PAYMENT OF ‘COSTS’ BEFORE FURTHER STEPS IN CIVIL LITIGATION UNDER GHANA LAW – A REVIEW OF THE LAW.
“I have found in my experience that there is one panacea which heals every sore in litigation, and that is costs.” Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 711 CA.
INTRODUCTION
At the Bar, where lawyers ply their trade several issues and debates arise. One such debate is the issue of costs awarded in civil litigation and whether it is within the remit of a court to make an order that the costs be paid before a party against whom costs are awarded takes any further step. Practitioners are not ad idem on the subject. While some believe that the court can make an order as to costs and impose a condition that the costs must be paid before a party takes any further step in the proceedings, others take the view that making such an imposition is unconstitutional and unwarranted. To those who take the later view, costs awarded in civil proceedings can only be executed after the case has concluded and not before or paid before the defaulting party takes any further steps.
In contributing to the discourse, the Author in this paper discusses the law on costs in Civil Proceedings before the Courts in Ghana, what the rules of Civil Procedure provide and review of the case law. The Author argues that the court under certain circumstances can make an order as to costs and direct that the costs so made must be paid before a defaulting party takes any further step. The Author shall conclude that the argument to the contrary has no support in law, whether statute or decisional, and that once the court has exercised its discretion in accordance with law, such cannot be questioned but must be complied with by the affected party unless challenged in accordance with the rules.
What is ‘Costs’ in Civil Litigation
Order 83 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) [interpretation section] is silent on cost and does not define Costs. The very respected author and a colossus in Civil Procedure, S. Kwami Tetteh, in his authoritative book, “Civil Procedure, A practical Approach”, at page 1073 says that “Costs undefined in the Rules, connote the amount awarded by the court in favour of a successful party to reimburse the costs of litigation. It was awarded on indemnity basis, i.e. the loser pays the winner the expenses incurred in litigation such as travel expenses of the party or lawyer and court fees.” The Author suggests this definition appears a bit narrow and to that extent adds that costs are not necessarily awarded by the court in favour of the winning party against the losing party, but are also awarded against a defaulting party who has failed to take a step, comply with an order in the proceedings which has occasioned the non-defaulting party to incur some costs.
Under what Circumstances can Costs be awarded against a Party
The various Courts have their rules by which they are governed. The Supreme Court is governed by the Supreme Court Rules C.I 16 as variously amended, the Court of Appeal is governed by the Court of Appeal Rules C.I 19 as variously amended. The High Court Civil Procedure Rules 2004 (C.I 47) deals with civil proceedings in the High Court and Circuit Courts. The District Court is governed by the District Court Rules C.I 59. Costs in the Supreme Court Rules are provided under Rule 27 of C.I 16, while it is provided for under Rule 35 of C.I 19 at the Court of Appeal. For this paper, the Author shall make copious references to the High Court (Civil Procedure) Rules C.I 47, Order 74 thereof and with the necessary applications to the other rules.
“Time is money”, is a popular saying that is applicable to all people, practitioners and non-practitioners alike. Litigation even if not expensive, comes at a cost to parties. The costs of engaging counsel, printing costs, travel expenses are some of the incidents of costs in civil litigation. When a party spends money taking steps in court proceedings, it must come with some value or benefit. For instance, if a party or counsel attends court for a specific business and the proceedings come on without any adjournment at the instance of a party, the issue of costs may not arise. However, when a party spends or incurs expenses, engages counsel who travels to court, who spends hours in chambers and the proceedings for the day do not happen at the instance of the opposing party or counsel, then the non-defaulting party may be entitled to some costs. The Costs may be awarded either against a defaulting party for failing to show up in court, especially without prior notice to opposing counsel, or for failing to take a step, which will occasion an adjournment. Costs may also be awarded in favour of a party who succeeds in an interlocutor application against the losing party and finally the court may award costs against a party who loses the case after full trial.
