IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
KWAME OWUSU - (Plaintiff)
THOMAS YALLEY - (Defendant)
DATE: 16 TH JANUARY, 2018
SUIT NO: OCC/26/18
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MARGERATE MARY AGYEI TWUM FOR DEFENDANT/APPLICANT
ISAAC CHRISTOPHER FOR PLAINTIFF/RESPONDENT
On 09/11/2017, the Plaintiff, Kwame Owusu, caused a writ of summons and statement of claim to be issued from the registry of this court for the following reliefs:
1. Recovery of cash in the sum of GHC 75,000.00 being the cost price and additional expenses incurred by the Plaintiff in buying a KIA Frontier K2700 truck from Germany to Ghana in October, 2014.
2. Interest on the said sum from October, 2014 to date of final payment at the prevailing bank rate.
3. Damages for breach of contract Costs.
Upon service of the writ on the Defendant, Thomas Yalley, he caused his lawyer to file a notice of appearance on his behalf on 14/11/2017. This was followed by a motion on notice to set aside the Writ of Summons, it was filed on 29/11/2017 with a return date of 21/12/2017, just a day to the Christmas vacation. An affidavit in opposition to the said motion was deposed to by one Kwabena Tawiah who described himself as the lawful attorney of the Plaintiff/Respondent. Before the motion could be moved on the return date, counsel for the Defendant/Applicant raised a preliminary objection to the power of attorney on which the Kwabena Tawiah relied to depose to his affidavit in opposition. The basis of the objection was that from the Plaintiff’s writ of summons and statement of claim, he is ordinarily resident in Germany, his address endorsed on those processes is an address in Germany and on the power of attorney, he also indicated an address in Ghana, namely, Unnumbered house at Abuakwa, Nsonyameye, Kumasi. According to counsel, the power of attorney is dated 16/03/2017 and it was witnessed by one Paul Nsiah in Ghana. She argued that they know for a fact that the donor of the power, that is , the Plaintiff herein, was in Germany on the said date and there was no way Paul Nsiah could have witnessed the document in the presence of the donor. Counsel submitted that the power of attorney in issue does not meet the requirements of the Powers of Attorney Act, Act 549.
Counsel for the Plaintiff/Respondent disagreed with these submissions. In response, he argued that even though the plaintiff is ordinarily resident in Germany, at the time the power was donated, he was in Ghana, hence, the legal requirements complained of have been met. In his view, the matters raised by counsel for the Defendant/Applicant could be put to the Plaintiff’s lawful attorney during cross-examination. After listening to the submissions of both counsel on this preliminary objection, the court granted leave to the Plaintiff/Respondent to file a supplementary affidavit to verify the dates of his arrival in, and departure from Ghana and also exhibit the identity pages of his pass port. He was cautioned that any information provided will be verified from the Ghana Immigration Service. The Plaintiff/Respondent was to file the supplementary affidavit with the supporting documents within 5 working days from 21/12/2017. To date, no such process has been filed. It is therefore reasonable to infer that the Plaintiff does not intend to furnish the court with the documents requested for, so the court will proceed to rule on the objection. It is provided under section 1 of the Powers of Attorney Act, Act 548 as follows:
1. Execution of powers of attorney
(1) An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorised 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.
(3) Where the instrument is signed by a person authorized by the donor, two witnesses shall be present and shall attest the instrument. (4) This section applies in addition to a requirement under an enactment in respect of witnessing of an instrument creating a power of attorney including the rules relating to the execution of instruments by bodies corporate.
On the basis of the submissions before this court, the Plaintiff has failed to prove that he was indeed present in Ghana at the time he is alleged to have signed the Power of Attorney in issue. He has also not been able to establish to the satisfaction of this court that Paul Nsiah signed the document in his presence. It becomes obvious that the Power of Attorney in issue falls short of the requirements of section 1(2) of Act 549, it is therefore defective. Hence, the donee cannot rely on it to prosecute the case of the Plaintiff. It follows that the affidavit in opposition filed by the donee therein cannot stand, and the court will have to strike it out. Since counsel for the Plaintiff has orally applied to withdraw the same then, there is a double striking out of the said affidavit.
The preliminary objection is upheld. In the absence of any affidavit in opposition, counsel for the Defendant is to move her motion.