Introduction to the Commencement of Civil Actions

Introduction:

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.

Ways by Which a Civil Action May Be Commenced

1. A Writ of Summons:

In Order 82 Rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 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;

A similar provision is made in Order 2 Rule 2 of C.I. 47 , which reads:

Subject to any existing enactment to the contrary all civil proceedings shall be commenced by the filing of a writ of summons.

These provisions reveal that a civil action is generally commenced by a writ; However, they make room for the commencement of civil actions in some other ways than through a writ of summons.

2. A Petition:

In Order 65 Rule 2 of C.I. 47, it is provided that certain proceedings shall commence by petition and not by a writ. The rule reads:

All proceedings for divorce, nullity, presumption of death and dissolution of Marriage, maintenance orders and child custody orders under the Act, shall commence by petition.

3. Originating Motion on Notice:

These are often used in cases where there is no need to initiate a full trial but judicial determination is still required. Here, proceedings are dealt with expeditiously, as pleadings are not filed and witnesses are not called. In the case of Awuni v. West African Examinations Council (2003 – 2004) SC GLR 471 , for instance, the appellant initiated an action in the Fast Track High Court through an originating notice of motion seeking a declaration that the decision of WAEC to cancel the results of the appellant was unlawful. The Supreme Court, speaking through Kpegah JSC, explained that:

The procedure of originating notice of motion adopted by the appellants might not only be to avoid the constraints of time fortuitously imposed on them by the rules of court if they had brought an application for a writ of certiorari, but also as a simple, convenient and pragmatic means of vindicating their rights.

Under Section 40 of the Alternative Dispute Resolution Act 2010 (Act 798), for instance, civil proceedings can be commenced in High Court by an originating motion on notice for the court to determine questions of law that arise in the course of arbitral proceedings.

Effect of Commencing a Civil Action through the Wrong Procedure and Effect of No Provision of Means of Commencing an Action:

In the case of Republic v Central Regional House of Chiefs & Others; Ex Parte Gyan Ix (Andoh X Interested Party) [2013- 2014] 2 SCGLR 845, the Supreme Court said:

It is trite law that where a statute such as Act 370 provides a remedy for a wrong and provides a procedure for achieving same it is only by the procedure provided that and a party may approach the court failing which the action is bound to fail. This position is aptly captured by my able and respected brother, Gbadegbe, JSC in Ahinakwa II (Substituted by) Ayikai vs Odjidja III & Ors (2011) 1 SCGLR 205 at 208 thus: “Where the rules of court prescribe a particular mode of seeking relief, the failure to initiate proceedings for relief in accordance with the prescribed mode, is not only an irregularity but raises an issue that goes to jurisdiction…” It is different if a statute provides a remedy but does not prescribe a means by which the remedy would be attained wherefore a party may approach a court by any of the known procedures for approaching the court.

Summarily, if a statute provides for a particular means of commencing an action and a party uses another means, the action will fail. However, if a statute provides a remedy but does not provide a particular means of commencing an action by which he seeks the remedy, the party may commence the action by any of the above means of commencing an action.

Conclusion:

This note was merely meant to highlight the various ways of commencing civil proceedings. These ways will be discussed extensively in subsequent notes.