ORDER 1

APPLICATION OF THE RULES

-These rules apply to all civil proceedings
-They apply to the;
 High court
 Circuit court but with some necessary modifications

OBJECTIVES OF RULES
These rules are interpreted and applied to achieve
 Speedy justice
 Avoid unnecessary delay and expense
 Avoid multiplicity of suits by ensuring that all suits are completely determined by the court.

ORDER 2
-Party who commences action – plaintiff
-Opposing party -defendant
-All civil proceedings must be commenced by a writ of summons.

CONTENTS OF WRITS
-The writ must be endorsed with;
 A statement of claim
 Relief or remedy sought

-The address of the plaintiff rather than his lawyer must be on the writ
-The residential AND occupational address of the parties must be on the writ

CAPACITY
-The capacity in which a plaintiff sues or the capacity in which the defendant is sued must be endorsed
on the writ.

A. Where the plaintiff sues in person?

 He must indicate his occupation and residential address to allow for service.

B. Where he is outside the x’try?

 He must provide an address in Ghana at which documents may be served.

C. Where the plaintiff sues through a lawyer?

 He must provide the occupational and residential address of the parties AND
 The name of the lawyers firm and his business address at the back of the writ.
-The place of service will be the plaintiffs or his lawyer’s business address as endorsed on the writ.

-A defendant in writing may request a lawyer whose name is endorsed on the writ to declare;
 In writing if he filed the writ
 If he had authority of the plaintiff to do so
-A court may strike out any writ if declared not to have been filed by a lawyer or upon the consent of a
plaintiff, upon application by the defendant.
-If the defendant’s address isn’t known the plaintiff shall indicate on the writ that he will direct service.
-Every writ shall be filed together with a statement of claim.

ISSUE OF WRIT
 Every writ shall have the date on which it was issued.
 The plaintiff or his lawyer must sign a copy of the writ.
 The registrar must seal the writ.
 The writ will then be filed and an entry of it will be made in the cause book.
-Leave of a court is needed before notice of any writ to be served outside may be issued.

CONCURRENT WRIT
-This is a certified true copy of the original writ
-It shall be marked “concurrent”, stamped and dated.
-One or more concurrent writs may be issued aside the original writ.
-A concurrent writ may be served within the jurisdiction or outside the jurisdiction.

DURATION OF THE WRIT

-A writ shall be valid for twelve (12) months form the date of issue.
-A concurrent writ is valid for the duration of a court.
-Renewal of a writ must be by an affidavit stating why it has not been served and why a renewal is
needed.
-A writ may be renewed for a period of twelve (12) months, from time to time.
-A renewal must be stamped to show how long it’s valid for.

ORDER 3

TRANSFER
-Where a suit is commenced in a wrong region, the suit may continue unless;

 The defendant objects before or at the time he files his defence.

 The court (judge) in his opinion thinks the suit should be transferred and reports to the chief
justice who orders the transfer.
 Note that an objection here is not as to the jurisdiction of the court to hear the matter, but
an objection as to the venue to hear the case.

ORDER 4
JOINDER OF CAUSES OF ACTION.
-A plaintiff may in one suit claim several relief’s arising out of other suits, from the same defendant if
he is allegedly liable e.g. reliefs arising out of several causes of actions may be claimed in one suit if he
is allegedly liable.
-However a court may order separate trials
JOINDERS OF PARTIES
1. Two or more persons may be joined together either as plaintiffs or defendants in the same action
when;
 Some common questions of law or fact will arise in both suits.
 Relief’s claimed arises out of the same, (or a series of) transactions.
2. Another person is jointly entitled to the reliefs that the plaintiff seeks.
3. Another person together with
4. the defendant is jointly liable with respect to a contract, then that person becomes a necessary
party and leave may be needed to add him as a party.
-However a court may order separate trials

MIS-JOINDER AND NON-JOINDER OF PARTIES

-A misjoinder or a non-joinder of a party shall not render any suit void.
-At any stage of the suit the court may on its own motion, if it thinks fit;
 Order that a party ceases to be a party if he has been improperly or unnecessarily made a
party.
 Order any person who ought to have been a party and not made a party to be added as a
party.
-Any person added as a party (plaintiff) must consent in writing.
-To add a person as a party, you need to apply to the court, supported by an affidavit showing the
person’s interest in the matter.
-When the court makes an order to either add or remove a party to a suit, the writ shall be amended
within 14 days to reflect the court order.
-The endorsement on the writ must;
 Show the order of the court
 The date the order was made
-The amended writ must be filled and entered in the cause book and the defendant served and he thus
files an appearance.

ORDER 7
SERVICE
-The writ and the statement of claim or any other document may be served by;
 A bailiff
 A registered process server
 A party in a suit
-Personal service of a document is allowed unless the rules provides for otherwise.
-A duplicate copy of the document is left with the person to be served.
-Where violence or threats abstracts personal service, its good service if you leave the document as
near as possible to the person you intend serving.
-A bailiff may serve
 By leaving it at the proper address of the defendant.
 By registered post with a return address and the address of the defendant to be served.
 Any manner that the court may prescribe.
-The proper address of a person shall be;
 His last known place of residence or business.
  The registered office if it’s a company
 The business address of the lawyer of the defendant.

SERVICE ON PARTICULAR PERSONS

a. Company – chairman, president, managing director, secretary or any other top-level official.
b. Stool /skin – occupant of the stool/skin or the regent if the stool/skin is vacant.
c. Family – head of family or any other member acting as family head or a principal member of
the family.
d. Prisoner – chief warden or prison guard.
e. Minister of state – administrative head of the ministry or department.

SUBSTITUTED SERVICE
-A court will grant an order for a substituted service if;
 3 or more attempts have been made to serve the defendant and all have failed.
 Any further attempt to serve will cause undue delay
 It’s impracticable to serve the document personally.
-Such application shall be made exparte and supported by an affidavit, stating your reasons for
substituted service.

SERVICE OF A SUBSTITUTED SERVICE

 By serving it on an agent of the defendant
 By registered post to an address to be specified on grounds (reasonable) that it will reach the
defendant.
 By posting it at the court, the last known house or place of work of the defendant, or within any
public place in the region.
 By putting it in the papers or the media.

COMPUTATION OF TIME AFTER SERVICE

 Time starts running on the day of service of a document.
 If it’s a holiday or the courts are closed, time starts to run on the first available day after the
holiday.
 If the document is posted by registered mail, it’s deemed to be effected after 21 days of posting.
I.e. thus it is deemed to have been served after 21 days after the day of posting.

SERVICE OF WRIT
-A writ shall be served separately on each defendant.
-A writ shall be deemed to have been duly served on that defendant when served through his lawyer.
-Where a writ is not served on a defendant but he files an unconditional appearance, it shall be
presumed that the writ has been duly served on that person or defendant.

PROOF OF SERVICE
 The plaintiff must compare the copy of the document with the original in order to declare it
authentic
  The bailiff after swears an affidavit as to who he served (identity of defendant), day and date of
service, hour and how and where it was served. Etc
 The bailiff then signs the affidavit, which is primae facie evidence of service.
 An entry is then made in a process book kept in every court.

ORDER 8
SERVICE OUTSIDE THE JURISDICTION
-No writ shall be served outside Ghana.
-But a writ may be served outside Ghana only with the leave of the court.
-When applying to the court for service, outside the jurisdiction, the plaintiff in his affidavit must show
that he has a good cause of action;
 The country in which the defendant can be found
 If the case is a proper cause of action
 If the case falls within the following;
a. The case deals with immovable property within the x’try
b. The case deals with any action on the immovable property within the x’try.
c. The case deals with a person domiciled or resident within the x’try.
d. The case deals with the administration of the estate of a person who died domiciled in the
x’try.
e. The case deals with trust property within the x’try and governed by the laws of Ghana.
f. The case is against the defendant who is not resident in the x’try, but has breached a
contract made within the x’try.
g. The case deals with a contract governed by the laws of Ghana, but the party who
breached it is not a resident in Ghana.
h. To enforce a cause of action in tort within the x’try.
i. For an injunction to restrain an act in the x’try, or for damages for a breach of the act.
-When the court is satisfied with the plaintiff’s affidavit, it will grant leave for the notice of the writ to be
served outside of the jurisdiction.
-The plaintiff must lodge the following documents in the registry after the application has been granted
 A request for service abroad.
 The document of be served
 The translated document if x’try of service not English speaking, must be certified.
 Understanding that the plaintiff will personally refund expenses in serving the document.
-The registrar will then seal the document with the high court seal and forward them to the ministry of
foreign affairs for onward transmission to the Ghana embassy or judicial authority of the x’try abroad.
-A person outside the jurisdiction, served with the notice of a writ may within 14 days, before entering
appearance;
 Apply for the writ to be set aside
 Apply for an order that the writ was never served to him.

ORDER 9
APPEARANCE
-A defendant must enter appearance within 8 days after the writ has been served on him.
-A defendant whether sued in his personal or representative capacity, may file an appearance in
person or through his lawyer.
-The notice of appearance shall state the residential and occupational address of the defendant. It must
also be stated whether he defends the action in person or by a lawyer
-If the defendant fails to state his residential or occupational address, the plaintiff may apply to the court
on notice to compel him to do so and failure again to comply; it shall be deemed that has not entered
an appearance.

