Rules of court comes within the ambit of subsidiary legislation. Because it is a
subsidiary legislation, our courts over the past two decades have ruled in legion
of decided cases that any slip, mistake in any rules of procedure in civil litigation
should be regarded as an irregularity but cannot nullify proceedings.
In view of this legal practitioners have taken the rules of court for granted thereby rendering
the rules of procedure subservient. However in the case of Nortey (No.2) v African Institute of Journalism and Communication & Others1, the Supreme Court in stating,
clearly the importance of subsidiary legislation as compared to statutes said:
“…….the courts had a duty to ensure compliance with statutes including
subsidiary legislation like LI 1444.
This clearly shows that subsidiary legislation like the High Court (Civil Procedure)
Rules, 2004 (CI 47) should be obeyed and should not be used by lawyers just for
the fun of it under the guise of Order 81 of CI 47.
Rules of procedure work hand in hand with substantive law. Edward E. Bryant in
his work, the law of Pleadings under the Code of Civil Procedure2 said:
“the body of law consists of two parts, substantive and adjective law.
The former prescribes those rules of civil conduct which declare the rights and duties of all
who are subject to the law. The latter relates to the remedial agencies and
procedure by which rights are maintained, their invasion redressed, and the
methods by which such results are accomplished in judicial tribunals.”
This means that substantive law cannot achieve its purpose when rules of
procedure are not well applied. It will lead to injustice.
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