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Ghana School of Law PLC: Civil Procedure (GLC) study materials
Ghana School of Law PLC: Civil Procedure (GLC) study resources

Ghana School of Law PLC: Civil Procedure (GLC) practice questions

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Question 1Jurisdiction, venue and commencement of civil actions

Under the High Court (Civil Procedure) Rules, 2004 (C.I. 47), a writ of summons must be issued in the registry of which court before it can be served on a defendant ordinarily resident in Ghana?

  1. The registry of any Circuit Court in the country
  2. The registry of the Court of Appeal nearest the plaintiff
  3. The High Court registry of the region where the defendant resides or carries on business Correct answer.
  4. The registry of the Supreme Court in Accra

Explanation

C.I. 47 requires a writ to be issued out of the High Court registry for the region in which the defendant resides or carries on business, unless a rule permits otherwise. Issuance fixes the forum and starts the action for limitation purposes. The Supreme Court, Court of Appeal and Circuit Courts do not issue High Court writs.

Question 2Jurisdiction, venue and commencement of civil actions

A plaintiff wishes to sue a firm carrying on business in Kumasi for breach of contract. Where may the action properly be commenced under C.I. 47?

  1. In any registry chosen by the plaintiff's solicitor
  2. Only in the High Court registry in Accra, being the capital
  3. Only in the registry of the region where the contract was signed
  4. In the High Court registry for the region where the defendant resides or carries on business Correct answer.

Explanation

Venue in the High Court is governed by the region where the defendant resides or carries on business, so an action against a Kumasi firm belongs in the Kumasi registry. The plaintiff's choice of registry is not at large. The place of contracting is relevant only where a specific rule provides for it.

Question 3Jurisdiction, venue and commencement of civil actions

Which document, indorsed on the writ of summons, informs the defendant of the nature of the claim and the relief sought?

  1. The statement of claim Correct answer.
  2. The notice of intention to defend
  3. The acknowledgement of service
  4. The affidavit of service

Explanation

The statement of claim sets out the plaintiff's cause of action and the relief claimed, and under C.I. 47 it may be indorsed on or served with the writ. The acknowledgement of service and notice of intention to defend are defendant-side documents. An affidavit of service proves service and does not plead the claim.

Question 4Jurisdiction, venue and commencement of civil actions

A defendant is served with a writ of summons indorsed with a statement of claim. Within what period must the defendant enter an appearance under C.I. 47?

  1. Twenty-one days after service of the writ
  2. Fourteen days after service of the writ
  3. Thirty days after service of the writ
  4. Eight days after service of the writ, including the day of service Correct answer.

Explanation

Under C.I. 47 a defendant who is served within Ghana must enter appearance within eight days of service, counting the day of service. Failure to do so entitles the plaintiff to apply for judgment in default. The longer periods apply to service outside the jurisdiction, not domestic service.

Question 5Jurisdiction, venue and commencement of civil actions

Where a writ of summons is to be served on a defendant outside Ghana, the plaintiff must ordinarily obtain which of the following before service?

  1. Consent of the Attorney-General
  2. A certificate from the Ghana Bar Association
  3. Leave of the High Court to issue and serve the writ out of the jurisdiction Correct answer.
  4. An order of the Supreme Court

Explanation

Service out of the jurisdiction is not available as of right; C.I. 47 requires the plaintiff to seek leave of the High Court, supported by evidence showing a qualifying ground. The court then gives directions on the mode of service. Consent of the Attorney-General or a professional body plays no part.

Question 6Jurisdiction, venue and commencement of civil actions

A plaintiff's claim falls within the jurisdiction of a Circuit Court, but the plaintiff issues the writ in the High Court. What is the proper course for the High Court?

  1. The High Court must strike out the writ for want of jurisdiction
  2. The High Court must transfer the case to the Supreme Court
  3. The High Court may nonetheless hear the case, since it has unlimited original jurisdiction, but may order transfer or award costs against the plaintiff Correct answer.
  4. The writ is automatically void and the action is a nullity

Explanation

The High Court possesses unlimited original jurisdiction under the Constitution, so a suit begun there is not a nullity merely because a lower court could have heard it. The court may, however, transfer the matter or mark its displeasure with costs. Striking out for want of jurisdiction is therefore wrong.

