John Ajet-Nasam.

Preface

On September 2, 2026, during the hearing of the review application filed at the Supreme Court by Hon. Kojo Oppong Nkrumah against the decision of His Lordship Pwamang JSC (sitting as a single judge) in the application for interlocutory injunction, counsel for the Applicant, Mr. Frank Davies, applied for an adjournment to enable him file a supplementary affidavit and statement of case in response to the affidavit in opposition filed by the Attorney-General. His Lordship Kulendi JSC, took the view that, having regard to the time sensitive nature of the case, an adjournment would not be in the applicant’s interest and that any issues counsel for the Applicant has, can raise same in his oral argument for the Court to consider.

One of the issues that arose in the course of the hearing was whether a party has an automatic right to file a supplementary affidavit. In addressing it, His Lordship Kulendi JSC referred to a case in which he had personally appeared as counsel before the Supreme Court in 2010, The Republic v. High Court (Land Division, Court 2), Accra; Ex Parte Al-Hassan Limited (Thaddeus Sory, Interested Party), Civil Motion No. J5/37/2010.

That exchange stayed with me after Court. As a young lawyer, one learns something new in Court almost every day. What I learnt at the the Supreme Court on September 2, 2026 is that filing a supplementary affidavit is not as of right, but requires leave of the Court. This position was new to me so I did a quick research, and this article is what came out of it.

Introduction

1. In civil litigation and administrative proceedings under Ghanaian law, an affidavit serves as a primary vehicle for placing factual evidence before the Court. An affidavit is a written statement of facts that a person voluntarily makes under oath or affirmation, signed and formally attested by an authorised officer such as a notary public or a commissioner for oaths, for use as evidence in legal or administrative proceedings. Affidavits are:

• Written; the statement must be in document form, not oral testimony;
• Sworn or affirmed by the person making it; that person is known as the “affiant” or “deponent”, who declares under penalty of perjury that the contents are true, based on personal knowledge, information, or belief;
• Voluntary; the person must not be forced or compelled,
• Attested; a person with legal authority to administer oaths (a notary, magistrate, or commissioner for oaths) witnesses the signing and certifies it. Where the deponent cannot read or write, a jurat clause is included to confirm that the affidavit was read to the deponent in a language he or she appeared to have understood the document; and
• Used as evidence; affidavits are commonly used in court cases, and other legal or official processes as a substitute for oral testimony.

2. At the High Court, the drafting of an affidavit is governed by Order 20 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), as amended. Motions must generally be supported by affidavit, save for applications for directions and motions grounded entirely on matters of law or procedure, or where the Rules otherwise provide that an affidavit should not be used.
3. Affidavit evidence is the basis on which interlocutory applications and summary proceedings are argued. Once a motion is filed and an affidavit in opposition is served, Applicants often feel the need to respond further usually to clarify a point, rebut a new allegation, or attach a fresh exhibit. The document filed for this purpose is called a “supplementary affidavit”.
4. The question however is, can a party simply file a supplementary affidavit whenever it wishes, or must it first seek leave of the Court? Given the fast-paced nature of interlocutory matters, new information may well emerge after the primary motion and its supporting affidavit have already been filed and served raising the question whether a party possesses an inherent, automatic right to respond by way of a supplementary affidavit, or whether such filing depends entirely on the leave and discretion of the Court.
5. This article examines that question under the High Court (Civil Procedure) Rules, 2004 (C.I. 47) and some case laws interpreting it, and concludes that filing a supplementary affidavit is not a right but a matter squarely within the discretion of the Court, and where a party is dissatisfied with the exercise of that discretion, the applicable remedy is an appeal, not a prerogative writ.

The Legislative Framework.

6. A reading of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), as amended, is instructive. Order 19 governs applications generally and requires that motions be supported by affidavit (Order 19, Rule 4). Order 20, titled “Affidavits”, deals comprehensively with who may swear an affidavit, and its form, content, and exhibits. Yet nowhere does it create a right to file a second or further affidavit once the initial supporting or opposing affidavit has been filed.
7. To my mind, this is not an oversight. The Rules contemplate a single round of affidavit evidence, one supporting and another opposing after which the matter is ripe for hearing, subject to the general case-management powers of the Court. Because C.I. 47 does not expressly confer a right to file a supplementary affidavit, a party who wishes to do so must first seek leave of the Court.

Case in Focus:

The Republic v. High Court (Land Division, Court 2), Accra; Ex Parte Al-Hassan Limited (Thaddeus Sory, Interested Party), Civil Motion No. J5/37/2010, delivered by Adinyira JSC (as she then was) on behalf of the Supreme Court on November 10, 2010.

