PROCESSES INVOLVED IN CIVIL LITIGATION IN
GHANA- BY SAMUEL MARFUL-SAU, JUSTICE OF
APPEAL
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Society generally distaste wrongs committed against its
members and the State. The State seeks to regulate the
conduct of its citizens by enacting laws that define
conducts that would constitute a crime. For example,
stealing, rape, robbery, causing harm, defilement, assault
etc.
When a member of the society conducts himself/ herself
against the criminal law, the person is arrested by the
Police and prosecuted. The person arrested is called a
suspect but when charged for court is called the Accused.
The victim of the crime is not a party to the case, but only
a witness.(Prosecution Witness)
Criminal cases are thus investigated and prosecuted by the
State. An example of laws passed to regulate the conduct
of society is the Criminal and Other Offences Act, Act 29
of 1960.
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A civil trial arises from a civil suit which is a case
brought by a person against another person or
against an institution which has legal entity, or
against the State or Republic.
A civil case is one by which a person or legal
entity brings an action to seek a remedy for a
private wrong or to enforce a private right.
A civil trial can be divided into five main stages.
(a)From issue of writ of summons to application
for Directions.
(b)Trial and judgment.
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(c)Execution of judgment.
(d)Appeals from District, Circuit/High Courts
to Court of Appeal.
(e)Appeals from Court of Appeal to the
Supreme Court.
(f) Applications.
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Plaintiff issues the writ of summons with a
statement of claim. The plaintiff is the person
who initiates the civil case.
The writ and statement of claim is to be served
on the defendant personally or by substituted
service. The defendant is the person against
whom the action is brought.
The defendant must file notice of Appearance
stating his residential and occupational address
within 8 days from date of filing Appearance, if
he intend to contest the action.
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The defendant must within 14 days after the
time limited for Appearance file his statement
of defence and counterclaim, if any.
The plaintiff may file a Reply and Defence to
the defendant’s Counterclaim, before the
expiration of 7 days after service of the
statement of defence on plaintiff.
The plaintiff applies for Directions. If the
plaintiff fails to do this, the defendant may
do so. This must be done one month after a
Reply is filed or when pleadings close.
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The plaintiff or the person on whom the
burden of proof lies by the pleadings starts to
give evidence on oath.
Plaintiff gives evidence-in-chief; he is crossexamined by the defendant or his lawyer.
Plaintiff is re-examined by his lawyer to
explain any ambiguities in the crossexamination.
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Plaintiff calls his witnesses who are
examined-in-chief; cross-examined and reexamined just like what the plaintiff went
through.
Plaintiff closes his case.
The defendant opens his case by giving
evidence-in-chief, he is cross-examined and
re-examined.
The defendant calls his witnesses who are
also examined-in-chief; cross-examined and
re-examined.
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Defendant closes his case.
Defendant file his address to the court
Plaintiff files his address to the court.
Judge delivers the judgment
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Examination –in- chief is when a party to the
action or his witness tells his own story to the
court, under the direction of his lawyer.
Cross-examination is when a party or witness
is questioned by the opponent or the
opponent’s lawyer. It is done after
examination –in- chief.
Re-examination is where a party is asked
questions by his lawyer to explain some
ambiguities that came up when the party was
being cross-examined.
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The successful party must first file Entry of
Judgment or Judgment after Trial.
Nature of execution depends on the type of
judgment given.
If the judgment is for the payment of money,
the execution may be done by any of the
following:Writ of fierri facias (FiFa), Writ of delivery,
Garnishee Order, Charging or Stop Order,
Sequestration and committal.
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If the judgment is for delivery of property
apart from land any of the, the following can
be used: writ of delivery; committal; writ of
sequestration.
If the judgment is for recovery of possession
of land, or recovery of a premises then
execution will be by writ of possession or
sequestration.
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A dissatisfied party in the District Court has
the right to appeal to the High Court in any
civil or criminal trial. The appeal should be
filed within three months for civil cases and
one month for criminal cases.
Criminal appeals from the Circuit court lies to
the High Court.
Civil appeals from the Circuit Court however
lies to the Court of Appeal.
