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RULING

AIKINS, J.S.C.:

I have had occasion to read beforehand the opinion about to be read by my learned brother Acquah, J.S.C. I agree with the views expressed by him together with his conclusion on the matter.

C. HAYFRON-BENJAMIN, J.S.C.:

On the 23rd July, 1997, I took my stand against the decision of this Court to permit the “Applicants to regularise his affidavit”. As happened there was in fact nothing on the record which even remotely qualified to earn the title “affidavit”. An affidavit is of course as written document signed by a deponent and sworn to by him before a Commissioner of Oaths or some other person duly authorized by Statute to exercise such function. In the instant application the document was thumb printed but it was clearly unsworn. I think the essential characteristic of an affidavit is that it is sworn.

The Appellant herein has consequently upon the order of the 23rd July, 1997 applied to this Court for a review of that order. The Applicant contends that an unsworn document cannot pass for an affidavit and in any case also that by the Rules of this Court a sworn affidavit should have accompanied the application. In the absence of a sworn affidavit so accompanying the application the same was avoid or incompetent. Applicant further contended that it was contrary to public policy for this Court to admit an unsworn affidavit for use in the processes of this or any other Court. This Court ought not therefore to lend its aid to the use of such unsworn affidavit.

The Respondents to this application for review while admitting that their “affidavit” was unsworn nevertheless stake their stand on the analogous rule in the High Court Rules—Order 38 rule 14 of L.W. 140A—and contend that similarly this court may correct lapses in any Civil proceedings. Quite apart from the fact that this Court is not bound by the Rules of the High Court, that order deals with Affidavits and the rule 14 deals with corrections in the jurat and any other matter in an affidavit. As I have said the essential prerequisite of an affidavit is that it is sworn. To order an affidavit to be sworn is not the same as to order the supply or correction of a defect in a jurat. The Learned Editors of OSBORN’S CONCISE LAW DICTIONARY (8th Edition) define a jurat as:

“A memorandum at the end of affidavit stating where and when the affidavit was sworn, followed by the signature and description of the person before whom it is sworn".

Now in the High Court when a judge orders an affidavit to be so corrected or amended, such an order must be supported by a certificate of the judge that it has been so done.

In the present application, the document was unsworn and there was no jurat. In my respectful opinion this Court had no jurisdiction to correct or amend an unsworn document let alone do likewise to a non-existent jurat. In the circumstances to request a party to swear to a new and fresh affidavit would be tantamount to ignoring the dictates of time in the application of our Rules of procedure. A defective affidavit is a sworn document which contains errors or omissions which may be corrected or amended. As I said in KWABENA BOAKYE VRS. FRANCIS MANU (Ch. A 3/96 date 16/4/97) on my view of the requirements of Section 4 of Cap 262,

“It is only when the statutory requirements of form have been satisfied that a Court or Tribunal may examine the contents thereof’. I hasten to say that the above test may be applied with equal force to affidavits. For if a document which should be presented in the form of an affidavit is unsworn a court of Tribunal cannot take countenance of it”.

Reference has been made in this application to the decision of this Court in the Boakye case, supra. In my respectful opinion save for the quote of principle adverted to in this opinion, I think there is a distinction between that case and the present matter at Bar. In the BOAKYE case this Court was dealing with letters and documents which did not require to be sworn. The matter was concerned with whether the requirements of Section 4 of Cap 262 had been complied with, and I said, and in my view rightly, that the requirements of that Section were mandatory and “must appear on the face of the letter or documents”.

In the application for review one of the mandatory requirements of rule 61 (1) and (2) of C.I. 16 is an affidavit—a sworn document. The Respondents contend that the Applicant's affidavit lacks a jurat and suffers from the same defect and therefore by the same token the Applicants cannot maintain their review application. I think the Respondents are in grave error. It is trite learning that a sworn affidavit may be corrected or amended as I have already premised. But an unsworn document cannot be amended or corrected as if it were an affidavit. Nor can Respondents fault the Applicant on this ground. The principle is clearly laid down that in Civil matters the Plaintiff or Applicant must lose where no evidence is led by either party. Fir it is the Plaintiff or Applicant who is seeking relief from the Court or Tribunal. The lack of a jurat on an otherwise sworn affidavit will not avail an applicant whose application is not supported by an affidavit as required by law.

It was conceded that there was non-compliance with the rules. The present issue however is whether the non-compliance could be waived. Rule 79 of C.I. 16 is explicit on the effect of non-compliance—“shall be a bar to further prosecution of proceedings”. There is however a rider to this provision which gives this Court the discretion to waive the non-compliance. However, the discretion must be exercised judicially and the party who seeks the exercise of such discretion in his favour must demonstrate how the situation arose by inadvertence. On the contrary the Respondent has not treated this Court with candour. In his “APPLICANT’S STATEMENT OF CASE IN OPPOSITION TO REVIEW MOTION” the Respondent states:

“The Filing Clerk and the Applicants alike failed to observe at the time of filing, that one out of the 10 copies of the said affidavit was NOT stamped by the Commissioner for Oaths as having been sworn. The remaining 9 copies of that affidavit has all been stamped as duly sworn”. (sic).

With all due respect to Counsel that statement was incorrect and did not furnish appropriate excuse for non-compliance of the Rules of this Court. Clearly with only the minimum constitutional panel of 5 members sitting to hear the application, if indeed there were 9 sworn affidavits in the Registry, there would have been no necessity for this Court to order the Applicants “to regularise his affidavit”.

I refrain from commenting on the matters which transpired in chambers and which have provoked this application. My concern in this application has been to diffuse any notions which may be the Respondent states:

“The Filing Clerk and the Applicants alike failed to observe at the time of filing, that one out of the 10 copies of the said affidavit was NOT stamped by the Commissioner for Oaths as having been sworn. The remaining 9 copies of that affidavit has all been stamped as duly sworn”. (sic).

