AN ANALYSIS OF RECENT DECISIONS ON NON-COMPLIANCE WITH THE RULES OF PROCEDURE[1]:CAN ORDER 81 OF CI 47 ‘RESURRECT ALL DEATHS’?

 

 

By

Goodnuff Appiah Larbi[2]

(BL (Candidate) & Legal Researcher)

(aappiahlarbi@gmail.com)

 

“This argument … raises the issue of how to distinguish between a non-compliance which can be saved by the invocation of Order 81 and a non-compliance which cannot. Clearly, the language of Order 81, r.1 is intended to prevent non-compliance with the rules of procedure resulting automatically in the invalidity of the proceedings. The rule gives the Court a discretion to waive the non-compliance or to set aside the proceedings which follow from the non-compliance. In spite of the absolute nature of the statement in Order 81 r. 1 that the non-compliance shall not nullify the non-compliant proceedings, is there still, even after the commencement of the new rules, some non-compliance that would result in the nullity of the proceedings?”[3]

 

[A] Introduction

[1] The Courts exist to deliver justice to disputants through the rules of procedure.[4] Ghanaian civil litigations are regulated by procedural laws designed to ensure justice, fairness, and the orderly resolution of disputes. These regulations are primarily derived from the Constitution, Acts of Parliament and subsidiary legislations. For example, the Constitution,[5] the District Court (Civil Procedure) Rules, 2009,[6] the High Court (Civil Procedure) Rules, 2004,[7] the Court of Appeals Rules, 1997,[8] and the Supreme Court Rules, 1996.[9]  These rules of Court form an integral part of the laws of Ghana[10]. For this reason, they are treated with equal amount of respect in order to produce sanity in court proceedings. If a Legal Practitioner fails to ensure compliance with the rules of court, they would by that lapse, be enforcing the failure of the adjudicating process, which they have sworn by their judicial oaths to uphold.[11]

 

[2] Procedural law, such as those contained in the Rules of Court, complements the substantive law to ensure effective justice.[12] Kulendi, JSC in the case of Micheal Ankomah Nimfah vrs. James Gyakye Quayson[13] succinctly stated that “The rules of court serve as a lubricant. They lubricate the wheels on which the substantive jurisdiction of the Courts ride. They are to grease the machinery of the law for effective justice. They cannot, therefore, be applied in a manner that causes friction to the administration of justice, lest they lose their relevance and place in the architecture of our jurisprudence.”[14] This metaphor highlights how procedural rules facilitate the smooth operation of courts, ensuring efficiency and fairness in the administration of substantive justice.[15]

 

[3] Ghana’s procedural rules aim to balance efficiency with fairness, ensuring that both parties have an opportunity to present their cases while maintaining public confidence in the legal system. The importance of adhering to legal processes are enshrined in both statutory and constitutional provisions, underlining its pivotal role in maintaining an orderly and just legal system. In the case of Okonti Borley & Okonti Bortey v Hausbauer Limited,[16] the Supreme Court emphasised the crucial role of the rules of procedure in litigation as follows: “It must be reiterated that rules of court are not mere rules but subsidiary legislation by virtue of article 11(7) of the Constitution, 1992 and, therefore, have the force of law. That is why rules of court must be respected and obeyed. When there is non−compliance with the rules of court especially those in mandatory terms, the Court cannot remain passive and condone same. There must be sanctions, otherwise the purpose of the enacting those rules will be defeated.”[17]

[4] Anin Yeboah, JSC[18] emphasized the importance of mastering court rules, urging his civil procedure students to learn them by ‘heart’. He stated that “If your knowledge of substantive law is brilliant and you have no knowledge of the rules of Court then you cannot be a “proper” lawyer.”[19] Mastery of procedural law is as critical as substantive law for a lawyer to succeed in practice and serve justice effectively.

 

[5] This article is divided into eight sections. Part A serves as the introduction. Part B provides a brief analysis of the old legal framework under Order 70 of L.N. 140A. Part C examines the scope and purpose of Order 81 of C.I. 47. Part D delves into the concept of procedural errors in litigation, while Part E analyses the legal implications of initiating proceedings through improper means. Part F discusses the conditions under which procedural defects may revive a case considered “dead.” Part G summarizes the key issues, and Part H concludes with final observations.

 

[B] The Old Position under High Court (Civil Procedure) Rules, 1954 (L.N.140A)

[6] The provision in the L.N. 140A, Order 70, r. 1 stated as follows:

“Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”[20]

 

[7] Under LN 140A, failure to comply with any of the rules could lead to proceedings being rendered null and void or deemed irregular. Since the rules did not specify any criteria for distinguishing these outcomes, case law sought to clarify the types of non-compliance that would invalidate proceedings and those that would not.

 

[8] Before C.I. 47 was passed, the cases that were heard under the old L.N. 140A Rules posited that, any non−compliance with a mandatory rule resulted in a nullity. So, in cases such as Attoh－Quarshie v Okpote[21] and Azinogo v W. E. Augustt & Co. Ltd,[22] the Courts held that non−compliance with the rules was not an irregularity that could be waived and that, a plaintiff who failed to comply with the rules was not entitled to obtain default judgment. Any default judgment obtained based on the non−compliance would be set aside. For instance, in Azinogo vs W.E. Augustt & Co. Ltd supra, it was held that the defendant had been given less than 4 clear days’ notice between the date of service of the process and the hearing date. Therefore, the summary Judgment obtained was set aside. Similarly, in Amoakoh v Hansen,[23] it was held that, where there had been irregularities, including not serving the summons for directions on the defendant, the subsequent proceedings were a nullity and could not be saved under Order 70.[24]

 

[9] Bobby Banson succinctly stated that “the saving grace under LN 140A did not apply to breaches of Statutory provisions. So, for instance, where the State Proceedings Act requires that the Attorney General must be given 30 days’ notice before any action is commenced against the Republic of Ghana, a Judge does not have any discretion in such a breach of this statutory provision. Any proceedings subsequent to the breach shall be declared a nullity”.[25] The repealed High Court Rules in L.N. 140A and its amendment in L.I. 1002 played a very important role in the adjudication of cases in court before the introduction of the current C.I. 47.