Question 7Jurisdiction, venue and commencement of civil actions

A writ of summons names a defendant who is a diplomat accredited to Ghana and entitled to immunity. What is the effect on the action?

  1. The immunity applies only to criminal proceedings, so the civil suit continues
  2. The plaintiff must serve the writ through the Attorney-General, after which the suit proceeds normally
  3. The action cannot proceed against that defendant without waiver of immunity, and the writ should be set aside as against that defendant Correct answer.
  4. The writ is valid but the defendant must file a defence within eight days

Explanation

Diplomatic immunity bars civil proceedings except in recognised exceptions, and a defendant entitled to immunity may have the writ set aside. Waiver by the sending state would remove the bar. Service through the Attorney-General does not cure the substantive immunity.

Question 8Jurisdiction, venue and commencement of civil actions

A writ was issued on 3 March. The defendant was personally served on 10 March. Counting the day of service, when does the period to enter appearance expire?

  1. 24 March
  2. 18 March Correct answer.
  3. 31 March
  4. 17 March

Explanation

Under C.I. 47 the day of service is counted, so eight days from 10 March runs to 18 March. Counting from the following day would wrongly give 18 March only if the day of service were excluded, which the rules do not do here. The longer periods suggested do not match the eight-day rule.

Question 9Jurisdiction, venue and commencement of civil actions

A defendant wishes to challenge the regularity of service of the writ rather than the merits of the claim. What is the appropriate procedural step?

  1. File a statement of defence denying the claim
  2. File a counterclaim and await trial
  3. Apply to set aside the writ or the service on the ground of irregularity Correct answer.
  4. Ignore the writ and await judgment in default

Explanation

A defendant who says service was irregular may apply to the court to set aside the writ or the service; the application is made in the pending action. Filing a defence engages the merits and does not by itself cure defective service. Ignoring the writ risks default judgment.

Question 10Jurisdiction, venue and commencement of civil actions

A writ of summons was issued but not served on the defendant within twelve months. What must the plaintiff do to keep the action alive?

  1. Issue a fresh writ automatically, since the first has lapsed
  2. Simply re-serve the original writ without any order
  3. Apply to the court to renew the writ before or after expiry, showing good reason for the delay Correct answer.
  4. Apply to the Chief Justice for an extension of time

Explanation

A writ is valid for twelve months and may be renewed by order of the court on application, supported by reasons for non-service. Renewal preserves the original issue date for limitation purposes. Re-service without an order or automatic re-issue is not permitted.

Question 11Jurisdiction, venue and commencement of civil actions

Which of the following is a recognised mode of service of originating process on an individual defendant under C.I. 47?

  1. Service by publication in a newspaper as of right
  2. Service by email as of right without any order
  3. Service on the defendant's neighbour as of right
  4. Personal service by delivering a copy of the writ to the defendant Correct answer.

Explanation

Personal service, by delivering or tendering a copy of the writ to the defendant, is the primary mode of service. Substituted service, including by advertisement or electronic means, requires an order of the court. Service on a neighbour is not a permitted mode absent such an order.

Question 12Jurisdiction, venue and commencement of civil actions

A limited liability company is the defendant. On whom may the writ properly be served?

  1. Only on the company's external auditors
  2. Only on a shareholder who holds at least ten per cent of the shares
  3. Only on the Registrar of Companies personally
  4. On a director, secretary or other principal officer at the registered office, or in any manner permitted by the Companies Act Correct answer.

Explanation

Service on a company is effected at its registered office on a director, secretary or principal officer, and the Companies Act permits further modes. Service on auditors or shareholders is not service on the company. The Registrar of Companies is not the company's agent for receiving process.

Question 13Jurisdiction, venue and commencement of civil actions

A plaintiff sues on a contract made in Accra, but the defendant resides in Takoradi and the cause of action arose in Takoradi. In which registry should the writ ordinarily be issued?

  1. The Takoradi registry, since the defendant resides and the cause of action arose there Correct answer.
  2. The registry nearest the plaintiff's solicitor
  3. The Accra registry, since the contract was made there
  4. Either registry, at the plaintiff's unfettered choice

Explanation

Venue under C.I. 47 follows the defendant's residence or place of business and the place where the cause of action arose, both of which point to Takoradi. The place of contracting is not the governing test. The plaintiff has no unfettered choice of forum.

