DE-FANGING A MONSTER – WHEN RULES OF CIVIL PROCEDURE BECOME UNRULY

A monster is only as good as its fangs... Chinese proverb.

In its complementary character, civil procedure functions as a vehicle for the actualization of substantive law and this role has been likened to that of ‘a handmaid rather than a mistress’ which must not be applied in such a hard and fast manner as to cause injustice in any particular case… In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all. Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take into account the function of that particular rule, and the objective it is intended to serve... Sophia Akuffo JSC, Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21 at 47.

Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case... Collins MR, In Re Coles and Ravenshear [1907] 1 KB 1 at 4.

In 1977, Order 63 of the erstwhile High Court (Civil Procedure) Rules, 1954 (LN 140A), was amended by the introduction of Rule 2A by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107). The then newly-introduced Order 63 Rule 2A(1) provided that when a case closes, the High Court “shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” Rule 2A(2) imposed a duty on the court to deliver judgment as soon as possible after the close of the case (i.e. when the evidence and final speeches or addresses have been concluded) and, and in any event not later than six weeks thereafter. Rule 2A(5) stated that if for some reason the court was unable to deliver its judgment within the specified time, the judge was to immediately write to the Chief Justice, informing him/her about the delay, stating the reasons for it, and giving a proposed date for delivering the judgment. Under Rule 2A(6), any party to the action could also notify the Chief Justice of any delay and request that a date be fixed to deliver the delayed judgment. Rule 2A(7) then empowered the Chief Justice, upon receiving any of the above written notifications, to fix the date and notify the court, which would then be bound to ensure that the judgment is delivered on that date.

There is no doubt that the policy consideration behind this rule was laudable because it was aimed at compelling judges to deliver judgments quickly, thereby facilitating the speedy dispensation of justice. However, the application of the Rule was problematic. What was a status of a judgment delivered after the six-week period, without complying with the rules that demanded the written notification and request to the Chief Justice, to fix a date for judgment? Were the rules on the matter simply administrative or were they mandatory?

There appears to have been no reported cases on this issue until the Supreme Court ‘stepped to the plate’ in Republic v. Judicial Committee of the Central Regional House of Chiefs; ex parte Aaba [2001-2002] SCGLR 545. In a unanimous decision delivered on 25th July 2001, the court granted an application for certiorari to quash a judgment that had been delivered outside the six-week period, and cited and specifically criticized the earlier (1999), unreported decision in the case of PS International v. Godka Group of Companies, where the Court of Appeal had declined to set aside a judgment that was delivered outside the six-week period on the ground that Rule 2A was “purely administrative.” Kpegah JSC, relying on the maxim “justice delayed is justice denied,” was clear in his mind that the framers of the rules intended them to be binding on the courts because of the “obvious reason” that the courts ought not to inflict on parties, interminable delays in the delivery of judgments. He cited with approval, the Nigerian case of Ifezue v. Mbadugha [1984] NSCC 314, and stated emphatically that any judgment delivered outside the mandatory six-week period without extension of time by the Chief Justice was a nullity. Although the learned judge admitted that in Nigeria “the sting in the ratio of Ifezue v. Mbadugha” had been removed by amendments, and that “the courts in Nigeria might have experienced some unpleasant effects of the decision in the Ifezue case, hence the amendments,” he was unwilling to recommend such an amendment in Ghana for two reasons. The first reason was that the Ghanaian situation was different primarily because Rule 2A allowed for extension of time by the application of either the judge or the parties. The second reason was that “after over two decades on the statute books, this [was] the first time that the rule [was] being applied,” and it was therefore necessary that the rule be allowed to work for a while before any useful evaluation could be made as to whether or not it was achieving the intended objectives or resulting in miscarriage of justice. Further, if there were the need for any change at all, his Lordship surmised, that would be the function of the legislature and not the courts.

However, the decision in ex parte Aaba begged a number of questions, such as: how is the pain allegedly inflicted on parties by delays in the delivery of judgments removed, by quashing the delayed judgment and subjecting the parties to a re-trial? Is it not the case that such an approach would simply put the parties to more expense in time and money? Would not a truly liable party simply benefit from the tardiness of a trial judge?

These questions are not answered by the decision in ex parte Aaba. Even more worrying was that the court chose to explain away the fact that in Nigeria, legislative amendments had removed the “sting” and “unpleasant effects” of the Ifezue case. If, as Kpegah JSC stated, Rule 2A was enacted so that litigants would have the benefit of speedy judgments from the courts, it would be ironical that the rule would now turn around and sting the litigants for whose benefit it was enacted in the first place, particularly when litigants have absolutely no control over how and when a judge writes his/her judgment. In effect, if a judge simply reads his judgment one day after the six-week period, the fact that neither the judge nor the litigant notified the Chief Justice and obtained extension of time would completely invalidate or nullify the judgment. The ex parte Aaba interpretation of Rule 2A meant that litigants would pay a heavy price for the failure of a judge to do his/her duty, which duty was imposed, in the first place, for the benefit of the litigants. It is my considered view that the ex parte Aaba decision was not going to simply have a “sting” or “unpleasant effects,” but was going to create a monster that needed to be de-fanged, and de-fanged quickly.