Facts

8. The Applicant sued the Interested Party at the High Court (Land Division), Accra, seeking a declaration of title to a land at Dzornaman, East Legon, recovery of possession, and a perpetual injunction. The Applicant also applied for an interlocutory injunction to stop the Interested Party’s development of the land. After the Interested Party filed an affidavit in opposition, the Applicant filed a supplementary affidavit responding to it.
9. The Interested Party objected, arguing that the supplementary affidavit had been filed without leave of the Court and was not warranted by the Rules, and moved to have it set aside. The High Court agreed and set the supplementary affidavit aside, giving reasons: that filing it was not warranted under Order 25 of C.I. 47; that the Applicant had not sought leave before filing it; and that the supplementary affidavit was not materially different from the affidavit already on file.
10. The Applicant then moved the Supreme Court for certiorari and prohibition, seeking to quash the trial judge’s ruling and to restrain him from further hearing the injunction application.

Submissions at the Supreme Court

11. The Applicant argued that the High Court’s order setting aside its supplementary affidavit had denied it the chance to respond to the Interested Party’s affidavit in opposition, breaching the audi alteram partem rule (the right to be heard), and that natural justice required the judge to act fairly and reasonably by allowing it to be heard on the supplementary affidavit. The Applicant described the ruling as “a stab in the back of natural justice” that ought to be quashed by an order of certiorari.
12. The Interested Party countered that both parties had in fact been heard on the question, and that if the Applicant disagreed with the Court’s reasoning, its proper remedy was to appeal the ruling, not to seek certiorari. Treating a Court’s decision that a party should not rely on a particular document as a breach of audi alteram partem, he submitted, would stretch the rules of natural justice to an absurd degree.

The Supreme Court’s Ruling

13. The Supreme Court agreed with the interested party. It held that the trial judge, having heard both sides on the question, had acted within jurisdiction in disallowing the supplementary affidavit, and that the matter was “entirely within his discretion”, exercisable under Order 81 of C.I. 47. The Court emphasised that an allegedly wrong exercise of discretion is not, by itself, a ground for certiorari; a dissatisfied applicant’s remedy lies in an appeal, not by a prerogative writ.

Two propositions emerge from this case:

1. The requirement for leave. The trial Court’s finding that leave had not been sought was treated by the Supreme Court as a legitimate basis for the exercise of discretion to reject the supplementary affidavit.
2. The nature of the discretion. The decision to admit or reject a supplementary affidavit is discretionary, guided by whether it is genuinely necessary for determining the pending application. It is not a matter the filing party may decide unilaterally.

Why Discretion, Not Right?

14. To my mind, the rationale is rooted in Order 1, Rule 2 of C.I. 47, which directs that the Rules be interpreted to achieve speedy and effective justice, avoid delay and unnecessary expense, and bring disputes to a complete and final determination without a multiplicity of proceedings. Unrestricted filing of supplementary affidavits would undermine each of these objectives. Interlocutory applications could be endlessly extended by successive rounds of affidavits, and a supplementary affidavit filed without leave especially close to a hearing date may deprive the opposing party of a fair opportunity to respond. The Court, rather than the parties, is best placed to assess whether a further affidavit genuinely adds material evidence or merely repeats what is already on record.

Analysis of Some Judicial Precedents.

Ex Parte Osaafo Marfo & 4 Ors

15. In The Republic v. Domelovo, Ex-Parte Osaafo Marfo & 4 Ors, Suit No. CR/0407/2020, delivered on May 12, 2020, Asare-Botwe J (as she then was) observed:

“An observation is made of a purported supplementary affidavit in support filed without the leave of the court on behalf of the Applicants on the 2nd of March, 2020, in obvious breach of the rules, to the effect that once the court commences the hearing of the application, further affidavits may not be filed except with the leave of the court, and even then, under special circumstances.”

16. Her Ladyship cited Kwami Tetteh, Civil Procedure: A Practical Approach, at page 430, together with Bird v Lake (1863) 1 Hem & M 111 at 119; Smith v Swansea Dock Co (1852) 9 Hare App 1 xxn; Anderton v Yates (1850) 15 Jur 833; and East Lancashire Railway Co v Hayyersley (1849) 8 Hare 72 at 86, before holding that the Court would not consider the supplementary affidavit and supplementary statement of case at all, and that both were accordingly struck out.

Union Mortgage Bank Ltd & Ors v Alhaji Fatau El-Aziz & 15 Ors

17. In Union Mortgage Bank Ltd & Ors v Alhaji Fatau El-Aziz & 15 Ors, CM/BDC/0511/2021, dated April 22, 2022, Obiri J stated:

“The Applicants again filed a further supplementary affidavit on 18 March 2022. It does not appear on the face of the further supplementary affidavit that it was filed with the leave of the Court. Orders 19 and 20 of C.I. 47 do not specifically provide for supplementary affidavit. That is why, if it becomes necessary for a party to file same, the person has to seek the permission or leave of the Court.”

