PARTICULARS OF PLEADINGS 17/01/2022

It is not uncommon that from time-to-time pleadings are made with

averments or vague terms. e.g it may be averred that the pleading was
dismissed because of misconduct.

When it happens that way unless you are giving the particulars of
misconduct you may not know.

A pleading may as a result not provide full details to the opposite party
and he risk being taking by surprise unless he asks for further
particulars. In order to avoid half- hearted pleadings or vague pleadings
order 11 rule 12 requires every pleading to provide full details of any
claims or defence or other matters pleaded in order that vague and
uncertainties are avoided. This must me supplied by the pleader.

Ecobank Nigeria plc v His Hands Housing Agency 2017/18 1

SCGLR pg 355

A party is required to give in his pleadings the full constituent of any

allegations of misrepresentation, fraud, deceit, breach of trust, undue
influence etc if the party relies on these as a defence. The full particulars
of the defense must be provided. Any such allegation which the
defendant makes as a defense, the defendant is under an obligation to
provide that particulars
Osei Ansong and passion international school v Ghana Airport
Company LTD 2013/14 I SCGLR
Bank of West Africa v Holbrook 1966 GLR

A pleader who alleges a disability or disorder of the mind of any person

or a pleader who alleges any condition of the mind is under an obligation
to give particulars of that condition. E.g defence that the testator was
non compose mantes must be proved. Allegation as to malice, fraudulent
intent must be shall be accompanied by particulars.

FUNCTIONS OF PARTICULARS
Particulars inform the party asking them more specifically of the case
they should expect at the trial. Until you ask the plaintiff to provide the
particulars you will never know what case you will be facing at the trial.

Particulars also limit the generality of the pleading and consequently

delimits the issue very clearly
Yorkshire Providence life assurance company v Gilbert and riven
ten
Aga Khan v Time Publishing Company 1924 1 KB

Particulars prevent surprise at the trial and limit inquiry at the trial to
matters set out in the particulars. Particulars tend to narrow the issues
Wooley v Broad 1892 vol2 KB

Where particulars are applied for and obtained the issue (s) becomes
limited and the particulars then become binding on the party who gave
the particulars. The party who supplies the particulars cannot give any
evidence outside the particulars given.

Particulars supplement and form part of the pleadings which they

amplify. Because the pleadings has been expanded through the
particulars.

Where particulars are provided at the trial evidence can only be given
within

Esso Petroleum Company ltd v South Corporation.

Particulars do not amount to amendment and also do not take the place
of pleadings and for that reason if particulars given do not cover a
particular matter no evidence can be given in relation to that matter
which has not been given in the particulars. You are confined to the
particulars given.

Pinson v Lloyds and National Foreign Bank 1941 vol2 KB pg 72

Where no particulars are given or where the particulars given in the

pleadings are general or vague in nature the party on whom that pleading
is served may under order 11 rule 12 sub rule 6 apply by a letter, first
and foremost, to the party who served you with that pleadings to supply
you with the particulars of the vague or general pleadings.
Where the request made for further and better particulars is not answered
with a reasonable time or is refused, then the party may file an
application to the court for an order upon the other party to furnish him
with better particulars order 11r12.

If a request is not first made by party in writing to the party who filed
that vague pleadings and an application is filed straight away the court
reserves the power to refuse the application for the reason that you have
failed to write to your opponent first unless you have justifiable reasons
for not writing to the party.

Application for further and better particulars are made on notice

supported by an affidavit in which shall be stated the particulars required
and the reasons why they are required.

A party has no right to ask for further and better particulars of any
matter which has not been raised or pleaded in the pleadings. The
application shall be made promptly and without delay as soon as it has
been served otherwise the application may be refused by the court.
NB the court will not make an order for particulars which cannot be
given. The court will also refuse an application for particulars which is
also otherwise oppressive on the respondent.
Sampa v Sacker

Where a plaintiff has been ordered by a court to furnish particulars his

action is likely to be struck out if he refuses to supply the particulars
Davey v Bentinck 1893 1 QB
A defendant who refuses to furnish particulars his defence may struck
out
Ress v Wolves 1952 2 QB 557

Where the information based on which the particulars may be given are
within the exclusive knowledge or possession of a party a court may
order particulars before discovery is made. A defendant may not be
granted an order for particulars of a statement of claim until he has filed
his statement of defence. However, where a defendant needs the
particulars to enable him file a statement of defence then the court may
grant him an order to enable him file his defence. Where the particulars
required are within the knowledge of the applicant i.e the person asking
for the particulars instead if the respondent or where the respondent does
not have the information required an order will not be made upon the
respondent to furnish the particulars

Miller v Harper 1888 vol38 chancery division pg 110

Where material facts are not pleaded or alleged in a pleading a cause of

action or a defence may not be available to be available to the pleader. If
that is the case a party cannot through particulars seek to fill in the gap
or seek to cure the defect.

Bruce v Odhams Press ltd 1936 1KB pg 697

An order for particulars to be supplied does not necessarily operate as a
stay of proceedings unless the court expressly says so.

ADMISSIONS AND DENIALS IN PLEADINGS

Any allegation made by an opponent in that opponents pleading which is

not admitted shall be expressly, categorically and specifically traversed.
A traverse is a categorical and complete denial of any allegation in the
statement of claim that is not admitted. O11R13(2)
State Transport Corporation v Addo 1977 1GLR pg 77

Every allegation which is not specifically or by necessary implication

denied shall be taken as admitted unless issues are joined on same by
operation of law O11R13(1)

A denial which is not specific in nature may be taken as an admission.

An admitted fact does not become a fact in issue. It is not facts that are
denied which comes into issue and upon which evidence ought to be led
to prove same

Kusi and Kusi v Bonsu 2010 SCGLR pg 60

A general statement of non admission shall not operate as a denial of

facts alleged in a statement of claim or in a counterclaim. Therefore
where an allegation of fact is made in a statement of claim or
counterclaim or in any pleading whatsoever, which is not intended to be
admitted shall be specifically denied
Offei v Asamoah 2017/18 vol SCLRG pg 417

An allegation of damage or damages suffered is deemed denied unless it

is specifically admitted and it therefore need not be specifically denied.
Ie. the person alleging that damage has the duty to prove that allegation.

STATEMENT OF CLAIM. 18th January,2022

Statement of claim contains allegations of fact in summary form which

the plaintiff relies upon to prove his claim endorsed on the writ of
summons against the defendant. The facts alleged in statement of claim
must be material and disclose an accrued cause of action in the plaintiff
against the defendant at the time the writ of summons was filed.

Morkor v Kuma 1998/99 SCGLR pg 620

The relief or the remedy which the plaintiff seeks against the defendant
must be specifically stated on the statement of claim O11R15(1)

This is so because the effect in the endorsement on the writ of summons

is said to be cured by the statement of claim

Opoku No.2 v Axes company ltd 2012 vol2 SCGLR pg1214

If you state the relief or the remedy or the claim which the plaintiff seeks
from the defendant in the writ of summons and there is a defect, that
defect is cured in the statement of claim. However, where it is not
repeated in the statement of claim it is deemed to have been abandoned

A statement of claim can be divided into three main parts

The introductory part/ averment
Body/ pleading
The relief/ remedy sought

Introductory part/averment
NB- normally the first two paragraphs deals with the averment. The
introductory part introduces the parties and states the capacity of the
parties and relationship between the plaintiff and the defendant.

Sometimes if the defendant or plaintiff is sued in a representative

capacity it ought to be stated in the introductory part of the statement of
claim

Body
This part of the statement of claim contains the details of the transaction
indulged in by the parties. It tells you why the parties are in court. All
the material facts are stated here. The full particulars of the body are
stated in the body of the statement of claim
A plaintiff who omits to state the material facts of his case may loose his
claim

Collette v Goode 1978 vol7 CHD pg 842

A statement of claim is aid to disclose a cause of action if the alleged

facts discloses a legal or equitable right vested in the plaintiff at the time
he filed the writ and a consequent breach of that legal or equitable right.

Two things which when put together is referred to as a cause of action;

Legal Right/Equitable right
Breach of the right

That at the time you filed the writ these two things must have accrued to
you

The facts that gave the plaintiff the legal right he asserts and the facts
that constitute the breach of the alleged legal rights must be fully and
completely pleaded. Failure of which the plaintiff will be asked to
furnish better or further particulars at a great expense

Where the plaintiff claims special damage, particulars of the special

damages must be pleaded and proved at the trial. A plaintiff cannot in
the statement if claim make allegations in respect of a cause of action
which has not been endorsed on the writ of summons unless the
allegation seeks to expand a cause of action already endorsed on the writ
of summons.
O11R15(2)

A plaintiff cannot in the statement of claim ask for a relief or remedy

which has not been endorsed on the writ of summons unless the relief or
remedy being asked for arises or flows naturally from a claim or relief
already endorsed. E.g someone hits your car in your hurt you ask for
general damages for the damage to your car as relief one. Relief two you
ask for general damages for pain and suffering. If these are the
endorsement in your writ of summons you can expand it in your
statement of claim by giving details of the general damages and the
inconvenience you suffered from the reliefs BUT you cannot seek a
remedy which does not arise in your writ of summons

Where more than one defendant has been sued the statement of claim
shall disclose whether they have been sued jointly or severally or jointly
and severally. Where claims are made or sought in the alternative that
must be clearly stated in the statement of claim. In the claim for
damages or libel or slander O57R3(1) demands that particulars be given
be given of the facts or words which constitute the libel or slander must
be stated in the statement of claim and the writ of summons i.e. The
particular words used by the defendant in a claim for libel and slander
must be stated. If the defendant used a particular term and that term is
considered as an innuendo then that statement must be stated and the
meaning of the innuendo must be stated in the writ of summons and the
statement of claim
Particulars shall also be provided in a mortgage or money lenders action
O59(3)

Under O66R40(3) a plaintiff shall specifically deny the interest of the

defendant if the plaintiff disputes the defendants interest in the estate

RELIEF
This part repeats virtually the endorsement of the writ of summons and
may expand the endorsement. The relief or the remedy sought by the
plaintiff against the defendant must be specifically stated in the
statement of claim

A relief which is not repeated in the statement of claim shall be deemed

abandoned
Unilever Ghana LTD v Karma Health Services ltd 2013/14 vol
SCGKR pg 861

The relief tells the court the kind of redress which the plaintiff seeks
from the court. It is from the relief or reliefs that one determine whether
or not the court has jurisdiction in the matter brought by the plaintiff

A plaintiff may in the statement of claim alter, modify or extend any

claim endorsed on the writ without amending the writ. A statement of
claim supersedes the writ.
Opoku no.2 v Axis company ltd
STATEMENT OF DEFENCE
A defendant who has filed an appearance is required to file a statement
of defence within 14days from the date of filing the appearance unless
the defendant has filed a conditional appearance under O9R8

A defendant served with an application for summary judgment is under

no obligation to file a statement of defence before the hearing of the
application for summary judgment O11R2(2).
However where the application for summary judgment is dismissed the
defendant shall file a statement of defence within 14 days or the
statement of defence may be filed within such time determined by the
court.

Republic v High Court Accra; Ex parte Efoda

Before a statement of defence is filed a defendant ought to scrutinize the

writ if summons and the statement of claim carefully for any possible
objection. Objections like non-disclosure of causes of action, wrong
joinder of parties,`wrong joinder of cause of action, non-fulfillment of
conditions precedent can all be unearthed by the statement of defence.

An application may be filed by the defendant to strike out the suit, writ
of summons or the statement of claim or a part of the statement of claim
as may be appropriate
The defendant shall in statement of defense state in specific terms the
allegations in the statement of claim which he admits. He shall also state
categorically the allegations in the statement of claim which he denies
and then set forth his own facts on which he intends to rely to answer the
plaintiffs claim. A statement if defence may therefore contain the
following;
Admissions
Traverse(denials)
Confessions and avoidance
Objections in point of law
Plea of set off
Counter claim etc

ADMISSIONS
Any allegation in the statement of claim which the defendant admits
shall be sued as admitted in the statement of defense. The failure by a
lawyer to admit facts which ought to be admitted creates a very bad
impression of lack of condor.

Where an allegation is admitted in pleading there is no need for evidence

to be adduced at trial to prove

Ofori v Ayibi
Pioneer Plastic

An admission made in pleadings may in a proper case and with leave of

the court be withdrawn or amended O23R5
Hollis v City of Baton 1892 vol 3 CH pg 326

TRAVERSE
A traverse is a specific and a categorical denial in a statement of defence
of an allegation contained in the statement of claim and which is not
admitted by the defendant.

Traverse is stated in the form of a denial. E.g the defendant denies

paragraph 3 or does not admit paragraph 3 of the plaintiff statement of
defence

Warner v Sampson and Another 1959 1Qb pg297

Every material allegation in a statement of claim which the defendant

does intend to admit shall be denied by the defendant in the statement of
defence

Every material allegation contained in the statement of claim which is

specifically and categorically denied in the statement of defence shall be
deemed admitted unless the denial flows by necessary
implication O11R13(1)

An issue is said to be joined between the plaintiff and the defendant in

respect of all material allegations made in the statement of claim and
denied in the statement of defence. It is only where an allegation is
denied that it becomes a fact in issue to be proven at the trial.
In order to avoid the effect of a failure to deny by inadvertence of an
allegation contained in the statement of claim, lawyers in beginning or at
the end of the statement of defence state a general traverse

The general traverse may state for e.g. Save as herein expressly
admitted, the defendants deny each and every averment contained in the
statement of claims as if same were set out in extensor and denied
seriatim.

Q. WITH THE AID OF DECIDED CASES DISCUSS THE

PROVISIONS OF O81 OF THE HIGH COURT CIVIL
PROCEDURE RULES OF 2004 (CI 47) AS AMENDED.

It has been held that a general traverse has the effect of a specific
traverse.
A.C.E Jimona LTD v Nigerian Electrical Contracting Company Ltd
1976 vol1 all NLr.

Where the allegation is material and essential a general traverse is not

enough to deny it-
MESSERS LEWIS AND PEAT V A.E. AKHIMIEN 1976 vol7 SC
pg 167
Whereas some of the authorities say the general traverse is enough
others say that if the allegation is essential in a statement of claim you
need to specifically deny.
In Ghana, a general statement of non-admission shall not be a sufficient
traverse O11R13(3)

Akyer v Ghana Industrial Development Corporation 1963 vol2 GLR

pg 291
Ansah v Busanga 1976 2GLR pg 488
Bruto v Aferiba 1982/83 GLR pg 464

The statement ‘ the defendant is not in a position to admit or deny’ has

been held to be BAD pleading and amounting to non-denial i.e. It means
you have admitted
Evelyn Asiedu v Yaw Asamoah and Another Suit no. J4/64/2016
25th April ,2018

That general statement of traverse appears to mean not to have any

strong effect. Because our laws says that you either admit it or deny it.
There is no middle way.

Where a defendant alleges that, before the action was instituted by the
plaintiff he the defendant tendered the amount claimed or part of it to the
plaintiff and that the plaintiff refused to accept the amount, the
defendant shall pay the amount into court before he will be allowed to
rely on that defence. This is known as the defence of tender. O11R16.

Where the defendant alleges the plaintiff is also indebted to him, the
defendant shall include in his statement of defence the claim made by
him or simply his claim against the plaintiff as a set-off. E.g A sues B. A
claims 200000 and in the mean time B also alleges 25000. The
defendant is to include in his counter claim an amount of 25000. If after
trial both parties are able to prove their claim then the court will make an
order that the money owed to the plaintiff be paid minus that owed the
defendant as a set-off.

CONFESSIONS AND AVOIDANCE

Confession and avoidance is a type a pleading which normally made by

defendants. It can indirectly be made by the plaintiff where a
counterclaim has been made.

The defendant admits alleged facts in the statement of claim

(confession). Then goes ahead to allude to facts which in effect negates
the admission made(Avoidance). The defendant makes or pleads
statement of facts in his statement of defence and thereafter he continues
to plead facts which has the effect of negating the allegation which he
has already admitted. E.g you buy items on credit and then you paid.
The company pleads that you bought items worth 100000. First you
admit that indeed you bought items worth 100000 then, in the next
paragraph you went and paid for the cost of items bought that is the
avoidance. In it means you have made averments that negate the
admission made.

The material facts, by which the defendant intends to avoid the effects of
the admission made by him must be pleaded subsequent to the
admission. When this is dome it then becomes the responsibility of the
defendant to prove the facts by which he avoids the admission made by
him at the trial. From the Previous e.g. Once you have confessed buying
goods worth 100000 and you do not prove that you have already paid for
the goods by producing evidence then the plaintiff will go in for
judgment. NB once there is a confession by the defendant the burden
shifts unto the defendant to lead evidence.
Cocoa Marketing LTD v Ansah 1997/98 vol2 GLR pg 514
Asante v Sarpong 1963 2GLR PG 359

STRIKING OUT PLEADINGS

O11R18(1a) permits any pleading that discloses no reasonable cause of

action or that discloses no defence to struck out.
Ghana Muslims Representative Council v Salifa 1975 GLR pg 246
Appiah II v Boakye 1993/94 vol 1 GLR pg 417

In such applications the applicant shall not adduce any evidence.

Whether viva voce evidence or affidavit evidence. It is only the pleading
in question that may be resorted to you may rely solely on then writ and
the statement of claim.
Okofoh Estate LTD v Modern Signs Ltd 1996/97 SCGLR pg 224

Here the court is called upon to determine whether or not the pleading
discloses a reasonable cause of action or a reasonable defence. The
application may also be brought under the inherent jurisdiction of the
court. You bring the application either under the rules or under the
inherent jurisdiction of the court. Where the latter is resorted to you may
adduce evidence
Harriet Morrison v Registered Trustees Victory Bible Church
2015/16 Vol2 SCGLR pg 1628

A pleading may also be struck out if it is scandalous, frivolous or

vexatious or if it may prejudice, embarrass or delay the fair trail of the
action or it is otherwise an abuse of the process of the court. Where these
grounds are invoked, affidavit and other evidence may be adduced or
admitted.

Note the difference: whereas affidavit is not permissible under

o11r18(1a) where you seek to strike out a pleading that it is scandalous,
frivolous…. Then the applicant may attach an affidavit to his
application otherwise.

