The LEADing Justice Initiative of the Chief Justice – An Innovative Vision Worthy of Support

 

INTRODUCTION

The learned Chief Justice Her Lordship Justice Gertrude Araba Esaaba Sackey Torkornoo,[1] as by law established, has demonstrated that not only is she well versed in the law, its practice (from 1987) and judicial adjudication (from 2004), but also Biblical wisdom and Managerial acumen. The Bible says in Habakkuk 2:2 that, Then the Lord answered me and said, Write the vision, And make it plain on tablets, That he may run who reads it.” It is also a trite function of Strategic Management that, any Leader or Manager must have a Vision Statement showing the long term goal of the organization. From the broad vision, the Mission Statement is developed to provide the road map to achieving the vision. It is in this light that the ‘LEADing Justice’ Vision of the learned Chief Justice must be welcomed by all well-meaning Ghanaians in general and stakeholders in the legal practice and judicial adjudication system.

The Learned Chief Justice’s vision and launching of same on April 08, 2024 is unprecedented in Ghana’s history, at least in this 4^th Republic. It is unknown whether any of her predecessors have done such a thing and it is in that regard that the author agrees with the learned Attorney General, Godfred Yeboah Dame, when he remarked in his address at the launch that, it is indeed an innovative step and a bold one at that. Her vision presents her plan for the Judicial Service she leads since she took office on 12^th June, 2023. It is not surprising that the launch was attended by all who mattered in the country, from the Government, Nananom, the Clergy, the Bar, the Bench, Legal Academics and all who matter or have an interest in the justice delivery system. The LEADing Justice Vision stands for Law, Ethics, Assets, Due Process and Digitalization.

