ALL TIME CAPITAL VS FISH FARMERS BRIGADE & ANOR
2016
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JUSTICE DOREEN G. BOAKYE-AGYEI MRS
Areas of Law
- Evidence Law
- Civil Procedure
- Property and Real Estate Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
In the Ghana High Court, following judgment against a defaulting borrower and initiation of execution processes, a property was attached to satisfy the judgment debt. A third-party claimant asserted ownership of the attached property and tendered documents. The plaintiff lender’s representative sought to place before the court the materials that informed the lending decision, including documents provided by Rev. Prince Dugah, notably a power of attorney from Mad. Limia Opoku authorizing him to use her property as security. Claimant’s counsel objected that the power of attorney lacked a witness and had not been stamped, citing section (2) of the Power of Attorney Act, 1995 (Act 459) and authorities. The court emphasized the document was not tendered as authority for testimony but as part of the transactional record, and ruled that admitting it would not contravene the law. The document was admitted as Exhibit C, with weight to be determined after parties’ addresses.
Plaintiff Representative in the box in giving his Evidence in Chief seeks to tender in evidence the documents which informed their decision to grant a loan to Defendant herein who defaulted in paying back the loan.
Judgment has been entered against the Defendant herein and the execution processes have been initiated against the Defendant/Judgment/Debtor.
It is for this reason that a property was attached in satisfaction of the Judgment Debt.
Claimant has come in also claiming the property as his.
Claimant has testified and tendered his documents to the Court.
Plaintiff in the bid to show that the property was rightfully attached also seeks to tender the documents that Rev.
Prince Dugah used to secure the loan.
One of such is a Power of Attorney given by one Mad.
Limia Opoku to the said Rev.
Prince Dugah to use her property as security for the loan.
It is at this point that the Claimant Counsel has objected to the tendering of this document, the purported Power of Attorney.
The basis of their objection is that the said Power of Attorney was not witnessed and it was also not stamped to give to any form of validity.
They have prayed the Court to reject same.
Plaintiff Counsel in his response has said that the issue of stamping is a matter of revenue and does not affect the validity of same as they can have it stamped.
As regards the witnessing of the Power of Attorney as required by law, the Plaintiff Counsel has asked the Court to regard the stamp of the Commissioner for Oaths to suffice as that of the witness.
The Court of Appeal case of Mohammed Sani Bello (suing per Lawful Attorney-Ernest Anoo-Dodoo) V. Joseph Asumadu Nyarko reported in the Ghana Monthly Judgments (2011) 36 GMJ pg 86(dated August 1st , 2011) has been cited to the Court by Claimant Counsel.
This Case gives effect to Section (2) of the Power of Attorney Act, 1995(Act 459) which provides that ‘’where the instrument is signed by the Donor of the Power, one witness shall be present and shall attest the instrument.
I have also looked at the Case of Fosua and Adu-Poku V. Dufie(Dec’d) Adu-Poku Mensah (2009) SCGLR 310 and the earlier case of Sarkodie 1 v Boateng II (1982-83) 1 GLR 715 I have seen the authorities and I am of the view that Plaintiff Representative is not presenting the document as his authority to testify in this Court but as part of the documents submitted to them by Rev.
Prince Dugah and which they used to consider in giving the loan to Defendant and for which se