1 Litigation – Preliminaries
1.1 What type of legal system does your jurisdiction have? Are there any rules that govern civil procedure in
your jurisdiction?
Ghana practices the common law legal system. The legal system accordingly adheres to the principles of stare decisis and the
doctrines of equity.
All civil courts have specific rules which govern procedure.
All court rules are made as Constitutional Instruments (C.I.)and have statutory effect.
■ The District Court procedure is governed by the District Court Rules 2009 (C.I.59) as amended.
■ The High Court and Circuit Court procedure are governed by the High Court (Civil Procedure) Rules 2004 (C.I.47) as amended.
■ The Court of Appeal procedure is governed by the Court of Appeal Rules 1997 (C.I.19) as amended.
■ The Supreme Court is governed by the Supreme Court Rules 1996 (C.I.16) as amended.
1.2 How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are
there any specialist courts?
The civil court system in Ghana consists of the Superior Courts and the Lower Courts. The Superior Courts consist of the Supreme Court, the Court of Appeal, and the High Court in hierarchical order. The Lower Courts consist of the Circuit Courts and the District Courts.
An appeal from the District Court goes to the High Court. Appeals from the Circuit Court and the High Court go to the Court of Appeal, and an appeal from the Court of Appeal lies with the Supreme Court.
There are several specialized courts. These include the Probate, Divorce/Matrimonial, Commercial, Human Rights, Land Industrial/Labour, and Financial Courts.
1.3 What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe
(please include a brief description of any expedited trial procedures)?
Generally, the main stages of civil proceedings at the High Court and other courts of the first instance are as follows:
- Commencement of case, by the issuance of a writ of summons, originating motion or petition or as stipulated by any
enactment. - Pleadings: Settling of pleadings includes the filing of:
- the statement of claim (to accompany the writ of summons);
- the statement of defense (with any counterclaim to be filed within 14 days after the time for entry of appearance), if the defendant intends to defend the action; and
- any reply to the defense or defense to a counterclaim to be filed within seven days after the receipt of service of the statement of defense or counterclaim.
- Disclosure of documents (within 14 days after the closing of pleadings).
- Directions: Application for directions (after the close of pleadings for the court to consider all outstanding matters, set down issues for trial, and give directions for the conduct of the matter). Timelines are given by the judge for the filing of witness statements and for the case management conference (CMC).
- At the Commercial Court, there is a mandatory pre-trial review conferencing stage after the close of pleadings to assist the parties to attempt settlement or consider alternative dispute resolution (ADR). The case will move to the CMC stage if settlement fails.
- CMC.
- Trial (there are no set timelines for trial proceedings). After trial, the judge will take written addresses from legal counsel and is required to deliver judgment within six weeks after trial.
- Any appeals against the final judgment of the court must be filed within three months after the judgment is delivered. The civil procedure rules do not make provision for any expedited trial procedure.
1.4 What is your jurisdiction’s local judiciary’s approach to exclusive jurisdiction clauses?
Exclusive jurisdiction clauses are generally respected and enforced in Ghana. Contracting parties may agree on the exclusive dispute resolution forum to resolve their contractual issues and these are generally enforceable in the law courts. The courts will usually stay proceedings which are brought before them in breach of such exclusive jurisdiction agreements. The enforcement of exclusive jurisdiction clauses is subject to any implied statutory provisions and public policy.
1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there any rules on cost budgeting?
Costs in civil litigation can vary considerably, depending primarily on the monetary value of the claim, length and complexity of the case, and counsel’s legal fees. Costs normally arise from court filing fees, legal fees, litigation expenses, and costs awarded against a party by the court. Non-resident litigants may also be required to provide security for the resident party’s costs.
Unless the parties agree otherwise, the awarding of costs in civil proceedings is at the discretion of the court. The principle of “costs follow the event” ensures that the losing party will normally be made to pay costs to the winning party to compensate for the party’s reasonably incurred costs/expenses. Unless a party is funded by legal aid or another source, they would bear these costs as stated. There are no court rules on cost budgeting.
