CIVIL PROCEDURElkkk

Civil procedure affects all other branches of law except criminal law and its procedure.
when you want to exercise rights accruing to you,say torts, you need to go through civil procedure.

Civil law can be cat into 2

1. substantive law ( determines your rights and remedies )

2. procedure law (mode and manner for rights to be execised)

Republic v High Court Koforidua, ex parte Eastern Regional Development Corporation 2003-2004 pg
21

Adjooba v Osofo Hagan 2008-2009 pg 112

Civil procedure governs the practice and procedure in the courts and regulates the administration of
justice in the courts and is indispensable. It is a tool for enforcing legal rights and redressing legal
wrongs, for asserting legal defenses, the adjustment of proprietary interests, supervision and control
of inferior courts, tribunals and other judicial bodies

Civil procedure is a body of rules regulating the conduct of civil proceedings. It lays dpwn the methods
by which such proceedings are commenced, the steps to be taken at each stage and how such steps
are to be taken.
They also provide for the mode of enforcing judgment.
Parties are bound by civil procedure, so are the courts.

Boyefio v NTHC Properties Ltd 1997-1998 pg 768 ( they didnt follow the civil procedure rules in
PNDCL 152 by going through the land title adju committee before the high court)
Cause of action damages for trespass, ejectment and perpetual injunction.

Tularley v Abadoo 1962

promotes order, regularity,... in the justice delivery system

SOURCES OF PROCEDURAL LAW

1. The Constitution
2. C.I. 47
3. Stare Decisis
4. Acts of Parliament
5. Practice Directions
6. Text writers

Every court has its own distinct rules of civil procedure

eg. the Supreme Court rules ( CI 16)
CI 19
CI 59
CI 47....

The rule of procedure to be applied depends on the cause of action available to the person, which in
turn determines the court in which the action should be brought.

know the various jurisdictional limits of the courts

Article 1, 2, 129, 131,

PARTIES TO A SUIT

The party who files/ institutes an action is called the plaintiff

The party against whom it is filed is called the defendant
if the action is instituted by way of a writ of summons

if the suit is instituted by application( motion), applicant, respondent

Marital Cases
Petitioner - Respondent

Patrick Ankomayi v Hannah Buckman

EFFECT OF BREACH OF THE RULES OF PROCEDURE

Order 81 rule 1 sub rule 1 of

Republic v High Court Accra, Exparte Allgate Co Ltd 2007-2008

Boakye v Tutuyehene 2007-2008

Opoku & Ors (No. 2) v Axis Co. Ltd 2012

Agyeman ( Substituted by Banahene) v Anane 2013 -2014

where the rules of civil procedure are breached, it amounts to a mere irregularity and does not nullify
the proceedings except where the breach amounts to the contravention of the constitution and acts
of parliament, deprives the court of jurisdiction, breach of natural justice

Order 81 r 2 sub rule , where party comm breach, the adversary reserves the right to apply
immediately the breach comes to his notice to have the proceedings set aside, however

where the adversary has taken a fresh step( anything apart from applying to set aside the
proceedingsa) after the breach has come to his notice, he will be deemed to have waived his right to
set aside the proceedings.

you can no longer apply to have the impuned proceedings set aside.

Mercer v Guinea Press Ltd 1967

Sade v Adamte 1972

CI 47 applies to civil proceedings bwfore the High court sand the circuit court. Where no provision is
foud in the CI 47 to govern a situation, any common wealth country practice may be applied in that
situation

The Trustees of Synagogue Church of All Nations v Agyeman 2010

Order 1 rule 1 sub rule 2. ( policy reasons behind the enactment of CI 47)

Trust Bank Ltd v GK Appiah & Sons Ltd 201

Boakye v Tutuyehene
parties have no vested rights in procedure, except substantive law. This means that if oyu initiate an
action, and the rules of procedure are amended, you are bound by the amendment. You can’t say at
the time I instituted the action, this provision was not in play..
Republic v High Court Kumasi, ex parte Abubakari 1998-1999
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ISSUING A WRIT OF SUMMONS ( PRELIMINARY MATTERS TO CONSIDER BEFORE ISSUING A WRIT OF

SUMMONS)

1. \Cause of Action
It is very important to consider whether a c ause of action has accrued to the person wanting to
initiate the action before even initiating it.

What is a cause of action?

It is the sum total of material facts required to establish a legal or equitable right which may lead to
the grant of a remedy
Read v Brown 1882
Letang v Cooper
Ampratwum Manuf Co. v Divestiture SGLR P 692

The existence of a cause of action is different from the accrual of a cause of action.
In order to sue, a cause of action must have accrued at the date of the suit. Cause of action is
determined by substantive law.

Cause of action is constituted by a bundle of rights or aggregate of facts which the law will recognize
as giving the plt a substantive right for claim of a remedy or relief

Bello v AG of Oyo State

Whether or not a cause of action has been shown to exist can only be determined by an examination
of the endorsement on the writ of summons( to determine the cause of action) and a test of the
statement of claim.
Order 83 ( DEFINES A WRIT OF SUMMONS TO INCLUDE a statement of claim)

Kusada v Sokoto

Where a writ of summons and statement of claim discloses no cause of action, they may both be
struck out and the action dismissed
Rep v High Court Tema ex parte v Owners of MA ESScO Spirit 2003-2004
a causeof action must exist at the date the writ is issued and not after.

Eshelby v Federation of European Bank Ltd.

However, damages arising from a cause of action after the issuance of a writ may be recovered.
you can apply to amend the writ to claim for damages after the writ of summons,

Darley Main Colliary Co v Michelle 1886.

Where a cause of action gives rise to more than one remedy, all the remedies must be claimed in one
action and not piece meal case. otherwise it may be barred by the rules of res judicata
\
LOCUS STANDI
an interest that a person has in the cause of action. the person must have sufficient interest in the
matter.
If a person has no capacity to sue he cannot legally maintain an action.
Appenteng & Ors v Bank of West Africa
Sarkodie I v Boateng II
Boyce v Paddington BC

Article 2 (1) 1992 Constitution

Article 3(4) the right to Ghanaians to take certain actions, need not have personal interest.
Sam v AG (No. 2)

Endorse capacity on the writ of summons,

THE PARTIES
Order 4 rule 3 of CI 47
It is important for the person to know who has violated his right and know who to sue accordingly.
You may end up suing the wrong person and be accused of committing a misjoinder(joined the wrong
person) or a non joinder( failed to join the right person)
the person who violated your right is the person who ought to be sued. Either in contract or in tort.
Pius v Mensah & Anor

To successfully mount an action against a person,

1. you must have a right (contract or tort)
2. that right has been breached
3. the breach of the right gives you cause of action.

what is a power of attorney?

JOINDER OF THE PARTIES

Certain conditions must be present before parties can be joined in an action

1. The right to relief claimed by the plts must be vested in the plaintiffs whether jointly, severally or in
the alternative
2. The right to relief must in each case be in respect of or arise out of the same transaction or series of
transactions
Green v Bearliner 1936
there must be some common question of law or fact.
Order 4 rule 3.
Bender v Anson

If a plt is entitled to relief jointly w someone else, that other person must be made a plt in the action

*where the person jointly entitled to the relief w the plt refuses to be made a plt he shall be made a
defendant to the suit O4 r 3 (2)

Where a def is jointly liable w someone else on a claim and not severally liable, the other perso n
need not be joined as a defendant 0rder 4 rule 3(3), however the def who is jointly liable and sued
alone, may bring an application for the proceedings to be stayed till the other person has been made
a def.

THE COURT

The place or institution set up by law to arbitrate on disputes btn persons.

Consider which court is suitable for the contemplated action.
Knowing the jurisdictions of the courts will help you decide
Where the action is instituted at the wrong forum, the suit may be dismissed for want of jurisdiction.
Even if its not dismissed you may be confronted w manty issues.
The Court where the suit is brought is informed by the cause of action, so it is always important to
scrutinize the cause of action.

Consider the venue

the place where the action must be brought. it is informed by the nature of the relief which is sought,
sometimes the subject matter of the complaint, or where the subject matter resudes.

actions relating to land ought to be brought in the region where the property is situate.
Actions in relation to sei

Actions in relation to the recovery of penalties or forfeiture against public officers shall be
commenced in the region where the cause of action arose

Actions for specific perf or breach of contract must be instituted in the region where the contract
ought to have been perf or in the region where the def lives or carries on his business.

