THE REPUBLIC vs. DISTRICT MAGISTRATE COURT, KANESHIE EX PARTE GLADYS NTOW [2018]DLHC3494

Date	2018-01-18
Suit No.	SUIT NO.CR/550/17
Citation No.	[2018]DLHC3494

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2018]DLHC3494
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">THE
REPUBLIC<o:p></o:p></a>vs.<o:p></o:p>DISTRICT MAGISTRATE COURT, KANESHIE<o:p></o:p>EX PARTE GLADYS NTOW<o:p></o:p>&nbsp;[HIGH COURT (GENERAL
JURISDICTION DIVISION 7), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO.CR/550/17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 18TH JANUARY, 2018<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>Applicant has invoked the supervisory jurisdiction of
the High Court under Order 55 of the High Court (Civil Procedure) Procedure
Rules, C.I 47 for orders in the nature of certiorari to bring to the court for
the purpose of being quashed, one, a ruling of the District Court 1, Kaneshie
dated the 15th May, 2017 which varied the Social Security nomination
by Nicholas Ntow (decd) and two, a ruling of the same District Court, dated the
6th of July, 2017 striking out the motion filed by Applicant to set
aside the order varying the social security contribution beneficiary nomination
by Nicholas Ntow Dartey granted on the 15th of May, 2017.<o:p></o:p><o:p>&nbsp;</o:p>The grounds for seeking certiorari to quash the two
rulings of the District Court, Kaneshie has provided as:<o:p></o:p>a.Lack of jurisdiction to make
the order varying the Social Security beneficiary nomination by Nicholas Ntow
dated the 15th of May, 2017 and the Ruling dated the 6th
July, 2017 striking out the Applicants motion for an order to set aside the
order varying the Social Security Contribution beneficiary nomination by
Nicholas Ntow Dartey (deceased).<o:p></o:p>b.Breach of the rules of
natural justice<o:p></o:p>The
basis for seeking the prerogative writ of certiorari has been provided for in
the affidavit that accompanied the application and sworn to by the Applicant.
Gladys Ntow claim to be a widow and a beneficiary of the Social Security
contribution of the deceased Nicholas Ntow as she was apportioned 70% of the entitlements
of the deceased with 30% allocated to Michael Ntow Dartey.<o:p></o:p><o:p>&nbsp;</o:p>To
Applicant unknown to her and without any notice one Paulina Dartey and Isaac Dartey
filed a motion before the District Court, Kaneshie for an order for variation
of the nominations and which order was granted by the District court. It is the
claim of the Applicant that in so far as her interest under the benefit was to
be affected by the grant of that application before the Magistrate, she ought
to have been placed on notice and the failure had denied her the right to be
heard before her benefit was slashed to 10% and contend that the said order of
the Magistrate is void.<o:p></o:p><o:p>&nbsp;</o:p>It
is the further claim of the Applicant that she took steps by appearing before
the District Court on the 15th of June, 2017 to move a motion to set
aside the order of variation. Her lawyer was short served with two affidavits
in opposition causing the court to adjourn the application to set aside the
order of variation to the 10th of July, 2017. Applicant contend that
the District Court without any recourse to its earlier order of 15th
of June, 2017 struck out her application for want of prosecution. It is her
case that the motion to set aside the order for variation was not slated to be
moved on the 6th of July, 2017 but rather the 10th of
July, 2017 and any purported exercise of jurisdiction by the Magistrate by
striking out the motion without a hearing notice to her was wrong and done
without jurisdiction. <o:p></o:p><o:p>&nbsp;</o:p>To
her no matter the merit of the case as long as she had been denied notice of
the two motions before the District Court it amounts to a denial of the audi alteram partem rule of natural
justice, a breach of which is amenable to be quashed by certiorari. <o:p></o:p><o:p>&nbsp;</o:p>The
Respondent in its affidavit in opposition deposed to by Linda Annan, a
Registrar of the Kaneshie District Court claim that upon the filing of the
motion for variation of the Social Security nominations made by the deceased,
the District Court found out that the deceased was survived by four adult
children and a widow, Doris Dartey without any reasonable provision having been
made for the widow and two of the children who were still in school. The
Registrar of the District Court further claim that the court upon hearing the
application and being satisfied that Doris Dartey was married to the deceased
under the Marriage Ordinance, Cap 127 varied the nominations by reducing the
quantum of the Applicant from 70% to 10% and ensuring that the surviving
spouse, Doris Dartey had 15% and the rest distributed among the children. And
that this was allowed under the National Pensions Act, 2008, Act 766 and
article 22 of the Constitution. It is the case of the Respondent that the
Applicant is not known as a wife and the application for variation was duly
served on the Administrator of Pensions. She however, conceded that the motion
seeking to set asi</main>