What a month December, 2020 was! Being an election month in an election year in Ghana, it was expectedly a very busy one. The 7th December, 2020 national parliamentary and presidential elections were like none other we have experienced in the Fourth Republic. Parliamentary seats were shared equally between the incumbent NPP and opposition NDC; 137 seats apiece, and one independent seat. There were snippets of rumours that the NDC party was contemplating legal action to challenge the results of the presidential elections and various commentaries captured the airwaves as to the wisdom or otherwise of such a move. In the event, the petition was filed. As at the date of this writing, the petition is still pending at the Supreme Court. The best of luck to all parties. Also in December, 2020, the global COVID-19 pandemic was not letting up at all. Infection and death rates were rising world-wide and the race for a vaccine was progressing in earnest. Defeated US President, Donald Trump, was still holding on to dear power by his fingernails, obstinately clinging on despite reportedly losing to President Joe Biden in the presidential elections held in November.
As the above events unfolded and captured our collective attention, the Attorney-General and Minister for Justice was very much at work. The Honourable Minister was working feverishly to enhance the jurisdiction of the Circuit and District Courts with regards to the monetary value of claims to be filed in those courts.
The Courts Regulations, 2020 (L.I 2429)
On 16th December, 2020, the Courts Regulations, 2020 (L.I 2429) (hereafter called “the Regulations”) came into force. The purpose of the Regulations is to expand the jurisdiction of the lower courts (Circuit and District Courts) in respect of personal claims made in court for specified amounts. Under the Regulations, all cases that involve personal claims of up to GH₵500,000 (five hundred thousand Ghana cedis) must be filed at the District Court and all personal claims from GH₵500,000 up to GH₵2,000,000 (two million Ghana cedis) must be filed at the Circuit Court. These limits apply to cases arising under contracts, torts and recovery of debt. Applications for grant of probate or letters of administration and succession to property of a death person with stated monetary values are also covered by the Regulations.
The jurisdiction of the District and Circuit Courts before the Regulations (L.I 2429).
When the Fourth Republic was ushered in on 7th January, 1993, one of the early laws passed under the 1992 Constitution was the Courts Act, 1993. The Courts Act established the lower courts and provided for their composition and jurisdiction, among other things. The lower courts included the District Courts (then known as Community Tribunals) and Circuit Courts. The jurisdiction of the District Court for personal claims was fixed up to a maximum of GH₵500 (five hundred Ghana cedis) and that of the Circuit Court was fixed up to GH₵1,000 (one thousand Ghana cedis) in today’s new Ghana cedi terms. The High Court had jurisdiction over all personal claim suits above the stated thresholds.
The above monetary limits for the lower courts remained in place for several years until 2014 when the Courts (Amendment) Regulations, 2014 (L.I 2211) was introduced to enhance the jurisdictional limits. Under L.I 2211, the District Court’s jurisdiction in personal claims was increased to GH₵20,000 (twenty thousand Ghana cedis) and that of the Circuit Court was increased to GH₵50,000 (fifty thousand Ghana cedis).
The implications of the new Regulations for the legal profession and administration of justice in Ghana.
A cursory look at the new monetary value limits set by the Regulations leaves no one in doubt at all that a momentous shift has occurred in the future roles the various trial courts in Ghana will play in delivering justice to our citizens. Admittedly, the Regulations apply to the lower courts but the reality is that, the High Court’s monetary value jurisdiction is dictated by what applies at the lower courts. Unfortunately, considering how terse the Regulations are – it covers two pages in substance – not much insight could be gleaned as to what necessitated such huge increases in the lower courts’ monetary jurisdiction.
Be that as it may, whatever the reasons for setting such high monetary value limits might have been, it appears the Attorney-General and other sponsors of the Regulations did not avert their minds to the dire implications the Regulations portend for access to justice, administration of the judicial system and the legal profession.
- By the Regulations, as from 16th December, 2020, all cases involving personal claims of up to a value of GH₵500,000 must be filed at a District Court. Being the court on the lowest rung of the hierarchy of courts, District Courts are found in most remote parts of Ghana. However, because the monetary value jurisdiction of District Courts has been historically low, the cases filed at District Courts are mostly small claims. Therefore, the facilities and infrastructure for District Courts have been equally basic. Indeed, it is the duty of the various District, Municipal and Metropolitan Assemblies to provide the premises and facilities for such courts, a duty that the Assemblies are not able to discharge easily. Not too long ago, a former Chief Justice reportedly refused to allow a newly-built District Court in the Western Region to be used as it was not fit for purpose. In most cases, District and Circuit Courts are congested and even basic toilet facilities for magistrates, staff, lawyers and litigants/court users are not available. In instances where they are available, they are in such deplorable state as to be deemed non-existent.
If, therefore, there has not been any improvement in the infrastructure and facilities of these courts, how will the courts handle the immense caseload and human traffic that is bound to be generated there by virtue of the Regulations? The anticipated congestion may put people off going to court. Again, most District Courts, by the very nature of their subject-matter jurisdiction, may be situated in different suburbs in the towns and cities. They are not clustered together at one location like the High Courts in most regional capitals. For instance, in Accra, the Court Complex provides a star example. Whereas previously most suits were handled at the High Courts and it made moving from one court to another easy, the same cannot be said now with District Courts that may be littered across the length and breadth of cities. Typical examples are Accra and Kumasi, and the bulk of court cases in Ghana are handled by the courts in these two cities.
