The High Court (Civil Procedure) Rules, 2004 C.I. 47
Introduction:
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 their 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, policy rationale in the application and interpretation of the rules, Order 81 as a rule that fosters the actualisation of the policy rationale underpinning the application of the rules
Overview of C.I. 47:
Prior to the coming into force of C.I. 47, civil proceedings were governed by the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and several other rules. The provisions of L.N. 140A are substantially similar to the provisions of C.I. 47. This is useful because several cases that were decided using L.N. 140A can still be used to understand the provisions of C.I. 47.
Upon the coming into force of C.I. 47, Order 82 Rule 6 of C.I. revoked the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and several other rules.
C.I. 47, was made on the 1st day of June, 2004 pursuant to the powers conferred on the Rules of Court Committee by clause (4) of article 33 and clause (2) of article 157 of the 1992 Constitution .
The Rules of Court Committee is established by Article 157 of the 1992 Constitution. Per Clause 1, it consists of the Chief Justice as chairman, six members of the Judicial Council, and two lawyers, one of not less than ten years standing and the other of not more than five years standing.
In Clause 2, the committee is expressly given the power to make rules to regulate the procedure of all courts in Ghana. The clause reads:
The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.
In addition, the 1992 Constitution gives power to the committee to lay down rules to shape the enforcement of human rights under Article 33 of the 1992 Constitution. In Article 33(4) of the 1992 Constitution, it is provided that:
The Rules of Court Committee may make rules of court with respect to the practice and procedure of the Superior Courts for the purposes of this article.
Scope of Application of the Rules in C.I. 47:
Summarily, the following three things may be said on the scope of application of C.I. 47:
These are now discussed.
A. Application of the Rules to Civil Proceedings in the High Court and Circuit Court:
In Subrule 1 of Rule 1 of Order 1 of C.I. 47, it is provided that:
These Rules shall apply to all civil proceedings in the High Court and the Circuit Court, except that the application by the Circuit Court shall be with such modifications as may be necessary.
B. Application of the Rules of Other Common Law Countries to Matters not Provided for by the Rules:
In instances where C.I. 47 does not make a provision in respect of any matter of procedure,
Order 82 Rule 1 of C.I. 47 allows the court to apply the practice in any common law country. It reads:
Where in respect of any matter of procedure, no provision is made by these Rules, the practice for the time being in force in any common law country may where convenient be applied.
In the case of The Trustees Synagogue Church of All Nations v. Agyeman [2010] SCGLR 717 , the Supreme Court of Ghana, speaking on a similar provision in Rule 5 of C.I. 16, said:
It has sometimes been held in this court that where there is casus omissus [refers to a situation omitted by the law, where no provision is made] in C.1.16 the only course possible is for this court to direct under r.5 what the practice or procedure should be and until that is done, no step is warranted. Nonetheless it is always necessary to bear in mind that the legislature legislates with the existing law in view and is not deemed to alter the same except to the extent provided expressly or by very necessary implication. In this regard the established practices of the courts cannot be discounted in applying the law. Such practices by their very nature may often be reflected by communis opnio or by contemporanea expositio in the legal profession, both as to civil and criminal matters alike.
C. Retrospective Application of the Rules of Court to Actions:
It is trite law that amendments to substantive law operate progressively, not retrospectively. In the case of Shalabi and Another v. The Attorney-General [High Court, Accra] [1972] 1 GLR 259 , for instance, the court held that the proposition that the provisions of the Ghana Nationality (Amendment) Decree, 1969 (NLCD 333) could operate retrospectively was based on the monstrous doctrine of legislative omnipotence, which has been banished from Ghana.
However, it has been recognised that there can be retrospective application of procedural law. In the case of Gardner v. Lucas (1878) 3 App.Cas. 582 at p. 603, H.L. , Lord Blacburn stated that “Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.” This was cited with approval in Beng v. Nyarko and Others [1976] 1 GLR 78 , where it was added that “although there is a presumption against retrospective operation of enactments, the general rule of construction is that there are no vested rights in procedure or costs.” The effect of these holdings is that if an action is commenced and there is an amendment of any of the rules of civil procedure, the amendment will apply retrospectively to the action.
Policy Rationale in the Application and Interpretation of the Rules in C.I. 47:
A. Overriding Objective in the Application and Interpretation of the Rules:
In Subrule 2 of Rule 1 of Order 1 of C.I. 47, it is provided that:
These [Civil Procedure] Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.