 

[C] Scope and purpose of Order 81 of the High Court (Civil Procedure) Rules of 2004 (CI 47)

[10] Before I delve into the gravamen of this subtopic, permit me to give a brief introduction of C.I. 47. The High Court (Civil Procedure) Rules of 2004 (C.I. 47) governs the conduct of civil proceedings in the High Courts and the Circuit Court, except that the application by the Circuit Court shall be with such modifications as may be necessary.[26] It was enacted under Article 157 of the 1992 Constitution and by virtue of Article 11 (1) (c) and (7), it is among the laws of Ghana. The C.I. 47 provides detailed rules and procedures aimed at ensuring efficiency, fairness, and consistency in civil litigation. It addresses key aspects such as the commencement of action,[27] service of processes,[28] interlocutory applications,[29] trial procedures,[30] and enforcement of judgments[31]. It has been designed to modernize and streamline civil justice. The C.I. 47 promotes the timely resolution of disputes while safeguarding the rights of parties and adhering to the principles of natural justice.[32]

 

[11] According to Marriam–Webster Dictionary, the word “non−compliance” is a failure or refusal to comply with something (such as rule or regulation): a state of not being in compliance.  Atuguba JSC (as he then was) in the case of Nii Okaidja III & 2 Ors vs Nii Tettey Ahinakwa II & Another[33] stated that in his view, “rule 79 of CI 16 avoids the use of the words “void”, “voidable”, “nullity”, “irregularity” or “defective” and rather uses the word “non-compliance” in order to enable the court do more substantial justice to each case having regard to its peculiar circumstances.”[34]

 

[12] Failure to execute rules are usually termed as irregularities. Learned authors of Halsbury’s Laws of England explained what “Irregular Execution” is as follows: “An execution is irregular where any of the requirements of the rules of court has not been complied with, and in such a case the proceedings may be set aside or amended or otherwise dealt with in such manner and upon such terms as the court thinks fit. Such non-compliance must be treated as an irregularity and does not nullify the proceedings or any document, judgment or order therein.”[35]

 

[13] Order 81 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides a framework for addressing procedural errors in civil litigation. It allows the court to correct mistakes or irregularities in procedural matters, provided such corrections do not prejudice the opposing party or affect the fairness of the trial.

 

[14] Atuguba JSC (as he then was), in the case of Opoku & Others (No. 2) v. Axes Co Ltd (No. 2)[36] admonished that “For the avoidance of doubt however I would emphasize that Order 81 of C.I. 47 is truly a comprehensive insurance policy covering all procedural defects arising from the provisions of C.I. 47 except where the same also have a constitutional pedestal”.[37] Order 81 was truly made to address substance over form to ensure that justice is not hindered by minor procedural lapses.

 

[15] Order 81 of C.I. 47 states that;

“Rule 1—Non-Compliance with Rules not to Render Proceedings Void

• Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall [not][38] be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it. [Emphasis added]

 

(2) The Court may, on the ground that there has been such a failure as stated in subrule (1), and on such terms as to costs or otherwise as it considers just

(a) set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein; or

(b) exercise its powers under these Rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considers just.[39]

 

Rule 2—Setting aside for Irregularity

(1) An application may be made by motion to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it, and the grounds of it shall be stated in the notice of the application.

(2) No application to set aside any proceeding for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity.”[40]

 

[16] Asiamah, JSC (as he then was) in the Supreme Court case of Boakye vs. Tutuyehene,[41] succinctly stated that “The new Order 81 [of C.I. 47] has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or the proceedings.”[42]

 

[17] Truly, Order 81 underpins the principle that justice should not be sacrificed on the altar of technicalities.[43] It plays a pivotal role in achieving the dual goals of procedural discipline and fairness, making it an essential tool for balancing efficiency in order to achieve effective justice, avoid delays and unnecessary expense, and avoid multiplicity of suits in accordance with Order 1 Rule 1 (2) of C.I 47 in Ghanaian civil litigation.[44] ‘Therefore, the true and acceptable construction of Order 81 of C.1.47 is that it was meant to overrule the distinction between procedural breaches which resulted in nullity and those resulting in mere irregularity.’[45]

 

[D] Understanding the Concept of Wrong Procedure in Litigation

[18] Initiating proceedings by the wrong means occurs when a legal action is commenced using the incorrect procedural method or document. This often leads to nullifying proceedings[46] as the court requires strict adherence to procedural rules. Justice Akamba in Ex parte Tweneboah Koduah stated that “There is an emerging tendency in practice today to consider that the rules of procedure indeed do not matter so long as an application is placed before the court. Yet the rules of procedure are as integral as the substantive law to the success of the trial process. It is therefore essential that time lines set down under the rules of court are adhered to, to facilitate timely trials. Infringements of these rules without reasonable justification should be met with corresponding sanctions or denials.”[47] These statements ensure attentions to rules of the court as serves as a lubricant to the substantive laws.

 

[19] A writ of summons should contain a cause of action and failure of a party to endorse it with statement of claim shall be nullified. In the case of Rockson vs. Illios Shipping Co. SA & Whiltex Ltd,[48] the eminent Date−Bah JSC stated that “Order 2 rule 2 requires that every action in the High Court shall be commenced by a writ of summons which shall be endorsed with the statement of the nature of the claim made or of the relief or remedy required in the action.”[49]

 

[20] He further explained that it is impossible to interpret the writ without nature of claims and reliefs sought. “… the writ of summons in the case before us as disclosing any cause of action. Accordingly, the writ is a nullity and, likewise, the proceedings based upon it.” So, where a plaintiff filed a writ without stating a concise statement of relief, the said writ may be treated as egregious sin and could be nullified or struck out.[50] Where Order 81 may not be the saviour.

 

[21] It is trite law that writ of summons without a substantive claim is void. According to Order 2 rule 6 of C.I. 47 “Every writ shall be filed together with a statement of claim as provided for in Order 11 and no writ shall be issued unless a statement of claim is filed with it.”[51]

 

[22] In the case of Republic vs High Court, Tema; Ex Parte Owners of MV Esco Spirit (Darya Shipping SA Interested Party)[52] the plaintiffs issued a writ of summons endorsed with only a claim for an order to furnish sufficient security for an award in arbitration proceedings that were pending between the parties in London. The Supreme Court unanimously held that, since the writ had not been endorsed with any substantive claim or cause of action, it was a nullity and no valid orders could be based on it.

 

[23] Justice Sule Gbadegbe in one of his papers presented at induction course for newly appointed Circuit Court Judges at the Judicial Training Institute emphatically stated that “As a rule, every writ has to be accompanied by a statement of claim – see Order 2 rule 6. By Order 11 the plaintiff is required to serve a statement of claim alongside the writ on the defendant and default so to do may entitle the defendant to apply to have the action dismissed.”[53] [Emphasis mine]

 

[24] So in an instance where the plaintiff filed statement of case instead of statement of claim, the plaintiff would be allowed to amend his document only if the caption or heading is defective. But a situation where the document does not look like a statement of claim when the said document contains legal authorities. The entire suit may not be treated as mere irregularity but fundamental breach.