1.6 Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible?
There are no statutory rules on litigation funding in Ghana. It is permissible for legal practitioners to accept contingency/
conditional fees for their services. The guidelines on these fees are provided for by the Ghana Bar Association Scale of Fees.
1.7 Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?
As a general rule, a litigant must have the capacity to sue or be sued in an action to maintain same in court. An agent of a party
can only litigate in the name of the principal. However, the rules of court make provision that if during a court proceeding,
the interest or liability of a party is assigned, transmitted, or devolves onto some other person, the court may order or grant
leave for the substitution of that party for the other person. There are no statutory rules barring a non-party to litigation
proceedings from financing those proceedings. Contingency fee arrangements, for instance, are permissible as stated above. However, the common law principles of champerty and maintenance, which seek to restrict the selling and third-party funding of litigation, are applicable in Ghana.
1.8 Can a party obtain security for/a guarantee over its legal costs?
A defendant to a suit at the High Court may apply to the court for security for costs in limited circumstances. These include
where the plaintiff is ordinarily resident outside Ghana or the defendant can prove to the court that the plaintiff’s conduct and
posture in the matter are calculated to evade the consequences of the litigation.
2 Before Commencing Proceedings
2.1 Is there any particular formality with which you
must comply before you initiate proceedings?
Generally, there are no formalities or pre-action protocols to follow before initiating civil proceedings in Ghana. However, in
some cases, a person may have to obtain the leave of court or notify the intended defendant before initiating proceedings. Generally, actions against the State, for instance, must be preceded by a 30-day notification to the Attorney-General.
2.2 What limitation periods apply to different classes of claims for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as substantive or procedural law issues?
Time limits for effecting proceedings are a substantive law the issue under the Limitation Act of 1972 and provide a complete
defense to a claim. Pursuant to the Act:
- Actions barred after two years include slander, seduction, and recovery of penalty or forfeiture under a statute.
- Actions barred after three years include actions in tort.
- Actions barred after six years include intentional and strict liability torts, actions founded on contract, enforcement of
arbitral awards and recovery of rent. - Actions barred after 12 years include land, enforcement of mortgage securities, execution of an arbitral award under seal,
recovery of tax and its related matters by virtue of an enactment, execution of a judgment, and estate matters.
The limitation period commences from the date the cause of action accrues.
3 Commencing Proceedings
3.1 How are civil proceedings commenced (issued
and served) in your jurisdiction? What various means of
service are there? What is the deemed date of service?
How is service effected outside your jurisdiction?
Is there a preferred method of service of foreign
proceedings in your jurisdiction?
Proceedings are commenced by writ of summons, originating motion, or petition. These processes are issued when they are
stamped with the seal of the court at the requisite registries of the court. Service of process is performed by the courts. Most legal processes are required to be served personally or by substitution on a party.
The deemed date of service is the date when the process is delivered to the party in person (or its lawyers) or the date the
service is effected as ordered by the court. Where the service is to be effected out of the jurisdiction or by substitution, leave of court must first be obtained. After leave is granted to serve outside the jurisdiction, a notice of the writ is served either by courier or through diplomatic channels. Service outside the jurisdiction is mostly done by courier
service.
3.2 Are any pre-action interim remedies available in your jurisdiction? How do you apply for them? What are the main criteria for obtaining these?
The court rules in Ghana do not make provision for pre-action interim remedies in civil matters. Interim remedies may be
obtained only after an action has been commenced at the courts.
3.3 What are the main elements of the claimant’s pleadings?
A claimant’s (plaintiff)’s pleading entails a statement of claim and any reply to the defense. A statement of claim must contain:
- The title to the suit, including the name of the court and its
location. - The names and addresses of the parties or their agents.
- A description of the pleading.
- A concise statement of the material facts giving rise to the action.
- The reliefs sought and the date and time the action was
filed.
