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Wills -
Executors - 1992 Constitution -
article 134 (b) - single Justice
of the Supreme Court – whether
or not the application by
Respondent for the Order of
Substitution was improper -
whether or not causes of action
in divorce matters do not
survive parties to the petition
- whether or not settlement of
the immovable properties and
payments of monies to the
respondent intact after the
death of Petitioner - whether or
not substitution of a deceased
petitioner for the applicants
herein ought to have been
made on notice - whether or not
there is no valid appeal
against the trial High Court’s
judgment pending anywhere
HEADNOTES
“The
Petitioner/Appellant/Appellant
(hereinafter referred to as the
“Petitioner”) on 20th
April 1994 commenced the
petition herein against the
respondent herein in
the High Court for the
dissolution of his marriage to
the respondent. The respondent
cross-petitioned for the
dissolution of the marriage and
for certain ancillary reliefs.
The trial commenced on 23rd
July 1997 and in the course of
the proceeding the High Court
ordered the petitioner to pay
the respondent maintenance
pending the determination of the
suit The High Court on 4th
December 1997 dissolved the
marriage and made certain awards
in favour of the Respondent
herein. On 15th June
2012, the Respondent filed a
preliminary objection to the
appeal filed by the Petitioner,
The Petitioner passed away on
15/3/2013 and the Applicants
herein being son and daughter
had been named as the Executors
of the last will of the deceased
Petitioner
HELD
(1)
Therefore, by ordinary rules of
interpretation, it should be
noted that any invocation of the
single justice jurisdiction
under article 134 of the
Constitution 1992 must be by
motion on notice served on
persons who have an interest in
the cause or matter. In the
instant case, once the
application has been stated to
be ex-parte, it connotes that it
is not on notice and therefore
is not in compliance with the
procedural rules in rule 73 of
C. I. 16 which supplement
article 134 of the Constitution.
In that respect, we are of the
view that the exercise of that
jurisdiction by a single Judge
in an ex-parte motion and also
when persons who have interest
in the cause or matters have not
been notified and served is
contrary to the procedural rules
made pursuant to article 134 of
the Constitution and to that
extent ought to be discharged.
We therefore conclude that it
was perfectly legitimate for the
Respondent to have filed an
ex-parte application to the
Supreme Court for substitution
of the original petitioner by
the Applicants. If such an
application had been put before
the regular panel of five
Justices of the Court for
determination there would have
been no problem as that would be
deemed to be the proper
procedure.
This is
because that procedure is
permitted by the High Court
Rules. However, once the
jurisdiction had been exercised
by a single Justice then, rule
73 of C. I. 16 comes into focus.
It is for the above reasons that
we are of the considered view
that the Application by the
Applicants herein to this court
succeeds. Accordingly, the
orders made by the single Judge
on 26th November
2013, are hereby discharged, By
parity of reasoning, the further
orders made on 18th
December 2013 for service on the
Applicants outside the
jurisdiction is also set aside
and or discharged. This is
because once the foundation has
collapsed anything founded on it
cannot stand
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, 1996, C. I. 16
Courts Act,
1993 (Act 459)
Matrimonial
Causes Act, 1970 Act 367,
CASES
REFERRED TO IN JUDGMENT
Republic v
High Court, Accra Ex-parte All
gate Co. Ltd. Amalgamated Bank
Ltd – Interested Party
[2007-2008] SCGLR 1041
Cook v
Kutsoatsi and Others [1960] GLR
Mass Projects
Ltd v Standard Chartered Bank
and Anr. Suit No. CMJ7/4/2014
dated 18/12/2013
Acheampong v
Acheampong 1982-83 GLR 1017
Nana Addo
Dankwa Akufo-Addo and two others
v John Dramani Mahama and two
others
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE JSC:
COUNSEL
MRS. VICTORIA
BARTH WITH HER DIANA ASONABA
DAPAAH AND PRISCILLA ANIMA
AKYEAMPONG FOR THE PETITIONER/
APPELLANT/ APPELLANT/
APPLICANTS.
MR. KIZITO
BEYUO FOR THE
RESPONDENT/RESPONDENT/
RESPONDENT/ RESPONDENT
----------------------------------------------------------------------------------------------------------------
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 is the Respondent
herein.
3.The
Petitioner/Appellant/Appellant
(hereinafter referred to as the
“Petitioner”) on 20th
April 1994 commenced the
petition herein against the
respondent in the High
Court for the dissolution of his
marriage to the Applicant.
4.The
Applicant cross-petitioned for
the dissolution of the marriage
and for certain ancillary
reliefs.
5.In the
course of the proceedings the
High Court ordered the
Petitioner to pay the Applicant
maintenance pending the
determination of suit.
