Kanyeh And Another Vrs, Owusu And Another (E13/29/2024) [2024] GHAHC 322 (27 May 2024)

INTHESUPERIOR COURT OF JUDICATURE IN THEHIGH COURT OF JUSTICEHELDATHOHOE ONMONDAY THE 27THDAYOF MAY 2024BEFORE HERLADYSHIP JUSTICEJOAN EYIKING, HIGH COURT JUDGE SUITNO. E13/29/2024 1.NANA AKWASI KANYEH PLAINTIFFS/APPLICANTS/RESPONDENTS 2.JOSEPHKWAKUPAWI AH VRS 1.NANA OWUSU -DEFENDANTS/RESPONDENTS/APPLICANTS 2.KINGKOJO 3.NANA MPRAHBESEMUNA (ALLOF KRACHI) RULING The plaintiffs/applicants/respondents hereinafter referred to as respondents commenced this action against the defendants/respondents/applicants hereinafter referred to as applicants by an originating motion on notice invoking the inherent and supervisory jurisdiction of the court on 17th April 2024. The respondents thereafter filed an ex parte application for an order for interlocutory injunction restraining the respondents, their agents, servants and all persons deriving power and authority from them from nominating, appointing, enstooling and outdooring anybody as the Amankrado of Krachi Traditional Area. The application was granted which order was to last for ten (10) days. Thereafter, the respondents repeated the applicationonnotice totheapplicants. 1 However, the applicants filed a Motion on Notice to dismiss the Motion for Interlocutory Injunction. The respondents in turn filed an affidavit in opposition to the motion to dismiss the Motion for Interlocutory Injunction. Before moving the motion on notice to dismiss the suit, counsel for the applicants raised a preliminary legalobjection astothe affidavit inoppositionas being defective. According to counsel for the applicants, the affidavit was sworn in Accra but a Commissioner of Oaths in Hohoe endorsed it. Counsel contends that it is the officer who endorses the affidavit, who the affidavit is sworn before, therefore the said affidavit is defective. Counsel referred the court to Order 20 rule 7 of CI 47 on defectiveaffidavit. Counsel further submitted that there are two affidavits of a similar nature sworn to in Accra and no reasons have been assigned why it should be brought to the Registrar in Hohoe to stamp it. Counsel further submitted that the said defect cannot be waived or saved by Order 18 rule 10 or Order 81 of CI 47 because the defect goes tothe rootofthe document. In his response, counsel for the respondent admitted that indeed the affidavit in opposition is defective but however explained that in practice, when this defect comes to the notice of the officer who is endorsing the document, he corrects it accordingly. That since counsel for the applicant has brought the defect to the attention of the court, same should be treated as an irregularity as per Order 81 of CI 47. Counsel further submitted that as the defect is not of a constitutional nature or a breach of law set up by the Constitution, the court has power to regularize the defect in order to pave way for the application to be heard and referred the court to the case of OPOKU & ORS (No.2) vrs Axes Co. Ltd. (No.2) [2012] 2 SCGLR 1214 per Atuguba JSC which case deals with the consequences of failure to comply with the RulesofCourtwhichheld thatsame should be treated as irregularity. 2 In a rebuttal, counsel for the applicant submitted that the Supreme Court also held that where there is a breach not only of the Constitution but also of statutes and natural justice, same cannot be treated as an irregularity but the non-compliance should be treated as a nullity and referred the court to the case OWUSU-MENSAH & ANOR vrs NATIONAL BOARD FOR PROFESSIONAL AND TECHNICAL EXAMINATIONS (NAPTEX) & OTHERS [2017-2020] 2 SCGLR 708 per Anin YeboahJSC (as he thenwas). ANALYSISANDEVALUATION In view of the above, the court will determine the preliminary issue of the validity of the affidavit in opposition sworn to by the respondents filed on 7/5/24 as raised by theapplicants. A preliminary legal objection refers to legal objections raised against any Court process which is filed on the basis that either the court has no jurisdiction, or the process has been filed in defiance of any applicable statute. The determination of such legal objection may result in either the Court declaring the said process as