HIGH COURT (CIVIL PROCEDURE)(AMENDMENT) RULES, 2019 (C.I. 122) NEEDS CLARITY

 INTRODUCTION

This article is a review of the High Court (Civil Procedure) (Amendment) Rules,2019 (C.I. 122) that amended Order 7 of the High Court (Civil Procedure) Rules, 20004 (C.I. 47) to allow service of a process or document on a party by electronic means. The crafting of C.I. 122 is bound to have implementation challenges if not addressed.

The traditional world has obviously moved on to the digital world and every country is creating an enabling legal environment for this new world and it goes without saying that human advancement will naturally come with issues. A myriad of legal issues that need to be addressed in this digital economy relate to inter alia; validity of documents by way of signatures, privacy and anonymity, evidence and acceptance of electronic documents, electronic contracting, electronic fraud or computer fraud and its related matters, protection of data, freedom of information, electronic money and payments.

Some countries have taken the lead, others have followed and some still seem to be confused in trying to extend the known traditional off-line laws to the digital, on-line, platform. Ghana’s is doing well to follow but seems to be confusing the issues in the process.

The Electronic Transactions Act 2008 (Act 772) is a good response to regulate this new world though there are certain content issues relating to: Digital and Electronic Signatures; Intent; Unauthorised Access and Information systems; Notice and Takedown with respect to Internet Service Providers that need to be revisited for clarity and issues of definitions. Another attempt to regulate the digital space is, the Cybersecurity Act, 2020 (Act 1038) which as crafted looks good on paper and `watertight` in theory but is going to have implementation challenges with respect to the broad, vague and all-encompassing meaning given to “cybersecurity service” that mandatorily requires licensing and the accreditation of cybersecurity practitioners and professionals by the Cybersecurity Authority. I have in earlier articles given an opinion on the challenges to be encountered with Act 772 and Act 1038 if not reviewed.

 

PURPOSE OF C.I. 122

The purpose of C.I. 122 is to specifically allow the service of process and documents by electronic means in respect of a cause or matter in court. In doing so, there is some ambiguity that could have been avoided. The use of electronic mail has been specifically mentioned as service by electronic means but is silent on other electronic means such as WhatsApp, Instagram, Signal, Facebook Messenger, Viber etc even though technically and legally from the same interpretation of C.I. 122 one can reasonably infer that it also includes them. This however needs clarity to make the work of the Court easier and avoid needless technical litigation by lawyers through literal and purposive interpretation of the law, leaving the Judge in a quandary.

C.I. 47, Rule 3 of Order 7, allowed personal service of a document to be effected by leaving a duplicate or attested copy of the document with the person to be served and where there is any hindrance by leaving it as near that person as may be practicable. Under C.I. 47, Rule 4 of Order 7 where the document is not served personally, the document may be left at the proper address or by registered post to the person to be served.

The mode of service only had the traditional and not the digital world in mind but under C.I. 47, Rule 4  (c) of Order 7  the Court may direct any in such other manner of service as it deems fit. This gives the Court the window of opportunity to include the digital world and this the Court has done with respect to substituted service using Facebook and WhatsApp in the cases of IFS Financial Services Ltd v Jonathan Mensah and Kwabena Ofori Addo v Hildalgo Energy & Julian Gyimah respectively. The law has therefore been established with respect to substituted service in the digital world. Now what about service proper?

 

MEANING OF ELECTRONIC MEANS

• General Meaning

There are many dimensions to the meaning of “Electronic Means” from the viewpoint of hardware, software and the mode of transmission. For the purpose of this article, it is most appropriate to view it from the point of software and the mode of transmission. In a nutshell therefore, I would say, it is the generation, sending, distribution, receiving of any data not in a physical hard copy but in an electronic form (software) that can provide evidence of transmission (mode of transmission). I have ignored hardware from this since the law does not intend to be interested in the type of equipment to be used.

• Meaning Under C.I.122

Rule 3 of Order 7 sub rule 7 states:

“For the purpose of this rule, service by electronic means includes service by electronic mail and other means specified in Practice Directions issued by the Chief Justice”.

The above definition raises the following issues:

1.     Whether or not C.I. 122 includes other electronic means as in WhatsApp, Instagram, Signal, Facebook Messenger, Viber etc.

2.     Whether or not under C.I. 122 the other electronic means, aside Electronic Mail, as other means, must be specified in Practice Directions issued by the Chief Justice to be accepted as a mode of service.