With all due respect to Counsel that statement was incorrect and did not furnish appropriate excuse for non-compliance of the Rules of this Court. Clearly with only the minimum constitutional panel of 5 members sitting to hear the application, if indeed there

were 9 sworn affidavits in the Registry, there would have been no necessity for this Court to order the Applicants “to regularise his affidavit”.

I refrain from commenting on the matters which transpired in chambers and which have provoked this application. My concern in this application has been to diffuse any notions which may gain currency abroad that this Court may be throwing caution to the wind in approving the use of unsworn documents as affidavits in situations where the law requires that only affidavits may be used. I would grant the Order for Review as prayed.

AMPIAH, J.S.C.:

I have had the privilege of reading beforehand, the opinion of my brother Acquah JSC. It is my considered opinion that in the particular circumstances of the case, it would be in the interest of justice that the application be refused to enable the substantive application before the court to be heard, would however like to make a few observations or comments on the issue of the admissibility of “defective” affidavits.

An affidavit may be “defective” in many ways. For our purpose I would like to touch only on two namely:—

(i) an unsworn affidavit

(ii) a sworn affidavit without a jurat where the deponent is either an illiterate, a blind person or a person who suffers from such a disability as would require the contents of the document read and explained to him in a language he understands.

The Supreme Court Rules, 1996 (C.I. 16) does not specifically deal with such ‘defects’ in affidavits, save that the Supreme Court is empowered to deal with such situations by applying the Court of Appeal, and High Court Rules or any other Rules of the Court established by the Constitution. To this end, Article 129(4) of the Constitution provides—

“129 (4) For the purpose of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter,

and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by the Constitution or any other law".

Order 38 of the High Court Rules provides for dealing with “defective” affidavits.

Rule 14 states,

“14 The Court or a judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by misdescription of parties o otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received”. (emphasis mine).

Since it is permissible ‘to affirm’, where it is contrary to one’s religious belief to swear, ‘to swear’ would include “to affirm”. An “affidavit” by definition is “a written statement in the name of a person, called the deponent, by whom it is voluntarily signed and sworn

to or affirmed”. (See The Dictionary of English Law by Earl Jowitt). It is my considered opinion that unless an “affidavit” is sworn to or affirmed, it is no affidavit and cannot be used for any purpose; it is not one of the defects that can be cured under Order 38 rule 14, though the court may ask that a valid affidavit be filed in substitution. That would be subject to whatever objection parties may raise against the filing of the affidavit. On the other hand an affidavit sworn to or affirmed but which is without a proper jurat can be corrected under Order 38 rule 14. Rule 13 (1), (2) and (3) provides—

(1) Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the court or a judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

(2) Where the witness makes a mark instead of signing, the jurat shall state that fact, and that the work was made in the presence of the officer.

(3) When an affidavit is made in any language not understood by the deponent the officer shall certify in the jurat that the affidavit was interpreted to the deponent in his own language; that he seemed perfectly to understand the nature and purports thereof and that he approved the contents of the affidavit” (emphasis supplied).

The affidavit in support of the application for review filed on 28th July, 1997, is said to have been sworn to by Abusuapanin Kofi Nsiah, an illiterate, without the jurat containing the fact of his being an illiterate; the affidavit is therefore defective. In the Appellant/ Respondent's affidavit in support of application for certiorari, the ‘affidavit’ was not sworn to or affirmed. As I have already commented on, such a document cannot be taken as an affidavit at all. It means therefore that the application for certiorari was filed without the required accompanying affidavit. This offends against Rule 61 of the Supreme Court Rules, 1996 (CI 16). As stated before, subject to any objection that the parties may arise this court has power to ask that a new affidavit be sworn to or affirmed, out of time.

An impression has been created that since the two affidavits referred to above are equally or similarly defective, this court can, under Order 38 of the High Court Rules correct the defects. This is not correct! Since the “affidavit” accompanying the application for certiorari was not sworn to, or affirmed, it failed to be an affidavit; it could not be corrected; it must be thrown out. It would mean that there was no affidavit accompanying the application and under normal circumstances, the application should be struck out. The court however in its discretion may grant leave for a fresh affidavit to be filed. This is exactly what the court did in this case.

On the other hand, the affidavit in support of the application for Review was sworn to; only the jurat did not state that the deponent was an illiterate. This is what has been catered for by Order 38 rule 13 of the High Court Rules.

The Supreme Court judgment of Opanin Kwaku Boakye etc. vs. Manu in—Suit No. Ch. A 3/96 dated 16th April, 1997 of which I had the privilege of supporting the majority decision read by Charles Hayfron-Benjamin JSC., has been criticised. It has been argued that since the court held that a document (including an affidavit) which has been made by an illiterate must contain in the jurat a statement that the person making the document was an illiterate, otherwise it could not be used in evidence, this court in the instant case must deal in the same manner with the affidavit in support of the application for review. It is rather unfortunate that such an interpretation should be put on the statement by His Lordship, Mr. Justice Hayfron-Benjamin.

In his opinion, Mr. Justice Hayfron-Benjamin observed,

“In the instant appeal Exhibits “A” and “B” did not satisfy the requisite form and therefore they could not be used in evidence. In this category must also be placed Exhibit “D” which though written for a largely illiterate group of persons did not comply with the provision of section 4 of Cap. 262. The plaintiff contends that there was evidence offered by his witness that the requirements of section 4 of Cap. 262 were complied with. I have examined the evidence of Mr. John Yaw Gyamfi the writer of the exhibits and I find nothing in his evidence which indicates that there was even any attempt on the part of the plaintiff to the effect that the witness was aware of the requirements of section 4 of the Ordinance”.

