APPLICATION FOR DIRECTIONS

This is regulated by Order 32 of C.I 47

It is the stage at which the court, the parties and the lawyers meet to consider
how the case will be conducted and its further management.

SEE: ARMAH v HYDRAFOAM ESTATE LTD

Directions are to be applied for and conducted in all cases commenced by a

writ of summons except the following:

a. Actions in which directions are given in Order 11 rule 19 (close of pleadings).

This makes no provision in respect of directions. See also: Order 11 rule 18(1)
(striking out pleadings); Order 14 rule 6 (leave granted to defend after
dismissing a summary judgment application); Order 25 rule 7 (application for
interlocutory injunction)

b. Directions shall not be taken in actions in which an order for the taking of an
account is made under Order 29 rule 1

c. Actions for infringement of a patent

d. Actions or proceedings under Order 65 in relation to matrimonial causes.

BENEFITS OF DIRECTIONS

The purpose of application for directions is to ensure that the real issues or
controversies between the parties are brought forth or set out so that the
court, parties, and the lawyers may know exactly the issues they are
confronted with at the trial.

It also ensures that all preliminary matters are dealt with before the trial. For
example, injunctions, accounts, subpoenas, number of witnesses each party
may want to call, etc.

When these matters are dealt with, the trial is conducted smoothly with
minimal interruptions.
Issues which could be resolved by legal arguments may be set out at this stage
and directions given by the court for their hearing given by the court.

NB: It is not necessary for the trial to end to know its outcome. At application
for direction stage, an issue may be singled out and tried by the court under
Order 33.

See: Ofei v Mante v Mike Similao [2017-2018] 2 SCLRG 431; Armah v

Hydrafoam Estate Ltd [2013-2014] SCGLR 1551

The court and the parties may at this stage agree on the number of witnesses.

Application for directions is to be filed by the plaintiff within one month after
the close of pleadings for service on the other parties. See: Order 32 rule 2(1)

NB: Application for directions is an exception to Order 19 rule 4

Where discovery of documents is ordered under Order 21 and the period

stated for the discovery is further extended, a plaintiff shall apply for directions
within 14 days after the expiration of the extended period for the discovery.
See: Order 32 rule 2(3)

8 days’ notice is to be given before the hearing of the application for

directions. See: Order 32 rule 2(2).

In actions in which only the counterclaim is heard, counterclaimant shall apply

for directions accordingly. See: Order 32 rule 2(4)

CIRCUMSTANCES UNDER WHICH ONLY THE COUNTERCLAIM MAY BE HEARD

a) Where the plaintiff’s claim is struck out.

b) Where the plaintiff’s claim is discontinued

FAILURE TO APPLY FOR DIRECTIONS

A defendant may apply for directions in case the plaintiff fails to do so. The
defendant may instead apply for the action to be dismissed. See: Order 32 rule
3(1)
The court may deal with an application by the defendant to dismiss the action
as if it were an application for directions and give directions accordingly. See:
Order 32 rule 3(2)

The court may dismiss the action upon application by the defendant.

The court has an inherent jurisdiction to dismiss the action if the plaintiff
defaults in applying for directions. The court may dismiss the action where the
plaintiff is guilty of intentional default.

The court may also dismiss the action in case of inordinate and inexcusable
delay.

There are cases where actions have been heard without the parties applying
for directions.

See:

1. Omane v Poku [1973] 2 GLR 66

2. Amoako v Hansen [1987-88] 2 GLR 26

3. Boakye v Tutuyehene [2007-2008] SCGLR 970

In some cases, it has been held that the failure to apply for directions renders
the judgment a nullity. While in other cases, it has been held otherwise. (Read
cases to know the current position of the law)

The current position of the law is that a failure to apply for directions does not
render the judgment a nullity. It is a mere irregularity which can be saved
under Order 81. See: Boakye v Tutuyehe [2007-2008] SCGLR 970

A party on whom an application for directions have been served may also
serve a notice for additional directions in respect of any matter or issue which
is not captured in the application served on him. See: Order 32 rule 4.

MATTERS TO BE DEALT WITH ON APPLICATION FOR DIRECTIONS

The court may deal with every matter that ought to be dealt with at the
application for directions stage before setting down the suit for the trial.

After the hearing of application for directions, the court shall consider if any
amendment ought to be made by any party or if evidence by an affidavit ought
to be ordered and once the application is made, the court may consider if any
amendment ought to be made by any party.

