THE LEGAL SYSTEM, LITIGATION AND DISPUTE RESOLUTION

a. The Legal System

Sources of Law: Ghana's legal system is based, primarily, on the Constitution, which provides that the sources of Ghana law are (i) the Constitution, (ii) statutes, (iii) orders, rules and regulations made by power conferred by the Constitution, (iv) the "existing law" (i.e. written and unwritten laws of Ghana existing immediately before the coming into force of the Constitution), and (v) the "common law" (i.e. the rules of common law, the doctrines of equity and customary law – rules of law applicable by custom to particular communities in Ghana.)

Hierarchy of Courts: The Constitution guarantees the independence of the Judiciary. The Court hierarchy consists of the superior courts of judicature, which is constituted by the Supreme Court, the Court of Appeal, and the High Court and Regional Tribunals. There are also Circuit Courts and District Courts which constitute the inferior courts.

The Supreme Court is the highest court in the realm. The Court has Original Jurisdiction with respect to matters relating to the enforcement or interpretation of the Constitution, and in matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution. If any matter of constitutional interpretation arises before any other court, that court is required to stay its proceedings and refer the matter to the Supreme Court. It is the final court of appeal and in the exercise of its Appellate Jurisdiction, appeals lie to it from the Court of Appeal and the Judicial Committee of the National House of Chiefs. It also exercises Supervisory Jurisdiction over all other courts and adjudicating authorities and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory power.

The Court of Appeal is the second highest court. The Court has only Appellate Jurisdiction with respect to judgments, decrees or orders of the High Court and Regional Tribunals and such other appellate jurisdiction conferred by the Constitution or any other law.

The High Court has Original Jurisdiction in all matters. It has Appellate Jurisdiction in judgments of the Circuit Courts in criminal matters, and in judgments of the District Courts. It also has jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by the Constitution, and any other jurisdiction conferred by the Constitution, or any other statute. It has Supervisory Jurisdiction over the lower courts and lower adjudicating authorities, and may issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers. The High Court has many Divisions including Commercial, Fast Track, Land, Industrial and Human Rights.

The Regional Tribunals have concurrent Original Jurisdiction with the High Court in criminal matters, particularly offences involving serious economic fraud, loss of State funds or property, tax and customs duty offences, and narcotic offences.

The respective jurisdictions of the Circuit Courts and District Courts are specifically set out by statute.


b. Litigation

Commencement of Actions: Majority of all civil proceedings must be commenced by the filing of a Writ of Summons, which is a formal document by which the Chief Justice informs a defendant that an action has been commenced against that defendant by the named plaintiff, and then commands the defendant to "cause an appearance to be entered" within eight days if the defendant wishes to dispute the plaintiff's claim; otherwise judgment may be given without further notice to him.

There are 2 other specialised processes recognised by the law, for commencing civil proceedings, namely by an Originating Notice of Motion and by a Petition. An Originating Notice of Motion is used where a statute provides for the making of an application to the court, but does not provide for the manner in which it is to be made or there are no rules of Court governing the procedure. This process is used in matters such as applications under the Companies Act, and judicial review and habeas corpus applications. Petitions are written applications, in the nature of a pleading, setting out a party's case in detail and made in open court. There are no prescribed forms which a petition should follow, but the form is in fact well settled by long usage. Petitions are used in matters such as the official/compulsory winding up of companies, matrimonial causes and election challenges.

Pleadings: A plaintiff must file and serve the Writ of Summons with a Statement of Claim, which will contain formal allegations of the claim and must state specifically the relief or remedy which the plaintiff claims. A defendant, who is served with a Writ and Statement of Claim, must file a Notice of Appearance within 8 days, and a Statement of Defence within 14 days after the period limited for appearance. A plaintiff who, upon being served with a Statement of Defence, needs to set up some affirmative case in answer to the facts alleged by the defendant, must file a Reply within 7 days of being served.

A defendant who has a valid cause of action against a plaintiff, does not need to bring a separate action, but can make a 'counterclaim' against the plaintiff in respect of that matter. The Counterclaim need not relate to or be in any way connected with the plaintiff's claim, or arise from the same transaction. It must however be of a nature that can be conveniently tried by the same court and at the same time as the plaintiff's claim. A defendant who seeks to make a counterclaim must not file a separate process; it must be added to the Statement of Defence and titled "Statement of Defence and Counterclaim."

