Pro Se rights in our procedural and substantive law jujutsu

By Nana Kwaku BOADU-BOADU

Accessibility is a taunted component of the Ghanaian legal system although it does not admit a bounded definition.

In the mistiness of legal jargons, procedural technicalities, dependence on judicial precedence and high standards for advocacy, it is important to determine the issue; ‘whether or not unrepresented legal illiterates can have a good day in court?’

Conceptualizing Pro Se

The court room has the bench, the bar and the gallery. The bench is the abode of the judge. The bar hosts the lawyers, and the gallery is for persons present to observe proceedings.

In the ordinary expectations of court business, we expect to see three categories of persons during court business videre licet the judge, the law and the litigation. Pro se representation is an exception to this ordinary expectation. Some clients choose to handle cases without legal representation.

The choice may be voluntary or situational. Legal engagements do not  come cheap. Even in jurisdictions like Ghana with ethical billing standards, the average client may not be able to afford the services of a lawyer. Hence, situational pro se is normally due to the absence of sufficient resources to engage the services of a lawyer.

Ghana and Pro Se representation

The concept is of historical essence. It is said that the formalization of the legal profession began in the Edwardian era. Reasonability therefore dictates that before this era, litigation was handled pro se. If not too much of a stretch, the Biblical Solomonic era paints a clear picture of the historical court. The King Solomon adjudicated a matter concerning the parentage of a child in 1 Kings 3:16-28. The book paints a picture of a trial conducted by unrepresented persons before the King’s council.

Ghana is a brainchild of the common law tradition. There is recognition for pro se representations. The legal profession was formalized in 1877 through the establishment of the erstwhile Gold Coast bar. There was an established customary law adjudicatory system before this formalization. Therefore, pro se representation is not new to Ghana since it has been an integral component of the traditional adjudicatory regime. It remains untouched even in the current constitutional and legislative arrangement of Ghana.

Article 19 clause 2 of the 1992 Constitution gives an accused person the right to defend himself before the court IN PERSON or by a lawyer of his choice. Also, the accused person must be afforded facilities to examine, IN PERSON or by his law, witnesses called by the prosecution before the court.

In Article 35 of the 1992 Constitution, the state bears the responsibility of promoting just and reasonable access by all citizens to public facilities and services, including the court systems, procedures and processes (emphasis is mine) in accordance with law. Reference to ‘in person’ in article 19 quoted above is sufficient confirmation of Ghana’s recognition for pro se representations.

Rule of Law and ramifications for Pro Se representations

The topic is always up for the debate concerning the extent to which pro se representations nurture rule of law. At the blue corner, it can be argued that it broadens access to court. Financial incapacity to engage a lawyer does not cripple access to the courts. Basically, lawyers are considered agents and as the basic principle of agency goes, the work of the principal is as good as the involvement of an agent.

In the opposing red corner, it can be said that the physical access to the courts does not substantially correlate a fair access to the courts. In support, the law is filled with procedural and substantive complexities. In some situations, lawyers kowtow so how far can an unrepresented person travel in the abys of the law.

Take instance of popular quote by Dean William Prosser, ‘The realm of conflict of laws is a dismal swamp filled with quaking quagmires and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon’. Some advocates are still searching for the meaning of this quote.

Procedural flexibility and Pro se representations.

The first hurdle a pro se disputant must surmount is to trigger and use the procedural rules. Procedural rules are adjuncts of substantive law.  Thus, in the 2013 Ghanaian Supreme court decision of Hannan Buckman v Ankomanyi [2013-2014] 2 SCGLR 1372, the court emphatically stated that the rules of courts are not ornamental pieces, so they are meant to be complied with.

Yet, they command a degree of flexibility. They are construed to promote speedy and effective justice and eliminate all unjust technicalities. At the District Court level, proceedings are less technical to make it easier for pro se litigants. Also, the strict rule that failure to conduct cross examination would amount to admission was discarded in the case of Mante and Another v Botwe [1989-90] 1 GLR 479-497 for unrepresented illiterates.

In that case, Justice Taylor said that ‘The plaintiff was apparently illiterate and I am therefore prepared in accordance with the practice of our courts to take a generous view on her behalf that the witness she took along with her was not called to testify at the arbitration’. Again, in the decision of Republic v High Court, Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank – Interested Party) [2007-2008] SCGLR, 1041, the Supreme court confirmed that procedural breaches may be cured through amendments, costs or any other available means.

The Supreme Court was called to answer questions concerning the procedural rights of pro se litigants in 2013 videre licet the case of Zainabu Naske Bako-Alhassan v Attorney General (suit No. No. J1/22/2012. decision delivered 24th April,2013). The plaintiff filed the case for a declaration that Ghanaian law does not sufficiently favor unrepresented persons. The plaintiff was pro se. The plaintiff’s writ did not conform to the Supreme Court procedure rules. Also, the plaintiff improperly filled the statutory form, Form 27, for invocation of the court’s jurisdiction.

