Civil Procedure-Class Notes-TAT

CIVIL PROCEDURE CLASS NOTES
GHANA SCHOOL OF LAW

2013/2014
THELMA TAWIAH
Civil Procedure
TABLE OF CONTENTS
STRUCTURE OF COURTS IN GHANA 8

CIVIL JURISDICTION 10
Determination of Jurisdiction 13
CIVIL PROCEDURE 14
Sources of Civil Procedure 15
Objectives of C.I.47 15
COMMENCEMENT OF CIVIL ACTIONS 16
Cause of Action 16
Writ of Summons 18
Statement of Claim 23
Issue of Writ 23
Concurrent Writs 25
Duration of Writ 25
SERVICE OF PROCESS GENERALLY 27
Substituted Service 29
Computation of Time 32
Affidavit of Service 33
Record & Proof of Service 33
Service of Writ 33
Service Out of Jurisdiction 33
Method of Service 35
Authorities to Effect Service 35
APPEARANCE 37
Method of Filing Appearance 37
Contents of Notice of Appearance 37
Conditional Appearance 38
Setting Aside Writs 40
DEFAULT OF APPEARANCE 42
Claim for liquidated demand 42
Claim for unliquidated demand 42
Claim in Detinue 42
Claim for possession of immovable property 42
Mixed claims 43
Actions not specifically provided for 43
Proof of Service of Writ 44
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Civil Procedure
Moneylenders Actions 44
Mortgage Actions 44
Setting Aside Default Judgments 44
VENUE 46
PLEADINGS 48
Types of Pleadings 48
Essence of Pleading 48
Drafting of Pleadings 49
Pleading of Particulars 49
Matters to be specifically pleaded 51
Formal Requirements of Pleadings 51
Striking Out Pleadings 53
Delivery of Pleadings 53
Close of Pleadings 54
Statement of Claim 54
Specific Claims 55
Structure of SOC 55
Statement of Defence 57
Admissions & Denials 57
General Defences 58
Rule Against Departure 63
Reply 64
Counterclaim 65
Default of Defence 67
Setting Aside Default Judgment 68
SUMMARY JUDGMENT 70
Method of Application 70
Outcome of Application 71
Setting Aside Summary Judgment 72
Summary Judgment on Counterclaim 72
Excluded Actions 73
PARTIES & CAUSES OF ACTION 76
Joinder of Causes of Action 76
Joinder of Parties 77
Misjoinder & Non-joinder 80
Mode of Application 81
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Procedure pursuant to order 81

Effect of Joinder 82
Change of Parties 83
Failure to proceed after death 85
AMENDMENTS 86
Amendment of Writ 87
Amendment of Notice of Appearance 87
Amendment of Pleadings without leave 87
Application to strike out amendment without leave 88
Amendment of pleadings with leave 88
Amendment of Other Docs 90
Stage of Proceedings for Applying for Amendments 90
Amendments not Allowed Generally 90
Failure to amend after order 91
Effect of Amendment 91
How to apply for leave 92
Clerical Errors 92
Method of Amending 92
WITHDRAWAL & DISCONTINUANCE 94
Discontinuance without leave 94
Discontinuance with leave 94
Withdrawal by consent 95
APPLICATIONS 96
Motions 96
Purpose of Interlocutory Applications 96
Features of Interlocutory Applications 97
Types of Motions 97
Evidence in Interlocutory Proceedings 99
AFFIDAVITS 101
Types of Affidavits 101
Uses of Affidavits 101
Persons Authorised to Take Affidavits 101
Formal requirements of an Affidavit 102
Joint Deponents 103
Illiterate or Blind Deponents 103
Contents of an Affidavit 103
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Scandalous & Irrelevant Matters in Affidavits 103

Alteration in Affidavits 104
Filing of Affidavits 104
Documents Exhibited with Affidavits 104
Affidavit taken in other countries 104
PRE-TRIAL PROTOCOLS 107
Discovery & Inspection 107
Mutual Discovery 108
Discovery by Court Order 108
Inspection of Documents 108
Production of Documents 109
Failure to comply with order for discovery 109
Exceptions to Automatic Delivery 110
Interrogatories 110
Failure to comply with order for interrogatories 111
Admissions 111
Effect of Request to Admit/Admission 112
Application for Directions 112
Contents of the Application 113
TRIALS 117
Place & Mode of Trial 117
Setting Action Down for Trial 117
Proceedings at Trial 118
Failure to attend 118
Order of Speeches 119
Locus in Quo 119
Death of a Party Before Judgment 120
Duties of the Court Clerk 120
Judgment 121
Proceedings after Delay 121
Evidence at Trial 122
ENFORCEMENT OF JUDGMENTS 124
Writs of execution 124
Writ of fieri facias (writ of fifa) 126
Stay of Execution 127
Writ of Sequestration 127
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Appointment of Receiver 128

Writ of Possession 128
Writ of Delivery 128
Garnishee Proceedings 129
Interpleader Proceedings 130
Charging Orders & Stop Orders 132
Committal for Contempt 133
Judgment against the State 133
Enforcement of Foreign Judgments 134
Enforcing Foreign Maintenance Award 136
APPLICATION FOR REVIEW 138
Grounds for Review 138
Time for Making Application 138
APPEALS 139
Time for Appeal 141
DC – HC 141
CC – CA 141
HC – CA 141
CA – SC 142
Legal regime 142
Commencement of Appeal 142
Who can appeal? 142
Types of Appeals 143
Process for Compiling Record of Appeal 144
Grounds of Appeal 144
General principles 144
Fresh Evidence on Appeal 145
Orders on Appeal 145
PROBATE & ADMINISTRATION 145
Jurisdiction 146
Interim Orders/Preservation of Property 146
Intermeddling with Property 146
Neglect to Take Probate 146
Testamentary Papers 147
Notice to Executors to Prove the Will or Renounce Probate 147
Application for Grant of Probate or LA 147
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Notice of Grant 148

Caveat 148
Order of Priority 149
Proof of Will in Common Form 150
Proof of Will in Solemn Form 150
Action to Declare a Will Invalid 151
Probate Action 151
Commencement of Probate Action 151
Intervention 151
Entry of Appearance 152
Default of Appearance 152
Special Rules of Pleadings 152
Counterclaim 153
Default of Pleadings 153
Discontinuance of Probate Action 153
Administration Action 153
Parties to Administration Action 154
Limited & Special Grants 154
Lost, Damaged or Unobtainable Wills 154
Grant to Persons with POA 154
Grant to Minors 155
Disability Grants 155
Incapacity after Grant 156
Grant to Prisoners 156
Grants Ltd by Terms of Will 156
Absentee Grant 156
Grant for the Preservation of the Estate 156
Administration Pendente Lite 157
Administration De-bonis Non 157
Second Grant 157
ELECTION PETITIONS 157
Parliamentary Elections Disputes 158
Contents of the Petition 158
Reliefs to be Granted by the Court 159
Presidential Elections Disputes 159
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October 9, 2013
STRUCTURE OF COURTS IN GHANA1
1. Supreme Court
It has original jurisdiction 2 and exclusive jurisdiction in respect of interpretation and enforcement of
the constitution as well as to determine whether an act of parliament is inconsistent with the
constitution.
It’s the final appellate court in the country. It has exclusive appellate jurisdiction iro matters relating to
the conviction of a person for high treason 3. It also has exclusive jurisdiction to hear appeals from the
National House of Chiefs.
It has supervisory jurisdiction over all courts in the country.

Superior
2. Court of Appeal Courts
It has no original jurisdiction. Thus, it exercises only appellate jurisdiction 4. It serves as an appellate
court for the HC, RT and the CC. Civil appeals from the CC go to the CA directly because both HC
and CC are regulated by C.I. 47 so same rules apply.
3. H igh Court (& Regional Tribunals )
Divisions include:
a. Specialised court
b. Fast track
c. Commercial court
d. Land court
e. Human rights court
f. Financial and economic crimes court
g. Labour court
h. Probate and estate
i. Tax court
It exercises original jurisdiction in all matters civil and criminal.
It’s also an appellate court because it hears appeals from the DC (both civil and criminal matters) and
CC in respect of criminal matters only.
It has supervisory jurisdiction over all lower courts in the country.
1
Chieftaincy matters cannot be commenced in any of the courts but the SC has appellate jurisdiction.
2
A case can be commenced in a court with original jurisdiction for certain matters.
3
Subversion of the constitution.
4
Appeals from lower courts are heard in courts with appellate jurisdiction.
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It has exclusive jurisdiction to enforce fundamental human rights guaranteed under the constitution.
Regional Tribunals have the same status as the HC but its jurisdiction is founded on offences against
the state and public interest. It normally sits as a panel of 3 with a chairman who is qualified to be an
HC judge and two lay people.
Superior Courts
- Judges of the superior courts are referred to as Justices and addressed as My Lord and Your Ladyship.
- The SC has supervisory jurisdiction 5 over all courts in the country.
- The HC has supervisory jurisdiction over all the lower courts and quasi-judicial bodies. This is done by
the use of prohibitory writs 6.
- Superior courts have power to commit for contempt
4. Circuit Court
It has jurisdiction in civil and criminal cases.
In civil actions arising out of contract and tort, it has jurisdiction for all liquidated claims not exceeding
GHC10,000.
It has jurisdiction in landlord/tenant matters, ownership of land, probate and LA where the value of
the estate does not exceed GHC10,000., custody of children.
It has original jurisdiction in all criminal matters other than treason and offences punishable by death 7.
Appeals from the CC on civil cases are heard by CA and on criminal cases are heard by HC.
Lower
5. District Court Courts
a. Family tribunal
b. Motor Court
c. Juvenile court
d. Sanitation court
It has civil jurisdiction in personal actions arising out of tort and contract for recovery of liquidated
sums not exceeding GHC5,000.
In criminal matters, it has jurisdiction to try summarily offences punishable by a fine not exceeding 500
penalty units or imprisonment for a term not exceeding 2 years or both.
5
Ensure the supervised bodies conduct their affairs with regard to due process, natural justice.
6
Orders for mandamus, certiorari, quo warranto, etc.
7
Indictable offences
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We don’t have Magistrate Courts; the judge in a DC is described as a magistrate
Lower Courts
- Jurisdiction of lower courts is determined by the Courts Act.

- The DC and CC are both courts of original jurisdiction.
- CC judges are referred to as Your Honour.
- DC judges are referred to as Your Worship.
CIVIL JURISDICTION 8
A court which has jurisdiction to hear cases between private parties.
Badu v Boakye [1975] 1 GLR 283

Akotoagyan case. Man assaulted woman resulting in her hospitalisation but man wasn’t prosecuted. In a civil action for
damages for the assault and battery, it was held that where a tort is also a felony and harm is caused, a right of redress in a
civil action cannot be maintained until the crime has been prosecuted.
Anarfi v Arthur [2001-2002] 1 GLR 364 person charged and being prosecuted for stealing was sued in a
civil action on the same facts. On an application for stay of proceedings on the ground that a criminal action
was pending, held: “…victims of an action, which constitutes both a crime and also ground an action of a
civil nature must not have any fetter on their hands as to the initiation of a civil action. Any attempt to link
the institution of a civil claim on the success or otherwise of a criminal action would be an attempt to
whittle down the fundamental rights of the individual as has been enshrined in our Constitution, 1992.
Besides, it does happen that, an acquittal on a criminal charge cannot absolve one from civil liability. What
this means is that, even though a victim may have had the accused in the criminal case acquitted and
discharged by the court, the victim can successfully mount a civil action against the same person and
succeed. Badu v Boakye overruled.
Each court has its own rules which regulate how it must function 9.
• SC is regulated by C.I. 16
• CA is regulated by C.I. 19
• HC and CC are regulated by C.I. 47
• DC is regulated by C.I. 59
8
A case between private parties and does not require prosecution by the police or state.
9
Art 157(2) provides that the rules of court committee shall make rules for regulating practice and procedure in all the courts in Ghana
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CIVIL PROCEEDINGS
Promote actions involving or brought against individuals, the state, and corporate bodies without the
involvement of police prosecution or prosecution by the State i.e. AG’s office.
CI 47, Or. 82 r 3 defines an action as civil proceedings commenced by writ or any other manner as may be
prescribed by the rules or any other enactment.
By law, all court proceedings are held in public:

• 1992 Constitution, Article 126(3)
Except as otherwise provided in this Constitution or as may otherwise be ordered by a court in the
interest of public morality, public safety or public order, the proceedings of every court shall be held in
public.
• Courts Act (Act 459), s102

Except ordered by the court in the interest of public morality, public safety or public order, the
proceedings of every court or tribunal shall be held in public.
• CI 47, Or. 1 r 2
All court proceedings including announcement of decisions shall be held in public unless ordered by
the court in the interest of public morality, safety or public order. Where the court orders that any
proceedings shall not be heard in public, it shall specify the reason in the Record Book and that
proceeding shall be held by the Judge in the presence of only the parties, their lawyers and officers of
the court.
Exceptions to Public hearings
• CI 47, Or. 50 r 3 provides exceptions where the court may sit in chambers
o Application in relation to wardship or adoption of an infant
o Application in relation to a person who suffers or appears to suffer from mental illness
o Where a secret process, discovery or invention is in issue
o Where it’s in the interest of the administration of justice or for reasons of national security
However, if the court decides to commit a person whose application is heard in camera, the name of
the person, the nature of the contempt, and the length of period of committal shall be stated in open
court.
• Matrimonial Causes Act, 1971 (Act 367), s39

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.
• CI 47, Or.65 r20(1)

Subject to s39 of Act 367, witnesses at the trial of a matrimonial cause shall be examined orally and in
open court subject to orders of the court…
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Or.82 r 1 provides that where there’s any matter of procedure which is not provided for by CI 47, the
courts may resort to the practice in force in any common law country.
Or.81 is the effect of non-compliance with the rules. It stipulates that non-compliance does not render
proceedings void and can be cured. The court may set aside the proceedings in which the failure occurred,
any step taken in the proceedings or any documents, judgment or order therein either wholly or in part.
The court may allow amendments to be made and may make such orders which it considers just.
Where there is an irregularity, a party may apply by motion to set aside for irregularity.
The application will only be allowed when it’s made within a reasonable time and the party applying has not taken any
fresh step after knowledge of the irregularity.
Three exceptions where non-compliance cannot be cured:
1. If the default infringes on the rules of natural justice.

2. If the non-compliance goes to jurisdiction.
3. If non-compliance goes contrary to a statute other than the rules of court
Rep v High Court, Accra ex p Allgate Company Ltd (Amal Bank interested party) [2007-2008] SCGLR
1041 defendant-applicant applied for an order of certiorari to quash the ruling of the HC granting an
application for summary judgment ifo the plaintiff on the ground of non-compliance with the provisions
of Or.14 r2(3) of CI 47 which provides that a defendant must be served with inter alia notice of an
application for summary judgment not less than 4 clear days before the day named in the notice for hearing
the application. Held, when there has been non-compliance with any of the rules of CI 47, such non-
compliance is to be regarded as an irregularity that does not result in a nullity, unless the non-compliance
is also a breach of the constitution or of a statute other than the rules of court, or the rules of natural justice,
or otherwise goes to jurisdiction. Short service was merely an irregularity and not one to render the
proceeding a nullity.
Rep v High Court Koforidua ex p Eastern Regional Devt Corporation [2003-2004] SCGLR 21; HC judge
delivered judgment ifo plaintiffs after more than 6 weeks in breach of Or. 63 r2A(1)-(7) of LN 140A as
amended [replicated in CI47, Or. 41 r2]. Defendant-applicants applied to the SC for certiorari to quash the
decision. Application dismissed on grounds that rules not intended to cause hardship especially where
parties have no control over judge’s action as in this case. Per Akuffo JSC, civil procedure has 3 basic
characteristics which are to facilitate the overall objective of the judiciary which is to assure access to justice
for all:
a. ”Complementary – a vehicle for the actualisation of substantive law which must not be applied in a hard and fast
manner as to cause injustice
b. Protective – to promote order, regularity, predictability and transparency for the assurance of due process
c. Remedial/practical – to serve the purpose of facilitating sound management of litigation and process efficiency
…Consequently in the application of any procedural rule, 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”.
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Oyston v Blaker [1996] 2 All ER 106 at 116 where an application is found to be based on an irregularity,
the judge has wide discretion to set aside the application. In exercising the discretion, the judge must
consider the following:
The question of prejudice to any of the parties
the gravity of the irregularity
the staleness of the claim
the strength of the case
the conduct of the parties and their advisers
any question of abuse of process
any delay and the reasons for it
Re Pritchard (decd) [1963] 1 All ER 873, CA – plaintiffs commenced action by originating summons in a
district registry instead of the central office as required by the rules. Defendants however did not object to
the procedure. The district registrar subsequently questioned the validity of the summons but by that date,
the period within which proceedings under the Act could be commenced had expired. Held: there had not
been any commencement of the proceedings because the procedure is in mandatory terms. Thus the
summons was a nullity and not a mere irregularity but a fundamental defect which defendants could not
waive.
Per Upjohn L.J. there are 3 classes of proceedings which are nullities:
1. proceedings which ought to have been served but have never come to the notice of the defendant
(but this does not include cases of substituted service or service by filing in default or cases where
service has properly been dispensed with);
2. proceedings which have never started at all owing to some fundamental defect in issuing the
proceedings, and
3. proceedings which appear to be duly issued but fail to comply with a statutory requirement
October 14, 2013
Determination of Jurisdiction
Generally parties cannot agree to confer jurisdiction on the court. Jurisdiction is only conferred by statute.
Quist v Kwantreng [1961] 2 GLR 605 land cause above the maximum value to be heard by a local court
was decided by the local court at a time when its jurisdiction had been ousted by new legislation. Although
defendant objected to jurisdiction and even applied for prohibition and was refused, the objections were
not upheld. In appeal against the proceedings at the HC it was found that the local court did not have
jurisdiction and there was no evidence that the parties had agreed to confer jurisdiction; the whole
proceeding was consequently declared null and void and set aside. Per Ollenu J. (as he then was) “parties
cannot by consent or by acquiescence confer jurisdiction on a court where it has none otherwise”.
Rep v HC Koforidua ex p Bediako II [1998-1999] SCGLR 91 application for certiorari to quash the decision
of the HC which granted certiorari for the quashing of the decision of a panel confirming destoolment of
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the interested party for want of jurisdiction. Argument that parties submitted to his jurisdiction by paying
arbitration fee was rejected when the SC affirmed the decision in Quist v Kwantreng that parties cannot
consent to confer jurisdiction on a court where it has none.
There is however an exception to the general position in Act 459, s47(3) 10 as amended which empowers
DC to hear a claim above GHC5,000 provided the parties have expressly agreed that the court should hear
the matter. The agreement by the parties must be recorded in the record of disputes so that no party may
raise an objection as to jurisdiction at the appellate court.
Generally, jurisdiction is determined by what is awarded by the court on the basis of the claim filed at the
court and not what is recovered after judgment. Hence if for example a plaintiff files for recovery of
GHC4,500 and costs of GHC2,000 the matter can be heard in the DC since the amount for the claim is
GHC4,500, lower than the maximum threshold for liquidated damages in DC11.
Jurisdiction is also based on geographical area. The country is divided into districts and no district magistrate
can sit in another court unless on the orders of the CJ.
Rep v District Court Grade II Korle-Gonno ex P Amponsah [1992-1993] 3 GBR 196, SC the district
magistrate, who is the coroner for the district by law, ordered an inquest into the death of a man admitted
at Korle-Bu although the cause of death was known. It was found that he had jurisdiction to order an
inquest into certain deaths but only in accordance with the scenarios in the Coroner’s Act. The order for
certiorari was granted to quash his inquest by the HC which was overturned on appeal to the CA on grounds
that the HC had usurped the powers of the coroner by hearing evidence about the post-mortems done on
the body. A further appeal to the SC was allowed.
***
CIVIL PROCEDURE
Civil procedure is a body of rules that are formulated to regulate the conduct of civil action in our courts.
It provides the method whereby such civil actions are commenced, steps that ought to be taken in the
action, applying for reliefs in the action, how trials are conducted, methods of enforcing judgments by
victorious parties, and how to appeal against such judgments.
Types of Rules
There could be general rules of procedure that apply to most civil actions but there are also special rules
governing certain specific types of civil action e.g.
• matrimonial causes
• actions founded on defamation – CI 47, Or. 57
• moneylending and mortgage actions – CI 47, Or. 59
10
Where in any action, cause or matter the amount claimed or the value of any land or property exceeds the value specified in s47(1), the
district court shall notwithstanding that subsection, proceed to hear the case if the parties agree that it should do so.
11
It’s also because it cannot be predicted whether the costs being claimed will be granted
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• maritime action (Or. 62)

• intellectual property right proceedings (Or. 63)
• commercial practice (Or. 58)
Sources of Civil Procedure
1. Rules of Court e.g. CI 47, CI 16, etc.

2. Statutes e.g. Courts Act, 1993 (Act 459) as amended by Act 620
3. The Constitution
4. Decisions of superior courts on procedural matters
5. Practice direction i.e. directions given by the superior courts that affect proceedings in court. It
normally shows or directs how and why or the manner in which a particular rule of court should
be complied with and observed
Objectives of C.I.47
It came into force in 2004. Its objectives are stated in Or.1 r2 12. It’s to
achieve speedy and effective adjudication of cases
avoid delay
avoid unnecessary expense
ensure complete, effective and final determination of disputes
avoid multiplicity of actions
This is reinforced in Or.37 r2 which states that it’s the duty of the courts, lawyers and their clients to avoid
all unnecessary adjournments and delays, and to ensure that causes or matters are disposed of as speedily
as the justice of the case demands.
The effect of Or.37 r3 is that if proceedings are delayed for at least six months, the party who wishes to
proceed must give every other party not less than 28 days’ notice of intention to proceed 13.
12
Rules to be interpreted and applied to achieve speedy and effective justice, avoid delays and unnecessary expense and ensure that as far as
possible all disputes may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters
avoided.
13
If this is not done, any step taken will be a nullity.
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COMMENCEMENT OF CIVIL ACTIONS
1. Determine whether the person has a cause of action 14.
2. Determine whether the cause of action has accrued 15.
3. Determine who the parties to the action are – proper plaintiff and proper defendant.
4. Determine whether the parties have capacity to bring the action. In Akrong v Bulley [1965] GLR 469,
SC plaintiff’s son was killed by a vehicle driven by D1 and owned by D2. She sued them for negligence
in her capacity as personal representative. At the time of the action, she had not been granted LA. The
trial judge however found the case of negligence made and gave judgment for the plaintiff. On appeal,
the judgement was reversed on grounds that the plaintiff lacked capacity at the time of the action and
this was not cured by a later grant of LA. The writ on which the action was founded was void ab initio
and so were the proceedings and judgment founded upon it. Although she could have sued as a
dependent, she did not do so thus the HC had no power to confer that capacity on her in order to rule
in her favour.
Akuffo-Addo v Catheline [1992] – capacity
5. Determine jurisdiction of the court where the writ will be filed i.e. DC, CC, HC, SC.
6. Decide on the venue where the action will be brought 16.
7. Check whether there are statutory requirements to be complied with before the action is commenced
e.g. where the court may have to be notified before the writ is issued.
Cause of Action 17
A party intending to go to court to litigate must have a cause of action 18 and the cause of action must have
accrued. An action in court is aimed at vindicating a legal right and such rights can only arise if certain
material facts exist. E.g. in an action in detinue for the recovery of goods wrongfully detained, the existence
of the ff facts must have occurred:
- The goods were in the possession of the person suing;

- The person to be sued, without any lawful excuse or consent or permission of the owner, took away
the goods;
- The owner has demanded the return of the goods but the person to be sued has refused to return the
goods.
The totality of these material facts will constitute the cause of action and therefore establish a legal claim.
14
A right that can be enforced against a person who is liable
15
E.g. where there is compulsory arbitration or mediation, that they have been done
16
Generally, apart from landed property, you sue where the defendant is based.
17
Ampratwum Manufacturing Company v DIC [2009] SCGLR 692 Diplock LJ’s definition of cause of action in Letang v Cooper quoted with
approval - a factual situation the existence of which entitles one person to obtain from the court a remedy against another person
18
Ampratwum Case
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Cause of action is the existence of a factual situation that enables a person to apply to the courts for a
remedy. It includes the wrongful acts of a defendant that give cause to consequential damages. When facts
establish that a right or obligation or facts establishing infraction or trespass on that right exists side by side,
a cause of action is said to accrue. In contract, the performance of an agreement by a party and the non-
performance of the other gives rise to cause of action.
Cause of action is determined from the writ and statement of claim. It must exist at the date the writ was
issued. Time begins to run the moment cause of action arises.
October 16, 2013
COMMENCEMENT OF PROCEEDINGS
CI 47, Order 2
Where an action is commenced by a writ, the parties are plaintiff and defendant. The party which
commences the action is the plaintiff and the opposing party is the defendant – Or.2 r1(1).
Where an action is commenced by a petition, the parties are petitioner and respondent.
Where the action is commenced by a motion, the parties are applicant and respondent.
Where the action is an appeal, the parties are appellant and respondent.
Per CI 47 Or.4 r1, any person can commence an action in his or her own right or by a lawyer. A person
with disability may act by a next friend 19 or guardian ad litem 20 who shall act by a lawyer. A corporate entity
needs a lawyer before it can commence an action.
The rules provide that civil actions will have to be commenced by the issuance of a writ of summons unless
a statute provides otherwise – Or.2 r2. E.g. the Peoples’ Representation Act requires that election disputes
should be commenced by petition, matrimonial actions are initiated by petitions. Some actions are
commenced by originating motion on notice.
CHRAJ v EP Church [2001-2002] 1 GLR 356

Facts
1 CHRAJ made findings against the church and ordered it to pay additional severance award to its
employees who had lodged a complaint with CHRAJ. After the order was made, the church did
not comply for a long time.
2 CHRAJ filed an originating motion at the HC for an order to compel the EP Church to implement
its decision.
3 R raised a preliminary objection on the grounds that CHRAJ had no cause of action against R and
also since no method was prescribed for CHRAJ iro instituting actions and since it was not seeking
19
Where the person with the disability is the plaintiff
20
Where the person with the disability is the defendant
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an order for a prerogative writ, it should not have commenced the action by originating motion on
notice.
Held, dismissing preliminary objection:
1 The CHRAJ Act and its Regulations provide that after a period of time when its decision has not
been complied with, CHRAJ may bring an action before any court in Ghana and may seek any
remedy which may be available from that court. Thus it was clothed with capacity to bring the
current action.
2 The statutes do not spell out the form in which the commission’s action in court should take. It
may be commenced by a writ, or an originating motion on notice.
Writ of Summons
A writ is a judicial document or form issued out of the registry of a court at the instance of a plaintiff for
the purpose of giving a defendant notice of a claim made against him/her and commanding the defendant
to enter appearance to admit or deny the claim within 8 days 21.
Where the writ is issued against one person, 3 copies need to be made – court’s copy, defendant’s copy and plaintiff’s copy.
Contents of the writ Or.2 r3:

a. The writ must be endorsed with the name of the court.
b. The names and residential and occupational addresses of the parties must be indicated – Agbesi &
Ors v Ghana Ports & Harbours Authority [2007-2008] SCGLR 469
c. If the plaintiff is acting through a lawyer, the lawyer’s business address must also be endorsed on
the writ.
d. The writ must be endorsed with the nature of the claim, relief or remedy sought by the plaintiff
against the defendant.
e. Every writ must be endorsed with a substantive relief - Rep v HC Tema Ex P Owners of MV
Essco Spirit [2003-2004] SCGLR 689
f. The writ must be dated and signed by the plaintiff or the plaintiff’s lawyer.
g. Or.2 r3(3) requires that if a plaintiff is making a liquidated claim only, the writ shall be endorsed
with a statement that further proceedings will be stayed if within the time limited for appearance
the defendant pays the amount claimed either to the plaintiff or his lawyer or into court if the
plaintiff is resident outside the country.
h. The rules provide that where the plaintiff is suing in a special capacity, a statement of the capacity
must be endorsed on the writ. In the same vein, where a defendant is sued in a representative
capacity, a statement of that capacity is also required – Or.2 r4; Akrong v Bulley [1965] GLR 469;
Ghana Muslim Representative Council v Salifu [1975] 2 GLR 246, CA; Gbogbolulu v Hodo [1941]
7 WACA 164; Rep v HC Accra Ex Parte Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR
398.
NB:
21
A writ is not issued in a DC, an application is made to the registrar to issue the writ on behalf of the plaintiff.
Page 18 of 159
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Or.57 r2 – a writ in an action for libel shall be indorsed with a statement setting out particulars of the
publication iro which the action is brought to enable them to be IDed.
Or.74 r4(1) – where P’s claim is for liquidated demand only and D pays the amount claimed within the time
ltd for appearance, P shall be entitled to cost of the action without an order of the court.
NAMES OF PARTIES
Agbesi & Ors v Ghana Ports & Harbours Authority [2007-2008] SCGLR 469
Facts
The writ was endorsed with the names of the 5 plaintiffs and others but the names, identities and exact
number of persons constituting the ‘others’ was not disclosed on P’s writ, SOC or pleadings. P later filed
an addendum to the writ stating that a full and comprehensive list of all the plaintiffs would be supplied to
the court subsequently. P filed a list of 3839 on a piece of paper with no description and there was no
indication as to how the list came to be filed i.e. whether on an order of the court upon application. The
filing was however done after the statement of defence and reply had been filed. 356 persons also applied
to the HC to join as plaintiffs and their application was granted with a directive that the title of the suit
should include the names of the applicants as plaintiffs and each applicant was to be served with copies of
the processes filed thus far. They however did not take any steps to implement the order by the court to
join them as parties. The HC granted Ps their reliefs but on appeal, the CA, by majority decision, held that
the ‘others’ were not properly joined hence the reliefs only applied to P1 who led evidence of his
employment and terms of his contract.
Held inter alia;

The title of a writ of summons must have the name(s) of ALL the plaintiffs or as many as the writ can
contain on its face or on a piece of paper attached to the writ, if the writ cannot contain all the names. It is
after this that the heading of subsequent processes can be headed ‘the plaintiffs and others’.
• It’s vital that the identity and number of parties in any suit be known at any given stage in the
proceedings to allow parties to know who their adversaries are so that they could raise issues of
estoppel and mount real defences against each of them should it become necessary so to do at any
stage. It would also make service of court processes easier.
• An amendment of a writ as to parties must correspond to the names and number of the parties –
Konadu v Ntoah affirmed.
CAUSE OF ACTION
Rep v HC Tema ex p Owners of MV Essco Spirit (Darya Shipping SA Interested Party) [2003-2004] 2
SCGLR 689
Facts
By a charterparty agreement between the parties, it was agreed that all disputes arising out of the contract
which could not be amicably resolved shall be referred to arbitration in London. While the arbitration was
pending, P filed a writ + SOC in the HC claiming an order directed at D to furnish sufficient security for
such award as may be made ifo P by the arbitration, and costs. On the same day the writ was filed, P brought
an application in the HC for an interlocutory order for the issue of a warrant for the arrest of MV Essco
Page 19 of 159
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Spirit until the security is furnished by D. The application was granted immediately and D’s vessel was
arrested. D brought the current action to the SC praying for an order of certiorari to quash the HC’s interim
order on grounds of want of jurisdiction and error of law on the face of the record.
Issue
Whether or not a writ of summons improperly indorsed according to the relevant rules of the HC could
originate an action and thereby invoke the jurisdiction of the HC?
Held inter alia

An endorsement must contain a claim for substantive not interlocutory relief. Asking that the ship be
arrested is not a substantive claim. The relief indorsed on P’s writ does not meet the test of a substantive
claim. The HC thus became functus officio once it made the order – there was no cause of action to be
tried by the court; no dispute, no controversy, nothing. The writ was not indorsed in accordance with the
mandatory provisions of the HC Rules and was therefore a nullity upon which no valid orders could be
based. Application for certiorari allowed and order of HC quashed.
Ghana Muslim Representative Council v Salifu [1975] 2 GLR 246, CA; Ds applied for the action to be
struck out on inter alia grounds that the writ and SOC disclosed no reasonable cause of action.
Held; 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.
CAPACITY
Gbogbolulu v Hodo [1941] 7 WACA 164

The suit was instituted in the Kpandu Magistrate Court for an order for damages for trespass with the title
of the writ as
Divisional Chief Gbogobolulu of Vakpo Afeyi, Plaintiff
and
Chief Hodo of Anfoega Akukome, Defendant
The writ didn’t say so but it was clear from the proceeding that the matter was being litigated in a
representative capacity. Judgment was given ifo P. On appeal, it was found that because the representative
capacities were not endorsed on the writ, the judgment of the lower court could not be upheld. P appealed
to WACA.
Held allowing the appeal: 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, as in this case, the parties are
unrepresented by counsel and unversed in the procedure of the Courts. As soon as any question arose as
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to the capacities of the respective parties it was 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 any hardship to
either party. Order for title of suit to be amended made. D has been unable to show other grounds why the
appeal should succeed. Thus appeal allowed. Judgment of magistrate restored.
Ghana Muslim Representative Council & Ors v Salifu & Ors [1975] 2 GLR 246, CA
P2s and Ds were all members of P1. P2s were in accordance with the rules and constitution of the
association elected to constitute the national executive committee of the association which was formally
inaugurated in August 1973. In July 1974 D1 publicly declared that the national executive committee had
been dissolved and a new executive committee with D2 – D12 as its officers had been constituted. Ps
instituted an action against Ds for inter alia a declaration that they were the rightful officers of the G.M.R.C.
and the only persons entitled to use the name “G.M.R.C.". Although Ps were suing in their own names and
in a representative capacity to enforce the rights of members of the association they failed to endorse such
capacity in their writ and SOC. Ds did not file a defence but instead filed affidavits resisting the application
on inter alia grounds that plaintiffs failed to endorse their representative capacity in their writ and SOC
hence the pleadings offended the provisions of L.N. 140A, Order 3, r. 4. The trial judge dismissed the
application. Further appeal to the CA.
Held inter alia allowing the appeal; in a representative action, it was necessary, both in the writ and in
all subsequent pleadings, to state clearly that the parties were suing, or were being sued in their
representative capacity, on behalf of the members of a defined class. The representative capacity should
also be stated in the title of both the writ and the statement of claim and not merely in the endorsement of
the writ on the body of the pleading. However, where it appeared in the trial in a representative action that
the plaintiff had failed to state the representative capacity of the parties, as in the instant case, the court
would give leave even at this late stage to amend either the writ or subsequent pleadings by adding a
statement that the plaintiff was suing on behalf of himself and all others of the defined class and the capacity
in which the plaintiffs sued and the defendants were sued.
Rep v HC Accra Ex P Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR 398