With Law, the Chief Justice seeks inter alia to increase the legal knowledge of the non-lawyers in the service. It is a fact that majority of the staff in the Judicial Service are other professionals and not lawyers. Paralegal learning is essential in this regard. Underscoring this issue, Her Lordship the Chief Justice had this to say, “Thus in their daily work, Judges are expected to deliver justice with supporting staff, who have almost zero knowledge of the basic ingredients of justice – law and legality. The import of the language of the law, the effect of time on legality, the effect of skipping any process and procedure is largely not known to the vast majority of the thousands of staff who work with Judges. As they conduct their administrative duties, they do so with knowledge from their own skill sets and proficiencies, and not from the nuanced appreciation of the effect of law on actions. Avoidable mistakes, errors and distortions of the requirement for due process therefore abound in the work of the courts and these affect court users with much loss, expense, delay and frustration.” In seeking to proffer solutions, she posits and the author agrees with her thus, “The framework of vision presented today is therefore calling for bold and multiplied outlay of paralegal learning to be made available to all the thousands of judicial Service Staff, and the countless professionals who work with the Judiciary to deliver justice. These professionals include police investigators, prosecutors, mediators who supplement the court’s work with alternate dispute resolution services, external court service providers such as process servers, valuers, surveyors, financial experts, all types of experts, auctioneers, etc.” She equally calls on citizens to be assisted with the understanding of the court system when she said that, “As important as paralegal learning is to the professionals who must help judges to deliver orders, rulings and judgments that pass the unimpeachable test of legality, the citizen must also be assisted to understand the system used in court, so that their journey in seeking justice will be less affected with abuse, missteps, and failures that deprive their rights and entitlements.” With Ethics, the goal is to change the tag of corruption, ineptitude whether real or perceived in the justice delivery service. In her words, “I deeply crave, along with all our well-wishers I am sure, to change the tags of ‘corruption’ ‘ineptitude’ and ‘inefficiency’ around the judiciary and Judicial Service. We cannot do this without the support and attention of all stakeholders.” The Judiciary is one institution that seems to have a perception of being corrupt and its imperative measures are put in place to help do away with that tag and sanitize the service. It is a major concern for all users of the judicial system and it is imperative that dealing with corruption or the perception of same, finds itself in the agenda of the Learned Chief Justice. She suggests that, Judicial administration must close the gabs through which court users are subjected to exploitation and rent seeking behavior. This demands the removal of as much of the human inter-facing that court work is exposed to. Court officials, she says “are expected to work with independence, with impartiality, competence, and integrity. Much of these ethical values are lost in the heavy traffic of human inter-facing between court officials and court users, including unknown brokers functioning around the courts.” It was therefore comforting that a sitting High Court Judge[2] on 25^th day of June 2024, before she commenced proceedings, had to announce to the hearing of the whole court (both parties and lawyers) that if anyone asks them to bring money to go and see a judge, it is a lie, because she does not dispense justice on the basis of receiving favours, rather if parties have their cases before the court, all she needs is the evidence and their prayers. In one of the courts in Accra, a judge has also caused to be printed and posted to the notices of all that, she does not accept favours from parties and so no one should contemplate of any such or using the clerks of her court for such purposes. These set the tone for the eradication of any such corrupt tendencies or the temptation of same. Indeed, she is not alone in this thought, during the 42^nd Martyrs Day Remembrance service on 30^th June 2024, the subject of Leading with Integrity for a better Ghana, was the focus of the Guest Speaker, Rev. Dr. Fred P. Deegbe, who in his sermon identified widespread corruption in both public and private life, weak institutions, Political Influences among others as challenges facing the nation, (the Bar and the Bench included). He prescribes the following as solutions, Upholding the rule of law, fighting corruption, Ethical Standards and Discipline, Judicial Independence, Collaboration with anti-corruption agencies and called on all concerned to be up and doing in this regard. On Assets, the Chief Justice posits that, “While the goals set for obtaining assets are very broad, ranging from capacity building for a well trained work force, high use of technology, the consistent, assured and well-negotiated support of partners, good housing for all judges and senior to medium level staff, allow me to dwell on one set of assets that must be prioritized and for which the judiciary seeks urgent partnership”. She continues that, “The digitalization of our paper records. We are familiar with the position that the Driver and Vehicle Licensing Authority is the Registry of interest in cars and regulating authority over who can drive in this country. We are also familiar with the position that the Lands Commission is the registry for interests in lands. What I crave your indulgence to notice is that the Judicial Service of Ghana is the general registry for all rights, entitlements and obligations that are the subject matter of orders, rulings and judgments from the courts. We have your records on your rights, and we keep your records on your rights. The courts have been in existence for more than a century. Anyone whose family issues, commercial interests, employment rights have been pronounced on must find these records in the courts. But what is the state of our documentation? It is very difficult to contemplate.” Her Lordship proceeds then to say there us an urgent need to build a modern archive center to store all records emanating from the courts in a coherent and orderly manner that can be easily retrieved whenever citizens and courts users need their records.  At the same time as the records are being stored, they must be digitized for electronic storage and easy retrieval. This in her view is because citizens cannot wait when they need their record for the Judicial System to wade through the boxes and heaps. Her Lordship further posits that, it is only after digitalization that we can even remotely anticipate effective e-justice. Because virtual trials cannot be conducted without electronic dockets. It is a string goal of this Vision Statement to move registries into paperless modes as soon as possible.” The author suggests that when this is done, justice will be delivered to and will be accessed at door step of the citizens. The use of technology and digitalization among others employed to facilitate e-processes. The learned CJ in this regard called for long term partnerships to make this a reality. The introduction or the piloting of the shift systems in some selected courts is also an initiative that will ensure access to justice by all.[3] With this has come the reduction of the work load on some judges, other judges with relatively lesser case load have been assigned to other courts to assist. In recent times, the assignment of a Virtual Court in the High Court Accra to hear applications for Letters of Administration is one step in the right direction. Digitalisation therefore is a major part of the Asset aspect of the LEADing Justice Vision without which, not much will achieved. The subject of Assets and the role it plays in the LEADing justice vision ought not to be left only to the judiciary, stakeholders must put their hands on the deck and support in that regard. It was comforting to hear the Chief Justice comment the various regional branches of the Ghana Bar Association when she said that, “Still on the subject of Assets, I must tell the story of one heart-warming partnership that is already yielding results: the partnership between the Judiciary and the Ghana Bar Association. It started in the Kaneshie court, which had suffered old and tired chairs at the bar, and very sorry state of protection of documentation. Last Christmas, under the able leadership of its national executive, the Ghana Bar Association committee to a ‘one lawyer, one chair’ facility for all courts across Ghana. The Memorandum of Understanding reached to cover this relationship clarified that the judiciary would determine the specifications of chairs, locations and numbers of chairs needed, and the Bar would buy the chairs to ensure decent furniture in court rooms, thereby lessening the budget for court room furniture for the whole nation. Within weeks, the Greater Accra Regional Bar had provided new chairs, and fans for the Kaneshie court rooms.” This leadership drive from the Greater Accra Regional Bar Association under the current leadership of Agbesi Dzakpasu Esq.[4] is according to the learned Chief Justice is already being replicated in other court rooms around the country. The author commends the other Regional Bars for taking a cue from the Greater Accra Regional Bar. The Volta Regional Bar, the Bono Regional Bar, the Western Regional Bar, have all according to the Chief Justice moved in this direction. The LEADing Justice vision in this regard is anchored on a high use of technology to increase speed and transparency in the delivery of justice.

The sovereignty of Ghana resides in the citizens of Ghana according to Article 1 of the Constitution 1992 and justice according to Article 125 of same emanates from the people. It is therefore apposite that the Chief Servant in the Justice delivery system realizes this and is willing to share her vision with the citizens and by so doing opening herself and the institution she leads for accountability.

In so doing, her ladyship the Chief Justice also launched a number[5] of Practice Directions and Administrative Guidelines to address some aspects of legal practice and judicial adjudication, on some of which the author may comment in this piece.