Where there are more than one def lving in different regions, the action can brought against them in
any of the regions

Read order 3

TRANSFER OF PROCEEDINGS

The jurisdiction of a court is not necessarily ousted bc the action was instituted in the wrong forum.
The court has power to hear a case filed b4 it tho the forum is not the appropriate court.
An application may be brought for the case to be referred to the CJ to the proper region.
Objections as to venue must be taken b4 the def files his statement of defense or b4 the time that the
def is required to file his statement of defense ( the two are not the same)
Order 3 rule 2
Section 104 (1) Courts Act
Oil & Fats Co. Ltd v Hooper & Anor 1992

PRELIMINARY MATTERS TO BE CONSIDERED B4 GOING TO COURT

CONDITION PRECEDENT

before you take an action take these steps.

you may run into issues if you don’t

eg Section 30 of the Legal profession act

s 10 state proceeding act
s2 local governance act

Hughes & Co v Lordescrawlclan 2012

COMMENCEMENT OF CIVIL ACTIONS

Order 2 r 2 High Court Civil procedure rules

subject to any existing enactment to the contrary, all civil proceedings shall be commenced by way of
a writ of summons.

All civil proceedings are to be commenced by a writ of summons unless in your case an enactment
says otherwise.

Akita & Anor v Republic Bnak & Anor

Jonah v Kulendi & Kulendi

There are 3 modes by which a civil action may be commenced

1. Petition

Matrimonial proceedings are commenced by petitions

s 1 and 13 of matrimonial causes act.

2. originating motions on notice

3. s 218 219 Companies Act 2019 (RIGHT TO APPLY FOR RELIEFS, EG a minority shareholder being
abused by a majority share holder)
Order 19 r 1(2)
proceedings by which an application is made to the court/judge under any enactment shall be
initiated by motion

Theres a dif btn an originating mo on notion( used in commencing an action) and an applications
made in pending proceedings are not used to commence any action

wITNESSES ARE HSARDLY CAL;ED FOR THIS TYPE OF METHOD

they are fought on the strength of the affidavit filed by the applicant and the respondent
Apollo cINEMAS V Chief Land Title Registrar

is issued by the filing of application supported by affidavit. The application normally begins w the
name of the court in which it is filed.

the application must be headed in the matter i

you need to state the name and section of the act authorizing the mode of instituting th application
Order 19 govs applications

Drafting an originating motion on notice

Tje names of the applicants and their residential addresses are stated as well as the names of the
respondents and adresses

the body of the motion is prepared, counsel for applicant may be mentioneed

the date on which the application is to be moved is also stated

normally a space is created in the body of the motion for the registrar of the court to insert the date
for the hearing of the application

the law chambers from which counsel practices is also stated as well as the date on which the
application is prepared
the chambers reg number is stated underneath the body of the motion and the signature of the
lawyer on top of the name
the mption is addressed to the registrar of the court where the process is to be filed.the motion is
noted for service on the respondent or the solicitor for the respomdenmt

Supporting affidavit Order 20 CI 47

an affidavit is then prepared to cbe attached to the notice in accordance w order 19 r 4
discuss the circumstances under which the person can dispemnse w order 19 r4

it is headed the same way a notice on motion is headed, order 20 r3

no suit number in affidavit
affidavits a generally written in the first person, commences w I.
THE residential address of the deponent( deposed to the affidavit), the cccupation of the deponent, it
may state where he is unemployed. The deponent shall be adequately but briefly be described ( all
this must be in the first paragraph of the affidavit)

affidavit conta statement of facts under which the applicant/respond relied on to prosecute his claim
or defend the actions against him.
the statements of the facts are to be written in short and simple paragraphs and to be numbered
consecutively. each paragraph shall contain a dsitinct fact. Order 20 r 4

dates, sums of momney and other numbers may be expressed in figures or in words or in both. order
20

an affidavit shall be signed by the deponent. Where the deponent is illiterate or blind, a jurat shall be
prepared underneath the body of the affidavit in which it shall be stated that the content of the
affidavit has been read and explained in a language in which the deponent understands and appears
to understand b4 appending his mark oRDER 20 R6 SR2

Illiterates Protection Act 1912

Duodu v Adomako & Adomako
Nortey v African INstitute of Journalism
Otu No.2 v Otu No. 2 2013

in the jurat, the address of the person who administered the oath, the place where the affidavit was
sworn, the date on which it was sworn and the name and title b4 whom it was sworn must be stated
s6 Oaths aCT 1972

AN AFF MUSTBE SWorn b4 the Chief Justice,Magistrate, judicial secretary, co s9 of th Oaths Act, Order
20 r 2
Provencal v Zwennes
aff shall be dated w the date of which it was prepared and shall also be served on the respondent to
the application and shall be addressed to the registrar

all necessary doc which the deponent intends to rely opon in support of his application shall be
exhibited to the affidavit.
once that is done, a cert id the exbhinit shall also be preoared titled the samwe way as the affidavit

after the serve on the respondent, the respondent shall enter an appearnace, so bc an origination
notice on motion commences an action and is necessary for the respondent to file an appearance and
thereafter file an affidavit of opposition if jhe intends to. Order 9 rule 1. Order 82 rule 3, order 5 rule 1
subrule 3( non compos mentis)
look at the definition of the word acti
4. writ of summons

it is a formal doc issued by the court stating concisely the nature of the claim of a plt against a def.
relief or remedy claimed and commanding the def to cause an appearance to be entered” for him in
the action at the suit of the plt within a specified period,usually 8 days.
after service of writ on him w warning w default of causing appearance to be entered as commanded,
if at the end of the 8 days, the def fails to file the appearance as ordered, the action may be
proceeded, without any further ref to the defendant and judgment may be given i n favour of the plf
against the def.
a writ of s is defined to include a statement of claim 0 82 r3
is the foremost mode of initiating an action.’
it is normally used where the suit involves serious and contentious matters which may call for the
exam of witnesses , unlike notice where it may sth about affidavit the action may be decided on the
affidavit filed by the parties
witnesses may be called to give testimonies bc of the nature of the contentious issues.
a writ is a standard form set out order 2 r3 sr1

a person who has a claim agaisnt another whether natural or artificial may sue that person so he may
enforce his claim. the suit shall be dome personally by the claimant oer through lawter 0r4
wheren incorporated entity, the law req the action be instituted by the lawyer.

a person below 18 or a person certified by a med doc as incapable of managing his own affairs bc of
a metnal illness or bc of an infirmity affecging his mind, can only sue throu a next friend and can only
be defended by his guardian ad litem. or 5 r 1 subrule 4

when is a person required to defend by himself or by a lawyer. incorporated entity, lawyer, natural
person, lawyer or himself

Kumakyi v Ghana Water & Sewage Operation

Order 5

unless some other enactment states go another way, you have to use writ of summons order 2 r 2
where a remedy is given by a statute without a mode of commencemnt of an action to en joy that
remedy, a party may apply any of the meansa of commencing an action.
Rep v Central Regional HJouse of Chiefs ex parte Andoh

A writ of summo s shall be headed w the name of the court, the place or the city where the court sits
to do business, the year which the writ is issued or filed
the registrar may emboss the writ w a suit number
the address of the plaintiff both residential and occupational address, and of the defendantg shall be
stated on the writ of summons

the names of all the plfs and all the defs shall be stated on the writ and if the names are such that
they all cannot be contained on the writ of summons shall be written on a separate sheet of paper
labelled correctly and attached to the writ of summons

until a persons name appears on the writ that person cannot be recognixed as a party to the suit

Agbeshie & Ors v Ghana Ports and Harbour Authority, 2007-2008

the names of all the defs must be stated on the writ, and the names which could not be written on
tyhe writ may be tied on a clean of paper and annexed to the writ.
except in the new lands act, a writ cannot be issued against nameless defs

Bolabi v Mahama

the registered name, if incorporated entity must be used and not any other name.
Konda v Tenassa Pharm & Trading cO ltd

a writ of summons must be endorsed in the capacity in which the plt sues. if the plf sues in a
representative capacity, the same must be stated by his name on the writ of summons.
if the plf sues as trustee, must be stated by his name
if the plf sues as an administrator, must be stated by his name
order 2 r 4

Madina Shopping Mall Association v Rosehill Ghana ltd 2012

Rep v High cOURT accra ex parte Ayitey

Fosua & Adupoku v Dufie(dcd) & Adupoku mensah

an actioh is bound to fail if the plf lackls capacity to sue.