Question 14Jurisdiction, venue and commencement of civil actions

Where a defendant has been served with a writ but fails to enter appearance, what is the plaintiff entitled to seek in respect of a liquidated claim?

  1. Judgment in default of appearance for the amount claimed, on proof of service Correct answer.
  2. An order striking out the defendant's defence
  3. A warrant for the arrest of the defendant
  4. An order transferring the case to the Circuit Court

Explanation

Where appearance is not entered within time, the plaintiff may apply for judgment in default of appearance, supported by proof of service. For a liquidated demand the court may enter judgment for the sum claimed. There is no defence to strike out and arrest is not a civil remedy.

Question 15Jurisdiction, venue and commencement of civil actions

A party seeks to commence an action against the Republic for breach of a contract for the supply of goods to a ministry. Which procedural requirement applies?

  1. Leave of the Supreme Court must first be obtained
  2. The action must be commenced in the Circuit Court of the Attorney-General's choosing
  3. Notice of intention to sue must be given to the Attorney-General before the action is commenced Correct answer.
  4. No notice is required; the writ may be issued immediately

Explanation

Actions against the State require prior notice to the Attorney-General under the State Proceedings Act, and the writ must be indorsed accordingly. The notice period must elapse before issue. Neither Supreme Court leave nor a forced Circuit Court forum applies.

Question 16Jurisdiction, venue and commencement of civil actions

A writ of summons bears the name of a plaintiff who is a minor suing alone, without a next friend. What is the consequence?

  1. The writ is perfectly valid because the minor is the real claimant
  2. The court must automatically enter judgment for the defendant
  3. The proceedings are irregular and liable to be set aside unless a next friend is appointed Correct answer.
  4. The minor must personally serve the writ on the defendant

Explanation

A minor lacks capacity to sue in his or her own name and must act through a next friend or guardian ad litem. Proceedings commenced without a proper representative are irregular and may be set aside. The defect is not cured by the minor serving process personally.

Question 17Jurisdiction, venue and commencement of civil actions

A plaintiff issues a writ in the High Court but the defendant is ordinarily resident in a country with which Ghana has no service convention. How is service most appropriately effected?

  1. In the manner directed by the court on granting leave, which may include service through diplomatic channels or as permitted by the foreign law Correct answer.
  2. By publication in a Ghanaian newspaper without leave
  3. By personal service by the plaintiff travelling abroad without any order
  4. By registered post without leave of the court

Explanation

Once leave is granted for service out of the jurisdiction, the court directs the mode of service, which may follow the foreign country's law or diplomatic channels. Unilateral personal service abroad without leave is irregular. Post and advertisement require the court's authorisation.

Question 18Jurisdiction, venue and commencement of civil actions

A defendant served with a writ believes the High Court lacks subject-matter jurisdiction because the claim is exclusively within the jurisdiction of the Lands Commission. What is the proper procedural response?

  1. Ignore the writ and await default judgment, then appeal
  2. File a defence on the merits and raise jurisdiction at trial
  3. Apply by motion to set aside the writ for want of jurisdiction, raising the objection at the earliest opportunity Correct answer.
  4. Write to the plaintiff's solicitor demanding withdrawal of the suit

Explanation

An objection to jurisdiction should be raised promptly by motion to set aside the writ, since want of jurisdiction cannot be waived by contesting the merits. Taking steps on the merits may be treated as submission. A letter to the opposing solicitor has no procedural effect.

Question 19Jurisdiction, venue and commencement of civil actions

A plaintiff seeks to sue two defendants who reside in different regions of Ghana on a single cause of action arising in a third region. How should the plaintiff proceed?

  1. Issue two separate writs, one in each defendant's region, since joinder is impossible
  2. Issue the writ in the region of the first defendant only, and abandon the claim against the second
  3. Issue the writ in the Supreme Court, which alone can hear multi-regional claims
  4. Issue the writ in a registry where any defendant resides or where the cause of action arose, and serve the others there Correct answer.

Explanation

Where defendants reside in different regions, the plaintiff may sue in any registry where one defendant resides or where the cause of action arose, and serve the others there. Separate writs are not required. The Supreme Court does not exercise original jurisdiction over such claims.

Question 20Jurisdiction, venue and commencement of civil actions

A defendant was served with a writ by substituted service, by advertisement, after the court granted an order. The defendant had no actual knowledge of the suit and judgment was entered in default. What is the defendant's best course?

