IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
NAVSHANTI ROMESH - (Plaintiff)
OSEI KWABENA - (Defendant)
DATE: 21ST DECEMBER, 2016
SUIT NO: OCC 84/2016
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
WILLIAM KUSI FOR PLAINTIFF/APPLICANT
KWABENA OPOKU-MENSAH FOR DEFENDANT/RESPONDENT
In this application brought pursuant to Order 14 of the High Court Civil Procedure Rules, 2004, CI 47, the Applicant seeks against the Respondent an Order for summary judgment.
The grounds of the application are contained in the Affidavit in Support filed on 25/10/2016. The gravamen of the applicant’s motion per the affidavit is that the Defendant/Respondent had committed himself to pay his indebtedness to the Plaintiff/Applicant prior to the issuance of the Writ of Summons by the latter. A copy of the issuance of the said Undertaking is attached to the affidavit and marked Exhibit “AKP4”. Applicant prayed the court to grant the summary judgment as the Defendant/Respondent’s Statement of Defence (Exhibit “AKP3”) does not disclose any defence.
The Respondent is opposed to the application and has demonstrated the grounds in an affidavit in opposition. The relevant parts of the Affidavit in Opposition are as follows:
“3. That I deny paragraph 1, 2, 3, 8, 9 and 11 of the plaintiff’s affidavit in support.
4. That I am advised by counsel and verily believe same to be true that the instant application is completely misconceived.
5. That the Power of Attorney on which the applicant relies to depose to the Affidavit in Support is defective and does not clothe the plaintiff’s attorney with the requisite capacity to swear to the said affidavit.
That I am advised by counsel and verily believe same to be true that the resort by the applicant to applying for summary judgment is facetious and completely ignores the applicable law relevant to when a Party can resort to this mode of judgment to access relief(s).
That I am advised by counsel that my Statement of Defence leaves no doubt whatsoever in denying any indebtedness to the plaintiff and consequently the instant application is without reference to the rules of court as well as to the pertinent law relating to the circumstances which would trigger an application such as the instant.
That I am again advised by counsel and verily believe same to be true that the applicant has completely misconstrued the ambit of an application for summary judgment as when an issue of even minor significance is joined with the Plaintiff which calls for an investigation of same by hearing, summary judgment cannot be applied for.
That a cursory look at my Statement of Defence will show that I have an ironclad defence to the instant suit contrary to the postulations of applicant.”
In moving the motion, counsel for the Applicant prayed the court to enter summary judgment in favour of his client as the Defendant/Respondent has no defence since his Statement of Defence did not disclose any defence. Counsel made reference to the Defendant’s Statement of Defence particularly paragraphs 4 and 5 where the Defendant stated that he did not transact business with the Plaintiff but it was his company which did. Counsel argued that the Defendant gave the undertaking because it was him and not (West African Holdings Co. Ltd) that transacted business with the Plaintiff contrary to what the Defendant is now suggesting. He contends that the Defendant/Respondent has not demonstrated that he transacted business with West African Holdings Company Limited instead of the plaintiff.
Counsel referred to Order 14 of CI 47 and submitted that the purpose of the provision is to avoid a long period of trial when the issues could be determined summarily. To buttress his point, he cited the following cases:
Mustapha V National Investment Bank Ltd [2005-2006] SCGLR 1088
Ballast Nedam Ghana Bv v Horizon Maritime Construction Ltd.  SCGLR 435, 437-442.
He emphasized that per the authorities if a Defendant does not demonstrate any good defence then the court will grant an application for summary judgment.
Counsel for Respondent submits that he is opposed to the application and that the opposition is based on two grounds.
The first ground of opposition, counsel submits, is in relation to the power of attorney. He made reference to the phrase “… in his name and on my behalf to do all or any of the following causes or matters that is to say as long as I am absent from Ghana”. Counsel argued forcefully that the phrase “in his name and on my behalf” does not reflect the title of the case as per the power of attorney the title of the case should have borne the name Andrew Kofi Owusu as the plaintiff/ applicant instead of Romesh Mirpuri. Counsel submits that the application is incompetent as the writ itself is a nullity.
Counsel focused the second ground of Respondent’s opposition on the fact that there must be a defence in law and fact for the application to succeed. He submits that there are triable issues in the instant case and that in an application of this nature it is the statements of defence which must be examined and not exhibits. Counsel submits that the defendant had denied the plaintiff’s claim and that application for summary judgment was not a trial for the defendant to introduce evidence in his defence. He argued that the denial of liability suggest that issues have been joined and each party is expected to introduce its evidence during the trial. In sum, counsel contends that summary judgment could not be entered as the defendant has filed a defence denying the claim. Counsel cited the following cases:
Duncan v Kawoaco Ltd. (1981) GLR 436 @ 476
Appiah II v Boakye (1994) GBR 921 @ 922 Holding 2
Martin Amidu v Electoral Commission and The Manager, Assembly Press Writ No. 3/2001 dated 30th January, 2002
Counsel submits further that it is clear on the face of the authorities that there are triable issues. He therefore invited the court to dismiss the application.
Three issues must be resolved in this application i.e.
Whether the power of attorney clothes the deponent with the capacity to depose to the affidavit;
Whether or not the title of the case ought to have borne the name of the deponent in the light of the wording of the power of attorney; and
Whether there are triable issues between the parties.
I shall tackle the first two issues together since they all bother on the power of attorney and its alleged defect.
The Black’s Law dictionary 9th edition defines power of attorney as “an instrument granting someone the authority to act as agent or attorney in fact for the grantor”.
