BSIC GHANA LIMITED (PLAINTIFF) vs. MIDLANDS SAVINGS & LOANS LIMITED (DEFENDANT) [2018]DLHC7318

Date	2018-07-26
Suit No.	SUIT NO: MSC/0021/18
Citation No.	[2018]DLHC7318

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

GYEBI NTEM MENSAH ESQ. FOR ALEX OWOO ESQ. FOR PLAINTIFF/ RESPONDENT.

EMMANUEL BRONI-BEDIAKO ESQ. FOR DEFENDANT/APPLICANT.

[2018]DLHC7318
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													<main id="main" class="content" style="min-height: 60rem" >BSIC GHANA LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MIDLANDS SAVINGS &amp;
LOANS LIMITED<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: MSC/0021/18&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 26TH JULY, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>GYEBI NTEM MENSAH ESQ.,
FOR ALEX OWOO ESQ., FOR PLAINTIFF/ RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EMMANUEL
BRONI-BEDIAKO ESQ., FOR DEFENDANT/APPLICANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>The
instant motion seeks an order of the court to set aside a Petition filed by the
Respondent for the official liquidation of the Applicant herein for reasons
stated in the petition. After entering appearance to the process, the applicant
filed a statement of defence. On the 15th March 2018, a process was
filed for the matter to be set down for hearing.<o:p></o:p>On
the 11th June 2018, the applicant herein filed a motion similar to
the instant application to set aside the petition for the official liquidation
of the applicant. When the motion came to be heard on the 27thJune 2018, a
preliminary objection was taken as to the propriety of the motion before the
court. It was argued that the affidavit attached to the motion failed to
disclose the party on whose behalf the affidavit was filed and did not also show
whether or not the said affidavit was sworn and filed with the consent of the
party to the case on whose behalf it was filed. Counsel for the applicant
conceded the point in his response and the court dismissed the motion
accordingly.<o:p></o:p>Thereafter,
on the 3rd July 2018, the instant motion was filed with a supporting
affidavit. A perusal of the attached affidavit shows that one Dorothy Ocquaye
is the very person who deposed to the affidavit attached to the application
filed on the 11th June 2018. The said Dorothy Ocquaye describes
herself as “a paralegal of the private law firm Broni-Bediako @Law. Apart from
the introduction of the phrase “on behalf of the Respondent/Applicant” towards
the end of the introduction to the affidavit, there is virtually no difference
between the instant affidavit and the affidavit attached to the motion which
was dismissed on the 27th June 2018.<o:p></o:p>There
is no deposition in the affidavit to show that the said deponent is an employee
of the applicant who is the party to the case. There is also no deposition
stating the residential address of the deponent. Thus, the affidavit offends
Order 20 rule 4 sub-rule 2 which provides that:<o:p></o:p>(2)&nbsp;&nbsp;Every affidavit shall be expressed
in the first person and shall state the place of residence of the deponent and
the occupation of the deponent or, if the deponent has none, the description of
the deponent and whether the deponent is, or is not employed by a party to the
cause or matter in which the affidavit is sworn.<o:p></o:p>There
is no dispute of the fact that the deponent is not a party to the case and also
not an employee of the applicant. That being so, the deponent is required to
state the source of the information that he deposes to in the affidavit. Here
again, the affidavit fails to disclose the source of the information deposed to
in the affidavit and one cannot tell whether the deponent has even the
authority and consent of the applicant to depose to the matter he purports to
do in her affidavit.<o:p></o:p>The
question is whether or not in a matter before a court of law, anybody at all
can depose to an affidavit for a relief before the court. It is the opinion of the
court that parties to cases before the court may depose to affidavits. However,
where a non-party wishes to depose to an affidavit, that deponent must show not
only the source of his information but also that he does so with the consent
and authority of the party on whose behalf he files that affidavit. Thus, Order
19 rule 4 and Order 20 rule 8 sub-rule 2 of the High Court (Civil Procedure)
Rules, 2004 CI. 47 provide that:<o:p></o:p>19 (4) Every application shall be supported by
affidavit deposed to by the applicant or some person duly authorised by the
applicant and stating the facts on which the applicant relies, unless any of
these Rules provides that an affidavit shall not be used or unless the
application is grounded entirely on matters of law or procedure which shall be
stated in the motion paper.<o:p></o:p>20 8(2)&nbsp;An affidavit sworn for the purpose of
being used in interlocutory proceedings may contain a statement of information
or belief or both with the source of the information and the grounds of the
belief.<o:p></o:p>In
the recent case of 18th July
Ltd vs. Yehans International Ltd [2012] 1 SCGLR 167, the Supreme Court made
the point that<o:p></o:p>“a clerk in
the chambers of a lawyer could swear to an affidavit in support of an
application for interlocutory injunction if he could disclose his source of
information pursuant to Order 20 rule 8(2) of the High Court (Civil Procedure)
Rules, 2004 CI. 47” <o:p></o:p>In
the opinion</main>