Does a failure to file an affidavit in opposition bar a party to a court case from responding to a motion on points of fact? This question is provoked by an evolving notion in our courts today. The notion says that a failure to file an affidavit in opposition bars a party from addressing the court on points of fact. This short note will explain why the notion is disobedient to law and legal reasoning. The note will also explain why a party who fails to file an affidavit in opposition to a motion is not limited to addressing the court on points of law only.
Right of Reply versus Failure to File Affidavits in opposition
The presentation of oral arguments in court follows a particular order. The order is as follows: First, the moving party advances her substantive argument in support of the motion. At law, an argument is the application of legal principles to facts to arrive at a proposition. Mathematically, this may be presented as: Argument = Law + Facts. The second business in the order is where the responding party takes his turn. He, too, presents his substantive arguments in opposition to the motion by following the same formula – applying legal principles to her side of the facts. Thereafter, the moving party returns to take what is often referred to as the right of reply. The right of reply is, however, strictly regulated. The aim of this regulation is to ensure that litigation does not drag on forever – interest reipublicae ut sit finis litium. Accordingly, she is not allowed to do as she pleases with that right. First, she is barred, completely, from bringing in facts at this point – whether new facts or already presented ones. She is, however, allowed to bring into the proceedings law. Even with law, she may bring in one kind of law only – law which has not already been presented at all in the arguments. She is not allowed to re-present law which has already been presented.
It is important to, from the outset, distinguish the right-of-reply situation from the situation which is the subject matter of this note – the situation where a party fails to file an affidavit in opposition. To be simple, I will refer to this situation as the ‘affidavit situation’. The difference between the two situations may be obvious and sharp. Nonetheless, I will, for the avoidance of doubt, list three of them here: Firstly (as I have mentioned above), the primary purpose of regulating the right of reply is to prevent litigation from dragging on forever. On the other hand, the primary purpose of regulating the affidavit situation is to prevent surprises and the unfair practice of smuggling facts into evidence. Secondly, while the restrained party in the right-of-reply situation is the moving party, the restrained party in the affidavit situation is the responding party. Thirdly, the person who is restrained in the right-of-reply situation is the party who has already presented facts to the court. On the other hand, the person who is restrained in the affidavit situation is the person who has not presented any facts at all to the court. Finally, the foundation of the restriction in the right-of-reply situation is founded on arguments (law + facts), while the foundation for the restriction in the affidavit situation is affidavits (facts only). With this out of the way, I wish to turn to the main issue in this note.
Facts and Law as the Court’s Two Tools
A court’s fundamental function is to resolve disputes. Courts use two tools to perform this function – (1) laws, and (2) facts. As we may already know, the court is the capital city and home of law. This is what lawyers mean when they say, ‘the law is in the judge’s bosom’. Facts, on the other hand, are (except in factual disputes arising during court proceedings), external to the court. Facts need to be transported by the parties (from outside) into the courtroom. There are three vehicles for transporting facts into the courtroom. The first is by oral testimony of a witness. Here, the witness gives evidence-in-chief and, then, gets cross-examined by her adversary. The second vehicle is what lawyers call ‘judicial notice’. This is a situation where the fact is so notorious that a judge is entitled to, by himself, know it, too; or where the fact’s source is so known, certain or could easily be ascertained (see Section 9 of the Evidence Act). For example, a party needs not call a witness to testify to show that H.E. John Mahama is the current President of Ghana. A judge may, simply, take judicial notice of that fact. The third vehicle by which a fact is transported to the courtroom is by way of affidavit. It is this third vehicle which is the focus of this note.
What do Affidavits do?
To understand the present discussion, one needs, first, to understand what an affidavit does in court proceedings. An affidavit is, basically, a statement of facts which a person makes under oath and presents to a court as evidence (see Atkin’s Encyclopaedia of Court Forms in Civil Proceedings, 2nd Ed. Vol. 3 at page 343). From this, it may be noted that an affidavit has two fundamental features. Firstly, is made under oath. This means that a person who knowingly puts a false statement in an affidavit may be punished for perjury. The second feature of an affidavit is that it contains facts only (not law) and, sometimes, a statement of information or belief (see Order 20, Rule 8(1) of CI 47). It is this second feature which is important to the discussion in this note.
Affidavits, Motions and their Rules
In court proceedings, affidavits and motions are like twins. A motion is a party’s formal prayer to a court for an order or a relief. Apart from very few instances – for example, where the motion is for striking out pleadings which are alleged to not disclose reasonable cause of action or defence (Order 11, Rule 18(1)(a) of CI 47) – the rules require that a motion be supported by an affidavit. This is because of something I said earlier in this note – a court works with law (which it has) and facts (which it, often, does not have) to resolve a dispute. This kind of affidavit is often referred to as “affidavit in support” (because it is in support of the motion)”.
