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 alr