Kwahu’s Motors v Checkpoint Gh Ltd 2009

if writ issued by a lawyer then that lawyer must be prepared to declare in writing w/n that writ was
issued by him and that the writ was issued w the auth or consent of the plf, if any def is served w the
writ or has entered appearance makes a request for the lawyer to so declare.

he shall state his name, business adress, solicitors number, chambers number
Rep v High cOURT Fast track division Act ex parte Justin Poivra teriwaja
Henry Nuertey Kabo v Francis Amosah 2016
A lawyer who issues a writ without auth of the plf commits contempt of court order 2 r 5, sub rule 3
where a lawyer declares that a writ was not issued by him or w the auth of the plf, any def to the writ
shall be at lib to apply to the court to strike out the writ order 2 r5 sr4
order 1 r 4
order 2 r 5 sr4

the capacity in which the def is sued must also be indorsed on the writ. so if sued as head of family,
that description must be stated clearly by the name of the def on the writ
if the relief is for a liquidated claim only, then there shall be stated on the writ a statement to the
effect that if the amount is paid within 8 days from the service of the writ , the action shall abate.

a writ shall be signed by the plf id sues n person opr by lawyer if sues by the lawyer.

a writ of sum shall be endorsed by st of claim, relief or remedy which gthe plf seeks from the dedf and
that statement shall be couched in such a way that it may disclose a cause of action
Ampratwum case
Rockson v ... Shipping case

the relief must be endorsed on the writ

if a plf acts by an order or sues on behalf of a resident abroad that hfact must be endorsed on the writ
of summons
or 2 r 4 sr2
National Investment Bank & Ors v Standard Bank offshore trust co ltd 2017
HydraPHONE estates gh ltd v owusu
if the plf sues per an attorney, the fact ust be endorsed on the writ of summons else it would be
declared a nullity
Akrong v Bulley
Asante Appiah v Amponsah 2009
Husseini v Moro

If the plf is an incorporated entity, its registered adress and place of incorporation must be endorsed
on the writ so tha any person, esp the def, can see it

Kimmon Compania Naviera v Volta Lines Ltd 1973

Nawos Holdings Inc v GCB 2005
As many copies fm the writ as there are defendants and as many as the court may need should be
made available to the registrar formsealing
its good to have multiple copies

a writ is said to have been issued if it is sealed by reg and the date on which is sealed is embossed on
tyhe writ by the registrar

Sarkodie 1 v Boateng 2

A PLF MAY REQUEST THE ISSUANCE OF A concurrent writ.

this may be dome during the lifetime of the original writ.
concurrent writ of summons may be req where 2 or kmore defs are to be served or if there is omly
one def, the plf is not too sure of the place to find the def and serve the writ .
a concurrent writ is a true copy of the original w little or no difference.
a writ, notice of which is to be served within the jurisdiction, may be issued w a concurrent writ
a writ made outside the jurisdiction, may also be isu w concur writ, Lokko v Lokko
Western Suburban Building Soc v Rucklidge

A concurrent writ shall be sealed w the word CONCURRENT

and dated w the date on which it is issued.

Where notice of a writ is to be served outside the territory of Ghana, leave of the court is required b4
such a writ is issued. order 2 r7 sr5
order 8 r 1
However, every writ shall be served on the def within 12 months from the date of issue, after which
the writ shall be deemed to have expired. it becomes a nullity
unless l;eave of the court is obtained to renew the writ.
Sheldon v Brown Ballace Steelworks Ltd 1953

Alhassan v Boadu 1977

where a writ remains unserved within 12 months, the validity may be extended/ renewed by a court
upon application from time to time fpr a period not more thasn 12 months until it is served
An application to renew a writ for reasons of non service, shall state wby the plf couldnt serve the
writ.
Sowah v Amarteifio 2008

Where there are many defs some of whom have been served w the writ and others not served, the
writ shall be remained expired as far thr def not served are concerned and leave is reqw to extend
that wit b4 those defs cvan be served
a writ which is renewed shall be stamped or embossed w the word renewed, w the date on which it is
renewed and the period for wjhich it is renewed.
find the word

if a writ is expired,lets say 1st feb 2020, meanwhile a concurrent writ was filed in addition, once the
original writ expires, the conc writ automatically expires.
same, once mother writ renewed, concurrent writ renewed

a writ shall be filed together w a statement of claim and no writ shall be issued without an
accompanied statemtn of claim
Order 2 r 6

reliefs on the writ of summons shall be repeated in the statement of claim.

otherwise they may be regarded as abandoned
Antwi v Amponsah 1964

te reason why it should be repeated in the statement of claim, the reliefs in the statemtn of claim
supersedes what is in the writ of services

Unilever v Kama Health SERVICES lTD 2013

THE WRIT OF SUMMONS AND STATEMENT OF CLAIM ARE TREATED AS ONE 082 R3
for that matter defects of the writ, as far as reliefs are concerned are deemed to cured by the
statement of claim
Opoku No 2 v Axis Co Ltd 2012
Owusu v Hydrafones co ltd

an important consideration in the preparation of a writ is the parties to the action.

who shall issue the writ, against who, and what claim to make, is germain to the sustainability of the
action

1. lack of capacity.
2. wrong person agaisnt whom judgemtn is given means no judgemtn
Article 57 ( 4) and (5)1992 Prez cannot be civilly or criminally liablewhile in office
you lack capacity wehile he is in office.

Amidu v Kuffuor & Ors. 2001

butif is an action agaisnt the state it shall be brought against the AG

NPP v Rawlings

the technical name for statement of claim indorsement and thats the cause of action

you should never make a photocopy of the original writ ands serve it. it must always be the
concurrent writ served

JOINDER OF CAUSES OF ACTION ( reliefs and claims made agaisnt the def

Different reliefs can be sought against def in the same action if the def is alleged to be liable on all the
reliefs or causes of action Order 4 r 2 sur 1 subr a

different reliefs may be sought against the def in the same action if it is alleged that the def is liable in
dif capacities in respect of the same estate which is the subject matter of the action.

Order 4 r 2 sub rule 1 b

Sanders v Wildsmith 1893

Lloyd v GW Dairies Co. 1907

Where it is not alleged, that the def is liable in dif capacities to one or more causes of action, in
respect of the same estate, if the plf seeks to sue the def in dif causes of action, the plf shall first seek
the leave of the court b4 issue or filing writ
Order 4 rule 2 sr1(c)
Jonah v Kulendi & Kulendi

application for leave is made ex parter b4 the issuance of the writ of summons if leave is granted.
Order 19 r 4
shall be accompanied by an affidavit unless the rules of Court says otherwise
order 4 r 2 sr2
In the application for leave, the applicant ought to state the reason why leave is ,, to be granted b4 he
issues out the writ

Where dif causes of action are joined in the same writ or dif plts and defs have been made parties to
the same action and the court comes to a conclusion that the joinder may confuse the issues or cause
embarassment or leads to delay of the trial, the court may do anty of the ff
a) the court may order separate trials
b) they may confine the action to some of the reliefs and exclude other reliefs
c) they may put the plts to an election of which of the relieifs he would like to pursue and which to
abandon
d) may strike out the names of some of the parties ot the action
e) the court may make any just order to ensure the convenient disposal of the matter.

Two or more person may sue together as plaintiffs or may be sued together as defs.
Order 4

Where a person is jointly liable w another party, that other party need not be made a def bc the plts
interest is in the relief and not the parties

Where a def is liable severally on a claim w some other persons, that person shall be made a def in
the action, however where persons are jointly liable under a contract, all of them shall be sued jointly
under the contract and any of them who is sued may bring an applicatiom to stay proceedings till the
others are also joined to the action.

a joint obligation is a liabitly imposed on two or more persons by law or by contract

you cannot sue one executor and leave the other bc in klaw they have joint obligations and is
inseparable
Persons are liable severally where two or more individuals
where two or more persons indivually and separately made a promise to an act to TP, those persons
are severally liable and not jointly liable.
should they fail to perform, plf can sue them in the same action severally
Joint and several claims arise from the facts of the case giving to the claim.
Compania Sansinema v Holder Bros Ltd

Where there is doubt as to the liability of parties, the parties may be joined in one action in the
alternative
Bullock v LGO Co.

The WH Randall 1928

Where defs are sued in the alternative and the plt accepts money paid into court in respect of the
claim, the action comes to an end both against the def, effecting the plf and the alternative def sued
in the action

A party may be misjoined or non joined to an action.

the party is said to be misjoined in an action if he is not a necessary party to the suit.
Order 4 rule 5
gives power to the court ot strike out the name of an yperson misjoined to the suit.
Bonsu v Bonsu 1971 v2 GLR

Soon Boon Seo v Gateway Worship Center

a person who is a necessary party to the action but who is non joined ie who has not been joined in
the action may be added to the action as a party either on application or by the court suo moto
order 4 r 1

The fasct that a part is non joined or misjoined does not of itself defeat the action
Bobie v 21st Century Construction Co. Lt 2016
Jonah v Adu (Dodoo) Kum
the policy reason behind the rule of these rules is to emnsure that as far as possible all persons having
an interest in the action are joined in order that they be heardin order rtpo reduce multiplicity of suits
Gardiner v Circuit & Anor 1968 2QB
Sai v Tsuru III
Sam v AG 2000

Aplications for joinder are made on notice w supporting affidavit showing the interest of the party
who seeks to join the suit is

Which has commneced an action against, the step which he is expected to take is to enter appearance
Adegoke Motors Ltd v Adesanya

The entry of appearance is governed by Order 9 of CI 47

One does not need to a lawyer to defend an action if that person is an incorporated entity or athat
person is a person w disability

Order 82r3 defines an action

so far as you have been served w sth that commences and action, you ought to enter appearance.