Factors to consider in the award of Costs
The essence of the award of costs is to indemnify the party in whose favour it is awarded, for the costs he or she has incurred because of the acts or default of the party against whom the costs are awarded. Order 74 rule 2 (1) of C.I 47 provides that, “The amount of costs to be awarded shall be assessed by the Court.” But before the court assesses the costs to be awarded, Order 74 rule 2(2) provides that, the parties or their lawyers may briefly address the court on the question of costs. At this stage the party praying for costs may want to justify why that party is deserving of the costs and the quantum being prayed for. In some instances, the court would also ask the parties or their lawyers to agree on costs, which if agreeable is so ordered. As indicated earlier the purpose of costs is to compensate for expenses incurred by the party to whom it is awarded. Order 74 rule 1(3) of C.I 47 provides that, “Without prejudice to the powers and discretion of the Court, an award of costs shall ordinarily be designed to (a) compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made; and (b) provide reasonable remuneration for the lawyer of that party in respect of the work done by the lawyer.” The law is that, “As a general rule, a losing party must never be made to bear the full costs of filing fees, in situations where as a result of having an exaggerated opinion of one’s case, recklessness, or some other unjustifiable cause, a party puts in a huge monetary claim for either a debt recovery, or special or general damages, only to obtain just a fraction of it at the end of the trial. The court should in such circumstances, saddle a losing party with only such proportion of the costs of filing fees as may appear reasonable and justifiable on the given facts.”[1] Therefore the award of costs that does not fulfil some of these, in the Author’s view does not achieve the purpose of costs. The Author has witnessed instances where a court would award GHS120.00 as costs because in the view of the court that was the costs incurred by the party in filing processes, forgetting there are other incidents like fees for the lawyer’s effort in chambers in drafting and researching on the application, printing costs and transportation among others.
The Court in the assessment of costs must consider the following according to Order 74 rule 4 of C.1 47 which provides as follows, “In assessing the amount of costs to be awarded to any party, the court may have regard to
- the amount of expenses, including the travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings;
- the amount of court fees paid by that party or that party’s lawyer in relation to the proceedings;
- the length and complexity of the proceedings;
- the conduct of the parties and their lawyers during the proceedings; and
- any previous order as to costs made in the proceedings”
These are the factors that the court must have regard to. It therefore makes it somewhat preposterous when counsel or a party is awarded costs of GHS120.00 with the justification that, that is what the receipt for the processes shows as the expenses incurred without having regard to the other incidentals. Clients pay their lawyers’ fees; some are paid per hour and some other means and that must not be lost on the court in making orders as to costs. The proceedings may also have been lengthy and complex, implying that a lot of time and industry may have gone into the work. The Court seised of these facts which are usually borne out by the record must not be oblivious or pretend to be so when making the order. The conduct of parties and their lawyers also play a role in considering costs. When a party or his or her lawyer has been cooperative in the proceedings, the award of costs against that party must not necessarily be the same as the party or lawyer who has not been cooperative in the proceedings and abuse the processes of the court.
Legal basis for costs made payable before any step is taken.
The rules provide in that regard for instance that, “Costs may be dealt with by the Court at any stage of proceedings or after the conclusion of the proceedings; and any order of the Court for the payment of any costs may, if the Court thinks fit, require the costs to be paid immediately notwithstanding that the proceedings have not been concluded”[2] This shows that it is the court seised of the facts and circumstances including provisions in Order 74 rule 2 who must determine when the costs so awarded must be paid and under what conditions. Indeed Order 74 rule 5, is clear that no party shall be entitled to recover costs from any other party, except under an order of the court (emphasis the Author’s). This means that the court has the power and discretion to make the order with conditions and such an order is in accordance with law. Order 74(5)(2) provides that, “Where the Court in the exercise of its discretion considers it fit to make an order as to costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except where it appears to the Court that in the circumstances of the case, some other order should be made as to the whole or part of the costs.” (emphasis the Author’s).