3.     Whether or not the use of the word “includes” automatically makes the “other means” such as WhatsApp, Instagram, Signal, Facebook Messenger, Viber etc. covered by C.I. 122

 

A resolution of the issues would be highly dependent on the interpretative methods and tools employed by the Courts. The two dominant interpretative schools of thought as espoused by our Courts and relevant to the definition above are literal and purposive interpretation.​

THE CASE FOR LITERAL INTERPRETATION

The literal approach to interpretation is basically taking the most literal meaning of words without regard to context. As Date-Bah JSC (as he then was) put it, “...it is one that ignores the purpose of the provision and relies exclusively on the alleged plain meaning of the enactment in question”.

 

Going by a strict literal interpretation of C.I. 122, there can be a school of thought that once electronic mail was specifically mentioned and by saying “…other means specified in Practice Directions issued by the Chief Justice”, then WhatsApp, Instagram, Signal, Facebook Messenger, Viber etc. are not modes of service as required by the law unless the Chief Justice issues a Practice Direction to specifically mention them. This ignores context of the provisions and purpose of C.I.122 and allows a window of unnecessary interpretation mischief by a lawyer where a literal definition will favour the cause. But again, why not, the lawyer did not draft the rules but sticking to the “letter” of the law?

 

 

 

 

THE CASE FOR PURPOSIVE INTERPRETATION

Purposive interpretation looks to the “evil”/mischief that is trying to be cured, the goal to be achieved, that is the “spirit” as against the “letter” of the law. This takes into consideration both the subjective and objective purpose that is to lead the Judge to the ultimate purpose. As Date Bah JSC (as he then was) put it “ …the subjective purpose…is the actual intent the authors…had at the time of making the statute. On the other hand, the objective purpose is…what a hypothetical reasonable author would have intended, given the context…for which he is making the law...”

 

For this school of thought, the subjective intent, objective and ultimate purpose of the amendment of C.I. 47 is to cure the gap which did not allow for “electronic means” of personal service by the Courts. This means that the law wants to specifically allow other non-traditional means of personal service by the courts as stipulated in C.I. 47 in line with the new normal of the digital world. These non-traditional means as far as the digital world is concerned include among others; Electronic Mail, WhatsApp, Instagram, Signal, Facebook Messenger and Viber.

Granted from the literal viewpoint of Rule 3A of Order 7 sub rule 7,  that other forms of electronic means are excluded from C.I. 122 unless the Chief Justice specifies them in a Practice Direction, inference can be made from reading C.I. 122 as a whole to include other forms of electronic means aside electronic mail.

For example under Rule 3A of Order 7 sub rule (3):

“ A party who in accordance with subrule (1) files a process or document in a case or matter shall endorse the telephone number and the electronic mail address of that party on each process or document that is to be filed”.(emphasis mine)

What is the need for making it compulsory to endorse both the telephone number and electronic mail address? Is it a procedural instruction for the sake of it or it gives a presumption of the underlying technologies that use telephone numbers and electronic mail addresses as the key identification tools? Electronic mail uses address to locate and identify a person and WhatsApp, Telegraph etc use telephone numbers to locate and identify a person. What is the need for the endorsement of telephone numbers if “electronic mail” is supposed to be the only electronic means of service under C.I. 122 ? The “other means”, WhatsApp, Telegraph etc should have been intended hence making it mandatory for telephone numbers to be endorsed on each process or document.

 Also Rule 3A of Order 7 sub rule (8) states:

“Unless otherwise expressively provided in these Rules, the rules of personal service of a process or document are applicable to electronic service of a process or document”. (emphasis mine)

 

Technically, electronic services or e-services are services which make use of information and communication technologies (ICTs).

 

Now, are e-mails, WhatsApp, Telegraph, Facebook messenger, Instagram etc services that make use of ICT? The answer is yes. Why then would it be that C.I.122 intend to exclude the other services except e-mail as part of applicable electronic service of a process or document? That could not have been intended.

Again, Rule 3A of Order 7 sub rule (7) states, “…service by electronic means includes service by electronic mail…”(emphasis mine).

To understand what “includes” mean, we need to appreciate the legal principle of Ejusdem Generis, a Latin phrase meaning “of the same kind and nature or class”. Electronic mail is just one of the messaging and document sharing platforms in the digital world. Once Rule 3A of Order 7 sub rule (7) says electronic means includes electronic mail, then it recognises the other messaging and document sharing platforms of WhatsApp, Telegraph, Facebook messenger, Instagram etc.

