THE REPUBLIC vs. DESIRE EL DAVIDS EX-PARTE: DR. BRIGHT AFEKE [2019]DLHC10342

Date	2019-10-10
Suit No.	SUIT NO. CR/0107/2018
Citation No.	[2019]DLHC10342

HER LADYSHIP ANANDA J. AIKINS (MRS).

MR. CHARLES TETTEH WITH MAWUKWOENYA NUTEKPOR

COUNSEL FOR THE APPLICANT PRESENT

MR. HUMPHREY MODZAKA

COUNSEL FOR THE RESPONDENT PRESENT

[2019]DLHC10342
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													<main id="main" class="content" style="min-height: 60rem" >THE
REPUBLIC<o:p></o:p>vs.<o:p></o:p>DESIRE
EL DAVIDS<o:p></o:p>(RESPONDENT)<o:p></o:p>EX-PARTE:
DR. BRIGHT AFEKE<o:p></o:p>(APPLICANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;mso-pagination:none;mso-layout-grid-align:
none;text-autospace:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. CR/0107/2018&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: 10TH
OCTOBER, 2019<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;mso-pagination:none;mso-layout-grid-align:none;
text-autospace:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">MR. HUMPHREY MODZAKA, COUNSEL FOR THE RESPONDENT PRESENT<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;mso-pagination:none;mso-layout-grid-align:none;
text-autospace:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">HER LADYSHIP ANANDA J. AIKINS
(MRS).<o:p></o:p>

</div>&nbsp;RULING ON PRELIMINARY OBJECTION<o:p></o:p>The applicant on the 19th of February, 2018 filed an
application in this Court to have the respondent committed for contempt. That
application was supported by an affidavit. On the 8th of March,
2018, the applicant filed a supplementary affidavit in support of his original
application/motion on notice for an order for committal for contempt. In the
said supplementary affidavit the applicant deposed to the facts that the second
page of his Exhibit ‘BA1’ was inadvertently left out of the exhibits that were
attached to his original application and also that he omitted to add a
certificate of exhibits as required by Order 20 Rule 14(3) of C.I. 47.<o:p></o:p>The applicant attached to the supplementary affidavit a new Exhibit ‘BA1’
which he described in paragraph 6 of the supplementary affidavit as “a copy of
the said entire document of the Terms of Settlement adopted by the Court” and
he also attached the certificate of exhibits which he omitted when filing the
original application.<o:p></o:p>The record shows that the respondent filed his affidavit in opposition
to the contempt application on the 26th of March, 2018. Thereafter
were many adjournments of the application mainly due to the ill health of the
applicant. On the 14th of March, 2019, the applicant filed yet again
a further supplementary affidavit in support of his original application for
contempt and when the matter came up for hearing on the 24th of
July, 2019 the counsel for the respondent took a preliminary objection to the
two supplementary affidavits that had been filed by the applicant, saying that
they were filed without leave of the Court and therefore the applicant cannot
seek to rely on these two supplementary affidavits and the said supplementary
affidavits should be struck out of the record since they do not comply with
Order 50 rule 3(3) of C.I 47. <o:p></o:p>In responding to the submissions the counsel for the applicant stated
that the 1st supplementary affidavit in support was filed to attach
the second page of the terms of settlement entered between the parties because
the said page was inadvertently left out of the original exhibits. He also said
the second supplementary affidavit filed on 14th March, 2019 was
necessitated by need to respond to the facts contained in the respondent’s
affidavit in opposition filed on 26th March, 2018. He further went
on to say that it was the duty of parties and their counsel to bring before the
Court all matters that are necessary and important for the effectual
determination of matters in dispute and he also submitted that even if leave
was required before the supplementary affidavits could be filed, the court
should waive that requirement in accordance with Order 81 of C.I 47 so that all
matters considered relevant can be dealt with by the Court. <o:p></o:p>It was the view of counsel for the applicant that Order 50 rule 3(3) had
been misread by the respondent’s counsel and that an affidavit in support also
includes “other affidavits that are part of the affidavit in support.” <o:p></o:p>Counsel for the applicant referred the Court to the case of Opoku &amp;
Others (No.2) v. Axes Co. Ltd. (No. 2) [2012] 2 SCGLR p.1214 at p. 1231 where
Atuguba JSC. stated as follows; &nbsp;&nbsp;&nbsp; “</main>