The Author takes the view humbly that there may be several instances under which a court or the person presiding may award costs and impose a condition that the costs must be paid before the party takes any further steps. It is trite learning that every court has inherent jurisdiction to prevent abuse of its own processes. Many years ago in the case of Cocker v Tempest[3], Baron Alderson stated thus, “The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own processes abused for the purpose of injustice.” The Author contends that this jurisdiction to prevent abuse is inherent in every court, whether inferior or superior, although the argument is made from the case of Timitimi v Amabebe[4] that a superior court has all powers except expressly taken away while inferior courts do not have jurisdiction unless expressly conferred. The Author submits that, the fact that there is no express conferment of say an inferior court to male orders to prevent abuse of its processes, does not deny the inferior court of such powers. In Reichel v Magrath[5] Lord Halsbury LC said in this regard that, “I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure.” By inherent jurisdiction, a court can control its own processes to prevent abuse of its procedure. The authors of Halsbury’s Laws of England, 4th edition, Vol 37 said at paragraph 14 thus;
“The jurisdiction of the Court which is comprised within the term “inherent” is that which enables it to fulfil itself properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is a part of procedural law – and it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise (i) Control over process of regulating its proceedings, by preventing the abuse of process and by compelling the observance of process…. In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve of fund of powers, residual source of powers which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”
In Ghana, this position received judicial blessing in the recent case of Republic v High Court, (General Jurisdiction), Accra; Ex Parte Magna International Transport Limited. (Ghana Telecommunications Limited Interested Party)[6] where it was held inter alia that,
“It is a well settled principle that every court has an inherent jurisdiction to stay proceedings for stated reasons which include, but not limited to, abuse of process…… The inherent jurisdiction of the Courts is derived from the common law, which is part of the laws of Ghana by virtue of article 11(1)(e) of the Constitution, 1992. The court’s inherent power to stay proceedings has become so entrenched in the law as to assume the status of indispensability unless clearly ousted by statute.”
Writing on Costs for the day, Francisca Serwaa Boateng in her book[7] at page 434 said thus,
““Costs for the day” This is costs that may be awarded against a party or a lawyer who fails to come to court on a particular day, mostly without prior notice to the other side. Such costs is intended to cover the party or lawyer’s expenses in coming to court for that day. The court may indicate that the costs awarded for the day is costs in cause, or must be paid before the next adjourned date, or before the defaulting party takes any fresh step in the case.”
In 2024, the learned Chief Justice[8] introduced some Practice Directions as part of her Leading Justice Initiative[9]. One of the Practice Directions was on the Award of Costs which provides in Clause 2.1(c) that,
“If both parties are satisfied with costs so admitted, it will be adopted by the Court and entered as costs to be paid within a time specified by order of the Court….” (Emphasis the Author’s)
The point the Author is seeking to make by these points is that there are instances that warrant the court making orders as to costs and insisting that the defaulting party pays the costs before taking further steps. The Author submits that the discretion to award the costs, includes the discretion to impose time for and condition attached to payments. For instance, where a party files frivolous and vexatious applications and fails to prosecute them, compelling the courts to strike them out for want of prosecution, where a party or counsel keep filing applications that are not known to the rules of Court, where a party fails or defaults in compliance with orders and directions of the court and for instance where a party. The Author is of the view that, the list above is inexhaustive and very fluid and can evolve depending on the facts and circumstances before the Court.
Discretion of the Courts in the award of Costs
Order 74 rule 1(1) of C.I 47 provides that, “Subject to this Order, the costs of and incidental to proceedings in the Court shall be at the discretion of the Court, and the Court shall have the full power to determine by whom and to what extent the costs are to be paid.” (Empasis the Author’s). In the case of West African Examination Council v State Insurance Company[10], Griffiths-Randolph J restated the position that, “The general rule was that a successful party in a suit was entitled to costs, but the prerogative to decide who was entitled and how much to award was the prerogative of the court…” It is therefore the court that exercises the absolute and unfettered discretion on how much costs are warranted and the terms of payment of same. As Viscount Cave L.C reminds us in the case of Donald Campbelle & Co v Pollak[11],
“the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case….”
