CHARLES BASOA @ KWABENA ADOMAKO & MR. ADAMS TAWIAH vs. NANA DUFFOUR II, CHIEF OF ABASE
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2016
CHARLES BASOA @ KWABENA ADOMAKO AND MR. ADAMS TAWIAH - (Defendants/Appellant)
NANA DUFFOUR II, CHIEF OF ABASE - (Plaintiff/Respondent)

DATE:  27TH JANUARY, 2016
CIVIL APPEAL NO:  H1/19/2015
JUDGES:  E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
LAWYERS:  COUNSEL FOR DEFS/APPELLANTS:E. N. POKU PRESENT
COUNSEL FOR PLFF/RESPONDENT:A. B. DONKOR PRESENT
JUDGEMENT

 

AYEBI, JA

In his writ of summons issued on 26th July 2013, the plaintiff/respondent claimed against the defendants/appellants the following reliefs:

(a) A declaration that the building being put up by the defendants at the open space at Abase is unlawful, illegal, unauthorized and dangerous.

(b) General damages for trespass.

(c) Perpetual injunction restraining the defendants, the agents, assigns, servants, labourers or any other person who derives title from putting up any building at the open space at Abase.

 

Upon the service of the writ of summons and statement of claim on the defendants, the plaintiff applied for an order of interlocutory injunction to restrain the defendants from continuing with the construction of the building at the open space at Abase pending the determination of the suit.

 

On 27th June 2014, the High Court granted the motion in the interest of public safety and restrained the defendants, their agents, privies and all who claim interest or title through them accordingly. This appeal by the defendants is against the said order of 27th June, 2014.

 

The grounds of appeal are that:

(a) The High Court Judge did not exercise his discretion judiciously.

(b) The High Court Judge erred by relying on an affidavit filed on the 23rd June, 2014 and served on the defendants a day before the said ruling, and did not give the defendants the opportunity to respond to the same.

(c) Further grounds of appeal shall be filed upon receipt of the record of proceedings. But the defendants/appellants did not file any further grounds of appeal.

 

Of the two grounds of appeal, counsel for the defendants/appellants (referred to as defendants) argued only ground (a) but was silent on ground (b). The said ground (b) is deemed abandoned and struck out. Counsel for the defendants however proceeded to raise for the first time in his written submission and argued, the issue of capacity of Nana Adusei Poku, Sanaahene of Abase as the lawful attorney of the plaintiff/respondent (plaintiff for short).

 

At page 47 of the record of appeal is a copy of a purported power of attorney executed on 15th November 2013 in the United Kingdom by the plaintiff in favour of Nana Adusei Poku. The power of attorney authorized Nana Adusei Poku to represent the plaintiff in all Stool Lands and indeed Court cases. Based on that power of attorney, Nana Adusei Poku on 27th January, 2014 deposed to the affidavit in support of the motion on notice for an order of interlocutory injunction. The case of the defendants against the power of attorney is that it is not valid in terms of the Powers of Attorney Act, 1998 (Act 549) of Ghana.

 

As I noted counsel for defendants raised the issue of the capacity of plaintiff’s attorney for the first time in his written submission only. This is inspite of the fact that the purported power of attorney had been on the record before the motion for interlocutory injunction was heard and determined by the trial court.

 

It is common knowledge that an appeal as a whole is regulated by law, in this case, the Court of Appeal, Rules 1997 (C.I. 19) as amended. In rule (5) of C.I. 19, it is required of an appellant to set out concisely and under distinct heads the grounds which he intends to rely on at the hearing of the appeal without an argument or narrative and number the grounds consecutively. By failing to raise the issue of want of capacity in plaintiff’s attorney, counsel for defendants has violated this rule.

 

It is also provided in rule (8) that, an appellant shall not, without leave of the court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the applicant to amend the grounds of appeal on the terms that the Court thinks just. Again counsel for the plaintiff raised and argued the issue of the plaintiff’s attorney’s capacity in violation of this rule also.

 

Inspite of the above rules, it is again provided in rule (9) that, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on a ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground. What this rule (9) means is that, the Court has the discretion whether or not to allow the appellant, in this case the defendants, to argue the issue of plaintiff’s attorney’s capacity which has not been made a ground of appeal at all in the notice of appeal. In the exercise of its discretion, the Court is guided by the facts and circumstances of each case provided the conditions laid down in the rule are satisfied. This condition is that the respondent should have had the opportunity to respond to issue raised outside the grounds of appeal in the Notice of Appeal.

 

These provisions of the Rules of Court apart, the general rule in appellate practice is that if a party deliberately fought his case on one question of law and lost, he cannot afterwards on appeal, fight it on other grounds which were originally open to him at the trial on the state of the pleadings and evidence. But as noted in Golightly vrs Ashrifi [1961] GLR 28 at 31Only in the most exceptional circumstances would their Lordships allow a point to be taken before them which had not been taken in the Court of Appeal”.