Facts
IP’s deceased father leased the land in dispute to A for 15 years. On the expiration of the lease, A asked for
and was given a year’s extension by IP and his family to enable him relocate his mechanical workshop. At
the end of the extension, he continued to occupy the land for another 5 years without paying rent. IP, in
his capacity as beneficiary and customary successor of his deceased father’s estate, sued A for recovery of
the land. When the case was called, A accepted liability and prayed for a year’s grace period to give up
vacant possession and same was granted. A again defaulted and when IP, as judgment creditor, took steps
towards execution by a formal decree, A brought motion praying for stay of execution, an order setting
aside the formal decree and an order setting aside the judgment itself. A claimed that the deceased father
died testate and the will had been read although probate had not been taken and that IP was an executor
under the will but had failed to disclose this to the court. Consequently, by suing as beneficiary and
customary successor, IP lacked capacity to bring the action and this rendered the writ and subsequent
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proceedings thereon a nullity. A accused IP of ‘fraudulent misrepresentation to the court’ iro his capacity
and gave the particulars of fraud as
- Failing to disclose that his father died testate
- Holding himself out as customary successor in the title of the suit and SOC
The application was dismissed by the trial tribunal. A appealed to the HC but the HC affirmed the decision
of the community tribunal in part iro the order for recovery of possession and perpetual injunction and
ordered A to vacate the land. A further appeal to the CA was also dismissed.
Subsequently, A sued in the HC seeking for an order to set aside the tribunal’s judgment and the HC’s
judgment and all other proceedings consequential to the judgments on grounds of fraud. IP entered
conditional appearance to this new writ and subsequently moved the court to have it struck out for being
vexatious, abuse of the process, scandalous and not disclosing any reasonable cause of action. It also urged
that A was estopped per rem judicatam from bringing the action. The HC allowed the application and
dismissed the writ stating that it was issued on ground of fraud and was an abuse of the process. A filed an
appeal against this judgment and while the appeal was pending in the CA, initiated the present action seeking
an order of certiorari to quash the decision of the HC for lack of jurisdiction and/or error of law on the
face of the record. Appellant contended that, when a judgment is impeached for fraud, its legitimacy is put
in issue, and cannot therefore operate as an estoppel per rem judicatam.
Held inter alia; by submitting to the judgment of the tribunal, A must be taken to have admitted that IP
had the representative capacity in which he had sued and cannot therefore come back to the court to set
aside for lack of capacity. He is thus estopped by his submission to judgment from subsequently denying
the capacity of the interested party to sue.
Per curiam; the requirement that a party endorses on the writ the capacity in which he sues is to ensure
that a person suing in a representative capacity is actually vested with that capacity and therefore has the
legal right to sue. This also enables D, if he is so minded, to challenge the capacity P claims he has which
challenge may be taken as a preliminary issue. This is because if a party brings an action in a capacity he
doesn’t have, the writ is a nullity and so are the proceedings and judgment founded on it. Capacity is not
concerned with merits thus a D with the unimpeachable defence of lack of capacity in his opponent is
entitled to insist upon his rights – Akrong v Bulley.
Capacity is a question of fact and if challenged, the party must prove same to avoid the suit being dismissed
since it’s analogous to taking an action against a non-existent defendant.
Address for Service

Or.2 r5
Where the plaintiff sues by a lawyer, the address for service of the plaintiff will be the business address of
the plaintiff or that of his lawyer.
Where the plaintiff sues in person, the plaintiff’s address in the country as endorsed on the writ will be the
address for service.
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Where a defendant’s address is unknown after diligent search, the plaintiff will endorse on the writ that
‘plaintiff shall direct service’ i.e. the plaintiff will go around with the bailiff and point out the defendant who
shall then be served. It is better to direct service than to put no address which renders the writ defective.
NB: where there is no address for service on the writ, the writ is defective and defendant may apply
to have the writ set aside.
Kombat & Ors v Bediako & Ors Ex P Kombat [1971] 1 GLR 196, HC
Facts
On the same day as the applicants issued a writ of summons + SOC they applied, by an ex parte motion,
for substituted service of the writ and SOC by prepaid registered post upon the D3. The address of D3 was
endorsed on the writ but the addresses of D1 and D2 were not indicated. D1 and D2 were vehicle owners
who had insured their vehicles, which had been involved in an accident on which the instant suit was
founded, with D3. On the face of the affidavit, however, it was not clear whether D3 knew the addresses
of D1 and D2. The court raised the question of whether a 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 per Taylor J.; since the third 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 although generally applications for
substituted service are made ex parte. Application refused
Statement of Claim
Per Or.2 r6 every writ must be filed together with a statement of claim. A writ without a SOC is
incompetent.
Issue of Writ
The writ is issued when it is filed and accepted by the registrar of the court and sealed upon the payment
of the appropriate filing fees – Or.2 r7.
Or.2 r7(5) provides that no writ, notice is which is to be served out of the jurisdiction, shall be issued
without leave of the courts as provided in Or. 8. Thus, where the defendant is based outside Ghana, the
plaintiff needs permission from the court in order to issue a writ and when the leave is granted and it’s been
issued, an application for leave must be applied for in order to serve it outside the jurisdiction – Friesland
Frico Domos alias Friesland Foods BV v Dachel Co Ltd [2012] 1 SCGLR 41
Facts
1 DCL was agent to a company which was taken over by FFD. By agreement, either party could
terminate the relationship by giving 90 days’ notice. FFD terminated the agreement and offered
one year compensation but DCL, dissatisfied because it meant a loss of the benefit of marketing
initiatives which stood unpaid, issued a writ claiming compensation for damages occasioned by the
termination.
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2 The address for FFD indorsed on the writ was one in Holland. However, DCL did not seek leave
to issue the writ nor serve a notice of the writ outside the jurisdiction.
3 D entered appearance and filed a SOD and counterclaim.
4 Judgment was given ifo P and general + special damages were awarded. Appeal to the CA was
dismissed in its entirety.
5 D appealed to the SC on grounds inter alia that the CA erred by holding that non-compliance with
the HC Rules were a mere irregularity curable by Or.70 of LN140
Held inter alia:

The words in Order 70 r.1 of LN140 [same as Or.81, CI 47] should be given their ordinary meaning in order
to serve the ends of justice. In that respect non-compliance with any of the rules does not render the
proceedings automatically void. A party who becomes aware of the non-compliance is at liberty to bring an
application to the Court and have the proceedings set aside. Since counsel participated in the action, the
objection to non-compliance with service of the writ at this time is trifle and highly unreasonable. There is
also no evidence of disadvantage occasioned by the irregularity, or erosion of natural justice. Accordingly
we do not think it is fit and just to set aside these whole proceedings for a mere irregularity.
According to Or.2, r7(5), a writ of summons cannot be served outside the jurisdiction. Only a notice of
the writ of summons shall be served on someone outside the jurisdiction. To serve such notice, leave of
court is required.
Lokko v Lokko [1989-1990] 1 GLR 96, HC per Lutterodt J (as she then was)
Facts
P issued a writ against Ds and the address of D1 endorsed on the writ was a NY address while D2 had a
local address. D was out of the jurisdiction at the time the writ was issued. P applied for leave to serve the
notice on D. Before the application could be dealt with, D1 by her solicitors entered appearance indicating
that the address for service was the solicitor’s address. Issues were set down for trial. the instant application
filed to set the writ aside on the ground that it was issued without leave of the court even though D was
resident outside the jurisdiction. According to D, non-compliance was fundamental and resulted in a void
process. P however argued that it was a mere irregularity which could be cured.
Issue
Whether failure to seek leave before issuing the writ of summons was a mere breach or fundamental breach
which renders the process a nullity?
Held
The grant of leave is a condition precedent to the issue of a writ against a defendant who is resident outside
the jurisdiction. The use of the word “shall” in the HC rules makes it a mandatory precondition. D could
have entered conditional appearance and moved the court to have the writ set aside. Entry of unconditional
appearance also didn’t preclude them from raising this point of law at a later stage in the proceeding. It is
never “too late” for counsel to raise this point. It can also not be said that D has waived the irregularity
because the non-compliance is so fundamental that it makes the writ totally defective and nothing can be
founded on the writ. Application granted.
Page 24 of 159
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NB: Where your client is the defendant who is based outside the jurisdiction, conduct a search at the registry to ascertain
whether leave of the court was sought in order to issue the writ. If leave was not sought or where leave was sought but the writ
was served and not a notice of the writ, D should move the court to set aside the writ.
Concurrent Writs
One or more concurrent writs may be issued at the time when the original writ is issued or at a later time
after the original writ is issued and before the original writ ceases to be valid – Or.2 r8(1).
A writ which is intended to be served within the jurisdiction may be issued as a concurrent writ with a writ,
notice of which is to be served outside the jurisdiction and vice versa – Or.2 r8(2).
A concurrent writ is a true copy of the original with such difference, if any, as are necessary having regard
for the purpose for which it is issued – Or.2 r8(3).
It shall be sealed and marked “concurrent” with an official stamp, and with the date on which it is issued –
Or.2 r8(4).
Duration of Writ
A writ of summons, other than a concurrent writ, shall be valid for service in the first instance for 12
months beginning from the date of issue – Or.2 r9(1).
A writ not served within 12 months may be renewed from time to time by an order of the court for periods
not exceeding 12 months – Or.2 r9(2).
An application to renew a writ must be supported by an affidavit showing all the circumstances relied on
including
- the date of issue of the original writ
- if it has been renewed before, the date the last renewal took place
- the reasons why the writ has not been served
Trow v Ind. Coop [1967] 2 QB 899 a writ was issued on September 10, 1965 at 3.05pm. It was not served
until September 10, 1966 at 11.59am. The issue was whether there had been valid service of the writ?
Held: the 12 month period includes the whole day of issue even though the writ was filed late in the day.
thus, it expired on September 9, 1966. Service was thus set aside for being irregular.
WRIT OF SUMMONS
(Order 2 rule 3(1))
WRIT ISSUED FROM ……………………. 20 ………. SUIT NO……..
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IN THE HIGH COURT OF JUSTICE

(FAST TRACK DIVISION) ACCRA – 2014
BETWEEN
ADWOA MANSAH PLAINTIFF

HOUSE NO. 17
ACCRA, NEW TOWN
AND
1. KWAKU BONSAM DEFENDANT

2. AKWADAA NYAME
(Plaintiffs will direct service)
To
AN ACTION having been commenced against you by the issue of this writ by the above named plaintiff.
YOU ARE HEREBY COMMANDED that within EIGHT DAYS after service of this writ on you inclusive of the day of
service you do cause an appearance to be entered for you.
AND TAKE NOTICE that in default of your so doing, judgment may be given in your absence without further notice to you.
Dated this 1st day of January 2010
………………………………
Chief Justice of Ghana
STATEMENT OF CLAIM
The Plaintiff’s claim is for:
i. A declaration that the building constructed by the defendants on the plaintiff’s land is family property.
ii. Recovery of possession of the house in dispute.
iii. An order of injunction restraining the defendants, their servants, agents and workmen from entering the property.
This writ was issued by (name of plaintiff/lawyer)
Whose address for service is ……………………………………
Agent for …………………………………….
Lawyer for the plaintiff (name of lawyer) who resides at ……………………….
………………………………………………………………………………………………………………………………
……
Indorsement to be made within 3 days after service
This Writ was served by me at
On the defendant
On the …………….. day of
Endorsed the …………….. day of

Signed ……………………….
Address ………………………..
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SERVICE OF PROCESS GENERALLY

Or.7
1. Processes are served by bailiffs or private process servers – Or.7 r1.
2. Generally, writs must be served personally on a party unless otherwise provided for by the rules or the
court otherwise directs – Or.7 r2.
3. Personal service, per Or.7 r3 is done as follows:
a. By leaving a duplicate or attested copy of the writ with the person to be served.
b. Where personal service is hindered by violence or threats or other acts of obstruction, it shall be
sufficient to leave the writ as near that person as may be practicable.
4. Where the rules do not require personal service, Or.7 r4 provides that service will be effectively made
by;
a. Leaving a copy of the process at the proper address of the person to be served
b. Sending it by registered post bearing a return address and addressed to the person to be served
c. In such manner as directed by the court.
5. Address for service is the address provided by the person on whom the process is to be served 22. Where
there is no address for service, the proper address of the person shall be
a. The usual or last known place of residence or business of an individual
b. The principal or last known place of business of the firm in Ghana where an individual is suing
or being sued in the name of a firm
c. The registered or principal office of a body corporate
d. In any other case, the business address of any lawyer who is acting for the person in the matter
iro the document is to be served
6. Service on particular persons – Or.7 r5

a. Where a process is to be served on a body corporate, it can be served on the chairman of the
BOD, the president or CEO, or other head of the body e.g. secretary, treasurer or such other
senior officer – Barclays Bank v Ghana Cables on improper service of a body corporate; GCB
v Tabury [1980] process served on watchman because the bank had closed at the time of
service held to be improper; Morkor v Kuma – MD served had no personal liability.
b. Service on a stool or skin must be served on the occupant of a stool or skin or secretary to the
skin or stool, or a clerk or linguist of the stool or skin. Where a stool is vacant, the service will
be on the regent or caretaker of the stool or skin.
c. Service on family under customary law is done on the head of family or any member acting as
caretaker of family property or a principal member of the family.
d. In respect of persons in prison, the person in charge of the prison is served or in the alternative
any warder or any officer of the prison service at the place of the detention.
22
Usually provided in the writ iro P and in the entry of appearance iro D
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e. Service for ministers of states or departmental heads are made on the administrative head of
the ministry or department.
f. For security services, the commanding officer in charge of the person to be served is served
with the process.
g. MPs are to be served through the speaker of parliament or the clerk of parliament.
h. Where a judge is being sued, the process is served on the judicial secretary. A judge cannot be
sued in the performance of his duties.
i. A person under disability may be served through the mother, father, guardian or the person
with whom the person with disability is residing – Or.5 r9.
Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd & Ors [1998-99] SCGLR 1
Facts
1. BBG issued a writ for the sum of GHC24m together with 30% compound interest on the amount
from the date of the writ up to the date of final judgment. The amount was a loan granted to D
and guaranteed by the co-Ds.
2. Notice and memorandum of appearance was purportedly entered on behalf of Ds and the bank
took out summons for final [default] judgment. At the hearing, a lawyer was recorded as having
announced himself as appearing for Ds and he consented to the entry of judgment against Ds. The
HC consequently entered final judgment together with costs on May 25 1989.
3. In January 1994, a different lawyer filed a motion at the HC on behalf of D1, 2, 3, 4, 6 praying for
an order to set aside the final judgment on grounds that none of the Ds were served with the writ
of summons and consequently the court had no jurisdiction to enter judgment against them. In
their affidavit supporting the motion, they deposed that a search at the HC Registry revealed that
D1, 2, 3, 4 were served through one Alice as their secretary but this said Alice was not their secretary
and had no authority to receive service on their behalf.
4. BBG contended that they had issued their writ against Ds and that appearance was entered on their
behalf by a lawyer who had sought and been granted an adjournment and who had consented, on
the adjourned date, for judgment to be entered against D.
On appeal by BBG against unanimous judgment of CA setting aside ruling of the HC which refused to
vacate a summary judgment entered against the defendants, held inter alia:
1. After a writ of summons is issued, the defendant has to be served personally with a copy or notice of
the writ unless the solicitors of the defendant undertake in writing to accept service on behalf of the
defendant. It’s trite law that unless a defendant has been served, the court is not seised with jurisdiction
to proceed against the unserved defendant (in line with the audi alteram partem rule i.e. right to be
heard).
2. Entry of appearance presupposes that the defendant has been served but this is a rebuttable
presumption. If there is credible evidence in support, the defendants are entitled to rebut the
presumption. When a defendant complains that he has not been served with a writ of summons which
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requires his personal service, the court is duty-bound to examine the complaint even if there is proof
of service or entry of appearance on behalf of that defendant.
3. D6 was in jail at the time of the purported service hence his not being served is not in dispute. The
other Ds, who were companies, were to be served, per the rules, by leaving it at or sending it by post
to the registered office of the company. If there is no registered office, service on any director, or if no
director can be traced in Ghana, any member of the company, shall be deemed effectual. Where it can
be proved that any doc was received by the BOD, MD or secretary, such doc shall be deemed to have
been served on the company notwithstanding that service may not have been effected in accordance
with the rules. The court may also direct how service is to be effected on a company. The endorsement
by the bailiff on the writ shows that the writ was served in Accra “on the Ds through their company
secretary, Madam Alice, at their office”. Since the four defendant companies are separate and distinct,
one wonders if the bailiff found Alice at the office of each of the companies. The writ contained no
address of any of the defendants hence which address did the bailiff find Alice? Appeal dismissed.
October 21, 2013
Substituted Service
Or.7 r6
Where a document is to be served personally and it appears to the court that 3 or more attempts have been
made without success to effect personal service, or any attempt at personal service will cause a delay, or for
some imapracticable reasons serving the document personally will be impossible, then the court will order
substituted service.
Application for substituted service shall be made ex parte supported by affidavit stating the facts on
which the application is based.
Modes of Substituted Service
1. Delivering the writ or the court process to an agent of the person to be served or some other person
if there is reasonable ground that through that person the writ shall get to the person named in the
writ.
2. By sending the writ or document by registered post addressed to the person to be served at an address
specified in the affidavit supporting the application.
3. By notice on the court’s notice board at the place where the person resides or any public place in the
region in which the cause or matter is commenced.
4. By posting copies of the writ at the usual or last known place of residence or business of the person to
be served.
5. By advertising in the media within the jurisdiction of the court.
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The court can combine any of these modes of service in its consequential orders for substituted service in
order to make the process fair to the defendant. When it’s done, it means service has been effected. Thus
if the person doesn’t enter appearance within [14] days, judgment in default of appearance may be applied
for.
In State v Asantehene’s Divisional Court B1; Ex P Kusada [1963] 2 GLR 238 Action was brought against
Kusada’s father, Mallam Salow, while he was in exile, by the Kumasi Zongo chief iro declaration of title to
a property. He was represented by his agent and judgment was given ifo the Zongo Chief. Subsequently,
Mallam Sallow was allowed into Ghana but he did not contest the decision of the Asantehene’s Divisional
Court. When he died, Kusada, brought the instant action praying for an order of certiorari to quash the
decision on the ground that the agent had no authority to represent his father and thus the whole proceeding
was a nullity. Held inter alia; the object of the service of a writ is to give notice to the defendant in order to
give him the opportunity to defend his rights. Where personal service is not possible because the defendant
is abroad, service is allowed to be effected on the agent of the defendant who is within the jurisdiction and
who is in regular communication with the defendant and has also been managing the particular matter
involved in the suit. Such an agent becomes the alter ego of the principal and service of process upon him
becomes an effective service upon the principal creating the agency. Personal service is not required in
these circumstances except when a person is to be made criminally responsible. Since the agent who
represented Kusada’s father while he was in exile was the alter ego of Mallam Sallow and had defended the
suit at the Asantehene's Divisional Court B1, he must be deemed to have admitted service of the writ of
summons.
Kombat v Bediako [1971] 1 GLR 196, HC – held inter alia; Substituted service can only be resorted to
where personal service cannot be 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.
SA Turqui & Bros v Dahabieh [1987-88] 2 GLR 486, CA

Facts
1. D, an alien trading under the business name of Technical Trading Co., rented the premises of SAT, a
partnership of alien traders, for his trading business. When Ghana proscribed trading activities by
aliens, both SAT and D stopped their activities while they sought exemption from the operation of the
Act.
2. While the shop was still closed, SAT wrote a letter addressed to the "GM of TTC" giving TTC six
months' notice to quit the premises because they needed it for their own business. D informed SAT,
inter alia, that because of the expenses he had incurred in renovating the premises he would not be able
to comply with the notice. Soon thereafter D travelled to Lebanon. While D was out of the jurisdiction
SAT brought an action in HC, Accra against TTC only for an order for recovery of the store for their
personal occupation. SAT subsequently filed a motion ex parte for substituted service on TTC and in
their supporting affidavit deposed, inter alia, that they had unsuccessfully made several attempts to
serve TTC but on each occasion found the stores locked and since they believed the “defendants" were
evading the service the surest way to serve “them” was by substitution. The application was granted
and SAT subsequently obtained ex parte judgment against TTC in default of appearance. In execution
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of the judgment SAT had bailiffs remove D's goods from the store and kept them in one small room
but his furniture were left in the backyard.
3. On D's return to the country he and TTC as P2 brought an action in the HC against SAT for a
declaration that the ex parte judgment SAT obtained against them was vitiated by fraud and was
therefore null and void and so the judgment and all subsequent processes should be set aside. The
court ignored the charge of fraud but nonetheless gave judgment for D on inter alia the grounds that
SAT knew that D was out of the jurisdiction and so the order for substituted service was a nullity
Held inter alia, dismissing the appeal of SAT:
(1) The ex parte judgment obtained by SAT against TTC was a nullity because:
a. It was clear that it was in fact the proprietor of the business name who was being sued but not
the dehumanised business name and which was used merely as a 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. Accordingly, that failure rendered the ex parte judgment null and void and the
HC rightly set it aside.
b. A charge of fraud in law could be taken to be properly made against a party who knowingly or
recklessly whether by conduct or words used unfair, wrongful or unlawful means to obtain a
material advantage to the detriment of another party. Where a judgment had been obtained
by fraud the court had jurisdiction in a subsequent action brought for that purpose to set the
judgment aside. The representation made to the trial court by SAT that the defendants were
evading service when they knew very well that they were suing only one defendant and no
attempt whatsoever had been made to serve him at his known place of residence, and the
further representation that substituted service within the jurisdiction was the surest way to
serve the respondent when they were fully aware that D was at the material tine outside the
jurisdiction, and the further uncontroverted evidence that they studiously avoided using D's
name in all the processes and proceedings they initiated showed that they were out to deceive
the court in order to have judgment against D without giving him any notice of the
proceedings. They were thus guilty of abuse of the judicial process by unworthy and clearly
dishonest conduct. Accordingly, the charge of fraud was amply established and since the ex
parte default judgment was obtained by that fraud it would be set aside for fraud.
c. Under the rules, 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 should be ordered by the court. The uncontroverted evidence showed that
at the date of the issue of the writ up to the date when substituted service 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. Furthermore, since SAT chose to sue D by his business name but Order 9, r. 6
which provided for the procedure for service of writs against firms however required that
service should have been effected on either D or at the premises where he had his place of
business upon any person having at the time of service the control and management of his
business. Service must therefore be on a human being. Since at the time the writ was issued
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D was out of the jurisdiction it was not therefore a question of it being inconvenient to effect
personal service so as to justify recourse to substituted service. The circumstances
demonstrated that personal service under the rule was impossible. In such circumstances
substituted service was inapplicable and should neither have been applied for nor granted.
Since the substituted service was unlawful the ex parte Judgment founded on it was a nullity.
NB: When a service is not served correctly, an application to set aside the service is made [not an application to set aside the
writ]. The real essence of service is to bring proceedings to your notice thus it’s best to apply to set the service aside when there’s
bad service than to do nothing.
Defective Service
- No leave is sought to serve a notice of the writ on a defendant outside the jurisdiction
- The wrong method of service is used
o E.g. posting the writ on defendant’s last known place of abode when it’s meant to be
served personally
- Serving the writ on the wrong person
- The defendant is induced to come into the jurisdiction solely for the purpose of being served
Dispensing with Personal Service – Or.7 r7
Where per the Rules a document is required to be served but it does not have to be served personally, and
at the time when service is to be effected that person has not entered appearance or has no address for
service, the document need not be served on the person unless the Court otherwise directs or any of the
Rules otherwise provides.
Computation of Time
Or7 r8
Service is to be done from 6am – 6pm on working days excluding public holidays. Time starts running on
the date on which service is effected.
Where a document is served on a day on which the courts are closed for business, for the purpose of
computing the time of service, the document is deemed to have been served on the first available working
day.
When the writ is served, the defendant is required to enter appearance within 8 days of the date of the
service.
If the document is served through registered post to the recipient’s proper address and is not returned as
undelivered, then 21 days after the date of posting, it is deemed to have been served and time will start
running after the 21 days.
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Affidavit of Service
Or.7 r9
When the document is served, an affidavit of service must be prepared by the bailiff stating
- by and on whom the document was served
- the day of the week, date and time on which it was served
- where and how it was served.
Where the document was sent by registered post, the affidavit of service shall state
- by whom the document was posted
- the registered number of the letter
- the name of the person to whom the document was posted
- the address to which the document was posted
- the certificate of posting issued by the post office shall be exhibited with the affidavit
Record & Proof of Service

Or.7 r11
A Process Book shall be kept at every court for recording service of process by bailiffs and process servers.
An entry in a Process Book or an office copy of it shall be prima facie evidence of the matters stated in it.
Service of Writ
Or.7 r 12
A writ shall be served separately on each defendant – Barclays Bank v Ghana Cable. Where a lawyer
undertakes in writing to accept service of a writ on behalf of a defendant, the writ shall be deemed to have
been duly served on that defendant when served on the lawyer.
Where the writ is not duly served on a defendant but the defendant files an unconditional appearance, the
writ shall be deemed to have been duly served on the defendant and to have been served on the date on
which the defendant filed appearance.
When a writ is duly served on a defendant other than by a lawyer or by entry of unconditional appearance,
then until the person serving it indorses on it the date on which it is served, the person on whom it’s served,
and where the person served is not the defendant, the capacity of the person served, the plaintiff shall not
be entitled to enter any judgment against the defendant in default of appearance or in default of defence.
Service Out of Jurisdiction
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Under Or.8, no writ shall be served outside the jurisdiction. Rather, notice of a writ may be served out of
the jurisdiction with the leave of the court. The leave is by motion ex parte supported by an affidavit.
The affidavit must state the grounds on which the application is made and must state that in the deponent’s
belief, the plaintiff has a good cause of action, and also satisfy the court that the case is one for which the
rules allow for service out of the jurisdiction. The address of the defendant must be indicated in the affidavit
as well as the mode of service e.g. through DHL. The order granting the leave shall fix the time for the
entry of appearance.
Cases where leave will be granted are provided in Or.8 r3 as follows:

(a) where the whole subject matter of the action is immovable property situate within the jurisdiction
or the perpetuation of testimony relating to any such property
(b) where an act, deed, will, contract, obligation or liability affecting immovable property within the
jurisdiction is sought to be construed, rectified, set aside or enforced in the action
(c) where relief is sought against a person domiciled or ordinarily resident within the jurisdiction
(d) where the action is for the administration of the estate of a person who died domiciled within the
jurisdiction or for any relief/remedy in that regard
(e) where the action is for the execution, iro property situated within the jurisdiction, of the trusts of
a written instrument which ought to be executed according to Ghana law and where the person to
be served is a trustee
(f) where the action is brought against a defendant not domiciled or ordinarily resident within the
jurisdiction iro the breach of a contract
a. made within the jurisdiction or
b. made by or through an agent trading or residing in the jurisdiction on behalf of a principal
trading or residing out of the jurisdiction or
c. which by its terms or by implication is governed by the laws of Ghana
(g) where the action is brought against a defendant not domiciled or ordinarily resident within the
jurisdiction iro a breach
a. committed within the jurisdiction of a contract made in or out of the jurisdiction
b. that renders performance of so much of the contract which ought to have been performed
in the jurisdiction impossible notwithstanding the fact that the breach is preceded or
accompanied by a breach committed out of the jurisdiction
(h) where the action is founded on a tort committed within the jurisdiction
(i) where an injunction is sought that orders the defendant to do or refrain from doing anything within
the jurisdiction
(j) where the action 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) where the action 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 money due under the mortgage
(l) where the action is by a mortgagor of immovable property situate within the jurisdiction and
seeking redemption of the mortgage, discharge of the mortgage or delivery by the mortgagee of
possession of the property but not a personal judgment
(m) where the action is iro a contract which contains terms to the effect that the Court shall have
jurisdiction to hear and determine any action iro the contract
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Sanyo Electric Trading Company v Quacoopome [2001-2002] 2 GLR 198, CA; P sued D, a company
incorporated in Japan, for damages for breach of an oral contract appointing P as a director of Ghana
Sanyo Electric under which he worked and for which he had not been duly paid. After the writ and SOC
were served on D through GSE’s GM, D entered conditional appearance based on lack of jurisdiction. D
pleaded that it was only a shareholder in GSE and had no presence in Ghana. Thus P needed leave of the
court to issue a writ against it. Consequently, D applied for an order to strike out the writ. The HC denied
D’s prayer and rather granted P’s motion for interim injunction restraining D from liquidating its shares in
GSE until the final determination of the substantive matter.
Held inter alia affirming the appeal;
1. As a general rule a person domiciled in a contracting state shall, whatever his nationality, be sued in the
courts of that state. The domicile of the plaintiff in such cases is usually irrelevant. A legal person is
said to be domiciled in a state if it has its seat in that state or country, that is to say, if either
(a) it was incorporated in that state or country and has its registered office therein; or
(b) its central management or control is exercised there.
It is trite learning that mere physical presence is not sufficient. The defendant must be actually
domiciled in the state or country for any legal action instituted against it to be maintainable
jurisdictionally.
2. Since D is not trading in Ghana, P should have first obtained leave of the court to issue his writ of
summons. When this is done, then he could serve the non-resident defendant through his agent
resident in Ghana. And even in such a situation the agent resident in Ghana must be trading in Ghana
on behalf of his principal who is trading or resident outside Ghana.
3. The defendant not being a company incorporated and domiciled in Ghana it would be a scandal to the
administration of justice if the plaintiff were to be permitted to have his case entertained in our courts.
The High Court or a fortiori any other court in the country has no jurisdiction in the action.
Method of Service
Or.8 r5 provides the method of service and states that service is governed by Or.7 rr12 23 & 15 24 but subject
to Or.8 r9 which provides that where a document has been served out of the jurisdiction, an official
certificate sent to the Court by the Government or judicial authority of the country or by a Ghana consul
in that country stating that the document has been served on a specified date shall be evidence of the facts
so stated.
Authorities to Effect Service

This is provided for in Or.8 r6. Where the defendant is in a country with a Civil Procedure Convention that
provided for service in that country of process of the Court, the notice may be served
- through the judicial authorities of that country or
- through a Ghana consul in that country subject to any provision in a Convention as to nationality
of persoms who may be so served
23
Service on each defendant separately
24
Where it’s a land matter and court satisfied that no one in possession, copy of the writ may be affixed on a conspicuous part of the immovable
property and same shall be treated as good service
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Where there is no convention;

- through the government of that country where that government is willing to effect service
- through a Ghana consul in that country except where such service is contrary to the laws of that
country
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APPEARANCE
Or.9
It’s provided in Or.9 r1(1) that a defendant served with a writ of summons is required to file appearance in
the action and defend it in person or by a lawyer. This rule applies even when the defendant is sued in a
representative capacity.
Appearance is entered by the filing of a ‘notice of appearance’.
The defendant’s residential and occupational address shall be stated on the notice of appearance. Where
the defendant does not provide residential and occupational address, the plaintiff may apply to the court,
on notice, to compel the defendant to provide the address. Where the defendant fails to comply with the
court’s order, it shall be deemed that D has not entered appearance.
Where defendant fails to provide residential and occupational address, it is deemed that appearance
has not been entered and judgment in default of appearance may be taken against the defendant
Method of Filing Appearance

Or.9 r2
1 Complete a notice of appearance in triplicate

2 Deliver the notice of appearance to the registry in person or by post with 2 stamped envelopes
addressed to the plaintiff (or his lawyer) and the defendant
Contents of Notice of Appearance

Or.9 r3
1. The name of the court

2. The name of the parties
3. Suit number on the writ
4. The defendant’s place of residence in the jurisdiction
5. If D has no place of residence in Ghana, the address of a place in Ghana to which documents can be
sent
6. Where D appears by a lawyer, the business address of that lawyer in Ghana
7. The notice of appearance shall be dated and signed by D if he appears in person or by his lawyer if he’s
represented
If the court is satisfied on application by plaintiff that an address stated on the notice of
appearance is not genuine, the Court may set aside the appearance
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When the notice of appearance is received, Or.9 r4 provides that the registrar shall stamp each copy with
an official stamp showing the date and time on which it is received, enter the appearance in the Cause Book,
file the first copy of the notice and sent by post or otherwise serve on the plaintiff at the address for service
indorsed on the writ. The third stamped copy shall be sent to the defendant.
Time Limited for Appearance

8 days after the service of a writ or where the time is extended by a court, within that time as extended –
Or.9 r5. If the notice of the writ is served out of the jurisdiction, the time limit is the time set by the order
of the court.
No appearance shall be filed after judgment has been entered except with leave of the court – Or.9 r6.
Conditional Appearance
Or.9 r7
A defendant may file a conditional appearance and this must be stated on the notice of appearance.
A conditional appearance gives the defendant the right to have the writ or service of the writ set aside for
various reasons. Reasons may include the ff:
Where service of the writ was irregular or defective