METHOD OF FILLING AN APPEARANCE

 Completing a notice of appearance in triplate (3)
 Add 2 stamped envelopes addressed to;
-Plaintiff or his lawyer
-Defendants address

CONTENTS OF NOTICE
 Defendants place of residence in Ghana or any address in Ghana where documents can be
served If he lives outside Ghana.
 If a lawyer represents him, the business address of the lawyer.
 The notice must be signed by the defendant or the lawyer and dated on day sent for filling.

PROCEDURE AT REGISTRY
 Registrar stamps each notice showing the date and time it was received.
 Enter the appearance in a cause book
 File on copy
 Serve the second copy on the plaintiff or his lawyers address as indicated on the writ.
 Return the third copy to the defendant or his lawyer.
-Where parties are sued in the name of the partnership, they shall enter appearance individually. But
subsequent proceedings shall be in the firm’s name.
-If the court is satisfied on application by the plaintiff that the address specified in the notice is not
genuine, it may set aside the appearance.

LATE APPEARANCE
-A defendant may file an appearance at any time before judgement is given.
 Once judgement is given, leave of the court will be required to file a notice of appearance.
-By filing a late appearance, it does not mean you can file a late statement of defence. You will require
the leave of the court to file a late statement of defence.

CONDITIONAL APPEARANCE
-An entry of conditional appearance reserves to the defendant the right to apply to have the writ set
aside
-8 days after filing the conditional appearance, if the defendant does not apply to the court to set
aside the writ, the appearance becomes an unconditional appearance.
-The defendant within 14 days after filing the appearance may apply to the court for an order to:
 Set aside the writ because it’s defective. e.g. no date etc
 Set aside the service of the writ because he is defective.e.g.he has diplomatic immunity.
  Declare that the writ or the notice of it has not been served to him.

-Entry of an unconditional appearance waives the defendant’s right to have the writ set aside.
-Conditional appearance is not meant to strike out an action on the grounds that it does not disclose a
cause of action, because writs do not disclose causes of action and such application can be made at
any stage of the proceedings.
-You do not need to enter a conditional appearance in order to object to the jurisdiction of the court.
This is because an objection to the jurisdiction of the court can be raised and entertained by the court
during the trail or on appeal.

Decisions that suggest that a defendant must enter a conditional appearance before applying to set aside a
writ on grounds of jurisdiction is defective in two ways.
 They clod the inherent jurisdiction of the court to terminate such defective proceedings.
 They are made upon the enormous that judgements made will stand, unless set aside by the
application to set aside the writ.
-A defendant served outside Ghana, will by virtue of order 8 r 4, have the time limited for entry of
appearance stated on the order.

ORDER 10
DEFAULT OF APPEARANCE
-If the defendant fails to file an appearance, the plaintiff may after the time limited for appearance (8
days) apply to enter final judgement against the defendant.
a. If it’s a liquidated demand; to claim
 Sum not exceeding what claimed in the writ plus costs
 Interest on the sum being claimed

b. Unliquidated demand;
 Plaintiff may apply for an interlocutory judgement against the defendant for damages
to be assessed

c. If it’s a claim in detinue;

 For the delivery of the goods,
 Or for the value of the goods to be assessed, or both
 Costs
-The court shall fix a date on which the damages or value shall be assessed
-This is on notice to the other party

d. If it’s a claim for immovable property;

 Possession of the immovable property
 Costs
-Where the defendants are sued jointly, judgement shall not be enforced unless judgment
has been entered against all the defendants.
-This does not apply to mortgages
-In any other case, if the plaintiff upon the expiration of the time limited for appearance (8 days) proves
that the writ and statement of claim has been served and the defendant has not entered appearance may
by affidavit apply to the court to proceed with the action.
-A claim for an amount may include interest, calculated from the date the writ was issued, to the date
of judgement/when the final payment is made, at the prevailing commercial bank rate.
-In any other action, the plaintiff upon proof of service of both the writ and statement of claim,may
proceed with the action as if the defendant has filed an appearance
-In a money lenders action or an action on a mortgage, no judgement shall be given in default of
appearance without the leave of the court, the plaintiff must be any affidavit give evidence as to why he
is entitled to the relief he seeks.
-Such application on notice must be made not less than 3 days after service of the notice.

-Judgement shall not be entered against the defendant, unless the plaintiff by an affidavits.
 Proofs service of the writ and statement of claim on the defendants or his lawyer, or
 Indorsed writ by the defendant’s lawyer with a statement that the lawyer accepts service
of the writ on behalf of the defendant.

-The court may set aside or vary any judgement made in default of appearance.

ORDER 11
PLEADING

(1) Pleading in an action has been defined as written statements delivered by the parties to one
another until the questions of law and facts to be decided by the court are ascertained.

(2) Functions and purposes of pleadings

 To define the issues in controversy, (determinable issues) which the trial court is called
upon to determine.
 It gives the parties reasonable notice of the case they are expected to meet and so that
each can prepare the evidence in support of his case.
 To place on record the issues in dispute so that the same disputants do not litigate those
issues again.

(3) CONTENTS OF PLEADINGS

 Pleading must be divided into paragraphs and must be numbered consecutively
 Dates, sums and numbers must be expressed in figures or in words, or both
 Pleadings must be signed by the plaintiff or his lawyer
 Pleadings must be typed
 Facts stated must be in chronological order
 Don’t beat around the bush, go straight to the point
 Pleading must have the date on which it was filed
 It must have a suit number
 Pleading must have a title – e.g. Statement of Claim
  The name and place of business of the lawyer
 The court, region where the action is assigned
 Every pleading shall be indorsed with the capacity of the party: and his name and
address if in person, or the name of the firm and business address if by a lawyer

(4) CONTENTS OF A GOOD PLEADING

 Pleading must state facts and not law
 It must state material facts only
 It must contain facts and not evidence by which the facts are to be proved in court
 The material facts must be stated in a summary form.

-Thus every good pleading shall contain a statement in a summary form of all the material
fact on which the party relies, but not the evidence by which they are to be proved.
(5) A statement of claim must contain facts, which together constitute a cause of action and entitle
the party to the relief claimed.

(6) The defence must set out facts which amounts to a valid defence in law

(7) A party may however, raise an objection in a point of law e.g. Claim discloses no cause of
action, or court has no jurisdiction to hear the matter.

(8) A party need not plead any fact if its presumed by law to be true, unless the other party
specifically denies it

(9) A fact is material to the issue at stake if when pleaded, it will show that the plaintiff has a good
cause of action or that the defendant has a good defence to the claim, where a party omits to
plead a material fact he will not be allowed to give evidence of it at the trial

(10) Where however, a material fact that ought to be pleaded is not, and evidence is led on it
at the trial and is not objected to, the court would consider it in determining the issue in dispute
–rule in Abowaba v Adeshina

(10.) Thus if a party is in doubt whether a fact is material or not, it’s safe to plead it
than not to do so

FACTS NOT EVIDENCE

(11) When a fact is relied on or pleaded it’s enough to simply allege
It without producing evidence to sustain the accusation.

FACTS IN SUMMARY FORM

(12) Pleadings are not places to show of you fine writing or language, but simply for hard, clear,
concise and downright assertions.

(13) The purpose of further particulars of an averment in pleadings is to enable a party asking for
them, know what case he has to meet at the trial, so that he can prepare for it.
 (14) The purpose of further particulars may be applied, first by a letter addressed to the lawyer on
the other side

(15) If this request is not complied with then you apply to the court by a motion on notice for the
particulars
 The court may order a party to file such further particulars, where a party has alleged as a
fact, that some person has knowledge or notice of certain facts and the court is also
satisfied

(16) Whenever its material to allege the condition of mind of the person such as malice, fraudulent
intention etc.its necessary to allege facts from which such malice or state of mind can be inferred
from.
(17) Where there is any condition precedent or something to be done.e.g. Giving notice before
commencement of an action. The law presumes that the party who should fulfil this condition has
done so.
(18) If the condition precedent goes to the root of the cause of action, then it must be pleaded.
(19) It’s the duty of the other party to specifically plead that no such notice has been given or
condition fulfilled in his defence.
(20) A party in his pleadings may raise any new fact
(21) However a party shall not make a departure i.e. plead new facts or raise new claims that will
be inconsistent with his earlier pleading, this doesn’t mean a party will not be granted leave to
amend his pleadings

STATEMENT OF CLAIM
1. It must contain all the material facts in a summary form on which the plaintiff relies to
establish his claim, and as such must disclose a present cause of action.
2. A statement of claim cures defect in an endorsement of a writ of summons.
3. Costs need not be pleaded
4. A plaintiff may in his statement of claim, modify, alter or extend any claim made in the writ
without leave of the court
5. It is advisable to state clearly whether the relief sought against the defendant is jointly,
jointly and severally or severally.