Almost a year to the date of the ex parte Aaba decision (on 24th July 2002), the Supreme Court had another opportunity to consider Rule 2A in the case of Republic v. High Court, Accra; ex parte Expandable Polystyrene Products Ltd [2001-2002] SCGLR 749. This time, the court considered the provisions of Article 157(3) of the Constitution to the effect that a person sitting over a case in a superior court, and who has heard the arguments of the parties, could not become functus officio in respect of that case “until judgment is delivered.” The court accordingly departed from the ex parte Aaba decision, describing it has having been given per incuriam because the court in that case had not considered Article 157(3). Afreh JSC said that both Rule 2A and Article 157(3) had the same goal: a judge who concluded the hearing of a case could not withdraw from it and was required to give judgment as soon as possible after the close of the case. What Rule 2A did, according to the learned judge, was to prescribe a time within which that judgment must be delivered. The parts of the Rule that contained consequential measures upon a failure to deliver the judgment within the six-week period, according to the learned judge, simply showed what should be done under such circumstances. The learned judges of the court were at pains to state that they were not declaring Rule 2A unconstitutional, to the extent that the requirements in the Rule were considered as directory only. Any interpretation that sought to impose a mandatory requirement that would render such a delayed judgment null and void, according to the learned judges, would be unconstitutional.

It is virtually impossible to read the ex parte Expandable Polystyrene decision without shouting “hurray!” This is a clear instance where the court did not wait for legislative amendment to deal with the obvious aberration that ex parte Aaba was. The court gave an interpretation that accorded with justice and practicality, and sought to remove the sting from the ex parte Aaba interpretation of Rule 2A. However, the law report gave a little peek into a gathering storm. Two members of the ex parte Expandable Polystyrene panel, who had been members of the ex parte Aaba panel, Kpegah and Adzoe JJSC, stated that they were “reluctantly” agreeing with the rest of the court. Adzoe JSC went on to flesh out that shared ‘reluctance’ by conceding that “perhaps, if our attention had been drawn to Article 157(3)…, our decision might have been different.” Although the learned judge still felt that Article 157(3) and Rule 2A dealt with “different situations”, he stated, “I have not been able to convince my colleagues on this panel, and I need not articulate my feelings into dissent. It is to this extent that I join my colleagues to dismiss the application.”

In spite of the relief that one may feel upon reading ex parte Expandable Polystyrene, one cannot help but to take note of Adzoe JSC’s “different situations” hint. One would have wished that the learned judge had gone further to “articulate [his] feelings into dissent” by writing a fully-fledged dissenting opinion, expatiating on those “feelings”. This is because it would appear arguable that Article 157(3) and Rule 2A dealt with different situations. Article 157(3) provides as follows:

…no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of the panel determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered.

It is therefore arguable that what this constitutional provision does is to prevent the withdrawal of a judge from a case between the close of that case and judgment. It also prevents a judge, until judgment is delivered, from being deemed to have, in some way, fulfilled the judicial function so that he has no further judicial authority in the case. It might have been preferable if the court had addressed this matter headlong, and Adzoe JSC had given more voice to his “feelings”. But, this was not the end of the matter – not by a long shot.

In an interesting judicial twist, virtually within minutes of delivering the ex parte Expandable Polystyrene decision, the Supreme Court had to deliver its judgment in the case of Godka Group of Companies v. PS International [2001-2002] SCGLR 918. This was an appeal from the earlier, unreported decision of the Court of Appeal in PS International v. Godka Group of Companies, which had attracted the opprobrium of the Supreme Court in the ex parte Aaba case. The Supreme Court upheld the decision of the Court of Appeal, followed its decision in ex parte Expandable Polystyrene, and was once again unanimous in stating that a judgment delivered after the six-week period was not null and void and that Rule 2A was administrative and directory, and not mandatory. Afreh JSC, who delivered the judgment of the court, quoted and immortalised the wisdom captured in the words of Forster JA when the case was on appeal thus:

… litigation as it was at present is already expensive enough. To construe… Order 63 Rule 2A in conformity with counsel’s submission and declare null and void a whole judgment obtained after years of litigation would be most unjust and unfair to the parties who have no control over the delivery of judgments by the courts. The parties would thereby be punished for the indolence and neglect of judicial officer but the real culprits pay no price.