 

Some of the circumstances considered by the courts as exceptional are where the appellant was taken by surprise; where an act or contract is made illegal by statute as in Asare vrs Brobbey [1971] 2 GLR 331; where the issue raised is jurisdictional as in Eboe vrs Eboe [1961] GLR 324, SC; where the trial is a nullity as in Mosi vrs Bagyina [1963] 1 GLR 337; where the judgment by law is a nullity, the agreement of the parties to abide by it notwithstanding – Chief Yaw Damoah vrs Chief Kofi Tabil [1947] 12 WACA 167 and lastly where the point sought to be raised for the first time is a substantial one which can be argued because no further evidence need to be led as in Abinabina vrs Enyimadu [1953] 12 WACA 171.

 

In the instant case, the validity of the power of attorney, the source of Nana Adusei Poku’s authority to depose to the affidavit in support of the motion for an order of interlocutory injunction has been challenged. The challenge is a substantial one as it goes to the root of the motion. Although it was not raised in the trial court, as held in Fosua & Adu-Poku vrs Dufie (dec’d) & Adu-Poku Mensah [2009] SCGLR 310 at holding (6).

 

“… Capacity to sue was a matter of law and could be raised by a party at any stage of the proceedings, even on appeal. It could also be raised by the court suo motu”.

 

This is because a challenge to the capacity of a person to issue a writ or initiate any judicial process is a challenge to the validity of the writ or the process. Thus where a person’s capacity to initiate proceedings is in issue, it is no answer to give that person a hearing on the merits even if he has a cast-iron case: see Sarkodee II vrs Boateng II [1982/83] GLR 715 applied in Yorkwa vrs Duah [ 1992/93] 1 GBR 279.

 

In the Republic vrs High Court, Accra, Ex parte Aryeetey (Ankrah Interested Party) [2003/04] 1

SCGLR 398, at page 405, Kpegah JSC expressed himself of the issue of capacity this way:

 

“Any challenge to capacity therefore puts the validity of a writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with the merits so that if the axe falls, then the defendant, who is lucky enough o have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see Akrong vrs Bulley [1965] GLR 469, SC”.

 

In view of these propositions on the issue of capacity, I am obliged to determine as a preliminary matter the propriety of the challenge to Nana Adusei Poku’s authority to depose to the affidavit in support of the motion for an order of interlocutory injunction. If the challenge is found tenable, we will have no obligation to consider the merits of the case of any of the parties.

 

At page 47 of the record of appeal is a copy of the power of attorney donated by the plaintiff to Nana Adusei Poku, Sanaahene of Abase. The power of attorney was signed by the plaintiff himself and sworn before Katherine Angel, a solicitor who doubled as a Commissioner of Oaths in the firm of Graham Bash & Solicitors, 26 Watisfield Road, London. The power of attorney was therefore not prepared in Ghana and by a Ghanaian solicitor.

 

In Ghana, for a power of attorney to be valid, it must conform with the provisions of the Powers of Attorney Act 1998 (Act 459). On the execution of a power of attorney, it is provided in section 1 of the Act thus:

 

Section 1(1):   An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorized by the donor in the presence of the donor.

(2) Where the instrument is signed by the donor of the power, one witness shall be present and attest to the instrument.

 

On the face of the power of attorney in the instant case, it was signed by the donor himself but it was not attested to by any witness as required by s.1(2) of the Act. In section 40 of the Evidence Act, 1975 (NRCD 323) it is provided that:

 

“The law of a foreign state is presumed to be the law of Ghana”.

 

That being so, in the absence of any evidence to show that the power of attorney prepared in England was not in accordance with the law of the United Kingdom, the power of attorney must be in conformity with the law of Ghana. This is because the power of attorney is meant to be used in all court cases in Ghana. Therefore unless the power of attorney satisfies the law of Ghana, it cannot be accepted as valid by the courts in Ghana. This is the challenge counsel for defendants has raised in his written address to the reliance on the power of attorney by Nana Adusei Poku as his source of authority to depose to the affidavit in support of the motion for an order of interlocutory injunction.

 

In defending the power of attorney, counsel for the plaintiff submitted that Graham Bash & Solicitors are both solicitors and Commissioner for Oaths presumably but Katherine Angel signed as a witness. We are not impressed by that explanation. From the face of the document, under the signature of Katherine Angel is stated “Solicitor/Commissioner For Oaths”. It is very patent that Katherine Angel is both a Solicitor for the plaintiff and a Commissioner for Oaths but not a witness. Indeed it was before Katherine Angel that the plaintiff swore. The power of attorney as it appears is not and cannot be recognized as valid under the laws of Ghana.

