Use the Lexology Getting the Deal Through tool to compare the answers in this article with those from other jurisdictions.
What is the structure of the civil court system?
The general structure of the court system in Ghana for civil matters is hierarchical. The 1992 Constitution of the Republic of Ghana classifies the courts into two broad categories: the Superior Courts and the lower courts. The Superior Courts consist of the High Court, the Court of Appeal and the Supreme Court, whereas the lower courts comprise the district and the circuit courts.
The district, circuit and High Courts are presided over by single justices. The Court of Appeal is duly constituted by three justices. A single justice of the Court of Appeal may, however, exercise the powers of the Court of Appeal in a matter that is not before the court as duly constituted for determination. A party may, however, pray the Court of Appeal as duly constituted to reverse, discharge or vary the decision of the single justice.
The Supreme Court, which is the highest court of the land, is duly constituted by five justices. Like the Court of Appeal, a single justice of the Supreme Court exercises the powers of the Supreme Court in matters not before the court as duly constituted for determination. A party may, however, pray three justices of the Supreme Court to reverse, discharge or vary the decision of the single justice.
The civil jurisdiction of the courts is defined not only by the nature of the claim, but also by its size. The district court is the lowest court in Ghana. It has original jurisdiction to entertain monetary claims that do not exceed the sum of 20,000 Ghanaian cedis. The circuit court also has original jurisdiction in civil matters, where the claim does not exceed the sum of 50,000 cedis.
The most powerful court of the land insofar as civil proceedings are concerned is the High Court. It has unlimited jurisdiction with regard to the value of any claim.
In terms of subject matter, the law makes provision for divisions only in respect of the High Court. These include a Commercial Division of the High Court. There is also a Financial Division, which deals mainly with financial and economic crimes.
For purposes of appeals, only the Superior Courts have appellate powers. The first appellate court of the land is the High Court. It hears appeals in all civil matters emanating from the district courts. The Court of Appeal has appellate jurisdiction in all civil matters emanating from the circuit and High Courts. All civil appeals from decisions of the Court of Appeal and the Judicial Committee of the National House of Chiefs go to the Supreme Court.
Judges and juries
What is the role of the judge and the jury in civil proceedings?
Jury trials are only required in criminal matters. The judge’s duty during criminal proceedings when jurors are used is mainly to control the proceedings and direct the jury on matters of law; otherwise, the judge retains a very passive or neutral role.
What are the time limits for bringing civil claims?
Time limits for bringing actions are generally regulated by the Limitations Act 1972 (NRCD 54). There are other statutes that prescribe specific time limitations for bringing actions, such as actions against a statutory body.
NRCD 54 stipulates time limits within which causes of action must be litigated, failing which an action on the specific cause of action is barred. Actions brought after two years to claim damages for slander or seduction; to recover a contribution against one or more concurrent wrongdoers; or a penalty or forfeiture, or sum by way of penalty or forfeiture recoverable under any enactment, are barred.
Actions in tort to claim damages for personal injuries are barred after three years, whereas actions in other torts (contract, enforcing a recognisance or an arbitral award and actions to recover money) are barred after six years from the date on which the cause of action accrued.
Actions on an instrument under seal to recover money due from a member of a registered company, to recover arrears of income tax and customs duty, to enforce judgments, claims in respect of the movable estate of a deceased person and actions to recover land are barred after 12 years.
As a general rule, these periods of limitations may be extended by the court only on grounds of disability, acknowledgement, part payment, fraud or error.
Are there any pre-action considerations the parties should take into account?
Apart from the general considerations such as a forum for commencing proceedings, capacity, cause of action and procedure prescribed by statute for commencing the action, there may also be statutory preconditions before commencing an action, such as giving notice to the defendant.
How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?
As a general rule, all civil proceedings must be commenced by writ, unless otherwise provided for by law. There are specific instances where statutory provisions require that proceedings be commenced by an originating application (eg, in enforcing human rights) and by petition, such as in matrimonial causes and election disputes.