Where service of the writ was in breach of the rules of court
Where the court in which the action has been commenced has no jurisdiction to hear the action.
Where leave of the court was not sought before the writ was issued where it’s intended to be served
outside the jurisdiction
Where a statutory notice required to be given to the defendant in a particular action was not given
before the writ was issued
Where the action is statute-barred
Where plaintiff is not vested with the present cause of action
Where plaintiff lacks capacity
Where defendant is not the proper person to be sued
The courts have held that service of a writ is irregular if a defendant is fraudulently induced to come into
the jurisdiction for the sole purpose of serving him/her with a writ.
Ackerman v Societe Generale [1967] GLR 212, HC By a contract drawn in French and executed in Ghana,
the plaintiff, an Israeli national, agreed to work for the defendants, an external French company at Tema.
P’s salary was made payable in French francs in France with the exception of his living expenses which
were to be paid in Cedis. In an action by P for damages for breach of contract, D entered an unconditional
appearance to the writ and raised a preliminary objection to the jurisdiction of the court to entertain the
suit on the grounds that since the defendant was an external company, the contract was drawn in the French
language and the plaintiff's salary was made payable in France, the proper law governing the transaction
was French civil law.
Page 38 of 159
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Held inter alia; where a defendant entered an ordinary appearance, without any condition or protest
reserving his right to object to the irregularity of the writ of service or the jurisdiction of the court, he was
debarred from raising an objection afterwards.
Edusei v Diners Club Suisse SA [1982-84] GLR 809, CA, Judgment of Francois JA
DCS, a Swiss company not incorporated in Ghana and not carrying on business in Ghana, provided credit
cards to its members who were required to be of repute and good financial standing. Krobo Edusei,
defendant, made full use of the facility to the tune of about GBP12,000. He failed to satisfy his debt and
was sued by DCS in the HC. In his defence, KE claimed inter alia that he was introduced to the service by
someone beholden to him who was obliged to pay for his debts, thus he was not liable. Secondly, he
contended the matter should have been tried in Zurich because the courts were not cloaked with jurisdiction
to hear it. Trial court gave summary judgment ifo P. D appealed.
Held inter alia; there was nothing on the evidence to show that Zurich was intended as the exclusive forum
for the settling of disputes between the parties. Besides, by appearing unconditionally to the writ, the
appellant is deemed to have waived any issue relating to the appropriateness of a forum.
The effect of an ordinary or unconditional appearance is a waiver of irregularity, if any, as well

as a submission to the jurisdiction of the court.
Republic v. High Court, Denu; Ex Parte Avadali IV [1993-94] 1 GLR 561, per Adade JSC at 566
1. Rs brought an action at the HC for a declaration that R1 was the hlotator or head of the whole Anyigbe
clan of the Agave Traditional Area (ATA) and thus entitled to manage all the lands and other properties
of the clan; perpetual prohibitive injunction restraining the applicant from claiming falsely that he was
the hlotator and damages suffered by the first respondent for the applicant's false claims as hlotator.
2. The applicant entered a conditional appearance to the writ and then moved the court to strike out the
action on the ground that the respondents' claim was a chieftaincy matter and therefore the HC lacked
jurisdiction to try it. The applicant's motion was accompanied by an affidavit to which was exhibited a
number of documents.
3. The respondents opposed the motion, contending that the applicant having entered a conditional
appearance, must first file a statement of defence pleading the facts on which he intended to rely before
he could move the court to set aside the writ aside or take advantage of the contents of any exhibits
attached to his motion. They further contended that in the absence of a statement of defence, the
applicant's application could not be heard.
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4. The trial judge dismissed the applicant's motion on the ground that the matter was not a cause or matter
affecting chieftaincy. Aggrieved by that ruling, the applicant applied to the SC for an order of certiorari
to quash the decision of the trial court.
Held, inter alia, granting the application: 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
statement of claim. In the latter event, since there would be no statement of defence at that stage, the
defendant's reasons for objecting to the court's jurisdiction could only be stated in the affidavit
accompanying the motion. The issue of a statement of defence would arise only if the motion to set aside
had been dismissed and the conditional appearance treated as an unconditional appearance. Accordingly,
in the instant case, the respondents' 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.
Rep v HC Accra Ex P Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR 398 D entered conditional
appearance to the writ and subsequently moved the court to have it struck out for being vexatious, abuse
of the process, scandalous and not disclosing any reasonable cause of action. Held; a conditional
appearance is to enable D who intends to object to the issue or service of the writ or notice of the writ on
him or to object to the jurisdiction of the court, to apply to the court to set them aside. The application
may encompass any irregularity or defect in the issue or service of the writ. It’s not permissible for D 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.
Setting Aside Writs
The rules in Or.9 r8 provide that a defendant may apply to the court at any time before filing appearance
or where D enters conditional appearance, within 14 days after filing the conditional appearance, to either
set aside the writ or the service of the writ. The plaintiff can’t take any action within the 14 days. IOW the
case is frozen for 14 days.
Application may also be iro a declaration that the writ or notice of it has not been served on the defendant
or a prayer to discharge any order that gives leave to serve the notice on the defendant outside the country.
A writ may be set aside if it’s defective. For instance a writ is defective in the ff cases:
- if no parties are named on the writ
- if a party to the action has no capacity to institute the action or defend it
- where the writ is filed in a court which has no jurisdiction
- where a writ doesn’t disclose any cause of action
- where the writ isn’t endorsed with a substantive claim
- where the writ isn’t accompanied by a statement of claim
- where conditions precedent before the issue of a writ isn’t complied with e.g. where leave must be
sought before the issue of a writ
- where an expired writ is served
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When a writ which is not defective is wrongly served, the defendant or the person named in the writ may
apply to set aside the service of the writ and not to set aside the writ itself because the court can order or
redirect proper service on the party.
Per Or.81 r2, an application may be made by motion to set aside for irregularity any proceedings, or any
step taken in the proceedings or any document, judgment or order in it and the grounds of it shall be stated
in the notice of the application. The application must however be made within a reasonable time and the
party applying should not have taken any fresh step after knowledge of the irregularity.
Writ issued
Enter appearance Within 8 days of service of writ
Enter conditional appearance Within 8 days of service of writ
Move to set aside the writ or its service within 14 days of entry of
conditional appearance
Sample Notice of Appearance

LAND DIVISION
ACCRA
Suit no 3/14
Akrasi Sarpong
Part 1 Law Student PLAINTIFF
GIMPA-Accra
VRS
Ashia Baffour
Part 1 Law Student DEFENDANT
GIMPA Accra
NOTICE OF APPEARANCE
(Order 9 rule 3(1))
TAKE NOTICE that the defendant hereby enters appearance to the plaintiff’s writ and this his address for service
is as follows:
Ashia Baffour
255 Kotoko Street
Accra
Dated at Accra this ……………. day of ……….. 20…….
Signature of Defendant
The Registrar
High Court Accra
And to: the above named plaintiff or his lawyer
Page 41 of 159
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October 23, 2013
DEFAULT OF APPEARANCE
Or.10
Where the defendant fails to enter appearance within 8 days of service of the writ, the plaintiff may make
an application for judgment in default of appearance. The procedure for taking judgment in default of
appearance is by motion ex parte supported by affidavit providing due service of the writ or notice of it on
the defendant or the plaintiff produces a writ indorsed by defendant’s lawyer with a statement that the
lawyer accepts service of the writ on behalf of the defendant – Or. 10r7.
Claim for liquidated demand

Or.10 r1
If the claim of the plaintiff is for a liquidated 25 demand only, then if the defendant fails to enter appearance
after the time limited for appearance, the plaintiff is entitled to final judgment.
Claim for unliquidated demand

Or.10 r2
If the claim is not liquidated, then plaintiff will apply for interlocutory judgment against defendant for
damages and a date will be fixed for the court to assess damages. E.g. if someone sues for general damages,
and the defendant fails to enter appearance, the court will ask that the defendant be served with a hearing
notice for damages to be assessed [damages is always in issue and has to be proved].
Claim in Detinue
Or.10 r3
For a claim in detinue, the plaintiff will apply to enter judgment against the defendant for any of the ff and
proceed with the action against other defendants if any:
a. Delivery of the goods or their value to be assessed and costs
b. For the delivery of the goods alone and costs
c. For the value of the goods to be assessed and costs
Where an interlocutory judgment is given and the defendant is served with notice to appear for the
assessment of damages or the value of goods, he will be heard on the issue of the damages only, unless he
files a motion to set aside the judgment.
Claim for possession of immovable property

Or.10 r4
In a claim for recovery of possession of immovable property only, the plaintiff will apply for judgment for
possession of the property and costs against the defendant.
25
An agreed and ascertained amount
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If there is more than one defendant and they are sued jointly, and the default judgment is entered against
one of them, that judgment for possession will not be enforced until judgment for recovery of possession
has been entered against all the defendants. This is a special rule for possession.
Conca Engineering (Gh) Ltd v Moses [1984-86] 2 GLR 319

P sued D for title and possession of the disputed land. P obtained a customary grant from the “caretaker
of the Osu Stool” in 1955. D bought the land in 1981 but traced its title to a deed granted by the Osu Stool
in 1960 to its predecessor-in-title. At the trial the plaintiff pleaded that he had earlier obtained in 1968 a
judgment in default of appearance against D’s predecessor-in-title at the CC iro the disputed land where P
had been declared the owner thereof. The matter was therefore res judicata and his privies were
consequently estopped as well since the predecessor had not appealed against the judgment or had it set
aside. The trial circuit court accepted the plaintiff's plea of res judicata founded on the default judgment
and concluded, inter alia, that on the totality of the evidence P had proved his claim and that judgment be
awarded in his favour "for the reliefs claimed."
On appeal, the court having found that D’s predecessor-in-title had in fact sought unsuccessfully to have
the default judgment against him set aside for want of service on him of the writ of summons, held inter
alia; since ownership and possession were reliefs indorsed by the plaintiff on the writ and the trial judge
gave him a global judgment, it stood to reason that the judgment had granted both the claim for ownership
and possession. But the court had no power on an application for judgment in default of appearance to
make more than an order for recovery of possession in the plaintiff's favour. The default judgment would
accordingly set aside as void as it could not be a valid foundation for a plea of estoppel on an issue of
ownership in the present action.
Mixed claims
Or.10 r5
When the plaintiff’s claim is mixed e.g. a liquidated claim + detinue, he may enter such judgment against
the defendant in respect of any such claim as he will be entitled to enter under the appropriate rule or order
as if that was the only claim made.
Actions not specifically provided for

Or.10 r6
Where plaintiff’s claim is of a description not mentioned in the rules, the plaintiff after filing an affidavit of
due service of the writ of summons and a statement of claim on the defendant, shall proceed with the action
as if the defendant had filed appearance. In other words, the plaintiff cannot take default judgment for
those claims of a description not mentioned. Thus if the writ is endorsed with a claim for declaration of
title for instance, the plaintiff must proceed at trial to prove his case. The authority for this principle is
Conca Engineering v Moses [1984-86] 2 GLR 319 held; … since no express provision was made by the other rules
where title as distinct from possession could be granted, the proper applicable rule was Order 13, r. 12 of LN 140A [now
Or.10 r6]. Under that rule, if a party defaulted in entering appearance, the action might proceed as if such party had appeared.
That was another way of stating that the case should take its normal course. And in our adversary system, the plaintiff who
sought a declaration of title, had to establish that by clear and acceptable evidence whether or not the defendant against whom
he sought the relief was present or absent. Since the plaintiff admittedly led no evidence of title in the 1968 suit, the circuit
judge at that trial had no jurisdiction to adjudge title in the plaintiffs’ favour.
Page 43 of 159
Civil Procedure
Proof of Service of Writ

Or.10 r7
Judgment will not be entered against a defendant unless a plaintiff files an affidavit pleading due service of
the writ or notice of the writ on the defendant. Conduct a search, attach a copy of the search to the motion
and include the affidavit.
Moneylenders Actions
Or.10 r9
In an action by a moneylender for recovery of money lent or for the enforcement of any agreement relating
to such money, no judgment in default of appearance shall be given except with leave of the court. The
application for leave shall be on notice with 3 clear days’ notice to the defendant. It shall be supported by
affidavit of service of the writ.
Mortgage Actions
Or.10 r10
Judgment shall not be entered in default of appearance except with leave of the court. The application for
leave shall 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.
Setting Aside Default Judgments

Or.10 r8
The court may set aside or vary any judgment entered in default on such terms as it deems fit. There is no
time limit for moving the court to set aside the default judgment but the application must be moved within
a reasonable time (and what’s reasonable is a question of fact). The affidavit in support of the motion must
disclose that the defendant has a reasonable defence to the action and then give good reasons why he failed
to enter appearance in accordance with the rules.
The courts are often open to setting aside default judgments subject to costs but this is only on the ground
that the defendant shows that he has a reasonable defence to the action [leave will then be granted to
the person to enter appearance and file a defence].
See also:
GCB v Tabury [1977] 1 GLR 329 GCB made an application by motion on notice to set aside default
judgment obtained against it by P on the ground that there was improper service of the writ. GCB showed
that upon a search conducted at the registry, it was found that the writ and pleadings were served on a clerk
at Accra. The search results didn’t indicate that the writ was served at the HQ.
Held:
1 The court has an unlimited discretion to set aside a default judgment. But in the exercise of such a
discretion the court must have regard to certain guiding principles notable among them are that
the applicants must satisfy the court as to how it happened that they found themselves bound by
a judgment to which they could have set up some serious defence and secondly that some useful
purpose would be served by setting aside the judgment.
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Civil Procedure
2 All statutory modes of service must be strictly adhered to and per the GCB Decree, “a document
may be served on the Bank by leaving it at or sending it by post to the Head Office of the Bank”.
Some breaches of the rules of court are fundamental while others are mere breaches. Where a party
is not notified of the proceedings, it’s a nullity on the ground of absence of jurisdiction. Even
though the Decree is silent on the person with whom the document or writ should be left, the
proper thing to do is to serve somebody who can represent the bank or some other responsible
officer. Consequently, the defendants had no notice of the writ. If there was no notification of the
original writ, no document could properly be served. The original writ started the action and if that
was not served no document could properly be served. Service of the notice of the amendment
and the amended statement of claim subsequently served on the solicitors of the bank cannot also
stand. Application allowed.
Haruna v Arts Council of Ghana [1992] 2 GLR 1

D was served with a writ in 1977. They failed to enter appearance and in 1982, a judgment in default of
appearance was obtained against D. Although hearing notices for the assessment of damages were served
on D, they still failed to enter appearance or attend. During the hearing of an application for garnishee
order, the A-G asked for 3-months adjournment in order to enable them to take steps to settle the judgment
debt and same was granted. Subsequently, the A-G filed an application to set aside the judgment, entry of
appearance and SOD. P contended, inter alia, that the application to set aside the default judgment was
brought in bad faith having regard to the fact that D had agreed to settle the judgment debt plus it was too
late in the day to bring such an application. They further argued that the entry of appearance filed was a
nullity because the rules of court did not provide for automatic entry of appearance after judgment and that
leave of the court should have been obtained.
Held inter alia;

1 There is no time limit within which a party could apply to set aside a judgment obtained in default
of appearance. Where the party affected sought to set aside a default judgment, it was unnecessary
to ask for leave to enter late appearance before doing so.
2 A default judgment would be set aside if an affidavit filed on the merits disclosed a reasonable
defence to the claim and explained satisfactorily the cause of the delay. Long lapse of time per se
was no good ground for opposing the application. On the evidence, it was clear that though the
explanation given by the defendants for the delay was unreasonable and unacceptable, their
affidavit disclosed a good defence to the plaintiffs' action which if proved, would provide a
complete answer or at least a partial answer of contributory negligence. It would therefore be unjust
to allow the default judgment to stand. However, in view of the unreasonable delay, the application
would be allowed with costs.
Page 45 of 159
Civil Procedure
October 28, 2013
VENUE
Or. 3
There is only one HC, however for convenience sake, there are different venues. Venue isn’t same as
jurisdiction. The rules thus provide that where an action is started at a wrong venue, the court can hear the
case until the defendant raises an objection.
By Or.3 r1(1) every cause affecting immovable property or any interest in the immovable property or for
any damage to it, shall be commenced in the region in which the immovable property or any part of it is
situate.
Causes or matters affecting movable property distrained or seized (action in detinue) for any reason
whatsoever shall also be commenced in the region where the seizure took place.
Action against public officers to recover penalty or forfeiture shall be commenced in the region where the
cause of action arose.
Action for specific performance of a contract or in respect of breach of a contract shall be commenced in
the region where the contract ought to be performed [and not where the breach took place] or where the
defendant resides.
In all other causes not mentioned above, action is commenced where the defendant is resident. If there are
two or more defendants resident in different regions, action may be commenced in any of the regions.
If an action is commenced in the wrong region, the action may continue, provided no objection is raised
to the jurisdiction before or at the time the defendant is supposed to file a defence.
Where an objection is raised, the judge would have to stay proceedings and refer the pendency of the suit
to the CJ who will then transfer the suit to the appropriate venue.
Where orders have been made before the transfer, those orders are not nullified by reason of the
objection – Or.3 r2. Non-compliance with subsisting orders made while the court was sitting will result in
contempt of court.
Rep v HC Accra Ex P Yalley [2007-2008] SCGLR 512

1. Applicant issued a writ against the interested parties iro a plot of land he claimed G had trespassed on
and successfully applied for an interim injunction against them.
2. G initiated contempt proceedings against Y which was placed before a HC judge and was adjourned in
the presence of both parties by the court clerk because the judge was on leave.
3. Soon after the adjournment, G succeeded in having the registrar of the court bring the hearing date
forward and transfer the matter to an entirely different court and placed before a new judge. The new
judge ordered a bench warrant to issue against Y when he failed to show up on the new date.
4. Y in turn made an appearance before an entirely different judge in another court who rescinded the
bench warrant.
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5. The judge who issued the warrant of arrest ignored the rescission and made further orders of arrest on
grounds that as long as Y had not appeared in response to the warrant, the order still subsisted and
remained valid notwithstanding any intervention by a court of concurrent jurisdiction.
6. Y brought the instant application for certiorari to quash the bench warrant and all orders made thereto
on grounds that the contempt proceedings could not be removed from the first court without a formal
transfer order from the CJ and so the court acted without jurisdiction.
7. G argued that no formal order was required as it was an ordinary motion although in the nature of
contempt proceedings, and since it was a matter to be dealt with expeditiously.
Held inter alia;

The power to transfer resides exclusively in the CJ. Although a HC judge and the chairperson of an RT are
also empowered to order the transfer of cases under s106 of Act 459, such power of transfer is subject to
the powers of the CJ – Soro v Frans emphasised. The power of transfer was never vested in the registrar.
Application for certiorari granted.
Volden & Ors v Ghana Goldfields Ltd [1999-2000] 1 GLR 462 Former employees of D issued a writ at
the HC Sekondi against D claiming compensation for diseases suffered while in D’s employ. D, which was
located in Tarkwa, applied to the HC Sekondi to have the case transferred to Tarkwa on the ground that
all the parties, their witnesses and D’s counsel resided in Tarkwa.
Held: either court has jurisdiction to hear the case since they are in the same region. The court where the
application is made thus has a discretion iro transferring the matter to the other court for hearing. In doing
so, it ought to look at all the circumstances of the case. The test to be applied however is whether the
defendant would suffer some injustice if the action was heard in the region where he does not reside or
carry on business. In the instant case, both parties live in Tarkwa. That’s where D’s ops are and that’s
where Ps contracted the disease. Defence counsel is also in Tarkwa. Only counsel for P resides outside
Tarkwa. On the whole, more hardship will be caused to D than P if this suit is heard in the High Court,
Sekondi. The balance of hardship and convenience tilts heavily in favour of D. It is more expeditious,
proper and convenient to have this suit heard in Tarkwa than in Sekondi. Transfer granted.
Page 47 of 159
Civil Procedure
PLEADINGS
Or. 11
The general rule is that only facts are pleaded. We don’t plead law (apart from customary law) or evidence.
Pleadings mean the material facts that a party wants to rely on in court to prove or establish his claim or to
defend an action brought against him. The pleadings must give cause to the evidence.
When a fact is not pleaded, it cannot be brought into the court (rule against departure). Where there is a genuine error, apply
for leave to amend.
October 30, 2013
Pleadings are written statements of fact exchanged alternatively by parties in an action with the aim of
ascertaining the issues to be determined by a court in an action. They are statements containing material
facts that parties seek to rely on to establish their claim in court.
Or.82 r3 provides the definition of pleadings as 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.
Types of Pleadings
- Statement of claim
- Statement of defence
- Counterclaim
- Defence to counter claim
- Reply
- Rejoinder
- Further and better particulars to any specific type of pleading
Essence of Pleading
1. To define the issues in controversy which the trial court is to adjudicate on. The issues as defined limit
the area of controversy and can only be extended or expanded with the leave of the court through
amendment.
2. It gives reasonable notice of the case each party is expected to meet. This enables the parties to assemble
the necessary evidence in support of their case.
3. It records the issues in dispute so that the same disputants or persons claiming through or under them
may not litigate those issues all over again. This is based on public policy grounds that there must be
an end to litigation.
Page 48 of 159
Civil Procedure
Drafting of Pleadings
Pleadings should only contain statements in a summary form of material facts on which a party seeks to
rely on to prove his claim. Evidence is not pleaded 26. Pleadings shall be restricted to statements of fact only
and not evidence by which the facts are to be proved.
Or.11 r10 is the rule against departure and provides that a party shall not in any pleading make any
allegation of fact or raise any new ground or claim inconsistent with the previous pleading.
Consequently, if a material fact sought to be relied on is not pleaded and evidence is led about it at the trial,
opposing counsel has every right to object to that evidence as unpleaded evidence. However, if counsel
doesn’t take objection and that unpleaded evidence goes on the record, the court is bound to consider it;
unless it’s inadmissible evidence. It’s the principle in Abowaba v Adeshina [1946] 12 WACA 18 The
deceased acquired land by native custom and his personal representatives sold the land to Defendant-
respondent’s predecessor in title who D-R subsequently bought the land from. The original sale was without
the consent of the Chief Oloto and so the land became liable to forfeiture to him under native custom. The
then Chief however took no steps to enforce his right. The present Chief waived his forfeiture in
consideration of a sum of money from D-R and for which he gave D-R a receipt. Subsequently, the right
title and interest in the land purported to have been sold to D-R was sold to Plaintiff-Applicant at a public
auction under a writ of execution whereupon P-A brought the instant action claiming possession and a
declaration of title. At the trial, D-R pleaded that the land was sold to him by the purchaser from the
deceased’s personal reps and that he was in possession. In his reply, P-A claimed that the purchaser’s
allotment had become forfeited as a result of the unauthorised sale by the administrator. D-R made no
further plea to the reply. D-R nevertheless led evidence of the waiver of the forfeiture and which the judge
accepted and based his judgment upon, dismissing the appellant’s claim. P-A appealed to WACA on inter
alia the ground that the judge misdirected himself by basing his judgment on an issue which was not pleaded
by R.
Held; the waiver of forfeiture was a material fact of D-R’s defence. From the record, no objection was
taken to its admission when it was tendered. 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, the trial judge is bound to take it into consideration and
the other party not having raised an objection at the trial is precluded from doing so on appeal. Appeal
dismissed.
.
The principle in Abowaba vAdeshina is an exception to the rule against departure
Pleading of Particulars
26
Or.11 r7
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Civil Procedure
Or.11 r12 provides that pleadings must contain the necessary particulars of any claim, defence or matter
pleaded including particulars on which the party relies. Matters to be particularised include;
- Misrepresentation
o Ollennu JSC held in Wilkinson v Edusei [1963] 1 GLR 393, SC where the appellant sold land
to the respondent and covenanted that he was entitled to assign the land but where a third
party entered the land and started building thereon that, as respondent 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.
- Fraud
o In Heward-Mills v Heward-Mills [1992] 1 GLR 153, CA per Adjabeng JA at 164, the plaintiff
only pleaded in his statement of claim that the signatures "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." I do not think that the plaintiff can by this be said to have
pleaded fraud as is required by law….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 allegations
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.
- Breach of trust
- Wilful default
- Undue influence
- Negligence 27
Where a party in a pleading alleges any condition of the mind of any person whether of any disorder or
disability of mind or malice, fraudulent intention or other condition of mind, particulars to this effect must
be pleaded 28.
Other claims that require the particulars to be pleaded are:

- Defamation
- Fair comment
o Defendant must plead that the facts on which he comments are true and particulars of the
facts relied on must be provided in the plea; this enables the plaintiff to know the case he
has to meet and prepare for it – Standard Engineering Co v New Times Corporation
[1976] 2 GLR 409 at 411
- Damages
- Agreement
- Innuendo
27
Asantekramo alias Kumah v A-G [1975] 1 GLR 319 plaintiff sued A-G as nominal defendant on grounds that doctors ad KATH had been
negligent in treating her for raptured ectopic preganancy which had led to an amputation of her hand. She provided particulars of the negligence
and also pleaded that she would rely on the doctrine of res ipsa loquitur. Held; in an action founded on res ipsa loquitur, it was unnecessary to
plead res ipsa loquitur. Facts should rather be pleaded which, taken together, would prove that the injury suffered by the plaintiff, could not
have happened but for the presumptive negligence of the defendant.
28
Or.11 r12(1)(b)
Page 50 of 159
Civil Procedure
Matters to be specifically pleaded

Or.11 r8
- Performance
- Release
- Limitation provision
- Fraud or any fact showing illegality
Per Or.11 r9, new facts which arise at any time, whether before or after the issue of the writ may be pleaded
but this is subject to rules 7(1), 10 and 15(2) of Or.11.
Or.11 r11 allows a party to raise a point of law in a pleading (e.g. capacity, statute barred actions by virtue
of limitation Act, estoppel). In Abaka v Ansah [1965] GLR 688 at 693, the appellant pleaded s57 of the Sale
of Goods Act as the basis for his assertion that the trial court ought in law to have ordered a refund of the
amount which the appellant had paid to the respondent when he decided that a seizure was not wrongful.
Held; it was not necessary for appellant to plead the section specifically – he could have only raised that
point of law in his pleadings. “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”.
If a party pleading relies on a rule of customary law, that rule must be stated with particulars to show the
nature and effect of that rule – the particular area to which the law applies, the group it applies to, etc.
Formal Requirements of Pleadings

Or.11 r6
• Pleadings must be divided into paragraphs and numbered consecutively.
• As much as possible, each allegation or fact should be contained in a separate paragraph.
• Dates, sums and numbers must be expressed in figures or words, or both.
• The title of the action and the suit number must appear on the pleading.
• The name of the court, the region and town in which the action is commenced must also be on
the pleading.
• The description of the pleading e.g. counterclaim, defence, etc.
• It shall contain the address of a party who appears in person or his lawyer’s address if the party is
appearing by a lawyer.
• Every pleading shall be signed by a lawyer if settled by a lawyer and if not by the party.
• Indorsement
o The name and address of the parties
o The name or firm and business address of the lawyer by whom it is issued
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Sample Pleading:
IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT 29 OF JUSTICE
ASHANTI REGION 30 – A.D. 2013
SUIT NO…………… 31
ALICE MENSAH 32 PLAINTIFF

House No. K.O. 119
Ashanti New Town, Kumasi
VRS
OPANIN YAW KYEREMEH

House No. 42 Blk A
Adum, Kumasi DEFENDANT
STATEMENT OF CLAIM 33
1. Description of plaintiff
2. Description of defendant
3. The relationship between the parties
4. Fact 1
5. Fact 2
6. Fact 3
WHERE plaintiff prays for the following reliefs against the defendant
a. Relief 1
b. Relief 2
c. Relief 3
d. Costs
Dated the 30th Day of December 2013
…………………………………………………
KOTRE CHAMBERS
SOLICITORS FOR PLAINTIFFS
THE REGISTRAR
HIGH COURT
ACCRA
AND TO: THE ABOVE-NAMES DEFENDANTS OR THEIR LEGAL REPRESENTATIVES
29
The Court – could be CC, CA, SC
30
In a negligence case, the action takes place in the region where the tort happened.
31
Number of the action
32
Indorsement i.e. name and address
33
Description of the pleading
Page 52 of 159
Civil Procedure
Striking Out Pleadings

Or.11 r18
The court may at any stage of the proceedings order any pleading or anything in any pleading to be struck
out on the following grounds:
That it discloses no reasonable cause of action or defence
It is scandalous, frivolous or vexatious
If it may prejudice, embarrass or delay the fair trial of the action
If it is an abuse of the court process
Consequences of striking out pleadings:

- The court may stay the action
- Action may be dismissed
- Judgment may be entered accordingly
NB: when you want to strike out a pleading for a reason that it discloses no reasonable cause of action or
defence, no evidence is taken.
See:
Ghana Muslim Rep Council v Salifu 34 [1975] 2 GLR 246
Harlley v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179 35
Delivery of Pleadings
• A SOC is to be served together with a writ of summons 36.
• 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 within 14 days after the time limited
for appearance
• A plaintiff on whom a defence is served shall file a reply if necessary before the expiration of 7
days after service of the defence on the plaintiff.
• No pleading shall be filed after a reply has been filed except with the leave of the court.
• Pleadings may be filed during legal vacation but time doesn’t run during the vacation
34
A pleading will be struck out where it is apparent on the face of it that even if the facts were proved, the plaintiff will not be entitled to the
reliefs sought.
35
In an application to set aside the writ and statement of claim, the court is to decide the question by examining the said writ and SOC and
nothing else. If the application is however founded on the inherent jurisdiction of the court…which is discretionary, then all the facts can be
gone into.
36
Or.11 r1
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Close of Pleadings
If there is no reply to a defence, then there shall be a joinder of issues on the defence and pleading
closes – Or.11 r14.
Pleadings close at the expiration of 7 days after service of a reply – Or.11 r19(1)(a).
If there is no reply but only a defence to counterclaim, then pleading closes after service of a defence
to counterclaim.
Pleadings close if neither a reply nor defence to counterclaim is served at the expiration of 7 days after
service of a defence – Or.11 r19(1)(b).
One month after the close of pleadings, the plaintiff shall file Notice of Application for Directions for
service on all the other parties – Or.32 r2(1).
November 4, 2013
Statement of Claim
Or.11 r1
Every writ should be accompanied by a SOC – Or.2 r6. Where a writ is served without an SOC, D may
apply to the court to have the action dismissed 37.
An SOC must contain in summary form all the material facts on which P relies to establish his claim. The
facts must disclose an accrued cause of action in every plaintiff. Liability must be established in every
defendant as well – Morkor v Kuma [1998-99] SCGLR
It is important to plead clearly whether the relief sought by P against D is made jointly 38 and severally 39
(judgment against any of the parties) or in the alternative.
The nature of the claim must be endorsed on the SOC. It is possible be have different reliefs against
different defendants.
Per Or.11 r15, the SOC shall specify the relief which P claims against D. The SOC shall not contain any
allegation or claim in respect of a cause of action unless the cause of action is mentioned in the writ or
arises from facts which are the same as or form part of facts giving rise to the cause of action so mentioned.
37
Or.11 r1(2)
38
Ds will suffer liability individually so can’t claim 100% of the relief against one person
39
Ds are treated as one unit so judgment can be levelled against one of them to represent the whole, who may in turn be indemnified by the
others
Page 54 of 159
Civil Procedure
IOW, the facts pleaded in the SOC must relate to the claim or relief indorsed in the writ. The facts pleaded
must disclose a cause of action which then gives rise to the relief.
Specific Claims
• Defamation/Libel/Slander – Or.57 r3
P is required to give particulars of facts and matters he relies on in support of his claim that the words are
defamatory. Where D alleges that the words complained of are true in substance and are fair comment, D
shall give particulars stating facts and matters he relies on in support of the allegation that the words are
true.
Per Or.57 r3(3) where a defendant in a libel or slander action pleads that the words are fair comment and
the plaintiff intends to allege that the defendant was actuated by express malice, P shall serve a reply giving
particulars of the facts from which the malice may be inferred.
• Moneylenders Action & Mortgage Action – Or. 59

Every SOC in a moneylenders or mortgage action shall provide particulars as provided in Or.59 r3.
If particulars are not contained in the SOC, ask for further and better particulars; when the particulars
are provided, it forms part of the SOC
• Probate Action – Or.66

It’s where an action is commenced to determine whether a will or trust is properly executed. Where P
disputes the interest of D in a probate action, P must state in the SOC that P denies the interest of D.
Structure of SOC
- Name and place of the court

- Names of the parties
- The title of the document
- Description of the parties
- Business of the parties
- Relationship between the parties
- Narration of circumstances leading to the dispute
- Description of the right of P which has been violated or wrong suffered by P or right of P is under
threat or the breach or wrong complained of
- The nature of damage suffered or loss incurred if any
- The claim or relief being sought from D
Page 55 of 159
Civil Procedure

SUIT
NO……………
ALICE MENSAH PLAINTIFF
House No. K.O. 119
AND
(1) OPANIN YAW KYEREMEH

House No. 42 Blk A
Tekyiman DEFENDANTS
(2) MORO ISSAH
House No. T.Z.
Techiman Zongo
STATEMENT OF CLAIM
(1) The Plaintiff is a 40 year old trader who lives in Kumasi.

