Applications, Affidavits, Summary Judgment and Application for directions

Question 1

AFFIDAVITS

Answer 1

Affidavits are documents containing facts that are sworn statements, which are either
(a) facts that the person has personal knowledge of; or
(b) belief upon information of a person referred to as a deponent, narrated and sworn on oath to support, or oppose an application in court, or made to verify conduct, or confirm the occurrence of an event.
The type of affidavit depends on the use or purpose for which the affidavit is made.
There could be an affidavit in support of a motion; an affidavit in opposition to a motion; there could also be supplementary affidavits in support or opposition of a motion. There are also affidavits of verification that is used to verify acts or conducts; and finally, affidavits of confirmation; which is used to confirm the occurrence of events like customary marriages.

Question 2

O19 r 4 and Ord 25r 1(3)

Answer 2

O19 r 4 every application should be supported by an application, indicating facts relied upon by the applicant.
*O25 r 1 (3) in an application for injunction specifically, an application by motion should be attached with an affidavit and statement of case setting out arguments and all legal authorities in support of the application.

Question 3

Authorised persons who can administer affidavits.

Answer 3

Affidavits may be used wherever the rules provide and shall be sworn before a judge, magistrate, registrar, commissioner for oaths and any person empowered by law to administer oaths. Example: under ss. 9, 10(1) and 11(1) of the Oaths Decree (NRCD 6), an affidavit may also be sworn before the judicial secretary and a notary public.

Question 4

Affidavit outside Ghana

Answer 4

Where an affidavit is required in any court in Ghana it may be taken in any place outside Ghana before any person having lawful authority to administer oaths in that place. This also extends to every ambassador, high commissioner, and consular officer of Ghana in any foreign country (ss. 10(2) and 11(2) of NRCD 6).
Presumption of regularity of official documents.

Question 5

Form of Affidavit

Answer 5

a. The affidavit shall bear the title of the suit
b. The affidavit shall be printed, written, or typed and shall be numbered consecutively
c. The affidavit shall be expressed in the first person
d. Dates, sums, and other numbers may be expressed in an affidavit in figures and words, or both
e. The affidavit must be signed by the deponent and the jury to be completed before the person authorized to swear the deponent
f. If there is a jurat (illiterate or blind person), it must state the full address of the place where the affidavit was sworn, the date when it was sworn, and the name and title of the person before whom it was sworn

Question 6

Contents of an Affidavit

[Order 20, Rule 8]

Answer 6

Affidavits can contain only facts that the deponent can prove, unless the rules provide that it may contain a statement of information or belief.
Affidavits to be used for interlocutory proceedings may contain statements of information and or belief or both, but with the source of the information and the grounds of belief

Question 7

Ibrahim v Abubakari [2001-2002] 1 GLR 540

Answer 7

Affidavits, like pleadings, deposed to specific facts or material facts. Under Order 38, r 3 of the High Court (Civil Procedure) Rules, 1954 (LN140A) affidavits were to be confined solely to facts that the witness was able, of his own knowledge to prove. Like a statement of defence therefore, if the respondent in his affidavit in opposition did not deny specifically a particular allegation of fact contained in a supporting affidavit or denied generally or did not answer the point of substance in the supporting affidavit, he was deemed to have admitted that fact. Consequently, it was not enough to depose to a general traverse in answer to specific allegations of fact

Question 8

Rossage v Rossage [1960] 1 All ER 600

Answer 8

O 20 r 9 – scandalous and irrelevant matter in an affidavit – court may strike out from an affidavit any matter that is irrelevant, offensive or otherwise oppressive.
Affidavit containing hearsay evidence is regarded as irrelevant and this will be struck ou

O20 r 7 – ct may grant leave for an affidavit to be filed or used notwithstanding any irregularity.

Question 9

Affidavit not to be Sworn before lawyer or a party

Answer 9

By Order 20 r 11, an affidavit is not acceptable if it is sworn before a lawyer of the relevant party or an agent, partner or clerk of that lawyer.

In practice, when lawyers prepare affidavits for clients they are normally administered by Commissioner for Oaths or a court Registrar.

