BENJAMIN AMPONSAH MENSAH & ORS v. MARGARET ANN MENSAH

RULING

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