ISHAK ALHASSAN vs. EXCELLENT COOLING TECHNOLOGY LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL (CIVIL DIVISION)
    ACCRA - A.D 2017
ISHAK ALHASSAN - (Plaintiff / Respondent)
EXCELLENT COOLING TECHNOLOGY LIMITED - (Defendant / Appellant)

DATE:  27TH APRIL, 2017
CIVIL APPEAL NO:  H1/37/2017
JUDGES:  V. D. OFOE JA (PRESIDING), A. M. A. DORDZIE (MRS.) JA , M. M. AGYEMANG (MRS.) JA
LAWYERS:  JOLIN OPOKU FOR PLAINTIFF / RESPONDENT
ISAAC AIDOO FOR DEFENDANT / APPELLANT
JUDGMENT

AGYEMANG JA:

 This is an appeal against the ruling of the High Court (Land Division); Accra delivered on the 29th of February 2016.

 

The matters that have given rise to the instant appeal are the following:

 

The plaintiff commenced suit at the court below seeking inter alia, declaration of title and recovery of possession of a parcel of land referred to as Plot Number 14, Dzorwulu, Accra and described more particularly in the writ of summons and a plan attached thereto.

 

Pleadings having closed, and witness statements having been filed, pretrial proceedings commenced. It was at this stage that the defendant/appellant (hereafter referred to as the defendant) filed a notice of motion “for an order to produce and/or disclose the identity of the plaintiff herein or to provide better and further particulars of the plaintiff as existing”. The application was supported by an affidavit in which the defendant’s solicitor deposed that in an earlier suit at the Madina District Court over the same land in dispute, the plaintiff had sued per an attorney who was the same as the attorney in the instant suit. The deponent then alleged that the defendant’s directors were of the belief that the plaintiff (Ishak Al-Hassan) did not exist, and that the power of attorney was simply a “mere window dressing”. Learned counsel for the plaintiff raised a preliminary objection against this, on the ground that the plaintiff had commenced suit and could in law, prosecute its claim by an attorney. The preliminary objection was upheld and the application was dismissed as premature. The court notes did not record any further exchange between the parties or counsel. The plaintiff/respondent (the plaintiff) has in his submission before us, supplied the much-needed information to bridge the gap and it is this: that the appellant objected to the tendering of the plaintiff’s power of attorney on the ground that the photocopy which was attached to the witness statement did not bear the details of the Land Valuation Division of the Land’s Commission’s stamp. Thus did the learned trial judge order that the original power of attorney be produced. At the next adjourned date, the learned trial judge noted that the original power of attorney had been produced and that it was duly stamped. Thus did he admit it into evidence and mark it as exhibit C.

 

Dissatisfied with this ruling of the court, the defendant has brought the instant appeal on four grounds.

 

We reproduce them in extenso:

 

The High Court judge did not adequately consider the grounds of objection raised by the counsel for defendant/appellant with respect to the power of attorney;

 

That the ruling over the power of attorney is against the weight of the evidence;

 

His Lordship misdirected himself on one of the grounds of objection, that is: the plaintiff is not known to the defendant and is therefore non-existent to give a power of attorney to anybody as throughout its stay on the land, only the attorney had presented himself to the defendant/appellant and this occasioned a grave miscarriage of justice;

 

The power of attorney goes to the root of the case and therefore the grounds of objection should have been well looked at by Hs Lordship.

 

The arguments proffered by the defendant/appellant in his submission were clumsily presented and did not seem to be connected to any particular ground of complaint. It seems to us that the said arguments pertain to the admissibility of the plaintiff’s power of attorney. We will therefore, subsume same under the second and third grounds of appeal. We subsume the arguments under Ground (b) because a complaint that a ruling is against the weight of the evidence gives us the opportunity, since an appeal is by way of rehearing, see: Rule 8(1) of the Court of Appeal Rules CI 19 to look at the totality of the record and come to our own conclusions, see: Oppong Kofi and Ors v. Attibrukusu III [2011] 1 SCGLR 176.We also further hinge our consideration on Ground (c), as the matters contained in argument appear to be more closely related to that ground. As there were no arguments in support of the first and last grounds, they are hereby struck out as abandoned.