Question 10

Alterations in Affidavits

[Order 20, Rule 10]

Answer 10

All alterations in the form of interlineation, erasures, and cancelations in the body of the affidavit or in the jurat must be initialled, or in the case of erasures, must be re-written in the margin of the affidavit by the person before whom the affidavit was sworn sworn – if not, it cannot be used in any proceeding except with leave of court.

Question 11

Filing an affidavit

Answer 11

Every affidavit must be filed in the Registry of the Court in which the proceedings are pending.
Further it must be indorsed with a note showing on whose behalf it is filed and the date of filing. An affidavit without this indorsement can only be used with leave of the court.

**If the affidavit filed is not an attachment to any motion paper, for example, an affidavit in opposition to a motion, then it must be addressed to the Registrar of the court in which the action is pending and also addressed to the lawyer of the opposite party or the party himself or herself for service.

Question 12

Documents exhibited to affidavit

Answer 12

O20 r 14
A certificate from the person before whom the affidavit was sworn shall identify documents exhibited; marked as exhibits to an affidavit, not just annexed or attached. If not, the document may be disregarded by the court.

Question 13

APPLICATIONS

Answer 13

O. 19 r. 1 (1) states that every application in pending proceedings shall be by motion – must be a pending proceeding for motion to be made.
In practice the terms “application” and “motion” are often used interchangeably and generally refer to the process by which a party “moves” the court for a ruling or order in a matter; by filing a written application and then making viva voce submissions on that application to the court.
There are two major types of application under Order 19, interlocutory applications/ motions, and originating motions on notice.

Question 14

Interlocutory motions

Answer 14

motions filed in the pendency of an action, and they can be:
(a) motion ex parte; and
(b) motion on notice.
Examples motion for injunction, motion for stay of execution.

Question 15

Originating motions

Answer 15

Originating motions on notice is another means of initiating civil proceedings, and it is used when an enactment specifies that a party may apply to the Court for a relief.
Or where the rules of court require that an action may be commenced with an originating motion.
Examples of such motions are applications for judicial review [Order 55, C.I. 47], application for habeas corpus and the application for enforcement of fundamental human rights.

Question 16

How are applications made?

Answer 16

Applications are made formally to the judge and heard in open court, non-contentious applications may be heard in chambers.

Ordinarily a motion is to be made only after a notice of the motion has been given to the party affected but in certain cases it may be made ex parte.”
O. 19 r. 1(1) is emphatic that every application in a pending proceeding shall be made by application. r. 1(3) then says that except where the rules provide otherwise, motions can only be made after notice has been given to the parties affected.

Question 17

Purpose of interlocutory applications:

Answer 17

(a) To expedite the trial or the action;
(b) To maintain the status quo ante while the action is pending;
(c) To prevent hardship to one or the other party;
(d) To prevent a party from overreaching the opposite party;
(e) To protect the party(ies) while awaiting the final outcome of the proceedings; and
(f) To prevent any abuse of the process during the proceedings.

Question 18

Features of an interlocutory order

Answer 18

The relief or prayers sought in an interlocutory application must flow from or within the scope of the claims in the substantive matter.
Every interlocutory order must terminate with the substantive case or an appeal.
Either party may bring the motion at any stage of the proceedings and a stranger to a suit may bring a motion (i.e. joinder).
An interlocutory application is in the form of a motion paper clearly stating the terms of the order or prayer being sought. Interlocutory applications are supported with an affidavit stating the facts on which the person applying relies on.

Question 19

Types of Motions

Answer 19

There are two types of interlocutory motions, motion ex parte, and motion on notice.
Motion ex parte is where the other party to the suit is not put
on notice; and this is made where:
(a) the rules of court provide so (i.e. application for substitution);
(b) where there will be delay in going on notice and irreparable damage will be occasioned; Anton Piller Orders and Mareva Injunctions
(c)where the matter requires some urgency; and
(d) where at the stage of the proceedings, the other party cannot be put on notice (i.e. substituted service).