STATEMENT OF DEFENCE
- A statement of defence must be filed within 14 days after the time limited for
appearance (8 days)
- Where a motion for summary judgment has been made on a defendant, he may not
file a defence, but if he has been granted leave to defend, then he must file a defence
within 14 days after the order to defend is served on him
- A defendant may reply to a statement of defence within 7days after serviced with the
defence
- If he does not reply then there is a joinder of issues on that defence
- Pleadings may be filed during the long vacation
-A defendant in answering the allegations in the plaintiff’s statement of claim may do any of the
following.
 1. He may admit some or all the facts in the claim.
 He is deemed to have admitted facts not specifically denied.
 He is also deemed to have admitted issues not joined by him through denial.
 A plaintiff may at any time after the admissions made by the defendant, apply for
judgement to be given for his relief due of the admissions.
2. The defendant may deny some or all the facts and this he must do specifically to each
averment and not generally.
 Where a defendant denies a fact this is known as a “traverse”.
 A traverse may either be a denial or a non admission of facts
 He need not deny damages since these are issues generally traversed by the law, unless
specifically admitted
 The defendant must not make evasive denials
 In traversing a fact, the defendant must say that he “denies” or “does not admit “it.
 The defendant must begin or end his defence with a general traverse.

“Save as herein before (or herein after) expressly admitted the

defendant denies each and every material allegation of facts contained in
the plaintiffs statement of claim as if they were set out herein in extenso
and denied seriatim”

 The purpose of a general traverse is to deny material facts in the plaintiff’s

statement of claim, which the defendant inadvertently failed to deny specifically.

Confession and avoidance

3. Here the defendant admits the facts in the plaintiff’s statement of claim, but then allege
fresh fact, which completely answers the plaintiff claim. e.g. act of God notable accident,
acquiescence, contributory negligence, frustration of contract etc.
4. The defendant may also admit the facts stated by the plaintiff, but then raise a point of law,
which absolves him from liability.e.g. The matter is res judicata, no locus standi etc
5. The defendant may also plead for a set- off. This is where the plaintiff claims for the
repayment of a debt, but the defendant also has a cross claim against him also for debt, which
if established will either reduce or extinguish the plaintiffs claim (money).
 It’s an equitable remedy.
 It must exist between the same parties and in the same capacity.
 A set – off must be specifically pleaded in the statement of defence.
6. The defendant may counterclaim.
7. There shall be no joinder of issues on a statement of claim or a counterclaim
8. A joinder of issues shall operate as a denial of every material allegation of fact made in the
pleading

EXTENSION OF TIME LIMITED FOR FILING A PLEADING

1. First a lawyer may write to the lawyer of the other side for an extension.
 2. Second, an application by motion on notice, supported by an affidavit explaining why
the pleading was not filed within the time given and evidence that the applicant has a good
case may be made by the court.
3. Application for an extension of time are always on notice unless;
 No person apart from the applicant would be affected.
 The rules say so.
 The court orders it.

STRIKING OUT PLEADINGS

1. The court at any stage may order a pleading to be;
 Struck out.
 Amended
2. A pleading will be struck out or amended of;
 Unnecessary
 Scandalous, frivolous and vexatious
 It would embarrass or unfairly prejudice a party
 It discloses no reasonable cause of action. (Note that any evidence to prove this
is inadmissible)
 The action or pleading is frivolous or vexatious
 It would delay the trial.
3. The power to make an order for a pleading to be struck out is discretionary and must be
exercised sparingly.
4. This power can only be exercised in plain and obvious cases.
5. If the defect can be cured by an amendment without destroying the other parties’ case, the
order will not be made.
6. Application to have a pleading struck out or amended is made by a motion supported by
an affidavit stating the reasons and can be made at any stage of the proceedings, but its
advisable to make it promptly.
Close of pleadings
 Pleadings are closed
1. After the expiration of 7 days after service of reply or defence to counter claim
2. If no reply or defence to counter claim then 7days after the service of the statement of
defence

Order 12
COUNTERCLAIM
(1) A counterclaim is a cross action and independent of the statement of claim.
(2) A plaintiff instead of bringing a separate action may, make a counter claim
 It must be for a claim for which a defendant could have sued as plaintiff.
 It must be one that the court would have jurisdiction to entertain as a separate action.
(3) A plaintiff on whom a counterclaim is served, shall file a defence to the counterclaim
within 14 days after he is served with the counterclaim
(4) A reply and a defence to counterclaim must be on the same document
(5) A defendant may join two or more causes of action against the plaintiff and other persons in
his counterclaim, if
 The plaintiff is liable either in person
  Or in a representative capacity,
 Or the court grants him leave ex parte.
(6) The defendant may join other persons as parties to the counterclaim whether they are a party
to the action or not if they are liable to him together with the plaintiff in respect of the
subject matter of the counter claim
(7) The new person added as a defendant to the counterclaim must have his name added to the
title of the action and be served with
 A copy of the writ
 The pleadings
 And a copy of the counterclaim
(8) A person not a party to the original action must have endorsed on the copy of the
counterclaim served on him, a notice as to
 Where forms could be obtained
 The registry at which he should file his appearance
 The effect of appearance/residential and occupational address of defendants

(9) If in the opinion of the court, it may (counterclaim) embarrass or delay the trial, it may
order separate trails.
a. If the plaintiff’s statement of claim is stayed discontinue or dismissed, the
defendant’s counterclaim may be proceeded with; unless the action is discontinued
before the counterclaim.
b. A counterclaim must contain material facts upon which the defendant relies, and it
must be in the same form as the statement of claim.
c. The counterclaim comes after the statement of defence, and must be headed
“counterclaim”.
d. If counterclaim has facts already pleaded in the defence, they need not be repeated, but
the defendant must refer to them.
(9) A counterclaim shall be as a writ and a statement of claim, and the party making the
counterclaim, as plaintiff and the other party, defendant

DEFENCE ARISING AFTER COMMENCEMENT OF ACTION

1. If the defendant has any defence to any cause of action commenced against him, he may
raise such defence without leave of the court if;
 He has not filed his defence
 Or the time limited for filing his defence has not expired.
2. But if;
 The defendant has filed his defence
 Or the time limited for filling his defence has expired.
Then the defendant may within 8 days after the two above points have to apply to the
court for leave to file a further defence.
3. This also applies to plaintiff in respect to counterclaim.
 Order 13
DEFAULT OF DEFENCE
-If the defendant fails to file a defence, the plaintiff may after the time limited for filing a defence (14
days) apply to enter final judgment against the defendant.
a. If it’s a liquidated demand; apply to enter;
 Sum not exceeding what claimed in the writ plus costs
 Interest on the sum being claimed

b. Unliquidated demand;
 Plaintiff may apply for an interlocutory judgement against the defendant for damages
to be assessed
 Costs

c. If it’s a claim in detinue;

 Apply for interlocutory judgment against the defendant
 For the delivery of the goods,
 Or for the value of the goods to be assessed, or both
 Costs
-The court shall fix a date on which the damages or value shall be assessed

d. If it’s a claim for immovable property;

 Possession of the immovable property
 Costs
-Where the defendants are sued jointly, judgement shall not be enforced unless judgment
has been entered against all the defendants.
-This does not apply to mortgages

-In any other case, the plaintiff upon the expiration of the time limited for filing a defence (14 days)
apply to the court to enter judgment.

-In mixed claims, the plaintiff may apply to the court to enter judgment against the defendant.

-This order shall apply for a default in filing a defence to a counterclaim, as if the defence to the
counterclaim where a statement of defence
-The court may on application by a party set aside or vary any judgement made in default of defence.

Summary judgment – order 14

– The function of this order is to allow a plaintiff who can show that the defendant
has no answer to his claim, to obtain judgment summarily of either part or the
whole of his claim without going through the whole trial.
 Note that an application for summary judgment can only be made on notice.
 Atlanta timber v Victoria timber (62) GLR – held that order 14rl allows a
plaintiff to get summary judgment without trial if he can prove his case
clearly, even if the defendant files a defense.

Conditions under which the applications can be filed.

– Yartel boat building v annaany (1991)2 GLR – held that before the plaintiff can
apply for summary judgment;
1) The defendant must have been serve with a statement of claim
2) The defendant must have entered appearance.
3) The plaintiff must state in his affidavit that accompanies the application, that
the defendant had no defense to the action.

– A defendant who has filed a counterclaim may also apply for summary judgment
in respect of the counterclaim.
– A copy of the affidavit together with exhibits and the notice must be served on
the defendant 4 clear days before the hearing. See Azingo v W.E Augusst
(1989/90) GLR as to what “clear days mean”

– it excludes the date served and the hearing date.

– Failure to comply with the 4 clear day rule renders the application or judgment
void and should be set aside.