6.The
Petitioner appealed against the
decision of the High Court to
the Court of Appeal and applied
unsuccessfully to the High Court
for stay of execution of the
order to pay maintenance
pendente lite.
7.The
Petitioner repeated his
application for stay of
execution in the Court of Appeal
but it was also dismissed
whereupon he appealed against
that order to this Court. A
copy of the
Petitioner’s Notice of Appeal is
annexed hereto marked as “KBI”.
8.Meanwhile
following the trial the High
Court on 4 December1997
dissolved the marriage and made
financial and other awards in
favour of the Applicant.
9.On 15th
June 2012 the Applicant’s filed
a preliminary objection to the
Petitioner’s appeal to this
court.
10.The
Applicant, unfortunately passed
away on or about 15th
March 2013 whilst his appeal
to this court is still pending.
I annex marked
as “KB2” his
Obituary published in the
Daily Graphic
newspaper edition of 23rd
May 2013. (We believe the
Applicant stated therein should
have read, Petitioner instead)
11.By his
will the Petitioner appointed
his son Bernard Mensah and
his daughter Barbara Mensah as
the executors of his last
will.
12.I am
advised and verily believe same
to be true that, the cause of
action in the pending appeal did
not abate by reason of the death
of the Petitioner.
13.I am
advised and verily believe same
to be true that as personal
representatives of the
Petitioner, the persons referred
to in paragraph 11 supra are
proper and fit persons to be
substituted in place of the
deceased Petitioner.”
From the
above, the following facts are
undisputed:
i.
That
the application that was filed
in the Supreme Court was an
ex-parte application.
ii.
It was
filed on behalf of the
Respondent herein, therein
applicant.
iii.
It was
for the substitution of Bernard
Mensah and Barbara Mensah son
and daughter respectively in
place of their deceased father
Bernard Amponsah Mensah.
iv.
The
matter in respect of which the
substitution was granted was a
matrimonial petition in which
the Applicant’s father therein
was the Petitioner, and the
Respondent was the
Respondent/Cross-Petitioner
v.
During
the course of the trial at the
High Court, an order for
maintenance pendente lite was
made to which the Petitioner
therein unsuccessfully applied
for stay of its execution. A
repeat application for stay at
the Court of Appeal was also
dismissed.
vi.
The
Petitioner appealed to this
court against the Court of
Appeal decision on the 8th
December 1997.
vii.
In the
meantime, the High Court on 4th
December 1997 dissolved the
marriage and made certain awards
in favour of the Respondent
herein.
viii.
On 15th
June 2012, the Respondent filed
a preliminary objection to the
appeal filed by the Petitioner
to this Court.
ix.
The
Petitioner passed away on
15/3/2013 and the Applicants
herein being son and daughter
had been named as the Executors
of the last will of the deceased
Petitioner.
Following the
grant of the application for
substitution, the Respondent
herein then followed up with
another application for leave to
serve the order for substitution
out of the jurisdiction and this
was granted on 18th
day of December 2013.
This
application is therefore at the
instance of the Applicants
herein, who are seeking to
discharge the order of
substitution dated 26/11/2013
pursuant to article 134 of the
Constitution 1992, section 7 of
the Court’s Act, 1993 (Act 459)
and Rule 73 of C.I. 16 already
referred to supra.
By an order
of this Honourable Court dated
26th November 2013
and made by a Single Justice of
the Supreme Court, the
Applicants herein, Executors of
the Estate of Benjamin Amponsah
Mensah (deceased), were
substituted for the deceased
Petitioner/Appellant/Appellant.
By another
order dated 18th
December 2013, made by the same
single Judge, leave was granted
the Respondent to serve out of
the jurisdiction by courier
service the Order of
Substitution on the Applicants
herein.
In view of
the issues raised in the
affidavit in support and
opposition, we deem it quite
expedient to refer in extenso to
the following paragraphs in the
applicants’ affidavit in
support- 8, 9, 10 and
12.
8.“That the
application by Respondent’s
Lawyer for the Order of
Substitution was improper as
it should have been brought on
Notice under Rule 73 of the
Supreme Court Rules 1996, C I
16, and not ex-parte.
9.That I am
advised by Counsel and verily
believe same to be true that
causes of action in divorce
matters do not survive parties
to the petition to enable the
Courts to substitute a deceased
party by His Executor (s).
10.That an
order made or given by a single
Justice of the Supreme Court
exercising power vested in the
Supreme Court not involving the
decision of the cause or matter
before the Supreme Court
may be varied,
discharged or reversed by this
honourable court
constituted by three Justices of
the Supreme Court.
