The New Directives On Process Filing

The New Directives On Process Filing And Justice Administration In Ghana – A Query

It was my former tutor in Top Ridge Preparatory School in Takoradi along the West Coast of beautiful Ghana many years ago who first gave me an insight into the concept of “justice in erehwon”. Mr. Jonah was my teacher in stage five and as an impressionable kid, one of the things that has stuck with me throughout my life was a piece he delivered in class one afternoon. I believe it was a poem. I believe it was titled “Justice in Erehwon”. Mr. Jonah and the venerable Kwabena Krakye of Akyem Oda in the Eastern forests of Ghana may have contributed to my inability to halt my forays into matters Ghana. The real reason, however, why I have had this flashback to my young school days in Takoradi is that in the past week, there has a been a development in the administration of justice, particularly regarding accessibility to justice, which may have fundamental implications for the rights of all Ghanaians and indeed all persons who come within the jurisdiction of Ghanaian courts in the activation and defence of their rights under law before Ghanaian courts. This development may not have been on the public networks yet but has become the talk of most of my colleague lawyers at the Bar. The discussions have focused essentially on the propriety or otherwise of an administrative decision by the Judicial Service of Ghana on the filing of court processes and the system of payment for the filing of processes in the various courts in Ghana.

Under the old system, every court, including even District Courts, had in place, administrative processes which enabled every person seeking justice before our law courts to be able to file any relevant processes in the Registry of that particular court. Suddenly, and without as much as a notice to the Bar, an edict was given to the effect that no payments for filing processes could be made at the Courts in question but were to be done in designated places like the Supreme Court buildings or the Cocoa Affairs Courts in a defined manner. I have seen a copy of the edict in the window of one of the Registries. It says that “all offenders shall be prosecuted”! Instructively, such payments can only be done at specially designated payment points like the HFC Bank Limited outlet within the Supreme Court buildings. The week in which the original edict was implemented was to say the least chaotic for us as lawyers and for our clients and for the smooth administration of justice. Once again, the judicial service seems to have killed a bug with a bazooka!!! We have gradually settled to the new process filing procedure which seems to have worked for the High Courts and other superior courts in Accra. Indeed, with centralized locations for the courts such as Cocoa Affairs and the Supreme Court area, there were not as many problems as originally anticipated. Things seems to have calmed down now and that may be informing the latest attempt to resurrect the abandoned idea of implementing the directive to all courts within Accra and indeed in some of the major litigation centres like Kumasi and Koforidua.

What are the implications of the new system for the administration of justice in Ghana? As a lawyer myself, I cannot dispute that the Judicial Service may have legitimate reasons for taking such a decision. The fact of non-communication of this defining change in process filing to members of the Bar is no news because we are used to that. The Judicial Service and indeed our own Bar Association, seems to find no merit whatsoever in informing lawyers of such changes in advance. Its common practice to arrive at the law courts in Accra, for example, only to find that Judges are on a 3-day seminar that had been planned six months previously. Typically, all one gets often is lawyers fuming and stranded at the court premises, frustrated. But I digress! On the core issue at hand, it is my humble submission that the proposed solution that the Judicial Service intends to adopt may achieve only the purpose of securing the funds of the Judicial Service but end up with major headaches for poor citizens who need a cost efficient access to justice. When problems do arise with a system, it is all stakeholders who consider it and find solutions that will stand the test of time. These attempts at resolution must help resolve the problems identified but not seek to compound the very problem it seeks to resolve or rather open new vistas for the very problem it sought to tackle to re-emerge. In this matter therefore, it is my expectation that the GBA would act promptly to request a re-think and to tell whoever initiated what may turn out to deny access to justice that they may have made a mistake, not in seeking to tackle an as yet undefined problem but putting in place mechanisms that may defeat the purpose of seeking justice in Ghanaian law courts.

Justice delayed is justice denied. Already, a lot has been made of the delays in the Ghanaian judicial system. Commendable efforts have been made to tackle these problems. Some of these include the establishment of defined divisions of the High Court including the Fast Track and the Commercial Courts. Another example is the promulgation of the High Court (Civil Procedure) Rules, 2004 (C. I. 47). It is therefore baffling to me that after all these commendable efforts at tackling such fundamental problems in the administration of justice, anyone will dream up such a potentially chaotic process at this time in the legal year. I will attempt to illustrate the consequential pains of the proposed system by using the analogy of a citizen who lives in Amasaman who wants to initiate action in the Amasaman District Court.

Ordinarily, when a person resident in Amasaman for example had a problem with someone that required redress in that District Court, that person could walk to the Registry of the District Court in Amasaman or even the nearest Commissioner of Oaths in that community and explain the problem. An affidavit will be duly drawn up for the person to sign and the relevant application for a writ filed on his or her behalf in that Registry. The person would pay the relevant filing fees at the Registry at Amasaman and get relevant receipts at the same time and place from the Judicial Service officials who work in that Registry. The matter may delay but at least the process would have been filed and the person gets his or her day in Court. However, due to this new policy of the Judicial Service, this is what the same person would be confronted with. That person will have to go to the Registry at the Amasaman Court to tell his or her story. An affidavit may be drawn up but instead of paying the relevant filing fees at Amasaman, all the Registry at Amasaman can do now is to asses the fees payable. A form detailing the assessment would be given to the person to take all the way to the Supreme Court buildings in Accra or to the Cocoa Affairs (which is worse in terms of accessibility) to join a queue and fill out pay-in slips. If the person does not have the benefit of education, assistance will be required to fill out those pay-in slips. The person will then make payment at the designated payment point which invariably is a branch of HFC Bank. The person is given a duplicate of the pay-in slip duly stamped after making the payment. That individual will have to return to Amasaman and go back to the Registry of the District Court with the process he or she sought to file in the first place. The duplicate pay-in slip is offered to the cashier of the Court in Amasaman who then has to issue a receipt. The cashier at Amasaman sees no cash but only issues a receipt based on the slip offered by the person. Then and only then, would the processes be accepted for filing by the Amasaman Court. What happens if the person loses the slip on the way back to Amasaman? Will the Amasaman Court accept a photocopy of the slip? Will that person have to go back to the HFC Bank or the Judicial Service for proof of payment? How could any court official possibly determine whether the slips they are receiving are legitimate? How are the reconciliations to be done between the receipts issued by the Court officials and that of HFC Bank sitting in the holy places? Kindly note that this analogy concerns a route that does not make use of legal counsel as is the case in most instances.