3.4 Can the pleadings be amended? If so, are there any restrictions?
Generally, pleadings can be amended at any stage of the proceedings, even on appeal. Amendments with leave of court
are normally granted pursuant to costs or other terms as the court may deem fit.
An application for leave to amend may not be granted if the amendment: is irrelevant; would result in a surprise, injustice or
prejudice to the other party in a way that cannot be compensated for, or changes the nature of the case, or allows the amending
party to set up an entirely new case on a different set of facts.
3.5 Can the pleadings be withdrawn? If so, at what stage and are there any consequences?
A plaintiff to a suit can withdraw or discontinue the action, or any part of it, at any stage before judgment in the matter is delivered. Parties to a matter can settle or discontinue the action at any time. A plaintiff may discontinue an action without leave of court after receiving the statement of defense, but before taking any step thereafter. Where leave is required to discontinue an
action, the court may grant the leave pursuant to terms which may permit or prohibit future re-litigation of the same matter.
Depending on how far the suit has traveled, costs may be awarded against a plaintiff who withdraws or discontinues a
lawsuit.
4 Defending a Claim
4.1 What are the main elements of a statement of
defence? Can the defendant bring a counterclaim(s) or
defence of set-off?
A statement of defense must contain the following:
- The title to the suit, including the court and its location,
date and time the defense was filed. - The names and addresses of the parties or their agents.
- A description of the pleading.
- Specific denial of any allegation in the statement of claim that is not intended to be admitted. Any alternative version of the facts in the dispute.
- A defendant can raise a counterclaim against the plaintiff, or any third party, he has cause of action against in the matter. A
defense of set-off can be raised and enforced against a plaintiff. A counterclaim must be attached to the statement of defense.
4.2 What is the time limit within which the statement of defense has to be served?
A statement of defense is served by the court immediately after filing. There is no specified time limit for service.
4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party?
Under the High Court (Civil Procedure) Rules, C.I.47, a defendant may affect a claim against a third party for contribution, indemnity, or some other remedy relating to or connected with the original subject matter of the suit.
Third-party applications are made ex parte and must be supported by an affidavit stating the nature of the claim made by the plaintiff, the stage of the proceedings, the nature of the claim made by the applicant, the facts on which the third-party
notice is based and the name and address of the third party.
4.4 What happens if the defendant does not defend the claim?
Where a defendant fails to defend a claim, a default judgment may be entered against the defendant. Depending on nature
of the claim, a default judgment may be final or interlocutory, and this curtails the ability of the defendant to defend the action
any further, unless the judgment is set aside. A default judgment may be entered in favour of the plaintiff if
the defendant fails to acknowledge receipt of the writ and enter appearance or fails to file a statement of defense to the court
within the stipulated time frame.
4.5 Can the defendant dispute the court’s jurisdiction?
Yes. Several enactments allocate exclusive jurisdiction of certain matters to specified courts. Parties may also agree on the exclusive forum to resolve their contractual disputes. A defendant may accordingly dispute or object to the jurisdiction of the court
to resolve a matter.
5 Joinder & Consolidation
5.1 Is there a mechanism in your civil justice system
whereby a third party can be joined into ongoing
proceedings in appropriate circumstances? If so, what
are those circumstances?
The High Court (Civil Procedure) Rules (C.I.47), and the rules of other courts of the first instance, make provision for the joinder
of third parties to ongoing proceedings. A third party’s written consent is needed to be joined to a suit as a plaintiff.
Generally, the courts will grant leave for the joinder of any person who ought to have been joined as a party, or whose presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely
determined. An application for leave to join a third party to pending proceedings can be made by ex parte motion to the court,
supported by an affidavit showing the facts which serve as the basis for the joinder.
5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances?
The civil procedure rules for all the courts permit the consolidation of closely connected claims or cases which are factually based on the same subject matter. The policy consideration is to save time and expense, avoid multiplicity of proceedings and avoid conflicting judgments of the courts on the same matter.
