KWAME OWUSU vs. THOMAS YALLEY [2018]DLHC4121

Date	2018-01-16
Suit No.	SUIT NO.OCC/26/18
Citation No.	[2018]DLHC4121

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

MARGERATE MARY AGYEI TWUM FOR DEFENDANT/APPLICANT

ISAAC CHRISTOPHER FOR PLAINTIFF/RESPONDENT

[2018]DLHC4121
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													<main id="main" class="content" style="min-height: 60rem" >KWAME OWUSU<o:p></o:p>vs.<o:p></o:p>THOMAS YALLEY<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;
padding:0in 0in 1.0pt 0in">

SUIT NO.OCC/26/18&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 16TH
JANUARY, 2018<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MARGERATE MARY AGYEI TWUM
FOR DEFENDANT/APPLICANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ISAAC
CHRISTOPHER FOR PLAINTIFF/RESPONDENT <o:p></o:p>

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

RULING<o:p></o:p>

</div>On
09/11/2017, the Plaintiff, Kwame Owusu, caused a writ of summons and statement
of claim to be issued from the registry of this court for the following
reliefs:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Recovery of cash in the sum of GHC
75,000.00 being the cost price and additional expenses incurred by the
Plaintiff in buying a KIA Frontier K2700 truck from Germany to Ghana in October,
2014.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Interest on the said sum from October, 2014
to date of final payment at the prevailing bank rate.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Damages for breach of contract Costs.<o:p></o:p>Upon
service of the writ on the Defendant, Thomas Yalley, he caused his lawyer to
file a notice of appearance on his behalf on 14/11/2017. This was followed by a
motion on notice to set aside the Writ of Summons, it was filed on 29/11/2017
with a return date of 21/12/2017, just a day to the Christmas vacation.<o:p></o:p>An
affidavit in opposition to the said motion was deposed to by one Kwabena Tawiah
who described himself as the lawful attorney of the Plaintiff/Respondent.
Before the motion could be moved on the return date, counsel for the Defendant/Applicant
raised a preliminary objection to the power of attorney on which the Kwabena
Tawiah relied to depose to his affidavit in opposition.&nbsp; <o:p></o:p>The
basis of the objection was that from the Plaintiff’s writ of summons and
statement of claim, he is ordinarily resident in Germany, his address endorsed
on those processes is an address in Germany and on the power of attorney, he
also indicated an address in Ghana, namely, Unnumbered house at Abuakwa, Nsonyameye,
Kumasi.&nbsp; According to counsel, the power
of attorney is dated 16/03/2017 and it was witnessed by one Paul Nsiah in
Ghana.&nbsp; She argued that they know for a
fact that the donor of the power, that is , the Plaintiff&nbsp; herein, was&nbsp;
in Germany on the said date and there was no way Paul Nsiah could have
witnessed the document in the presence of the donor. Counsel submitted that the
power of attorney in issue does not meet the requirements of the Powers of
Attorney Act, Act 549.<o:p></o:p>Counsel
for the Plaintiff/Respondent disagreed with these submissions. In response, he
argued that even though the plaintiff is ordinarily resident in Germany, at the
time the power was donated, he was in Ghana, hence, the legal requirements
complained of have been met. In his view, the matters raised by counsel for the
Defendant/Applicant could be put to the Plaintiff’s lawful attorney during
cross-examination. <o:p></o:p>After
listening to the submissions of both counsel on this preliminary objection, the
court granted leave to the Plaintiff/Respondent to file a supplementary
affidavit to verify the dates of his arrival in, and departure from Ghana and
also exhibit the identity pages of his pass port. He was cautioned that any
information provided will be verified from the Ghana Immigration Service. The Plaintiff/Respondent
was to file the supplementary affidavit with the supporting documents within 5
working days from 21/12/2017. To date, no such process has been filed. It is
therefore reasonable to infer that the Plaintiff does not intend to furnish the
court with t</main>