Of course, purposive interpretation notwithstanding, to limit unnecessary legal “gymnastics” or prowess in court by lawyers with the Judge being caught in between, there is the need for clarity to remove any iota of doubt as to the intent of the drafters.

THE WAY FORWARD AND NEED FOR CLARITY

For effective service by way of acknowledgement and making sure the recipient has actually received or read the document being sent, technologically, WhatsApp for example is even a more reliable electronic means for service of process and documents than e-mail. E-mail, aside having so many lines of potential technical hiccups, from the senders’ system through the service providers’ system to the recipients’ system, also has legal challenges with respect to when electronic service will be deemed to have been served. Would it be when the sender sends it from the computer system? or when it is received in the information systems of the internet service providers or when it is received in the computer system of the other party? or when it is actually read by the recipient? For the “other means” aside e-mail, it is easier to determine if a document or message has left the senders’ system, received by the recipients’ system or actually been read by the recipient.

In as much as in my opinion, purposively, C.I.122 in its present state includes the “other means” of electronic means, such as WhatsApp, Telegraph, Viber etc, it can be subjected to unnecessary legal interpretations that will waste the time of the Courts and delay justice.

For clarity, I would redefine “electronic means” under Rule 7 of Order 3A to be technology neutral as:

“For the purpose of this rule, service by electronic means is service by any known messaging or document transmission platform being used by the person to be served that allows the sender to know if the recipient has received or read the message or document”.

There is the need to get right the first time the drafting of ICT related laws in Ghana with respect to putting together the appropriate skillset and human capacity. For example, getting an accountant who is a programmer to develop an accounting software will have a better outcome than getting an accountant and a programmer together to develop an accounting software. Same principle applies to drafting of ICT related laws. This will require what I call, ICT compatible legal expertise or lawyers as drafters as well as the assistance of ICT professionals with appreciation of the legal environment.

Having standalone traditional lawyers and ICT professionals, who do not understand the workings of each other’s discipline but coming together to draft ICT related laws will bring about laws that do not fit or cure the intended purpose but end up creating complexities for the Judges whose primary role is to interpret the law as “it is” and not necessarily what it “ought to be”. The outcome will be a lot of dissatisfied litigants and appeals to judgments because the meaning of phrases, words and terminologies given in the laws are not reflective in the conventional meanings in the digital space hence not addressing their issues.

CONCLUSION

Taking a literal view of C.I.122 and limiting it to a particular technology, electronic mail, which is not that reliable for the intended purpose as compared to the “other means” such as WhatsApp is absurd, unrealistic and will not be bridging the gap in C.I. 47 with respect to personal service in the digital world. The digital platform is just a medium which does not necessarily create a new legal world but requires adaptation of existing traditional laws to the workings of the digital space whilst taking care of certain peculiarities. These peculiarities will require the understanding of the workings of the technologies by drafters of the law to be able to adopt certain technology neutral definitions from the digital space to make for a smooth transition and fusion into the existing traditional legal space.

As it stands, C.I.122 and some other ICT related laws in Ghana need some clarity or review to address the ambiguity in legal definitions being given to technical terms. Till then, litigants in court would have to rely on the Judges’ interpretation, and case law as precedent to `iron out` the ambiguities or lack of clarity in the statutes as has rightly been done by the courts by allowing Substituted Service through WhatsApp and Facebook. With this precedence, till the meaning of “Electronic Means” in C.I.122 is reviewed as suggested, if it will at all, there is hope in the Courts in giving the appropriate interpretation in C.I. 122 with respect to “Electronic Service of Process” in the digital space as done with “Substituted Service”.  

Lord Reid opined in Maunsell v Olins, that rules are servants of Judges, not masters and that Judges are to look at all relevant circumstances and decide as a matter of judgment what weight to be attached to any particular “Rule” where one “Rule” points in one direction, another in a different direction. Also according to  Date-Bah JSC (as he then was), the “Rules” are to be applied in the context of particular enactments in order to achieve justice and that he considers the purposive approach to be more likely to achieve the ends of justice in most cases. I cannot agree more with him, hence even as it so stands, C.I.122 should not be interpreted to exclude WhatsApp, Telegraph, Facebook messenger and Instagram.