COMMENCEMENT OF CIVIL ACTION

Question 1

HOW TO COMMENCE AN ACTION

Answer 1

Order 2 r2- Civil action shall be commenced by a writ of summons except where an enactment provides otherwise – other modes
o petition (order 65 r2),
o originating motion on notice (order 19 r1(2)).
o Judicial Review (Order 55,56),
o probate and Administration (O66), Fundamental Human Rights (O67 r2)- CHRAJ v. E.P. Church [2001-02] 1GLR 356

Question 2

Setting aside proceedings on grounds of incorrect originating process.

Answer 2

Order 81 Oyston v. Blaker(1996)
O’Reilly v. Mackman (1982)
Re Pritchard (1963).

Question 3

WRIT OF SUMMONS

Order 82 r3

Answer 3

writ includes writ of summons and statement of claim or a petition in action – is a form of giving notice to the defendants of the claim being brought

It could be defined as a formal judicial form filed by a plaintiff and issued out of the registry of a court giving notice to a defendant of a claim made against him or her and commanding the defendant to enter appearance within eight days.

Question 4

Contents of a writ (Form1)

Order 2 r3

Answer 4

Order 2 r3 - Contents of a writ (Form1)

• Name of court
• Names, residential, occupational address of parties - (where several plaintiffs/ defendants all names should appear on the face of the writ if not person can only become a party through an application for joinder)- address essential for service. Where def. address unknown, P shall endorse writ with ‘Plaintiff Will Direct Service’
• Where party acting through Lawyer, name business address of the lawyer shall be endorsed on the writ and writ must be signed by the Lawyer if party acting through Lawyer if not, null and void. Lawyer must indicate Solicitor’s Licence Number- Republic v. High Ct (Fast Track Division) ex parte Justin Pwarva Teriwajah
• Must state nature of claim, be a substantive claim and relief or remedy sought against the defendant- cannot issue writ for ancillary relief or an interlocutory injunction only. Rep. v. H.Ct, Tema Ex parte Owners of MV Essco Spirit
• Where P claim is liquidated must state that action will be stayed if within time for appearance def pays the amount claimed.

Question 5

Order4 – who may issue a writ?

Answer 5

Any person who has a lawful claim either in person or through a lawyer
Order 4 r1(2) a body corporate can only commence an action through a Lawyer, unless an enactment provides otherwise.
Order 4 r1(3) next friend or guardian ad litem of a person with a disability (defined by O5 r 1- person under 18 or medically certified as mentally disable) shall act through a Lawyer.

Question 6

Indorsement as to capacity (Order 2 r 4)

Answer 6

P must endorse the capacity in which he or she is suing where representative action or class action not personal, e.g. Head of Family, Administrator or Executor – Rep. v. H.Ct Accra ex parte Aryeetey (Ankara Interested Party) 
Order 2 r4(2) requires P where acting on an order or on behalf of person resident outside Ghana to endorse the writ with a statement of that fact and the foreign address of the person so resident. National Investment Bank and others v. Standard Bank Offshore Trust Company Ltd. & others 
C/o Hydrofoam Estates Ghana Ltd. v. Owusu (per lawful attorney) Okine and Others

Question 7

How to issue a writ

Answer 7

O2 r 7(5) P can only serve a notice of Writ outside the jurisdiction with leave of the court – seeking leave of the court before issuing notice of the writ outside the jurisdiction is a condition precedent that must be complied with. If leave is not sought by P before issuing the writ, an objection should be taken promptly, if not and a fresh step is taken after service of the defective writ, the default becomes an irregularity and not a nullity. Friesland foods B.V v. Dachel Co. Ltd

Question 8

Concurrent writ

Answer 8

Concurrent writ – issued before the expiration of the original writ issued. It is a true copy of the original writ with such difference as required and shall be sealed with ‘Concurrent’ 
O2 r8(2)- writ of service within the jurisdiction can be issued as a concurrent writ with a writ, notice to be served outside the Jurisdiction. Lokko v. Lokko [1991]

Question 9

Duration of Writ

Answer 9

Writ valid for service for 12 months – if not served within 12 months may be renewed from time to time by the court for a period not exceeding 12 months.
This can be done by application and supported by an affidavit. Showing all the circumstances relied on and the date the original writ was issued, date of last renewal where previously renewed and why the writ has not been served. Trow v. Ind Coope
Concurrent writ valid for the same period as the original writ.

Question 10

MODE OF SERVICE

Answer 10

Certain documents or processes must be served personally not lawyers Republic v. H. Ct Koforidua, ex parte Osae- Akonor – legitimate time to effect personal service is between 6 am and 6pm
O7r5 – how court processes and documents should be served on individuals and entities.

Question 11

Mode of service Body Corporate and Partnerships

Answer 11

Body corporate – served on Chairman, President or other head as well as MD, Comp. Secretary and Treasurer. Barclays Bank Gh. Ltd. v. Ghana cables Co. Ltd [1998 – 99]. Ghana Commercial Bank v. Tabury [1977]
Partnership – any one of the partners or any person in control or management o partnership.