5.3 Do you have split trials/bifurcation of proceedings?
The civil courts have discretion to split or order separate trials of proceedings if claims in respect of two or more causes of action are included in the same action, and it appears to the court that the joinder of the causes of action may embarrass or delay the
trial or is otherwise inconvenient for the court.
6 Duties & Powers of the Courts
6.1 Is there any particular case allocation system
before the civil courts in your jurisdiction? How are
cases allocated?
Generally, cases at the courts are allocated by court managers using a computerized system. However, the Courts Act 1993
empowers the Chief Justice to transfer a case from any judge or court to a different judge or court at any stage of the proceed-
ings for its determination.
6.2 Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?
The civil courts have wide case management powers with the overriding objective 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 is avoided.
Active case management by the courts takes place during the application for directions and CMC stages of proceedings. At
the Commercial Division of the High Court, the pre-trial review conference stage also presents the court with the opportunity to
manage the case by assisting the parties in attempting to settle the matter or to amicably resolve it through ADR.The case management powers of the courts enable them to:
- Encourage the parties to resort to ADR to resolve the matter.
- Facilitate the amicable settlement of the matter.
- Identify the actual issues that require full investigation at trial and summarily dispose of those that do not require full trial.
- Consider the preparations for trial so that all matters which have not already been dealt with may, as far as possible, be dealt with; and directions may be given as to the future course of the action to secure the just, expeditious, and inexpensive disposal of it.
- Set a timetable for the taking and giving of evidence and
the conduct of the trial.
The parties in a matter have a wide range of interim applications which are able to be made. These include interlocutory injunctions; interim preservation of properties; requests to answer interrogatories; orders for specific disclosure; requests to
admit facts and the authenticity of documents; requests for stay of proceedings while parties try to settle the case by ADR; and
applications for security for costs. Generally, costs are awarded by the courts to a successful
applicant. This is, however, discretionary and may not be awarded in certain circumstances.
6.3 What sanctions are the courts in your jurisdiction empowered to impose on a party that disobeys the court’s orders or directions?
A person who willfully disobeys the order of a court risks being punished for contempt of court or made to pay costs for their
disobedience.
Where a party fails to comply with any directions given at a CMC or a pre-trial review, the presiding judge is empowered to:
- strike out the action, if the non-complying party is a plaintiff;
- strike out the defense and counterclaim as the case may be, if the non-complying party is a defendant;
- order any party to pay costs; or
- make any other appropriate order.
6.4 Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, at what stage and in what circumstances?
The courts have the power to strike out a pleading at any stage of the proceeding and can order the action to be stayed or
dismissed, or enter judgment for a deserving party. The circumstances which may trigger these include situations where the
pleadings disclose no reasonable cause of action or defence, or are scandalous, frivolous, vexatious or likely to prejudice, embar-
rass or delay the fair trial of the action or otherwise constitute abuse of the process of the court.
6.5 Can the civil courts in your jurisdiction enter summary judgment?
The courts have jurisdiction to enter summary judgment to summarily determine most cases without holding full trial
where it is established on an application that the defendant has no defense to the claim or any part of it, except with regard to
the quantum of damages. Summary judgment is only available to determine claims or counterclaims and cannot be applied by a defendant to summarily defend against a suit. Summary judgment will not be granted by the courts in the
following matters:
- probate, matrimonial or maritime proceedings;
- claim or counterclaim for defamation, malicious prosecution, seduction or breach of promise of marriage; or
- a claim or counterclaim based on an allegation of fraud.
6.6 Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? If so, in what circumstances?
The courts have inherent jurisdiction to stay their own proceedings pending the hearing of an interlocutory appeal against their
the decision to ensure the efficient conduct of the proceedings. The court may also dismiss proceedings which constitute an abuse of its processes, such as frivolous, vexatious, or harassing proceedings or those which are manifestly groundless or in which there
is clearly no cause of action.
