IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
FIDELITY BANK LIMITED - (Plaintiff)
SAMUEL ADJEI & 2 ORS -(Defendant)
DATE: 1 ST MARCH, 2018
SUIT NO: BFS/292/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
JUDY EDUSEI FOR KWAME OWUSU SEKYERE FOR PLAINTIFF
FRANCIS KWABENA NYARKO FOR 1ST DEFENDANT
Before me is a motion on notice praying this court for an order of ejectment.
Before counsel for the Plaintiff/Applicant could start her submissions based on the affidavit in support of the application, the court noticed that the said affidavit had not in fact been signed by the deponent, even though a commissioner of oaths had commissioned it. This raises a question of irregularity on the face of the said affidavit.
The case of the Republic v. High Court, Kumasi, ex parte Atumfuwa & Anor (2000) SC GLR 72 is relevant to the point raised. In that case, the Plaintiffs had filed an application for certiorari in the Supreme Court to quash a portion of the ruling of the High Court.
The parties filed their respective statement of case after which a date was set for ruling on the date the ruling was to be delivered, the court discovered that the affidavit in support of the application for certiorari was unsworn, leave was granted for the affidavit to be regularised.
The Respondent applied for a review of the order granting leave to the Applicant to regularize the affidavit.
The Supreme Court considered Rule 79 of the Supreme Court Rules 1996 ( (CI 16 and came to the conclusion that the said rule does not employ words such as “void”, “ voidable” “nullity”, therefore the decision to waive or not to waive the non-compliance of whatever degree and nature, would lie with the court. taking into consideration the circumstances of each case. The Supreme Court came to a conclusion that the absence of a property sworn supporting affidavit is not so fundamental that the application can be said not to have commenced at all. The review application was dismissed. In effect, the Supreme Court was of the view that a court can exercise its discretion to grant leave for a defective affidavit to be regularised, depending on the circumstances of each case and by waiving the non-compliance. Under order 20 rule 7 of the High Court (Civil Procedure) Rules 2004 C.I. 47, a defective affidavit may be used in evidence notwithstanding any irregularity in its form, with leave of the court.
In the situation at hand, the court notes that the affidavit in support of the application does not comply with order 20 rule 4 (5) of C.I. 47 which enjoins the deponent to sign the affidavit. Order 20 rule 4 deals with the form of an affidavit. The court is of the opinion that an irregularity in the form of an affidavit is not a fundamental error and the same can be waived. Accordingly, the court exercises its discretion under order 81 rules (1) and (2) of C.I. 47 and waives the non-compliance as to the form of the affidavit.
The Applicant is granted leave to regularize the affidavit in support of the motion and to replace the defective affidavit. This must be done within one (1) clear day.
Counsel for the Plaintiff/Applicant may continue with her submissions at the next sitting.
The motion is adjourned to 08/03/2018 at 8:30am.