12.That the
subsequent order of this
honourable court dated 18th
December 2013 also ought to be
discharged as it flows from the
Order dated 26th
November 2013 which Applicants
pray should be
discharged.” Emphasis supplied.
In similar
vein let us also refer to the
relevant depositions in
paragraphs 4, 5, 6, 9, 13, 14,
16, 17, 18 and 19 of the
affidavit of Kizito Beyuo in
opposition to motion to
discharge the ex-parte order as
follows:
4.“The
Petitioner/Appellant/Appellant
(hereinafter referred to as the
“Petitioner”) on 20th
April 1994 commenced the
petition herein against the
respondent herein in the
High Court for the dissolution
of his marriage to the
respondent.
5.The
respondent cross-petitioned for
the dissolution of the marriage
and for certain ancillary
reliefs.
6.The trial
commenced on 23rd
July 1997 and in the course of
the proceeding the High Court
ordered the petitioner to pay
the respondent maintenance
pending the determination of the
suit.
9.In the
meantime the trial continued and
on 4th December
1997 the High Court dissolved
the marriage and entered final
judgment for the respondent. By
its final judgment the High
Court ordered inter alia that
the petitioner settle among
others the matrimonial home on
the respondent.
13.I am
advised and verily believe same
to be true that since at the
time of the petitioner’s death,
final judgment had been
entered against him by
the High Court, the final
judgment made against the
petitioner did not die with him.
14.The
contention by the applicant’s
herein that upon the death of
the petitioner the cause of
action did not survive the
petitioner is misconceived.
15.The import
of that contention of the
applicant is that with the death
of the Petitioner, all his
appeals listed above became
extinct leaving the judgment
of the High Court dated 4th
December 1997 in respect of the
settlement of the immovable
properties and payments of
monies to the respondent intact.
16.I am
advised and verily believe same
to be true that the contention
by the applicant that a motion
herein for the substitution of a
deceased petitioner for the
applicants herein ought to have
been made on notice
is untenable.
17.I am
advised and verily believe same
to be true that intendment of
the rule in rule 73 of this
court’s rules is that notice
of an application ought to be
served on the parties to the
suit whose interest
may be affected by the
application.
18.At the
time of the application made on
behalf of the respondent herein,
the other party to the
proceedings that is the
petitioner was deceased and it
was not possible to serve him
with notice for substitution.
19. I am
advised that in the
circumstances of this case, the
hearing and grant of the motion
ex parte for the substitution by
a single judge of this
court is proper.”
We have
observed from the processes
filed in the court that the
original petitioner appealed to
this court against the decision
of the Court of Appeal in
December 1997.
The Notice of
Appeal itself was filed on
8/12/1997. However, in order to
understand the nature of the
appeal, we deem it expedient to
state in detail the following
particulars about this
particular Notice of Appeal.
“The Part of
the Decision Complained of is as
follows:
The decision
refusing the application for
staying execution pending the
appeal to the Court of Appeal
against the order of the High
Court, Accra, presided over by
Mrs. Agnes Dodzie J, made the 18th
day of December 1996, whereby,
pending the hearing of the
Petition by the Petitioner/
Appellant/ Applicant/ Appellant
for divorce, he was to pay to
the Respondent/ Respondent/
Respondent/ Respondent interim
maintenance of $100US per day
till the marriage was dissolved.
Reliefs
Sought From the Supreme Court
are
An order
staying execution of the order
for payment of interim
maintenance pending the hearing
of the appeal to the Court of
Appeal against the said order.
The Notice of
Appeal was dated on the 8th
day of December 1997.
The Notice of
Appeal was also addressed to
The Registrar
Court of
Appeal
And to
Respondent,
Accra”
Even though
many grounds of appeal were
filed, ground I of the notice of
appeal, is considered relevant
for the purpose of this
rendition and is reproduced
below as follows:
“Both the
Court of Appeal and the High
Court misdirected themselves in
failing to appreciate that as a
matter of law and by the public
policy behind the Matrimonial
Causes Act, 1970 Act 367, upon a
petition for divorce upon the
ground that the marriage has
broken beyond reconciliation
because both parties have failed
to live as husband and wife for
a continuous period of five
years immediately preceding the
presentation of the petition, if
the respondent concedes that the
marriage has broken down and
desires the dissolution of the
marriage on that ground the
Court is bound to
dissolve the marriage at once
unless there are compelling
reasons why the dissolution of
the marriage be delayed or
deferred the day it appears
before the court for hearing and
that in the absence of such
compelling reasons the Court
should not entertain any
application for maintenance
pending trial, since in that
event there is no
issue for the purpose of
deciding whether the marriage
should be dissolved or not.”