O11r18(1a) constitutes an exception to the requirement that an

application shall always be accompanied by an affidavit O20
Eastern Alloy Company v Silverstar Auto LTD 2017/18 Vol1
SCLRG pg 329

The court in exercising its inherent jurisdiction to dismiss an action as

being frivolous, vexatious and an abuse of the process of the court can
look at extrinsic evidence.

Bank of West Africa Ltd v Holbrook 1966 GLR pg 164

An action in which the plaintiff did not have the right to sue was said to
be frivolous and vexatious and without substance or it was groundless
and fanciful-
Modern Signs case and Shaffer v Goldmed 1896 1KB

A pleading may be said to be scandalous if it is abusive in nature or

alleges indecent or offensive matters which are totally irrelevant to the
issues.
Lartey and Lartey ltd v Beany and another 1987/88 vol1 GLR pg
590

O11r18 states that the application may be brought at any stage of the
proceedings. The phrase any stage of the proceedings has been
interpreted to mean with reasonable time
Meters property and Investment 2015/16 1 SCGLR pg 605

The procedure to strike out an action summarily i.e. Under o11r18 must
be resorted to only when an action is clearly unsustainable. Refer to the
case above.

A defendant need not enter appearance before filing an application to

strike out a statement of claim
Akita v Republic Bank 2013/15 2GLR pg 824

Whether or not a court will strike out a pleading depends on the

circumstances of the case. The court has a discretion to decide to strike
out a pleading or not. Such discretion must be exercised fairly and
reasonably taking into consideration the totality of the pleadings placed
before the court.

A writ of summons and a statement of claim which do not disclose a

course of action cannot be cured by an amendment.
Deegbe v Nsiah 1984/86 1GLR pg

A pleading which offends any of the matters mentioned above may be

stayed or dismissed by the court under the inherent jurisdiction of the
court.

REPLY
O11R3
A reply is a pleading. It is a pleading filed by a plaintiff who wishes to
respond to fresh allegations made by a defendant in the defendants
statement of defence.
A reply consists of the plaintiffs answer to the allegations contained in
the statement of defence.

A reply is not necessary i.e. A plaintiff is under no compulsion to file a

reply if the only purpose for wanting to do is just to deny the allegations
made in the statement of defence. This is so because there was an
automatic denial of all allegations or averments made in the pleadings
last served. O11R14(2a) ( there is an automatic denial, thus there is that
presumption in the last pleading served, except statement of claim, by
virtue of that there is a joinder of issues on the pleadings last served) it is
in the reply that plaintiff has the opportunity to respond to allegations
made by the defendant in the statement of defence. To the extent that
there is an allegation to respond to then a reply is necessary if not then it
is not necessary.
Adjei Agbosu v Kortey 2003/04 1 SCGLR pg 420

If a defendant fails to file a statement of defence then there shall be no

joinder of issues in respect of the statement of claim if it is the only thing
that has been filed. Reason being that a defendant can’t be taken as
having denied any allegation in the statement of claim hence there is no
joinder of issues

If a plaintiff decides not to file a defence to a counterclaim made in the

statement of defence then there is no joinder of issues as far as the
allegations in the counterclaim are concerned.
Just as a defendant may include a counterclaim in his statement of
defence so can a plaintiff also file a defence to counterclaim in the reply.

A joinder of issue(s) operates as a denial of material allegations

contained in a pleading. A joinder of issues shall not operate as a denial
of material allegations if it has been admitted.

Where a plaintiff intends to file a reply, ie. A reply to the statement of

defence, he shall do so within 7 days after the service of the statement of
defence on the plaintiff.
It is by a reply that a plaintiff may respond to the plea of confession and
avoidance made by the defendant in the defendants statement of defence.
Hall v Eve 1876 vol2 CHd pg 341
The reply is the place where the plaintiff may raise matters for the first
time not previously raised in the statement of claim but which are
necessary to answer allegations made in the statement of defence by the
defendant. it is only in the reply that the plaintiff can do that.

A plaintiff who fails to raise or allege facts in answer to averments in the

statement of defence will not be allowed to lead evidence at the trial on
those facts unless that facts flows naturally or impliedly from facts
which have already been pleaded.

In the reply a plaintiff may admit or deny or challenge any allegation of

fact made in the statement of defence.
In the reply the plaintiff may join issues with the defendant on the
statement of defence.
The plaintiff may state in the first or last paragraph “ the plaintiff
generally joins issues with the defendants”

Where the plaintiff admits some of the allegations in the statement of

defence he may single out those paragraphs and except them from the
joinder of issue. The plaintiff may state that “The plaintiff joins issues
with the defendant on the defendants statement of defence except
paragraph 5,7,9”

Depending on how the statement is phrased it may amount to a denial or

an admission.
A defence to counterclaim is often incorporated in the reply which
therefore makes it unnecessary for a separate defence to counterclaim to
be filed by the plaintiff

A plaintiff is not permitted to set up in his reply a new cause of action or

claim which has not already been endorsed in the writ of summons.
However a plaintiff may expand or explain or give further details of a
claim contained in the writ of summons and the statement of claim
which he has already made in his reply
Odoi v Hammond

After the filing of a reply no party shall file any pleading except with the
express leave of the court O11R4

CLOSE OF PLEADINGS O11R19(1)

There are three circumstances under which we can say pleadings has
closed they are;
1)Pleading is said to close at the expiration of 7 days after service of the
reply.
2) if no reply is filed, pleadings is said to close 7 days after filing a
defence to counterclaim
3) if there is no reply or there is no defence to counterclaim pleadings is
said to close after service of the statement of defence

The tendency of an application for further and better particulars does not
operate to prevent pleadings from coming to a close.
After pleadings have come to a close the plaintiff shall apply within one
month for direction in respect of the further conduct and management of
the case. This is generally known as applications for directions

Default Of Defence O13

A plaintiff who has filed a writ of summons and a statement of claim is
entitled to apply to the court for default of judgment if the defendant has
failed to file a statement of defence.

Application for judgment in default of judgment is governed by

O13 sometimes O59 and sometimes a different rule depending on the
claim at hand.

Where the plaintiff’s claim is for liquidated damages only and the
defendant defaults in filing a defence the plaintiff may apply for final
judgment against the defaulting defendant and proceed with the action
against the other defendants if any.

A plaintiff shall not be entitled to recover judgment for a sum higher

than what he is actually owed by the defendant. O13R1(1)
Lydia Anane Asamoah v Jennis Marfo 2011 vol2 SCGLR pg 832
Bonsu v Doe 1982/83 GLR pg 778

A claim for interest shall not be considered as preventing a liquidated

demand from being recognized as such i.e the fact
Where the claim is for unliquidated damage only the plaintiff may apply
for an interlocutory judgment against the defendant not a final judgment
if the defendant fails to file a statement of defence

Where the plaintiff applies for interlocutory judgment and it is granted

by the court, the court shall fix a date for the assessment of damages.

A defendant against who an interlocutory judgment has been permitted

shall be served with the order for interlocutory judgment and a hearing
notice indicating the date fixed for the assessment of damages

By O13R3 where a plaintiff sues for detinue only he shall be entitled to

interlocutory judgment if the defendant default to file a statement of
defence. The interlocutory judgment may be entered for the delivery of
the chattel or the value of the chattel depending on the claim in the writ
of summons
The plaintiff may proceed in a normal way with the case against the
other defendant who are not in default.

Where a plaintiff seeks recovery of possession of immovable property

only he may apply to enter judgment against any defendant who is in
default of defence and proceed against the other defendants who have
filed their defence. O13R4.

Where there are more than one defendant and one or more of them are in
default of defence and the plaintiff succeeds against those who are in
default of defence then the plaintiff shall not be entitled to go into
execution of the judgment against the defendant. In that case the
enforcement of the judgement is suspended until he is able to prove his
case against those who filed a statement of defence.

Where the plaintiff claims for recovery possession arises out of

mortgages, the plaintiff shall not be entitled to apply for recovery of
judgment. O13R4(3). The plaintiff shall come under O59 of the rules of
court

RULE 5-Where the reliefs sought by the plaintiff are a mixture of the
claims in rules 1 to 4 of 013 and the defendant is in default of defence
then the plaintiff shall be entitled to apply for judgment as he would
have been entitled to do under those rules and proceed against the
defendants who are not ion default.

If the reliefs being asked for is a mixture of R1-4 then if there is default
of defence the plaintiff is entitled to apply for judgment as he would
have been able to under any of the rules. Under R2 and3 you present the
defendant with an interlocutory judgement. R4 no interlocutory
judgment is served all the plaintiff does is to lead evidence in support of
his claim to convince the judge.

Where the plaintiff claims to the reliefs sought by the plaintiff cannot be
found under any of R1-4 and the defendant is in default of defence then
the plaintiff shall be entitled to apply for judgment as if the defendant
has entered defence-R6
In practice the plaintiff is required to adduce evidence under R6 where
the defendant is in default of defence in order to prove his claim whether
the defendant is in default of defence.
NB. To come under R6 the claim of the plaintiff should not fall under
R1-4 the plaintiff shall file a motion for judgment. The motion shall be
supported by an affidavit. In the affidavit the plaintiff shall state in it that
the writ of summons has been served on defendant and particularly as
far as 13(6) is concerned that the defendant has filed or entered
appearance. That the time for the defendant to file his defence has
elapsed. Recite the claim against the defendant in the affidavit. The
plaintiff must depose to the fact that he has done all that is to be done to
ensure that defendant makes it it court. That upon all that has been done
by the plaintiff the defendant still fails to appear in court hence the
plaintiff prays judgment be given against the defendant. The application
is made on notice and not ex parte. One the application is made on
notice then there must be evidence that the motion paper together with
the affidavit has been served to the defendant at least three clear days
before the hearing.

Once the application is moved the judge may either ask the plaintiff to
mount the witness box to prove his claim or the judge may adjourn the
case to a date for hearing.
Where the case is adjourned to another day for hearing then plaintiff
ought to serve the defendant with another notice for the day of the
hearing. When the date arrives the plaintiff shall appear together with his
witnesses and prove his claim on the preponderance of probabilities
before judgement may be given for the plaintiff. Once evidence is given
it is judgment borne out of a trial then FINAL judgment will be given.
The plaintiff is to give full evidence irrespective of the presence of the
defendant.
Cocoa Engineering (Ghana) LTD v Moses 1984/86 2GLR pg 319
Republic v High Court Accra; Ex parte Ernest Asiedu Osafo 2011
vol 2 SCGLR pg 966

O13R7-Where a defendant files a counterclaim against the plaintiff, the

defendant is treated as far as the counterclaim is concerned as a plaintiff
whiled the original plaintiff is for the purposes of the counterclaim is
treated as defendant.
A plaintiff against whom a counterclaim has been filed is required by the
rules to file a defense to the counterclaim.
If the plaintiff fails to file a defense he is said to be in default of defense
to the counterclaim concerned and if that happens then the rules on
judgement in default of defense shall apply equally to the plaintiff who
is in default of defence to the counterclaim

Any party against who a counterclaim is filed who defaults in filing a

defense to the counterclaim is subject to the rules in default of defense.
Under O59 which deals with mortgage or money lenders action where
the defendant defaults in filing a defense, the plaintiff may apply for
judgment in default of defense only with the leave of the court and the
application has be to be on notice to the defendant although the
defendant is in default of defence.
In a money lenders action, the Court upon considering the application
for leave to enter judgment, the court may make an order for the
recovery of the sum or part of the sum claimed by the plaintiff. Where
the court makes an order for recovery of part of the sum claim then the
court may give direction in respect of the remaining amount concerned.

In a maritime action the rules on default of appearance and of defence

under O10 and 13 do not apply. O62R15(9).

In maritime actions where a defendant defaults in filing an appearance

the plaintiff may apply for judgment in default of appearance in the
following manner;
the plaintiff shall file an affidavit proving that the writ has been duly
served. In the said affidavit the plaintiff shall verify the facts based on
the application which has been brought in connection with the statement
of claim.
The application shall be brought after the expiration of 14 days after the
service of the writ
Where a defendant is in default of defence in a maritime action, the
plaintiff may apply for judgement in default of defence by filing an
affidavit in which shall be deposed the fact of the default of defence in
the said affidavit the and a verification of the facts based on which the
suit was instituted together with a copy of the statement of claim shall be
exhibited with the affidavit. O62R15(4)
Where a plaintiff defaults in filing a defence to a counterclaim the
defendant may apply for judgment by filing an application supported by
an affidavit. In the said affidavit the defendant shall verify the facts
based on which the counterclaim was filed together the counterclaim
shall attach a copy to the affidavit. O62R15(5)
Affidavit evidence is acceptable in default of defence or appearance
under maritime claims unless the court otherwise directs

NB-as far as probate actions are concerned judgment in default of

appearance or defence is not allowed. That in probate actions brought
under o66 of the rules, whether there is default either of appearance or
defence an application is made for the suit to be set down for trial

Setting aside default judgment

Judgment entered in default of appearance or defence may be set aside

upon an application made for that purpose O10R8 O13R8.
The application is made on notice with an affidavit in support. With
an affidavit in support the applicant shall be posed with two major
requirements at least before the application will be granted:
• The applicant shall depose to facts which explains the reason(s) why
he defaulted in entering appearance or filing his defence
• The applicant shall depose to facts which show that he has a
reasonable defence to the plaintiffs claim.

Djorbua v Poku 1971 1 GLR pg 93

Botchway v Daniels 1991 2 GLR 262
Where a defendant files his defence after the time limited for doing so
but before judgment is pronounced the defense so filed shall not be
ignored by the court
Republic v High Court Commercial Division Accra Ex parte Ports
Handling Company LTD 2013/14 SCGLR pg 1219
Republic v High Court and Another Ex parte Ohene 1995/96 vol 1
GLR pg1

An applicant is entitled to have a default judgment set aside where a sum

greater than was actually owed has been awarded to the respondent in
the default judgment.
Lydia Anane Asamoah v Jennis 1Marfo 2011 vol2 SCGLR pg 832

An application for a judgment in default of defence shall be brought on

notice to the defendant with a supporting affidavit O19R1(1)(3)
Equally an application to set aside a defaulting judgement shall be made
on notice O19R1(1)(3)

COUNTERCLAIM
Where a defendant has a claim against a plaintiff who has sued him the
defendant may include a counterclaim in his statement of defence
against the plaintiff. O12R1(1)(2)
Progressive Import and Export Shipping Ltd v Mueller 1991 vol1
GLR pg94

A counterclaim is a cross action and is therefore a separate action which

will be filed to commence proceedings in the court from which the
plaintiffs claim was filed
Kamara v Traore 1968 GLR pg1009
Fosuhene v Attah Owusu 2011 vol GLR pg 273
Hydrafoam estates LTD V Owusu and others vol2 GLR pg1117

A counterclaim shall be one in respect of which the defendant could

bring a separate action against the plaintiff in his own right.
A plaintiff served with a defense and a counterclaim shall file a defence
to the counterclaim within 14 days from the date of service of the
statement of defence and counterclaim. NB. A defence to a counterclaim
is normally included in a reply

The rules on default of defence applies also applies also to default of

defence to counterclaim.

A counterclaim which is beyond the jurisdiction of the court may be

struck out by the court in order that the claim by the plaintiff which is
within the jurisdiction may be heard.

Kamara v Traore 1968 GLR pg 1009

Where the plaintiffs action is stayed or dismissed or discontinued a
counterclaim may nevertheless be heard O12R4(1)
The dismissal or discontinuance of a plaintiffs case does not truncate the
hearing of the counterclaim. Upon hearing the suit and a counterclaim
then court shall give such judgment as the parties are entitled to by law

Counterclaim Against Non-parties

Where a defendant counterclaims against the plaintiff and alleges that
some other person is liable together with the plaintiff on the
counterclaim, the defendant shall join that person to the action as a
defendant to the counterclaim.

A defendant may also file a counterclaim against any other person who
is not originally a party to the suit if the claim against that person relates
to or has a connection with the original subject matter of the suit. Any
such person may be joined as a party and be made a defendant to the
counterclaim O12R5(1)

A person against whom the defendant counterclaims, who is not a party

to the suit shall be added as a party to the suit by the defendant
O12R5(2)

To the extent that the defendant has no power to amend the writ of
summons, that persons name can only be added to the statement of
defence and counterclaim filed by the defendant
The defendant may on the other hand apply under O4R5 to have that
person joined to the suit as a necessary defendant

Counterclaim against a plaintiff shall be served within the same period

as the statement of defense is served under the rules thus, within 14 days
after entry of appearance.
Where a counterclaim is to be served on a person not already a party to
the suit the counterclaim shall be served together with the writ of
summons and the pleadings filed.

A person who is not already a party and who is served with a

counterclaim shall first and foremost file an appearance within 8 days
from the date of service. Thereafter he shall file his statement of defence
to the counterclaim

A counterclaim which is to be served on a person who is not a party to

the suit shall be endorsed with a statement indicating the need to file an
appearance, the time or period for the filing of the appearance and the
registry of the court where the appearance shall be filed.

A person who is not already a party shall as soon as he is served the

counterclaim become a party to the suit irrespective of whether he files
appearance or not.

The rules of joinder of causes of action and of the power of the court to
order separate trials for the causes shall all apply to the management of
counterclaim
PLEADINGS DURING LEGAL VACATION
O79R4 provides for the legal vacation of the High Court of Justice.
The Tuesday following Easter Monday in each year and ending on the
Friday is observed as a legal vacation O79R4

From the first of August in each year to the 30th of September is

observed as the long vacation of the high court.
from 24 DEC to 6th Jan is observed as the Christmas vacation

Although CI 47 applies to civil proceedings in both the High court and

the Circuit court as provided under O1R1(1) the Circuit court being the
lower court does not observe the legal vacation. Judges of the Circuit
court instead go on leave not legal vacation.

The times of the vacations shall be excluded in recording any period in

which a pleading is supposed to be filed, served or amended.

O80R2
The high court has the power to direct that the times of vacation shall
count in the filing or amendment or service of any pleading.

