Notes
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Introduction to Civil Procedure
This note will discuss the meaning of civil procedure, its scope, the applicable laws in civil procedure, and the relationship between civil procedure and substantive law.
Overview of The High Court (Civil Procedure) Rules, 2004 C.I. 47
This note, aligned with the objectives of Chapter Two of the Course Manual on Civil Procedure, provides a brief overview of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) and its application to civil proceedings. In discussing the application of C.I. 47 to civil proceedings, we will discuss the scope of application of the rules and their application and interpretation.
Effect of Non-Compliance with the Rules of Civil Procedure - Mere Irregularity and Nullity
The High Court (Civil Procedure) Rules, 2004 (C.I. 47), provides rules to guide civil proceedings in Ghana. What happens if a party fails to comply with the rules? Are the proceedings automatically rendered null and void following such failure? Are all failures to comply with the rules in C.I. 47 treated the same? In this note, we will discuss when failure to comply with the rules of civil procedure will not render proceedings null and void, and when it will.
Introduction to the Commencement of Civil Actions
This note will briefly highlight the various ways a civil action may be commenced, the effect of wrongfully using another means to commence an action when a particular means is provided, and what happens if no particular means of commencing a civil action is provided.
The Writ of Summons
In a previous note, we mentioned the writ of summons as one of the ways by which a civil action may be commenced. This note discusses the writ of summons in terms of its meaning, its use as the general means of commencing civil actions, parties to a civil action commenced by a writ of summons, and factors to consider before commencing an action through a writ of summons.
Contents of a Writ of Summons
In a previous note, we discussed the meaning of a writ of summons, its general use as the principal means of commencing civil proceedings, and the factors to consider before commencing a civil proceeding via a writ of summons. In this note, we will discuss the contents of a writ of summons. We will examine the name of the court in which the action is being commenced, the names and addresses of the parties, the indorsement as to capacity, the command, the address for service of the plaintiff, endorsement with a statement of the nature of the claim, relief or remedy sought, and a statement on stay of proceedings if a liquidated demand is paid.
Defects in a Writ
This note will discuss various defects that may be found in a writ. Among others, a writ is defective if it is issued by a plaintiff with no capacity, filed in a court with no jurisdiction, discloses no cause of action, is not accompanied by a statement of claim, or is expired. These are now discussed.
Concurrent Writs
This note will discuss the meaning of a concurrent writ, the time it can be issued, when it may become necessary for a plaintiff to obtain a concurrent writ, and key features of a concurrent writ.
Duration and Renewal of Writs
This note will discuss how long a writ is valid for the purpose of service and how to renew a writ after its expiration.
Capacity to Commence a Civil Action
In this note, we will discuss the general rule on the capacity to commence and carry on civil proceedings and the limitation of that capacity with respect to persons with disability and body corporates.
Venue and Transfer - Order 3
The High Court (Civil Procedure) Rules, 2004 (C.I. 47) makes various provisions on where an action should be commenced (venue), what happens if an action is commenced in the wrong venue, and how proceedings may be transferred from one venue to another. These are discussed in this note, beginning with the distinction between venue and forum.
Joinder of Causes of Action
In a single action, a plaintiff can have multiple causes of action. This note will briefly discuss the meaning of a cause of action, what it means to join causes of action, circumstances under which a plaintiff may join more than one cause of action in a single suit, the orders a court may make if a joinder of causes of action will embarrass or delay the trial, and the difference between joinder of causes of action and consolidation of suits.
Joinder of Parties
This note will discuss the meaning of joinder of parties and when it can be obtained with regards to plaintiffs and defendants. The note will also discuss the orders a court may make if a joinder of parties will embarrass or delay the trial.
Misjoinder and Non-Joinder of Parties
This note will discuss the meaning of misjoinder and non-joinder, their general non-effect on proceedings, the orders available to the court in the case of a misjoinder and a non-joinder, and when a person who has been ordered to be a party to an action actually becomes a party to the action.
Change of Parties by Reason of Death
This note will discuss circumstances under which there can be change of parties to an action following the death of a party. In doing this, the note will discuss what happens to a cause of action when a party dies, the power of a court to order the substitution of a dead party, how to apply for such substitution, and what happens if no application is made for substitution following the death of a plaintiff.
Introduction to Service of Processes
This note will discuss the meaning of service of a process, its essence, the consequences of failing to serve a process, and highlight the modes of service.
Personal Service of a Process
This note will discuss personal service as one of the modes of serving a process. In doing so, the note will discuss the meaning of personal service, its use as the general mode of service, who effects personal service, how it is generally effected, and how it is effected for particular entities.
Substituted Service of a Process
This note will discuss substituted service as a mechanism for serving a process that is required to be served personally. In doing so, the note will discuss the meaning of substituted service, when the court may order substituted service, the modes of substituted service, and how to obtain an order for substituted service.
Service Out of the Jurisdiction
This note will discuss the meaning of service outside the jurisdiction, the prohibition on serving a writ outside the jurisdiction, and the proper way to institute and give notice of an action to a person outside the jurisdiction (outside Ghana).