The above
notice of appeal as can be
gleaned from the processes
referred to was against the
decision of the Court of Appeal
confirming the interlocutory
ruling of Agnes Dordzie J, (as
she then was) dated 18/12/1996
wherein she made an order of
maintenance pendente lite of USD
100 per day pending trial. This
notice was addressed to the
Registrar, Court of Appeal.
However, we
again observe from the processes
put before us in this
application, that, the
Respondents Solicitors filed a
Notice of Preliminary objection
pursuant to Rule 17 (1) of C. I.
16.
From the
processes which will be referred
to in extenso, the Respondent
sought to question the propriety
of the Petitioner therein filing
an appeal against the final High
Court judgment dated 4th
December 1997 in the wrong
venue, i.e. the registry of the
Court of Appeal.
In that
respect therefore, the
Respondent raised questions
which cast doubts on how an
appeal that appears to be non
existent can give life to an
appeal against the Court of
Appeal’s refusal to grant a stay
of execution of the High Court
order for payment of maintenance
which grounded an appeal to the
Supreme Court.
In order for
the full facts to be put in
proper perspective, the said
Notice of Preliminary objection
is reproduced in full as
follows:
“Benjamin
Amponsah Mensah
- Petitioner/Applicant
H.NO Z 27
Mankata Road
Airport
Residential Area
Accra
V
Margaret Ann
Mensah -
Respondent/Respondent
Accra
Respondent
NOTICE OF
PRELIMINARY OBJECTION PURSUANT
TO RULE 17 (1), SUPREME COURT
RULES 1996, C.I. 16
TAKE NOTICE
that the above-named Respondent
intends at the hearing of this
appeal, to rely on the following
preliminary objection of which
notice is hereby given you, viz:
The
Petitioner/Appellant/Appellant
having filed his appeal against
the judgment of the High Court
dated 4th December
1997 at the wrong venue, namely;
at the Registry of the Court of
Appeal rather than the trial
High Court in contravention of
Rule 8 (2) of the Court of
Appeal Rules 1997 C. I. 19,
there is no valid appeal against
the trial High Court’s judgment
pending anywhere on the strength
of which the Supreme Court’s
jurisdiction can be said to have
been properly invoked to
entertain the present appeal
against the Court of Appeal’s
refusal to stay execution
pending the said non-existent
appeal or any other matter
pertaining to the trial High
Court’s judgment dated 4th
December 1997.
AND TAKE
NOTICE that the grounds of the
objection are as follows:
1. The
Notice of Appeal against the
judgment of the trial High Court
dated 4th
December 1997 having been filed
at the Registry of the Court of
Appeal rather than at the
Registry of the Court below i.e.
High Court, infringes
Rule 8 (2) of the Court of
Appeal Rules 1997 C. I. 19 and
thereby renders the said
appeal void.
2. No
useful purpose can be served by
the Supreme Court entertaining
an appeal against the
refusal by the Court of Appeal
of the
Petitioner/Appellant/Appellant’s
application for stay of
execution of the judgment dated
4th December, 1997
pending a non-existent appeal”
What we make
of the above contents of this
Notice of Preliminary objection
is that, the Respondent herein,
therein respondent urged upon
the Court that there was no
valid appeal pending against the
High Court judgment, and by
parity of reasoning, the appeal
lodged against the refusal of
the Court of Appeal to stay
execution of the maintenance
orders to the Supreme Court.
Simply put, the Respondent
contended that there was no
appeal pending properly in the
Supreme Court.
We observe
from the preliminary objection
and the Notice of Appeal filed,
some serious inconsistencies
that completely render
ineffectual and of no
consequence the relevance of
this preliminary objection. Some
of these are:
1.
There
is no indication of any Notice
of Appeal against this judgment
of 4th December,
1997. This is because the Notice
of Appeal referred to is in
respect of the order of 18th
December 1996 on maintenance.
2.
The
appeal to this court was based
on the order for interim
maintenance awards made by the
trial High Court which refused a
stay of execution of the
maintenance awards, and the
refusal of the Court of Appeal
to grant a repeat application to
the Court.
3.
It was
consequent upon these refusals
that an appeal was lodged
against the Court of Appeal
decision. See the Notice of
Appeal referred to above.
4.
It
must be well noted that, from
all the processes referred to
supra, whilst all these
applications for stay for
execution of the maintenance
awards were going on from the
trial court to Court of Appeal
with an appeal lodged to this
Court, the substantive trial in
the High Court proceeded apace
and it was this that led to the
delivery of judgment on 4th
December 1997. The date on which
the interim maintenance award
was given is 18th
December 1996.
5.