Disclosure
7.1 What are the basic rules of disclosure in civil proceedings in your jurisdiction? Is it possible to
obtain disclosure pre-action? Are there any classes of documents that do not require disclosure? Are there any special rules concerning the disclosure of electronic documents or acceptable practices for conducting
e-disclosure, such as predictive coding?
Parties to civil proceedings are required to disclose to each other documents which are relevant to the suit and are in their
possession, custody, or power. Pursuant to the High Court (Civil Procedure) Rules, parties to an action are required to effect
disclosure within 14 days after close of pleadings. A party is also at liberty to request specific disclosure and procure a court order to enforce the same if necessary. Failure to comply with disclosure requirements can lead to:
- Dismissal of the action.
- Striking out of the defense and judgment entered
accordingly. - Committal for contempt.
- Restriction on the use of a non-disclosed document as
evidence.
The concept of pre-action disclosure is not known to Ghanaian courts.
There are no special rules or acceptable practices on the disclosure of electronic or digital evidence. The usage, reliability, admissibility, or authenticity of any digital or electronic evidence in civil courts must, however, generally comply with specified provisions in some statutory enactments including the Electronic
Transactions Act, 2008 (Act 772), the Evidence Act 1975, Order
63 (17) of the High Court (Civil Procedure) Rules, Article 18
(2) of the 1992 Constitution and the Data Protection Act 2012.
7.2 What are the rules on privilege in civil proceedings in your jurisdiction?
A party in possession of privileged information is not required to disclose it to any other party unless compelled to do so by a court. Documents may also be withheld and exempted from disclosure in the public interest. Privileged information includes communication between a lawyer and his client; information on mental health treatment; religious advice; state secrets; trade secrets; and marital communication. A person also has a privilege against self-incrimination.
However, a party can waive their right to keep privileged information confidential. A lawyer can disclose privileged information if the disclosure is to prevent the commission of a crime or if it is established that the lawyer’s services were obtained to commit a crime. Where a party claims privilege to prevent the disclosure of confidential information, the confidential information is presumed to be privileged unless the party seeking to disclose the information establishes that the confidential information is not privileged. A party dissatisfied with the ruling of the court on the disclosure of privileged information can appeal against the decision.
7.3 What are the rules in your jurisdiction with respect to disclosure by third parties?
The courts may, for reasonable cause shown or in the interest of justice, order any third party to effect disclosure to the court
or a party in respect of a matter before the court. A party may also cause the court to issue a writ of subpoena against any third
party to produce documents and give evidence on any matter before the court. Where a third party required by the court to effect disclosure or give evidence is outside of Ghana, an application may be made to the court for an order to request the judicial authority of the country in which that third party is to take the document or evidence on behalf of the court. Third-party evidence or disclosure may also be obtained from persons abroad through Ghana’s diplomatic missions.
7.4 What is the court’s role in disclosure in civil proceedings in your jurisdiction?
The courts primarily support the litigating parties with the disclosure process by making and enforcing disclosure orders.
The courts may also supervise mutual disclosure by parties.
7.5 Are there any restrictions on the use of documents obtained by disclosure in your jurisdiction?
There are no express restrictions on the use of disclosed documents.
8 Evidence
8.1 What are the basic rules of evidence in your jurisdiction?
All relevant evidence to the determination of a matter is admissible, unless as otherwise provided by law. According to the Evidence Act 1975, relevant evidence includes evidence which makes the existence of any fact that is consequential to the determination of the action more or less probable than it would be without the evidence. Evidence which is relevant to the credibility of a witness or hearsay declarant is also relevant evidence.
8.2 What types of evidence are admissible, and which ones are not? What about expert evidence in particular?
All relevant evidence is admissible, including expert evidence. The court may, however, exclude relevant evidence if the proba-
tive value of the evidence is substantially outweighed by:
- considerations of undue delay, time wasting, or needless presentation of cumulative evidence;
- the risk that the admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or
- the risk, in a civil action, where a stay is not possible or appropriate, that the admission of the evidence will unfairly surprise a party who has not had reasonable grounds to anticipate that the evidence would be offered.