When a party files a motion, his opponent is given an opportunity to also file an affidavit in response. This affidavit, if it opposes the prayer in the motion, is often referred to as “affidavit in opposition” (because it opposes the prayer in the motion). Affidavits in opposition, too, is bound by the same features – they are sworn to on oath and must contain statements of facts, information or a belief only (not law). Additionally, the relationship between affidavits in support and affidavits in opposition is governed by rules. The most important of these rules is – that where a party fails to file an affidavit in opposition, he is considered to have silently admitted the statements of facts in the affidavit in support (see Fori v. Ayirebi & Others [1966] GLR 627, 647). This makes sense – silence must mean consent where a response is inherently necessary and a lack of it is unfair.
It is important to note, however, that this rule does not apply where the moving party fails to file further affidavit to deny fresh statements of facts in an affidavit in opposition. Indeed, the moving is not required to file an affidavit at all if all he wishes to do is deny the fresh facts in the affidavit in opposition. Here, the two parties are considered to have disagreed on the fresh facts in the affidavit in opposition. Lawyers say they are deemed to have “joined issues” on those new facts (see Francis Assuming & 640 Ors. v Divestiture Implementation Committee (Civil Appeal No. SC J4/28/2007, Judgment of May 7, 2008). One last rule which is important to this note must be explained. It is as follows:
We have said here that a party who fails to file an affidavit in opposition is considered to have admitted the facts in the affidavit in support. That is correct law. This, however, does not mean that that party has agreed to the prayer in the motion. The reason is simple. It relates to something I said earlier in this note, namely, that courts do not decide cases on facts alone. Courts decide cases by applying law to facts. With this in mind, one may note at least two possibilities. Firstly, one may note that the parties may agree on the facts and, yet still disagree on the law to be applied to the facts. This half disagreement can change the outcome of the motion. The second possibility is that even where the parties agree on both the facts and the law to be applied, they may still disagree on the effect of the law on the facts. This quarter disagreement, too, can change the outcome of the motion.
So, being deemed to have admitted the facts in the affidavit in support of a motion does not mean that the prayer in the motion should automatically be granted. This is exactly what the Supreme Court meant in Republic v Court of Appeal, Accra, Ex Parte Tsatsu Tsikata [2005-2006] SCGLR 614, when it said that:
“An opponent, such as in the instant case, who had not filed an affidavit in opposition to the applicant’s affidavit, was only deemed to have admitted the facts contained therein. The default did not debar the applicant from arguing the matter in connection thereto on points of law. The applicant was, under such circumstances, not entitled to an automatic grant of the prayer on the sole basis that the facts were undisputed. Where it was the court’s discretionary jurisdiction, which was being invoked, the court or tribunal seized with the matter, was under a legal obligation to determine whether, in any event, on the merits, the applicant was entitled to the prayer sought.”
In other words, the court’s decision (outcome) may still go against the moving party, even where the opposing party has, by failing to file an affidavit in opposition, been deemed to admit the statements of facts in the affidavit in support of the motion.
For these reasons, the opposing party is always allowed to, even in the absence of an affidavit in opposition, present arguments (facts + law) against the motion. The reason for this is something I have said earlier in this note, namely, that affidavits are not an appropriate vehicle for presenting law to the court – so a failure to file one does not bar a person from presenting arguments to the court. There is, however, a limit to which facts that person may include in an argument. The limit is that that person (who fails to file an affidavit in opposition) is not allowed to, in his argument, transport fresh facts into the courtroom. There is a reason for this limitation, too. The reason is that arguments (whether oral or written) are not a vehicle for transporting fresh facts onto the court’s record. Arguments are for the presentation of law and facts – facts which are already on the court’s record. Now, I wish to turn to the concluding – and main – point of this note:
Conclusion
We have said in this note that a person who fails to file an affidavit in opposition is not allowed to, through his presentation of arguments, transport fresh facts onto the court’s record. This is correct and proper law. This, however, is not the same as saying, as has erroneously been said, that he is limited to arguing points of law only. In other words, to be allowed to argue “points of law” (as noted in the Ex Parte Tsikata ratio above) is not the same as to be allowed to argue “point of law only”. Just as the moving party, the opposing party (who has not filed an affidavit), is allowed to, in his arguments, refer to facts which are already on the court’s record. These facts may include facts which are deposed to in the affidavit in support of the motion in question. Indeed, it may also include facts which are deposed to in a previous affidavit or testimony before the court in the same case. This use, to the extent that it is already on the court’s record, does not occasion an unfair surprise to the other party; and, therefore, could not be barred. Yes, it is good law to say that he is allowed to even refer to an affidavit from an unrelated case if he properly places that affidavit on the court’s record in a present case (see Order 20, Rule 13 of CI 47). Additionally, he may, while arguing the motion, even urge the court to take judicial notice of a properly fact.
Thus, to the question – “does a failure to file an affidavit in opposition bar a party to a court case from responding to a motion on points of fact?” – the answer is – it depends. It depends on whether the fact in question is a fresh fact or a fact which is already on the court’s record. He is barred, in his argument, from bringing fresh facts onto the court’s record. He is, however, allowed to, in his arguments, refer to facts which are already on the court’s record.