Question 20

Applications Generally Made Ex Parte

Answer 20

Applications ex parte, must be made in utmost good faith. Some examples of applications made ex parte are as follows:

(a) motion for leave to issue and service of notice of writ out of jurisdiction;
(b) motion for renewal of writ;
(c) motion for change of parties by reason of death (substitution)
(d) motion for leave to serve third party notice
(e) motion for judgment in default of appearance
(f) motion for leave to issue garnishee order nisi
(g) motion to charging order nisi
(h) motion for entering interim injunction in urgent cases
(i) motion for leave to issue a writ of possession or writ of sequestration
(j) motion for leave to join causes of action – O4 r 2 (2)
(k) application for substituted service

Question 21

What can the court do in hearing a motion exparte?

Answer 21

The court may do either of the following on hearing the motion ex parte:

(a) Grant and make the order sought by the party;
(b) refuse the order;
(c) make an order that the other party appear before the court to show cause why the order sought should not be made;
(d) the court may order that the order be made on notice to the parties to be affected by it

Question 22

Right of a party affected by a motion exparte

Answer 22

A party affected by an ex parte order has the right to apply to set it aside through a motion on notice on grounds that the applicant misrepresented facts to the court.

Question 23

O25 r 1 (9)

Answer 23

Ex parte motions for injunction orders that are granted are for limited periods (i.e. ten (10) days), after which time the order for injunction will lapse. (rational is to encourage partied to apply for reliefs on notice as much as is practicable)

Question 24

Motion on Notice

Answer 24

With a motion on notice, the opposite party is served requesting him to appear at the hearing. In such a motion, all the parties affected are entitled to appear and be heard. Copies of the motion paper and the accompanying application in support are served on the opposite party.
Under Order 19, Rule 2, there must be three (3) clear days between the date of service of the motion on notice, and the hearing date (or return date) unless the court directs otherwise.

Question 25

What can a party put on notice do?

Answer 25

A party put on notice, may generally oppose the application at the hearing. If the party intends to oppose the application, he files an affidavit in opposition stating the facts he relies on, in opposing the order being sought by the applicant.
If the party opposes the application on points of law, he need not file an affidavit in opposition (because affidavits plead facts and not law).
If no affidavit in opposition is filed, and the respondent raises no point of law, then the facts in the supporting affidavit stand unchallenged.

Question 26

Service days motion on summary judgment

Answer 26

14 r 2 (3) a motion for summery judgement must be served no less than 4 clear days before the date fixed for hearing of the application.

Question 27

Service days for matrimonial cause

Answer 27

O 65 r 29 (1) a motion on notice for a matrimonial cause must be served at least 5 clear days between service of the motion and the date for the hearing.

Question 28

Service of writ together with a motion

Answer 28

Order 19, Rule 2(3)—a plaintiff can serve a writ of summons and a statement of claim together with a motion. This procedure is adopted when an order is urgently needed. In an action for trespass, for example, the plaintiff may simultaneously file a motion for an interlocutory injunction restraining the defendant from continuing the trespass.

Question 29

Application for Injunctions

O25 R 9 (1)

Answer 29

When an application for injunction is opposed, ct may order the applicant to provide an undertaking to the party opposing the application, to pay any damages that the respondent may suffer as a result of the grant of the application if the application fails.

However, this is not applicable in all cases as held by the S. Ct in 18th July Ltd v. Yehans Int Ltd. Each case must be considered on its merit as the order is discretionary.

Question 30

SUMMARY JUDGMENT [ORDER 14

Answer 30

The purpose of summary judgment: the aim is to enable a plaintiff who has served a writ and a statement of claim on a defendant to obtain judgment without a trial, provided he can prove his claim clearly by affidavit. The judgment may be for the entire claim or part of the claim endorsed by the writ.

Question 31

Yartel Boat Building Co. v Annan [1991] 2 GLR 11

Answer 31

Before a plaintiff could bring an application for summary judgment…:

a. the defendant must have been served with a statement of claim;
b. the defendant must have entered an appearance; and
c. the affidavit in support of the application must not only depose to facts indication the plaintiff’s claim was real and considerably impeachable but must also contain an averment that the defendant and no defence to the action.