Under Ghana law, when discretion is conferred on any person, there is an obligation on that person as to how that discretion is exercised. The law is that,
“Where in this Constitution or in any other law discretionary power is vested in any person or authority- (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not ben arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.”[12]
On discretion of the court under article 296 of the 1992 Constitution of Ghana, the Court of Appeal[13] had an opportunity in the case of Tema Oil Refinery v African Automobile Limited[14] and said that “Order 74 of CI 47 regulates the award of costs. The award of costs is at the discretion of the court but, like every discretion, shall not be arbitrary, capricious or biased either by resentment or personal dislike. (See article 296 of the Constitution 1992.)” Even before the Tema Oil Refinery case cited supra, the courts have in cases like Real Estate Development v Fosua[15] said that,
“Even though the award of costs had always been in the discretion of a trial judge, the exercise of that discretion in this instant case was not based on any known judicial principles and in considering it, the trial judge must have taken extraneous matters into deliberation. And since the hearing of the two consolidated suits involving the same counsel for both parties lasted only four days and since some costs had already been awarded by the trial judge for adjournments at the instance of defence, there was no basis for awarding costs of 100,000 and 150,000 in favour of the first and second respectively. They would be set aside and substituted by costs of 2,500 in respect of each suit.”
Again, in Bank of Ghana v Nyarko & Another[16] the award of costs by the trial court was challenged on appeal. The trial court had held that Plaintiff’s dismissal was null and void and awarded costs of C750.00 in favour of Plaintiff whose damages for wrongful dismissal had been accessed as C7,881.84 and C 10,832.40. On a successful appeal, the Court of Appeal coram Apaloo, Lassey and Archer JJ.A (as they then were) reversing the trial court decision held that,
“Although the award of costs was discretionary, it must not only reflect the result of the suit but must also bear a reasonable relation to the amount of work that the preparation and conduct of the suit must have involved. In the instant case, there were no complicated pleadings to settle, no witnesses were called and there was no trial of any sort. The costs awarded were excessive.”
While the courts at the appellate fora can reduce the quantum of costs if they deem it excessive, it in exercise of its discretion may in some instances also enhance the award of costs if the circumstances warrant so. In the case of Ghana Ports and Harbor & Capt. Zein v Nova Complex Limited[17], the Court of Appeal had awarded costs of GHS20,000.00 in favour of the Plaintiff but their Lordships at the Supreme Court considered the costs low and enhanced it to GHS50,000.00.
In Obeng v Obeng,[18] the Supreme Court speaking through Akamba JSC said;
“As the Constitution clearly states in article 296, every discretion vested in any person or authority requires that the person or authority and in this case the trial judge shall be fair and candid; that the power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”
The Practice Direction on the Award of Costs, 2024 combines the discretionary power of the court to award costs and the duty implied by the discretion power in the preamble thus, “Recognizing that the Courts in Ghana during civil trials have the discretionary power to award Costs..” It continues thus, “Guided by the provisions of Article 296(a) of the 1992 Constitution that persons exercising discretionary power have a duty to be fair and candid, and the exercise of discretionary power shall not be arbitrary, capricious or biased ….. ”
It is the position of the Author that, a court will not make an order as to costs and make the payment of such costs condition precedent to any further step without a basis for so ordering. In other words, a court will not make such an order in vacuum. There would be a reasonable basis for a court to make such an order and usually it is because a party against whom such an order is being made, has or is abusing the process of the Court and the imposition of costs is one means to ensure that such abuses are prevented. Once the order and conditions for its fulfilment are not arbitrary, capricious or biased by resentment and personal dislike but made in accordance with law, fairness and in accordance with the rules, that must be complied with. The Court have said in the case of Buckman and Others v Ankomayi and Another,[19] that “the rules of Court are not ornamental pieces, they are meant to be complied with”
A review of Case Law on this subject matter.
In the case of Henry Okaikwei v Azumah Nelson[20] their Lordships at the Court of Appeal[21] speaking to Baah J.A held among others that, “Whereas costs incidental to proceedings usually follows the event for execution at the end of the trial, it is within the court’s discretion to make its payment conditional to the taking of further steps, or order it to be paid within a specific time”. The Court of Appeal did not just sanction that costs must be made and payable before subsequent steps are taken, their Lordships proceeded to state that, when a court makes an order for a party to pay costs before further steps are taken, the party that defaults in so paying, cannot take any such step. The Court again speaking through Baah J.A stated thus, “When a court orders immediate payments of costs and conditioned upon the fulfilment of a particular act, failure to pay the costs may entitle the court to deny the defaulting party participation or a benefit in the trial.” He continues to say that:
“Such a denial does not amount to execute the costs. It only amounts to enforcement of the term or condition attached to the payment of the costs. Since the term or condition was exacted to protect the integrity of the rules of court and enhance speedy and effective administration of justice, it is in the province of the court itself to enforce that term or condition.”