The
Notice of Preliminary objection
is therefore very misleading as
it seems to give the impression
that the Notice of Appeal was
against the final judgment. In
the processes filed before us,
we have not sighted any Notice
of Appeal against the judgment
of 4th December 1997.
In arguing
the application for the
applicants, learned Counsel Mrs.
Victoria Barth, made copious
references to rule 73 of C. I.
16 already referred to. She
argued that every application
put before a single Justice of
the Supreme Court ought to be on
notice. She therefore argued
that it was breach of procedural
rules for the Respondent to have
applied to the court and have an
ex-parte application put before
a single Judge. She referred to
the case of Republic v High
Court, Accra Ex-parte All gate
Co. Ltd. Amalgamated Bank Ltd
– Interested Party
[2007-2008] SCGLR 1041
Secondly,
learned Counsel for the
Applicants argued that being a
matrimonial cause or matter, the
death of the original Petitioner
meant that the action did not
survive him. As a result, the
Applicants herein who are the
personal representatives
(Executors) cannot be
substituted for the original
petitioner.
After
referring extensively to the
affidavits filed in support and
in opposition, learned counsel
for the applicants submitted
that, it is clear the Respondent
did not intend to pursue the
appeal at the Supreme Court, but
rather the case at the High
Court. In that respect, learned
Counsel contended that the
application for substitution
should have been pursued in the
High Court. According to learned
Counsel, the Respondent should
pursue the final judgment that
was delivered as far back as 4th
December 1997 if that is
possible in view of the time
lapse.
In view of
the above submissions learned
counsel for the applicants
prayed this court to discharge
the ex-parte order made by the
court substituting the
applicants herein in place of
their deceased father, for
breach of article 134 (b) of the
Constitution 1992 section 7 of
the Courts Act, 1993, Act 459
and rule 73 of C. I. 16 which
Counsel argued is unambiguous
and should not be limited in
scope in its application.
Responding,
learned Counsel for the
Respondent, Kizito Beyuo made
the following submissions.
That the
matrimonial cause was completed
and a final judgment had been
delivered by the High Court. He
submitted that the parties were
in the Supreme Court because of
the appeal filed by the
Applicants father against the
refusal of the Court of Appeal
to grant a stay of execution of
the order of maintenance
pendente lite. Learned Counsel
also referred to their own
application filed raising
preliminary legal objection to
the appeal pending before the
Supreme Court.
Secondly,
learned Counsel for the
Respondent submitted that, the
interpretation being put on rule
73 of C. I. 16 is incorrect
because it is inconsistent with
the power granted in article 134
of the Constitution 1992.
He argued
that, because rule 73 of C. I.
16 derived its source from
article 134 of the Constitution
1992 any restriction on the
application of the
constitutional provision with
rule 73 of C. I. 16 which was
made pursuant to article 134
must not be countenanced.
Thirdly,
learned counsel for the
Respondent argued that, since
the Supreme Court rules C. I. 16
does not have any provisions on
substitution of parties, the
procedure for the time being in
force in the High Court must be
applied.
Learned
Counsel referred to section 2
(4) of the Courts Act, Act 459,
rule 5 of C.I. 16 and order 4
rule 6 of C. I. 47. Counsel
referred to the ruling in the
unreported Suit No. CMJ7/4/2014
dated 18/12/2013 intitutled
Mass Projects Ltd v Standard
Chartered Bank and Anr.
Learned
Counsel therefore argued that
based on the above procedural
rules and the case of Cook v
Kutsoatsi and Others [1960] GLR
pages 97-98 per Adumoah
Bossman the procedure adopted in
applying to the Court ex-parte
for substitution of the deceased
Petitioner was proper.
Finally,
learned Counsel argued that,
since at the time the Petitioner
died, the Court had pronounced
final judgment, there was an
enforceable judgment which did
not extinguish with the death of
the Petitioner. In other words,
the judgment in that petition,
is what survived the deceased
and also for him to settle the
property rights on the
Respondent. See case of
Acheampong v Acheampong 1982-83
GLR 1017 holding 5.
From the
processes filed and the
submissions made in this Court,
the following are the key issues
that fall to be determined in
this case:
i.
Whether the
sitting of a single Justice in
granting the ex-parte
application for substitution of
the deceased Petitioner is
procedurally flawed in view of
Rule 73 of C.I. 16 of the
Supreme Court Rules, vis-à-vis
article 134 of the Constitution
1992.
ii.
Whether or
not the cause of action in the
matrimonial cause at whatever
level or stage it had reached at
the time of the death of the
original Petitioner has survived
his death.
Before we
proceed with an analysis of the
above issues, we are of the view
that it is necessary for this
court to correct a decision that
was given per incuriam by this
court in the unreported ruling
in the case of Mass Projects
Ltd v Standard Chartered Bank &
Anr., already referred to
supra.