A plaintiff on whom a Counterclaim is served, and who desires to oppose that action, is required to file a "Defence to the Counterclaim" within 14 days of service. If he desires to serve both a Reply and Defence to Counterclaim, he must not file two separate processes; he should include them in the same document and title it "Reply and Defence to Counterclaim."

Pleadings close 7 days after the Reply is served, although a party may, with leave of the court, file further pleadings called Rejoinders, Surrejoinders, Rebutters and Surrebutters. These are rarely encountered.

Summary Judgment: If a plaintiff can show that there is no answer to his case, he will be entitled to obtain judgment on his claim or part thereof summarily, i.e. without having to go through a full trial, particularly where the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried. The summary judgment procedure provides for early judgment in cases where the defendant (or defendant to counterclaim) has no hope of success and any defence raised will merely have the effect of delaying judgment. It enables the court to grant summary judgment at an interlocutory stage without the delay and expense of a full trial if it is shown that no trial is necessary.

Pre-Trial Mediation: Where the action is commenced in the Commercial Division of the High Court, the parties will be required to submit to a 30-day compulsory mediation of the dispute (called "the pre-trial conference") at the close of pleadings. This is conducted by a judge of the court. The matter will only proceed to trial if the mediation fails.

Discoveries: Upon the close of pleadings, there will be automatic and mutual discovery of documents, i.e. parties are required to exchange lists or/of documents between themselves without the necessity of appearing before the court. Unless dispensed with by the order of the court or by the agreement of the parties, the automatic and mutual discovery must take place within 14 days after the close of pleadings. Parties may also apply to the court for specific orders of discovery permitted under the rules of court.

Interrogatories: In addition to discovery of documents parties may require discovery of facts. The party must apply to the court for leave to serve interrogatories on the other party. An interrogatory will only be ordered if it relates to a matter in question between the parties concerned, and it is necessary either for disposing fairly of the case or matter or far saving costs.
Directions: In majority of actions, after pleadings have closed and discovery has taken place, the matter will, pursuant to an Application for Directions, proceed to the directions stage, which affords the court an opportunity to look back and take stock of the issues, and ensure that the pleadings are in order and that the case is fit for trial. It is also the stage at which the court looks forward, sets down the issues for trial and considers the manner that evidence should be presented, with the aim of to shortening the length of the trial and saving costs.

Trial: In a civil trial, witnesses are examined viva voce and in open court (unless the court decides to hold the trial in camera). Witnesses will be subject to cross-examination by the opposing lawyer. A witness may be re-examined but merely to give the witness an opportunity of explaining any seeming inconsistency in answers and of stating the whole truth as to any matter which was touched on, but not fully dealt with in cross-examination. The judge has the power to call and examine a witness who has not been called by either party. The parties may cross-examine such a witness with the leave of the court, which will always be granted, particularly where the evidence is adverse to either party.

Judgment: At the end of the trial, the lawyers are usually required to file written submissions (addresses). The court will then deliver its judgment on the respective rights and claims of the parties to the action. The rules impose a duty on the court to deliver judgment as soon as possible after the close of the case (i.e. when the evidence and final addresses have been concluded), and in any event not later than six weeks thereafter. Where for some reason the judgment delays beyond six weeks, the court is required to immediately inform the Chief Justice in writing of that fact, stating reasons for the delay and the proposed date for its delivery. Any party to the action may also notify the Chief Justice of that fact and request that a date be fixed to deliver the delayed judgment; and the Chief Justice may fix the date and notify the court, which will then be bound to ensure that the judgment is delivered on that date. When a judgment is delivered, the party in whose favour it is made is required to draw it up and file it at the court registry. The other party affected by the judgment/order may draw and file it, if the winning party fails enter the judgment within 7 days.

Enforcement/Execution: Money judgments may be enforced by Writs of fieri facias (fi.fa.), Garnishee proceedings, Charging Orders over land or securities, the appointment of a Receiver and/or Writs of Sequestration. These are not alternative, but cumulative remedies. Such judgments may also be enforced by commencing insolvency proceedings against the individual or winding up proceedings against the debtor company. Judgments for the possession of immovable property are enforced by Writs of Possession, Writs of Sequestration and/or Committal Orders. Judgments in Detinue, which do not provide a losing party with the option of paying the assessed value(s) are enforced by Writs of Specific Delivery, Writs of Sequestration and/or committal orders, as the case may be. However, where the judgment contains the option of paying the assessed value of the goods, it is enforced by a Writ of Delivery, Writ of Specific Delivery (with leave of the court) and/or a Writ of Sequestration. Injunctive Orders or judgments/orders that require a person to do or abstain from doing any act, are enforced by a Writ of Sequestration against the property of the person or against the property of the directors/officers of a defaulting corporate body, of committal proceedings.

