IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
HAROLD WILSON ACQUAYE - (Plaintiff/Appellant)
MRS. ROSE ADJEI AND ERIC ENUSON ADJEI -(Defendants/Respondents)
DATE: 24 TH MAY, 2018
CIVIL APPEAL NO: H1/133/19
JUDGES: V. OFOE JA, B. ACKAH-YENSU JA, G. S. SUURBAAREH JA
AURELIUS AWUKU FOR DEFENDANT/RESPONDENT
FRANK ASAMOAH FOR PLAINTIFF/APPELLANT
BARBARA ACKAH-YENSU (Ms) JA
This is an appeal by Plaintiff/Appellant against the judgment of the High Court, Accra dated 8th June 2015. The writ of summons together with the statement of claim dated 6th August 2012 were issued at the instance of the Plaintiff/Appellant (hereafter referred to simply as “Plaintiff”) through his Lawful Attorney, Joycelyn Sylvia Acquaye. The Plaintiff’s claim against the Defendants was for:
1. Declaration of title to all that piece of land at Amrahia, Accra, registered as No.019/Z13983/1 comprised in Land Certificate No. TD. 2749 covering an approximate area of 0.365 acre or 0.148 hectare (hereinafter called the Land);
2. Recovery of possession of the land;
3. Damages for trespass; and
4. An injunction to compel the defendants to forthwith remove all buildings structures and things that they or either of them have introduced on to the Land and or to restrain the defendants whether by themselves or their privies, servants, agents, workmen or otherwise from entering or remain on the Land or any part thereof or carrying on building or any other operations thereon or in any other way interfering with the Appellant’s title, ownership, possession or enjoyment thereof”.
The evidence-in-chief of the Plaintiff at the trial, was given by his Attorney. At page 56 of the Record of Appeal (ROA), the Plaintiff’s Attorney stated thus: “I have the authority of the Plaintiff to speak on his behalf in Court”. The Attorney then tendered in evidence a Power of Attorney issued in Italy and notarized by one Angelo Chianale, a Notary Public of Torino– Italy. The said Power of Attorney is found on page 20 of ROA and marked as ‘Exhibit “A”’. The Power of Attorney was signed by the Plaintiff donor and the Notary Public. The fact of the execution of the Power of Attorney not witnessed by any person was the subject of cross-examination by Counsel for the Defendant/Respondents (also to be referred to hereafter as “Defendants”) at page 58 of ROA. This appeal, in substance, turns on the validity and effect of this Power of Attorney.
In their statement of defense, the 2nd Defendant counterclaimed for:
a. Declaration of title to all that piece or parcel of land situate lying being at Amrahia, Accra and containing an approximate area of 0.855 acre or 0.346 hectare more or less and bounded on the North-West by Proposed Road measuring 181.4 feet more or less and on the North-East by Lessor’s land measuring 200.6 feet more or less on the South-East by Lessor’s land measuring 187.3 feet more or less and on the South-West by Lessor’s land measuring 203.4 feet more or less which said piece or parcel of land is more particularly delineated on the plan attached hereto and thereon shewn pink;
b. Damages for trespass;
d. Any further order or orders that the court may deem meet”.
The 1st Defendant and three other witnesses testified for the Defendants. Both the Plaintiff and the Defendants tendered in evidence documents to prove their root of title to the said land. The trial High Court gave judgment for the Defendants and upheld the counterclaim of the 2nd Defendant. This is what the Plaintiff is aggrieved about.
The learned trial Judge relied on section 1 (2) of the The Power of Attorney Act, 1998 (Act 549) and the Supreme Court case of Asante-Appiah v Amponsa Alias Mansah  SCGLR 90 and held that the Power of Attorney relied on by the Attorney of the Plaintiff in this case was invalid and could not confer capacity on the Attorney to prosecute and conduct Plaintiff’s case against the Defendants as same was not witnessed by any other person save the Notary Public. The Learned Judge at page 132 rendered himself thus;
“Without spilling much ink on this issue of invalid Power of Attorney therefore, as the legitimacy of the Power of Attorney, upon which Jocelyn Silvia Acquaye was or had been eroded by this defective nature of the Power of Attorney, which is not in conformity with the Power of Attorney Act  Act 549 ……… whatsoever evidence given by the said Joycelyn Silvia [sic] Acquaye [the Attorney] as the main prosecutor and conductor of the Plaintiff’s case against the Defendant together with any other witness(s) called by the said Joycelyn Acquaye, to support the Plaintiff’s case, also became eroded and gone with the winds and taken as if the Plaintiff did not prosecute and conduct his case against the Defendant”.
The Learned Judge then went on to consider the counterclaim of the 2nd Defendant and concluded in his judgment at page 132 of ROA that:
“It must be noted that, in any case, the defendants filed a counterclaim against the Plaintiff and I intend to deal with this”.
He further held (see pages 135-136 of ROA) that:
“I am sufficiently persuaded that the Defendants have led credible evidence to prove that the disputed Land belongs to the 2nd Defendant.