The court may also consider how the deponent to the affidavit may be cross-
examined. The court may consider if evidence may be given via video link. See:
Order 38 rule 3A

The court may order the filing of witness statements. See: Order 38 rule 3B (2)

The court may also consider whether expert witness may be required.

The court may also consider whether any question ought to be tried out of
turn and if it does so, the place at which such question shall be tried and the
mode of trial shall be determined.

The court may also endeavour to secure that, admissions as to the conduct of
the proceedings are made by the parties. The court may also consider matters
stated in PART 8 of the Evidence Act. See: Order 32 rule 6

Whatever admissions are made by the parties ought to be recorded during the
application for directions and where a party refuses to make admissions which
ought to be made, it shall also be recorded in the final orders of the court. See:
Order 32 rule 7(1)

However, the court cannot require the parties to agree not to file an appeal on
any matter. See: Order 32 rule 7 (2)

After all preliminary matters have been dealt with, the court may then give
directions on the management of the case. This shall include ordering the
parties to file their witness statements in accordance with Order 38 rule 3 (2)
(b). See: Order 32 rule 7A
The court shall also give directions as to the order in which the witness
statements shall be filed.

In practice, the plaintiff is normally ordered to file his witness statements first
and served on the defendant, after which the defendant also file his witness
statement within a particular time.

A witness statement is a written statement signed by a person which contains

the evidence which that person will be allowed to give orally at the trial. See:

1. Order 38 rule 3(b)(i)

2. Section 179 of Evidence Act for definition of evidence.

The combined effect of Order 38 rule 3(b)(i) and Section 179 of NRCD 323
means that all exhibits intended to be relied on shall be attached to the
witness statement when filing.

DUTY OF PARTIES AND LAWYERS TO GIVE ALL INFORMATION AT THE

APPLICATION FOR DIRECTION STAGE

Although the process is referred to as application for directions, pondering to

Order 19 rule 4, no affidavit is to be filed in an application for directions unless
the court otherwise orders the parties.

Notwithstanding the fact that affidavits are not used, the parties and their
lawyers are duty bound to disclose any information and produce documents
which are relevant to the process of application for directions. See: Order 32
rule 8(1)

Although the parties are enjoined to disclose every information and produce
every document that is relevant to the process, privileged information
stipulated under the evidence act shall not be required to be produced at the
hearing of application for directions except the parties agree. See: Order 32
rule 8(2)
Where an application is made for an order at the hearing of the process of
application for directions, such applications are required to be supported by an
affidavit. The affidavit shall be filed in support of that application without the
need for the leave of the court. See: Order 32 rule 8(3).

Information which affects the security of the state at the application for
direction stage, that information shall be produced and given to the court only
and shall not be served on the other parties in the suit. Otherwise, every
information shall be served on all parties except privilege information.

In an application for directions, where a party fails to produce information

after being ordered by the court to do so, the court may cause that fact to be
recorded and the party may be faulted in costs at the trial. On the other hand,
the court may strike out the whole action or pleadings or any part of the
pleadings filed by that party. The court may dismiss the action if the party in
default is the plaintiff or dismiss the counterclaim if the party in default is the
defendant. See: Order 32 rule 8(4)

After all primary matters have been dealt with, the court shall fix a date for a
case management conference which is normally held after the parties have
filed their witness statements. See: Order 32 rule 7A

A pre-trial checklist is a process filed by the parties in which the parties

indicate whether they require orders for subpoenas to be issued, whether they
require interpreters, whether they require amendments to be done or
whether there is a prisoner who ought to be invited etc..... CI 87.

The pre-trial checklist is required to be filed at least 4 clear days before the
date fixed for case management. Where a party fails to comply with an order
made at CMC or pre-trial review, the court may do any of the following;

a. Strike out the action if the non-complying party is the plaintiff

b. Strike out the defence and counterclaim if the non-complying party is the
defendant

c. Order every party to pay costs or make any order as may be appropriate.
See: Order 32 rule 7A (3)

STAY OF PROCEEDINGS

CI 133 has made inroads to Order 32.

At the directions stage, according to CI 133, any of the parties may in writing
request the court to stay the proceedings in order that the parties may
attempt settlement by ADR. See: Order 32 rule 1(1)(a) of CI 133

The court suo motu shall at the directions stage shall inquire from the parties if
they want to resort to ADR.

The court shall not inquire from the parties whether they want the dispute to
be settled through ADR where the dispute is not amenable to settlement. See:
Section 1 of ADR Act, 2010

Where the parties agree at the case management conference to settle their
dispute by means of ADR, the court shall give orders to promote the
settlement and shall consequently stay proceedings for one month to enable
the parties attempt the settlement.