The power of attorney granted to the said Andrew Kofi Poku by the plaintiff is read as follows:
“BY THIS POWER OF ATTORNEY made this 21st day of , 2016
I, ROMESH MIRPURI, a Chinese National and a Hong Kong citizen of the following address:-
11-16 CELESTIAL HEIGHT
PHASE 2, HO MAN TIN
but currently on holidays in Ghana DO HEREBY AUTHORISE ANDREW KOFI POKU of House Number Plot 11 BLOCK 11, Sepe Buokrom, Kumasi in the Ashanti Region of the Republic of Ghana in his name and on behalf to do all or any of the following causes or matters that is to say as long as I am absent from Ghana:-
That because of my absence from Ghana, I am unable to be present in Ghana to handle these matters myself. Consequently I do hereby authorize the said ANDREW KOFI POKU to stand in on my behalf to do all or any of the following things or matters:-
(i) To initiate civil action to recover every debt owed by one OSEI KWABENA to me.
(ii) Generally to act as my Attorney in relation to the aforesaid suit and do acts and things as fully and effectual in all respect as I myself would have done if personally present.
(iii) AND I hereby adopt, confirm and ratify all acts and things done by my Attorney in pursuance of the authority given to him by this Power of Attorney.
(iv) And I further agree to indemnify my Attorney in respect of all expenses or liabilities to be incurred or covered by him in the reasonable and proper exercise of the power contained herein.
(v) He shall at all times work in close collaboration with my Solicitor AKUA ADOMAH ADDAE of “DOMINION CHAMBERS, ADUM, KUMASI/ASHANTI.
(vi) AND THE POWER OF ATTORNEY shall remain in force until such time that I shall give the Attorney notice of revocation in writing posted to his last known address or place of abode.
IN WITNESS WHEREOF, I, ROMESH MIRPURI have set my hand and date first above written …”
In attempting to construe the provisions of the power of attorney regard should be had to all the provisions of the documents. The words used should be looked at as a whole. Each provision should be compared with the other for the purpose of making sense out of them. It is only by doing so that the true meaning and the intention of the parties could be ascertained. This method of construction was adopted by Lord Halsbury LC in In re Jodrell; Jodrell v Seale (1890) 44 ChD 590 cited in Boateng v Volta Aluminium Company Ltd. [1984-86] 1 GLR 733 @ 739 where the learned Lord said at 605:
“I am called upon to express an opinion on what is the meaning of this written instrument ... For myself, I am prepared to look at the instrument such as it is; to see the language that is used in it; to look at the whole of the document, and not to part of it; and, having looked at the whole of the document, to see (if I can) through the instrument what was the mind of the testator.”
From the wording of the power of attorney, it is clear that the plaintiff granted the deponent, Andrew Kofi Poku the authority to act as his lawful attorney in relation to action to recover debt allegedly owed by the defendant/respondent. The phrase “in his name and on my behalf …” which plainly suggests that the lawful attorney must initiate the action in his own name should not be read in isolation. It must be read together with the other provisions. For instance, paragraph of the preamble of the document states in part: “Consequently, I do hereby authorize the said ANDREW KOFI POKU to stand in own my behalf to do all or any of the following things or matters”. My understanding of the phrase “to stand in on my behalf” within the context of the document is that the attorney is required to serve as an agent of the donor in the absence of the latter. The attorney’s responsibility is only activated in the absence of the donor. It therefore goes without saying that the action was rightly initiated in the name of the donor, Romesh Mirpuri. I hold that the power of attorney (Exhibit AKP1) satisfies the requirements of the Power of Attorney Act, 1998 Act 549 and effectuates the intention of the donor to sue in his own name.
From the foregoing it is clear, that the deponent was rightly acting as the lawful attorney of the plaintiff when he deposed to the said affidavit.
It is also clear that the title of the case rightly bore the name of the plaintiff.
I now turn my attention to the issue which is at the heart of this application i.e. whether there are triable issues between the parties.
Order 14 rule 1 provides:
“Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the Court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed.”
Summary judgment is resorted to by the plaintiff where the defendant has no defence to the action. It is aimed at disposing with dispatch cases that are virtually uncontested or to cases which are obvious that the plaintiff is entitled to his claim. It is for the plain and straight forward cases – cases which are manifestly unanswerable by the defendant.
In Ballast Nedam Ghana B.V v. Horizon Marine Construction Ltd [28/07/2010] CA NO. J4/18/2010, the
Supreme Court held:
“Although the procedure for summary judgment under order 14 enables the appellant to obtain speedy and summary judgment without a trial even in cases where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried. See: (1) ANGLO-ITALIAN BANK v WELLS, ANGLO-ITALIAN BANK v DAVIES (1878) 38 LT 197; (2) ROBERTS v PLANT  1 QB 597.”
It is my considered opinion that the defendant’s contention that the plaintiff has no capacity to institute the instant action against him as he dealt with a company known as West Africa Holdings Company Limited was a good defence to the action. Indeed the issue of capacity can be determined summarily but not in the instant case. Plaintiff/applicant finds solace in the so called undertaking given by the defendant as evidence of the latter’s indebtedness to the plaintiff. It is, however, not out of place for one to undertake to pay the debt of another. It is my view that in the instant case, the issue of capacity can only be resolved through a full trial. In the face of the controversy relating to the capacity of the plaintiff, I have come to the conclusion that there is at least one triable issue between the parties for the court to determine. In the circumstance, I dismiss the application for summary judgment since the applicant has failed to pass the test under Order 14 rule 1 of CI 47.
Cost of GHC 1,000 awarded against the Plaintiff/Applicant in favour of the Defendant/Respondent.