REPUBLIC v. ACHEAMPONG ALIAS NANA NYAN IV; EX PARTE NANA AFFUL EFFRIM IV

JUDGMENT OF SARKODEE J.

This court presided over by Francois J. during vacation granted the applicant leave to apply for an order of injunction in the nature of quo warranto directed to Isaac Annobil Acheampong, otherwise known as Nana Nyan IV, the respondent herein. The learned judge ordered notices to issue and fixed 17 October 1972 for the hearing of the application.

[p.162]

Pursuant to the leave granted the applicant filed the notices. Subsequently the respondent filed a summons asking that the order granting leave to the applicant on 6 September 1972 and all subsequent proceedings be set aside for irregularity on the grounds that:

"(a) Order 59, r. 4 (3) has not been complied with:

(b) the affidavits by Kofi Onyemualey sealed herein on 30 August 1972 and 13 September 1972, have not been endorsed in accordance with Order 38, r. 10;

(c) the purported statement filed on 13 September 1972 does not comply with Order 59, r. 2 (2);

(d) the purported statement served with the notice of motion on 13 September 1972, is not a copy of the statement accompanying the application for leave none having been filed as required by Order 59, r. 5 (1);

(e) this honourable court made the order granting leave on 6 September, [sic] without the application being accompanied by a statement as required by Order 59, r. 2 (2)."

With regard to the first ground learned counsel for the respondent conceded that the error was curable by filing the necessary affidavit and therefore did not press that point. In any case affidavits of service sworn to were on the court's file prior to the hearing of the application for leave.

Counsel then argued the second ground emphasizing that the language of Order 38, r. 10 is mandatory and imperative. In my view this ground is misconceived because the two affidavits complained of adequately supplied information as to who the deponents were and on whose behalf they were filed. In support of ground (e) learned counsel submitted that this court made the order granting leave without the affidavit being accompanied by a statement as required by Order 59, r. 2 (2). He submitted that no statement was lodged at all and therefore a vital jurisdictional foundation was missing. Counsel added that an affidavit however copious it might be could not take the place of a statement. Ground (e) was taken together with (d) and counsel concluded his submissions by stating that this court has power to set aside the proceedings because the order granting le