Order 81 of ci47 has rendered obsolete the long held distinction between fundamental in

proceedings and mere irregularity. Discuss

Order 81 Rule 1(1) of CI 47 provides as follows:

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

Since the promulgation of C. I 47 this court has followed the trend as stated in this
commentary. Thus Professor Date Baah JSC speaking for the court in the case of
Republic v High Court, Accra; Ex- parte Allgate Co Ltd. [2007-2008] SCGLR
1041 said,“where there had been non-compliance with any of the rules
contained in the High Court (Civil Procedure) Rules, 2004 (C. I. 47), such
non-compliance is to be regarded as an irregularity that does not result in
nullity, unless the non-compliance is also a breach o f the Constitution or of a
statute other than the rules of court or the rules of natural justice or
otherwise goes to the jurisdiction.”

The rules of civil procedure are equally important as the substantive law which they serve
and
direct, and as a result, they must be strictly observed.

This is highlighted in the case of Patrick

Ankomahyi v Hannah Buckman (3 2007/2008 2 SCGLR pg 1041) where counsel for the
appellant failed to abide by Rule 15 of
CI 16. The Supreme Court noted that the Rules of Court are not mere ornamental pieces,
and are
meant to be complied with.

Order 1 rule 1 (2) provides for the policy rationale in the

interpretation of the rules of court. See THE TRUST BANK
LIMITED V G.K. APPIAH & SONS LIMITED [2011] 2 SCGLR
894; BOAKYE v TUTUYEHNE [2007-2008] 2
SCGLR 970

However, as set out in Order 1 Rule 1(2) of CI 47, the principal objective of the application of
the rules of CI 47 is to achieve speedy and effective justice. As part of efforts to achieve this,
Order 81 generally provides that non-compliance with the rules of court does not nullify the
proceedings or any part of it. The rule therefore seeks to cure defects committed by parties
to a suit, provided they do not go to the root of the matter.

Again in Boakye v Tutuyehene ( 2007/2008 2 SCGLR pg 970), the Supreme Court

unanimously held that the new Order 81 has
made it clear that perhaps apart from lack of jurisdiction in its true and strict sense, any
other
wrong step taken in any legal suit should not have the effect of nullifying the judgment or
the
proceedings.

The trust bank v appiah –give strict interpretation to the rules of the court –

Accordingly, where a default is a

breach of the Constitution or of a statute other than the rules of court, or the rules of
natural justice,
or otherwise goes to jurisdiction, then such non-compliance cannot be saved.
The implication here is that Order 81 cannot be invoked to cure breaches of Statutes, the
Constitution and the Rules of Natural Justice.

For example, the Matrimonial Causes Act requires that actions under it be commenced by
way of
petition. If a party commences such an action by way of a writ, the action will be set aside
and the
defect is not curable under Order 81 because the default/non-compliance is against a
substantive
statute, i.e. the Matrimonial Causes Act.

So in Nii Okaidja III, Percy Okoe Addy And Okoe Aryee Vs. Nii Tettey Ahinakwa II And
Thomas Okine, where the respondents was supposed to come by motion to have a writ of
possession set aside, but rather came by writ, the court held that a fundamental defect
could notrectified under Order 81.

Where there is a conflict between the provisions of the rules of court

and substantive law, the substantive law overrides the provisions of
the rules of court. Please see WARD V JAMES [1966] 1 QB 273;
REPUBLIC V HIGH COURT KOFORIDUA: EX PARTE
EASTERN REGIONAL DEVELOPMENT CORPORATION
[2003- 2004] SCGLR 21 and ADJOBA v OSOFO HAGAR [2008-
2009] 2GLR 112

According to Order 81 Rule 1(2) of CI 47 a court may do two things;

1. set aside either wholly or in part, the proceedings in which the failure occurred, or
2. exercise its powers under these Rules to allow such amendments to be made.
In Standard Bank Offshore Trust Co Ltd (Substituted by Dominion Corporate Trustee Ltd)
v National Investment Bank, the Supreme Court highlighted that the Rules entitle the court
to
set aside either wholly or in part, the proceedings in which the failure to comply with a rule
occurred, including any judgment or order made therein.

It must be noted however under Order 81 Rule 2, where a party has breached the rules, the
other
party reserves the right to apply to have the proceedings set aside for irregularity,
immediately the
breach comes to his notice. However, if the party takes a fresh step, i.e. anything other than
apply
to set the proceedings aside, he is deemed to have waived his right to object and the court
will not
allow an application to set aside the proceedings.

So in Friesland Frico Domo v Dachel Co Ltd, the Supreme Court held that, having
participated
in the proceedings which culminated in the judgment, it was too late in the day for the
Defendant
to apply to have the judgment set aside on grounds that leave was not obtained from the
court prior
to the issuance of the Writ of Summons and service of notice of writ on the Defendant
outside the
jurisdiction, contrary to the provisions of Order 8 of CI 47.

Yet again, there have been instances where a party with the right to apply to set aside
proceedings,
has taken a fresh step after knowledge of the breach of rules by the other party, and the
courts have
held that that party has not waived his right to set aside the proceedings. This was
illustrated in the
case of Wadad Haddad Fisheries v State Insurance Corporation ([1973] 1 GLR 501)
.
In sum, failure to comply with the rules is regarded as an irregularity and shall not nullify
proceedings, even though the court still reserves the ultimate discretion to decide on the
magnitude
of the breach and whether or not it substantially affects the proceedings.

The laws, which are used in civil proceedings, are the Courts Act,
1993 (ACT 459) (as amended), the High Court (Civil Procedure)
Rules, 2004, (CI 47),

It is recalled that Order 70 r.1 of LN140A provided as follows:

1. “Non-compliance with any of these rules or with any rule of
practice from the time being in force shall not render any
proceedings void unless the Court or a Judge so direct, but such
proceedings may be set aside either wholly or in part as irregular,
or amended, or otherwise dealt with in such a manner and upon
such terms as the Court or Judge shall think fit.