Litigation must come to an end: Is it the quality of judgments or the number of Appellant Court Justices?

By Kofi Anokye OWUSU-DARKO (Dr)

The Ghanaian judicial system, akin to many worldwide, faces significant challenges, notably the backlog of cases, especially at its highest court—the Supreme Court. Recently, both the Chief Justice and the Attorney General have advocated for increasing the number of Court of Appeal and Supreme Court justices to handle the overwhelming caseload more efficiently. For instance, it was reported that the Supreme Court began the 2022/2023 legal year with 939 cases and managed to resolve only 344 by year-end, leaving a substantial number pending. This trend suggests a systemic issue that extends beyond the mere number of available justices at the appellate courts.

To address the growing issue of court case backlogs, with some courts having over 600 pending cases as reported, the Judicial Service of Ghana has introduced a court shift system designed to alleviate the burden of numerous pending cases. The shift system, currently in a pilot phase, involves operating in two sessions daily: a morning session from 8:30 a.m. to 1:30 p.m. and an afternoon session from 2:00 p.m. to 6:30 p.m. While this initiative aims to expedite the dispensation of justice and reduce the backlog, it is crucial to recognize that the core issue extends beyond the number of sittings; the quality of judgments delivered by the courts below with original jurisdiction also needs significant attention. Unless of course the promotions have other basis not related to backlog of cases which I guess is the prerogative of the Chief Justice, without addressing the underlying issues related to judgment quality, the backlog problem may persist despite increased court sessions.

This article provides an anecdotal opinion on whether the root cause of the rising appeals to the appellate courts with its attendant backlog of cases lies merely in the numerical inadequacy of justices at the appellate courts or possibly in the quality of judgments from the courts below with original jurisdiction. It also discusses some practical solutions, such as improving judicial training, enhancing support for legal research, promoting Alternative Dispute Resolution (ADR), improving conditions of service for judges, especially at the courts below, and integrating technology to enhance the efficiency and effectiveness of the judiciary. By addressing these areas, the article aims to offer a more comprehensive approach to reducing judicial backlogs and improving the overall judicial process.

Quality of judgments in courts below

·         Judicial Training, Legal Research and Resources

The District, Circuit, and High Courts are the first point of call with original jurisdiction for justice. By strengthening the base with improved training and legal research support, the overall quality of judgments can be improved, reducing the number of cases that escalate to appellate courts. Judges in the courts below may need enhanced training, better access to legal research tools, and resources such as well-equipped legal libraries, both physical and virtual.

Additionally, to enhance legal research, attaching newly qualified lawyers to these courts will be most beneficial. To be innovative, even LLB graduates can assist with this legal research work to create jobs for the youth. Currently, until an LLB graduate continues to “Makola” to become a professional lawyer, their legal knowledge is often underutilized. This can be a transition in legal education and count towards their internship or attachments during their journey to becoming lawyers. The world is changing, and there is a need to move away from traditional ways and think without a box.

Mandatory Continuous Learning Education (CLE) programmes, regular workshops, and seminars can keep judges updated on new laws, legal precedents, and best practices whilst providing opportunities to discuss challenges and share knowledge.

·         Public Trust and Confidence

Public confidence in the judiciary is paramount. If the public perceives lower court judgments as unreliable, they are more inclined to appeal, exacerbating the workload at higher levels. Increasing transparency in judicial processes can build public trust, including making judgments and reasoning publicly accessible. Efforts to improve the quality of judgments will enhance public confidence and reduce the inclination to appeal. Judicial outreach programs can educate the public about the legal system and its processes. Furthermore, enhancing public education and awareness about the judicial process and the availability of Alternative Dispute Resolution (ADR) mechanisms can decrease the inclination to litigate every dispute, thus easing the burden on the courts. Implementing legal literacy programs can educate the public about their rights and the judicial process, empowering them to make informed decisions and consider ADR as a viable option.

·         Consistent Rulings

Inconsistent rulings in cases can lead to a higher rate of appeals as parties seek more definitive resolutions from the Supreme Court. Though a human institution, it is crucial for the courts to maintain consistency in their rulings to effectively conclude litigation. Addressing the perception that decisions are predetermined and ensuring that case reasoning is thorough and independent can improve judicial integrity. Courts must provide well-reasoned and consistent decisions reflecting thorough analysis by each justice.