When a party is clearly abusing the processes of the Honourable Court, such an order is not only warranted, but imperative to restore the sanity of the processes of the Court. In the case of Henry Okaikwei v Azumah Nelson, such was the circumstances under which such orders were made. The facts among others, relevant to this paper were that, the Appellant conducted his case by perpetual defiance of the procedural commands of the trial court. The Plaintiff/Respondent issued a writ to which the Defendant/Appellant responded by an appearance and a statement of defence. Issues were set down with an order for parties to file and exchange documents for trial. While the Defendant/Appellant filed his documents on 24th November 2014, the Plaintiff/Respondent and his witnesses filed theirs on 14th April 2016 with leave of the court an amended defence was filed. The trial was adjourned to 10th March 2017, but the Appellant and counsel was absent. At the next sitting on 20th March 2018, counsel for Appellant failed to show up despite being served with hearing notices, which occasioned an adjournment to 2nd May 2017 for Case Management. Despite being served with hearing notice and Court notes, counsel for appellant failed to show up and the case was adjourned to 4th May 2017 for continuation of Case Management. Counsel for Respondent applied to strike out the amended statement of defence and counterclaim under the requisite rules[22] and upon failing of the Appellant to attend the hearing, the application was granted and the defence and counterclaim struck out. After some adjournments, Respondent testified and the case was adjourned for Respondent to be cross examined on 27th July 2017 and subsequently on 10th October 2017, but Appellant failed to show up whereupon the Court ordered the Respondent to file his written addresses which were done on 20th October 2017. On 27th October the Court ordered the written address of the Respondent and hearing notice to be served on the Appellant and case was adjourned for judgment. It was at this time that the Appellant woke up with an application to the court praying for an Order for relistment of his statement of defence and counterclaim which had been struck out previously by the court. The court acceded to the prayer and granted the application to relist, ordered the Appellant to file his witness statement within 7 days with punitive costs of GHS20,000.00 payable within seven days and conditional to the filing of any process and case adjourned to 20th February 2018. On that day, Appellant was present without his counsel but had neither paid the costs nor filed the witness statement. The case was adjourned to 22nd March 2018 for judgment and the court delivered its judgment on that day, which was the subject of this instant appeal. One of the grounds of appeal, which is central to this paper, was that, “the trial judge erred in law when GHS20,000 awarded as cost against the 1st Defendant was used as condition precedent for filing of other processes in the suit before her thereby denying the 1st defendant fair hearing in breach pf the natural justice principle of audi alteram partem.”
The Author takes the view, and it is the trite position of the law that, when a party is given an opportunity to be heard in proceedings and the party squanders that opportunity, such a party cannot be heard to be complaining of not being heard. See the cases of Republic v High Court, Accra; Ex, Parte Industrial Fund for Developing Countries[23], Republic v High Court (Human Rights Division), Accra Ex Parte Josephine Akita (Mancell – Egala and A-G, Interested Party)[24], Republic v High Court (Fast Track Division) Ex Parte State Housing Co. Limited (No. 2)[25] to mention but a few. On the issue of the costs being made a condition precedent to further steps, the Author agrees with the trial Court and Court of Appeal in ordering and confirming same. The Court of Appeal had this to say;
“An incidental order for costs may also be executed under Order 43 Rule 1, where the court allows costs to follow the event. However, at the discretion of the court, an incidental cost may be made payable immediately or on a specific date and upon such conditions or terms as the court may deem fit. When a court orders immediate payment of costs and conditioned upon the fulfilment of a particular act, failure to pay the costs may entitle the court to deny the defaulting party participation or a benefit in the trial.”
