Preliminary Matters Flashcards
Underlying Objectives of CI 47
Order 1 r (2):
- To achieve speedy and effective adjudication of cases.
- Avoid delays and unnecessary expenses.
- Ensure complete, effective and final determination of disputes and;
- Avoid multiplicity of suits.
Order 81: Effect of non-compliance with rules
Order 81 in its application more or less, provides a cover or security for parties to fall on to cure defect and to proceed with the matter to ensure that the action is not defeated by the non-compliance of the rules.
Note that the decisions of the S.C. show that where the alleged defect or default is against a statute, the rules of natural justice or one that goes to jurisdiction, then such non-compliance can’t be saved under Order 81.
See, Republic v. High Court, Koforidua, Ex Parte Ansa Otu
Order 81: Non compliance
- Non -compliance with the rules does not nullify proceedings as long as it:
o Is not fundamental-goes to the root of the matter and affects jurisdiction,
o does not violate or is in breach of a statute (order 81 subsidiary to statute),
o does not violate natural justice(failure to serve proper notice)– then such non-compliance cannot be saved.
Case Law on Order 81
Republic v High Court, Koforidua, Ex parte Ansa Otu [2009] SCGLR 141
• Ex parte Ansa Otu [2009] SCGLR 141— Order 81, Rule 2(2)– The Court may, on the grounds that there has been such a failure as stated in sub-rule (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, and 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.” And as further stated by rule 2(2) of Order 81 of CI 47, the party affected by the noncompliance with the rules of court, may apply to the trial court to set aside the proceedings for irregularity, provided an application was made timeously and without taking any fresh step in the matter after knowledge of the irregularity.
Case Law
Republic v High Court, Accra; Ex parte Commission on Human Rights and Administrative Justice (Addo Interested Party) [2003-2004) 1 SCGLR 312—
where the High Court (or for that matter the Court of Appeal) makes a non-jurisdictional error of law which is not patent on the face of the record…, the venue for redress open to an aggrieved party is an appeal, not judicial review. In this regard, the error of law made by the High Court or the Court of Appeal is not to be regarded as taking the judge outside the court’s jurisdiction, unless the court has acted ultra vires the Constitution or an express statutory restriction validly imposed on it
Republic v High Court; Ex parte Eastwood [1995-96] 1 GLR 689 at 698—
If therefore there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong assumption of jurisdiction or the error is so obvious as to make the decision a nullity
What is Civil Procedure?
Civil Procedure is regulated by C.I. 47, 19, 16 and 57
It is how people litigate in civil actions. The substantive law comes to life and it helps you to identify the subject matter of the dispute and nature of reliefs sought.
What are Civil Proceedings?
Or 82r3 defines an action as a civil proceeding initiated with a writ of summons or such other manner as may be prescribed by the rules or other enactments.
Civil actions is where a private citizen, family or corporate body brings an action to court to seek redress for a wrong. The conduct of such a case brought to court by private individuals or corporate bodies is regulated by rules i.e. Civil Procedure Rules to ensure fair trial of the case.
What are Civil Procedure Rules?
They are a body of rules that are formulated to regulate the conduct of civil actions in court.
- The set of of rules that guide the courts and parties(litigants) in the conduct of civil proceedings in the court.
Sources of Civil Procedure Rules
- The Constitution
- Statutes creating the courts, e.g. Courts Act, Act 459
- Rules of Court i.e. CI 47, CI 19 etc.
- Practice Direction
What are Practice Directions?
These are a body of guidelines given by the Superior Courts intended to direct the courts and lawyers on matters of practice and procedure.
It sometimes shows how a particular rule of court should be observed or complied with. It also shows how a particular proceeding should be conducted.
e.g. practice direction on taking evidence in locus in quo as in the case of Gblevi Family v. Amanie