In that
ruling, the Court, speaking
through me stated at page 4
paragraph 3 thereof thus:
“We have
looked at the Supreme Court
Rules, 1996 C. I. 16 and perused
the entire rules, but observed
that no specific
procedure rules have been
made to regulate how this
special jurisdiction by a single
justice of the Court
is to be exercised.”
Indeed,
having been referred to rule 73
of C. I. 16 which we have
extensively referred to herein,
it is quite apparent that the
above observation was made in
error, and we hereby accordingly
correct it.
What it does
mean in effect is that, our
rules of procedure on the
exercise of the jurisdiction of
the single justice of the
Supreme Court in rule 73 of C.
I. 16 are similar in content to
the rules of procedure in rule
67 of The Gambia Supreme Court
Rules referred to in that ruling
i.e. the Mass Projects Limited v
Standard Chartered Bank & Anr.
That not withstanding the effect
of the ruling in the Mass
Projects Limited v Standard
Chartered Bank and Anr.
remains the same.
The only
matter we wish to add is that,
perhaps it will be most
desirable and appropriate for
the Rules of Court Committee to
come out with detailed rules on
the exercise of this single
Justice jurisdiction pursuant to
article 134 of the Constitution.
This is
because, resort to the exercise
of this single Justice
jurisdiction has become popular.
This has become very important
and crucial because in some of
the cases, the choice of the
single Justice jurisdiction is
not made by the parties, but a
decision that is taken
administratively by the
Judiciary.
These are the
reasons why the request for
detailed rules of procedure for
the exercise of the single
Justice jurisdiction of this
court needs to be seriously
considered by the Rules of Court
Committee.
We concede
the fact that the constitutional
provisions in article 134 of the
Constitution 1992 on the
conferment of the single justice
jurisdiction of the Supreme
Court vests that jurisdiction in
a single Justice of the Court.
Indeed, that
constitutional provision is
absolute and is superior to any
other statutory and or
subsidiary legislation such as
C. I. 16.
However, the
point ought to be made that all
the provisions in the
Constitution 1992 which have
conferred specific jurisdiction
on the Supreme Court, and indeed
other Courts have had
corresponding procedure rules
enacted for the Courts, i.e. C.
I. 16 for the Supreme Court, C.
I. 19 for the Court of Appeal
and C. I. 47 for the High Court,
just to mention a few. These
issues were addressed by this
Court in the Mass Projects
Ltd. v Standard Chartered Bank
and Anr. referred to supra.
In this
instance Rule 73 of the Supreme
Court Rules, makes specific
procedure rules as to how this
single Justice jurisdiction is
to be exercised. The bare
constitutional provision on the
jurisdiction of a single Justice
in article 134 of the
Constitution 1992 without the
necessary procedural rules on
how this jurisdiction is to be
exercised will remain a white
elephant. It is like the birth
of a child, they are born
toothless, later they develop
teeth with which they can chew
and bite. The rules of procedure
are therefore the teeth of the
Constitution.
It is in this
respect that the provisions in
rule 73 of C. I. 16 are to be
understood. Without such a
provision it would be very
difficult to implement the
substantive jurisdiction that
has been conferred by article
134 of the Constitution.
For example,
the conferment of supervisory
jurisdiction on the Supreme
Court is contained in article
132 of the Constitution 1992 as
follows:-
“The Supreme
Court shall have supervisory
jurisdiction over all courts,
and over any adjudicating
authority and may, in the
exercise of that
supervisory jurisdiction, issue
orders and directions for the
purpose of enforcing or
securing the enforcement of its
supervisory powers.”
The above are
just bare jurisdictional
provisions on the supervisory
jurisdiction of the Supreme
Court. By what process and
methods these jurisdiction is to
be invoked and exercised is not
stated.
However, Part
Six, of the Supreme Court Rules,
1996, C. I. 16 Rules 61 to 66
deals with how this aspect of
the jurisdiction of the court is
to be exercised. For example,
the method by which this
jurisdiction is to be exercised
is stated in rule 61 (1) to be
made by motion on notice
accompanied by an affidavit with
other requirements. Therefore
the use of a writ for example in
invoking supervisory
jurisdiction will not be
countenanced.
In the same
vein, Rule 73 of C. I. 16
specifically states that an
application made pursuant to
article 134 of the Constitution
1992 be by motion on notice with
a further directive that this
motion shall be served on any
party who has an interest in the
cause or matter.
It has been
submitted that, the reference,
“Shall be served on a party who
has an interest in the cause or
matter” actually refers to a
party in the case who has an
interest in the matter.