On the balance of probability therefore,
1) I am of the opinion that the Defendant is entitled to their Counter-claim.
2) I therefore adjudge the 2nd Defendant in particular to be entitled to the Land, described in relief (a) of the Counter-claim.
3) Generally, the Defendant led no evidence of any trespass on the part of Plaintiff as far as the disputed land is concerned.
4) The Plaintiff’s claim against the Defendant fails.
5) I award cost of GHC4, 000.00 in favour of the Defendant and against the Plaintiff”.
The Plaintiff, dissatisfied with the judgment of the trial Court, filed a Notice of Appeal dated 10 July 2015 against same. The grounds of appeal as found on page 137 of the ROA are:
i. The judgment was against the weight of evidence.
ii. The learned trial judge erred in holding that the Power of Attorney granted by the Plaintiff was invalid.
iii. Additional grounds of appeal to be filed on receipt of the record of proceedings”.
An additional ground of appeal was subsequently filed on 10 April 2017 and states as follows:
“ That, the leaned judge erred by granting the 2nd Defendant/Respondent’s Counterclaim against the Plaintiff when he had held that Plaintiff’s Attorney have no capacity to institute the action consequent upon his declaration of invalid Power of Attorney”.
Counsel for the Appellant filed his written submissions on behalf of the Plaintiff on 4th September 2017. In the written submissions, Counsel abandoned ground (2) of the grounds of appeal and agreed with the trial Court that the said power of attorney was defective and did not meet the requirement of the law. The Defendants did not file any written submissions.
As aforesaid, Counsel for Plaintiff conceded in his written submissions that the Power of Attorney tendered in evidence by the Plaintiff’s Attorney undoubtedly revealed that no one witnessed the Power of Attorney executed by the Principal as required by Section 1 (2) of the Power of Attorney Act 1998 (Act 549). Counsel hence submitted that; “with regards to binding judicial precedent on the subject, to wit, the Supreme Court’s decision in Asante-Appiah vrs Amponsah Alias Mensah  SCGLR 90; and Huseini vrs Mory [2013-2014] SCGLR 363, the trial Judge cannot be faulted for dismissing Plaintiff’s claim on grounds of defective power of attorney”. Ground (2) of the appeal is therefore struck out as abandoned.
I will now discuss ground (3): “That the leaned trial Judge erred by granting the 2nd Defendants/Respondent’s counterclaim against the Plaintiff when he had held that Plaintiff’s Attorney have no capacity to institute the action consequent upon his declaration of invalid Power of Attorney.
It is the case of the Plaintiff that the learned trial Judge erred when despite dismissing the Plaintiff’s claim on grounds of a defective Power of Attorney, which was used in commencing and prosecuting the action, went ahead to consider the merits of the 2nd Defendant’s counterclaim. The Plaintiff contends that it was wrong in law for the learned Judge to proceed to review the evidence of 2nd Defendant on her counterclaim and come to the conclusion that the 2nd Defendant had been able to prove her counterclaim. So, what is the position of the law on this matter? Section 1 (2) of the Powers of Attorney Act, 1998 (Act 549) provides that: “Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument” . Analysis of the application of this provision in recent time to similar cases can be seen in: Fosua & Adu-Poku v Adu-Poku Mensah  SCGLR 310, in which case the Supreme Court unanimously held in holding (6) that, “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”. In the same case, Ansah JSC @ 338 observed; “The Supreme Court considers the question of capacity in initiating proceedings as very important and fundamental and can have catastrophic effect on the fortunes of a case”. Similarly, Dotse JSC on the same issue of capacity submitted at page 344 of the report that, “Want of capacity is a point of law which, if raised, goes to the root of the action”. Thus capacity to sue can determine the direction of a case.
The relationship of this issue to an invalid Power of Attorney was determined in Asante-Appiah v Amposa Alias Mansah  SCGLR 90. The issue of the validity of a power of attorney and its effect on the capacity of the donee to sue on behalf of the donor was clearly stated by Brobbey JSC as follows: ‘To the extent that the power of attorney was invalid, it could not have provided legitimate basis on which Nana Kwasi Twum Barima [the donee] could have prosecuted the case on behalf of the plaintiff. In effect, Nana Kwasi Twum Barima [the donee] had no capacity with which to prosecute the case”.
Hence, as was rightly held by the learned trial judge, an invalid power of attorney cannot confer capacity on the purported donee to sue on behalf of the donor as was done is the instant. Therefore, the Attorney lacked capacity to sue.
On the effect of an invalid power of attorney on the evidence given by the donee at trial, it was held in the Asante-Appiah case as follows:
“The evidence given by Nana Kwasi Twum Barima was inadmissible to the extent that he had no capacity to testify as he did.
The plaintiff himself never testified in the action. In view of the conclusion that the power of attorney was invalid and that the one who relied on it had no capacity and therefore his evidence was inadmissible, the plaintiff was left in a situation as if no-one represented him” (emphasis mine).