The copyright society v Afreh- where there is a conflict between

substantive law and procedural law, substantive law shall take
precedence over the rules of procedure.
SUMMARY JUDGMENT

It is provide for under O14.

A summary judgment is a judgment given in favor of a plaintiff on his
claims or part of it or to a defendant to his counterclaim or part of it
without the need for formal evidence to be taken from witnesses on the
sole ground that the party against whom the application is made has no
defence to the claim. O14R1 and also in O14R10(1). In an application
for summary judgment there may be no need for pleadings to be filed or
for witnesses to be called.

The judgment is based on the writ and statement of claim or on the

counterclaim and on the depositions in the supporting and sometimes on
the opposing affidavit.

It is intended to be used where it is obvious that the opposite party has

no defence to the claim. Thus, a claim which is the subject matter of the
action.
How to Apply for Summary Judgment
The application is made by filling a motion on notice supported by an
affidavit.
The affidavit shall state the facts upon which the application is based
The application shall also state that with the belief of the deponent
( person swearing to the affidavit) the defendant has no defence to the
claim which is the subject matter of the application

All documents intended to be relied upon in support of the application

shall be exhibited to the affidavit in support.
The motion paper together with the supporting affidavit shall be served
on the defendant.
A minimum of 4 clear days notice shall be given to the defendant before
the hearing of the application. Depending on the date the defendant was
served. NB. Clear days means only weekdays

Application for summary judgment is meant to be used to dispose with

speed cases which are uncontested or which no reasonable defense exists

Application for summary judgment assist in reducing cost and also

avoids delay and unnecessary expenses

In order to apply for summary judgment, the applicant must ensure that
the following is done;
• that the writ of summons and statement of claim has been served on
the defendant if the applicant is the plaintiff
• That the defendant has filed an appearance
• That the defendant had no defence or reasonable defense to the claim

Where the deponent is the defendant then;

that the counterclaim has been served on the plaintiff
That the plaintiff has no defence to the counterclaim

Ballast Nedam Ghana v Horizon Marine Construction Civil Appeal No

J4/182010

If the defendant is able to raise a good defence to the plaintiff’s claim

then the application for summary judgment will not succeed. This
implies that there are issues which ought to be tried. Then an application
for summary judgment will not succeed
Mechanical Lloyd v Brefo 2018/2019 vol 1 GLR pg 640

The object of O14 is to facilitate the early conclusion of actions where it

is clear from the pleadings that, the defendant has no cogent defence to
the action/suit/claim

Sam Jonah v Duodu-Kumi

What shall be done by the defendant after being served with an

application for summary judgment.
A defendant who is served with an application for summary judgment
shall an affidavit in opposition if he intends to contest the application
The defendant may also file his statement of defence if it is not already
filed as well as an affidavit in opposition. In practice, the defendant shall
file an affidavit in opposition.

In the affidavit in opposition the defendant shall disclose the defense he

has in the claim or part of the claim. He is entitled to show cause by
filing an affidavit in opposition or in some other way as to why
judgment should not be given against him.O14R3

A defendant may elect in his affidavit in opposition to rely on the

statement of defense in answer to plaintiffs application
Abivarms ltd v Platum Gas oil 2017/18 1sclrg pg 22

The defendant shall also exhibit to his affidavit in opposition any

document which supports his defense to the plaintiffs claim

The affidavit in opposition filed by the defendant must deal specifically

with the plaintiffs claim for it to be said that a good defense has been
disclosed

The affidavit in opposition must clearly state what the defendants

defense is. A mere and general denial of his indebtedness is not
sufficient. The reasons why the defendant is not indebted must clearly
show in the affidavit in opposition. A complete defense is not required
and a mere denial is not sufficient.
If the defendant pleads fraud against the plaintiff, particulars of the fraud
must be given by the defendant

If a legal objection is raised, the facts and the points of law must be
clearly stated in the defendant’s affidavit

The affidavit in opposition and the affidavit in support may contain

statements of information and belief with their sources disclosed as well
as the grounds upon which they are based.O14R4

What May the Court Do after Hearing The Application

The court shall first examine the writ of summons, statement of claim
and affidavit in support to find out whether the plaintiff has made a
prima facie case under O14
ABIVARM CASE

The court shall examine the affidavit in opposition if any or statement of

defence to find out if any

The court may give judgment after hearing the application to the
plaintiff against the defendant as the plaintiff may be entitled to
The court may grant leave to the defendant to defend the action or part
of the claim as may be appropriate either unconditionally or on terms.
The court may dismiss the application if it is without merit if there is a
counterclaim, the court may stay the execution of any judgment until the
counterclaim is disposed of
A judgment given in an application for summary judgment may be set
aside on such terms as may just. The application to set aside summary
judgment shall be brought not later than 14 days on the date of service
on the judgment of the defendant.

A defendant who has filed a counterclaim may also apply for summary
judgment on a counterclaim where the plaintiff has no defense or
counterclaim

Where the defendant applies for summary judgment on his counterclaim

Rules 2-9 of O14 shall apply with the appropriate modification

A plaintiff or defendant who is given summary judgment for only part of

his claim or counterclaim may proceed to trial in respect of the
remaining claim or counterclaim

An application for summary judgment shall not be entertained in respect

to the following claims;
Probate action
Matrimonial action
Maritime action
Defamation suit and Counterclaim in relation to same
Malicious prosecution
Seduction suit
Breach of promise to marry
Claims or counterclaims based on allegations of fraud
THIRD PARTY PROCEEDINGS

A defendant who alleges that another person is also liable to him in

respect of the claim made by the plaintiff has the right to assert his claim
against that other person.

The procedure adopted in asserting the defendants claim against the non-
party, ie. The person who is not a party to the suit, is what is referred to
as third party proceedings and it is provided for in O15
Cases for applications of third party proceedings ie. Under what
circumstance may one apply for third party proceedings.
The rules of court identifies certain situations under which third party
proceedings may be adopted.
1)Where a defendant claims contribution or indemnity from a third party
one may apply for third party proceedings. O15R1(a)

2) where a defendant claims against the third party a relief or remedy

which is related to or connected with the original relief or subject matter
of the action and substantially the same as the relief claimed by the
plaintiff. O15R1(b)

3) where the defendant claims that a question or an issue between him

the defendant and the third party in relation the subject matter of the suit
is the same as the issue or question between the plaintiff and the
defendant. The said question or issue should be determined between the
plaintiff, defendant and the third party.This is done in order to avoid
multiplicity of suits. O15R1(c)

If the defendant satisfies any of the conditions stated above the

defendant may bring an application for leave to serve third party
proceedings on the person against whom he claims.

Contribution/Indemnity
A defendant may assert a claim of contribution against a third party or a
third person if the defendant will be entitled as a matter of law to recover
part of any judgment against him from the third party. The right to
contribution exists where liability is joined. Eg.joined debtors, joint
guarantors, joined wrongdoers. NB. The rules use the word part of. Take
note

A defendant may claim indemnity from a third party if the defendant

will be entitled as a matter of law to recover the whole of any judgment
which is given against the defendant from the third party.

A right to indemnity arises where there’s an obligation at law or in

equity upon a person to indemnify the other.
Where contribution looks at part of the debt indemnity looks at all

English shipping v Quah ben kee 1942 Ac 12

A right to indemnity may arise by virtue of an agreement ie. A contract.

It may also arise between an agent and a principal in respect of expenses
incurred on behalf of the principal by the agent
Adams v Morgan and Company ltd 1923 vol2Kb pg 234
Oliver v Bank of England 1902 vol1
Appenteng v Bank of West Africa Company ltd
Obeng v Boateng 1966 Glr pg 689

Application For Third Party Notice

An application for third party notice shall be made by motion ex parte
supported by an affidavit. Affidavit in support shall state the claim
which the plaintiff seeks from the defendant. The supporting affidavit
shall also depose the stage at which the proceedings have reached. The
supporting affidavit shall also depose to the claim made by the defendant
against the third party or the question or the issue to be decided between
the defendant and the third party . The defendant shall also depose to the
facts based on which he makes the claim to the third party. The name
and address of the third party shall be stated in the affidavit in support.

Where there is a similar relief or where the relief is substantially

connected
Third party proceedings may also be asserted to where the relief against
the third party is similar to or connected with the relief claimed against
the defendant by the plaintiff.

Standard Securities ltd v Husband 1967 vol 2 All England Report pg 622
Chantworth v A 1968 chancery pg 665

The same question norm issue between the parties

Where the question between the plaintiff and the defendant is
substantially the same as the question between the defendant and the
third party in relation to or in connection with the subject matter of the
suit third party proceedings may be resorted to in order ti resolve the
question in one action

Where the above criteria or above conditions are satisfied the court may
grant leave to a defendant to issue and serve third party notice
An application for leave to issue third party notice is made ex parte the
motion supported by affidavit. The supported affidavit shall depose to
the following facts.NB. refer

The judge may direct in the order granting leave the period within which
the notice shall be issued. In absence of any order granted, the notice
shall be issued within 14 days after leave has been granted.
An application for leave to issue third party notice may be brought by a
motion supported by an affidavit. NB. The motion is made ex parte. In
the supporting affidavit the claim made by the plaintiff shall be deposed
to. The claim of the plaintiff is found in the writ os summons. The stage
that the proceedings have gotten also ought to be deposed to in the
affidavit. The question or the issue which the applicant is calling upon
the court to determine between himself and the third party ought to be
deposed to in the affidavit. The facts upon which the proposed third
parties claim is based ought to be deposed to. The name and the address
of the third party ought to be stated in the affidavit.

Material things that must appear in the supporting affidavit;

claim made by the plaintiff and defendant
The stage at which the suit has gotten to
The question or the issue between the defendant and the third party
The facts based on which the defendant seeks to issue third party
proceedings
Name and address of the third party
The Judge or the court may direct in the order granting leave the period
within which the notice shall be issued. Where the judge fails to do so
then notice shall be issued within 14 days from the date of the grant of
the order.

Third Party Notice

The third party notice shall state the claim made against the defendant.
Meaning it shall state the claim made by the plaintiff against the
defendant and the claim or question or the issue between the defendant
and the third party.

The third party notice shall be signed by either the defendant or the
defendants lawyer.
The third party notice shall be served together with the writ and all
pleadings filed in the suit up to that stage when the notice was ordered.

The third party becomes a party to the suit only upon due service. Upon
due service he becomes a party to the suit. Once the processes have
been served on him he has the same right of a defendant who has been
served with a writ of summons and the statement of claim.

Appearance shall be filed within 8 days after service of the third party
notice on him or within such time as the court may determine. The third
party may with the leave of the court file a late appearance
Third party notice shall be treated in much the same way as a writ of
summons. And the defendant issues it as the plaintiff and the third party
as the defendant.

Third Party Directions

After the entry of appearance by the third party, the defendant shall by
notice apply for directions.
Question- distinguish between the processes
The notice by which directions are applied shall be served on all parties
to the action. The notice for directions shall be applied for within 8 days
after the filing of appearance by the third party. Where the defendant
fails to apply for directions the third party may apply for directions or
apply for the third party notice to be set aside.

Where notice for directions is filed by the defendant the third party may
file an affidavit in opposition to contest the notice for directions. The
court must be satisfied that there is a proper question or issue to be tried
between the defendant and the third party. The main reason why there is
the need of the defendant who has applied for directions is to enable the
court determine if there is a proper case between the defendant and the
third party
Waterford Turkish Bath Company- it is the duty of the defendant to
satisfy the court that there is a proper question to be determined between
the defendant and the third party

Hearing of the application for directions.

What the court can do;
1)If the liability of the third party is established the court may enter
judgment against the third party in favor of the defendant. O15R4(3)(a).

2)The court may order any claim or question or issue to be tried in such
manner as the court may determine

3)They court may dismiss the application for directions and terminate
the third party proceedings and the court may do if the court is satisfied
that the claim is totally unrelated to the claim made by the plaintiff
against the defendant.
Pontifex v Ford 1884 vol 12 qbd pg 152

4)If the claim in the third party notice is too complicated or difficult to
be properly tried with the original action the court may dismiss the third
party Notice
Baxter v France 1895 1qb pg 596

Or if the plaintiff will be embarrassed or if the matters cannot be decided

in one trial the court may dismiss the third party notice
The Bianca 1883 vol 8Pd pg 19

The court may also grant leave to the third party to defend the action.
O15R4(4)(a)

At the hearing of the application for directions the plaintiff has the right
to object to the third party notice at that stage.
Reasons upon which the plaintiff may object
1)If the third party proceedings may be unduly embarrass the plaintiff
2) or it will put the plaintiff to additional expense he may object.
3) If it may cause undue delay.
4)If the plaintiff can show that the matters or issue raised to be between
the defendant and the third party has nothing to do with the plaintiffs
claim ie. unrelated

Third party proceedings may still proceed even if the main action is
settled between the the plaintiff and the defendant.

Whether or not the third party notice is valid is determined at the

application for direction stage and any object to the motive shall be
made at the application for direction stage

Default of Third party

A third party who is in default of appearance or of defence shall be
deemed to admit any claim in the third party notice and shall be bound
by any judgment given on any issue or question in the third party notice.

After satisfying any judgment given against the defendant in the action,
the defendant may enter judgment against the third party for contribution
or indemnity as the case may be where the defendant obtains judgment
in his favor.
The defendant may also seek leave of the court to enter judgment
against the defaulting third party against any claim endorsed in the
statement of claim.
However the defendant may with the leave of the court execute his
judgment against the third party before satisfying the judgment against
him in favor of the plaintiff.

Where the third party is in default of appearance the application for

leave to enter judgment is made ex parte.
Judgment entered in default may be set aside or varied by the court

Judgment between defendant and third party

After hearing the case between the third party and the defendant the
court may enter judgment as it deems appropriate

NB- judgment cannot be entered for the plaintiff against the third party

If the plaintiff wishes to enter judgment directly against the third party,
the plaintiff must procure the third party to be joined to the suit as a
defendant
Where judgment is entered for the plaintiff against the defendant, and
for the defendant against the third party execution can be issued against
the third party only with the leave of the court.

Claims Against Parties other than the plaintiff( in the same action)
A defendant who has filed appearance may have a claim against a party
other than the plaintiff in the action. O15R8

Such claims may be in the nature of contribution, indemnity or a

question or issue or substantially the same as the claim by the plaintiff.

The defendant in such instance and without leave of the court may serve
a notice of the claim on that other party

A party served with such notice by the defendant shall not file
appearance unlike a third party who only becomes a party after he has
been served with the motion and all pleadings.

The procedure set out for the determination of claims or issues or

questions between a defendant and a third party shall apply in the
determination of claims or questions or issues set out by the defendant
on a notice to party in suit ie. The procedure applicable in third party
proceedings shall also apply to defendant who has a claim or issue or
question against another party in the same proceedings or action

A third party may also take out notice and even make a counterclaim
against the defendant or any other person who is a party or a non-party
The Normar 1968 1 all er pg 753

Where a claim can be made by a counterclaim it cannot be by notice by

a party
Offer of Contribution

A party to a third party proceedings may offer to pay contribution to the

defendant without prejudice to his defence O15R10(1)

An offer to pay contribution shall not be brought to the notice of the trial
judge until after the determination of liabilities
NB- third party proceedings may also be brought by a plaintiff in
relation to a counterclaim filed by the defendant to an action O15R11

AMENDMENT (O16)
It is the process by which material facts which have been omitted from
the writ of summons or the pleadings are averred. Or the process by
which facts which are irrelevant or relevant to the determination of an
issue but which have been pleaded or not pleaded are taken out from or
brought into the pleadings.
In effect amendment is the process by which the writ of summons or
pleadings are sanitized. Sanitized either by bringing in material facts
omitted from the pleadings or taken out facts which are not relevant to
the writ of summons and pleadings

Parties are bound by their pleadings and are not allowed to give
evidence of unpleaded facts. Therefore if a party realizes that he has
omitted materials facts from the pleadings the only way he can correct
the error or mistake is to amend the pleadings.

If new facts have emerged ie. After the issuance of the writ or the filing
of a pleading a party may amend his pleading to plead the new facts in
order to strengthen or enhance the merit of his case

Where a party discovers that he has made an error in the pleadings filed
he may amend the pleading in order the correct the error which has been
made
Policy reason behind the rules of amendments is to ensure that as far as
possible all matters in dispute between the parties are completely,
effectively and finally determined in order to avoid multiplicity of
proceedings as far as the issues are concerned

Another purpose of amendment is to achieve speedy and effective

justice, avoid delays and unnecessary expense.
One other purpose is to ensure that the real purpose in dispute or
controversy between the parties is brought forth or are brought forth for
determination

The power of the court to grant amendment is derived form

order4,16,81R1(2b) and also from the inherent jurisdiction of the court
to do justice.
A writ of summons or a pleadings filed in an action may be amended
with or without the leave of the court depending on the stage at which
the proceedings have reached.

Amendment of writ without leave

O16R1(1) allows a plaintiff to Amend his writ of summon without the
leave of the court once at any time before pleadings are closed.

A plaintiff may amend his writ once without the leave of the court either
before or after service of the writ on the defendant provided pleadings
have not closed. The amendment of the writ without leave whether done
before or after service of the writ can only be made once in a lifetime of
the proceedings
Any subsequent amendment of the writ requires the leave of the court by
an application

In amending a writ for the first time before close of pleadings without
leave, no formal application whether ex-parte or on notice is required.
All the plaintiff needs to do is to amend the writ and file it
Where a writ is amended before it is served on the defendant the writ as
amended shall be served on each and every defendant whose name has
been stated on the writ of summons

Where a writ is amended before the close of pleadings after it has been
served the amended writ shall be served on each defendant unless the
court otherwise directs an application brought ex-parte O16R1(2)

After the service of a writ of summons, the plaintiff cannot amend the
writ without the leave of the court if the amendment entails the addition,
omission or the substitution of the party to the action
Davis v Elsby Bothers ltd 1963 vol3 all er pg 672

After a writ is served a plaintiff may not amend without leave if the
amendment is to alter the capacity in which plaintiff is sued or the
capacity in which the plaintiff has sued the defendant

Where a party is sought to be added or substituted or where a party is no

longer a necessary party to the action the application to add another
party or substitute a party or introduce a fresh party shall be made under
O4r5 and R6
That being so, the scope of O16 of the Rules shall be limited to
amendments as to claim, relief, remedy and averments since O4R5 is a
specific rule devoted to amendment of parties in line with the maxim
generalia specialibus non-derogant
Bonnie no.1 v Ghana Ports Harbour Authority 2013-14 1 SCGLR
436
Nartey v AG and Justice Adade 1996-7 SCGLR 63
In re Zakaria v Nyimakan.
Republic v High Court Fast Track division Ex parte PPE ltd 2007-8
SCGLR 188.
NPP V Rawlings and another 1992-3 vol 2 GLR 193

O16R(5) makes the order subsidiary to O4R(5)and (6). Meaning when it

comes to amendment of the parties it is O4 that governs not O16.