– The defendant may show cause against the notice or the judgment. If;
1) The application does not fall under order 14 or is defective.
2) If the objection by the defendant is fatal, the court may dismiss the
application or if it allows it, it will grant leave to amend but will award cost.
3) The defendant shows that he has a good defense to the claim
4) The defendant shows that there are difficult points or questions of law
involved in the case.
5) Any circumstances that show reasonable grounds of a bona fide defense.
 If the objection to the application is merely technical you need not file
an application in opposition.
– Afodofi v Central Insurance – held that the defendant must show cause against
the granting of an application for summary judgment, by affidavit or “otherwise”
to the satisfaction of the court.
 The expression “otherwise” permits the defendant to show cause in other
ways, other than an affidavit in apposition.
It was held that the failure to file an affidavit in opposition did not bar them
from showing cause since their defense disclosed a triable defense and ought
to be given leave to defend the action.
– Thus where the defendant has filed a defense the court should carefully
scrutinize the defense to determine if it discloses a defense in law.
– Duncan v Kawoaso ltd (1981) GLR – if the defense shows that there was a
triable issue, leave should/ought to be granted to defend the action unless there
is clearly no defense in law.
– If it can be shown that the defense was a sham then leave to the defendant to
defend might be refused and the plaintiff will be given summary judgment.
– Where judgment is given but the defendant has filed a counterclaim, the court is
permitted to stay execution of the judgment until the trial of the counterclaim.
– Generally where a defendant shows that he has a valid defense, hw ought to
have unconditional leave to defend.
– Conditional leave is granted where there is something suspicious in the
defendant’s defense or the court id left with real doubt about the defendant’s
good faith or where the court is very nearly prepared to give judgment to the
plaintiff.
– If the application for summary judgment is not within the permitted cases where
it can be sought.e.g matrimonial cases (see order 14r12) the court will dismiss
the application with cost.
– Also if the plaintiff knew that the defendant has a valid defense and he still
applies for the judgment the court will dismiss the application with costs.
– This is why the plaintiff is to state emphatically that in his belief the defendant
has no defense to his claim or part of it.
– In an action for the delivery of the goods he court has the discretion to give
judgment for the specific delivery of the goods claimed, without the option of
paying for the value of the goods.
– Judgment against an absent party may be set aside or varied by the court ,
because the court will wish to be fully satisfied as to the reason why the
defendant was absent at the hearing of the application. - Application must be
brought within 14 days of service of the notice of the judgment.

– Summary judgment shall not be given in the following actions;

- Matrimonial or probate proceedings
- Claim or counterclaim based on an alleged fraud
- Claim or counterclaim for defamation, malicious prosecution, seduction
or breach of promise to marry.

Order 16
Amendments

Amendments without leave

 A plaintiff may without leave of the court amend
his writ once at any time before pleadings are closed
 The amended writ must be served on each defendant, unless the court directs otherwise
 Leave of the court is required before a defendant may amend his notice of appearance
 Amendment of pleadings
 A party may without leave of the court amend his pleading once at any time before
pleadings are closed
 The amended pleadings must be served on the other party
 Where an amended statement of claim is served on the defendant;
1. If he has filed a defence, he may without leave of the court amend his defence
2. The period of service of the amended defence shall be 14 days after the amended
statement of claim is served on the defendant
 Where an amended defence is served on the plaintiff, he may
1. Amend his reply without leave of the court if he has already filed a reply
2. The period for service of the amended reply shall be 14 days after the amended
defence has been served on the plaintiff
 Where an amended pleading is served on the other party, and he subsequently fails to
amend his own pleading, it will be deemed that his earlier reply was an answer to the
amended pleading and issues will be joined there off
 A party may within 14 days after being served with an amended pleading, apply to the
court to have the amended pleading struck out.

Amendment of writs or pleadings with leave

 The court at any stage of the proceedings, upon application by the plaintiff grant;
1. The plaintiff leave to amend his writ
2. A party leave to amend his pleadings subject to costs
 Even if a period of limitation to amend has elapsed, the court may nevertheless grant
the leave to amend if it will be in the interest of justice
 An amendment to correct the name of a party will be allowed if the court is satisfied
that, the mistake was a genuine one and was not to create doubt as to the identity of
the party.
 An amendment to alter the capacity of a party may be allowed
 An amendment may be allowed even if it creates a new cause of action, so long as
the cause of action arises out of the same facts.
 A party may amend his writ or pleading during the long vacation so long as the court
grants him leave

Amendment of other documents

 The court may at any stage of the proceedings either
1. On its own motion
2. On application of a party
Order any document to be amended for the purpose of
1. Determining the real issues in controversy (determinable issues)
2. Correcting any error in the proceedings
 Where the court makes an order to a party granting him leave to amend a writ, pleading or
document, if he does not within 14 days after the order is made, the order shall cease to have
effect, although the court may extend the period.

Method of amending
  The necessary amendment to the document is made in handwriting
 In the case of a writ, its re-sealed and filed
 Where the amendments are numerous, a fresh document shall be prepared and in the case of a
writ, it shall be re-issued
 A writ, pleading or document amended shall be indorsed with a statement stating that it has
been amended as well as the
1. Date it was amended
2. The name of the judge who authorized the amendment,
3. The date the order was made or the number of this rule (order 16 r 3)
 Clerical mistakes in judgments, orders may be amended at any time either
1. By the court
2. On an application by a party to the suit

Method of application
 The application for leave to amend, must be on notice
 An affidavit stating reasons for amendment

Order 16
Applications
 Every application in pending proceedings shall be made by motion e.g. motion on notice
or motion ex-parte
 A motion is when a party “moves the court” to grant his application by filing
1. A written application
2. And making viva voce submissions before the court on the application
Agbosu v sokpoli
 Where an enactment provides that an application be made by some other means, an
application by motion shall satisfy the provision of the enactment
 No notice shall be made without prior notice to the other affected party, except where
the court otherwise provides
 If the court is of the opinion that some person who should have been given notice of the
motion has not been notified, it will either
1. Dismiss the motion
2. Adjourn the hearing of the motion till the person has been
notified
Motion on notice
 There shall be at least 3 clear days between the service of the notice on the party and the
date the motion will be heard
The only exceptions to this 3 days requirement are;
1. Under an application for summary judgment that requires 4 days notice
2. Under an application for direction that requires 8 days
3. Under an application made for a short service
 If the court grants leave to service short service, notice of this must be endorsed on the
face of the motion
 Notice of a motion may be served;
1. With the writ
 2. Anytime after the service of the writ
 If the application is made on notice, the other party will appear in court and be heard in
opposition to the application

Ex-parte motions (without the other party)

 An application may be made exparte only
1. Where the rules provide
2. Where the court considers it proper in the circumstances

 If the application is made exparte, it’s granted for the benefit of one party only, at his instance and
without notice to the other party. Because of the absence of the other party when an exparte
motion is being moved there are very strict rules.
 The court may grant an exparte when its satisfied that delay caused by the ordinary procedure
will;
1. Cause irreparable damage
2. Cause serious mischief
 The applicant must thus prove satisfactorily to the court that
1. There are good reasons for making the exparte application and
2. The exact nature of mischief or damage that may happen if application is made on
notice
 If the rules expressly state that the application must be exparte then there is no need to show that
serious mischief and irreparable damage has been occasioned.
 The court has a discretion to refuse to grant an application to be made exparte and order notice
to be given the other party
 Every application shall be supported by an affidavit deposed/sworn to by either;
1. The applicant
2. Anyone authorized by him, stating facts on which the applicant relies on.
 If the motion is grounded entirely on
1. Matters of law
2. Procedure
 There will be no need for an affidavit. They should be stated in the motion paper

Order 20
Affidavits

 An affidavit is a sworn statement, used as evidence in a matter deposed to

 Affidavits shall be sworn before:
1. Judge
2. Magistrate
3. Registrar
4. Commissioner of oaths
5. Judicial secretary
6. Notary public
7. Any other officer empowered by the rules
 Must state title of matter
  If more than one title, its not necessary to state all the matters. The title of the first matter,
followed by the words “and others” will suffice
 If more than one plaintiff or defendant, the names of the other parties may be omitted but
must bear the full name of the first plaintiff or defendant and the words “and others” or
“and another”
 It must be printed, written eligibly or typed
 It must be on foolscap or quarto size paper
 It must have consecutive page numbers
 It must state the name of the first deponent, and be expressed in the first person e.g.
“I carlos de-Souza of house number 11 abafum lodge, the deponent, do depose
that, I am the deponent herein and live in Accra… etc
 It must sate the residential and occupational address of the deponent
 If he has no residential or occupational address, then the affidavit must describe him and
state whether he is employed by the other party
 The court will reject an affidavit that has no address or is elusive
 It must be divided into numbered paragraphs and each paragraph must deal with a distinct
matter
 Dates sums and other numbers may be expressed in figures, words or both egs two hundred
thousand dollars ($200,000.00). After you can use $200,000.00 throughout the affidavit. Or
12th April, 2006 (12/4/06)
 Jurat is the final part of the affidavit and must state
1. The date and place where the affidavit was sworn.
2. The name and the title of the person before whom it was sworn
3. Must be signed by the deponent and the person before whom it was
sworn.
In practise the affidavit will contain the following.

Wherefore I depose to the affidavit in support of/opposition to the motion.