  1. Sue the plaintiff for fraud in a fresh action
  2. Appeal to the Supreme Court against the order for substituted service
  3. Apply to set aside the default judgment, showing that the substituted service did not bring the proceedings to the defendant's notice Correct answer.
  4. Do nothing, since substituted service is conclusive proof of knowledge

Explanation

A default judgment entered after substituted service may be set aside where the defendant shows the mode adopted did not bring the proceedings to his or her notice. The court retains discretion to set aside regular or irregular default judgments on just terms. Substituted service is not conclusive of actual knowledge.

Question 21Jurisdiction, venue and commencement of civil actions

A writ of summons was issued on 1 June and served on 5 June. The defendant entered appearance on 12 June. On 20 June the defendant filed a defence. Which statement correctly describes the position under C.I. 47?

  1. Appearance was entered within the eight-day period, and the defence was filed within the fourteen-day period after appearance Correct answer.
  2. Appearance was out of time, but the defence was in time
  3. Appearance was in time, but the defence was filed out of time
  4. Appearance was out of time, and the defence was also out of time

Explanation

Counting the day of service, eight days from 5 June expires on 12 June, so appearance was entered in time. The defence must be filed within fourteen days after appearance, which expires on 26 June, so the defence filed on 20 June is in time. Both steps therefore complied with C.I. 47.

Question 22Jurisdiction, venue and commencement of civil actions

A plaintiff issues a writ against a defendant who has died before the writ was issued, suing the deceased by name. What is the position?

  1. The action is a nullity as against the deceased, and the plaintiff must proceed against the estate through its personal representatives Correct answer.
  2. The action is valid and the estate must defend within eight days
  3. The action is valid if the writ is served at the deceased's last known address
  4. The action is valid but only for unliquidated claims

Explanation

A dead person cannot be sued, and proceedings naming a deceased defendant are a nullity. The proper course is to sue the personal representatives or, where appropriate, to proceed against the estate under the applicable rules. Service at the last known address cannot confer capacity on a deceased person.

Question 23Jurisdiction, venue and commencement of civil actions

Which of the following best describes the function of the indorsement on a writ of summons requiring the defendant to enter appearance?

  1. It constitutes the plaintiff's evidence in the action
  2. It warns the defendant that judgment may be entered in default if appearance is not entered within the prescribed time Correct answer.
  3. It fixes the date of trial
  4. It operates as an injunction restraining the defendant from dealing with assets

Explanation

The indorsement warns the defendant of the consequences of failing to enter appearance within the prescribed period, namely that judgment may be entered in default. It is a notice, not evidence, and it grants no injunctive relief. The trial date is fixed later by the court.

Question 24Jurisdiction, venue and commencement of civil actions

A defendant wishes to dispute the claim and also to bring a claim against the plaintiff arising from the same transaction. What should the defendant do?

  1. Apply to set aside the writ for multiplicity of proceedings
  2. Enter appearance and file a separate action in another registry
  3. File a notice of intention to defend only, and await trial
  4. Enter appearance, file a defence and a counterclaim in the same action Correct answer.

Explanation

A defendant with a cross-claim arising from the same transaction should enter appearance, defend and counterclaim in the same action so that all issues are determined together. A separate action risks duplication and abuse of process. Setting aside the writ is not a response to a cross-claim.

Question 25Parties, joinder, causes of action and pleadings

Under the High Court (Civil Procedure) Rules, 2004 (C.I. 47), a plaintiff wishes to sue several defendants in one action in respect of separate transactions. Which condition must be satisfied before the court will permit joinder of the defendants?

  1. The total value of the claims must exceed the jurisdictional limit of the High Court
  2. Each defendant must consent in writing to being sued jointly
  3. The claims must arise out of the same act or transaction or series of acts or transactions, and a common question of law or fact must arise Correct answer.
  4. All defendants must reside in the same judicial district as the plaintiff

Explanation

Order 4 of C.I. 47 permits joinder of parties where the plaintiff asserts against several persons a right to relief arising out of the same act or transaction or series of acts or transactions, and there is a common question of law or fact. The rule prevents multiplicity of actions and avoids inconsistent findings. Residence, consent and monetary value are not the governing criteria.

Question 26Parties, joinder, causes of action and pleadings

A defendant believes that a third party, not sued by the plaintiff, is liable to indemnify him in respect of the plaintiff's claim. What is the correct procedural step under C.I. 47?