 

[25] In the Supreme Court case of Agyeman (Substituted by) Banahene & Others v. Anane,[54] Wood CJ (as she then was) poignantly stated that “Courts of law must follow the law. As a rule, courts are not expected to endorse concessions, compromises or agreements by parties which are contrary to, inconsistent with or not warranted by any rule of law or procedure.”[55]

 

[26] So, where an enactment provides a method by which an action is to be initiated, that method ought to be used other than a writ of summons. For instances; Order 2 r 2 states that “Subject to any existing enactment to the contrary all civil proceedings shall be commenced by the filing of a writ of summons.”[56]

 

[27] Also, Section 16 of the Representation of the People Act,[57] provides that proceedings relating to election disputes shall be commenced with the filing of a petition. All matrimonial causes are initiated by petition under section 1 of Matrimonial Causes Act.[58] The Corporate Insolvency and Restructuring Act[59] and the Companies Act,[60] ensure that when it comes to commencing Action of winding up or liquidation of company, they are by way of a petition.

 

[28] According to Article 33(1) and (2) of the Constitution of Ghana, where a person alleges that his or her fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him that person may apply to the High Court for redress. This application is by way of an Originating Motion.[61] Such an application includes (1) The Motion paper which contains the prayer and reliefs which your client is seeking. (2) Supporting Affidavit which contains the factual depositions which will be the evidence the party relies on. (3) Exhibits which shall be attached to the affidavits. Exhibits are further evidence which are documentary to support the deposition made in the affidavit. And (4) There may be a process which is called a statement of case which is made up of the legal arguments together with the law a party relies on.[62]

 

[29] For that matter, if a Writ of Summons is issued to seek redress in an election petition, the said Writ of Summons will be a nullity since the substantive statute on the matter has prescribed a Petition as the only means of commencing that type of action. In the case of Republic v High Court, Koforidua; Ex parte Asare (Baba Jamal & Others interested Parties),[63] the Supreme Court held that the trial High Court had no jurisdiction to hear and determine the action commenced by a Writ of Summons issued by the interested parties.[64]

 

[E] Legal Consequences of initiating Proceedings by the Wrong Means 

[30] In legal practice, initiating proceedings by the wrong means refers to the failure to comply with the prescribed procedural steps or the use of inappropriate legal processes to commence an action. In Ghana, as in many other jurisdictions, procedural rules play a critical role in ensuring fairness, orderliness, and efficiency in litigation.

 

[31] Akoto−Bamfo JSC (as she then was) in the case of Patrick Ankomayi v. Hannah Buckman,[65] cautioned “The rules of Court are not ornamental pieces. They are meant to be complied with.”[66] Hence, non-compliance with these rules can lead to significant consequences, affecting both the substantive outcome of cases and the administration of justice.

 

[32] One of the most severe consequences of initiating proceedings by the wrong means is the risk of striking out of the case. All Courts are bound by their procedural rules outlined in their respective instruments and other statutory provisions. If a party fails to use the correct procedure—for example, filing a Writ of Summons instead of originating motion in a judicial review application—the court may strike it out or dismiss the case outright for breach of the Constitution or of a statute.[67] This consequence emphasises the importance of adhering to the appropriate legal processes to avoid rendering the action void.

 

[33] In some instances, procedural errors can lead to the loss of substantive rights. For examples, in the case of Standard Bank Offshore Trust Company Ltd. & Others vs National Investment Bank and Others,[68] the plaintiff did not comply with Order 2 rule 4 (2) which requires the Plaintiff who is acting by an order or on behalf of a person resident outside Ghana to endorse the writ of summons with a statement of that fact and the foreign address of the person so resident.

 

[34] The Appellant (NIB) relied on the holding in Naos Holdings PSC v. Ghana Commercial Bank,[69]  which provided that: “If an action is brought by or on behalf of a person resident outside……the indorsement shall so state and state the residence of such person.”[70] The Court held that “ … the capacity to sue must be present before the writ is issued; such authority must appear in the endorsement and/or statement of claim accompanying the writ; it cannot be acquired whilst the case is pending; and an amendment cannot be sought to introduce it for the first time. A writ that does not meet the requirement of capacity is null and void”[71] (Emphasis mine).

 

[35] Benin JSC (as he then was) further stated that “It is to be stressed that the provisions of Order 2 rule 4(2) of C.I. 47 are obligatory, and it is not one of those provisions which the court is permitted by Order 81 to waive for non-compliance. As decided in the NAOS Holding case, supra, non-compliance with this provision renders the writ void. That which is void or a nullity cannot be waived by the court under Order 81 of C. I. 47.”[72]

 

[36] Also, Order 2 rule 5(1)(b) of C.I. 47 requires that where a plaintiff sues by a lawyer, the plaintiff shall, in addition to the residential and occupational address of the parties, provide at the back of the writ the lawyer’s firm name and business address in Ghana and also, if the lawyer is the agent of another, the firm name and business address of his principal.  Lawyers are also to secure a valid practicing license as required of them by Section 8(1) of the Legal Profession Act 1960[73].

 

[37] A case in point is that of Henry Nuertey Korboe v. Francis Amosa[74] that metamorphosed to The Republic vs. High Court; Ex – Parte Teriwajah & Korboe.[75] The High Court, upon a preliminary objection that was taken to the propriety of the Respondent’s lawyer, Justin Pwavra Teriwajah in commencing an action on behalf of the said Respondent (therein Plaintiff) against the Appellant (therein Defendant) on the basis that the said Respondent’s lawyer did not have a valid Solicitor’s license pursuant to Section 8 (1) of Act 32 hence, the Plaintiff’s Writ of Summons was struck out.[76]

 

[38] In other words, the High Court, Accra, upheld the preliminary legal objection that a lawyer who fails to take out an annual Solicitors license pursuant to section 8 (1) of Act 32 is not permitted to practice law which includes preparation and filing of a writ of summons on behalf of Henry Nuertey Korboe, the Respondent herein.

 

[39] The Court of Appeal judgment of 15^th May 2014 was set aside. The Court speaking through Justice Dotse said that “a lawyer who has not taken out a Solicitor’s License in any year unless granted a waiver by the General Legal Council for any length of time, cannot practice as a professional lawyer in any court of competent jurisdiction in Ghana and or sign any legal documents”. He further stated that “the writ of summons filed by Justin Pwavra Teriwajah for the Respondent herein initiating the suit in the High Court is accordingly struck out as having been filed without authority or license”.[77] It was unpardonable for the lawyer to file a writ without license. Hence, the plaintiff cannot benefit from the poisonous fruit.

