LAW TIP
If an invalid attorney initiates the action, the entire case (writ, pleadings, evidence) collapses for want of capacity. But if a valid party initiates and the invalid attorney merely testifies, only the testimony is inadmissible not the entire action. HUSEINI v MORU (J4/17/2012) (27/02/2013)
QUOTE FROM JUDGEMENT
“The distinguishing feature of this case and the one just cited is that whilst in this case the plaintiff issued his writ per his attorney, in the cited case the attorney only gave evidence on behalf of his principal who had issued the writ. So while in the cited case the pleadings and the evidence of other witnesses could be saved, in the case before us writ and pleadings and all evidence based upon it is void for want of capacity.” HUSEINI VRS MORU (Civil Appeal No J4/17/2012) 27th February 2013
LAW TIP
A defective Power of Attorney affects both the capacity to sue and to defend. Where no proper authority exists, service on the purported attorney is ineffective, and any counterclaim or evidence based on it is void. HUSEINI v MORU (J4/17/2012) (27/02/2013)
QUOTE FROM JUDGEMENT
“It is true that a counterclaim is a separate action from the claim. But in the peculiar circumstances of this case the bottom of the matter had been knocked off for want of capacity. If there was no capacity to sue because of the defective Power of Attorney, then there was no capacity to defend the action, any pleadings served on the Attorney would be deemed not to have been properly served on the principal. To the extent that service of defendant’s counterclaim on the deficient attorney is deemed as no service, evidence given in proof of the counterclaim cannot be allowed to stand.” HUSEINI VRS MORU (Civil Appeal No J4/17/2012) (27th February 2013)
LAW TIP
An unsigned or unwitnessed power of attorney is invalid and cannot be used in court. Anyone acting on its authority has no legal right to do so, and the case can fail on that ground alone. HUSEINI v MORU (J4/17/2012) (27/02/2013)
QUOTE FROM JUDGEMENT
“Confronted with a similar situation in the case of Asante-Appiah v Amponsa Alias Mansah [2009] SCGLR 90, the Supreme Court concluded (as stated at pages 94-95 of the Report) that: “It is patent on the face of the power of attorney signed by the donor that no-one signed it as a witness…In so far as the power of attorney in question was not signed by any witness, it was not valid….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 Barima had no capacity with which to prosecute the case… The plaintiff had to establish his capacity before he could expect the court to have considered his case on its merits…The evidence given by Nana Kwasi Twum Barima was inadmissible to the extent that he had no capacity to testify as he did.” The distinguishing feature of this case and the Asante-Appiah case is that whilst in this case the plaintiff issued his writ per his attorney, in the Asante-Appiah case, the attorney only gave evidence on behalf of his principal who had issued the writ. So while in the Asante-Appiah case, the pleadings and the evidence of other witnesses could be saved, in the case before us the writ and pleadings and all evidence based upon it is void for want of capacity.”
OR
“Confronted with a similar situation in the case of Edmund Asante Appiah V Madam Kate Amponsah alias Yaa Mansa 2009 7 GMJ 75 the Supreme Court held as follows; “Since no one signed the power of attorney as a witness in line with the requirements of section 1(2) of the power of attorney act, 1998 act 458, same is invalid to that extent and it could not have provided legitimate basis on which nana Twum Barima could have prosecuted the case on behalf of the appellant. In effect, the evidence given by Nana Twum Barima was inadmissible to the extent that he had no capacity to testify as he did. In the face of this reality, the appellant was left in a situation as if no one represented him and his case thus reduced to mere pleadings filed on his behalf. In fact even before considering the merits of the case, want of capacity alone was sufficient for the appellant to have lost the case,” The distinguishing feature of this case and the one just cited is that whilst in this case the plaintiff issued his writ per his attorney, in the cited case the attorney only gave evidence on behalf of his principal who had issued the writ. So while in the cited case the pleadings and the evidence of other witnesses could be saved, in the case before us writ and pleadings and all evidence based upon it is void for want of capacity. HUSEINI VRS MORU (Civil Appeal No J4/17/2012) 27th February 2013
EDMUND ASANTE – APPIAH v MADAM KATE AMPONSAH (CA J4/34/2007) 20TH NOVEMBER, 2008.
“The parties were agreeable that the appellant was at all material times during the litigation resident in England but sued through Nana Kwasi Twum Barima by the use of a power of attorney which was exhibited at page fifteen of the record of proceedings. That power of attorney was fatally flawed for two reasons. Firstly, the rule as contained in Act 548, s. 1(2) is that “Where the instrument is signed by the author of the power one witness shall be present and shall attest the instrument.” It is patent on the instrument that no-one signed it as a witness. The Court of Appeal rightly rejected the argument of counsel for the appellant that the Commissioner for Oath doubled as both the witness and the person before whom the power was executed. There is no legal or statutory basis for that argument. It would be observed that the provision is couched in imperative terms. In so far that the power of attorney in question was not signed by any witness, it was not valid.”