What does section 4 of Cap. 262 say? It states:

"4. Every person writing a letter or other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall—

(1) Clearly and correctly read over and explain such letter or document or cause the same to be read over and explained to the illiterate person;

(2) Cause the illiterate person to write his signature or make his mark at the foot of the letter or other document or to touch the pen with which the mark is made at the foot of the letter or other document;

(3) Clearly write his full name and address on the letter or other document as writer thereof; and              

(4) State on the letter or other document the nature and amount of the reward, if any, charged or taken or to be charged or taken by him for writing the said letter or other document, and shall give a receipt for the same and keep a counterfoil thereof to be produced at the request of any of the officers named in section 6”.

On this statutory provision, Justice Hayfron Benjamin said,

“Cap. 262 enjoins the writer on behalf of an illiterate person to comply with the formal requirements on the face of the letter or document. Thus a person  who receives or comes across such letter or document must on the face of letter or document appreciate that the provisions of the Ordinance have been complied with. It is only when the statutory requirements of form have been satisfied that a court or Tribunal may examine the contents thereof. In my respectful opinion a law for the protection of an illiterate must be strictly complied with unless, in their absence, oral evidence is admitted in proof of due compliance. Whether or not there has been substantial compliance with the ordinance must be dependent upon the view which the Judge takes of the relevant evidence after examining the letter or document”.

It is therefore not correct that, His Lordship Justice Hayfron-Benjamin, rejected those exhibits merely because the jurat or for that matter the exhibits did not comply with the requirements of Cap. 262. Cap. 262 like Order 38 rule 13 requires that where on the face of the letter or document, the jurat is defective, there must be satisfactory evidence that the affidavit was read over to and appeared to be perfectly understood by the deponent otherwise, the letter or document should be rejected. This is exactly how His Lordship, treated the said documents; but he found no satisfactory evidence that the requirements have been complied with; he therefore rejected the documents. In the particular circumstances of that case, there was justification for the rejection, since the documents were being tendered against the alleged author of those documents. In the instant case, the affidavit in support of the application for review was being used by the illiterate deponent himself! It could therefore be reasonably presumed that he knew and understood the contents of the affidavit before using it in support of his own application. There was thus some satisfactory evidence upon which the court could rely to correct the defective affidavit. This cannot be said of the unsworn ‘affidavit’!

The court has not taken kindly to the conduct of the appellant in bringing his application for review on the ground that his counsel having consented to the filing of the fresh affidavit in support of the application for certiorari, it was not open to the applicant to resile from that consent and file an application for review. I am not unaware of the decisions of our courts to hold fast to decisions obtained from counsel for parties who have consented to orders or judgments of the court on the ostensible authority of the parties they represented. In the instant case however, the facts are different. On the application for certiorari coming up for hearing, counsel for both sides had made submissions to the court for ruling upon and the matter had been adjourned for ruling. On the date for the ruling however, having detected a ‘defect’ in the affidavit in support of the application, His Lordships had repaired to their common room and invited counsel on both sides. The defect in the affidavit was pointed out to counsel and it was agreed that the defaulters (the applicants) be given leave to file a fresh affidavit in support of their application. In fact at that stage there was no affidavit in support of the application and the motion should have been struck out as incompetent. Naturally when the judges and counsel returned to the court room, the applicant herein was surprised at the turn of events; he had a right to find out from his counsel what had transpired in chambers. Since his counsel was, until he was invited to the chambers, not aware of the defect, it could not be said that his client had given him any authority to agree to whatever was going on in chambers. The position would have been different if the proceedings had taken place in the open court where the parties could have been told of what was happening before the agreement. In the circumstances, the applicant (respondent in the certiorari proceedings) was entitled to question the conduct of his counsel and to challenge whatever decision had been taken in chambers without his involvement. Of course the court has a discretion to refuse or grant whatever application that may be brought.

I have agreed to the refusal of this application on the ground only that since the substantive application for certiorari raises issues of public interest and concern, this review application not demonstrating any exceptional circumstances which had or is likely to occasion a miscarriage of justice, it is only proper that it be dismissed to enable the substantive application i.e. the application for certiorari, to be dealt with.

ADJABENG, J.S.C:

I agree with the opinion about to be read by my learned brother, Acquah, J.S.C., and I have nothing useful to add.

ACQUAH, J.S.C.:

This is an application praying this court to review its order of 23rd July, 1997 which directed the respondent herein to file a sworn affidavit to replace a unsworn one supporting his motion for Certiorari. What happened was that the respondents herein, Atumfuwa Kwadwo Bi and Asibour Boateng Ababio, filed an application for certiorari at this court to quash a portion of a Kumasi High Court’s ruling, striking out three out of four reliefs, they sought in Suit No. 15/96. The application for certiorari consisted of a motion paper, an affidavit verifying the facts, a statement and a number of exhibits.

On service of the certiorari application on the respondents therein, the latter filed their affidavit in opposition. On 22nd April, 1997 this court ordered the parties to file their respective statements of case. Thereafter the Court adjourned to deliver its ruling. Several adjournments followed. Later at one of its sittings for ruling on 23rd July, 1997 the court discovered that the affidavit supporting the application for certiorari was not sworn. They adjourned to 29th July, 1997. On 28th July 1997 the 2nd and 3rd respondents in the certiorari application, filed the instant motion for a review of the order granting leave on grounds that once the affidavit was unsworn it was a nullity and the court could not therefore order a sworn one to be filed. They contended that their counsel ought to have obtained their consent before agreeing to the filing of a sworn affidavit. They set out the grounds of their application for review in paragraph 15 of their affidavit, as follows:

“a. An unsworn affidavit is useless in any proceedings and cannot be countenanced in a Court or Tribunal.

b. Since the Rules say that an affidavit must accompany a motion paper, it will be country to law for a court to condone such a clear breach of Rules by allowing a subsequent sworn affidavit to replace an unsworn affidavit.

c. It will be contrary to public policy for this Honourable Court to permit unsworn affidavit to be replaced by subsequently sworn affidavits as the ripple effect of such an order will be that courts lower than this Honourable Court may now entertain unsworn affidavits.

d. If an affidavit is an essential prerequisite to the presentation of a party’s case, the fact that the accompanying affidavit is unsworn renders the proceedings void and such proceedings cannot be countenanced by the Court.”

