ALS MINERALS-GEOCHEMISTRY vs OWERE MINES LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION),
    ACCRA- A.D 2019
ALS MINERALS/GEOCHEMISTRY - (Plaintiff)
OWERE MINES LIMITED -(Defendant)

DATE:  27 TH JULY, 2018
SUIT NO:  RPC 32/2017
JUDGES:  DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS:  J. B. DANQUAH FOR PLAINTIFF
YAW BOAFO WITH FRANCISCA AYIVOR FOR DEFENDANT
RULING

 

This ruling is in respect of a preliminary legal matter raised by counsel for the defendant.

Counsel for the defendant has taken aim at the witness statement given and filed by one Godfrey Owusu Ansah who described himself as the Chief Accountant of the Plaintiff company. The said statement was given on behalf of the Plaintiff company. Counsel’s objection is that the since the plaintiff company has given a power of attorney to Global Debt Trackers to institute this action on its behalf and the said power of attorney has not been revoked, Godfrey Owusu Ansah as an officer of the company cannot testify on behalf of the company. Counsel cited the case of Kofi Oduro v Cynthia Okyere (2014) 69 GMJ 108 to 109 and submitted that since there is no limitation on the authority of the attorney to act and no provision is made in the power of attorney for the plaintiff to act while the instrument is still in existence, it is wrong for the plaintiff to act through its officer. He therefore invited the court to dismiss the instant action.

 

In his response, counsel for the plaintiff stated that he is opposed to the application. He submitted that when a party appoints an attorney to act in his name and on his behalf, the party does not waive his right to perform any part of the duty assigned to the attorney. He stated that nothing in the Power of Attorney Act, 1998 suggests that when you appoint an attorney then you seize to have the power to act for yourself with respect to what you asked the attorney to do. He stated that if the framers of the Act wanted that situation to prevail they would have provided same in the Act. He submitted that according to Hon Sir Peter Milletin his Encyclopedia of Forms Precedents5th edition, vol 31, power of attorney is part of the law of agency and once an attorney is appointed he becomes the agent of the donor (principal). Consequently, a principal does not waive his right to act when he appoints an agent. Counsel for the plaintiff also submitted that the Kofi Oduro case (supra) must be distinguished from the instant case since in that case the principal limited the duty of the attorney to act only when the principal was out of the jurisdiction and therefore it stands to reason that when the principal was present in the jurisdiction then the attorney could not act for him. Counsel further submitted that the said officer of the company is only acting as a witness for the company and that under sections 59 and 60 of the Evidence Act, 1975 (NRCD 323) he is qualified as a witness. He referred to the case of Isaac Osei Sarfo v Samuel Kwame Sackey (2011) 31 GMJ CA and submitted that notwithstanding that a principal gave a power of attorney, it was proper for the principal to give evidence in the case. Counsel invited the court to dismiss the application.

 

This legal objection was raised after the case management conference when the parties had filed their witness statements. Indeed, it was the plaintiff’s witness statement that triggered this legal objection and since it borders on capacity of the plaintiff the court is amenable to deal with it, as the issue of capacity can be determined at any time during the proceeding. The contentious witness statement is headed as follows:

WITNESS STATEMENT BY MR GODFREY OWUSU ANSAH (ACCOUNTANT) FOR PLAINTIFF

It is provided under paragraphs 1 and 2 of the witness statement as follows:

“1. I am Godfrey Owusu Ansah of H/No. Plot 24 Block ‘K’ Fankyenbra, Kumasi and also of ALS Minerals/Geochemistry Ashanti Region.

2. I am the accounts Administrator of the Plaintiff company and have its consent and authority to make this statement for and on behalf of the company.”

Meanwhile the power of attorney that appointed and authorized Global Debt Trackers to act on behalf of the plaintiff states:

“POWER OF ATTORNEY

BY THIS POWER OF ATTORNEY made this 24th day of October, 2016, ALS MINERALS/GEOCHEMISTRY OF PLOT 1-4, BLOCK ‘A’ BROFOYEDU, KUMASI, do hereby appoint GLOBAL DEBT TRACKERS OF MMROM, ADJACENT MTN OFFICE, KUMASI, as its Lawful Attorney and to do the following acts and things;

1. To demand and receive all outstanding debt or sums of money now or at any time owed (hereinafter the “Debts”) to ALS MINERALS/GEOCHEMISTRY.

2. To institute and defend any legal action to claim in respect of the Debts as well as to execute any agreement or discharge in relation to the recovery of the Debt.

3.To do any lawful acts and things in respect of recovery of the Debt as the attorney may deem fit including the power to engage the authorizer and professionals for the purpose aforesaid as fully and effectually as it may do itself.

