COVID-19 and the impact of the lock down on legal rights; did the supreme court miss an opportunity?

The Supreme Court in a recent decision in the case of DENNIS TORGBENU & 2 ORS V. TORGBE N. DUGBAZA VIII (2019) 137 G.M.J. 202SC, had a rare opportunity to pronounce on the effect of strike actions by judicial staff on the legal rights of litigants. But unfortunately, the Supreme Court swerved the question and failed/refused to pronounce on such a question.

This was a case in which an appeal was lodged against a Ruling delivered by the High Court, Sogakope on the 18th of May 2016. A day after the ruling, the judicial staff went on strike action and the courts were closed until the strike ended on the 1st of June 2018.

Aggrieved by the Ruling, the Defendant/Appellant filed a Notice of Appeal on the 9th of June 2016.

Whilst the Appeal was pending, the Defendant/Appellant/Respondent filed a Motion for Leave to File Additional Grounds of Appeal. In opposing the Motion, a preliminary objection was raised on grounds that there was no pending appeal as the Notice of Appeal was filed out of time.

In response, the Defendant/Appellant/Respondent argued that he was within time and further explained that the judicial staff undertook a strike within the period of the 21 days allowed to file an Interlocutory Appeal so if anything at all his rights had been frozen within the strike period.

The Appeal Court delivered a ruling and dismissed the preliminary objection on grounds that the Notice of Appeal was filed within time using the purposive approach to interpretation in calculating the 21 days allowed by the rules of court within which to file the Appeal. The Appeal Court ended by saying that by using the purposive approach to interpretation, the

Defendant/Appellant/Respondent was within time as the last day to file was on the 9th of June 2016 which was exactly the day the Notice of Appeal was filed. In essence, the Appeal court ignored the question of strike action and its impact on rights of litigants.

Aggrieved by this Ruling, the Plaintiff/Respondent/Appellant filed a Notice of Appeal before the Supreme Court challenging the Ruling delivered by the Appeal Court in the matter.

As captured in the Judgment of the Supreme Court, the Defendant/Appellant/Respondent urged the Supreme Court to pronounce on the impact of strike actions on the rights of litigants, an issue that the Appeal Court had avoided.

However, the Supreme Court also avoided the same question on grounds that the decision of the Appeal Court was not in relation to the strike action for which reason there was no need to answer such a question.

This is what the Supreme Court had to say:

“Counsel for the Respondent, in his statement of case has urged this Court to determine the effect of strike action by Judicial Service Staff on the filing of court processes, regarding times set by the rules of court in civil proceedings. We are, however, unable to address that issue in this judgment simply because the decision of the Court of Appeal was not grounded on the effect of strike undertaken by the Judicial Service Staff, in May 2016 on the filing of court processes.

The Court of Appeal founded its decision on the interpretation of section 44(3) of the Interpretation Act, 2009 Act 792.”

It is understandable the reasoning of the Supreme Court and indeed they are perfectly justified in saying so.

However, and fortunately or unfortunately, here we are with another situation of a Covid 19 attack on the world with a consequent lockdown of the two major cities of Accra and Kumasi in Ghana.

Upon the imposition of restriction on movement of persons within these two major cities, coupled with the attendant presence of military and police officers around these areas enforcing the lockdown, another question of the impact of the lockdown on the legal rights of litigants has surely come up.

Indeed questions are now being asked amongst lawyers as to whether they or their clerks or even the litigants themselves could go to the registry of the court to file processes especially processes that can be affected or are limited by number of days within which to file them. Whilst some are saying that it is possible to go the courts to file processes because the courts have not been closed down, we are all aware that we are in dangerous times and a person has a right not to put himself in a situation that would endanger his life.

It is for the fact of the prevention of the possibility of people endangering their lives by the exposure to the Covid 19 is the reason why an emergency has been declared and there is a lockdown in the first place.

Even though the courts are open, the question is would the court be expecting people to endanger their lives to come to the courts for filing?

The governmentitself has passed a law imposing restrictions on movements of people and the enforcement of such restriction is as severe as asking people to stay in their homes and not even be seen in front of their homes. So if a person being aware of the fact that going out of his house is a risk he is taking to pose danger to his life, how can the court say that he should take that risk to go to the court to go and file processes during such emergency?

Again, to the extent that an emergency has been declared by the government under the 1992 constitution, cant we say we are not in ordinary times for which reason, a person cannot be reasonably expected to go to the court to go file processes as doing so will pose danger not only to himself but to even members of his household if he should contract the deadly Covid 19 virus? Not to lose sight of the fact that a litigant who may not be driving his own car may have to take the risk of taking trotro within the journey to and from the court with some litigants traveling from beyond Accra and Kumasi.

Also, a person moving out of his house has to be confronted with several road blocks and encounter both military and police personnel and even it is possible to go to the court for such filing, would have to be explaining to every single officer he meets along the way hoping his explanations would be acceptable for him to be allowed to proceed.

Another question is how about if he meets an officer who blatantly refuse to let him proceed? Is he expected to try again another day when he had already been prevented previously?

How would the court accept such an explanation if his process is filed late and indeed he was truly prevented from going to the court by a security officer on his way to the court?

I am of the considered opinion that if the Supreme Court had given an authoritative decision regarding the impact of such strike actions on the rights of litigants, it would have been easy for everyone in the country to know the status of their legal rights under this lockdown period. E.g. if the Supreme Court had stated that time does not run, then of course, no matter how long the lockdown takes, it would mean all rights would have been frozen until the emergencywhich has been declared is subsequently declared to be over before time would run again.

Unfortunately, since both the Appeal Court and Supreme Court didn’t pronounce on such a salient issue, it is definitely going to come up again.

FOOD FOR THOUGHT.

Isaac M. Larbi, Esq. (IML)