Enforcement against the State: A victorious party in an action against the state, is not permitted to enforce the judgment by the process stated above, until it has obtained from the court and served a Certificate of Particulars of the judgment/order on the Accountant-General (if it contains an order for the payment of money) and on the Attorney-General. It is only if, upon serving the Certificate of Particulars, the State does not comply with the terms of the judgment, that the judgment/order is permitted to be enforced in the same manner as any order made in an action between private persons.

Enforcement of Foreign Judgments and Maintenance Orders: Where such a judgment/order is obtained from the specified court of a country with which Ghana has reciprocity of enforcement, it is enforced by the High Court after registering it with the court. Registration makes the judgment enforceable as if it were a Ghanaian judgment. If the judgment/order is from a court in a country with which there is no reciprocity, an action upon that foreign judgment/order may be instituted as simple debt proceedings, but then it is subject to any defence that can be raised.

c. Arbitration

On 31st May 2010 Ghana passed the Alternative Dispute Resolution Act, 2010 (Act 798) which repealed and replaced the 1961 Arbitration Act. The new Act regulates the conduct of arbitration and mediation proceedings in Ghana. The Act is expressed not to be applicable to matters raising environmental and constitutional issues or involving the national or public interest. In the main, this Act enacts UNCITRAL into law in Ghana.

The Act establishes the Alternative Dispute Resolution Centre to facilitate arbitration and provides that parties under an arbitration agreement may refer potential disputes to the Centre. An arbitration award made pursuant to an arbitration agreement is enforceable in the same manner as a judgment or order of the Court. Foreign arbitral awards are also enforceable in Ghana if the High Court is satisfied that:

  1. the award was made by a competent authority under the laws of the country in which the award was made;
  2. a reciprocal arrangement exists between Ghana and the country in which the award was made or the award was made under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or under any other international convention on arbitration ratified by Parliament;
  3. the party that seeks to enforce the award has produced the original award and the agreement pursuant to which the award was made (or duly authenticated copies); and
  4. there is no appeal pending against the award in any court under the law applicable to the arbitration.
Mediation: A party to any agreement may, with the consent of the other party, submit any dispute arising out of that agreement to mediation by an institution or a person that the parties agreed on. A reference to mediation operates as a stay of proceedings of a court action relating to the same dispute. Where the parties agree that a settlement arrived at from the mediation will be binding, the settlement agreement has the same effect as if it was an arbitral award. Any settlement reached by the parties with assistance of the mediators may be filed in court and then the settlement agreement can be enforced as a court judgment.

Customary Arbitration: The Act gives recognition to customary arbitration and provides that parties to a dispute may submit to customary arbitration. There is a specific provision that requires the customary arbitrator to apply the rules of natural justice to settle the dispute. An award made at the end of a customary arbitration need not be in writing, but is nevertheless binding between the parties and persons claiming through and under them. The award need not be registered in a court to be binding, although it may, for the purpose of record and enforcement, be registered at the nearest District Court, Circuit Court or High Court.

Court-Supervised Arbitration: The provisions of the Act are applicable to parties to an arbitration agreement. However, the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides that if parties to a pending action before the court desire that the matter be referred to arbitration, either or both parties may apply to the court to make an order of reference. The parties would then be required to agree on an arbitrator to be appointed, and provides for the circumstances under which the court will make the appointment. The court may also fix a time for the delivery of the award.

The rules reserve to the court the power to compel the attendance of witnesses at the arbitration and extend the time for the arbitrator to make the award, and the circumstances under which the court may appoint a new arbitrator in replacement, modify or correct an award or remit an award for reconsideration by the arbitrator. An award may only be set aside on grounds of perverseness or the misconduct of the arbitrator. So long as it is not modified or remitted for reconsideration, an arbitration award is final and binding as between the parties and any person claiming through or under them. When the award is filed in court it shall be incorporated in a court order and shall have the full force and effect as a court judgment.



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©Bentsi-Enchill, Letsa & Ankomah 2011. All rights reserved, and all moral rights are asserted and reserved.
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