The proceedings to settle the matter shall be conducted in accordance with the
ADR Act.

If the parties are able to settle the matter by ADR, they shall prepare terms of
settlement, sign the terms of settlement, file it before the court and the court
shall adopt the terms of settlement as consent judgment. However, if the
parties are unable to settle by ADR, the court shall proceed with the directions

WITNESS STATEMENTS

Every witness statement filed by a party, or a witness shall be verified by a

statement of truth and the person shall not testify in court if he fails to file a
witness statement. See: Order 38 rule 3C and 3D

Where a person wishes to rely on the witness statement at the trial, after filing
the witness statement, the person may be called upon during the trial to give
evidence in accordance with the witness statement filed. At the trial, the
witness statement shall be identified by the person to give evidence and same
shall be adopted by the court as that person’s evidence in chief.

NB: A party who has sued or been sued need not give evidence by himself at
the trial. See:

1. In Re Ashalley Botwe Lands; Adjetey Agbosu v Kortey [2003-2004] 1 SCGLR

420

2. Armah v Hydrafoam Estates Ltd [2013-2014] 2 SCGLR 1551

Oral testimony may with the leave of the court be given by a witness in
addition to his witness statement. But that oral testimony shall be confined to
fresh matters that have arisen after the filing of the witness statement

Where the person who gave the witness statement is not called as a witness,
any of the parties may tender the witness statement as hearsay evidence. See:
Order 38 rule 3E

A witness statement shall be used only in the proceedings in which it was filed
unless

a. the witness consents in writing for some other use of the witness statement
or

b. leave is granted by the court for some other use of the witness statement or

c. the witness statement is put in evidence at a public hearing by the person

who filed the witness statement.

See: Order 36 rule3G

 THE TRIAL

Where a person who has given a witness statement is called to give evidence
at the trial, the person shall swear on his religious belief to testify truthfully to
the court. See:

1. Section 62 of the Courts Act 1993

2. Section 61 of Evidence Act.

If the person has no religious belief shall also swear to give evidence truthfully
to the court.

After the witness has been sworn to give evidence truthfully, his lawyer shall
lead him in evidence to tell his story. If the person is not represented by a
lawyer, the court itself may lead him to tell his story and it is done by first
asking him to introduce himself (name, where he lives, occupation, his
relationship if any with a party to the action) and the witness statement shall
be given to the witness to identify his mark or signature.

Thereafter, the witness statement shall be adopted as evidence in chief. After

the adoption of the witness statement, cross examination begins, and re-
examination may also follow.

NB: The witness statement is not an exhibit.

If the case is called for trial and the parties fail to attend, the court may strike
out the action.

If the trial Is called and the plaintiff fails to attend, the court may dismiss the
action and hear the defendant on his counterclaim if any. If the case is called
but defendant fails to attend, the court may dismiss the defendant’s
counterclaim and hear the plaintiff on his claim. See:

1. Order 36 rule 1
2. Republic v High Court (Fast track division) ex parte Ayikai [2015-2016] 1
SCGLR 289

3. Republic v high court (fast track division) ex parte state housing company (2)
[2009] SCGLR 185

The court may instead of striking out the suit, make any other order that is
just, and the court reserves the power to adjourn the matter to such time as it
deems fit.

Judgment given against a party who fails to appear at the trial may be set aside
or varied on terms as are just when that party applies within 14 days after the
trial. See: Order 36 rule 2

Depending on the party who carries the burden of proof, the court may direct
which of the parties shall be the first to give evidence after which all the
witnesses of that parties be called to give evidence and examined. See: Order
34 rule 6

Under order 36 rule 4(6) a defendant shall be called upon to give evidence first
if the burden of proof on all the issues lies on that defendant otherwise the
plaintiff shall be the first to give evidence. Nonetheless, the court reserves the
right to direct which of the parties to give evidence. After all the parties have
given evidence and called witnesses, or where the defendant elects not to give
evidence, the case shall be deemed close.

After the close of the case, the court shall give time for the lawyers to address
the court on the evidence and the law. Where the defendant gives no
evidence, the defendant shall be called upon to address the court first after
which the plaintiff shall address the court. Where the defendant gives
evidence, the plaintiff shall first address the court before the defendant takes
his turn

A trial judge has the power to visit and inspect the locus. Where the locus is
visited by the court, evidence shall be given to whatever transpired and seen
there and shall be recorded by the court. The procedure to be adopted has
been set out in the case of Gblevi Family v Amanie.