 

[40] Another case that the Court struck out for non−compliance is Sam Jonah vs Richmond Aggrey, Yoni Kulendi & Kulendi @ Law,[78] in this case, the Plaintiff issued a writ of summons after an ex–parte motion was granted as the trial High Court Judge was satisfied that the 1^st Defendant was residing in the United States of America. The trial Judge was of the opinion that the offending pleadings did not disclose any reasonable cause of action against the 2^nd and 3^rd Defendants.  At the Supreme Court, it was recognized that the Legal Profession Act,[79] encompasses both procedural and substantive provisions. The Appellant ought to have known that, in the absence of a lawyer-client relationship between him and the Respondents, there was no viable cause of action against them.

 

[41] Any alleged violation of rights under the Act must be addressed through an application to the court made by motion, as explicitly provided under section 41 of Act 32. The provision’s plain and unambiguous language precludes the need for statutory interpretation, as the Act prescribes its own procedural framework for resolving disputes arising under it. Anin Yeboah JSC stated that “It would therefore be an absurdity for an aggrieved individual to side step this statutory requirement and resort to a writ of summons on the simple ground that a subsidiary legislation like the High Court [Civil Procedure] Rules C I 47 of 2004 allows actions to be commenced by a writ.”[80]

 

[42] Justice Dotse in his concurring opinion explained that “The suit initiated by the appellant against the respondents herein is squarely within the ambit of Act 32 and since the procedure used by the Appellant is contrary to law, there is no way a Court of law should give any recognition to it. This must not be allowed to blossom; it must be denied any existence.”[81]

 

[43] In the case of Ebusuapanin Kwaku Adjei vs Nana Kuntu Ababio II,[82] the action was initially commenced by Okyeame Kwaku Mensah, who purported to act as the lawful attorney of the Plaintiff. However, a review of the record of appeal revealed that the alleged power of attorney, which was meant to confer authority on Okyeame Kwaku Mensah to initiate the action, was never presented before the trial court. Moreover, the record indicates that during the proceedings, Okyeame Kwaku Mensah, without any formal Order from the trial court, substituted himself as the Plaintiff in the suit following the death of the original Plaintiff, Ebusuapanin Kwaku Adjei. Consequently, the title of the writ was amended to reflect Okyeame Kwaku Mensah as the Plaintiff. The question the court asked itself is ‘whether this substitution of the lawful Attorney as the actual plaintiff in the suit, operated to cure any defect in the proceedings having been commenced on the strength of a non-existent power of Attorney’. The court declared the writ a nullity together with all proceedings founded thereon including the judgment of the trial court. Darko Asare JA (as he then was) relied on the famous case of Macfoy v. United Africa Company Limited,[83] which states that ‘… you cannot put something on nothing and expect it to stay there, it will collapse …’. He stated “The result is that the plaintiff’s action, commenced on the strength of a non−existent power of Attorney is wholly incompetent and same ought to be set aside.”[84]

 

[44] I do not think Order 81 of C.I. 47 could have saved the plaintiff’s suit from entering into Gehenna[85] (Hell). Never! ‘A person’s capacity to sue, whether under a statute or rule of practice, must be found to be present and valid before the issuance of the writ of summons, else the writ will be declared a nullity. In the case of a company, it’s authority to bring a lawsuit is one of capacity and not standing. Capacity to sue is a very critical component of any civil litigation without which the plaintiff cannot maintain any claim.’[86]

 

[45] The court’s power to strike out proceedings under the summary process is permissive, not mandatory.[87] Thus, non-compliance that involves a breach of the Constitution, a violation of statutory provisions, or an infringement of the rules of natural justice—such as the audi alteram partem rule (the right to be heard) or the nemo judex in causa sua rule (prohibition against bias)— lack of capacity and any matter that otherwise affects the court’s jurisdiction, may regrettably result in dire consequences for the affected party, akin to being consigned to Gehenna (Hell) without hope of redemption.[88]

 

[46] In the case of Boyefio v NTHC Properties,[89] the court has affirmed that, it is clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. Atuguba JSC in Oppong v Attorney-General[90]  boldly stated that “…where the step by a party to proceedings before this court is fundamentally wrong, such error is not within the purview of the rule and cannot be waived. One cannot waive a nullity.”[91]

 

[F] When Procedural Defects resurrect the ‘Death’ of a Case

[47] Procedural defects in legal proceedings often threaten the survival of a case, as courts require strict compliance with established rules.[92] However, in certain circumstances, a case that appears “dead” due to procedural errors can be revived if the defects are curable. This concept highlights the relationship between procedural rigor and judicial discretion in ensuring substantive justice.

 

[48] In Republic v High Court, Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd Interested Party), Dr. Date-Bah JSC after his masterly analysis of Order 81 of C.I.47 concluded thus: “To summarise then, where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (CI 47), such non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution or of a statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction.” [93]

 

[49] Ghanaian legal system is fortified by a legion of authorities which hold and support the view that sterile, impotent and arid technicalities seeking to subvert or delay justice have no place in Ghanaian Courts by thy grace of Order 81 of C.I. 47. In Boakye vs Tutuhene, Asiamah JSC stated – “It is axiomatic that rules of court are devised in the public interest to promote expeditious dispatch of litigation. The courts, however, don’t overlook the associated rules of practice evolved over the years that a plaintiff, should not ordinarily be denied an adjudication of his case on its merits on account of any procedural default unless the default would cause or have caused a real risk of prejudice to the other party for which costs would not be adequate compensation. Consequently, it is part of the characteristics of our judicial system, and in fact an integral segment of its process, that where the issues are obviously discernible, the court should not shut the door behind the plaintiff simply because the plaintiff has committed a procedural irregularity …”.[94]

 

[50] Prof Modibo Ocran, JSC expressed similar sentiments in GIHOC Refrigeration and Household Products vs. Hannah Assi,[95] where he berated the focus on ‘technicism’ which are nothing “but technicalities of the law” in the face of doing substantial justice in deserving cases.

 

[51] Justice Wuntah Wuni gave an instance where Order 81 of C.I.47 could resurrect a case from the grave. He stated that “… where the suit number (the unique identifier of the substantive case) is stated and the two Defendants as well as the Plaintiff have been indicated on the motion paper, the court will apply the curative powers of Order 81 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) and in the spirit of Order 1 Rule 1(2) of C.I. 47.”[96] The legal maxim ut res magis valeat quam pereat (meaning – a court ought to render an interpretation not to defeat it purpose) has always had its pride of place in Ghanaian legal jurisprudence.[97] This is used to remedy irregularities not to defeat justice.