  1. Apply for leave to issue and serve a third-party notice on that person claiming contribution or indemnity Correct answer.
  2. Write to the third party demanding that he defend the action in his own name
  3. Commence a fresh independent action against the third party and apply for consolidation
  4. File a counterclaim against the plaintiff joining the third party as co-defendant

Explanation

Order 11 of C.I. 47 allows a defendant who claims contribution or indemnity from a person not already a party to issue and serve a third-party notice, with leave where the rules require it. The third party is then bound by the findings in the main action to the extent provided. A counterclaim or separate action does not achieve the same procedural consolidation.

Question 27Parties, joinder, causes of action and pleadings

Which of the following best describes the function of a statement of claim in an action commenced by writ under C.I. 47?

  1. It is an optional document filed only where the defendant requests further particulars
  2. It sets out the material facts on which the plaintiff relies, but not the evidence by which they are to be proved Correct answer.
  3. It recites the evidence the plaintiff intends to adduce at trial in chronological order
  4. It contains only the relief sought and the amount claimed as damages

Explanation

Pleadings under C.I. 47 must contain a concise statement of the material facts relied on, and not the evidence by which those facts are to be proved. The statement of claim is the plaintiff's principal pleading and must disclose a reasonable cause of action. Evidence and law are matters for trial and submissions, not for the pleading itself.

Question 28Parties, joinder, causes of action and pleadings

A plaintiff sues two defendants jointly for breach of contract and, in the alternative, sues the second defendant alone in tort arising from the same facts. Which pleading practice does C.I. 47 permit?

  1. Alternative claims are prohibited because they embarrass the defendants
  2. The tort claim must be brought in a separate action because it is inconsistent with contract
  3. Alternative and inconsistent claims may be pleaded provided each is material and the pleader states the basis of each Correct answer.
  4. The plaintiff must elect one cause of action before filing the statement of claim

Explanation

A party may plead alternative or even inconsistent allegations where they are material and each is properly particularised, so long as the pleading is not embarrassing. The court resolves the alternatives at trial. There is no requirement to elect a single cause of action at the pleading stage.

Question 29Parties, joinder, causes of action and pleadings

A party wishes to amend a pleading after the close of pleadings but before trial. What is the general approach of the Ghanaian courts under C.I. 47?

  1. Amendment is allowed only if the trial judge certifies that the new facts are material
  2. Amendment is generally allowed if it can be made without injustice to the other side and the party bears the costs occasioned Correct answer.
  3. Amendment is never permitted after the close of pleadings
  4. Amendment is allowed only with the consent of all other parties

Explanation

The court has a wide discretion to allow amendments at any stage to determine the real question in controversy, provided the amendment does not cause injustice that cannot be compensated in costs. The amending party ordinarily bears the costs thrown away. Consent of the other parties is not a precondition.

Question 30Parties, joinder, causes of action and pleadings

A defendant fails to file a defence within the time prescribed by C.I. 47. What is the plaintiff's proper course?

  1. File a notice of discontinuance and commence a fresh action
  2. Apply to strike out the writ for want of prosecution
  3. Immediately issue a writ of execution against the defendant's property without any application
  4. Apply for judgment in default of defence, subject to the rules governing default judgments and any conditions on the nature of the claim Correct answer.

Explanation

Where a defendant fails to defend, the plaintiff may apply for judgment in default of defence under the rules, provided the claim is of a kind for which default judgment is available. The application must comply with the procedural requirements and, in some cases, be supported by affidavit evidence of the claim. Execution can only follow after judgment.

Question 31Parties, joinder, causes of action and pleadings

Which of the following is a proper function of particulars in pleadings under C.I. 47?

  1. To give the opposing party sufficient information to know the case he has to meet and to prevent surprise at trial Correct answer.
  2. To serve as a substitute for discovery of documents
  3. To enable the court to decide the case before trial
  4. To replace the material facts with a narrative of the evidence

Explanation

Particulars clarify the material facts pleaded so that the opponent knows the case to be met and can prepare accordingly, avoiding surprise at trial. They do not replace the material facts or the evidence. Discovery and inspection serve a distinct function.

Question 32Parties, joinder, causes of action and pleadings

A plaintiff discovers that a person who should have been joined as a defendant was omitted from the writ. Which statement best reflects the position under C.I. 47?