Signed
Carlos de Souza
(Deponent)

Sworn in Accra before me this 10th day of April, 2006

Signed
Commissioner of oaths

 The commissioner must emboss the affidavit with his stamp/seal

 The joint deponents names must be inserted in the jurat
 If affidavit sworn by all deponents at the same time before the same person, the jurat must
state that it was sworn by “all the above named deponents”
 If blind or illiterate persons the person administering the oath must certify that
 1. He read the affidavit to the deponent or it was read to the deponent in his presence
2. The deponent perfectly understood it
3. The deponent signed or marked it in his presence

E.g.
Sworn before me in Accra this 10th day of April, 2006, having first
carefully, truly, distinctly and audibly read through the contents of this
affidavit, and having explained the nature and effects of the exhibits
therein referred, to the deponent, and he/she being blind/illiterate appeared
perfectly to understand same, and appended his/her signature or made
his/her mark thereto in my presence

Signed
Carlos de Souza
(Deponent)

Signed
(Commissioner of oaths)

 However the absence of this certification will not invalidate the affidavit, if it can be proved in
court that indeed the affidavit was read, perfectly understood and approved by the deponent
 An affidavit must contain the evidence of the facts the deponent can prove, except where the
rules permit him to make statements of information or belief
 Affidavits to be used for interlocutory proceedings may contain statements of information or
belief but with
1. The source or the information
2. Grounds of belief
In practise the grounds of belief and the source of information are frequently not stated, but
the deponent should never state that he believes in something, unless he has good grounds for
his belief. A party against whom an allegation of information or grounds of belief, which
fails to state the relevant grounds, may take objection, and if the objection is one of
substance the court will hear it.

Drafting points to note in affidavits

 Set out the important points to be brought to the courts attention, in contrast to pleadings,
affidavits should state the evidence relied upon and should anticipate the opponents case
1. Note that each paragraph in the affidavit starts with the word “that” e.g.
That the deponent……….
That he stole….
2. Also an affidavit is not a place for arguments
 Decide who should be the deponent, the best deponent is the person who can speak to most of
the points from personal knowledge (thus it doesn’t necessarily have to be a party who has
knowledge of the facts) usually this will be the client and the affidavit should be as follows

I carlos de Souza of house number 11 abafum lodge, labone, the

plaintiff/defendant herein do hereby make oath and say as follows;
1. That, I am the deponent herein and I depose to this affidavit, averring facts
and matters that are within my personal knowledge and belief, or which
are based on the information to me by 3rd parties which I verily believe to
be true
 If the deponent is not a party, the opening should state the relationship if any to the party on
whose behalf the affidavit is made and read as follows;
I carlos de Souza of house number 11 abafum lodge, labone
brother/sister/wife/husband/ friend/ co-worker etc of the plaintiff/defendant
herein, do hereby make oath and say as follow;
1. That I am the deponent herein and I have the authority of the
plaintiff/defendant to depose to this affidavit averring to facts and matters
that are within my personal knowledge and belief, or which are based on
information made to me, by third parties which I verily believe same to be
true.
2. That on 1st April, 2006 the…
3. That…
 The title of the affidavit must state whether its made in support of or in opposition to the
application e.g.
1. Affidavit in opposition to application for interim injunction
2. Affidavit in support of application for summary judgment
 Where the need arises to file a second or further affidavit the title should state that it’s a
supplementary affidavit e.g.
1. Supplementary affidavit in support of application for summary judgment
2. Supplementary affidavit in opposition to motion for interim injunction
 Divide the important points into numbered paragraphs.
 The facts should be arranged in chronological order if the affidavit is lengthy and covers a
variety of issues it might be sensible to include sub headings that will assist the reader, because
sub headings have the added advantage of emphasizing the important points that the deponent
wishes to bring to the courts attention
 State the source of all hearsay evidence e.g.
“ I am informed by the managing director of the plaintiff/defendants company and
believe same to be true that..”
Note that an affidavit is more persuasive if you state the original source of the information. If
there are too many “informed by” passages, then it means you have the wrong deponent.
 Affidavits are evidence and consequently the amount of detailed evidence included, marks the
distinction between bare allegations and persuasive presentations.
 State the deponent’s means of knowledge, unless the means of knowledge are obvious. Always
explain how the deponent came to learn of the facts he/she states e.g.
“That I have seen the copy of the contract entered into by the plaintiff/defendant”
 Exhibit all supporting documents if any, of the facts arises from any supporting evidence; bring
these documents into evidence by exhibiting them to the affidavits. e.g. the deponent may refers
to a written agreement between the parties and state as follows,
“A copy of the said agreement is annexed hereto and marked exhibit “A”
 Where there are several exhibits they should be marked consecutively with numbers or
alphabets
 If there are several affidavits, each with its own exhibits its customarily to mark the exhibits
according to the initials of the deponents and the number of the document. E.g. exhibit JM 1
might identify the first exhibit in the affidavit of the deponent John Mensah and exhibit MA5
might identify the 5th exhibit in the affidavit of deponent Mary Annan
 Where a non-lawyer deponent is stating a matter of law this should be done with the following
preceding words
“I am advised by counsel and verily belief same to be true that….”
 Conclude with a statement on the purpose of the affidavit e.g.
“ Wherefore I swear to this affidavit in support of/in opposition to the motion for
interlocutory injunction”

Scandalous matters
 The court will strike out scandalous, irrelevant, offensive and oppressive averments in an
affidavits e.g. where the affidavit seeks to introduce inadmissible evidence or contains insulting
language or privileged information, or is oppressive in length (e.g. 600pages of rubbish)
Alteration
 Where the affidavit contains alterations such as erasures it can’t be filed or relied upon, unless
the person before whom it was sworn has initialled such alterations
 If there is an irregularity on the affidavit, the court may grant leave for it to be filed or relied upon
so long as
1. It can be cured without undue hardship
2. Its not a matter of substance and does not affect its actual contents
 The Supreme Court practise (1995 edition) the White book states that a person can apply to the
court for leave to file or rely on an affidavit with alterations not initialled, either ex parte or
upon the hearing of the relevant application
 Finally the affidavit must be endorsed with a note showing
1. On whose behalf its filed
2. The date of filing.
An application without this endorsement can only be used with leave of the court.
Most chambers do not comply with this provision.
 The white book explains that the affidavit should be marked on the top right hand page of the
1st and last pages in clear permanent dark blue/black ink, marking the following;
1. The party on whose behalf its filed
2. The initials and surname of the deponent
3. The number of the affidavit in relation to the deponent
 4. Date when sworn.
e.g.
1st defendant; C.A. de Souza
3rd affidavit of C.A de souza; 10/4/06

Application for Directions

Order 32
-The direction stage of a trial is to:
 Afford the court to look back and take stock of issues
 Ensure that pleadings are in order
 The case is fixed and ready for hearing
 Considers the manner in which evidence should be presented
-All these are done with the aim of:
 Shortening the trial
 Saving costs
-Actions in which an application for direction is not required:
 Where a party has applied for summary judgment
 Where a party has applied for interim injunction on property
 Actions in which an order to take account has been made
 Patent actions
 Matrimonial causes
 Commercial court actions
-It’s the duty of the plaintiff to file this application, and he must do this within 1 month after the close of
pleadings
-Notice of the application must be served on all parties
-A minimum of 8 days is required between service of the notice and the hearing of the application
-The party on whom a notice of the application has been served, may also require the court to give other
directions at the hearing, in addition to those listed in the plaintiffs application.
-The defendant must thus also give the court notice of its requirements, not less than 7days before the
hearing. This means that the defendant has to file an application for additional directions.
- If the plaintiff fails to apply for directions within I month after close of pleadings, the defendant can:
 Apply to dismiss the action
 Apply for directions to be given
 The court may also in its discretion treat the application to dismiss the action as an application for
direction so that the case can go on.
-The court has the power to dismiss an action for want of prosecution in these cases;
 Deliberate default in applying the rules e.g. intentional contumelious default of pre-emptory rules
(an exact order that indicates the consequences of default)
 Unnecessary delays
 Disclosure of no cause of action
 No locus standi
  Failure to allow for discovery and inspection etc
-The court is under a duty to consider all matters that need to be dealt with at this stage as well as what
stage to deal with other matters. Thus
 It must consider the triable issues agreed upon by the parties
 It must deal with as many interlocutory matters as possible
 It must make an order for matters it wants to be adjourned
 It must also consider the place, mode and date of the trial, after it has given directions of how the
trial will proceed
 How evidence will be taken
 When amendments without leave of the court will be allowed
 The admissibility or otherwise of hearsay evidence
 Any other directions or orders it may make
-To save costs and shorten the trial, any admissions and agreements that can reasonably be made between
the parties ought to be made at this stage
-Any refusal by a party to make a reasonable admission or come to an agreement must be recorded in the
order for directions
-The judge at the trial may penalise such unreasonableness in costs
-If the parties decide not to appeal, the judge must record such agreement
-The parties and their lawyers are under a duty to give information and produce documents that the judge
will require to deal with an application for direction
-Such information and documents shall be given to all parties at the hearing
-Where a party fails to provide information and documents, the penalties are:
 Costs being awarded at the trial
 Striking out of pleadings
 Dismissal of the whole action
-Privileged information or documents can’t be compelled to be produced, unless the parties’ client
consents
-Affidavits are not used for an application for direction, except
 With leave of the court
 Where an application for an order requires an affidavit as stated by the rules. e.g. application for
interlocutory injunction
-If the hearing of the application for directions is adjourned, and a party wants to apply for further orders
on the next adjourned date:
 That party must file a notice
 Serve the notice on the other party at least 2 days before the next adjourned date
-After the order for directions has been made, but before final judgment, a party who wants to make an
interlocutory application must do so by applying under the applications for directions.
 Such a party must give 2 clear days notice to the other party
 The notice must state the grounds of the application
 Such an application has the effect of treating this application as having being made under the
application for direction stage