18. His Lordship considered Order 82(1) of C.I. 47, which provides that “where in respect of any matter of procedure no provision is made by these rules, the practice for the time being in force in any common law country may, where convenient, be applied”, and stated that since the applicants had not indicated that they were proceeding under the procedure of any common law country. He continued:

“A party should not be given an open-ended opportunity to be filing supplementary affidavits as and when he pleases. A party is not to present his case in piecemeal. It is trite law that, if a process needs the leave of the Court to file same, then failure to obtain the leave before filing the process will render the process a nullity.See: Iddrisu v Amartey (2009) SCGLR 670”

 

19. His Lordship concluded that Orders 19 and 20 of C.I. 47, governing applications and affidavits, do not mention supplementary affidavits at all which is precisely why a party must seek the leave of the Court before filing one.

Grofinafrica Fund (GH) Ltd v. Coll Biy Enterprises Ltd & 2 Ors Suit No. Misc/0132/17

20. His Lordship Koomson J (as he then was), relying on the South African authority Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) at para [13], held:

“Clearly, a litigant who wishes to file a further affidavit must make a formal application for leave to do so. It cannot simply slip the affidavit into the court file. I am of a firm view that this affidavit falls to be regarded pro non scripto.”

21. His Lordship went on to hold that the filing of a supplementary affidavit after the respondent has filed its affidavit in opposition is a matter within the discretion of the Court, and that in the absence of leave, parties are not entitled, by their own arrangement, to file as many affidavits as they wish. In that case, leave had been granted to the Applicant to file a supplementary affidavit in response to the respondents’ affidavit in opposition of February 8, 2018, with both counsel directed to file written submissions within seven days of that filing. Since the respondents had not themselves sought leave before filing a further affidavit, and had offered no explanation for its lateness or any special circumstance warranting its reception, the Court held that their affidavit ought to be ignored.

Ex Parte Acheamfour Group Ltd & 4 Ors.

22. In The Republic v Collins Anokye and Prince Mensah & 18 Ors, Ex Parte Acheamfour Group Ltd & 4 Ors, Motion No. H1/188/2025, dated May 29, 2025, the Court of Appeal answered in the affirmative the question whether leave is required to file a supplementary affidavit in contempt applications before it. The Court quoted with approval The Republic v George Odiase & 5 Others, Ex Parte Glorie Osafo Agyemang-Duah & Another, Misc. 22/2019, High Court (Commercial Division), Kumasi, dated July 16, 2019:

“When you read Order 50 rule 3(3) and Order 16 rule 7 together, there is no doubt that the Applicants required leave of the court before filing the supplementary affidavit… failure to obtain leave of the court makes the process irregular.”

23. The Court re-emphasised that filing a supplementary affidavit without leave undermines procedural regularity. In the interest of speedy and effective adjudication, however, it declined to jettison the irregular process outright, noting that the facts and documents which the deponent of the supplementary affidavit sought to bring to the Court’s attention would not change regardless.

Procedural Requirement Where Leave Is Granted.

24. Where a party seeks and is granted leave to file a supplementary affidavit, it must be stated on the face of that affidavit that leave was sought and granted. This is not a mere formality: it is the record by which the Court and the opposing party can verify that the filing is regular, and it is this endorsement that Grofinafrica and the other authorities discussed above treat as the dividing line between a properly constituted supplementary affidavit and one liable to be struck out or disregarded.

Factors Courts Typically Weigh in Exercising its Discretion.

25. Drawing on the authorities and in my opinion, Courts assessing whether to grant leave to file a supplementary affidavit will typically consider:
26. Necessity. Whether the supplementary affidavit is genuinely required to determine the application, or is substantially repetitive of what is already before the Court;
27. Novelty of facts. Whether it raises facts that could not reasonably have been included in the original affidavit, as opposed to an attempt to reargue or bolster a weak case;
28. Timing. Whether leave is sought promptly, or so late that it would disrupt the hearing or prejudice the other side; and
29. The nature of the case including the complexity of the facts in issue, and whether the application is urgent or time-sensitive.

Conclusion

26. Under the High Court (Civil Procedure) Rules, 2004 (C.I. 47), as amended, there is no provision entitling a party to file a supplementary affidavit as of right. The Rules appears to provide for a single round of supporting and opposing affidavit evidence, and any departure from that, that is, the filing of an additional or supplementary affidavit requires the leave of the Court.
27. The Supreme Court’s decision in Ex Parte Al-Hassan revisited by His Lordship Kulendi JSC in the review application against the ruling of His Lordship Pwamang JSC clarifies the point, and the position it establishes has since been consistently applied by the High Court and the Court of Appeal: whether to admit a supplementary affidavit is a matter within the trial Court’s discretion, exercised having regard to the time-sensitivity of the application and to whether the supplementary affidavit is genuinely necessary to determine it particularly where the underlying facts are not themselves in issue.
28. The answer to the question posed at the outset, then, is this: filing a supplementary affidavit in Ghana is a matter of judicial discretion, not an entitlement or an automatic right. A party dissatisfied with the exercise of that discretion must pursue its remedy on appeal, and not by way of a prerogative writ.