have been refused, it shall order the amendment or that part to be
struck out.
(3) An order made on an application under this rule may be made on such terms as to
costs or otherwise as the Court considers just.
Order 16 r 6 – ’’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’’ –
This rule makes the right to amend without leave as under rule 1 or 3 (1) in applicable
during the long vacation.
It means therefore that a party seeking to amend the writ or pleading during the long
vacation, could only do so with leave as under r 5, and cannot amend without leave
during the long vacation.

e) Effect of an amendment
An amendment duly made, with or without leave, takes effect, not from the date when
the amendment is made, but from the date of the original document which it amends;
and this rule applies to every successive amendment of whatever nature and at whatever
stage the amendment is made. Thus, when an amendment is made to the writ, the
amendment dates but to the date of the original issue of the writ and the action
continues as though the amendment had been inserted from the beginning:
As per Collins MR in SNEADE v. WOTHERTON etc [1904] 1KB 295,297, ‘‘the writ as
amended becomes the origin of the action, and the claim thereon indorsed is substituted
for the claim originally indorsed’’

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Similarly in the pleadings, ‘‘once pleadings are amended, what stood before amendment
is no longer material before the Court and no longer defines the issues to be tried’’ per
Hodson L.J in WARNER v. SAMPSON [1959] 1QB297, 321
Thus the fact that the pleading has been amended will not affect the incidence of
subsequent costs, even though the action is decided on the point raised by the
amendment (Nottage v. Jackson (1883) 11 QBD 627, CA.

An amendment to correct the name of a party relates back to the date of the issue of the
writ, even after the expiring of the limitation period ( Katzenstein Alder Industries
(1975) Limited v. Borchard Lines Limited (1988)138 New L.J. 94
The rule as to the effect of an amendment is the reason why a Plaintiff may not amend
his writ by adding a cause of action which has accrued to him since the issue of the writ
(Eshelby v. Federated European Bank [1932] 1KB254, 423) where, however, the
amendment single to be made relates to matters going to the remedy claimed rather
than introducing a new cause of action, the Court will grant leave to amend the original
pleadings in order to allege facts arising subsequent to the date of the writ or counter
claim, Tilcon Ltd v. Land and Real Estate Investments Limited [1987] 1 ALL ER
615, CA.

In KAI v. AMARKYE [1982-83] GLR 817, the Court of Appeal held that once pleadings
are amended, what stood before the amendment was no longer material before the
Court and no longer defines the issues to be tried so that the failure to repeat denials to
the allegations of fact made in the statement of claim in an amended defence in the
absence of a general traverse amounted to an admission of those allegations of fact and
no further proof of them is required.

f) Amendment of writ or pleading with leave (Order 16 r 5 &7)

Order 16 r 5 – deals with amendment of writ or pleading with leave.
Order 16 r 5(1) Subject to Order 4 rules 5 & 6 and to the following provisions of this rule
the Court may at any state of the proceedings upon an application by the Plaintiff or any
other party grant leave to;
a) The Plaintiff to amend the Plaintiff’s writ, or
b) Any party to amend the party’s pleading; on such terms as to costs or otherwise
as may be just and in such manner as it may direct.

Look at Order 4 r 5 & 6 –

Rule 5 deals with joinder, misjoinder and non-joinder of parties.
rule 6 deals with amendment that must be effected after joinder
Order 16 r 5(2) –

So Order 16 r 5 deals with the power of the Court to allow amendment to the writ or
pleadings and Order 16 r 7 deals with the power of the Court to order any document
other than a judgment or order to be amended.

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O.16 r 7 is applicable to both writs and pleadings. The principles set out in rule 7 are
based on the principles or essence of amendment that we have considered.
Rules 5&7 read together give the Court the general power to amend or allow
amendments to be made to the writ, pleadings or other documents.

Amendments under the rules – could be made suo motu or on the application of the
parties as provided under Order 16 r 7(1) –
We may also have to consider Order 32 r 6 – which provides that on the hearing of an
application for directions the Court shall in particular consider if necessary on its own
motion whether any order should be made or direction given in the exercise of any of the
powers conferred under Part VIII of the Evidence Decree 1975 (NRCD 323) Order 16 r 5,
Order 33 r 4(2) or Order 38 rules 2 to 7 or any other enactment

g) Application for leave to amend –

Order 16 r 11 – deals with method of applying for leave.
Order 16 r 11(1) Application for leave to amend a writ or a pleading shall be made on
notice to all the other parties to the action.
Order 16 r 11(2) the application shall specify the precise nature of the amendment
intended to be made
(3) and an affidavit may be used in any application for leave to amend under the rule.

So the application is made by motion and may be support by an affidavit (denoting

to/indicating) the factual basis for the application. The nature of the application should
be specified precisely or – in the motion paper and in practice - a draft or proposed
amended pleading or writ is attached (annexed) to the application – In Kai v. Amarkye
[1982-83] GLR 817- It was held that where a party applies for leave to amend his
pleadings it is important that the precise term for the information of the Court but also to
enable the other party to know exactly what it is that is being asked for and to raise
objection if any for leave to amend ought to be given to the extent that the proposed
amendment had been properly formulated ---- It is therefore the duty of every counsel
who applies for leave to amend to amend his pleadings to formulate and state in writing
the exact amendment for which he is asking. A party cannot amend generally and he is
not entitled to introduce in his pleadings amendments that would not have been allowed
if he had stated the exact amendment he seeks. In the instant case although the party
by his notice of amendment intended to amend only paragraph 6 of the statement of
defence he failed to combine his amendment to that paragraph only but included
allegations of fact for which he had not obtained lease. He thereby failed to comply with
the Court order and his conduct amounted t an abuse of the process.

Thus pursuant amendment should be limited to the amendment granted;

1. HYAMS v. STUART[1908] 2 KB 696, 724 per Farwell L.J
2. SEATEC LTD v.PENTON HOOK FARMS LTD & ANOR [1984-86] 1 GLR 605;
3. AGBOADO & OTHERS v. FIANKOR & ANOR [1995-96 GLR 278
4. YEBOAH v. BAFOUR

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Treat also
h) Amending after expiry of Ltd Period – Order 16 r 5
Rodriguez v. Parker [1966] 2 All ER 349, 357; Mitchell v. Harris
Engineering [1967] 2Akk ER 682
Misnomer i.e. correcting the name of a party Rule 5(2) and (3)
Roderiguez v. Parker
Danies v. Elsby Bros Ltd [1961] 1WLR 170, 176
Miss etc.

Order 19
APPLICATIONS/MOTION
Adorsu & Others
Order 19 deals with Application.
Between the time an action is commenced, or sometimes even before it is commenced
(e.g seeking leave to issue writ the service of which would be effected out of the
jurisdiction and the hearing (or even after hearing) - till the disposal of the case, it may
be necessary to apply to the Court for various orders and directions – depending on the
dispute and what the applicant is seeking.

Eg interim or Interlocutory reliefs; application for leave to join and change parties;
application for default judgment, application for substituted service –

By Order 19 r 1(1) Every application in pending proceedings shall be made by motion (2)
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.

In Adorsu & Others v. Sokpoli [1982-83] GLR 1133, 1136 the word motion was
defined as “an application to a Court or a judge for an order directing something to be
done in the applicant’s favour . Ordinarily a motion is to be made only after a notice of
the motion has been given to the party affected but in certain cases it may be made ex
parte” – quoting from New Osborn’s Concise Law Dictionary (6 th ed) – the Court said the
New Osborn Concise ed. defines motion as follows:

So a motion is a request asking a judge to issue a ruling or order on a legal matter. It is

an application to the Court by one of the parties in a cause or his counsel in order to
obtain some ruling or order of the Court, which he thinks becomes necessary in the
progress of the cause. It is

Order 19 r 1(3) except where these rules otherwise provide no motion shall be made
without previous notice to the parties affected.
So 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

217
motion or adjourn the hearing in order that the motion may be given upon such terms as
it considers just – Order 19 r 1(4)

SERVICE OF MOTION ON NOTICE

For this it is provided – Under Order 19 r 2(1) that 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 –
2(2) where leave has been given under sub-rule (1) to serve short notice of motion, that
fact must be stated on the notice.
So that that point is not raise or for the other party to known that the time has been
curtailed

I believe that this would enable the opposite party or the party to be served that the
time has been curtailed or limited so that he would fast tract his response and prepare
for the opposition to it with dispatch.

- So generally there must be 3 clear days’ notice between the service of the motion
and the return date or date fixed for the hearing. The exception would of course
be where leave has been given to serve that notice – as under r 2(2) or
- In case of motion/application for summary judgment as under Order 14 r 2(3)
where the motion should be served on the Defendant not less than four clear days
before the day named in the notice for hearing the application, to
- In an application for Direction the application there should be at least eight (8)
clear days between the service of the notice and the day named in the notice for
the hearing of the application. – Order 32(2) Order 19 r (2) service of motion
together with writ or order.

The Notice of the motion to be made in an action may be served by the Plaintiff on the
Defendant with the writ or at any time after the service of the writ whether or not the
Defendant has appearance: Order 19 r 2(3)

Notice is very important because in law, proceedings by which the other party is not
notified is a nullity and as such the Court will not have the jurisdiction to proceed in the
absence of a person not served –
Remember the case of Vasquez v. Quarshie [1968] GLR 62, - a Court making a
decision in a case where a party did not absence of jurisdiction- See Acheampong v.
Asare [1976] 1GLR 287. Rep v. Circuit Court Judge [1984-86] 1 GLR 741

So notice of motion is served in the same way as other documents requiring service in
the course of an action. But Order 50 r (4) dealing with application to commit a person
for contempt shall be served.
So Order 50 r 1 gives the Court power, without prejudice to its power under Order 7 r 6,
to dispense with service of notice of the motion for contempt if it thinks it just to do so –

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remember Order 7 r 6 deals with substituted service – which is a form of service and not
ex parte.

Normally when the application is made a ruling would be given after each side has been
heard – mover moves, there is an answer from the opposite side – and there is a reply
by them over with the leave of the Court on new matters raised and on legal points.
When the ruling is giving, cost will be awarded normally against the persons whose
application is dismissed or in other cases such as amendment – even and joinder when
the circumstances demand even when same is granted - because as it is said “Cost
normally follow the event” but cost is at the discretion of the Court.-
So in certain circumstances the successful applicant may be given cost which is in the
cause. The Court may look at whether or not it was opposed and whether or not an
affidavit in opposition was filed and the other documents filed, or even the volume of
work done. But cost is not supposed to be a bonus and should not be excessive. But
punitive cost could be given. See Order 74 on cost – which gives the discretion to the
Court to award costs and the power to determine by whom and to whom and to what
extent the costs are to be awarded. See also Order 74 r 2(3).
The application or motion may be
1. On Notice
2. Ex parte
Because Order 19 r 1(3) says except provided by the rules it should be on notice. It
means that when the rules provide it should be ex parte then it should be ex parte.
Eg. Order 7 r 6 application for substituted service. It is said to be ex parte if no notice is
given to the other party.

But even where the rules do not specifically provide that it must be ex parte, there are
certain circumstances that application should necessarily be made ex parte. Eg where the
application is for a default of appearance.

There are also certain circumstances where the essence of the application would be
defeated if made on notice. The general rule therefore is that, unless the rules
specifically require or provide, all motions should be made on notice, but where there are
special circumstances that are proper and expedient their being brought without notice,
then it should be brought without notice. There are some cases in which irreparable
damage or mischief may be caused by the delay in giving notice; in such cases the
Court, if satisfied that the circumstances justify that application be made without notice,
and may entertain the application ex parte.

In what circumstances would the Court grant or refuse Ex parte application?

Order 19 r 3 deals with Ex-parte motions – It provides that subject to rule 1 sub rule (3)
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. – Order 19 r 3(1) Order 19 r 3(2) – The Court may make an
order ex-parte on such terms and subject to such undertaking as it considers just where

219
it is satisfied that delay caused by proceeding in the ordinary way would or might entail
irreparable damage or serious mischief.

Order 19 r 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 irreparable damage or serious mischief
which will be occasioned by proceeding in the ordinary way.

Order 19 3(4) 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.

So from the foregoing the Court may make orders on Ex-parte application where:
i) The rules expressly provide that the application should be made ex parte
ii) Having regard to the circumstances of the case the Court considers it just
and proper etc etc.
The circumstances may include cases of extreme urgency where it would be needed to
avoid irreparable damage. E.g Ex parte applications for interlocutory injunctions may be
granted for cases of real urgency where there has been a true impossibility of giving
notice of the motion. But such injunction may be refused, unless the applicant has an
overwhelming case on the merits, if the delay in making the application has been
insufficiently explained (Bates v. Lord Hailsham of St. Marylebone [1972] 1 WLR
1373; [1972] 3 All ER 1019

Where an ex parte applicant has the task of satisfying a tribunal that certain
requirements are fulfilled, if the information which he supplies is so meagre that the
tribunal cannot form any confident opinion on whether or not the requirements are
fulfilled, it will not be satisfied that they are, and the application will fail, not because of
any principles applying to ex parte proceedings, but simply for want of proof ( Tetron
Inc’s Patent [1988] rr. PC 177, 184

Being made ex parte, the applicant must lay all facts before the Court and nothing
should be suppressed (See R v. Kensington Income Tax Commissioners [1917]1KB
486, 504, CA

Further, an applicant making an application must observe utmost good faith. Order 19 r
4 provides that “Every application shall be supported by affidavit deposed to by the
applicant or some person duly authorised by the applicant and stating the facts on which
the applicant relies, unless any of these Rules provide that an affidavit shall not be used
or unless the application is grounded entirely on matters of law or procedure which shall
be stated in the motion paper.

So a motion shall consist of:

1. The motion paper – which gives a precise/consist of the nature of the application
what the application is about

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 2. The affidavit in support of the motion. Unless the application is grounded entirely
on matters of law or procedure which is stated in the motion paper.

These should be complied with whether the motion is on notice or ex parte.

Since the applicant must observe utmost good faith in an ex parte application, the
supporting affidavit must not contain any mis-statement of act – REPUBLIC OF PERU
v. DREFUS (1886) 55 LT 802

If therefore the applicant making an application ex parte fails to disclose all material
facts, then the order made on such an application may be set aside.

In an application or motion on notice- the Respondent to the application may also

depose to an affidavit stating the facts on which he relies to oppose the application. Or
he may also oppose the same entirely on matters of law or produced which may be
alluded to in an affidavit or if so apparent on the face of the application without an
affidavit.

The last rule of Order 19 i.e. Order 19 r 5 provides for “Bringing a prisoner to give
evidence” – thus – An application for an order to bring a prisoner, otherwise than by writ
of habeas corpus to give evidence in any proceedings civil or criminal before a Court,
tribunal or Judge, shall be made by motion ex parte supported by affidavit to a Judge in
chambers.

1. List of Rules providing for Application Ex parte

2. PRECEDENT(S) OF MOTION PAPER
(I) TITLE
(II) MOTION PAPER

Order 20
AFFIDAVITS

But by Order 19 r 4 Every application shall be supported by affidavit deposed to by the

applicant or some person duly authorised by the applicant and stating the facts on which
the applicant relies, unless any of these Rules provide that an affidavit shall not be used
or unless the application is grounded entirely on matters of law or procedure which shall
be stated in the motion paper.

So we are now dealing with Affidavits Order 20

We may also look at Order 25 r 1(3) where in an application for the grant of an
injunction by an interlocutory order the applicant was required to attach to the motion
paper and the supporting affidavit, a statement of case setting out fully arguments,
including all relevant legal authorities, including all relevant legal authorities, in support
of the application”

221
 And by Order 25 r 1(4) a respondent who describes 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”

Rep v Written statement of case containing full arguments and legal authorities relied
Court upon as also required for application for Judicial Review under Order 55 r (2)
of
Appe
al By Order 20 rule 1 an affidavit may be used wherever these rules provide. This
Accra,
Ex
rule should be looked at together with Order 19 r 4
parte
Tsikat
a
The ruling of an affidavit in opposition has been referred to and considered. But
2005- we must note also that failure to file an affidavit in opposition does not mean that
2006]
SC
the Respondent is not opposing the application, because his objection may be
GLR legal or procedural in nature and may therefore no need an affidavit- (See Bonsu
612,
626
v. Eyifah) Thus in BONSU v. EYIFAH [2001-2002]1 GLR 9-

Where the Defendant filed an application to strike out the writ of summons for the
revocation on recall of grant of Letters of Administration without preceding it with
a citation calling upon the Defendants t produce the L/A at Court registry first
contrary to section 67 of the administration of estates act 1960 (Act 63) and
Plaintiff did not file affidavit in opposition to the application. Where objections
intended to be raised by a Respondent against the application were legal.
There was no need for the Respondent to sear to or file an affidavit in opposition.
In the instant case, no facts were deposed to in the Defendant’s affidavit which
required any reaction from the Plaintiff in the form of an affidavit in opposition.
The Plaintiff was therefore right in not filing only affidavit in opposition.

In REPUBLIC v. EDWARD WIREDU, Ex PARTE HAMIDU [2001-2] 1GLR 272 The

question posed by the case was “what happens if a statement of case is not signed” –
Held that there was no rule of practice which required that a statement should be signed
or that a statement filed in support of an affidavit should be filed, especially when the
affidavit itself was also filed and made reference to the statement. In the circumstances,
where a statement was neither signed nor filed when it should have been then it was
defective. However, where the statement was attached to the filed affidavit, the defect
was procedural and curable under Order 70 r1. In the instant case since the statement
was not required to be signed separately, it was no fundamentally defective.

What then is an affidavit?

An affidavit is a written or provided declaration or statement of facts made voluntarily
and confirmed by an oath or affirmation of the party making it taken before an officer
having authority to administer such oath or affirmation. In effect it is a sworn statement
used as evidence of the matter deposed to.

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Order 20 rr 1, 2 & 11
R1 the use of affidavit - When can affidavits be used – the rule says “ An affidavit
may be used whenever these rules so provide.

R2 Persons who may take affidavits

Affidavit shall be sworn before a judge, magistrate, registrar, commissioner for oaths,
any officer empowered by these rules or by any other enactment to administer oaths.

R11 Affidavit not to be sworn before lawyer of party

-“No affidavit shall be acceptable if worn before the lawyer of the party on whose behalf
of the affidavit is to be used or before any agent, partner or clerk of that lawyer.