 

[52] Our courts are both Court of Common law and Equity,[98] where it strives to prevent and avoid ambush litigation, by resorting and looking more at the substance than at the form.[99] In the case of Ghana Ports and Harbours Authority vs Issoufou cited supra the Supreme Court held inter alia that: “…the courts had a duty to ensure that justice was done in cases before them and should not let that duty be circumvented by mere technicalities. Since the power to make amendments to the capacities of a party rested in the inherent jurisdiction of the courts, the courts could, when the issue was raised either in the trial court any time after judgment was delivered or in the appellate court on the application of a party to the suit, orally or otherwise, grant such amendments as were necessary to meet the justice of the case.”[100]

 

[53] The court in some cases such as Edusei (No.2) v Attorney-General[101], Awuni v WAEC[102] and Darko v Amoah[103]  has established that where the procedure for utilizing a substantive legal provision in a statute is not spelt out, a litigant is enjoined to adopt the procedure which is the nearest reasonable mode of utilizing the right accorded by law. More particularly, in Boakye v Tutuyehene supra the court unanimously held per Dr. Twum JSC as follows: “the new Order 81 has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense, any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or the proceedings”.[104] Is the principle stated in Mosi v Bagyina[105] been rendered otiose? Remember the law is a living organism.[106]

 

[54] Capacity too is so fundamental[107] but even when a plaintiff who commenced an action did not have capacity the court of appeal allowed the plaintiff to amend the capacity in order to clothe them with capacity to maintain the action. And the Supreme Court affirmed the decision of the Court of Appeal upon appeal. The court was of the view that the defendant knew who they were dealing with and since the court exist to do substantial justice, it would be manifestly unjust to non-suit the plaintiffs or set the writ aside.[108]

 

[55] In the case of Hall & Sons v. Bank of Ghana & Another,[109] Adinyira JSC (as she then was) underscored the principle that procedural rules are intended to serve the ends of justice and not hinder it. She emphasized that while courts must adhere to procedural rules, these rules should function as a handmaiden to justice rather than its mistress. The rigid application of procedural rules, she noted, could result in injustice, contrary to their purpose.  She stated that “Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of a handmaiden rather than a mistress, and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what would cause injustice in the particular case.”[110] This position advocates for a balanced approach where courts exercise discretion to ensure fairness and equitable outcomes, especially in cases where strict adherence to procedural requirements might occasion an injustice.

 

[G] Summary

[56] It is literally clear that the language of Order 81, rule 1 is intended to prevent non-compliance with the rules of procedure resulting automatically in the invalidity of the proceedings. The same rule gives the Courts the discretion to waive the non-compliance or to set aside the proceedings which follow from the non-compliance.[111]

 

[57] Among the situations where non-compliance with rules of procedure will not ‘resurrect the death’ of a case is where there is a fundamental defect.[112] These are; where an action infringes the Constitution, Statute, the principles of natural Justice, wants of jurisdiction and when a suit discloses no cause of Action[113]. Also, a writ that does not meet the requirement of capacity is null and void. Since the writ is void it cannot be amended.[114]

 

[58] In some situations, as Lord Denning said some errors are treated as mere ‘irregularities which such ignorance may be pardonable’ and in our Ghanaian jurisdiction it could be remedied by Order 81. These are some of the mere irregularities; defective captions, omissions, clerical errors and forms[115].

 

[59] Failure to comply with such rules are not fatal but quite pardonable, and curable. In the case of Westiminster City Council v Chapman,[116] Lord Denning says that: “Where … there has … been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any steps taken in the proceedings, or any document, judgment or order therein.”[117]

 

 

[H] Conclusion

[60] In this era, everyone seeks justice and peace. Is that not true? Yes, it is. As Justice Dorinda Smith Arthur aptly stated in her inaugural speech, “The cry for justice is global. We want justice at homes, schools, churches, courts and every aspect of our society.”[118]

 

[61] From the above legal analysis, it is now clear that, procedural defects do not always spell the ‘death’ of a case. The Court has the power to resurrect cases where the defects are not fatal, provided the corrections align with the principles of fairness and justice. By prioritizing substance over form,[119] the courts ensures that genuine claims are not sacrificed on the altar of technicalities, thereby strengthening public confidence in the judiciary and Ghanaian legal system. However, litigants and their lawyers should exercise diligence to avoid unnecessary errors because not all defects are curable.

 

[62] The emphasis on procedure is not merely technical but a vital aspect of achieving justice and fairness in Ghana’s legal system. As the venerable author and Judge, Justice Osei Tutu stated in his book ‘Contemporary and Evolving issues’ he said “It must not be misconstrued that procedural law is a demon. It perfectly complements the substantive law to make the law complete, but it must not, on any day, be applied to occasion injustice.”[120] My Lord’s statement highlights the point that procedural law is vital to justice but warns against its misuse to dent fairness and equity.

 

 

 

 

GOODNUFF APPIAH LARBI

BL Candidate and Legal Researcher

Email: aappiahlarbi@gmail.com

 

 

 

ACKNOWLEDGEMENTS

I extend my heartfelt gratitude to the following personalities whose invaluable contributions enriched this article.

• Special appreciation goes to Her Ladyship Justice Dorinda Smith Arthur of the High Court General Jurisdiction, Kumasi, for her wise counsel and detailed observations, which greatly enhanced the quality of this work.
• I wish to express my deepest gratitude to Lawyer Kwaku Yeboah Appiah, my Civil Procedure lecturer, whose profound insights and engaging teaching inspired the idea behind this article. The clue for the topic was drawn from his thought-provoking discussions, which provided a solid foundation for this work.
• I also acknowledge Lawyer Michael Monnie of Adastra Chambers in Cape Coast for his expert review and constructive suggestions.
• My sincere thanks go to Lawyer Benjamin Tachie Antiedu, the esteemed author of ‘Reading the Law’ Book, for his insightful critique and guidance.
• I am equally grateful to Miss Abenaa Asieduwaa Kankam, a student of the Ghana School of Law (Part 1), for her meticulous proofreading and thoughtful feedback.
• Finally, I am profoundly thankful to my colleagues in Part 1, Kumasi Campus Group B2, whose camaraderie, support, and intellectual engagement inspired me throughout this endeavour. Your collective contributions have been indispensable in shaping this article into its final form.