(2) The First Defendant is the owner of Ford bus with registration number BA 5291-13.
(3) The Second Defendant is the driver of Ford bus with registration number BA 5291-13.
(4) The Plaintiff says that on 27th January 2013 she boarded vehicle number BA 5291-13 as a fare-paying passenger from
Kumasi in the Ashanti Region to Techiman in the Brong Ahafo Region.
(5) The Plaintiff says that the 2nd Defendant agreed and undertook to take her to Techiman in the Brong Ahafo Region.
(6) The Plaintiff says that at Nkenkanso, the Ford bus with registration number BA 5291-13 was involved in an accident as a
result of the negligence of 2nd Defendant.
PARTICULARS OF NEGLIGENCE
a. Driving too fast
b. Overtaking in a curve
c. Failing to keep a proper lookout
d. Driving off the road
e. Driving without due care and attention
(7) The Plaintiff says that as a result of the accident/negligence of 2nd Defendant, Plaintiff sustained the following injuries:
a. Fracture of the right tibia and fibula
b. Fracture of the left tibia and fibula
c. Abrasions all over her body
(8) The Plaintiff avers that as a result of the accident, she was admitted to the Nkenkanso Government Hospital and incurred
the following costs:
a. Drugs for her treatment – GHC600
b. Medical Report – GHC500
c. Hospital Fee – GHC200
d. Weekly taxi fare to the hospital for two months – GHC160
(9) The Plaintiff avers that as a result of the accident, she was unable to work for two months leading to a loss of income of
GHC4,000 over the period.
(10) The plaintiff submits that she has been unable to receive reimbursement from the defendants and appeals to this
Honourable Court to see that she receives justice.
WHEREFORE the Plaintiff claims against the defendant jointly and severally as follows:
a. Compensation for the injuries
b. Special damages in the sum of GHC1,460
c. Loss of income in the sum of GHC4,000
Dated the 30th Day of December 2013

…………………………………………………
40
Page 56 of 159
Civil Procedure
AAA CHAMBERS
SOLICITORS FOR PLAINTIFFS
THE REGISTRAR
HIGH COURT
ACCRA
AND TO THE DEFENDANTS OR THEIR LEGAL REPRESENTATIVES
Statement of Defence
Or.11 r2
A defendant who enters appearance must file an SOD within 14 days after the time limited for appearance 41.
The SOD contains material facts which a party seeks to depend on to defend an action against him.
Or.11 r2(2) provides that where D is served with a writ and he enters appearance and P files for summary
judgment, the 14 days within which D is to file his SOD does not apply until the application for summary
judgment is heard by the court. The 14 days required to serve a defence will start running after the court
has given a decision on the application for summary judgment and has given leave to D to file the SOD.
If D enters conditional appearance, P cannot apply for summary judgment or take any step until after 14 days.
Admissions & Denials

Or.11 r13
A defendant in answering allegations in an SOC may admit some or all the facts in the claim, or may deny
the facts contained in the claim.
The general rule is that, facts that are not denied or admitted specifically are assumed to have been admitted.
Thus, if D doesn’t deny specifically an allegation, it will be deemed that he has admitted that fact – Or.11
r13(3). The denial or admission must be specific and not general. Where D denies a fact, it’s known as
‘traverse’.
Or.5 r7 however provides an exception for persons with disability not to 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/her own pleading.
P is at liberty to take judgment on the admitted facts without waiting for the determination of any other
question – Or.23 r6(2) 42.
41
Or.11 r2
42
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.
Page 57 of 159
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D must not make evasive denials but must answer substantive allegations e.g. in a claim for goods sold and
delivered, it’s an evasive denial for D to plead that he does not owe the amount; he must answer the claim
e.g.
a. He never ordered the goods
b. The goods were never delivered
c. The goods were not in conformity with his order
d. The goods were delivered to a wrong person or outside the time stipulated for delivery
In traversing a fact, D must deny or say that he does not admit the averment contained in a paragraph of
the SOC. Expressions like “D puts P to strict proof…” or without more, “D is not in a position to admit or deny a
fact” should be avoided.
D may however begin or end his SOD with what has come to be known as a general traverse e.g.
“SAVE AS HEREIN BEFORE/AFTER ADMITTED, THE DEFENDANT DENIES EVERY
ALLEGATION OF FACT CONTAINED IN THE SOC AS IF SAME WAS SET OUT IN
EXTENSO AND DENIED SERIATIM”.
Indeed the rules don’t allow the general traverse – Or.11 r13(3) – but in practice, it’s used to fill in gaps
especially where there has been a partial denial of facts.
In practice, the general traverse will be given effect where the allegations are answered partially, leaving
some unanswered. In such a situation, the general traverse as pleaded will be a supplement.
See:
Ansah v Busanga [1976] 2 GLR 488 43 on the issue of whether a general traverse contained in the appellant’s
SOD operated to put the onus of proof on the respondent, held, although it was necessary and desirable
for allegations of fact contained in an opponent's pleading, if not admitted, to be denied specifically, and
not evasively, nevertheless, a general traverse in proper form operated to put the matter at large and to put
the opponent to proof of those allegations of fact.
Brutuw v Aferiba [1982-83] GLR 464 plaintiff alleged that defendant obtained a judgment from the court
through fraud. It was also alleged that D committed perjury. The defendants’ SOD did not, however,
specifically deny the charge of perjury though it contained a general traverse. It was submitted by the
plaintiff's counsel that failure to deny the charge of perjury meant an admission of it. Held; it was incumbent
on the plaintiff not only to particularise that fraud with exactness but also to establish that allegation by the
strict proof such a charge required.
General Defences
1. Confession & Avoidance
43
A general traverse in proper form operates to put the matter at large and to put the opponent to proof of those allegations of fact.
Page 58 of 159
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D may admit the facts of P’s claim and then in turn allege fresh facts which give an answer to the claim.
E.g. frustration, inevitable accident, act of God, act of State, contributory negligence, laches and
acquiescence, etc.
D may also admit the facts set out by P and raise a point of law which absolves him from liability. E.g.
if the matter is res judicata or statute barred.
CFAO v Archibold [1964] GLR 718 was an intellectual property case and the SOD denied all
allegations of fact contained in the SOC. Leave was sought to raise the additional plea of statute of
limitation but no reply was filed by plaintiff. On the question of whether that constituted a confession
and avoidance, held; the plea introduced by amendment that the action was statute-barred was merely
to deny the allegation and put it in issue. Issues were thus merely joined.
2. Set-off 44
In an action for recovery of liquidated claim for money, if D has a cross claim for a sum of money,
whether ascertained or not, it may be included in a defence as a set-off against P’s claim – Or.11 r17.
The right of set-off must exist between the same parties and in the same rights and capacity. E.g. D
cannot set off a debt due to him by P personally against a claim made by P in a representative capacity.
A set-off must relate to the sum of money claimed upon the writ and must, if established, extinguish
or reduce the amount claimed.
It must be specifically pleaded in the SOD.
Set-off is not a counterclaim, it’s a defence [because it cannot be prosecuted independently].
3. Tender before action
It’s provided for in Or.11 r16. If D desires to rely on this defence, he must, where D tendered the
amount owed and P rejected it, plead the fact of tender before action, and state the fact of payment
and amount in the defence.
The money may also be paid into court with the SOD. Alternatively notice of the payment may be
given to P.
This defence is a common law defence and applies to liquidated claims. It’s a good defence to actions
to recover liquidated claims. It cannot be pleaded as a defence to a claim for unliquidated damage.
4. Plea in possession
It’s only a defence iro cases involving immovable property i.e. land and landed property.
44
Or.11 r17
Page 59 of 159
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Where both parties acquired property from the ‘same’ person authorised to alienate the property, the
party who has engaged in acts of possession will be held to be the ‘owner’ of the property. Plead the
acts of possession exercised on the land.
It is not taken iro statute barred issues.
Page 60 of 159
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Sample SOD:

SUIT
NO……………
ALICE MENSAH PLAINTIFF

House No. K.O. 119
VRS
OPANIN YAW KYEREMEH
House No. 42 Blk A
Tekyiman
DEFENDANTS
MORO ISSAH
House No. T.Z.
Techiman Zongo
STATEMENT OF DEFENCE
(1) Paragraphs 1, 2 and 3 of the statement of claim are admitted.
(2) Save that the accident occurred on 27th January 2013, paragraph 4 of the statement of claim is admitted.
(3) In further answer to paragraph 2, defendant says the accident occurred on 30th January, 2013.
(4) Paragraph 5 of the statement of claim is admitted.
(5) Save that the bus was involved in an accident, paragraph 6 of the statement of claim is denied.
(6) Defendant says that the accident was not caused by the negligence of first defendant and that first defendant
was driving within the speed limit for Nkenkanso at the time of the accident.
(7) Defendant further avers that defendant is an experienced driver with over 27 years training and has never had
an accident and thus drove the bus with due care and skill and that the accident was caused by the
malfunctioning of the traffic light at the Nkenkanso junction.
(8) Paragraphs 7, 8, 9 and 10 of the statement of claim are denied.
(9) SAVEAS HEREIN BEFORE EXPRESSLY ADMITTED, THE DEFENDANT DENIES EACH AND
EVERY MATERIAL ALLEGATION OF FACT CONTAINED IN THE STATEMENT OF CLAIM AS
IF THE SAME WERE SET OUT IN EXTENSO AND DENIED SERIATIM.
Dated the 4th Day of January 2014
…………………………………………………
LAWWOMAN & CO
SOLICITORS FOR DEFENDANTS
THE REGISTRAR
HIGH COURT
ACCRA
AND TO THE PLAINTIFFS OR THEIR LEGAL REPRESENTATIVES
45
Page 61 of 159
Civil Procedure

KUMASI – A.D. 2012
SUIT NO……
Mrs. Priscilla Mensah PLAINTIFF
House No. F11
Kwadaso Estate, Kumasi
Vrs.
1. Kwame Owusu DEFENDANTS

Patasi, Kumasi
2. John Amofah
Hse. No. B.A.4, Bantama
AND COUNTERCLAIM
STATEMENT OF DEFENCE
1. SAVE AS HEREINAFTER EXPRESSLY ADMITTED, DEFENDANTS DENY EACH AND EVERY

PARAGRAPH CONTAINED IN PLAINTIFF’S STATEMENT OF CLAIM AS IF SAME WERE SET
OUT IN EXTENSO AND DENIED SERIATIM.
2. Paragraphs 1, 2, 3, 4, 5, 6 and 7 of plaintiff’s statement of claim are admitted.
3. Paragraph 8 and 9 of plaintiff’s statement of claim are denied and defendant says that the late David Mensah
did not gift the said House No. F11 Kwadaso Estate, Kumasi to the plaintiff.
4. Defendants denies paragraphs 10 and 11 of plaintiff’s statement of claim and avers that the signatures of the
deceased in the deed of assignment, the statutory declaration and the letters purported to have been written
by the deceased were forged.
PARTICULARS OF FORGERY
a. The deceased was not within the jurisdiction from 1980 to 1983 and could not have signed the deed
in 1982.
5. Defendants deny paragraph 12 of plaintiff’s statement of claim and says that the deceased had testamentary
capacity over the said house because he did not gift the house to the plaintiff.
6. Defendant denies paragraph 13 of plaintiff’s statement of claim.
7. Defendant denies paragraph 14 of plaintiff’s statement of claim and says that plaintiff is not entitled to any of
the reliefs sought in the statement of claim.
COUNTERCLAIM
8. WHEREFORE defendant counterclaims against the plaintiff as follows:
a. Declaration of title to House No. F.11 Kwadaso Estate, Kumasi;
b. Recovery of possession of the said house;
c. Perpetual injunction restraining the plaintiff from claiming ownership of the said house;
d. Declaration that the deed is a forgery and therefore void and of no legal effect;
e. Any other reliefs that the court deems meet.
DATED IN ACCRA this 24th day of January, 2012.

…………………………….
Solicitor for Defendants
The Registrar
High Court
Kumasi
AND TO the above named plaintiff or her solicitor whose address for service is Nyaho Chambers, Kumasi.
Page 62 of 159
Civil Procedure
Rule Against Departure

Or.11 r10
A party cannot depart from averments in their pleadings. Previous pleadings can only be amended with
leave of the court.
The rule in Abowaba v Adeshina is that where unpleaded facts are allowed into the record without
objection, so long as those facts are not inadmissible, the court is bound to consider the fact in evidence.
Akuffo Addo v Catheline [1992] 1 GLR 377 expands the rule in Abowaba v Adeshina that if evidence
which is inadmissible goes on record without objection, the court on its own must exclude it 46.
See:
• Asamoah v Servordzie [1987-88] 1 GLR 67, SC
• Dam v Addo [1962] 2 GLR 200 The appellant sued the respondents in the High Court, Kumasi, for
accounts and for money due and owing to him. Simpson, J. after due consideration of the respective
cases of the parties, resolved the issues as set out in the summons for directions and thereby rejected
the respondents' case. He did not however give judgment for the appellant but gave judgment for the
respondents, basing himself on details on which no evidence had been adduced since they did not form
part of the respondents' case as disclosed by the pleadings. Held inter alia; a court must not substitute a case
proprio motu nor accept a case contrary to or inconsistent with what the party himself puts forward whether he is a plaintiff
or defendant. 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 a
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.
• Hanna Assi (no.2) v GIHOC Refrigeration [2007-2008] 1 SCGLR 16 sought to overturn Dam v Addo where
the SC held that once counterclaim can be deduced from proceedings, the court will award counterclaim. GIHOC sued
Hanna Assi for declaration of title and recovery of possession to the disputed land. Applicant did not
counterclaim for the same reliefs. The ordinary bench of the SC found as a fact that GIHOC was a
licensee to Hanna Assi and that they had challenged the licensor’s title. However, by a majority decision,
it did not grant him those remedies because he did not counterclaim for them and thereby affirmed the
decision of the CA which overturned the decision of the HC. Applicant evoked the review jurisdiction
of the SC in the instant application. Held inter alia; the right of a defendant to counter-invoke the
jurisdiction of the court by cross-action has been transformed into a right to do so by counterclaim.
This is usually part of the SOD. The cross-action thus becomes mere pleadings to the writ and in this
character has lost the original venom of a cross-action. consequently, the rules allow for a court to, at
any time and on such terms as to costs as it may think just, amend any defect or error in any proceedings
and all necessary amendments shall be made for the purpose of determining the real questions in
controversy. Since the absence of a counterclaim can in an appropriate case be cured by way of an
amendment, it is erroneous to hold that a court in its absence lacks jurisdiction to grant appropriate
46
NRCD 323, s8
Page 63 of 159
Civil Procedure
remedies to the defendant. The power of amendment enables the court, even where the defendant has
not applied for such amendment, to grant relief to a defendant who has not counterclaimed.
• GIHOC Refrigeration Household Products Ltd (no. 1) v Hanna Assi [2007-2008] 1 SCGLR 1 GIHOC
instituted the instant action for inter alia a declaration that it was the owner in possession of the
property and an injunction restraining R from interfering with the property. The trial court held that
GIHOC was a licensee of the government and was not in adverse possession. The CA affirmed the
judgment of the HC but based its decision on the ground GIHOC was rather a licensee of R and so its
occupation of the disputed property didn’t constitute adverse possession. The SC affirmed the decision
of the CA. GIHOC brought the instant application for review on the ground that since R had pleaded
in the proceedings before the HC that GIHOC was a licensee of the government, that constituted an
admission that GIHOC had not been in possession of the land as a licensee of R. The decision of the
SC was therefore contrary to that admission. The failure of the SC to consider the question whether
the defence was open to R constituted an error of law which went to jurisdiction of the SC and
occasioned a gross miscarriage of justice which justifies the grant for review. Held inter alia; generally,
a court cannot base its judgment on a case that is not open to a party on the pleadings. However, the
record of proceedings in the instant case shows that GIHOC was given further opportunity to be heard
on the issue of it being a licensee and the parties were ordered to file further written submissions on
the issue of licence. GIHOC didn’t apply to set that order aside but adopted it. Pleadings were the
preserve of parties and they could, by consent, confer jurisdiction on the court to consider any issue
relevant to the case. Since they had done so, none of them could complain. Also, by extensively arguing
the issue of licence on the merits before the SC, the applicant had consented to the presentation of the
respondent that the applicant was his license and not a licensee of the government. A court is entitled
to apply the law to the facts of the case even if the parties are unaware of it. Thus while the court is
bound by the parties’ evidence, it is not bound by their legal misconceptions arising therefrom. The
legal misconception of R could thus not avail applicant.
Reply
P may in a reply deny all averments in the SOD by joining issues on the SOD – Or.11 r14(2)(b). When P
says that “P joins issue with D” it means P is denying all the facts in the SOD.
Where no reply is filed, it means issues to the SOD are joined automatically –Or.11 r14(1). The fact that P
doesn’t file a reply to an SOD doesn’t mean that P has admitted facts contained in the SOD.
Where P seeks to file a reply, it must be filed before the expiration of 7 days after the service of the
defence 47.
Read:
Agbosu v Kotey [2003-2004] 1 SCGLR 420 Ashalley Botwe lands case. It was held by the SC that the failure
of a plaintiff to file a formal reply to a statement of defence did not necessarily amount to an admission of
the facts pleaded in the statement of defence and consequently, it was also not necessarily fatal to a plaintiff’s
case. The legal position was that a reply was not even necessary if its sole purpose was to deny the facts
47
Or.11 r3
Page 64 of 159
Civil Procedure
alleged in the defence, for in its absence, there was an implied joinder of issue on the defence and all the
material allegations of fact in the defence were deemed denied. However, where the defence included a
counterclaim, a reply would become necessary for the purpose of embodying the defence to the
counterclaim in the reply. In the instant case, it was clear from the pleadings, the nature of the evidence led
at the trial, as well as the line of cross-examination that each rival claimant was out to deny his opponent’s
claim to ownership and mode of acquisition. Under the circumstances, the plaintiffs were not enjoined to
file a reply. Their failure to deliver a reply was therefore not fatal to their case as was wrongly held by the
CA.
CFAO v Archibold (supra) – When a reply is not filed to an averment in the SOD, the trial court is not
entitled to consider a matter raised in the final address for the first time. R’s submission in his final address
that the action was not statute-barred should have been presented in the form of a reply to the SOD and it
was not competent for the trial court to have considered the matter at all.
November 6, 2013
COUNTERCLAIM
Or.12
It is a cross-action i.e. a fresh action within a pending action.
Under CI 47, Or.12, a defendant who alleges that he has any claim or is entitled to any relief or remedy
against a plaintiff in an action iro any matter may, instead of bringing a fresh or a separate action, make a
counterclaim iro that matter.
D shall add the counterclaim to the SOD and not file it separately; normally the pleading is headed “Statement
of Defence And Counterclaim”. In Progressive Import Ltd v Mueller [1991] 1 GLR 94 the court refused to set
aside a summary judgment in order to allow the defendant-judgment debtor to file a counterclaim because
a counterclaim must be filed/prosecuted within the action commenced by the plaintiff.
A counterclaim must be a claim for which D could have sued P in a fresh action.
It must be a claim for which the court in which P has commenced his action has jurisdiction.
A plaintiff on whom a defendant serves a counterclaim shall, if P intends to defend it, file a defence to the
counterclaim and this must be done within 14 days after the service on the plaintiff of the counterclaim i.e.
a defence to the counterclaim shall be served on the defendant within 14 days.
Proceedings in Counterclaim
Or.12 r4
A counterclaim may be proceeded with although judgment is given for the plaintiff in the action or the
action is stayed, discontinued or dismissed.
Page 65 of 159
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Where D establishes a counterclaim against the claim proved by P and there is a balance ifo one of the
parties, the court may give judgment for the balance.
Counterclaim against Additional Parties
If 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 iro the subject matter of the
counterclaim, or claims against such person any relief relating to or connected to the original subject matter
of the action, the defendant may join that other person as a party against whom the counterclaim is made
– Or.12 r5.
If D joins a person as a party against whom D makes a counterclaim, D shall add that person’s name to the
title of the action and serve that person a copy of the counterclaim. E.g.
Kofi Mensah (Plaintiff)

v
Yaw Manu (Defendant)
and
Kwasi Oppong (Defendant to Counterclaim)
and
Konadu Blay (Defendant to Counterclaim by Kwasi Oppong)
The counterclaim is to be served on the person already a party within the time limited for the SOD i.e. 14
days.
Where the counterclaim is to be served on a person not already a party to the action, a copy of the writ and
the pleadings served in the action shall be served with the counterclaim.
The rules on the service of processes, including the rules relating to default of appearance and default of
defence, shall apply to a counterclaim and proceedings arising therefrom as if
a. the counterclaim were a writ and SOC or
b. the party making the counterclaim were a plaintiff and the party against whom it was made a
defendant in that action.
IOW all the rules in Orders 9, 10 and 11 apply equally, with the necessary modifications to a counterclaim.
Where the counterclaim is to be served on a person not already a party, the counterclaim shall be endorsed
with a notice addressed to that person stating:
a. the effect of Or.9 rr1&2 iro entry of appearance
b. the registry at which that person shall file his appearance to the counterclaim
A person who is not already a party in the action shall become a party to it from the time of service of the
counterclaim on him and shall file appearance to the counterclaim and also a defence to the counterclaim.
Separate Trials
Page 66 of 159
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Or.12 r7
If a counterclaim joins two or more causes of action and it appears to the court that the joinder of the
causes of action may embarrass or delay the trial, the court may order separate trials for the different causes
of action. If it appears, on an application of any party against whom a counterclaim is made, that the subject
matter of the counterclaim for any reason ought to be disposed of by a separate action, the court may order
the counterclaim to be struck out or be tried separately.
November 11. 2013
DEFAULT OF DEFENCE
Or.13
This is where D fails to file an SOD within the stipulated time or where P fails to file a defence to a
counterclaim.
Or.7 r12(4) provides that there must be proof of service of the pleadings before a default application can
be made to the court. Where there’s default of defence or default of defence to a counterclaim, the
application for default judgment is on notice supported by affidavit proving due service.
Liquidated Claims
With liquidated claims, final judgment could be taken by P or D, depending on the nature of the pleading
in default, and costs.
Claim in Detinue
If the claim is in detinue, judgment may be taken for
a. the delivery of the goods or their assessed value and costs.
b. the delivery of the goods alone and costs
c. the value of the goods alone and costs may also be taken.
Immovable Property
Where the claim is for immovable property, apply to enter judgment for possession of the immovable
property and costs [if there’s more than one D, only the one who doesn’t enter appearance and file defence
may be proceeded against and where default judgment is given, it can only be enforced unless and until
judgment is obtained against all the defendants; this rule however doesn’t apply to mortgages]. The rule
that judgment must be obtained against all the defendants before possession can be recovered doesn’t apply
to mortgages.
Mixed Claimed
Enter judgment for P as he will be entitled to under the rules for each type of claim.
Other Claims
Page 67 of 159
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P shall apply for judgment, and upon hearing the application, the court may give such judgment as P
appears entitled to by the SOC.
If there’s more than one D and some don’t file a defence, then P may, if the claim against D in default is
severable from the claim against the other Ds, judgment will still be entered and P will proceed against the
other Ds [i.e. the case will continue against the Ds who have entered appearance] or set down the action
on a motion for judgment against the D in default at the time the action is set down for trial.
Where there is default of counterclaim, the counterclaim is treated as a SOC and rules iro default of
pleadings is applied - Or.13 r7.
Specific Claims
1. Moneylenders Action
P has to seek leave of the court before he can take judgment in default of defence. The application for
leave shall be on notice to D.
Upon hearing the application, the court may exercise its discretion under the Moneylenders Ordinance
(Cap 176) and grant leave to P to enter final judgment for the whole or part of the amount. The court
may also give such other directions as the case may deem fit.
2. Maritime Action – Or.62 r15(4)

Where no appearance is filed within the time limited for appearance, then on the expiration of 14 days
after the service of the writ, and upon filing of an affidavit proving due service of the writ + SOC, P
may apply for judgment in default of pleadings.
Where D fails to file a defence, P may apply for judgment upon filing an affidavit that no defence has
been served on P by D and the affidavit shall verify the facts on which the claim is based.
3. Probate Action – Or.66

No default judgment shall be taken in a probate action. After D’s failure to file pleadings, P may set
down the case for hearing/trial.
Setting Aside Default Judgment
The court may, on application by a party affected by such default judgment, set aside or vary any such
judgment on such terms as it thinks fit. Thus, by Or. 13 r8, it’s only a party affected by default judgment
who can apply to set it aside.
Or.62 r15 provides that a court may set aside or vary any judgment entered under that rule [iro maritime
actions].
Application to set aside judgment in default of pleadings is not time bound. It must however be filed within
a reasonable time.
Page 68 of 159
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Commencement of Actions
Action Timeline Default
Issue writ of summons + SOC
Enter appearance Within 8 days of service Judgment in default of
appearance
Enter conditional appearance Within 8 days of service Judgment in default of
appearance
Move court to set aside writ or its
service within 14 days of entering
conditional appearance
File SOD + Counterclaim Within 14 days of time limited Judgment in default of defence
for appearance
Reply to SOD Within 7 days of service of SOD Joinder of issue
Reply to counterclaim Within 14 days of service of Judgment in default of pleadings

SOD
Pleadings close
Counterclaim v Setoff
Counterclaim Setoff
It’s can be a separate action independent of the It cannot ground a separate action
current action where it’s being claimed
It’s not confined to only monetary transactions It’s confined to only monetary transactions
Claim can be more than what plaintiff is praying The money must be less or equal to the amount
for being claimed by plaintiff. If it’s more, a
counterclaim must be set up
It is not a defence It’s a defence
Only arises when issues emanate from the same It need not emanate from the same transaction
transaction
Plaintiff should be liable in the same capacity iro all Ditto

the causes of action
Court may order separate trial to prosecute a Court need not order separate trial iro a setoff
counterclaim
Page 69 of 159
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SUMMARY JUDGMENT
Or.14
When a defendant has no defence, application for summary judgment is an expeditious way of getting
judgment without going to trial. The purpose of Or.14 is to enable P who has served a writ + SOC on D
to obtain judgment without a trial, provided he can prove his claim by affidavit. The judgment may be for
the entire claim or part of the claim as endorsed on the writ of summons.
Conditions:
- P must serve writ + SOC on D
- D must have entered appearance
- D might have filed a defence or not
Atlanta Timber Co v Victoria Timber Co. [1962] 1 GLR 221 P applied for summary judgment against D
and supported it with an affidavit. D had filed a defence a month prior to the application and opposed it.
Held; filing a defence to an action does not preclude the court from entertaining an application for summary
judgment.
Method of Application
Application is made by motion on notice setting out the reliefs sought by P. The motion shall be supported
by affidavit verifying 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 to the claim or part of it, or no defence except as to the amount
of damages claimed, if any.
The motion and supporting affidavit with other exhibits to be relied upon should be served on D not less
than 4 days before the day named in the motion for hearing.
Yartel Boat Building Co. v Annan [1991] 2 GLR 11 P issued a writ for the balance of the contract price for
work done for D, an SOC was not issued with the writ. On the same day he filed the writ, he applied for
summary judgment against D and attached an affidavit setting out a detailed account of the debt. Both the
writ and the application for summary judgment were served on the defendant at the same time. Held inter
alia; the writ should have been served on D and D should have failed to enter appearance before the
application for summary judgment could be served on D. The procedure was set out by Kpegah J as follows:
(a) the defendant must have been served with a statement of claim;
(b) the defendant must have entered an appearance; and
(c) the affidavit in support of the application must not only depose to facts indicating that the
plaintiff’s claim was real and considerably unimpeachable but must also contain an averment that
the defendant had no defence to the action.
D may show cause 48 against the application by affidavit evidence or otherwise to the satisfaction of the
court i.e. why summary judgment should not be entered against him and he must show that he has a good
defence to the action on its merit. D’s affidavit must disclose facts that may be deemed sufficient to entitle
48
Or.14 r3
Page 70 of 159
Civil Procedure
him to defend the action generally and also show whether the defence goes to the whole or part of the
amount claimed. Where D shows cause, the Court may order D or any person purporting to act in its
capacity to attend and be examined on oath or to produce any document if it appears to the Court that
special circumstances make that desirable.
Afodofe v Central Insurance Co [1992] 2 GLR 207 P obtained judgment against D, the insured of the
respondents, in a running down action and instituted the current action to enforce the judgment. R failed
to enter appearance and P applied for summary judgment. R had however filed a defence that the judgment
was a nullity because they had not been served with hearing notices. Counsel for applicant submitted that
since R had not submitted an affidavit in opposition, the court should not look at their SOD when
considering the application for summary judgment. Held inter alia; Or. 14 r3(1) of L.I. 1129 (now Or.14 r3(1)
of CI 47) 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 D 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. Application dismissed.
Yirenkyi v Tormekpey [1987-88] 1 GLR 533, CA P bought a second hand truck from D and sued him for
inter alia alleged breach of contract and warranty. D entered appearance and filed a defence stating inter
alia that although he had accepted the money, P had brought his own mechanics to inspect the truck before
buying it. P however applied for summary judgment on the basis that the admission of D that he accepted
the money showed that he had no reasonable defence to the action. Held; D’s defence raised triable issues
as to whether or not, for instance, P himself or by his agent inspected the vehicle before the price was paid.
At any rate the defendant's admission that the price of the turck had been paid could not be considered in
isolation because it was inextricably bound up with the contract of sale and to demand its refund there had
to be proof either on admission or upon legally receivable evidence that the contract had been breached.
In the absence of any of those matters the application for summary was incompetent.
Outcome of Application 49
On hearing the application, the court may
1. give such judgment on the relevant claim or part of the claim unless D is able to show that there is an
issue in dispute which needs to be tried 50.
2. give D leave to defend the action with respect to the claim or part of it either unconditionally or on
terms, such as the provision of security.
49
Or.14 r5
50
Jonah v Duodu – CA felt there were issues to be tried hence reversed order for summary judgment granted by HC
Page 71 of 159
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3. dismiss the application with costs to be paid by P if it appears that the case was not within Or.14 i.e. P
knew that D would rely on a contentious issue which would entitle D to an unconditional leave to
defend the action.
The court may, subject to conditions, stay the execution of a judgment given against D under Or.14 until
after the trial of any counterclaim raised by D.
When an application for summary judgment is granted, it’s a final judgment; however when it’s refused, it becomes
interlocutory in nature because the parties shall proceed to trial
Setting Aside Summary Judgment 51

Or.14 r9
A judgment entered against D who fails to appear at the hearing of the application under Or.14 may be set
aside or varied by the court on terms as considered just upon an application brought within 14 days of the
service on D of the notice of judgment.
Atlanta Timber Co v Victoria Timber Co. [1962] 1 GLR 221 after hearing arguments, the court held that
there is at least a triable issue of fact and also it did not think it was advisable to decide the matter solely on
the affidavit evidence of P; application dismissed.
The application to set aside summary judgment should be made within 14 days of the receipt of notice of judgment.
Summary Judgment on Counterclaim
Where P is served with a counterclaim, D at any time after service of the counterclaim may apply for
summary judgment against P on grounds that P has no defence to a claim made in a counterclaim or a
particular portion of the claim – Or.14 r10.
Right to Proceed to Trial
Where judgment is taken under Or.14 for a claim or a particular part of a claim or counterclaim, the action
may proceed to trial as regards any other claim not included in the judgment obtained summarily.
51
Or.14 r9
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Excluded Actions 52
Certain actions are excluded from summary judgment. They include

• probate actions
• matrimonial causes
• maritime actions
• action for defamation
• action for seduction
• action for breach of promise to marry
• action for malicious prosecution
• claim based on fraud
Appeal
A judgment obtained summarily can only be set aside or varied by a D who fails to appear at the hearing to
the application. A defendant who appears at the hearing and is dissatisfied with the judgment can only
appeal the judgment.
Where D is served with an application and he fails to file any affidavit or otherwise file any process to show
cause why judgment should not be entered against him, he cannot set aside the judgment on grounds that
he is dissatisfied. He can only appeal.
The procedure under Or.14 is quite different from judgment on admission.

Under Or. 14, P can apply for judgment when no defence has been filed.
Summary Judgment v Interlocutory Judgment

Summary Judgment Interlocutory Judgment
When it’s granted it’s a final judgment but when it’s It’s not a final judgment
denied it’s interlocutory in nature
It’s applied for when the defendant has no defence It’s not necessarily applied for because D has no
to the claim defence e.g. default of pleadings (even if there’s an
unimpeachable defence available)
Entry of appearance by defendant is a precondition Defendant need not enter appearance

to it being granted
Redress for dissatisfaction with the decision of the Redress is not always by appeal and may be made
court may only be achieved through an appeal to a to the same court that made the order/decision
higher court where D attended the hearing for
summary judgment
52
Or.14 r12
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Application to set it aside must be made within 14 Some interlocutory judgments don’t have timelines
days of service of the notice of judgment on the for being set aside e.g. judgment in default of
defendant but it’s only available to a defendant appearance has no time limited for setting it aside
who did not attend the hearing
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Sample Application for Summary Judgment

LAND DIVISION
ACCRA – A.D. 2005
Suit no 3/14
Akrasi Sarpong
Part 1 Law Student PLAINTIFF/APPLICANT
GIMPA-Accra
Ashia Baffour
Part 1 Law Student DEFENDANT/RESPONDENT
GIMPA Accra
MOTION ON NOTICE FOR SUMMARY JUDGMENT
TAKE NOTICE that this Honourable Court will be moved by counsel for and on behalf of the
Plaintiff/Applicant herein on an application for an summary judgment against the Defendant/Applicant
for the following reliefs:
(a) Recovery of the sum of GHC20,000

(b) Interest on the GHC20,000
(c) Costs
On the grounds stated in the accompanying affidavit and for such further order(s) as this Honourable
Court may deem meet.
COURT TO BE MOVED at …………. the …….day of ………………. 2014 at 9 o’clock in the

forenoon or so soon thereafter as counsel for and on behalf of the Plaintiff/Applicant shall be heard.
DATED THE 22ND DAY OF JANUARY 2005
……………………………………..
KOFI LAWMAN & CO
SOLICITORS FOR PLAINTIFF
THE REGISTRAR
HIGH COURT
ACCRA
AND TO THE ABOVE-NAMED DEFENDANT OR HIS COUNSEL
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January 8, 2014
PARTIES & CAUSES OF ACTION
Joinder of Causes of Action
By Or.4 r1, any person may begin and carry on proceedings in person or through a lawyer. A body corporate
shall however not begin or carry on proceedings except by a lawyer unless permitted by an express provision
of an enactment. A next friend [P] or a guardian ad litem [D] of a person with disability shall act by a lawyer.
A person with disability sues through a next friend and defends an action through a guardian ad litem.
Lord Esher MR in Read v Brown (1888) 22 QBD 128 at 131 endorsed the definition of ‘cause of action’ in
Cooke v Gill which states that a cause of action is every fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary
to prove each fact, but every fact which is necessary to be proved.
Per Diplock LJ in Letang v Cooper [1965] 1 QB 232 at 242 a cause of action is simply a factual situation the
existence of which entitles one person to obtain from the court a remedy against another person.
P(s) must show in the SOC that there is a cause of action in each P and a liability on the part of each person
made a D to the action 53. If any of the Ps is likely to put a conflicting claim or case to that of the rest, that
person should not be added as a P. If any person made a D has a good ground for a counterclaim against
any of the Ps in the action, this D should not be joined because his counterclaim may embarrass the other
Ps or it may delay or prolong the trial.
If a person sought to be joined as a P is a man of straw, that person should not be added because where
joint liability is decreed for costs or other financial obligations, the indigent P cannot pay and execution will
be levied against the other Ps.
Or.4 r2 provides two situations for which a P can join two or more causes of action on a writ.
1. P can join several and different causes of action against the same D(s) if it is alleged that D is liable on
all the causes of action.
2. P can join on the same writ a cause of action against an executor or administrator or customary
successor in his representative capacity with an action in his personal capacity, provided both actions
arise from the same estate 54.
Apart from the two scenarios above, the rules provide that in any other case where P seeks to join two or
more causes of action, that P must apply for leave by an ex parte application supported by an affidavit
praying the court to grant it leave to join those causes of action on the writ. Leave must be granted before
the writ is issued.
53
Morkor v Kuma
54
See also Or.12 r6(1)(b) for similar provision iro counterclaim
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The rationale for joining causes of action is to enable the court try all disputes arising between parties in
one action or proceedings as much as practicable. This is to avoid multiplicity of suits.
Claims such as damages for trespass, perpetual injunction and order for accounts are not different causes of action but are
ancillary reliefs and may be added to substantive claims such as recovery of possession.
Joinder of causes of action is not the same as consolidation of suits. Consolidation involves different suits
pending in the court between the same parties or their agents which often cover the same subject matter
and seek the same reliefs, in which case the suits are tried together.
Joinder of Parties
Or.4 r3
Generally, two or more persons may be joined in one suit as Ps or Ds without leave of court where, if
separate actions were brought by or against each of them,
1. some common question of law or fact would arise in the action and
2. the reliefs claimed in those actions, whether jointly55, severally 56 57 or in the alternative 58, relate to
or arise out of the same transaction or series of transactions.
Examples
1. Where a road is constructed through land owned by different people, the owners of the land can bring
one writ against the state for compensation.
2. Where several employees are dismissed on different dates but on the same ground, the dismissed
employees can issue one writ.
3. Where persons are injured by the negligence of two drivers, the injured passengers may bring an action
in one writ against the two drivers and their owners.
In joining parties, it’s not necessary for the separate cases to be identical before joinder.
E.g. in a motor vehicle accident, passengers may suffer different degrees of injuries but the parties can be joined.
What’s important is that there is a common question of law or fact to be determined between the parties i.e. whether or
not D was negligent in causing the accident, whether Ps were passengers, whether the accident took place, etc.
55
judgment against one person applies to the other
56
each person is liable for his own wrong, judgment against one doesn’t apply to the other
57
Where people are sued jointly and severally, judgment can be executed against any of the parties
58
Order applies to one or the other
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Or.4 r3(2) provides for a situation where several persons who have a joint claim have to sue in one writ and
one of such persons is reluctant to join the suit, that reluctant person should be made a defendant.
In the case of In Re Bill (decd) Abeka v Tetterley [2007 – 2008] SCGLR 66 – the SC held that the contention
that administrators must necessarily act together and on the same side as parties to an action in all situations,
whatever practical and serious problems may be entailed thereby, appears so irrational that as a common
law rule it cannot hold sway. The maxim cessat ratione cessat lex ipsa would control such an absurdity.
Aegis Shipping Co v Volta Lines Ltd [1973] 1 GLR 438 Applicant applied to be joined as a defendant to
the suit and the application was refused. Applicant then asked the court to review its ruling but no new
matter was disclosed on the applicant’s affidavit in support. Held inter alia; no matter the kind of
construction which is put on the said rule [iro joinder], whether wider or narrower, it is abundantly clear
that the court has absolute discretion in any given case to determine whether having regard to the state of
the pleadings and the issues raised, the intervener is a person who ought to have been joined, or he is a
person whose presence would enable the court, effectually and completely, to decide the issues raised
between the parties in the cause or matter; and that all these authorities merely set out principles on which
that discretion can be exercised. Joinder is, after all, a matter of discretion for the court and even if it had
been shown that the intervener was a necessary party within the rule, [the court] would still have refused to
join the said intervener, since the action as it was then constituted could be well and properly contested by
the parties.
Montero & Ano v Redco Ltd & Ano [1984-86] 1 GLR 710 P sued Ds for inter alia an order restraining D
from taking decisions contrary to the company’s Regulations. The HC refused the order for interim
injunction and also made an order joining BHC as a defendant to the action. In an interlocutory appeal
against the decision of the HC, P contended inter alia that the order joining BHC was wrong because it was
inapplicable in the circumstances. Held on the issue of joinder; the rules give a judge the discretion to join
any person whose presence before the court was necessary in order to enable the court to dispose of
effectually and completely, all matters in controversy in the cause or matter. Per Abban J.A., the BHC had
a considerable interest in Redco Ltd holding 60% shares while D2 owns 40%. If D2, with a lesser interest
considered itself a necessary party to the suit, there was no justification in denying the bank the opportunity
to be joined since its presence would enable the court to "effectually and completely" decide the issues
between the parties in the cause.
Or.4 r3(3)
Where an action is against a defendant who is jointly liable with another person, that other person need not
be made a defendant to the action [because judgment against the person is enforceable against the other person with joint
liability even if that person is not named in the action].
However, where persons are jointly liable under a contract and a relief is claimed against some but not all
of them in an action iro the contract, the court may on an application by any D order stay of proceedings
in the action until the other persons who are liable are added as defendants [because the plaintiff cannot pick and
choose who to go after where the liability is joint, thus it will be unfair to the named defendants].
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Where two or more persons are joined as defendants, it’s not a requirement that every D should be
interested in all the reliefs claimed in the writ or as to every cause of action included in the writ. E.g. A sells
B’s land wrongfully to C. B may sue A and C together but claiming against A declaration of title and against
C, recovery of possession and perpetual injunction.
Where Ds are sued severally and not jointly, judgment against one of such Ds does not operate as a bar to the action
against the others.
If two or more persons have coterminous interest in a property, it’s not necessary to join all as defendants. A judgment
against one will bind the others whose interests are coterminous with persons against whom judgment has been entered.
E.g. a judgment against a grantee will bind his grantor and a judgment against a purchaser will bind his vendor.
Nkum v Andor [1959] GLR 358 P was held to be estopped per rem judicatam from maintaining his claim
for recovery of possession because his predecessor gave evidence in support of a relative who lost an action
against D iro the same disputed land, and such judgment was binding on him.
Akwei v Cofie [1952] 14 WACA 140 is authority for the proposition that if a person is content to stand by
and see his battle fought by somebody else in the same interest, he is bound by the result, and should not
be allowed to re-open the case.
January 13, 2014
Outcome of Joinder of Cause of Action on Parties