The twelve (12) Practice Directions and Administrative Guidelines that were launched were; Practice Directions on Adjournments and Adoption of Proceedings in part heard Trials in Court, the Practice Direction for determination of Applications for Injunctions to Restrain Burial of a Deceased Person, Practice Directions on Plea Bargaining, Practice Direction in Respect of Prerogative Writs involving Chiefs/Chieftaincy Issues, Practice Directions on Court Connected ADR (Under High Court Civil Procedure Amendment Rules 2020 CI 133), Practice Directions on Commercial Pre-Trial Settlement (Under High Court Civil Procedure Amendment Rules 2020 CI 133), Practice Directions on the Award of Cost, Administrative Guideline for Procedures for online Publication of Judgments and Rulings, Administrative Guidelines on Courtroom Proceedings, Administrative Directions to Aid Expeditious Disposal of Trial by Jury, Administrative Guidelines on Generation of Suit Numbers, Administrative Guidelines on Using the Supreme Court Registry. The mention of the Directive relative to applications for injunction to restrain burial of deceased persons got the applause of the audience at the launch for obvious reasons. The author in this paper seeks to throw lights on some of the various Practice Directions and Administrative Guideline and to discuss how they fit into the Learned Chief Justice’s Leading Justice Vision.

PRACTICE DIRECTIONS ON ADJOURNMENTS AND ADOPTION OF PROCEEDINGS IN PART HEARD TRIALS IN COURT – It is not uncommon to hear parties and their lawyers express frustrations in the justice delivery system with adjournments being one of the main reasons. Adjournment is when the business or proceedings for a particular day cannot be conducted due to several reasons including but not limited to the absence of a lawyer, non-service or short service of a process on opposing party or counsel, ill-health of counsel or party whose presence is a sine qua non for the proceedings, the absence of the judge either due to ill-health, attending training or been invited to the Head Office. Part-heard cases are cases a part of which has been heard by the Court differently constituted because the judge is no longer serving in that court to proceed with the case. There comes the need to either adopt proceedings or commence the trial de novo. These are part of the reasons why cases delay. Even though the High Court Procedure Rules CI 47 provides for Adjournments which is at the discretion of the Court, the Court have said per Anin Yeboah JSC (as he then was), that, “I understand the position of the law to be that all adjournments are subject to the court’s convenience. It is only when an adjournment is refused on illegitimate grounds that an appellate court is bound in the interest of justice to interfere.”[6] His Lordship stressed the point and stated further that, “A court of law is not bound to adjourn a case on the grounds that a lawyer for the party applying for the adjournment had officially written to the trial court to ask for an adjournment on stated grounds. The discretion to adjourn a matter in court is under the rules of court vested in the court and if it is properly exercised, an appellate court will be slow in interfering with such discretion unless it is proved that the discretion was unfairly exercised.” It is imperative that this Practice Direction is introduced to provide directions to ensure proper management and control of adjournments and time by courts including adoption of proceedings in part heard cases, to prevent delays and ensure efficient, effective and expeditious disposal of cases. The overall aim is to avoid the usual delays in the delivery of justice since it is sometimes said that, ‘justice delayed is justice denied’. The elimination of unnecessary adjournments promotes quick access to justice by the citizens.

The rules of procedure as indicated already provides for adjournments save that as compared to the Practice Direction, the provisions in the rules appears terse. The Practice Directions is supposed to be read in harmony with the already existing provisions in the law such as Order 37 of CI 47[7], Order 27 of CI 59[8]. Sections 169, 186 and 263 of Act 30[9], save that in the event of the provisions conflicting, the Practice Directions shall give way to the rules and provisions above.

Adjournments are and have always been at the discretion of the Judge presiding and granted when it is necessary. This discretion must be exercised in accordance with the dictates of the law[10]. In that regard the Practice Directions provide that, a judge may in the exercise of his discretion (and may I add, her discretion), grant or refuse to grant an adjournment in the interest of justice and the adjournment shall be granted only if it is extremely necessary. It is important this is underscored so that parties and their lawyers do not use adjournments as a reason to delay the trial thereby denying the speedy flow of the wheels of justice which automatically grinds slowly as it is said. In so granting, the judge must not only give consideration to the interest of the litigants and counsel but also the impact the adjournment has on the court’s resources and accused persons in criminal cases. Time is of the essence and therefore if the adjournment being sought is not necessary same should not be granted. For example, in the event that a court seeks to give a judgment or a ruling and a request for adjournment is made because counsel is indisposed. The indisposition of counsel should not be a bar to the proceedings or business for the day. Adjournments are necessary in instances where a party has not been served, a party has been short served[11], a party or the lawyer is absent and the absence is not caused by the party at whose instance the adjournment is granted,[12] Proven indisposition of a party or Counsel and their presence is a sine quo non for proceedings, e.g. In a trial (Criminal or Civil) if a witness is unwell or Counsel conducting the trial is indisposed and there is a medical evidence to prove, or that the adjournment is sought to enable the parties attempt an amicable settlement or a party has just engaged the services of a lawyer who needs the adjournment to obtain the proceedings and study the brief. These are some of the few justifications for adjournments. Adjournment is not as of right and the court may refuse under the Practice Directions if, the party or counsel is just not ready (service has been effected, there is proof, counsel is not indisposed), party or counsel is just absent simpliciter and without cause or notification to the court or counsel on the other side, as well as where per the history of proceedings, the party or his counsel has caused delay in proceedings. The list it is suggested is not exhaustive and the presiding judge will exercise a discretion on a case by case basis whether to grant or refuse a request for adjournment. The request for adjournments must be made in writing with stated grounds or reasons for the request, the request must reach the registry of the court three (3) days before the date and copied to the opposing counsel or party as the case may be. Upon receipt of the request, the Registrar shall as soon as practicable bring same to the notice of the judge. Unless otherwise directed by the judge, the request for adjournment does not provide an excuse to parties to absent themselves from proceedings. While thinking of how practical this is, the author was hit with a reality when he in agreement with opposing counsel in a matter wrote a letter to the court for an adjournment. None of the parties nor their lawyers were in court on the said date, the Honourable Court did not grant the date requested by Counsel, but rather a different date. The said date was not communicated by the Court to the Counsel and parties and hence on the next adjourned date as given by the Court, the suit was struck out for want of prosecution. It is submitted that even if Counsel is unable to attend upon the court and writes a letter seeking adjournment, it is imperative that at least the party or the clerk is present to give feedback on whether the date was accepted or what actually transpired. In exceptional cases, the judge would entertain oral applications for adjournments.