From the above authorities as well as section 1 (2) of the Evidence Act (supra), a power of attorney in favour of a donee is invalid if same is not witnessed by any one, and therefore the effect on the evidence given by a donee of an invalid power of attorney is that the said evidence is inadmissible. And if wrongly admitted by a trial court, an appellate court has the power to exclude same on appeal. The question which remains is what happens if there is a counterclaim as in the instant case?
We are of the view that the learned trial Court Judge rightly dismissed the evidence of the Appellant based on the invalidity of the power of attorney upon which the Attorney relied on to institute the action against the Defendants for want of capacity. However, the learned judge also proceeded to consider and evaluate the evidence of the Defendants on the counterclaim, and gave judgment to the 2nd Defendant.
The Appellant contends that since the Power of Attorney that was used to cause the writ and statement of claim to issue against the Defendants was rightly held defective and invalid, the subsequent representation and evidence was equally null and void. He contends further that the trial Judge should have dismissed the whole case, and that it was wrong for the trial Judge to have proceeded to consider the counterclaim of the Respondents and to hold for them.
What is the law regarding counterclaim? Rules 1 and 3 (a) of Order 12 of the High Court (Civil Procedure) Rules, 2004 (C.I.47) respectively provide: Rule 1 (1) A defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in an action in respect of any matter, whenever and however arising, may, instead of bringing a separate action, make a counterclaim in respect of that matter. (2) The defendant shall add the counterclaim to the defence. Rule 3: Without prejudice to the general application of Order 11 to a counterclaim and a defence to counterclaim or to any provision of it which applies to either of those pleadings specifically, (a) rule 1 of this Order shall apply to a counterclaim as if it were a statement of claim and the defendant making it a plaintiff.
The authorities separate circumstances where a counterclaim may be proceeded on after the claim of the Plaintiff is dismissed from the peculiar circumstances where after dismissing the claim of the Plaintiff, the counterclaim must also be dismissed and not proceeded on.
In Huseini v Moru [2013-2014] 1 SCGLR 363, the Supreme Court speaking through Baffoe-Bonnie JSC highlighted the distinguishing feature of the Asante-Appiah v Amponsa case (supra). At page 372, Your Lordship stated that: ‘The distinguishing feature of this case and the Asante-Appiah case is that whilst in this case the plaintiff issued his writ per his attorney, in the Asante-Appiah case, the attorney only gave evidence on behalf of his principal who had issued the writ. So while in the Asante-Appiah case the pleadings and the evidence of other witnesses could be saved, in the case before us the writ and pleadings and all evidence based upon it is void for want of capacity.’
We find therefore that the writ, the pleadings and all the evidence adduced in the instant case is void for want of capacity. This ground therefore succeeds.
Regarding ground (1); “The judgment is against the weight of evidence; the law is trite that when an appeal is mounted on the ground that the judgment is against the weight of evidence adduced at the trial, the appellate court is empowered to re-examine the entire record to ascertain whether the court’s decision is supported by the evidence adduced or not.
As aforesaid, the learned trial Judge opined that the testimony of the Plaintiff’s Attorney had been “eroded and gone with the winds and taken as if the Plaintiff did not prosecute and conduct his case against the Defendant”, as a result of the defective Power of Attorney. The trial Court however stated further thus;
“As the Plaintiff’s so-called Lawful Attorneys, together with Plaintiff’s witness testimonies, have been eroded as a result of defective Power of Attorney that Joycelyn Silvia Acquaye the Plaintiff’s Attorney held, I am careful in using whatever documentary evidence that the Plaintiff might have tendered in evidence to debunk the defendant’s case. But be that as it may, the Plaintiff failed to seriously challenge the root of title of the disputed land of the defendant. The Plaintiff failed to confront the defendant with the deed of conveyance allegedly obtained from the Nii Amoah Okromansah family”.
From the authorities, it is clear that the proper and rightful thing to have be done in the instant case by the learned trial Judge was to strike out both the claim and the counterclaim. As already noted in the instant case, the Plaintiff sued per his Attorney. And from the inception of the case to its final determination, the Plaintiff had been in Italy. He did not testify in the suit. The case was prosecuted and conducted by the Attorney who did not have the capacity to do same or represent the Plaintiff. Therefore, there was no service on the Appellant of the counterclaim and any pleadings of the 2nd Defendant.
The trial Judge by his judgment had expunged the evidence of the Plaintiff’s Attorney, but since the writ was issued by the Attorney, the whole of Plaintiff’s case was voided for want of capacity; Huseini vrs Moru (supra). And even though a counterclaim is a separate action from the claim, in the peculiar circumstances of the instant matter, the matter had been struck out 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 either. Consequently, any pleading 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 and should be struck out.
Clearly, it was wrong for the trial Judge to have gone ahead, after dismissing the Plaintiff’s case, to proceed to evaluate the Defendant’s case. The learned Judge set aside the evidence adduced by the Plaintiff and yet evaluated same to reach his conclusion.
In the circumstances this court cannot re-evaluate evidence that has been struck out.
Ground (3) is therefore struck out as incompetent.
In summation, the appeal succeeds and the judgment of the High court dated 6th August 2012 is hereby set aside.