Law & Taxation • Publications
Understanding the Ghanaian Legal System
How the courts work...
This write up is a continuation of our series on the Ghanaian legal system. In the last edition, we had an overview of the Ghanaian legal system, a bit of its nature, the court structure and relationships as well as the acceptance of alternative dispute resolution mechanisms.
We have found it necessary to do this series because we have found that a lot of foreign investors get frustrated at the workings of the legal system largely for two reasons. Firstly, they find that the systems in their home countries are more efficient and they expect such efficiency in Ghana, which is not always the case. Secondly , some foreigners are from Civil law jurisdictions or some other jurisdictions that are not like the common law system we operate in Ghana.
We will first want to look at the various stages a case will go through at the High Court (where most cases of high value commercial and investment nature would go) and then look at other processes or application that may be applied as well as some causes of delay.
Generally, cases are commenced by causing a Writ of Summons to be issued and this is filed together with a Statement of Claim which briefly highlights the the case of the Plaintiff(s)(the one making the claim) stating the major issues for which reason they are approaching the court, the issues of contention and the things they will like to prove or lead evidence on. When this is filed, the Defendant(s) ( those sued and having to defend themselves in the suit) are served and have 8 days to enter appearance. Entering appearance by the Defendant is simply saying they have received the Writ of Summons and Statement of Claim and that they are ready to defend themselves. After the 8 days within which they are to enter appearance, they have 14 days within which to file a Defence to the matter. When the Plaintiffs receive the defence, they may decide depending on what is in the defence to file a reply within 7 days after receiving the defence. At this point pleadings are said to have closed.
Where the matter is a commercial matter, the rules make provision for a pre-trial settlement conference where mediation is held for the parties to try to settle the matter as a fast-track route. If it succeeds, the terms of settlement are adopted as the judgment of the court and the matter ends. However, if no amicable settlement is reached, then the matter will follow the normal processes after the pleadings have closed.
When pleadings close, the Plaintiff has 30 days within which to file an application for direction, which will contain the issues they think are necessary for determination at the trial and then also for the court to direct when and how the parties involved should file their respective witness statements (written testimonies of the witnesses, hitherto was done orally in the dock). The filing of witness statements were introduced to cut the time and drama related with leading oral testimonies in court. The Defendants also have the right to file additional issues to those filed by the Plaintiffs in the application for direction and the court will finally streamline the issues that will guide the upcoming trial.
At this stage, the parties are expected to abide by the timelines given by the courts to file the witness statements of all the witnesses they each intend to rely on in proving their case. The courts would normally either ask all parties to file simultaneously on the same day or will give dates on which each party should file its witness statement. When these are done on time, the court would normally have given a date for a case management conference at which the court will ensure all parties have filed their respective witness statements and exhibits and that all parties have received those of the other party including the court. When all this is set, dates for the trial are given, mainly to admit the witness statement and exhibits/evidence as filed and to cross-examine the witnesses as to their credibility, consistency of their story, the authenticity, credibility and weight of the evidence filed and also to push the preferred narrative of the witness in the box. All of these are done in the presence of the judge who will weigh the evidence so adduced, the conduct of the witnesses and the strength of each parties’ case and would decide on the preponderance of probability, simply to say whose story sounds truer given the facts and evidence. This is the standard used in civil cases unlike the beyond reasonable doubt standard used in criminal matters.
When the trial is done, the court will normally give a date for judgement and that ends the matter.
The process and timeline I have just outlined is a very simplistic one which would have made litigation very fast a process. Unfortunately, reality rather paints a picture of a longer process at times, unduly. Without going into details of the many things that delay or lengthen the litigation process, we will mention some of them just to give an idea of the reasons why litigation cases take longer than expected at times complicated.
Right from the initiation of the process, it is sometimes difficult to serve the listed Defendant(s) as such at least 3 attempts will have to be made at serving them and if that fails, the Plaintiff will have to file an application to serve them by substituted service. The date on which this application will be heard will normally be subject to the diary of the court and at times it could be later than sooner. Also, whenever the Defendant(s) are served with the Writ of Summons and Statement of Claim, the Defendant may decide to file a conditional appearance and may challenge the writ or the service of it. This is also another application which will be heard at the convenience of the court and at times a further date given for the ruling on same. Sometimes, when the Defendant is served, the Defendant may not enter appearance and in some cases, the Plaintiff may apply for judgment in default of appearance. At times when this application is filed, the Defendant may appear miraculously or after the application has been granted, they do appear and the case will then have to continue from where the Defendant had to enter appearance. The same goes to the failure of the Defendant to file a Defence, the Plaintiff may file an application for judgment in default of Defence and the Defendant may then file a Defence or after the application has been granted, the Defendant may apply to set aside the judgement for stated reasons and then the case goes back to continue from where it broke off.
Any time after the writ of summons and statement of claim has been served on the Defendants, the Plaintiff can file for an injunction depending on the nature of the case. Normally this application would be opposed to and until the application is heard and ruled on, the substantive matter does not progress. At times also in certain cases, after the Defendant has entered appearance, the Plaintiff could file an application for summary judgment which could end the entire case if it succeeds, however should it fail, then the case continues from where the application was made.
Many other factors also cause delays in the trial process such lawyers of parties not filing processes on time, Judges not being available on set dates due to ill health, attending trainings or even being on leave. Also, it could just be that the load of the court is so much that available dates are months away from the desired dates. Indeed, with the population growth and increasing business activities, many more courts need to be built to reduce the waiting times.
These are just some of the many factors of delays in our courts and it is important as a business community to have a fair idea of how the system works just so we properly manage our expectations. The processes may not be as fast as we want them, but definitely we will arrive in due course.
