Summary Judgment Under Ghanaian Law: A Practical Tool For The Quick Disposal Of Civil Disputes

INTRODUCTION

When people think of civil litigation, they often imagine a long and demanding process which involves filing all required pleadings, witnesses testifying, lawyers cross-examining, and a trial that may take months or even years before a final decision is reached. While this may be true for many disputes, the law recognises that not every case requires the rigours of a full trial. In some situations, it becomes clear early in the proceedings that there are no triable issues and the defendant has no real defence to the plaintiff's claim. Where this happens, insisting on a full trial would only waste time, increase legal costs, unduly burden litigants and place unnecessary pressure on the courts.

To address this reality, the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides important mechanisms for expeditiously resolving certain disputes. One of these devices is Summary Judgment, governed by Order 14 of C.I. 47. Summary judgment allows the court to decide a case early, but under specific conditions. In doing so, it helps ensure that justice is delivered efficiently without sacrificing fairness.

WHAT IS SUMMARY JUDGMENT?

Summary judgment is a judgment entered without a full trial where it is clear that the defendant has no reasonable defence to the Plaintiff's claim, or to a part of the claim and that there are no legal or factual issues which ought to be tried. It is granted upon an application to the court seeking summary judgment in favour of the plaintiff upon the aforementioned grounds.

However, if the defendant raises a legitimate defence and a triable issue, the court may refuse the plaintiff's application and allow the case to proceed to trial. It is only in the absence of triable issues and a defence that the court may deem it necessary to grant summary judgment.

This simple example below helps illustrate how summary judgment works:

A bank may sue a borrower to recover a loan. If the borrower admits to taking the loan and defaulting but merely states that business has been slow, this explanation does not amount to a legal defence. In such circumstances, the court may grant summary judgment if satisfied that no genuine defence exists. However, where the borrower raises a legitimate defence and issue that ought to be determined in a trial (for example, that repayment was made or that the amount claimed is incorrect), the court may refuse the application and allow the matter to proceed to trial.

It must be noted that although plaintiffs usually make summary judgment applications, the benefits of this procedure are not limited to them. A defendant who has filed a counterclaim against a plaintiff may also apply for summary judgment if the plaintiff has no defence to that counterclaim.

THE PURPOSE OF SUMMARY JUDGMENT

Summary judgment plays an important role in the administration of justice. It allows courts to avoid unnecessary trials where the outcome of a case is already clear. The procedure saves time, reduces litigation costs, and discourages weak, frivolous or insincere defences filed merely to delay proceedings. By resolving clear cases early, it ensures that judicial time is reserved for disputes that genuinely require determination through a full trial.

HOW A PLAINTIFF APPLIES FOR SUMMARY JUDGMENT

Before summary judgment can be granted, certain procedural requirements must be satisfied under Order 14, Rules 1 and 2 of C.I. 47.

1. Firstly, the writ and statement of claim must have been served on the defendant. These documents formally notify the defendant of the claim and set out the facts on which the plaintiff relies. In practice, plaintiffs attach to the application proof of service of the writ and statement of claim on the Defendant.

2. Secondly, the defendant must have entered appearance. By filing a Notice of Appearance, the defendant acknowledges that he has been served with the writ and indicates an intention to defend the action either personally or through his lawyer.

3. Once these steps have been completed, the plaintiff can apply for summary judgment. The application must be made by motion on notice, meaning that the defendant must be formally informed of the application by serving a copy of the application on him.

4. The motion must be filed along with a supporting affidavit, which sets out the facts the applicant will rely on and the grounds for the application. Through the affidavit and any attached exhibits, the applicant must demonstrate one of the following:

a. That the defendant has no defence to the plaintiff's claim; or

b. That the defendant has no defence to part of the plaintiff's claim; or

c. That the defendant has no defence to the whole or part of the claim, except a defence regarding the amount of damages claimed by the Plaintiff.

5. Lastly, the defendant must be served with the motion and the supporting affidavit not less than four (4) clear days before the hearing date stated in the motion paper, according to Order 14 Rule 2 of C.I.47.

The essence of this application is to show that the case can easily be disposed of by affidavit evidence showing that the defendant has no defence. All documents the plaintiff intends to rely on in support of the facts deposed in the affidavit must be attached to the affidavit as exhibits (for example, receipts, contracts, notices, letters, financial records, invoices, etc., which establish the Plaintiff's claim and the Defendant's lack of defence). If your motion for Summary Judgment is denied, the proceedings will take their normal course, and a full trial will be held.