having been properly filed or not, or in the case of the Court’s jurisdiction, as having been properly invoked or not. Preliminary legal objections must be based on only legal points which are apparent on the face of the process filed and which does not require documentary or evidence being led to establish it as held in the case of ANIM-ADDO & ORS v. ADDAE-MENSAH & ORS [1995- 96] 1 GLR 15 per Benin J.A. (as hethen was). In the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE FREDERICK SALIM HANAWI (Civil Motion No. J5/1/2014 delivered on 13th November 2013) the Supreme Court emphasised on the issue of preliminary legal objections as follows: “The position of the law is that preliminary objection once raised must be ruled upon. Itis notopento the Courtmerelyto ignore the objection.” 3 It is therefore proper that the court rules upon the preliminary objection raised by counsel for the applicant. The validity of the affidavit in opposition must therefore be determined accordingly. Order20Rule 2ofCI 47provides as follows: Rule 2–Persons who maytake affidavits Affidavits shall be sworn before a Judge, Magistrate, Registrar, Commissioner for Oaths, any officer empowered by these Rules or by any other enactment to administer oaths Order20Rule 4ofCI 47provides as follows: Rule 4–Form ofAffidavit (1) Every affidavit shall be printed, written or typed and shall be numbered consecutively. (2) Every affidavit shall be expressed in the first person and shall state the place of residence of the deponent and the occupation of the deponent or, if the deponent has none, the description of the deponent and whether the deponent is, or is not employed by a party to the cause or matter in which the affidavit issworn. (3) Every affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (4) Dates, sums and other numbers may be expressed in an affidavit in figures orin wordsor both. (5) Subject to rule 6 an affidavit shall be signed by the deponent and the jurat shall becompleted andsigned by the person before whom itis sworn. (6) The jurat shall 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 beforewhom it wassworn. 4 This means that per Order 20 Rule 4(5) and (6) of CI 47, the deponent shall sign the affidavit before the personwhom it is sworn and it is the same person who states the full address of the place where the affidavit was sworn, the date when it was sworn and the name and title ofthe personbeforewhom it wassworn. Flowing from this, the question that arises is, per the affidavit in opposition, as it is the Registrar of the High Court, Hohoe who endorsed as the Commissioner of oaths, was the affidavit sworn before him? The answer in my view is in the negative. It is clear per the document that, this is because the affidavit was sworn in Accra and the Commissioner forOathsendorsed it atHohoe. Counsel for the respondent contends that in practice, when this defect comes to the notice of the officer who is endorsing the document, he corrects it accordingly. However, in the instant application, the officer who endorsed the document failed to correctsame. It is trite knowledge that the law that regulates the swearing of oaths in Ghana is the Oaths Act, 1972 (NRCD 6). Section 6 of the Oaths Act, 1972 (NRCD 6) provides as follows: “Every Commissioner for Oaths or Notary Public before whom any oath or affidavit is taken or made shall state truly in the jurat or attestation at what place and onwhat date itis taken or made.” The court is therefore to determine whether the said affidavit in opposition were executedin accordance with Section6ofthe OathsAct, 1972(NRCD 6). Applying the above section 6 of NRCD 6 to the affidavit in opposition, one can conclusively state that the said Commissioner for Oaths did not state the truth as the said deponent did not sign the affidavit before the Commissioner for Oaths in Hohoe. A Commissioner for Oaths is a person who is authorised to witness the 5 signing of important legal documents including affidavits and statutory declaration, whichwas notcomplied within theinstant situation. The only conclusion to draw upon closely looking at the affidavit in opposition is that the affidavit in opposition filed by the respondents is defective