COUNSEL MY LORD IS NOT SITTING, TAKE A DATE

Courtroom Practitioners and users are familiar with the phrases, “Counsel My Lord is not sitting, please take a date” or “Counsel My Lord has been invited by the Chief Justice for a meeting or better still, ‘Counsel my Lord is gone for training” or “Counsel, We are not sitting, My Lord is indisposed, you have to take a date…”Sometimes these statements are heard upon reaching the court to conduct proceedings for the day. These are all part of the reasons for adjournments. Adjournment respectfully in the author’s view, are not only occasioned by the litigants and their Counsel. Sometimes, Counsel would have to travel a long distance outside their geographical location, sometimes by air, only to be told upon arrival that the Court is not sitting due to any of the reasons supra. It is respectfully the prayer and submission of the author, (and here the author believes he speaks for other practitioners), that if for any reason, the Court or presiding judge or panel as the case may be, would not be sitting, a mechanism is identified through the use of technology (SMS, WhatsApp messaging, email or any other such), to also notify at least Counsel 48 hours before the proceedings. It is therefore comforting that the Practice Directions makes provisions for these instances as well as details the role all stakeholders must play to avoid delays through adjournments.

This Practice Directions contains provisions on the Duty of Counsel, Judges, Parties and Registrars etc. in avoiding delays and preventing unnecessary adjournments in both civil and criminal cases. It is suggested that if adhered to, hearings will be expedited and delays avoided to ensure smooth administration of justice.

PRACTICE DIRECTION ON RESTRAINT AGAINST BURIAL OF DECEASED PERSONS.

It is important that the courts restrain themselves from granting injunction orders that has the effect of restraining or preventing the burial of deceased persons. The directive is clear that applications of that nature brought within 14 days of the burial must not be entertained by the Courts.  The issue of rights of the family (extended) vis-a-vis that of the nuclear family is one that has remained a bone of contention. It is said in Akan as an adage that “Abusua d) efunu” to wit ‘the Family loves the corpse or dead body’. It is not uncommon to have instances where a family member is deceased and there is litigation over the corpse, the rights of who to decide or have the final say on the funeral date, venue and place of burial. Some of these cases land in the Court where writs are issued and applications for injunctions sought either to restrain the burial or final funeral rites or something similar. The effect of which may hamper the planned funeral. The author had a similar instance where in the case of Otuo Acheampong and Benjamin Kwadjo Fordjour v Benjamin Fordjour  and Enterprise Funeral Services[13] had the unpleasant duty to apply for an injunction for the release of the mortal remains of the Late Bishop Benjamin Kwadwo Fordjour to the family for burial.  The law is settled that the mortal remains or corpse is the property of the family and it is the family that decides how same is disposed of or how the funeral of their member is organized. In the case of Neequaye and Another v Okoe[14], the law was so settled that upon the death of a person, his or her body belongs to the family (extended) and not the nuclear. The learned Lutterodt J (as she then was) who later became Chief Justice Theodora Georgina Woode had this to say in holding 1 thereof, “On the authorities, under customary law, death finally determined the authority which a member of a family had over his person and control and authority over the corpse vested absolutely in the wider family who were responsible for giving the deceased a funeral not only befitting the status he attained in life but one compatible to the social standing of the family in the community and members of the family were obliged to contribute to it. Accordingly, in the instant case, since the children were part of the family of their deceased father they were entitled to take part in the discussions on the funeral arrangements of their father. The widow however had no role to play in the arrangement.”

It has become a worrying trend for some persons related to a deceased person who would wait and proceed to the Honourable Court at the last hour to file an application for injunction against the burial of such persons. It was in the news recently when a High Court in Accra issued an injunction against the burial of the Queen Mother of Ga Mashie[15], only to be reversed by the same court the next day.[16] It is therefore apposite that this Practice Directive is issued to guide the courts in the determination of such applications when confronted with such situations.