After the service of the writ a plaintiff may not amend without leave
where the amendment is to add or substitute a new cause of action
Dornan v Ellis and co ltd 1962 vol1 All ER 303

Amendment of Appearance

A defendant who has filed a notice of appearance shall not amend the
notice of appearance except with the leave of the court. O16R2. Unlike
the plaintiff who can amend his writ once close of pleadings the
defendant does not have that right.

Amendment of Pleadings without leave.

A plaintiff may at anytime before pleadings are closed amend his
statement of claim or reply or defence to counterclaim once without the
leave of the court.
A defendant may also at anytime before pleadings are closed amend his
statement of defence once without leave of the court

BOTH PLAINTIFF AND DEFENDANT HAVE THE RIGHT TO

AMEND PLEADINGS ONCE BEFORE PLEADINGS ARE CLOSED

Where a pleading is amended without leave the amended pleadings shall

be served on the opposite party O16R3(1)

Where a defendant is served with an amended statement of claim, the

defendant may without leave of the court amend the statement of
defiance if already filed to respond directly to the amended statement of
claim

The defendant may amend his statement of defence without leave

whether he has previously amended his statement of defence or not once
he is served with the amended statement of claim.

The defendants amendment in this case shall be limited to only the

response to the amendment effected by the plaintiff in the plaintiffs
statement of claim O16R3(1)(2a)

The amended statement of defence shall be served within 14 days on the

date of the service of the amended statement of claim
A plaintiff served with a statement of defence amended without leave
may also amend his reply if any to respond directly to the amended
statement of defence O16R3(3a)

where the plaintiff has not filed a reply but has been served with a
statement of defence amended without leave, the plaintiff reserves the
right to file a reply in respect of the

The reply or the amended reply shall be served within 14 days after the
after the service on the plaintiff of the amended statement of defence
O16R3(3b)
The rules under O16R3(2) AND (3) apply to a counterclaim and a
defence to counterclaim

Where a defendant serves a counterclaim, amended without leave on

another defendant that other defendant may amend his defence to
counterclaim if already filed in direct response to the amended
counterclaim. Whether or not he has previously amended his defence to
counterclaim O16R5

A party served with a pleading amended without leave, under O16R3

who fails to amend his pleading in pleading in response shall be
presumed to rely on his previous pleading in answer to the amended
claim and issues shall be joined on the amended pleadings in accordance
with O11R14(2)
Kai v Amakye 1982-83 GLR 817
Order 16R3 applies to all pleadings. filed immediately before pleadings
are closed. This pleadings include
Statement of claim
Statement of defense
Counterclaim
Defence to counter claim
Reply

The order does not apply to other documents which can only be
amended by leave of the court.
O16R3 does not apply to amendment of other pleadings subsequent to a
reply

PARTICULARS INSERTED IN A PLEADING O16R3

Particulars which have not been inserted in pleadings may not be

amended without the leave of the court
Yorkshire Provident Company v Gilbert 1895 2 QB 148

The main aim of O16R3 is to save cost and time by doing away with
application for leave to amend. Any amendment which cannot be made
with the leave of the court or which will not be allowed on an
application for leave cannot be made without leave of the court.

An amendment which is aimed at adding an entirely new cause of action

accrued after the issuance of the writ will not be allowed whether it is
made with or without the leave of the court
Eshelby v Federation of European Bank 1932 1 KB 254

Striking out amendment made without leave

An application to strike out an amendment made without the leave of the
court under O16R3(1) shall be brought or filed within 14 days after the
service on the applicant of the amended pleading
A court shall strike out an amended pleading made without leave. If an
application for leave to amend would have been refused by the court.
O16R4(2).
The application to strike out an amendment made without leave shall be
made on notice with a supporting affidavit O19R1(1)and (3), R4 of O19.
LEICESTER WHOLE SALE FRUIT MARKET LTD V GRUNDY
1990 VOL
ALL ER

An amendment made without leave and which renders the pleading

embarrassing may be struck out.

There are some amendments which can be made without the leave of the
court. Where advantage is taken of this right and does things that ought
not to be done may be struck out upon application. Any amendment
done for which a party needs leave of the court but was not granted leave
may be struck out.

Amendment of writ or pleadings with the leave of the court

With the exception of amendment with respect to the parties to the suit,
the court may grant leave to the plaintiff to amend his writ of summons
and his statement of claim as well as the reply and defense to
counterclaim filed by the plaintiff. O16R5(1).

The court may equally grant leave to the defendant to amend his
statement of defense and counterclaim. The leave to amend may be
granted at any stage of the proceedings. (in practice not that simple) the
leave is granted upon application. The leave to amend may be granted
upon terms such as cost.

Correcting the name of a party or the parties. Order 16R5(3)

The court may under O16R5(3) grant an amendment to correct the name
of a party wrongly stated or written on a writ of the pleading. This order
shall be made by the court subject to the provisions in RULES 5 AND 6
OF ORDER 4.
This amendment may be allowed by the court although its effect may be
to substitute a new party if the court is satisfied that the mistake was
genuine and not misleading and or does not create a reasonable doubt as
to the identity of the person being suing or the person intended to be
sued
MUSSE V DARKO 1977 1 GLR 147, RODRIGUEZ V PARKER
ALL ER PG 349

An amendment to correct the name of a person sued may be allowed

even after judgment is given. Where it is shown that the mistake in the
spelling of the name was genuine and that the defendant knew that the
plaintiff intended to sue him and that he is liable to the plaintiff’s claims.

Leave may be granted to correct the names of the parties where they are
transposed on the writ of summons. Transposition- where the names of
the plaintiff and the defendant has been interchanged.
The word mistake in O16R5(3) does not mean error without fault.

MICHELLE V HARIS ENGINEERING COMPANY LTD 1967

VOL ALL ER PG 672

A plaintiff must however ensure that there is a cause of action vested in

him before issuing a writ in his name and that the correct name of the
plaintiff is always used since a suit in the name of a non-existing party
may be fatal.
GIHOC v Vincenta Publication 1971 2 GLR 24
Ben Nyarko v Mensah 1992 2 GLR 404
Interim Executive Council v Committee of the Apostolic Divine Church of
Ghana 1984-86 1 GLR

Altering The Capacity Of The Plaintiff

O16R5(4)- The court has power to grant leave to amend the capacity in
which the plaintiff sues if the capacity sought to be introduced existed at
the time of the issuance of the writ or has since been acquired. This rule
does not grant a license to sue where the plaintiff has no capacity to sue.
The rule only permits the capacity in which an action is brought to be
altered if the capacity sought to be introduced existed at the time of the
filing of the writ or has since been acquired hence the position of the law
that a writ issued without capacity is a nullity has not changed

Republic v High Court Accra ex parte aryittey 2003-04 1 GLR 537,

Yorkua v Dua 1993-94 GLR 217,
Sakordie I V Boateng II 1982-3 glr 469

After the grant of probate for example the plaintiff may amend his
capacity and sue as an executor

Adding or Substituting a New Cause of Action- O16R5(5)

The court has power to grant leave for a new cause of action to be added
or substituted. The court will grant leave to amend if the new cause of
action arises out of the same facts or substantially the same facts as a
cause of action already indorsed on the writ of summons or in the
counterclaim

The most important consideration is whether the facts alleged in the

proposed amendment are the same or substantially the same as the facts
alleged to support the pleadings already pleaded.

Power To Amend even after the expiration of the limitation period

The court’s power to grant leave to amend is not limited or abridged by
the expiration of any relevant period of limitation of the date of making
the application
An application for leave to amend may be granted if the court considers
it just so to do. O16R5(2).
The power of the court to grant leave to amend under O16R5(3,4 AND
5) does not in any way compromise or prejudice the substantive right of
any party under the Limitations act NRCD54

The policy reason behind O16R5(2) is that if at the date of the issuance
of the writ or claim or the suit was not caught by the statute of
Limitation then the fact that a mistake was made by the non indorsement
of a particular claim at the date of the filing of the writ shall not prevent
that claim from being made in the proceedings notwithstanding that, at
the date of filing the application of leave to amend the limitation period
has kicked in.
Meaning, the limitation act provides for periods of limitation based on
your claim. Where the period of limitation has begun after you have
issued your writ and claim or the suit has begun yet you find out that you
have forgotten to add something to the suit, the law says that
notwithstanding the fact that at the date you applied to amend the writ or
the indorsement of the writ the period of limitation had run the court
may still entertain your application and hear it. The court does so
because at the time you instituted the action or issued the writ the period
of limitation had not run out.

It is considered that if the correct name of the party or the new capacity
or the new claim or relief sought to be introduced under O16R5(3,4,5)
had been added at the date of the issuance of the writ the defense of
limitation will not have been available to the opposing party.
Another policy reason behind rule 5(2) of O16 is that an amendment is
thought or perceived to relate back to the date of the filing of the original
process hence any amendment made cures any effect ab initio.

Rule 5(2) of O16 does not mean that the court will grant leave for an
amendment to be effected if at the date of the filing of the writ or cause
of action is statute barred. An accrued right in a defendant of a limitation
period will not be compromised by the court through amendment or by a
new legislation

Amendment during the long vacation

During the long vacation a party is allowed to amend his writ or
pleadings where the amendment sought could be made without seeking
leave of the court O16R1 OR R3(1). Where the amendment requires
with leave of the court then the amendment may not be effected during
the long vacation without the leave of the court.

Amendment of Document.
Any document or documents in a proceeding may be ordered by the
court to be amended under O16R7
The amendment may be done at any stage of the proceedings. The order
to amend may be made on terms such as cost. It may ordered to be done
by the court in any manner as the court may see fit. The amendment may
be odder in order that any effect or error in the proceedings may be
corrected.
O16R7 cannot be used as a basis to correct fundamental defects or errors
in a judgment.

When may an Amendment be Allowed

O16R5(1) AND R7- an amendment may be applied for and allowed at
any stage of the proceedings.
An amendment may be applied for and may be granted before the trial,
during the trial and after the trial. Sometimes after judgment has. Even
delivered and even on appeal.

The general rule is that an amendment will be allowed provided it will

not prejudice the opposite party in a manner that the party cannot be
compensated by the award of cost.

The court has developed various factors in granting or refusing an

application for amendment depending on the stage at which the
application is made

Amendment before trial

An amendment may be readily granted for good reason before the trial
of the cause or matter upon the payment of cost to the party unless the
amendment will result in placing the opponent in a worse position than
he would have been if the amended pleading had been served at the
initiation of the suit or unless the amendment will result in injury to the
opponent which cannot be compensated by the award of cost.

An amendment will not be allowed if it is not made in good faith.

Amendment during trial or at the hearing
An amendment may be allowed in order that the pleadings may be
aligned with the evidence being given at the trial.
Anobil v Obosu and Another 1982/3 GLR 585
Marfo v Adusei 1963 vol 1 GLR 225

Where evidence is given at the trial of an unpleaded fact and an

objection is successfully taken an amendment may be allowed in order
that the evidence may be given on the facts in issue or the facts in
question

However an amendment which seeks to set up an entirely new case will

be refused.
Nkrumah v Serwah 1984/86 vol 1 GLR 190

An amendment which seeks to introduce a plea of fraud for the first time
during the trial may not be granted by the court.

In applying to amend a particular pleading, the exact amendment which

is sought by the applicant shall be formulated. The general rule
governing amendment is that an amendment will be granted if 1)no
injustice will be caused to either party and 2)provided the amendment
will bring out the real issue in controversy for an effective resolution of
the matter
 Where the evidence shows that the application is settled to a sum higher
than claimed, the writ must be amended accordingly to enable the sum
proved to be claimed.

However a pleading cannot be amended after judgment has been given

Amendment after trial

After final judgment is entered by the trial judge , the judge cannot
amend the pleadings or add new parties to the suit. The grant or refusal
for the application to amend is a matter of the discretion of the court.
The discretion ought to be exercised in accordance with judicial
principles and to the extent that an amendment will bring the real issues
or controversies between the parties an amendment will be allowed

Yeboah and Another v bofour 1971 vol2 Glr pg 111- the law in this
case some has been over taken by CI47

Where a writ of summons was void an amendment cannot be granted to

save the writ

Where an amendment is sought to enable the plaintiff acquire capacity

for the first time the application cannot be granted. O16R5(4)
Meaning at the time the plaintiff issued the writ he lacked capacity
hence the plaintiff cannot by amendment be granted capacity.
Standard Bank Offshore trust Company Ltd v National Investment
Bank 2017/18 1SCLRG 707
Application for leave to Amend
The application for leave to amend is made by motion on notice on time
to the parties to the action.
In applying to amend one is not bound to attach a supporting affidavit.
This constitutes an exception to O19R4 which states that an every
motion shall be supported by an affidavit. Meaning, if the amendment
you are seeking is. It that lengthy you have to state the nature of the
amendment in the notice. In practice most lawyers attach the supporting
affidavit. You may attach the affidavit if there is the need to explain the
reasons for the amendment.

Application to amend has to be in writing and it ought to be by a motion.

Dzefi v Ablorlor 1999/2000 2GLR 101

The nature of the amendment sought shall be specified in the application

by stating them in the body of the motion(if they are short) or by typing
them neatly on a sheet of paper and attaching it to the application

The proposed amendment may be typed and exhibited to the affidavit in

support to enable the court verify it at a glance ie if you decide to attach
an affidavit to the motion.

Leave to amend is given to the extent of the proposed amendment that is

to say the court will grant you the request ,ie. If it ought to be granted at
all, you are making and not more than that.
The court will not grant you anything that you have not asked for
A party cannot introduce into an amended process any averment for
which leave has not been sought and granted by the court unless that
averment flows naturally from the ones for which leave has already been
granted by the court.

Failure To amend after leave has been granted

An amendment shall be effected within such period as the court may
determine. Where no period is specified inn the order granting leaving,
an amendment shall be done within 14 days.
Where an applicant fails to amend within the period given by the court
the order or direction shall lapse and you will be taken to rely on the old
process. If you still want to amend you have to apply for fresh leave.
O16R8
Gandaa v Gandaa

Effect of Amendment
An amendment done or effected accordance with the orders or the rules
of the court relates back to the date the original process was filed
Kai v Amakye
When an amendment is done it takes effect at the date on which the the
original writ was filed- this is ONE of the policy reason under O16

Once pleadings are amended what was filed before the amendment was
effected is no longer material to the court however, an amendment
which adds a new defendant takes effect from the he date he effectively
joined as a party ie. The date of service on the third party O4R5(6)&(7)
The court is also given power to amend, clarify mistakes, accidental
slips, omission in its own judgment. Any party can apply to the court to
correct a slip.

WITHDRAWAL AND DISCONTINUANCE OF AN ACTION

Withdrawal of Appearance.
A defendant or a party who has filed an appearance may with the leave
of the court withdraw an appearance O17R1
The application to withdraw an appearance may be made ex parte or on
notice.

Where the defendant obtains the consent of the plaintiff in writing he

may apply ex parte with a supporting affidavit to which the written
consent of the plaintiff shall be exhibited for the grant of leave to
withdraw the appearance.

Where the consent of the plaintiff is refused or where the consent of the
plaintiff can not be obtained the application for leave to withdraw the
appearance shall be made on notice to the plaintiff.
NB- the court has a discretion to decide whether or not to grant leave to
withdraw or not
In the exercise of its discretion the court will have regard to all
circumstances of the case including the application and the alleged
mistake which has been made in the filing of the notice of appearance.

The court is likely to refuse the application for withdrawal whether the
lawyers acted within the instructions of their clients to file the
appearance

Discontinuance by the plaintiff

A plaintiff may discontinue his action either with or without the leave of
the court.
A plaintiff may at anytime before the defendant serves the statement of
defence on the plaintiff may discontinue the action against the defendant
without the leave of the court.

If the plaintiff has been served with the statement of defence, he may
discontinue the action without leave against the defendant if he takes no
further steps in the matter other than the filing of a notice
discontinuance. Ie. If the plaintiff takes or those something in the suit
other than filing a notice of discontinuance

The discontinuance is effected by filing a notice of discontinuance and

serving it on the defendant against whom the action is being
discontinued

The plaintiff may by notice withdraw any part of the claim against the
defendant

Withdrawal is used where the claim or part of the claim is being

withdrawn. discontinuance is when the whole action is being brought to
an end

The plaintiff may by notice withdraw any part of the claim this is done
by filing a notice of withdrawal and serving it on the defendant.

The notice of discontinuance or withdrawal must be in writing and must

state clearly whether the whole action is discontinued or otherwise
specify which part of the claim is being discontinued against the
defendant.

The plaintiff is entitled to accept money paid into court in respect of any
claim and abandon the rest of the claim made against any defendant by
filing a notice of withdrawal.
If there are two or more defendants in the matter the plaintiff may file
his notice of discontinuance or withdrawal either before he served with
the statement of defense or before taking any further proceedings after
the service of the last statement of defence.