Discovery of documents
 Order 21
-Discovery/disclosure of documents enables parties have full knowledge of the existence of the contents
of all relevant documents that relate to the matter
-Its aim is to ensure;
 A fair trial
 That each party before the trial, gets to use relevant materials to either support or rebut the case
made against him
 And prevent surprise before and at the trial, relating to documents
 Shorten the length of the trial by way of settlement or compromise
 The cost of litigation is reduced
-Discovery involves 2 stages
 The disclosure of the document
 Inspection of the disclosed documents by the opponent
Automatic or neutral discoveries/disclosures
-After the close of pleadings, there should be automatic disclosure of documents (the parties are required
by law to exchange a list of documents that are relevant to the trial)
-The word document means anything which evidence can be recorded in an intelligible manner to the
senses
-Automatic disclosures arises only in actions commenced by writ
-A party’s list must show all the documents that are, or have been in his possession, custody or power
-The parties may however agree either
 To dispense with disclosures
 Limit such disclosures
-A party’s obligation also includes disclosing any document to his opponent anytime they come into his
possession, custody or power
-The parties must use the disclosed list of documents for the proper purpose of conducting a trial and not
for any other ulterior motives. A judge can restrain the improper use of a document
-Automatic disclosure must take place 14 days after the close of pleadings, unless the court orders
otherwise
-It’s the duty of the lawyer to ensure that his client makes full disclosure
-It’s the duty of the lawyer top ensure that as far as possible no relevant document had been omitted from
the clients affidavits
Exceptions to disclosure

-There is no automatic discovery in running down actions

-Actions to recover a penalty

-A party may apply to the court within 14 days to limit his disclosure, the court may allow this and
 Specify the documents to be disclosed
 Disclose that there will be no disclosure at all
-If a party fails to disclose documents, the other party is entitled to;
 Apply for an order of discovery
 An order striking out the other party in defaults pleadings

-A party at the application for direction stage or after, if he can show reasonable cause
  Apply for disclosure of the list
 An order for an affidavit for a party to verify his list
- The court has discretion
 Whether or not to make an order for disclosure
 Limit the disclosures to only specified documents
 Restrict the disclosure only to the issues in the matter
-In practice the list must in a convenient way, list and briefly state (describe the document sufficiently to
enable it be identified) all the documents in the party’s possession, custody or power that are relevant to
the matter
-The list should be contain paragraphs and schedules
 The 1st preliminary paragraph should state that the party ‘has in his possession, custody or power
the document relating to the matter in this action as set out in the schedule’
 If the party refuses to disclose certain documents, he should insert a 2nd paragraph which will
state that ‘he objects to produce documents listed in the schedule’
 If certain documents have been, but are no longer in his custody, possession or power he must
insert a 3rd paragraph which will state that ‘he has had, but has now not in his possession, custody
or power the documents relating to the matter”
 A 4th paragraph will be required as to what has become of the document and in whose possession
they are in now.
 If the documents are lost, the party must state the circumstances of the loss
 A final paragraph will state that neither the party or his lawyer, nor any person on his behalf, has
now or ever had in his possession, custody or power any document of any description whatsoever
relating to the matter, other than the documents listed in the schedule. This ensures that a party
has made full and frank disclosure.
-If it appears from the list submitted, that a party has or has had some specified relevant documents, that
he has not disclosed, the other party can apply to the court to compel the defaulting party to state by
affidavit whether any specified document in the affidavit has at any time been in his custody, possession
or power. If not in his possession, custody or power, when that party parted with the document and what
has become of it
-This application must be supported by an affidavit stating
 In the deponents believe the party has had certain specified documents which are relevant
 He has had possession, custody or power of the document
 They are relevant to the matter
- Note that a court will only make an order for disclosure if the above conditions are met
-When the court makes an order for disclosure, it must disclose the specific documents that must be
disclosed
Inspection of listed documents
-A party who serves a list on another party whether automatic or by an order of the court, must allow the
other party to inspect and take copies of all documents
-The party must thus serve a notice, together with the list, on that other party informing him of the
opportunity to inspect and take copies of the documents on the list
-The notice to inspect the documents must specify;
 The time (within 7 days of serve)
 And place the documents may be inspected
-The party who requests the disclosure and inspection of the document must do so within a reasonable
time and pay the appropriate fees
-In affidavits deponents are expected to exhibit documents that they have referred to in the affidavit
-If a party fails to attach exhibits to an affidavit:
 The other party may serve a notice on him to produce that document for inspection
 Permit copies to be made
-The party on whom notice is served is required to:
 Inform his opponent within 4 days of the service the date the document can be inspected
 The document must be inspected within 7 days of the service
 He must also indicate the time of the inspection, which is between 9:30am –4:30pm
 If he has any objection to the production of the document, he must within 4 days after the service
of the notice, inform the opposite party of the documents that he refuses to produce for
inspection, and the grounds for his objection

Failure to facilitate inspection

-The party who is entitled to inspect may apply to the court for an order compelling the inspection of
documents if the other party:
 Fails to serve notice on the opposite party to inspect the documents
 Objects to the production and inspection
 Offers inspection at an unreasonable time or place
-The court can compel parties to produce the documents in court for inspection or any other purpose
-Where a party claims privilege from production, the court is empowered to inspect the document and
decide the validity of the claim
-Where a party applies for the production and inspection of business records, the court may order copies
of it to be supplied in lieu of the original
-A person who has compared the original with the copy must verify by an affidavit.
-If a party fails to comply with the rules of disclosure and inspection, the court may make any other it
considers just, including
 Dismissing the action
 Striking out the defence and entering judgment accordingly
-A lawyer could be committed for contempt if he is unable to provide any reasonable excuse for failing
to give reasonable notice of the order to his client
-The court at or before the trial of the matter has the discretion upon being shown sufficient cause to
revoke or vary all orders made under this order

Place and mode of trial –order 33

-The court has the mandate to determine when and where it sits for the trial of any matter, subject to the
power of the chief justice to determine the place where a superior court may sit under section 38 of act
courts act, 459
-Failure to sit at a place prescribed by the chief justice does not invalidate the courts proceedings
-The court in determining the place for trial, must take into consideration the following:
 Convenience to the parties
 Their witnesses
 Date of the trial
 The courts own trial list
-The court has the power to try a preliminary question of law at the onset, which might be raised in the
pleadings
-An order for separate trial should be made in only in exceptional cases, since it’s a departure from the
beneficial object of the law that all disputes between parties must be tried together
--However the rules provide for separate trials and thus eliminate delays and expense

Setting down for trial –order 34

-The order for directions must fix a period that the registrar will set down the action for trial
-The plaintiff must within 7 days after the order for direction is made, pay to the registrar the prescribed
for the issuance and service of the notice of trial
-The registrar when serving the notice for trial must specify the date on which the action will be tried
-The issue and service of the notice must take place 1 month before the trial
-If the plaintiff fails to pay the fee for the notice for trial to be issued and served the defendant is entitled
to apply to the court to strike out the action
-If it’s a counterclaim, the defendant must within 14 days of the plaintiffs default pay the required fee for
the issue of the notice for trial for the counterclaimant
-The courts order for direction must contain
 The estimated length of the trial
 Whether the matter should be placed on the general or short cause list
-The court must fix an early date for trial if it appears to it that the matter should be so treated
-The above procedure also applies to new trials
 The plaintiff must make the request to the registrar, and pay the appropriate fees
 Within 14 days of receiving the request the registrar will issue and serve a notice of trial
-When there is abatement or change of interest, the lawyer for the relevant party is required to certify the
abatement or change of interest in writing to the registrar, who will then make the appropriate entry in the
list of actions set down for trial
-where a matter stands abated for more than 1 yr, the registrar must inform the court of this fact and they
will strike out the action of the list

Proceedings at the trial –order 36

JUDGMENT ORDER 41
– A final judgment is the official decision of a court of law that disposes of the
subject matter or controversy.
– An integrator judgment enables a party to recover in general terms some
preliminary pleadings but does not adjudicate the ultimate case. It’s thus an
interim injunction.
– Every decision of the court must be in writing. Onslow v IRC.
– A declaratory judgment is one that declares the rights of a part, or expresses
the opinion of the court without ordering anything to be done.
– Judgments must be delivered as soon as possible after the close of the case and
not later than 6 weeks after the close of the case.
– If court can’t deliver judgment within 6 weeks it has to inform the C.J in writing,
why the delay and when the judgment will be delivered.
– Any party to the action can also inform the C.J of the delay and request for a
date to be fixed for delivery of judgment and the C.J will fix a date and the court
will be bound by it.
 R v Judicial Committee Of The Central Region House Of Chiefs – held
that judgment made after 6 weeks was void.
 R v High Court, Accra – refused to follow the above case.
 Opanin Yaw Okyere v Opanin Apiri (handout).