4.And hereby agrees and undertakes to ratify and confirm all and whatsoever the attorney shall lawfully do or cause to be done by virtue of the Power herein granted until the same is withdrawn or revoked.”

 

From the witness statement, there is no doubt that Godfrey Owusu Ansah is acting on behalf of the company in his capacity as an officer of the company. It is trite learning that the board of directors, managing director and other top officers normally carry out the functions of a company. They speak and act on behalf of the company. They are the faces and the directing minds of the company. It is in this spirit that Godfrey Owusu Ansah submitted the witness statement on behalf of the plaintiff company. Invariably, it is the plaintiff company which is testifying. Now the profound question is: can the plaintiff testify, notwithstanding the fact that it has an attorney and the power donated to same has not been revoked?

 

In Dzanku v Afalenu and Anor [1968] GLR 792to 794, Kingsley Nyinah J (as he then was) defined power of attorney as:

“It is described as a formal document whereby one empowers another to stand in his stead or represent him for certain specific purposes. It may either be a special power, or else a general power. In the case of the latter, the general power, the person unto whom the power is given, the donee, becomes invested with full power to do such periodic acts as carrying on a business or collecting debts belonging to the donor of the power. Where the power is special, however, the donor of the power confines the donee to the doing of certain specified acts.”

 

In the Encyclopedia of Forms and Precedents (supra) at page 495 the book gives an introduction on

Powers of Attorney where it says:

“A power of attorney is a ‘formal arrangement’ by which one-person (the donor) gives another person (the attorney) authority to act on his behalf and in his name. it is a type of agency, and the law relating to powers of attorney forms part of the general law of agency.”

Indeed, a principal agent-relationship is established under a power of attorney, where the agent is empowered to act on behalf of the principal within the boundaries of the instrument. The terms of engagement are expressed within the content of the Power of Attorney. In the Kofi Oduro v Cynthia Okyere case (supra), the content of the Power of Attorney showed that the respondent as donor had limited the power and scope of the donee in the performance of his duties to only when the donor was absent. Part of the document stated:

“To be my lawful attorney and who shall in my name and on my behalf, continue any transaction or prosecution of the Civil Matter, whenever I am not in, until the matter is finally disposed of …”

 

Consequently, the Court of Appeal held that when the Respondent opened his defence in the trial he only exercised the right he had reserved to himself and nothing more. Thus, the respondent acted in accordance with the terms of the Power of Attorney when he testified, as per the content of the document he had reserved to himself the right and power to prosecute the civil matter whenever he was in the country. In the instant case, I have looked at the content of the Power of Attorney and the document shows clearly that the donee (Global Debt Trackers) was given unlimited powers relating to the institution and defence of any legal action for recovery of debt on behalf of the plaintiff herein. The document did not limit the power and scope of the donee in respect of any legal action. It did not reserve in the donor the right to prosecute the matter whenever it deemed necessary. It is therefore my considered opinion that so long as the Power of Attorney has not been revoked, it is only a representative of the donee who can testify on behalf of the plaintiff. A representative of the plaintiff can only testify as a witness but not on behalf of the plaintiff. The notion that a power of attorney does not derogate from the principal the power to act for himself presupposes that the principal can reserve the right to act under the terms of the instrument or revoke the power of attorney to enable him to act.

 

Counsel for the plaintiff cited the case of Isaac Osei Sarfo v Samuel Kwame Sackey (supra) in a bid to persuade the court that a donor of Power of Attorney can testify for himself in his own at a time when the power subsists. I have taken the liberty to read the case and with utmost respect to counsel, his interpretation of the case is at odds with the holding of the court. In the Isaac Osei Sarfo case, the donor was compelled to testify as a witness when the authority of his agent (the donee) was challenged. It is his testimony that led the court to conclude that his father had the relevant capacity to sue for and on his behalf. In the instant case, the conclusion would have been different if Godfrey Owusu Ansah had submitted a witness statement as a witness of the plaintiff. It would also have been different if the plaintiff had retained the right to act in the Power of Attorney. It is clear from the foregoing that the said Godfrey Owusu Ansah is not clothed with the capacity to testify on behalf of the plaintiff in the light of the subsisting Power of Attorney. The result is that his witness statement is null and void. Counsel for the defendant has invited the court the dismiss the entire writ due to the plaintiff representative’s lack of capacity to testify on behalf of the plaintiff. I am unable to accept this invitation since doing so with offend the objectives of our civil procedure rules which is grounded on the ethos of speedy and effective justice devoid of multiplicity of disputes. See Order 1 rule 1(2) of CI 47.

 

For the foregoing reasons, I strike out the witness statement filed on behalf of the plaintiff on 9/11/2017. Leave is granted to the attorney of the plaintiff to file its witness statement within 7 days from today is it so wish.

There will be no order as to costs.