Pearl Margaret Ashley v. Tullow Ghana Limited

The Plaintiff/Applicant on 17th November, 2016, filed a motion on notice for leave to file additional evidence to rely on during the trial of this case.

The affidavit in support of the application was deposed to by Counsel for the Plaintiff/Applicant.

In paragraph 4 of the affidavit in support of the Application, Counsel for the Plaintiff/Applicant states he has the authority of the Plaintiff/Applicant to depose to the affidavit.

Counsel deposes in paragraph 3 to 10 of the supporting affidavit, some medical conditions being suffered by the Plaintiff/Applicant pursuant to the institution of the present action, and hence the need for the present application.

At the hearing of the application for leave to file additional evidence to rely on during trial, the Defendant/Respondent raised an objection to the competence of the application stating the following: That in the affidavit in support of the motion, the deponent did not indicate the source of his information.

A further objection by Counsel for the Defendant/Respondent to the propriety of the application is that the facts as deposed to by Counsel for the Plaintiff/Applicant are not matters that Counsel can prove contrary to Order 20 Rule 8(1) and (2) of the High Court (Civil Procedure) Rules 2004, C. I. 47. Counsel for the Defendant further argued that the depositions of Counsel for the Plaintiff/Applicant flies in the face of Section 117 of the Evidence Act 1975(NRCD 323), in that the depositions constitute hearsay evidence.

That once the violation is in respect of a statute, such as the Evidence Act 1975, the violation is incurably bad and cannot be waived as a mere irregularity, citing authorities such as Adusei and Diners Club Suisse S. A. : 1982-83 GLR; 801, Republic vs. High Court Fast Track 2, Ex parte: Ghana Lotto Operators Association, 2009; SC GLR at 390, among others.

Counsel for the Plaintiff/Applicant countered the objection stating that as Counsel for Plaintiff/Applicant, be held the authority of his client to depose to the facts as contained in the affidavit in support of the motion on notice for leave to file additional evidence for the trial.

I have looked at Order 20 Rule 8 (1) & (2) of C. I. 47 and for the purpose of this ruling, I shall reproduce same in extenso.

It states: (1) An affidavit shall contain only facts that the deponent can prove unless any provision of these Rules provide that it may contain a statement of information or belief or both.

1. An affidavit sworn for