ALEX OSEI WEREKO vs. PETER OWUSU MENSAH [2011]DLHC8158

Date	2011-06-07
Suit No.	SUIT NO. C12/115/11
Citation No.	[2011]DLHC8158

HIS LORDSHIP JUSTICE JACOB B. BOON

MICHAEL OWUSU FOR PLAINTIFF /APPLICANT

STEPHEN OPPONG FOR DEFENDANT /RESPONDENT

[2011]DLHC8158
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													<main id="main" class="content" style="min-height: 60rem" >ALEX OSEI WEREKO<o:p></o:p>(PLAINTIFF/APPLICANT)<o:p></o:p>vs.<o:p></o:p>PETER OWUSU MENSAH<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. C12/115/11&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 7TH
JUNE, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MICHAEL
OWUSU FOR PLAINTIFF /APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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STEPHEN
OPPONG FOR DEFENDANT /RESPONDENT&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The plaintiff/applicant herein, to be referred to as the
plaintiff, describes himself as a real estate agent based in Accra. On 17/1/11
he filed a writ against the defendant respondent, to be called simply as the
defendant, claiming, inter alia, a declaration that the defendant and others
had authorized him through a power of attorney to undertake the sale of a
property known as “Lemon Lodge” which
is situated at Asylum Down, Accra, a further declaration that the sale of the
property by him to one Eric Wisdom Quarcoo is valid and binding on the
defendant, and an order to compel the defendant to ratify the sale of the
property to the said Eric Wisdom Quarcoo.<o:p></o:p><o:p>&nbsp;</o:p>After service of the writ on the defendant, the plaintiff
applied for an interlocutory injunction to restrain the defendant from
disposing of the disputed property pending the outcome of the suit. The
application did not find favour with the court and was thus dismissed. The
reason assigned by the court for the dismissal was that two documents described
as a powers of attorney, on which the plaintiff relied as the basis for his
action were flawed in that no person signed them as a witness in accordance
with section 1(2) of the Powers of Attorney Act 1998, Act 549. Upon the
dismissal of the interlocutory injunction application, the plaintiff filed
another motion praying for leave to amend the writ by adding a relief to those
claimed earlier, and abounding two reliefs. The effect of the amendment, if granted,
is to hold the plaintiff as an agent of the defendant and two others. He also
prayed for an order in the amendment to estop the defendant from asserting that
he and the others did not authorize him to sell the disputed house. The
proposed amendment further indicated that the plaintiff was authorized, as an
agent of the defendant and others to regularize and perfect the documentation
on the disputed property, and as in the course of carrying out the
documentation the agencies involved requested some written authorization from
the defendant and others, he was given the powers of attorney already refer to.
The amendment also showed that plaintiff was authorized to sell the house at a
price not lower than GH¢300,000.00 with a verbal agreement that he was entitled
to 5% of the purchase price as his commission.<o:p></o:p><o:p>&nbsp;</o:p>In arguing the motion, counsel for the plaintiff likened what
took place between his client and the defendant to a valid customary gift which
was later reduced into writing, but was discovered that the said document
witnessing the gift was defective. He contended that the fact of the defect
should not affect the validity of the customary gift. In effect, his contention
was that the relationship of principal and agency existed between plaintiff and
the defendant before he was granted the powers of attorney, and if they were
later found to be flawed that ought not to affect the situation that existed
prior to their donation. Counsel therefore submitted that the amendment is to
reflect the arrangement between the parties before the powers of attorney were
prepared. And that in his opinion does not pull a surprise on the defendant, as
he was well aware of that existing situation. It was also argued for the
plaintiff that if the application is granted all issues between the parties
would be disposed off once and for all irrespective of the deficiency contained
in the powers of attorney. In particular, his lawyer drew the attention of the
court to the provisions of Order 16 rule 5(5) of C1 47 which reads as follows:<o:p></o:p><o:p>&nbsp;</o:p>“An
amendment may be allowed under sub rule (2) notwithstanding that the effect of
the amendment will be to add or substitute a new cause of action, if the new
cause of action arises out of the same facts or substantially the same facts as
a cause of action in respect of which relief has already been claimed in the
action by the party applying for leave to make the amendment.”<o:p></o:p><o:p>&nbsp;</o:p>