Let us try another analogy. If a spouse has an obligation to make payments to an estranged spouse for the maintenance of their children and they live in Amasaman, he will have to do same. He has to cross over to Accra and go through the same process. Does he have to go back to Amasaman to show the slip in order to get receipts showing he has complied with a court order to pay maintenance fees? How does the poor woman access her funds which may be her only means of sustenance for her children? Can the Amasaman Court for example make payment to her when they have received no money? This may be an individual who already is unwilling to make the payments for the upkeep of the children and only the intervention of the law secures the funds for the daily upkeep of the poor kids. Without apologies to anyone, this may be a recipe for chaos! This is what will confront any citizen who wants to access the District Courts in Accra and other defined areas in the wake of the new directive on process filing, whether you live in Osu or Labadi.

I have been involved in discussions at the Bar on the rather vexed issue of delays in trials. Numerous seminars and discussions have been held in an attempt to find lasting solutions to the problem. Indeed, the culmination of these efforts was the revision of the civil procedure rules for the High Courts, leading to the promulgation of C. I. 47. Order 1, rule 1(2) states as follows: “These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”. Instructively, the same rules also made provisions to the effect that non-compliance with the Rules may not at all times, render proceedings void. Order 81, rule 1(1) states that “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”. To my small mind, the framers of the Rules agreed that justice delayed is justice denied. All judges have therefore been empowered by the new Rules to facilitate a speedy yet fair determination of all matters pending before it. Those ‘directive principles of judicial policy’ encompass our drive for fair, equitable and cheaper access to justice in Ghana. It is therefore unsettling to say the least that at this stage when all efforts are geared towards removing bottlenecks in the administration of justice, the Judicial Service will seek to introduce larger-sized bottles in the way of poor Ghanaians seeking justice. Does the judicial Service want people to find alternative dispute resolution mechanisms by making it increasingly difficult to use the conventional dispute resolution options offered by the Courts? One has to bear in mind that even where citizens want to utilize the very laudable Alternative Dispute Resolution (ADR) options available, they will be compelled by this new fiat, to walk the gauntlet of the new process filing directives. How many people in Accra and its outlying areas have the financial resources and the time to travel to a central location in Accra seeking pay-in slips to be returned to the original Court where they seek justice? Why would anyone seek to retain staff that only make assessments and issue receipts but at the same time engage a bank on defined terms and pay fees or commissions? Is the Judicial Service saving money by this process? Is the Judicial Service saving jobs by this process? If there are administrative issues regarding monies collected at the Registries of our courts, they certainly have to be resolved but not at the expense of citizens’ access to justice.

It is my humble submission that in the event that the Judicial Service has its own difficulties with the previous system of process filing, the newly introduced system may only compound the problem for everyone involved, particularly the little guys who seek justice at such small claims courts. The Ghana Bar Association (GBA) may do well to request a rethink of the implementation of this system at the District Courts until adequate consultations have been held to define what particular demon is to be exorcised this time and appropriate solutions defined and implemented without sacrificing all the efforts so far made towards expediting trials in our courts. Certainly, no one can claim that the personnel of the Judicial Service are so bad that a bank has to be given a commission to collect monies on behalf of the Service? Or are they?

One will presume that this is a new process which necessarily would be replicated in all of Ghana. What happens in places which have no banks or Judicial Service-friendly banks?. Is the Judicial Service going to draft rural banks into this exercise?

In my estimation, the new system is increasingly impracticable as I seek to replicate it in my mind around Ghana. If it is not to be replicated throughout the country, then it is even worse. Who decided that the people of Accra, Koforidua or Kumasi deserved this kind of discrimination in our access to justice? Or is it a pilot project? It is a rather sad testament to our approach to problem-solving when one considers that these actions that may deny access to justice and also discriminate in the access to justice nationwide must have necessarily been sanctioned by administrators, financial experts, lawyers and judges. As a young professional, I have always wondered why the typical Ghanaian including lawyers may never express their real opinions in critical issues and allow such measures to be foisted on all of us only to come and sit at the Bar to lament.

I was informed that after the policy was mooted last year and communicated to all the relevant Registries, it was later deemed as impracticable especially in its application to ‘decentralised’ courts. A decision was later taken to exempt outlying courts in Accra from such a process. Why it is being resurrected at this material time is as yet unclear. The seeming success of its application at the already centralized courts like the Cocoa Affairs and the Supreme Court buildings may have led to its resurrection. I wish to implore the Ghana Bar Association to call on the Judicial Service to halt the implementation of this new system at the District Courts until relevant solutions have been found to whatever problem may have motivated this effort in the first place. If not, all the Judicial Service will be doing is affording lawyers another very convenient excuse, to explain away delays in trials which may not even necessarily have emanated from this new “Frankenstein”.

It will also deny access to justice to many people, defeating the very legacy that the Judicial Service itself is trying to establish. I therefore call for a re-think in the application of the directive to the District Courts particularly having due regard to its potential for discrimination in the access to justice in Ghana and effects on the costs of litigation.