The Practice Directions recognizes the sanctity of burial rites and the cultural and family significance of timely and respectful funeral. It also acknowledges the growing concern over abuse of the judicial discretion in the granting of applications for injunctions that seek to restrain the burial if deceased persons, especially when such applications are made at the eleventh hour of the funeral rites. The Practice Directions is not oblivious of the fact that in recent times, there has been an increase in such applications to restrain the burial of deceased persons which lead to undue inconvenience and distress for the bereaved families with the ultimate result of disrupting the solemnity and dignity of the funeral which is deemed to be the last rite of passage.

In a striking effect the Practice Directions makes the point while acknowledging the judicial decision in Neequaye v Okoe cited supra, that, “The corpse of a deceased person is under the control and authority of the family, which includes both the immediate and the wider family members”. In essence this seems to shift from the position that the corpse belongs to the extended family, sometimes to the exclusion of the nuclear family and to that extent same is a welcoming development.

On the procedure of making such applications, the Practice Directions provides that the application for injunctions in that instance must be made promptly with the necessary supporting evidences necessitating the application. An application brought less than fourteen (14) days to the scheduled burial and funeral rites shall not be entertained by a court unless with compelling reasons. Notice should be given to the opposing party unless there are compelling reasons for proceeding ex parte, this according to the Practice Direction is to ensure fairness and an opportunity to contest the application. The authors suggest that these are in accordance with the general principles of law for the applications for injunctions before the Honourable Courts.

The Practice Directions provides further the considerations that should be factored by the Courts in the determination of such applications. These include the Court exercising caution and prudence in granting injunction to restrain burials particularly when the applications are made less than fourteen (14) days to the burial, the inconvenience and expense imposed on the family that is preparing for the burial often overweigh the potential harm to the applicant if the injunction is granted. Another consideration for the Honourable Court is the time of the application relative to the time for the planned funeral, in that regard, it is provided that, “Where an application is brought less than two weeks before the scheduled burial such applications ought to be refused unless there is compelling reason to grant it including adequate undertaking as to damages that may be occasioned due to disruption of pre-arranged burial rites and funeral activities.” It is the submission of the author, that not only should such application brought less than two weeks not be entertained, but if the Honourable Court is not convinced by the reasons for so applying, heavy costs should be mulcted against the applicants. Persons who seek to apply for such injunctions must act timeously. The maxim of equity is that, “equity aids the diligent and not the indolent.” Another factor the court ought to consider is the balance of convenience, the inconvenience and potential harm caused to the restraining party should be weighed against the consequences for the applicant if the injunction is not granted. Like all such applications, the Irreparability of harm must be on the mind of the Honourable Court. The question is whether the harm to the restraining party can be adequately compensated, especially given the irreversibility of the burial and the emotional and financial investments in such funerals.

All in all, the Practice Directions reiterates the principles and considerations that should be on the mind of the court in such applications. In the case of Republic v High Court Kumasi, Ex Parte Nsiah[17], the Supreme Court highlighted the public policy importance of avoiding unburied  bodies. Keeping corpses unburied comes with its own attendant fees and avoidable costs on the families. It was not surprising therefore that the Supreme Court in Ex Parte Nsiahcited supra said that, “We are also of the view that on grounds of public policy, it is inexpedient to leave the body unburied. We therefore order that the body of the late Benkumhene be released by the mortuary authorities to the family of the said deceased for burial forthwith.” Their Lordships continued thus, “We therefore order that the mortuary fees should be paid by the party in whose favour the injunction order was made on the production of the mortuary receipt. The injunction is therefore revoked and discharged.”

ADMINISTRATIVE GUDELINES ON THE ONLINE PUBLICATION OF JUDGMENTS AND RULINGS.

Judgements delivered by the Courts aside being the resolution of disputes also presents itself as a source of law and precedent for other cases of similar nature. In these judgments, legal principles are espoused and applied in the resolution of the disputes before the Court. It is therefore imperative that stakeholders like lawyers, litigants, judges, academics etc. have unimpeded access to these judgments.

Traditionally, we have had the law reports like the Ghana Law Reports (GLR), Supreme Court of Ghana Law Report (SCGLR), Ghana Monthly Journal (GMJ), Monthly Law Reports of Ghana (MLRG), the latter of which are private initiatives to report judgments delivered by the Superior Courts of Judicature on monthly basis or other intervals as determined by them. There is online source like the Dennis Law, The Law Platform, Judy legal among other which stakeholders can also subscribe and benefit from these legal materials like case law. These sources have been valuable to lawyers, academics and judges who have subscribed to same.

With the Administrative Guidelines, judges are mandated to upload their judgments online for easy access. In its instructive preamble, it states that, “Being guided by the provisions of Article 125(4) of the Constitution, 1992, Section 1003 of the Courts Act, 1993 and Order 41 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) as amended, I direct that the typography of (and the upload of) judgments of all Courts in the country including those uploaded onto the E-Judgment or other website approved by the Chief Justice shall be guided by the following directives”.