The Court further said;
“Worthy of note is the fact that there is a clear distinction between the power of the court to order costs to be paid immediately and on terms including its power to enforce the terms attached to the payment on the one hand; and the actual execution processes that may be taken up by the interested party to retrieve the costs in the event of a default on the other hand”.
In giving judicial blessing to Order 74 Rule 5(1) and (2), the Court said;
“The punitive costs imposed by the trial judge for Appellant’s epic delays was perfectly anchored on the rules of court. When the costs were awarded, the court could have left it to follow the event so as to be executed after the trial. It could also make specific orders as to how and when it is to be paid.”
Order 74 rule 5(1) and (2) provides respectively thus, “(1) Subject to rule 4 and to any other provision of these Rules, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the court” sub rule 2 provides further that;
“Where the court in the exercise of its discretion considers it fit to make an order as to the costs of or incidental to any proceedings, the court shall, subject to this Order, order the costs to follow the event, except where it appears to the court that in the circumstances of the case, some other order should be made so as to the whole or any part of the costs.”
The Court therefore provided judicial justification for the order and went ahead to advise the Appellant and by extension other parties and practitioners alike on the steps to take if they have an objection to any such orders. The Court of Appeal in that regard spoke thus,
“If the Appellant had any objection to the condition attached to the costs, he should have applied for its review under Rule 12(1) of Order 74. Having been indulged by the court and afforded reasonable opportunity about the court’s decision to proceed to judgment when he failed to pay the costs and also failed to file the witness statement to enable him to partake in the trial”
The authority and sound reasoning in the above case has been followed by other Courts. In the case of Agricultural Development Bank v Klean Water Sanitation Limited & Another[26] the High Court Accra, Commercial Division with His Lordship Francis Obiri presiding applied the authority in Henry Okaikwei v Azumah Nelson, in dismissing an application and awarding costs payable before any further step is taken. These were the words of the trial judge,
“I have considered the documents filed in support and in opposition to the application for stay of Execution and do not find any merit in it. I will therefore proceed to dismiss same and same is accordingly dismissed. I will award cost of GHS5000.00 against the Applicants in favour of the Respondent. I order that the cost should be paid before the Applicants take any fresh step in this case under the authority of RISS HENRY OKAIKWEI V NATHANIEL AZUMA NELSON AND ANOTHER [2022] 177 GMJ 251 CA. I order accordingly”
His Lordship Francis Obiri again in the case of Stacy Amewoyi vrs Ann Kusi Poku[27] in a terse ruling of the High Court, the court earlier had struck out a case for want of prosecution and ordered the Plaintiff to pay cost of GHS2,000.00 before she could take any fresh step under the authority of RISS HENRY OKAIKWEI V NATHANIEL AZUMA NELSON [2022] GMJ 251 CA. The Court, however, relisted the Plaintiff’s case without the Plaintiff satisfying the condition precedent which was set by the court to be fulfilled before any fresh step is taken. The Honourable Court held that the order for relistment was a nullity. And once that had been detected by the court itself, then the court has power to set aside the order of relistment ex debitio justitiae”
Review of decisions on orders as to costs
Order 74 rule 12 of C.I 47 provides an avenue for parties against whom a decision on costs has been made to seek redress within a specific period. Order 74 rule 12 (1) provides that, “Where the Court awards costs, or declines or fails to award costs, any party aggrieved by the award or failure or refusal of the Court to award costs to the party may, within fourteen days after the date of such award or failure or refusal, to apply to the Court to review its decision” This implies that a party has only 14 days within which to apply for a review, failing which in the Author’s view, such a party is estopped. Sub Rule 2 of Rule 12 is to the effect that, “Where the Court assess the amount of any costs, any party aggrieved by the assessment on the ground that, (a) the amount assessed in favour of that party is inadequate; or (b) the amount assessed against that party is excessive, may within fourteen days after the date of such assessment, apply to the Court to review its decision.” The application for the review must be supported by an affidavit of the applicant or lawyer setting out the decision for which the review is sought[28], reason for the review[29], facts relevant to the application[30] and the new order being sought by way of the review application[31]. All relevant receipts must be exhibited[32] and as with all applications, same must be on notice[33] to the other party who may within seven days after receipt of the notice file an affidavit by way of an answer, save that no subsequent affidavits shall be filed or served.[34] When the case is ripe for hearing, the Court may after considering the affidavits and any documents, either dismiss the application, giving reasons;[35] or review any previous order of the Court relating to Costs and make such new orders as may be just to ensure that all matters in controversy regarding costs are finally dealt with.[36] Order 74 rule 12(11) provides that Order 42 shall not apply to proceedings under Rule 12 of Order 74. It is worthy of note in the Author’s view that Order 42 of CI 47 which was on ‘Review’, after being questioned by the Supreme Court albeit in obiter in the case Republic v High Court Tamale, Ex Parte Dakpema Zoboguna Henry Kareem & Ors (Dakpema Naa Alhassan Mohammed Dawuni.. Interested Party);[37] has since been revoked by the High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I 133) by Order 2 hereof.