8.3 Are there any particular rules regarding the calling of witnesses of fact, and the making of witness statements or depositions?
Under the rules of evidence, every person is competent to be a witness of fact except as otherwise provided by law. A person
may, however, be disqualified as a witness if he is incapable of expressing himself to be understood, directly or indirectly, by
the court. A person may also be disqualified as a witness if he is incapable of understanding his duty to tell the truth.
A witness of fact must have personal knowledge of the matters he gives evidence on, except in cases of hearsay evidence or as
an expert witness. The High Court (Civil Procedure) Rules require the court to order parties to file and serve witness statements of the oral evidence parties intend to rely on in relation to any issues of fact before the court. A witness statement must contain the
written statement of the evidence a witness intends to give at the trial of a matter. It must be signed by the witness, verified by
a statement of truth, and served on each party to the suit. The witness statement will stand as each witness’s evidence-in-chief
to the court. The evidence of all parties to the court can be cross-examined by any party in the matter.
8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court?
Are there any particular rules regarding concurrent expert evidence? Does the expert owe his/her duties to the client or to the court? A party may call an expert to testify on a matter or issue that is sufficiently beyond the common experience of the court. At
any stage of proceedings, the court may, on its own motion or on application by a party, appoint a court expert to give evidence
on any issue before the court. Any party is entitled to call one expert witness to testify on the matter reported by a court expert.
An expert may base his opinion or inference on matters perceived by or known to the expert because of his expertise, or
on matters assumed by the expert to be true for the purpose of giving the opinion or inference. The matters on which a witness who is testifying as an expert bases an opinion or an inference need not be admissible in evidence.
There are no rules on concurrent expert evidence. The court is at liberty to elect the weight to give to the evidence of any
expert. An expert owes his duty to the court and not to the appointing party.
9 Judgments & Orders
9.1 What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances?
The civil courts have jurisdiction to enter or issue summary judgments (see question 6.5), consent judgments, default judgments
(see question 4.4), interlocutory judgments/orders and final judgments. Typically, a judgment may award monetary compensation, order or prohibit an act, or declare the rights of a party to an action.
Consent judgment may be given by the court when parties consent to judgment, usually by filing terms of settlement. Final judgment determines the principal matter or issues before the court. Interlocutory judgment/orders do not determine the rights
of the parties and are given as a matter of procedure during the pendency of the matter to enable the court to make a final deter-
mination on the dispute.
9.2 What powers do your local courts have to make rulings on damages/interests/costs of the litigation?
The civil courts have statutory jurisdiction to award and enforce the rights of parties to receive damages, interest or costs for
breaches or wrongs effected on them by the other party. Monetary damages may be awarded to a party to compensate
for loss or damage. The courts normally award contractual or statutory interest on its monetary awards to parties. Costs are normally awarded to the winning party to compensate for its costs in the matter.
9.3 How can a domestic/foreign judgment be recognised and enforced?
Domestic judgments can be enforced through any of the regular execution processes, such as issuance of writs of fieri facias (fi.
fa.), garnishee orders, charging orders, appointment of receivers, writ of possession and committal for contempt.
Foreign judgments are enforceable in Ghana subject to a number of provisos. Firstly, before a foreign judgment is enforced in
Ghana, the judgment must be from a country which has a reciprocal arrangement with Ghana for the enforcement of foreign
judgments. Enforcement of foreign judgment is regulated by the Courts Act and the Foreign Judgments and Maintenance Orders
(Reciprocal Enforcement Instrument) 1993 (LI 1575). Judgments from superior courts of such countries with reciprocal arrange-
ments are enforceable in Ghana without retrial. However, a foreign judgment will not be enforced if it is contrary to public policy.
