Introduction to Civil Procedure
Introduction:
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.
The content of this note is towards the fulfilment of the following objectives in Chapter 1 of the Manual for Civil Procedure as approved by the Ghana School of Law:
Meaning of Civil Procedure:
According to the Black’s Law Dictionary, 9 th ed., civil procedure is
The body of law usually rules enacted by the legislature or courts - governing the methods and practices used in civil litigation.
A civil litigation, or civil case, is one where one party, generally known as the plaintiff, institutes an action against another party, generally known as the defendant, to enforce, redress, or protect a private or civil right.
In Order 82 Rule 3 of the High Court Civil Procedure Rules, 2004 (CI 47) , it is provided that:
"action" means a civil proceeding commenced by writ or in such other manner as may be prescribed by these Rules or by any other enactment.
From the above, it may be said that a civil proceeding is a form of an "action" that is commenced by a writ of summons or by any other method prescribed under C.I. 47 or any other relevant enactment.
Scope of Civil Procedure:
In the course manual for civil procedure, the scope of civil procedure is provided for as follows:
The subject of Civil Procedure covers the entire ambit of the rules of Court, which regulate the commencement of civil actions and everything, which ought to be done during the pendency of the action and post judgment.
A quick glance at the course manual for civil procedure reveals that the subject will examine the rules governing:
Applicable Laws in Civil Procedure:
1. The Courts Act, 1993 (Act 459):
This is:
AN ACT to incorporate into the law relating to the courts, the provisions of chapter eleven of the Constitution; to provide for the jurisdiction of Regional Tribunals; to establish lower courts and tribunals, provide for their composition and jurisdiction; to consolidate and reenact the Courts Act, 1971 and to provide for connected purposes.
Among others, it makes provisions on the jurisdiction of the various superior courts, establishes lower courts and provides for their jurisdiction, continued various civil procedure instruments in force, and is the principal law to which various civil procedure rules in C.I. 47 are subject.
2. The High Court (Civil Procedure) Rules, 2004 (C.I. 47) and its Amendments:
In Order 1 Rule 1 Sub-Rule 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.
From the above, it may be said that the High Court (Civil Procedure) Rules, 2004 (C.I. 47) consists of rules that apply to all civil proceedings in the High Court and the Circuit Court. This makes it a primary source of law for civil procedure.
The High Court (Civil Procedure) Rules, 2004 (C.I. 47), has been amended by the High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I. 87), High Court (Civil Procedure) (Amendment) Rules, 2019 (C.I. 122) and High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I. 133), among others.
3. Court of Appeal Rules, 1997 (C.I. 19) and the Supreme Court Rules, 1996 (CI 16):
While the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provide for rules that govern civil proceedings in the High Court and Circuit Court (with the necessary modifications), the Court of Appeal Rules, 1997 (C.I. 19) govern proceedings in the Court of Appeal. Per Article 137(1) of the 1992 Constitution , the Court of Appeal has jurisdiction throughout Ghana to hear and determine appeals from a judgement, decree, or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law. Thus, after a civil action commences in the High Court and judgement is given, a party may invoke the appellate jurisdiction of the Court of Appeal, the proceedings of which will be regulated by the Court of Appeal Rules, 1997 (C.I. 19).
From the decision of the Court of Appeal, a party may also invoke the appellate jurisdiction of the Supreme Court, where the Supreme Court Rules, 1996 (CI 16) also apply. In addition, a party may invoke the original jurisdiction of the Supreme Court to interpret and enforce the constitution.
Relationship Between Civil Procedure and Substantive Law:
Law may be substantive or procedural. Law is said to be substantive if it “creates, defines, and regulates the rights, duties, and powers of parties” (Black’s Law Dictionary, 9th ed.). For instance, constitutional law is substantive law because, among others, it regulates the powers of government and guarantees the rights of individuals. Similarly, the law of contract is substantive law because it makes provisions for the rights and duties of contracting parties. Finally, criminal law is substantive law because it makes provisions on the elements that must be proved to make a person guilty of an offence.
On the other hand, law is said to be procedural or adjectival if it sets down the rules to govern legal procedures. For example, laws on issuing a writ are procedural in nature.
In light of the above explanation, it can first be said that civil procedure, as a procedural law, provides the procedure for the conduct of civil actions. In the case of Republic v. Judicial Committee of the Central Regional House of Chiefs, Ex-parte Aaba [2001-2002] SCGLR 545 , the Supreme Court of Ghana, speaking through Her Ladyship Sophia Akuffo JSC, stated that:
In its complementary character, civil procedure functions as a vehicle for the actualisation of substantive law and this role has been likened to that of “a handmaiden rather than a mistress” which must not be applied in such a hard and fast manner as to cause injustice in any particular case.
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In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all.
Also, in In Re Coles and Ravenshear [1907] 1 KB 1 at 4 , it was stated that:
Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.
Summarily, civil procedure provides a code or set of rules to enable the court to conduct its business.
By virtue of civil procedure being only a means to the actualisation of substantive law, it is also recognised that where the rules of civil procedure or the rules of court are inconsistent with the provisions of substantive law, the provisions of the substantive law shall prevail. In the case of Adjoba v. Osofo Hagar [2008-2009] 2GLR 112, it was stated that by the canons of interpretation, the rule of substantive law must prevail over or override the rule of procedural law.
Conclusion:
In this note, civil procedure was defined as those set of rules that govern the methods and practices used in civil litigation and guide the court in the administration of justice. We then highlighted Act 459, C.I. 47, C.I. 19, and C.I. 16 as the applicable law in civil procedure and discussed the relationship between civil procedure and substantive law, highlighting its complementary character and the fact that substantive law prevails over the rules of civil procedure in instances of conflict. In a subsequent note, we will extensively discuss CI 47 in terms of its purpose and application, among others.
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