K .A. ACQUAYE, J.A.

This judgment is in respect of an appeal lodged against a judgment delivered by a High Court in Accra, in respect of two consolidated suits on 21^st day of January 2010.

In the first suit, the plaintiffs/respondents, through their lawful attorney, issued a writ of summons claiming against the defendants/appellants:.

A declaration of title to a parcel of land containing an approximate area of 0.15 acres being at Kwashieman in Accra as described in the site plan attached.

Perpetual injunction restraining the defendants from interfering with the plaintiffs’ quiet enjoyment of the said land.

Damages for trespass against the defendants.

In the second suit, the plaintiffs/respondents issued a writ claiming in addition to the claims in the first writ a claim for declaration of title to house number B 916/33, Awoshie, Accra.

The attorney of the plaintiff who testified on behalf of his principals tendered the power of attorney created in his favour in evidence which was admitted as exhibit A. He told the court that he went to the Land Title Registry in 2001 with his father’s indenture and site plan to register the subject matter of this suit in the name of his father who died on 14^th August 1990. At the Land Title Registry he was informed that the 1^st defendant had registered the land in the name of the 1^st defendants father Ebenezer Adolphus Sackey. The attorney testified that it was his father Albert Lakotey Quaye who built the house on the land in which he has lived since 1977. He complained that the 1^st defendant had used the house to secure a loan from the 2^nd defendant hence his claims. The attorney admitted under cross-examination that on 19^th March 2004 an auctioneer called Aryee and Court Bailiffs came to eject occupants of an adjoining house but he has since set aside the judgment the 1^st defendant obtained in that suit.

The 1^st defendant testified that his father Ebenezer Adolfus Sackey bought the land from Gbawe

Tawiah in 1960 and tendered a copy of the registered document as exhibit 1. The 1^st defendant testified that the land acquired by his father measured 110 feet by 160 feet and he named some of his boundary owners. He said that his father put up a building on the land in 1968 and after his father’s death in 1984 he and his brother obtained letters of administration to his estate. Later he acquired a Land Title Certificate which he tendered as exhibit 5. He subsequently mortgaged the property to secure a loan from the 2^nd defendant. He denied the claims of the plaintiffs and counterclaimed for a declaration of title to the property contained in his Land Title Certificate, order for recovery of possession and perpetual injunction.

In his judgment the trial judge found that the parties were claiming title to the same piece of land. The trial judge also found that when the defendants went to inspect the land before the mortgage they found people living in one of the houses thereon yet they failed to question those living in the house as to who owned it so the registration by the 1^st defendant was not conclusive evidence of title. The trial judge preferred the evidence of the plaintiff that his father was in possession of the land and started building on it because the 1^st defendant testified that he was in Britain and did not see his father putting up a building on the land. The trial judge held that having been in adverse possession of the land for more than twelve years the plaintiff was entitled to remain in occupation of the land as the 1^st defendant’s right to recover the land had been extinguished by Section 110 of the Limitation Act NRCD 54 of 1972. The trial judge also found that the plaintiffs’ father built on the land in good faith so he was entitled to protection under the Land Development (Protection of Purchasers) Act 2 of 1960. The trial judge thus dismissed the counterclaims of the defendants and granted the claims of the plaintiffs.

Dissatisfied with the judgment the 1^st defendant filed a notice of appeal setting forth eight grounds of appeal.

The 2^nd defendant also filed an amended notice of appeal with the leave of the court on 28^th July 2011 in which the 2^nd defendant listed as the last ground of appeal that “The plaintiff had no capacity to commence the action”. As this ground of appeal may dispose of a substantial part of the matters agued in this appeal, we prefer to deal first with this ground of appeal. The 2^nd defendant/appellant argued in his written submissions that the power of attorney tendered by the plaintiff as exhibit A did not comply with Section 1 of the Power of Attorney Act 549 of 1998 in that it was not witnessed. Counsel for the 2^nd defendant/appellant submitted that the attorney of the plaintiffs did not thus have the capacity to institute the action and his claims should have been dismissed by the trial court. The 2^nd defendant submitted that they challenged the capacity of the plaintiff in their pleadings and under cross-examination yet the plaintiff failed to prove his capacity.

In answer to this ground of appeal Counsel for the plaintiffs admitted that the defendants denied in their statement of defence that the plaintiff had executed a power of attorney in favour of their attorney but contended that the denial was not explicit enough as the word capacity was not used by either of the parties in their pleadings or in cross-examination. Counsel also submitted that in this case the attorney was a brother to the plaintiffs and a son of the deceased so he had an interest in the subject matter of the suit. Counsel submitted that as a beneficiary the court had the power to join him as a co-plaintiff under Order 4 rule 13(3) of the High Court (Civil Procedure) Rules C.I. 47 of 2004 which provides that:

“This rule is without prejudice to the power of the court to order a person who has a beneficial interest to be made a party to the proceedings………….”

