Of Roots and Branches: The Curious Case of Order 81
“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 (Courtroom) 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.
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.
The High Court (Civil Procedure) Rules, CI 47 was 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 the Court or Judge shall think fit.”
These provisions obviously meant that where there has been a non-compliance with the rules of Court, the judge has the discretion to do any of the following:
- To declare any proceedings emanating from such breach as void.
- To save any proceedings emanating from a breach of the rules either in part or in whole on terms as the Judge may deem fit.
This means that where there is a breach of the rules in any proceedings, the judge has the right to determine whether he will declare the proceedings a nullity or a mere irregularity. Unfortunately, the rules did not provide any criteria to guide the judge in deciding which of the options he would take. This is where case law stepped in.
The Two Types of Non-Compliance Under LN 140A.
As pointed out earlier, under LN 140A, a non-compliance with any of the rules could result in a proceeding being declared null and void or an irregularity. Because the rules were silent on any criteria, case law attempted to differentiate between the kinds of non-compliance, which could result in proceedings being declared a nullity and those, which would not.
TAYLOR JSC, in attempting to categorize the kinds of non-compliances envisaged under LN 140A stated as follows in the case of Amoakoh v Hansen : “If however, it is an irregularity that goes to the root of the trial and fouls the springs of the judicial process and thus disabling the machinery of law from advancing the course of justice, then the whole proceeding is void and a nullity.
APAU J further held in Bonsu V Eyifah & Anor that “I have to state the point clearly here that the only irregularities that can be cured by order 70 of LN 140A are those that border on the non-compliance with the rules of court or any rules of practice, but even then, it is not in cases, for where the courts think that injustice will be caused to the other party when a rectification is allowed, the court shall decide otherwise. However, where the irregularity is not a non-compliance with the rules of court but borders on non-compliance with the requirement of statute or other authority, then the whole action become a nullity.”
Now, there are two points, which stand out from the dicta of Taylor JSC and Apau J viz:
- The non-compliance must go to the root of the trial.
- The effect on the non-compliance on the course of justice.
For the avoidance of doubt, the saving grace under LN 140A did not apply to breaches of Statutory provisions. So for instance, where the State Proceedings Act, 1998, Act 555 requires that the Attorney General must be given 30 days’ notice before any action is commenced against the Republic of Ghana, a Judge does not have any discretion in such a breach of this statutory provision. Any proceedings subsequent to the breach shall be declared a nullity.
In this article, I will attempt to use the ratio in the two (2) cases above to explain how the courts decided to exercise their discretion under LN140A to determine which non-compliance will render a proceeding a nullity and which non-compliance will make a proceeding irregular.
In Ameyibor v. Komla, it was found that “the failure by the bailiff to make the indorsement required by the rule resulted in no injury or prejudice to the defendant. The learned judge ought not to have treated the irregularity as a nullity and proceeded to dispose of the matter on that basis. He should have brought the failure to make the indorsement required by Order 9, r. 17 as an irregularity within the true intendment of Order 70, r. 1 and done justice as a matter of discretion between the parties”. The court was influenced by whether the breach would have resulted in an injustice to the other party.
In Amoakoh v Hansen, the court found that a non-compliance with the requirement for application for directions rendered the proceedings a nullity because the application for direction stage is a fundamental part of a case and if it is not conformed to, it renders the proceedings void.
In Azinogo v. W. E. Augustt and Co. Ltd, the Court of Appeal held that “Since there was non-compliance with the provisions of Order 14, r. 2 (3), I hold that the whole proceedings were null and void”.
In Wusu v. Donkor and Others, it was held that “Non-compliance with the provisions of Order 42, r. 46 would not make the proceedings a nullity but voidable, i.e. to be treated as an irregularity which might be set aside. If the immovables of a person had been attached wrongfully and he was aware of the fact, he could apply to the court to have the attachment set aside. Even though under the authorities a return of nulla bona was required before the sale of the immovables, failure to make the return would only be an irregularity. The inactivity of the execution debtor would lend support to the fact that, in fact, he had no goods or movables within the jurisdiction, which could be attached. And since in any case the execution creditor could have the immovables of the execution debtor sold, it could not be said that the attachment and sale were a nullity”.
From the authorities above, it is obvious that there was no criterion cast in stone about which non-compliance of a provision of LN140A was an irregularity or which non-compliance was a nullity. Everything depended on the facts of the case and the judge’s understanding of what the justice of the case demanded. Hence, a non-compliance, which could be declared a mere irregularity in one case could be declared as nullifying the proceedings in another case.
The Provisions of Order 81 Rule 1 OF CI 47
Since 2004, proceedings in the High Court of Ghana have been regulated by High Court (Civil Procedure) Rules, CI 47.
Order 81 (1) of CI 47 provides as follows:
“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it”.