OATHS ACT, 1972 (NRCD 6)

Section 9 – 10(1) & 11(1)
Section 9 – Authority to Administer Oaths
1) The Chief Justice, any other justice of the superior Court of judicature, a circuit
judge, a district magistrate, the judicial secretary, a notary public and any
commissioner for oaths, may administer any lawful oath or take any lawful
affirmation or affidavit which may be required to be taken or made for the
purpose of complying with any law for the time being in force in Ghana or
elsewhere, except where such law e expressly or by necessary implication
excludes such procedure.
2) The registrar of any Court and the officer performing the duties or registrar in
any Court may, with the approval and subject to the supervision and control of
the person presiding over the Court, administer or tender to any person about
or intending to give evidence before such Court the evidence oath or
affirmation or any oath, affirmation or declaration which that person may
require or be required to take or make before such Court
Section 10 deals with Taking of Oaths out of Ghana
5. 10;
(1) Any oath or affidavit required for any Court or matter in, or for the registration
of any instrument in Ghana, may be taken or made in any place out of Ghana
before any person having authority to administer an oath in that place.
(2) In the case of a person having such authority otherwise than by the law of
country other than Ghana, judicial and official notice shall be taken of his seal
or signature affixed, impressed or subscribed to or on any such oath a
affidavit.

Section 11 Power of Ghana Official Abroad.

5. 11;
(1) Every Ambassador, High Commissioner, Minister, diplomatic agent and consular
officer of Ghana in any foreign country may do any notarial act which any notary public
may do within Ghana, and every oath, affidavit and notarial act made or done by or

223
before such a person is as effective as if made or done by or before any lawful authority
in Ghana
(2) any document purporting to have affixed, impressed or subscribed thereon or thereto
seal or signature of any person authority by this section to administer an oath in
testimony of any oath, affidavit or act being administered, take or done by or before him,
shall be admitted in evidence without proof of such seal or signature, or of the official
character of that person.

Order 20 r 15 also dealing with Affidavit taken in other countries.

-“A document purporting to have fixed, impressed or subscribed on it the real 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.

FORMAL REQUIREMENTS
(i) Title
Every affidavit should bear the same title as of the cause or matter and of
cause of the motion- Order 20 r 3(1) subject to sub-rules (2) & (3) of this
rule, an affidavit sworn in any cause or matter shall bear the title of that
cause or matter.
(ii) 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”.
(iii) 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”
While it is necessary that every affidavit sworn in a cause or matter must be entitled in
that cause or matter, the title can be in the simplified form as in Order 20 r 3(2) & (3)
which is avoid the need for stating all the matters but the first in which the cause or
matter is entitled (ii) enable the affidavit to be entitled between the parties only even
where the cause or matter is entitled in a matter or matters and between parties and (3)
enable the names of CO-Plaintiffs and of Co-Defendants to be omitted.

3) Physical Form: r 4(1), Order 78 r 1 & 2

Every affidavit shall be printed, written or typed and shall be numbered consecutively:
Order 20 r 4(1)
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 – r 4(2) Order 78 r1
provides that unless the nature of the document renders it impracticable, every
document prepared by a party for use in Court shall be a fulscap or quarto size paper
Order 78 r 2 to the effect that except the rules provided otherwise, every document
prepared by a party for use in the Court shall be produced.

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 (a) By printing
(b) By writing, which shall be clear and legible o
(c) By typing
And may be produced party by one of those means and partly by another or others
Order 78 r 2(2) – for the purposes of these Rues a document is printed if it is produced
by type lithography or stenoil duplicating or computer printing.

Order 78 r 2(3) Any document produced by a photographic or similar process giving a

positive and permanent representation free from blemishes shall, to the extent that it
contains a facsimile of any printed, written or typewriter matter, be treated for the
purposes of these Rules as if it were printed, written or typewritten as the case may be.

Place of residence and occupation Hyde v. Hyde (1888) 59 LT 523 Affidavit giving no
address, or only an illusory address, were rejected

4) The provision for residence and place of the occupation and other occupational
capacity – requires that in such case the position the deponent holds in his firm should
stated. This is without prejudice of the Court to allow defective or irregular affidavit to be
filed or used in evidence to validate any irregularity by reason of non-compliance.

5) Paragraphs – Order 20 r 4(3)

Every affidavit shall be divided into paragraphs numbered consecutively, each paragraph
being as far as possible confirmed to a district portion of the subject.

6) Dates, sums and other Numbers may be expressed in an affidavit in figures or in

words on both – Order 20 r 4 (4)

7) Signature of deponent
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 – Order 20 r 4(5)

The Jurat: Order 20 r 4 (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
Eg.
Sworn before me
at Kumasi
this .....day of .......... 2011 ....................................

Moses Samuel Mensah Deponent

Commissioner for Oaths
The practice is for the person before whom the affidavit is sworn to affix his stamp or
shall be endorse it.

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 8) Affidavit by two or more deponents
- Order 20 r 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 is sworn by both or all of the “above named”
deponents.

9) Affidavit by illiterate or blind person Order 20 r 6(1) Where it appears to

the person administering the oath that the deponent is illiterate or blind, the
person administering the oath shall certify in the jurat that

(a) The affidavit was read to the deponent in the presence of the person
administering the oath;
(b) The deponent seemed perfectly to understand it; and
(c) The deponent signed or marked the affidavit in the presence of the person
administering the oath.

Sworn before me
At Kumasi this day of 2011
After the contents have been read over, interpreted and explained to him/her in the Twi
language by when /and he seemed perfectly well to understand the same before
making her mark/signing thereto in my presence.

In Re Long Stable (1885) 52 LT 681 where it appeared that the deponent was illiterate
and that affidavit previously sworn by him had not been read over to him in the presence
of the commissioner, they were ordered to be taken off the file.
Order 20 r 6(2) An affidavit sworn by a deponent to whom sub rule (1) applies shall not
be used in evidence without the certificate referred in the sub-rule unless the Court is
otherwise satisfied that it was read to and appeared to be perfectly understood and
approved by the deponent.

“sworn before me at Kumasi this.....day of......... 2011 after the contents have been first
truly, distinctly and audibly read over to the deponent [if the deponent is blind, add-he
being blind. If there be exhibits, add-and explained the nature and effect of the exhibits
therein referred to] who appeared perfectly to understand the same and made his mark
thereto in my presence”

See Kwanin v. Kuffour –

10) Defective affidavits: The use of defective affidavit – Order 20 r 7 An affidavit
may with leave of the Court be filed or used in evidence notwithstanding any
irregularity in its form

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So e.g the absence of certification may not be sufficient to invalidate the affidavit if it can
be proved to the Court that indeed the affidavit was read to the deponent and he
perfectly understood and approved of the same.

In Ex parte Johnson (1884) 26 Ch D 338 it was held that an affidavit filed, sworn
before a commissioner, who in the jurat merely signed name, but did not add his title as
commissioner was held sufficient. But the description ought not to be omitted.

The rule in Order 20 r 7 is only permissible. If the irregularity can be cured without under
hardship, or is not a matter of substance or affects its actual contents, then it should be
put right. And in the appropriate case any costs will fall on the solicitor responsible.

An affidavit in which was an interlineations not initiated by the notary public before
whom it was sworn was allowed to be filed, the words being immaterial ( Re Clerke
(1891) 61 LJ CR 69. So also, an affidavit which was allowed to be filed though the words
“before me” were omitted from the jurat ( Eddowes v. Argentine Mercantile Agency
Co (1880) 38 WR 629; and affidavits sworn in America which were allowed to be filed
though the title was omitted (Blamey v. Blamey [1902] WN 138

See also Re London Asphalte Co (1907) TLR 406 (German affidavit sworn before
notary) an affidavit taken off the file to be corrected and re-sworn may be allowed to be
re-filed without further fee.

11.Contents – Order 20 r 8. Order 8 (1) In affidavit shall contain only facts that
the deponent can prove, unless any provision of these Rules provides that it may
contain a statement of information or belief on both.
2) An affidavit sworn for the purpose of being used in interlocutory proceedings
may contain a statement of information or belief or both with the source of the
information and the grounds the belief.

Proceedings are not interlocutory proceedings” within this rule merely because they are
seeking an interlocutory order and not a final order.

A distinction is drawn between interlocutory proceedings generally and interlocutory

proceedings where an issue has to be determined, the latter class falling outside this
rule. “For the purpose of this rule those applications only are considered interlocutory
which do not decide the rights of parties, but are made for the purpose of keeping things
in status quo till the rights can be decided, or for the purpose of obtaining some direction
of the Court as to how the cause is to be conducted, as to what is to be done in the
progress of the cause of the purpose of enabling the Court. Ultimately to decide upon the
rights of the parties” Gilbert v. Endean (1878) 9 CHD 259, 269, applied in ROSSAGE
v. ROASSAGE [1960] 1 All ER 600, CA [1960] 1 WLR 249 Re J (An Infant) 1960 1 All
ER 603 1 WLR 253.

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So an affidavit was required to contain on facts ONLY as the deponent can prove unless
or except where the rules permit him to make statements as to information and belief.
The affidavit in interlocutory proceedings may contain statement of information or belief
or both with source of the information and the grounds of the belief. E.g in what the
bailiff told you in service situation or what counsel told you as effect of law of rights.
“with the sources of information and grounds of......”
Although in practice the grounds of a witness’s information or belief are frequently not
stated, a deponent should never state that he believes something unless he has applied
his mind t the matter and concluded that there are good grounds for his belief: the
widely used formula “I am informed by A and believe that .....” should not be used
without care, further, a party against whom an affidavit of information or belief which
omits the relevant grounds is made entitled to take the objection and if the objection is
one of substance, the Court is found to pay regard to it and the Courts have commented
strongly on the irregularity of an affidavit founded upon information and belief merely,
without giving the source of such information and belief ( Re: J.L Young
Manufacturing Co. [1900] 2CL 753, CA.
See Lumley v. Osborne [1901] 1KB 532
Under Order 20 r 8(2), a deponent may give not only first-hand hearsay evidence, but
also second-hand hearsay. That is he may say not only ‘‘I have been informed by A and
believe that X’’; but also ‘‘I have been informed by A that he has been informed by B that
X, which I believe’’
Savings and Investment Bank Limited v. Gasco Investments (Netherlands)
B.V [1984] 1 AU ER 296 1 WLR 271

There are conflicting decisions whether the rule enables second-hand hearsay evidence
to be given without identifying the ultimate source. In the Savings and Investment
Bank case, Supra, Peter Gibson J held that such evidence is only admissible if the
original source is identified. At page 283-284 he said further ‘‘I find it impossible to
accept [the] submission that it is sufficient to comply with r 5(2) that the deponent
should identify only the source of his information even though it is clear that the source
was not the original source. Thus if the deponent was informed of a fact by A, whom the
deponent knows not to have first-hand knowledge of the fact but who had obtained the
information from B, ‘‘I cannot believe that it is sufficient for the deponent to identify A as
the source of the information’’

But in Deutsche Ruckversichering AG v. Walbrook Insurance Co. Limited [1994]

4 U ER 181; [1995]1 WLR 1017 Philips decline to follow Peter Gibson J’s decision and
held that although if the original source of information is known it must be identified,
where the original source is unknown the statement is nevertheless admissible under r
5(2) of the English rule i.e. O.20 r 8(2) and the inability to identify the original source
goes only to the weight to be attached to the evidence, see page 191 of judgment.

In Ibrahim v. Abubakari [2001-2002] 1 GLR 540 it was held that affidavits, like
pleadings, deposed to specific facts or material facts. Under Order 33 r 3 of LN 140

228
affidavits were to be confined solely to fact that the witness was able of his own
knowledge to prove. Like a statement of defence therefore, if the respondent in his
affidavit in opposition did not deny specifically a particular allegation of fact contained in
the supporting affidavit, he was deemed to have admitted the fact. Consequently, it was
not enough to depose to a general traverse in answer to specific allegations of fact. In
the instant case, the applicant deposed to specific facts or instances of malfeasance by
the Respondent which were allegedly done in breach of the order of the High Court
forming the basis of his application. Since the Respondent did not specifically deny those
allegations, the Respondent was deemed to have admitted them: Armah v Addoquaye
[1972] 1GLR 109, CA applied

d) Scandalous Matters
Scandalous and irrelevant matter in affidavit – Order 20 r 9
-The Court may order any matter which is scandalous, offensive, irrelevant or otherwise
oppressive to be struck out of an affidavit.
E.g. the Court will strike out irrelevant, oppressive and offensive averments or containing
insulting language or seeking to introduce inadmissible or privileged evidence of
information.
- An affidavit must be pertinent and material and may be ordered to be taken off the file
if scandalous and irrelevant matter is inserted-
Rossage v. Rossage [1960] 1 AU ER 600, - or the scandalous matter may be expunged
(Warner v. Moses [1881] WN 69)
The Court will only strike out matter that is both scandalous and irrelevant, or is
otherwise oppressive (per Buckley J; Re Jessop [1910] WN 128. – a case in which the
English Court of Appeal refused to strike out extracts from letters marked ‘‘without
prejudice’’. The Court is not bound to strike out such matter (Re J. An Inter [1960] 1 AU
ER 603)

The Court will strike out portions of affidavit dealing with negotiations for a settlement, if
necessary upon a.....................

As to what is scandalous matter the same principles applied as in Order 11 r 18

The Court has an inherent power to take an affidavit off the file for proxility e.g. an
affidavit of documents of oppressive length.
The Court will also strike out facts and matters deposed to in an affidavit which are
inadmissible in evidence as being insulting/irrelevant or otherwise oppressive e.g
references
(Savings and Investments Bank Limited v. Gasco Investment (Netherlands)
B.U [1984] 1 AU ER 296 See also the case of Savings and Investment Bank v.
Gasco (Noz) 1988 CL 422

e) Alterations
Alterations in Affidavit provided for in Order 20 r 10

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 1. An affidavit which has in the body an interlineations, 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.
2. Where an affidavit is sworn at any office of the Court, the official stamp of that
official may be substituted for the signature or initials required by this rule.

So no alteration can properly be made in an affidavit after it has been sworn and any
commissioner initialling such an alteration (without re-swearing). To obtain leave to file
affidavit with an interlineation not initialled ex parte or otherwise an
application should be brought.
In Re Clarke (1861) 61 LJ CL 69, it was held that the Court has no power to allow the
filing of an affidavit in an action containing an inter lineation not marked as provided
under the rule. But an affidavit with interlineations not initialled was allowed on the
grounds that the words were immaterial.

f) Affidavit not to be sworn before lawyer of party – Order 20 r

11
No affidavit shall be accepted if sworn before the lawyer of the party on whose behalf
the affidavit the affidavit is to be used or before any agent, partner or clerk of that
lawyer.
So where one of the affidavits under the English Deeds of Arrangements Act 1887 (now
replaced by Act of 1914) was sworn before the solicitor to the trustee of the deed, the
deed was void. (Re Bagley [1911] 1KB 317, CA).
Similarly an affidavit taken before the solicitor to the grantee of a bill of sale invalidated
the registration – Baker v. Ambrose [1896] 2 QB 372.
Affidavits sworn before a country solicitor who was the correspondent of the London
solicitor were ordered to be taken off the file (Parkinson v. Crawshay (1894).
g) Filing of Affidavit –Order 20 r 12
Every affidavit used in any proceedings shall be filed in the registry of the Court in which
the proceedings are brought.
a) 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.
Making: It is in practice, marked at the top right hand cover of the first and last
pages in clear permanent dark blue or black marking the following:
a) The party on whose behalf it is filed
b) The initials and surname of the deponent
c) The number of the affidavit in relation to the deponent
d) The date when sworn –
See the white Book 1997 ed 41/11/2

h) DRAFTING Points to Note.

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 Order 32
APPLICATION FOR DIRECTIONS
After the close of pleadings and before the trial there is Application for Directions,
formerly called Summons for Directions (i.e under LN140A. It is now provided for Under
Order 32. The principal intention for this was that there should be a thorough stocktaking
relating to the issues in an action, and the manner in which the evidence should be
presented at a trial with a view to shortening the length of the trial and saving costs
generally. The Court will make sure that the pleadings are in order and that the case is
fit for trial and it is at this stage that the Courts looks forward and set down the issues
for trial and considers the manner in which evidence should e presented with the aim of
shortening the length of the trial and saving costs.

Order 32 r 1 – Sets out the purpose of the Application.

1(1) In every action to which this rule applies, an application for directions shall be made
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.
Order 32 r 1(2) gives a list of actions in respect of which Application for Directions are
expected or excluded. It provides that ‘‘This rule applies to all actions except;
a. Actions in which directions are given under Order 11 r 19, Order 14 rule 6 and
Order 25 rule 7
b. Actions in which an order for 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

i. Order 14 r 6 – deals with actions in which a party applies for summary judgment
and leave to defend is given or execution stayed under Order 14 rule 5, the Court
may give directions as to the further conduct of the action as may be given on an
application for direction, and may order the action to be set down for trial
forthwith or at such dates as the Court considers proper.
ii. Order 25 rule 7 – where an application is made under Order 25 for interlocutory
injunction, Order 25 rule 1 the detention and preservation of property Order 25 r
2, the taking of samples Order 25 r 3 for the sale of perishable property and the
recovery of movable property subject to her [Order 25 r 6]
- The Court may give directions as to the further conduct of the cause or matter
- See also Order 25 r 7(1)(2)(3)

iii.
Actions in which an order to take accounts has been made under Order 29 rule 1
iv.Actions for the infringement of a patent (See section 11(i) of the Patent Act 2003,
Act 657)
v. Matrimonial causes or matters under Order 65 (See Order 65 r 21)
Commercial Court actions –

231
We may also have to look at Order 58 which does not make provision for application for
directions

b) Duty to file Application – Application by Plaintiff

There is a duty on the Plaintiff to file an application for directions within one month after
the close of pleadings: - Order 32 r 2(1)
The sub rule further provides that the notice of the application for directions should be
served on all the other parties to the action.
Order 32 r 2(2) there shall 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 – i.e. the return date
–

Order 32 r 2(4) In the case of an action which is proceeding in respect of a counterclaim

only, reference in this rule to the Plaintiff shall be construed as a reference to the party
making the counterclaim.

Additional Issues (Rule 4)

The 8 days notice to the other party is important because that party on whom it is
served may require the Court to make orders and directions in addition to those required
by the Plaintiff or file Additional Issues to the Issues filed by the Plaintiff.

This is provided by Order 32 r 4 Under Direction required by the other parties-

Order 32 r 4 “Any party on whom an application for directions is served in accordance
with rule 2 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 in the action and shall, not less than seven days before the hearing of the
application for direction. File for service on the other parties a notice specifying those
orders and directions if they differ from the orders and directions asked for in the
application for direction” eg. Given opportunity to file additional issues.

Failure of Plaintiff to apply for Directions

Order 32 r 3
Order 32 r 3(1) Where the Plaintiff does not apply for direction in accordance with rule 2,
a Defendant may do so or may apply for an order to dismiss the action.

3(2) where a Defendant applies to dismiss the action under sub rule (1) the Court may
either dismiss the action on such terms as may be just or dealt with the application as if
it were an application for directions” so Defendant may apply for directions or apply for
the dismissal for the action for want of prosecution. But 3) if the Defendant opts for the
second option, the Court may either dismiss the action if it finds it just to do so or may
treat that application as an application for directions.