  1. A party may be added only before the writ is issued
  2. A party may be added only where the plaintiff's claim exceeds the jurisdictional limit
  3. A party may be added only with the consent of the existing defendants
  4. The court may order the addition of a party at any stage where it is necessary to enable the court effectually and completely to adjudicate upon the matters in dispute Correct answer.

Explanation

C.I. 47 confers power on the court to add, remove or substitute parties at any stage where it is necessary to determine the real question in controversy. The overriding consideration is the effective and complete adjudication of the dispute. Consent of existing parties and the timing of the writ are not decisive.

Question 33Parties, joinder, causes of action and pleadings

Which of the following is an essential element of a counterclaim under C.I. 47?

  1. It must be filed only after the plaintiff's claim has been proved
  2. It must be supported by the consent of the plaintiff
  3. It must arise from exactly the same cause of action as the plaintiff's claim
  4. It must be a claim by the defendant against the plaintiff which could have been brought in a separate action Correct answer.

Explanation

A counterclaim is a cross-action by the defendant against the plaintiff and may raise any claim that could have been brought independently, even if it is unconnected with the plaintiff's claim. It is pleaded in the defence and does not require the plaintiff's consent. It is heard together with the main claim.

Question 34Parties, joinder, causes of action and pleadings

A defendant wishes to rely on the defence that the plaintiff's claim is statute-barred. How should this be raised under C.I. 47?

  1. By applying to strike out the writ before filing any defence
  2. By pleading the limitation defence in the defence as a material fact Correct answer.
  3. By writing to the plaintiff's solicitor outside the proceedings
  4. By raising it for the first time in closing submissions at trial

Explanation

A limitation defence is a material fact that must be pleaded in the defence if it is to be relied upon. Raising it only in submissions may deprive the plaintiff of the opportunity to plead matters in reply, such as fraud or disability. It is not a ground for striking out the writ before a defence is filed.

Question 35Parties, joinder, causes of action and pleadings

Which of the following statements about the endorsement on a writ of summons under C.I. 47 is correct?

  1. The writ must bear an endorsement of the nature of the claim and, where damages are sought, a statement of the relief claimed Correct answer.
  2. The endorsement may be omitted where the parties are represented by counsel
  3. The writ need not bear any endorsement if the statement of claim is filed within seven days
  4. The endorsement is required only in actions for liquidated sums

Explanation

A writ must be endorsed with a concise statement of the nature of the claim and the relief or remedy sought, so that the defendant knows the case against him from the outset. The endorsement is distinct from the statement of claim but performs a related notice function. It is not dispensed with merely because counsel is retained or the claim is liquidated.

Question 36Parties, joinder, causes of action and pleadings

A plaintiff sues a partnership in the firm name. Which statement best reflects the position under C.I. 47?

  1. A partnership may be sued only in the name of the managing partner
  2. A partnership may not be sued at all; only individual partners may be sued
  3. Proceedings may be commenced in the firm name where the partnership is carrying on business in Ghana, and the partners are liable as if sued individually Correct answer.
  4. A partnership cannot be sued unless every partner is named as a defendant

Explanation

The rules permit an action to be brought by or against a partnership in the firm name where the firm carries on business within the jurisdiction. A judgment against the firm is enforceable against the partners to the extent of their liability. Naming every partner is not a precondition.

Question 37Parties, joinder, causes of action and pleadings

Which of the following best describes the rule against a plaintiff recovering against a person who is not a party to the action?

  1. The court may freely make binding orders against non-parties without notice
  2. A non-party is bound by any judgment delivered in the action
  3. The court will not ordinarily make an order affecting the rights of a person who has not been joined, unless the rules provide otherwise Correct answer.
  4. A non-party may be ordered to pay costs without any hearing

Explanation

As a general rule, a person who is not a party to an action is not bound by the judgment and should not have his rights determined without being heard. The rules create limited exceptions, such as third-party proceedings, but the starting point is that joinder is required. The audi alteram partem principle underpins this rule.

Question 38Parties, joinder, causes of action and pleadings

A plaintiff sues on a contract and later seeks to add a claim in negligence arising from the same transaction. Which statement is correct?