 

Regardless of any statements made to the contrary, it is hereby acknowledged that any imperfections, omissions, or shortcomings in the entire content are solely my responsibility, and I accept full accountability. I encourage readers to offer their constructive critiques and suggestions, as they are invaluable in enhancing the quality of future articles intended for public consumption.

 

 

 

 

 

 

BIBLIOGRAPHY

Constitution/Statutes/Rules/Legislations

• Constitution of Ghana, 1992
• Court of Appeals Rules, 1997 (C. I. 19)
• District Court (Civil Procedure) Rules, 2009 (C.I. 59)
• Evidence Act, 1975 (NRCD 323)
• High Court (Civil Procedure) Rules, 1954 (L.N.140A)
• High Court (Civil Procedure) Rules, 2004 (C.I 47)
• Matrimonial Causes Act, 1971 (Act 367)
• Representation of the People Act, 1992 (PNDC Law 284)
• Supreme Court Rules, 1996 (C.I. 16)

 

Cases

• Abu Ramadan & Nimako v EC & A-G [2013-2014] 2 SCGLR 1654.
• Amoakoh v Hansen [1987－ 1988] 2 GLR 26, CA
• Azinogo v W. E. Augustt & Co. Ltd [1989－1990] 2 GLR 278, CA
• Attoh－Quarshie v Okpote [1973] 1 GLR 57
• Alfa Musah v. Dr. Francis Asante [2018] DLSC 475
• Awuni v WAEC [2003-2004] SCGLR 471
• Agyeman (Substituted by) Banahene & Others v. Anane [2013−2014] 1 SCGLR 241
• Boakye vs. Tutuyehene [2007−2008] 2 SCGLR 970
• Bou-Chedid v. Yalley [1976] 2 GLR 258.
• Boyefio v NTHC Properties [1996-97] SCGLR 531 at 533
• The Republic v. High Court; Ex − Parte Allgate Co. Ltd. (Amalgamated Bank Ltd. Interested Party) (2007-2008) SCGLR 1041 at 1049
• The Republic v High Court, Koforidua; Ex parte Asare (Baba Jamal & Others interested Parties) [2009] SCGLR 460
• Micheal Ankomah Nimfah vs. James Gyakye Quayson, Dated 13th April 2022, in Writ No.: J1/11/2022.
• Okonti Borley & Okonti Bortey v Hausbauer Limited [2021] GHASC 164 (10 March 2021).
• K.A Co. Ltd. & Another vs. Nii Ayikai Ankramah II (Substituted by Nii Tettey Okorh−Aryee) & 4 Ors (Civil Appeal No. J4/1/2016, Dated April 13, 2016, SC.) Unreported.
• The Republic vrs High Court (criminal Division 9) Accra Ex parte: Ecobank Ghana Ltd and Others [2022] GHASC 6 (18 January 2022).
• Nii Okaidja III & 2 Ors vs Nii Tettey Ahinakwa II & Another Suit No. J4/20/2009, Dated 29th April, 2010 (Unreported)
• Ghana Ports and Harbours Authority v. Issoufou [1993-94] 1GLR 24
• Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 ALL ER 211 AT 214
• Gbogbolulu (Chief) v Hodo v (Chief) (1941) 7 WACA 164 AT 165
• The Republic vs High Court (Financial Division), Accra; Ex Parte Tweneboah Koduah [2015] 81 G.M.J. at 212
• Sam Jonah vs Richmond Aggrey, Kulendi & Kulendi @ Law [2013] SC
• Rockson vs. Illios Shipping Co. SA & Whiltex Ltd [2010] SCGLR 341 at 346−347
• Republic vs High Court, Tema; Ex Parte Owners of MV Esco Spirit (Darya Shipping SA Interested Party) [2003−2004] 2 SCGLR 689 at 695 & 697
• Patrick Ankomayi v. Hannah Buckman [2013−2014] 2 SCGLR 1372
• Standard Bank Offshore Trust Company Ltd. & Others vs National Investment Bank and Others [2017] 113 GMJ 174
• Naos Holdings PSC v. Ghana Commercial Bank (2005-2006) SCGLR 407
• Henry Nuertey Korboe v. Francis Amosa Civil Appeal No. (J4/56/2014)
• The Republic vs. High Court; Ex – Parte Teriwajah & Korboe [2013-2014] 2 SCGLR 1247
• Ebusuapanin Kwaku Adjei vs Nana Kuntu Ababio II Suit No. H1/20/22, Dated 26/5/2022, Court of Appeal, Cape Coast.
• Macfoy v. United Africa Company Limited [1961] 3 All E. R. 1169
• Oppong v Attorney-General [2000] SCGLR 275 at 280
• GIHOC Refrigeration and Household Products vs. Hannah Assi [2005 2006] SCGLR 458
• Edusei (No.2) v Attorney-General [1998-99] SCGLR 752
• Darko v Amoah [1989-90] 2 GLR 214
• Mosi v Bagyina (1963) 1 GLR 337, SC
• Hall & Sons v. Bank of Ghana & Another [2011] 1 SCGLR 378
• Tuffour v. Attorney General [1980] G.L.R 637
• Re Coles and Ravenshear [1907] 1 KB 1
• Obeng & Others v. Assemblies of God Church, Ghana [2010] SCGLR 300 @ 323-324
• The Republic v High Court, Koforidua; Ex Parte Eastern Regional Development Corporation [2003−2004] SCGLR 21.
• Westiminster City Council v Chapman (1975) WLR 1112 C.A
• Re Pritchard Deceased [1963] Ch 502
• Ampratwum Manufacturing Co. Ltd v. Divestiture Implementation Committee (2009) SCGLR 692
• Letang v Cooper [1964] EWCA Civ 5 (15 June 1964)
• Dalex Finance and Leasing Company Ltd vrs Amanor and Others [2021] GHASC 16 (14 April 2021)
• Jarmaine Opong−Onyina vs Amina Al−Hassan Braimah & Another Suit No. LD/0439/2023, Dated 27^th July, 2023
• Soon Boon Seo v. Gateway Worship Centre [2009] SCGLR 278 at 289-290
• Obeng & Others v. Assemblies of God Church, Ghana [2010] SCGLR 300 @ 323-324

 

Journals/Articles

• Appiah Larbi, A. G. ‘Visiting the Sins of unlicensed solicitor on an innocent client’. (2023). Daily Graphic
• Bobby Banson, ‘Of Roots and Branches: The Curious Case of Order 81’ (2020). Ghana Law Hub
• Derrick Adu − Gyamfi, ‘Order 81 of the High Court (Civil Procedure) Rules, 2004 (CI 47); A Fetish in Civil Procedure Practice.’ (2021). Dennislaw
• Jeffrey D Pinsler, ‘The Effect of Non−Compliance with the Rules of Procedure: A Survey of recent cases’ (1993). Singapore Journal of Legal Studies.