232
The Court may so treat it for example if by the time the application is dealt with or
considered the Plaintiff had filed an application for directions, in which case it would not
be ignored or disregarded.

So at the application for directions stage the Court has power to dismiss the action in
circumstances like as under Order 11 r 18 or for default as under Order 11 r 1 – failing to
file and serve the statement of claim of claim at the same time as the writ or Order 2 r 6
or as Order 21 r 14(a) default in complying with order for discovery or production of
documents discovery.

These powers of the Court are irrespective of or in addition to the jurisdiction to dismiss
an action for want of prosecution if there has been default in complying with these rules
or excessive delay in the prosecution of the action.

Generally speaking the same principles are applied whether the Court is acting under its
express power or under its inherent jurisdiction.

The Court generally will dismiss the action for want of prosecution on two distinct though
related circumstances where the Plaintiff is guilty of (a) Intentional Contumelious default
or (b) Inordinate and inexcusable delay in the prosecution of the action (See Birket v.
James [1978] AC 297-318; Allen v. Mc Alpine [1968] 1 All ER 543.

11. Intentional and Contumelious default

By this is meant deliberate default in compliance with a peremptory order of the Court
or, perhaps, conduct amounting to an abuse of the process of the Court –
WALLERSTERINER v. MOIR[1974] 3 All ER 217; 1 WLR 991 see also Re Jokai Tea
Holdings Ltd (Note) [1992] 1WLR 1196; [19931 All ER 630, CA and Grand
Metropolitan Nominee (No2) Co Ltd v. Evans [1992] 1WLR 1191; [1993] 1All ER
642, CA for meaning of contumelious default.

A peremptory order is one which makes clear to the other party, either from its terms or
from the circumstances in which it was made that exact compliance with further
argument is required by the Court within a stated time and indicating expressly or by
implication, that default will incur serious consequences.

The exclusion from a party who deliberately disobeys a peremptory order of a Court is
appropriate where there is a real risk that the default will render the fair trial of the
action impossible and any judgment in favour of the Defendant unsafe. Once the order
has been complied with, even if compliance is after the time stipulated in the order, the
default will not be excluded from the proceedings unless the circumstances are
exceptional and there remains a real risk that justice cannot be done. The best practical
form of peremptory order is the “Unless Order”. This is in the following, or similar effect:
“that unless the Plaintiff by 4 p.m. on February 28, 1997 has set the action down for trial
the action be dismissed with costs”.

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See Walkersteiner v. Moir [1974] 3 All ER 217
Samuel v. Linzi Dresses Ltd. [1981] QB 115 126 – 127
JANOS v. MORRIS [1981] 3 All ER 780, CA

The jurisdiction for this draconian jurisdiction is the principle that “orders are made to be
complied with and not ignored” per Roskill L. J. in Samuel v. Linzi Dresses Ltd. pp
126 – 127. J

It may be argued that it is not as harsh as it might be thought since;

a) A mere failure to comply with a rule is not regarded as sufficient for its
exercise; there must be disobedience of an express, peremptory order. It is
also unusual to make a peremptory order on the first recession that the
matter is before the Court. If the defaulter has any reasonable explanation,
he may obtain an extension of time, even (though rarely) after the time has
expired – Janos v. Moris.

Also generally speaking, the defaulter can cure the default at any time before the order
for dismissal is made. The same principle applies to a defaulting Defendant.

b) Inordinate and inexcusable delay

The requirements are:
i. That there has been inordinate and inexcusable delay on the part
of the Plaintiff or his lawyers and
ii. That such delay will give rise to a substantial risk that is not possible
to have a fair trial of the issues in the action or is such as in likely to
cause or to have caused serious prejudice to the Defendant either as
between themselves and the Plaintiff or between each other or
between them and a third party – see Birkett v. James [1978] AC
297, 318.

But what is “serious prejudice” depends on the facts; if the Plaintiff has already added to
the Defendant’s difficulties by taking full advantage of the delay permitted by the
Limitation Acts, any further prejudice beyond the minimal may be “serious”. Birkett v.
James.
Inordinate Delay refers only to delay after the issue of writ not before. Delay before the
issue of writ is irrelevant. But later the Plaintiff starts his action the higher the duty to
prosecute it with diligence (Birkett v. James).

Once the writ is issued the Plaintiff is bound by the rules to proceed with reasonable
diligence.

“Inordinate” means “materially longer than the time usually regarded by the profession
and Courts as an acceptable period (Birkett v. James).

234
Prejudice to the Defendant – is a matter of fact and degree has been dismissed in Allen
v. McAlpine.

The effect of the lapse of time on the memory of witnesses or in the course of such time
of their death or disappearance are the most usual facts. Thus the lapse of time may be
very prejudicial if the circumstances of an accident or oral contract or representations are
in issue, but is of much less importance in a heavy, well-documented commercial action
(National Insurance Guarantee Corp Ltd. v. Robert Bradford & Co. Ltd 91970)
114 S. J. 436, CA

Rule 5 – the Court’s Duty to consider all matters –

Order 32 r 5, as well as rules 1 and 6 by the word – “the Court shall consider all the
matters required to be dealt with on the application for directions, and at what stage to
deal with such matters. For this the Court is entitled to and ought to receive the fullest
assistance and co-operation of the parties.

The Court is bound itself to consider and deal with all such matters, even though the
parties may have agreed to the terms of a proposed or on the application for directions,
although due weight will be given to such an agreement.

So the effect of the rules is for the Court to consider at the hearing of the application, as
many interlocutory matters as possible and to complete the hearing if possible. If,
however there is good reason to adjourn as to some matters, the Court will make an
order on the directions already given (which will be drawn) and adjourn as to the
remainder.

In any event, the decisions to the place and mode of trial and fixing of any date for trial
will be made only when the order is being finally completed, unless the parties agree to
the making of an order to the place or mode of trial.

Quote rule 5 –
Rule 6 – Specific Matter Under any relevant statute that the Court may take into
consideration.

Order 32 r 6 provides that:

“On the hearing of an application for directions the Court shall in particular consider if
necessary on its own motion whether any order should be made or direction given in the
exercise of any powers conferred under Part VIII of the Evidence Decree (NRCD 323),
Order 16 r 5, Order 33 r 4 (2) or Order 38 r 2 and 7 or any enactment”.

So under this rule the Court was to consider those specific matters mentioned in certain
statutes that the Court was to take cognisance of at the trial suo motu: these are:
i) The Court’s power with regard to the admissibility or otherwise of
hearsay evidence or (its exception) under Part VIII of the Evidence
Act.
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 ii) Amendment with leave of the Court under Order 16 r 5
iii) Different questions and issues as to the determination of the mode
of the trial and the implication of those questions – an order fixing a
date for the trial of the action and which shall contain an estimate of
the length of the trial.
iv) Order relating to taking of evidence generally as under Order 38 r 2

Rule 7 – Admissions
Order 32 r 7 deals with admissions and agreements to be made.
Order 32 r 7 (1) provides that “At the hearing of an application for directions, the Court
shall endeavour to secure that the parties make submissions and agreements so as to
the conduct of the proceedings which ought reasonably to be made by them and shall
incorporate in the order on the application any admission or agreements so made and
any agreement subject to any special order as to costs being made at the trial” but
(2) Nothing in this rule shall be construed as requiring the Court to endeavour to secure
that the parties agree to exclude or limit any right of appeal.

This rule helps to save costs and shorten the length of the trial, any reasonable
agreements between the parties as to the conduct of the trial ought to be made at this
stage. The result will be to save costs of calling witnesses at the trial to shorten the
length of the trial generally. It is manifest that a party cannot be expected to admit a
fact or document except when the fact or document is brought to his notice before or at
the hearing.

The Order for direction will record any refusal of a party to make admissions or
agreements that seem to the Court reasonable to have been made, and at the trial the
judge would be in a position to penalise in any costs any such refusal.

The Court however has no duty to persuade the parties to limit their right of appeal, but
only to record any actual agreement made under the English rule. An undertaking not to
appeal must be a formal one e.g. contained or ordered in an order ( Re Hall & County
Bank (1880) 13 Ch D 261.

Duty to give all information at hearing

8. (1) Subject to subrule (3), no affidavit shall be used at the hearing of an application
for directions except by leave or direction of the Court, but, subject to subrule 1 (5), it
shall be the duty of the parties to the action and their lawyers to give any information
and produce any documents at the hearing of the application as the Court may
reasonably require to enable it deal properly with the application.

(2) The Court may, if it appears just so to do in a case involving the security of the State,
authorise any information or document to be given or produced to the Court without
being disclosed to the other party but, in the absence of such authority, any information

236
or document given or produced under subrule (1) shall be given or produced to all the
parties present or represented at the hearing of the application as well as to the Court.

(3) No leave shall be required by virtue of sub rule (1) for the use of an affidavit by any
party on the hearing of an application for directions in connection with any application
for any order if, under these Rules, an application for the order is required to be
supported by an affidavit.

(4) Where the Court at the hearing of an application for directions requires a party to the
action or his lawyer to give any information or produce any document and that
information or document is not given or produced, then, subject to sub rule (5), the
Court may

(a) cause the facts to be recorded with a view to awarding costs as may be just at the
trial;

(b) order the whole or any part of the pleadings of the party concerned to be struck out,
if it appears to the Court just to do so; or

(c) order the action or counterclaim to be dismissed on such terms as may be just, if the
party is plaintiff or the claimant under a counterclaim.

(5) Notwithstanding anything in the foregoing provisions of this rule, no information or

documents which are privileged from disclosure shall be required to be given or produced
under this rule by the lawyers of any party except with the consent of that party.

Applications for further order

9. (1) Where the hearing of an application for directions is adjourned and any party to
the cause or matter wishes to apply at the resumed hearing for any order or directions
not asked for by the application or in any notice given under rule 4 the party shall, not
less than two days before the resumed hearing of the application, serve on the other
party a notice specifying those orders and directions in so far as they differ from the
orders and directions asked by the application or in any notice under rule 4.

(2) Any application subsequent to the application for directions and before judgment as
to any matter capable of being dealt with on an interlocutory application in the action
shall be made under the application for directions by two clear days' notice to the other
party stating the grounds of the application.

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 ORDER 43
ENFORCEMENT

Order 43 deals with Enforcement of judgments and Orders. Necessary because of what
benefits are judgments and order if not enforced.
The rule groups together the methods for the enforcement of the judgments and orders
of the Court. Together they constitute a code of procedure on the subject of what is
called “execution”.
They are important because they deal with the various ways in which a successful party
can employ the machinery of the Court towards obtaining satisfaction of his judgment or
order on compelling compliance with or obedience to the same.
Thus it is important to always know the following:
1. The Debtor – who the Debtor is
2. Whether he has Assets or Properties to satisfy the judgment debt or against which
execution would be levied.
3. Whether assets or properties are available for execution or enforcement of
execution.

a) Oral Examination of judgment Debt – Order 46

Where after judgment has been obtained and the judgment debtor does not pay or has
not paid for the judgment debt then the judgment creditor could apply ex-parte, for an
order to bring the debtor before the Court in order to examine him as to his means. In
that case if the judgment debtor is a body corporate, the order can be made against an
officer of the company. The person is then ordered to attend Court to be examined orally
on the questions;
i) Whether any debtors are owing to the judgment debt.
ii) Whether the judgment debtor has any property or other means of
satisfying the judgment or order. In that case the hearing “is not
intended to be an examination, but a cross-examination and that of the
severest kind” (Republic of Costa Rica v. Stromsburg (1880) 16 Ch
D 8.
Quote order 46.
Order 46 r 1 (2) An order under this rule shall be served personally on the judgment
debtor and on any officer of a body corporate ordered to attend for examination
Order 46 r 2 – Examination of party liable to satisfied the judgment
Where any difficulty arises in or in connection with the enforcement of any judgment or
order, other than a judgment or order as mentioned in rule 1, the Court may make an
order under that rule for the attendance of the party liable to satisfy the judgment or
order and for the examination of that party on such questions as may be specified in the
order and that rule shall apply accordingly with the necessary modifications.

b) Enforcement against the State

Sections 15 and 16 of the State Proceedings Act, 1998 Act 555 – by which the victorious
party is required to file an application not earlier than twenty one (21) days after the

238
date of the order for a certificate containing the particulars of the order and served the
certificate on the Accountant General if it contains an order for payment of money and
on the Attorney General and if it does not contain any such order on the Attorney
General.

If an amount is endorsed on the certificate, it shall be paid to the person entitled or his
lawyer. If upon obtaining and serving the certificate of particulars, the state does not
comply with the terms of the judgment, then the order may be enforced in the same
manner as any other mode in an action between private persons – Ministry of Health
& Ors v. Annan & Others [2001 – 2002[ 1 GLR 527 – that the Attorney General’s fiat is
no longer needed before going into execution of 1st the State since Article 211 (1) of
1979 Constitution replicated in Article 17 (1) of the 1992 Constitution, abrogated the
legal restrictions in the State Proceeding Act (Amendment) Decree 1969 NLCD 352 on
the individual right to seek justice in the law Court.

c) Enforcement of Foreign Judgment and Maintenance Order

Part V of the Courts Act; Foreign Judgments and Maintenance Order (Reciprocal
Enforcement) Instrument, 1993 (L. I. 1575); Orders 71 and 72. At common law an action
was instituted.........

Section 16 of Act 555 – on enforcement of Order – Subject to this Act, any order made in
favour of the state against any person in any civil proceedings to which the State is a
party may be enforced in the same manner as an order made in an action between
private person upon a foreign judgment as a simple debt proceedings a subject to any
defence that could be raised.

But if the judgment is from a Court in a jurisdiction as specified in L. I. 1575 the

judgment may be registered in Ghana and then enforced as if it were a judgment in
Ghana.
Under Order 43 methods of enforcement of certain judgment are provided for namely:

i. Judgments for the Payment of Money

ii. Possession of Immovable Property – Order 43 r 3, 5, 6 and 12
iii. Delivery of goods – Order 43 r 4, 5, 6 and 12
iv. To do or abstain from doing any act e.g. injunctions Order 43 rr 5, 6 and 7

d) Payment of Money to a Person – Rule 1 of Order 43

Note that Order 43 r 1 distinguishes between a judgment or order –
i) For the payment of money to a person; and
ii) For the payment of money into Court and provides for the limited
modes of enforcing the later.
Rule 1 also applies to a judgment or order for the payment of money, not being a
judgment or order for payment of money into Court and may be enforced by one or
more of the following 6 methods under rule 1:
1. Writ of fieri facias (fifa – Order 45)
239
 2. Garnishee Proceedings – Order 47
3. Charging Order – Order 49
4. Appointment of Receiver – Order 61
5. In a case in which Order 43 rule 5 applies – i.e. enforcement of judgment to
do or abstain from doing an act – An order for committal for Contempt – Order
50
6. Writ of Sequestration Order 44 r 6, 12 (1).
These 6 methods or modes are not alternative, but cumulative remedies. On the other
hand, if the judgment or order does not, and as a general rule will not specify a time for
the payment of the money to a person, the method of enforcement by way of an order
of committal or writ or writ of sequestration will not be available.

In addition to these above methods of enforcement, a judgment or order for the

payment of money to a person may be enforced – as provided by Order 43 r (5) – which
provides that sub rule (1) and (2) are without prejudice to any other remedy available to
enforce the judgment or order or to any enactment relating to bankruptcy, insolvency or
the winding up of companies.

So the following proceedings would be brought:

1. Insolvency proceedings against the individual
(See Insolvency Act 2006 (Act 708) and Order 60 which provides for proceedings in
Insolvency.
Section 9 of Act 708 provides that a creditor who is owed more than GH 10,000 and who
has obtained a judgment that is enforceable by FiFa against the debtor may commerce
insolvency proceedings against that debtor by presenting a petition to the official trustee.
2. Winding up proceedings against the debtor company under the
Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) –
By which a creditor may present a petition to the Registrar of Companies or the Court for
the official winding up of a company on the ground that it is unable to pay its debts.
Under section 3(3) of the Act, a company is deemed to be unable to pay its debts if an
attempt to execute judgment against it has failed.
(See Billy v. Kuwor [1991] 1GLR 522 where the Court held that a company may be
wound up by a Court if it was proved to a Court’s satisfaction that it was unable to pay
its debts. However, in determining whether that company is unable to pay its debt, the
Court should take into account the contingent and prospective liabilities of the company,
must look at the business realities of the situation and should avoid taking a narrow
legalistic view that the company should be wound up simply because it owes.

It has to be noted that a judgment for the recovery of money from a person cannot be
enforced by an order of committal or writ of sequestration, nor can a supplemental order
be made fixing a time for payment by a certain day or limiting the time within which it is
to be made, so as to found a right sequestration or committal in default of payment ( Re
Oddy [1906] 1CL 93; Hulbert v. Cathcast [1894]1QB244

240
 e) Judgment for Payment of money into Court - Order 43 r 1(2) – Subject to these
Rules, a judgment or order for the payment of money into Court may be enforced
by one of the following means
a) The appointment of a receiver
b) In a case in which rule 5 applies an order for committal or a writ of sequestration
So such a judgment may be enforced not only by an order of committal or writ of
sequestration but also by the appointment of a receiver.
(Stanger-Leathes v. Stanger-Leathes [1882] WN 71; Re Coney (1885)29 ChD 993,
Re Whiteley (1887] 56 LT846; Re Pemberton [1907] WN118

f) Possession of Immovable Property

Enforcement judgment for possession of immovable property – provided for under Order
43 r 3
Order 43 r 3(1) – Subject to these Rules a judgment or order for the recovery of
possession of immovable property may be enforced by one or more of the following
means:
a) a writ of possession;
b) in a case in which rule 5 applies, an order of committal or writ of sequestration.
See Order 43 r 5, Order 43 r12 (2), Order 43 r 3(2)

Writ of Possession (FORM 181D and FORM 18E;

Agbemakpor v. Datsomor [1992] 2GLR 75; - where lost the case in the District Court
but won in the High Court on appeal and applied ex parte to High Court for writ of
possession same was dismissed on the ground that a writ of possession for recovery of
land could issue only where the judgment or order of that High Court ordered recovery
of possession. Accordingly where the judgment was entered only for declaration of or
perpetual injunction, a writ of possession could not be resorted to. Accordingly since the
Plaintiff did not seek an order for possession or delivery up of the land in his farm the
application could not be granted.
- Order 43 r 4(1) - So it means that a judgment or order to give possession of land
will not be enforceable by an order of committal or by way of sequestration unless
it specifies the time within this act is required to be done and the Defendant
refuses or neglects to do it within that time (r 5(1)).
Accordingly, as a judgment or order to give possession of land will not in practice specify
the time which this act is required to be done (Order 43 r 3) it will not ordinarily be
enforced by an order of committal or by writ of sequestration, but only by a writ of
possession, which will normally be sufficient to enforce the judgment

If however, in an extreme case, it is desired to enforce the judgment against a

recalcitrant Defendant by an order of committal or writ of sequestration, it will be
necessary first to apply to the Court under r 6 for an order to fix the time within which
the Defendant is required to give possession of the land, and to serve that order upon
the Defendant and then to apply under r 5 for the order of committal (see Order 50) or
writ of sequestration.