1. The Court must be accompanied by the parties and their witnesses to the
place of inspection.

2. The parties and their witnesses then point out such places or landmarks
which are relevant to their respective cases.

3. People on the land who have not testified in Court may be heard by the
judge, but such persons must attend court when it reassembles.

4. All such persons must be put in the witness box and examined on oath as to
the role they played during the inspection.

5. These witnesses are regarded as Court witnesses, and they will be cross-
examined by the parties.

6. The evidence becomes part of the record.

7. The judge’s role under this order cannot be delegated by the judge.

At the trial, exhibits tendered by the plaintiff are numbered alphabetically and
exhibits tendered by the defendant are numbered numerically. See: Order 36
rule 8(1).

In numbering the exhibits, the alphabet (i) is normally omitted in the

numbering in order to avoid confusing it with number 1. Again, the alphabet r
is used for exhibits that are rejected.

All exhibits whether admitted or rejected are to be kept in the custody of the
clerk of the court. See: Order 36 rule 9

After the parties have given their closing remarks through the addresses of
their lawyers, the trial judge shall give judgment or fix a date for the delivery of
the judgment and same shall be read in open court.
Adjournments are at the discretion of the court and may be made to do justice
to the case.

See:

1. Order 36 rule 3

2. Order 37 rule 1

3. Republic v High Court (Fast Track Division) Accra; Ex parte Sian Goldfields Ltd
(Aurex Management and Investment, AG/SA Ltd Interested party) [2009]
SCGLR 204)

As such the parties, the lawyers and the court have a duty to avoid delay of any
sort. See:

Order 37 rule 2

A 28 days’ notice shall be given by a party who wishes to call the case if the
case has not been called for at least 6 months and the case may be struck out
for want of prosecution if nothing has been done in the case for a period of 12
months. See: Order 37 rule 3

For this reason, a party or registrar may apply for the case to be struck out for
want of prosecution. 14 days’ notice is required where an application is filed to
strike out the case for want of prosecution. See: Order 37 rule 4

COMMERCIAL ACTIONS

Regulated by Order 58 of C.I 133

Case management in the commercial court is slightly different. Order 58 of CI

47 regulates practice in the commercial court. The new Order 58 introduced by
CI 133 applies in the determination of commercial claims filed in the
commercial courts as well as the High court and the Circuit Court.

A commercial claim is a claim that arises any transaction in commerce and

stated in order 58 rule 2.
They are normally commenced by the issuance of a writ of summons. See:

1. Order 58 rule 2(b)

2. Section 383 of Act 992

Note the Jurisdiction of circuit court in the courts act. Question: Whether
circuit court qualifies to handle some of the cases in CI 133. See: Copyright
Societies of Ghana v Afreh

7 days after the close of pleadings at the commercial court, the registrar or
administrator of the court shall assign an action involving a commercial claim
for pre-trial review or pre-trial conference. After the assignment of the case,
within 14 days, the parties shall be served with hearing notices to appear
before the judge for pre-trial conference.

At the pre-trial conference, the judge must encourage the parties to settle
their case through ADR. It shall be explained to the parties the various forms of
ADR processes and the parties may choose any of them to settle their case.
Once they do so, proceedings shall be stayed for 30 days. Where the parties
are unable to agree to adopt ADR, the action shall proceed with the application
for directions and to full trial.

A list of accredited mediators shall be available to the parties if they adopt to

go by mediation so that they may choose any of the mediators to resolve their
case. If they are unable to choose, the judge may choose a mediator for them.
The ADR shall be conducted in accordance with the ADR act.

The parties may also agree that the judge himself mediates on their dispute. In
that case, if they are unable to settle their case, the judge who mediated shall
be disqualified to hear the dispute.

Where the parties make disclosures at ADR except for arbitration, the
disclosures shall not be construed as admission by the party making it. A
mediator is disqualified from giving evidence at the trial if mediation fails. A
piece of evidence is not rendered inadmissible just because mediation is
unsuccessful. If the parties are making progress towards the settlement of the
case, the mediator may apply to the court for extension of the 30 days if the
parties are unable to conclude their agreement within the 30 days. If the
parties are able to settle the case, they shall prepare terms of settlement and
file to the court to be adopted as consent judgment.

Where there is no commercial court in the region of the parties, they may file
the action in the nearest commercial court notwithstanding the provisions of
Order 3.