Counsel for the plaintiffs /respondents thus urged us to hold that the attorney had capacity to institute this action to ensure that substantial justice is arrived at as stated in the case of Republic vrs High Court (Human Rights Division) Accra, Ex-parte Akita (2010) SCGLR 374 holding 4.

It is settled law that where the issue of capacity to institute an action arises it must first be determined before the merits of the case itself is gone into. Thus in the case of Fosua and Adu-Poku vrs Adu-Poku Mensah (2009) SCGLR 310 it was held that “In considering whether or not the properties in dispute were for the families, the trial judge should have gone forward to also consider, on the assumption that they were family properties, whether or not the plaintiffs had the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties had made that an issue for trial. Capacity to sue was a matter of law and could be raised by a party at any state of the proceedings, even on appeal. It could also be raised by the court suo motto”. See also Sarkodee I vrs Boateng II (1982 – 83) GLR 715.

Thus whether the word capacity was used or mentioned by either party or not, once the plaintiff had pleaded that he had been appointed and given power of attorney to prosecute the claim and this averment has been denied in the statement of defence, the issue of capacity has been raised and the plaintiff is obliged by the rules of procedure to prove it by a preponderance of the evidence. In the case of Asante-Appiah vrs Amponsah (2009) SCGLR 90 it was held that where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merits. In the instant case the defendant challenged the capacity of plaintiff’s right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence………….”. The submission by Counsel for the plaintiff/respondent that the word capacity was not mentioned is neither here nor there as capacity is a technical legal term meaning the official position or function. Being a technical legal term what constitutes a power of attorney has been defined by Section 1 of the Power of Attorney Act 549 of 1998 which states that”

(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 shall attest the instrument.

An examination of the plaintiff’s exhibit A shows that it was not signed by any witness but attested to by a Commissioner of Oaths. This case is on all fours with what happened in the aforementioned case of Asante-Appiah vrs Amponsa (Supra) where the Supreme Court held that

“the parties were agreed that the plaintiff was at all material times during the litigation, resident in England but sued through another person using a power of attorney which was tendered in evidence. That power of attorney was fatally flawed because of non-compliance with the mandatory provision in Section (1) (2) of the power of Attorney Act, 1998 (Act 5449) which stated that “Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument”. It is patent on the face of the power of attorney signed by the donor, i.e the plaintiff that no one signed it as a witness. The Court of Appeal rightly rejected the argument of Counsel for the plaintiff that the Commissioner of Oaths doubled as both the witness and the person before whom the power was executed. In so far as the power of attorney in question was not signed by any witness, it was invalid. Consequently the trial court erred in admitting the power of attorney in evidence. And under the Evidence Act 1975 (NRCD 323) Section 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”. See also Juxon-Smith vrs KLM Dutch Airlines (2005 -2006) SCGLR 438.

From the foregoing the attorney of the plaintiffs having failed to prove his capacity or official position before the court, there was no plaintiff before the court and his case should have been dismissed.

There being no plaintiff before the court the counterclaim of the 1^st defendant cannot be considered.

In the case of Huseine v Moru (2013- 2014) SCGLR page 363, it was held that:

“(1) Since the plaintiff instituted the suit through an attorney under a power of attorney that is defective because it was not witnessed in accordance to section 1(2) of the Power of Attorney Act ,1998 (549), the writ and pleadings and all evidence based upon it is void for want of capacity. Asante-Appiah v Amponsah alias Mensah (2009) SCGLR 90. Followed.

(2) Since the attorney lacked capacity to issue the writ because the power of attorney was void, the defendant also could not pursue his counterclaim. Even though a counterclaim is a separate action from the claim, in the peculiar circumstances of this case, the bottom of the matter had been knocked off for want of capacity. If there was no capacity to sue because of the defective power of attorney, then there was no capacity to defend the action. Consequently, any pleadings served on the attorney would be deemed not to have been properly served on the principal. To the extent that service of the defendant’s counterclaim on the deficient attorney is deemed as no service, evidence given in proof of the counterclaim cannot be allowed to stand”.

Counsel for the defendant/respondent also submitted that the court should join the attorney to the suit as a co-plaintiff because he had an interest in the subject matter of the suit. The Order 4 rule 13)3) of the High Court (Civil Procedure) Rules C.I 47 relied on by Counsel relates to representation of beneficiaries by trustees and is inapplicable in this case. In any case the attorney did not have the capacity to issue the writ in the first place so he cannot be added as a party.

From the foregoing the appeal succeeds and it is upheld as there is no need to go into the other grounds of appeal.