In their statement of case they referred to rule 61(1) of C.I. 16 and contended that the absence of a sworn affidavit in support of the application for certiorari rendered the application “bad, incompetent and incurably defective”. And such a situation gives right to the opposing party to ask that the application be dismissed or struck out. When the opposing party’s counsel makes such an application, he makes it on behalf of his clients. And once the client opts to have the incompetent process dismissed his counsel has to carry out his wishes. Thus it was a serious error for their counsel to have consented to allow a late affidavit to be filed in place of the unsworn one. For if the counsel had consulted them, they would have definitely instructed him to ask that the application be dismissed as this court did in the review application of Opanyin Kwabena Boakye substituted by John Osei vrs. Francis Manu, 29th July 1997. They contended that the consent of their counsel had caused them substantial injustice, hence their application for review to rescind the order of 23rd July, 1997 and dismiss the application for certiorari as incompetent,

“for the application has been argued so far on the basis of an inadmissible affidavit, an unsworn affidavit being wholly void and of no legal effect.

Opposing the review application, the respondents contended that the unsworn affidavit was neither useless nor void. Neither was it incapable of being replaced by a subsequent sworn affidavit. Referring to Order 38 rule 14 of the High Court Civil Procedure Rules 1954 (L.N. 140A) they pointed out that courts have wide discretionary powers in correcting any lapses in Civil proceedings. They also pointed out that the affidavit supporting the review application was thumbprinted, yet there was no jurat indicating that the contents of the said affidavit were read over, interpreted to the deponent, and same understood by him before thumbprinting it. That affidavit was therefore incompetent to support the application for review.

Counsel for the applicants, Mr. Ahenkorah conceded to the need to have jurat in his affidavit, and accordingly prayed for leave to rectify the defect.

The present position therefore is that the applicants for review who are asking the court to rescind its order in respect of the unsworn affidavit, also suffer from a defect in their affidavit due to the absence of a jurat. Indeed just as the applicants herein seek to rely on the review ruling in Kwabena Boakye vrs. Francis Manu to have the certiorari application dismissed because of the unsworn affidavit, the appeal judgment in the same case delivered on 16th April, 1997 also forbids their affidavit without a jurat from being rectified. For since on the face of their affidavit it is clear that the deponent was illiterate by thumbprinting same, and since there is no jurat on the said affidavit to show that same was read over interpreted to the illiterate deponent, it is clear that the said affidavit did not comply with section 4 of the illiterates Protection Ordinance, Cap. 262. Consequently same cannot be used. Speaking on section 4 of Cap. 262, C. Hayfron-Benjamin, J.S.C. in Kwabena Boakye vrs. Francis Manu. (16/4/97) said:

“In my respectful opinion the provisions of section 4 of the Illiterates Protection Ordinance (Cap. 262) are mandatory and the matters required to be complied with must appear on the face of the letter or documents.” (emphasis mine)

He then went on:

“It is only when the statutory requirements of form have been satisfied that a court or tribunal may examine the contents thereof.”

On the strength of the above authoritative statements from C. Hayfron-Benjamin, J.S.C., the applicants affidavit lacking jurat is certainly as defective as the respondents unsworn affidavit.

And the applicants description of the unsworn affidavit as void would not put their defective affidavit in any better position than the respondents unsworn one.

Now rule 61(1) and (2) of C.I. 16 requires that an application to invoke the supervisory jurisdiction of the Supreme Court must consist of:

i.       Motion on notice as in form 29

ii.      A copy of the decision complained of

iii.     An affidavit, and

iv.     Statement of the applicant’s case.

Of course by an affidavit is meant a duly sworn affidavit. Since the affidavit supporting the certiorari was unsworn, it meant that same was incapable of satisfying that requirement, resulting in non-compliance with rule 61(1) of C.I. 16. And to determine the effect of this non-compliance, one has to examine the provisions of this same C.I. 16 and not to indulge in any theorisation on void and nullity. For even Lord Denning who in the 1960’s in Macfoy vrs. U.A.C. Ltd. (1961) 3 All E.R. 1169 and R. vrs. Paddington Valuation Officer ex parte: Peachey Property Corporation Ltd. (1966) 1 QB. 380, took the view that the so-called void acts or decisions were incurably bad and could not be rectified, later on in life conceded that such view was not free from logical difficulties. He appreciated that there were certain situations where a court has even a discretion whether to quash a void order.

For, as he explained at page 77 of this book: Discipline of Law:

“Much work may have been done in pursuance of the void order. Many persons may have acted on it in the belief that it is good.”

Thus in Lovelock vrs. Minister of Transport (1980) 40P & CR Lord Denning said:

“I have got tired of all this discussion about “void” and “voidable”. It seems to me to be a matter of words—of semantics—and that is all. The plain fact is that, even if such a decision as this is ‘void’ or a ‘nullity’ it remains in being unless and until some steps are taken before the courts to have it declared void”

This is clearly a retraction from his 1960s pronouncements. Indeed courts may in some situations refuse to declare such decisions and acts void, as explained by Prof. Wade at page 352 of his book, Administrative Law, thus:

“The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the “void” order remains effective and is in reality, valid.”