  1. The plaintiff must abandon the contract claim before adding negligence
  2. The plaintiff may seek leave to amend the statement of claim to add the negligence claim, provided it is not time-barred and no injustice is caused Correct answer.
  3. The plaintiff must commence a fresh action because the causes of action are different
  4. The plaintiff may add the claim only if the defendant consents

Explanation

A party may seek leave to amend to add a new cause of action arising from the same facts, subject to limitation rules and the absence of injustice to the defendant. The court considers whether the amendment can be compensated by costs and whether the new claim is viable. Consent of the defendant is not a precondition to leave.

Question 39Parties, joinder, causes of action and pleadings

Which of the following statements about the consequence of failing to plead a material fact in a statement of claim is correct?

  1. The defendant is deemed to admit the unpleaded fact
  2. The unpleaded fact may always be proved at trial without any consequence
  3. The court must strike out the entire claim
  4. A party may be prevented from leading evidence on an unpleaded fact at trial, subject to the court's discretion to allow amendment Correct answer.

Explanation

The function of pleadings is to define the issues, and a party is ordinarily confined to the case pleaded. Evidence on an unpleaded material fact may be excluded unless the court permits an amendment to cure the omission. The court retains a discretion to allow amendment where no injustice results.

Question 40Parties, joinder, causes of action and pleadings

A defendant raises a set-off in his defence. Which statement best describes the effect of a set-off under C.I. 47?

  1. A set-off may be raised only after judgment has been entered for the plaintiff
  2. A set-off operates automatically as a counterclaim and requires no pleading
  3. A set-off is available only where both claims are liquidated
  4. A set-off is a defence that may extinguish or reduce the plaintiff's claim to the extent of the cross-claim Correct answer.

Explanation

A set-off is a defence that, if established, reduces or extinguishes the plaintiff's claim to the extent of the defendant's cross-claim. It must be pleaded and particularised in the defence. It is distinct from a counterclaim, though the two may be pleaded together.

Question 41Parties, joinder, causes of action and pleadings

Which of the following is the correct description of a misjoinder of parties under C.I. 47?

  1. The court may order the name of a party to be struck out where that party has been improperly joined, and may order costs against the party responsible Correct answer.
  2. Misjoinder can be cured only by commencing a fresh action
  3. Misjoinder automatically invalidates the entire proceedings
  4. Misjoinder is permitted because the court must hear all persons affected

Explanation

Where a party has been improperly joined, the court may strike out that party's name and make consequential orders as to costs. Misjoinder does not automatically invalidate the proceedings; the court may also permit amendment to cure the defect. The overriding aim is to determine the real question in controversy between the proper parties.

Question 42Parties, joinder, causes of action and pleadings

A plaintiff wishes to sue the Republic through a government department. Which statement best reflects the procedural requirement under C.I. 47?

  1. The action must be commenced against the head of the department in his personal capacity
  2. The action must be commenced against the Attorney-General as the proper defendant on behalf of the Republic, subject to any statutory requirements Correct answer.
  3. The action may be commenced against the department in its own name without more
  4. The action cannot be brought against the Republic at all

Explanation

Proceedings against the State are ordinarily brought against the Attorney-General, who represents the Republic, subject to any statutory notice requirements. Suing the department in its own name or the head personally is generally misconceived. The State Proceedings Act governs the substantive and procedural framework.

Question 43Parties, joinder, causes of action and pleadings

Which of the following statements about the requirement of a concise statement of material facts in pleadings is correct?

  1. The pleader must state the facts in the order in which the witnesses will testify
  2. The pleader must state both the facts and the evidence supporting each fact
  3. The pleader must state the facts relied on, but may omit the legal conclusions that follow from them Correct answer.
  4. The pleader must state the legal conclusions and may omit the underlying facts

Explanation

Pleadings should state the material facts concisely, leaving the legal conclusions to be drawn by the court from those facts. Evidence is not pleaded; it is adduced at trial. The order of pleading need not mirror the order of testimony.

Question 44Parties, joinder, causes of action and pleadings

A defendant wishes to dispute the plaintiff's allegation that a contract was made on a particular date. How should the defendant plead?

  1. By making a general denial of the entire statement of claim
  2. By specifically denying the allegation and, if he relies on a different date, pleading that date Correct answer.
  3. By applying to strike out the statement of claim in its entirety
  4. By remaining silent on the point and raising it at trial

Explanation

A party must deal specifically with each allegation he does not admit, and where he relies on a different version of events he should plead it. A general denial may be insufficient where a specific allegation requires a specific response. Silence may be treated as an admission in some contexts.