Parties to a suit are notified of the proceedings by service of the documents by virtue of which the proceedings are instituted. The registry of the court is required to ensure service of the documents on the party against whom the proceedings are commenced. The High Court and district court rules have elaborate provisions on service of documents after proceedings are initiated. These rules on service are also largely followed by the Supreme Court and the Court of Appeal.
The courts in Ghana certainly have the capacity to handle their caseload. Delays that occur in the completion of cases before the courts result from a number of factors, which range from the conduct of the parties themselves and their lawyers and natural causes. Delays resulting from inertia in the court system are isolated. The rules of court committee consistently adopt rules that aim at facilitating the hearing of cases.
Quite recently, there has been a drive by the courts to ease their caseload by enforcing the Alternative Dispute Resolution Act 2010. This Act provides for alternatives to the judicial system for dispute resolution. The statute regulates recourse to negotiation, mediation and arbitration as options for dispute resolution. The courts have insisted that parties have recourse to these options where appropriate, and the court system has provided facilities for them. The state is, however, yet to establish the Alternative Dispute Resolution Centre provided for by the Act.
There have been various occasions on which statements have been made criticising the snail’s pace at which cases are disposed of by the courts. As pointed out, however, the blame must be shared largely between the parties and their lawyers.
What is the typical procedure and timetable for a civil claim?
The typical procedure is that within eight days after the party against whom proceedings are initiated is served with the processes initiating the proceedings, such a party must acknowledge receipt of the documents by filing an appearance, after which the party generally has 14 days within which to file a defence. The plaintiff has seven days to reply (if he or she wishes to), and this normally brings pleadings to a close.
The plaintiff must apply for directions as to trial within one month after the close of pleadings. At the directions stage, the parties are ordered, among other things, to file witness statements supported by all evidence to be relied on. Time limits are fixed for filing these documents. This is followed by a case management conference held to prepare for the trial. The trial commences on a date fixed after the case management conference.
The length of trial depends on the nature of the case and the parties’ cooperation with the court, eg, regular and punctual attendance, etc. The normal practice is to allow the parties to file their written addresses within a time period fixed by the court. The court is required to deliver judgment within six weeks of the close of the case. It is fair and reasonable to say that within a period of six months to about a year, a case should be disposed of subject to the points identified as slowing down the progress of cases.
In some instances, a party may resort to summary procedures such as an application for summary judgment or judgment on admissions to obtain judgment far earlier.
Can the parties control the procedure and the timetable?
During the case management conference, parties together with the court agree on the timetable and procedure for the trial. Parties at this stage have the power to decide and determine how long a case might last by putting timelines in place. They may also narrow the issues to be tried.
Evidence – documents
Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?
There is a duty on the registry of the court to preserve all documents and evidence produced in the course of proceedings. All exhibits are marked and preserved. Where there is an appeal, the exhibits are compiled together with the record of proceedings and transmitted to the appellate court.
There is a duty to keep the status quo and not tamper with evidence. Parties are required to exchange documents that are relevant to the dispute. Mutual discovery is provided for under Order 21, r 1 of High Court (Civil Procedure) Rules 2004 (CI 47). There is also discovery by order of court. The documents to be shared may include those that may be detrimental to the party’s case. Under Order 21, r 14 (d) of CI 47, a party that fails to make discovery of a document unfavourable to his or her case may be committed for contempt.
Evidence – privilege
Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?
The rules on evidence regulate the production of documents before the court. The Evidence Act 1975 (NRCD 323) recognises a number of privileges insofar as the obligation to discover documents for the purposes of court proceedings are concerned. These include privilege against self-incrimination, privilege to refuse to discover evidence obtained in the course of seeking spiritual advice, privilege to prevent discovery of evidence obtained in a matrimonial context and privilege to prevent disclosure of evidence obtained in the course of seeking legal advice (foreign or local).