 

In its submission, the defendant raised the issue of the non-existence of the plaintiff. It was contended, that the plaintiff who was seeking a declaration of title to land he had purportedly purchased from the government, had sued the defendant who had acquired same from one Vida Torto who had fought to regain her land from the government. It was averred that the plaintiff who first brought suit at the Madina District Court had done so per the same attorney in the instant suit, and that the said attorney and no other person had been sighted on the land by the plaintiff. This was the basis of the defendant’s assertion that the plaintiff did not exist, and could therefore not donate a power of attorney. Thus the appellant prayed that the plaintiff be made to present himself before the suit could go on.

 

We must say that we are perplexed by these arguments since they have no basis in law, and we are bewildered that the appeal process can be subjected to such abuse by a party and counsel.

 

We intend to make short work of this appeal by adverting our minds to two pertinent matters. The first is that there is no rule of law or procedure that dictates that a person cannot sue by an attorney unless he has physically presented himself in court. We assert that that there are myriad reasons why a person who deems himself entitled to relief at the court may wish to do so not personally but by an attorney. Such reasons may include the fact that a person may not be resident in this jurisdiction, may be ill, incapacitated or otherwise incapable of subjecting himself to the stress of litigation, or is otherwise unavailable. Thus, no law or rule of procedure compels him to prosecute or defend his case himself. All the law requires is that should he/she decide to seek relief per another person, that he donate a power by executing a power of attorney in accordance with requirements set out in the statute governing powers of attorney. S. 1 of The Powers of Attorney Act of 1998, Act 549(the Act) sets out the following as requirements for execution: that the power of attorney must be duly signed by the donor or person authorized by him in the presence of the donor, and the execution must be duly witnessed by one person if the donor signs himself or by two persons if the donor signs by another duly authorised.

 

Once this is done, the law, which presumes the unavailability of the donor, empowers the donee to execute an instrument with his own signature, and do any other thing in his own name if authorized by the donor, and the document executed and thing done shall be as effective as if done by the donor of the power, see: S. 4 of the Act.

 

The use of powers of attorney to prosecute or defend suits, in the words of Kusi-Appiah JA, in Isaac Osei Sarfo v Kwame Sackey 2011] 31 GMJ 31 “is normal, and a regular feature of the court system… when it comes to civil litigation in the absence of any issue of contempt where the physical presence of the contemnor is required…”

 

The power of attorney that was admitted by the learned trial judge (exhibited on page 120 of the record), complied with the statutory requirements in that it was signed by the donor, it was duly witnessed by one Morgan Gamel of P. O. Box 12097, Accra, it was duly stamped by the Land Valuation Division of the Lands Commission, and was numbered as LVDN/L727A/2015.

 

With regard to the second matter, we are not surprised that the submission of the defendant has been so clumsily presented, for it seems to us that the defendant has confused the issues of admissibility of the document with possibly the weight that may be attached to it, as well as the capacity of a party to bring suit. In our judgment, for the purpose of admissibility, the learned trial judge who at the pretrial stage was involved with admitting the plaintiff’s document in evidence was not in error when he stated that the properly executed power of attorney which had been duly stamped was admissible and proceeded to admit same.

 

Recognizing that this is an interlocutory appeal which has stalled the hearing of the suit at the court below, we cannot but censure the defendant/appellant who has brought such a frivolous process before us, delaying the trial and clogging the calendar of appeals. Regarding this, we firmly associate ourselves with, and echo in our own voices, the sentiments expressed by Akamba JSC in F.K.A. Company Limited and Anor v. Ayikai Akramah II and 4 Ors 2016 101 GMJ 186 at 214: “of late the courts are in undated with ill prepared initiatives by counsel whose only motives are to hit newspaper headlines by any means or be seen to be carrying out the mandates of their unsuspecting and/or misinformed clients or simply for undeserved financial gain. The result is the spate of unwarranted actions, writs, motions, petitions and appeals …”

 

The instant appeal has no merit and is accordingly dismissed.

 

Costs of GH¢ 3,000.00 in favour of the

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