The Supreme Court itself must also be consistent in its rulings to reduce the need for a review of its own decisions. When lawyers can be confident in the consistency of rulings, they can better predict the likely outcomes of issues that already have precedence. This predictability reduces the tendency of seeking appeals just to “try their luck,” thereby enhancing the overall efficiency and reliability of the judicial system.

Lawyers’ role in reducing backlogs

Lawyers also have a significant role to play in reducing judicial backlogs. As officers of the court, they have a special responsibility in the administration of justice, not just as representatives of their clients. The quality of advice they provide to clients on cases that are appealed at their volition and subsequently lost should be reviewed as part of the renewal process for their practice licenses. Before an appeal is pursued based on their advice, lawyers should be required to document the advice given regarding the chances of seeking justice at a higher court. This advice should meet the prudent man standard, ensuring it is sound and realistic.

While clients have the right to pursue an appeal, the documented advice on the chances of losing, should they request and insist, must also be signed off by the client. This documentation ensures that lawyers are providing sound, realistic advice and discourages frivolous appeals that waste the appellate courts’ time. Instances where appeals are dismissed, and one wonders, “Did the lawyer not know this?” suggest either a lack of due diligence or a “try my luck” approach, both of which undermine judicial efficiency and create backlogs.

By ensuring that lawyers provide well-considered advice and that clients understand the risks of appealing, the judicial system can reduce the number of unnecessary appeals. This accountability measure can help maintain the integrity of the legal profession and support the overall efficiency of the judiciary.

Promotion clamour

Since 2017, there has been a notable increase in the number of justices appointed to the Court of Appeal. In 2024 alone, 20 new Justices were appointed, reflecting a persistent need to address the backlog and improve judicial efficiency. Additionally, Court of Appeal justices are now sitting as additional High Court judges on cases. This raises the question of whether the root cause is a quality issue at the courts below. Promoting judges to the appellate courts might temporarily alleviate backlogs, but without addressing the underlying issues, the problem will persist.

Growing up, District and Circuit courts were all we knew, and the High Court, having appellate jurisdiction, made being a High Court judge a prestigious position. Court of Appeal and Supreme Court Justices were rare, and reaching these levels was a significant achievement reserved for those who were “primus inter pares” (first among equals).

Another important aspect is the remuneration and benefits provided to Justices at various levels. The clamour for promotion often stems from the desire for better remuneration and privileges associated with higher judicial positions. For example, a recent proposed amendment to the Road Traffic Regulation (L.I. 2180) allows only Supreme Court Justices to use sirens and drive without speed limits. Such privileges create a perception that reaching the top is the only way to access significant benefits, thereby increasing the pressure for promotions. Extending similar privileges to all Superior Court Justices could help address this issue and reduce the pressure for promotions based solely on the desire for better perks. Additionally, magistrates at the district courts might equally need sirens on their vehicles to navigate through traffic quickly, reflecting their importance in the judicial hierarchy.

Should the existing backlog be cleared through promotions to the Court of Appeal and Supreme Courts as envisaged by the Chief Justice and supported by the Attorney General, it might lead to Supreme Court Justices being made to sit as additional Court of Appeal judges and Court of Appeal Judges being made to sit as additional High Court judges because of the reduction in job content. This would, however, come at an increased cost of justice delivery.

A root cause analysis is essential to truly resolve these backlog issues. Simply promoting more judges will not solve the systemic problems. Even if the newly promoted Justices to the appellate courts manage to clear the backlogs, the fundamental question remains: what next? The system will continue to generate backlogs unless the underlying issues of judgment quality and efficiency at the courts below are addressed. Integrating technology into the judicial process is essential to streamline case management, improve efficiency, and reduce delays. This includes implementing electronic filing systems, virtual hearings, and other digital tools to enhance judicial efficiency.

Individual Opinions VS. Unanimous decisions

Previously, in cases heard at the Court of Appeal and the Supreme Court, multiple Justices would provide their individual opinions, whether concurring with the majority or dissenting. This practice allowed litigants to feel that their arguments were thoroughly considered and that at least some Justices might have seen merit in their case, even if the overall decision was against them. It also contributed to the development of Ghana’s jurisprudence by providing diverse legal perspectives and reasoning.

