LEE FRIMPONG AND MARY TUFFOUR vs. ANDREWS RIISI TEI KWAME WUAKU, RACHAEL KAREN E. AKUA WUAKU AND JACOB KODZO PLUTO WUAKU [2013]DLHC8189

LEE FRIMPONG AND MARY TUFFOUR vs. ANDREWS RIISI TEI KWAME WUAKU, RACHAEL KAREN E... [2013]DLHC8189

Date	2013-04-26
Suit No.	SUIT NO. CI/115/07
Citation No.	[2013]DLHC8189

HIS LORDSHIP JUSTICE JACOB B. BOON

GEORGE AMISSAH FOR THE PLAINTIFF

TOTOE LEGAL SERVICE FOR THE DEFENDANTS

[2013]DLHC8189
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													<main id="main" class="content" style="min-height: 60rem" >LEE FRIMPONG
AND MARY TUFFOUR<o:p></o:p>vs.<o:p></o:p>ANDREWS RIISI TEI KWAME WUAKU, RACHAEL KAREN E. AKUA WUAKU AND
JACOB KODZO PLUTO WUAKU<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. CI/115/07&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:
26TH APRIL, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;<o:p></o:p>GEORGE
AMISSAH FOR THE PLAINTIFF&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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TOTOE
LEGAL SERVICE FOR THE DEFENDANTS<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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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">HIS
LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>This suit was commenced on 30th January, 2007 before Justice
Imoro Ziblim who then presided over this court. The plaintiffs instituted the
action through their lawful attorney, one Kweku Osei -Prempeh of Plot 18 Otano,
East Legon, Accra.&nbsp; Upon filing the suit
the attorney testified on behalf of the plaintiffs on 7th July,
2008. During his testimony, he tendered in evidence the instrument donated to
him by the first plaintiff, empowering him to act for the plaintiffs. The
instrument was admitted in evidence as exhibit ‘A’. In his evidence he
emphasised that, by the provisions of exhibit ‘A,’ he had the authority of the
plaintiffs to represent them in this suit. The subject matter of the suit is
property known as Plot No. 11, Block G, Bomso, Kumasi. &nbsp;According to the evidence led for the plaintiffs,
the first defendant, acting for himself and, the other two defendants,
represented to the plaintiffs that they are the beneficial owners of the
disputed property. It is the case of the plaintiffs that based on this
representation, they entered into an agreement with the first defendant, representing
all the defendants, to purchase the disputed property for an amount of 450
million old cedis (GH¢45,000.00). Plaintiffs averred that though they carried
out their contractual obligation by paying to the defendants the total agreed
purchase price, the defendants failed and /or refused to perform their part of
the bargain by giving up possession of the property. Plaintiffs were therefore
compelled to institute the instant action, through their lawful attorney,
claiming specific performance of the agreement, damages for breach of contract
in lieu of or in addition to specific performance and, any other reliefs as the
court may deem fit.<o:p></o:p><o:p>&nbsp;</o:p>As I said, the writ was mounted by the lawful attorney of the plaintiffs
based on exhibit ‘A’, a badly drafted document.&nbsp;
Though the donor is the 1st plaintiff whose address shows he
is resident in the United States of America, it was executed in Ghana
suggesting that it was prepared in Ghana and therefore not notorised as would
have been the proper procedure if it emanated from the United States of
America. Accepted that it was prepared and executed in Ghana, it is an invalid
document because it does not meet the mandatory requirements of section 1(2) of
the Power of Attorney Act 1998, Act 549 which is in the following terms:<o:p></o:p><o:p>&nbsp;</o:p>“Where the instrument is
signed by the donor of the power one witness shall be present and shall attest
the instrument.”<o:p></o:p><o:p>&nbsp;</o:p>The exhibit was not signed by any witness. It is true a Commissioner for
Oaths commissioned it, but he did not do so as a witness in terms of section 1(2)
of Act 549. Indeed, the court was wrong when it admitted the invalid document
in evidence. In Asante-Appiah v Amponsah alias Mansah (2009) SCGLR 91, the
Supreme Court per Brobbey JSC at page 94-95 had this to say regarding an
invalid power of attorney:<o:p></o:p><o:p>&nbsp;</o:p>“It is patent on the face of
the power of attorney signed by the donor that no-one signed it as a witness.
The court of Appeal rightly rejected the argument of counsel for the plaintiff
that the commissioner for oaths doubled as both the witness and the person
before whom the power was executed. There is no legal or statutory basis for
the argument. It would be observed that the provision is couched in imperative
terms. In so far as the power of attorney in question was not signed by any
witness, it was not valid… since the power of attorney was invalid, the trial
court should not have admitted it in evidence under the Evidence Act, 1975
(NRCD 323), s 8 which empowers the appellate court to reject evidence which
ought to have been rejected at the trial court. This section has been relied
upon in a number of 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 Airlines (2005-2006) SCGLR 438;
Ussher v. Kpanyinli (1989-1990) 2 GLR 13 and Amoah v Arthur (1987-1988) 2GLR
87. On the basis of these authorities the power of attorney would be rejected
as invalid. 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 plaintiff. In effect, Nana Kwasi Twum
Barim had no capacity with which to prosecute the case.”<o:p></o:p>