A foreign judgment must be registered in Ghana within six years from the date of the judgment to be enforceable.
Where a foreign judgment is not enforceable on the basis of reciprocity, fresh proceedings may be initiated in Ghana relying
on the judgment as evidence.
9.4 What are the rules of appeal against a judgment of a civil court of your jurisdiction?
A party to a decision of a lower court has a right of appeal to the next tier of court (please see question 1.2). An appeal against the
decision of a court must be filed within the prescribed period– 21 days for an interlocutory decision and three months for a
final decision. A party that failed to file a notice of appeal within the given
period may seek leave of court to file an appeal within three months from the time of deadline of the appeal. A notice of appeal against the decision of a court must be filed at the registry of the court that made the decision, and subsequently trans-
mitted to the registry of the appellate court.
10 Settlement
10.1 Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process?
The High Court (Civil Procedure) Rules, as amended by C.I.133, set out formal processes which actively encourage parties to
settle their disputes through ADR at the directions stage. The Rules permit a party to request for the proceedings in the matter
to be stayed while the parties try to settle the case by ADR or other means. Settled claims would be entered by the courts as
consent judgments, and unsettled claims would proceed to trial.
11 Alternative Dispute Resolution
11.1 What methods of alternative dispute resolution
are available and frequently used in your jurisdiction?
Arbitration/Mediation/Expert Determination/Tribunals
(or other specialist courts)/Ombudsman? (Please
provide a brief overview of each available method.)
The most used ADR methods are arbitration, mediation, customary arbitration and complaints to the National Labour Commission.
- Arbitration – Arbitration is fast becoming the main ADR mechanism preferred by many litigants. Some pieces of legislation, such as the Banking and Specialised Deposit Taking Institutions Act, 2016 (Act 930) and the Minerals and Mining Act, 2006 (Act 703), have included mandatory arbitration as a means of resolving disputes. The finality of arbitration awards, privacy with its processes, availability of grounds in challenging awards and the speed/expediency of its processes make it the most preferred ADR mechanism.
- Mediation – Mediation is primarily a form of negotiation conducted through an intermediary. Mediation is generally considered to be a less formal, private, confidential and inexpensive method of ADR. Parties are at liberty to voluntarily submit a dispute to mediation or to submit to medation by reference of the court. Where successful, mediation concludes with a signed settlement agreement, which is deemed binding and enforceable as a contract or arbitral award between the parties and their successors. The mediation process and records are entirely confidential and cannot be evidenced or disclosed except for purposes of enforcement of the settlement agreement. The Commercial Division of the High Court has embraced mediation by adopting a mandatory 30-day, judge-led mediation in an attempt to ensure that parties have exhausted avenues for settlement before preparation for trial commences.
- Customary arbitration – This method of ADR is quite similar to arbitration, but less formal. The arbitrators, normally chiefs, heads of family and other local leaders, resolve disputes based on the customary laws of the relevant society or geographical area. Parties must agree to submit and be bound by the decision of the arbitrator to make any awards enforceable. Customary arbitration is normally engaged when one of the parties submit a dispute to an arbitrator for resolution, and the other party submits to the invitation of the arbitrator for the resolution of the dispute by paying a fee or token for the arbitration. Parties may also consent for a court to submit their dispute to a customary arbitrator. An award under customary arbitration is binding between the parties and their successors. The arbitral award may be registered and enforced at the courts.
- National Labour Commission – The Commission was established by the Labour Act of 2003 (Act 651) and, as part
of its mandate, is required to: - facilitate the settlement of industrial disputes (through other ADR methods);
- settle industrial disputes; and
- investigate labour-related complaints, in particular unfair labour practices.
The Commission receives complaints from workers, trade unions, and employers or employers’ organisations on industrial
disagreements and allegations of infringement of labour laws. The Commission sits as a court to effect its mandate and it has jurisdiction, pursuant to the finding of an unfair labour practice, to issue enforceable orders to resolve same, including orders for
an employer to re-instate the worker, to re-employ the worker on suitable terms or to pay compensation to the worker.
