Parties resort to the courts in expectation of a prompt and just resolution of their disputes. The rules of court have, therefore, been enacted to achieve the purpose by providing an avenue to litigants for quick redress.

Order 1 rule 1 (2) of the Civil Procedure Rules of Court, 2004 Constitutional Instrument (C.I.), 47, as amended, provides 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.” These are the words of the first rule of the procedural law that guides the civil courts in the delivery of justice in Ghana.

Let us, first, begin by isolating particular words and/or phrases from the Rule for later examination and analysis.

“interpreted and applied; speedy justice; avoid delays and unnecessary expense”.

To the question as to who interprets and applies the law, the answer, we know, is the Courts. The next question is: Do the Courts accurately interpret and apply the rules? The answer may be in the affirmative, to a large extent. Flowing from this answer, is the next question as to whether or not the interpretation and application of the rules achieve the goal of speedy justice; whether or not the accurate interpretation and application of the rules ensure the avoidance of delay; and whether or not the accurate interpretation and strict application of the rules reduce the cost of litigation.

Civil litigation begins with the filing and service of a Writ of Summons and a Statement of Claim by a Plaintiff or Plaintiffs on a Defendant or Defendants. By the rules, a Defendant must enter Appearance within eight (8) days after being served with the Writ and file a Defence within fourteen (14) days after entering Appearance. This apparently-simple process of filing, service, entering Appearance, and filing a Defence is one of the stages where resistance to speed is encountered most and occasioning, thereby, great delay. Many a time, a Defendant files Appearance or Defence only after the Plaintiff has filed an Application for Judgment in Default of Appearance or in Default of Defence. And almost invariably, the Courts are unwilling to grant the Application for Judgment in Default of Appearance or Defence while costs are awarded against the Defendants for the suit to be determined on its merits. One would realise that by the time a late Appearance or Defence is filed and orders are made for the suit to take its normal course, a lot of time has elapsed and a lot of money has been spent by the Plaintiff who has had to pay for searches, filings and service of processes.

In interpreting and applying the rules for effective justice delivery, the courts are guided by the “Audi alteram parten” rule or principle. The Latin expression means “Hear the other side as well.”, which means the other party in the suit has a right to be heard or that the other party deserves to be put on Notice at all times and is not taken by surprise.

Under Order 7 rules 1, 9 (1) and 11 of C.I. 47, as amended, Proof of Service is required on the court docket of the Suit in order for hearing to legitimately proceed without the party who has been served with a process. In other words, Proof of Service means a party to whom service has been directed has actually received notice of a process; hence the Court can proceed in his absence.

In Andani vrs Abdulai (1982-83) GLR 1080 at 1084, SC, Adade JSC, held that Proof of Service must be beyond reasonable doubt, requiring that service should be authenticated by a sworn Affidavit.

In Re Ntrakwa (Dec’d). Bogoso Gold Ltd. vrs Namakwa [2007-2008] SCGLR 389 at 392, the Supreme Court held that strict proof of service inures to natural justice and that an Affidavit of service is prima facie evidence that the person has been served. This is referred to as procedural due process without which any decision is a nullity or void.

It appears, however, that a strict interpretation and application of this rule , rather than promote speedy justice, encourage delays with its accompanying high cost of litigation. For many a time, a party is in court, hoping to move an Application after having served Notice on his or her opponent, only to be confronted with the absence of a proof of Service on the court docket. The case, then, is adjourned and the party in court is ordered to serve a Hearing Notice on his or her opponent. It is worthy of note that many court bailiffs have achieved notoriety in failing to prove service after serving processes on litigants and are, therefore, mainly responsible or the inconvenience caused to litigants in court when their cases have to be adjourned for the absence of proofs of Service on the court dockets of their cases. Indeed, at times, cases have to be put on hold while Lawyers and their clients go hunting for bailiffs to come and explain. All these come at great cost to the litigant, who must pay for the filing, service and the Lawyer’s presence in court

,m In effect, effective justice delivery becomes elusive in the face of delayed or prolonged court proceedings, which come at a high cost for litigants. Indeed, the saying goes that “The wheels of justice grinds slowly.”, although it defeats the goal and purpose of Order 1 r 1(2) of C.I. 47.

One other disturbing source of delays in justice delivery is that of adjournments. As a Lawyer, I have encountered such adjournments which, in one instance, prolonged the case for six (6) years. In December 2016, I filed a Divorce Petition at the Divorce & Matrimonial Court three (3) and judgment was delivered in May 2022. In another case at the Land Court Division in Accra, the case is fraught with adjournments. Many a time, after painstaking agreement on specific dates, one arrives in Court only to be confronted with a letter from Counsel on the other side that he or she would not be in Court, for which reason hearing dates will have to be rescheduled, sometimes at the convenience of the Court’s diary. At other times, parties and their Lawyers are in Court only to be told that the Judge was either attending a meeting or a seminar or is on leave. In the Divorce Petition case, for example, the adjournments would span the period from July through the legal vacation to October or even beyond.

The writer is a Journalist and a Lawyer.