BENJAMIN AMPONSAH MENSAH (SUBSTITUTED BY BERNARD MENSAH AND BARBARA MENSAH) v. MARGARET ANN MENSAH
April 16, 2014
SUPREME COURT
GHANA
CORAM
- JULIUS ANSAH (JSC) PRESIDING
- JONES DOTSE (JSC)
- PAUL BAFFOE-BONNIE (JSC
April 16, 2014
SUPREME COURT
GHANA
CORAM
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DOTSE JSC:
It is provided in article 134 (b) of the Constitution 1992 as follows:
“A single Justice of the Supreme Court may exercise power vested in the Supreme Court not involving the decision of a cause or matter before the Supreme Court, except
(b) In civil matters, any order, direction or decision made or given under this article may be varied, discharged or reversed by the Supreme Court, constituted by three Justices of the Supreme Court”.
It is also provided under Rule 73 of the Supreme Court Rules, 1996, C. I. 16 as follows:-
“An application pursuant to article 134 of the Constitution in respect of a cause or matter, civil or criminal, shall be made by motion on notice and shall be served on a party who has interest in the cause or matter.”
See also section 7 of the Courts Act, 1993 (Act 459) which is a repetition of article 134 of the Constitution 1992.
The Applicants herein are the Executors of the Will of the Estate of Benjamin Amponsah Mensah, (Deceased) the original Petitioner in the matrimonial cause that is the subject of this Ruling whilst the Respondent herein is the Respondent as well.
In this case, a single Justice of this Court on the 26th day of November 2013 granted an ex-parte application for substitution in the following terms:
“And in the Matter of Motion Ex-parte For Substitution of Bernard Mensah, and Barbara Mensah being the deceased petitioner’s son and daughter herein, respectively for Benjamin Amponsah Mensah Petitioner/Appellant
/Appellant.
I hereby certify that an order was made as follows:-
The application to substitute the said Benard Mensah and Barbara Mensah of London is hereby granted. Let them be substituted as executors of the Petitioner/Appellant/Appellant herein. Let the Registrar draw up the order for service on the within-named executors forthwith.”
In order to understand the basis and the rationale for the said application and why it was granted, we consider it appropriate to refer to the exact words used in the motion paper and paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the affidavit in support of the said application.
“Motion ex -Parte for and on behalf of the respondent/applicant for an order substituting Bernard Mensah and Barbara Mensah being the deceased petitioner’s son and daughter respectively for the petitioner herein and for such further and other orders as to this Honourable Court may deem it fit.”
The respondent/applicant therein described in the process referred to is the
AI Generated Summary
This Ghana Supreme Court ruling, authored by Jones Dotse JSC with a concurrence by Paul Baffoe-Bonnie JSC and Julius Ansah JSC concurring silently, addresses whether an ex parte substitution order made by a single Justice can stand and whether any Supreme Court cause remained pending after the death of Benjamin Amponsah Mensah. Benjamin’s 1994 matrimonial litigation with Margaret Ann Mensah led to a 1996 interim maintenance order that he unsuccessfully sought to stay, and a December 1997 Supreme Court appeal on the Court of Appeal’s stay refusal. The High Court issued final judgment dissolving the marriage and awarding property on 4 December 1997. In 2013, a single Justice granted ex parte substitution of Benjamin’s executors, Bernard and Barbara Mensah, and permitted service out of jurisdiction. The Court held Rule 73 requires motion on notice served on interested persons for single-Justice applications, and further that the in personam maintenance appeal lapsed on Benjamin’s death, leaving no pending Supreme Court cause. The orders were discharged.