 

 

Books

• Alexander Osei Tutu, ‘Contemporary & Evolving issues in Civil Procedure and Litigation’. (2023). Advent Press Limited.
• Antiedu, B. T. ‘Reading the law’. (2019). 1st Edition, Pentecost Press Limited.
• Francisca Serwaa Boateng, ‘The Handbook on Civil Procedure & Practice in Ghana: Rules, Cases, Commentary & Precedents’. (2023). Elisus － Beatty Trust Services Limited.
• Halsbury’s Laws of England in Volume 17 (4th Edition)
• Kwamina Mensah, ‘The Annotated High Court (Civil Procedure) Rules, 2004 (C.I. 47.’ (2017).
• Judicial Service of Ghana, Election Manual (2020). (4^th Edn, Bestas Press Ltd)
• Marriam–Webster Dictionary
• New World Translations of the Holy Scriptures, Matthew 5:29b.

 

 

Conference Paper

• Justice Dorinda Smith Arthur, ‘The Kiss of Integrity & Justice’. (2024). EAGLES online Books. Page 20
• Justice Sule Gbadegbe, ‘Overview of the High Court (Civil Procedure) Rules’ Paper Presented at Induction Course for Newly Appointed Circuit Judges at the Judicial Training Institute.

 

[1] Jeffrey D Pinsler, The Effect of Non−Compliance with the Rules of Procedure: A Survey of recent cases (1993). Singapore Journal of Legal Studies.

[2] BL (Candidate), PhD (Lusaka), MPhil (Lusaka), LLB (Cape Coast), BSc (Tamale)

[3] These are the words of the legal colossus Date-Bah, JSC in the case of Republic v. High Court; Ex − Parte Allgate Co. Ltd. (Amalgamated Bank Ltd. Interested Party) (2007-2008) SCGLR 1041 at 1049

[4] Antiedu, B. T. ‘Reading the law’. (2019). 1^st Edition, Pentecost Press Limited at page 209

[5] Constitution of Ghana, 1992

[6] C.I. 59

[7] C.I. 47 as amended by C.I. 87 and C.I. 133

[8] C.I. 19

[9] C.I. 16 as amended by C.I. 131

[10] see Constitution of Ghana 1992, article 11(1)(c)

[11] Akamba JSC (as he then was) in F.K.A Co. Ltd. & Another vs. Nii Ayikai Ankramah II (Substituted by Nii Tettey Okorh−Aryee) & 4 Ors (Civil Appeal No. J4/1/2016, Dated April 13, 2016, SC.) Unreported.

[12] Alexander Osei Tutu, ‘Contemporary & Evolving issues in Civil Procedure and Litigation’. (2023). Advent Press Limited. page 73

[13] Dated 13^th April 2022, in Writ No.: J1/11/2022

[14] Ibid; The same quote was also repeated in Ex Parte Ecobank Ghana Limited Origin 8, Suited No. J5/62/2023, Dated 27^th June, 2023, page 9

[15] My fellow guys, have you caught on to the lie? Smiles! I know this will make more sense to you.

[16] [2021] GHASC 164 (10 March 2021)

[17] Ibid

[18] Former Chief Justice of Ghana.

[19] Cited from Bobby Banson, ‘Of Roots and Branches: The Curious Case of Order 81’ (2020). Ghana Law Hub

[20] L.N. 140A, Order 70 rule 1

[21] [1973] 1 GLR 57

[22] [1989－1990] 2 GLR 278, CA

[23] [1987－ 1988] 2 GLR 26, CA; See the opinion of Taylor, JSC

[24] See, Francisca Serwaa Boateng, ‘The Handbook on Civil Procedure & Practice in Ghana: Rules, Cases, Commentary & Precedents’ (2023). Elisus － Beatty Trust Services Limited. Page 888－889

[25] Ibid

[26] See Order 1 rule 1(1) of C.I. 47

[27] Ibid Order 2

[28] Ibid Order 7

[29] Ibid Order 25

[30] Ibid Order 33, 34, 35 & 36

[31] Ibid Order 41

[32] See Constitution of Ghana 1992, Article 19 (13)

[33] Suit No. J4/20/2009, Dated 29^th April, 2010 (Unreported)

[34] Ibid

[35] Halsbury’s Laws of England in Volume 17 (4th Edition) “Irregular Execution” at paragraph 459 at page 276

[36] [2012] 2 SCGLR 1214

[37] Ibid 1231

[38] Dr. Date−Bah JSC in Republic vs High Court, Accra; Ex parte Allgate Co. Ltd. (Amalgamated Bank Ltd: Interested Party) [2007-2008] 2 SCGLR 1041 stated that ‘In this connection, it should be pointed out that the word “not” in the clause “the failure shall not be treated as an irregularity” in Order 81(1) is probably an error in drafting or a typographical mistake.’

[39] C.I.47, Order 81 rule 1

[40] Ibid rule 2

[41] [2007−2008] 2 SCGLR 970

[42] Ibid at 980

[43] See Ghana Ports and Harbours Authority v. Issoufou [1993-94] 1GLR 24; Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 ALL ER 211 AT 214, CA per Davies LJ. see also Gbogbolulu (Chief) v Hodo v (Chief) (1941) 7 WACA 164 AT 165 where the court stated as follows: “It is the duty of Courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities.”

[44] See also, Evidence Act, 1975 (NRCD 323), section 178 (4) which states that “This decree shall be interpreted and applied so as to achieve a consistent law of evidence and the most just, expeditious and least costly administration of the law”.

[45] Nii Okaidja III & 2Ors vs Nii Tettey Ahinakwa II & Another, Suit No. J4/20/2009. Dated 29/4/2010

[46] In the case of the Republic vs High Court (Financial Division), Accra; Ex Parte Tweneboah Koduah [2015] 81 G.M.J. at 212, Akamba JSC (as he then was) stated that “Infringements of these rules without reasonable justification should be met with corresponding sanctions or denials”.

[47] Ibid supra.