Question 45Parties, joinder, causes of action and pleadings

Which of the following best describes the effect of a judgment in default of appearance under C.I. 47?

  1. The court must dismiss the action for want of appearance
  2. The plaintiff must still prove the claim at a full trial before any judgment is entered
  3. The plaintiff may obtain judgment where the defendant fails to enter appearance within the prescribed time, subject to the conditions for default judgment Correct answer.
  4. The defendant is automatically barred from appealing the judgment

Explanation

Where a defendant fails to enter appearance within the time allowed, the plaintiff may apply for judgment in default, subject to the rules governing the type of claim and any procedural conditions. Default judgment is a summary remedy and is not a bar to a subsequent application to set it aside. The defendant retains a right of appeal.

Question 46Parties, joinder, causes of action and pleadings

A plaintiff sues two defendants in the alternative, alleging that one or the other is liable, but not both. Which statement best reflects the position under C.I. 47?

  1. Alternative claims against different defendants are permissible where the plaintiff is genuinely uncertain which defendant is liable Correct answer.
  2. The plaintiff must sue both defendants jointly and severally in all cases
  3. The plaintiff must elect which defendant to sue before issuing the writ
  4. Alternative claims against different defendants are prohibited because they embarrass the defendants

Explanation

Where the plaintiff is genuinely uncertain which of two or more persons is liable, he may plead alternative claims against them, and the court will determine liability at trial. This avoids the risk of defeating the claim by choosing the wrong defendant. The defendants are not embarrassed if the alternatives are clearly pleaded.

Question 47Parties, joinder, causes of action and pleadings

Which of the following statements about the signature and verification of pleadings under C.I. 47 is correct?

  1. Pleadings may be signed by any person authorised by the court registry
  2. Pleadings must be signed by the party or his legal practitioner, and the signature certifies that the contents are not frivolous or vexatious Correct answer.
  3. The signature is required only on the statement of defence
  4. Pleadings need not be signed if filed electronically

Explanation

Pleadings are required to be signed by the party or his counsel, and the signature operates as a certification that the pleading is not frivolous or vexatious and has a proper basis. Unsigned pleadings may be rejected or struck out. The requirement applies to all pleadings, not only the defence.

Question 48Parties, joinder, causes of action and pleadings

A plaintiff wishes to discontinue an action after the defendant has filed a defence. Which statement best reflects the position under C.I. 47?

  1. The plaintiff may discontinue at any time without any consequence
  2. The plaintiff may discontinue with the leave of the court or the consent of the defendant, and may be liable for costs Correct answer.
  3. The plaintiff may discontinue only before the writ is issued
  4. The plaintiff may discontinue only if the defendant agrees to waive costs

Explanation

After the defendant has taken a step in the proceedings, discontinuance requires leave of the court or the consent of the defendant, and the plaintiff may be ordered to pay the defendant's costs. A plaintiff who discontinues may also face restrictions on bringing a fresh action on the same claim. Discontinuance is not a cost-free option.

Question 49Service of process and default judgments

Under the High Court (Civil Procedure) Rules, 2004 (C.I. 47), how long does a defendant ordinarily have to enter an appearance after being served with a writ of summons within Ghana?

  1. Twenty-one days from the date of service
  2. Fourteen days from the date of service
  3. Thirty days from the date of service
  4. Eight days from the date of service Correct answer.

Explanation

Order 9 of C.I. 47 requires a defendant served with a writ within Ghana to enter appearance within eight days of service. Longer periods apply where service is effected outside the jurisdiction, but the ordinary domestic period is eight days.

Question 50Service of process and default judgments

A plaintiff wishes to serve a writ on a defendant by substituted service. What must the plaintiff first satisfy the court of before an order for substituted service is made?

  1. That the defendant has already been personally served once
  2. That prompt personal service cannot be effected Correct answer.
  3. That the defendant consents to the mode proposed
  4. That the claim exceeds a stated monetary value

Explanation

Order 7 of C.I. 47 permits substituted service where the court is satisfied that prompt personal service cannot be effected. The court then directs a mode of service reasonably likely to bring the writ to the defendant's notice. Consent or a prior personal service is not a precondition.