The power of the court to order the production of a document where it is necessary to fairly dispose of a matter as required by Order 21, r 11 of CI 47 is subject to the provisions of Order 21, r 13, which says that such a power is ‘without prejudice to any rule of law which authorises or requires the withholding of any document or record on the ground that the disclosure of it would be injurious to the public interest’.
Evidence – pretrial
Do parties exchange written evidence from witnesses and experts prior to trial?
The court is required, at the directions stage of the proceedings, to order parties to file and serve on one another written evidence of their witnesses by way of witness statements.
Evidence – trial
How is evidence presented at trial? Do witnesses and experts give oral evidence?
During the trial, it is usual by the general rules on trials for the plaintiff to open his or her case by calling his or her witnesses that have filed witness statements. The witness statements ordered to be filed at the directions stage of the proceedings are adopted as the evidence-in-chief of any witness called to testify in the matter. The witnesses are then cross-examined.
When the plaintiff closes his or her case, the defendant opens his or her case and the process is repeated. Where a party calls an expert witness, the witness gives his or her evidence and is cross-examined. The court suo motu may call witnesses. Such witnesses are also subject to cross-examination by the parties’ counsel. The witnesses give both written and oral evidence, whether expert witnesses or not.
The district courts still take oral evidence since witness statements are not mandatory, but the lower courts are moving from oral statements to written statements when need be.
What interim remedies are available?
The courts have powers to grant interim orders, including freezing and search orders depending on the nature of the case. The rules of court permit the High Court to grant orders of injunction, including Mareva and Anton Pillar injunctions, as well as orders for the interim preservation and detention of property. The rules allow for such orders to be made when the matter is pending before the court.
Interim orders may also be made in support of foreign proceedings where proceedings are commenced in relation to any matter connected to such foreign proceedings.
What substantive remedies are available?
The High Court is empowered, save only in a few cases, to grant any substantive relief claimed for by parties before it. The High Court may grant relief ranging from declarations to monetary awards, including punitive damages. Interest is by law payable on judgment debts.
What means of enforcement are available?
The position in Ghana is that a judgment creditor is required to use any enforcement method available to them to enjoy the judgment. The judgment creditor may therefore set in motion, among others, the various writs of execution. Disobedience of court orders that do not require the payment of money are punishable by orders of committal for contempt.
Are court hearings held in public? Are court documents available to the public?
All judicial proceedings are by law required to be held publicly unless the court thinks it necessary in the public interest, morality or safety to hold proceedings in camera. All court documents are in the custody of the registry of the court and may be made available to members of the public that apply for them, subject to the exceptional rules on public interest, morality and safety.
Does the court have power to order costs?
The courts have the power to order costs in all appropriate circumstances. This power, although discretionary, is regulated by the rules of court. The power to order costs is in the discretion of the court to determine whether to give costs and, if so, to what extent.
The purpose of awarding costs is ordinarily designed to compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made; and provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer.
Factors that are taken into account in assessing the amount of costs to be awarded to any party include the amount of expenses such as travel expenses reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings; the amount of court fees paid by that party or that party’s lawyer in relation to the proceedings; the length and complexity of the proceedings; and the conduct of parties and their lawyers during the proceedings.
There are certain circumstances in which a claimant may be required to provide security for the defendant’s costs. Where the plaintiff is ordinarily resident outside Ghana, the court will usually order the claimaint to give security for costs.
Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?
‘No win, no fee’ agreements are quite common in Ghana, especially in cases involving recoveries for financial institutions. In these situations, the fee arrangement is based on the lawyer’s ability to recover the sums claimed by the financial institution from its defaulting customers.
There is no rule of law prohibiting third-party funding of claims. Ghana will generally follow the development of the law as it obtains in other common law countries. In many common law jurisdictions now, the practice is permitted; therefore, it is permissible in Ghana. The Supreme Court of Ghana did not make any definite pronouncement on the point when it arose peripherally in the case of Jonah v Kulendi & Kulendi [2013-2014] 1 SCGLR 272. However, one of the justices acknowledged that it is a common occurrence for third parties to fund claims.
