JTI/GHANA NEWS LINK SEMINAR FOR JOURNALIST- 2012 PROCESSES INVOLVED IN CIVIL LITIGATION IN GHANA- BY SAMUEL MARFUL-SAU, JUSTICE OF APPEAL
WHAT IS A CRIMINAL CASE/ TRIAL. • Society generally distaste wrongs committed against its members and the State. The State seeks to regulate the conduct of its citizens by enacting laws that define conducts that would constitute a crime. For example, stealing, rape, robbery, causing harm, defilement, assault etc. • When a member of the society conducts himself/ herself against the criminal law, the person is arrested by the Police and prosecuted. The person arrested is called a suspect but when charged for court is called the Accused. The victim of the crime is not a party to the case, but only a witness.(Prosecution Witness) • Criminal cases are thus investigated and prosecuted by the State. An example of laws passed to regulate the conduct of society is the Criminal and Other Offences Act, Act 29 of 1960.
WHAT IS A CIVIL TRIAL? • A civil trial arises from a civil suit which is a case brought by a person against another person or against an institution which has legal entity, or against the State or Republic. • A civil case is one by which a person or legal entity brings an action to seek a remedy for a private wrong or to enforce a private right. • A civil trial can be divided into five main stages. • (a)From issue of writ of summons to application for Directions. • (b)Trial and judgment.
STAGES CONTD. • (c)Execution of judgment. • (d)Appeals from District, Circuit/High Courts to Court of Appeal. • (e)Appeals from Court of Appeal to the Supreme Court. • (f) Applications.
a)From issue of writ of summons to Application for Directions • Plaintiff issues the writ of summons with a statement of claim. The plaintiff is the person who initiates the civil case. • The writ and statement of claim is to be served on the defendant personally or by substituted service. The defendant is the person against whom the action is brought. • The defendant must file notice of Appearance stating his residential and occupational address within 8 days from date of filing Appearance, if he intend to contest the action.
From Writ Contd. • The defendant must within 14 days after the time limited for Appearance file his statement of defence and counterclaim, if any. • The plaintiff may file a Reply and Defence to the defendant’s Counterclaim, before the expiration of 7 days after service of the statement of defence on plaintiff. • The plaintiff applies for Directions. If the plaintiff fails to do this, the defendant may do so. This must be done one month after a Reply is filed or when pleadings close.
b) TRIAL AND JUDGMENT • The plaintiff or the person on whom the burden of proof lies by the pleadings starts to give evidence on oath. • Plaintiff gives evidence-in-chief; he is cross-examined by the defendant or his lawyer. • Plaintiff is re-examined by his lawyer to explain any ambiguities in the cross-examination.
TRIAL AND JUDGMENT CONTD. • Plaintiff calls his witnesses who are examined-in-chief; cross-examined and re-examined just like what the plaintiff went through. • Plaintiff closes his case. • The defendant opens his case by giving evidence-in-chief, he is cross-examined and re-examined. • The defendant calls his witnesses who are also examined-in-chief; cross-examined and re-examined.
TRIAL & JUDGMENT CONTD. • Defendant closes his case. • Defendant file his address to the court • Plaintiff files his address to the court. • Judge delivers the judgment
WHAT IS EXAMINATION –IN CHIEF, ETC. • Examination –in- chief is when a party to the action or his witness tells his own story to the court, under the direction of his lawyer. • Cross-examination is when a party or witness is questioned by the opponent or the opponent’s lawyer. It is done after examination –in- chief. • Re-examination is where a party is asked questions by his lawyer to explain some ambiguities that came up when the party was being cross-examined.
c)EXECUTION OF JUDGMENT • The successful party must first file Entry of Judgment or Judgment after Trial. • Nature of execution depends on the type of judgment given. • If the judgment is for the payment of money, the execution may be done by any of the following:- • Writ of fierrifacias (FiFa), Writ of delivery, Garnishee Order, Charging or Stop Order, Sequestration and committal.
EXECUTION CONTD. • If the judgment is for delivery of property apart from land any of the, the following can be used: writ of delivery; committal; writ of sequestration. • If the judgment is for recovery of possession of land, or recovery of a premises then execution will be by writ of possession or sequestration.
d. APPEALS • A dissatisfied party in the District Court has the right to appeal to the High Court in any civil or criminal trial. The appeal should be filed within three months for civil cases and one month for criminal cases. • Criminal appeals from the Circuit court lies to the High Court. • Civil appeals from the Circuit Court however lies to the Court of Appeal.