However, there has been a shift towards more unanimous decisions where one Justice writes the opinion, and the others simply concur with “I agree.” This practice can leave litigants feeling unheard and dissatisfied, especially when their case is dismissed without multiple perspectives being shared. At the Supreme Court level, where litigation ends, it is beneficial for parties to receive individual opinions from the Justices. This ensures that parties who lose understand they have no case from multiple perspectives, thereby bringing more comprehensive closure to their legal battle. Moreover, individual opinions allow Justices to build the needed reputation and respect from the lawyers who appear before them, fostering a perception that they are before “lords of the law” who are of independent minds and committed to delivering justice.

The need for private mediation and ADR firms

To address the backlog in the judiciary, it is essential to focus on both the quantity and quality of judicial processes. One viable solution is the broader implementation of Alternative Dispute Resolution (ADR) mechanisms, including the establishment of private mediation and ADR firms. During an attachment to the Adenta Circuit Court, I experienced references of cases by magistrates to Court Connected ADR, and the results were amazing. With a trained mediator, family and tenancy related cases were easily resolved by the parties themselves with a win-win settlement. Having and promoting private Mediation and ADR firms will not only resolve cases quickly but will also prevent such cases from reaching the courts in the first place, thus avoiding the creation of backlogs that have the potential to travel to appellate courts.

ADR services offer several advantages over traditional court proceedings. They are generally faster, reduce legal costs for both the judiciary and the parties involved, allow for more creative and tailored resolutions, and most importantly, preserve relationships by fostering mutual agreements rather than adversarial win-lose outcomes.

Private mediation and ADR firms can play a crucial role in Ghana’s dispute resolution landscape. These firms can handle disputes that need not be litigated, such as those involving land, family relations, workplace issues, and small business transactions. The Alternative Dispute Resolution Act 2010 (Act 798) and other relevant laws already provide a robust legal framework for ADR in Ghana. However, the full potential of ADR is yet to be realized due to the lack of widespread recognition and establishment of private ADR firms.

By fostering a culture that prioritizes ADR over litigation, Ghana can significantly reduce the burden on its courts, improve the quality of justice delivered, and ensure that disputes are resolved efficiently, cost-effectively, and in a relationship-preserving manner. The judiciary can actively promote ADR by referring suitable cases to private mediation and ADR firms and recognizing the outcomes of these processes as legally binding.

Conclusion

While increasing the number of Court of Appeal and Supreme Court justices may be a necessary step to manage the current backlog, addressing the quality of judgments at the courts below is equally critical. A permanent solution to backlog issues requires enhancing the quality of judgments at the District, Circuit, and High Courts and not just running two shifts. There will be more appeals if the quality of judgments is not addressed. This can be achieved by improving judicial training, resources, and public confidence in these courts, as well as by attaching newly qualified lawyers to these courts to assist with legal research, thereby strengthening the base. Additionally, establishing private mediation and ADR firms can significantly reduce the caseload of higher courts by handling disputes that need not be litigated.

Furthermore, addressing remuneration and benefits for lower court judges can mitigate the pressure for promotions, ensuring a more stable and motivated judiciary. Reverting to the practice of providing individual opinions at the appellate levels can help litigants feel more satisfied with the judicial process and enhance the development of Ghana’s legal jurisprudence.

Lawyers, as officers of the court, have a special role and responsibility in the administration of justice, not just as representatives of their clients. Ensuring that lawyers provide sound advice before pursuing appeals can prevent frivolous cases from reaching the appellate courts, thereby reducing unnecessary backlogs. The quality of legal advice should be reviewed as part of the renewal process for practice licenses, with documented advice signed off by clients to ensure informed decision-making.

In summary, addressing the judicial backlog in Ghana requires a multifaceted approach. Improving the quality of lower court judgments, promoting ADR mechanisms, ensuring fair remuneration and benefits for all judicial levels, and involving lawyers in preventing frivolous appeals will create a more efficient and effective judicial system. Strengthening the foundation of the judiciary by focusing on the courts with original jurisdiction provides a lasting solution, preventing cases from escalating to the appellate courts and avoiding the need for frequent promotions to clear backlogs.

Despite the fact that I do not share the notion that just increasing the number of justices at the appellate courts will reduce the backlogs, and my opinion on the possible solutions, a more detailed independent, evidence-based research may be required to thoroughly diagnose the issues for a more lasting cost effective intervention.

The author holds an LLB, LLM. He is a PULSE Mediation and ADR Practitioner. (Visit kofianokye.blogspot.com; kofidarko2.blogspot.com) (Contact: [email protected])