The Writ of Summons
Introduction:
In a previous note, we mentioned the writ of summons as one of the ways by which a civil action may be commenced.
This note discusses the writ of summons in terms of its meaning, its use as the general means of commencing civil actions, parties to a civil action commenced by a writ of summons, and factors to consider before commencing an action through a writ of summons.
Meaning of a Writ of Summons:
In his book, A Practical Guide to Civil Procedure in Ghana, Justice Marful-Sau JSC, defined a writ of summons 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.
In the Course Manual for Civil Procedure, the writ of summons is described as:
A document, which is issued by the Registry of the Court and indorsed with the signature of the Chief Justice upon the express request of the Party (Parties) seeking to commence an action. It commands the Defendant(s) to cause an entry of appearance to be filed on his/her behalf within 8 days from the date of service of the Writ.
From its content in Form 1 of the Schedule to the High Court (Civil Procedure) Rules, 2004 (C.I. 47) , a writ of summons may also be defined as a formal document by which the Chief Justice informs a person, known as a defendant, that an action has been commenced against him by a named plaintiff, and he or she is being commanded to cause an appearance to be entered for him within eight days after receiving the document.
The writ of summons, together with a statement of claim, form what is referred to as a “writ” under Order 82 Rule 3 of C.I. 47 .
Writ of Summons: General Use in Civil Actions:
There are several means of commencing civil actions. However, in Order 2 Rule 2 of C.I. 47, it is provided that:
Subject to any existing enactment to the contrary all civil proceedings shall be commenced by the filing of a writ of summons.
The effect of this provision is that generally, civil actions are commenced by a writ of summons.
Parties to a Civil Action Commenced by a Writ of Summons:
The party who commences a civil action by a writ of summons is described as the plaintiff, and the party against whom the action is commenced is described as the defendant. This is provided for in Order 2 Rule 1 of C.I. 47, which reads:
Subject to any existing enactment to the contrary, the party who commences civil proceedings shall be described as "plaintiff" and the opposing party shall be described as "defendant."
Factors to Consider Before Commencing an Action through a Writ of Summons
Before a plaintiff issues a writ of summons or causes it to be issued, he should consider the following (among others):
These are now discussed.
1. Existence of a Cause of Action:
A. Meaning of Cause of Action:
In the case of Ampratwum Manufacturing Company v. DIC [2009] SCGLR 692 , cause of action was defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
In the case of Mahama v Electoral Commission and Another [SC 4 March 2021 unreported] , the Supreme Court of Ghana defined a cause of action as follows:
A cause of action is the existence of facts which give rise to an enforceable claim or a factual situation the existence of which entitles one to obtain from the court a remedy against another. Generally, before a party issues a writ, he must have a right recognized in law, which right has been violated by the defendant.
This characterisation was cited with approval in the case of Yelipoie v Barclays Bank of Ghana Ltd. [2022] GHASC 30 (7 December 2022).
According to the Black’s Law Dictionary, 9 th ed., a cause of action is:
A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person
More extensively, a cause of action was characterised by Edwin E. Bryant in The Law of Pleading Under the Codes of Civil Procedure 170 (2d ed. 1899) as follows:
[A cause of action] may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be
To illustrate, if X agrees with Y to sell his land to Y but later sells it to Z, Y will have a cause of action because:
B. Requirement for there to be a Cause of Action before a Person Commences an Action Via a Writ of Summons:
In any civil action, the court is called upon to decide on issues of fact, law, or both. Specifically, the court must determine:
These two elements essentially make up the cause of action. Consequently, in the absence of the cause of action, there would be nothing for the court to resolve.
The requirement that there must be a cause of action before commencing an action was recognised in the case of Ampratwum Manufacturing Co. Ltd. v. Divestiture Implementation Committee [2009] SCGLR 692 as follows:
…It is fundamental in litigation that parties must commence action against relevant parties to the suit. To institute an action against a party, one must have a cause of action against the defendant.
In the case of New Patriotic Party v. National Democratic Congress and Others [1999-2000] 2 GLR 506 , the National Democratic Congress (NDC) published in the media that it intends to put the second and third defendants as candidates in the 2000 Parliamentary Elections. The plaintiff invoked the original jurisdiction of the Supreme Court, alleging that the second and third defendants were civil servants and not eligible to be members of parliament by virtue of Article 94(3)(b) of the 1992 Constitution. The plaintiff then sought a declaration that the NDC’s intention violates Article 94(3)(b) (supra) and therefore void. The majority of their lordships held that the publication merely revealed the intention of the NDC to do an act, and no concrete steps had been taken to have the second and third defendants registered as candidates. In the absence of such steps, there was no cause of action, and the writ must be struck out. Kpegah JSC, in support of the majority decision, extensively delivered himself as follows on the effect of the absence of a cause of action on the maintenance of an action:
It is trite learning, scarcely needing any express legal authority, that a writ and a statement of claim which disclose no cause of action must be set aside and declared a nullity by the court.
…
It is trite learning that a plaintiff cannot come to court unless he has a cause of action or a cause of action has accrued to him, otherwise he is out of court because the writ would have disclosed no course of action and hence, void. And a defendant, who is fortunate enough to have acquired the benefit of the writ not disclosing any cause of action and a nullity, is entitled to insist upon his rights. I have no difficulty in coming to the conclusion that since there was no cause of action in the plaintiff when he issued the writ, which I consider to be an abuse of the process of this court, the writ is a nullity and should be set aside. The court has, apart from the rules, inherent jurisdiction to prevent abuse of its process. The fact that a cause of action may have accrued later cannot, in my view, resuscitate and rehabilitate the writ.