HOW A DEFENDANT APPLIES FOR SUMMARY JUDGMENT (SUMMARY JUDGMENT ON A COUNTERCLAIM)

Summary judgment is not available only to plaintiffs. Under Order 14 Rule 10 of C.I. 47, a defendant may also apply for summary judgment on a counterclaim. A counterclaim allows the defendant to assert a claim against the plaintiff within the same proceedings rather than filing a separate lawsuit.

For instance, a customer (plaintiff) may sue a service provider (defendant) for failing to deliver services under a contract. In response, the service provider may file a Statement of Defence and Counterclaim alleging that the customer failed to make the payments required under that same contract. The service provider can then apply for Summary Judgment against the customer on their counterclaim. If the service provider can demonstrate that the customer has no defence to the whole counterclaim or part of the counterclaim, the court may grant summary judgment in favour of the service provider, although they are the defendant.

In this way, the summary judgment procedure operates both ways and is available to both a plaintiff seeking summary judgment on his claim and a defendant seeking summary judgment on his counterclaim.

HOW A DEFENDANT OPPOSES AN APPLICATION FOR SUMMARY JUDGMENT MADE AGAINST HIM

When a summary judgment application is made, the defendant is entitled to oppose it. In practice, the most common approach is to file an affidavit in opposition (Order 14 Rule 3(1) of C.I.47). In the opposing affidavit, the defendant must do more than simply state that a defence exists. The affidavit must:

a. state that the defendant has a good defence;

b. disclose sufficient facts supporting that defence;

c. indicate whether the defence applies to the whole or part of the claim; and

d. demonstrate that there is a genuine issue requiring trial.

If the defendant succeeds in showing that a real defence and triable issue exist, the court will refuse summary judgment and allow the case to proceed to a full trial.

It must be noted that the failure of a defendant to file an affidavit in opposition does not bar him from opposing an application for summary judgment. Order 14 Rule 3(1) permits defendants to show cause against the application through other means. The defendant may do so by filing a statement of defence which discloses a legal defence and raises triable issues, by relying on a statement of defence that has already been filed, or by appearing at the hearing of the application to raise legal arguments against it, as held in Afodofe v. Central Insurance Co. [1992] 2GLR 207.

SETTING ASIDE SUMMARY JUDGMENT (ORDER 14 RULE 9)

If summary judgment is entered in the absence of the defendant, the defendant may apply to have it set aside or varied under Order 14 Rule 9 of C.I. 47. The application to set aside the summary judgment must be made by motion on notice, and it must be filed within fourteen (14) days after the plaintiff serves the Entry of Judgment on the defendant. The application must also be supported by an affidavit explaining the reason for the defendant's absence and demonstrating that a reasonable defence exists. If the court is not satisfied with the explanation, the court would exercise its discretion and dismiss the application to set aside the summary judgment.

CASES WHERE SUMMARY JUDGMENT IS NOT AVAILABLE

Order 14 Rule 12 of C.I.47 restricts the use of summary judgment in certain types of cases. Parties cannot apply for summary judgment in matters involving Probate proceeding, Matrimonial causes, Maritime proceedings, Defamation, Malicious prosecution, Seduction, Breach of promise to marry, and claims based on allegations of Fraud. To illustrate, in Cecil Ocran v. Rachel Lamptey & Others, Suit No. AC 270/2010, the High Court refused an application for summary judgment because the plaintiff's claim was based on an allegation of fraud. Such claims must be determined through a full trial.

DIFFERENCE BETWEEN SUMMARY JUDGMENT AND A DEFAULT JUDGMENT

Summary judgment is sometimes confused with default judgment, but the two are fundamentally different. Summary judgment is granted on the merits of the case after the court determines that no genuine defence or triable issue exists.

Default judgment, by contrast, arises from procedural failure, where a defendant fails to enter appearance or file a statement of defence within the required time. Here, the plaintiff either applies for "judgment in default of appearance" (pursuant to Order 10 of C.I.47) or "judgment in default of defence" (pursuant to Order 13 of C.I.47).

CONCLUSION

Summary judgment under Order 14 of C.I. 47 is a critical procedural device in Ghanaian civil litigation. It allows the court to dispose of certain cases swiftly. By doing so, the law avoids unnecessary trials and ensures that judicial time and resources are used where they are truly needed.

At the same time, the courts exercise caution in granting summary judgment. The procedure is applied only where no genuine defence and triable issue exist, thereby promoting efficiency and protecting the integrity of the judicial process. Where a real issue exists, the parties must still proceed to trial so that the matter can be determined fairly.

In this way, summary judgment strikes a careful balance between efficiency and fairness. It allows clear cases to be resolved swiftly while preserving the right of parties to fully present their case where genuine disputes exist.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.