241
 g) Delivery of goods without the alternative of paying the assessed value
may be enforced by one or more of the following:
a. A writ of delivery to recover the goods without alternative provision for
recovery of assessed value, referred to as “writ of specific delivery” or
b. In case of which rule 5 applies, an order of committal or a writ of
sequestration.

h) Delivery of goods or payment at the assessed value – Order 43 r 4 (4)

Subject to these rules, a judgment or order for the delivery of goods or payment
of their assessed value may be enforced by one or more of the following:
a. A writ of delivery to recover the goods or their assessed value;
b. A writ of specific delivery with leave of the Court; or
c. A writ of sequestration in a case in which rule 5 applies.

i) Judgment or order to do or to abstain from doing an act – Order 43 r 5.

-This rule applies subject to the personal service of the order or judgment on the
person in default as required by 2 r 7(2) which requires that it shall not be
enforced unless a copy of the order has been served on the person. And of course
Order r 7(1) states that references to an order shall be continued as including
references to a judgment.
- Order 43 r 5 states that where
(a) A person is required by a judgment or order do an act specific in the judgment
or order refuses or neglects to do within that time or within that time as extended
or reduced under Order 80 rule 4; or
(b) The person disobeys a judgment or order requiring the person to abstain from
doing an act. The judgment or order may subject to these Rules to be enforced by
one or more of the following means.

(aa) a writ of sequestration against the property of that person with leave of the
Court.
(bb) 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
(cc) an order of committal against that person, or where that person is a body corporate,
against any director or other officer.

A judgment or order requiring to be done must state the time within which the act is to
be done before it can be enforced by the methods provided by this rule. Such time may
be specified either by the original judgment or order or as extended or adjudged or by a
supplemental order made subsequently under Order 43 r 6 (2).
Read: Republic v. High Court Ex-parte PPE & Anor [2007 – 2008] SC GLR 188
READ ALSO Order 43 rr 1 – 7 and compare with r 12.
(dd) Payment of Money to a person Order 43 r 1 considered
There are some particular types of execution as we have learnt. The most popular type
of execution is the fifa

242
 i) Writ of fieri facia – Order 45
The writ of fifa is the mode for enforcement of a money judgment by the seizure and
sale of the debtor’s goods and chattels or property sufficient to satisfy the judgment debt
and costs of execution. It is a writ directed to the Sheriff to seize the property of the
judgment debtor as may be sufficient to satisfy the amount as the judgment debt
together with interest and costs and the purpose is to enable the property to be sold to
pay the judgment debt and interest if any and costs .

It further directs the Sheriff to pay the Plaintiff the amount levied (other than his own
costs and charges) and to indorse on the writ a statement of how he has executed it
sending a copy of such statement to the Plaintiff.

The prescribed forms – are as on form 18 which is the Request and Form 18A, which is
the writ and are used with such variations as the circumstances of the particular case
require.
Form 18 B is no longer relevant because of the repeal of the Exchange Control Act.

No leave is required to issue the writ of fifa and it is due as a matter of course once the
judgment debt or part of it is still due or becomes due. And without the necessity for
prior notice or for the prior service of the judgment or order, upon the debtor (Land
Credit Company of Ireland v. Fermoy (1870) LR 5 Ch 323; Hopton v. Robertson
(1884) 23 QBD 126; Re A Solicitor (1884) WR 131.

Accordingly, a judgment in the ordinary form requiring the Defendant to pay money to a
person is enforceable by writ of fifa immediately it is entered, even though no time is
specified for the payment to be made and even though notice of the judgment, still less
the judgment itself, has not been served on the debtor.

On the other hand, where the judgment or order directs payment within a specified time,
the writ will issue immediately after, but not before such time has expired; and where
the judgment or order directs payment within a certain time after service the debtor, the
writ will issue immediately after, but not before, due service has been effected upon the
debtor and proof of such service duly lodged with the Court.

Similarly, if the judgment or order is conditional, the writ will issue immediately after, but
not before there has been default in complying with the condition.

It is wrongful to issue a writ of fifa after payment, it therefore a person (including the
solicitor for a party) who issues execution after payment (Chissold v. Crachley [1910]
2 KB 244) or after a valid tender (Cubitt v. Gamble (1919) 35 TLR 223, is liable to
trespass. It has also been contended that it is wrongful to issue a writ of fifa for a sum
greater than the amount actually due at the time for its issue.

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The items or property seized are to be sold. Between the time of seizure and time of sale
the judgment debtor is entitled to satisfy the judgment debt and the property release
from attachment. He could also negotiate terms of payment with the judgment creditor.

If it becomes necessary to sell, then the sale is regulated by rules. The first rule to bear
in mind is that all sales in execution of judgment debt is under the direction of the
Sheriff.
The Sheriff is the officer of the Court whose duty is to deal with execution of these writs
of execution. In practice, it is the Registrar of the Court.
The Court may make any order it considers fit with regard to the sale on application of
any of the parties.
The general rule is that all sales for execution of judgment shall be by public auction. But
the Court may direct or authorise the sale to be made in some other manner.

Under Section 17 (2) of the Auction Sales Law 1989 PNDCL 230 “where an auction sale is
as a result of a judgment debt the sale shall be subject to a reserved price to be
determined by the Court which gave the judgment.

The reserved price is the lowest for which the property should be sold or below which
the property should not be sold. When the property is seized in execution, the Court
would order its valuation by a valuer and submit the report thereon to the Court stating
inter alia the open market or commercial value as well as the “forced sale value”.

Each of the parties has the right to challenge the forced sale value or the value in which
case a rival valuation could be submitted to the Court. The Court then uses the values to
fix the reserved price.

By order 30 r 2 – dealing with manner of carrying out sale of land by Order of Court, the
Court may direct that the immovable property to be sold in such manner as the Court
may, either by the order or under subrule (40 direct for the best price that can be
obtained, and all proper parties shall join in the sale and conveyance as the Court shall
direct.

By this the property could be order to be sold by private treaty. Either party could apply
for this.

Stay of execution of a writ of fifa

The Court has power to stay execution of a writ of fifa either absolutely or for such
period and subject to such conditions as it thinks fit where:
a. It is satisfied that there are special circumstances which render it
inexpedient to enforce the judgment; or
b. It is satisfied that the applicant is unable for any just cause to pay the
money.

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The judgment debtor can to also apply for an order for the payment of the judgment
debt in specified instalments. Because the Court has power to order payment by
instalments.
Other grounds for Stay of Execution:
a. By reason of new occurrence (Order 43 r 11)
b. Stay of execution pending appeal to the High Court from the District Court
Order 51 r 9.
c. Stay of execution pending appeal to the Court of Appeal under rule 27 of
the Court of Appeal rules, 1997 C. I. 19
d. Stay of execution pending trial of counterclaim applicable to proceeding in
summary judgment – Order 14 r 5(2).

Garnishee Proceedings – Order 47

Order 47 r1. (1) Where a person in this Order referred to as “the judgment creditor" has
obtained a judgment or order for the payment of money by some other person referred
to as "the judgment debtor" and the judgment or order is not for the payment of money
into court, and another person within the jurisdiction, referred to as "the garnishee" is
indebted to the judgment debtor, the Court may, subject to the provisions of this Order
and of any enactment, order the garnishee to pay the judgment creditor the amount of
any debt due or accruing to the judgment debtor from the garnishee, or as much of it as
is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.

Read the case of:

State Construction Corporation v. Hasnaw Ltd. [2001 – 2002] 2 GLR 141, CA –

where the respondent obtained judgment against the SCC but before it could go into
execution against it, it was placed under divestiture and the respondent claiming that it
had been sold and proceeds paid to Bank of Ghana brought an application before the
trial High Court for an order of garnishee against the Bank of Ghana to explain why the
funds it was holding on behalf of DIC could not be attached in satisfaction of the
judgment debt. The DIC’s application brought to strike out the garnishee proceedings on
the ground that it was not a party was dismissed. The Court made an order that the
accounts of the DIC be attached to satisfy the judgment debt.
HELD: the appeal on the matter was allowed – it was held that the rules regulating
garnishee order did not require that a person had to be made a party to the case before
a garnishee order could be made against him and thus the party against whom a
garnishee order was sought did not need to be a party to the original case whose
judgment was sought to be executed.
(3) that money in the lands of a third person, where the relation of debtor and
creditor did not exist between him and the judgment debtor could not be
attached. In the instant case, the applicant was not a judgment debtor within
the contemplation of the rule and therefore was not liable to pay the judgment
debt of the SCC. Accordingly the proceedings commenced by the respondent
against it, instead of SCC for the attachment of the debt of SCC were
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 fundamentally irregular and the proceedings base on them were null and void
and of no effect.
(4) That under the rule – the trial judge could have directed the DIC to appear
before it only if after the garnishee (Bank of Ghana) had appeared before it in
respect of moneys held by it on behalf of the SCC- the garnishee had
contended that the moneys belonged to the DI. The purpose of the
appearance would have been for the DIC to explain why the moneys should
not be utilised in the payment of the debt. Thus the appearance would be
demanded by the Court qua Court o the basis of the evidence provided by the
garnishee and not by process issued by the judgment creditor – the
Respondents. Since the condition precedent for making an order under the
rules were not present, the order of the trial judge directing the Bank of Ghana
to pay the judgment debt recovered by the Respondents against the SCC from
the monies allegedly held by it for the DIC would be set aside and the
garnishee proceedings struck out as incompetent.

See Republic v. High Court (Fast Track Division) Accra; Ex parte State Housing
Company Ltd (No. 1) Banner Interested Party [22009] SCGL 177-
Held unanimously granting application for certiorari rule 3(1)(b) of Order 47 of C.I. 47
Requires the service of an order to show cause in respect of garnishee on the judgment
debtor unless the Court otherwise orders. Consequently the Court is unable to accept the
interest party’s contention, which is, in effect, that the judgment debtor can only be
served with the order to show cause regarding the garnishee proceedings if the Court
orders that it be served on the judgment debtor. That is stating the rule conversely.
Since in the instant case, exhibit M (the result of the search conducted in the Court
registry) is positive that no direction was given by the Court that the applicant i.e the
judgment debtor, should not be served with the garnishee proceedings and yet the
applicant was not served with them, it follows that an essential prerequisite to the
entertainment of those proceedings had not been complied with and the same was not
only an error of law but one of jurisdictional character. Consequently the garnishee order
dated 24 April 2008 and the subsequent order made on 20 June 2008 requiring the
garnishee (the Agricultural Development Bank) to pay to the interested party out of the
account of the applicant bank, the sum of GH¢50,000 would be quashed by order of
certiorari.

Points to Note
Order 49
iii) Charging Orders
A charging Order on the property or assets of the debtor is one of the modes of
enforcement of a judgment or order for the payment of money to the creditor. It is
however not a direct mode of enforcement in the sense that the creditor can immediately
proceed to recover the fruits of his judgment, but it is rather an indirect mode of
enforcement in the sense that it provides the creditor with security, in whole or in part
over the property of the debtor. It makes the creditor a secured creditor, who having

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obtained his charging order must proceed, as may be necessary according to the nature
of the property charged, to enforce his charge in order to obtain the actual proceeds of
his charge to satisfy his judgment, in whole or in part Per Bramwell B. in Gill v.
Continental Gas Co. (1872) LR 7 Ext 332, 338 “The judgment creditor cannot by his
charging order get more than the debtor could honestly give him”

In enforcing the charging order – the remedy under an equitable charge under hand is
sale (Tenant v. Rechard (1869) LR4 Ch App 537 but the Court may also appoint a
receiver.
There are general considerations with regard to charging order. The conditions pre-
requisite to the right to a charging order are (a) there must be a final judgment or order
(b) under which the debtor is required to pay a sum of money (c) to another person i.e
the creditor, and of course the charging order can be imposed on the property and
assets of the debtor.

Accordingly, the Court has no power to impose a charge on the property or assets of a
judgment debtor for an unascertainable sum e.g the amount of a bill of costs which has
not been finally taxed (A &M Records Inc. v. Darakdjian [1975] 1 WLR 1610; [1975]
3 All ER 883, Nor presumably on a judgment or order for damages to be assessed or for
value of goods to be assessed.
Moreover, the Court has no power to impose a charging order under a judgment or order
for the payment of money into Court (See per Kinderly V-C in Ward v. Sharke Shaft
(1860) 1 Dr & Sm 269

In Bagnall v. Carlton (1877) 6 Ch D 131 a charging order was made in respect of a

fixed sum payable at a future time. But such an order will only be made in exceptional
cases (Robinson v. Bailey [1942] Ch 268
Order 49 r 1 Order imposing charge on Land r 1 (1) The Court may for the purpose of
enforcing a judgment or order for the payment of money to a person, by order impose
on any immovable property or interest in immovable property of the debtor a charge to
secure the payment of any moneys due or to become due under the judgment or order
as may be specified in the order.

This gives the judgment creditor an equivalent of a mortgage over the land specified in
the order. So subject to any proper mortgages or charges affecting the land the
judgment creditor becomes a secured creditor. Subsequently if the judgment debt
remains unpaid, the judgment creditor can apply for an order for the sale of the land so
charged as under Order 59 so that the judgment may be satisfied out of the proceedings
of the sale remaining after the discharge of any prior mortgage or charge.
The charge must be registered under the Land Title Registry Act or the Land Registry Act
as the case may be. If the debtor is a company, the particulars of the charge must also
be registered under section 107 of the companies Act.

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It must be noted that the procedure for obtaining or applying for a charging order is
similar to the garnishee procedure for it is necessary to apply ex parte for an order to
show cause duly supported by an affidavit – See Order 49 r 1 (2) (3) and (5) – the order
would then be made absolute when no cause is shown sub rule 1(7) by sub rule (4) –
there may be joined with the application for an order under sub rule (1) an application
for the appointment of a receiver to enforce the charge imposed by the order

Read the whole Order 49 r 1

iv charging order on securities

Writ of Possession
We have treated this – It is a writ of execution used to enforce a judgment or order for
the recovery of immovable property. It contains a recital of the judgment or order that
the Defendant “do give” to the Plaintiff possession of the land. It must therefore contain
a description of the property of which possession is to be given. As noted earlier, it
commands the Sheriff to enter the land and give possession of it to the person entitled to
it under the judgment. It is issued with leave of the Court, except in mortgage action.
See Order 43 r 3(2) and the Court must be satisfied that every person in actual
possession of the property / land or any part thereof has received notice of the
proceedings, sufficient to enable the person to apply to the Court for any relief to which
the person may be entitled.

See Order 43 r 3(1) (2) (3)

Order 43 r 394) – A 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-

So that where the judgment or order contains both an order for recovery of possession
and payment of money, it may be enforced by a combined writ as in Forms 178E - - See
the case of Agbemakpor v. Datsomor [1992] 2 GLR 75 where a party lost the case in
the District Court but won on appeal in the High Court and applied ex parte for writ of
possession, the same was dismissed on the ground that a writ of possession for the
recovery of land could issue only where the judgment or order of that High Court
ordered recovery of possession. According where the judgment was entered only for
declaration of the or Perpetual Injunction, a writ of possession could not be resorted to.
Accordingly, since the Plaintiff did not seek any order fr possession or delivery up of land
in his favour the application would not be granted.

DZOTEPE v. HAHORMENCE II & OTHERS [1984-86]1 GLR 289, 292 CA per Apaloo
CJ at page 2929 that: “It was an elementary that the writ of possession would only be
issued to enforce a judgment for possession of land.

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It there was no judgment for possession (as in the instant case) there plainly could be no
jurisdiction to order the issuance of a writ of possession. The writs of possession were a
nullity and so were the steps taken on the strength of it. Therefore there was no valid
execution which precluded the granting of a stay See also Order 44 rr 2.

vi) Writ of Delivery: Treated already it is used to enforce a judgment for the delivery of
chattels/ goods. It contains a recital of the judgment that the Defendant “do deliver” the
goods to the Plaintiff. It must therefore contain sufficient description of the goods which
are to be so delivered. It contains a commend that the sheriff to cause the chattel
named in the writ to be returned to the person who has obtained judgment.

Where a writ of delivery is issued for the delivery of goods which are not in the custody
of the Defendant or for payment of their value, it is the duty of the Defendant to take
proper steps to make effective the delivery of the goods wherever they are to the
Plaintiff and for this purpose at least inform the Plaintiff and any other persons
concerned that the goods, being the property of the Plaintiff, were at his disposal,
otherwise the Plaintiff is entitled to issue a writ of fi fa for the assessed value of the
goods (Metals and Ropes Co. Ltd v. Tattersall [1966] 3 All ER 401, CA But see Order
43 r 4 as treated

As noted under the rules, where the judgment is for the delivery of goods, without giving
the losing party the alternative of paying the assessed value of the goods, the judgment
is enforced by a writ of specific Delivery. If it contains the alternative of paying the
assessed value of the goods, the party pursuing the enforcement may cause a Writ of
Delivery to issue to recover the goods or their assessed value. In the latter case the
person enforcing the judgment is not permitted to enforce the judgment by a writ of
specific delivery except with the leave of the Court. And a judgment for the payment of
the assessed value may be enforced by the same means as any other judgment or order
for the payment of money. (See sub rule 4) – See Order 43 r 4

vii) Appointment of Receiver. Order 27, 59 & 61

viii) Writ of Sequestration

This is a most drastic method of enforcing judgment or order, and therefore it shall not
issue except with the leave of the Court. In fact, sequestration is a process of contempt
(Pratt v. Inman (1890) 43 Ch D 175 and on an application for sequestration the
question for the Court is whether a contempt has been committed.

The judgments or orders that may be enforced by writ of sequestration are (i) those that
require a person “to do on act” within a specified time, extended if necessary and (2)
those that require a person to abstain from “doing an act” See Order 43 r 5. So if a time
for the performance is specified in or has been added to judgment or order whether for
payment of money, for giving of or up possession of land, for delivery of or up of goods
or for any other act like abatement of nuisance, rendering or delivery of an account and

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the person so ordered fails, refuses or neglects to obey within the time limited by the
judgment or order or as extended, a writ of sequestration may be issued against the
person’s property or the property of any director or officer of a corporate body against
which the judgment or order was made.