Appearance: An Introduction
This note will discuss the rules governing the entry of appearance in Ghana upon service of a writ of summons. The note will briefly define appearance and proceed to discuss who enters appearance, how appearance is entered, the content of the notice of appearance, the types of appearance, and the time limit for appearance. The main order that will be used is Order 9 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
Conditional Appearance
This note will discuss the following: the meaning of conditional appearance, capacity to enter or file conditional appearance, when conditional appearance may or may not be entered or filed, the consequence of entering conditional appearance, effect of failing to enter conditional appearance, how to enter conditional appearance.
Default of Appearance
This note will discuss the meaning of default of appearance, judgement in default of appearance and the nature of judgement a plaintiff may apply for based on the nature of his claim. The main order that will be used is Order 10 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
Introduction to Pleadings
This note will discuss the meaning and essence of pleadings and highlight the types of pleadings.
Formal Requirements of Pleadings and Contents of Good Pleadings
This note will discuss the formal requirements of a good pleading under Order 11 Rule 6 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and the contents of good pleadings.
Pleadings: The Rule Against Departure and the Rule in Abowaba v. Adeshina
This note will discuss two rules that are of cardinal importance to pleadings. The rules to be discussed are the rule against departure and the rule in Abowaba v. Adeshina. These rules are discussed together because they are related.
Striking Out Pleadings and Close of Pleadings
This note will discuss the circumstances under which pleadings may be struck out, and when pleadings will close.
Pleadings: Statement of Claim
This note will discuss the meaning of statement of claim; its relationship with the writ of summons; the structure, claims or reliefs in a statement of claim and particulars to be given in a statement of claim based on the cause of action.
Pleadings: Statement of Defence
This note will discuss the meaning of statement of defence, when it must be filed, and what a defendant may do in his statement of defence.
Pleadings: Reply and Defence to Counterclaim
This note will discuss the meaning of reply, when it must be filed for service, and what may be done in a reply.
Amendment
This note will explain the meaning of amendment, its essence, the types of amendment, specific things a court may grant leave to amend, amendment of other documents and of judgements or orders (the slip rule), consequences of amending without leave when such leave is necessary, how to apply for leave to amend, how an amendment is done, and what happens if a party fails to amend a process despite being granted leave to do so.
Summary Judgement
This note will explain the meaning of summary judgement, how it differs from judgement in default of appearance and judgement in default of defence, application for summary judgment, the orders a court can make at the hearing of an application for summary judgement, when a summary judgement may be set aside, and cases in which summary judgment cannot be obtained.
Third Pary Procedure
This note will discuss the meaning of a third party, when third party proceedings may arise and how it differs from joinder, third party notice and its content, how to apply for third party notice, service of third party notice and the subsequent filing of appearance. It will go on to discuss what the defendant must do after the third party files appearance, setting aside a third party notice, and judgement between defendant and third party.
Application for Directions
After the close of pleadings, there must be an application for directions from the court. This note will discuss the purpose of an application for directions, when it must be filed, who can apply for directions, how to apply for directions, the contents of an application for directions, what the court can do upon an application for directions, some changes introduced by the High Court (Civil Procedure) (Amendment) Rules, 2014 (CI 87) and the High Court (Civil Procedure) (Amendment) Rules 2020 (C.I. 133), and the cases where there is no need to apply for directions.
Introduction to Enforcement of Judgements
This note will highlight the processes involved in enforcing a judgement or an order of the court. In doing so, the note will highlight that the first step in the enforcement of an order or a judgement is the entry of judgement, and the second step is enforcing the judgement via a writ of execution, in addition to several other means such as garnishee proceedings and charging orders.
Introduction to Probate and Administration of Estate
After a person dies with or without a will, he may leave behind property. This note is an introduction to how the property is administered or managed. The note, being introductory, will highlight the scope of this topic, the laws governing probate and administration of estates, and the meanings of common terms such as estate, testator, executor, probate, letters of administration, probate action, and intermeddling.
Applying for Probate and Letters of Administration
This note will discuss the processes involved in applying for probate or letters of administration. In doing so, the note will examine the essence of applying for probate and letters of administration, the court with the jurisdiction to entertain and grant such an application, the order of priority in granting probate or letters of administration, and how to apply for probate or letters of administration.
Powers and Duties of the Court with Jurisdiction to Grant Probate or Letters of Administration
This note will discuss some of the powers and duties of the court in relation to probate and letters of administration. The powers to be discussed are the powers to make preservation orders during the pendency of an application for grant of probate or letters of administration, order for production of testamentary papers, and order that the validity of the will be proved. The note will also highlight the court’s duty to ascertain the death of the person whose estate is being sought to be administered by a grant of probate or letters of administration.
Caveat
This note will discuss the meaning of a caveat in the context of a probate action, its effect, the fact that it is not used in challenging the validity of a will, its duration, when it may be filed, the duties it places on an applicant upon being brought to his notice, the subsequent duties it places on a caveator (the person who filed a caveat), the effect of a caveator discharging or failing to discharge those duties, and what happens after a caveator is given notice of the moving of a motion for the grant of probate or letters of administration.
Proof of Wills
This note will discuss the meaning of proof of will, circumstances under which a will ought to be proved, the effect of failing to prove a will when the circumstance arises, and how a will is proved.
Probate Action
This note will discuss the meaning of probate action, commencement of a probate action, effect of failing to enter appearance in a probate action, pleadings in probate action, effect of default of pleadings, administration pendente lite, and discontinuance of a probate action.