O 19 made in course of pending proceedings, commonly called interlocutory applications, follow events in proceedings and entitles one to relief in respect thereof, contentious application made in open court whilst non-contentious in chambers since no arguments. Applications are made through motions
Motions: application to court for order directing something to be done in applicant’s favour. O 19 two types, interlocutory-during pendency of substantive cause and originating or motion on notice-another means of commencing civil proceedings where an enactment specifies that a party may apply to a court for a relief e.g. judicial review, habeas corpus, enforcement of HR. Brought at any stage of proceedings stating rule under which it is brought. In interlocutory proceedings, affidavit is generally evidence in support and court may order deponent to appear for cross-examination. Interim orders are made to last for specified times whereas interlocutory orders made pending determination of action. Where no rule of court or statutory provision for a motion or ground for relief, parties can invoke inherent jurisdiction of the courts per Shardey v Adamtey.
Types, Ex Parte-where other party not put on notice i.e. substituted service application, leave to issue and serve notice of writ out of jurisdiction, renewal of writs, change of parties by reason of death, serve third party notice, enter judgment in default of appearance, garnishee order nisi, charging order nisi, Interim injunction in urgent cases, leave to issue writ of possession or writ of sequestration, motion for absconding warrant, anton Pillar order. A party affected by an ex parte order has the right to apply to set it aside through a motion on notice [because an order has been made]. On notice-where other party put on notice to appear at hearing and may oppose application by filing affidavit in opposition, per O 19 there must be 3 clear days between date of service and hearing date (i.e. return date) unless court directs otherwise. In urgent cases P may file writ together with motion.
Motion supported by affidavit stating facts being relied on and evidence in support of application, exhibits annexed marked and attested to, may be more than one affidavit and need not be deposed to by applicant. If applicant doesn’t intent to rely on any fact but on law or material already before the courts like pleadings, he need not file an affidavit in support or opposition per Osei v Donkor.
Affidavits: doc containing facts within personal knowledge narrated and sworn to on oath to support or oppose an application in court shall be in every application per O 19r4. Types are affidavit in support of a motion, in opposition, supplementary affidavit, affidavit of verification and affidavit of confirmation.
O 25r1 for injunction applicant attaches to motion paper and affidavit a statement of case. O 20r2 be sworn before judge, magistrate, registrar, commissioner for oaths and any empowered officer by rule or enactment. S 9,10,11 of Oaths Act (NRCD 6) CJ, judicial secretary, a notary public in addition may administer oath or lawful affirmation or affidavit, may be made before these persons even outside republic including ambassador, high commissioner, diplomatic agent and consular officer of republic, signature or seal of these persons on doc admissible in evidence without proof of seal or signature.
Where 2 or more deponents jurat shall state ‘sworn by both or all of the above named deponents’, where deponent is illiterate or blind jurat state by person administering oath that affidavit was read to him in his presence, he perfectly understood it, he signed or marked affidavit in presence of oath administrator.
Affidavit must contain only facts deponent can prove or statement of info or belief with source of info and belief and grounds of belief per Ibrahim v Abubakari. Court may order any frivolous, scandalous and vexatious matter in affidavit to be struck off, esp. affidavit containing hearsay per Rossage v Rossage. All alterations in form of erasers, cancellations and interlineations in affidavit be initialled or in eraser re-written in margin by administrator. All affidavits are filed at court registry, doc to be used in conjunction with affidavit be exhibited and not just annexed or attached. Affidavits taken outside with seal or signature of qualified person shall be admitted in evidence without proof.