Sequestration may be issued or applied in respect of a person who disobeys a judgment

or order requiring him to abstain from doing an act. That is why it is a form of contempt
proceedings. See Order 43 rr 5 & 6 The effect of the writ is to bind – immovable and
movable property in possession the time it is issued (Burdett v. Rockley (1682) 1 Vern
58, Dixon v. Rowe (1876) 35 LTD 548, but creates no charge on the land unless
registered as under Land Title Registration Law and Land Registry Act.
The property liable to sequestration includes rents and profits of immovable property and
all personal estate.

Before writ of sequestration can be issued, a copy of the judgment or order endorsed
with a notice to the effect that if a party neglects to obey or disobeys he is liable to the
process of execution, (which) must be served personally on him before the expiration of
the time for compliance. Such service may be dispensed with if the Court thinks it just.
Example is where he already has notice of the judgment or order and has been evading
formal service of the order or judgment. Upon the issue of the writ the sequestrator will
then enter onto the land of the person in contempt and receive rents and profits of his
property and keep or detain them until the contemnor purges his contempt or is cleared
of the same.

All moneys coming into the hands of the sequestrator may be applied to meet the
demand of the party issuing the writ.

Order 50
ix) Committal Order
Under this Order the power of the Court to punish for contempt of Court may be
exercised by an order of committal. This is a process under which the offender’s person
is seized, under order of the Court, and taken to prison. Other remedies for contempt,
apart from the Court’s power to imprison for contempt may include imposition of fine or
to take security for good behaviour, if the Court decides to be more relax. The underlying
object or purpose of the law of contempt is to maintain the right of citizens to a fair and
unimpeded system of justice and to protect the orderly administration of law.

The order must state the contempt and must make clear to whom the order is directed
and what that person must do to comply with it. The contemnor must be able to see
from the face of the order what it is that he is being committed for (Parra v. Rones
(1986) 16 Family Law 262, CA the particulars of the contempt set out in the order must
not contain references to matters not comprised in the affidavits in support of the

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application for committal, since the contemnor has had no notice of those matters
Tabone v. Seguna [1986] 1 F LR 591, CA

In the case of REPUBLIC v. SITO I; ex parte Fordjour [2001-2002] SCGLR 322

where the Supreme Court unanimously allowed an appeal against the decision of the
Court of Appeal upholding the application of contempt of Court against the Appellant.
HELD: That the essential elements for the offence of contempt of Court are:

i) There must be a judgment or order requiring the contemnor to do or abstain

from doing something.
ii) It must be shown that the contemnor knows what precisely he is expected to
do or abstain from doing; and
iii) It must be shown that he failed to comply with the terms of the judgment or
order and that his disobedience is wilful.

In the instant case no order was breached by the appellant.

Per Attugubah JSC – since the time within which an order is to be complied with is an
essential part of the order for the purposes of its enforcement, it stands to reason that
when the time fixed by the order is, owing to no fault of the alleged contemnor incapable
of compliance, no contempt can arise on his part.
Per Adzoe JSC – “I concede that the stool was surrendered long after the time stated in
the order of the trial judicial committee. But during all the period that the stool was not
returned, the respondent took no steps to enforce the order. The Respondent
commenced the contempt proceedings after the order having been complied with,
became discharged and no longer operative......”

See Republic v. Bekoe & Others; Ex parte Adjei [1982-83] GLR 91 94

Contempt is quasi-criminal and must be proved with the same strictness as in criminal
cases – beyond reasonable doubt. The specific order must be shown to be served. It was
legitimate defence to a charge of contempt that the person charged had no notice of the
order.
Rep v. High Court, Accra; Ex parte Laryea Mensah [1998-99] SC GLR 360

 Requirement of Service; See Order 43 r 7; Republic v. High Court

(Commercial Division) Accra, Ex parte Millicom Ghana Ltd
(Superphone Co. Ltd Interested Party) [2009] SCGLR 41
 Where in a contempt proceedings some of the directors of the company
had not been served.
Unanimously Held by the Supreme Court in an application for certiorari and prohibition –
and allowing the same:
That Under Order 50 r 1 (4) subject to sub rule 5 the notice of the motion together with
a copy of the affidavit in support of the order of committal for contempt should be
served personally on the person sought to be served. That, in effect, meant that

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proceedings in an application for contempt could not commence until the Court has
satisfied itself that the Respondents to the application had been personally so served.
Order 50 was silent on whom service of the motion together with the affidavit should be
served where the person sought to be committed was a corporate body. However, the
trial judge should have satisfied himself that the company had been properly been
served as required by Section 263(1) and (3) of the Companies Act, 1963 (Act 179)
especially where there had been no proof of service of the motion for order for
committal.
Per Atuguba JSC as the applicant chose enforcement by means of committal, the
relevant provision is, particularly, on the facts of this case, Order 43 rr 5 (1) (b) (c) and 7
(1) and (2). It is plain that under these rules, without service on the relevant directors or
officers, as in this case, committal, cannot lie. That being so, service of the committal
application on the company as opposed to the directors or officers was a misdirected
step.
Per Owusu JSC that the issue – of such warrant was void as the trial judge did not have
power, competence and jurisdiction to make it.
Per Baffoe – Bonnie JSC. If the trial judge was minded to proceed against the directors
then it had to adjourn the case to ensure that the directors of the company were served
to come to Court to represent the company.

....To have issued a bench warrant at this early stage to compel persons who had not
wilfully failed to come to Court, was premature and wrongful.

Rep v. Moffat & Ors; Ex parte Allotey [1971] 2 GLR 391 any conduct which tends to
bring the authority and administration of the law into disrespect or to interfere with any
pending litigation is contempt of Court.

Once the respondent became aware of the pendency of the motion before the High
Court, any conduct on their part which was likely to prejudice a fair hearing of that
motion or interfere with the due administration of justice amounted to contempt of
Court.

ORDER 66
PROBATE & ADMINISTRATION

INTRODUCTION: “When a person dies there is strict provision of law as to what to do

with his properties, whether movables or immovables. If he makes a will it is expected
that executors will be named to take probate and if he dies intestate, the Court will
appoint Administrator to administer his estate and distribute in accordance with the will
and the law. The general rule is that all the deceased’s estate would devolve upon his
personal representatives. But some make no will whilst others make will with no
executors. In that case the Court will appoint personal representatives to take care of the
properties and to administer the same in accordance with law.

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The named executor has no right to deal with the estate until he obtains probate. But
the law provides that he might exercise the function orderly for the benefit of the estate
provided that he does not dispose of the same. He can dispose of same only after
obtaining probate – and distributing the same in accordance with the law S 1 & 2 of Act
63. Sect. 61 Act 63

The concerned of the law is that no estate should be unadministered

a) Jurisdiction
Read Order 66 r 1 dealing with Application for probate or letters of
Administration:

1) An 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 at the time of death a fixed place of abode.
2) Notwithstanding this provision, where any person dies within or outside the
country without a fixed place of abode in the country, the Court in the area where
any property of the deceased may be found shall subject to the Courts Act, 1993
(Act 459) or any other enactment for the being in force, have jurisdiction for the
purposes of granting probate or letters of administration in respect of the estate –
sub rule (2)
3) Where the deceased has property within the jurisdiction of more than one
Court, the application shall be made to only one of the Courts in respect of all the
properties.
4) Notice of an application made under sub rule 3 shall be given to the Registrar
of every Court with jurisdiction in the areas where the property may be found and
any caveat filed in the Courts shall be brought to the notice of the Court before
which the application is pending, which may stay the hearing of the application
until it is satisfied that no caveat has been filed in another Court.
5) Properties the subject matter of probate or L/A application mean movable and
immovable property.

b) Interim Measures
Order 66 r 2 – dealing with preservation of property –
1) The Court to which an application is made under rule 1 of this Order may, for
the preservation of the property of the deceased within its jurisdiction or for
the discovery or preservation of the will of the deceased, take such interim
measures as it considers necessary.
2) The Court within whose jurisdiction the property is situated shall where the
circumstances so require, on the death of the person or as soon as may be
practicable after that, appoint an officer of the Court or such other person as
it considers fit, to take possession of the property within its jurisdiction or put
it under seal until it is dealt with in accordance with law.

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So the Court may take interim measures to preserve the deceased’s property within its
jurisdiction or ii) for the discovery and or preservation of the will of the deceased iii) and
where the circumstances require, on the death of a person, may appoint any officer of
the Court or any other person it considers fit to take possession of the deceased’s
property or put it under seal until the property is dealt with in accordance with the law.

In Mensah v. Mensah [1992] 2 GLR 71-74, it was HELD that it was not only when an
administration suit was pending that the High Court has jurisdiction to appoint a court
official or a fit person to be receiver or a manager of the property in order to protect and
preserve it pending administration suit.

The High Court has jurisdiction even before an administration suit is pending to appoint a
court official or a fit person to be a receiver and manager of the property in order to
protect and preserve the property pending its administration

c) Intermeddling
Order 66 rule 3 deals with Intermeddling with property.

“Where any person, other than the person named as executor in a will or appointed by
court to administer the estate of a deceased person, takes possession of and administers
or otherwise deals with the property of a deceased person, the person shall be subject to
the same obligations and liabilities as an executor or administrator and shall 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.

See Republic v. Bonsu, ex parte Folson [1999-2000] 1 GLR 523, 533 –

Where 2 brothers and a sister of a deceased person distributed the estate of the
deceased before L/A could be applied for despite warning from the solicitor of the widow.
An application for intermeddling was brought against them and they conceded that they
distributed the estate but did not appropriate for their own use personally.

Held by Kanyoke J. (as he then was) that since affidavit evidence proved beyond
reasonable doubt that the Respondents have distributed the estate before taking letters
of administration, their actions constituted intermeddling

In Hayford v. Moses [1980] GLR 757 where the Plaintiff as customary successor
brought action against the widow of the deceased for continuing to rent in one of the six
flats of the deceased’s house and collecting rents in respect of two others and using the
same to maintain herself and the children. The Plaintiff had been granted Letters of
Administration alone but subsequently the Defendant was joined as a Co-administratix.

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The Plaintiff claim the return of all the keys to the flats and account for the rents so far
collected.

HELD: Inter alia dismissing the action that as a widow of the intestate the Defendant at
customary law had beneficial interest in the husband’s estate. It was for that reason that
the court had granted her power to administer the estate jointly with the deceased. The
subsequent grant of Letters of Administration to Defendant perfected her title and
related back to the death of the deceased husband and since her acts were done in the
interest and benefit of the estate. The Defendants were therefore not liable to account to
the plaintiff.

3) The possessory life interest of a widow and her children was a right which
was prior to any enjoyed by the customary successor or the deceased’s
family. The right to occupy the flat as a whole should be respected by the
customary successor and the deceased’s family ( Abebreseh v. Kaah [1976]
2 GLR 49 cited
4) That under customary law, the marriage with deceased subscribed and
carried to the family until formally sent off.

So it means that these acts of the widow was not held to amount to intermeddling.

An intermeddler who acts as executor or administrator without lawful authority is known

as executor de son tort

In Impraim v. Baffoe [1980] GLR 520

Held that any person who, not having been appointed executor of a will, either expressly
or by implication, intermeddled with the goods of the deceased in such a manner as to
show an intention of exercising the authority of an executor, might make himself liable
as an executor de son tort. Very slight acts of intermeddling would make a person
executor de son tort, for example receiving debts due to the estate. In the present case,
the defendant confessed to collecting rents due to the estate. The executor de son tort
was liable to be sued by the rightful executor or administrator or by a legatee. He had to
account to the personal representative and would thus put an end to his liability except
as regarded outstanding legal actions.

Asantewaa v. Ansong [1992] 1 GLR 550

Where the plaintiffs were widow and some children of the deceased sued another child in
respect of a house that the deceased had built but the lease was in the name of the
defendant children. The deceased however devised this house to the widow and the
children in common. Even though the defendant had joined in taking probate as one of
the executors, it was when he was inquiring from the bank about the deceased’s
indebtedness that he realised that the collateral deeds were in his name and in the
mortgage deed the testator had described himself as the customer and defendant as
“mortgagor”.

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Held: 1) that at is settled that where a father acquired a property in the name of a child
it created a presumption of advancement in favour of the child. The presumption was
however rebutted.
3) Since the 1st Plaintiff was neither an administrator nor an executrix of the estate of the
deceased her acts of collecting rents in respect of the property and generally meddling
with it made her an executor de son tort and thus liable to render account of the rent
income to the defendant.

However ................................

In Re Apau (deceased); Apau v. Ocansey [1993-1994] 1 GLR 146, CA

Where a widow, of the Appellant applied for L/A and of an intestate applied to the court
for intermeddling against the brother of the deceased who had sold his two cars after
taking possession. Respondent also took L/A and they were granted jointly with one
other person. The High Court dismissed the application for intermeddling on the grounds
that Letters of Administration had been jointly granted to the parties and thus they could
conveniently resolve the matter and that there was no known administrator.

On appeal it was found that the Respondent had sold the cars and used the proceeds to
protect a petrol filling station which did not form part of the deceased’s estate.

Held allowing the appeal – that the general rule was that since an administrator derived
his authority entirely from the appointment of court, a party who was entitled to
administration could not do anything as an administrator before letters of administration
were granted to him. Accordingly, a subsequent abstention of letters of administration
could not exonerate him from liability for intermeddling in the estate, unless the doctrine
of relation back was applied to made the grant of letters of administration retroactive
from date of death of the deceased so as validate acts performed on behalf of the estate
after his death. But the doctrine of relation back only operated where the action of the
intermeddler was for the benefit of the estate of the deceased, the doctrine of relation
back was inapplicable in the instate case. Consequently, the doctrine cannot be involved
as a defence for the Respondent’s intermeddling in the estate of the deceased.
a. The rule of court 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.
Accordingly, since it was clear that at the time the respondent took the
vehicles and entirely disposed of them he was neither an administrator
appointed by the court nor even a successor appointed by the family of
the deceased he was a fortiori liable for intermeddling, in the estate
within the meaning of the rules.
b. Any person with an interest in an estate such as a beneficiary could take
action in respect of the estate where there was no formal grant of
letters of administration under which vesting assent might be consider

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 provided the action was aimed at protecting the estate from being
wasted.

So a person may be convicted and sentenced to prison, fine or both for committing any
intermeddling and neglecting to apply for probate.

Neglecting to apply for probate provided for in Order 66 r 4 – where a person named
executor in a 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.

So in the case a such a

d) Production and Examination of Testament any Papers – Order 66 r 5 production

testament papers where it appears to the court that any paper of the deceased
being or purporting to be testamentary, is in the possession or under the control
of any person, the court may, whether any proceedings relating to probate or
administration are pending, order the person to produce the paper in court. r 691)
dealing with Examination in respect of testamentary papers –

Where it appears to the court that there are reasonable grounds to believe that any
person has knowledge of any paper purporting to be testamentary (although is not
shown that the paper is in the person’s possession or under the person’s control), the
court may, whether or not any proceedings that relate to probate or administration are
pending, order the person to be examined on the matter in court or on interrogatories
and for the paper to be produced before the court after the examination.

See Form 20 – on the Form or precedent – for Order to produce paper purporting to
be testament – Order 66 r 6 (2)

e) Application
Order 66 r 7 (4) states that the form to be used in Order 66 r 7 (2) is Form 21

Order 66 r 7 deals with Notice to Executors to come in to prove will

Order 66 r 7(1) – says the Court may on its own motion or on an application of any
person who claims interest under a will give notice to the executors, if any, named in the
will to come in and prove the will or renounce probate.

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Order 66 r 7 (2) The executors or any one or more of them shall within fourteen days
after receipt of the notice come in and prove the will or renounce as required by sub rule
(2), the right of the executor to executorship shall be extinguished on an application for
letters of administration with will annexed may be made by any person entitled to that.

So under Order 66 r 7 – a court may s............. so a court may of on an application by a

person claiming interest under a will notify the named executor to come in and prove the
will or renounce probate and failing to comply with the same within 14 days the right to
executorship would be extinguished and then any person entitled to administer the
estate would or could apply for letters of Administration with will annexed.

f) Application – also Forms 22 and 23 provided for in Order 66 rr 8 to 10. Rule 8

deals with the mode of application. Rule 8 (1) every application for the grant of
probate or letters of administration shall be supported by an affidavit sworn to by
the applicant and with such other documents as the court may require.
3) Relevant Forms in the schedule to the rules shall be used with such
modifications as may be necessary in the application.
By rule 9 there is required to be Declaration of Property of the deceased. R 9 (1) says
that “On an application for the grant of probate or L/A, the Court may require evidence
of the identity of the applicant in addition to that provided by the applicant, where such
additional evidence seems necessary or desirable”. The Court was also required to
ascertain the time and place of death of the deceased of the deceased and require proof
of death by production of a death or burial certificate or such other evidence to the
satisfaction of the Court – Order 66 r 9 (2) so burial certificate, cutting of newspaper
publication of funeral announcements, and funeral brochures or programmes or affidavit
of Odikro in verifying death and burial etc.

R 9(3) requires that “The applicant shall make a declaration of the value of the property
of the deceased and the Court shall as correctly as the circumstances allow ascertain the
value.

The Form for the purpose of the Declaration is as in Form 22 in the Schedule.

Order 66 r 10 deals with Notice of grant r 10 (1) says that “The Court shall not allow any
grant of letters of administration to issue unless after the grant, notice of it is given for a
period of not less than twenty-one days, or such other period as the Court may order in
the following manner.

a) In the Court where the application was made – usually on the Courts notice
board.
b) In any public place within the jurisdiction of the Court where it is likely that the
notice will be seen by those who may have interest in the estate; and
c) At the last known place of abode of the deceased in respect of whose estate the
grant has been made.

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 d) R 10(2) says: Where the grant is in respect of the estate of a person who died
intestate, notice must be given whenever practicable to all persons entitled to a
share of the estate of the deceased under the Interstate Succession Act, 1985
(PNDC Law 111), the court may however, dispense with such notice to
beneficiaries if it considers it expedient to do so.

The notice under the rule shall be as in Form 23 of the schedule – Order 66 r 10 (5). The
Court is also required not to allow any grant of probate or letters of administration to
issue until all inquiries which it sees fit to make have been answered to its satisfaction. –
r 10 (3) E.g no of children, infants, other possible persons with interest. Why birth or
burial certificate not attached; the time value of estate)

And the court shall afford as great a facility as possible for obtaining probate or letters of
administration as is consistent with due regard to the prevention of error and fraud.

- So court should scrutinise application and ask questions to prevent errors and
fraud.

e) Caveat
Forms 24, 25 and 26
A caveat is a formal warning or notice given to the applicant by a person with interest in
the will or estate of the deceased filed at the Court Registry to prevent the issue of a
grant of probate or letters of administration pending the commencement of a contentions
proceedings eg. challenges the will or the grant of the L/A to the person.