One of several plaintiffs cannot discontinue or withdraw without the

consent of the other plaintiffs if he is a necessary party to the party. Eg.
Co-executors, co-administrators.
If one of several plaintiffs declines to continue with the action the rule is
strike his name out and join him as a defendant to the suit
In re Matthews 1905 vol 2 Chancery 460

A co-plaintiff who has a separate action may withdraw without the leave
of the court because his withdrawal will not affect the rights of the other
co-plaintiff to continue
The provisions O17 does not apply probate actions.
Discontinuance of probate actions is governed by O66R43

A plaintiff who discontinues without the leave of the court shall be liable
to pay the cost of the defendant up to the time the notice of withdrawal
was served on the defendant O17R2(2)

The discontinuance or withdrawal of action against the defendant shall

not be used as a defence against any subsequent action by the plaintiff
for the same reliefs O17R2(2)
IBE V PAN AFRICAN METALS LTD 1967 GLR 188
Where leave is needed before an action can be discontinued, it is within
the discretion of the court to decided whether or not the discontinuance
shall be with liberty.
Liberty means the person reserves the right to institute a fresh action

Where the discontinuance amounts to a choice to adopt a voidable

contract then it may a bar to a further action. The court may make
further orders to give effect to rights acquired by a defendant during the
proceedings after making an order for discontinuance. Such as an
undertaking by the plaintiff to pay damages to the defendant upon an
application for injunction

A counterclaim may be proceeded with after an order for discontinuance

but a counterclaim cannot be set up after an order for discontinuance that
is to say where the defendant makes a counterclaim and the plaintiff
decides to discontinue that does not bar or stop the defendant from
pursuing his counterclaim. BUT where the defendant has not already
filed the counterclaim and the plaintiff decides to discontinue the
defendant cannot pursue the counterclaim.O17R2(2)

The discontinuance with the content of the parties may be set aside with
the consent of the parties and the claims preceded with.

A plaintiff may not be grated leave of the court to discontinue the act.
Immediately before judgment is given if the defendant has obtained an
advantage through proceedings such that it unjust to deprive him of
imminent victory
All the parties to an action may in writing address the registrar of the
court or without the leave of the court withdraw the suit
Discontinuance with leave
A plaintiff who desires to discontinue the suit in any other manner other
than that stated in O17R2 AND 3 requires the leave of the court

Where leave is required a plaintiff ought to file a motion on notice to the

defendant.
Sasraku III V Ellis and Wood 19

In granting leave to discontinue, the court may impose conditions on the

plaintiff as to cost and or as to the commencement of another action.

The court may order discontinuance with liberty or without liberty.

Where a discontinuance has been granted with liberty and cost against
the applicant, the court has power to stay a fresh action which has been
commenced without the payment of cost O17
APPLICATION FOR DIRECTIONS- O32
It is the stage at which the court, the parties and the lawyers meet to
consider how the case must be conducted and its further management.
The parties prepare for the hearing of the case.

Armah v Hydrofoam Estate Ghana Ltd.

Application for directions is generally governed by O32

Directions is to be applied for and conducted for all cases commenced
by a writ of summons except;(O32R2)
1) Actions in which directions are given O11R19(1),
Actions in which directions have be given for summary judgment
O14R6, O25R7 applications for injunctions
2) Directions shall not be taken in actions in which an order for the
taking of an account is made under O29R1
3) Actions for the infringement of a patent
4) Actions or proceedings under O65 in relation to matrimonial causes.

The purpose of application for directions is to ensure that the real issues
or controversy between the parties are brought out or set out so that the
court or parties and their lawyers may know exactly the issues they are
called upon to answer
It is also to ensure that all preliminary matters are dealt with before the
trial. Matters like injunction, subpoenas, the number of witnesses which
each party is to call
O32R1(1)
When these matters are dealt with at the application for direction stage
the trial goes on smoothly.

Issues which could be resolved by legal arguments may be set out at this
stage and directions given by the court for their hearing given by the
court. It is at this stage that matters like the court has no jurisdiction that
this matter is dealt with. Res judicata, statute barred is also another
matter that is dealt with at this stage.
Offei Mante v Mike Similao 2017/18 vol2 SCLRG 431
Armah v Hydrofoam estates

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

Application for directions is to be filed by the plaintiff within one month

after close of pleadings for service on other parties. O19R4 application
for directions is one of the exceptions to this ORDER

Where discovery of documents is ordered under O21 and the period

stated for the discovery is further extended, a plaintiff shall apply for
directions within 14 days after the expiration for the extended period for
direction O32R2(3).
EIGHT DAYS NOTICE is to be given before the hearing for the
application for directions.
In actions in which only the counterclaim is heard, the counter-claimant
shall apply for directions accordingly.

CIRCUMSTANCES UNDER WHICH ONLY A COUNTER-CLAIM

MAY BE HEARD IN AN ACTION- LOOK AT IT
1) Where the action of the plaintiff is struck out
2) Where the plaintiffs claim is discontinued or withdrawn

FAILURE TO APPLY FOR DIRECTIONS

A defendant may apply for directions in case the plaintiff fails to do so.
The defendant may instead apply for the suit to be dismissed.
The court may deal with an application by the defendant to dismiss the
action as if it were an application for directions and give directions
accordingly. The court may dismiss the action upon application by the
defendant. The court has an inherent jurisdiction to dismiss an action if
the plaintiff defaults in applying for directions. The court may dismiss
the action where the plaintiff is guilty of intentional or deliberate default.
Most cases the plaintiff will be found to deliberately default in applying
for directions where the plaintiff has acted mala fide.
The court may also dismiss the action in case of inordinate and
inexcusable delay.
Omane v Poku 1973 Vol 2 Glr pg 66.
Amoako v Hansen 1987/88 2 Glr 26.
Boakye v Tutuyehene 2007/08 SCGLR 970.
Failure to apply for directions renders the whole judgment a nullity other
says it is not a nullity

A party on whom an application for directions has been served may

serve a notice for additional directions in respect of any matter or any
issue which is not captured in the application for direction 032R4

MATTERS TO BE DEALT WITH ON AN APPLICATION FOR

DIRECTIONS
On an application for directions the court may deal with every matter
that ought to be dealt with at that stage before the setting down of the
suit for trail.
l If an amendment ought to be made by any party
l Whether evidence may be given via video link
l The court may order the filing of witness statement
l The court may also consider whether expert evidence is required
l May consider whether a surveying plan ought to be ordered
l Whether any of the parties may want to procure affidavit evidence to
be ordered
l Whether any question or issue ought to be tried out of turn or
separately and if it does the place at which such questions may be
tried and the mode of trial shall be determined.
l The court may also directions in respect of part 8 of the Evidence Act
Whatever admissions made by the parties ought to be recorded during
the applications for directions and where a party refuses to make an
admission which ought to be admitted shall also be recorded and the
final orders by the court. However, the court cannot require the parties to
agree not to file an appeal on any matter.

After all preliminary matters have been dealt with the court may then
give directions on the management of the case and this shall be proved
by ordering the parties to file their witness statement in accordance with
O38R3B(2). The court shall give directions as to the order in which the
witness statement shall be filed.
A witness statement is a written statement signed by the person which
contains the evidence which that person will be allowed to give orally at
the trial O38R3b(1). NB THIS ORDER IS FOUND IN CI 87 Section
179 of the Evidence Act.
The combined effect of O38R3B(1) and the definition of evidence in the
Evidence Act means that all exhibits intended to be relied upon at the
trial shall be attached to the witness statement.
DUTY OF PARTIES AND THEIR LAWYERS TO GIVE ALL
NECESSARY INFORMATION AT THE APPLICATION FOR
DIRECTION STAGE
Notwithstanding that affidavits are not used in applications for directions
the parties and their lawyers are bound to disclose every necessary
information in relation to the matter to enable the court deal with the
applications for directions. Privileged information are exempted under
the Evidence Act and shall not be required to be produced at the hearing
of application for directions except the parties agree.

O32R8(3)- where an application is made for an order at the hearing for

application for directions and such applications are required to be
supported by affidavit. Such affidavit shall be filed in support of that
application and together with the application without the leave of the
court.
Information which affects the security of the State may be produced to
the court and shall not be served on the other parties to the case. Every
information produced at the application for directions shall be served on
all parties.
Where a party fails to produce information after being ordered by the
court to do so, the court may cause the fact to be recovered and the party
may be
After all preliminary matters have been dealt with, the court shall fix a
date for the case management conference. CMC is normally held after
the parties have filed their witness statements and a pretrial check-list.
The pretrial check-list is a process filed by the parties in which the
parties indicate whether they require orders to be made for subpeonas to
be issued, whether they require interpreters at the trial, whetehr the
parties indicate that they require interpreters they are reuired to indicate
the language, whether there be the need for amendments of ther
pleadings to be done and whether they have complied with all the rules
The pretrial check-list is required to be filed at least 4 clear days before
the date for CMC.
Where a party fails to comply with an order made at the CMC which is
sometimes referred to as pretrial review the court may make any of the
following orders;
1) Strike out the action if the
2) Strike out the defence and counterclaim as may be the case if the
noncomplying party is the defendant
3) Order any arty to pay cost
4) Make any other appropriate order
SEE O32R7a(3)

STAY OF PROCEEDINGS UNDER CI 133

This constitutional instrument was enacted to amend part of order 32
which deals with applications for directions. It came into force on the
9th of November 2020.

At the application for direction stage any of the parties may in writing
request the court to stay proceedings in order that the parties attempt to
settle their dispute by ADR. (Under CI 133)- O32R1(1a).

The court suo motu shall at the directions stage enquire from the parties
if they are willing to resort to ADR. Reason is because the courts are
overwhelmed with cases
The court shall not enquire from the parties whether they want the
dispute to be settled by ADR where the dispute is one which is not
amenable by ADR. Section 1 of the ADR act (Act 798)- disputes which
cannot be settled by ADR

Where the parties agree at the case management conference to settle

their dispute by means of ADR the court shall give orders to promote the
settlement and shall consequently stay proceedings for at least one
month to enable settlement by ADR. The court reserves the power to
extend the period of 30 days if it is informed the parties have good
progress in the resolution of their dispute.

The proceedings to settle the matter shall be conducted in accordance

with the ADR act.
If the parties are able to settle the matter by ADR, they shall prepare
terms of settlement ie. They shay reduce their agreement into writing.
Sign the terms of settlement and file the settlement with the registrar and
the settlement shall be adopted by the court as judgment.

If the parties are unable to settle by ADR the court shall proceed with
the application for directions

WITNESS STATEMENT
Every witness statement filed by a party or a witness shall be verified
by statement of truth and the person shall not testify in court where he
fails to file a witness statement.

Where a person wishes to rely or give evidence on a witness statement at

the trial after filing a witness the person may be called upon at the trial
to give evidence in accordance with the witness statement filed. At the
trial the witness statement shall be identified by the person wishing to
give witness statement and shall then be identified by the court as the
person giving evidence in chief.
NB- A party who has either sued or been sued need not give evidence by
himself at the trial.

Adjetey v Klotey 2003/04 SCGLR vol1 420

Armah v Hydrofoil estate ltd
Oral testimony may with the leave of the court be given in the court by
the witness at the trial. That oral testimony may be confined to fresh
matters that has arisen after the filing of the witness statement.
In practice once fresh matters have cropped up the party may pray the
court for leave to file further witness statement.

Where the person who gave the witness is not called as a witness, any of
the parties may tender the witness statement as hearsay evidence.

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

was filed unless the witness consents in writing for some other use of the
witness statement or unless leave is granted by the court for some other
use of the witness statement or unless the witness statement is put in
evidence at a public hearing by the person who filed the witness
statement.

THE TRIAL
Where a person who has given a witness statement is called to give
evidence at the trial, the person shall first swear on his religious belief to
testify truthfully to the court- Section 62 of At 459. Section 61 of the
Evidence Act
If the person has no religious belief they shall testify. They will also
swear to give evidence truthfully to the court

After the person has been sworn to give evidence truthful his lawyer
shall lead him in evidence to tell his story. Where the person is not
represented by lawyer the court itself may lead him to tell his story. This
is done by first asking the witness to introduce himself, his address,
occupation, his relation if any with the party. The witness statement shall
be given to the witness to identify his signature or mark on the witness
statement. Thereafter, the witness statement shall be adopted as the
evidence in chief. After the adoption of the witness statement as
evidence in chief there may be cross-examination after rte-examination
may follow
NB- the witness statement is not exit hence it is not received and.Marked
exhibit

If the case is called for trial and the plaintiff fails to attend the court may
strike out the action and hear the defendant on his counterclaim if any.
Where the defendant fails to attend the court may dismiss the defendants
counterclaim and hear the plaintiff to proof his claim O36R1.
Ex parte ayikan
Republic v High Court Ex parte state housing company 2009 SCGLR
105

The court may instead of striking out or dismissing the suit make any
other order as is just. The court reserves the power to adjourn the matter
to anytime as the court deems fit

Depending on the party who carries the burden of proof, the court may
direct which of the parties shall first be called give evidence after which
his witnesses may also called to testify and thereafter the other party
shall also be called to give evidence and then their witnesses
O36R4(6) a defendant shall be called upon to give evidence first if the
burden of proof on all the issues lies on the defendant otherwise, the
plaintiff shall be the first to give evidence. None the less the court
reserves the power to direct which party will give evidence first

After all the parties have given evidence and called their witnesses or
where the defendant elects not to give evidence the case shall be
deemed closed

After the close of the case the court shall give opportune its to each of
the lawyers to the parties to address the court on the evidence and the
law in relation to the suit.

Where the defendant gives no evidence the defendant shall be called

upon to address the court first after which the plaintiff shall address the
court.

Where the defendant gives evidence, the plaintiff shall first address the
court before the defendant takes his turn,

A trial judge has the power to visit and inspect the locus and where the
locus is visited by the court evidence is given of whatever transpired at
the locus and shall be recorded as evidence by the court.
At the trial exhibits tended by the plaintiff are numbered alphabetically.
Where the alphabets are exhausted you repeat eg. Aa
Exhibits by the defendant are labeled numerically
The alphabet ‘I’ is normally omitted in the numbering in order two avoid
confusing it with the number 1
The alphabet ‘R’ is used for exhibits that are rejected.
All exhibits whether admitted in evidence or rejected are to be kept in
the custody of the clerk of the court O36R9

After the parties have given their closing remarks or speeches through
the addresses of their lawyers the trial judge shall give judgment or fix a
date for the delivery of judgement. The judgement shall be read in open
court.

Where the judgment is lengthy the concluding part of the judgment is

read in open court and the parties are required to go for copies of the full
judgment.

Adjournments are at the discretion of the court and must be made with
the sole aim of effecting justice O37R1. The parties, lawyers and the
court have the duty to avoid delays of any sort
A 28 days notice shall be given by a party who wishes to call the case if
the case has not been called for at least 6 months and the case may be
struck out for want of prosecution if nothing has been done in the case
for a period of 12 months. For this reason a party may bring an
application for the case to be struck out. The registrar by a Registrars
Sermons may be brought to strike out the case for want of prosecution.
14 days must be given where there is an application to strike out the case
for want of prosecution
COMMERCIAL ACTIONS- O58
NB-O58 IN CI 47 HAS BEEN SUBSTITUTED BY O58 OF CI 133

O58 OF CI47 regulates practice in the commercial court the new O58 IN
CI 133 deals with the determination of commercial actions filed at the
commercial court, high court and circuit court. This is a change from the
old order 58 of CI 47 which limited it to the commercial division of the
high court. The amendment enables filing in not only the commercial
division but in the high court and the circuit court.

Commercial claims are claims borne out of trade and commerce and
includes all actions stated in O58R2 of CI 133.
Commercial claims are commenced by the issuance of a writ of
summons in the high court or the circuit court.
Compare O58R2(B) and section 274 of Act 992 or section 81 of act
1015.
Copyright Society of Ghana v Afreh 1999/2000 1 GLR 135

Seven days after the close of pleadings at the commercial division the
registrar shall assign an action to a judge known as pre-trial review
conference. After a case has been assigned to a judge the judge shall
through a hearing notice within 14 days invite the parties for a Pre-trial
review conference

The judge is to settle the case through ADR. The parties are at liberty to
decide which ADR method to adopt. An agreement is to be executed to
this effect and is supposed to be witnessed by the lawyers of the parties
or any other witness.

Where parties agree to adopt ADR, the judge shall stay proceedings for
30 days to enable the parties settle their dispute through this medium
Where the parties are unable to agree to adopt ADR the parties shall
proceed on the application for direction stage towards the full trial of the
case.

A list of accredited mediators will be made available to the parties if the

they decide to choose mediation. Where they are unable to settle on the
mediator(s) the judge shall choose a mediator for the parties. The parties
may also agree that the judge mediates on their dispute for them.

Where the judge accepts to be the mediator for the parties and they are
able to reach an agreement, fair enough, if they are unable to reach an
agreement, the judge cannot sit on the case as a judge.
The procedure for mediation shall be governed by the ADR act.

Any disclosure that the party makes during settlement at ADR shall not
be construed as an admission against the party except during proper
arbitration.
A mediator is also disqualified from giving evidence at the trial where
the parties are unable to settle at the mediation. A piece of evidence is
not inadmissible just because it has been given at an unsuccessful
mediation.

A mediator may with the consent of the parties apply for extension of
time to complete the mediation if there are prospects of settlement.
Where such an application is made the period may be extended for not
more than 14 days.

Where mediation is successful, terms of settlement shall be drawn up by

the mediator and shall be read over to the parties and their lawyers and
they shall be executed by the parties and their representatives as well as
the mediator.

Once the terms of settlement is executed, it becomes binding on the

parties and shall be filed at the registry of the court
Within 7 days after filing the terms of settlement, the parties shall appear
before the pretrial review judge who shall enter the terms as the
judgment of the court. It becomes a consent judgment.

Where there is no commercial court in the region, a commercial claim

may be filed in the nearest commercial court notwithstanding the
provisions of O3.
ENFORCEMENT OF JUDGMENT
A judgment is a decision of the court of law given by the judge after
consideration of the evidence and all the materials placed before the
judge. relevant facts or the applicable law in a given case
Republic v Court of Appeal Ex parte Ghana Commercial Bank
2001/2 SCGLR 883

Must Judgment be delivered within 6 weeks?