The wording of Order 81 of CI 47rule 1 is different from the wording of Order 70 rule 1 of LN140A for one basic reason: whereas LN140A gave the discretion to the court to render any proceedings a nullity for non-compliance of the rules, CI 47, gives no such discretion. The only consequence of non-compliance under Order 81 rule 1 is rendering the proceedings an irregularity. The Court under CI 47, therefore, has no discretion to declare a proceeding as a nullity due to a non-compliance with a provision of CI 47.
Under CI 47, there is nothing like a breach, which goes to the root of the trial and a breach, which does not go to the root of the trial. There is no non-compliance with the rules, which will be deemed as so fundamental that it would render the proceedings a nullity.
In other words, whereas some breaches of the rules were curable whiles others were not under LN 104A, CI 47 makes no such distinction and hence ALL breaches are curable.
The power of the Court to either save proceedings by amendment or otherwise or set same aside in exercise of its discretion is however maintained in Order 81 of CI 47.
This contention is fortified by the decision of the Supreme Court in the case of Friesland Frico Domo v Dachel Co. Ltd where it was held that “We agree with Counsel for Plaintiff on his submissions and authorities cited that the words in Order 70 r.1 of LN140 should be given its ordinary meaning in order to serve the ends of justice. In that respect non-compliance with any of the rules does not render the proceedings automatically void”.
The Supreme Court further held that “…the distinction between void and voidable proceedings cannot be maintained on account of the plain and ordinary meaning of the said Order”.
Irregularities Under CI 47
Despite not having the power to declare any proceedings as a nullity for non-compliance with the rules of Court, the rules gave the Court the power to “set aside either in whole or in part” any proceedings in which there has been a non-compliance with the rules.
Order 81 rule 2 of CI 47 provides as follows:
“The Court may, on the ground that there has been such a failure as stated in subrule (1), and on such terms as to costs or otherwise as it considers just
(a) set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein; or
(b) exercise its powers under these Rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considers just.
In the recent case of Standard Bank Offshore Trust Co Ltd (Substituted by Dominion Corporate Trustee Ltd) v National Investment Bank; the Supreme Court held that “But Order 81 rule 2(a) entitles the court to set aside either wholly or in part the proceedings in which the failure to comply with a rule occurred, including any judgment or order made therein. What this means is that even after judgment, the entire proceedings may be set aside for non-compliance with a rule of practice. It depends on the particular breach complained off. What the Court discountenanced was the view that non-compliance automatically resulted in an invalidation of the proceedings in which the breach occurred. 
Now, herein lies the curiosity!
Under LN 140A, once a judge has found that a proceeding should be declared a nullity because of non-compliance with the rules, that proceeding will be set aside.
Now under CI 47, even though the Judge cannot render proceedings a nullity due to non-compliance, that judge has the right to set aside a proceeding, which he finds as irregular due to non-compliance.
The question then is why would a proceeding which has not been declared a nullity be set aside?
To be able to answer this question, one must appreciate the difference between a proceeding, which is a nullity and a proceeding, which is “invalid” or irregular.
The explanation of the effect of a proceeding been declared a nullity lies in the words of Akuffo Addo J.S.C. (as he then was) in Mosi v. Bagyina where he said:
“. . . where a court or a judge gives a judgment or makes an order which it has no jurisdiction to give or make or which is irregular because it is not warranted by any enactment or rule of procedure, such a judgment or an order is void, and the court has an inherent jurisdiction, either suo motu or on the application of the party affected, to set aside the judgment or the order.”
This means that where a proceeding is declared to be a nullity, the court suo motu can set same aside anytime the attention of the court is brought to such void proceedings.
However, where a proceeding is deemed to be irregular/invalid, that proceeding is valid and binding until the affected party brings the requisite application to have same set aside.
An understanding of the difference between when a proceeding is declared a nullity and when a proceeding is irregular/invalid or voidable will greatly enhance one’s appreciation of the essence of Rule 2 of Order 81 of CI 7.
Order 81 rule 2 provides as follows:
(1) An application may be made by motion to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it, and the grounds of it shall be stated in the notice of the application.
(2) No application to set aside any proceeding for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity.
These provisions clearly mean that an Applicant will not be entitled to have a proceeding set aside as of right for non-compliance with the rules. That Applicant must satisfy the conditions set out in Order 81 rule 2 (2), which are that the application should be brought within a reasonable time and the Applicant should not have taken a fresh step.
Hence, if there has been a non-compliance with any of the provisions of the CI 47, it behoves on the affected party to immediately bring the attention of the Court to that non-compliance. The Court cannot on its own, unlike as was the case under LN 140A, identify the non-compliance and make consequential orders.
How the Courts have Treated Order 81 under CI 47
There have been some interesting judicial pronouncements on the effect of CI 47. I will attempt to analyze a few of those in this part.