Caveat is provided for by Order 66 r 11 - Those who can enter a caveat provided for by r
11(1) – Any person who has or claims to have an interest in the estate of a deceased
and who wishes to ensure that no grant of probate or letters of administration is issued
without notice to the person, may file a caveat as in Form 24 specified in the schedule.

A caveat filed before an application for probate or letters of administration shall be

brought immediately to the notice of the Court by the Registry as soon as the application
is filed – r 11(3)

A caveat filed after an application for probate or letters of administration shall be brought
immediately to the notice of the Court by the Registrar – r 11 (4)

R 11(5) On being given notice of a caveat, the court shall direct the Registrar to bring it
to the notice of the applicant or the lawyer of the applicant as in Form 25 in the schedule
and the court/registrar shall decline to take any further steps until the applicant duly
Warns the caveator.

A caveat shall remain in force for three months from the date on which it is filed, but
may be renewed from time to time r 11 (6)

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The registrar shall not allow any grant of probate or letters of administration to be sealed
if the registrar has knowledge of an effective caveat in respect of its, except that no
caveat shall operate to prevent the sealing.

g) WILLS
WILLS ACT, Forms 28-32
Order 66 r 16 - 29
Order 66 rr 16 to 29 deal with Probate or Administration with will annexed custody of
wills –

Any person may in his lifetime deposit his will for safe/custody in the court that has
jurisdiction over the area in which he or she has a fixed place of abode – the will being
seal up under his seal and the seal of the court – r 16(1)

Every original will or probate or letters of administration with will annexed, shall be filed
and kept in the registry of the court which makes the grant in such manner as to secure
the preservation and convenient inspection of the will and a copy of every such will or
probate or letters of administration with will annexed or both shall be preserved in a
book kept for that purpose in the registry of the court in the Region in which the will,
probate or letters of administration with will annexed was granted – Order 66 r 16(2)

No original of the will shall be delivered out for any purpose without the direction in
writing of the court where the will is filed – Order 66 r 16 (3)

A certified true copy of the probate or letters of administration with a will annexed may
be obtained from the court – Order 66 r 16(4)

Examination of Will - R 17 –
On receiving an application for probate or for Letters of administration with will annexed
the Court shall inspect the will and see whether it appears to have been signed by the
testator, or by some other person in his or her presence and by his direction, and to
have been subscribed by two witnesses in accordance with the Wills Act, 1971 (Act 360)
and shall not proceed further if the will does not appear to be so signed and subscribed.
– Order 66 r 17 (1)

R 17(2) – If it appears to be so signed and subscribed, the court shall then refer to the
attestation clause, if any and consider whether it shows the will to have been in fact
executed in accordance with the wills Act, 1971(Act 360).

Order 66 r 18 deals with attestation clause and witnesses-

By r 18(1) if there is no attestation clause, or if the attestation clause is insufficient the

court shall require an affidavit from at least one subscribing witness, if either of them is

260
 living, to prove that the will was in fact executed in accordance with the Wills Act, 1971
(Act 360)

R 18(2) The affidavit shall form a part of the probate so that the probate shall be a
complete document on the face of it.

R 18(2) if on the perusal of the affidavit it appears that the will was not in fact
executed in accordance with the Wills Act, 1971 (Act 360), the Court shall refuse
probate.

4) Where both subscribing witnesses are dead, or if from other circumstances an

Con affidavit cannot be obtained from either of them, the court may resort to an
sid affidavit as in Form 28 in the Schedule from other persons, if any, present at
er the execution of the Will; but if no such affidavit can be obtained, proof shall
age be required of that fact and of the handwriting of the deceased and of the
subscribing witnesses, and also of any circumstances that raise a presumption
in favour of the due execution of the will.
5) An attestation clause and an affidavit of handwriting shall be as in Forms 29
and 30 respectively in the schedule.

Rule 19 of Oder 66 deals with blind or illiterate testator –

Where the testator was blind or illiterate

Proving a Will
What is proving a will.... you do so by going to court to test its valid it i.e you satisfy the
court that all requirements of valid wills have been complied with. To prove a Will the
Executors named in the Will will apply to the court by way of a motion/application
supported by affidavit; they will exhibit a copy of the will, verify the signature of the
testator, state the fact and date of death, state the fact that he made its, aver that there
were witnesses to the signature who were each presence and signed as witnesses in the
presence of each other. This amounts to probate in common Form. i.e the Executor will
apply for probate in common form. If the executors apply for probate in common form
and there are no challenges to it or it does not seem to have challenge – and if on the
face of it everything is in order, probate will be given.

So we have proof of a will in common Form – provided for under Order 66 r 25 thus:
where a will appears regular on the face of it, and there is no dispute as to its validity,
the application for probate may be sufficiently supported by affidavit deposing to the due
execution and attestation of the will and by such other documents or papers as the court
may require.

YANKAH & OTHERS v. ADMINISTRATOR GENERAL & ANOR [1971] 2 GLR 186,
190-191, CA where a testator had seven sons and one daughter by his wife in his will

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devised the house to his wife and after her death to all his grandchildren by her. But
subsequently he executed a codicil whilst confirmed in hospital by which he altered the
disposition made in the original will in respect of the house and instead directed that
after the wife’s death the house should devolved on only the daughter and her children
exclusively thereby extinguishing the male children’s interest. Upon his death the sole
executor applied ex parte for probate and same granted after the solicitor who drafted
the codicil had explained to the court the reason for what appeared to be a cancellation
on the face of the codicil.

The Appellants, 4 of the male children of the testator, sought by an action in the High
Court to invalidate the codicil on the main ground that it should have been proved in a
solemn form because at the date of its execution the testator was delirious and was not
in a fit physical state of mind to extend it. At the trial, one of the attesting witnesses a
nurse at the hospital stated that: “After he [testator] had tried to sign, i left the word for
another patient”. The trial judge declined to revoke the probate on the ground that i)
once probate had been granted, the grant was conclusive with regard to the true intent
of the will of the testator and ii) that what took place when the probate was granted was
not proof in common form, but that the probate of the will went beyond the requirement
of proof in common form.

On appeal it was contended by Counsel for Appellants that the trial judge was wrong in
holding that the grant was not in common form ii) once probate had been granted the
grant was conclusive with regard to the true intent and will of the testator and iii) the
codicil was executed in accordance with the requirements of the law in new of the
evidence of the nurse.

Counsel for the Respondents argued that on the agreed issues the Respondents
undertook to establish the will in solemn form, and he contended that they had done so
and that the judge should have pronounced the will in that form and invited the court of
Appeal to correct the judge and pronounce the will in solemn form.

HELD: Dismissing the appeal

h) A will is proved in common form where its validity is not contested or questioned .
The executor of a person entitled to administer the will beings the will to a
principal or district registry and obtain the grant notwithstanding the absence of
other parties’ interest, upon his own oath and any further affidavit which may be
required. This was precisely what the executor did before the High Court when the
application was brought. No notice was given to the appellants whose children’s
interest were destroyed by the codicil, and the fact that the solicitor who drafted
the codicil appeared and explained away a cancellation which appeared on the
fact of the codicil, did not affect the matter.
i) A will is proved in solemn form by the executor or person interested under the
will, propounding it in an action to which the persons prejudiced by it have been

262
 made parties, and by the Court, upon hearing evidence, pronouncing for the
validity of the will. An executor who has proved a will in common form may be
compelled afterwards to prove it in solemn form, at the instance of any person
interest.

If the proof in solemn form fails, the probate will be revoked. The learned judge
erred in thinking that the earlier proceedings for the grant of probate were other
then proof in common form and also that once probate was obtained the present
proceedings were legally incompetent.

3) If it appears on the face of a will that it has been properly executed in accordance
with the requirements of the law, the presumption by law is that the testator duly
acknowledged it. Although the isolated statement of the nurse divorced from the
rest of the evidence would seem to indicate that she did not sign the codicil in the
presence of the testator and that she was not present when the testator signed
the codicil, the evidence of the solicitor who drafted the codicil the real evidence
provided on the face of the codicil itself and the probabilities of this case tell
strongly against that interpretation of the evidence. The totality of the evidence
showed that the codicil was signed and attested to by the witnesses in the
testator’s presence.

Proof of will in Solemn Form

So there is proof of will in solemn form. When not probate in common form then, there is
proof in solemn form. Proving in Solemn Form is when those doubting the validity of the
will challenge the same – in that case then all the ingredients of valid will, will have to be
proved. Sometimes when probate in common Form is given in common form, an
interested party might go to court on the basis that probate granted in common form
should be revoked and in that case the executor or person applying for probate or
administration would be called upon to prove the will formally. Usually the need to prove
will in solemn for arises when it is believed that the testator had no capacity to make the
will or was subjected to undue influence in making the will or there was suspicion of
forgery or fraud or when the formality of the making of the will has not been complied
with.

Where a will is regular on the face of the one who doubts the validity has the onus of
proving.

When a will is proved, it is then that the executor has authority to dispose of the
property in terms as defined by the will. A judge is not corned whether any provision in
the will is enforceable. He is only concerned with the formalities (form).

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The probate is then the certificate which the executor has to administer the estate. If the
executor or any person interested has any doubt as to the meaning of any provision he
could take interpretation in Court by an appropriate action.

Order 66 r 26 deals with proving will in a solemn form r 26 (1)

i) Administration not with will annexed Forms 34-38 Order 66 rules 30 & 31

Contentions Probate matters Order 66 r 32 f

Commencement:

On r 37 - Heward-Mills v. Heward Mills [1992] 1 GLR 153, CA per Adabeng J A @

161.

FACTS: it was provided by probate and Administration Rules, 1991 [L 1 1515] 6(1)
That –“where 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 grant or letters of administration as the case may be was granted
requiring him to bring and leave at the Registry the probate or letters of administration.”

A writ of summons was issued by the Plaintiff/Respondent seeking revocation of grant of

Probate of the will and codicil. When the Defendants were served they entered
conditional appearance and filed a motion for an order setting aside the writ of summons
on the ground inter alia that the statutory condition had not been complied with but the
court referred to set it aside and the Defendants appealed.

Held allowing the appeal:

1. Where a statutory condition must be complied with before a court could have
jurisdiction to make an order failure to comply with such a condition would leave
the court with no discretion to make any order or orders in the matter Order 4 r
5(1) and (2) and Order 6 rr 2(3) and 6(1) of L1 1515 made it clear that before a
person could cause the issue of a writ to revoke a grant of probate he should first
have served a notice on the person to whom the probate had been granted to
him.

Further the Plaintiff failed to comply with Order 6 r 2(2) of LI 1515 which
mandatorily required him to indorse his writ with a statement of the nature of his
interest in the estate of the deceased.

Where a person was relying on fraud to challenge a will, particulars of fraud must
be pleaded, with dates and items if necessary.

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ANYINAM v. MENSAH [1989-90] 2 GLR 96 Held by Omari-Sasu as he then was that
the effect of section 67 of the Administration of Estates Act, 1961 (Act 63) was that
before an aggrieved Plaintiff commenced an action aimed at the revocation of Letters of
Administration at the registry of the court and the cite must show cause why his grant
should not be revoked. Within the citation, it was the duty of the Plaintiff-citor to give the
reason for his filling the citation. In the instant case, the Plaintiff sought the revocation of
the defendant’s grant of Letters of Administration had woefully failed to file the citation
which by section 67 was mandatory statutory condition precedent to the commencement
of an action for the revocation of Letters of Administration. The whole proceedings were
a nullity.

Intervention
Rule 37 form 39, In Re Heward-Mills (deceased); Heward-Mills v. Ollennu [1998-
1999] SC GLR 372, 376-377. Held unanimously dismissing the appeal- that the
appellant’s action challenging the validity of the will of the deceased, of which the
Respondents are beneficiaries, would definitely affect their interest under the will. As
interested parties, therefore, they were entitled to seek leave to intervene to protect
their interest under Order 6 r 3 of the Probate and Administration Rules, 1991 (LI 1515).
All that is required of an intended applicant under rule 3(2) is that he must have an
interest in the estate. He need not be an executor nor holder of letters of administration.
Thus any person with an interest in the estate is competent to apply for leave to
intervene under Order 6 r 3 of LI 1515. In the instant case, the court of Appeal was right
in allowing the appeal from the refusal of the High Court to grant leave to the
respondents to intervene.

On administration pending lite. S. 80 Administration of Esates Act Forms 44 and 45.

In Re Torto (deceased) Administrator-General v. Torto [1973] 1 GLR 417 where
upon the death of T. His widow applied for L/A for herself and on behalf of her children
and the deceased’s brother entered a caveat and the court granted the application. The
caveator appealed to the Court of Appeal. Then caveator applied to the High Court for
the appointment of the Administrator-General as an administrator pending lite under
Section 80(1) of the Administration of Estates Act, 1961 (Act 63). The administration
General then applied for interim injunction seeking to restrain the widow from collecting
moneys in respect of the deceased’s estate. Counsel for the Administrator-General
contended that in so far as the caveator had filed notice of appeal against the grant of
the Letters of Administration, proceedings were pending within the meaning of Section
80(1) of Act 63 so the course had jurisdiction to appoint administration pending lite and
that.

Held to found jurisdiction under Section 80(1) of Act 63 there must be an action pending
in the court. proceedings on a caveat did not constitution an action. Proceedings within
Section 80(1) of Act 63 meant proceedings leading to the grant and not where the grant
had already been made in the present case, there was no his pendent in the High Court
when the Administration-General was appointed as Administrator pending lite to the

265
estate of the deceased. Proceedings could not be said to be pending when the
appointment was made because at that stage the court was functus officio since the his
had already been determined. Even if the appeal were pending the application for the
appointment of the Administrator-General was therefore wrong being made without
jurisdiction and was null & void.

Section 80 of Act 63- Administration Pendent elite.

(1) where any legal proceedings touching the validity of the will of a deceased
person or for obtaining, recalling or revoking any grant are pending, the court
may grant administration of the estate of the deceased to an administration,
who shall have all the rights and powers of a general administrator, other
than the right of distributing the residue of the estate, and the administrator
shall be subject to the immediate control of the court and act under its
direction.
(2) The court may, out of the estate of the deceased, assign to an administrator
appointed under this section such reasonable remuneration as the court
thinks fit.

LECTURE ON APPEAL

WHAT IS AN APPEAL?
An appeal is an application to an appellate court inviting it to set aside or vary the
orders, decisions etc of a lower court on the grounds that it was given in error. It is
generally regarded as a continuation of the original case and not an inception of a new
one. See Adusa v. A-G [1981] GLR 228 CA
 The error complained of could be legal or factual or both.
 Cross-Appeal – (Notice of variation of judgment). Cross-appeal is by the
respondent to the appeal seeking appellate court’s intervention to set aside part of
the judgment or vary an order. An order for variation is also filed by the
respondent for an appellate court to vary part of the judgment.
 See Heward-Mills v. R. T. Briscoe Gh. Ltd. [1977] 1 GLR 138.

JURISDICTION FOR APPEALS

All appeals are statutorily conferred. Appeals are not conferred by common law or
inferred from judicial decisions. If a statute does not confer appellate jurisdiction there is
no jurisdiction vested in a court.
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See: RE AMPONSAH [1960] GLR 84 SC
FRIMPONG v. POKU [1963] 2 GLR 1 SC
NYE v. NYE [1967] GLR 76 Full Bench
AGYEI v. APRAKU (consolidated) [1977] 1 GLR III CA
KARLETSE-PANIN v. NURO [1979] GLR 194 CA

In Ghana the major statutes conferring appellate jurisdiction are:

 The Constitution 1992
 Courts Act, Act 459 of 1993
 Section 21(4) of Act 459 – The Courts Act of 1993, Act 459, makes it clear that an
appellate court should not entertain any appeal unless all the conditions are
fulfilled. Court has power to extend time. Can even relist after appeal had been
struck out for want of prosecution. See the case of ADJEI v. YIADOM [1970] CC
51 CA.

RULES OF COURT REGULATE APPEALS: CI 47. It does not confer jurisdiction on the
appellate court (High Court) under Order 51. Jurisdiction is conferred by the Constitution
1992 and the Courts Act, Act 459; but the CI 47 regulates the procedure for hearing the
appeals from the District Court to the High Court.

It should be signed by the appellant himself if he is not represented. If unrepresented all

the appellants must sign the notice of appeal.
BUZU & OR v. NUHO [1976], MUFFAT v. KPESHIE [1952] WACA.
If the solicitor signs he can do so for all the appellants.
 AKONTO v. FOFIE [1973] 1 GLR 81 CA
 MUFFAT v. KPESHIE II [1952] 14 WACA 44
 MAKATA v. AHORLI [1956] 1 WALR 169

WHO CAN APPEAL?

1. Parties to the action
2. Persons not being parties but adversely affected by the judgment. E. g. Insurers,
Landlord etc. Beneficiaries of a will in probate actions in which the Executors do
not appeal upon refusal of the court to admit the will to probate.

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LAMPTEY v. HAMMOND [1987-88] 1 GLR

The defendant, B, bought a house at a public auction of the properties of a debtor, M.

The plaintiff, L, the head of the family of M, then brought an action for a declaration that
the house was family property and could not therefore be sold to satisfy the personal
debts of M. After several adjournments the case was finally fixed for hearing on 20 July
1984.  But even though all the parties were served with hearing notices, neither B nor his
counsel was in court.  The trial judge proceeded under the provisions of Order 36, r. 16
of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and heard the evidence of L.
He found that the house was, indeed, family property and gave judgment for L. B died
some time after that judgment.  Almost two years after that judgment the respondent,
one H, who was a stranger to that judgment but claiming to have obtained the
permission of B's customary successor, applied on 14 July 1986 on behalf of one Q, who
was also not a party to the judgment, to have the default judgment of 20 July 1984 set
aside on the ground that Q had bought the house from B and he was therefore the legal
owner.  Even though the court found, inter alia, that no successor had substituted for B
in the proceedings and consequently no one was competent to authorise H to bring the
motion and furthermore, the motion had been brought outside the fourteen days' period
provided for under Order 36, r. 18 of L.N. 140A, the trial judge held that these were
technicalities, and purporting to "mould its order" to prevent injustice, he exercised a
discretion under Order 64, r. 6 of L.N. 140A and enlarged the time for filing of the motion
and then granted the motion on the grounds, inter alia, that (a) L had obtained the
default judgment at a time when B was practically a dead man and his counsel had faded
out of practice, and (b) L must have known that for about eight years before the default
judgment Q had been in possession of the house.  L appealed from that ruling on the
grounds that the trial judge had erred in exercising the discretion he purported to have
exercised in favour of H and furthermore, he had failed to consider whether any useful
purpose could be served by setting aside the default judgment.  The Court of Appeal
found, inter alia, that none of the reasons given by the court for setting aside the default
judgment had been canvassed by H in her application.