 

In Asante-Appiah vrs Amponsa @ Mensah [2009] SCGLR 90, the power of attorney the plaintiff gave his attorney was tendered in evidence. The Court of Appeal rejected the power of attorney as invalid. On appeal to the Supreme Court by the plaintiff, the court held that:

 

“It is patent on the face of the power of attorney signed by the donor that no one signed it as a witness. The Court of Appeal rightly rejected the argument of counsel for the plaintiff that the Commission for Oaths doubled as both the witness and the person before whom the power was executed. There is no legal or statutory basis for that argument. It would be observed that the provision is couched in imperative terms. In so far as the power of attorney in question was not signed by any witness, it was not valid”.

 

In a more elaborate language, Kanyoke JA stated in Mohammed S. Bello vrs Joseph A. Nyarko [2011] 86 GMJ at 98 that:

 

“a proper and valid power of attorney must therefore be attested to by at least one witness present when the donor signed it. There is nothing on the face of Exhibit A to show that it has been attested to by at least one witness. The Notary Public cannot in law perform the dual role of a witness and a Notary Public or Commissioner of Oaths to the instrument. In effect I hold that Exhibit A is null and void for being offensive to Act 549 and void for not being in accord with section 1(2) of the Power of Attorney Act, 1998 (Act 549). Exhibit A therefore has no legal effect whatsoever. It is null and void and could not in law clothe Ernest Amoo-Dodoo with authority to initiate this action”.

 

In this case as I noted the suit was not initiated by the attorney based on the power of attorney in question. Rather based on the flawed power of attorney, Nana Adusei Poku deposed to the affidavit in support of the motion for an order of interlocutory injunction as the lawful attorney of the plaintiff/applicant in the motion. The power of attorney being invalid, it should not have been admitted to clothe Nana Adusei Poku with the capacity to depose to the affidavit. This court as an appellate court with the power to re-hear the suit, has the power to reject the said power of attorney because it did not qualify as a legal piece of evidence.

 

In the Asante-Appiah case (supra), in upholding the rejection of the power of attorney by the Court of Appeal, the Supreme Court held that:

 

“Consequently, the trial court erred in admitting the power of attorney in evidence. And under the Evidence Act, 1975 (NRCD 323) s.8, the appellate court was entitled to reject evidence which ought to have been rejected at the trial court even if there was no objection to such evidence when it was first tendered. To the extent that the power of attorney was invalid, it could not have provided legitimate basis on which the person specified in the power of attorney could have prosecuted the case on behalf of the plaintiff. In effect, that person, the holder of the power of attorney, had no capacity with which to prosecute the case – Juxon-Smith vrs KLM Dutch Airlines [2005/06] SCGLR 438; Ussher vrs Kpanyinli [1989/90] 2 GLR 13 and Amoah vrs Arthur [1987/88] 2 GLR 87 cited”

 

According to Order 19 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) on “Applications”, it is stipulated in rule 4 that “Every application shall be supported by affidavit deposed to by the applicant or some person duly authorized by the applicant. It was the power of attorney which authorized Nana Adusei Poku to depose to the affidavit in support of the motion. This court having found the said power of attorney to be invalid, Nana Adusei Poku had no valid authority to depose to the affidavit in support of the motion. The said affidavit in support of the motion is therefore null and void.

 

And since there must be a valid affidavit in support of the motion for an order of interlocutory injunction to be valid under Order 25 of C.I. 47, but the deponent lacked the capacity to depose to the affidavit, the motion has thereby been rendered invalid, null and void. Consequently, the proceedings and the ruling on the motion is null and void – see Akrong vrs Bulley [1965] GLR 469 at holding 1.

 

Although the issue of the validity of the power of attorney was not raised at the trial court and was also not made a ground of appeal in the Notice of Appeal, we think it proper to determine and uphold it for the following reasons: the issue is a substantial one which affects the power of the trial court to assume jurisdiction over the motion; the issue is patent on the face of the document that the provisions of Act 549 have not been complied with; no court has the power to dispense with the compliance of a statute by any litigant; the issue required no further evidence before the court could justifiably determine it and lastly, the issue of the invalidity of the power of attorney upon which Nana Adusei Poku relied is unanswerable – see Akufo-Addo vrs Catheline [1992] 1 GLR 377 an Attorney-General vrs Faroe Atlantic Co. Ltd. [2005/06] SCGLR 271.

 

With the conclusion I have reached, there is no need to determine the merits of the grounds of the appeal. We allow the appeal on the ground of law. The conclusion we reached herein in our view should not empower the defendants/appellants to resume the construction of the building on the land. By the powers conferred on this court in Rule 31(e) of C.I. 19, we order the parties to make themselves available at the trial court for the suit to be expeditiously determined. And while the suit pends, we ask the defendants/appellants not to proceed with the construction of the building.

 

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