Or.4 r4
If it appears to the court that the joinder of causes of action or of parties may embarrass or delay the trial
or is otherwise inconvenient, the court may do any of the following:
(a) order separate trials;

(b) confine the action to some of the causes of action and exclude others
(c) order P to select or elect which causes of action should be proceeded with;
(d) order which P shall remain a P and who shall cease to a P;
(e) order a D to be struck out so as not to embarrass the D or cause the D any expense by being
required to attend proceedings in which the D has no interest – Morkor v Kuma;
(f) make such order as may be just.
Or.33 r4(2) – in an action different questions or issues may be ordered 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.
Or.31 r2 – where 2 or more causes are pending in the same court and it appears to the court that some
common question of law or facts arises in all of them, or that the rights to relief claimed are iro the same
transaction(s), or that for some other reason it’s desirable to make an order under this rule, the court may
- order those cause or matters to be consolidated on such terms as it considers just, or
- order them to be tried at the same time or one immediately after another, or
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- order any of them to be stayed until the determination of any other of them.
Misjoinder & Non-joinder

Or.4 r 5
No proceeding or matter shall be defeated by reason only of misjoinder or non-joinder of any party. In
Ampratwum Manufacturing Co v DIC [2009] SCGLR 692 the SC held that the CA was wrong to have
given a judgment that sought to defeat the entire proceedings by reason of a misjoinder. It should have
gone ahead to exercise its power granted under Order 4 Rule 5(2) when it realized that the A-G was the
proper party to have been sued i.e. 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, and order any
person who ought to have been joined as a party or whose presence before the Court is necessary to be
added as a party.
The court is empowered to determine the issues in dispute in an action so far as they affect the rights and
interests of the persons who are parties to the action.
At any state of the proceedings, the court may, on such just terms, either on its own motion or on
application by a party order the following:
a. any person who has been improperly made a party or who for any reason is no longer a necessary party
to cease to be a party (Morkor v Kuma);
b. 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 (Sai
v Tsuru – the SC upheld the decision of the CA allowing an appeal against the dismissal of an action
against some of the co-D’s by the trial court which based its decision on the fact that no claim had
been made against the co-Ds. The SC said that even though the main issues before the court were between the
plaintiff and the Defendant, the 1st and 3rd co-Defendants as grantees of the land stood to be affected by the final decision
of the court and to that extent, the court of Appeal rightly re-instated them as parties to the suit).
Jonah v Duodu [2003-2004] SCGLR 15 59 it was submitted by D that the real tenant of the disputed property
was Seel (Ghana) Ltd, and he was merely a resident licensee of the said company. Accordingly, although in
his SOD he admitted that he was the tenant, such admission was mistakenly made. Consequently, the
proper person to be sued was Seel Ghana Limited. The SC found that, ordinarily, it is open to a party at any
time, however belatedly, to dispute the propriety to his being made party to a suit. In this case, however, not only is the
Respondent the person in actual occupation of the premises, more significantly, he is the MD of the company alleged to be the
real tenant. Other than the Respondent who else would be in a better position to know whether or not he is the tenant of his
residence? The claim of mistake is totally unacceptable and we reject it. In any event, since one of the Appellant’s claims was
for ejectment, and the Respondent is the person in actual occupation of the property, he is, in the circumstances a proper party
to the suit.
No person shall be added as a P without his consent signified in writing 60.
59
Respondent held to be proper party since he’s in occupation although not the tenant
60
Or.4 r5(3)
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The rationale for misjoinder and non-joinder as well as joinder of cause of action is
to avoid multiplicity of suits
ensure justice and
ensure that all matters in dispute are completed
The test to be applied in joinder cases was stated in Gurtmer v Grant “where two parties are in dispute in an
action at law and the determination of the dispute would affect a third person in his legal right or pocket, in that he would be
bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as he thinks fit. By
so doing, the court achieves the object of the rule which enables all matters in dispute to be effectively and completely determined
and adjudicated upon between all those directly concerned in the outcome or both”.
See also:
Appenteng v Bank or West Africa [1961] GLR 81 61
An application for joinder would be granted where it becomes clear that the matter in issue would be
completely and effectively adjudicated upon. The court therefore has the power to join any party whose
presence is necessary for the determination of the issue.
Mode of Application
Or4 r5(4)
An application by a person to be added as a party shall be made

by motion on notice
supported by affidavit showing the person’s interest in the matter in dispute
before or at the trial
If the application is by a person already a party, the motion shall be on notice to the person sought to be
joined and the application must indicate his interest in the cause or matter.
Procedure pursuant to order

Or.4 r5(5) & (6)
When an order is made iro joinder or non-joinder of parties,

- the writ shall within 14 days after the making of the order, or such other period specified in the order,
be
o amended and
o endorsed with a reference to the order and
o the date on which the order for the amendment was made
- the person on whose application the order to make a party a defendant is made shall
61
A shareholder cannot sue for a wrong done to a company
Page 81 of 159
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o procure the order to be noted in the Cause Book by the Registrar and
o cause the amended writ to be served on the person ordered to be made a D. A defendant
so served, shall thereafter file appearance.
Effect of Joinder
Or.4 r7
A person ordered to be added as a party shall not become a party until the writ is amended in relation to
the person, and if the person is a D – the amended writ has been served on the person. This means that if
for instance at the time the amended writ is served on the new D the action is statute barred, the new D
can raise it as an automatic defence notwithstanding the fact that at the date the original writ was issued the
action was not stature barred.
Gandaa v Gandaa & Ors [1989-90] 2 GLR 58; the customary successor and administrator of a deceased
person’s estate sued an elder of the family on the grounds that he was interfering with the administration
of the estate. On their own application, the wife and children of the deceased were joined as co-defendants
by the CA. The joinder was without any conditions. No pleadings were filed on behalf of the co-Ds on the
ground that the SOD adequately covered the children. In the instant action, both parties sought to amend
their pleadings. Co-Ds applied to amend the SOD to restate the position of the children and to state the
interest of the wife. P sought to amend his pleadings to bring it in line with the evidence already led. He
had claimed in the SOC that a company he had set up to takeover one owned by the deceased owned
certain assets. On cross-examination however, he admitted that some of those assets actually belonged to
the old company. He therefore sought to amend the SOC accordingly. P contended that co-Ds had not
filed any pleadings thus there was nothing to amend. Also, none of the steps provided in respect of
procedure pursuant to joinder had been fulfilled. Consequently they were not properly before the court.
Co-Ds contended that the statutory conditions imposed by the law mandated P to take the steps to join
them thus it was bad faith for him to argue that the application was not proper. Ds also opposed P’s
application to amend on grounds that it would set up an entirely new cause of action and was also against
the evidence already admitted by P in cross-examination.
Held inter alia;
i. even though an order is made in favour of the co-defendants iro joinder, it was the duty of the
plaintiff to amend the writ and have it served on the added defendants.
ii. Before the registry effects the service of the amended writ it had to ensure that the co-defendants
have caused an entry (that they have been joined to the suit as co-defendants) to be made in the
Cause Book of this court's registry because the action is proceeding here. No such entry had been
made in the registry by the co-defendants. Consequently, since the first step of filing an amended
writ has not been complied with by the plaintiff, the co-defendants cannot be said to be in default.
Consequently, the position at the time of the application was that the co-defendants were not
parties to this case, they had no pleadings and consequently had none to amend.
iii. since equity will not suffer a wrong to be without a remedy and P could not be allowed to benefit
from his default, an extension of time to file amended writ was granted.
Ghana Cooperative Bank v Mankoadze Fisheries & Ano [1992] 1 GLR 130 at 132 the bank sued D for the
recovery of an overdraft facility granted to D. In a hearing of the preliminary objection to P’s application
for summary judgment, one of the issues was on the joinder of D2 who counsel for D said had been added
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to the suit for no apparent reason. P claimed D1 and D2 were jointly and severally liable to them for the
loan amount. Per Asare-Korang J (as he then was), the court is empowered to strike out the name of a
defendant who has been wrongly joined; D2’s name was thus struck out of the writ on grounds of
misjoinder.
Change of Parties
Or.4 r6
In any proceedings, changes may occur that affect the parties or the interest or liabilities of the parties. Such
changes may be the result of death, bankruptcy, assignment of interest, liability or devolution of interest.
Under Or.4 r6(1), death or bankruptcy of a party will not terminate the proceedings so long as the cause of
action survives.
Rep v Bonsu & Ors Ex P Tarem [2001 – 2002] 2 SCGLR 523
In cases where the cause of action survives on the death of a sole plaintiff, his executor or administrator
may obtain an order to carry on the proceedings. The executor/administrator will be substituted for the
deceased plaintiff.
If one of several plaintiffs in the same action dies, the surviving plaintiff(s) may, if the cause of action is a
joint one, continue the action without adding the personal rep of the deceased plaintiff. If the cause of
action in not joint, the personal rep may obtain an order to be substituted to carry on the proceeding.
Upon the death of a sole defendant, P may obtain an order to continue the proceedings against the executor
or administrator of the sole defendant. The executor or administrator may himself apply to be substituted
and added as a defendant but unless and until the executor or administrator is joined, the action cannot be
continued.
If the deceased defendant had a counterclaim, his personal reps should obtain an order to carry on against
the plaintiff because an order obtained by D in the original action may not authorise them to prosecute the
counterclaim.
Upon the death of one of several defendants, if the defendants are jointly liable, the liability continues with
the survivors. If all the defendants die, the proceedings should be continued against the representative of
the last surviving defendant.
If Ds are jointly and severally liable, the action may on the death of one of the Ds, proceed against the
personal rep of the deceased and the survivors.
The application for substitution may be made ex parte, supported by an affidavit. Until the person intended
to be served is properly substituted, he doesn’t become a party.
November 20, 2013
The affidavit must show the following:
1. The nature and stage of the action e.g. land case, pleadings
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2. The change that has occurred e.g. P is deceased, has left the jurisdiction, etc.
3. The interest or liability of the party against whom it’s proposed to carry on the proceedings e.g. the
applicant is the head of family, personal representative of the estate of the deceased, etc.
4. If necessary, demonstrate the fact that the cause of action survives or continues.
5. State the specific order required from the court e.g. pray the court to substitute TT with KK.
Where the substitution is being done because of death, the fact of death must be proved strictly e.g. by
exhibiting death certificates.
When adding a new plaintiff, his consent in writing shall be produced and verified
[the consent of a successor or personal representative of a deceased plaintiff for instance isn’t needed because it’s a
substitution and not the addition of a new plaintiff]
If the person added is already a party, but on the opposite side of the record, the order is deemed to contain
a direction that he shall cease to be a party on that side 62.
If the person is already a party on the same side, but in a different capacity, the order of substitution may
contain a direction that he shall cease to be a party in that other capacity – Or. 4 r6(5).
The person on whose application an order to carry on is made must ensure that the order is noted in the
Cause Book. No time limit is specified but the order cannot be served until it has first been thus noted in
the Cause Book.
Unless the court directs otherwise, the order must be served on every person who is or becomes a party by
virtue of the order.
Where a person becomes a defendant as a result of an order, he must also be served with the writ or other
originating processes by which the action was began.
A person who is ordered to become a party does not so become until the order is served on him. If he is
not required to be served, then he becomes a party after the order has been noted in the Cause Book.
Thereafter, all things done in the course of the proceedings prior to the making of the order shall have the
same effect on the new party as it did on the old parties except the filing of appearance. Thus, a newly
added defendant is required to enter appearance within the time limited for filing appearance counting from
the date of service of the order or noting in the Cause Book as the case may be. It is therefore desirable
that the order served on him should contain a notice of endorsement notifying him of the requirement to
file an appearance under the rules.
A person who is served with an order to carry on a suit obtained ex parte may apply to the court within 14
days to discharge or vary the order – Or.4 r6(7).
Procedure
1. Apply to court for an order to substitute a person for the deceased
person
62
Or.4 r6(4)
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Civil Procedure
2. Application may be made by motion ex parte supported by affidavit

showing the capacity/interest of the person to be joined
3. The applicant shall procure the order to be noted in the Cause Book
4. The person joined shall be served with the order in order to become a
party
5. The person joined may apply to have the order discharged or varied
within 14 days of service of the order
6. Joined party shall file appearance
Failure to proceed after death

Or.4 r7
Where a plaintiff dies leaving a surviving cause of action, but no substitution order is obtained, the
defendant may apply to strike out the action against him, unless the appropriate carry-on order is obtained
within a time the court may specify.
Notice of any process to strike out the action must be given to the deceased plaintiff’s personal reps,
customary successor, head of family or any other interested persons whom the court decides ought to be
notified and the court shall not make the order until it’s satisfied that such notice has been given.
The cost of the application shall be borne by the estate of the deceased plaintiff.
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January 15, 2014
AMENDMENTS
Or.16
A party, as noted, is bound by its pleadings and for that matter cannot give evidence on any facts not alleged
in the pleadings. However, when pleadings are joined, a party may commit errors or the facts pleaded may
turn out not to be material, while the material facts would have been left out. Also, new facts which will
strengthen a party’s case may be discovered during the trial long after the pleadings have been filed. The
general rule on departure nonetheless still stands whether or not an error has been detected or new facts
have been discovered.
To prevent injustice and to enable the courts to determine all matters in controversy, the court is
empowered to grant a party leave to amend his pleadings. The power of the court to grant amendments is
discretionary but must be exercised judicially. The important question is whether or not the amendment
will promote the course of justice as between the parties and that it’s necessary for the purpose of
determining the material issues in dispute.
The power to grant amendments by the courts is provided under Or.16, Or.81 r1(2)(b) which allows
amendment where there is non-compliance with the rules, and Or.4 which allows amendment of processes
by joining parties and causes of action.
Generally, amendment would be allowed unless it will entail injustice to the other party or the application
is made mala fide or, by the blunder committed, the other party has suffered some injury which cannot be
compensated with costs.
Cropper v Smith [1884] 26 Ch.D 700 P sued Ds for infringing on its patent iro a machine invented by D2
and bought by P. Ds appeared by same lawyer but applied to sever their defence. Subsequently, D1 gave
notice to P that he would deny the validity of P’s patent and show that the patent was already in the public
domain prior to its registration. P claimed that the defence was not available to D2 as he didn’t seek leave
to amend his defence. By majority decision, Bowen LJ dissenting, the English CA found that D2 was liable
for the infringement and that the defence of D1 was not available to him since he did not ask for leave to
amend his defence. Per Bowen LJ, “…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”.
The purpose of an amendment is to enable the court to determine the real questions or issues in controversy
between the parties, and also to correct errors and defects in the proceedings – Yeboa v Bofour [1971] 2
GLR 299
This rationale for allowing amendments was buttressed by Bramwell LJ in Tildesley v Harper (1876) 10
Ch.D 393 at 396 where he said “my practice has always been to give leave to amend unless I’ve been satisfied that the
party applying was acting mala fide and that by his blunder, he had done some injury to his opponent which could not be
compensated for by costs or otherwise”.
The principle adopted by Ghanaian courts is that amendments must be allowed however late if it can be
made without causing injustice to the other side. Our courts have allowed amendments at any stage of the
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proceedings so that the courts can determine the real questions in controversy, avoid multiplicity of suits,
and correct errors in the proceedings 63.
Amendment may be without leave or with the leave of the court depending on the stage of the proceedings.
Amendment of Writ
Under Or.16 r1, a P may amend the writ of summons once without leave at any time before the close of
pleadings. Where a writ is amended without leave, the amended writ shall be served on each defendant to
the action, unless on an application made ex pare the court decides otherwise.
Hasnem Enterprise v ECG [1992] 2 GLR 250 P sued ECG for damage to their electric gadgets due to a
fault in ECG’s underground cables. They alleged negligence on the part of ECG. They sued for general and
special damages and put the value of the appliances at the time of the action in the writ. After the hearing
but before the addresses, P brought an application for leave to amend their writ to reflect the current values
of the items that they alleged had been damaged. ECG opposed the application on the ground that the
plaintiffs had not filed an affidavit explaining their delay in seeking the amendment. Held inter alia; although
the rules did not expressly require an affidavit in support of an application for amendment, that practice
had almost crystallised into a rule because it enabled the applicant to explain the reason for the delay and
the respondent to reply to it or rebut same where the reasons were reasons of facts and not law. The court
could then in appropriate cases order the deponent to be cross-examined on his affidavit to ascertain the
truth. However, the court could not reject the application solely on account of lack of affidavit. Where it
was found necessary the court could call on the applicant to file an affidavit and bear the costs that would
be occasioned by any delay in ordering the filing of the affidavit. In the instant case, the fact that the prices
of the damaged items had increased was common knowledge. Accordingly, the absence of an affidavit
stating that fact would not prima facie do any injustice to the defendants. But since the defendants were
entitled to challenge the prices quoted, an affidavit was necessary in order that the deponent be cross-
examined on it. Thus, in the circumstances, the lack of an affidavit would work to prejudice the defendants
unfairly. Accordingly, the application would be dismissed.
Amendment of Notice of Appearance

Or.16 r2
A defendant shall not amend a notice of appearance without leave of the court.
Amendment of Pleadings without leave

Or.16 r3
A party can amend any pleadings without leave once at any time before pleadings are closed. Where a
party amends his pleadings without leave, the amended pleadings must be served on all the parties on the
other side.
Where an amended SOC is served on the D, the D may amend his SOD without leave of the court to
respond directly to P’s amendment – Or.16 r3(2).
63
Sam v Duodu
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The period of service of the amended defence shall be either the period fixed by the rules for service of
defence or a period of 14 days after the amended SOC is served on the D, whichever expires later.
Where amended defence is served on P, P may amend the reply, if any is filed, without leave of the court
to respond directly to D’s amendment – Or.16 r3(3).
The period for service of the amended reply shall be 14 days after the amended defence has been served
on P.
NB: references to defence and reply include references to counterclaim and defence to counterclaim
respectively.
The effect of not responding to an amended pleading is that the party defaulting to respond is deemed to
rely on the unamended pleading in answer to the amended pleading – Or.16 r3(6). The amended pleading
takes effect from the date the original pleading was filed.
A party can amend his/her pleadings once, without leave of the court, before pleadings close.
After pleadings have closed, amendments can be made several times but with leave of the court.
Q: When can a party amend pleadings without leave?

A: (i) once, any time before pleadings close
(ii) when the party is filing a defence to an amended SOC
(iii) when the party is filing a reply to an amended SOD
(iv) when the party is filing a defence to an amended counterclaim
(v) when the party is filing a reply to an amended defence to counterclaim
Application to strike out amendment without leave
A party has within 14 days after service on him of an amended pleading under r3(1) i.e. amendment without
leave, to apply to the court to strike out the amendment – Or.16 r4.
The court will strike out such an amendment if it is satisfied that the amendment would not have been
granted if leave had been sought to make the amendment.
Amendment of pleadings with leave
The court may at any stage of the proceedings, upon an application by a P or other party, grant leave to
a. P to amend the writ of summons; or
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b. Any party to amend the party’s pleading on terms as may be just and in a manner directed by the
court.
The court, under Or.16 r5(2), may grant leave to amend a pleading even after any relevant period of
limitation has expired provided it is just to do so under the circumstances provided in Or.16 r5(3 – 5).
R5(3) – grant an amendment to correct the name of a party, notwithstanding 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 genuine and was not misleading or to cause any reasonable doubt as to the identity of
the person intending to sue or be sued.
Mussey v Darko [1977] 1 GLR 147
GIHOC v Dicenta Publications [1971] 2 GLR 24
NB: if a non-juristic person is expressed as P, the action is likely to be struck out because there can’t be a valid amendment
to the suit because no legal person initiated the action.
R5(4) – an amendment may be allowed to alter the 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.
R5(5) – an amendment may be allowed to add or substitute a new cause of action if the new cause of
action arises out of the same facts or substantially the same facts as a cause of action iro which relief
has already been claimed in the action by the party applying for leave to amend.
Misnomer
GPHA v Issoufou [1993-94] 1 GLR 24 at 36-37, SC P using the business name of his firm, sued the Ghana
Ports Authority and Ghana Cargo Handling Co. Ltd jointly and severally for the value of 1,412 bags of rice
which were lost while in the custody of the defendants. Ds denied liability. While the action was pending,
the GPHA Law was passed merging GPA, GCHC and Takoradi Lighterage Co into one body corporate,
GPHA, and same was substituted as D. D contended that the GPHA Law did not provide that GPHA take
over the liabilities of the merged companies thus they were not liable to P. Judgment was however given to
P. D appealed and P cross-appealed at the CA. On an oral application by P to amend the title of the suit,
the CA found that where the sole proprietor of a business mistakenly sued in the firm’s name, and later
gave a reasonable explanation for his mistake, the court could treat the mistake as a misnomer and grant an
application to have the title to the writ amended. D’s appeal was dismissed and the CA did not consider
the variation of the trial court’s decision prayed for by P in his cross-appeal. GPHA further appealed to the
SC on inter alia grounds that the application for amendment was improperly applied for and wrongfully
granted by the CA. Held dismissing the appeal; the court has a duty to ensure that justice is done in cases
before them and should not let that duty be circumvented by mere technicalities. The power to make
amendments to the capacity of a party rested in the inherent jurisdiction of the courts, and the courts could,
when the issue is raised either in the trial court any time after judgment was delivered or in the appellate
court on the application of a party to the suit, orally or otherwise, grant such amendments as were necessary
to meet the justice of the case. Per Aikins JSC the action taken by the CA was right in law because there
was evidence to show that the respondent was the sole proprietor of the business, that it was he who
imported the rice and that the business name was registered in 1965 and was not registered as a corporate
body.
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Amendment of Other Docs

Or.16 r7
For the purpose of determining the real issues in controversy between parties, or correcting any defect or
error in the proceedings, the court may at any stage of the proceedings, either of its own motion or on
application by a party, order any document in the proceedings to be amended on terms as may be just.
Generally, amendments are more easily granted when the grant does not necessitate the calling of additional
evidence.
Amendments will also be granted for an additional claim if evidence on record supports such a claim.
Stage of Proceedings for Applying for Amendments
The general rule is that amendments can be applied for and granted at any stage of the proceedings [even
on appeal]. In GPHA v Issofou, the court granted an amendment of the proper party to sue after judgment
had been given.
In practice however, it’s not so simple. Different considerations apply in granting or refusing the
amendment e.g. if the amendment is before or after close of evidence. After close of case, amendments are
generally refused unless there’s evidence on record to support the amendment. If the amendment will
demand the calling of fresh evidence after close of case, it will be refused; although some amendments may
be granted depending on the circumstance of the case.
Per Or.16 r6, a party may amend the party’s writ or pleadings under rr1 and 3(1) during the Long Vacation
but such amendment must be with leave of the court.
Amendments not Allowed Generally
1. Immaterial amendment
The purpose of amendment is to enable the real issues to be determined. An amendment which is
immaterial to the case cannot therefore serve that purpose and will be refused.
2. Amending to withdraw an admission

An admission is the concession by a party of an assertion by the other party. Unless it was made
inadvertently, the court may refuse an amendment to withdraw the admission.
3. Generally, an amendment, the effect of which will be to set up a claim that is statute barred will not be
allowed. The essence is that if a writ cannot be issued for that claim because of the statute of limitation,
then the amendment will not lie.
4. An amendment will not be allowed to introduce a new cause of action which did not exist on the date
the writ was issued because a cause of action must have come into existence before a writ is issued.
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Gandaa v Gandaa (supra) – the purpose of an amendment is to enable the court determine the real question
in controversy between the parties. The facts and circumstances of each case must be examined closely in
deciding whether an amendment ought to be allowed or not bearing in mind the provisions in the rules. In
the instant case, the substance of the amendment will allow the plaintiff to contradict his admissions on
oath. This cannot be allowed. An amendment which will alter or contradict the evidence already given by
the applicant must not be allowed. An amendment is usually allowed to bring pleadings in line with evidence
already led and not otherwise. Particularly an amendment which will have the result of making a party liable
for perjury must be refused.
Failure to amend after order

Or.16 r8
Where the court makes an order giving a party leave to amend a writ, pleading or any other document, and
that party fails to make the amendment in accordance with the order of the court before the expiration of
the period specified, or if no period is specified by the court then 14 days after the order is made, the order
shall cease to have effect. This is without prejudice to the power of the court to extend the period.
Mahama Hausa v Baako Hausa [1972] 2 GLR 469, CA an amendment applied for by D was denied by the
trial court. Held; where an amendment is being sought in order to bring the pleadings in line with the
evidence adduced, it is a guiding principle of cardinal importance that generally speaking, all such
amendments ought to be made and the rules in fact provide mandatorily that “all such amendments shall
be made as may be necessary for the purpose of determining the real questions in controversy between the
parties.” D had pleaded and led evidence regarding a certain transaction at the sick bed of the deceased and
in the presence of witnesses. Whether this evidence proved the transaction to be an oral gift inter vivos or
a nuncupative will would be essentially a conclusion of law from the evidence already adduced. The
amendment sought to be made in the pleadings was thus to enable the defence to argue that the transaction
so evidenced amounted to a nuncupative will as originally pleaded and not an oral gift inter vivos as later
amended. In the circumstances the amendment should have been allowed.
Kwantreng & Ors v Klu [1991] 2 GLR 93 D failed to effect amendments granted by the court within the
14 days stipulated by law. Court found that although failure to amend within the period rendered the order
void, since it had power to extend the deadline, an extension would be granted to D to effect the
amendment.
Effect of Amendment
An amended writ or pleading relates back to the date the writ or pleading amended was filed. E.g. an
amended writ becomes the origin of the action and the reliefs claimed therein are substituted for those on
the original writ.
Kai v Amarkye [1982-83] GLR 817 D was granted leave by the court to amend a particular paragraph of
his SOD. However, the amended pleadings contained material facts which he did not have leave to include.
Held; by failing to confine his amendment to the paragraph for which leave was granted, D failed to comply
with the court’s orders. His conduct thus amounted to an abuse of the process of the court.
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January 20, 2014
How to apply for leave

Or.16 r11
An application for leave to amend a writ or pleading shall be on notice to all the other parties in the action.
The application shall specify precisely the nature of the amendment intended to be made.
An affidavit may be used in an application for leave to amend.
Clerical Errors
Or.16 r10
Clerical mistakes in judgment or orders of the court arising therein from accidental slips or omissions may
be corrected at any time by the court, either suo motu or on notice to the parties or on application to the
parties without an appeal. This is known as the “Slip Rule”.
Shirlstar Container Transport v Ashanti Goldfields Corporation [1992] 1 GLR 566 in giving judgment, the
judge stated that he had not considered the issue on the plaintiff’s claim for special damages because the
claim was not indorsed on the writ. However, during the trial, both parties led evidence on the claim for
special damages which were admitted. The applicant therefore prayed the judge to grant it leave to amend
the writ and review his decision in order to avoid multiplicity of suits by determining the real questions in
controversy between the parties. The issue before the court was whether the court had power to grant an
amendment after judgment. Held; the reason the court could not consider the award for special damages
was because it was illegal to do so since a court cannot give special damages iro which no claim is made in
the writ. Per Aryeetey J, the only instance where an amendment would be allowed after judgment is where
there are clerical mistakes and accidental omission. The circumstances of the case therefore did not warrant
the grant of leave to amend the pleading as requested by the applicants.
Method of Amending
Or.16 r9
1. Any amendment allowed by the court may be made by
a. making the necessary alteration to the writ, pleading or document by handwriting, and
b. in the case of a writ, causing it to be resealed and filing copies thereof
2. Where the authorised amendments are so numerous or of such nature or length that to make written
alterations will be difficult or inconvenient, a fresh document amended as authorised shall be prepared,
and if it’s a writ, the writ shall be re-issued.
The heading should reflect the amendment:
“AMENDED STATEMENT OF CLAIM”
“AMENDED STATEMENT OF DEFENCE”
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“AMENDED REPLY”
“AMENDED DEFENCE TO COUNTERCLAIM”
3. A writ, pleading or other document shall be endorsed with

a. the statement that it has been amended
b. the date on which it was amended
c. the name of the judge who made the order authorising the amendment and
d. the date of the order
e. If no such order was made (i.e. amendment without leave), the number of the rule of CI 47
under which the amendment was made.
Sample pursuant order…
AMENDED STATEMENT OF CLAIM PURSUANT TO LEAVE GRANTED ON THE 18TH

DAY OF JANUARY 2014 BY HIS LORDSHIP JUSTICE ASHIA BAFFOUR SITTING AT THE
HIGH COURT LAND DIVISION
Paragraph 1….
Paragraph 2…
Or
AMENDED STATEMENT OF CLAIM UNDER ORDER 16 RULE 3
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WITHDRAWAL & DISCONTINUANCE

Or.17
A party cannot be compelled to litigate to the end; a plaintiff is thus at liberty to withdraw or discontinue
the action. In Rep v HC Accra ex p Asakum Engineering & Construction Ltd [1992-93] GBR 264, the SC
held that no court can force a person to litigate as a court cannot be seen to be instigating litigation.
A plaintiff may discontinue if he realises that the case may not succeed or if the case is settled amicably
between the parties. Discontinuance of the action by P terminates the court’s authority or power over the
case.
Odompre v Aryeetey [1975] 1 GLR 297 Ps instituted an action at the DC for a declaration of title to land,
but later filed a notice of discontinuance before they closed their case. The action was accordingly struck
out and costs awarded against P. A month later, the trial magistrate purporting to act on his own motion
summoned the parties for a review of his previous decision. After reviewing his decision, the magistrate
gave judgment for D. P appealed. Held, allowing the appeal: when a plaintiff in litigation decided to
discontinue his action, especially at a time when his case was not closed, the powers of the court were ended
as far as further hearing was concerned. The court had no discretion to exercise except in the matter of
costs, and the court then became functus officio. It had no power suo motu to summon the parties to court
again and for any reason set aside its order of discontinuance and give judgment one way or the other as
was done in this case. To do so would give the impression on the face of such a judgment that the matter
had been fully contested to conclusion and judgment given on the merits of the case capable of operating
as estoppel per rem judicatam, when that was not the true position; the correct position in the instant case
being that the plaintiffs had not even closed their case for the defence to open and for issues joined between
the parties to be judicially determined. When therefore the court below said it had accepted the
discontinuance by error of judgment because the plaintiffs' case was part heard, that was a serious
misdirection leading to the erroneous decision.
A person who has filed an appearance is entitled to withdraw the appearance at any time but with the leave
of the court – Or.17 r1.
Discontinuance without leave

Under Or.17 r2(1), a P may discontinue the action against all or any of the defendants by filing a notice to
withdraw all or any part of the claim at any time before or after being served with the defence, provided P
does not take any other step in the action like filing a reply or amended SOC.
Upon withdrawal or discontinuance, P will be ordered to pay costs which will be taxable and the withdrawal
or discontinuance shall not be raised subsequently as a defence to an action.
Discontinuance with leave

Apart from the situation discussed in Or.17 r2(1), P shall, before discontinuing or withdrawing, apply for
leave of the court.
The court may before, during or after the hearing or trial of an action, order an action to be discontinued
or order any part of the cause of action to be struck out upon an application. Leave is normally granted
subject to such terms as costs or as to any other action.
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The application for leave is by motion supported by affidavit.
In granting the application, the court may order the application to be discontinued or it may strike out any
part of the alleged cause of action. The court may impose conditions for the grant of leave to discontinue.
Such conditions may include barring further litigation on the matter by P.
Amoako v Kwan [1975] 1 GLR 25 the plaintiff sued for a declaration that the appointment of D2 as a
customary successor was null and void. He then filed a notice of discontinuance which was accepted by the
court and the action was struck out. There was no order as to costs and P did not ask for liberty to bring a
fresh action. Subsequently P instituted a fresh action in which the parties and the issues were substantially
the same. D raised a preliminary issue asking the court to determine whether in view of the discontinuance
of the former action, P was estopped from bringing the present action. Held per Osei-Hwere J (as he then
was); the court has a wide discretion as to the terms upon which it might grant leave to a plaintiff to
discontinue an action.
1. Where the discontinuance was with leave, unless the order which gave the leave expressly
prohibited the commencement of a fresh action it would be no bar to the plaintiff bringing a fresh
action except the nature of the order concluded the matter between the parties.
2. Where an order merely struck out the action which was discontinued but was silent as to the right
of commencing a fresh action it did not operate as a bar to the plaintiff [to commence a fresh
action].
3. Where an order dismissed the action, and was silent as to the right to bring a fresh action, it
operated as an estoppel.
In the instant case, since the suit was merely struck out and not dismissed, and since the court did not
expressly forbid the plaintiff from instituting any fresh action, and the court having made no order as to
costs which might have implied that the matter was determined between the parties the plaintiff was not
estopped.
The court may also grant the leave to P with liberty to re-litigate. Where the court grants application for
leave to discontinue without expressly granting P the liberty to re-litigate i.e. where leave is granted
simpliciter to discontinue, it has been held that P in that circumstance cannot re-litigate. See: Ibe v Pan
African Metals Ltd [1967] GLR 188.
The court may refuse a plaintiff leave to re-litigate if the action is frivolous or vexatious or an abuse of the
court process or there is a strong defence to the action e.g. estoppel or statutory limitation. In such cases,
a grant of liberty to re-litigate will serve no useful purpose.
See: Afeke v Agble [1987-88] 2 GLR 572
Withdrawal by consent
All the parties in an action may by consent agree to withdraw the action by filing a written consent to
withdraw.
Generally, costs awarded after discontinuance is a final order and must be paid even if P was granted liberty to re-litigate the
same matter else the fresh action will be stayed.
January 22, 2014
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APPLICATIONS
Or.19
Applications are made generally in the cause of pending proceedings. IOW, there must be proceedings
pending in court in order for such an application to be made properly.
An application which is made during the pendency of an action is commonly called an interlocutory
application. Interlocutory applications follow events in the proceedings and an aggrieved person is entitled
to apply for an order, by an interlocutory application, as a result of the event. For example, interim
injunction or interim preservation of a property – the subject matter of the dispute.
Applications are made to a judge sitting in open court or sitting in chambers.
Generally contentious applications are heard in open court and the non-contentious ones are heard in
chambers since the hearing will not admit arguments.
Motions
Applications are made through motion to the court. A motion is an application to a court or judge for an
order directing something to be done in the applicant’s favour.
Motions are usually written and seek the grant of an order in terms of the prayer sought by the applicant.
Under Or.19, there are two types of motions:

a. Interlocutory motions
b. Originating motion or originating motion on notice
An originating motion is another means of commencing or initiating civil proceedings and this is used
where an enactment specifies that the party may apply to a court for a relief by originating motion; or if the
rules of court so require, for example, in an application for judicial review of habeus corpus or in a matter
of enforcement of fundamental human rights.
Interlocutory motions are made during the pendency of a substantive cause or matter.
Purpose of Interlocutory Applications