The objectives of the Administrative Guideline is to ensure easy access by Judges and citizens to legal information and ensure wide publication of all Judgments and empowering of individuals to exercise their legal rights within a democratic dispensation, to enforce the public’s trust in the judiciary through the digitization and easy accessibility of judgments, (emphasis mine), to ensure transparency, accessibility and streamlined system for the dissemination of judicial decisions to the public and legal community; for research; and for monitoring and evaluation. It is also to consolidate and standardize the typography of judgments uploaded on the Judicial Service E-Judgment and related Websites and to ensure uniformity and compliance with best practice in online publication.

The author submits that these are laudable objectives considering the fact that under the law[18], Justice emanates from the people and same shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to the Constitution. The role of citizens in the administration of justice is further given constitutional blessing in the Constitution when it provides thus, “Citizens may exercise popular participation  in the administration of justice through institutions of public and customary  tribunals and jury and assessor system[19]”. It shows an indication of the judiciary holding themselves to account to the people on whose behalf they administer justice.

The Guideline provides that the Judgments and Rulings must be uploaded by the Registrars and Court Recorders onto an online drive that is provided to each court by the Monitoring and Evaluation Department, the Library or other relevant Department. Upon receipt, the Monitoring and Evaluation or relevant department must ensure that the judgments and rulings are uploaded onto the E-judgment platform within 48 hours for possible formatting by the E-Judgment Secretariat. The E-Judgment Secretariat subsequently may upload reasoned Judgments and rulings onto the JTI or approved website. The Guideline is emphatic that the Registrars and Court recorders are not supposed to upload judgments directly onto any external website. To ensure uniformity the Guideline provides detailed indication on the formatting style of judgments and rulings, such as size of paper (A-4), margins Right (1.5), Top 1.5, Bottom 1.5, etc. By this Administrative Guideline, all finalized Judgments and Rulings must be uploaded onto the relevant online drive within seven (7) days of delivery. It is suggested that this will put judges on the alert to release their judgments within a number of days after delivery. This in the author’s view will do away with the syndrome of, “Counsel, the judgment is not ready” or “Counsel my Lord has not yet done the corrections” among several others one hears when following up on judgments and rulings. For Compliance and Monitoring, All Registrars are to ensure that Judgments and Rulings are promptly uploaded onto the relevant online drive, with hard copies kept for archive purposes and no longer to be sent to the Libraries and the Monitoring and Evaluation Department. Periodic audits will be carried out to ensure Judgments and Rulings are being uploaded consistently and correctly onto the relevant online portal. Contact details like telephone numbers and email are provided in events of difficulties in carrying out the requirements of the Administrative Guidelines. The Guideline also provides that the E-Judgment Secretariat and Monitoring and Evaluation Department must submit quarterly reports on each Registry on compliance.

It is the submission of the author, that this Administrative Guideline enhances the access to justice, it seeks to make the judicial decisions of the courts available to all stakeholders without having to wait for weeks, months until it is reported in any of the traditional law reports.

ADMINISTRATIVE GUIDELINES ON COURTROOM PROCEEDINGS

Proceedings are records of what transpired in the Courts. The superior courts are said to be courts of record and that notwithstanding all the courts, both superior and inferior must keep record of its proceedings. The Administrative Guidelines emphasis the general provisions known to law that, hearings shall be conducted in public unless otherwise determined by the rules of court, presiding judges are directed to facilitate the continuous typing of proceedings after every court session and not at the conclusion of trial, to enable parties have access to proceedings speedily. The author welcomes this instruction and suggests that it compliance will greatly help trial attorneys. Some of the Courts actually do this and can furnish you with record of daily proceedings and that enables Counsel to review and even point out errors if any so that it is corrected before the final proceedings are released before written addresses are filed for judgments. There are instances where records are typed and obtained after trial only to find several typographical errors in same and that does not augur well for the administration of justice. It also prohibits the taking of photographs or making of digital copies or transmission by video using any electronic device of court recordings except with the permission of the Presiding Judge or the Chief Justice. Parties may also make or take court notes or proceedings but no one aside the Court Recorder can make an audio recording of proceedings without the permission of the Presiding Judge. It is contemptuous to record proceedings without the permission of the Judge presiding.  The Courts Act provides that, “In proceedings before a Court, the Court may cause oral evidence to be recorded by shorthand, tape recorder or by any other means determined by the Chief Justice.”[20] It continues thus, “The recording shall be done my any officer of the Court or any other person appointed for that purpose”.[21](emphasis mine). The respected trial judge, the learned Afia Serwaa Asare-Botwe, Justice of the Court of Appeal with additional responsibilities as a High Court Judge, trying the case of the Republic v Cassiel Ato Forson and Another,[22] was therefore apt when upon hearing that, there was an audio recording of a previous day’s proceedings circulating on social media, which recording was not sanctioned by the Court and hence she ordered the National Security ordered to investigate the unlawful recording.[23] It remains to be seen what becomes of the order and the outcome thereof.

