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Opinions of Sunday, 25 June 2006

Columnist: Aboagye, Joe

"Justice In Erehwon" - The New Rules On Process Filing ....

“Justice In Erehwon” - The New Rules On Process Filing And Justice Adminstration In Ghana – An Insight

It was my former tutor in Top Ridge Preparatory School in Takoradi many years ago who first gave me an insight into the concept of “justice in ereyhwon”. Mr. Jonah was my teacher in stage five and one of the things that have stuck with me throughout my life was that piece he delivered in class one afternoon. I believe it was a poem. “Ereyhwon” is “nowhere” spelt backwards. The real reason 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 has 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 has been given to the effect that no payments for filing processes can be made at the Courts in question but are to be done in the Supreme Court buildings 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 a specially designated payment point within the Supreme Court buildings belonging, rather intriguingly, to a single bank, HFC Bank Limited. The past week, to say the least has been 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!!!
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 dramatic 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, finds 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 knee-jerk reaction to critical problems that the Judicial Service is gradually adopting must end at once. 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 call a halt to the unfolding chaos and to tell whoever initiated what is turning out to be a monumental mayhem on the administration of justice that they have made a mistake, not in seeking to tackle an as yet undefined problem but putting in place mechanisms that will totally 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 splendid efforts at tackling such a fundamental problem in the administration of justice, anyone will dream up such a chaotic process at this time in the legal year. I will attempt to illustrate the folly of the whole 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 poor old lady in Amasaman for example had a problem with a recalcitrant tenant in her property who was refusing to pay rent and had also become a complete nuisance in the property, she could walk to the Registry of the District Court in Amasaman or even the nearest Commissioner of Oaths in that community and explain her problem. An affidavit will be duly drawn up for her to sign and the relevant application for a writ filed on her behalf in that Registry. She 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. Her matter may delay but at least her process would have been filed and she gets her day in Court. However, due to a brainwave someone at the Judicial Service has had, this is what the same old lady would be confronted with. She will have to go to the Registry at the Amasaman Court to tell 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 her to take all the way to the Supreme Court buildings in Accra to join an almighty queue and fill out pay-in slips. She will then make payment at the designated payment point which is a branch of HFC Bank located within the Supreme Court buildings. She is given a duplicate of the pay-in slip duly stamped after she makes the payment. She will have to return to Amasaman and go back to the Registry of the District Court with the process she sought to file in the first place. The duplicate pay-in slip is offered to the cahier of the Court in Amasaman who then has to issue a receipt to the old lady. The cashier at Amasaman sees no cash but only issues a receipt based on the slip offered by the said old lady. Then and only then, would her processes be accepted for filing by the Amasaman Court. What happens if she loses her slip on the way back to Amasaman? Will the Amasaman Court accept a photocopy of the slip? Will she 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 seeing 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 place? 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? Can the Amasaman Court for example make payment to her when they have received no money? Without apologies to anyone, this is a recipe for chaos!
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. It is therefore baffling to say the least that at this stage when all efforts are geared towards de-bottling 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? How many people in Accra’s 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 has to do assessments and then issue receipts and at the same time engage a bank on undefined terms and pay fees or commissions to that same entity? Is the Judicial Service saving money by this process? Is the Judicial Service saving jobs by this process? My answer is a definite NO! Why would the Judicial Service give the Judicial Service Association of Ghana (JUSAG) reason to potentially embark on another illegal strike because some of their staff have to be laid off and the money given to a bank when they could probably do the same job for a fraction of the money the said Bank will be getting?
It is my submission that even in the event that the Judicial Service has its own difficulties with the previous system of process filing, the newly introduced system has only compounded the problem for everyone involved. I am also surprised that the GBA will allow such a chaotic system to be foisted on Ghanaians. The GBA must demand an immediate halt to the implementation of this system 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? Our energies need to be expended on more beneficial issues and not dealing at this stage with an obviously ad-hoc, ill-thought out, knee-jerk reaction to problems that will ultimately offer no solutions whatsoever but rather introduce a fresh set of problems for all Ghanaians.
How did HFC Bank get that deal? Was it open to tender from all the banks? It is intriguing that only HFC Bank has suddenly been ensconced in the Supreme Court Buildings as the only “certified bank” of the Judicial Service. One will presume that if this is a new process which necessarily would be replicated in all of Ghana, the best placed bank will be the one which has a lot more branches nationwide. Indeed, there may be places in Ghana with courts which have no 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, then it is even worse. Who decided that the people of Accra or Kumasi deserved this kind of discrimination in our access to justice? It is a rather sad testament to our approach to issue-solving when one considers that these actions that are creating so much chaos in the administration of justice must have necessarily been sanctioned by administrators, financial experts, lawyers and judges. As a young professional, I have always wondered why the typical Ghanaian may never express his real opinions in critical issues at critical meetings and allow such measures to be foisted on all of us only to come and sit at the Bar or in another place ands state that, “I knew that it will not work”. A lot of uncomplimentary things are being spewed at the Bar but no one is as stupid as me to express an opinion publicly. IF we however do not and cannot express an opinion on matters affecting our welfare as a people, what is the use in being a member of the Judicial Service Council? Frankly, al the people involved in this decision should have known better and not approve of what is becoming an impossible situation for justice administration in Ghana.
When I was leaving the High Court earlier today, I was told that it has dawned on whoever made that decision that it was impracticable and that a decision was being made to exempt outlying courts in Accra from such a process. All these inconsistencies do not help. The new system is bad. Bad for lawyers! Bad for litigants! Bad for all people in Ghana and bad for the Judicial Service! I wish to implore the Ghana Bar Association to call on the Judicial Service to halt the implementation of this new system 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 all 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 a lot our people, defeating the very legacy that His Lordship, Justice George Kingsley Acquah, Chief Justice is seeking to build.

JOE ABOAGYE DEBRAH Esq.
Legal Practitioner
Accra 210606


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