Kpegah JSC was once again on the Supreme Court panel. This time he did not express any ‘reluctance’ or follow Adzoe JSC’s cue in ex parte Expandable Polystyrene. He simply stated as follows: “in view of the position taken by me, namely, agreeing to the decision dismissing the application in [ex parte Expandable Polystyrene], given today 24 July 2001, i.e. this very morning…, I will go along with my colleagues that the appeal be dismissed.”

Almost two years after ex parte Expandable Polystyrene and the Godka judgments, the Supreme Court had the opportunity to directly address the niggling questions that were raised by Adzoe JSC’s unspoken “feelings” in ex parte Expandable Polystyrene, in the case of Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21. This time, the decision of the Supreme Court was by a majority decision. In the lead judgment for the majority, Acquah JSC, as the then was, stated that under Article 157(3), a judge’s jurisdiction in a matter in respect of which concluding arguments had been made, could not be terminated until he has delivered his judgment. His Lordship appeared to take the debate a step further when he held that to the extent that Rule 2A sought to terminate that jurisdiction at a time when the judge had not delivered his judgment, that was incompatible with Article 157(3). He added that the raison d'être for enacting Rule 2A was not to cause hardship to parties who have no control over a judge’s time, but to ensure that the parties are not put to hardship by unreasonable delays. Declaring such a judgment a nullity would be detrimental to, and cause tremendous financial hardship on parties but have no effect on the judge who failed to comply with the rule.

Sophia Akuffo JSC, in concurring with the majority, stated that the only duty created by Rule 2A was that of the judge, who was required to deliver judgment within six weeks. If the judge delivered the judgment after the expiration of that time limit, that infraction of the rule was purely an administrative matter that raised internal disciplinary issues against the judge, and not a substantive issue against the judgment’s validity. Atuguba JSC’s opinion was striking. Although he also agreed with the majority that the application for certiorari ought to be dismissed, he arrived at that conclusion via another route altogether. He found a lot in common between Rule 2A and Article 157(3): that judgment must be delivered once the case closes. The constitutional provision requires the judge to deliver judgment but leaves a gap on the time frame, which is filled by Rule 2A’s requirement that judgment should be delivered within six weeks. In his view, non-compliance with the time limit imposed by Rule 2A was simply a defect that was curable under the rules.

Ampiah JSC started his dissenting opinion by saying clearly that in his view ex parte Aaba was “sound and good law.” He stated that Article 157(3) envisaged a situation where judgment had not been given, and placed an injunction on the judge to sit and deliver judgment. However, if the judge delivered the judgment erroneously, Article 157(3) was inapplicable and the judge, having become functus officio, could not be compelled to deliver another judgment. Although the learned judge agreed with Acquah JSC, as he then was, that the enactment of Rule 2A was not to cause unnecessary hardship on parties, he thought that the provision for appealing to the Chief Justice to enforce the delivery of a delayed judgment was adequate, so that if no opportunity was taken to comply with Rule 2A, the judgment delivered out of time would be rendered null and void. Having started by saying that he found the law in ex parte Aaba to be “sound and good,” his Lordship however stated later “there seems therefore to be a ‘gap’ in the law,” and concluded that “we must be bold enough to take the bull by the horns and ask for an amendment of the provisions of rule 2A.”

One would have thought that the 24th July 2001 Judgments and the ex parte Eastern Regional Development Corporation majority judgment would have finally taken all the sting and bite out of the ex parte Aaba interpretation of Rule 2A, and put the matter to rest. But that was not the case, and the monster, although weakened, was still very much alive and well. In the later case of Opanin Yaw Okyere v. Opanin Appenteng (unreported, Court of Appeal Suit No H1/23/2004, 9th July 2004)), the Court of Appeal, faced with an appeal that was based in part on Rule 2A, resorted to a very imaginative argument to avoid a strict interpretation of Rule 2A along the lines of ex parte Aaba. It does not appear from the judgment that the court’s attention was drawn to any of the previous Supreme Court judgments. Ansah JA, as he then was, was left to avoid the automatic application of Rule 2A on virtually ‘first principles’. He stated that although Rule 2A was mandatory, failure to comply with the Rule did not automatically render the judgment invalid. He explained that the judgment would only be rendered invalid upon non-compliance with the Chief Justice’s directives, after the trial court or party had notified the Chief Justice of the delay in delivering the judgment in the first place. His Lordship’s view was that the rules placed a duty on the parties to notify the Chief Justice of the delay, and that a party who fails to discharge that obligation could not take advantage of the delay.

The learned judge stated as follows:

The language of the rule was mandatory. However, a careful reading of the law shows that failure to comply does not attract as draconian a sanction as rendering the judgment invalid automatically, for the law provided in its wisdom a saving clause, in the event of non-compliance… The procedure is for first, the court to notify the Chief Justice of the delay and the cause and the expected date for the delivery of the judgment. Any party to the proceedings may also write to the Chief Justice and request a date to be fixed for the judgment to be delivered. After the Chief Justice has been so notified, he may fix a date for the judgment to be delivered. The Court has a duty to comply with the directives of the Chief Justice. I incline to the view that it is the non-compliance with the Chief Justice's directives that attracts that harsh consequence of invalidating the judgment.

