KOJO BRUCE vs. CHARLES LWANGA PUOZUING [2014]DLCA5120

Date	2014-05-15
Suit No.	CIVIL APPEAL NO. H1/143/2013
Citation No.	[2014]DLCA5120

MARFUL- SAU JA (PRESIDING)

ACQUAYE JA

MARGARET WELBOURNE JA

[2014]DLCA5120
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													<main id="main" class="content" style="min-height: 60rem" >KOJO BRUCE<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>CHARLES LWANGA PUOZUING<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<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="MsoNoSpacing" align="center" style="margin-left:.5in;text-align:center;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO.
H1/143/2013&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: 15TH
MAY, 2014<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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MARFUL-
SAU JA (PRESIDING), ACQUAYE JA, MARGARET WELBOURNE JA<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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JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA: <o:p></o:p>The
fundamental issue raised in this appeal is whether or not the trial Judge was
right in dismissing the appellant’s application for interlocutory injunction
not on the merits of the application but for the reason that the applicant
failed to exhibit his power of attorney in the proceedings.&nbsp; The brief facts of the case are that the appellant
Kojo Bruce per his lawful Attorney Yaw Effah issued a writ against the respondent
for various reliefs including recovery of possession of a parcel of land,
general damages, perpetual injunction and an order for the demolition of all unauthorized
structures on the land in dispute.<o:p></o:p>The
appellant’s writ was followed by an application on notice for interlocutory
injunction against the respondent.&nbsp; At
paragraph 2 of the affidavit in support of the motion for injunction the
attorney of the appellant depose thus:<o:p></o:p>“2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That I am the lawful Attorney of the Plaintiff
whose authority I have to depose to those matters that are within my knowledge
on his behalf.”<o:p></o:p>The
respondent filed an affidavit in opposition to the application for injunction
on the 18th February 2013.&nbsp; In
the said affidavit the respondent did not expressly raise any issue regarding
the capacity of the Attorney of the appellant to depose to the affidavit in
support of the motion.&nbsp; What the
respondent deposed to in paragraph 4 of the affidavit in opposition was this:<o:p></o:p>“4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That I am vehemently opposed to the
application for interim injunction as same is incompetent, irregular and
misconceived.”<o:p></o:p>The
respondent however failed to show or explain why the application was
incompetent, irregular and misconceived in the said affidavit.<o:p></o:p>The
application for injunction was heard by the court on the 26th
February 2013.&nbsp; In his response to
submissions by Counsel for appellant, the respondent, for the first time,
raised the issue of appellant attorney’s failure to exhibit his power of attorney.&nbsp; This is what the respondent said at page 43
of the record of appeal.<o:p></o:p>“We
are opposed to this application.&nbsp; The
application is irregular.&nbsp; My Lord will
notice that the writ was issued by an Attorney.&nbsp;
The affidavit supporting the substantive interlocutory application was
sworn to by the said Attorney.&nbsp; I am fortified
by the case of Asante Appiah V. Amponsah
alias Mensah 2009 SCGLR 90.”<o:p></o:p>It
seems from the record that the application was adjourned for ruling on the 28th
February 2013.&nbsp; However on the 27th
February 2013 a day after the objection was raised by the respondent, the appellant
filed a supplementary affidavit exhibiting the power of attorney.&nbsp; It was clear from the record that this
Supplementary Affidavit with the power of attorney was brought to the notice of
the trial Judge but notwithstanding same, the trial Judge delivered a ruling
dismissing the application for injunction on the sole ground that the deponent
of the affidavit in support of the application being an attorney, did not
exhibit his power of attorney.&nbsp; The trial
Judge delivered at page 50 of the record as follows:-<o:p></o:p>“This morning
when I was about to sit, another supplementary affidavit was placed on the
docket, which purported to exhibit a power of attorney.&nbsp; I must state that counsel for parties who
have been engaged by clients should handle their clients’ case professionally
but not anyhow, since you owe such persons duty of care.&nbsp; I am not prepared at this stage to comment on
the power of attorney now, since at the time of deposing to the facts in the
affidavit and at the time of writing the ruling no evidence was adduced to show
that the deponent had authority.”<o:p></o:p>It
is against this ruling dismissing the application that the appellant has
mounted this appealed. &nbsp;The appellant
formulated five grounds of appeal which is contained in the Notice of Appeal at
page 58 to 59 of the record of appeal.<o:p></o:p>As
I noted from the beginning of this ruling the only issue for determination in
this appeal is whether the trial Judge was right in dismissin</main>