Thus, in applying or interpreting the rules in C.I. 47, the court must ensure that the interpretation or application:
B. Rules that Aid the Attainment of the Overriding Objective in the Application of the Rules:
Several rules exist in C.I. 47 to foster the achievement of the objectives in Subrule 2 of Rule 1 of Order 1 (supra). On delays, for instance, in Order 4, the court may separate claims and order separate trials for those claims if it appears to the court that the joinder may delay the trial. In Order 7 , the court is given the power to order for substituted service if personal service will result in undue delay. In 11, the court is given the power to strike out pleadings on grounds that the pleading “may prejudice, embarrass, or delay the fair trial of the action.” Finally, in Order 37 Rule 2, a duty is also placed on the parties, their lawyers, and the court to “avoid all unnecessary adjournments and other delays, and to ensure that causes or matters are disposed of as speedily as the justice of the case permits.”
C. Order 81 and Promoting the Objectives in Order 1
In Order 81, a provision is made that greatly fosters the achievement of the objectives in Order 1 Rule 1 Sub-Rule 2 . The provision reads:
(1) 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 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.
(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.
By providing that failure to comply with the rules shall not automatically nullify the proceedings, Order 81 essentially:
However, Order 81 Rule 2 allows a party to apply by a motion to set aside a proceeding or the judgement of a proceeding for irregularity or failure to comply with the rules.
The Supreme Court of Ghana has had the opportunity to interpret and define the application and effect of Order 81. In the case of Republic v. High Court, Koforidua (Ex Parte Ansa Otu) [2009] GHASC 19 (11 February 2009) , for instance, the Supreme Court of Ghana noted that:
Indeed, the provisions in Order 81 of the High Court (Civil Procedure) Rules, 2004 (CI 47), are not new in our rules of court procedure for they had existed as Order 70 under the High Court (Civil Procedure) Rules, 1954 (LN 140A). Both rules provide in clear terms that non-compliance with the rules do not render the proceedings null and void but is a mere irregularity, a voidable but not a void act which may be set aside on terms. [Emphasis is ours]
Also, in the case of Boakye v. Tutuyehene [2007-2008] SCGLR 970 , the Supreme Court again stated that:
Further, 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.
D. When Order 81 Will Not Apply:
In the case of The Republic v. The High Court and Amalgamated Bank Limited Ex Parte: Allgate Company Ltd Civil Motion No. J5/22/2008, the Supreme Court of Ghana extensively discussed Order 81 and distinguished non-compliance, which can be saved by the invocation of Order 81, from non-compliance, which cannot be saved by the invocation of Order 81. Summarily, the following non-compliance cannot be saved by the invocation of Order 81:
E. When the Courts will not Interpret the Rules Liberally:
It is essential to note, however, that despite the provision in Order 1 Rule 1(2), the courts will also not interpret and apply a rule in such a manner that amounts to abuse of the rules of court or that will result in injustice. In the case of The Trust Bank v. G.K. Appiah and Sons Ltd. [2011] GHASC 21 (20 April 2011) , the appellant had earlier instituted an action against the respondents in the High Court to recover and debt, and judgement was given in its favour. However, it applied for a discontinuation of the suit (after the judgement was given) under Order 17 Rule 2. It then instituted a fresh action against the respondents, and res judicata was pleaded. In the Supreme Court, their lordships noted that under Order 17 Rule 2, the stages at which an action can be discontinued are before, during, or after the hearing, and not after judgement has been given. In light of this, their lordships held that:
Rules of court which regulate the conduct of legal proceedings must be construed strictly to give full effect to the rules. The language of order 17 Rule (2) cannot be strained to include after judgment or execution. The undisputed facts support the appellate court’s view that having regard to the summary judgment, the rights of the parties have been firmly and finally determined and no action exists for discontinuance.
Thus, although Order 1 Rule 1 Sub-Rule 2 enjoins the court to interpret and apply the rules of court to ensure speedy and effective trial, the court will not stretch the language of a rule of court if doing so will amount to abuse and injustice. The court will rather construe the rules strictly to give effect to the rules.
Conclusion:
This note discussed the application of the rules of civil procedure as contained in C.I. 47. The note points out that the rules in C.I. 47 are applicable to civil proceedings in the High Court and Circuit Court, and are applied in such a manner to promote speedy trial, avoid delays, expenses, and multiplicity of suits. To achieve these objectives, the note extensively discussed Order 81, emphasizing that non-compliance with procedural rules does not automatically nullify proceedings unless such non-compliance violates a statute, pertains to jurisdiction, or breaches the rules of natural justice. Additionally, the note underscored that, unlike substantive law—which typically operates prospectively—civil procedure rules can be applied retrospectively.
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