Boye Doe v Teye 1999/2000 VOL 2 GLR 399- JUDGMENT WAS
DELIVERED 2 YEARS AFTER THE JUDGE HAD RETIRED
Godka Group of companies v PS international LTD 1999/2000 1
GLR 409
Republic v Central Regional House of Chiefs Judicial Committee;
Ex parte Aaba 2001/2 1 GLR 221
Republic v High Court Accra ; ex parte Expandable polistering
Products LTD
Republic High Court Koforidua; ex parte EASTERN REGIONAL
CORPORATION

A case is said to be closed after all parties have given evidence together
with witnesses filed O41R2(2)
Ansah v Ghartey 1982/3

A party who wishes to enforce any judgment given in his favor and
which is enforceable shall draw up the judgment and file it in court and
have it served on the judgment debtor ie the person against whom
judgment has been entered O41R7
The first step to enforce a judgment is to file what is known as entry of
judgment.
Akowuah v Amoo 2012 vol 1 scglr 261
A judgment which requires an act to be done other than the payment of
money or the given up of immovable property or the delivery of a
movable shall specify the time within which that act is to be done.
O41R4(1&3)
The time for doing the act starts running from the time that the entry of
judgment is served. Implying that until the service of the entry of
judgment the time does not start running

A judgment takes effect from the date it is delivered and for that reason
every judgment delivered by the court shall bear the date on which the
judgment is delivered, the judge by whom the judgment is delivered snd
the court from which the judgment is delivered 041R5(1&2)

Every order made by a court shall be drawn up unless the court

otherwise directs

The entry of judgment in the district court is known as a Formal Decree.

The entry of judgment is the formal record of the judgment given by the
judge at or after the trial and it must be filed in order to give effect to the
judgment.
Without filing the entry of judgment the judgment given cannot be
enforced
Exparte Ghana Commercial Bank Pensioners Association
A judgment which directs the payment of money may as well contain an
order for the payment of the money in installment O41R8(1)
REPUBLIC v HIGH COURT Accra Ex parte Kumoji 2000 SCGLR 211
An order for the payment of debt by installment automatically acts or
operates as a stay of execution of the judgment. Upon default of
payment of any of the installment the whole debt then outstanding
becomes immediately payable and executable with the leave of the
court. O41R8(2) Ex parte KUMOJI

Writ Of Execution Order 44

Judgments are generally enforced by the issuance of writs of execution
Writs of execution includes a writ of fieri facias, a writ of possession, a
writ of delivery, writ of sequestration and other writ in aid of execution
O44R It does not apply to the appointment of the receiver
Norburen v. Norburen 1894 1QB 448

A Judgment can be executed by a writ of execution in any part of the

country. O44 R2 The issuance of writ of execution against goods in the
hands of a judgment debtor shall operate to prevent the judgment debtor
from disposing off the goods and any person who acquires the goods
shall not acquire any title to the goods EXCEPT A BONA FIDE
purchaser for value without notice

Where a judgment debtor shows that he has sufficient movables his

immovable property shall not be attached in execution. A judgment
creditor is bound to attach the movables first to the extent that they are
made available to the judgment debtor O 44R2(3)
Ackah v GCB 2013/14 VOL 2 SCGLR 1157
It is the duty of judgment debtor to show where his movables are
GCB V Eastern Alloys Company LTD 2017/18 2 SGLR 791

The execution judgment creditor shall cause to be endorsed on the writ

of execution a statement to the effect that sufficient movables have not
been found to satisfy the judgment debt O44R2(4)

Execution shall be levied against any property of the judgment debtor

and the property in question must be owned by the judgment debtor
O44R2(2)

Leave to Issue Writ of Execution O44R3

There are instances where a judgment creditor requires the leave of the
before a writ of execution will be issued. These are;
1) where at least 6 years has elapsed since the date of the
judgment(GODWIN V GODWIN 1897 P 87)
2) Where either the plaintiff or defendant have died since the delivery
of the judgment and there has been a substitution. Where for
instance the judgment debtor is dead or where there has been
assignment of the debt notice has to be given( IN RE BAGLEY
1911 1KB 317)
3) Where execution is sought to be issued against the assets of the
deceased person which are in the hands of the executors or the
 persona representatives after judgment has been entered against the
judgment debtor leave is required
4) Where a condition precedent for judgment is alleged to have been
fulfilled then the judgment creditor requires the leave of the court.
Leave is sought by filing a motion on notice to enable the judgment
debtor

5) Where goods to be attached are in the hands of a court appointed

receiver or sequestrator, this is necessary in order
In all these situations leave of the court is required before a writ of
execution is issued. Application for leave is generally made ex parte.

Leave for the issuance of the writ of execution shall expire after 1 year if
the writ is not issued but a fresh order for leave may be applied for.

Leave is also required for the issuance of the writ of execution in aid of
any other writ of execution
Wyman v Knight 1888 vol 39 CH 165

APPLICATION FOR LEAVE TO ISSUE WRIT O44R(5)

The application may be made by a motion ex parte and shall be
supported by an affidavit and the affidavit shall state the reasons why the
application is necessary. The affidavit may identify the judgment, the
date the judgment was delivered and it shall also state why it has become
necessary for the application to be made, the amount owed by the debtor
and if it is about a delayed execution? The reasons for the delay shall be
captured in the execution. Where the original parties to the suit are dead,
the fact must be captured in the affidavit. The applicant shall be
identified in the supporting affidavit. It shall also be stated in the
affidavit that a demand has been made and the judgment debtor has
refused to pay the debt and every information necessary for the grant of
the application shall be granted to the court.

Where the application involves the fulfillment of a condition precedent

the application shall be made on notice to the judgment debtor and if the
condition precedent has been fulfilled that fact shall be captured in the
affidavit

A writ of execution shall be deemed issued as soon as the it is sealed by

the registrar of the court O44R7

A person who seeks the issuance of the writ of execution or his lawyer
shall submit a signed written request to the Registrar O41,43,44,45 NB
O42 HAS BEEN REPEALED

The registrar shall note the request, the date and time of its reception
shall be kept in a book for that purpose. The Registrar reserves the right
to seek direction from the court and in the mean time may decline the
request.

Unless the period for doing any act has expired no Writ of Execution
shall be sealed by the Registrar
A request for the writ of execution shall be accompanied by the
following;
) the judgment or the order based on which the writ of execution is
required
) The order granting leave if the writ requires leave before it can be
issued
) The written permission of the Bank of Ghana for the payment of
money to the judgment creditor where the judgment creditor resides
outside Ghana. Otherwise any such debt shall be paid to the court
until such order is obtained by the Bank of Ghana . Read section 15-
20 of the Foreign Exchange Act

DURATION AND RENEWAL OF WRIT OF EXECUTION

A writ of execution shall be valid for 12 months from the date of issue
CHAHIN V EPOPE PRINTING PRESS 1963 1 GLR 163

The validity of the writ shall be extended if execution is incomplete for a

period of not more than 12 months at a time if an application is filed for
the purpose before the date on which a writ of execution is due to expire.
The life of the writ of execution shall be not extend for more than 12
months at a time. The motion shall be filed before the date of expiration
Aseidu v Timber and transport
Amidu no. 2 v AG water holdings 2017/18 1 SCLRG 580

The application is made ex-parte with the supporting affidavit in which

shall depose the reasons for the grant of application
The date on which the order for extension shall be embossed on the new
writ of execution before the writ can be put to use

The applicant may otherwise serve the notice on the registrar with the
seal of the court indicating the writ is to be renewed.O44R9

A renewed writ shall take its priority from the date it was originally
delivered to the registrar. No more evidence is required to prove the
validity of a renewed writ than the production of a renewed writ
embossed with the seal of renewal.

A writ is put into effect by the bailiffs of the court on the instructions of
the registrar and the bailiffs shall report from time to time to the registrar
on completion of the execution O44R11

NOTICE OF INTERPLEADER O44R12

A person who claims to have an interest in property taken into execution

shall file a notice of claim to the registrar of the court. A notice of claim
shall contain the address of the person thus the claimant.

Case: Amidu v AG Waterville HOLDINGS AND WOYOME

2018/19 1GLR 95
The Registrar shall then notify the execution creditor of the filing of the
notice of claim. The execution creditor shall within 4 days being
notified give notice to the Registrar whether he admits or disputes the
notice of claim.
If the Registrar receives a notice of dispute from the execution creditor,
or if the execution creditor fails to respond within the time given and
provided the notice of claim is not withdrawn, the registrar may apply to
the court for relief.

An application for relief under o44r12(3) shall be made ex parte and

shall seek an order that the claimant and execution creditor shall appear
before the court on a specified date so that the issue(s) will be heard

Where the execution creditor admits the notice of claim the registrar
shall immediately withdraw the property from attachment and release it
forthwith to the claimant and apply to the court for an order to restrain
the claimant from suing the Registrar for wrongful attachment
O44R12(5&6)

An execution creditor who admits the notice of claim shall be liable for
the expenses incurred by the Registrar prior to the reception of notice of
admission of the claim O44R12(7)

It is standard practice in court for the execution creditor upon receiving

the notice of claim the execution creditor may file notice request the
claimant to file affidavit of interest.
Where the Execution creditor and claimant appear in court the court may
summarily determine the issue between them and make appropriate
orders. Generally the issue between them is w/n the property attached
belongs to the judgment debtor or truly belongs to the claimant. The
court may summarily decide the issue between them thus the court may
ask the claimant to mount the witness box and give evidence in respect
of the property to show that it is his property. He may also call
witnesses.

The court may direct that the parties to state the issues between them for
it to be tried. The court may direct which of them shall be the plaintiff.
In most cases the claimant is the plaintiff and the judgment creditor the
defendant
Case: Amidu v AG Waterville HOLDINGS AND WOYUMING
2018/19 1GLR 95

Amidu v Ag case 2018/19 1GLR pg 215

Where the claimant refuses to appear in court after being served with a
notice to appear or where after appearing the claimant refuses to comply
with orders made by the judge the claim may be dismissed and the
claimant barred from prosecuting the claim

An order may be made for the sale of the property attached and for the
disbursement of the proceeds in a just manner if the claimant claims that
the property has been given as security for a debt. A party who is
dissatisfied with any order given by the court in this direction may
appeal within 14 days from the date of the order

ENFORCEMENT OF JUDGMENT FOR THE PAYMENT OF

MONEY

A judgment for the payment of money otherwise than to court may be

enforced by any of the following means of enforcement;
1) By a writ of fieri fecias
2) By garnishee proceedings
3) By charging orders
4) By appointing receiver
5) By an order of committal or by a writ of sequestration where the order
or judgment requires a person to do or refrain from doing an act
O43R5
Case:Republic v High court Fast Track Division Accra Ex parte
PPE LTD 2007/08 SCGLR 188

A person shall not be committed to prison because he is unable to pay

his debt otherwise than an order to pay the money to court
NB THE DIFFERENCE BETWEEN AN ORDER TO PAY MONEY
TO A PERSON AND AN ORDER TO PAY MONEY TO COURT.
WHERE AN ORDER IS MADE IN THE LATTER YOU MAY BE
SENT TO PRISON

Judgment for the payment of money to court may enforced by;

1) Appointment of a receiver
2) Order committal or a writ of sequestration where O43R5 applies
Case: LADY DE LA POLE v Dick 1885 29CH 351

JUDGMENT for the payment of money to a person cannot be enforced

by committal or sequestration and the subsequent order cannot be made
fixing a time for the payment to be made so as to bring the order under
O43R5 in order to find a right to sequestration or committal

Where a judgment directs payment to a person resident abroad the

money shall be paid into court unless the condition in Sections 15-20
Foreign Exchange Act 2003 have been met

The payment of the full judgment debt into court constitute a discharge
of the obligation imposed on the judgment debtor and execution can no
longer be levied against him or where a court orders you to pay money
to a person and it is paid to the court plus all expenses incurred in
bringing the person to court it constitutes a discharge of an obligation

Notice of the payment into court shall be given to the judgment creditor
or his lawyer or his accredited representative
Judgment of the possession of immovable property
Judgment for the possession of immovable property may be enforced by
any of the ff;
1) A WRIT OF POSSESSION
2) ORDER FOR SEQUESTRATION OR COMMITTAL WHERE
O43R5 APPLIES

Leave of the court is required before the writ of possession is issued

except where the judgment is given in a mortgaged action under O59
and not O56 stated in the CI O43R3(2)

Case: Ahinakwa II v Okai Gya 2011 1 SCGLR 215

Oyortey v Teye 2017/18 1SCLRG 746

Leave shall not issue unless every person in actual possession or

occupation is or have been served with notice of the proceedings
sufficient to enable him apply for relief O43R3(3)

Case: Ahinkwa v Okai Gya

Enforcement for the Judgment of Delivery of Goods

Where goods are to be delivered under a judgment without the option to

pay the assessed value of the goods, the judgment may be enforced by;
1) A writ of specific delivery
2) An order of committal or a writ of sequestration
Where goods are to be delivered or their assessed values paid such
judgment may be enforced by the ff means;
1) A writ of delivery to recover the goods or their assessed value
2) A writ of specific delivery with the leave of the court
3) a writ of sequestration
No leave is required for the issuance of the writ of specific delivery or
the payment of the assessed value of the goods But where the judgment
debtor has an option to retain the goods and pay its value and the
judgment creditor is interested in recovering possession of the goods
then a writ of specific delivery can only be issued with leave of the court

Where the judgment for delivery of goods specifies the time within
which the goods are to be delivered then it may be enforced by
committal or sequestration where the judgment debtor fails to deliver
within the time specifies

A judgment for the delivery of goods or the payment of the assessed

value within a specified time may be enforced by sequestration and not
committal if the debtor fails to deliver the goods or their assessed value
within the time specified in the order made by the court
However, if no time is specified for the delivery of the goods or the
payment of their assessed value then it can be enforced by a writ of
specific delivery or by a writ of delivery (and not by committal or
sequestration)

NB DIFFERENCE BETWEEN THE THREE POINTS.

An application may however be made under O43R6(2) on notice to the

judgment debtor for the court to fix a time within which the goods will
be delivered or pay the assessed value with the consequence that if they
are not delivered or paid within the specified time a writ of sequestration
will be issued

The time specified in an order to do an act may nonetheless be extended

or abridged after the service of the order O43R6(1)

A PROVISION FOR the payment of any money in a judgment for the

delivery or goods or the assessed value may be included in a writ of
delivery or the writ of specific delivery

A judgment for the payment of the assessed value of goods may be

enforced in the same manner that judgment for the payment of money
may be enforced O43R4(4)

A Judgment creditor must first assess the value of the goods where he
has judgment for the delivery of the goods or the payment of the
assessed value before applying for leave for the issuance of a writ of
delivery or the payment of the value.

Judgment to do or Abstain from doing an Act

A person who refuses or neglects to do an act within a specified time or

as extended or abridged or disobeys an order from abstaining from doing
an act may be enforced by any of the ff;
· A writ of sequestration against the property of the person with the
leave of the court O43R5. Definition for writ of seq.
· Where the person is a body corporate a writ of sequestration may be
issued against any director or other officer with leave of the
court
· May be enforced by an order of committal of the person or any director
or officer of the body corporate
Case: Republic v High Court Commercial Division Ex parte
MILLICOM 2009 SCGLR 41

It must be shown that the director alleged to be in breach has the mens
rea or the actus rues to do the act before being committed

An order to do an act cannot be enforced by committal unless a time is

specified and the debtor refused to do the act within the time specified
It is no answer for an application for committal to say that the act
ordered to be done was irregular
Case: R v High Court Accra Ex parte Efoda 2001/02 1 GLR

Whether an order made by a court is lawful or not, you have to obey the
order. Execution cannot take place where a person is ordered to do an
act within a specified time or to abstain from doing an act unless a copy
of the judgment or order is personally served on the person in question.
In the case of an order requiring a person to do an act, the order has been
served before the expiration of the time specified in the order O43R7(2)

WHERE the order or judgment served on the debtor is required to be

endorsed thereon, the order or judgement served on the debtor is
required to be enforced thereon with a statement to the effect that
execution will take place if he disobeys the order

Where the time specified for an act to be done is extended or abridged

the order extending or abridging the time shall also be served on the
person

A refusal to comply with a declaratory order does not amount to

contempt of the court.

An order for the delivery of goods or the payment of their value shall not
be enforced by committal but an application may be made for the goods
to be delivered within a specified time and such an order may be
enforced by committal or contempt proceedings if it is disobeyed
O43r5(3)

The power given to the court to extend or abridge the time within which
an act shall be done shall be exercised only where the judgment requires
an act to be done it does not apply to prohibitive orders

Where a party against whom an order for mandamus a mandatory order,

an injunction or a judgment for a specific performance of that contract
refuses to comply with that order the court may direct as far as
practicable and at the expense of the debtor the performance of the order
or act against whom the order was made O43R8. The debtor is not
absolved for punishment from contempt of court

An order in favor of or against a person not being a party to a case may

be enforced in the same manner as if the person was a party to the case.
Where judgment is given on condition that a particular act be done then
the failure to do that act erodes that judgment

Stay of Execution

A party to a judgment may apply for stay of execution on grounds of

matters which have occurred after the grant of judgment and the
application of stay of execution is without prejudice to the right of a
debtor to make an application under O44R15 to the effect that he is
unable to pay his debt by any means or he should be permitted to pay his
debt by installment
*Darteh v Ghana Home Loan Ltd 2013/15 1GLR 544

Principles governing stay of execution

· The Republic v National House of Chiefs Ex parte Nana Oduro
Boamah 2017/18 1 SCLRG 455
· N.B Landmark v lakhani 2001/02 SCGLR 318
· Appiah v Pastor laryea Adjei 2007/08 2 SCGLR 863
· Joseph v Jibril 1963 Glr 387
· The application must show exceptional circumstances for the grant
of application Djokoto & Amissah v BBC company ltd 2011 2
SCGLR
An application for stay of proceedings does not operate as stay of
execution Republic v High Court Commercial Division Tamale Ex parte
Case: Ex Parte Darteh 2015/16 2 SCGLR 1332

Where an application of execution is premised on the tendency of an

appeal then it must be shown that an appeal has in fact been filed and
pending before a higher court.