11.2 What are the laws or rules governing the different methods of alternative dispute resolution?
The Alternative Dispute Resolution Act 2010 (the ADR Act) provides the general legal framework within which alternative
dispute mechanisms operate, in particular arbitration, mediation and customary arbitration. The ADR Act provides that a party to a dispute in respect of which there is an arbitration agreement may, subject to the terms of the arbitration agreement, refer the dispute to any person or institution for arbitration or to the Alternative Dispute Resolution Centre (ADR Centre).
The rules governing any arbitration proceedings are as the parties would agree or as the arbitrator(s) would determine. The
parties may adopt the rules of the local ADR Centre. The ADR Act, however, provides that where an arbitration is referred to an
ADR Centre, the rules made for the Centre under the Act will apply to the arbitration.
There is no particular set of rules for mediation, and the rules for any customary arbitration are as pertains by custom
to the specified locality or area. A customary arbitrator is not required to apply any rules of legal procedure in arbitration, but
is required by law to apply the rules of natural justice and fairness to its process.
11.3 Are there any areas of law in your jurisdiction that cannot use Arbitration/Mediation/ExpertDetermination/Tribunals/Ombudsman as a means of alternative dispute resolution?
There are certain matters or areas of the law that are not amenable to ADR through any of the discussed methods. These
include matters of:
- national or public interest;
- the environment;
- enforcement and interpretation of the Constitution; and
- matters of a criminal nature.
11.4 Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? For example, will a court – pre or post the constitution of an arbitral tribunal – issue interim or provisional measures of protection (i.e. holding orders pending the final outcome) in support of arbitration proceedings, force parties to arbitrate when they have so agreed, or order parties to mediate or seek expert determination? Is there anything that is particular to your jurisdiction in this context?
The courts are enjoined by law to assist and encourage parties to use ADR to settle their disputes. The rules of the courts (especially those of the Commercial Court) specifically make provisions to encourage and assist litigants to resolve their disputes
by ADR. The courts respect and effect the decision of parties to resort to ADR. The courts would normally issue orders to stay
proceedings of matters effected in breach of ADR agreements or statutory provisions, and refer the dispute to the proper forum.
The courts also grant orders in aid of arbitration (such as orders for interim injunctions and preservations) to ensure that
parties do not frustrate arbitral proceedings. The High Court has jurisdiction to assist arbitral proceedings
by making orders for the taking of evidence of witnesses and for the preservation of evidence. The ADR Act empowers arbitrators, at the request of an arbitral party, to grant any interim relief or award the arbitrator considers necessary for the protection or preservation of a party’s interest.
11.5 How binding are the available methods of alternative dispute resolution in nature? For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement
agreements reached at mediation need to be sanctioned by the court? Is there anything that is particular to your jurisdiction in this context?
An arbitral award is final and binding between the parties to the award and their successors in title. Settlement agreements, reached by the parties to a mediation process, are binding and have the same effect as an arbitral award. Arbitral award and settlement agreements may, with leave of the High Court, be enforced at the courts in the same manner as a judgment or order of the court. Customary arbitral awards are binding between the parties and their successors in title. The awards may be registered at
the courts and enforced in the same manner as any judgment of the courts. Ghana is a party to the New York Convention, which permits the arbitral awards from any Convention Member State to be enforced across all such States.
Parties to arbitration proceedings do not have the right to appeal against the decision of the arbitral panel.
Parties cannot be compelled to resolve their disputes by mediation. However, a party that fails to cooperate with mediation proceedings may suffer cost infringement upon the determination of the matter by the court.
11.6 What are the major alternative dispute resolutioninstitutions in your jurisdiction?
The major ADR institutions in Ghana include the:
- Ghana ADR Hub;
- Ghana Arbitration Centre;
- Gamey & Co ADR Centre; and
- National Labour Commission.