ALS MINERALS/GEOCHEMISTRY vs. OWERE MINES LIMITED [2018]DLHC3968

Date	2018-07-27
Suit No.	SUIT NO. RPC 32/2017
Citation No.	[2018]DLHC3968

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

J. B. DANQUAH FOR PLAINTIFF

YAW BOAFO WITH FRANCISCA AYIVOR FOR DEFENDANT

[2018]DLHC3968
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													<main id="main" class="content" style="min-height: 60rem" >ALS
MINERALS/GEOCHEMISTRY<o:p></o:p>vs.<o:p></o:p>OWERE MINES LIMITED<o:p></o:p>&nbsp;[HIGH
COURT (COMMERCIAL DIVISION), 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&nbsp;NO. RPC 32/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 27TH JULY, 2018<o:p></o:p>

</div>COUNSEL
<o:p></o:p>J. B. DANQUAH FOR
PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
margin-bottom:0in;margin-left:0in;margin-bottom:.0001pt;text-align:center;
line-height:115%;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none"><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-top:1.45pt;margin-right:0in;
margin-bottom:0in;margin-left:0in;margin-bottom:.0001pt;text-align:center;
line-height:115%;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This
ruling is in respect of a preliminary legal matter raised by counsel for the
defendant.<o:p></o:p>Counsel
for the defendant has taken aim at the witness statement given and filed by one
Godfrey Owusu Ansah who described himself as the Chief Accountant of the Plaintiff
company. The said statement was given on behalf of the Plaintiff company.
Counsel’s objection is that the since the plaintiff company has given a power
of attorney to Global Debt Trackers to institute this action on its behalf and
the said power of attorney has not been revoked, Godfrey Owusu Ansah as an
officer of the company cannot testify on behalf of the company. Counsel cited
the case of <a name="_Hlk520406946">Kofi Oduro v Cynthia Okyere </a>(2014) 69
GMJ 108 to 109 and submitted that since there is no limitation on the authority
of the attorney to act and no provision is made in the power of attorney for
the plaintiff to act while the instrument is still in existence, it is wrong
for the plaintiff to act through its officer. He therefore invited the court to
dismiss the instant action.<o:p></o:p>In
his response, counsel for the plaintiff stated that he is opposed to the application.
He submitted that when a party appoints an attorney to act in his name and on
his behalf, the party does not waive his right to perform any part of the duty
assigned to the attorney. He stated that nothing in the Power of Attorney Act,
1998 suggests that when you appoint an attorney then you seize to have the
power to act for yourself with respect to what you asked the attorney to do. He
stated that if the framers of the Act wanted that situation to prevail they
would have provided same in the Act. He submitted that according to Hon Sir
Peter Millet<a name="_Hlk520405761">in his Encyclopedia of Forms Precedents</a>5th
edition, vol 31, power of attorney is part of the law of agency and once an
attorney is appointed he becomes the agent of the donor (principal).
Consequently, a principal does not waive his right to act when he appoints an
agent. Counsel for the plaintiff also submitted that the Kofi Oduro case
(supra) must be distinguished from the instant case since in that case the
principal limited the duty of the attorney to act only when the principal was
out of the jurisdiction and therefore it stands to reason that when the
principal was present in the jurisdiction then the attorney could not act for
him. Counsel further submitted that the said officer of the company is only
acting as a witness for the company and that under sections 59 and 60 of the
Evidence Act, 1975 (NRCD 323) he is qualified as a witness. He referred to the
case of <a name="_Hlk520411533">Isaac Osei Sarfo v Samuel Kwame Sackey</a>
(2011) 31 GMJ CA and submitted that notwithstanding that a principal gave a
power of attorney, it was proper for the principal to give evidence in the case.
Counsel invited the court to dismiss the application.<o:p></o:p>This
legal objection was raised after the case management conference when the
parties had filed their witness statements. Indeed, it was the plaintiff’s
witness statement that triggered this legal objection and since it borders on
capacity of the plaintiff the court is amenable to deal with it, as the issue
of capacity can be determined at any time during the proceeding.<o:p></o:p>The
contentious witness statement is headed as follows:<o:p></o:p>WITNESS STATEMENT BY MR GODFREY OWUSU
ANSAH (ACCOUNTANT) FOR PLAINTIFF<o:p></o:p>It
is provided under paragraphs 1 and 2 of the witness statement as follows:<o:p></o:p>“1.
I am Godfrey Owusu Ansah of H/No. Plot 24 Block ‘K’ Fankyenbra, Kumasi and also
of ALS Minerals/Geochemistry Ashanti Region.<o:p></o:p>2.
I am the accounts Administrator of the Plaintiff company and have its consent
and authority to make this statement for and on behalf of the company.”<o:p></o:p>Meanwhile
the power of attorney that appointed and authorized Global Debt Trackers to act
on behalf of the plaintiff states:<o:p></o:p>