Case: Republic v High Court commercial division Kumasi Ex parte

First Atlantic Bank 2015/16 1 SCGLR 657
NDK Financial Services v Yiadom Construction 2007/08 1 SCGLR
93
Under O45R15 an application for stay of execution can only be made if
the judgement sought to be stayed is for the payment of money and for
the application to succeed the judgment debtor or the person liable to
succeed must show that there are special circumstances rendering the
enforcement of the judgment inexpedient or that the applicant is unable
for any just cause to pay the money

An execution for a writ of fi fa may be stayed absolutely or for a stated

period imposed by conditions stated by the court. An application of stay
of execution may be made by the court at the time of the giving of the
judgment or it shall be made upon an application made on notice

If a judgment debtor applies to the court that the execution of a judgment

be stayed on grounds that he is unable to pay the debt then, the
supporting affidavit to the application shall depose to the income of the
judgment debtor and the value of any property which he is possessed of.
4 clear days notice is required

A judgment for the payment of money may be enforced also by the

appointment of a receiver who shall receive profit and rent from any
property owned by the judgment debtor

WRIT OF FIERI FACIAS

Writ of fi fa shall be executed by the seizure and the sale of so much of
the property of the debtor as is sufficient to pay the judgment debt (the
debt itself +interest + cost) O45R1(2)

Case: Akowah v Amoh 2012 SCGLR 261

Where judgment is given for the delivery of possession of property other

than money, the creditor may issue a separate writ of fieri facias to
enforce the payment of money awarded or damages or cost

Method of putting a writ of fi fa into effect O45R4

Movable properties of the judgement debtor may be seized first and

taken away by the registrar and kept and sold. Then money may be
deposited into the court

Where movable property is in the possession of some other person under

lien or a right of some other person to possession of the property the
registrar shall serve on the other person with an order preventing him
from giving the property to the judgment debtor.

If the property is shares the registrar shall serve an order on the company
preventing the company from selling or paying dividend of the shares to
the judgment debtor or any other person O45R4(d)

After an attachment has been effected in accordance with the rules any
alienation, gift or sale of the property attached becomes null and void
any person making the alienation shall be liable for contempt of the
court. O45R6 thus the owner looses his right to deal with the property.
The attachment freezes the right of the judgment debtor

The court may order any property attached in execution be sold and the
proceeds that will be realized from the sales paid to the judgment
creditor to liquidate the debt owed by the judgment debtor. If the
property attached is money the court may order that so much of the
money be paid to the judgement creditor O45R7. The sale of any
property attached in execution shall be conducted under the directions of
the registrar of the court at a public auction. Meaning the judgment
creditor cannot by the right of being owed sell the property of the
judgment debtor.

7 days notice is required to be given before a movable property which

has been attached be sold.
Section 12 of the Auction Sales Act and O45R9(1)

Where the property to be auctioned is an immovable property then 21

days notice ought to be given Section 15 PNDCL 230

Publication of the sales or the auction is required to be made where the

auction is to take place and also at the place if it is an immovable
property where the property is situate.

Before property taken in execution can be sold at an auction a reserved

price needs to be obtained from the court. A reserve price is a price fixed
by the court below which the auctioneer is not permitted to sell the
property. The auctioneer can only go above the reserve price and not
below. Where the auctioneer sells below the reserve price, although that
is the highest bid at the sale, the sale may be set aside Section 16(7) of
PNDCL 230
Section 16(8) of PNDCL 230-

Within 21 days after an auction sale an application may be brought to

the court to set aside the sale on ground of any material irregularity in
the conduct of the sale. O45R10- in order for an applicant to succeed in
such an application the applicant must prove that by reason of the
irregularity he sustained substantial injury.

The effect of O45R10 is that the proceeds of the sale cannot be

disbursed to the judgment creditor within the 21 days after the auction-
POLICY REASON- this is because within 21 days where there is a
ground, the judgment debtor may apply for the sale be set aside. Hence
within the 21 days the judgment creditors right has not accrued.

Where the sale is set aside the one who buys the property at the auction
sale must have his money back

Where the sale is not set aside after the 21 days then the sale becomes
absolute. The judgment creditor can now access his right to obtain so
much as is owed to him. O45R11

Garnishee Proceedings O47

Under garnishee proceedings the court exercises power to order any
person who is indebted to the judgment debtor or who holds money on
behalf of the judgment debtor to show cause why that money which he
holds on behalf of the judgment debtor should not be applied to pay the
debt owed by the judgment debtor
Republic v High Court Commercial Division Ex parte AG (Zenith
Bank Interested party) 2018-19 1GLR 825

O47 does not apply to any order for payment of money into court but it
applies to judgment obtained against the government Section 15 of the
State Proceedings Act 555
The Republic v High Court Fast Track Division Ex parte AG
2013/15 vol2 GLR 631

Garnishee proceedings is made up of two stages

Stage one consists of an application for the issuance of garnishee nissi
Stage two leads to further consideration or the showing cause

In garnishee proceedings an application ex parte is filed and must be

accompanied by an affidavit. The affidavit shall identify the judgment or
order to be enforced. The applicant shall depose to the quantum of the
debt in the affidavit.
The applicant shall also depose to the fact that the garnishee is within the
jurisdiction of the court and the applicant shall also depose to the fact
that the judgment debtor has money with the garnishee or the garnishee
owes money to the judgment debtor
Once this is made an order nissi is made upon the garnishee to appear
before the court at a given date.
Once the order nissi is made then we move to the second stage. To move
on to the second stage; O47R3(1)
) Serve the same order nissi as well as a hearing notice on the
garnishee
) Serve the order nissi as well as a hearing notice on the judgment
debtor
Republic v Fast Track High Court Ex parte State Corporate LTD
2008/9 1 GLR 58

On the date fixed on the order nissi it is on that date that the second
stage of the Garnishee proceedings kicks in. However where the money
held by the garnishee is due to the judgment debtor in his capacity as a
trustee for another person, an order nissi cannot be made
Roberts v Death 1881 vol 8 QBD 319

If the whole of the judgment debt has been assigned the assignee may
obtain an order nissi after seeking leave to enter into execution.

An assignee of only a part of the debt cannot apply for an order nissi.

The service of the order nissi on the garnishee binds the garnishee in
respect of the extent of the amount stated in the order nissi and for that
reason the garnishee shall not pay the amount to any other person
including the judgment debtor O47R3(2)
On the return date if the garnishee fails to appear in court or having
appeared if the garnishee does not dispute the debt owed to the judgment
debtor and to the extent that the garnishee doesn’t show cause why the
money held by him should not be given to the creditor, then an order
shall be made for the payment.

The effect is to direct the garnishee to pay the amount to the judgment
creditor unless the amount in the account is less than that owed the
judgement creditor

If the garnishee appears on the appointed date and disputes the debt
allegedly owed by the judgment debtor, that issue shall be determined by
the court summarily. O47R5

If the Garnishee appears in court and states that some other person other
than the judgment debtor claims the debt or has a lien over the debt

An order for the payment of money shall not be made in favor of a

judgment creditor where the judgment creditor resides abroad until the
provisions of the foreign exchange act have been complied with
O47R7(1). Then in that case instead of making an order absolute in
favor of the judgment creditor who resides abroad the court shall order
that the money held by the garnishee be paid into court.

The garnishee shall be discharged of any debt owed the judgment debtor
to the extent of any money paid or executed under an order absolute ie
once the garnishee has been ordered to pay the debt owed by the
judgment debtor the latter cannot request for the money from the
garnishee. The judgment debtor himself stands discharged to the extent
of the debt owed the creditor and paid under an order absolute
O47R8(1&2)

Where a judgment debtor has money in court, the judgment creditor

need not apply for garnishee proceedings but the judgment creditor may
apply directly to the court for an order that so much of the money held
by the court for the judgment debtor be released to him to be used to pay
up his debt owed.

The judgment debtor is entitled to be given not less than 7 days notice so
that he can attend proceedings.
The cost of the garnishee proceedings shall be added to the debt owed by
the judgment debtor
To entitle a judgment creditor to an order absolute, the judgment creditor
must show that the debtor is under an obligation to pay his debt
immediately i.e he debtor must be bound to pay the debt immediately
and not in the future.

In Re Greenwood 1901 1CH 887

Where judgment is obtained jointly against two or more persons a debt

owing to any of them can be attached in execution
Any money at all in the bank to the extent that there is no lien on it held
by the judgment debtor can be attached BUT monies paid into the.
Account after the service of the order nissi cannot be attached. This is
because the order nissi freezes the amount stated on the order on the date
the order is served on the bank.

If the garnishee allows an order absolute to be made against him the

garnishee is bound to pay even if the judgment debtor has no money in
his account. He is estopped from stating he has no money in his
account .

PROBATE AND ADMINISTRATION

Until probate and letters of administration is granted to either an

executor or the personal representative of a deceased person, the estate
of the deceased person cannot be disrupted lawfully with any person
who is deemed to be entitled . When a person dies, whether the person is
buried or not, no one has the right to distribute the estate of that person
unless probate is given to his will or letters of administration is granted.
Section 61(1) of the Administration of Estates Act
Order 66 rule 3

Case: In Re Apau(deceased) Apau v Okansey 1993-94 1 GLR 146

A person who takes possession of and distributes the estate of a

deceased person without obtaining probate or letters of administration is
said to have intermeddled with the estate and is guilty of an offense and
is liable to be sentenced after conviction O66R3

A named executor who takes possession of a property which is the

subject matter of a device under a will and administers the property shall
apply for probate within three months from the date of death of the
deceased. If he does not do so he may be guilty and dealt with according
to law

The court has power to give notice to any named executor to prove or
renounce the probate to the will
Any person who is a devisee under a will may apply for an order upon a
named executor to prove or renounce probate to a will or the will

A named executor shall within 14 days from the date of receipt of a

notice either apply for probate or renounce probate. The right to
executorship shall be extinguished where a named executor renounces or
decides not to prove a will

Where the right to executorship extinguishes, a will shall be

administered upon the grounds of letters of administration with will
annexed O66R7(3) and section 62

APPLICATION FOR LETTERS OF ADMINISTRATION

LA is mostly administered for the administration of a person who died
intestate.
LA may also be granted to administer the estate of a person who died
testate but who failed to name executors to his will
LA may also be granted to administer the estate of a person who died
testate but in respect of which the named executors either renounce
probate or failed to prove the will after receiving notice to do so

LA may also be granted to estates of a testator but in respect of

properties which he did not devise under the will

An application for LA is made ex parte with a supporting affidavit

An application for LA may be made and granted to a maximum of 4
persons in the following order of priorities; O66R13
1. Any surviving spouse
2. Any surviving children, meaning illegitimate children can apply for
letters of administration.
3. Any surviving parent
4. Any customary successor of the deceased
Case: In Re Asante( Decd) Owusu v Asante 1993/4 GLR 271
Section 77 of the Administration of Estates Act

The supporting affidavit of the application for letters of administration

shall depose to facts sufficient to identify the deceased.
The fact that the deceased is dead must be deposed
The date of death must be stated in the affidavit
The relationship of the applicant must also be deposed to
The applicant must depose to the fixed or the last place of abode of the
deceased person and whether or not the deceased was survived by a
spouse, children with their names and ages must all be deposed to
The affidavit shall also state the interest of the applicant in the estate of
the deceased person. In practice we normally demand affidavit from the
head of family O66R9(1)

In addition to the affidavit by the applicant a declaration of movable and

immovable property of the deceased together with the values of the
property shall be filed by the applicant O66R9(3)

A death or a burial certificate or any evidence proving the death of the

deceased shall be exhibited to the affidavit in support

Where the application is granted a notice of the grant shall be posted for
a period of not less than 21 days or for any number of days that the court
shall determine. This shall be done before the issuance of the letters of
administration.
NB the difference between the grant of the LA and the issuance of the
LA. The grant of the LA normally precedes the issuance of the LA

The notice of the grant may be posted at or on the notice board of the
court at the last known place of the deceaseds known abode or at any
public place where it is likely to come to the attention of the person who
may be interested in the estate of the deceased.

The court has power to order the notice of the grant to any potential
beneficiary of the estate.
The court has power to make inquiries and examination to satisfy itself
before issuing the letters of administration.

After the expiration of the period given for the posting of the notice
provided there is no CAVEAT filed, the LA may be issued to the
applicant upon the payment of the specific fees and all necessary taxes

PERSONS ENTITLED TO THE GRANT OF LA in the order of

priority:
. Surviving spouse
. Surviving children
. Surviving parent
. Surviving customary accessor
Section 77 O66R13 AND R4
Owusu v Asante
Where a beneficiary to an estate is an infant or where a life interest is
created under a will the LA shall be granted to at least two individuals
but it may be granted to a trust corporation ie. A company set up to deal
with trust or a

In making the grant the court has power to grant the LA to any one of
two or more persons entitled in the same degree.Eg where the man has
three wives it may granted to any of them even the last wife. Same
applies to the children the last born may be granted LA where the court
sees fit the he or she is the one capable. It does not matter the position of
the person.

The court may determine disputes among persons who are entitled to the
grant as to which of them is more capable of managing the estate of the
deceased.

Where a person with a superior right to the grant of LA refuses to apply

for the grant a person with an inferior right may serve notice on him to
apply and if not stop is taking to apply for the grant after 14 days of the
service of the notice the person with inferior right may apply for LA
O66R15

CAVEAT
A caveat is a notice of warning filed by a person who claims to have
interest in the estates of the deceased and it is addressed to the registrar
of the court with jurisdiction over the last place of abode of the deceased
instructing the registrar of the court that the court shall take no step in
the issuance of a probate or letters of administration to any other person
unless the caveator is heard

A caveat may be filed either before the application for LA or

PROBATE or after the grant of the application BUT before the grant of
the probate or LA O66R11(1&2)

Case: In Re Yeboah(Decd); Duku v Dwuma 1974 2 GLR 98

Where a caveat is filed before an application is made it shall be brought

to the notice of the court as soon as an application for probate or LA is
filed
Where the Caveat after an application is made the registrar shall
immediately bring it to the notice of the judge and once a caveat is
brought to the notice of the court, the court shall direct the registrar to
serve a copy of the notice of the caveat on the applicant(s) of the LA.

An applicant who has been served with a notice of the caveat shall also
file a notice of warning calling upon the caveator to disclose his interest
in the estate and no steps shall be taken in the application for the grant of
LA or probate until the caveator is duly warned by the applicant

A caveat expires after three months from the date it is filed and it may be
renewed from time to time
A caveat takes effect after the date it is filed or received and whiles a
valid caveat remains on the docket, probate or letters of administration
shall not issue and where a caveat has been filed opposing a will the
court cannot admit the will to probate until the caveat is removed
Case: In Re Nkansah(decd) Nkansah alias David v Okyere 1989/90
2GLR 195

Where a valid caveat has been duly filed, the caveator shall be warned to
disclose his interest in an affidavit of interest. If the caveator fails to
disclose his interests by filing an affidavit of interest within a reasonable
time, the applicant shall move the court to grant probate of LA

The court has power to order that the application is served on the
caveator although it is made ex parte. If the caveator however files his
affidavit of interest, a copy shall be served on the applicant who shall
then move the court for the grant of LA on notice to the caveator

The caveat shall be removed from the file before the grant of LA or
probate to the persons chosen by the applicant and the caveat for the
grant of LA. However if the applicant or caveator is unable to agree on
the person to whom the LA shall be granted, then that issue shall be tried
summarily by the court or the court may direct the applicant to sue or
file an application against the caveator
Case: In Re Ennin alias Bodom(decd) Nti v Serwaah 1980 GLR 809

A person who is granted LA shall administer the estate of the intestate in

accordance with the PNDCL 111
Where the LA was granted with will annex, the estate of the testator
shall be administered in accordance with the will of the testator
Where a person dies testate and intestate in respect of his estate the
estate shall be administered in accordance with the provisions of the will
as well as with the provisions of PNDCL 111 as the case may be

APPLICATION FOR PROBATE

The application for the grant of probate is normally made by a motion
ex parte with a supporting affidavit O66R8(1).
The application for the grant of probate is normally made by the main
executors in the will. However, where the named executors are deceased
or are unwilling to apply for probate or have renounced executorship or
the will fails to name executors, then any person with interest in the
estate of the deceased may apply for LA with will annex
Kwaku v Wilbeck 2012 SCGLR 408

The supporting affidavit is sworn by the named executors or by the

person with interest in the estate. The deponent shall identify the testator
and the relationship with the testator, the date and place of death. The
applicant shall depose to the last known place of abode of the testator.
They shall also depose to an inventory stating the estate of the testator as
well as the values of the estate. As part of the application the executors
shall file an affidavit for persons who witnessed the will
The witnesses of the testator shall depose to that fact in the affidavit.

A declaration of the movable and immovable properties of the testator

shall also be filed and a copy of the will shall be exhibited to the
affidavit in support. The death certificate or burial permit of the testator
shall also be filed.
The applicant, especially the executors shall fill and complete a standard
form document exhibiting their oath to faithfully and diligently
administer the estate of the testator in accordance with the provisions of
the will

Under O66R10(3) no probate shall issue after it has been granted unless
the court has satisfied itself about all inquiries operating to the grant of
LA.

O66R11 provides on the kind of investigations a court can conduct

before it issues the probate
AND R12-READ

NB: the grant of probate is different from the issuance of a probate

Order 66 r12 provides on the persons who may apply for probate to
include the main executors, devisees (A devisee is somebody to whom a
devise has been made under a will) and creditors

The Mode by which a Will may be admitted to Probate/ Proof of a will

There are basically two modes by which a will may be admitted to
probate;
. The common form proof of a will or by an application made ex parte
. The solemn form proof of a will or by a probate action

The Common Form Proof of a Will

It is done by filing an application ex parte praying the court for an order
that the will be admitted to probate.
The common form proof is adopted where on the face of the will,
everything appears to be regular i.e all the characteristics that the Wills
Act require are present on the face of the will. (Read on Characteristics
of a will)

In the supporting affidavit, the applicant must depose to certain facts:

The applicant must depose to the fact that the will was duly executed by
the testator and the
The will itself ought to be exhibited to the supporting affidavit. And any
document that the court or rules require ought to be exhibited to the
affidavit e.g, the death of the tester, the last place of abode of the
testator, the death certificate or burial certificate
Order 66R25

Case: Wilbeck v Wilbeck 2017-2020 1 SCGLR 861

Yankah v Administrator- Genreal 1971 2 GLR 186

A will is proved in common form where its validity is not in question

and once the validity of the will is not in question all that the executor(s)
need to do in order to obtain probate is to file an application ex parte
with a supporting affidavit.