- The increase in the monetary value jurisdiction of the District and Circuit Courts under the Regulations has not been made with a corresponding enhancement in the qualification and experience of the magistrates and judges of those courts. For example, a lawyer with 3 years’ experience qualifies to be a District Court magistrate and with 5 years’ experience, a lawyer qualifies to be a Circuit Court judge. As matters stand now under the Regulations, it will be an understatement to say that magistrates and Circuit Court judges will be overstretched beyond their existing capacities. As any lawyer with an appreciable level of law practice will confirm, cases handled by the High Court with values beyond GH₵100,000 are mostly contentious matters that demand the knowledge and experience of High Court judges. If such matters are now handled by magistrates, then how fair is that to the magistrates, the litigants and their lawyers alike?
- Another effect of the Regulations is that, most High Courts in the regions will be rendered redundant. If District and Circuit Courts are exercising jurisdictions of up to GH₵2 million, then a High Court will have jurisdiction over a case with a monetary value of above GH₵2 million. Now, in 2020, the national daily minimum wage was GH₵11.82. As at the date of this writing, it remains the same. For 2021, SSNIT has announced that monthly pension payment will be GH₵49. According to the World Bank, Ghana’s GDP per capita for 2019 was US$2,202.116. Ghana’s GDP is not stated in the 2020 budget statement so let us work with the World Bank’s. These figures show the true nature of our economy. Considering how low the daily wage, monthly pensions, GDP per capita and so on are, what then informed the enhancement in the monetary value jurisdictions of the lower courts? Very few of our citizens will be qualified by monetary jurisdiction to access the High Courts, where the majority of experienced judges sit.
It is interesting to note that Nigeria’s GDP per capita for 2019 was US$2,229.859, almost the same as Ghana’s. However, the monetary limits set for Nigeria’s lower courts are far less than what pertains in Ghana under the Regulations. For instance, by Section 28 of the Magistrates Court Law of Lagos State, the monetary limit for claims at Magistrate Courts (the equivalent of Ghana’s District Court) is ₦10,000,000 (ten million naira), the equivalent of GH₵ 152,326.56. This means that, the monetary value set for the lowest court in Lagos State, Nigeria, is just about 30% of what pertains in Ghana. Therefore, the commercial capital of Nigeria, Lagos, with its huge business activities has a far lower monetary threshold for its lowest court than Ghana. This implies that, with such a threshold set not so high, a lot of cases will be filed at the State High Court where, just like the case in Ghana, there is no limit set. This further implies that, a lot more businesses and individuals will have access to the superior courts of justice in Nigeria than in Ghana. And if both Ghana and Nigeria are in the running to become the best destination for doing business in West Africa, then who is better placed in terms of access to justice? Please, take a wild guess. We should also not forget that the secretariat of the African Continental Free Trade Agreement is located here in Ghana. Seriously working on attracting investments and business deals into Ghana and restricting access to our courts is complete misalignment of policy. Now for a party to be able to file a suit at the High Court anywhere in Ghana for, say, breach of contract, the amount involved must not be less than US$343,642.60 (GH₵2,000,000).
- Flowing from the above, the Regulations will render most High Courts in Ghana inaccessible. The majority of our citizens will never come close to having a claim or anything close to GH₵2 million in their lifetime. Considering that most litigants in our courts are individuals and SMEs, the High Courts will be left virtually empty. For most of us, the courts automation process in the early 2000s with the creation of the Fast Track Division of the High Court, and later, the setting up of the various divisions with specialized jurisdictions marked a refreshing dawn for access to and administration of justice. The creation of the Commercial Division of the High Court with its rules of procedure intended to expedite the trial of commercial cases was hailed by all, not least, the business community and foreign entities doing business in or with Ghana.
Indeed, along with the creation of these divisions came massive human, physical and technological infrastructural development for the High Courts especially, and the Courts of Appeal and Supreme Court. Most High Court judges have had opportunity to advance their knowledge through further studies with sponsorship from the judiciary. Now that the High Courts are going to be virtually empty, it means all the years of heavy investment have come to naught. As a nation, we can ill afford such waste.
- There is a so-called transitional provision in the Regulations to the effect that all District and Circuit Courts must conclude cases that were filed under the old regulations (L.I 2211) within 2 years, that is, by 16th December, 2022. The question is, what does this mean? Cases that have been filed are already pending so how will the new Regulations affect pending cases that travel beyond 2 years? If a court is unable to conclude its cases within 2 years, what will happen? The provision appears redundant and ought not to have been included in the Regulations.
Suggestions and recommendations: Considering the burdensome nature of the practical implementation of the Regulations, it is suggested that the monetary value limits set in the Regulations be reduced immediately to reflect the economic realities in Ghana. The COVID-19 pandemic has also set our national economic growth pattern into the low single digit realm. It is not clear when, or for how long, this scourge is going to afflict us. Therefore, if in 2014 the limit set for District Courts was GH₵20,000, it will be most reasonable if it is now set at GH₵80,000 and that of Circuit Courts is fixed at GH₵150,000 instead of the astronomic increment to GH₵500,000 and GH₵2 million respectively under the Regulations.
Secondly, Parliament ought to take its role of scrutinizing and approving legislative instruments such as the Regulations under reference very seriously. If our MPs had paid attention to the contents of the Regulations, they would not have approved the Regulations in its present form. Our honourable members would have realized that the High Courts and Circuits Courts in most constituencies were going to be extinct if the District Courts were endowed with jurisdiction up to GH₵500,000. Unfortunately, it appears their sights were set on winning their parliamentary seats to cross over to the 8th Parliament and nothing else mattered that much.
Conclusion: There might have been a genuine reason for increasing the monetary value limits for the lower courts in the Regulations. However, there is the need for an immediate revision of the new limits set in the Regulations to reflect the economic realities in the country and enhance Ghana’s position as a favourite destination for doing business. Otherwise, the Regulations run the risk of being more honoured in the breach than in the observance.
ABOUT THE WRITER
Francisca Serwaa Boateng is the Founder & Managing Counsel of FSB Law Consult.
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