1998
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered an application by the second and third respondents in certiorari proceedings seeking review of the Court’s order of 23 July 1997 that allowed replacement of an unsworn supporting affidavit with a sworn one. The certiorari applicants, Atumfuwa Kwadwo Bi and Asibour Boateng Ababio, had sought to quash part of a Kumasi High Court ruling in Suit No. 15/96, but their filed affidavit was discovered at the ruling stage to be unsworn. Proceeding in the genuine belief that the affidavit was sworn, the parties had already filed statements of case and argued the matter. The majority, led by Acquah, J.S.C., held that rule 79 of C.I. 16 empowers the Court to waive non-compliance with procedural rules and, given the circumstances, the defect was curable. Several justices concurred, and the review application was refused. Hayfron-Benjamin, J.S.C., dissented, insisting an unsworn document is not an affidavit and cannot be corrected.
AIKINS, J.S.C.:
I have had occasion to read beforehand the opinion about to be read by my learned brother Acquah, J.S.C. I agree with the views expressed by him together with his conclusion on the matter.
C. HAYFRON-BENJAMIN, J.S.C.:
On the 23rd July, 1997, I took my stand against the decision of this Court to permit the “Applicants to regularise his affidavit”. As happened there was in fact nothing on the record which even remotely qualified to earn the title “affidavit”. An affidavit is of course as written document signed by a deponent and sworn to by him before a Commissioner of Oaths or some other person duly authorized by Statute to exercise such function. In the instant application the document was thumb printed but it was clearly unsworn. I think the essential characteristic of an affidavit is that it is sworn.
The Appellant herein has consequently upon the order of the 23rd July, 1997 applied to this Court for a review of that order. The Applicant contends that an unsworn document cannot pass for an affidavit and in any case also that by the Rules of this Court a sworn affidavit should have accompanied the application. In the absence of a sworn affidavit so accompanying the application the same was avoid or incompetent. Applicant further contended that it was contrary to public policy for this Court to admit an unsworn affidavit for use in the processes of this or any other Court. This Court ought not therefore to lend its aid to the use of such unsworn affidavit.
The Respondents to this application for review while admitting that their “affidavit” was unsworn nevertheless stake their stand on the analogous rule in the High Court Rules—Order 38 rule 14 of L.W. 140A—and contend that similarly this court may correct lapses in any Civil proceedings. Quite apart from the fact that this Court is not bound by the Rules of the High Court, that order deals with Affidavits and the rule 14 deals with corrections in the jurat and any other matter in an affidavit. As I have said the essential prerequisite of an affidavit is that it is sworn. To order an affidavit to be sworn is not the same as to order the supply or correction of a defect in a jurat. The Learned Editors of OSBORN’S CONCISE LAW DICTIONARY (8th Edition) define a jurat as:
“A memorandum at the end of affidavit stating where and when the affidavit was sworn, followed by the signature and description of the person before whom it is sworn".
Now in the High Court when a judge orders an affida