– A party in whose favor a judgment is given must draw it up and file at the
registry and make sure that the registere enters the judgment in the book
meant for it.
– Failure to draw and file the judgment within 7 days , the other party may draw
and file it.(see form 17 – 17c)
– A judgment takes effect from the time when its pronounced by the judge.

Enforcement and execution of judgment – order 43

– Even before judgment you will have to find the following;
 Can I find the debtor/defendant
 Does he have any assets
 Can those assets be available for execution without any problems?
You’ll have to determine this because if you obtain a judgment against a man
of stray, enforcement is difficult.

– If after judgment the debtor does not pay the creditor by a particular date, then
exparte application can bring the debtor to court for his needs to be examined.
That is cross examined as to how he may pay the creditor.
– For enforcement against the state see sec.15 and 16 of the state proceedings
act.
– Enforcement of foreign judgments - part 5 of act 459, order 71 and 72.

Methods Of Enforcements
– Payment of money by the debtor – order 44
– Recovery of possession of immovable properties of debtor.
– Delivery of goods to the creditor by the debtor.
– Placing of an injunction on the debtor.

There Are 6 Ways In Which Monies Are Paid To The Creditor.

1) Writ of fifa
2) Garnishee proceedings – order 47
3) Charging orders – order 49
 4) Appointment of a receiver
5) Committals – order 50
6) Writ of sequestration – order 44

– Note that these remedies are not alternatives

– If the court does not give a time for payment then committals and writ of
sequestration can’t be used.

– Also money judgments can be enforced by;

1) In solvency – not available in Ghana because insolvency act never passed.
2) Winding up if it’s a company, under act 180
- If the creditor is outside Ghana, then the debtor must pay
into court and give the notice of such payments to the creditor. But if he
has BOCT exchange control approval then the debtor can pay the monies
directly to the creditor outside the country.

A. Writ Of Fifa – Order 43, 44 And 45

– it authorizes the registrar to size and sell the properties of the debtor
to satisfy the debt/judgment and interest on the debt as execution
costs.(see 18 and 18a)
– Items seized are sold by public auction (PNDC law 230 – auction sales
law), but sale is by reserved price determined by the court.
– The creditor after seizing the properties must have the properties
valued by valuer who proposes a valuation report that will state the
market and commercial value of the property, as well as the priced sale
value (proposed price it should be sold)
– The debtor can challenge the valuation report of the valuer by
submitting a rival valuation report. These reports held the court to set
the reserved price (price below which the property can’t be sold).
– The debtor and creditor can agree to sell the property to willing private
person instead of holding the auction.

– The court has the power to stay execution of a writ of fifa;

1) If its satisfied that the debtor can’t pay the money
2) If there are special circumstances that makes the judgment unenforceable.

The courts power to stay execution must be distinguished from;

1) Stay pending appeal to the high court or court of appeal.
2) Stay by reason of new/fresh occurrences
3) Stay pending trail of counterclaim in summary judgment proceedings.

– The debtor can apply to the court to pay the debt in installments
B. Garnishee Proceedings – Order 47
– if the debtor is himself owed by another person (known as the
garnishee) its possible to obtain an order that that other person
(garnishee) who owed the debtor should pay the debtors debt.
– There are 2 stages in a garnishee order
I. The creditor will obtain an order exparte, “to show cause”(also
called a garnishee nisi|) – this is an order that attaches to the
debt that the garnishee owes the debtor and command the
garnishee to court at a particular time and place specifying the
order to show cause/why he shouldn’t pay the debt directly to the
creditor.

- Copies of this order must be served at least 7 days before the hearing
on the garnishee and the debtor.

– If the garnishee does not appear in court after 7 days then the court
will make the garnishee nisi absolute (this means that if the debt is not
paid by the garnishee execution will be delivered against the garnishee)
– The court may also determine a case summarily if the garnishee
disputes the debt.
– Mostly banks are garnishees and the credit balance of the debtor at the
band is the target.

Points to note on garnishee nisi order

– The affidavit in support of the order must state the name, address of
branch of the bank and the account number of the debtor.
– Serve the nisi order on both the banks head office and the branch
where the account is lodged.
– Costs obtained from the application or order will be paid first and
before the debt.

C. Charging Orders – Order 49

– This gives the creditor a mortgage over a specified land in the order.
The creditor thus becomes a secured creditor. That is how has some
security for his debt, so if the debt is not paid the creditor can apply to
the court for the sale of the land and to the proceeds from the sale to
be used to satisfy the debt.
– Such charting orders must be registered for it to be really a secured
charge.
e.g. Under sec. 107 of act 179 got companies.
Under act 122 or PNDC law 153 for private persons.

– The application for a charging order is exparte supported by an

affidavit to show cause, why the land should be charged.
 – The court before granting the charging order takes into consideration
whether other people owe the debtor. The applicant must thus state
the names of and address fo such people if the knows then. Note that
he must be truthful.
– A creditor can obtain a charging order an any of the following
properties/securities of the debtor to which ge is a beneficiary.
1) Government stocks in the name of the accountant general.
2) Shares of any roistered company
3) Dividends/interests payable under the shares.

D. Writ Of Sequestration
– If a time for performance of a specified act (e.g. payment of money,
delivery of goods etc.) has been made in the judgment and the
debtor/defendant fails to order a writ of sequestration may be issued
against his properties or the properties of any director or officer it’s a
company.
– Before the sequestration can be enforced a copy of the court order
endorsed with a notice of the effect of non – compliance with the order
must be served personally on the affects, before exparination if the
time limited for compliance stated in the order.
– Sequestrates will then enter the land of the person in contempt and
sequester and receive rent and profits of his property until the monies
are all cleared.

E. Committal Order – 50
– The court can commit an offender for contempt. This power of the
court extends to disobedience of a court judgment /order.
– The application for committal is made by originating motion supported
by an affidavit which states the grounds of the application. The motion
must be served personally on the defaulter the curt dispense with such
service.

– The hearings are held in open court unless:

 The application relates to a person suffering from mental illness.
 The application arises out of proceeding in which a secret process or
discovery is insane
 The application relates to the adoption of an infant.

– A judge can suspend a committal order on terms to be specified.

– After the committal the judge may on the application of the person
committed discharge him when he has discharged his obligations
 – The court may instead of committing the offender fine him or let him
give security to the good behavior.

Types of contempt that may lead to committal

1) Civil contempt – conduct involving a breach of a court order or
judgment.
2) Criminal contempt – other conducts that interferes with the smooth
administration of justice.
 Contempt in court – this refers to any words spoken or acts done
in or in the predint of the court which interferes with the due
administration of justice e.g. attempt to interfere with witnesses,
insults in court, recording, filming, sketches in court etc. without
permission.
 Contempt outside court – this refers to words spoken or
published or acts done outside the court, intended to interfere
with the fair administration of justice.e.g. Abstracting bailiffs,
publications in the papers that are likely to prejudice a fair
hearing, scandalize or lower the authority of the court.

R v Yeboah, Exparte Teye

R v Mensah Bonsu v others, exparte A.G. pages 471 – 473

Writ of possession
– This is used to enforce a judgment for the recovery of possession of immovable
property.
– It’s issued with the leave of the court, when the court is satisfied that every
person in actual possession of the property has been notified of the proceedings
to enable the applicant to get the relief’s he is entitled to.
Abemalpor v Dzatormore (1992) GLR

Writ of delivery
– If the judgment provides for the delivery of the goods without the option of
paying the creditor for the value of the goods then the judgment is enforced by
a writ of specific delivery.
But if the judgment provides for the payment of the value of the goods then he
may enforce it by the same means as any other judgment or by the writ of
specific delivery, but with the leave of the court.
 Drafting
Writ

DATE: 10/4/06 Suit number: 001/06

In the High Court of Ghana

Accra AD 2006

Carlos de Souza
Hse no 11 abafum Crescent --------------------------------------Plaintiff
Labone

Vs.

Naaki laud----------------------------------------------------------Defendant
(Plaintiff to direct service)---------------------------------------------------
AN ACTION having been commenced against you by the issue of this writ by the above named
Plaintiff.

YOU ARE HEREBY COMMANDED that within EIGHT DAYS after service of this writ on you,
inclusive of the day of service, you cause an appearance to be entered for you

AND TAKE NOTICE that in default of your so doing judgment may be given in your absence
without further notice to you.
Dated this 10th day of April 2006

Cc: Chief Justice

Cc: the Registrar, High court

NOTICE OF APPEARANCE

DATE: SUIT NO.

IN THE HIGH COURT OF JUSTICE

ACCRA AD 2006

Carlos de Souza---------------------------------------------------------------------Plaintiff
Hse no. 11 abafum lodge
Labone

Vs.