Depending on the agreement between the third party and a person making a claim, there can be sharing of proceeds; however, a third party, as evidenced in the case cited above, cannot claim proceeds from a lawyer but only a claimant, as there is no legal contract between the third party and the lawyer.
Is insurance available to cover all or part of a party’s legal costs?
There is no rule of law in Ghana on the specific subject of insurance to cover legal costs. Like all other policies it is for the insurance company to make such a product available and to market it to the public.
May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?
The rules of court recognise collective actions for redress in certain circumstances. These are:
- if separate actions were brought by or against each of them, some common question of law or fact would arise in all the actions; and
- all rights to relief claimed in the action whether they are joint, several or in the alternative are in respect of or arise out of the same transaction or series of transactions.
On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?
The rule is that appeals are a creature of statute. For this reason, every appeal must be based on a specific statutory provision that creates it. Appeals are allowed against decisions on errors of law, or fact, or both. The rules on appeals permit the deployment of an omnibus ground of appeal alleging that the decision is against the weight of the evidence.
What procedures exist for recognition and enforcement of foreign judgments?
As a precondition for the enforcement of a foreign judgment, the President of Ghana has by legislative instrument authorised, upon being satisfied that in the event of permitting the enforcement in Ghana of judgments of the superior courts of a particular country, judgments of the superior courts of Ghana will be given substantial reciprocal treatment in that country. These countries are listed in the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993 (LI 1575).
The first step to take for the purposes of enforcing such a foreign judgment is an application to the High Court for registration of the foreign judgment. It is upon registration that the foreign judgment may then be enforced as if it were the judgment of the High Court of Ghana.
Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?
Section 75 of the Courts Act 1993 (Act 459) empowers the High Court to make orders for the examination of witnesses in matters pending before foreign courts. The procedure for obtaining the order is set out in Order 70 of CI 47.
UNCITRAL Model Law
Is the arbitration law based on the UNCITRAL Model Law?
There are differences between the Ghanaian law and the UNCITRAL Model Law. Ghanaian law draws from aspects of the Model Law and the Arbitration Act of England.
What are the formal requirements for an enforceable arbitration agreement?
The law requires every arbitration agreement to be in writing. For this purpose, it is sufficient if such agreement can be inferred from an exchange of communications in writing, including exchange of letters, telex, fax, email or other means of communication that provide a record of the agreement; or there is an exchange of pleadings such as a statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
Choice of arbitrator
If the arbitration agreement and any relevant rules are silent on the matter, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?
Section 13 of Act 798 says that the parties are at liberty to determine the number of arbitrators. The number must be an uneven number. Where the parties fail to agree on the number of arbitrators to be appointed, the Act says that the arbitration shall consist of three arbitrators.
The right to challenge the appointment of an arbitrator is regulated by section 16 of Act 798. A party may challenge the appointment of an arbitrator if circumstances exist that give rise to reasonable cause to doubt the arbitrator’s independence or impartiality, or the arbitrator does not possess the qualification agreed on by the parties. A party is, however, not entitled to challenge an arbitrator appointed by the party or in whose appointment that party participated, except for reasons of which the party becomes aware subsequent to the appointment.
What are the options when choosing an arbitrator or arbitrators?
Parties are at liberty to choose their arbitrator. Section 12 of Act 798 provides for the qualification of an arbitrator. The arbitrator may be a person with the experience or qualification that the parties agree on and he or she may be of any nationality. However, the Act precludes the appointment of persons with personal, proprietary, fiduciary or financial interest in the matter to which the arbitration relates.
Does the domestic law contain substantive requirements for the procedure to be followed?
Unless otherwise agreed by the parties, Ghanaian law has detailed rules on procedure to be followed by an arbitrator upon commencement of the arbitral proceedings. A key provision of Ghanaian law on the procedure to be followed by the arbitrator is the arbitration management conference with the parties or their representatives in person or through electronic or telecommunication media to determine, among others:
- the issue to be resolved by arbitration;
- the date, time, place and estimated duration of the hearing;
- the need for discovery, production of documents or the issue of interrogatories;
- the law, rules of evidence and the burden of proof that are to apply to the proceedings; and
- the exchange of declaration regarding facts, exhibits, witnesses and related issues.