Now in respect of the unsworn affidavit, how does C.I. 16 treat such non-compliance? Does it give the court a discretion, or does the non compliance automatically nullify the application? Rule 79 of C.I. 16 provides:

“Where a party to any proceedings before the court fails to comply with any provision of these Rules or with the terms of any order or direction given or with any rule of practice or procedure directed to determined by the court, the failure to comply shall be a bar to further prosecution of proceedings unless the court considers that the non-compliance should be waived.”

This rule 79 is the same as rule 66 of C.I. 13 except that the words “was not willful and that in the interest of justice the non-compliance” which appeared in rule 66 no longer appear in rule 79 of C.I. 16. The scope of this rule in respect of the Supreme Court’s appellate jurisdiction had been expounded in Darke IX vrs. Darke IV (1984-86) 1 GLR 481 at 489 per Adade, J.S.C. Patu-Styles vrs. Amoo-Lamptey (1984-86) 2 GLR 148 and Sandema Naa vrs. Asangalisa (1996-97) SC. GLR 302. These cases establish that for this court to deal with a non-compliance in any appeal proceedings, an appeal must have been lodged in this court. That is, a notice of appeal to this court must have at least been filed—rule 8 (3) of C. I. 16.

It is clear from the language of rule 79 of C.I. 16 that non-compliance with any rule in C. I. 16, like the instant one of failing to file a sworn affidavit, is a bar to further prosecution of the proceedings except where this court decides to waive the said non-compliance. Rule 79 does not employ the words “void” “voidable”, “nullity”, “irregularity” or “defect”. Thus in each case of non-compliance of whatever degree and nature, the decision to waive or not to waive lies with the Court. And since this is more an exercise of the court discretion, the court would naturally take into consideration the circumstances surrounding the inability to comply with the particular rule in question, the nature of the non-compliance and other relevant factors necessary to enable a fair and judicious exercise of that discretion. And of course once this is an exercise of discretion, each non-compliance would be decided in accordance with its own peculiar circumstances. Thus the fact that in X situation, the court refused to waived the non-compliance does not mean that in another situation based on different circumstances, the court should refuse to waive the non-compliance. Otherwise it ceases to be an exercise of discretion. I am aware that in an identical provision in Order 70 rule 1 of L.N. 140A, a number of decided cases had established that where the non-compliance goes to the root of the action, as opposed to a mere irregularity, such non-compliance renders the proceedings void and cannot be validated. Thus Taylor, J.S.C. in Amoakoh vrs: Hansen (1987-88) 2 GLR 26 at 37: referring to Order 70 rule 1 of L.N. 140A said:

“If however it is an irregularity that goes to the root of the trial and fouls the springs of the judicial process and thus disabling the machinery of the law from advancing the course of justice then … the whole proceedings is void and a nullity…”

But the point here is that the decision that a particular non-compliance goes to the root of the action and thereby renders the proceedings a nullity, is that of the court, and not the party to the action. And the court arrives at such a decision after considering all the relevant facts, statutory rules and the surrounding circumstances. And when so satisfied, declares same void.

In my view rule 79 of C.I. 16 avoids the use of the words “void, irregularity, defective, and nullity” and rather uses the word “non-compliance” in order to enable the court do more substantial justice to each case having regard to its peculiar circumstances. Thus in the instant case, the applicant’s submission that they are seeking this review because this court erred in granting leave for a leave for a fresh sworn affidavit to be files in place of the unsworn affidavit since the unsworn affidavit was void and of no legal effect, is not justified by any rule in C.I. 16. As already stated what C.I. 16 does is to give power to the Court in rule 79 in respect of any defect or non-compliance of a matter within its jurisdiction, to decide whether to terminate the proceedings because of that defect or to waive it. C.I. 16 does not under rule 79, forbid particular types of non-compliance from being waived.

In the instant case, the court by granting leave for a fresh affidavit to be filed, waived the non-compliance arising from the unsworn affidavit. And the proper issue to consider therefore is whether the court had power under C.I. 16 to waive that non-compliance by granting leave.

The undisputed facts about this application are that when the applicants herein were served with the motion and other papers including the unsworn affidavit for certiorari, they files their affidavit and other papers opposing the certiorari application. Thereafter, they filed their statement of case in obedience to the court’s order, and relied on their papers at the hearing of the motion. None of the parties discovered that the affidavit supporting the certiorari application was unsworn. The parties and the court all proceeded in the genuine belief that the affidavit was sworn. On these facts and circumstances, it is obvious that the most sensible and judicious exercise of discretion under rule 79 of C.I. 16 was to waive the non-compliance, and allow the situation to be regularised.

The applicants contend that the injustice they suffered was the right to insist, on the discovery of the fact that the affidavit was unsworn, that the application be dismissed. But it is one thing to insist that the application be dismissed and another thing for the court to decide whether they would accede to that request. On the fact, the exercise of that right would not have resulted in the dismissal of the application, as the non-swearing of the affidavit was evidently more the result of an oversight than a deliberate act non-compliance.

Having regard to the circumstances of this case, it is evident that this Court exercised its discretion under rule 79 of C.I. 16 judiciously in granting leave for a sworn affidavit to be filed. And since rule 79 does not draw a distinction between void and voidable non-compliance, but rather gives power to waive or not to waive any non-compliance within its jurisdiction, it would be erroneous for the applicants herein to contend in effect, that the unsworn affidavit was a defect which this Court has no power to grant leave to rectify. Our procedural rules have gone a long way in freeing this court from the clutches of pointless technicalities. The tendency now is to look at the substance of the case and to ensure that substantial justice is done on the merits within the four corners of the procedural rules. Of course where parties and their counsel exhibit deliberate and reckless non-compliance of the rules, sometimes with a view to over reach their opponents, the court's discretion would not be exercised in their favour.

