Affidavits that may be filed in an application without leave
The practice in a court is that there are three sets of affidavits that are allowed in application proceedings, that is, supporting affidavit, answering affidavit also known as affidavit in opposition and replying to affidavit which may be presented in the form of supplementary affidavit. These processes are filed without leave of the court except where the rules of court state otherwise. Any further or additional process requires leave of the court and the court in exercising its discretion may grant or refuse same. This conventional three sets of affidavits associated with application proceedings are akin to pleadings where the statement of claim, statement of defence and reply are filed as of right provided within the timelines specified by the rules. However, other forms of pleadings are filed with leave of the court. Therefore, it is obvious that a supplementary affidavit can only be filed without leave of the court if it seeks to answer affidavit in opposition.
Contested facts in affidavits and the burden of proof
I refer to the case of Owusu Vs. Addo [2015-2016] SCGLR 1479 which although dealt with an application for stay of execution, I find the principle laid down in that case by the Chief Justice at the time, Wood CJ, relevant and applicable to all applications. In that case, the Learned Chief Justice held that applications are predicated on the facts deposed to in the accompanying affidavits and annexures, if any. In like manner, challenges to such applications are by parity made through the factual depositions contained in opposing affidavits, including annexures if any. Consequently, a challenge to any of the material facts on either side of the legal divide, triggers the full panoply of the evidentiary rules related to the burden of proof. Thus, if a party challenges a material fact as deposed to and the party on whom the burden of persuasion lies, fails to discharge the legal burden, that fact may, properly be classified as an unproven fact and cannot ground a grant or refusal of the application as the case may be. See pages 1492-93 of the report.