1. To expedite the trial of the action. Sometimes the motion or interlocutory application brings an end to
the main issue.
2. To maintain the status quo while the action is pending.
3. To prevent hardship to a party
4. To prevent one party from overreaching or outwitting the opposite party by protecting the status quo
while awaiting the final outcome of the proceedings
5. To prevent any abuse of process during the proceedings.
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Features of Interlocutory Applications

1. The reliefs or prayers sought in an interlocutory application must flow from or be within the scope of
the claims in the substantive cause/matter.
2. Every interlocutory order must terminate with the substantive case or an appeal.
3. The making of an order in an interlocutory application which persists beyond the substantive case is
bad in law.
4. Motions/applications may be brought by either party at any stage of proceedings. A stranger to an

action may also bring a motion e.g. is an application for joinder.
5. Motions are in the form of a motion paper clearly stating the terms of the order or prayer sought.
6. A motion is supported with an affidavit stating the facts on which the person applying relies on. The
affidavit contains the evidence supporting the application.
7. Exhibits may be annexed to the affidavit and marked and attested to.
8. The affidavit need not be deposed to by the applicant and there may be more than one affidavit.
9. The applicant is bound by the facts contained in the affidavit and cannot be heard on any facts not
deposed to in the affidavit.
10. Where the applicant does not intend to rely on any facts in support of his application or in opposition
to an application but relies on points of law solely or on materials already before the courts like
pleadings, he need not file an affidavit in support or an affidavit in opposition.
See:
Osei v Donkor [1972] 2 GLR 45
Bonus v Eyifah [2001-202] 1 GLR 19
The applicant or his counsel moves the motion in court. A motion generally must state under what rules
under civil procedure the application is brought.
Types of Motions
1. Motion Ex Parte: this is where the other party to the suit is not put on notice. It is applied for where
a. The rules of court provide so;
b. There will be delay causing irreparable damage where the motion is on notice
c. The matter requires some urgency
d. From the nature of the application there ought not to be any opposition to it e.g. where the prayer
sought in the motion affects the interest of the applicant only
e. At the stage of the proceedings where it’s being applied for, the other party cannot be put on
notice e.g. application for substituted service [because there is no address]
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Examples of motions that can be brought ex parte
i. Leave to issue and serve of notice of writ out of the jurisdiction

ii. Renewal of writs 64
iii. Change of parties by reason of death or bankruptcy 65
iv. To serve third party notice66
v. To enter judgment in default of appearance 67
vi. For garnishee order nisi 68
vii. For charging order nisi
viii. Interlocutory injunction in urgent cases 69
ix. Leave to issue writ of possession or writ of sequestration
x. Application for substituted service 70
xi. Motion for absconding warrant
xii. Anton Pillar order
xiii. Application for habeas corpus 71
On hearing the party on motion ex parte, the court may do any of the following:
i. Grant and make the order sought

ii. Refuse the order
iii. Make an order that the other party appear before the court to show cause why the order
sought should not be made
iv. Order the motion to be made on notice to the parties to be affected by it
A party affected by an ex parte order has the right to apply to set it aside through a motion on notice
[because an order has been made].
Ex parte orders are granted for limited periods e.g. 10 days.
2. Motion on notice: this is where the opposite party is served with the application requesting him to
appear at the hearing. In such a motion, all the parties are entitled to appear and be heard through the
service of the motion paper and the accompanying affidavit.
Under Or.19 r2 there must be 3 clear days between the date of service of the motion on notice and the
hearing date (a.k.a. the return date), unless the court directs otherwise. With summary judgment Or.14
provides for 4 clear days.
64
Or.2 r9
65
Or.4 r6(3)
66
Or.15 r1(2)
67
Or.10
68
Or.47 r2
69
Or.25 rr7-9 & 11
70
Or.7 r6(2)
71
Or.56 r1(2)
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A party put on notice may generally oppose the application at the hearing. If a party intends to oppose
the application on the facts, he files an affidavit in opposition stating the facts he relies on in opposing
the order being sought. If the party opposes the application on points of law, he need not file an
affidavit in opposition. If no affidavit in opposition is filed and no points of law are raised, then the
facts in the supporting affidavit stand unchallenged.
Under Or.19 r2(3), a plaintiff can serve a writ of summons together with a motion on notice. This
procedure is adopted when an order is urgently needed. Thus in an action for trespass for example, the
plaintiff may issue the writ and simultaneously file a motion for interlocutory injunction restraining the
defendant from continuing the trespass.
Evidence in Interlocutory Proceedings
Evidence supporting a motion is generally given by an affidavit. The affidavit must be deposed to by the
applicant or some person duly authorised by the applicant and stating the facts which the applicant relies
on. Where the application is grounded entirely on matters of law or procedure, an affidavit will not be issued, rather, same will
be stated in the motion paper.
Although affidavit evidence is relied upon, the court may, on the application of either party, order the
attendance of a deponent for cross examination. Where such an order is made and the person fails to attend,
his affidavit shall not be used as evidence.
Where there is a conflict of evidence from the supporting affidavit and the affidavit in opposition, then oral
evidence will have to be taken to resolve the conflict. The deponents and their witnesses will be examined
and cross-examined.
Interim Orders v Interlocutory Orders
Interim Orders Interlocutory Orders
Interim orders are made to last for specified times Interlocutory orders are made pending the
or periods e.g. 10 days. determination of an action.
Invoking Courts’ Inherent Jurisdiction

There are instances where the court may be moved by a motion where no statutory provision has been
made for the motion. In those circumstances, parties can invoke the inherent jurisdiction of the courts –
Shardey v Adamtey [1972] 2 GLR 380
Whenever the ground for seeking a relief cannot be properly brought under a rule of court, or any enabling
statutory provision, the inherent jurisdiction of the court can be invoked – Okpote v Attoh-Quarshie [1973]
1 GLR 59
Page 99 of 159
Civil Procedure

ACCRA – A.D. 2014
SUIT NO….
Akua Ataa Plaintiff/Applicant
Address
AND
Mary Mensah Defendant

Address
MOTION EX-PARTE
MOTION EX-PARTE will be moved by counsel for and on behalf of the plaintiff/applicant praying this Honourable Court
for an order for interim injunction restraining the defendant, her agents or servants and privies from entering the disputed land
and any other order(s) this court may deem meet.
COURT TO BE MOVED ON …………. the …….. day of …………….. 20…….. at 9 o’clock in the forenoon or so soon
thereafter as counsel for the plaintiff/applicant can be heard.
DATED AT ACCRA this ……… day of ……….. 20…….

……………………..
Solicitor for Applicant
THE REGISTRAR
HIGH COURT
ACCRA

ACCRA – A.D. 2014
SUIT NO….
Address
AND

Address
MOTION ON NOTICE FOR INTERIM INJUNCTION
TAKE NOTICE that counsel for and on behalf of the plaintiff/applicant will move this Honourable Court praying for an order
for interim injunction to restraining the defendant/respondent herein, her agents or servants and privies from entering or to
undertake any construction work on the disputed land and upon facts set out in the accompanying affidavit and any other
order(s) this court may deem meet.
COURT TO BE MOVED ON …………. the …….. day of …………….. 20…….. at 9 o’clock in the forenoon or so soon
thereafter as counsel for the plaintiff/applicant can be heard.
DATED AT ACCRA this ……… day of ……….. 20…….

……………………..
Solicitor for Applicant
THE REGISTRAR
HIGH COURT
ACCRA
AND COPY FOR SERVICE ON THE DEFENDANT OR THE SOLICITOR, PATAPAA CHAMBERS, NO. 2 OPERA
SQUARE, ACCRA.
Page 100 of 159

Civil Procedure
January 27, 2014
AFFIDAVITS
Or.20
An affidavit is a document containing facts within the personal knowledge of a person, narrated and sworn
on oath to support or oppose an application in court or made to verify conduct or confirm the occurrence
of an event.
Types of Affidavits
The kind of affidavit depends on its use/purpose, examples include;
a. affidavit in support of a motion

b. affidavit in opposition to a motion
c. supplementary affidavit
d. affidavit of verification [used to verify acts e.g. Ama was present at the GSL from Jan – December
2013]
e. affidavit of confirmation [used to confirm an act e.g. marriage]
Uses of Affidavits
Or.19 r4 requires that every application shall be supported by an affidavit deposed to by the applicant or
some person duly authorised by the applicant indicating the facts relied upon by the applicant in support
or opposition to the application.
“I have the authority and consent of the applicant to depose to these facts which, unless otherwise stated,
are within my personal knowledge…”
“I’m advised by my counsel and I believe same to be true”
Under Or.25 r1(3), in an application for injunction, the applicant is required to attach to the motion paper
and supporting affidavit, a statement of case setting out fully, arguments, including all relevant legal
authorities, in support of the application.
Persons Authorised to Take Affidavits
Or.20 r2 provides that affidavits are required to be sworn before a judge, magistrate, registrar of court,
commissioner for oaths and any officer empowered by the rules of court or by any other enactment to
administer oaths.
Page 101 of 159

Civil Procedure
S9 of the Oaths Act (NRCD 6) empowers the CJ, any other justice of the superior court of judicature, a
Circuit Court judge, a district magistrate, the judicial secretary, a notary public and a commissioner for
oaths, to administer a lawful oath or take a lawful affirmation or affidavit which may be required to be taken
for the purpose of complying with the laws of the Republic.
By s10(1) of NRCD 6, affidavit or oath required for a court or matter in the country, or for registration of
an instrument, may be made in a place outside the Republic before a person having the authority to
administer oaths in that place.
By s11(1) of NRCD 6, an ambassador, High Commissioner, diplomatic agent and consular officer of the
Republic in a foreign country have the authority to administer oaths and affidavits as done before persons
authorised to do so in the Republic.
S11(2) of NRCD 6 provides that a document purporting to have affixed, impressed or subscribed on it the
seal or signature of a person authorised to administer an oath, affidavit or an act being administered and
taken or done before that person shall be admitted in evidence without proof of the seal or signature or of
the official character of that person.
Formal requirements of an Affidavit
• The title of the suit/action. Where the action has more than one title, it will be sufficient to state the
title of the first matter and adding the phrase “any other matters”. Where there is more than one P or
D, it’s sufficient to state the name of the first followed by the words “and others” or “and another”. 72
• It shall be printed, written or typed and shall be numbered consecutively.
• It shall be expressed in the first person
• It must indicate the place of residence and occupation of the deponent. If the deponent has none, then
a description of the deponent and whether s/he is employed by a party to the cause/matter in which
the affidavit is sworn must be provided.
• Affidavits shall be divided into paragraphs and numbered consecutively, and each paragraph must, as
far as possible, be confined to a distinct portion of the subject.
• Dates, sums and other numbers may be expressed in an affidavit in figures, words or both.
• It must be signed by the deponent and the jurat should be completed and signed by the person before
whom it is sworn.
• The jurat must 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.
72
Or.20 r3
Page 102 of 159

Civil Procedure
Jurat
“WHEREFORE I swear to this affidavit in support of the motion for injunction.
SWORN AT ACCRA …………………..

This 27th day of January 2014 DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS”
Joint Deponents
Where an affidavit is made by 2 or more deponents, their names 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 will be sufficient
to state that it was “sworn by both or all of the above named deponents”.
Illiterate or Blind Deponents
Where an affidavit is deposed to by an illiterate or blind deponent, there should be a certificate in the jurat
by the person administering the oath that
a. The affidavit was read to the deponent in the presence of the person administering the oath;
b. The deponent seemed perfectly able to understand it;
c. The deponent signed or marked the affidavit in the presence of the person administering the oath.
An affidavit deposed to by a blind or an illiterate person without the certificate shall not be used in evidence
unless the court is satisfied that it was read to and appeared to be perfectly understood and approved by
the deponent.
Contents of an Affidavit
Or.20 r8
It must contain only facts that the deponent can prove or a statement of information or belief – Ibrahim v
Abubakari [2001-2002] 1 GLR 543; Armah v Addoquaye [1972] 1 GLR 109
An affidavit sworn in support of an interlocutory application may contain a statement of information or

belief or both with the source of the information and belief and the grounds of belief.
Scandalous & Irrelevant Matters in Affidavits

Or.20 r9
Page 103 of 159

Civil Procedure
The court may order any matter which is scandalous, irrelevant, offensive or otherwise oppressive, to be
struck out of an affidavit. It has been heard that an affidavit containing hearsay evidence is irrelevant and
same will be struck out unless the exceptions apply – Rossage v Rossage [1961] All ER 600
Alteration in Affidavits
Or.20 r 10
All alterations in the form of interlineation, erasers, cancellations in the body or jurat of an affidavit must
be initialled, or in the case of erasers, must be re-written in the margin of the affidavit by the person before
whom the affidavit was sworn.
Where an affidavit is sworn at the court registry, the official stamp of that registry may be substituted for
the signature or initials required under the rules.
Filing of Affidavits
Or.20 r11
Every affidavit shall be filed in the registry of the court in which the proceedings are pending.
The affidavit shall be endorsed with a note showing on whose behalf it’s been filed and the date of filing.
Documents Exhibited with Affidavits

Or20 r12
A document to be used in conjunction with an affidavit shall be exhibited and not just annexed or attached
to the affidavit.
An exhibit to an affidavit shall be identified by a certificate of the person before whom the affidavit is
sworn.
Affidavit taken in other countries
Affidavits taken outside Ghana and impressed with the seal/signature of a court, judge, notary public or
persons with authority to administer oaths in that country shall be admitted in evidence without proof of
the seal/signature.
Page 104 of 159

Civil Procedure

ACCRA – A.D. 2014
SUIT NO….
Address
AND

Address
AFFIDAVIT IN SUPPORT
I, Akua Ataa, a trader of No.7 Accra New Town, Accra make oath and say as follows:
1 That I am the deponent hereto and the plaintiff herein.
2 That unless the contrary is stated, all facts deposed to in this affidavit is within my knowledge and personal
belief.
3 That plaintiff acquired the disputed land in 1998 and constructed a fence wall around it.
4 That despite the physical structures on the land, the defendant herein has started construction works on the
land and is operating day and night unless an order of this Honourable Court is issued to restrain the defendant
and her servants and agents.
5 That a photocopy of the plaintiff’s indenture is attached herewith as Exhibit ‘A’.
WHEREFORE the applicant prays for an order of interim injunction accordingly.
SWORN AT ACCRA ……………………………..

this …………day of ………… 20…. DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS
THE REGISTRAR
HIGH COURT
ACCRA
Page 105 of 159

Civil Procedure

ACCRA – A.D. 2014
SUIT NO….
Address
AND

Address
AFFIDAVIT IN OPPOSITION
I, Mary Mensah, a doctor of Accra make oath and say as follows;
1 That I am the defendant herein and the deponent hereto.
2 That I have been served with the plaintiff’s motion for interim injunction and I am vehemently opposed to same.
3 That I acquired the disputed land from on Owula Kwashie of Adabraka who is a member of the Olaaje Family and had
documents to that effect.
4 That my grantor had a customary grant from his family before the sale of the land to me.
5 That the Olaaje Family was adjudged the owners of a large piece of land including the disputed land in suit no. L123489.
6 That an unknown trespasser put up a wall on the piece of land at the time of the litigation of suit no. L123489 and said act
was reported to defendant’s grantor but he claimed he had no knowledge of the act and did not know the trespasser.
7 That defendant’s grantor denied making a grant of the said land to any other person and all effort to get the trespasser was
to no avail.
8 That defendant applied for and was granted a building permit which is attached and marked Exhibit ‘1’.
9 That defendant has completed her building on the land and this is well known to plaintiff and now that defendant is about
to move in, plaintiff wants to restrain her from entering the building thereby rendering her homeless.
10 That if the plaintiff’s application is refused, the plaintiff will not suffer any hardship because she doe not live on the
disputed land.
11 That defendant is a widow who needs to house her family.
12 That I am advised and verily believe same to be true that this Honourable Court being a court of equity and justice will
not restrain defendant from entering defendant’s own house pending the determination of this dispute.
WHEREFORE I swear to this affidavit in opposition to the motion for interim injunction.
SWORN AT ACCRA ……………………………..

this …………day of ………… 20…. DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS
THE REGISTRAR
HIGH COURT
ACCRA
Page 106 of 159

Civil Procedure
February 10, 2014
PRE-TRIAL PROTOCOLS
Discovery & Inspection

Or.21
This is a process by which a party in an action may compel the disclosure of important documentary
evidence in the possession of the opponent to enable the party prepare sufficiently for the trial.
Documents are not restricted to written documents only. In Grant v Southwestern & County Properties
[1974] 3 All ER 465, it was held that a tape recording was a document. A computer database was found in
Derby & Co v Weldon (no. 9) [1991] 2 All ER 901 to be a document.
There are 3 types of discoveries:
1. The disclosure of a list of documents which are or have been in the custody or possession or power of
the opponent;
2. Inspection of documents mentioned in pleadings or affidavits;
3. The production of particular documents to the applicant or to the court.
Parties to an action, naturally, may be unwilling to disclose information that may adversely affect their case
in court. Discovery under the rules of court allows a party to call upon or compel the unwilling party to
make disclosure of all relevant information in that party’s possession, control or custody, and allow for
inspection of such information.
The Distillers Co. v Times Newspapers Ltd [1975] QB 613 in a prior action involving the plaintiff and a
claimant for damages resulting from the use of a drug marketed by P, P disclosed a number of documents
under an order for discovery. The claimant then agreed with D to sell them all the information related to
the action for a sum of money. D sought to publish an article based on the information and P brought the
instant application for interlocutory injunction praying the court to restrain D from disclosing the
documents. Held; those who disclosed documents on discovery were entitled to the court's protection
against any use of the documents otherwise than in the action in which they were disclosed; that such
protection extended to prevent the use of the documents by any person into whose hands they came unless
that use was directly connected with the action in which they were produced; and that it was in the public
interest that documents disclosed on discovery should not be permitted to be put to an improper use.
Application granted.
The rule on discoveries seeks to eliminate surprises in civil trials and give all the parties an even playing
field.
It narrows down the issues for trial and shortens the trial
Page 107 of 159

Civil Procedure
Mutual Discovery
The process of discovery begins with mutual discovery between the parties as captured under Or.21 r1 &
r2 which provides that after the close of pleadings in an action there shall be discovery of documents and
a party shall within 14 days of the close of pleadings make and file for service on the other party a list of
documents which are or have been in that party’s possession, custody or power which relates to any matter
of issue between the parties to be discovered.
Discovery by Court Order
Under Or.21 r3, any party may apply, at the stage of application for directions, for such discovery as is
necessary and the court may order the respondent to serve a list of documents in his custody, possession
or power on the applicant. Such order may be limited to requested documents only or to only issues in the
matter as may be specified in the order.
The court may order discovery even after the application for directions stage if reasonable cause is shown.
Per Or.21 r5, a party may apply at any time during the proceedings for an order requiring the respondent
to make an affidavit stating whether any document specified or described in the application has at any time
been in the respondent’s possession, power or custody and where necessary, when the respondent parted
with the document and what had become of it. This application shall be supported by affidavit staint the
belief of the deponent that the respondent from whom discovery is sought has or at some point had in the
respondent’s possession, custody or power the documents specified in the application and that it relates to
the issue(s) in the cause or matter.
Under Or.21 r6, the court, on the application of any party required by the rules to make discovery of a
document, may
a. Order that the parties or any of them shall make discovery of such documents or such matters in
question or as may be specified in the order
b. If satisfied that discovery is not necessary, order that there shall be no discovery of documents by
the parties.
Generally, the court will only order discovery when satisfied that the discovery
- is necessary to dispose fairly the cause or matter and
- will save costs
Inspection of Documents
Under Or.21 r7, a party who serves a list of documents on the other party in compliance with the court
order shall at the same time serve notice on the other party stating a time within 7 days after the service of
the notice when that other party may inspect and take copies of the document(s) in the list other than any
document(s) to which the party objects to produce. The notice must specify a place for the inspection.
Page 108 of 159

Civil Procedure
Or.21 r8 allows a party at any time to serve notice on the other party in whose pleading or affidavit reference
is made to a document to produce the document for the inspection of the party giving the notice and to
permit copies to be made of the documents. When the notice is served, the respondent shall within 4 days
after service of the notice inform the applicant of a date within 7 days after service of the notice to inspect
documents and of a time between 9.30 and 4.30pm when the documents may be inspected at the office of
the lawyer of the party served or at some other convenient place. The party served shall make the documents
available at the time and place agreed on for inspection.
Where a party fails to serve the notice or objects to produce any document for inspection or offers
inspection at an unreasonable time or place, the court may, on an application of the party entitled to
inspection, make an order for the production of the documents in question for inspection at such time and
place and in a manner it thinks fit 73. The application shall be supported by affidavit specifying the document
of which inspection is sought and stating the belief of the deponent that they are in the possession, custody
or power of the party served and that they relate to an issue in the matter.
Production of Documents
At any stage of the proceedings, the court may order any party to produce to the court any document in
the party’s possession, custody or power relating to an issue in the matter and the court may deal with the
document when produced as it thinks fit – Or.21 r11.
An order for the production of any document shall not be made unless the court is of the opinion that the
order is necessary to dispose fairly of the matter or to save costs.
Where the production of business records is applied for, the court may, instead of ordering the production
of the original records, order a copy of any entries in it such copy to be verified by an affidavit of a person
who has examined the copy with the original records – Or.21 r12. The affidavit shall state whether the
original has any erasures, interlineation or alteration and if so, provide particulars of same. The court
however has power to order the production of the original notwithstanding that a copy has been supplied.
Failure to comply with order for discovery

{EXAM}
When a party fails to comply with an order for discovery of a document or to produce any document for
purposes of inspection, or fails to comply with the rules under Or.21, the court may make any of the
following orders 74 inter alia:
a. The action be dismissed;

b. The defence be struck out and judgment entered accordingly;
c. Where the document is favourable to the defaulting party’s case, the party may not use the
document at all at the trial except with the leave of court; or
73
Or.21 r9
74
Or.21 r14
Page 109 of 159

Civil Procedure
d. Where the document is not favourable to the defaulting party’s case, the party may be committed
for contempt.
NB: under Or.21 rr14(2) & (3), service of an order for discovery or production of documents on the lawyer of the party
required to comply is sufficient service to found an application for committal of the party disobeying and where an order is served
on a lawyer who fails to give notice to his client without reasonable cause, that lawyer shall be liable for committal for contempt.
Exceptions to Automatic Delivery

Or.21 r2(2) – (5)
a. Third party proceedings
b. Running down actions
c. Defendants to actions to recover a penalty under statute
d. Defendant to an action to enforce forfeiture
Or.21 is without prejudice to any rule of law which authorises or requires withholding of any document on
the ground that the disclosure of it would be injurious to the public interest.
Interrogatories
Or.22
Interrogatories form part of the process of discovery of documentary evidence.
A party may apply for leave to serve the opponent interrogatories relating to any matter or questions
between them and request the other party to answer the interrogatories on affidavit 75 within a period
specified in the order.
Interrogatories are formulated in the form of questions 76 to be answered by the party against whom the
court grants the order.
The proposed interrogatories shall be attached to the application for leave and the court will only grant the
application when it considers the interrogatories necessary for a fair disposal of the case. The court may
grant leave for some and not all of the interrogatories. The application for leave shall be on notice to the
other party.
Interrogatories may be served on bodies corporate on application to the court and the court may direct that
the interrogatory be served on a named officer or member of the body corporate to be served – Or.22 r2.
Where a person gives insufficient answers to the interrogatories, the court may make an order requiring the
person to provide further answers either by affidavit or on oral examination as the court may direct.
75
So that the person may be committed for perjury if lies are told
76
Samples in Forms 10 and 11 of Schedule to C.I.47
Page 110 of 159

Civil Procedure
Failure to comply with order for interrogatories

Or.22 r6
The court may make any of the following orders against a party who fails to comply with an order for
interrogatories
a. An order that the action be dismissed

b. An order that the defence be struck out and judgment entered accordingly
c. Committal for contempt
Service on a lawyer of an order for interrogatories will be sufficient service on the client to ground an
application for committal of the party who disobeys. A lawyer who fails to give notice of the order for
interrogatories served on him to his client will be liable for committal for contempt.
The answers to the interrogatories may be put in evidence by a party at the trial.
An order for the service of interrogatories may, upon showing sufficient cause, be revoked or varied at or
before the trial of the matter in which the order was made – Or.22 r8.
Admissions
Or.23
In the pleadings filed in a court in an action or otherwise, a party may admit an allegation or a claim in the
pleadings of the other party.
An admission to a claim either wholly or partly puts to an end to that part of the controversy that has
brought the parties to court.
A party in whose favour an admission is made is thus relieved of the burden of proving the admitted facts
alleged in the pleading.
An admission may also narrow the dispute in controversy and help in the speedy trial of the case.
Under Or.23 r1, a party may admit the truth of all or part of an opponent’s pleading. The mode of admission
could be in a letter before or after the initiation of the action in court.
A party may also request the opponent to admit a particular fact or the authenticity of a document which
is relevant to the proceedings in court – Or.23 r2.
See Ewusie-Mensah v Ewusie-Mensah [1992] 1 GLR 271.
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Civil Procedure
Effect of Request to Admit/Admission
Where a request is made to a party to admit a fact or the authenticity of a document under Or.23 r3(1), the
party served with the request has 14 days to respond, failing which the fact or the authenticity of the
document will be deemed to have been admitted.
When a party admits a fact or authenticity of a document, any party in whose favour the admission is made
is entitled to apply for judgment or an order iro the admission without waiting for the determination of the
other issues joined in the action.
Where a defendant admits part of a liquidated claim, P is entitled to apply for judgment on that part of the
claim admitted.
NB: such admissions should be clear without any reservations; if the admissions so stated leave some issues to be argued or
tried, the court may not enter judgment.
See:
Social Security Bank v Biney [1997-98] 2 GLR 886 P claimed against D for a debt of over ¢16 million with
interest. D denied the sum involved and pleaded that following an investigation by the plaintiff, D’s liability
was stated as about not more than ¢4.604 million. Consequently, P filed for an order of the court to enter
judgment on the admission against D. D opposed the application on the ground that P could not ask for
judgment upon admission and also pursue further claims against D. Held granting the application; per Or.32
r6 of LN 140A (now Or.23 r6) the party in whose favour the admission is made could apply for judgment
on the admission without waiting for the determination of any other question between the parties. Even
though the parties did not agree on the quantum, the pleadings showed that part of P’s claim had been
conceded by D. P was thus entitled to invoke Or.32 r6. Application granted.
Pomaa v Fosuhene [1987-88] 1 GLR 244

Adjavon v GIHOC [1980] GLR 135
NB: the application for judgment on admission generally should not be made after the hearing of the case has commenced.
Application for judgment on admission should be by motion on notice.
February 12, 2014
Application for Directions

Or.32
This is the preparatory stage of the trial. At this stage, the court considers how the trial will be conducted.
The purpose of the application is to ensure that all matters which have not already been dealt with are
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Civil Procedure
considered and dealt with 77 and directions given as to the future course of the action to ensure expeditious
and inexpensive disposal of the case.
The rule for application for directions applies to all civil actions except
a. Actions in which directions are given under Or.11 r19, Or.14 r6 78 and Or.25 r7 79.
b. Actions in which an order for taking account is made under Or.29 r1.
c. Actions for the infringement of a patent.
d. Actions in proceedings under Or.65 80.
e. Actions commenced at the commercial court under Or.58 81.
Or.32 r2 provides that one month after the close of pleadings, P shall file notice of an application for
directions to be served on all the parties in the action. There shall be at least 8 days between the date of the
service of the notice for the application and the date of hearing the application.
Where P fails to apply for directions as required by the rules, D is entitled to apply for direction or for the
action to be dismissed – Or.32 r3. Where D’s application is for a dismissal of the action as a result of P’s
default, the court may dismiss the action on such just terms or deal with the application as if it was an
application for directions.
Under Or.32 r4, any party who is served with an application for directions is also entitled to apply, at the
hearing of the application, for any order or directions that the party may desire if they differ from that
sought in the main application for directions. The notice for further directions shall be filed not less than 7
days before the hearing of the application for directions.
When the application for directions is being heard, the court is entitled to deal with all matters which can
be dealt with on an interlocutory application before the case proceeds to trial.
At the hearing of the application for directions, the court may suo motu consider whether any order should
be made or direction given. At this stage of the hearing, the court shall encourage the parties to make
admissions and agreements as to the conduct of the proceedings which ought to be reasonably made by
the parties. Such admissions and agreements shall be incorporated into the order to be made by the court
upon hearing the application.
Contents of the Application
1. The application is in the form of a notice 82.

2. It must show the court in which the action is pending.
3. The names of the parties and the suit number.
77
Where applications such as motion for joinder, for injunction or for amendment are pending, they will be disposed of before directions will
be given.
78
Where leave to defend an action is given or execution stayed, the court may give directions as to the further conduct of the action…and may
order the action to be set down for trial forthwith or at such date as the court considers proper.
79
Where an application is made for an injunction, interim preservation of property, the court may give directions as to the further conduct of
the cause or matter.
80
Marital causes.
81
This is because they do pre-trial conferences where mediation is done; it’s only when they can’t settle the case that the issues are set down
for trial and referred to another judge for trial.
82
It’s not a motion cuz it’s not supported by an affidavit
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Civil Procedure
4. The title of the document i.e. Application for Directions

5. It’s divided into paragraphs as follows:
a. The issues for determination
i. List all the issues
b. The mode of trial
i. Oral or
ii. Documentary
c. The period for trial
d. The issue as to costs {normally written as “costs in the issue”}
6. Dated and signed by the lawyer of the party applying for directions.
7. Addressed to the Registrar of the court in which the case is pending and to the opposite party.
No affidavit shall be used at the hearing of an application for directions except by leave or direction of the
Court. It shall however 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.
Where the court 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, 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’s just so
to do; or
(c) Order the action or counterclaim to be dismissed on such terms as may be just if the party is
plaintiff or claimant under a counterclaim.
Despite this Order, no information or document which is privileged from disclosure shall be required to
be given or produced under this Or.32 r8 except with the consent of the parties.
Orders the Court may make at this stage include
- Ordering separate trials

- Consolidating trials
- Determining the duration of the trial
- Determining the mode of trial
- Costs
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ACCRA – A.D.2014
SUIT NO……
Ama Serwaa PLAINTIFF/APPLICANT
Hse. No. 17
Kasoa
VRS
Kofi Mensah DEFENDANT/RESPONDENT

Block 4
Adenta
APPLICATION FOR DIRECTIONS
TAKE NOTICE that this court will be moved on Monday the 6th day of January 2014 at 9 o’clock in
the forenoon or so soon thereafter by counsel for the Plaintiff/Applicant praying the court for directions
for the trial of this cause as follows:
1. ISSUES FOR DETERMINATION
a. Whether or not defendant owes plaintiff the sum of GHC50,000

b. Any other issue arising on the pleadings
2. MODE OF TRIAL
The trial will be by oral and documentary evidence
3. PERIOD FOR TRIAL
The trial will last five (5) days.
4. COSTS
Costs shall be in the cause with liberty to apply.
DATED AT YAANOM CHAMBERS this 25th day of December 2013.
……………………………..
Lawyer for Plaintiff/Applicant
The Registrar
High Court
Accra
AND TO the above-named defendant or his lawyer.
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ACCRA – A.D.2014
SUIT NO……
Ama Serwaa PLAINTIFF/APPLICANT
Hse. No. 17
Kasoa
VRS
Kofi Mensah DEFENDANT/RESPONDENT

Block 4
Adenta
NOTICE OF FURTHER DIRECTIONS TO BE SOUGHT BY DEFENDANT

(Order 32 rule 4)
TAKE NOTICE that at the hearing for the application for directions filed in this suit on 25th December
2013, defendant shall seek the following directions and orders from this honourable court:
ADDITIONAL ISSUES
1. Whether or not …..
2. Whether or not ………
3. Whether or not…….
DATED AT ACCRA this 30th day of December 2013.
……………………………..
Lawyer for Defendant/Respondent
The Registrar
High Court
Accra
AND TO the above-named plaintiff or his lawyer at Yaanom Chambers, Accra.
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TRIALS
Or.33 & 34
This is the stage in the action where the parties have the opportunity to present their respective versions of
the matters in controversy to the court. A trial is conducted by hearing the parties and their witnesses.
Place & Mode of Trial
Generally, the trial is planned during the application for directions stage. At the application for directions
stage, the court may determine the place and the mode of trial – Or.33 r1. The court may also decide on
the issues for trial, and may make such orders including an order that issues of law or issues of mixed law
and fact may be determined separately before the main trial – Or.33 r3.
Where the [separate] trial of a preliminary issue disposes off the main matter, or renders a trial unnecessary,
the action may be dismissed or the court may make such other order or give such judgment as may be just
– Or.33 r5.
The matter or claim before the court is tried by the production of relevant evidence at the hearing. The
parties or their lawful reps and witnesses testify on oath and they are cross-examined by the opposing party.
Parties who intend to be absent at the trial but wish to be represented must donate POA to the
representatives.
Setting Action Down for Trial
At the hearing of the application for directions, the court may fix a period within which the Registrar of the
court is to set the action down for trial. However, if it appears to the judge that the matter requires an early
trial, then the court shall fix a date for hearing instead of asking the registrar to fix a date within a period –
Or.34 r4.
Generally, when the court fixes a period for the trial, the registrar must issue a notice of trial which must
be served at least one month before the date of the hearing, unless otherwise stated by the court – Or.34
r2.
The order fixing the time within which an action should be set down for trial shall contain an estimate of
the length of the trial and shall specify whether the action is to be put on the General Cause List or the
Short Cause List – Or.34 r3.
Where after an action has been set down for trial it abates or the interest or liability of any party to the
action is assigned or transmitted to or devolves on some other person, the party conducting the action shall,
as soon as practicable after becoming aware of it, certify the abatement or change of interest or liability in
writing to the registrar who shall make the appropriate entry in the list of actions set down for trial – Or.34
r7. Where an action marked as abated stands for one year, the Registrar shall on the expiration of that year
inform the Court of the fact, and the court shall thereupon strike the action out of the List, unless in the
case of an action ordered to stand over generally, the order otherwise provide.
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Proceedings at Trial
Failure to attend
Or.36 r1
1. Where an action is called on the date fixed for the trial, and all the parties are absent, the court may
strike off the action on the trial list.
2. If P attends the hearing but D fails to attend, D’s counterclaim, if any, may be dismissed and P
called upon to prove his case 83.
3. Where D attends the hearing and P fails to attend, P’s action may be dismissed and D called upon
to prove his counterclaim if any.
Attendance at the trial means a party’s physical presence or that of his representative in court. A party may
therefore be in attendance even if the party’s lawyer is absent. A party who fails to attend court without any
good ground is deemed to have abandoned his claim. A party who attends court but refuses to testify in
the absence of his lawyer is likely to be liable on a judgment being entered against him. See: Omaboe v
Kwame [1978] GLR 122; Mensah v Mensah [1992-93] GBR 1432.
NB: when an action is dismissed due to a party’s failure to attend court, it cannot amount to res judicata to
bar a fresh action [this is because the case was not determined on its merits in the first place].
Or.36 r2(2)
Where a party served with notice of trial fails to attend the trial, and judgment is entered against that party,
the said party may apply to set aside the judgment within 14 days after the trial. This time may be extended
under Or.80 r4. A stranger adversely affected by a judgment may also apply to set aside the judgment –
Lamptey v Hammond [1987-88] 1 GLR 327.
At the hearing, both parties and their witnesses must be given a fair hearing based on the principle of natural
justice – audi alteram partem. Where a party is given an opportunity to be heard and abuses such opportunity
or deliberately fails or absents himself from the hearing, he cannot turn round and complain about unfair
hearing.
See:
Rep v HC Human Rights Div Accra; Ex p Akita [2010] SCGLR 374
Rep v HC Accra; Ex p State Housing Company Ltd (No. 2) [2009] SCGLR 185
In all the above circumstances iro attendance, the court may adjourn the case upon such just grounds –
Or.36 r3.
83
EXAM!!
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Order of Speeches
Or.36 r4
The party to begin presenting its case and the order of speeches is provided for under Or.36 r4, unless the
Judge gives directions to the contrary.
1. Plaintiff shall begin by opening its case

