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December 18, 1968
HIGH COURT
GHANA
CORAM
JUDGMENT OF FRANCOIS J.
This is an application for leave to issue a writ of mandamus to compel the Peki Traditional Council to hear and determine a suit pending before it.
[p.1119]
When learned counsel for the applicant began his argument, I pointed out that his papers were not in order. Learned Counsel however insisted that they were and urged the application. I have had to consider the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 2 (2) which reads as follows:
"(2) An application for such leave as aforesaid shall be made ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and 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 affidavits verifying the facts relied on . . .”
(The emphasis is mine.)
The applicant in my view has not complied with this mandatory requirement by embodying a statement in his motion paper. The practice has always been to file with the motion, a statement setting out the requisite particulars. The said statement must disclose the grounds upon which the application is sought. In my view, this is not satisfied by stating on a motion paper:
"The grounds upon which the said relief is sought are set out in the accompanying affidavit, and any further order or orders as this court may seem fit."
The affidavit is to verify the facts in the statement; if these facts are set out in the affidavit then they remain unverified.
I am painfully constrained therefore to refuse leave.
DECISION
Application dismissed.
L. F. A.
AI Generated Summary
An applicant sought leave to issue a writ of mandamus compelling the Peki Traditional Council to hear and determine a suit pending before it. At the outset of argument, FRANCOIS J. observed that the papers were not in order and turned to Order 59, rule 2(2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). That rule mandates that such applications be accompanied by a separate statement specifying the applicant’s name and description, the relief sought, and the grounds, together with affidavits verifying the facts relied on. The applicant had embodied the statement in the motion paper and indicated that the grounds were in an accompanying affidavit. The judge held this approach non-compliant: affidavits verify facts in the statement and cannot replace it. Accordingly, leave was refused and the application dismissed.