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Over the years, the number of litigations in our courts have increased. Data available per a World Bank Report titled “Uses and Users of Justice in Africa: The Case of Ghana’s Specialised Courts” shows that in the year 2000 there were 28,665 cases filed at the High Court. For the 2008/09 legal year, the Court recorded 30,071 cases. This is a good sign that the people of Ghana have embraced the Rule of Law and have resolved to settle our differences through the judicial system.
An increase in the number of cases in our court would ordinarily mean more jobs for lawyers. However, there is no legislation which prohibits a person to represent himself in court if he so desires. In other words, a litigant can decide to litigate his case all by himself, without procuring the services of a lawyer. Such a decision may be personal or due to financial constraints.
To ensure that persons who cannot afford to engage the services of a lawyer are given competent legal advice and services, the Legal Aid Scheme of Ghana was established. Also, the General Legal Council requires all practicing lawyers to undertake at least two (2) pro-bono services within a year before one's licence is renewed.
Nonetheless, the doors of our courts are open to all private individuals, who are non-professional lawyers to have access to the law courts in all manner of cases and to have equal treatment just as lawyers when they conduct their own cases. Rule 45(1) of the Supreme Court Rules (C.I. 16) posits that, in invoking the original jurisdiction of the Supreme Court, a writ signed by the Plaintiff or counsel for the Plaintiff, shall be used. This suggests that, a person can appear at the Supreme Court of Ghana unrepresented.
The unreported case of Ernestina Owusu Frimpong v. Mr. and Mrs. Biney, Suit No. J4/24/2015 dated 11th May 2016 is a classic case of non-lawyers litigating their case in court. Both parties (Plaintiff and Defendants) were so good that the court commended them in the following words…“It is remarkable that although the parties were not represented by lawyers, the pleadings they filed had the flavour of drafting by a professional pleader. They conducted their own cases and, as would be seen in the course of this judgment, the cross-examination conducted particularly by the plaintiff, a non-lawyer, bore the forensic marks of a trained lawyer at work."
Having laid the foundation that a person does not necessarily need the services of a lawyer to litigate, it should not be too hard to recognize the demerits for not hiring a lawyer to conduct one's case. Some demerits for not hiring a lawyer includes but not limited to:
* Non-lawyers will find it difficult to demystify courtroom language. The legal profession in Ghana is a very conservative one. This is the reason why lawyers and judges still dress in wigs, bibs, collar, rob, and dark coloured suits. It is for the same reason that the courts in Ghana still embraces strict legal language in the courtrooms. You stand a chance of being descended on heavily by your opponent. There is a saying that, you do not kill a fly with a gun, however, do not expect a lawyer to be lenient with you – just because you are a non-lawyer presenting your own case.
A non-lawyer may not understand legal jargons and Latin expressions, which are often used in court, such as:
* prima facie…at first look or on its face
* nemo dat quod non habet…a person cannot give what he does not have
* doli incapax…lacking capacity of forming intent
* ignorantia juris non-excusat…ignorance of the law is no excuse
In the unreported case of Musama Disco Christo Church v. Prophet Miritaiah Jona Jehu-Appiah, Suit No. J4/31/2012 dated 11th Nov 2015; for example, the court remarked as follows: “As a court it is our duty to appreciate and understand what purpose the writer of a document sought to attain and to give effect to it, the language used should not be a bar to justice."
However, a party to an action in court may not be able to make sound legal arguments if he is unable to grasp and understand what is been put out by his opponent who is fully represented by a lawyer.
* A non-lawyer would ordinarily not know whether a process in court is to commence with a writ, petition or motion/application. Order 2, Rule 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) posits that all civil proceedings shall be commenced by a writ of summons, subject to any existing enactment to the contrary. The same C.I. 47, per Order 65 makes it a requirement to commence all matrimonial causes or matters by way of a petition.
Most often, judges tend to dismiss actions that are not commenced in the right way. Where a statute makes provision for an action to commence with a writ of summons, anything to the contrary is a nullity.
A non-lawyer may fall prey to this. Such a person may be tempted to commence an action by way of a motion. Though he may have a good case, he may be denied justice, not on substantive grounds, but on procedural requirements.
It is worth adding that there are different types of writs (fi: fa, sequestration, habeas corpus, et al). A non-lawyer would not appreciate the difference and when the rules of court require a particular writ to be filed.
The case of Zainabu Naske Bako-Alhassan v. Attorney-General [2013] 61 GMJ 1SC is one such case wherein the Plaintiff did not comply with the rules of the court. The court opined that, "…whenever a law or rule of procedure stipulates the commencement of an action by writ, or petition, motion or by any specific process, it is by that process alone that the action is to be commenced."
It was stated further that, “…if a law or rule of procedure stipulates that an action is to be commenced within 90 days from when the cause of action first arose; unless time is extended by the court, or a specific timeline is specified for taking of an action or filing a process, it is within those specific timelines that the action is to be taken..."
* Non-lawyers would ordinarily not know the various time requirements/limitations for taking specific steps in court.
Also, the legal consequences for non-compliance with time requirements/limitations would not be known. Whilst some of the time limitations are procedural and as such are a bit flexible, others are Constitutional and statutory hence not flexible.
An example is where C.I. 47 sets time limits, non-compliance to the time limits are not fatal. A non-compliant party may seek refuse per Order 81 of C.I. 47.
However, non-compliance with time limits set by the Constitution or statutes like Courts Act, Companies Act, et al, is fatal and Order 81 of C.I. 47 may not be a messiah.
* Case Management Conference and Written Submissions are two (2) major changes, which have been introduced into our court system.
However, the average person, who lacks legal training, would not be able to efficiently and effectively carry out what is required at these stages/instances.
I do not seek to scare readers, especially unrepresented litigants, with this article. However, we ought to appreciate the fact that, it is better to procure the services of a lawyer before proceeding to court.
Let me wrap-up with the words espoused in the case of Zainabu Naske Bako-Alhassan v. Attorney-General [2013] 61 GML 1SC. Courts all over the world, particularly in common law jurisdictions, are moving away from the straitjackets of mechanical application of rules of procedure.
Where an unrepresented person is able to meet the substantial justice requirement, the courts are likely to overlook the non-compliance with the rules of procedure.
It should, however, be noted that a court would not hesitate to dismiss an action which does not commence in the right way. Where an action is to be commenced by a writ, petition, motion, or otherwise, non-compliance is fatal.
Jerry Xola Sosu (xolasosu@gmail.com)
Agyeman Peprah Berko (peprah.berko@yaoo.com)