Nothing showed that this procedure was followed; the plaintiff did not write to inform the Chief Justice of the failure to deliver the judgment within time nor request for a date for the judgment to be delivered and for him to exercise the power he has to issue the necessary directives. Where a law cast a duty on a party and imposed a precondition to exact a penalty in the event of a failure to do an act, (within a prescribed time), before the party could take advantage of that law he should show that he had first discharged the obligation so imposed on him. It has not been shown that the appellant fulfilled the conditions precedent to invalidating the judgment.

This decision of the Court of Appeal was clearly given per incuriam, as no reference was made whatsoever to the earlier, binding decisions of the Supreme Court. It is however interesting to observe how the Court of Appeal was compelled to dance around the monster. And, in the minds of the learned judges, the possibility still existed that a judgment delivered outside the six-week period would be considered null and void – if the court fails to comply with the Chief Justice’s directives issued after he has been duly notified of the delay.

As pointed out above, Order 63 Rule 2A(1) that was enacted in 1977 provided that when a case closes, the High Court “shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” It would appear that the use of the word “shall” in the sub-rule, which according to section 27 of the Interpretation Act, 1960 (CA 4) is to be “construed as imperative”, quietly lay at the heart of the view that the Rule 2A(1) was mandatory (see Luguterah v. Interim Electoral Commissioner [1971] 1 GLR 109 and Brefoh v. The Republic [1980] GLR 679).

This apparently was at the heart of Ampiah JSC’s dissenting opinion in the ex parte Eastern Regional Development Corporation case, and this was the critical part of Rule 2A that required legislative attention. The laudable policy considerations underlying the enactment of Rule 2A stood the risk of being defeated simply because of the way in which Rule 2A(1) was crafted and drafted. What became clear after the ex parte Eastern Regional Development Corporation decision was that the offending fang of the Rule 2A monster was sub-rule 2A(1), and it was that fang that needed to be removed. Without it, Rule 2A would still have the effect that the legislature intended. Under these circumstances it appeared that notwithstanding the pronouncements of the Supreme Court, only legislative intervention by way of an amendment would finally de-fang the monster created by ex parte Aaba, and resolve the matter once and for all. Maybe Ampiah JSC was right after all that “we must be bold enough to take the bull by the horns and ask for an amendment of the provisions of rule 2A.”

The legislature finally caught up with this matter in the High Court (Civil Procedure) Rules, 2004 (CI 47), which came into force on 3rd January 2005. Order 41 Rule 2 virtually re-enacts Order 63 Rule 2A, but completely omits Rule 2A(1).

The duty imposed on the court to deliver judgment as soon as possible after the close of the case and, and in any event not later than six weeks thereafter, is retained. Also retained is the provision that if the court is for some reason unable to deliver judgment within the specified time, the judge must immediately write to the Chief Justice, informing him/her about the delay, state the reasons for the delay, and give a proposed date for delivering the judgment. The right of any party to the action to notify the Chief Justice of any delay and request that a date is fixed to deliver the delayed judgment is also retained. The power of the Chief Justice, upon receiving either of the above written notifications, to fix the date and notify the court, which would then be bound to ensure that the judgment is delivered on that date, is also intact.

It is my respectful view that the provisions of Order 41 Rule 2 of CI 47 have finally and adequately dealt with the situation created by ex parte Aaba, and it must now be considered as settled law that the six-week requirement for delivering judgments is only directory or purely administrative, and not mandatory. In considering the rule, the courts will have to note the removal of the contents of the erstwhile Order 63 Rule 2A(1) from the re-enactment contained in Order 41 Rule 2. It is also expect that if the courts are faced with a similar question under CI 47, the courts will take into consideration Order 1 Rule 1(2), which constitutes the ‘Underlying Principle’ of the rules, and which provides that the rules are to be interpreted and applied to achieve speedy and effective justice, avoid delays and unnecessary expense, ensure complete, effective and final determination of disputes and avoid multiplicity of proceedings. The court will also be expected to consider Order 37 Rule 2, which imposes a duty on the parties, lawyers and the court to avoid delays and ensure that cases are disposed of as speedily as the justice of the case would permit.

It is still required that judges deliver judgments within six weeks from the close of legal arguments or addresses. However, if the judge delivers the judgment outside that stipulated period without having sought and obtained extension of time by the Chief Justice, that alone will not invalidate the judgment. When all the above are considered, it would appear that in Ghana, as was the case in Nigeria, what was required to finally and conclusively de-fang the ex parte Aaba monster and its Nigerian cousin, Ifezue, was legislative amendment.