Question 32

Conditions:

Answer 32

1. A plaintiff must have served a writ of summons and a statement of claim on the defendant
2. The defendant must have entered appearance
3. The defendant must have no defence to the plaintiff’s claim

Question 33

Method of Application

Answer 33

The application is made by Motion on Notice, returnable not less than four (4) clear days before the hearing of the motion.
The motion is to be supported by affidavit and exhibits to be relied upon by the party. The affidavit must verify the facts on which the relevant claim is based, and the reliefs being sought. It must also state that to the best of the plaintiff’s belief the defendant has no defence to the action, except the amount of damages if anything is claimed.

Question 34

What to do as a Defendant

Answer 34

A defendant, on whom an application for summary judgment is
served, may show cause against the application by an affidavit or otherwise, to the satisfaction of the court, that he has a good defence to the action on its merits; or that there are certain relevant facts disclosed in the affidavit sufficient to entitle the defendant to defend the action in whole or in part.

Question 35

The Outcome of the Application

Answer 35

1. The Court may give such judgment for the plaintiff against the defendant on the relevant claim or part of the claim unless the defendant is able to show cause (an issue) in dispute which ought to be tried.
2. A Court may give the defendant leave to defend the action with respect to the claim or part of it either unconditionally or on terms such as giving security
3. The Court may dismiss the application with costs to be paid by the plaintiff, if it appears that the case was not within Order 14 in that the plaintiff knew a defendant will rely on the contention that will entitle the defendant to an unconditional leave to defend the action.

Question 36

Order 14, Rule 5(5)

Answer 36

the court may, subject to conditions stay the execution for the judgment given against a defendant under Order 14, until after the trial of any counterclaim raised by a defendant.

Question 37

Sam Jonah v Duodu [2003-2004] SCGLR 50

Answer 37

The objective of Order 14 is to facilitate the early conclusion of actions where it is clear from the pleadings that the defendant therein has no cogent defence. It is intended to ‘prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward.”

Question 38

Asamoah v Marfo [2011] SCGLR 832

Answer 38

A summary judgment is a judgment on the merits even though it is obtained by a formal motion without a plenary trial. It is a judgment granted on the simple grounds that the respondent to the application has no defence to the action or part thereof or any reasonable defence to be allowed to contest the case on the merits to waste time and expense

Question 39

Oyoko Contractors Ltd. v Starcom Broadcasting Services [2003-2005] 1 GLR 445

Answer 39

Order 14, r 13(c) of LN 140A as amended by LI 1129 ousted the trial court’s jurisdiction to give summary judgment where, inter alia, either the plaintiff in his statement of claim or the defendant in his counterclaim had made an allegation of fraud • Where there was a triable issue, summary judgment would not be given. Thus, where in an action the parties joined issues and went further to call for strict proof of assertions of fact, evidence was required to prove the issue.

Question 40

Setting Aside Summary Judgment

O14 r 9

Answer 40

A judgment entered against a defendant who fails to appear to the hearing of the application on Order 14, may be set aside or varied by the Court on terms as considers just upon an application brought within fourteen (14) days of the service on defendants of the notice of judgment.
Party who appears at the hearing and participates cannot set aside any judgement entered against him; where dissatisfied the party may appeal against the judgement.

Question 41

Summary Judgment on Counterclaim

O14 r 10

Answer 41

where a plaintiff is served with a counterclaim, the defendant at any time after the service of the counterclaim may apply for summary judgment against the plaintiff on grounds that the plaintiff has no defence to a claim made in the counterclaim. The rules apply to counterclaims of a defendant in the same way as the plaintiff claim endorsed on the writ.

Question 42

Order 14, Rule 11

Answer 42

where summary judgment is taken for a claim or a particular part of the claim, or a counterclaim, the action may proceed to trial as regards to any or other claims not included in the judgment obtained summarily.

