GH - NANA AKWASI KANYEH & ANOR VS NANA OWUSU & ORS

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 17 th 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 application on notice to the applicants.

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 legal objection as to the affidavit in opposition as 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 defective affidavit.

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 to the root of the 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