PRACTICE DIRECTION ON COMMERCIAL PRE-TRIAL SETTLEMENT UNDER HIGH COURT CIVIL PROCEDURE AMENDMENT RULES 2020 C.I. 133 2004

It is not every case that commences in court that must run its full course through trial until judgments. Some cases are terminated and determined at the default stage, others are settled amicably out of court. The guiding principle in the use of the rules of procedure is as stated in Order 1 rule 1(2) which enjoins the court and all to interpret and apply the rules in order to achieve speedy and effective justice, avoid delays and unnecessary expense, while ensuring that as far as possible all matters in dispute or issue between the parties are effectively, completely and finally determined. Any interpretation or application that defeats this purpose in the author’s view must be jettisoned if not disposed into the dustbin of legal inconsequential.

The Procedure Rules at the High Court C.I 47 has special orders/provisions on commercial cases in its Order 58. Where in commercial matters, after close of pleadings the parties are mandated to go through a pre-trial review conference, at which conference parties explore the possibility of resolving their disputes without proceeding to trial. The rules provide thus, “after a reply has been filed or the time for a reply has elapsed, the Administrator or the Registrar of the Court shall within seven days assign the case to a judge for a pre-trial review conference.” The practice has been that if after several of such conferences, the parties are unable to settle their differences, they are ordered to submit their issues and the matter is placed before a different judge for trial to proceed.

This Practice Direction is issued and given to guide the conduct of the Pre Trial Settlement Conferences. It is provided therein that within 14 days after being assigned the case, the judge must invite the parties and enquire from them if they are amenable to having their dispute resolved by Alternative Dispute Resolution (ADR). Their responses must be placed on record. If the parties answer in the affirmative, which is encouraged, the judge shall present to the parties a form which shall be in two parts, the first of which is an agreement to Pre-Trial Settlement and shall be signed by both parties and their respective lawyers (if any) or witnesses. The next stage is the nomination or referral to a mediator which is done on the second form. A mediator is a third party neutral, disinterested person chosen by the parties to assist them in the resolution of their differences. The Alternative Dispute Resolution Act defines a mediator as, “includes an impartial person appointed or qualified to be appointed to assist the parties to satisfactorily resolve their disputes and employees and persons hired by that person.”[24] On this second form, the parties indicate their preferred mode of ADR and the form after being filled is signed and witnessed by the Lawyers of the parties or their witnesses as the case may be. The Registrar then presents the parties with a list or register of qualified Mediators from which the parties make a choice. The Directions provide that the parties may also request the judge to nominate a mediator for them in which case the Judge may do so and sign against the name of the preferred mediator. After that, the necessary course is for the court to stay the proceedings for a period not exceeding 30 days which is to enable the parties explore the settlement through mediation or any other ADR mode chosen, although mediation is the most often used in these instances. Before the mediation proceedings, the parties present a summary of their issue in dispute to be resolved by the mediation in another Form which shall contain details including names of the parties, physical location, GPS, postal and email address, telephone numbers of parties and their lawyers.

The mediation proceedings according to the Practice Directions must be concluded within 30 days from the day of referral. An extension of time may be sought by the mediator in writing should the situation arise for such but same must be done at least 10 days before the expiration of the 30 days. The Court may grant the extension but shall not be more than 14 days. If it becomes necessary for the use or appointment of an expert, like in all ADR processes, the mediator must seek the consent of the parties before same is appointed. If the parties reach a settlement through mediation, they enter into a settlement agreement in terms of Form 4 attached to the Practice Direction which agreement is signed by all the parties, their counsel and the mediator. Within three (3) days of the conclusion of the mediation forward the Form 4 to the Registrar who shall in turn stamp thereon the time and date of receipt. The Registrar then furnishes each party a copy of the Settlement Agreement within 7 days of receipt. The Settlement Agreement is enforceable as a judgment of the Court and when the terms are not enforceable, the Judge shall direct the Registrar to summon the parties for the purposes of settling any outstanding matters with regard to enforceability. On the contrary, if the parties are unable to settle at this stage, the mediator makes a ruling that settlement has failed and he shall place same before the Registrar. The Registrar shall duly stamp and place same fore the judge and the Judge shall record the failure at settlement and proceed to make orders as to the further conduct of the case under Orders 32, 33 and 34.

Getting Stakeholders onboard the LEADing Justice Vision.

It is important to call on all stakeholders to come onboard and buy-in to this welcoming vision of the learned Chief Justice. One way of getting the buy-in of stakeholders is stakeholder education and awareness creation. The Judiciary in recent times, unlike before is seen engaging the masses through the media and opening up to citizens with the aim of educating citizens on the working of the courts. This Strategic Framework must be shared and possibly reduced to the understanding of all and sundry to understand and appreciate the import of the Practice Directives and Administrative Guideline and how it affects delivery of justice in the Republic.

Secondly the Judicial Service itself and players in the sector must stick to the dictates and directions in the Practice Directions as well as other existing laws and not do otherwise. Justice delivery is a process and not an event and so with the launch of the vision and coming into being of the Practice Directions and Administrative Guidelines, the service should not be seen doing otherwise.

