Mensah Vrs Mensah [2014] GHASC 145 (16 April 2014)

Mensah Vrs Mensah [2014] GHASC 145 (16 April 2014)

The ex-parte substitution order made by a single justice was procedurally improper as it did not comply with Rule 73 of C.I. 16, which requires applications under Article 134 to be by motion on notice served on interested parties. Furthermore, the cause of action in the matrimonial cause did not survive the death of the original petitioner, as it was an action in personam. Therefore, the orders for substitution and subsequent service out of jurisdiction are discharged.

Citation
[2014] GHASC 145
Parties
Petitioner/appellant/applicant: Benjamin Amponsah Mensah (substituted by Bernard Mensah and Barbara Mensah); Respondent/respondent: Margaret Ann Mensah
Court
Supreme Court
Jurisdiction
Ghana
Judgment Date
16 April 2014
Procedural Posture
Single Judge Review Motion (supreme Court, Ghana) / Ruling on Application to Discharge Ex Parte Substitution Order
Outcome
Application to discharge ex-parte substitution order succeeds; orders discharged.
Legal Topics
Substitution of Parties, Survival of Cause of Action, Jurisdiction of Single Justice, Matrimonial Causes, Appeals Procedure
Source Language
English
Civil Procedure Family Law Constitutional Law Substitution of Parties Survival of Cause of Action Jurisdiction of Single Justice Matrimonial Causes Appeals Procedure

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Parties

Benjamin Amponsah Mensah (substituted by Bernard Mensah and Barbara Mensah)

Petitioner/appellant/applicant

Margaret Ann Mensah

Respondent/respondent

Procedural Posture

Single Judge Review Motion (supreme Court, Ghana) / Ruling on Application to Discharge Ex Parte Substitution Order

Legal Issues

  1. 1 Whether the ex-parte substitution order by a single justice was procedurally proper under Rule 73 of C.I. 16 and Article 134 of the Constitution 1992
  2. 2 Whether the cause of action in the matrimonial cause survived the death of the original petitioner

Ratio Decidendi

The ex-parte substitution order made by a single justice was procedurally improper as it did not comply with Rule 73 of C.I. 16, which requires applications under Article 134 to be by motion on notice served on interested parties. Furthermore, the cause of action in the matrimonial cause did not survive the death of the original petitioner, as it was an action in personam. Therefore, the orders for substitution and subsequent service out of jurisdiction are discharged.

Court Disposition

Application to discharge ex-parte substitution order succeeds; orders discharged.

Orders

  • Order of substitution made on 26th November 2013 by single justice is discharged.
  • Order for service out of jurisdiction made on 18th December 2013 is set aside/discharged.