Held, allowing the appeal:

(1) there were two well-established modes whereby a person who was a stranger to a
judgment which injuriously or adversely affected him could have it set aside.  He could
either obtain the leave of the defendant in the suit to use his name and then apply to the
court in the defendant's name to have the judgment set aside, or if for some reason he
could not use the name of the defendant, he could take out a summons in his own name
but then the summons should be served on both the plaintiff and the defendant asking
for leave of the court to set aside the judgment and to be allowed to defend the action
on such terms of indemnifying the defendant as the judge might consider just.  Although
H seemed to have adopted the first method, since the person from whom she was
supposed to have obtained the leave was not a party and could not in law and in fact
give any leave or permission, she should have been thrown out of court. Gbago v.
Owusu [1972] 2 G.L.R. 252 approved.  Jacques v. Harrison (1883) 12 Q.B.D. 165,
C.A. and Minet v. Johnson (1890) 63 L.T. 507 distinguished.

(2)  The person who could apply to set aside a default judgement under Order 36, r. 18
of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) was the defendant or any
third person who was adversely or injuriously affected by that judgment, provided he

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had properly applied and acquired locus standi [p.329] because only those who had or
could acquire locus standi could bring the application.  Those provisions did not give
locus standi to a person who had none.  Furthermore, the application should be brought
within "fourteen days after the trial." Since in the instant case, H never had locus standi,
and the application was brought nearly two years after the trial, and besides, H had no
meritorious defence and the default judgment was not a nullity, the trial judge had no
discretion under Order 64, r. 6 of L.N. 140A, as he purported to have done, to have
extended the time and set aside the default judgment.  Vasquez v. Quarshie [1968]
G.L.R. 62; Acheampong v. Asare-Manu [1976] 1 G.L.R. 287; Safo-Adu v.
Boampong [1976] 1 G.L.R. 321, C.A.; Atwood v. Chichester (1878) 3 Q.B.D. 722, C.A.;
Schafer v. Blyth [1920] 3 K.B. 140 distinguished.

Per curiam: It is not in every case that the discretion to extend time, either under Order
64, r. 6 or Order 70, r. 1 of L.N. 140A, in respect of tardy applications should be
favourably considered.  Each application to extend time must be considered on its
peculiar circumstances.

(3) Although a judge had an unfettered discretion as to whether or not to set aside a
default judgment, that discretion like any other discretion had to be exercise judicially.  
But in the instant case, the judge exercised his discretion rather vaguely and on
considerations of irrelevant and extraneous matters which greatly influenced him.  Since
the improper exercise of discretion by extending time and granting the application had
resulted in injustice to the appellant, it was the duty of the Court of Appeal to interfere
and set things right.  Dictum of Lord Atkin in Evans v. Bartlam [1937] A.C. 473 at 480-
481, H.L. applied.

(4) Since at the auction sale the defendant bought the right, title and interest of the
judgment debtor in the disputed house but the judgment debtor had no title to the
house the defendant bought nothing.  The defendant not having any title to the house
could not have transferred any to the respondent, registration of his deed of conveyance
notwithstanding; since registration did not confer title on a purchaser.  It would therefore
be a waste of time to set aside the judgment for the parties to start the litigation all over
again.  Dictum of Abban J.A. in Botchway v. Okine [1987-88] 2 G.L.R. 1 at 25, C.A.
applied.

See: RE SECURITIES INS. CO. [1894] 2 ChD 410

RE MARKHAM: MARKHAM v. MARKHAM [1880] 16 ChD 1  In re Markham;
Markham v Markham (1880) 16 Ch D 1, a potential beneficiary under a will who was
not party to administration proceedings was granted by the Court of Appeal leave to
appeal despite having not been a party to the cause. In In re Securities Insurance
Company [1894] 2 Ch 410 the Court of Appeal held that any person interested who was
not an actual party to the record below had to obtain leave before appealing. Lindley LJ
said at 413: "Now, what was the practice of the Court of Chancery before 1862, and
what has it been since? I understand the practice to be perfectly well settled that a
person who is a party can appeal (of course within the proper time) without any leave,
269
and that a person who without being a party is either bound by the order or is aggrieved
by it, or is prejudicially affected by it, cannot appeal without leave. If a person alleging
himself to be aggrieved by an order can make out even a prima facie case why he should
have leave he will get it; but without leave he is not entitled to appeal.
A-G v. ALLESBURY [MARQUIS] 16 QBD
Cross-Appeal – Ogbarmey-Tetteh v. Ogbarmey Tetteh [1992 – 93] GBR91 SC. No
time limit to file cross-appeal but should be filed within a reasonable time after filing
service of the Notice of Appeal. Supreme Court Rules stipulate that it should be filed after
14 days of service of the Notice of Appeal on the Respondent.

TIME FOR APPEALS: Is determined by the rules of the Appellate Court.

1. Rules of Court, e.g. CI 47 Order 51 deals with appeals from the District Courts to
the High Court. It is three months for final judgments.
a. ZAKARI v. NDUN [1968] GLR 1032
b. DARKE v. DARKE [1984 – 86] 1 GLR 481 SC
c. ATTA KWADWO v. BADU [1977] 1 GLR 1 CA
d. AGYEI v. APRAKU [1977] 1 GLR III CA
2. Court of Appeal Rules CI 19 and its amendments deal with appeals to the Court of
Appeal from the High Court and Circuit Court. Three months for substantive
appeal and 21 days for interlocutory appeals.
3. Supreme Court Rules C16 of 1996 regulates appeals to the Supreme Court from
the Court of Appeal and National House of Chiefs.

PROCESSES FOR COMPILATION OF RECORD OF APPEAL TO THE APPELLATE

COURT
1. Filing of Notice of Appeal at the Registry with cashier of the court below.
2. Placing of the Notice of Appeal on the case docket.
3. Assigning of the Notice of Appeal to bailiffs for service on the parties to the
appeal.
4. Submitting of the case docket to the Registrar in charge of preparation of the
record.
5. Formal invitation of parties or solicitors by the Registrar to settle records.
6. After fulfilment of conditions of appeal, the docket is assigned for typing and
preparation, the registrar then proceeds to correct and certify the record.
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 7. Parties purchase the record and same is submitted to the Court of Appeal with
notice to parties.
8. A motion for stay of execution may be filed to prevent the judgment/creditor from
levying execution. It should first be filed at the court below before it could be
repeated at appeal court.
9. A motion for interlocutory injunction may also be applied for to prevent the
judgment creditor from disturbing the subject matter pending the appeal. See
Order 25 of CI 47 of 2004.
TYPES OF APPEALS
INTERLOCUTORY OR FINAL ORDERS/JUDGMENTS
Separate time limits are imposed by the rules for filing interlocutory appeals and ordinary
appeals.
 Some appeals require leave of the court before they are filed – e. g. Under Section
21(12) of Act 459 – interlocutory appeals from the District Court to the High Court
require leave.
 Under Section 11(5) of Act 459, - interlocutory appeals to the Court of Appeal
from the Circuit Court require the leave of the Circuit Court or the Court of Appeal.
THE DISTINCTION: Is very crucial to determine the time for filing an appeal in
interlocutory or final decisions and whether leave is required
or not in some appeals.

THE ENGLISH TEST: Look at the nature of the application made to the court and
not to the order made by the court.

LORD ESHER MR STANDARD DISCOUNT CO v. LA GRANGE [1877] 3 CPD

67

LORD DENING MR SALAMAN v. WARNER [1891] IQB 734

SALTER REX & CO v. GHOSH [1971] 2 ALL ER 8b5
“The nature of the application to the court and not the nature of the order the court
eventually made”. This test has not been applied in Ghana.

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The Ghanaian test Read cases like KARLETSE PANIN v. NURO [1979] GLR
194 and AG v. FARORE ATLANTIC CO. LTD. [2005-6]
SCGLR 271.
Lord Alverstone CJ – Bozson v. Altrinchan Urban District Council [1903] 1KB 547
CA
The Test: “Does the judgment or Order, as made, finally dispose of the rights of the
parties?”
This test has its own peculiar problems as all interpleader proceedings are
interlocutory and therefore interpleader appeals are interlocutory in nature:
See AGOTI v. AGBENOLU [1978] 1GLR 14 CA
BRISCOE (R.T.) GH LTD. v. AMPONSAH [1969] CC 100 CA

GHANAIAN TEST
The Courts in Ghana have adopted the test laid down by Lord Alverstone CJ on Bozson’s
case. In all these cases decided by the courts in Ghana, Lord Alverstone’s test has been
applied.
See:
Sisala v. State Gold Mining [1971] 1 GLR 359 CA
Tawiah v. Brako [1975] 1 GLR 48 CA
A.G v. Farore Atlantic Co. Ltd. [2005-6] SCGLR 271
Okudzeto v. Irani Brothers [1975] 1 GLR 96 CA
Kwadwo v. Badu [1977] 1 GLR1 CA
Karleste-Panin v. Nuro [1979] GLR 194 CA
Ababio v. Turkson [1950] 13 WACA 35 CA
Morkor v. Kumah [1998 – 99] SCGLR 620 (East Coast Fisheries case)
Nkawie Stool v. Kwadwo [1956] 1 WALR 241 CA

Grounds of Appeal: The grounds guide the appellate court in deciding the appeal– the
basis for the complaints against the judgment/Order. Appellate Court is bound by the
grounds. The appellant can also set out further grounds by way of amendment and by
leave. The Court can on its own motion raise a ground of appeal but should afford the
parties the opportunity to argue it. E.g. Jurisdiction.

General Grounds: Judgment against the weight of evidence.

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The onus is on the appellant to prove that it was so. See Kojo v. Bonsie [1953] 14
WACA CA 242. The presumption is that the decision of the Trial Court on the facts was
right.
Appeah v. Asamoah [2003 – 04] SCGLR 226
Barclays Bank Gh. Ltd. v. Sakari [1996 – 97] SCGLR 639
Achoro v. Akanfela [1996 – 97] SCGLR 209
Attiase v. Abobbtey [1969] CC 149
Asafu Adjei v. The Republic [1968] GLR 567
Bisi v. Tabiri [1987 – 88] 1 GLR 360 SC

Grounds must be concise, not argumentative or narrative.

If a ground alleges misdirection, the misdirection should be stated.
See: Alawiye v. Agyekum [1984–86] 1GLR 179 CA

REHEARING
What is rehearing?; Was defined in the authoritative case of Nkrumah v. Ataa
[1972] 2 GLR 13.

Meaning: The Court of Appeal is in the same position as the Trial Court as if the
rehearing were the original hearing. It may receive evidence in addition to the evidence
on record and may review the evidence. It may also consider facts that occurred since
the trial and what relevant changes have been made in the law etc.

But it will not reverse findings of facts supported by evidence. Where the evidence turns
on credibility, the trial court’s findings will not be disturbed. See Atiase v. Abobbtey
[1969] CC 149 CA.

RELIEFS SOUGHT
 Should be clearer to the Court of Appeal
 Appeal Court be limited to the reversing of the whole judgment or part or an
Order.
 Cost alone – see BANK OF WEST AFRICA LTD. v. DARKO [1970] CC 74.

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POINT OF LAW/FRESH ISSUE OF LAW RAISED BY THE COURT OR COUNSEL
FOR APPELLANT ARISING FROM THE RECORD
Point of law or issue that does not call for adduction of evidence to decide it could be
raised on appeal for the first time.
 ABINABINA STOOL v. ENYIMADU [1953] 12 WACA 37
 NTEM v. ANKWANDAH [1977] 2 GLR 452 CA
 KWANTRENG v. AMASSAH & ORS [1962] 1 GLR 241 SC

FRESH EVIDENCE ON APPEAL

Not open to a party as of right to adduce fresh evidence.
Principle was set out in Ladd v. Marshall [1954] 1 WLR 1489 was applied in:
DOMBO v. NARH [1970] CC 68 CA.
AZAMATSI v. REPUBLIC [1974] 1 GLR 228 CA
APORI STOOL v. WORAKESI STOOL [1994 – 95] 2 GBR 629
SASU v. AMUAH-SEKYI [1987 – 88] 1 GLR 294 SC
FOLI v. AGYA-ATTA (consol) [1976] 1 GLR 194
KARIKARI v. WIAFE [1982 – 83] 2 GLR 864 CA
POKU v. POKU [2007 – 08] SCGLR 996

THE PRINCIPLES
1. The evidence was not available at the trial.
2. It must be evidence relevant to the issues.
3. It must be credible evidence well capable of belief.
4. It must have a decisive effect on the case.
♯ All principles/ingredients must be satisfied.

ORDERS ON APPEAL – ORDER 51 RULE 14

On deciding an appeal the Appellate Court can do any of the following:
 Remit to the court below – retrial – de novo
 Direct the trial court to inquire into it
 Allow the appeal
 Dismiss the appeal
 Draw new inferences of fact
 Orders not made could be made etc.
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  Injunctions

ENFORCEMENT OF JUDGMENTS FROM APPELLATE COURT

The order from the appellate Court must be obtained and filed at the lower court to be
enforced through the same process of enforcement at the trial court.

ORDER 21
DISCOVERY AND INSPECTION OF DOCUMENTS
a) Purpose
Discovery is a process that enables parties to obtain or solicit full knowledge of the
existence and content of all relevant documents relating to the matters in question
between them. The purpose is to provide the ground for fair trial of the action and
assisting in the fair disposal of the proceedings before or at the trial to facilitate possible
settlement or compromise between the parties – to close in the issues- or to assists in
the fair determination and the adjudication of the issues in controversy by the court.

Thus the objects of discovery could be said to be threefold.

(1) To enable either party to use evidence before the trial or to use or adduce
evidence at the trial, relevant documentary materials to support or rebut the
case made by or against him.
(2) To prevent or eliminate surprise before or at the trial in respect of
documentary evidence. (on this see Order 11 rr 8 and 9 which abhor surprise.
Especially 11 r 8(1)(b)
(3) To reduce the costs of litigation – (also to reduce delay)

So it affords all the parties the opportunity to see all material documents in possession of
the other party and to take copies thereof. This is what is referred to in general as
Discovery of Documents.

Discovery involves:

(1) The discovery or disclosure of documents and (2) The production of those
documents for inspection by the opponent.

(b) Automatic & Mutual Discovery- Rule 1-

Rule 1 (ii) provides that “After the close time for Automatic Discovery of pleadings in an
action there shall be discovery of documents in accordance with Order 21.

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Rule 1 (2) provides that “nothing” in this Order shall be taken as preventing the parties
from agreeing to dispense with or limit the discovery of document’s which they would
otherwise be required to make to each other. (See Order 11 r 8 & 9).

This upon the close of pleadings, there should be automatic and mutual discovery among
the parties. By this the parties are required to exchange the list of documents amongst
themselves without the necessity of appearing before the court for that purpose.
The parties may agree to dispense with or limit the right to discovery of documents
which they would otherwise be required to make to each other”.

By virtue of rule 2 automatic and mutual discoveries shall be made within fourteen (14)
days after pleadings in the action are closed between.
Rule 2 provides for Discovery by parties without Order: r 2(1) provides that: “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.”

So the party shall make and file for service within 14 days after close of pleadings. The
close of pleadings” is defined already in Order 11 r 19. But it also presupposes that
automatic discovery only arises in actions tried with pleadings- which also implies, almost
invariable, actions began by writ.

The 14 days period or time allowed for this enables discovery and inspection of
documents. The one month period required by the rules for application for directions also
gives time for automatic discovery and for inspection of the documents disclosed.

By the rule – the parties list of documents set out documents “which are or have been in
that party’s possession, custody or power”- and ought to relate to “any matter in
question between them in the action.”

This is in consonance with the principle that a party should not take the other party by
surprised (Order 11 rr 8 and 9) and that he must not withhold documents with the view
to misleading the court or that other party.

Discovery also takes place between the parties whom some issues arise in the action (so
could be between Plaintiff and Plaintiff or Defendant and Defendant or Plaintiff and
Defendant

It should be document “relating to any matter in question between them”.

These words refer, not to the subject matter of an action, but to the questions in the
action.

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So, in an action for possession of land, where the Plaintiff’s title is in question, they refer
to the title, not the land (per Lindley J in Philipps v. Philipps [1879] 40 LT 815, 821)

They are not limited to documents which would be admissible in evidence ( Compagine
Financiere du Pacifique v. Peravian Guano Co. (1882) 11 QBD 55 per Brett LJ p62
and 63; O’Rourke v. Darbishire [1920]AC 581, 6320, nor to those which would prove
or disprove any matter in question: any document which, it is reasonable to suppose,
contains information which may enable the party (applying for discovery) either to
advance his own case or to damage that of his adversary, if it is a document which may
fairly lead him to a train of inquiry which may have either or these two consequence”
must be disclosed.

A document required merely for the purpose of comparing handwriting, where the
handwriting of another document of another became an issue, may be “relevant” ( Jones
v. Richards (1885) 15 QBD 439.

Any documents shedding light on the amount of the damages must be disclosed and
written complaints from third persons as to a matter question. ( Board v. Thomas
Hedley & Co. [1951] 2 All ER 431.

The documents are those ”which are or have been in his possession, custody and power.
So Order 21 deals with both physical possession of the documents and the power to
obtain such physical possession or custody or power to obtain possession or custody.

There is an obligation to disclose documents which were or had been in possession or

power of the party.

Accordingly, the party must disclose (and the court has power to order him to disclose
the following:

1. Documents that are or have been in his possession- Here possession is

distinguished from mere corporeal holding i.e custody. A bailee or agent has
possession of documents entrusted to him for the owner; a servant as such has
merely custody.
2. Documents that are or have been in his custody – Therefore a document of a
limited liability held by an employee or director order to make discovery, are
included in one or other of these two classes.
3. Documents that are or have been in his power- These include all documents
which, though they are not in his possession or custody, he has a right to obtain
from the person who has them Eg where he is the owner and has not parted with
the right to possession.

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 Thus the foregoing rules are subject to the overriding consideration that Order 21
is concerned the physical possession or custody of documents, or the power to
obtain such possession or custody”.

If such documents are not in physical possession etc of a party, he may be ordered to
give discovery if it has the right to control them personally or in the capacity in which he
is sued.: he may not be so ordered if his control of the document is in another capacity
eg a director of a company (B v. B Matrimonial Proceedings Discovery) [1978]] 1
All ER 801.

Duty of Lawyers to ensure full disclosure

It is necessary for solicitors to take positive steps to ensure that their clients appreciate
at an early stage of the litigation promptly after the writ is issued, not only the duty of
discovery and its with but also the importance of not destroying documents which might
possibly have to be disclosed.