In conclusion, I am of the opinion that the application for review should be refused as it is evident from the language of rule 79 of C.I. 16 that the unsworn affidavit resulting in the non-compliance of rule 61(1) thereof did not automatically render the application for certiorari “bad, incompetent and incurably defective” as contended by the applicants for review. For the court has a discretion under the said rule 79 to waive such non-compliance. And this is what the court did by granting the leave on 23rd July, 1997.

ATUGUBA, J.S.C.:

As to the question whether counsel for the interested parties/applicants had authority to consent to leave being granted by this Court to the applicants/ respondents, to remedy the unsworn affidavit, the answer ought upon settled authority, to be in the affirmative. It is contended that he needed the authority of his clients so to do. To which I say, counsel had jurisdiction qua counsel at common Law so to do without recourse to his client.

In BAIDEN v. SOLOMON (1963) 1 GLR 488 S.C, to a contention that counsel for the defendant had no authority to concede the issue of negligence without the defendant's instructions to that effect, Crabbe J.S.C. as he was, Ollennu J.S.C. and Akufo-Addo J.S.C. as he then was, concurring held at page 493 as follows:

“A counsel instructed to appear ought to have full control over the case and conduct it throughout to the best of his ability.”

“The duty of counsel”, said Lord Esher M.R. in Matthews v. Munster,

“is to advise his client out of court and to act for him in court, and until his authority is withdrawn, he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client” (emphasis supplied)

Continuing further down he said:

“It seems to me that one of the limits on this general authority of counsel is that he had no power to bind the client on matters collateral to the issues in the suit, unless the client expressly assents. See Swinten v. Lord Chelmsford, per Pollock C. B.”

This statement of the law has enjoyed sustained application up to date. See IN RE ARTHUR [DECEASED], ABAKAH v. ATTAH-HAGAN (1972) 1 GLR 435 C.A.  at 441 per Azu Crabbe J.S.C. (as he was), GWIRA v. STATE INSURANCE CORPORATION [1984-86] 1 GLR 132 C.A. and POMAA v. FOSUHENE [1987-88] 1 GLR 244 S.C.

The question of remedying the unsworn affidavit in this case was one that properly related to the proper conduct of the case and was not collateral, it stemming from the heart of the application before the court. It was strenuously argued by both counsel before us as to whether an unsworn affidavit renders an application for certiorari before this court null and void.

Rule 79 of the Rules of this court, 1996, C.I. 16 provides:

“Where a party to any proceedings before the court fails to comply with any provision of these Rules or with the terms of any order or direction given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings unless the Court considers that the non-compliance should be waived.”

At first blush this rule would seem to make all forms of non-compliance with the rules a matter of discretionary waiver for this court. But it is a well settled rule of law that where a proceeding is fundamentally defective, the same is a nullity. The celebrated case of MOSI v. BAGYINA (1963) 1 GLR 337 S.C. and several subsequent others such as FAH v. BEDIATUO II (1964) GLR 468, SEYIRE v. ANEMANA (1971) 2 GLR 35 C.A., ARMAR v. ARMAR (1969) C.C. 73 C.A., OMANE v. POKU (1973) 2 GLR 66 C.A. CLERK v. CLERK (1976) 1 GLR 123 C.A. accept this principle. It is true that some judges here and in England have sometimes shifted positions on the validity of the distinction between what is a nullity and what is only voidable, but the principle is too well established to suffer abrogation.

It is common knowledge that the cases 1 have just alluded to supra relate to the proper construction of O. 70 r.1 of the High Court Civil Procedure Rules, 1954, L.N. 140A which provides as follows:

“1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit."

Despite this wide discretion it has been well settled as stated by Azu Crabbe J. A. (as he then was) in SEYIRE v. ANEMANA, (supra) at p.47 that:

“The application of Order 70, r. 1 to any particular case depends upon whether or not the proceeding is a nullity or a mere irregularity. If the procedural blunder is a nullity then Order 70, r.1 does not apply.”(e.s.)

The distinction between what is a nullity and what is voidable is copiously indulged in by our courts, and in relation to rule 66(1) of the old Supreme Court Rules, 1970 C.I. 13 which is almost identical with the current r. 79 of C.I. 16 this court has held in DARKE IX v. DARKE IV (1984-86) 1 GLR 481 S.C. that an appeal filed out of time is a nullity to which rule 66, aforesaid does not apply. See also PATU-STYLES v. AMOO-LAMPTEY [1984-86] 1 GLR 481 S.C., KHOURY v. MITCHUAL (1989-90) 2 GLR 256 S.C. In SANDEMNAB vr. ASANGALISA [1996-97] S.C. GLR 302 my brother Acquah J.S.C. (Edward Wiredu, Amua-Sekyi, Amuah and Sophia Akuffo JJ.S.C. concurring) stated at page 311 that

“…… in Darke IX v. Darke IV  ....... The scope of this rule 66(1) was explained (as stated in the headnote, holding (3) as follows:

“Case Law on the interpretation and application of rule 66 of C.I 13 had crystallised along the lines that the court’s discretion under rule 66 was to be exercised when the appeal itself could be said to be properly pending before the court and the court had jurisdiction to deal with it. That meant that the appeal must have been filed timeously and where applicable, the requisite leave had been obtained. But where the appeal was filed out of time or otherwise suffered from a fundamental and radical defect which went to the very roots of the appeal, then notionally there was nothing before the court with respect to which the court might exercise any discretion at all.” (e.s.)

It is therefore clear that in certain circumstances non-compliance with a rule of C.I. 16 may be so fundamental as to render rule 79 thereof inapplicable. In this regard the test for nullity vel non adopted by Azu Crabbe J.S.C. (as he then was) in SHARDEY v. ADAMTEY AND SHARDEY v. MARTEY, [CONSOLIDATED] (1972) 2 GLR 380 at 390 C.A. based on the substantially similar provisions of 0.70 of the High Court Civil Procedure Rules, 1954, L.N. 140A, would be useful. His Lordship said:

“The problem in this case really turns on the answers to two questions. First, is the notice of motion a nullity which is incurable, or is it a defective notice whose defect can be cured by amendment?.......”