Conclusion In conclusion, in civil proceedings, the power to award or grant costs sits with the court. The grant or otherwise of costs is at the discretion of the court and that discretion once exercised judicially and in accordance with law cannot be questioned. If therefore a judge, based on facts and circumstances before him or her, thinks the award of costs must be made and the payment of same precondition to the taking of further steps, same is done in accordance with law. To deny a court of competent jurisdiction seised of facts before it, the need to put measures to prevent abuse of its processes, would not achieve speedy and effective, avoiding delays and unnecessary expense which are the guiding principle in civil proceedings. Therefore, in the Author’s view, the contrary position that such orders cannot be done is without basis, unmeritorious and hence unconvincing
[1] Juxon-Smith v KLM Dutch Airlines [2005-2006] SCGLR 438 per Georgina Wood JSC (as she then was)
[2] Order 74 Rules 3(1)
[3] (1841) 7 M & W 502, 503-4 (Court of Exchequer)
[4] (14 WACA ) 374
[5] (1889) 14 App. Case 665 at 668 per Lord Halsbury
[6] Suit No. J5/66A/2017 [2018] GHASC 53 judgment dated 07 November 2018
[7] The Handbook on Civil Procedure & Practice in Ghana, Rules, Cases, Commentary & Precedents
[8] Her Lordship Getrude Araba Esaaba Torkornoo
[9] https://www.thelawplatform.online/post/a-new-dawn-what-torkornoos-leading-intiatives-entail
[10] [1977] 2GLR 467
[11] (1972) A.C 811
[12] Article 296 of the 1992 Constitution of Ghana
[13] Coram J.B Akamba J.A (as he then was) Presiding, Yaw Appau JA (as he then was) and Victor Dotse Ofoe JA
[14] Suit No. H1/213/2009 judgment dated 11th March 2010
[15] [1984-1986]
[16] [1973] 2 GLR 265
[17] [2007-2008] SCGLR 806
[18] [2016] 99 G.M.J 183
[19] [2013-2014] 2 SCGLR 1372
[20] [2022] 177 G.M.J 251
[21] Coram Welbourne (Mrs) J.A Presiding, Aryene (Mrs) J.A, Baah J.A
[22] Order 32 Rule 7A(3)(b)
[23] [2003-2004] 1 SCGLR 348
[24] [2010] SCGLR 374 at 383-384
[25] [2009] S.C.G.L.R 189 at 190 per Wood CJ
[26] Suit No. BFS/254/2011 Judgment dated 16th August 2023
[27] Suit No. GJ/1155/2019 Judgment dated 23rd April 2024
[28] Order 74(12)(3)(a) CI 47
[30] Order 74(12)(3)(c) CI 47
[31] Order 74(12)(3)(d) CI 47
[32]Order 74(12)(4) CI 47
[33] Order 74(12)(5) CI 47
[34] Order 74(12)(6) CI 47
[35] Order 74(12)(10) (a)CI 47
[36] Order 74(12)(10) (b) CI 47
[37] Civil Motion J5/6/2015 judgment dated 4 June 2015