Question 12

Mode of Service - Family under customary law and stool or skin

Answer 12

Stool or Skin – occupant, clerk, linguist or regent care taker where stool vacant.
Family under Customary Law – Head of Family, caretaker or principal family member.

Question 13

Mode of Service Cont’d

Answer 13

Person in Prison – person in charge, or warden guard or similar officer
Ministers of State or Heads-of Dept. – Administrative Head- e.g. Chief Director of the Ministry.
Members of security agencies-Commanding Officer in charge
Members of Parliament- Art. 117 no process shall be served on MP on the premises of Parliament, coming from or going to Parliament.
i) Judges and Magistrates- on the judicial secretary of the Judicial Service
j) Persons under disability- O5 r9 parent/ guardian of disabled persons

Question 14

Substituted Service Or 7r6

Answer 14

Personal service dispensed with because 3 more attempts have been made and personal service considered impractical or cause undue delay.
Application for substituted service is made ex parte supported by an affidavit.

Question 15

Modes of Substituted Service

Answer 15

• Through an agent
• Registered post at the address specified in affidavit supporting the application
• Posting the writ on the notice board of the court where the person resides, or any public place in the region where cause or matter is commenced.
• Leaving a notice at the usual known or last known place of residence or business of the person to be served
  Advertising in the media within the jurisdiction.
• O7 r13 ex parte application can be made to the ct for an order to serve writ on Agent of principal; where principal resides out of the jurisdiction has entered into a contract in Ghana with or through an agent who is resident in Ghana. After serving agent, writ is the sent to principal by registered post.
• O7 r 15 where immovable property and no one appears to be in possession service can be effected by posting or affixing copy on conspicuous part of property.

Question 16

COMPUTATION OF TIME

Answer 16

Time for performing an act after service runs on the date service is effected
Postal service – service is effected 21 days after the day of posting

Question 17

SERVICE OUTSIDE JURISDICTION Order 8

Answer 17

Notice of a writ May be served outside the jurisdiction with the leave of the court.
Order 8 r3 provides the grounds to be considered for notice of a writ to be served outside the jurisdiction. (Form 3). Application for leave is by motion exparte supported by an affidavit Showing the case is one for which the rules allow for service outside the jurisdiction and indicate Service outside, a good cause of action.

Question 18

SERVICE OUTSIDE JURISDICTION cont’d

Answer 18

Service of notice of the writ of summons that conform with the laws of the country where service is intended to take place- where civil Procedure Convention between the foreign country and Gh then notice served through Judicial Authorities through the Ghana Consulate in that country.
Where no convention through government of that country/ Ghana Consulate.

Question 19

SERVICE OUTSIDE JURISDICTION cont’d

Answer 19

O8 r8 notice should be forwarded to Minister of Foreign Affairs with a request that the Minister arranged for the notice to be served as per the order of the court.
An official certificate from the foreign government or judicial authority or by Ghana Consulate stating that the document has been duly served shall suffice as evidence of service.
Bawa v. Oyegoke [1977] – a person outside the jurisdiction cannot be served through substituted service.

Question 20

Service through airmail – O8 r11

Answer 20

Ct may order service of the notice of the writ or any other ct document through airmail such as DHL etc
(electronic service has not been authoritatively ordered yet by virtue of the Electronic Transactions Act, 2008 Act 772, it ought to be declared valid.)

Question 21

SETTING ASIDE A WRIT / SERVICE OF THE WRIT

Answer 21

Writ of summons may be set aside if it’s defective under the following circumstances:
P has no capacity
Writ is filed in a Court that has no jurisdiction
Writ discloses no cause of action
Writ is not accompanied by the statement of claim as required by the rules
Legal condition precedent to issuing a writ not complied with (ie, Cause of action has not accrued)
An expired writ is served
Where a writ of summons that is not defective but wrongly served, the defendant or person named on the writ May apply to set aside the service.
The Ct in those circumstances may redirect or order the proper service of the writ.

Question 22

SETTING ASIDE WRIT (SAW) /SETTING ASIDE SERVICE OF WRIT

Answer 22

A. Where plaintiff has no CAPACITY
B. Where court has no JURISDICTION
C. Where legal conditions PRECEDENT the issuing of a writ are not complied with
D. Writ discloses no CAUSE OF ACTION
E. Where EXPIRED writ is served
F. Where write is not accompanied by the STATEMENT OF CLAIM

Question 23

MNEMONIC FOR SETTING ASIDE WRIT or SERVICE OF WRIT

Answer 23

Can Josh Play Chess Every Sunday
C - Capacity
J - Jurisdiction
P - Legal Condition PRECEDENT
C- No COA disclosed
E - Expired writ served
S - No SOC

Question 24

DIFFERENCE BETWEEN SETTING ASIDE WRIT AND SETTING ASIDE SERVICE OF WRIT

Answer 24

Where a Writ of Summons which is not defective is wrongfully served, the D or person named in the writ may apply to Set Aside Service of the writ - and not to set aside the writ. Not fatal because the court can order or redirect proper service