Step-by-Step: Drafting an Application by Motion the Right Way in Ghana.
LAWYER’S ABC GUIDE: DRAFTING AN
APPLICATION (MOTION) THE RIGHT WAY.
A motion is essentially a formal prayer to the
Court, requesting it to issue a specific order or ruling on a matter before
it. Black’s Law Dictionary (10th
edn, Thomson Reuters 2014)[1] defines a Motion as “a
written or oral application requesting a court to make a specified ruling or
order.”
A motion may be made orally on one’s feet in court or filed in writing. In Ghana,
written motions generally comprise three key components:
1.
The motion paper itself,
2.
A supporting affidavit, and
3.
A certificate of exhibits (where
applicable).
Lawyers typically draft two main types of applications:
- A
motion on notice, where the opposing party is served with the
application and has the opportunity to respond; and
- An
ex parte motion, where the application is made without notifying
the other party.
Once filed, the motion must be served on all relevant
parties—depending on the nature of the application—along with a return
date, which is the scheduled date for the hearing of the motion. The return
date is particularly crucial for Counsel acting for the Respondent, as it
signals the timeline for preparing a response.
Where a party wishes to oppose the motion, they must file
an Affidavit in Opposition. On the return date, the motion is “moved” in
court by Counsel for the Applicant, after which Counsel for the Respondent is
given the opportunity to reply.
THE
POSITION OF THE LAW ON “APPLICATIONS” AS
PROVIDED FOR UNDER THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C.I. 47).
ü Order 19 rule 1(1) states
as follows: “every application in pending
proceedings shall be made by motion.”
ü Order 19 rule 1(3) provides
as follows: “except where these Rules
otherwise provide, no motion shall be made without previous notice to the parties
affected.”
ü Order 19 rule 3(1) provides
that “subject to rule 1 sub rule (3), an
application by motion may be made ex-parte where any of these Rules provides or
where, having regard to the circumstances, the Court considers it proper to permit
the application to be made.”
ü Order 19 rule 4 affirms
as follows: “every application shall
be supported by affidavit deposed to by the applicant or some person duly authorized
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.
Sample Written Motion on Notice for use in Ghana:
· MOTION PAPER
_____________________________________________________________
MOTION
ON NOTICE:
APPLICATION
TO …
_______________________________________________________________
PLEASE
TAKE NOTE THAT this honourable Court will be moved by (name of
Counsel for the Applicant), Counsel for and on behalf of Plaintiff/ Applicant, praying this Court for an Order to…, upon the
grounds stated in the Supporting Affidavit, and for any further order(s) as
this Court may deem fit.
COURT TO BE MOVED on the day
of , 2025 at 9 o’clock in
the forenoon or so soon thereafter as Counsel for the Plaintiff/ Applicant may be heard.
DATED AT NNIPA NYE CHAMBERS, ACCRA, THIS 22ND
DAY OF JANUARY, 2022.
……………………………………
YAA SERWAA NNIPA NYE
SOLICITOR’S LICENCE No.
00000/22
NNIPA NYE CHAMBERS
LAWYER FOR THE
APPLICANT
THE REGISTRAR
HIGH COURT
ACCRA
AND FOR SERVICE ON:
1. THE
ABOVE-NAMED DEFENDANT OR HIS LAWYER, …
·
AFFIDAVIT
IN SUPPORT
_____________________________________________________
AFFIDAVIT IN SUPPORT OF APPLICATION TO …
______________________________________________________
I,
(Name of Deponent) of (Address) do make oath and say as follows:
1. That …
·
CERTIFICATE
OF EXHIBITS
__________________________________________________________
CERTIFICATE OF EXHIBITS
__________________________________________________________
I, Commissioner
for Oaths, Accra, do hereby …
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