Getting served with a writ of summons can be unsettling.
You open the document and there it is: your name, someone else’s name, and a court seal.
You have been sued.
The first instinct might be to panic. Or, perhaps worse, to put the document aside and deal with it later.
Don’t.
Being served with a writ does not mean you have lost the case. It means that an action has been brought against you and, if you intend to defend it, there are steps you need to take.
One of the first is entering an appearance.
Under Order 9 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), a defendant who wants to defend an action must file a notice of appearance. The general time limit is eight days after service of the writ. The writ itself also tells the defendant to enter appearance within eight days and warns that judgment may be entered in their absence if they fail to do so.
So what exactly does “entering appearance” mean?
In simple terms, you are telling the court and the other side:
“I have received this writ, and I intend to participate in this case.”
The appearance can be filed personally or through a lawyer. The rules provide for a notice of appearance to be completed in triplicate and filed at the court registry, with the required copies being dealt with by the registry.
But there is another issue.
What if you believe there is something wrong with the writ?
Perhaps the court does not have jurisdiction over the matter. Perhaps there is a problem with the service of the writ. Perhaps there is another procedural defect that you believe should prevent the case from going ahead.
This is where conditional appearance becomes important.
A defendant may enter a conditional appearance where they intend to challenge the writ or its service. But simply filing a conditional appearance and doing nothing else is not enough. Under Order 9, a conditional appearance is treated as unconditional unless the defendant applies to the court within the prescribed time and obtains the appropriate order.
The Rules give the defendant 14 days after filing the conditional appearance to apply to set aside the writ or service, subject to the specific circumstances of the application.
This is important because a defendant who has a genuine objection to the court’s jurisdiction or the validity of the proceedings should not simply ignore the writ while assuming that the objection will take care of itself.
It won’t.
And there is a reason the eight-day period matters.
If a defendant does nothing after being served, the plaintiff may seek judgment in default of appearance, depending on the nature of the claim. The Judicial Service of Ghana itself explains that failure to enter appearance can result in judgment being entered in the defendant’s absence.
In other words, receiving a writ is not the time to decide whether you will deal with it “later.”
Later may be too late.
There is also an important distinction between entering appearance and filing a defence.
They are not the same thing.
Entering appearance is one of the first procedural steps by which the defendant indicates an intention to defend the action. The defence comes later in the proceedings. The Judicial Service’s outline of the High Court and Circuit Court process places entry of appearance first, followed by the filing of the defence.
So if you ever find yourself on the receiving end of a writ of summons, don’t assume that the document is simply an invitation to wait for your day in court.
Read it carefully.
Take note of the date of service.
Find out what the time limit is.
And if you believe there is a problem with the writ or the court’s jurisdiction, raise that issue properly and within the prescribed time.
A writ is not a judgment.
But ignoring one can make things considerably worse.