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The Court of Appeal hears appeals from all
decisions of the High Court and civil
decisions of the Circuit Court.
Notice of Appeal to be filed by the
unsuccessful party within 3 months from date
of judgment, unless the time for appeal is
extended by the Appellate Court.
Appellant may file motion for Stay of
Execution.
Registrar of court invites the parties to settle
record of appeal.
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Appellant fulfils conditions of appeal by entry
into bond with sureties and paying an amount
towards the cost of the record of appeal.
Court Registry prepares the record of appeal.
Record of Appeal transmitted to the appellate
court and the parties are notified.
Appellant files his written submissions within 21
days of notification.
The Respondent files his written submission with
21 days from date of service of Appellant written
submission on him
The Court of Appeal gives judgment.
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In appeals from the Court of Appeal to the
Supreme Court, the steps stated for appeals to
the Court of Appeal are the same.
REVIEW:- after judgment a court generally has
the power to review the decision unless there is
an appeal pending against the judgment.
Normally the application for review must be filed
within 14 days from the date the judgment was
delivered. The review must be heard by the same
Judge or panel that gave the judgment, unless
the judge or panel are unavailable.
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This is exercised by the Supreme Court and
the High Court.
By this process the Supreme Court exercise’s
supervisory jurisdiction over all the courts in
Ghana; and the High Court also exercise
supervisory jurisdiction over all lower courts
and inferior tribunals as well as
administrative bodies that do exercise
judicial or quasi-judicial functions; eg.
Regional House of Chiefs or CHRAJ.
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Judicial Review involves an application for the
following:Certiorari:- where the decision of a lower
court or administrative body is challenged for
the lack of jurisdiction; abuse of the rules of
natural justice or due process of law and for
an error committed by the court or the
administrative body.
When the application is successful the
decision is brought up and quashed.
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Mandamus:- this is applied for to compel
public officers or bodies to perform their
public duties.
Prohibition:- this is applied for to prevent or
stop a court or a body from acting without
jurisdiction or acting outside the limits of it
jurisdiction. It is normally directed at judicial,
quasi- judicial or administrative bodies that
seek to act outside their jurisdiction.
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From the time a writ is issued to the judgment
there may be the need to apply to the court to
make some interim orders .The application to the
court is done by Motions, supported by affidavit
explaining why the order is being asked for.
There are two types of Motions.
1. Motion Exparte:- applying to the court without
notice to the opponent .Used normally for urgent
and emergency situations.
2. Motion on Notice:- applying to the court on
notice to your opponent so that the court will
also hear his side of case before taking a
decision.
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Most court orders are obtained by application
through Motions. Examples are:- order of
injunction; order for preservation of property;
order staying execution; order for accounts;
order to appoint a surveyor, etc.
When a person wilfully refuses to obey a
court order served on him then that person is
said to be in contempt of court.
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Note that not every action commenced by
writ may travel through the stages to trial.
The following may terminate the action:(1).Judgment in default of appearance or
defence.
(2).Summary judgment where judgment is
entered for a party because the opponent has
no reasonable defence.
(3).Judgment entered on admissions.
(4).Notice of Discontinuance.
-The trial procedure is virtually the same as in
civil trial.
-The prosecution which has the burden of
proving the quilt of the Accused, beyond all
reasonable doubts, starts the case by calling
the Prosecution Witnesses to give evidence.
-The prosecution witnesses are crossexamined by the Accused or his lawyer.
-The prosecution witnesses are reexamined if necessary.
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After the prosecution has called all it
witnesses, the Accused will open his defence,
unless he makes a submission of no case and
it is upheld.
The case put up by the Accused and his
witnesses is referred to as the defence.
The Accused and his witnesses will give
evidence and will be cross-examined by the
prosecutor.
Accused and his witnesses are re-examined if
necessary.
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The lawyer for Accused and the Prosecutor if
a lawyer both address the court after which
the court delivers its judgment.
In Ghana the prosecution of criminal cases is
done by lawyers from the Attorney General’s
Department or the Police on behalf of the
Attorney- General.
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Thank you.