as same has been admitted by counsel for the respondents and same was not executed in accordance withthe Oaths ActNRCD 6. Moving forward, the question is, is this an irregularity as contended by counsel for therespondent which same canbe cured by Order81ofCI 47? Order 81 Rule 1 of CI 47 vests the court with discretion to waive non-compliance or set aside proceedings for non-compliance with the Rules. However, in the instant application, the affidavit in opposition was sworn to at Accra and endorsed by a Commissioner of Oaths in Hohoe, which failed to comply with the Oaths Act NRCD 6,whichis astatute. In the case of REPUBLIC vrs HIGH COURT, ACCRA, EX PARTE ALLGATE CO. LTD (Amalgamated Bank Ltd. Interested Party)[2007-2008] SCGLR 1041, the Supreme Court held that Order 81 Rule 1 of CI 47 does not empower the court to cure deficiencies in jurisdiction or non-compliance so fundamental as going to jurisdiction or breach of a statute or Constitution or natural justice as rightly argued by counselfor the applicant. Also in the case of GAIZIE ZWENNES HUGHES & CO. vrs LODERS CROCKLAAN BV [2012] 1 SCGLR 363, the Supreme Court, per Gbadegbe JSC emphasised as follows: “No Judge has authority to grant immunity to a party from consequences of breaching an Act of Parliament. The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders.” In the case of NAOS HOLDINGS PSC v GHANA COMMERCIAL BANK [2005- 2006] SCGLR 407, the holding is clear that if a process of court failed to satisfy the 6 requirements imposed by the Rules, it is void and that the court cannot grant an amendment to cure thatwhichis void. Inthe case ofREPUBLICv. HIGHCOURT, FAST TRACK DIVISION, ACCRA, EX PARTE NATIONAL LOTTERIES AUTHORITY (GHANA LOTTO OPERATORS ASSOCIATION INTERESTED PARTY (2009) SCGLR 394 at 397 Date-Bah JSC (as he then was), stated as follows: “It is common knowledge among lawyers that the courts are servants of Legislation consequently any act of the Court that is contrary to statute is a nullity………. no Judge has the authority to grant immunity to apartyfrom the consequences ofabreach ofanAct ofParliament.” This principle has been affirmed in the case of NETWORK COMPUTER SYSTEM LTD.v. INTELSATGLOBAL SALES &MARKETING[2012] 1SCGLR 218. CONCLUSION Since the requirements of the jurat as per Order 20 rule 4(5) and (6) of CI 47 is in mandatory terms under the Rules, it is my view that it makes the affidavit incurably bad such that Order 81 cannot be applied to save the said defective affidavit. The onlyconclusion todrawuponclosely looking at the affidavit inopposition isthat the affidavit inopposition filed by the respondentsis defective and therefore invalid and same cannot be relied uponby the court. The Commissioner for Oaths failed to comply with the requirements of Section 6 of the Oaths Act (NRCD 6). Same was not executed in accordance with the Oaths Act. In my view, same amounts to non-compliance which is so fundamental as to go to the root of the action, as the non-compliance is a breach of a statute, NRCD 6, therefore, no waiver of non-compliance would inure to the benefit of the respondents. As held in the case of REPUBLIC vrs HIGH COURT, ACCRA, EX PARTE ALLGATE CO. LTD (Amalgamated Bank Ltd. Interested Party) (supra), Order 81 Rule 1 of CI 47 does not empower the court to cure deficiencies in jurisdiction or 7 non-compliance so fundamental as going to jurisdiction or breach of a statute or Constitutionornaturaljustice asrightly arguedby counsel for theapplicant. It is my view that the respondents have not satisfied the court as well as the legal requirement of a statute for the administration of oaths which defect is fundamental to the proceedings. The two affidavits in opposition filed by the respondents on 7/5/24 at 8.54 a.m. and 10.06a.m. respectively have been filed in defiance of a statute, i.e. NRCD 6 for which the court cannot grant them immunity. This has rendered the process a nullity. The preliminary legal objection is hereby upheld and the two affidavits in opposition filed by the respondents on 7/5/24 at 8.54 a.m. and 10.06a.m. arehereby struckout asincompetent accordingly. H/LJUSTICE JOANE.KING HIGH COURT JUDGE OSCARVULORFOR APPLICANTS OBEDWORDU FOR RESPONDENTS . 8