The public for whom and on whose behalf justice is being administered must also build confidence in the system and offer their support to achieve the vision of the learned Chief Justice. The public must own the vision and run with it, we should see ourselves as stakeholders and team players. We should not sit on the fence and watch events unfolding because it’s a partnership. In the words of the learned Chief Justice, “…every stakeholder is kindly invited to share ideas and resources with us.”

Recommendations

The author takes the liberties to make a few recommendations for consideration.

1. The Judicial Service may take an advantage of the digitalization agenda of Government to put structures in place to ensure that lawyers and parties are notified in advance if a particular court is not sitting. The current practice is that some courts that has the contact numbers of lawyers circulate such messages to these lawyers who in turn share same on other platform. While that initiative is welcomed and commendable, it is suggested that it be institutionalized

2. It is also the author’s recommendation that the LEADing Justice vision should be drummed home to all courts from the Supreme Court[25] to the Inferior courts[26], possibly and subject to the availability of resources, it should find expression in all the courts. Justice like the Coat of Arms is present and ought to be present in the Courts, so should the LEADing justice agenda find presence in all the courts. It will serve as a constant reminder and that way the agenda is not only limited to the head office or the courts in the capital, but present in all courts in Ghana.

3. It is also suggested that trainings and Continues Education be conducted for stakeholders like court officials to appreciate the vision of the learned Chief Justice. It is only when these stakeholders are aware of the vision that they are able to run with it and achieve the goal.

4. The author also recommends that the entire LEADing Justice vision be reduced in writing and published for circulation. It must have presence and must be visible to all stakeholders. There should be something by way of document people can refer to regarding the vision, that way, the vision will not be abstract to persons for whom the vision is formulated.

5. It is also recommended that there be timelines for the vision so at to ensure measurability on the progress and achievements. Visions must have timelines, it can be argued that the LEADing Justice vision is the vision for the entire tenure of her Lordship the Chief Justice, which unless removed under Article 146 would be till her constitutionally retirement age,[27] but it is humbly suggested that, it is always better for specific timelines within which a certain vision is expected to be achieved. That way, people work towards it with the timeline in mind.

Conclusion

There is no better way to conclude this but with the words of the Learned Chief Justice herself in her closing remarks when she said that, “Ladies and Gentlemen, as you can see I am a very happy person, but you will make me happier if you join us in the judiciary to get these dreams effected.” For the vision is yet for an appointed time, But at the end it will speak, and it will not lie. Though it tarries, wait for it. Because it will surely come, it will not tarry.” Habakkuk 2:3. The author suggests that the vision is written and now clear, may we run the vision to make it a reality. I can only wish her Ladyship well in her tenure and the execution of her LEADing Justice vision.

[1] The 15^th Chief Justice of the Republic of Ghana.

[2] Her Lordship Justice Enyonam Adinyira sitting in Adenta High Court, Accra

[3] https://citinewsroom.com/2024/03/courts-to-have-evening-sessions-as-judicial-service-introduces-shift-system/

[4] Who has recently filed his nomination to contest as President of the Ghana Bar Association at the National Level, the Author wishes him well.

[5] 12 Practice Directions and Administrative Guidelines

[6] Republic v High Court (Fast Tract Division) Accra; Ex Parte Sian Goldfields Limited (Aurex Management and Investment AG/SA Interested Party [2009] SCGLR 204

[7] High Court Civil Procedure Rules

[8] District Court Rules

[9] Criminal Procedure Act 1960 (Act 30)

[10] Article 296 of the Constitution 1992

[11] Rules E (6) (c)of the PD on Adjournments

[12] Rules E (6) (c) of the PD on Adjournments

[13] Suit No. GJ/0176/2022, William Boampong J presiding at High Court General Jurisdiction 5 Accra

[14] [1993-94] 1 GLR 538

[15] https://gna.org.gh/2023/10/court-upholds-interim-injunction-on-ga-manye-naa-dedei-omaedru-iiis-funeral-rites/

[16] https://www.graphic.com.gh/news/general-news/ghananewsvigil-service-for-ga-manye-today-high-court-sets-aside-injunction.html

 

 

[17] [1994-95] GBR 593

[18] Article 125 (1) 1992 Constitution

[19] Article 125(2) 1992 Constitution

[20] Section 69 (1) of the Courts Act 1993 Act 549

[21] Section 69(2) of the Court Act 1993 Act 549

[22] Suit No CR/0198/2022 Financial and Economic Crime Division

[23] https://www.graphic.com.gh/news/general-news/leaked-audio-in-ato-forson-ambulance-proceedings-court-orders-national-security-to-investigate-audio-source.html

[24] Section 135 of Act 798

[25] Article 126(1) The Superior Courts of Judicature comprises Supreme Court, Court of Appeal, High Court and Regional Tribunals.

[26] Circuit Courts and District Magistrate Court or other tribunals as Parliament may by law establish.

[27] Article 145(4) of the Constitution 1992,