IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
ACCRA- A.D 2019
DHL GHANA LTD - (Plaintiff)
MERIDIAN PORT GHANA LTD - (Defendant)
DATE: 23 RD JANUARY, 2018
SUIT NO: GJ/450/17
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Defendant/Applicant is praying for an order of the court to strike out the writ of Plaintiff on the grounds set out in the affidavit. The essence of the application is that the power of attorney through which the writ was issued is incompetent as it does not meet the requirements of the law. To Applicant the attorney is not clothed with capacity making the power of attorney incompetent.
Moving the motion in court learned counsel for Applicant relied on section 1(3) of the Powers of Attorney Act, Act 549 and noted that the principal, DHL, a body corporate authorised one Eric M. K. Sarbah, who is the Chief Financial Officer of Plaintiff company to sign the power of attorney on its behalf. To the Applicant the power of attorney by law ought to have been attested by at least two witnesses and on the face of the document it is only one witness that signed the power of attorney.
Plaintiff/Respondent has opposed the application per an affidavit in opposition contending that the power of attorney was duly attested to by a witness. And in the written submission filed, counsel for Plaintiff has raised matters of law claiming that all the authorities are to the effect that a power of attorney is a nullity only when it has not been witnessed which is not the case in this suit as the Plaintiff has duly through its authorised representative signed the power of attorney and it is witnessed by one Jedidiah Botchway.
Ex ‘IE’ attached as the power of attorney to Plaintiff’s application for summary judgment, the power was executed by Eric Sarbah on behalf of DHL in the presence of Jedidiah Botchway, an accounts receivable manager. Does that sin against the law?
The Powers of Attorney Act, Act 549 states in section 1 as follows:
(1) An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorised by him 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.
(3) Where the instrument is signed by a person authorised by the donor, two witnesses shall be present and shall attest the instrument.
It appears that Eric Sarbah is not the donor of the power and cannot be within the intendment of section 1(2). And DHL being a legal persona that must of necessity act through its authorized officers cannot act personally. In this respect, Eric Sarbah could only have signed the document on behalf of the Plaintiff DHL and that would mean that the applicable provision in terms of statutory compliance regarding the formal requirements for the validity of the Power of Attorney donated would be section 1(3) that requires that Eric Sarbah acting on behalf of Plaintiff in donating the power, the document ought to have been witnessed by at least two witnesses and not one.
The Power of Attorney based upon which the writ was issued not complying with section 1(3) of the Powers of Attorney’s Act, the rule in ASANTE-APPIAH v AMPONSAH alias MANSA  SCGLR 90 will apply. The decision was to the effect that a power of attorney only notarised by a Commissioner for Oaths or a Notary Public was not a valid document unless it has been witnessed. Though the essence of this decision from the apex court of the land has been the subject of scathing criticism as a document witnessed by a notary public should carry more weight than an ordinary witness. For instance Sir Dennis Adjei in his work “Land Law, Conveyancing and Practice in Ghana” page 359 posit that the approach of the Supreme Court betrays a purely mechanical approach to the law which is unhealthy.
I cannot help but agree that in this day and age such interpretation does not in any way fertilize the growth of Ghanaian jurisprudence but rather stifles it. Nonetheless, as the High Court is bound by the decisions of the Supreme Court under article 129 (3) of the Constitution, I comply and apply the principle in that decision requiring a power of attorney to be witnessed. And rule that in respect of the Plaintiff being a body corporate that can only act through its officers and having so acted through its officer, it is caught by section 1(3) of Act 549. And the non-compliance in not ensuring that two persons witnessed the document is fatal.
It appears in the written submission of learned counsel for Plaintiff he finds umbrage in the cases of ASANTE APPIAH v AMPONSAH ALIAS MANSAH supra, HUSSEY v EDAH [1992-93] PT 4 GBR 1903; and FRIMPONG v ROME  58 G.M.J. 131 which are all to the effect that a power of attorney not witnessed is a nullity and to him the power of attorney appointing Expert Consult has been witnessed. I think this is a grave misconception. For the ASANTE APPIAH and FRIMPOMNG cases dealt with section 1(2) of Act 549 but not subsection (3) which relates to a company granting that power which the statute demands that there ought to be at least two witnesses. And in so far as the authoritative pronouncements of the higher courts dealt with section 1(2) of Act 549 that requires only one witness, it cannot be a blanket authority to cover section 1(3) as well that in all cases including that of a body corporate, one witness suffices to establish the requirements.
I uphold the objection that the power of attorney exhibited by the attorney for Plaintiff is incompetent and the attorney was not clothed with the requisite authority to issue the writ by virtue of deficiency of the number of witnesses required and accordingly strike out the writ.
I make no order as to cost.