Continuing at page 391 he said:

“In Re Pritchard; Pritchard v. Deacon (1963) Ch. 502 Upjohn L.J. said at pp. 523-524:

“I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Order 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Order 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae. Lord Denning in Macfoy ([1962] A.C. 152, 160 P.C.) pointed out that a useful test was whether the defect could be waived. I agree with that as a good common sense test, but I also agree with Mr. Rubin that it cannot be a completely legal test, for until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver.  The authorities do establish one or two classes of nullity such as the following. There may be others, though for my part I would be reluctant to see much extension of the classes. (1) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with: see for example, Whitehead v. Whitehead (orse Vasbore) [1962] 3 WLR 884, C.A. (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings, (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement; see, for example Finnegan vr. Cementation Co. Ltd. [1953] 1 Q.B688. Now for the argument on this particular point. The whole question is whether the originating summons has been issued or not”.

I think that the present application fails within category (ii) of Upjohn L.J.’s classification, and that the proceedings in this case had not been commenced at all owing to a fundamental defect. This court cannot entertain an application under rule 28, until it is shown by the applicant (1) that he had made a similar application to the court below and (ii) that his application was refused. These are two conditions precedent to the exercise of this court’s jurisdiction in any proceedings under rule 28, and unless these are satisfied the commencement of proceedings pursuant to that rule would be a nullity.

... the commencement of any proceedings which is not warranted by any law or rule of procedure is void and is a nullity.” (e.s)

For completeness I will add that Azu Crabbe J.S.C. (as he then was) in his dissenting judgment, was construing rule 28 of the old Court of Appeal Rules, 1962 (L.I. 218), as amended by the Court of Appeal (amendment) rules, 1969 (L.I. 618) which provided that:

“28. Subject to the provisions of these rules and to any other enactment, where under any enactment an application may be made either to the Court below or to the Court it shall be made in the first instance to the court below, but if the Court below refuses to grant the application, the applicant shall be entitled to have the application determined by the court.”

His Lordship’s judgment demonstrates also that the distinction between proceedings which are a nullity and those that can be waived or cured was applicable to the old Court of Appeal Rules also and points to the universality of that rule of law, in the common law tradition (subject of course to extremely explicit provisions to the contrary). As Ollennu J.S.C., delivering the judgment of the Supreme Court said in MENSAH vs. NSOWAH (1964) GLR 288 S.C. at 297, silence in the wording of a rule of court “is no justification for violating a well established rule of practice which is now a rule of law”. His Lordship was commenting on the necessity of notice to the other side of an application for extension of time even though the Native Courts (Ashanti) Procedure Rules, made no provision for such notice.

I will summarise the principles relating to r. 79 of C.I. 16 as I see them thus:

(1) where the proceedings suffer from a fundamental defect they are not within the purview of rule 79, and cannot be waived, though such instances must be very rare.

(2) Where the proceedings suffer from a curable defect then non-compliance with any of the rules can be waived at the discretion of the court.

Waiver is not automatic. See NYANTAKYIWA vs. KISSI (1982-83) GLR 480 S.C. where Charles Crabbe J.S.C. in dealing with the power of the court to waive non-compliance with the old Rules of this court in C.I. 13 under rule 66 thereof stated at page 488 as follows:

“The rule in my view, demands an objective test. The competing and conflicting rights of both parties need to be considered. But in the light of an higher ideal. That consideration does not depend upon the personal equation of either of the parties. It depends upon standards devoid of personal conveniences.............”

(3) Where the defect in procedure can be waived the waiver may take the form of ignoring the defect simpliciter and continuing with the proceedings. In DARKE IX vrs. DARKE IV [1984-86] 1 GLR 481 S.C. the court simply overlooked the defect of absence of a motion, properly formulated.

(4) The waiver may also take the form of allowing the defaulting party to remedy the defect, by filing the requisite proceeding, see HARLLEY vs. EJURA FARMS (GHANA) LTD (1977) 2 GRL 1974 C.A (full bench), A.S. NORWAY CEMENT EXPORT LTD. V. ADDISON (1974) 2 G.L.R. 177 C.A (full bench).

(5) It may also take the form of amendment.

Applying the above principles, which are by no means exhaustive, to the present case it cannot be said that the absence of a properly sworn supporting affidavit is so fundamental that the application can be said not to have been commenced at all. IN THE REPUBLIC vs. GA TRADITIONAL COUNCIL, EX PARTE DAMANLEY (1980) GLR 609 Mensa Boison J was faced with an objection in limine against the grant of leave to apply for certiorari because there was “as put by the respondent counsel, no affidavit in the true sense”, as required by Order 59 r. 2(3;) of L.N. 140A. At page 260 his Lordship distinguished the case of State vs. Asentehene’s Divisional Court B1; Ex Parte, Kusada [1963] 2 GRL 238 S.C, where a similar objection succeeded. His Lordship said:

“Beyond that point as to what is intended by an “affidavit” in Order 59, r. 2(2), the case of Ex Parte Kusada (supra) is distinguishable from the facts of the case in hand. In Kusada’s case there was neither a statement nor affidavit because there was no motion filed as the application was oral So that there was no attempt at compliance with the rule. In the instant case, there is a motion filed with a statement,... so that here one is faced with what is really a defect in practice, rather than outright failure to comply with the Rule”. (e.s.)