PURPOSE OF APPEARANCE

a) to indicate to the court the def is willing to appear in court to contest the matter
b) prevents the plf from taking judgement in default of appearance at that stage
it may serve as a signal to the court that the def is willing to submit to the jurisdiction of the court

the purpose is also be that the def is not willing to submit to the juris of the ocurt

TIME LIMIT
Appearance shall be filed within 8 days after service of the writ or originating process on the def
iut may also be entered within such time the court may direct upon an application for extension
Order 9 r 5 sr (a)
where a notice of the writ is to be served out of the jurisdiction, appearance may be entered within
such time as the court may indicate in the order granting leave for the notice to be served out of the
jurisdiction
Botwe & Anor v Daniels & Ors 1991

Appearance shall not be filed after judgment has been entered

Botwe case
Order 9 rule 6 sr 1

where a def files his appearance

a def shall not be prohibited from filing appeance notwithstanding that he is out of time provided
judgment has not been given or entered by the court
where a def files his appearance after the expiration of the time limited to do so, he shall not be
entitled to any more time to an act under the rule tha if he had filed the appearance within time.
Afreh v Copyright Society of Ghana

see sth.
you have 14 days from the last day of the time limit to file a defence.

so say the time limit to file appearance is 1st Nov

Content of Appearance
An appearance shall be as in form 5 order 9 r3 sr1
it shall state the name of the court, the place of sitting of the court as well as the year in which
appearance was filed.
the suit number shall be stated thereafter at the right top corner beneath the name and sitting of the
court
it is your duty to state the suit number on the appearance

the nmaes of the parties to the action, occupational or residential addresses will follow, then their
designation( whether petitioner or respondent)
if def is resident abroad he shall state his foreign adress shall be stated on the appearance.
an appearance may be entered personally whre the person intended to def by himself or ny a lawyer
where the person intended to def as such.
An incorp or persons w disabilities shall not file appearance except by a lawyer
where a lawyer files appearance he shall state is name, office adress solicitors no. chambers
restriction no on the notice of appearance and th eawyer shall sign his signature on the appearance
onto of his name

if filed personally, the def shall sign his name on the notice of appearance

an appearance shall give notice to the plf that the def has entered appearance.
notice shall be dated w the date on which it is prepared or handed in for filing.
where notice of appearance is filed by a lawyer who acts as an agent of another lawyer, that fact shall
be stated on the noitce of appearance.
and the address of the principal lawyer as well as the adress of the agent lawyer shall be stated on the
notice of appearance

a notice of appearance may be set aside upon proof in an application by the plf that the adress
endorseed by the def thereon is not genuine
the plf may thereafter after for default judgemn against def
an app is prepared by completing the

at least 3 copies of the notice of appearance shall be prepared and handed in to the registrar for filing
after filing, a copy shall be given to the def, a copy placed on the court docket and the other on the
plf.
when more than one def acts by the same lawyer, at the same time in an action, only one set of ..
notice of appearance needs to be filed all he needs is to file one set of 3 as if the def is one, out of the
3 one for plf, one for court one for def
where dif lawyers rep the defs , each lawyer shall file a separate notice of appearance for his client.
where partners are sued, in the name of the firm, each partner shall file a separate appearance in
their individual names.

TYPES OF APPEARANCE
1.
Unconditional appearance
where a def simply submits to the juris of the court, where the def has no complaint to raise against
the writ
the filing of an unconditional appearance amounts to a waiver of the right to complain about any
irregularity in the issuance of the writ
Adusei v Guinness club of Switzerland

Sheldon v Brown Bace steelworks td 1952

it has been held that submit to juris does not amount to want of jurisdiction
wilkinson v Barking Corp
AG v eastern Nigeria v Ag of thE Federation 1964

where jurus is conferred by the constitution or act of parl the courts competence to adjudicate is a
matter of substantive law and a party cannot by acquiescence cannot confer jurisdiction that the
court lacks

it has also been held where a def enters an ordinary appearance without any protest... he was
debarred from raising zn objection afterwards
Ackerman v Societe Generale 1967
do you agree w the ratio in that case

Asare v Hajima Chimizu Joint Ventures

entry of appearance amounted to a fresh step...
Quarcoo v Mobil Ghana Ltd
Tema district assembly v Djabatey

CONDITIONAL APPEARANCE

Direct opp of unconditional appearance

aka appearance under protest
the fact that a def is entering a conditional appearance it must show on the face of the notice of
appearance.

Amissah Abadoo v Abadoo

a def might enter a conditional appearance where he intends to have the writ set aside on
1. the grounds of irregularity of the writ itself
2. there is an irregularity in respect of the service of the writ
3. a complaint against the jurisdiction of the court

A CA must be filed served w a writ has a complaint w the issuance of the writ.... the 3 above.

a ca may also be filed in order that the def can apply to set aside an order granting leave to the plf to
serve notice of a writ out of the jurisdiction
Renault vehicles ltd v Ashanti engineering industries ltd 1991
Look at order 9 rule 8

where a ca is filed and a def does not ff it within the time given( 14 days) w a motion alleging any of
the grounds under which a writ can be set aside, that ca shall be deemed to have been converted into
an unconditional appearance.
Dede II v Ansah 1980

Murfin v Ashbridge & Martin 1941

Renault case...
pay attention to those 4 circumstances under which writ can be set aside ( use just these) order 9 (8)
Ghana Muslim Representative council v Salifu
Rep v High Court Accra; ex parte aryitey

Rep v High Court, ex parte avadali 1993-94

A def may appear unconditional and raise the issue of jurisdiction in his statement of def as his
defence and at the appro time ask the court to take that issue and try it separately
Wilkinson v Bar.. corp
order 33

juris
two options are open
1. file motion to set aside the writ
2. raise issue of jurisdiction in statement of def ( order 33 so the issue is isolated and determined by
the court, this makes it long)
the def can go’ by a motion of notice, only in affidavit the reason why the def says the court has no
jurisdiction will be stated.

the purp of a conditional appearance is to stop the case in its tracks from being gone into.
Order 1 rule 2

APPEARANCE BY PARTNERSHIP order 6

WHERE partners have been sued in the name of the firm each partner is required to file his
appearance individually.

companies dont do this bc the company is the one being sued

where a non partner is served w a writ, against a partnership he shall enter appearance preferably
conditional appearance.in so doing the person is expected to state on the appearance that the
appearance is being entered as a person served w a writ and not as a partner.
Order 6 rule 4(3)
where a manager is served he need not enter appearance unless he himself is a partner
If def takes issue w juris and that objection is dismissed, ca filed by the def automatically converts to
an unconditional appearance and must file his statement of def

DEFAULT OF APPEARANCE

a def is said to be in default of appearance if he fails to file appearance within 8 days or within such
time the court may give.
the plf apply for judgment to be entered against the def who is in default and that application
( application for judgment in default of appearance may be made under order 10 of the rules

where plf claims liquidated damages only and the def is in default, the plf may apply for final
judgment should be made against the def.
the fact that plf is asking for interest on amount claim does not render his claim unliquidated.
Fofie v Pomaa
Bright v Graphic Corp
Ankomah v City Investment Co Ltd
what is a liquidated claim? fixed sum of money agreed to

where there is default of appearance and the claim is for unliquidated demand only, the plf may apply
for interlocutory judgment for the claim. Order 10 rule 2
where interloc judgment
1. the court shall fix a date
2. on that date fixed, damages may be assessed.
3.

it is the duty of the plf to serve 2 things on the def

1. the hearing notice
2. the order for interlocutory judgment

on the date on the hearing notice the plf is to give evidence to add w assessment
the plf too.

Order 10 rule 4(3) where the plaintiff’s claim is in detinue and the def is in default of appearance,
judgment may be given to the plaintiff against the def
a date shall then be fixed and plf can give evidence.