Naaki laud----------------------------------------------------------------------------Defendant

--------------------------------------------------------------------------------------------------------
NOTICE OF APPEARANCE
---------------------------------------------------------------------------------------------------------

TAKE NOTICE that the defendant hereby enters appearance to the Plaintiff’s writ and that his
address for service is as follows;

C/o Law chambers

House number 234/4
Klaana Street
Osu Ako-Adjei
Accra

DATED AT LAW CHAMBERS THIS 10TH DAY OF APRIL 2006

SIGNED
Lawyer for the defendant

Cc The Registrar, High court

Cc and to: the above named plaintiff or his lawyer
(Address)

STATEMENT OF CLAIM

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA - A. D. 2000

SUIT NO.

JULIE PARK TOWERS LTD. - PLAINTIFF

6th lane Osu
Accra

VRS.

PATIENCE APPIAH - DEFENDANT

(Trading under the name & style
of Please Mum & Dad Enterprise)
6th Lane Osu, Accra
_________________________________________________________________________________
STATEMENT OF CLAIM
_________________________________________________________________________________

1. Plaintiff was at all material times a limited liability company, registered under the laws of Ghana
and landlord of all that premises situate lying and being at 6th Lane Osu, Accra.

2. Defendant was at all material times a tenant of the above premises

.
3. Plaintiff avers that the Defendant became such tenant by virtue of a tenancy agreement dated the
27th day of November 1996.

4. By clause 1 of the said agreement, the Defendant agreed to pay to the Plaintiff, the cedi equivalent
at the ruling forex bureau rate of the sum of US$ 400 per month in respect of the portion of the
premises covered by said agreement.

5. Plaintiff further avers that by clause 2 of the said agreement, the Defendant covenanted as follows:
"2 (a) to pay the said rent on the days and in the month aforesaid without delay"
6. Plaintiff avers that, the Defendant occupies the following portions of the aforesaid premises:-
a. Shop No. 1 on the ground floor
b. Shop No. 2 on the top floor
c. Shop No. 3 on the top floor
e. Shop No. 4 on the top floor.

7. Plaintiff avers that the Defendant owes rent in respect of the said portions in the total sum of the
cedi equivalent of US$8,400 the ruling forex bureau rates.

8. Plaintiff further avers that, the Defendant, a chronic rent defaulter, also owes arrears of rent in
respect of the upstairs shops in the total sum of (ø5 million, which amount became due since
December 1999.

9. Plaintiff avers that notwithstanding, several demands made on defendant to settle the said rents,
she has refused to pay same.

10. By letter dated 1 St June 2000, the Plaintiff's Solicitors wrote to the Defendant demanding the
aforesaid sums but Defendant has ignored the said demand contained in the letter hereinbefore
referred to.

11. Plaintiff avers that by her said conduct, Defendant is in breach of contract to pay rent as stipulated
in clause 2 (a) of the said agreement.

12. Plaintiff further avers that by clause 4 (a) of the said agreement any rents unpaid for 21 days inter
alia granted the landlord a right to determine the tenancy and to re-enter the premises.

13. Plaintiff according claims against the Defendant:

a. Payment of the cedi equivalent of US$8,400 at the ruling forex bureau rate, being rents due and
owing from Defendant to Plaintiff.
b. Interest on the aforesaid sum of money at the prevailing bank rate from 5th May 2000 until final
payment.
c. Payment of the sum of (~5 million being arrears of rents which became due since December 1999.
d. Interest on the said sum at the prevailing bank rate from December 1999 until final payment.
e. Recovery of possession of the parts of the premises occupied by the Defendant for breach of the
tenancy agreement dated 27/11/96.
f. Any further or other reliefs as may be appropriate.

DATED AT LAW CHAMBERS, ACCRA THIS 16TH DAY OF JUNE 2000.

SIGNED
Solicitor for plaintiff
Carlos de Souza
Law chambers
Barristers & solicitors
Notaries public
 Accra Ghana

The registrar
High court

STATEMENT OF DEFENCE

IN THE HIGH COURT

ACCRA AD 2000

SUIT NO. C 598/2000

JULIE PARK TOWERS - PLAINTIFF

6th lane Osu
Accra

VRS

PATIENCE APPIAH - DEFENDANT

(Trading under the name and style of
Please Mum & Dad Enterprise)
6th lane Osu
_________________________________________________________________________________
STATEMENT OF DEFENCE
_________________________________________________________________________________

1. Save as hereinafter expressly admitted the defendant denies each and every material allegation of
fact contained in the Statement of Claim as if the same were set out herein in extenso and denied
seriatim.

2. The Defendant admits paragraphs 1,2,3,4 and 5 of the Statement of Claim.

3. The Defendant admits paragraph 6 of the Statement of Claim.

4. The Defendant denies paragraphs 7, 8, 9, 10, 11, 12 and 13 of the State of Claim.

COUNTERCLAIM

5. The Defendant counter-claims against the Plaintiff:

(i) The sum of ¢ 87,000,000.00 being the balance goodwill illegally collected by the Plaintiff in
respect of the premises, particularly when the premises was not being used for business purposes but
the said goodwill was actually used to complete the premises before the Defendant commenced
business in the shop.
(ii) The sum of ¢ 8,000,000.00 the cost of two canopies at the frontage of the shops removed by the
Plaintiff without the Defendants consent

DATED AT SENA CHAMBERS, MOBIL HOUSE ACCRA THIS 10TH DAY OF AUGUST 2000

SIGNED

Solicitors for defendant

The Registrar
High court
Accra

And to the above named Plaintiff or to their solicitor:

Carlos de-Souza
Law Chambers
Accra

REPLY AND DEFENCE TO COUNTER CLAIM

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA - A. D. 2000
SUIT NO.C.598/2000

JULIE PARK TOWERS LTD. - PLAINTIFF

6th lane Osu
Accra

VRS.

PATIENCE APPIAH - DEFENDANT

(Trading under the name & style of
Please Mum & Dad Enterprise)
6th lane Osu, Accra
_________________________________________________________________________________
REPLY AND DEFENCE TO COUNTERCLAIM
_________________________________________________________________________________

1. The Plaintiff joins issue generally with the Defendant on her defence.

DEFENCE TO COUNTERCLAIM
 1. The Plaintiff denies the averments in paragraphs 5 (I) and avers that the Defendant is merely
engaged on a "fishing expedition" and accordingly is not entitled to the said relief any part thereof or
at all.

2. Plaintiff also denies the allegations in paragraph 5 (ii) as totally baseless and avers further that the
Defendant is not entitled to that relief, any part thereof or at all.

DATED AT LAW CHAMBERS, ACCRA THIS 28TH DAY OF AUGUST 2000.

SIGNED
Solicitors for Plaintiff
The Registrar
High court
Accra

And to: Okudzeto & associates

Sena chambers
Mobil house
Liberia road
Accra

MOTION ON NOTICE

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA - A. D. 2000

SUIT NO.C.598/2000

JULIE PARK TOWERS LTD. - PLAINTIFF

6th lane Osu
Accra

VRS.

PATIENCE APPIAH} - DEFENDANT

(Trading under the name & style of}
Please Mum & Dad Enterprise)
6th lane Osu, Accra
____________________________________________________________________________________
MOTION ON NOTICE FOR AN ORDER TO ENTER JUDGMENT IN DEFAULT OF
DEFENCE
____________________________________________________________________________________
TAKE NOTICE that Counsel for the Plaintiff herein will move this Honourable Court on the hearing of an
application for an order to enter judgment in default of defence against the Defendant herein and for any
order or further orders as to this Honourable Court may seem fit.

Court to be moved on WED the 16TH day of AUGUST 2000 at 9 o'clock in the forenoon or so soon
thereafter as Counsel may be heard.

DATED AT LAW CHAMBERS, ACCRA THIS 3RD DAY OF AUGUST 2000

Solicitor for plaintiff

Carlos de-Souza.
Barristers & solicitors

The Registrar
High court
Accra

And to: S.A. Okudzeto & associates

Sena chambers
Mobil house
Accra

AFFIDAVIT IN SUPPORT

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA - A. D. 2000
SUIT NO.C.598/2000

JULIE PARK TOWERS LTD. - PLAINTIFF

6TH LANE OSU
C/O HAYIBOR, DJARBENG & CO
BEHIND AT
KOKOMLEMLE, ACCRA

VRS.

PATIENCE APPIAH - DEFENDANT

(Trading under the name & style of
Please Mum & Dad Enterprise)
6TH LANE OSU, ACCRA
____________________________________________________________________________________
AFFIDAVIT IN SUPPORT
____________________________________________________________________________________
I, CHARLES HAYIBOR of Accra do hereby make oath and say as follows:

1. I am the deponent herein.

2. I am also a Solicitor in the law firm engaged by the Plaintiff to conduct this action on as behalf and I
have its authority to swear to this affidavit.

3. The Defendant to the instant action entered appearance to the action herein on 30/6/2000 and has since
then gone to sleep.
4. The period allowed by the rules of Court for the delivery of a defence, has long elapsed and a Search
conducted at the Registry of this Court has indicated that no defence has been filed by or on behalf of the
Defendant.

5. I accordingly swear to this affidavit praying this Court for an order to enter judgment against the
Defendant for failing to deliver a defence.

SWORN AT ACCRA THIS 7TH DAY OF AUGUST 2000

SIGNED
DEPONDENT

SIGNED
COMMISSIONER OF OATH