His Lordship overruled the objection holding that the absence of 'the requisite affidavit was not on the facts of the case, “concealment or misstatement of the facts”. Again in REPUBLIC vs. BEKWAI DISTRICT MAGISTRATE, GRADE 1; EX PARTE GYAMFI (1981) GLR 388 Quashie-Sam J, (as he then was) faced with a similar objection held at p.391 as follows:

“I would not rank a statutory statement as required under the rules with an affidavit and exhibits, which, as counsel for the respondent has rightly pointed out, are ancillary and merely verifying the facts relied on in such applications. The two must be distinguished.”

His Lordship however, held that under the rules the statutory statement was an indispensable requirement the absence of which vitiated the leave granted to apply for certiorari. That aspect has been disputed elsewhere, but we are here dealing with the requirement of an affidavit not a statement. It is important to point out that the Rules under 0.59, r.2(2) of L.N. 140A governing an application for leave to apply for certiorari are substantially the same as those of rule 61(1)(2), of the Rules of this court (C.I.16) which are as follows:

“61 (1) An application seeking to invoke the supervisory jurisdiction of the court under article 132 of the Constitution shall be by motion on notice as specified in the Form 29 set out in Part IV of the Schedule to these Rules and shall be filed with a copy of the decision against which the application is sought and accompanied by an affidavit.

(2) The notice of motion shall be accompanied by a statement of the applicant’s case based upon the reliefs sought and the grounds of the application.”

By comparison, as stated by Mensa Boison J, in the Damanley case, at p.619 “ORDER 59, R. 2(2) of LN. 140A, ... requires that the application for leave ex parte “shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on.” It is pertinent to remark that even though rule 61(1) of C.I. 16 requires an application to be accompanied by an affidavit the opposite party is enjoined by rule 64(1) only to react to the applicant's statement of his case. Rule 63 provides:

“63. The Registrar shall, as soon as practicable after the filing of the applicant's statement of case cause copies of the statement of case together with a copy of the notice of motion to be served on the respondent and any other interested party.

“64. A party upon whom an applicant's statement of case is served shall if he intends to oppose the application, within fourteen days of the service, or within such time as the court upon terms may direct, file a statement of his case in answer to the applicant’s statement.”

I will therefore like Mensa Boison J, (as he then was) in the Ex Parte Damanley case (supra) and Quashie-Sam J, (as he then was) in the Ex Parte Gyamfi case supra, deny any superintendent charismatic status to an accompanying affidavit the absence of which vitiates an application under r. 61 of C.I. 16.

Having regard to the similarity between 0.70 of L.N. 140 A, r. 66(1) of the old rules of this Court under C.I. 13 and r. 79 of C.I. 16 and the construction the first two have received, the case of CLERK vs. CLERK (1976) 1 GLR 123 C.A. should help counsel to fix his tackle when minded to take procedural objections in limine. In that case, as appears in the headnote, W. appealed against a decree of divorce granted H. under the English Divorce Reform Act, 1969, s. 2(1) (e) on grounds that the petition was signed not by H. but by his solicitor, and that even though the petition was amended by substitution of H.’s signature for that of the solicitor, the amendment was filed out of time, thus the whole proceedings should be declared null and void. Between pages 124-125 Francois J.A. delivering the judgment of the court said; “The argument under first limb is not novel. A similar view as that pressed by counsel was raised and thoroughly discredited by this court in Armar vs. Armar, Court of Appeal 21 April 1969, unreported; digested, in (1969) C.C. 73. Upon almost identical facts this court held that a petitioners failure to sign a petition was not a defect which could not be remedied by invoking Order 70 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). In that case Amissah J.A. delivering the judgment of the court said, “In my view whether a defect is fundamental or not depends on all the circumstances of the case; prejudice to the other party being an important consideration”.

Amissah J.A. saw no objection to the petition being amended “by the substitution of the signature of the petitioner for that of his solicitor which has erroneously been subscribed”. We respectfully endorse this view; and add that in the present case we see no evidence of disadvantage occasioned by the irregularity, nor the erosion of natural justice; see also Omane vs. Poku [1973] 2 GLR 66 at P. 71 C.A.

As to the second limb of her complaint relating to the tardiness in filing the amendment, the record shows that the appellant participated fully in the hearing below. She made no pretence of invoking Order 28, r. 7 or 4 to disallow the amendment when the period had lapsed. We think it is too late in the day to complain.

If the amended petition is thrown overboard the appellant would still have to contend with the original petition which would be legally resuscitated”.

It will be seen that these holdings could be described as a radical attitude of the courts against arguments claiming nullity in respect of procedural lapses. But an escape from the sanction of nullity is no comprehensive insurance for a defaulting party.

In one respect, r.79 of C.I. 16 differs form 0.70 of L.N. 140A. For r.79 holds that prima facie a breach of the rules of this court “shall be a bar to further prosecution of proceedings” but has a saving grace, namely, “unless the Court considers that the non-compliance should be waived”. Rule 79 therefore comes to the rescue of a defaulting party where very good reasons are given for a breach of rules of this court. It is therefore in line with the tenor of r. 79 of C.I. 16 to attend a pardon for breach of the rules with sanctions, costs being one of the obvious sanctions one can readily think of.

In conclusion however, having regard to all that I have said supra, the unsworn affidavit in the proceedings under review was not a defect in limine but a curable defect which this court waived in an atmosphere of mutual consensus of counsel on both sides in which they, with legal authority qua counsel, rightly basked.

It follows that there being no error in the course pursued by this court in its order dated the 23rd day of July 1997 against which this application for review has been brought, the applicant has not satisfied the customary requirements of the review jurisdiction of this court and I will also dismiss the same.

MS. S. AKUFFO, J.S.C.:

For the reasons given by my brother Acquah, J.S.C. I also agree that the application be refused.

COUNSEL

Mr. Ahenkorah with Danso Acheampong for the Applicant.

Mr. Prince Neequaye holding Adumua-Bossman’s brief for the Respondent.