Interlocutory Applications, Motions and Affidavits
This domain tests how a party asks the court for relief before trial - how an application is packaged, what an affidavit may properly contain, and how ex parte orders differ from motions on notice. Expect questions on the applications provisions of C.I. 47 (Order 43) and the case law on interlocutory injunctions.
Packaging the application
- Applications are made by motion, supported by affidavit. A motion on notice states the relief sought and the grounds; an ex parte motion is heard without notice to the other side and is reserved for urgency or where notice would defeat the purpose. Practice requires a certificate of urgency where the matter is to be moved immediately.
- The court may order cross-examination of the deponent, direct the filing of further affidavits, or decline to hear the motion on affidavit evidence alone.
Affidavit content
An affidavit is confined to facts within the deponent's knowledge and, where hearsay is permitted, facts believed with the sources and grounds disclosed. It must not contain argument, conclusions of law or opinions, save expert opinion. Documents relied on are exhibited and referenced. A defective affidavit may be struck out, which can destroy the application.
Interlocutory injunction
Ghanaian courts apply a two-stage approach: the applicant must show a legal right or serious question to be tried, and the balance of convenience and irreparable harm then govern; delay, conduct, and an undertaking as to damages are relevant. The relief must be interlocutory - a motion cannot be used to obtain the final relief claimed in the substantive action.
Worked example
A plaintiff moves ex parte to restrain the defendant from dealing with a disputed parcel of land. Reasoning: urgency and the risk of dissipation may justify ex parte relief, but the applicant must make full and frank disclosure of the defendant's documents and defences. If a material fact is suppressed, the order will be discharged with costs, and the court will ordinarily limit the order in time with liberty to the defendant to apply.
Traps that cost marks
Argumentative or hearsay affidavits without sources; deposing to conclusions of law; failing to exhibit key documents; using the motion to seek final relief; non-disclosure on ex parte applications; ignoring the unchallenged evidence of the opposing affidavit; and forgetting that dismissal of a motion is not a dismissal of the action.