Because these proceedings are indeed a nullity, we are powerless to help the plaintiff since no amendment can improve that which is in itself void and of no effect: see McFoy v UAC Co [1962] AC 152 PC; and Mosi v Bagyina [1963] 1 GLR 337, SC. But in the case of Dolphyne (No3) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 514 where the appeal was allowed on grounds that the trial circuit court had no jurisdiction, the appellate court however proceeded to confirm the damages awarded by the trial circuit court.
This is clearly contrary to established authority and I will not follow it since you cannot put something on nothing and expect it to stand. The fact that a cause of action might have accrued to the plaintiff after they issued their writ cannot help a writ which in law did not exist in the first case. The plaintiff took the gauntlet when none had been thrown down. This case has confirmed my belief in the correctness of my dissenting views expressed in the JH Mensah case (supra). I am therefore of the view that our enforcement jurisdiction has been properly invoked. My problem is with the writ itself, namely no cause of action had accrued to the plaintiff when it issued the writ. These are some of the reason why I voted in support of the majority decision.
2. Whether or not the Cause of Action is Statute-Barred or the Claim is res judicata?
In Ghana, the Limitation Act, 1972 (NRCD 54), makes provisions for the period within which a person may commence an action after a cause of action accrues. After the expiration of this period, an action cannot be commenced in respect of a cause of action despite its existence.
The following are common actions and their limitation period:
Further, the claims may also be res judicata. A claim is said to be res judicata if it has already been adjudicated and definitely settled by judicial decision.
3. Whether or not the Court has Jurisdiction to Entertain the Cause of Action:
As we shall see in subsequent notes on the content of a writ, the plaintiff must specify the court in which he seeks to commence his action. Under C.I. 47, this may either be a Circuit Court or the High Court. Before commencing an action, the party must satisfy itself that the court in which he intends to commence his action has the jurisdiction to entertain the action, as not all actions can be entertained by all courts. In Bimpong-Buta v. General Legal Council and Others [2003-2005] 1 GLR 738 , Akuffo JSC advanced that:
Jurisdiction is always a fundamental issue in every matter that comes before any court and, even if it is not questioned by any of the parties, it is crucial for a court to advert its mind to it to assure a valid outcome.
Thus, if the court does not have jurisdiction, the action will fail. For example, if a plaintiff commences an action in the High Court for an interpretation of a provision of the Constitution, the action will fail because it is only the Supreme Court that has the jurisdiction to entertain such actions.
4. Whether the Plaintiff has the Capacity to Commence the Action:
Closely associated with the issue of jurisdiction is the issue of capacity. or locus standi. A court may have jurisdiction, but the plaintiff may not have the capacity to institute the action. For example, if a person invokes the jurisdiction of the High Court to enforce a human right under Article 33 of the 1992 Constitution, but the right alleged to have been violated is not in relation to him, he would not have the capacity to maintain the action, and the High Court will declare jurisdiction per the case of Federation of Youth Association of Ghana (FEDYAG) v. Public Universities of Ghana and Others (2010) JELR 66438 (SC) .
Furthermore, the capacity of the plaintiff may decide whether he can commence the action in person, or must do so by a lawyer or a next of friend or guardian ad litemwho shall act by a lawyer. See Order 4 Rule 1 of C.I. 47.
In the case of Kasseke Akoto Dugbartey Sappor & 2 Ors (substituted by Atteh Sappor) v. Very Rev. Solomon Dugbartey Sappor (Substituted by Ebenezer Tekpetey Akwetey Sappor) & 4 Ors [2021] 171 GMJ 33 , the Supreme Court of Ghana advanced that:
There is no gainsaying the fact that the capacity to bring and maintain the action remains a cardinal hurdle that must be jumped if either party is to remain in the case. It is for good reason that Order 2(4) of the High Court (Civil Procedure) Rules 2004 I. C. 47 (as amended) insist on the capacity of the Plaintiff being indorsed on the writ before it becomes a competent writ … One’s ability to appear in court to make a claim hinges on whether one is recognized in law as having sufficient interest in any matter to seek a hearing on any particular issue.
5. Capacity of the Defendant:
In addition to considering his capacity, the plaintiff must also consider who the defendant is and whether or not such a defendant has the capacity. For instance, in Article 88(5) of the 1992 Constitution , it is provided that:
The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.
Consequently, if the plaintiff has a cause of action against the state and institutes it against some other person other than the Attorney General, the action may be struck out.
6. Whether or not a Writ of Summons is the Proper Means of Commencing the Action:
Although civil actions are generally commenced via a writ of summons, Order 2 Rule 2 of C.I. 47 recognises that a civil action may be commenced by some other means. In Order 65 Rule 2 of C.I. 47 , for instance, it is provided that:
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.
Thus, a plaintiff must satisfy himself that the rules do not provide that he used some means other than a writ to commence his 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 of Ghana emphasized that:
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…”
Summarily, the plaintiff must ensure that the means he adopts to commence a civil proceeding has not been excluded by the operation of some other statute or rule of court.
Conclusion:
In this note, we first defined a writ as a formal judicial document that gives notice to a defendant that an action has been commenced against him and he is being commanded to enter an appearance. Next, we highlighted that under Order 2 Rule 2, a writ of summons is the general instrument by which a civil proceeding is commenced. When a civil proceeding is commenced via a writ, the parties therein, per Order 2 Rule, are referred to as plaintiff and defendant. In addition, we discussed several factors that must be considered before commencing an action through a writ. In subsequent notes, we will discuss the contents of a writ, issuance of a writ, capacity to issue a writ, and when a writ is considered defective or a nullity, among others.
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