OSEI v. DONKOR [1972] 2 GLR 45
HIGH COURT, SEKONDI
Date: 8 MARCH 1972
BEFORE: EDUSEI J.
CASE REFERRED TO
Everett v. Ribbands [1952] 2 Q.B. 198; [1952] 1 All E.R. 823; 116 J.P. 221; [1952] 1 T.L.R. 933; 96 S.J.
229; 50 L.G.R. 389, C.A.
NATURE OF PROCEEDINGS
RULING on a preliminary objection taken by the defendant on the ground that the plaintiff’s application was irregular.
COUNSEL
Ntiamoah for Joe Reindorf for the plaintiff.
James Mercer for the defendant.
[p.47] of [1972] 2 GLR 45
JUDGMENT OF EDUSEI J.
The plaintiff’s solicitor had on 8 January 1972, filed a notice of his intention to raise preliminary legal
points. Counsel for the defendant, Mr. Mercer, has raised the point that the application is irregular
because the application before the court should have taken the form of a motion paper supported by an affidavit, and he relied on Orders 25 and 38 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
Counsel for the plaintiff, Mr. Antwi Nimoh, has also contended that his application is to seek permission of the court to raise the preliminary legal points and the reason of having the legal points set out in his notice for service on the opposite side is not to take her by surprise. His application is captioned: “Notice of Intention to raise Preliminary Legal Point.”
Order 25, r. 2 to which Mr. Mercer also referred states: [His lordship here read the provisions as set out in the headnote and continued:] and counsel argued that since there has not been any consent between the parties the only proper procedure was for the plaintiff to come by motion and a supporting affidavit and not in the way he did. This argument is ingenious; what the plaintiff has done in this case is to inform the defendant about what he intends doing at the hearing of the suit. I do not think an affidavit is necessary in such applications where the points to be argued are of a legal nature. The purpose of an affidavit is to set out facts upon which a party relies for his arguments, and I fail to see how legal points are to be set out in an affidavit. It is in my view quite sufficient if the legal points for argument are set out in the application, a copy of which is served on the opposite party. Affidavits are to contain factual matters, and they take the place of oral evidence in court.
Mr. Mercer referred the court to Order 38, r. 1. of L.N. 140A, and the said Order 38 (1) is in these words: [His lordship here read the provisions as set out in the headnote and continued:] The order says “evidence may be given by affidavit”; it does not say that “evidence shall be given by affidavit.” This shows that it is not in every application to the court that an affidavit must support the motion. The use of an affidavit will depend on the circumstances of the application itself, and in a case like the instant one where the application is to raise legal points which have been set out in the notice itself there is no necessity for an affidavit, for as I have already stated the affidavit is to contain factual as opposed to legal matters.
It is of interest to observe that by Order 34 the parties by consent can state any questions of law arising in the cause or matter in the form of a special case for the opinion of the court. In such applications there is no need for an affidavit: See Chitty’s Queen’s Bench Forms (18th ed.), p. 880. In Order 25, r. 2, the parties by consent can raise any point of law for determination by the court and I do not suppose that either party is precluded from applying whether by way of a written or
[p.48] of [1972] 2 GLR 45 oral application to raise any point of law which may be set down by the court for hearing and disposed of at any time before trial.
I do not think that Order 25, r. 2 requires the application to be supported by an affidavit. All that a party has to do is to set out the title and all other formal parts of the pleading as usual. The points of law are to be set out in separate paragraphs. All this the plaintiff by his solicitor has done in his application and has also indicated his intention to take these preliminary points of law which, in his opinion, will determine the issue finally between the parties, and the judge may set them down for hearing and dispose of them at any time before the trial. Thus in Everett v. Ribbands [1952] 2 Q.B. 198, C.A. per Romer L.J. at p. 206:
“Where there is a point of law which, if decided in one way, is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of pleadings or very shortly afterwards.”
It is agreed that in applications for injunctions, mandamus, prohibition or interim preservation of
property, etc. the motion must be supported by an affidavit, and it is clear that by the nature of such
applications certain facts will be relied upon by the applicant in making his application and such facts must be stated in an affidavit so that the opposite party may know what he has to meet. It is not so with legal matters which a party thinks under Order 25, rr. 2 and 4 will dispose of the case, and it is sufficient if they are set out in the notice to the court.
I rule therefore that the preliminary point taken by Mr. Mercer fails, and I set down for hearing on 20 March 1972, the preliminary legal points stated in the notice of the plaintiff and filed on 8 January 1972.
DECISION
Preliminary objection overruled.