[48] [2010] SCGLR 341 at 346−347

[49] Ibid

[50] See Sam Jonah vs Richmond Aggrey, Kulendi & Kulendi @ Law [2013] SC

[51] C.I. 47 Order 2 rule 6

[52] [2003−2004] 2 SCGLR 689 at 695 & 697

[53] Justice Sule Gbadegbe, ‘Overview of the High Court (Civil Procedure) Rules’ at page 3

[54] [2013−2014] 1 SCGLR 241

[55] Ibid at 250

[56] High Court (Civil Procedure) Rules, 2004 (C.I. 47) as Amended by C.I. 87, Order 2 r 2

[57] Representation of the People Act, 1992 (PNDC Law 284

[58] Matrimonial Causes Act, 1971 (Act 367)

[59] Corporate Insolvency and Restructuring Act 2020 Act 1015, section 81

[60] Company Act, 2019 (Act 992)

[61] For example, Tyron Iras Marhguy vs. Board of Governors Achimota Senior High School and The Attorney-General [2021] DLHC10297, it was noted that ‘On the 31^st of March 2021, the Applicant before the court, Tyron Iras Marhguy, suing per his next friend and father, Tereo Kwame Marhguy, invoked the jurisdiction of the High Court per an originating motion for the enforcement of his fundamental human rights under the 1992 Constitution’.

[62] Ibid

[63] [2009] SCGLR 460

[64] See Judicial Service of Ghana, Election Manual (2020). (4^th edn, Bestas Press Ltd) 23–24.

[65] [2013−2014] 2 SCGLR 1372

[66] Ibid at 1379

[67] See Republic vs High Court, Accra, Ex Parte Allgate Co. Ltd., (Almagamated Bank Limited, Interested Party) [2007−2008] 2 SCGLR 1041 at 1054

[68] [2017] 113 GMJ 174

[69] (2005-2006) SCGLR 407

[70] Ibid

[71] Ibid at page 11

[72] Ibid

[73] Act 32

[74] Civil Appeal No. (J4/56/2014)

[75] [2013-2014] 2 SCGLR 1247

[76]  The said decision has been criticised by this same author. See also, Appiah Larbi, A. G. ‘Visiting the Sins of unlicensed solicitor on an innocent client’. (2023). Daily Graphic

[77] Ibid

[78] Suit No. J4/10/23, Dated 19^th July, 2013. SC

[79] Act 32

[80] Ibid at 15

[81] Ibid at 19

[82] Suit No. H1/20/22, Dated 26/5/2022, Court of Appeal, Cape Coast

[83] [1961] 3 All E. R. 1169

[84] Ibid at page 12

[85] Gehenna is a place of misery. Read Matthew 5:29b NWT

[86] Ibid Standard Offshores vs NIB at page 10

[87] Sam Jonah v Richmond Aggrey, Yoni Kulendi & Kulendi @ Law, Suit No. J4/10/2023, Dated 19/7/2013 at page 9

[88] Which figuratively means the substantive case cannot be amended and it could be struck out.

[89] [1996-97] SCGLR 531 at 533

[90] [2000] SCGLR 275 at 280

[91] Ibid

[92] Ibid Ex parte Tweneboah Kodua supra

[93] Republic vs High Court, Accra, Ex parte Allgate Co. Ltd., (Amalgamated Bank Limited, Interested Party) [2007−2008] 2 SCGLR 1041 at 1054

[94] Ibid supra

[95] [2005 2006] SCGLR 458

[96] See Jarmaine Opong−Onyina vs Amina Al−Hassan Braimah & Another Suit No. LD/0439/2023, Dated 27^th July, 2023

[97] See Abu Ramadan & Nimako v EC & A-G [2013-2014] 2 SCGLR 1654.

[98] See Soon Boon Seo v. Gateway Worship Centre [2009] SCGLR 278 at 289-290 and Bou-Chedid v. Yalley [1976] 2 GLR 258.

[99] Obeng & Others v. Assemblies of God Church, Ghana [2010] SCGLR 300 @ 323-324

[100] Ibid

[101] [1998-99] SCGLR 752

[102] [2003-2004] SCGLR 471

[103] [1989-90] 2 GLR 214

[104] (2007-2008) SC GLR 970 at 980

[105] (1963) 1 GLR 337, SC

[106] Justice Sowah, in the landmark case of Tuffour v. Attorney General [1980] G.L.R 637

[107] See Alfa Musah v. Dr. Francis Asante [2018] DLSC 475, His Lordship Anin Yeboah stated that “We think the law is that, when a party lacks capacity to prosecute an action, the merits of the case should not be considered. If a suitor lacks capacity, it should be construed that the proper parties are not before the court for their rights to be determined. A judgment, in law, seeks to establish the rights of parties and declarations of existing liabilities of parties.”

[108] See Obeng & Others v. Assemblies of God Church, Ghana [2010] SCGLR 300 @ 323-324

[109] [2011] 1 SCGLR 378

[110] Ibid at 384; See also, Republic v High Court, Koforidua; Ex Parte Eastern Regional Development Corporation [2003−2004] SCGLR 21. The expression was originally used by Lord Collins, M.R. in Re Coles and Ravenshear [1907] 1 KB 1 as follows: “the relationship of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress … the court ought not be bound and tied by rules”.

[111] Ibid Ex parte Allgate supra

[112] See decision in Re Pritchard Deceased [1963] Ch 502

[113] Justice Benin in Standard Offshores vs NIB supra stated that “a situation where the writ is not endorsed with any cause of action and none is disclosed in the statement of claim. Such non-compliance cannot be waived by the court”. See also Ampratwum Manufacturing Co. Ltd v. Divestiture Implementation Committee (2009) SCGLR 692, Letang v Cooper [1964] EWCA Civ 5 (15 June 1964), Dalex Finance and Leasing Company Ltd vrs Amanor and Others [2021] GHASC 16 (14 April 2021), etc.

[114] Ibid

[115] Improper title to a proper one will be cured by amendment as in the Obeng v. Assemblies of God case, as the writ already disclosed a valid capacity in law. But where the amendment is to enable the plaintiff to acquire capacity for the first time, it cannot be granted. See Standard Offshores vs NIB supra

[116] (1975) WLR 1112 C.A

[117] Ibid at 1116

[118] Justice Dorinda Smith Arthur, ‘The Kiss of Integrity & Justice’. (2024). EAGLES online Books. Page 20.

[119] Dotse JSC in the case of Obeng and Another vs Kumasi Metropolitan Assembly (KMA) and Another [2017] GHASC 20 (14 June 2017) at page 13 explained that, form is applicable on case by case basis and if the form is  regulated by statute the court cannot be convinced why it should abandon a statutory provision in favour of a sentimental recourse to substance.

[120] Alexander Osei Tutu, ‘Contemporary and Evolving issues in Civil Procedure and Litigation’. (2023). Page 176