Where there is default of appearance and the claim of for immovable property only, the plf may apply
for interloc judgment for the claim and thereafter a date shall be fixed for the plf to give evidence for
final judgment to be given.
Coker eNGINEERING v Moses

where the claim for the recovery of possession of immovable property is made jointly against
defaulting def and other defs who are not in default of appearance, tbhe judgment entered against
defaulting def shall not be enforced whilst the suit is pending against the other compliant def until the
case has been heard and judment has been given against the 3.
10 r 4

where possesion is claimed by virtue of a mortgage the rules under 10 rule 4 shall not apply 10 r 4 (3)
the mortgagor must go under order 59 of the rules
an applicationb dfor judgment in default of appearance mall be made ex parte or on notice
Bank of Ghana v Sefa 2015

Kuma v Bart-Plange 1989 -90

Order 10 rule 5 deals w mixed claims.

deals w a mixture of rules 1 through 4.

where there is default of appearance and the plf’s claims is a mixture of any of the rules 1 through 4
of order 10, and there is no other claim, the plf may apply for judgment for any pf the claims
endorsed on the writ as the plf would be entitled if that were the only claim made.

use the laptop and 20k example

after judgment has been entered and indeed the judgment involves an interloc judgment which
makes it needful for an assessment to be done, or for the plf to prove his claim, a date shall be fixed
by the court for the assessment of damages or for the plf to prove his title or claim b4 final judgment
can be entered,
The defaulting def is entitled to attend the assessment and even contest the assessment and so the
plf shall serve the def w a hearing notice indicating the date fixed by the court for assessment
the plf shall also serve the def w the interlocutory judgment
and when the date arrives the plf shall prove his case b4 final judgment is given

Order 10 rule 6
Deals w claims that don’t appear in rules 1 thru 4.
eg damages for libel...
You must file an affidavit showing
1. writ has been served on the def
2. the statement of claim
3. the def was in default of appearance

when this is done you can then go ahead to prove your claim and obtain judgment.

Where there is default of appearance and the claim made by the plf cannot be found in any of the
claims in rules 1-4, then the plf shall file an affidavit in which shall be deposed the ff facts
1. that a writ of summons has been served on the defendant ( must be able to indicate the date of
service, exhibiting an affidavit of service sworn through by the bailiff who served the writ)
2. statement of claim was served ( show date and prove the soc was served by exhibiting the affidavit
of service filed and sworn by the bailiff or process servant who served the soc)
3. depose to the fact that the def had failed to file the appearance ( by indicating the date the def was
served w writ ans soc, showing the date in which the def should have filed the def and show the
period had elapsed)

Where there is default of appearance where the claim cannot be found in rules 1-4,
plf shall apply to the court per motion which shall be depose to the fact that def has been served w
the writ, soc, and that he has defaulted in appearance and that the plft prays fro judgment in default
of appearance
the court shall then fix a date for the plaintiff to lead evidence to prove his claim b4 final judgment is
entered against the def.
the application of r judgement , ought to be made on notice to the defendant, not ex parte. Once the
date arrives, the plf mounts the witness box and proves his claim. Someone else can be invited to give
evidence on behalf of the plaintiff.
remember the def is entitled to attend and challenge this assessment

Judgment entered in default of appearance may be set aside if the def 1. applies timeously and 2.
gives convincing reasons why he failed to file appearance within the given time.
Def must also show he has a good def to the plaintiff’s claim.
Botwe v Daniels 1991
It is at the courts discretion to set aside a judgment given in default of appearance against the def. the
judgment may not be set aside just bc you have applied.

Lamptey v Hammond 1987-88

There is genrally not time limit to set aside a default judgment

Haruna v Arts Council of Ghana 1992

judgment in default of appearance shall not be given in a moneylenders action except w the leave of
the court and an application for leave for judgment of appearance for a monelylenders action shall be
made on notice to the def.

and the def shall be given 3 clear days ( 3 days inbetween) notice before the hearing of the
application
and upon the hearing of the application the court may do any of the ff
1. exercise the court’s power under the moneylender’s act
2. give leave for judgment to be entered for the whole or part f the claim
3. give directions as to the remainder of the claim

JIDOA shall also not be given in a mortgage action except w leave if the court and the appliucation
shall be made on notice to the def although the def is in default of appearance and in any case the
court shall req the plf to prove his claim against the def
the plf cannot enter judgment for a sum greater than what is actually owed the plaintiff otherwise the
judgment obtained shall be set aside.
Asamoah v Marfo
Bonsu v Doe

what about the interest collected at order rule 1(4)

SERVICE OF PROCESSES

after the preparation of a writ of summons it ought to be served on the def together w a statement if
claim. The purpose of service is to notify a person of the institution of an action against him
Dakar Ltd v Industrial Chemical and Pharmaceutical Co Ltd & Anor 1981
Unil a writ is served toge,hter w the soc on the def, a court has no juris to hear the case until the writ
and soc have been served on the def.
Barclays Bank of Ghana Ltd v Ghana Cable

Friesland Frico Domo v Daschel Co. Ltd 2012

The service normally effected by a court bailiff or a certified process server order 7 rule 1
a wos shall be served personally and separately on each def, any process which initiates an action
shall be served personally and separately, unless a lawyer undertakes to receive the process in
writing, otherwise each and every def whose name appears on the wos, petition, OMON shall be
personally and individually served 7 rule 12(2)

Tema Development Corporation and Serki Bro and Serki Realty v Sunbell 14th april 2021

ex parte Osai Akonor

where a writ is served personally on a def the person effecting the service shall prepare and file an
affidavit of service and until that is done the plf cannot proceed w the action.
Order 7 rule 12 (4)
personal service is effected by handing over the process in question to the person who is to be served.
Where it is not possible to hand over the process personally to the person, personal service may be
effected by placing the process as close as possible to the person
where personal service is not req the process may be posted to the last known or registered address
of the person to be served.

the ff processes shall be served personally

all origination processes

application for committal for contempt under order 55 rule 5 subrule 5
entry of judgement after trial under order 43 rule 7
writ of execution
order for injunction
third party notices
application for judicial review
application for reserve price
notices of appeal

under order 7 rule 13, where a contract is made in GH thru an agent who resides or carries on
business in Ghana, and the principal is neither resident or carries on bus in gh, and the agent
continues to act for the principal an application ex parte may be made for the service on the agent in
Ghana on a writ issued against the principal
Trustees of Synagogue Church of All nations v Agyeman.
where a writ is issued for recovery of possesion of immovable property and the def cannot be found
to be served, the court shall order the service to be effected by posting the process in question at the
property
Order 7 rule 15

where personal service is not mandatory and a def is in default of appearance or he has no address
for service the process need not be served personally unless the court directs otherwise or the rules
provides
Order 7 rule 7

the person alleging he has effected service carries the burden of proving it
IN Re Yendi sKIN aFFAIRS 1982-83

Processes req to be served on the state shall be served n the AG or a rep of the AG
S 12 State proceedings act

if a process is to be served on a stool or skin, effected by leaving the process w the occupant of the
stool or skin

where there is no occupant, effected by serving the regent

family, head of family or the caretaker of any property or a principal memebr of the family
Order 7 rule 5

Person in prison, head of that prison may be served or any of the prison wardens or guards, or any
person acting in such capacity...

minister of state, effected by serving process on minister, if not possible served on chief directors

persons w disability, father, mom, guardian, or the person w whom the disabled person resides

an MP may be served at any place on condition that they are not going to or coming from Parliament
service of corporate bodies shall be effected in acc w the provisions made by enactments regulating
such organizations.
they aren’t served like natural persons where he is to be served personally

either the enactment established that entity or it was established under that enactment

it is only where such enactment does not exist or there is one but there is no process of serving the
institution, that you can come under the rules

Zoomlion Ghana Ltd (No. 1) v Mekworld Co. ltd No 1

Dakar Ltd v Industrial Chemical and Pharmaceutical Co

Bonney (No. 1) v Ghana Ports and Harbours

Zakaria v Yimakan...

s291 of the Companies Act

s292

electronic service
CI 122 2019...
has introduced electronic service
a person who files a writ or enters appearance shall state whether service shall be effected by
electronic service
its not compulsory bc its not everyone in Ghana that has access to the internet
Where a party indicates that service is by electronic means, then he shall be deemed to be served as
soon as the process is sent by that means .
eg Whatsapp, email
the person must have that means for him to be served.

The person making the service through that writ or appearance shall indorse his telephone number,
email address ...

if at the time of filing writ of summons or notice of appearance, you did not indicate thereon that yo
are disposed to be served through electronic means, the law gives room for that to be done so that
you can later enjoy e service

a lawyer has power to serve and receive processes on behalf of his client thru e means

SERVICE OUT OF THE JURISDICTION

No writ of summon shall be served outside the jurisdiction of the court

ORDER 8 RULE 1
the rationale is bc of sovereignty and territorial jurisdiction of nations in Intl Law.

