OF ROOTS AND BRANCHES; THE CURIOUS CASE OF ORDER 81, by Bobby Banson, Esq, MCIArb.

November 15, 2016

INTRODUCTION “If your knowledge of substantive law is brilliant and you have no knowledge of the rules of Court then you cannot be a “proper” lawyer.” These were the words of Justice Anin Yeboah of the Supreme Court of Ghana when I first met him sometime in 2009. In his estimation, and like those of many Legal (Court room) Practitioners, a good lawyer must know the rules of Court “by heart”. After my first Civil Procedure Class with the brilliant Ace Ankomah, I wondered how someone would be expected to know all the 82 orders of the High Court “by heart”. Some of the Orders have as many as 60 rules. I immediately appreciated how “long” this journey to becoming a “proper” lawyer will be. I soon realized there could be a way out of this task of knowing the rules of Court “by heart”. My escape route was found in Order 81. I loosely understood Ace’s lecture on Order 81 to mean that I do not need to know everything in the rules book. If I sin against the rules, Order 81 rule 1 will be the blood, which will wash away my sins and grant me access to the “throne of mercy”. In my infantile mind, if there would be a cure for not knowing the rules, why do I have to know them? I must admit that with hindsight, I have realized that I was a “child” then and like a “child” I thought and spoke. I have, in my few years in practice, however found the provisions of Order 81 very curious. For me, it is akin to an unruly horse. It leaves so much to the discretion of anyone who is in the position to interpret and apply same and as such can be interpreted by each individual to have a different meaning. 1 Order 81 of High Court (Civil Procedure) Rules, 2004, CI 47. 2 The Author is the Lead Consultant of Smith & Adelaide Law, a Boutique Law firm in Accra and assists with the teaching of Civil Procedure at the Ghana School of law, Makola Campus-Accra. The purpose of this Article is to discuss how the Courts have over the years interpreted and applied the provisions of Order 81 and its predecessor rule to “apparently” prevent the multiplicity of suits and avoid delays, cost and unnecessary expenses in civil litigation. BACKGROUND The High Court (Civil Procedure) Rules, CI 47 were enacted in 2004 to replace the L.N.140A, which had been the applicable civil rules of the High Court in Ghana since 1954. Yes, it took 50 years for us to change our rules of Court. The parallel provision in the L.N. 140A was Order 70, r. 1 which provided as follows: “Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as […]

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