IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2014
NANA ABABIO - (Plaintiff)
ESTHER BOAHENE & ANOTHER - (Defendants)
DATE: 23RD JANUARY, 2014
SUIT NO: OCC/59/12
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWAKU AYENSU OPARE ADDO, ESQ FOR THE PLAINTIFF
AUGUSTUS ANANE-QUEBAH ESQ FOR THE DEFENDANTS
The Plaintiff, suing per his lawful attorney, Isaac Asuming, is seeking a declaratory relief to the effect that there is a binding contract between him and the 1st Defendant. He is further seeking an order directing the 2nd Defendant to remove the blockage on Plaintiff’s accounts and release an amount of thirty-two thousand Ghana Cedis (GH¢ 32,000.00) to the Plaintiff as well as loss of use of Plaintiff’s money.
The Defendants also counterclaimed for these reliefs;
i. A declaration that the Plaintiff fraudulently misrepresented facts known to him in order to convince the Defendants to purchase the vehicle.
ii. A declaration that Defendants are not bound by the agreement for the purchase of the vehicle, same having been vitiated by fraud.
iii. A declaration that the Plaintiff was under a legal obligation to make an honest disclosure of the state of the vehicle he was selling.
iv. A declaration that the Plaintiff has acted fraudulently and therefore cannot benefit or profit from his fraud.
v. Damages for subjecting 1st Defendant to inconvenience and great financial expense in paying for transportation.
vi. Damages for exposing 1st Defendant to insults, defamatory threats and harassment from Plaintiff’s lawyer
vii. Compensation for subjecting 1st Defendant to inconvenience
viii. An order that Plaintiff shall bear the full cost incurred by defendants in defending the matter.
ix. Other reliefs as this honourable court shall deem fit in the circumstances.
After an unsuccessful pre-trial, six issues were set down for trial. These are:
1. Whether or not the Toyota Highlander was fit for the purpose for which the 1st Defendant required it at the time of purchase?
2. Whether or not the Plaintiff had made fraudulent misrepresentations to the 1st Defendant about the state of the vehicle?
3. Whether or not there was a binding contract between Plaintiff and 1st Defendant for the purchase of the vehicle?
4. Whether the Plaintiff has a cause of action against the 2nd Defendant?
5. Whether or not the Plaintiff is entitled to his claims?
6. Whether or not the 1st Defendant is entitled to her counterclaim?
At the commencement of the evidence of the Plaintiff, his lawful attorney tendered in evidence a power of attorney dated 26/02/2013 and stamped on 27/02/2013 in support of his capacity to sue as exhibit A. This document was massacred in cross-examination by counsel for the Defendants. His position was that the suit itself was filed on 09/07/2012 and preceded the date Isaac Asuming was made the donee of the power of attorney.
For the Defendants, counsel submitted that the Plaintiff’s attorney was not clothed with the capacity to institute the action against the Defendants at the time he did in view of the time exhibit A was prepared and executed. He cited and relied on the case of Akrong v Bulley (1965) GLR 472 SC.
The Plaintiff’s lawful attorney insisted during cross-examination that he had capacity to institute the action and that exhibit A had been validly made. Counsel for the Plaintiff did not touch on this important point in his well-researched address. I think he deserves a credit for his input.
In a nutshell, “capacity to sue” can be defined as the right or ability to institute and maintain an action in a court of competent jurisdiction. Order 4 rule 1(1) of the High Court (Civil Procedure) Rules, 2004 provides that subject to the rules, ‘any person may begin and carry on proceedings in person or by a lawyer.’ Thus, a person who has a right to sue and maintain an action may empower another person to stand in his stead. The legally acceptable way of doing so is by a written power of attorney. A Power of Attorney was defined in the case of Dzanku v Afalenu (1968) GLR 792 at 973 as follows:
“… a formal document whereby one person empowers another to stand in his stead, or to 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.” See also the Powers of Attorney Act, 1998 Act 549.
Once a valid power of attorney has been made, a party may rely on it to sue or defend an action. In a trial, such a person must tender the power of attorney in evidence. Where a person’s capacity to sue, for example, in a representative capacity, is challenged, the onus is upon him to prove that he has been duly authorised to sue. In Youhana v Abboud (1973) 1 GLR 258, the court held, inter alia, that:
“Where the authority of a person to sue in a representative capacity had been challenged, the onus was upon him to prove that he had been duly authorised. He could not succeed on the merits without first satisfying the court on this important preliminary point.”
