KOFI NTI PER HIS LAWFUL ATTORNEY KWAME BOAHEN OF MAMPONTENG vs. DANIEL CLISFORD SARFO AND AKUA AFRIYIE TWUM [2012]DLHC8516

KOFI NTI PER HIS LAWFUL ATTORNEY KWAME BOAHEN OF MAMPONTENG vs. DANIEL CLISFORD... [2012]DLHC8516

Date	2012-02-21
Suit No.	SUIT NO. C11/33/11
Citation No.	[2012]DLHC8516

HIS LORDSHIP JUSTICE JACOB B. BOON

OSEI KOFI FOR PLAINTIFF / RESPONDENT

PEPRAH NYANTAKYI FOR THE DEFENDANT APPELLANTS

[2012]DLHC8516
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													<main id="main" class="content" style="min-height: 60rem" >KOFI NTI PER
HIS LAWFUL ATTORNEY KWAME BOAHEN OF MAMPONTENG<o:p></o:p>vs.<o:p></o:p>DANIEL CLISFORD SARFO AND AKUA AFRIYIE TWUM<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;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C11/33/11&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 21ST FEBRUARY,
2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OSEI
KOFI FOR PLAINTIFF / RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

PEPRAH
NYANTAKYI FOR THE DEFENDANT APPELLANTS<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;
padding:0cm 0cm 1.0pt 0cm">

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;
padding:0cm 0cm 1.0pt 0cm">

</div>This is an appeal from the judgment of Her Worship Aliata
Saeed dated 22nd March, 2010 when she presided over the Mamponteng
District Court. Before I discuss the merits of the appeal, it is necessary to
indicate that the magistrate who presided over the district court is my wife. I
did not hide that fact from the parties and their lawyers and I assumed
jurisdiction to hear the appeal with the consent of lawyers for both sides who
had not objected to the appeal being heard by me in spite of my relationship
with the district magistrate. Judgment in the district &nbsp;court was entered for the
plaintiff/respondent, to be called the plaintiff as follows:<o:p></o:p><o:p>&nbsp;</o:p>“(1)
Declaration of title and recovery of possession of plot No. 23 Block ‘C’,
Mamponteng and <o:p></o:p><o:p>&nbsp;</o:p>(2)An
order of perpetual injunction restraining the defendants, their agents, assigns
and all who may be claiming through the defendants.”<o:p></o:p><o:p>&nbsp;</o:p>The defendant/appellants, herein referred to as
defendant’s are dissatisfied with the judgment and have filed the instant
appeal on the grounds that the judgment is against the weight of evidence and
that it negates the audi alteram partem rule.<o:p></o:p><o:p>&nbsp;</o:p>At the Mamponteng District Court, the plaintiff, per his
lawful attorney, issued from its Registry the writ of summons dated 23 May,
2001 praying for the reliefs of declaration of title and recovery of possession
of the disputed land, an order of injunction, and damages for trespass. The
writ was originally against the first defendant only. After the first defendant
filed his defence to the action, the second defendant applied to join the
action as an attorney of the personal representatives of Kwaku Duah deceased,
who was said to have acquired the disputed piece of land. When the second
defendant attempted to open her defence on behalf of her principals, there was
an objection by counsel for the plaintiff on the ground that the Power of
Attorney granted her did not comply with the provisions of the Power of Attorney
Act, 1988 (Act 549), particularly section 1(2) of the Act which states that: “where
an instrument is singed by the donor of the power one witness shall be present
and shall attest the instrument.” The trial court rightly upheld the
objection, when on 7th July, 2009, it ruled that the power of
attorney donated to the second defendant was invalid. The significance of that
ruling was that the second defendant had no legal capacity to represent her
principals in court. Thereafter, the case suffered several adjournments until
the 25/01/10 when a motion was filed by counsel for the defendants seeking to
revoke the invalid power of attorney and to substitute it with a new one
appointing one Madam Hannah Twum described as a junior sister to the first
attorney, in place of the first attorney. <o:p></o:p><o:p>&nbsp;</o:p>It is instructive to indicate that before this the trial
court had on several occasions called on the defendants to open their defence
to no avail, as most invariably, their counsel was absent. Indeed, at the time
this second power of attorney was filed, the district court had already on
21/01/10 closed the case of the defendants on the basis that their refusal to open
their defence when called upon on several occasions was indicative enough that
they had no defence to the suit. Counsel were given two weeks within which to
submit written addresses. <o:p></o:p><o:p>&nbsp;</o:p>May it be remarked that the continuous presence in the
suit by the second defendant as an attorney had no legal basis after the
instrument donated to her by he</main>