In reaction, the Supreme Court noted that strict adherence to form has given way to substance. The court admitted that the plaintiff’s pleading sufficiently established a cause of action. The court interestingly stated that: “For example, it should even be satisfactory if the plaintiff were to have written her complaints in a letter to the court and provided the nature of the complaint can be well understood, such a plaintiff should not be denied reliefs. Courts all over the common law jurisdiction are striving to achieve substantial justice in ensuring that they move away from the strait jackets of mechanical application of rules of procedure”.

To preserve the sanctity of the rules, the court said that the flexibility should be construed as judicial doting of fundamental requirements. In Republic v High Court, Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank – Interested Party), fundamental breaches were defined as jurisdictional breaches, statutory or constitutional breaches and natural justice breaches.

For those breaches, the curative powers of the court cannot be triggered to save unrepresented persons. In the language of the Zainabu Naske Bako-Alhassan’s court, “to the extent that the Plaintiff seeks to ask for special concessions for the self-represented nonprofessional litigant and to that extent, it has to be noted that we cannot have a pluralistic or dualist system of procedure for the self-represented and the represented litigant.”

From a careful analysis, it can be concluded that there is procedural flexibility for unrepresented persons. Accessibility to the court’s processes and procedures are not hampered by technicalities. Unless in cases of fundamental breaches, the court will render support to such litigants.

Substantive inflexibility and Pro se representations

Substantive principles determine the rights of parties. The scale balances towards sufficient and material evidence. The basic principle of substantive justice is ignorantia juris non excusat which translates as ignorance of the law is no excuse.

In Ghana, the judge is not allowed to bend substantive principles to favor litigants irrespective of their vulnerabilities. Indeed, there is the solemn rule in Dam v JK Addo and Brothers [1962] 2 GLR 200 which posits that “a court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which the party himself puts forward, whether he be the plaintiff or the defendant”. To wit, a pro se litigant will not be pardoned for not appreciating principles of law, relevancy and materiality of evidence.

The known exception is that, if a litigant fails to specifically request for a right although there is sufficient evidence on record, the court can suo moto grant a remedy. In the old 1959 case of  Regina v Ojojo [1959] GLR 207-213, the court held that if there is sufficient invocation of defences by the evidence on record, the judge should direct himself and the jury to consider the evidence despite the silence of the accused.

In a more recent civil law decision of Opoku No2 v Axes No2 [2012] SCGLR 1214, the Supreme Court affirmed the Ojojo line of reasoning by holding that the court has the power to grant all reliefs supported by the evidence on record even if there is no specific request for the reliefs. The thin thread here is that an unrepresented person is still expected to understand the concept of materiality and relevance and in addition, lead such evidence to benefit from the generosity of the court.

The chicken came to roost in the Zainabu Naske Bako-Alhassan v Attorney General decision. As aforementioned, the court pardoned the plaintiff for the procedural lapses. In addition, the court had to decide whether or not its jurisdiction has been properly triggered under Article 2 and 130 of the 1992 Constitution. A combined effect of the articles required a disputant to show that a specific act, omission or legislation contravened the Ghanaian constitution.

The plaintiff in the case however failed to specifically isolate an ultra vires act, omission or legislation. All she said was that the vague expectation of relative professionalism in court contravened the letter and spirit of the constitution. She called upon the court to make a declaration that the non-availability of “non-professional” litigation is unfair and constitutional.

Although the court recognized the suit as one clothed to condemn the Legal Aid Scheme of Ghana, there was no show of flexibility. In a sorry language, the court declined jurisdiction because the plaintiff failed to meet the salient substantive ingredients for the interpretation and enforcement of the Ghanaian constitution.

The concluding remarks of the court read as ‘the time has also come for the Ghana Bar Association to initiate some form of mandatory Pro-Bono Legal Service for each legal year as happens in some states of the U. S. By such a scheme, Lawyers will give back to society what they have benefited from it by undertaking a minimum number of hours of Pro-bono service. Plaintiff for example could have benefited from such a scheme if it had been in place, since she fell out with her own lawyers and those from the Legal Aid. Save for the above friendly comments, the Plaintiff’s actions are dismissed.”

Conclusion

Although there is procedural flexibility, the grass is not always greener for pro se disputants. This highlights the important role of lawyers in the adjudication process. The call by Dotse JSC deserves all the attention it requires. The Legal Aid Scheme needs statutory and practical revamping to assist pro se clients pursue their day in court. The current system provides the opportunity to be unrepresented. To use that opportunity is a daunting task. So much for Albert Venn Dicey’s rule of law.

>>>the writer is a lawyer, chartered economic analyst and a law lecturer. His research is strongly socio-legal and considers law in its policy, political and organizational context. He can be reached via [email protected]