EDMUND ASANTE – APPIAH vs. MADAM KATE AMPONSAH ALIAS YAA MANSAH [2008]DLSC2455

Date	2008-11-20
Suit No.	SUIT NO. CA J4/34/2007
Citation No.	[2008]DLSC2455

AKUFFO (MS) JSC (PRESIDING)

BROBBEY J.S.C

DATE-BAH J.S.C

ANSAH J.S.C

ASIAMAH J.S.C

ASANTE-ANSONG FOR THE APPELLANT

K. AMOAKO-ADJEI FOR THE RESPONDENT

[2008]DLSC2455
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >EDMUND ASANTE – APPIAH<o:p></o:p>vs.<o:p></o:p>MADAM KATE AMPONSAH ALIAS YAA MANSAH<o:p></o:p>[SUPREME
COURT]<o:p></o:p>SUIT
NO. CA J4/34/2007<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 20TH NOVEMBER, 2008.<o:p></o:p>

</div>COUNSEL<o:p></o:p>ASANTE-ANSONG
FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

K.
AMOAKO-ADJEI FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AKUFFO
(MS) JSC (PRESIDING), BROBBEY J.S.C, DATE-BAH J.S.C, ANSAH J.S.C, ASIAMAH J.S.C<o:p></o:p>

</div><o:p>&nbsp;</o:p>BROBBEY JSC: <o:p></o:p>This
is an appeal from the decision of the Court of Appeal which allowed an appeal
against the decision of the High Court sitting at Koforidua. The facts which
gave rise to the litigation before this court are as follows: The plaintiff who
shall hereafter be referred to as the appellant claimed that he alone bought
the subject matter of the case which is a house together with an adjoining
plot, both of which are situated at Apedwa. He further claimed to have bought
it from its original owner, the United African Company and after the purchase
he permitted his late brother and the brother’s family to live in it. The
respondent was the wife of the late brother who also lived in the house. <o:p></o:p>It
was part of the case of the appellant that after the death of her husband the
respondent admitted at various meetings that the property belonged to the
appellant.<o:p></o:p>The
respondent denied the claims of the appellant. She rather contended that the
property was bought jointly by the appellant and her deceased husband who was
the half brother of the appellant. After the trial, the High Court gave
judgment for the appellant. The respondent then appealed to the Court of Appeal
which allowed the appeal and reversed the judgment of the High Court. Aggrieved
by that decision, the appellant appealed to this court. <o:p></o:p>The
appellant filed four grounds of appeal but ended up arguing three of them.<o:p></o:p>The
most fundamental of the grounds was ground (c) which read as follows:<o:p></o:p>“The appellate court erred in its
construction of section 2 of the Power of Attorney Act, 1998 (Act 548).” <o:p></o:p>The
parties were agreeable that the appellant was at all material times during the
litigation resident in England but sued through Nana Kwasi Twum Barima by the
use of a power of attorney which was exhibited at page fifteen of the record of
proceedings. That power of attorney was fatally flawed for two reasons.
Firstly, the rule as contained in Act 548, s. 1(2) is that <o:p></o:p>“Where the instrument is signed by the
author of the power one witness shall be present and shall attest the
instrument.”<o:p></o:p>It
is patent on the instrument that no-one signed it as a witness. The Court of
Appeal rightly rejected the argument of counsel for the appellant that the
Commissioner for Oath doubled as both the witness and the person before whom
the power was executed. There is no legal or statutory basis for that argument.
It would be observed that the provision is couched in imperative terms. In so
far that the power of attorney in question was not signed by any witness, it
was not valid. <o:p></o:p>The
instant power of attorney does not show on its face as having been issued from
the UK to be used in Ghana courts. The signature on it seems to have been
covered by the Evidence Decree, s 160©. Having been locally produced, it did
not have to be notarized. <o:p></o:p>That
notwithstanding, since the power of attorney was invalid, the trial court
should not have admitted it in evidence. The Evidence Decree, 1975(NRCD 323), s
8 empowers the appellate court to reject evidence which ought to have been
rejected at the trial court. This section has been used in a number cases to
reject inadmissible evidence admitted at the trial court even if there was no
objection to them when they were first tendered. They include Juxon-Smith v KLM
Dutch Airlines [2005-2006] SCGLR 438, Edward Nassar &amp; Co Ltd v McVroom
[1996-97] SCGLR 468, Ussher v Kpanyinli [1989-90]2 GLR 13 and Amoah v Arthur
[1987-88] 2 GLR 87. On the bases of these authorities, the power of attorney is
rejected as invalid.<o:p></o:p>To
the extent that the power of attorney was invalid, it could not have provided
legitimate basis on which Nana Kwasi Twum Barima could have prosecuted the case
on behalf of the appellant. In effect, Nana Kwasi Twum Barima had no capacity
with which to prosecute the case.<o:p></o:p>&nbsp;<o:p></o:p>The
relevant rule applicable to the instant case is that where the capacity of a
person to sue is challenged, he has to establish it before his case can be
considered on its merits.<o:p></o:p>In
the instant case, the respondent challenged the capacity of the appellant right
from the inception of the trial. The challenge was explicit in the first
paragraph of the statement of defence and in the cross-examination of Nana Twum
Barima. The appellant had to establish his capacity before he could expect the
court to have considered his case on its merits. He woefully failed to
establish the capacity in which he sued by his reliance on the invalid power of
attorney. <o:p></o:p>The
evidence given by Nana Kwasi Twum Barima was inadmissible to the extent that he
had no capacity to testify as he did.<o:p></o:p>The
appellant himself never testified in the action. In view of the conclusion that
the power of attorney was invalid and the one who relied on it had no capacity
and therefore his evi</main>