On what grounds can the court intervene during an arbitration?
The High Court of Ghana has ample powers of control over arbitral proceedings from the time an arbitrator is appointed to the end of the proceedings. The High Court has some limited jurisdiction to determine challenges to the appointment of arbitrators, revoke their appointment under specific circumstances and question their jurisdiction where a party is dissatisfied with the ruling of the arbitral tribunal on the question of the tribunal’s jurisdiction, as well as to determine references to it of points of law by a party to arbitral proceedings.
The High Court may also entertain an application by a party to an arbitration agreement who complains that they have not been notified of the arbitral proceedings; to question the validity of the arbitration agreement; whether the matters submitted to arbitration are covered by the arbitration agreement; to question the constitution of the arbitral panel; or to challenge the award on grounds of lack of jurisdiction or serious irregularity.
Act 798 requires the High Court to support arbitral proceedings by making orders for taking the evidence of witnesses and the preservation of evidence, among others.
Do arbitrators have powers to grant interim relief?
Act 798 empowers arbitrators to grant interim relief for the preservation of property in the form of an interim award.
When and in what form must the award be delivered?
Section 49 of Act 798 allows the parties freedom to determine the form of the award. In the absence of such an agreement the rule says that the award:
- must be in writing and signed;
- must state the date and place where the award was made; and
- except the parties otherwise agree, must state in writing the reasons for the award.
On what grounds can an award be appealed to the court?
There is no right of appeal against an arbitral award. The proper procedure is to apply to the High Court to set aside the award under section 58 of Act 798. An appeal lies against the decision of the High Court on the application to set aside the award to the Court of Appeal. The court may set aside the arbitral award on the grounds that:
- a party to the arbitration was under some disability or incapacity;
- the law applicable to the arbitration agreement is not valid;
- the applicant was not given notice of the appointment of the arbitrator or of the proceedings or was unable to present his or her case;
- the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement except that the court shall not set aside any part of the award that falls within the agreement;
- there has been failure to conform to the agreed procedure by the parties;
- the arbitrator has an interest in the subject matter of arbitration that the arbitrator failed to disclose;
- the subject matter of the dispute is incapable of being settled by arbitration; or
- the arbitral award was induced by fraud or corruption.
What procedures exist for enforcement of foreign and domestic awards?
Sections 57 and 59 respectively of Act 798 prescribe the procedure for enforcing domestic and foreign awards. The procedure for enforcing both awards is by an application to the court for leave to enforce the award.
Can a successful party recover its costs?
The general common law principle that ‘costs follow the event’ is recognised in Ghana. A successful party can recover costs. The arbitrator has the power to grant any relief that the arbitrator considers just and equitable, including specific performance, but such award must be within the scope of the arbitration agreement. As a general rule, each party is required to share the expenses relating to arbitration unless otherwise agreed by the parties or the arbitrator decides otherwise.
Alternative dispute resolution
Types of ADR
What types of ADR process are commonly used? Is a particular ADR process popular?
The common types of ADR used in Ghana are negotiation (conciliation), mediation and arbitration.
The most popular dispute resolution mechanism is negotiation (conciliation). Negotiation is done on a daily basis and no special certification or skill is required to negotiate. Persons negotiate daily based on their interests and positions.
Requirements for ADR
Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?
Section 72 of the Courts Act empowers any court with civil jurisdiction and its officers to promote reconciliation, and encourage and facilitate the settlement of disputes in an amicable manner between and among persons over whom the court has jurisdiction.
Section 6 of Act 798 requires the court to refer parties to arbitration where there is an arbitration agreement and a party nevertheless commences an action in a court.
Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?
There are currently no proposals for dispute resolution reforms in Ghana.