However a notice of the writ may be served outside the jurisdiction w the leave of the court w the
leave of the court
Order 2 rule 7(5)
Order 8 rule 2this

you can issue that writ only w leave of court. the writ itself cannot be served
you still cannot serve it. you need the leave of the court to serve NOTICE of the writ on the person
outside the jurisdiction
this type of application is not normally made in pending proceedings, bc in most cases
the writ is not issued at you can issue that writ only w leave of court. the writ itself
cannot be served
you still cannot serve it. you need the leave of the court to serve NOTICE of the writ
on the person outside the jurisdiction
the time the application is filed
it isnt an originating motion on notice either

tjhere are two applications to be filed for leave to issue the writ one, and then leave to serve notice of
the writ out of the jurisdiction.
The court has weigh your writ, to see if the coause of action is permissible under the law against the
person abroad
Friesland Frico Domo v Friesland Foods
Lokko v Lokko 1991

dont combine the two applications in one bc you need to issue the writ first

this is bc jurisdiction is territorial and involves issues of sovereignty

Abela v Baadarani
21 Z22221
In deciding to grant leave for writ to issue and for notice thereof to be served out of the juris certain
factirs are taken into consideration by the court.

1. there must be an app supported by aff showing grounds for the application
2. the affidavit must show that the applicant has “good cause of action”
3. the affidavit must disclose the name and address of the def, the country, city, residential address
4. the aff must show that the case is proper for the service out of the juris to be ordered by the court.
In order or the aff to show that it is a proper case for serve out of juris, at least one of the causes of
action mentioned in order 8 rule 3 must be endorsed in the notice of the writ
5. the aff must show a proposed writ of summons w a statement of claim to establish whether the
relief sought ....

Note that the High Court has no power to order anything to be done in the country of service ( def’s
residence) contrary to the laws of that country.
the service need not be done by the applicant if Order 8 rule 6 is complied w.

The judge show also note the period within which the def ought to file appearance. The lawyer must
remind him.

order 9 rule 8 gives you the right to apply to the court to set aside the order granting someone leave
to serve notice of a writ out of the jurisdiction.
a defence can be that the coa does not fall uner Order 8 rule 6

an application to serve notice of writ outside the jurisdiction can only be made ex parte
and the grant of the application is purely discretionary.
Signal Oil Co.
the person whom you seek to serve must be necessary and proper party to the action.

your claim must be bona fide

The Siskina

it is possible to apply to join a a person who is resident outside the jurisdiction to be made a party to
an action pending in the jurisdiction

notice of the writ should be serve in compliance w the laws of the country where the def lives.
the notice of the writ maybe served thru the judicial authorities of the country where def lives if there
is a civil procedure convention btn Ghana and that country
it may also be served through the ghana embassy or consulate in that country
where no convention, served thru the govt of that country if the cpuntry is willing to effect service
if may also be forwarded to our ministry of affairs which may arrange to serve the writ in thst country
order 8 rule 11
the court has power to order that notice od the writ be effected thru airmail or courier

SERTTINF ASIDE WRITS OR SERVICE OF WRITS

Order 9 rule 8

a writ may be set aside and equally the service of the writ may be set aside

Instances where a writ may be set aside

1. the court has no jurisdiction w respect of the cause of action in the writ
2. the plf has capacity to sue
3. the writ discloses no coa
4. no statement of claim
5. writ expired
6. condition precedent has not bee fulfiled
7. service of writ may be set aside if the writ is improper

Look at Order 16 rule 5 (5)

PLEADINGS
pleading in civil actions is regulated by order 11, of CI 47
ORDER 82 rule 3 which defines pleasings

pleadings are written statemnts of the oarties to an action, setting forth material facts which they
intend to rely on in support of their claim.

order 11 sr 1
when issuing a writ,that writ ought to be accompanied by a soc and served on each def

a writ served without a soc is fatal and may be dismissed, Order 11 rule 1 sr 2

tjere are dfi types of pleadings

1. statement of claim
2. st of def
3. reply
4. countercliam
5. rejoinder
6. ser rejionder
7. ser rebuttal
8. rebuttal

FX OF PLEADINGS

pleading set out the questions btn the contending parties which the court is called upon to resolve
the reason the parties are in court
pleadings narrow the area of controversy btn the parties
Dam v Addo 1962
GIHOC v Hannah Asie No. 2

theparties give fair notice of their cases to each other by means of pkleading, thus enabling them to
prepare adequately to meet the opponents claims
from the pleadings filed by the parties the court is infprmed of the issued involved in the matter
which they are called upon to determine
pledings constitute permanernt record of the dispute btn the parties
also of the issues brought and resolved by the court. as a result the same issues cannot be resurr by
the parties of their representatives, (estoppel)]Wuo v ..]
ROBERTSON V REINDAL?

Thru the medium of pleadings the court is able to manage the case better
also able to employ other dispute resolution methods

odartey lamptey v lands commission

hammond v odoi

pleadings assist the court to know the real issues and applicable law to be appl;ied to ther fscts
pleaded
the court is bound by pleadings, so are the parties and their lawyers

fORM AND CONTENT OF PLEADINGS

Order 11 rule 6

on the face every pleading shall bear the ff

the name of the ocurt
name of town, region, city, village in which the action is filed\
the year in which the writ is filed
suit number
title of the suit
the description of the pleading, whether it is a statement of claim, defence, reply, etc
the time and date of filing of the pl;eading must also appear on the doc.

every pleading shall be divided into consecutively numbered paragraphs

each para shall as far as pos contain a material allegation of facts, law shall not be pleaded
dates, sums and numbers shall be expressed in words or in figures or both

where thepleading was prepared personally by the party, he shall write hisname and address beneath
the pleading and sgn it
if prepared by the lawyer, bear the name of the lawyer, name of the chambers and the law firm of the
lawyer and the solicitors number of the lawyer as well as registration number of the lawyer
if agent of another lawyer, name and address of the principal lawyer shall be stated on the pleading

every pleading shall be addressed to the registrar of the court

shall also be addressed to the party on the opp side or to his lawyer if lawyer known

generally, every pleading shall contain statements of material facts in summary form on which to
vprove or disprove a claim or defence

what are material facts

sthose facts necessary to establish a cause of action or a defense which has been asserted by def
facts which are relevant to the case!
Klah v Finnis Insurance Co Ltd 2012
Whittaker v Nanka Bros

in a statemt of defence the material facts are those which needs to be proved by the def so he may
provide a defence to the plf’s action
the material facts are determined by the substantive law on which the coa is premised
a party relying on any aggravating circumstances, such as facts which aggravate damages, needs to
prove those facts
if a party relies of facts which mitigate damages, he ought to plead those facts

where a pleader is doubtful whether a set of facts are not material the best approach is to plead those
facts
this is bc a party is not allowed to plead evidence of those facts
it is better to overplead than underplead
unpleaded facts

a pleader shall pled facts and not law or the evidence by which the facts are to be proved
it is the province of the court to det the legal conseqwuencesof thre facts pleaded and proved at the
trial.
the party shall not plead bare legal conclusions in his pleasings, just the facts on which the law can be
rested that ought to be pleaded

plead facts that court can make the inference that there is res ipsa loquitor, and not the principle of
common law
Shaw v Shaw 1954 2 QB\

Poin t of law

Facts shall be pleaed and not law,but a point of law may be raised by a party.
pleading law is said to obscure the facts of the case but raising a poiint of law isolates questions of law
on the facts as pleaded
order 11 rule 11(1)
JRIDICTION, capacity to sue...

Facts given rise to points of law are pleaded were a point of law is raised, whereas in pleadoing law a
party draws legal conclusions which is the preserve of the law.
White v Vandervel Trustees Ltd

if an endorsement on a writ does not disclose a cause of action, one can plead it

the issues raised by the plf has already been determined, relyiing on the principle of estoppel, one can
plead it
if the action is statute barred, one can plead it

a rule of customary law shall be pleaded , where a rule of cust law is pleaded the pleader shall give
sufficient particulars on that rule in order for the effect and nature of that rule in q to be easily
ascertained and also the geographical area and ethnic group to wich that rule applies shall always be
proved

a q as to the existence and content of a customary law is a q of law for the court to answer up to the
court
s 55 courts act
a pleader shall plead facts and not the evidence by which the facts are to be proved
order 11 r 7
Klah case

the facts which are relevant to establishing the existence of the material facts, constitute the
evidence for proviing such material facts
Godka v PS Intl Ltd

facts presumed by the law, need not be pleaded

a presumption of law is a conclusion which the law prescribes given a set of facts, until the contra is
prove
s 32 nrcd 323

where facts presumed by law are spec denied by the opp party, then they need to be pleaded order
11 rule 7 sr 3
the effect of a doc shall if material be summarized in a pleading, but the pleader need not state the
actual words of the doc

Condition precedent need not be pleaded bc it is implied in a parties pleading

it is for the opp to raise the non fulfilment of the condition precedent as a def in his pleading

where a def fails to please non fulfilment of the condition precedent, he will be deemed to have
waived his rights and due performance would resumed against the
acquaye v acquaye

facts of judicial notice need not be pleaded

FACTS TO BE SPECIFICALLY PLEADED

There are certain facts which by order 11 rule 8 ought to be pleaded if they are to be relied upon by a
party in his evidence.
those facts ought ot be pleaded in any pleading subseq to a statement of claim
the matters to be pleaded are those facts which make the claim of the opposite party not
maintenable, or which which raise issues of fact not already pleaded, or which might take the
opposite party by surprise.