The lawyer has a duty to ensure that his client makes full disclosure. In Woods v.
Martins Bank Ltd [1959] 1 QB 55, 60 per Salmon J (as he “it cannot be too clearly
understood that solicitors owe a duty to the court, as officers of the court, carefully to go
through the documents disclosed by their client to make sure, as far as possible, that no
relevant documents have omitted from their clients’ affidavit”.

In MYERS v. ELMAN [1940] AC 282, 293 – 292 and 322-333- where comments made
on the duty to notify court and/or to withdraw in the event of client not complying with
proper advice in respect of discovery.

Per Megarry J in Rockwell Machine Tool Co. Ltd v. E P. Barnes Concessionaires

Ltd [1968]2 All ER 98.

The meaning of “documents” is not anything to paper writings but extends to mention is
ordered in a manner intelligible to the senses or capable of being made intelligible by the
use of equipment. Thus tape recordings of evidence or information are documents-
GRANT v. SOUTHWESTERN & COUNTRY PROPERTIES LTD [1975] Ch 185; [1975]
2 All ER 465. “inspection “ extends to examining such recordings or other documents
with appropriate equipment (bid p 198)

A computer database which forms part of the business records of a company is, in so far
as it contains information capable of being retrieved and converted into readable form, a
“document” for the purpose of Order 21 and therefore susceptible discovery (DERBY &
CO. LTD v. WELDON (No. 9) [1991] 2 All ER 901.

Furthermore, photocopies of documents are generally discoverable, since they are

equally capable of assisting the parties in the preparation of their case- DUBAI BANK v.
GALADDDARI (No. 7) [1992] 1 All ER 658.

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A party who obtains discovery must use the documents disclosed only for the proper
purposes of conducting his own case and not for any collateral or ulterior purpose.

Therefore the court has the power to restrain the improper use of documents by
injunction or punishment for contempt. This is more so since there is an implied
undertaking by him not to use them for any collateral or ulterior purpose.

Any misuse of the documents may be restrained by injunction or punished as a contempt

(THE DISTILLERS CO. (BIOCHEMICALS) Q.B 613 following ALTERSKYE v. SCOTT
[1948] 1 All ER 469,471.

In Alterskye v. Scott [1948]1 All ER 469, 471 where there was improper use of
documents first time, the defendant wanted an undertaking that they will be used for
proper.

Held: that implied obligation under which either party was to make proper use of
documents were sufficient protection and that undertaken was no necessary.

The court has inherent jurisdiction to take precaution against the possibility that
discovery may be abused or cause unjustifiable hardship and may, to that end, impose
restriction upon inspection or permit it subject to undertakings parties between whom
some issue arises in the action –

The rule gives the obligation or duty to disclose relating to any matters between them.
i.e relating to matters between the parties.

This refers not to the subject matter of the action but the questions in action. Discovery
takes place between the parties between whom some issues arise in the action. It may
therefore take place between defendants where for example, each is attributing to the
negligence of the other the injury to the Plaintiff, or is alleging that the negligent person
was the other’s servant: See Brown v. Watkins (1885) 16 QBD 125 & Shaw v Smith
(1886) 18 QBD 193.

As a general rule discovery in an action can only be ordered as between the parties to
the action (James Nelson and Sons Ltd v. Nelson Line Ltd. [1906] 2 KB 217, 223,
224, CA; Shaw v. Smith (Supra)

vi) Exceptions to Automatic Discovery

(a) Automatic & mutual Discovery does not apply to 3rd Party Proceedings under Order
15
See Order 21 r 2 (2)

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Until Application for directions in 3rd Party proceedings is heard as under 15 r 4 there is
no obligation to give discovery and on that application the court orders whatever
discovery is needed.

(b) There is also no automatic and mutual discovery in running down actions unless
some issue in the action calls for it- e.g an issue as to whether the driver of the vehicle
was the driver’s servant, or whether a vehicle had been properly maintained-

See also Order 21 r 2(3)” unless the court otherwise orders, a defendant to an action
arising out of a motor accident shall not make discovery of any document to which the
plaintiff under sub rule (1)

(c) A defendant in an action either to recover a penalty recoverable under any statute or
to enforce forfeiture shall not be required to make a discovery relating to that action

- See Order 21 r 2(4) (a) & (b)

vii) Application to limit discovery obligation:

Notwithstanding the provision for mutual and automatic discovery, a party may apply to
the court to limit the obligation. The court may allow this by either specifying the
document that may be disclosed or stating that there will be no discovery at all. The
application must be made within the fourteen (14) day period i.e 14 days after close of
pleadings – See Order 21 r 2(6)

Order 21 r 2(6) says: “On the application of any party required by this rule to make
discovery of document, the Court (a) order that the parties or any of them shall make
discovery under sub rule (i) of such documents or such matters in questions 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.

Order 21 r 2(7) An application for an order under sub rule (b) shall be made before the
expiration of the period for discovery of documents under this rule.

viii) Failure to make automatic Discovery

If a party fails to make automatic discovery, the other party is entitled to
apply for an order for discovery or to strike out the pleadings of the party
in default.

CHIPCHASE v. ROSEMOND [1965] 1 All ER 145 – Default by a party in making

discovery by list under the rule entitles the other party to apply to strike out his pleading
or to apply for an order of discovery. The Court admitted that the party had a right to
obtain an order for discovery the provision for dismissal was available on default of
making the automatic discovery. The court may order that the case be struck out.

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 a) Order for Discovery (Rule, 3 & 6)
R 3 – Order 21 r 3 (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 to serve on the
applicant a list of the document which are in the 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 R
3 (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.

R 3 (3) Notwithstanding subrules (1) & (2), an order under this rule may be limited to
such documents only or to only the issues in the cause or matter as mat be specified in
the order.
So under this rule a party may either thereafter, if he can show reasonable cause, apply
for discovery by list or for an order for an affidavit verifying the list. This is particularly
useful against a party who has not fulfilled this obligation to make automatic discovery.
The court has the discretion to make the order for discovery or not as in R 6 or to limit
the discovery only to a specified document or to limit or restrict the discovery to only the
issues in the cause or matter.

Rule 3 deals with Discovery by Court Order & r 6 deals with “Discovery to be ordered
only if necessary” r 6 says that: “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 the discovery is
not necessary either to dispose fairly of the cause or matter or to save costs.

d) List of Documents – Rule 4 Pensions entitled to list

r 4(1) A defendant who pleases in an action is entitled to have a copy of any list of
documents served by any other defendant on the plaintiff under r 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
documents served by any other defendant to the counterclaim on the party making the
counterclaim under r 2 or 3.
2) A party required by sub rule (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 any affidavit verifying a list of documents.

In practice the list must enumerate the documents in a convenient order, as briefly as
possible all the documents in the party’s possession custody or power relating to any
matter in question in the proceedings. The documents must be described to enable it to
be sufficiently identified so that the other party can ascertain and ask for those he wishes
to inspect. Specifying them appropriately and to enable the Court if an application is
made, to see whether the rule or any order for discovery has been complied with and if
necessary to make eg. An order for production for inspection which is clear and can be
enforced.
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The list should contain preliminary paragraphs that describe the nature of the document
and should state that the party has in his possession, custody and power the documents
relating to matters in the action enumerated in part 1 of schedule 1 hereto”.

The parties will then require a 4 th preliminary paragraph which will set out in more
sufficient detail what has become of the documents and in whose possession they are
now.

If the documents are lost the party must state the circumstances of the loss. A last or
final preliminary paragraph is required to state that neither the party “nor his lawyer nor
any person on his behalf has now or ever had in his possession, custody or power any
documents of any description whatsoever relating to any matter question in this action
other than the document enumerated in schedules 1 and 2 hereto”.

The essence of this final paragraph is to ensure that the party has made fill and frank
disclosure of all relevant documents.

f) Further & Better List of Documents (rule 5)

Read Rule 5 –

Where it appears on the face of the list already served or from the disclosed document or
on admission by any party that there is the probability that the party has or has had
other relevant specified documents beyond those disclosed, the other party is entitled to
apply to the court for the first time party to be ordered to state by affidavit whether the
document specified or described in the application has at any time been in his
possession, custody or power and if not currently in his possession custody or power
when that party parted with the document and what has become of it.

The application is supported by an affidavit stating that:

1) In the belief of the deponent the respondent or the person from whom discovery
has or at some time had the specified documents which relate to the matter in
question in the cause or matter.
2) That the Respondent has (A case is made out for) possession, custody or power
and
3) The documents specified are relevant. The court will then exercise its discretion to
make the order under these conditions:
1. There being sufficient evidence that the document(s) is or
are in existence which had not been disclosed by the other
party.
2. The document(s) relate(s) to matters in issue in the action.
3. There is sufficient evidence that the document is in
possession, custody or power of the other party.

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Even so the court has discretion as to whether or not it would order the disclosure as in r
6

ORDER 42

REVIEW

Order 42 of CI 47 gives a court an opportunity to re-examine, reconsider or take a

second view at its decisions for the purposes of correction. This is called “review”.

The rules provide that a person who is aggrieved by a judgment or order from which,
either (a) an appeal is not allowed, or (b) an appeal is allowed but no appeal has been
filed, to apply to the court to review its judgment/order if he can show:

(i)                 that he has discovered a new and important matter/evidence which even after
exercising due diligence would not have been within his knowledge or could not have
been produced by him at the time the judgment was given or order made, Wilson v.
Osei & Another [1982-83] GLR 588,

(ii)               that there has been some mistake or error apparent on the face of the record,
See Baiden v. Ghana National Trading Corporation [1989-90] 2 GLR 79, or

(iii)             any other sufficient reason. Holland West Africa & Another v. Pan African
Trading Co. & Another [1976] 2 GLR 179; HELD: The fact that a judge made an error
of law was not a sufficient reason for applying for a review.

Akwei v. Akwei [1961] GLR 212: Only a party to an action can apply for a review. A
stranger to the suit is not allowed to make a review application. Concession Enquiry
No. 2384 [1963] 1 GLR 471. The Supreme Court affirmed that only a party to an action
can make a review application, and that although the Attorney-General had been allowed
by specific legislation to intervene in the action, it did not make him a party to the action,
and therefore he could not apply for a review.

See Chahin & Another v. Boateng [1963] 2 GLR 174; In re Lartey (Decd.); Lartey
v. Affutu-Nartey [1972] 2 GLR 488 at 494 and State Insurance Corporation v.
Frafra & Others [1978] GLR 147 HELD: a court cannot review its judgment suo motu,
because the power to review may only be exercised upon an application by an aggrieved
party.

Read Yanney v. African Veneer Mahogany Exporters Ltd [1960] GLR 89 and Aegis
Shipping Co., Ltd. v. Volta Lines Ltd. [1973] 1 GLR 438, for a discussion on the
grounds for making the application.

See also Ofori-Atta v. The State [1967] GLR 304.

In Okudjeto & Others v. Irani Brothers & Others [1975] 1 GLR 96, HELD: the filing
of a notice of appeal renders the trial judge functus officio and terminates his power of
review.

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However under rule 1(2) the pendency of an appeal per se, is not a bar to applying for a
review. A party who has not filed an appeal, may apply for a review, although the other
party has filed an appeal. However, this is not allowed if (i) the ground of appeal is
common to the two parties, or (ii) being respondent, he can present the case on which
he applies for the review to the Court of Appeal.

An application for review must be filed within 14 days from the date the relevant
judgment/order is made or entered. However where the review is sought with respect to
a final judgment, the court may give a party leave to apply for review within 3 months
after the judgment is entered. The respondent to a review application is entitled to seven
days’ notice of the application, and the application will be granted only if there are
sufficient grounds for a review.

The rules specifically provide that as long as the Judge who made the judgment/order (i)
continues to hold office when the application is presented, and (ii) is not precluded from
considering the application because of absence or any other cause for 3 months
following the application, that judge and “no other judge shall hear the application.” See
Baiden v. Ansah [1973] 1 GLR 33.

If the review application is successful, it shall be noted in the Cause Book and the Court
is empowered to immediately rehear the case and make any orders that it considers fit,
including amending, varying or confirming the previous judgment/order. Note: a
judgment/order can only be reviewed once.

Order 48

INTERPLEADER PROCEEDINGS

Where two or more persons claim the same thing from a third person, and the latter,
who is not making any claim to it himself, does not know which of them has a right to it,
and fears he may be prejudiced by their proceedings against him to recover the thing, he
may commence interpleader proceedings against them, the object of which is to make
them litigate their title between themselves, instead of litigating with him.

Under order 48 rule 1, interpleader proceedings may commence in 2 ways

(i)                 “The Registrar’s Interpleader”, also known as “The Sheriff’s

Interpleader”: This occurs where the Registrar or other officer of the
court seizes or intends to seize property (movable and immovable) by way
of execution against a judgment-debtor or has in his possession the
proceeds/value of any property, and a person, other than the judgment
debtor (the “claimant”), claims them. The claimant is required to file a
Notice of Claim. In practice the Registrar will notify the judgment creditor
of the Notice of Claim, and if the Judgment creditor disputes the claim, he
will file a Notice of Dispute. Then the Registrar is required to initiate
interpleader proceedings to determine whether the property belongs to the
judgment debtor (and therefore can be seized) or to the claimant. (Rule
1(b)) (See Republic v. High Court Accra, ex parte Anyan [2009]
SCGLR 255.
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 (ii)               “The Stakeholder’s Interpleader”: This occurs where a person
under liability for any debt, money or goods (e.g. a warehouse owner) has
been, or expects to be sued by two or more rival claimants to the property.
If he has no interest in the dispute, he can apply for relief by the way of
interpleader, that is, a hearing at which the rival claimants will be made to
interplead, i.e. argue against each other and not against him. (Rule 1(a))

The application for relief is made by motion with notice to each claimant, else no order
can be made affecting him. If the applicant in a Stakeholder’s Interpleader is a
defendant, he may make the application for relief at any time after the service of the
Writ of Summons, and the court shall stay further proceedings until it has dealt with the
application. An applicant must provide evidence by way of affidavit that he:

(i)                 has no claim of interest in the subject matter of the dispute, other
than for charges or costs. Note: there is a “claim of interest” even if the
party interpleading claims no right of property but has a financial stake in
the result of the proceedings or the Registrar is himself the execution
creditor. However, with respect to “charges and costs”, having a lien over
goods for charges for storage or over the proceeds of sale for commission
on the sale will not disentitle the applicant to relief.

(ii)               does not collude with any claimant – Murietta v. South

America, etc. Co., Ltd. (1893) 62 L.J.Q.B. 396, per Charles J at p. 398:
“Collusion, in the sense in which it is used in this Order […under which an
applicant for relief by way of interpleader had to satisfy the court that he
did not collude with any of the claimants] does not necessarily entail
anything morally wrong, although the word has acquired a meaning
generally associated with something morally wrong... The word in the
interpleader order has its logical signification, that the applicant... must not
play the same game as one of the parties.” See also Chellaram & Sons
(Ghana) Ltd. v. Halabi [1963] 1 GLR 214 – note that it was not an
interpleader action. The plaintiff brought the action to release a store and
goods from attachment. The court dismissed the action, finding that there
had been “collusion” between the plaintiff and her husband, who was the
managing director of the judgment-debtor company; and

(iii)             is willing to pay/transfer the subject-matter into court or dispose of

it as the court may direct.

When the application comes to be heard, the court may order the claimants to appear,
state the nature and particulars of their claims and either maintain or relinquish them.
The court order will specify the date on which the claimants are to appear in court, and a
copy of the order shall be served on the claimants if the court so directs. Within 7 days
after the court makes the order or after the order is served upon the courts direction,
any claimant intending to maintain a claim shall file particulars of his claim, and give
notice of the particulars to the applicant and every other claimant. The court will refuse
to hear a claimant who fails to file particulars of a claim, and the claimant will be deemed
to have abandoned his claim. However the court may grant the claimant extension of
time to file the particulars.

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A claimant is required to appear at the hearing personally or by a lawyer. If he does not
appear, his claim may be barred. There is no entry of appearance in the technical sense
but the claimant should support his claim by affidavit (called Affidavit of Interest), unless
he appears merely to object to an irregularity or to argue that no right to interpleader
exists in the applicant. When the claimants appear pursuant to the court’s order, the
court may order that (i) any claimant to be made a defendant in the action already
commenced in respect of the subject matter in dispute, in replacement of or in addition
to the defendant, or (ii) an issue between the claimants should be stated and tried, in
which case the court will determine which of the claimants is to be plaintiff and which is
to be defendant. See Salama v. Sharani [1973] 2 GLR 364 at 367-370.

Where (i) the question at issue between the claimants is a question of law and facts are
not disputed, or (ii) all the claimants consent or any of them so requests, the court may
decide the merits of the claims summarily and make any orders on such terms as may be
just. Karam v. A.G. Leventis & Co., Ltd. [1965] GLR 96, HELD: Where the only issues
before the court were purely questions of law, the judge did not err when he exercised
his discretion to try the interpleader summarily and not by a case stated.

The summary procedure is contrasted with ordering an issue to be stated and tried, and
is used in straightforward cases. But if the property is of considerable value and difficult
questions of law may arise, summary disposal is not appropriate, even if the parties
consent.

If a claimant (usually a secured creditor) makes a claim to goods seized by the Registrar
in the execution of a judgment, and the Registrar interpleads, the court has jurisdiction
to make an order for sale under rule 9. The object of this rule is, whilst protecting the
rights of secured creditors, to render any surplus realised after due protection of such
rights available to satisfy the claim of the execution creditor. If the security is plainly
enough to leave a surplus for the execution creditor, the claimant will not be allowed to
defeat him, and the court will order a sale. If the security is plainly deficient, the
Registrar may be ordered to withdraw. If it is doubtful whether the security is or is not
sufficient to pay of the secured creditor, the court may refuse to order a sale unless the
execution creditor guarantees the secured creditor against loss by sale.

If a claimant who has been ordered to appear does not appear, or fails to comply with
any order made after he has appeared, the court may bar him and all persons claiming
under him, from ever prosecuting the claim against the applicant and all persons claiming
under him, although this order will not affect the rights of the claimants as between
themselves. See Tetteh v. Mensah & Others [1987-88] 1 GLR 471 especially at 476-
477.

The rules governing discovery (order 21), interrogatories (order 22) and proceedings at
trial (order 36) apply mutatis mutandis to interpleader proceedings.

In all interpleader proceedings, the court is required to give such judgment and make
such orders that will ensure that all the questions arising from the proceedings are finally
disposed of. The court also has the power to make orders as to costs or any other matter
it considers just. For instance, who bears the loss of a wrongful execution where there
has been an omission by Registrar to interplead? See Hajar v. Staveley & Co.
(Motors) [1968] GLR 114

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What happens if there is a failure/omission by a claimant to interplead?

Afari v. Nyame [1961] GLR 599, per Ollennu J at 600-601: “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 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.”

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