We beg to
differ from this interpretation.
In our opinion, what this means
is that any person who has an
interest in the cause or matter,
the subject matter of the
application that has
necessitated the invocation of
the jurisdiction of the single
Judge must be served. Such a
party need not be a party to the
action.
In the
instant case, it does not take
much to observe that the
Applicants herein who are the
Executors of the Will of the
original Petitioner in the case
are definitely interested
persons in the cause or matter
that is the subject of this
ruling.
Therefore, by
ordinary rules of
interpretation, it should be
noted that any invocation of the
single justice jurisdiction
under article 134 of the
Constitution 1992 must be by
motion on notice served on
persons who have an interest in
the cause or matter.
In the
instant case, once the
application has been stated to
be ex-parte, it connotes that it
is not on notice and therefore
is not in compliance with the
procedural rules in rule 73 of
C. I. 16 which supplement
article 134 of the Constitution.
In that
respect, we are of the view that
the exercise of that
jurisdiction by a single Judge
in an ex-parte motion and also
when persons who have interest
in the cause or matters have not
been notified and served is
contrary to the procedural rules
made pursuant to article 134 of
the Constitution and to that
extent ought to be discharged.
The second
issue which is whether the cause
of action in the matrimonial
action has survived the death of
the original petitioner deserves
some serious discussion and
analysis.
Before we
proceed with this second issue
as to whether the cause of
action survived the estate of
the deceased petitioner, it is
pertinent to make the following
observation.
We have
perused all the cases that have
been referred to us by learned
Counsel for the parties. We are
however of the view that because
of the special peculiarities of
this case which essentially
hinge around the application of
rule 73 of C. I. 16 vis-à-vis
article 134 of the Constitution
1992, those cases with respect
cannot hold and be applicable.
There is
absolutely no doubt that the
death of the original Petitioner
in the matrimonial action would
have brought the case to an end.
This is because such a cause of
action is a personal action and
is generally referred to as one
in personam and as a result does
not survive the death of a
party.
However, the
matter is not so simple. From
the depositions we have referred
to in extenso in the processes
filed, it is clear that the
position is somewhat different.
This is because of the
following:
1.
In the
first place, an order for
maintenance had been made by the
trial court as a result of which
the Petitioner had appealed to
this Court.
2.
Secondly, there are also
depositions to the effect that
final judgment had been
delivered in the substantive
matrimonial cause or matter
since 4th December
1997.
3.
We
have however not sighted any
document to wit the final
judgment or Notice of Appeal
against this final judgment save
for these bare assertions.
4.
There
is a Notice of Preliminary
objection to the propriety of
Interlocutory appeal in this
Court against the interim
maintenance orders.
Taking the
above factors into serious
consideration, we come to the
following conclusions:
The appeal
against the interlocutory
maintenance order being an order
made in personam against the
original Petitioner cannot
survive after his death.
Secondly,
being interlocutory in nature,
it would even have ended with
the delivery of final judgment
unless it was incorporated into
the final judgment. That being
the case we hold and rule that
the appeal that was pending in
this court in respect of the
interlocutory order for
maintenance has lapsed due to
the death of the Petitioner and
delivery of the final judgment.
Any arrears of maintenance in
existence prior to his death
also cannot survive against the
estate of the Petitioner for the
same reasons because it was an
action in personam.
But then,
there is this deposition that
some immovable properties have
been resolved in favour of the
Responent in the final judgment.
If that is so, then it would
appear that these would be
relating to real property, and
therefore in rem. Can
this therefore survive against
the estate of the original
petitioner?
Learned
Counsel for the Respondent, Mr.
Kizito Beyuo thinks so and has
forcefully invited us to make
findings to that effect. On the
contrary, learned counsel for
the Applicants, Mrs. Victoria
Barth thinks otherwise and
contends even that the judgment
if indeed it was delivered on 4th
December 1997 cannot even be
executed as of now because of
stipulated timelines that
regulate the execution of
judgments. We in this court will
not concern ourselves with
whether the judgment can be
executed or not since that issue
really does not arise for
determination.
What we
should be concerned with is
whether the action has survived
the estate of the Petitioner and
whether any action is pending in
the Supreme Court to warrant the
application being made to the
Court in the first place. We
concede that under rule 5 of the
Supreme Court Rules, 1996, C.
I. 16 where no express
provision regarding the practice
or procedure on any cause or
matter has been made, this court
shall prescribe such practice
and procedure as in the opinion
of the court the justice of the
court may require.
We are also
aware that in many instances
like the above, resort has been
made to the High Court (Civil
Procedure) Rules, 2004 (C.I.