APPEALS TO COURT OF APPEAL • The Court of Appeal hears appeals from all decisions of the High Court and civil decisions of the Circuit Court. • Notice of Appeal to be filed by the unsuccessful party within 3 months from date of judgment, unless the time for appeal is extended by the Appellate Court. • Appellant may file motion for Stay of Execution. • Registrar of court invites the parties to settle record of appeal.
APPEALS CONTD. • Appellant fulfils conditions of appeal by entry into bond with sureties and paying an amount towards the cost of the record of appeal. • Court Registry prepares the record of appeal. • Record of Appeal transmitted to the appellate court and the parties are notified. • Appellant files his written submissions within 21 days of notification. • The Respondent files his written submission with 21 days from date of service of Appellant written submission on him • The Court of Appeal gives judgment.
e)APPEAL TO SUPREME COURT • In appeals from the Court of Appeal to the Supreme Court, the steps stated for appeals to the Court of Appeal are the same. • REVIEW:- after judgment a court generally has the power to review the decision unless there is an appeal pending against the judgment. Normally the application for review must be filed within 14 days from the date the judgment was delivered. The review must be heard by the same Judge or panel that gave the judgment, unless the judge or panel are unavailable.
JUDICIAL REVIEW • This is exercised by the Supreme Court and the High Court. • By this process the Supreme Court exercise’s supervisory jurisdiction over all the courts in Ghana; and the High Court also exercise supervisory jurisdiction over all lower courts and inferior tribunals as well as administrative bodies that do exercise judicial or quasi-judicial functions; eg. Regional House of Chiefs or CHRAJ.
Judicial Review Contd. • Judicial Review involves an application for the following:- • Certiorari:- where the decision of a lower court or administrative body is challenged for the lack of jurisdiction; abuse of the rules of natural justice or due process of law and for an error committed by the court or the administrative body. • When the application is successful the decision is brought up and quashed.
Juicial Review Contd. • Mandamus:- this is applied for to compel public officers or bodies to perform their public duties. • Prohibition:- this is applied for to prevent or stop a court or a body from acting without jurisdiction or acting outside the limits of it jurisdiction. It is normally directed at judicial, quasi- judicial or administrative bodies that seek to act outside their jurisdiction.
APPLICATIONS FOR INTERIM ORDERS • From the time a writ is issued to the judgment there may be the need to apply to the court to make some interim orders .The application to the court is done by Motions, supported by affidavit explaining why the order is being asked for. There are two types of Motions. • 1. Motion Exparte:- applying to the court without notice to the opponent .Used normally for urgent and emergency situations. • 2. Motion on Notice:- applying to the court on notice to your opponent so that the court will also hear his side of case before taking a decision.
EXAMPLES OF ORDERS OBTAINED BY MOTIONS • Most court orders are obtained by application through Motions. Examples are:- order of injunction; order for preservation of property; order staying execution; order for accounts; order to appoint a surveyor, etc. • When a person wilfully refuses to obey a court order served on him then that person is said to be in contempt of court.
TERMINATION OF CIVIL ACTIONS OTHER THAN TRIAL • Note that not every action commenced by writ may travel through the stages to trial. The following may terminate the action:- • (1).Judgment in default of appearance or defence. • (2).Summary judgment where judgment is entered for a party because the opponent has no reasonable defence. • (3).Judgment entered on admissions. • (4).Notice of Discontinuance.
THE CRIMINAL TRIAL -The trial procedure is virtually the same as in civil trial. -The prosecution which has the burden of proving the quilt of the Accused, beyond all reasonable doubts, starts the case by calling the Prosecution Witnesses to give evidence. -The prosecution witnesses are cross-examined by the Accused or his lawyer. -The prosecution witnesses are re-examined if necessary.
Criminal Trial Contd. • After the prosecution has called all it witnesses, the Accused will open his defence, unless he makes a submission of no case and it is upheld. • The case put up by the Accused and his witnesses is referred to as the defence. • The Accused and his witnesses will give evidence and will be cross-examined by the prosecutor. • Accused and his witnesses are re-examined if necessary.
Criminal Trial Contd. • The lawyer for Accused and the Prosecutor if a lawyer both address the court after which the court delivers its judgment. • In Ghana the prosecution of criminal cases is done by lawyers from the Attorney General’s Department or the Police on behalf of the Attorney- General.
The End • Thank you.