s.52 gives the court power to exclude relevant evidence....

rule 8 of order 11 mentions some of the matters which ought to be pleaded subseq to a soc
1. perfomance, reliefs, limitations, fraud....
In re Will of Bremansu sth Vandyke 2012
Banahene v Shell Gh Ltd
Teye v Siba Intercontinental
Asamoah v SIC 2017

issues of illegality normally arise in contracts and normally raised by def who dont want to ff their
bargain

where the contract is ex facie illegal, illegality need not be pleadedsince the subject matter of the
contract is illegal or where the consideration is illegal, such as the contract for the commission of a
crime
wgere however the contract s apparently lawful, and the illegality epeds ont the surrounding
cxircumstga ces, the illegality ought to be pleaded just as the surrounding circumstances.
ought o be pleased w the facts which make the cntract unlawful

an allegation of fraud must be soedificslly pleaded and proved beyond all reasonable doubt at the trial
s 13 subseq1 evidence act

ayeh and akakpo

niot only is one req to plead fraud byt the particulars of the fraud as well.
Nti v Anima 1984

where a party fails to plead an allegation of fraud he will not be permitted to plead evidence to prove
fraud
United african comp v Eggay taylor
tamakloe v basil trading comp tld
contract this principle w Amuzu v Oklikah

Forgery must be spec pleaded w the particulars

mensah v asiamah 2011
failuire ot comply ew statute must be pleaded
Dahabie v SA Takie & Bros
Basil v Kabbara 1966
asare v brobbey

a def who lleges that the plf action is statute barred must plead that fact as a defense
adom v marfo
Jerigoji v Issah
JA Dam v Addo

a def who relies on the equitable defense of laches and acquiescence must plead and prove it
Armah v Hydrofoam

a party who relies on the doctrine of estoppel must specifically plead it and prove same at the trial.
no evidence of estoppel will be received at the trial if it is not pleaded.
Dedeke v Williams 1944
estoppel by conmduct, plead and prve at trial

traditional history, the same must be pleaded

statutory exceptions to a genral statutory immunity from liability must be pleaded

stat defenses must be pleaded. eg fraud
Malomo v Olusola
Acquaye v acquaye

unenforceability of a doc must be pleaded ie the fact rendering the doc unenforceable must be
pleaded
where a party relies on an agreement that agreement must be specifically pleaded.
Mercer v Brempong

waiver must be pleaded if it is to be relied upon as a def.

Aboaba v Adeshena

a defense of tender must be pleaded

malice, knowledge, intention, condition of the mind, must akl be p;eaded

noticesare alleged as afacr where such notices are materiZl rto the csse.

where a def to a suit for recov of possession of immov property must plead any ground of def in
which he wants to rely on the c;laim
Bonful v Speedline ltd

the rule against departure

by order 11 r 10 where aparty pleaded a particulsr fact or sets of facts he cannot in a subseq plead9ng
aver to the fact or set of facts or ake any new claim completely diff from the prev fscts
where one does that he is said to have depaerted form his prev pleading and it is a ground for
objection under s 52 of the evidence acrt

the evidence being given has not been pleaded and for that reason the def/has been taken by
surprise
the court will not allow the party to set up a new case in his subsequent pleading

hammond v oddoye
iddrissu v

parties to a suit are bound by the averments made in their pleadings bc pleadings are to give fair
notice of what is expected of the parties
Dam v Addo

The only method a party can change his pleading or add fresh facts is by amended, until he does so he
is bound by his pleading and cannot give evidence contrary to his pleading.

Rule in Aboaba

notwits the rule that parties are bound by their pleadings, the court in Aboaba v Adeshena created an
exceptuion to the general rule that parties are bound by their pleadings.
the rule states where evidence is given of an unpleaded material fact without objection at the time it
was given,and provided the evidence was inadmissible per se, a court is bound to consider that
evidence in the evaluation of the case.
Yartey & Oko v Construction and Furniture ( West Africa ) Ltd
Banahene v Shell Ghana Ltd
s 6 of the evidence act

Akosah v Owusu
marfo v edusei
ntim v boateng

PARTICULARS OF PLEADINGS

a pleading may not provide full details, and might take

to the extent that a particular pleading is vague or left open, there is a need to plead for further
particulars of the averment
order 11 rule 12
Ecobank Nigeria PLC v Hisshands Housjng Agency 2017-18

a party is required to give particulars of the ff averments, misrepresentation, fraud, breach of trust,
wilful default. where you see a vague averment of any of these it is your duty as lawyer to ask for
further particulars
Osei Ansong & Passion Intl School v Ghana Airports Co. Ltd. 2013...
Bank of West Africa v Holdbrook 1966 GLR

a pleader who alleges a disability or disorder of the mind of any person is obliged to give particulars of
the condition of mind which he alleges
eg. in the contesting of a will

allegations as to malice, fraudulent intention shall all be accompanied by particulars ( they mean
factual details)

FUNCTIONS OF PARTICULARS
Particulars are meant to inform the party asking from the them mosre specifically of the case to be
expected at the trial.
It limits the generality of the pleading and delimits the issues
moves it away from being general to more specific.
it prevents a party from being taken by surprise at the trial.
limits the enquiry at the trial to matters set out in the pleadings

Ogun Tokun v Amodu Rufai WACA

where particulars are applied for and given, issues become liimited and the particulars become
binding, the parties cannot then give evidence outside the particulars

Particulars do not serve as a substitute but a supplement, enhancing the pleading and making them
complete
particulars do not amount to amendment
Order 11 rule 12(6)

party asking for particulars is enjoined to write a letter to the other party.
it only where the opp party refuses to reply the letter that a motion may be filed to the court for
particulars to be given
sr 3

motion ought to be accompanied by an affidavit

an application for further and better particulars shall not be made of any matter which has not been
raised in the pleading
the application shall also be made timeously
sAMPAH V SACKER 1964 GLR
Davey v Bentech 1893
where a plf refuses to adhere to an order to furnish further particulars, the plfs action may be struck
out

where the p info based on which t

oder 11 rule 12(5)

a def is required to file a statement of defence

if you know the info already why ask for particulars.

Leech v Abbot

where material facts are not alleged in pleadings a cause or action or defense may not be available to
the pleader and if your pleadings is without a cause of action and does not disclose a defence, that
person cannot by the medium of further and better particulars be made to correct the defect in the
pleadings
Bruce v Oddams Press Ltd

they cannot be used to supply the non pleaded facts

an order for particulars to be supplied does not necessarily operate as a stay of proceedings

ADMISSIONS AND DENIALS IN PLEADING

any material allegation wjhich is not admitted by a party shall be expressly and specifically traversed
a traverse is categorical and complete denial of any allegation containee in a statement of claim or
counterclaim that the opposite party does not admitted.
the def can state in the statement of def that the def denies/does not admit
Order 11 rule 13 sr2

once you fail to deny it you have admitted it unless issues are joined on that allegation by operation of
law

State Transport Corp v Addo 1977

a denial which is not specific in nature may amount to an admission

once a fact is admitted it does not become a fact in issue.
Kusi and Kusi v Bonsu 2010

a general statement of non admission shall not operate as a denial in a statement of c

where AN ALLEGATION IN RESPECT OF A MET FACT IS CONTAINED IN A STATEMTN OF CLAIM OR

COUNTERCLAIM OR ANY PLEADING , U DENY IT OR YOU WILL BE DEEMED TO HAVE ADMITTED IT
order 11 rule 13sr3
Ofei v Asamoah 2017

an allegation of damage or damages suffered is deemed denied unless it is admitted and it therefore
need not be specifically denied
order 11 rule 13sr4

STATEMENT OF CLAIM
thse contain allegations of facts in summary form on which a plf relies on to prove his case against the
def

the facts alleged must be material, and must disclose an accrued cause of action in the plf against the
defendant, at the time the writ nt he statement of claim are filed
Morkor v Kuma
the relief or remedy which a plf claims must be specifically staed in the soc.
Order 11 rule 15 sr1
defects in the writ of summons may be cured in a soc
Opoku No 2 v Axic Co No. 2

a soc can be divided into 3 main parts

introductory averments
body
the relief or remedy sought

Introductory Part
This part introduces the parties to the suit, their relationship to each other, the capacities they sue in
or are being sued in

Body
this part of the soc contains the detailed transaction indulged in by theparty telling us why the parties
are in court and contains all the material facts the plf relies upon to prove his claim. Full particulars
must be stated here, a plf who omits to state mat facts stands the risk of losing his claim
a soc is said to disclose a cause of action if the alleged facts discloses a legal or equitable right vested
in the plf at the time the writ is filed
the facts that give the plf the legal right he asserts and the facts that constitute the breach of the
alleged rights must be fully and completely pleaded by the plf
if the plf fails to furnish particulars of those rights and the breach, it becomes the duty of the def to
ask for further and better particulars if it is in his own interest.
where the plf claims special damages, particulars of special damges must be pleaded and proved at
the trial. and in the soc a plf cannot plead facts in respect of a coa which cannot be found in the
indorsement Order 11 rule 15 sr2

in a soc a plf cannopt ask for relief or remedy whose roots cannot be traced to the indorsemnet on
the writ
where more than one def is sued, the soc shall disclose whether they have been sued jointly or jointly
and severally.
where claims are brought in the alternative, it should be clearly stated in the soc.