47). See also article 129 (4) of
the Constitution 1992 which
reinforces the above view.
We believe
that it was the above practice
that made the Supreme Court to
rely on provisions in the High
Court Rules in C.I. 47 on
Joinder and for further and
better particulars in the
recently concluded Presidential
Election Dispute intitutled
Nana Addo Dankwa Akufo-Addo and
two others v John Dramani Mahama
and two others when such
applications were brought.
We note that
under Order 6, rule 1 of C. I.
47, where a party dies and the
cause of action survives, the
action shall not abate by reason
of the death of that party.
Sub-rule 2
gives the court the power
whenever it is desirable at any
stage of the proceedings to
assign the interest or liability
of a party to another person for
the effective and complete
determination of the matters in
dispute, and order that person
to be substituted for the first
named party. Sub-rule 3 states
as follows:
“An application for an order
under this rule may be made
ex-parte”.
We therefore
conclude that it was perfectly
legitimate for the Respondent to
have filed an ex-parte
application to the Supreme Court
for substitution of the original
petitioner by the Applicants.
If such an
application had been put before
the regular panel of five
Justices of the Court for
determination there would have
been no problem as that would be
deemed to be the proper
procedure.
This is
because that procedure is
permitted by the High Court
Rules. However, once the
jurisdiction had been exercised
by a single Justice then, rule
73 of C. I. 16 comes into focus.
This Rule
makes specific provisions on how
a single justice jurisdiction is
to be exercised, then a
fortiori, it means that resort
to any other procedure contrary
to the courts own procedure
rules will render null and void
any contrary procedure.
It does not
matter that it was an
administrative decision that put
the case before a single
justice. Jurisdictional issues
cannot be treated lightly, and
once the procedure adopted, is
wrong any step taken on such
wrong procedure is untenable, is
null, void and should be vacated
and set aside once attention is
drawn to it.
Secondly,
what we observe also is that, in
view of our earlier discussions,
it is apparent that there was
indeed no cause of action
pending in the Supreme Court for
the Respondent to even invoke
the Court’s jurisdiction for
substitution of the original
petitioner. This is because it
was only the appeal against the
interlocutory maintenance order
that was pending in the Supreme
Court. Besides, there is even no
indication that the appeal
record had been transmitted from
the Court below to this Court to
warrant the Respondent to file
the application to this court as
required under rule 16 (1) of C.
I. 16.
Thirdly, once
we are of the firm conviction
that the appeal in the
interlocutory appeal did not
survive the death of the
original petitioner, the action
in this court must fail.
It is for the
above reasons that we are of the
considered view that the
Application by the Applicants
herein to this court succeeds.
Accordingly, the orders made by
the single Judge on 26th
November 2013, are hereby
discharged,
By parity of
reasoning, the further orders
made on 18th December
2013 for service on the
Applicants outside the
jurisdiction is also set aside
and or discharged. This is
because once the foundation has
collapsed anything founded on it
cannot stand.
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME
COURT
CONCURRING
OPINION
BAFFOE-BONNIE
JSC.
I had the
benefit of reading beforehand
the lucid ruling just read by my
esteemed brother Dotse JSC.
I must say
that I agree with the conclusion
arrived at by my brother and the
court that the cause of action
is not pending in the Supreme
Court for the deponent to even
invoke the court’s jurisdiction
for the substitution of the
original petitioner.
However,
with all due respect to my
learned brother and the court, I
am unable to agree that the
application should have been
brought on notice since it was
brought before the single
Justice of the Supreme Court.
The applicant
filed his application at the
registry of the Supreme Court.
It has been argued that had the
full bench of the Supreme Court
sat on the ex parte application,
it would have been proper. But
since it was taken by a Single
Justice, that application should
have conformed to rule 73 of ci
16 and therefore on notice.
The applicant
filed his application at the
registry of the Supreme Court
with no indication that it was
filed pursuant to article 34 of
the constitution. That it was
placed before the single Justice
was purely administrative and
was not pursuant to Article 34
of the Constitution
I do not see
how an applicant can be made to
suffer because of the
administrative convenience of
the self-same Supreme Court. I
am therefore of the view that
,that the application was made
ex parte before a single justice
of the supreme court is not
fatal.
Subject to
this observation I agree that
the application succeeds and so
same is dismissed.
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
COUNSEL
MRS. VICTORIA BARTH WITH HER DIANA
ASONABA DAPAAH AND PRISCILLA
ANIMA AKYEAMPONG FOR THE
PETITIONER/APPELLANT/APPELLANT/APPLICANTS.
MR. KIZITO
BEYUO FOR THE
RESPONDENT/RESPONDENT/
RESPONDENT
/RESPONDENT.
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