The Solemn Form Proof

 A will is said to be proved in solemn form where a probate action is
instituted by the issuance of a writ of summons for a declaration that the
will is not valid or valid.
NB: In common form proof, an action by the issuance of a writ is
not filed. In solemn form proof, it is mandatory to issue a writ of
summons with an accompanying statement of claim.
Order 66 R 26

Case: Yankah v Administrator General

A will is proved in solemn form by the executor or any person interested

under the will or any person who has the legal right to do so provided
the will in an action to which the persons prejudiced by the will have
been made parties.

An executor who has already proved a will in common form can also be
compelled to prove the same will in solemn form and he can be
compelled to do so by the executor or any person interested under the
will.
If the proof in solemn form fails, the probate which has already been
issued is revoked.

The need for proof of a will in solemn form arises where the validity of
the will is challenged or where there is some irregularity on the face of
the will.
NB: you will have questions on probate and administration actions

A probate action is an action commenced by the issuance of a writ of

summons in which an order is sought for the grant of probate or letters
of administration or for the revocation of probate on the grounds that the
will is valid or not valid.
In a probate action, the validity of a will is mostly in issue. In a probate
action, proof of a will in solemn form otherwise than in common form is
always demanded or required.

The named executors, may by notice be requested to prove the will in

solemn form by any person who has interest in the estate of the deceased
testator.
Order 66 R26(2)

The notice shall state the following;

1. The name of the person to be given the notice and the address and
description of the person
2. The interest of the person in the estate of the testator
3. The ground upon which the validity of the will is disputed e.g that the
will is a forgery, that the will was not executed by the testator etc.

The notice must be signed by the person or his lawyer and it must be
filed in the court with copies served to the named executor
Once an executor is served with the notice, the executor has eight (8)
days from the day of service on which to indicate 1. whether he intends
to prove the will in solemn form or 2. he renounces probate.
An executor who fails to file an answer or response after receiving the
notice shall loose his right of executorship. However, the court may
extend the period for executorship.
Within eight days after the executor has filed his answer, the executor
shall issue a writ against the person who issued the notice asking for a
declaration from the court that the will is valid and must be issued to
probate.

Where the executor fails to issue the writ within the eight days period,
the person who filed the notice may apply to the court for an order
declaring the executorship as extinguished.

The court after hearing the application may either make a declaration
order or extend time for the writ to be issued.

Where the named executor fails to issue the writ, any named beneficiary
under the will may issue a writ against the person who filed the notice to
pronounce on the validity of the will and the grant of letters of LA with
will annex.
(How may a probate action be instituted?)

Instead of filing a notice for a will to be proved, a writ may be issued

against the executor for a declaration that the will is not valid and any
person who claims an interest in the property may be joined as a plaintiff
or defendant.
If probate has already been granted, then before one issues the writ,
particularly in common form against the executor, the person shall first
file what is known as citation.

Case: In Re Yeboah(decd); Duku v Dwumah 1974 2 GLR 98

Commencing A Probate Action

A probate action is always commenced by the issuance of a writ of
summons
Order 66R33

Where the writ seeks to revoke probate or LA which has already been
granted by the court before the writ is issued, the person suing shall file
a notice/citation calling upon the grantee of the probate or LA to deposit
the probate or LA in the registry of the court.

Case Wilbeck v Wilbeck

Enynam v Mensah 1989-90 2 GLR 96
Cases which provides the consequences of the failure to file a citation
before issuing a writ
In Re Sackitey (Deceased); Sackitey v Dzamioja 1987-88 2 GLR 434
Enyinam v Mensah
Bonsu v Effah 2001-2002 1 GLR 9

Section 67 of Administration Of Estates act 1961 Act 63- the effect or

consequences for not filing the citation before issuing the writ.
Intervention
After the issuance of a writ in a probate action, any person who claims to
have an interest in the estate of a testator may by application seek leave
of the court to intervene in the action. The application for leave to
intervene shall be made on notice to the existing parties. The application
shall be supported by an affidavit in which the interest of the intervener
on the estate shall be deposed

Case: Heward -Mills v Ollenu 1997-98 2 GLR

Upon the grant of leave to a person to intervene in a probate action, the

court may give directions as to the service of pleadings and the general
management of claims. Any person who has an interest in the estate of
the deceased may upon application by the plaintiff or any other party to
the probate action be served with a notice to file an appearance with to
writ for participation.
The notice shall be accompanied by an affidavit in which the interest of
the party is set out in the notice which is in the nature of a writ is
required to be served personally on the person against whom it is issued.
Order 66 Rule 35

A person who is granted leave to intervene in an action or upon whom a

notice with an affidavit is served in rule 35 shall enter appearance within
the time specified in order.
If the person fails to enter appearance then an affidavit showing proof of
of service of the notice shall be filed before the acton can be proceeded
on.
Order 66 R38- Testamentary Script
After the entry of appearance in a probate action, all the parties i.e the
plaintiffs and defendant shall swear to an affidavit and depose to the said
affidavit how the for not they have knowledge of the existence of any
script made by the testator or the instructions of the testator.

A testamentary script is a will or a draft of a will or any document which

purports to evidence a will or the content of a will or a copy of a will
alleged to be lost or destroyed and any testamentary scripts in existence
shall be annexed to the affidavit and filed with the registry of the court
after the entry of appearance by the defendant.

If no defendant enters appearance, then the affidavit shall be filed by the

plaintiff alone and if there exists any testamentary script then same shall
be filed at the registry of the court

Default of Appearance in Probate Actions

In probate actions, judgement in default of appearance shall not be filed
or allowed. Where a defendant defaults to enter appearance in a probate
action, the plaintiff shall set down the acton for trial after the filing of an
affidavit showing that the defendant has duly been served with the writ
of summons.The action shall not be heard unless the plaintiff after
setting down the matter for trial takes steps to file an affidavit deposing
to the existence of a testamentary script or otherwise.

Pleadings in Probate Actions.

Order 66 R40

A plaintiff who disputes the interest of the defendant in the estate of the
testator shall plead that fact in his statement of claim. Any party who
disputes the interest of the other in a probate action shall also plead that
should that other party prove his interest or claim, that party shall be
entitled in an interest in the estate.

A defendant served with writ and statement of claim shall file

appearance within 8 days from the date of service. A defendant shall
also file and serve his statement of defence within 14 days after filing
his appearance.

Any person or party who pleads in a probate action that the testator was
non compos mentes or that the testator did not know of and did not
approve of the content of a will and the time the will was alleged to have
been executed shall give particulars of his claim.
A party who accepts that the testator did not have the presence of mind
at the time of the execution of the will shall specifically plead the ff;
13792. That the will was not duly executed
13793. That the testator was not of sound mind at the time of the
execution the will
13794. That the will was a forgery
13795. That the execution of the will was obtained by undue
influence or fraud
A defendant to a probate action may include a counterclaim in his
defence provided the counterclaim relates to the grant of probate or
Letters of Administration.

DEFAULT OF PLEADING IN PROBATE ACTION o66r42

Judgment in default of pleading shall not be allowed in a probate action.

Where there is default of pleading ie. Default of defence the action shall
be set down for trial unless the action is struck out. There cannot be
default of statement of claim otherwise there will be no action at all. The
plaintiff prays the court to set down the action for trial

DISCONTINUANCE
A probate action shall only be discontinued with the leave of the court.
Where the court makes an order for the discontinuance of a probate
action on application by any of the parties, the court in making the order
striking out or discontinuing an action shall also make an order granting
probate or letters of administration to the party who is entitled thereto

ADMINISTRATION ACTION O66R44

Administration action is normally instituted to determine and settle
issues and questions or disputes which may arise during the
administration of the estate of the deceased person or during the
management of a trust created under a will
Administration action may be filed to determine any of the following
examples;
1)the share which a person is entitled under the estate of somebody who
died intestate. Section 5(1)(a) of the intestate succession act PNDCL
111- where the intestate is survived by a spouse or by a child the residue
of the estate shall devolve in the following manner: 3-16th to the
surviving spouse. There may be a Question or dispute on the share.

RELIEFS WHICH MAY BE SOUGHT BY PLAINTIFF IN AN

ADMINISTRATIVE ACTION.

) An order that an executor or administrator furnishes and verify

accounts may be sought. A trustee for instance under a will may be
sued to render accounts.
) Money held by a trustee, administrator or executor be paid into court
) An order of injunction against an executor, administrator or trustee
) An order for the approval of sale, purchase, compromise or of any
other transaction done as executor , administrator or trustee
) Pray the court for an order directing the management of a trustee
property or the estate of a deceased person

PARTIES IN AN ADMINISTRATION ACTION

In an administration action all the executors, or administrators or trustees
shall sue together as plaintiffs and any of them that refuses to sue as
plaintiff shall be sued as a defendant
A suit shall be brought against all the executors or administrators or the
trustees. If the plaintiff refuses to sue any one of them that person shall
be joined as a defendant by the others.
A plaintiff in an administrative action need not make all persons with
beneficial interest in the estate or under a trust parties to the suit. Having
regard to the nature of the relief sought a plaintiff may make some of the
beneficiaries defendants to the suit

A claim of a debt or liability against the estate of the deceased person

shall be made against the executors or the administrators only.
A person who is not already a party to the administration action shall not
join an administration action where a claim of a debt or liability is made
against the estate except he obtains the leave of the court O66R47(3)
However a person who already is a party to the suit may contest a claim
of debt or liability against the estate of the deceased

LIMITED OR SPECIAL GRANT OF PROBATE OR LA

(1)A court may grant probate to a copy or a draft of a will or codicil
where the original is lost until the authentic copy is filed and proved
O66R48(2) An authenticated copy of a will may be admitted to probate
either without any limitation or until the original of the will is produced
where the original is in the custody of a foreign court or foreign official
or it is in the custody of a person who resides abroad.

GRANT OF PROBATE TO HOLDERS OF POWER OF ATTORNEY

A person resident abroad who is entitled to the grant of probate or letters
of administration may cause is Attorney to obtain a limited grant for his
temporary use and benefit till he obtains a grant of letters of
administration
An executor who is resident abroad may with the consent of the other
executors obtain the grant of letters of administration with will annex for
his use and benefit until . The power of attorney used to apply for the
letters of administration shall be notarized and

A power of attorney which is to be used for the application of LA and

which is in a language other than English shall be translated into English
and certified before it can be used

Where the power of attorney is deposited in the registry of the court that
power of attorney shall be exhibited on the affidavit in support of LA

GRANT OF PROBATE OR LA FOR CHILDREN

A person below the age of 18 is not entitled to the grant of probate or
LA. Hence where such an instance arises a limited grant shall be made
to the guardian of the minor for the use of benefit of the minor until he
attains the age of majority.
The supporting affidavit of the guardian shall depose to the fact that the
person who is entitled to the grant of probate or letters of administration
is a minor

LA with will annex shall be granted to the guardian of a minor or to any

fit person if the minor is the sole executor named in the will till he
attains the age of majority and applies for probate.

Where the minor is one of other executors ie. He is not the sole executor
there are other executors who are without any disability probate may be
granted to the executors who are without disability but the right of the
minor to apply for probate shall be reserved till he attains the age of
majority and that right cannot be renounced on behalf of the minor

GRANT OF PROBATE OR LA TO PERSONS WITH DISABILITY

A temporal grant of LA may be made for the benefit and use of a person
who otherwise is entitled to the grant but is unable to manage his affairs
due to mental or physical disability.
But where there are other executors named in the will then probate shall
be granted to those other executors.

In all cases medical evidence of incapacity shall be produced. A medical

report shall be produced after he has been medically examined. Where a
person develops the disability after the grant of the probate, the grant
shall be revoked and another grant made to any person interested in the
estate or to any fit person O66R53

PRISONER
A grant shall not be made where a prisoner is entitled to a grant. The
grant shall be made to his attorney. The court reserves the right to
appoint any person in place of the prisoner as administrator

Where a person is sentenced to a term of imprisonment after a grant has

been made to that person the grant shall be revoked and a regrant made
to his attorney or any person appointed by the court R56,57,58 OF O66
ADMINISTRATION OF UNADMINISTERED ASSETS /
INCOMPLETE ESTATE
A grant of LA with will annex, shall be made to the personal
representatives in respect of the un administered assets or estates of a
testator where the chain of representation is broken Section 64 of the
Administration and EsTATES ACT and R59(1) OF O66

LA shall also be granted to any person entitled to complete the estate of

an intestate R59(2)O66
IN RE BOSSMAN DECEASED 1977 1GLR 403
HEWARD MILLS V HEWARD MILLS

A regrant of LA may be made to any person who is entitled where a

person to whom a limited grant was made has died.

ORDER 74 - COSTS

It is structured to ensure that at least some of the cost incurred by

litigants are refunded or paid back to them. Cost may be awarded to a
litigant during a course or proceedings and sometimes after the
proceedings or at the end of the proceedings. Costs are normally
awarded in favor of parties who emerge victorious after the trial.
On very rare occasions, successful parties may also be ordered to pay
cost or may be denied a cost which they deserve.
Cost is at the discretion of the court. i.e the award of cost is a decision
that it is only the trial judge who determines or decides to award cost
and determines how much cost should be awarded.
Order 74R1(1)
Notwithstanding that, the discretion should be exercised judicially and
not capriciously. It must be exercised in accordance with laid down legal
principles.

What is judicially acceptable, What accords to laid down legal principles

is dictated by the facts of the case and the circumstances surrounding the
case.

Case: Nkoom v Sowatey 2013-15 2 GLR 887

Generally speaking, a successful party is entitled to be awarded cost,

particularly, where he has not misconducted himself and/or where his
lawyer has not misconducted himself during the trial.

Case Worbi v Asumanyuah 1955 14 WACA 669

Contrast Baylis Baxter LTD v Sabath 1958 2 ALL ER 209

The cost or amount of cost which ought to be awarded to a successful

party ought to assessed by the court.

Case: Owuo v Owuo 2017-2020 1 SCGLR 780

Before the court determines how much should be paid by way of cost,
the court may invite the lawyers to address the court on the issue of cost.

Purpose of Cost
The award of cost is generally designed to compensate a successful party
for the expenses reasonably incurred towards the conduct of the case.
Order 74R2(3)(a)

Another purpose is to provide a reasonable remuneration for the lawyer

of the successful party taking into consideration the volume of work
done by the lawyer.
O74R2(3)(b)
The court may deny cost to a successful party where no industry has
been shown by his lawyer.

Case: Mensah & ors v Adu & ors 1972 2 GLR 218

Factors a court takes into consideration in awarding cost

O74R2(4)

1. The amount of expenses including travel expenses reasonably

incurred by that party to that party’s lawyer or both in relation to the
proceedings.
2. The amount of court fees paid by the successful party or by his
lawyer in relation to the proceedings.
3. The length and the complexities of the proceedings
4. The conduct of the parties and their lawyers during the proceedings
5. Any previous order as to cost made in the proceedings

Case: Nkoom v Sowatey

Kwakwa v Barclays Bank GH LTD 2003-05 1 GLR 224
***Borkloe v Nogbedzi 1982-83 GLR 1003

Cost may be awarded by the court at any stage of the proceedings. It

may be awarded during the proceedings and at the end of the
proceedings. For instance, where a person makes an interim or
interlocutory cost and is successful, the may be an interim or
interlocutory cost.
O74R4- various instances that a party is entitled to cost as of right

O74R4(8)- Cost arising out of misconduct and negligence may not be

recovered.
The court may award cost against the lawyer for misconduct and
negligence.

O74R11- cost awarded may be enforced the same way as an order for
the payment of money may enforced.

Supplementary question 2
) w/n one could pray for a declaration of title orally or any other relief
primarily that the judgment was obtained by fraud? OR w/n one
could pray for any other relief in addition to the relief of setting the
judgment obtained by fraud

) W/n by the 2nd of July the conditional appearance filed by Kwaku

on the (date……..) will still be treated as conditional appearance at
the date the motion was filed OR was still valid or could be treated
as valid NO Order 9R8

) Whether or not in a writ of Ans: No Authority Okie Mensah v

Laryea 2011 1 SCGLR 317; Akim Manso Stool 1989-90 GLR

) Whether or not it was right for the trial judge to have entertained the
motion filed by Kwaku Bonsu NO Order 9r8 Renault

) Whether or to the writ of summons issued by Kwesi Tibu discloses a

reasonable cause of action. Yes What constitutes a cause of action
Order 11 r 8 and 12

) Whether or not the High Court had jurisdiction to

entertain/determine the writ instituted by Kwesi Tibu? Yes. Article
140(1) of the Constitution; section 15 of the courts Act. Republic v
HC Accra Ex Parte Aryitey 2003-2004 SCGLR the only way one
can get a court to set aside a judgment on grounds of fraud is by the
issuance of a writ of summons.
) Whether or not it was right by the HC Accra to grant the application
filed by Kwaku Bonsu.

Q3- Policy reasons behind the provisions in Order 16R5(2) Amendment

Recommendations
- general principles and purpose of amendment.
Appiah v Takyi

- After the introduction then move to Order 16 rule 5(2)-

Deals with three types of amendment under Order 16 R5 (3,4,5) where
the court has the discretion to grant

SubRule 3- Leave to amend names of a parties

NB Order 4R5(a), (e)

Subrule 4-

Subrule 5-

- Policy Reasons-

Q4
Area of Law- Joinder of parties
Third party proceedings
 Principles governing joinder
Order 4 rule 3

The question seeks to determine the most appropriate way of joining the
parties in the action i.e the two parties.

Bohene foods ltd v national savings and credit bank ltd & Anor 1992 1
GLR

The most appropriate way of joining the two parties

Appenteng v Bank of West Africa

Areas
1. Appeals
2. Read Order 74-Cost
3. Amendment
4. Appearance
5. Application for directions
6. Enforcement of judgment
7. Pleadings
8. Probate
9. Third party proceedings
10. Service of proceedings
11. Summary judgment

What to expect
1. Compulsory- 40 marks
2. 6 questions- Answer three in addition to the compulsory
3. Structure of the question
- Observe the 2021 exams questions