Lecture Notes: Commencement of Civil Proceedings in Ghana

Introduction to Civil Proceedings

• Focus: Commencement of civil proceedings within the context of Ghana’s civil procedure rules.
• Key Reference: High Court Civil Procedure Rules, 2004 (CI 47), Order 2, Rule 2.
• Main Rule: All civil proceedings shall be commenced by filing a writ of summons, subject to any existing enactment to the contrary.

Terminology and Key Concepts

• Plaintiff & Defendant: Party commencing proceedings is the plaintiff; the opposing party is the defendant.
• Exceptions: Certain cases involve an applicant or petitioner instead of a plaintiff.

Modes of Commencing Civil Actions

1. Writ of Summons
2. Petition
3. Originating Notice of Motion

Writ of Summons

• General Position: Default mode unless specified otherwise by enactment.
• Content: Residential and occupational addresses of parties, endorsement of reliefs sought, lawyer’s address if applicable.
• Legal Effect: Must be accompanied by a statement of claim.
• Defects: Failure to issue with the statement of claim can lead to dismissal.

Petition

• Applicable Cases:
  • Matrimonial cases under Order 65 CI 47.
  • Parliamentary election petitions (Article 99, Constitution, Section 16 & 17 of the Representation of the People Law).
  • Presidential election petitions (Article 64, Constitution).
  • Winding up or liquidation of companies.

Originating Notice of Motion

• Use: When statute provides for application to court without specifying method.
• Advantage: Expeditious resolution of disputes.
• Examples:
  • Enforcement of fundamental human rights (Article 33, Constitution).
  • Judicial review applications (Order 55, CI 47).
  • Contempt applications (Order 50, CI 47).

Consequences of Incorrect Commencement

• Fundamental Defects: Using the wrong mode affects court jurisdiction, not just an irregularity.
• Reference Cases:
  • AA v. AOK (2011) - Wrong commencement mode affects jurisdiction.
  • Fidelity Bank Ghana Ltd v. Gideon Auku - Remedy provided without commencement means.

Case Studies and Judicial Precedents

• Unilever Ghana Ltd v. Kama Health Services (2013): Reliefs in the statement of claim take precedence over those in the writ.
• Hydrofoam Estates Ghana Ltd v. Owusu: Defects in writ can be cured by statement of claim.

Practical Approach

• Reading Orders: Importance of reading specific orders like Order 2, Rule 6 and Order 11, Rule 151 for clarity on procedural requirements.
• Document Presentation: Sample presentations of writs and petitions demonstrate practical application.

Conclusion

• Understanding the modes of commencing civil actions is crucial for legal practice in Ghana.
• Proper filing and adherence to rules determine the success of the legal process.
• The content and accompanying documents of filed writs or motions are key to maintaining jurisdiction and validity of proceedings.