So important is the question of capacity that when it is raised, a party is not entitled to proceed until that legal hurdle or point of law has been cleared. Thus, the issue of capacity goes to the root of the matter and must not be treated lightly. In circumstances where the issue is not raised but it is apparent on the record, the trial judge must not ignore the same.
The Court so held in the case of Yorkwa v Duah (1992-93)1 GBR 278 that:
“Where a person’s capacity to institute proceedings was in issue, it was no answer to give that person a hearing on the merits even if he had a cast iron case. Even though the point of respondent’s capacity was not raised at the trial it involved a serious point of law that the trial judge ought to have considered.” Sarkodie I v Boating II (1982-83) GLR 881 cited.
In the instance action, I notice that the issue of capacity was first introduced during cross-examination. The Plaintiff’s lawful attorney indicated in his answers that he had a power of attorney at the time he instituted this action. He however admitted that the suit was filed before exhibit A was executed and stamped. He explained that prior to this action and at the time of dealing with the 1st Defendant, he derived his authority from a certain document obtained from the High Court. The said document is not in evidence for the court to make a pronouncement on its nature and effect. For now, the only document which entitles Isaac Asuming to sue in respect of the instant dispute is exhibit A. It is noticeable that exhibit A was made on 26/02/2013 whereas this suit was filed on 09/07/2012. So, on what basis or by what authority did Isaac Asuming sue the Defendants on 09/07/2012 when exhibit A had not been made? He has been unable to offer any reasonable explanation to the satisfaction of this court. Having failed to clear this legal hurdle, it is my considered opinion that Isaac Asuming could not have issued the writ in the first place and was not entitled to be heard at all irrespective of the nature of the Plaintiff’s case. It is unfortunate that this issue was not raised as a preliminary point of law for him to be thrown out at the onset.
The law is that a power of Attorney takes effect from the date it is executed. This came up in the case of Gorden v Essien (1992) 1 GLR 232 (holding 3) where the court took the view that:
“Although the registration of a power of attorney gave it formal validity, a power of attorney took effect not from the date of its registration but from the date indicated within the instrument. Since in the instant case exhibit A indicated that it was to take effect from the "date of its execution", and that was 1 June 1987, it took effect from that date.”
I cannot conclude without reference to the case of Akrong v Bulley (1965) GLR 469. At page 476 of the report, Apaloo JSC stated:
“the question of capacity, like the plea of limitation, is not concerned with merits and as Lord Greene M.R. said in Hilton v. Sutton Steam Laundry (1946) K.B. 65 at 73, C.A.
"Once the axe falls it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitations [and I would myself add, or an unanswerable defence of want of capacity to sue] is entitled, of course, to insist upon his strict right."
The court, in Bulley v Akrong, referred to supra, held that the Plaintiff had instituted an action in a capacity he did not possess. The writ was held to be a nullity as well as the proceedings and judgment founded on it. The appeal was disposed off on this ground.
Therefore, the Plaintiff’s action fails on grounds of capacity as regards the time the suit was filed and the time the Power of Attorney was made. It has not been determined on its merits.
Next, I turn to the Defendant’s counterclaim. Counsel for the Defendants urged the court to grant the reliefs sought in the counterclaim. His argument was that it is a cross-action and not merely a defence to the plaintiff’s claim. My short answer to him is that they filed their statement of defence on 21/08/2012 and caused same to be served on the Plaintiff’s lawful attorney through his counsel. This was during the period when the Power of Attorney had not been executed. Going by the Defendants stance, which has been affirmed by this court, that the Plaintiff’s lawful attorney was a busy body at the material time, why would the Defendants cause processes to be served on him? It may be convenient for the Defendants to argue that they did not know of the fact that Isaac Assuming had not been legally authorized to commence the action. Either way, they cannot proceed against the Plaintiff since the Power of Attorney cannot take a retrospective effect to validate service of the process on a mere busy body. See Gorden v Essien (supra).Just as the Defendants got off on a technical ground, so shall it be with the Plaintiff.
It is the Plaintiff who initiated these proceedings through his representative but on the wrong footing. By his failure to comply with the law, the Defendants have been greatly inconvenienced in terms of time and money. On the other hand, counsel for the Defendants ought to have raised a preliminary legal point at the commencement of the trial but he failed to do so. If counsel had taken that step, the trial would have abated for the parties to advise themselves accordingly. For these reasons, I award GH¢ 1000 as cost against the Plaintiff in favour of the Defendants.