Question 43

Order 14, Rule 12

Answer 43

summary judgment cannot be taken in the following actions:
• Probate, matrimonial or maritime proceedings
• A claim or counterclaim for defamation, malicious prosecution, seduction or breach of promise to marry
• Claim or counterclaim based on allegation of fraud

Question 44

Types of Judgement

Answer 44

Judgement in Default of Appearance can always be set aside if affected party
. Summary Judgement moves ct timeously & good defence
. Judgement in default of pleadings/ defence
. Judgement in default of appearing at trial – O36 r2
. Final Judgement

Question 45

Judgement default of Appearance

Answer 45

• Where a party fails to appear before court or file a defence
• Not a judgement on merit
• Application on notice for judgement in default
• Must move court within reasonable time

Question 46

Summary Judgement O14

Answer 46

• Plaintiff wants avoid trial so must show D has no reasonable defence
• Judge reviews and concludes based on merit
• Application is by motion on notice
• Avoids expense of trial

Question 47

APPLICATION FOR DIRECTION

Order 32

Answer 47

This is the preparatory stage of the trial. At that stage, the court considers how the trial will be conducted.
The purpose of the application is to ensure that all matters which have not already been dealt with are considered and dealt with, and directions given as to the future course of the action to ensure just, expeditious and inexpensive disposal of the case.

Question 48

Actions that applications for directions do not apply to:

Answer 48

The rule for application for directions applies to all actions except:

a) actions in which directions are given under Order 11, Rule 19; Order 14, Rule 6; and Order 25, Rule 7
b) Actions for which an order for taking account is made under Order 29;
c) Actions for the infringement of a patent;
d) Actions or proceedings under Order 65 (matrimonial causes); and
e) Actions commenced in the Commercial Court under Order 58 – no application for directions, rather an administrator of the ct assigns the case to a judge for pre-trial hearing
f) Actions for the infringement of patents.

Question 49

Order 32, Rule 2

Answer 49

One month after the close of pleadings, the plaintiff shall file notice of an application for directions.
The Application is to be served on all the parties in the action and there shall be at least eight (8) days between the date of service and the hearing of the application.
[Under C.I.47, if a period stated for an action is less than eight (8) days, then weekends and public holidays are not counted. Otherwise, for periods longer, weekends and holidays are counted].

Question 50

What can defendant do when plaintiff fails to apply for directions?

Answer 50

Where the Plaintiff fails to apply for directions as required by the rules, then the defendant is entitled to apply for the action to be dismissed. However, the court may treat the defendant’s application

Question 51

APPLICATION FOR DIRECTION Order 32

Answer 51

any party who is who is served with the application for directions is also entitled to apply for any order or directions that that party may desire if they differ from that sought by the main application for directions.
The Notice for further directions shall be filed, not less than seven (7) days before the hearing of the application. When the application comes up for hearing, the court is entitled to deal with all matters which are interlocutory before the case can proceed to trial.

Question 52

What happens on the hearing for application for directions?

Answer 52

On the hearing for application for directions, the court on its own motion may consider whether any order is to be made or direction given.

At the hearing of the application for direction, the Court shall encourage the parties to make admissions and agreements as to the conduct of the proceedings which ought to be reasonably made by the parties. Such admissions or agreements shall be incorporated into the order to be made
by the Court upon hearing the application.

Question 53

Impact of CI87(High Court Civil Procedure(Amendment) Rules, 2014) on Application for Directions

Answer 53

With the enactment of C.I.87, the scope of application for direction has been amended with the introduction of the filing and serving of witness statements within a specified time on the respective witnesses they intend to call at trial.
O32 has been widened in the sense that judges and parties have more responsibilities at the application for directions stage.
Ct is enjoined to make directions and fix a date for a case management conference.
The Court also has to order the parties to file their pre- trial checklist, four (4) days before the date fixed for the case management conference or pre- trial review.

Question 54

Content of Application for Directions

Answer 54

1. The application is in the form of a Motion on Notice, but with no affidavit attached
2. It must show the Court in which the action is pending
3. The names of the parties and suit number
4. The title of the document – i.e. Application for Directions (if D; Application for Further Directions)
5. Must contain or set out the issues for determination; and these must arise out of the pleadings
6. The mode of trial
7. The period of trial
8. The issue of costs—costs can be applied for during the course of the case; or at the end
9. It must be dated and signed by the lawyer of the party applying for directions and addressed to the Registrar of the Court, and copied to the party on the other side