2. Where D elects not to adduce evidence, P may, after adducing evidence, close P’s case and D may
then state its case
3. Where D elects to adduce evidence, D may, after the close of P’s case, open the case for D and
after adducing evidence, close D’s case
4. P may make a speech in reply
5. Where there are 2 or more defendants who appear separately,
a. Each D shall state his case in the order in which that D’s name appears on the record
where both decide not to adduce evidence
b. Each D may open his case and evidence shall be given in the other in which D’s name
appears on the record where both decide to adduce evidence
c. Those who don’t adduce evidence shall state their case according to the order of their
names on the record and those who adduce evidence shall do so in accordance to the
order of their names on the record but they can do so only after P’s reply to the other
defendants who did not adduce evidence.
NB: where the burden of proof in all the issues in the action lies on D, D may begin by opening D’s case and the above
procedure will apply but references to P will mean D and vice versa.
At the end of the hearing, both counsels may address the court. A defendant who adduced evidence has a
right to first address the court.
Addresses are statements made by lawyers to the court trying to convince the court to buy their argument.
They cite authorities and legal principles.
February 17, 2014
Locus in Quo
Or.36 r5
In the course of a trial, the court may visit any place or inspect anything or place that has relevance in
determining the case, in a land case for instance, where the identity of the land is in dispute, a decision by
the court to view the land may be proper.
Asare v Donkor & Serwah II [1962] 2 GLR 176

Kofi v Kumasa [1984-86] 1 GLR 116
Procedure:
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The court should be accompanied by the parties and any relevant witness(es) to the inspection. Both parties
must be present before the court commences the inspection. The party and their witnesses must point out
such places and things which are material to their case.
If other persons who are material in helping the court to resolve the dispute are found on the land but have
not given evidence in court, and they are heard at the inspection, then those persons must be made to
appear in court when the court re-assembles. When the court assembles, all the persons who were used at
the locus in quo must be put in the witness box, and on oath, state what role or part they played at the
locus.
They will then be cross examined by the plaintiff and the defendant. At that stage, the witnesses are deemed
to be witnesses called by the court and will be described as “CW” i.e. Court’s Witness.
It is only persons who testify at the Locus who must be called to give evidence when the court reassembles.
These witnesses become people met on the land who offered to participate in the trial.
See: Practice Note (No.2): Gblevi Family v Mrs. Amanie [1961] GLR 1.
It’s important that the court doesn’t delegate its functions as a court to a person to visit the Locus and
report – Amane v Kwabla [1975] 1 GLR 417; Ababio II v Akro & Co [1963] 1 GLR 195.
Death of a Party Before Judgment
Where a party to an action dies after D has closed his/her case but before judgment is given, judgment may
be given notwithstanding the death but without prejudice to Or.4 r6(2) before giving judgment – Or.36 r6.
Duties of the Court Clerk
1. Certification i.e. at the conclusion of the trial, the court clerk shall make a certificate in which the clerk
shall certify the following;
- Time spent on the trial
- Any order made by the judge under Or.38 r5 84 or r6 85
- The judgment given by the judge
- Any order made by the judge as to costs
2. Taking charge of physical exhibits
3. Marking/labelling exhibits used in the trial and indicating

a. Who put up the exhibit
b. The witness who proved it
c. The exhibit number, numbering exhibits belonging to a particular party consecutively
84
Prior inspection of a picture, model or plan before they are received in evidence
85
Variation or revocation of orders
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4. Causing a list to be made of all the exhibits and giving any party, on the payment of a fee, an office
copy of that list and any documentary exhibit.
5. Keeping the exhibits at the registry of the trial court until the period limited for appeal has expired,
provided that where an appeal is made after trial the exhibits shall be forwarded to the CA or the
relevant appellate court with the record of proceedings.
NB: the list of exhibits when completed and any documentary exhibit shall be attached to the pleadings and shall form part of
the record of the action.
Judgment
Or.41
After addresses by the parties, the court is enjoined to deliver its judgment in the case.
A matter cannot be impeached solely on that ground that a mere declaratory judgment or order is sought
and the court may make binding declaration of right whether or not any consequential relief is or could be
claimed – Or.41 r1.
The rules provide that the HC and the CC have up to 6 weeks after the close of the case to deliver their
judgments – Or.41 r2. Where a judgment is not delivered within 6 weeks of the close of the case, the court
shall inform the CJ in writing of that fact and shall state the reasons for the delay and the date upon which
it is proposed to deliver judgment. A party to the action may also notify the CJ in writing of the fact and
request that a date be fixed for the delivery of the judgment – Rep v HC Koforidua; Ex P ERDC (supra).
Where a party dies after close of case, he must be substituted before judgment is read.
Judgment may be described as final or interlocutory.
• A final judgment determines all the major issues in the case.

• An interlocutory judgment does not determine the rights of the parties; it’s given before final
judgment or sometimes after final judgment is delivered.
Proceedings after Delay

Or.37 r3
After an action has lapsed for 6 months, without any proceedings on the action, a party who intends to
proceed must give every other party not less than 28 days’ notice of intention to proceed.
Under Or.37 r4, where no proceedings take place in an action for twelve months, the action may be struck
on an application 86 by the registrar or any party to the court for an order that the cause be struck out for
want of prosecution.
86
Registrar’s summons
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Evidence at Trial
Or. 38
At the trial, the parties may adduce different types of evidence in support of their cases. Generally, any fact
required to be proved shall be by oral examination of witnesses in open court. This is called testimonial
evidence. It’s taken on oath or affirmation. Documents are tendered as part of the oral testimony. Every
party or witness who offers to testify is to be examined on oath. However, a person may testify without
oath on religious grounds. The fact of taking the evidence without oath must be recorded by the court.
Such testimony shall be accepted as if it was taken on oath.
Parties can also rely on affidavit evidence at a trial. Affidavits contain material and relevant facts relating
to a matter in an action to which a party seeks to rely upon. It’s sworn before a person authorised to
administer oaths. The court may order, at or before the trial, the affidavit of a witness be read at the trial if
in the circumstances of the case it thinks it reasonable so to order. Where a party makes an application to
the court, evidence may be given by affidavit unless the rules otherwise provide or the court otherwise
directs. The court may also order the attendance for cross-examination of the deponent.
Writ of Subpoena
The court may, in the course of the proceedings, summon any person to attend the court and to testify
(subpoena ad testificandum) or to produce a document (subpoena duces tecum) that is material for the determination
of the action.
Before a writ of subpoena is issued, a request in the prescribed form shall be filed in the registry out of
which the writ is to issue and the request shall contain the name and address of the party issuing the writ
or the party’s lawyer – Or.38 r10.
A writ of subpoena shall be served personally and the service shall be invalid if effected after 12 weeks of
the date of issue of the writ – Or.38 r12. IOW, a writ of subpoena is valid for 12 weeks after its issue.
See also: Or.35 r4

Deposition
The court may order the examination on oath of any person in a pending matter at any place before a judge,
a court official, or examiner or some other person. Application for deposition is made by motion on notice
and it is normally made by consent of the parties. E.g. where a witness is too old to travel to the court from
a geographical area, a deposition order may be made for a judge or court order in that person’s locality to
examine the witness or party and transmit the record of examination to the court that made the order.
No deposition shall be received in evidence unless the deposition is taken in pursuance of an order under
Or.39 r1.
Letter of Request 87
A party may apply to the court for a letter of request to issue to a judicial authority outside the jurisdiction
to examine a person who is resident in that jurisdiction. The party may also apply for the appointment of a
special examiner to take the evidence and submit same to the court that made the request.
87
International form of deposition
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A party in an action is not duty bound to give evidence himself. Where several persons are sued as
defendants, one of them may testify, and the others may rely on the evidence so adduced, if the evidence
is the same and identical to their defence and claim – Nyamekye v Ansah [1989-90] 2 GLR 152; In Re
Ashalebotwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] 1 SCGLR 420.
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ENFORCEMENT OF JUDGMENTS
The first step in the enforcement of a judgement or order of the court is for the judgment creditor to file
Judgment After Trial or Entry of Judgment. If it’s served on the losing party and the losing doesn’t satisfy the
judgment debt within 7 days of the service of judgment, the process of execution is started. This means
that every judgment is virtually stayed for 7 days.
Notice of appeal may be filed immediately after judgment. However, the fact of filing an appeal does not
stay execution of judgment. The execution can only stop if the person gets an order of stay of execution by
an application on notice to the court.
Judgments are enforced by any of the writs of execution below depending on the nature of the judgment.
1. Writ of Fifa – no leave needed, goods are sold, sale done by court officials i.e. sheriff
2. Writ of sequestration - leave needed, goods kept till fulfilment of the judgment debt, order must be
time bound, commissioners do the execution not court officials
3. Garnishee order
4. Writ of possession
5. Writ of delivery
6. Charging/stop orders
7. Interpleader summons
February 19, 2014
Recovery of money Recovery of landed property Recovery of goods

Or.43 r3
1. Writ of Fifa 1. Writ of possession 1. Writ of delivery
2. Garnishee order 2. Writ of sequestration 2. Writ of sequestration
3. Charging/stop order 3. Order for committal
4. Appointment of receiver
5. Writ of sequestration
6. Committal
Writs of execution
A writ of execution includes a writ of fieri facias (fifa), a writ of possession, a writ of delivery, a writ of
sequestration and any other writ in aid of execution. Executions are carried out by attaching the goods,
either movable or immovable, of judgment debtors.
The general principle is that movable property of the JD must be attached before the JD’s immovable
properties are attached – Or.44 r2(3). Generally, all movable goods can be attached except the following:
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• Wearing apparel
• Beddings
• Household furniture and utensils
• Tools and implement of trade/profession
Where execution is levied against immovable property, the writ shall be endorsed with a statement that
there was insufficient movable property to satisfy the judgment debt.
A writ of execution to enforce a judgment or order may not issue without leave of the court in the following
cases:
a. Where more than 6 years have elapsed since the date of the judgment/order
b. Where a change has taken place in the parties entitled/liable to execution
c. Where the order is against the assets of a deceased person in the possession of executors or
administrators after the date of the judgment/order and execution is sought to be issued
d. Where a person is entitled to relief subject to fulfilment of conditions precedent which have
allegedly been fulfilled
e. Where goods to be seized are under the control of a receiver appointed by the court or a
sequestrator
A writ of execution in aid of any other writ of execution shall not issue without leave of the court.
Application for leave to issue writ
1. Application may be made ex parte supported by affidavit

2. The affidavit shall contain the following information
a. Details of the judgment/order to which the application relates
b. If application is for a sum of money, the amount originally due and the amount due at the date
of the application
c. Where execution has delayed (Or.44 r3), the reasons for the delay in enforcing the judgment
d. Where applicable, a statement of the change that has taken place in the parties
e. Any other information necessary to satisfy the court that the applicant is entitled to proceed
to execution
3. The court may grant leave in accordance with the application or may order that any issue or question
which is necessary to determine the rights of the parties be tried in any manner in which any question
of fact or law arising in an action may be tried, and may impose such terms as to costs or otherwise as
it considers just.
4. The writ of execution shall be deemed to be issued when it’s sealed by the registrar – Or.44 r7(1).
Duration & Renewal of Writ of Execution
It shall be valid in the first instance for 12 months beginning with the date of issue – Or.44 r9(1). Where
the writ has not been wholly executed, the court may by order extend its validity from time to time for a
period of 12 months at a time beginning with the day on which the order is made where an application for
extension is made to the court before the day on which the writ would otherwise expire.
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Auctioning of Goods
Goods taken in execution must be sold at an auction after a reserve price has been fixed by the court. A
reserve price is fixed by the court upon application on notice by the judgment creditor. The application
must be supported by an affidavit and a valuation report indicating the fore sale value and market value of
the goods. At the hearing of the application for reserve price, if the judgment debtor opposes or objects to
the valuation report so filed, or the values contained in the valuation report, the JD must commission his
own valuation and furnish the court with that report.
When the two valuation reports come before the court, the court may either fix the reserve price taking
into account the values in the two valuation reports, or where the valuation is hotly contested, the court
may, with the consent of the parties, appoint an independent valuer to value the goods taken in execution.
Eventually, after a report is submitted, the court will then fix a reserve price. What the reserve price means
is that the goods should not be sold below the reserve price determined by the court.
Notice of sale
The sale of the goods must be advertised in a local newspaper at the place where the auction will take place.
No sale shall be made until after public notification of 7 days in the case of movable goods and 21 days for
immovable goods has been given – Or.45 r9. Where the sale is advertised but the date is postponed, the
sale need not be advertised again – Rep v Circuit Court Ex P Arthur [1980] GLR 309. However, where a
sale is declared null and void and a resale ordered by the court, the resale must be advertised afresh.
Writ of fieri facias (writ of fifa)

Or.45
• An order for the payment of money may be enforced by a writ of fifa.

• It’s executed by the seizure and sale of the JD’s property which is sufficient to satisfy the amount of
the judgment debt together with post-judgment interest+ costs of the execution
• The writ may be put into effect as follows
o Actual seizure of movable property in the possession of the JD
o Actual seizure of any money or negotiable instrument to be deposited in court and held
subject to further orders of the court
o Delivering a written order to a person in possession of a movable property to which the
JD is entitled prohibiting the person in possession from giving over the property to the
JD
o Written order to a person in whose name JD’s shares in a body corporate are held from
making any transfer of the shares or receiving payment of any dividends until such further
order
o Written order prohibiting JD from alienating immovable property or any interest in it by
sale, gift, etc and prohibiting any person from receiving it by purchase, gift or otherwise;
registrar may also take and retain actual possession
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• Sale of immovable property may be set aside within 21 days from the date of the sale on application to
the court to set aside the sale on the ground of any material irregularity in the conduct of the sale –
Or.45 r10. No sale shall be set aside on this ground unless the applicant proves that he has sustained
substantial injury by reason of the irregularity.
• Where no application is made to set aside the sale, the sale becomes absolute. Where the application is
dismissed, the court shall confirm the sale. The purchaser shall be granted a certificate to the effect that
the purchaser has purchased the right, title and interest of the JD in the property sold.
• Where property soled is made up of movable property, it shall be delivered to the purchaser.
• Where all the charges and expenses due have been paid, an order shall be issued for the withdrawal of
the attachment.
Stay of Execution
Or.45 r15
A judgment for the payment of money may be stayed by the court on application by the judgment debtor
on the following grounds:
1. Where there are special circumstances which render it inexpedient to enforce the judgment.
2. If the applicant is unable for just cause to pay the money.
The order for stay may be absolute or for such period as the court may consider fit.
Under Or.43 r11, the court may also grant stay of execution upon the application of a JD on grounds of
matters which have occurred after the date of judgment e.g. proof that some money is being expected.
Under Or.51 r1, an appeal doesn’t operate as a stay of execution except the court otherwise orders. The JD
may apply for stay of execution by motion on notice.
When an application for stay is pending for determination, any proceeding for the execution of the
judgment shall be stayed for the period that the application is pending. Where the application is refused,
the execution shall be stayed for 7 days 88.
The CA Rules, C.I. 19 r27 provide that the CA may stay the execution of a judgment where exceptional
circumstances are shown to exist to warrant the grant of a stay.
Under Or.14 r5(2), the court may grant stay pending the trial of a counterclaim under a summary judgment.
Writ of Sequestration
Or.43 r1(3) & (4) and Or.43 r5
It is issued where a JD is required to do an act within a time specified in the judgment or order but refuses
or neglects to do it within the time stated. It may also be ordered where the JD disobeys a judgment or
88
The JC must wait for 7 days before resuming the execution this is because the JD can repeat the application on appeal as of right
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order which requires JD to abstain from doing an act. It’s an order to detain or seize the goods until the JD satisfies
the order or until proceeds from rents and profits satisfy the order after which the goods will be returned to the JD.
A writ of sequestration shall not issue except with leave of the court – Or.44 r6(1). The notice of motion
stating the grounds of the application shall be accompanied by an affidavit in support and served personally
on the JD.
(a) It shall be directed at 2 or more Commissioners to be appointed by the Court

(b) The Commissioners are empowered to enter any immovable property of the judgment debtor and
to collect, take or obtain rents and profits from the immovable property as well as detain all the
JD’s goods and movable property until the person is cleared of the contempt or the court makes
an order to the contrary
(c) The court may order the payment of all charges related to the execution out of the sequestration
proceedings
Appointment of Receiver
Or.27
The court may appoint, by an interlocutory order, in all cases which it considers necessary, a receiver. The
order may be made unconditionally or upon such terms and conditions as may be necessary. Any party to
an action may apply to the court for the appointment of a receiver and an application for the appointment
of a receiver can be joined with an ancillary injunction.
The court may require the person appointed as receiver to give security by guarantee or by written
undertaking. The receiver shall submit accounts to the court which shall be passed by the Registrar.
Writ of Possession
Or.43 r3
• This writ is used to enforce judgment for the recovery of possession of immovable property.
• A writ of possession shall not be issued except with leave of the court unless the judgment/order is iro
a mortgage action to which Or.56 applies.
• Leave shall not be granted unless it’s shown that every person in actual possession of the whole or a
party of the immovable property has received notice of the proceedings which is sufficient to enable
the person to apply to court for any relief which that person may be entitled to.
Writ of Delivery
Or.43 r 3
• Used where the judgment is for the delivery of goods and the JD does not have the option of paying
the assessed value of the goods [in which case writ of specific delivery is used]
• Subject to this rule, an order for the delivery of goods may be enforced as follows
o A writ of delivery to recover the goods or their assessed value
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o A writ of specific delivery with leave of the court

o A writ of sequestration
• The writ may be enforced in the same way as any judgment for the payment of money.
Garnishee Proceedings
Or.47
• It’s used where money due the JD from a third party, the garnishee, is intercepted and used to satisfy
the judgment debt.
• The garnishee must be in the jurisdiction and the court shall order the garnishee to pay the JC the
amount of any debt due or accruing to the JD from the garnishee or as much of it as is sufficient to
satisfy that order + the costs of the garnishee proceedings.
• An application for a garnishee order shall be made ex parte supported by an affidavit with the following
particulars
o Details of the judgment to be enforced
o The amount remaining unpaid at the time of the application
o A statement that to the best of the deponent’s belief or information, the garnishee is within
the jurisdiction and is indebted to the JD
o The source of the deponent’s information or the grounds for the deponent’s belief
• The order shall be served on the garnishee and the JD and the order attaches such debt due from the
garnishee a.k.a. garnishee nisi.
• The order shall command the garnishee or the JD to show cause at least 7 days before the time
appointed for further consideration of the matter.
• Where the garnishee doesn’t attend or does not dispute the debt due to the JD, the court may make an
order absolute against the garnishee – garnishee absolute.
• Where the garnishee disputes liability to pay the debt due, the court may summarily determine the
question in issue or order the trial of any question in issue necessary for determining the liability of the
garnishee in a manner in which such questions may be tried.
• Where it’s brought to the notice of the court that some person other than the JD is or claims to be
entitled to the debt sought to be attached or has a charge/lien on it, the court may order attendance of
that person before the court to state the nature of the claim with particulars of it.
• A payment made by a JD in compliance with an order absolute and any execution levied against the JD
shall be a valid discharge of the liability of the garnishee to the extent of the amount paid or levied even
where the garnishee proceedings are subsequently set aside or the judgment/order on which it is made
is reversed.
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Interpleader Proceedings
Or.48
Every interpleader application is interlocutory.
There need not be a pending matter in court in order for stakeholder interpleader to be initiated
Interpleader is an action by a party in possession of a property, praying the court to invite persons interested
in the property to come and contest title to the property so that whoever acquires the legal title will have
the right to the property.
Where two or more people claim the same property belonging to a third party, and the third party, who is
not making any claim to the property himself and does not know which of them has a right to it, fearing
that he may be prejudiced by their proceedings, may commence interpleader proceedings against them, the
object being to make them litigate their title between themselves instead of litigating with him.
Under Or.48 r1, interpleader proceedings may be applied for under in 2 circumstances:
Registrar’s Interpleader:
This is where the registrar or other officer of the court seizes property by way of execution or has in his
possession the proceeds or value of any property and a person, other than the JD a.k.a. the claimant, claims
them. 89
• The claimant will file a notice of claim showing that the property belongs to the claimant
• The registrar is required to bring the notice of the claim to the attention of the court and the JC
• If the claim is found to be true, the JC may admit the claim and the execution will end
• If JC disputes the claim, issues will be deemed to be joined and the registrar shall issue interpleader
summons inviting all the parties to court to determine the true owner of the property.
Stakeholder’s Interpleader:
It is where a person under liability for any debt, money or goods (the applicant) has been or expects to be
sued by two or more rival claimants to the property. If he has no interest in the subject matter of the dispute
but wants the court to determine the issues quickly so that TP will know which claimant to deal with, he
can apply for relief by the way of interpleader i.e. a hearing at which the rival claimants will be made to
interplead – argue against each other and not against him.
The application for relief is made by motion with notice to the claimant and the JD and JC. 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.
89
IOW a person whose property has been wrongly taken.
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An applicant must provide evidence in the form of affidavit that

1. He has no claim of interest in the subject matter of the dispute other than for charges or cost.
2. He is not in collusion with any of the claimants.
3. He is willing to pay or transfer the subject into court or dispose of it as the court may direct
The court order will specify dates on which claimants are to appear in court. Copies shall be served on each
claimant. Within 7 days after the court’s order is served, any claimant intending to maintain a claim shall
file particulars of his claim and serve it on all the other claimants. When the application comes to be heard,
the court may order claimant to appear, state the nature of the claim and either maintain or relinquish them.
A claimant is required to appear personally or by a lawyer. If he does not appear, his claim may be barred.
When the claimant appears pursuant to the court order, the court may order that a claimant may be made
a defendant in the action. The court may also order that an issue between the claimants be stated and tried,
in which case, the court will determine which of the claimants should be a plaintiff and which should be
the defendant – Or.48 r7.
Salama v Sharani [1973] 2 GLR 364
Where all the claimants consent or the question at issue between the claimants is a question of law and fact
and are not disputed, the court may decide the merits of the claim summarily and make any orders on such
terms as may be just. The summary procedure is to be contrasted with ordering an issue to be stated and
tried. This normally happens in cases that raise difficult questions of law and fact.
In Haram v AG Leventis Co. Ltd [1965] GLR 96 it was held that where the 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.
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 the claimant and all persons claiming under him from ever prosecuting
the claim against the applicant and all persons claiming under him; however this order may not affect the
rights of the claimants as between themselves – Or.48 r10.
See: Tetteh v Mensah & Ors [1987-88] 1 GLR 471
In all interpleader proceedings, the court is required to give such judgment and make such orders that would
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 is considers just e.g. why bears the loss for wrongful
execution where there has been an omission by the registrar to interplead or where the interpleader
proceedings is taken after the sale of the goods to third parties
Failure to Interplead
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A person whose property has been attached in execution of a decree against another person is not obliged
to interplead. Thus, omission to interplead will not operate as a bar to a claim made against a person who
purports to purchase the property at such a sale.
If an owner of property wrongly 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 JC, the auctioneer, and the purchaser individually or severally for declaration of title or trespass.
See: Afari v Nyame [1961] GLR 599
Charging Orders & Stop Orders

Or.49
Charging Orders
• The court may, for the purpose of enforcing a judgment, impose on any immovable property or interest
therein of the JD a charge to secure the payment of any money due under the judgment/order as may
be specified in the order.
• An application for a charging order shall be made ex-parte, supported by motion.
• An application for the appointment of a receiver to enforce the charge may be joined with an
application for a charging order.
• A copy of the order shall be served on the JD at least 7 days before the time appointed for further
consideration of the matter to show cause, unless the court directs otherwise.
• Unless there is sufficient cause to the contrary, the court shall make the order absolute with or without
modification, upon further consideration of the matter.
• A charge may be imposed on any interest in securities to which the JD is beneficially entitled.
Stop Orders
• The court, on the application of a person who has a mortgage or charge on the interest of any person
with funds in court, or to whom the interest has been assigned, or who is a JC of a person entitled to
such interest may make an order prohibiting the transfer, sale, delivery, payment or other dealing with
the funds without notice to the applicant – Or.49 r9.
• Application shall be by motion
• Notice of the motion shall be served on each person whose interest may be affected by the order
applied for.
• A person who claims to be beneficially entitled to an interest in any securities other than securities in
court and who wishes to be notified of any proposed transfer or payment of those securities may apply
for a stop notice.
o The person shall file in the registry an affidavit identifying the securities, describing the
person’s interest in the securities, and a notice signed by the deponent and annexed to it
addressed to BoG or any other person and shall serve same on the BoG or other person.
o Where a stop notice is served on the BoG or other person, same shall not register a transfer
of stock or make a payment of divided while the notice is in force, without serving a notice on
the applicant informing that person of the request for transfer or payment – Or.49 r11.
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Committal for Contempt

Or.50
Committal proceedings shall be commenced by an application supported by affidavit stating inter alia the
grounds for the application. It’s a notice of motion together with an affidavit in support and this shall be
served personally on the person sought to be committed. The power to commit for contempt is only vested
in the Superior Courts.
Or.50 r2 deals with committal without application 90. This is where the court suo motu makes an order
against a person to show cause why the person should not be committed for contempt of court.
Under Or.50 r3, certain contempt applications may be heard in chambers including
a. Application arising out of proceedings relating to wardship or adoption of an infant or proceedings

relating to guardianship or maintenance of a child or right of access to a child.
b. Proceedings relating to persons who suffer or appear to suffer mental illness.
c. Proceedings in which a secret process, discovery or invention is in issue.
d. Cases where it appears that the administration of justice should be preserved or the preservation
of national security.
In all contempt proceedings, only the ground stated in the affidavit will be relied upon at the hearing of the
application.
Types of contempt
1. Contempt in facie curiae i.e. contempt in the face of the court.
2. Contempt outside the court e.g. where the court makes an order prohibiting a person from going on a
disputed land and the person disobeys the order.
February 24, 2014
Judgment against the State
By s15 of the State Proceedings Act (Act 555), in all civil proceedings, when the court makes an order or
judgment ifo a person against:
a. The Republic
b. A department of the Republic
c. An employee of the Republic
the court shall issue a certificate to the person containing particulars of the order/judgment on the
application of the person in whose favour the judgment/order was made.
90
Where the contempt is done before the court
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This application shall be made any time after 21 days from the date of the order/judgment. A copy of the
certificate may be served on:
a. The Comptroller & Accountant-General if the order/judgment contains the payment of money
b. The A-G in any other case
If the order provides for the payment of an amount of money, the certificate shall specify the amount
payable + interest.
By s16 of Act 555, an order ifo the Republic against a person may be enforced in the same manner as an
order between private persons.
February 27, 2014
Enforcement of Foreign Judgments
Act 459, s81 – s82

CI 47, Or.71 – Or.72
Under s81 of Act 459, a judgment creditor under a foreign judgment can apply to enforce such judgment
if the country of the judgment has a reciprocity regime with Ghana.
Reciprocity in enforcement of judgment is granted by the president through an L.I.
A judgment of a foreign country to which an L.I. extends shall be enforced if
a. If it is a judgment of a superior court

b. It is final and conclusive
c. There is payable a sum of money other than taxes or payments of similar nature
d. The judgment is given after the coming into force of the L.I. granting the right to enforce judgment
from that country.
Procedure for Enforcing Judgment
• A judgment creditor may enforce a foreign judgment by doing the following:
• Apply for leave to register the judgment in the HC.
• The application is by motion ex parte supported by affidavit, exhibiting the judgment or supporting
copy.
• Where the judgment is not in English, it has to be translated into English.
• The name, trade or business and last known place of abode of the judgment creditor and debtor must
be provided.
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• The application must note that the JC is entitled to enforce the judgment because it has not been
satisfied.
• The application must state that
o judgement can be enforced in the country of origin, thus if the judgment was registered it
would not be set aside under s83 of Act 459
o the amount and interest due from the judgment of the original court
o the cedi equivalent of the amount due calculated at BoG exchange rate prevailing at the
date of judgment
Order for Registration
An order granting leave to enforce judgment may be served on the JD.
The order must state the period within which an application may be made to set aside the registration.
There must be a notice that execution will not proceed except after the period stated for which the
registration can be set aside.
Notice of Registration
The notice of registration shall be served on the JD personally unless otherwise stated by the court. The
notice may be served outside the jurisdiction without leave and it shall be served in the same way as a writ
of summons is served.
The notice of registration shall state the following:

• full particularised judgment and order for registration
• name/address of JC and his lawyer or agent on whom any notice may be served
• the right of JD to apply to set aside the registration
• the period within which an application to set aside the registration may be made
Application to Set Aside Registration
S84 entitles a party to apply to set aside the registration of a foreign judgment if the registering court is
satisfied that
a. an appeal is pending iro the matter
b. the applicant is entitled and intends to appeal
c. other reasons provided under s83 i.e.
i. the foreign judgment is not a judgment to which Act 459 applied
ii. the foreign judgment was registered in contravention of Act 459
iii. the original court did not have jurisdiction in the case
iv. JD did not receive notice of the proceedings in good time to enable JD to defend the
proceedings
v. Foreign judgment was obtained through fraud
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vi. Foreign judgment if enforced would be contrary to public policy
An application to set aside the enforcement of a foreign judgment shall be supported with an affidavit. The
court hearing the application between the JD and JC may cause the issue to be tried in any manner in which
an issue or action may be tried.
The court on hearing the application may set aside the registration if satisfied that sufficient reason has
been given or shown for setting aside the registration.
Executing Judgment After Registration
Execution will not issue until after the expiration of the period within which to set aside the registration.
When an application has been made to set registration of judgment, execution of the judgment shall not
issue until after the application is finally determined.
The JC must satisfy the registrar that the notice of registration of the judgment and any order of the court
has been served on the judgment debtor before the execution process can proceed.
Enforcing Foreign Maintenance Award
Or.72
Act 459, s89- s97
This relates to the enforcement of maintenance orders made outside Ghana which is sought to be enforced
or executed in Ghana. It also applies to maintenance orders made in Ghana and to be enforced outside
Ghana.
In both situations, there must exist a reciprocal provision under the law of that country and the president
must by L.I. name that country.
Under s90 of act 459, a foreign maintenance order made by a superior or inferior court may be registered
in a Ghanaian court and shall have the same force as if the maintenance order was made here in Ghana.
If the order was made in a superior court of a foreign country, then the order ought to be registered in the
HC. However an order from any court may be registered in a DC.
A certified true copy of the order must be sent to the Minister of Justice who would transmit same to the
appropriate court for registration.
Provisional Maintenance Order
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Where the foreign maintenance order is provisional, a CTC of the order together with deposition of
witnesses and a statement of the grounds on which the order might be opposed must be sent to the Ministry
of Justice.
Where it appears that the person against whom the order is made is resident in Ghana, the minister would
send the document to the appropriate court and request that summons be issued calling on the person to
attend court to show cause why the order should not be confirmed.
On the return date, if the person fails to appear or attends court but fails to satisfy the court as to why the
order should not be confirmed, then the court shall confirm the order. However, if the person is able to
satisfy the court, the court shall remit the case to the original court for further evidence to be taken.
A registered foreign order shall have the same force as if made by a local court and shall be enforced like a
judgment for the payment of money by instalment.
Maintenance Order to be Enforced Abroad

Act 459, s93
The applicant may apply to the court that granted the order that a CTC is sent to the Ministry of Justice for
transmission to the appropriate authority in the country where the person against whom the order was
made resides.
Where an application is made in a DC against a person and that person

a. Fails to appear and it appears to the court that the person is outside the country and
b. The court is satisfied that the application is not served on him, the court will hear the application
ex parte to be confirmed by a competent court in a country abroad.
After the hearing, the court will send a CTC of all relevant documents like depositions, and statement of
grounds on which defendant might have opposed the order, to the Minister of Justice who would transmit
same to the appropriate authority in the foreign country.
A provisional order may be confirmed by the foreign court or the foreign court may remit to the original
court which made the order for further evidence.
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March 3, 2014
APPLICATION FOR REVIEW

Or.42
A person who is aggrieved by the decision or order of a CC or HC may apply to the judge who delivered
the judgment or made the order for review. The judgment or order should not be the subject of an appeal.
The application must be on notice supported by an affidavit.
Grounds for Review
a. When there is a discovery of a new matter or evidence which after the exercise of due diligence
was not within the person’s knowledge or could not be produced by that person at the time the
judgment or order was given or made.
b. That there’s a mistake or error apparent on the record.
c. Any other sufficient reason exists for the review.
Time for Making Application
The applicant shall give 7 days’ notice of the application to all the parties to the action.
The application for review shall be made within 14 days from the date on which the judgment or order
sought to be reviewed was delivered.
Where the review sought is iro a final judgment, the court may at any time within 3 months after the
judgment is entered, grant leave to apply for a review.
Where the application for review is granted, the court will re-hear the case or make any order regarding the
rehearing as it deems fit. Upon the rehearing, the court may amend, vary or confirm its previous judgment
or order.
A judgment or order reviewed shall not be subject to any further review.
See:
Yanney v African Veneer Mahogany Exporters Ltd [1960] GLR 89
In re Lartey (Decd); Lartey v Affutu-Nartey [1972] 2 GLR 488
Concession Enquiry No. 2384 [1963] 1 GLR 471
Chahin v Boateng [1963] 2 GLR 174
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A review is not the same as an appeal and the fact that there is a good ground upon which a judgment or order can
be set aside on appeal is not by itself a ground for granting the review. IOW a review is not a substitute for an
appeal.
Swaniker v Adotei Twi II [1966] GLR 51