In a claim for libel or slander order 57(3)(1) of the rules demands that the words constitute libel or
slander must be pleaded
and where the words are understood in a particular sense, then it becomes the duty of the plf to
explaiin the secondary meaning of the words ( innuendo)

Particulars shall also be provided in a mortgage or moneylenders action

order 59(3)
order 63 rule 40(3) it enjoins a plf to specifically deny the interest of the def if the plf disputes the defs
interest in the estate.

RELIEF
this part repeats the indorsement on the writ of summons and expands it. the relief which the plt
seeks from the def must be spec stated in the soc Order 11 (15) sr 1

a relief not repeated in the soc shall be deemed to have been abandoned by the plf
unilever v Cama Health Services Ltd

the relief tells the court about the kind of redress that the plf seeks from the ocurt against the def
it is from the reliefs that one can determine w/n the court has jurisdiction to entertain hear the
matter
the plf in the soc alter, modify or extend any claim endorsed on the writ of summons
the endorsement of the soc supercedes that on the wos Opoku No 2 v Axis Co Ltd

STATEMENT OF DEFENCE
A def who has filed an appearance shall file sod within 14 days after filing appearance unless they
have filed a conditional appearance
however if a def has been served w an application for summary judgment that def is under no
obligation to file sod before the hearing of the summary judgment.
where the summary judgment is dismissed, the defs duty to file sod arises and has 14 days form
dismissal to do so.
b4 a sod is filed, a def ought to scrutinize the wos and soc looking for any possible objection
does the writ disclose a reasonable cause of action?
jurisdiction?
capacity?
have conditions precendent been fulfiled
if not the def can file an application to strike out the writ.
the def shall in the sod state in specific terms the allegations in the soc which he admits, those that
are denied
the def has the duty to set out hisown fact on which he relies

sod may contain the ff

admissions
traverse/denial
confessions and avoidance
objections in points of law
plea of set off
counterclaim

ADMISSIONS
any allegation in the soc which the def admits shall be stated as admitted in the SoD. failure to admit
facts which ought to have been admitted alludes to lack of candour in the def and his lawyer
Order 23 rule 1
where an allegation is admitted in pleading there is no need for evidence to be adduced to prove that
allegation. bc there is no issue
Foli v Ayiredi
Pioneer Plastics v Commissioner of cUSTOMS and EXcise

An admission made may in a proper case w leave of the court be withdrawn or amended
Order 23 rule 5

Traverse
a traverse is a specific and categorical denial in a sod of an averment contained in the soc. it is stated
in the form of denial
eg the def denies para 3 of the soc, the def does not admit para 3 of the soc
every material allegation in the soc which the def does not admit must be spec denied on the soc. if
not shall be deemed admitted.
an issue is said to be joined btn the plf and def

an admitted fact does not constitute fact in issue , it is only facts in dispute which become facts in
issue of which the def or plf is req to adduce evidence at the trial.
in order to avoid the effect of inadvertence, unintentional failure to deny an allegation in the soc, a
general denial is made is made either at the beginning or the end of the sod.
it has been held that a general traverse has the effect of a specific traverse
in one case where the allegation is material and essential, a general traverse is not enough to deny it.

In Ghana a general statemtn of non admission shall not be a sufficient traverse

Order 11 rule 13 sr3

Akyer v Ghana Industrial Dev Corp

Ansah v Busanga
Brutu v Aferiba

Evelyn Asiedu v Yaw Asamoah & Anor

Where a def alleges that b4 the action was instituted by the plf, he tended the amount or part of the
amount and the plf refused to accept it, the def shall pay into court the amount which the plf refused
to accept b4 he will be allowed to rely on that defense.

where def alleges plf is also indebted to him,the def shall also include in his defense the claim made
by him against the plf as a set off in his sod Order 11 rule 17

CONFESSIONS AND AVOIDANCE

In this type of pleading the def admits facts alleged in the statement of claim ( confession)
Goes ahead to allude to fresh facts which in effect negates the admission (avoidance)
the mat fact by which the def intends to avoid the effect of the admission made be pleaded
subsequent to the admission. if this is not done, you may be fixed w admission

when this is done successfully the burden of proof shifts to the def to adduce facts to discharge his
obligations
Asante v Sarpong
Cocoa Marketing Co Ltd v Ansah

STRIKING OUT PLEADINGS

oRDER 11 RULE 18 SR 1 (A)
permits any pleading that does not disclose any reasonable cause of action or reasonable def to be
struck out
Ghana Muslim Rep Council v Salifu
Appiah II v Boakye
in such applications ie, applications to strike out any pleading , the applicant shall not adduce any
evidence, neither affidavit evidence nor oral evidence
it is only the pleading that may be used.
Okufo Estates Ltd v Modern Science Ltd 1996
the court is called upon in this kind of application to determine whether it discloses a reasonable
cause of action. it is only the pleading on the attack thathatt

the pleadingcan also be brought under the inherent jurisdiction of the court

a pleading may be struck out if its scandalous, frivolous or vexatious or if it may prejudice, embarass
or delay the fair trial of the action or an abuse of the process of the court.
where these grounds are invoked affidavit and other evidence may be admitted
Eastern Alloys Co. Ltd v Silverstar Auto ltd

Bank of West aFRICA V Holdbrook extrinsic evidence

In one action th eplf did not have the right to sue, so the court held it was vexatious, frivolous,
fanciful,

REPLY
order 11 rule 3

normally a pleading filed by the plf and mentioned in order 11 rule 3, wishing to respond ton
allegations made by a defendant in his statement of defense

A reply is not mandatory

a good reply is done w the intention of replying fresh allegations made by a def in a sod
where a sod does not merit an answer, no need for reply.
all allegations generally made by the def in the sod may to some extent fall under the principle that
the rules maintain an automatic denial of the allegation in the last filed pleading
Order 11 rule 14 sub rule 2 (a)
Adjetey Akusu v Kotey

allegations made by the def in purported answer to allegations contained in a soc are deemed to be
denied
where the def makes an additional statement of fact, there is no automatic denial. the plf must reply.

if the last filed pleading is a statemnt of claim, there is no joinder of issue, if the def doesnt file a
statement of defense, the last filed pleading is the soc, no joinder of issues
Order 11 rule 14 sr 3

a Joinder of issue operates as a denial of material allegations contained in a pleading

a joinder shall not operate as a denial of material allegations admitted by a party to a pleading

a reply shall be filed within 7 days of the service of a sod on the plf.

it is in the reply that the plf may respond to an allegation

plf may allege matters not previously raised in a soc in a reply, but which are necessary to answer
allegations made by def in the sod

a plf who fails to raise or allege facts in answer to frsh aversment ij an sod may not be allowed at the
trial to adduce any such evidence, unless that evidence flow naturally from facts which have already
been pleaded
in a reply a plf may admit or deny or challenge any allegation of facts raised by the def in the sod
plf joins issues w def upon his defense

where plf admits osme of the allegations in the soc he may single out those paragraphs and ecept
them from the joinder of issues/

a def to counterclaim is often incorporated in the reply and making it unnecessary for a separate
defense to be filed to the counterclaim
a plf is not permitted to set up in his reply a new cause of action or a claim which has not been
indorsed in the soc
a plf may further explain a claim already pleaded in this soc in his reply
Odoi v Hammond

after the filing of a reply no party has the right to file any further pleading except w the express leave
of the court

Close of Pleadings
Pleadings is said to close at the expiration of 7 days after the service of a reply on the def.
if no reply is filed it means the last pleading to be filed is the sod.
if no reply or def to counterclaim, pleading is said to close 7 days after the service of a sod.

SOC
SOD/ Counterclaim
reply/ defense to counterclaim

the pendency for further or better particulars has not been heard does not prevent pleadings from
coming to a close
after pleadings have come to a close, the plf shall apply within one month thereafter to the court for
what is known as directions ( application for directions) for further management of the case.