In Boakye v Tutuyehene and Ankumah v City Investment Co. Ltd, the Supreme Court rejected the invitation to set aside proceedings as a nullity because there was no application of the directions prior to the commencement of the trial. The court was of the opinion that having participated in the proceedings without complaint even after the non-compliance was occasioned; the Defendant cannot now be heard complaining about the irregularity.
In Republic v. High Court, Accra, Ex Parte Allgate Co. Ltd. (Amalgated Bank) Interested Party, the Supreme Court refused to set aside proceedings because the Defendant fully participated in the proceedings despite him having been given only 3 clear days’ notice of the application for summary judgment instead of the 4 clear days as prescribed in Order 14 of CI 47. Date – Bah JSC in this case stated that: “what is intended to be covered by Order 81 are irregularities, short of situations of want of jurisdiction or infringements of statutes other than the High Court Rules… thus, whilst Order 81 rule 1 treats non compliance with the Rules as not nullifying the non- complying proceedings, the rule DOES NOT apply to non–compliance which is so fundamental as to go to Jurisdiction, or which is in breach of a Statute other than the civil procedure rules; breach of the Constitution; or the breach of the rules of natural justice.” The implication here is that Order 81 cannot be invoked to cure breaches of Statutes, Constitution and Rules of Natural Justice.
The situation was no different in the case of Friesland Frico Domo v Dachel Co Ltd, where the Supreme Court held that having participated in the proceedings which culminated in the judgment, it was too late in the day for the Defendant to apply to have the judgment set aside on grounds that leave was not obtained from the court prior to the issuance of the Writ of Summons and service of notice of on the Defendant outside the jurisdiction; contrary to the provisions of Order 8 of CI 47.
From these line of authorities, it is obvious that the Supreme Court has moved away from the categorization of the kinds of non-compliance, which was accommodated under LN 140A to the position espoused by the provisions of Order 81 of CI 47.
From the new line of decisions from the Supreme Court, a “proper” Legal Practitioner” must know his rules “by heart” for two reasons:
- A non-compliance of the rules could have the proceedings set aside; and
- Taking a fresh step due to ignorance that there has been non-compliance could result in you being deemed to have waived the non-compliance.
Having said that, I wish to end by saying that under Order 81 of CI 47, any action, which is commenced or initiated in conformity with the applicable statutory prescription would be so rooted in the court of law that a non-compliance of any of the rules of court cannot uproot the action. The non-compliance, if identified and raised timeously by the other party, may only result in the pruning of a branch of the action on terms such as cost and permit the action to remain in the court of law.
 [1987-1988] 2GLR 26 @ 37
 [2001-2002] 1GLR 9 @ 16-17
 Section 10 of Act 555.
  GLR 820-825
 This decision overturned the decision of the High Court in the case of Attoh-Quarshie v. Okpote  1 GLR 59-69 where Hayfron Benjamin held that “I am of the view therefore that the bailiff who was entrusted with the service of the writ did not carry out his duties properly as provided for by the rules, and that the respondent could not legitimately have proceeded to judgment by default of appearance.”
 [1987-1988] 2GLR 26
 [1989-90] 2 GLR 278-282
 This order required that a Respondent to an application for Summary Judgment must be given 4 clear days’ notice of the application.
 [1982-83] GLR 616-624
 The original text reads: “Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it”. However, the Supreme Court in the case of Republic v. High Court, Accra, ex parte Allgate Co. Ltd. (Amalgated Bank) Interested Party [2007-2008] SCGLR 1041 judicially amended this provision to delete the “not” which appeared before the “be treated as”
  1 SCGLR 41 @ 43
 (Suit No: Civil Appeal J4/63/2016)
 At this stage, I wish to register my contrary opinion to the decision of the Supreme Court to render the proceedings a nullity. My dissent is based on the fact that having participated in the proceedings culminating in the judgement; it did not lie in the mouth of the Defendant to now complain that because the Plaintiff did not provide full names of the beneficiaries of the Trust, the proceedings were irregular. My contention is fortified by the fact that the requirement to “identify” the parties to a suit is a requirement of the rules of court which when breached can be always be cured by an amendment. However, when the Parties to a suit did not exist at the time of commencement of the action, then there is no party and the case suffers a still birth and is rendered void. See the cases of Boateng v Boateng  5GMJ and Kimon Compania Naviera Sarp & ORS v Volta Lines Ltd  2GLR 140 @ 143.
  1 G.L.R. 337 @ 342
 Please see WUSU v. DONKOR AND OTHERS (supra).
 [2007-2008] SCGLR
 [2007-2008] 2 SCGLR
 This ratio overturned the decision in Amoako v Hansen (Supra)
 [2007-2008] SCGLR 1041
  1 SCGLR 41
The Writer is the Lead Consultant with Robert Smith Law Group, a boutique law firm based in Accra and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus-Accra. He is also Fellow of the Chartered Institute of Arbitrators.