Aschkar v Karam [1972] 1 GLR 1
APPEALS
Or.51
An appeal is an application to an appellate court by a dissatisfied or an aggrieved party inviting the court to
set aside or vary the orders or decisions of a lower court on the ground 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. The error
complained of in the appeal could be legal, factual or both.
The right to appeal and the appellate jurisdiction of the court are both creations of statute.
Notice of appeal is filed in the court where the judgment being appealed against was entered.
Appeals are regulated by time
Rules Court Type of Procedure/Period Notes

judgment
Or. 51 r1 DC – HC Final judgment 3 months
+ application for extension of time

within a month of expiration of the initial
3 months period.
No leave required. Notice of appeal 91 to be filed

in the DC
Or.51 r16 DC - HC Interlocutory Seek leave of the DC within 14 days of
judgment the date of judgment
If DC refuses, repeat the application for

leave in the HC within 14 days of the
refusal.
If HC grants it, 14 days from date of

granting file notice of appeal in the DC
91
Initiates the appeal [like a writ]
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Or. 51 CC – CA Final judgment 3 months
+ extension for another 3 months but

application to be made no later than 3
months after initial 3 months
Notice of appeal to be filed in
Or. 51 CC – CA Interlocutory Seek leave of the CC within 21 days of the CC
judgment the decision.
If judge refuses to grant leave to appeal,

application may be repeated in CA.
If CA grants leave, file notice of appeal

within 21 days of the grant.
C.I. 19 HC – CA Final judgment 3 months

r9(1)(b)
+ extension for another 3 months but
application to be made no later than 3
months after initial 3 months
C.I. 19 HC – CA Interlocutory 21 days Leave not sought iro

r9(1)(a) judgment 92 interlocutory appeals; appeal
is as of right
C.I. 16 CA – SC Final judgment 3 months
Interlocutory 21 days
judgment
**no extension of time for interlocutory appeals
March 5, 2014
A party who is aggrieved or dissatisfied with a judgment or order of the court may appeal to a higher court
referred to as an appellate court.
The appeal can be against a final decision of the court or against an interlocutory decision or order of the
court e.g. wrongful admission of evidence, refusal to grant an injunction, refusal to stay proceedings, etc.
An appeal generally lies as of right when a statute grants that right. With respect to final decisions, there is
no leave required to file an appeal. However, in respect of interlocutory appeals from the CC and DC (lower
courts), the statute that confers the right of appeal requires that leave be sought from the court that made
the decision in order to file the appeal.
The right of appeal or the appellate jurisdiction of courts is created by statute. The potential appellant who
intends to appeal against a decision of a court must therefore satisfy the provisions of the statute creating
92
Renault Vehicles Industries v Ashanti Engineering Industries [1991] 1 GLR 443
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the right of appeal. E.g. a party seeking to appeal against an interlocutory order of a CC must first seek the
leave of the same court and upon refusal, the leave of the CA before filing the notice of appeal as provided
by s11(5) of Act 459. Also, an appeal from the DC from an interlocutory order must be done with the leave
of the DC or the HC where leave is refused, as provided by s21(3) of Act 459.
Time for Appeal
DC – HC
In appeals involving final judgment, the appellant has 3 months from the date of judgment to file the notice
of appeal.
With regard to interlocutory decisions, the appellant must apply for leave to appeal within 14 days of the
decision at the DC.
Where leave is refused by the DC, appellant has 14 days after the refusal to repeat the application for leave
at the HC.
Upon the grant of leave by the HC, appellant has to file notice of appeal within 14 days from the date of
the grant in the registry of the DC.
The time for appeal against a final judgment can be extended by the DC or the HC on an application made
not more than one month after the expiration of the time allowed for appeal.
CC – CA
A person aggrieved by a judgment of the CC in a civil action may appeal to the CA.
If the decision is a final decision, the appellant has 3 months from the date of the delivery of the decision
within which to file the notice of appeal. The time for filing the appeal can be extended upon application
but it should be not later than 3 months after the expiration of the time allowed.
If the decision is interlocutory, the party seeking to appeal needs the leave of the CC to file the appeal.
Leave must be obtained from the CC within 21 days of the delivery of the judgment. Upon refusal by the
CC to grant leave, the application may be repeated at the CA within 21 days of the refusal.
Where the CA grants leave, the notice of appeal shall be filed at the registry of the CC within 21 days of
the grant of leave. No extension of time shall be granted to file an appeal against an interlocutory decision
when leave is granted by the CA.
HC – CA
Appeals from the HC to CA are regulated by C.I. 19.
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The rules provide that where there is an appeal on a final decision of the HC, the appellant has 3 months
from the date of the delivery of the judgment to file the notice of appeal.
The time may be extended by the court upon application for extension made within 3 months after the
expiration of the time allowed for appeal. C.I. 19 provides that no application for extension of time shall
be brought after 6 months from the date of the decision being appealed against.
The notice of appeal shall be filed in the registry of the HC. C.I. 19 does not allow extension of time for
the time prescribed for appealing against interlocutory decisions of the HC when leave is granted.
Extension of time is not allowed iro appeals from interlocutory judgments to the CA – Renault Vehicles
Industries v Ashanti Engineering Industries [1991] 1 GLR 443, CA.
CA – SC
Ditto for HC – CA
See:
Adjei v Apraku [1977] 1 GLR 111
Darke v Darke [1984-86] 1 GLR 481
Atta Kwadwo v Badu [1977] 1 GLR 1
Legal regime
• 1992 Constitution
• Courts Act, 1993 (Act 459)
• C.I. 47 regulates appeals from the DC to the HC
• C.I. 19 regulates appeals from the HC and CC to the CA
• C.I. 16 regulates appeals from the CA to the SC
Commencement of Appeal
Appeal is commenced by the filing of a notice of appeal within the statutory period allowed.
The notice of appeal should be signed by the appellant if the appellant is not represented or if represented,
by counsel.
If there is more than one appellant and the appellants are filing the notice of appeal themselves, all the
appellants must sign.
Who can appeal?
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a. Parties to the action

b. Persons not being parties but adversely affected by the judgment e.g. insurance companies
c. A party in whose favour a judgment has been entered can cross-appeal for the court to vary some
orders contained in the judgment.
A cross-appeal is now termed as “an application to vary a judgment” and should be filed within one
month after the notice of appeal has been served on the respondent per C.I. 19.
C.I. 16 however provides that a cross-appeal should be filed within 14 days of service of the notice of
appeal on the respondent.
Types of Appeals
1. Interlocutory appeal
2. Final appeal
The test for determining the type of appeal is the question “does the judgment or order finally dispose of
the rights of the parties?”
This test was provided for by Lord Alverstone C.J. in Bozson v Altrinchan Urban District Council (1903)
1 KB 547, CA and adopted by Ghanaian courts in
• Karletse Panin v Nuro [1979] GLR 194
• A-G v Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271
• Sisala v State Gold Mining Co. [1971] 1 GLR 359
• Okudjeto v Irani Bros [1975] 1 GLR 96
• Morkor v Kuma [1998-99] SCGLR 620
NB:
All interpleader proceedings are interlocutory thus interpleader appeals are interlocutory in nature – Briscoe
Ltd v Amponsah [1969] CC 100; Agoti v Agbenolu [1978] 1 GLR 14.
Interlocutory Appeal Final Appeal

It doesn’t dispose of the entirety of the cause of It disposes off the entirety of the cause of action
action
It’s filed within 21 days of the delivery of the ruling It’s filed within 3 months of the delivery of the
that is being appealed judgment that is being appealed
Leave of the court is required to file the notice of No leave of court is required
appeal if it’s from CC to CA
The time for filing the appeal cannot be extended There may be extension of time for the appellant
to file the notice of appeal
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Process for Compiling Record of Appeal
When a notice of appeal is filed in the registry of the court that delivered the judgment, the registrar of the
court is obliged to prepare a record of appeal. The procedure is as follows:
a. Filing the notice of appeal at the registry
b. Placing the notice of appeal on the case docket
c. Assigning the notice of appeal to a bailiff to serve on the respondent personally
d. Submission of the case docket to the registrar in charge of the preparation of the record
e. Formal invitation of the parties by the registrar to settle records
f. Conditions are set for the parties to fulfil
g. After the conditions have been fulfilled, the docket is assigned to an officer to prepare the record
as the parties have settled
h. The parties are invited to purchase the record and copies are transmitted to the appellate court
Grounds of Appeal
Appeals are prosecuted or fought on grounds of appeals. The notice of appeal must thus contain grounds
of appeal which guide the appellate court to decide the appeal. It forms the basis of the complaint against
the judgment. The appellant is bound by the grounds of appeal. The appellant can also set out additional
grounds by way of amendment and by leave.
The court can suo motu raise a ground of appeal but should afford the parties the opportunity to argue the
ground(s) raised by the court.
There is however a general ground that “the judgment is against the weight of the evidence” and when an appellant
relies on this general ground, the onus is on the appellant to prove that the judgment is indeed against the
weight of the evidence.
The grounds of appeal must be concise and not argumentative or narrative.
If an appellant relies on a ground alleging misdirection, that misdirection should be stated and particularised.
General principles
An appeal is by way of rehearing and rehearing is defined in the case of Nkrumah v Ataa [1972] 2 GLR 13.
It means that the appellate court is in the same position as the trial court as if the rehearing was the original
hearing. It may receive evidence in addition to the evidence on record and may review the entire evidence
on record.
The appellate court will not reverse findings of fact supported by evidence. Where the evidence turns on
credibility, the trial court’s finding will not be disturbed.
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The reliefs sought by the appellant should be clear and not ambiguous.
An appeal may be made to reverse the entire judgment or part of the judgment or against costs alone.
Issues of law that do not call for fresh evidence being adduced could be raised on appeal for the first time
e.g. jurisdiction, capacity. Ntem v Ankwandah [1977] 2 GLR 452.
Fresh Evidence on Appeal
It’s not open to a party on appeal to adduce fresh evidence as of right. The principles guiding fresh evidence
on appeal are as follows:
i. The evidence [was in existence but] was not available at the trial after diligent search
ii. The evidence is relevant to the issues
iii. It is credible evidence well capable of belief
iv. It has decisive effect on the case
See:
Dombo v Narh [1970] CC 688
Azametsi v Rep [1974] 1 GLR 228
Sasu v Amua-Sekyi [1987-88] 1 GLR 294
Poku v Poku [2007-2008] SCGLR 996
Orders on Appeal
• The appellate court can remit to the trial below for trial de novo
• The appellate court may direct the trial court to enquire into a particular fact
• Allow the appeal by setting aside the decision appealed against or varying it
• Dismiss the appeal and confirm the decision of the court below
• The court may draw new inferences of fact and make new orders thereon
March 10, 2014
PROBATE & ADMINISTRATION

Or.66
• Probate – applied for where the deceased leaves a will

• LA – applied for where the person dies intestate
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• LA with will annexed – applied for where executor(s) renounce probate
Jurisdiction
The first issue to consider in matters of probate and administration is jurisdiction. An application for
probate or letters of administration is to be made only to the court with jurisdiction where the deceased
person had at the time of his death a fixed place of abode.
The essence is that people who are interested should be able to see the notice and caveat but if it’s applied
in another location that will be difficult.
Where however 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 generally have jurisdiction for
the purpose of the grant of probate or LA.
Interim Orders/Preservation of Property
A court with jurisdiction to which an application for probate or LA is made may make such interim orders
or measures to preserve the property of the deceased or measures to discover such properties within its
jurisdiction.
Intermeddling with Property
Where a person who is named as an executor or appointed by the court as an administrator takes possession
of or otherwise deals with the property of a deceased person, he shall be subject to the same liabilities and
obligations as an executor or administrator, but 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 imprisonment for a term not exceeding 2 years or to both.
In Osei Kwaku & Ano v Georgina Konadu Kusi unreported judgment of CA 22/04/2005 suit CA
H1/11/2005 the CA held that civil proceedings cannot be used to enforce Or.66, rather, a report must be
made to the police, as it’s a criminal matter.
There is however no offence of intermeddling in Act 29 which implies the framers of the law intended civil
proceedings to be used to enforce intermeddling. The law in Osei Kwaku v Kusi is therefore not good law
but it is the law until overturned by a superior court.
Neglect to Take Probate
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Where a named executor takes possession of, an administers or otherwise deals with any property of the
deceased and does not apply for probate within 3 months after the death of the person, that executor shall
be liable, and when found guilty, shall suffer the same sanctions as an intermeddler.
Testamentary Papers
Where it appears to the court that a paper of the deceased, being or purported to be testamentary is in
possession or control or custody of any person, the court may order any such person to produce the paper,
whether an action is pending in court or not – Or.66 r5.
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, the court may order that person to be examined on the matter
in court and for the paper to be produced in court after the examination – Or.66 r6. This order can be
made whether there is an action pending in court or not. This is to ensure that people do not hide
testamentary papers of deceased persons.
Notice to Executors to Prove the Will or Renounce Probate
The court suo motu or on the application of any person interested in a will may give notice to the executor(s)
named in the will to prove the will or renounce probate. The executors upon receipt of the notice shall
within 14 days take steps to prove the will or renounce probate.
Where the executor fails to prove the will, or renounce probate as required, then the right or executorship
shall be extinguished and an application for LA with will annexed may be made by any person entitled to
it.
Application for Grant of Probate or LA
Every application is by motion ex parte, supported by affidavit and a set of statutory forms, and such other
documents as the court may require.
The following documents are needed for the application for probate:
1. Motion ex parte
2. Affidavit by the executor(s)
a. identifying the deceased person
b. the place and date of death of the deceased person
c. the date of the last will
d. last place of abode of the deceased
e. the value of the estate
3. Oath of executor [statutory form]
4. Affidavit of witness in proof of due execution of a will [statutory form]
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5. Declaration of movable and immovable property of the testator [statutory form]

6. Death certificate or anything to prove death
7. Copy of the will or a codicil
The following documents are needed for the application for LA:
1. Motion ex parte
2. Affidavit by applicants
a. identifying the deceased
b. showing the interest of the applicants in the estate
c. place of abode of the deceased
d. date and place of death
e. where married, the name of the surviving spouse and children with their ages
3. Affidavit of head of family confirming the facts as contained in the affidavit of the applicants
4. Oath for administrator not with will annexed [statutory form]
5. Declaration of movable and immovable property of intestate [statutory form]
6. Death certificate or any evidence of death
Notice of Grant
When application for LA is granted, notice shall be posted for not less than 21 days or such other period
as the court may order in the following manner;
1. In the court where application for grant was made

2. Any public place within the jurisdiction of the court where it is likely that the notice will be seen
by those who have an interest in the estate.
3. At the last known place of abode of the decease
Caveat
A person who claims an interest in the estate of the deceased person and who wishes to ensure that no
grant of probate or LA is issued without his notice may file a caveat. A caveat is filed either before or after
an application has been made for probate or LA but before the grant.
A caveat filed shall be brought to the notice of the court by the registrar and the effect of the caveat is that
nothing ought to be done on the application until the caveator is heard. The court shall direct the registrar
to notify the applicants or their lawyer of the caveat filed. The caveat shall remain in force for 3 months
from the date of filing but can be renewed from time to time.
The person who files a caveat shall be warned by the registrar at the instance of the applicant or persons
interested in the estate to file an affidavit of his interest in the estate of the deceased. If the warning is not
obeyed, the applicant shall move the court iro the motion for grant of LA or probate ex parte and where
the court deems it fit, order that the notice be served on the caveator.
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If the caveator obeys the warning, a copy of the affidavit of interest will be served on the applicants. The
applicant shall then move the court to grant probate or LA on notice to the caveator. When the motion
comes on for hearing, and the parties agree among themselves as to the person to whom a grant of probate
or LA should be made, the court will order the removal of the caveat and a grant be made to the persons.
Where there is no agreement, the court shall determine who is entitled to a grant of probate or LA
summarily or may order the applicant(s) to issue a writ against the caveator within 14 days from the date of
the order to determine who is entitled to the grant of probate or LA.
It can’t be filed after the grant of LA or probate!
Order of Priority
Where a person dies leaving a will, the person entitled to grant of probate or LA with will annexed shall be
determined in the following order:
1. The executors named in the will

2. Any specific legatee or devisee or any creditor or the personal rep of any such person
3. Any residuary legatee or devisee holding in trust for any other person
4. Ultimate residual legatee or devisee where the residue is not disposed of by the will
5. Any person who has no interest under the will of the deceased but who would have been entitled
to a grant if the deceased had died intestate
Where the person dies intestate after the enactment of PNDCL 111 i.e. June 14, 1985, persons who have
beneficial interest in the estate shall be entitled to a grant of LA in the following order:
1. Any surviving spouse

2. Any surviving children93
3. Any surviving parent
4. Customary successor of the deceased
See
In re Asante (decd) Owusu v Asante [1993-94] 2 GLR 271
The number of persons to whom a grant of LA shall be made shall not exceed four (4) unless an enactment
states otherwise. Where two or more persons are entitled to a grant in the same degree, the court may make
a grant to any one of them without joining the others. Where there is a dispute among persons entitled to
the grant in the same degree, the court shall summarily determine the dispute and may make a grant to any
of them as it considers fit.
Or.66 r15
93
Including children of concubines
Page 149 of 159

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Where a person who has a prior right to the grant of probate or LA delays or refuses to take it, and does
not also renounce the right, a person who has an inferior right may serve a notice on the person with the
prior right to take a grant or renounce the right.
Where the person with the priority does not apply for a grant or renounce the right within 14 days, the
person with the inferior right shall apply for a grant and the court shall make the grant to the person if it’s
desirable to do so.
March 12, 2014
Proof of Will in Common Form

Or.66 r25
Where a will appears regular and well executed on the face of it and there is no dispute as to its validity, the
application for probate may be supported by an affidavit deposing to the due execution and attestation of
the will and by such other documents or paper may require.
Proof of Will in Solemn Form

Or.66 r26
Where the validity of a will is in doubt or is disputed, the executors may prove the will in solemn form.
This is done by an action commenced by a writ asking the court to pronounce the will as valid.
Any person who claims to have an interest in the estate of a deceased person may by notice in writing
request the executors named in the will to prove the will in solemn form. The notice must state the
following:
1. The name, address and description of the person filing it
2. The interest the person has in the estate of the deceased
3. The specific grounds upon which the validity of the will is disputed
Upon service of this notice on the executor, the executor must file an answer to the notice within 8 days to
either renounce or prove the will in solemn form. Within 8 days, the executor who files an answer to prove
the will shall issue a writ claiming that the will be pronounced valid and admitted to probate. The writ shall
join as defendant the person who issued the notice calling on the executor to prove the will in solemn form.
The court suo motu or on application may join as plaintiff or defendant any person who claims or appears
to have an interest in the estate of the deceased.
Where the executor fails to issue the writ, the court may order any beneficiary to issue the writ to prove the
will and to claim a grant of LA with will annexed.
Page 150 of 159

Civil Procedure
Action to Declare a Will Invalid

Or.66 r28
Any person who claims an interest in the estate of a deceased testator may bring an action against the
executor for a declaration that the will is invalid instead of filing a notice that the will be proved in solemn
form.
In the action, the court may join as plaintiff or defendant any person who claims or appears to have an
interest in the estate of the deceased.
By Or.66 r29, where the grant of probate or LA has been issued, a person who seeks to have the grant
revoked must issue a writ to seek the revocation of the grant.
Probate Action
A probate action 94 is an action for any of the following:
a. Grant of probate or LA of a deceased person

b. An action for the revocation of the grant of probate or LA
c. An action for an order or judgment pronouncing for or against the validity of a will
Commencement of Probate Action
It’s commenced by a writ of summons which is endorsed with the interest of the plaintiff and the defendant
in the estate of the deceased. Before a writ for the revocation of the grant of probate of a will or LA is
issued, notice shall be given for the person(s) to whom the grant has been made to bring and leave the
probate or LA to the registrar of the court. The person shall within 4 days bring the probate or LA to the
court a.k.a. citation.
Intervention
A person not already a party to a probate action may apply to the courts for leave to intervene in the action.
The application must be supported by affidavit showing the interest of the person in the estate of the
deceased. The application shall be served on all the contesting parties.
When the leave is granted for intervention, it will give directives as to the service of pleadings, affidavits or
testamentary scripts as may be necessary. Under Or.66 r35, the plaintiff or any other party who has pleaded
to a probate action may apply for notice to be issued against any person not already a party who has interest
adverse to the applicant notifying that person to enter appearance or else judgment would be entered against
him.
94
Anything that goes to attack the grant of probate or LA
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Civil Procedure
This is applied for after probate is granted or while the probate action is pending!
Entry of Appearance
A person authorised to intervene or on whom a notice has been served shall enter appearance within the
time specified in the order authorising him to intervene or within 8 days from the date of the order or
service of the notice.
A testamentary script refers to a will or a draft of it or a written instruction for a will made by or under the
instructions of the testator. It includes any document that purports to be evidence of the contents or to be
a copy of a will which is alleged to have been lost or destroyed.
Unless otherwise directed by the court, every plaintiff and defendant who has entered appearance in a
probate action shall swear an affidavit describing any testamentary script of the deceased person whose
estate is subject of an action of which the deponent has any knowledge or that he has no knowledge or to
the fact that no such testamentary script is in his possession and does not know under whose custody there
is any testamentary script. Any such script in the possession or under the control of the deponent shall be
annexed to the affidavit.
The affidavit and the testamentary script shall be filed within 14 days after a defendant enters appearance
or where no defendant enters appearance, it must be filed before the action is set down for trial.
Default of Appearance
No judgment in default of appearance shall be entered in probate actions. Where the defendant defaults,
the plaintiff shall file an affidavit of due service of the writ and set down the action for trial
Special Rules of Pleadings
Pleadings in probate actions take the same form, generally, as any other civil action. However, there are
some special rules to be observed.
1. Where the plaintiff disputes the interest of a defendant, he must allege in the SOC that he denies
the interest of the defendant.
2. Where a party disputes the interest of another, he must show that if the allegation is proved, he
will be entitled to an interest in the estate. IOW a party must justify its interest in the estate.
3. A party pleading that a testator did not know or approve the contents of a will shall plead the
following
a. That the will was not duly executed.
b. At the time of the execution the testator was not of sound mind, memory and
understanding.
c. That the will was a forgery.
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d. That the testator was under undue influence
Counterclaim
A defendant in a probate action may add a counterclaim to his defence if he has any relief or remedy iro
any matter relating to a grant of probate or LA of the estate which is the subject of the action.
Default of Pleadings
No judgment shall be entered for default of pleadings. The action shall be set down for trial.
Discontinuance of Probate Action

Or.66 r43
Discontinuance of probate action can only be done with leave of the court. Upon discontinuance of the
action, the court may further order the grant of probate or LA to persons entitled to it.
Administration Action
Or.66 r44
This is an action for the administration of the estate of the deceased person under the direction of the court
or for the execution of a trust created by a will under the direction of the court. IOW it’s any action which
relates to the management of the estate after probate or LA has been granted.
An administration action may be brought for the following:

a. Any question or matter arising in respect of the administration of the estate of the deceased person
or in the execution of a trust.
b. Any issue or question as to the composition of any class of persons having a claim against the
estate of the deceased person or a beneficial interest in the estate.
c. Any question as to the rights or interest of a person claiming to be a creditor of the estate of the
deceased person to be entitled under a will or an intestacy of a decease person or to be beneficially
entitled under a trust.
Administration action also includes actions for the grant for the following reliefs:
a. An order requiring an executor or an administrator to furnish and if necessary verify accounts.
b. An order requiring the payment into court of money held by a person in trust in his capacity as
executor, administrator or trustee.
c. An order approving any sale, purchase, compromise or other transaction by a person in his capacity
as executor, administrator or trustee.
d. An order directing a person to do or abstain from doing a particular act in the person’s capacity as
executor, administrator or trustee.
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Civil Procedure
e. An order directing any act to be done in the administration of the estate of a deceased person or
in execution of a trust which the court could order to be done if the estate were being administered
or executed under the direction of the court
March 17, 2014
Parties to Administration Action

Or.66 r47
All executors or administrators of the estate or trustees of the trust must be made parties to an
administration action.
Where the action is brought by executors, administrators or trustees, any of them who does not consent to
be made a plaintiff must be made a defendant.
Persons who have beneficial interests in or claim against the estate or have beneficial interest under a trust,
the subject of an administration action, need not be made parties to the action. Where appropriate however,
a plaintiff may make such persons parties having regard to the nature of the relief claimed in the action.
By s77 of the Administration of Estates Act, 1961 (Act 63), if there is any beneficiary who is an infant or if
a life interest arises under a will or intestacy, then there must be at least two individuals or trust corporations
with or without individuals as the administrators.
Limited & Special Grants
Lost, Damaged or Unobtainable Wills
Where the original will or codicil is lost, destroyed or damaged, an application may be made to the court
for the admission of a copy, draft or by parole evidence. The court may by an order grant probate until the
original or an authentic copy is found.
Where a will is unobtainable because it is in the custody of a person outside the jurisdiction, duly
authenticated copies may be admitted to probate until the original is produced and admitted to probate.
Grant to Persons with POA
Where a person entitled to a grant of LA is resident outside the jurisdiction, the grant may be made to the
attorney of the person for the person’s use until that person who is entitled to the grant obtains the grant.
The POA is to be deposited at the registry of the court. A copy of the POA will accompany the affidavit
in support of the application for the grant of the LA.
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Where a person entitled to a grant is an executor and is outside the jurisdiction, a grant of LA with will
annexed may be made to his attorney for the use of the person until the executor applies for and obtains
the probate. Where there are other executors, the application will not be granted until a notice has been
served on the other executors.
Grant to Minors
Where the person entitled to a grant is less than 18 years, a grant shall not be made to the person but to
his/her guardian for the use and benefit of the child until the child attains the age of majority or full age.
The affidavit in support of application must show clearly that the person entitled to the grant is not of full
age.
Where a sole executor is a child, his/her guardian may be granted administration with will annexed until
the child attains full age when a grant of probate may be granted to the person.
The court may, instead of making a grant to the minor’s guardian, make a grant to any other person as it
deems fit.
Where one of several executors is a child, probate may be granted to any of the others provided the right
of the child to a grant shall be reserved on the child attaining full age.
Persons who can be made guardians

1. The child’s parents jointly, including adoptive parents
2. A guardian appointed by one of the parents to be the testamentary guardian after that parent’s
death to act jointly with the surviving parent but where there is an objection by either the surviving
parent or the testamentary guardian, either could apply to the court for direction
3. Any guardian appointed by a court of competent jurisdiction in cases where the child has no
testamentary guardian or where the guardian has died or refused to act or where the child has no
parents or persons with parental rights
Disability Grants
Where a person entitled to a grant suffers a mental or physical disability and is consequently unable to
manage his/her own affairs, a grant may not be made for his use and benefit during the period of disability.
A grant can only be made to another person if there are no persons entitled in the same degree as the
person with disability.
Where one of several executors is under mental or physical disability, a grant can be made to the others.
In the interest of the person under disability, the court may grant to a person entitled to the residuary estate
if there is a will, or on intestacy, to any person the court considers fit where the person has an interest in
the estate.
Page 155 of 159

Civil Procedure
Incapacity after Grant
Where a person to whom a grant is made later becomes incapacitated, the grant shall be revoked and a new
grant shall be made on the application of any person interested in the estate or any other person that the
court considers fit.
Grant to Prisoners
A grant shall not be made to a person serving a prison sentence. Where a person entitled to a grant is in
prison, the grant can be made to his attorney or the court may appoint another person as administrator in
his place.
Where a person to whom a grant is made is subsequently jailed, the grant will be revoked and a new grant
made to the person’s attorney.
Grants Ltd by Terms of Will
A testator may appoint a general executor and another person as a special executor for specific purposes.
Both may apply for a grant of probate but their powers shall be distinguished. If application is made by one
of the executors only, a grant may be made to him reserving the right of the other executor.
Absentee Grant
Where any personal rep to whom a grant has been made resides outside the jurisdiction, the court on the
application of any creditor or person interested in the estate of the deceased may make a limited grant until
the personal rep who is absent returns to the jurisdiction.
Grant for the Preservation of the Estate
The court may make a grant for the preservation of the estate before those entitled to a grant apply.
The application may be made ex parte by a creditor or a person who has an interest in the estate. A grant
made by the court for preservation shall be limited to the collection and receipt of property that forms part
of the estate and any other acts that the court will direct.
A grant for preservation may be made to the administrator general upon his application.
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Administration Pendente Lite
When a probate action is pending, an application may be made to the court to grant administration pendente
lite in accordance with s80 of Act 63.
An application may be made by one of the parties to the suit or by a person interested in the estate. If the
person to be appointed is connected to the suit the consent of the party shall be sought unless the court
decides otherwise.
The person appointed shall submit accounts to the court and also provide security and shall be remunerated
as directed by the court.
Administration De-bonis Non
This is a special grant iro unadministered assets. Where all the persons to whom a grant of probate or LA
has been made become deceased without completing the administration, and the chain of representation
has been broken, a grant of LA with will annexed or LA shall be made iro the unadministered assets to
those entitled.
Second Grant
Where a limited grant is made to one person for the use of another and the grantee dies before completing
the administration, or where the original grant is limited in time or until the happening of an event, and the
time expires or the event occurs, the court shall make a re-grant to such person as is entitled to it.
ELECTION PETITIONS
Presidential Election Parliamentary Election
Supreme Court High Court
By way of petition By way of petition
Action to be brought within 21 days of declaration Action to be brought within 21 days after
of results by the EC publication of results in the Gazette
March 19, 2014
Page 157 of 159

Civil Procedure
Parliamentary Elections Disputes
Election disputes arising out of parliamentary elections must be determined by the HC. Under s17 of the
Representation of the People’s Law, 1992 (PNDCL 284), an election petition may be presented to the HC
within 21 days from the publication of the results in the Gazette by one or more of the following:
(a) A person who lawfully voted or had a right to vote at the election to which the petition relates
(b) A person who claims that he had the right to have been elected at the election
(c) A person alleging to have been a candidate at the election
(d) A person claiming to have had a right to be nominated as a candidate at the election
See: Ten-Addy v EC [1996-97] SCGLR 589
Contents of the Petition
1. Name and address of the petitioner and his counsel, if any.

2. Name and address of the respondent and his counsel, if any.
3. The petition must be in writing and signed by the petitioner and/or his counsel.
4. The petition must be addressed to the HC where the action is to be commenced.
5. It must contain a statement of the nature of the claim, the nature and extent of the reliefs being sought
and the grounds upon which the reliefs are being sought.
6. It must contain a statement of the facts relied on to be verified by an affidavit and the law in support
of the petition.
7. It must indicate the number of witnesses to be called if any.
8. It must properly be headed e.g.
IN RE THE REPRESENTATION OF THE PEOPLES ACT, 1992 (PNDCL 284)

AND
IN THE PARLIAMENTARY ELECTION FOR TWEAA CONSTITUENCY
PETITION BY KOFI MENSAH
The respondent, upon service of the petition, then files an answer to the petition.
NB: By s18(1) of PNDCL 284, an election petition on an allegation of corrupt practices, e.g. alleging
payment of money or other award to have been made by the person whose election is questioned, must be
presented within 21 days after the date of the alleged payment.
Under s18(3) of PNDCL 284, the time limited for presenting a petition by the law whether the 21 days
from the date of Gazette publication or 21 days under s18(1) where corrupt practices is alleged, shall not
be extended.
S18(2) also requires that the petitioner pays to the HC security for costs, determined by the HC, within the
21 days. Failure to pay the security for costs invalidates the petition – Rep v EC ex p Amoo [1997-98] 1
GLR 938.
Page 158 of 159

Civil Procedure
Reliefs to be Granted by the Court
1. Declaration that the election to which the petition relates is void and order fresh elections.
2. Declaration that the candidate other than the one whose election is questioned was duly elected.
3. Dismissal of the petition and declaration that the one whose election is in question was duly elected.
Presidential Elections Disputes
Art 64(1) of the 1992 Constitution provides that the validity of the election of the president may be
challenged only by a citizen of Ghana by a petition addressed to the SC.
The petition must be brought within 21 days after the declaration of the results.
Art 64 further provides that the Electoral Commissioner and the candidate whose election is being
challenged shall be the respondents to the petition.
Page 159 of 159


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CIVIL PROCEDURE CLASS NOTES

GHANA SCHOOL OF LAW

STRUCTURE OF COURTS IN GHANA 8

Procedure pursuant to order 81

Scandalous & Irrelevant Matters in Affidavits 103

Appointment of Receiver 128

Notice of Grant 148

STRUCTURE OF COURTS IN GHANA1

It has supervisory jurisdiction over all courts in the country.

3. H igh Court (& Regional Tribunals )

It exercises original jurisdiction in all matters civil and criminal.

It has supervisory jurisdiction over all lower courts in the country.

It has jurisdiction in civil and criminal cases.

We don’t have Magistrate Courts; the judge in a DC is described as a magistrate

- Jurisdiction of lower courts is determined by the Courts Act.

A court which has jurisdiction to hear cases between private parties.

Badu v Boakye [1975] 1 GLR 283

By law, all court proceedings are held in public:

• Courts Act (Act 459), s102

Exceptions to Public hearings

• Matrimonial Causes Act, 1971 (Act 367), s39

• CI 47, Or.65 r20(1)

Three exceptions where non-compliance cannot be cured:

1. If the default infringes on the rules of natural justice.

October 14, 2013

• maritime action (Or. 62)

Sources of Civil Procedure

1. Rules of Court e.g. CI 47, CI 16, etc.

COMMENCEMENT OF CIVIL ACTIONS

1. Determine whether the person has a cause of action 14.

2. Determine whether the cause of action has accrued 15.

Akuffo-Addo v Catheline [1992] – capacity

6. Decide on the venue where the action will be brought 16.

- The goods were in the possession of the person suing;

October 16, 2013

CHRAJ v EP Church [2001-2002] 1 GLR 356

Held, dismissing preliminary objection:

Contents of the writ Or.2 r3:

Held inter alia;

Held inter alia

Gbogbolulu v Hodo [1941] 7 WACA 164

Rep v HC Accra Ex P Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR 398

Address for Service

Held inter alia:

IN THE HIGH COURT OF JUSTICE

ADWOA MANSAH PLAINTIFF

1. KWAKU BONSAM DEFENDANT

Dated this 1st day of January 2010

This writ was issued by (name of plaintiff/lawyer)

Whose address for service is ……………………………………

Agent for …………………………………….

Lawyer for the plaintiff (name of lawyer) who resides at ……………………….

Indorsement to be made within 3 days after service

This Writ was served by me at

On the …………….. day of

Endorsed the …………….. day of

SERVICE OF PROCESS GENERALLY

1. Processes are served by bailiffs or private process servers – Or.7 r1.

3. Personal service, per Or.7 r3 is done as follows:

6. Service on particular persons – Or.7 r5

October 21, 2013

Modes of Substituted Service

5. By advertising in the media within the jurisdiction of the court.

SA Turqui & Bros v Dahabieh [1987-88] 2 GLR 486, CA