CAL BANK LIMITED v. RICHES CORNER COMPANY LIMITED & 3 ORS. AND NANA BOAKYE

RULING

On 30/08/2017, one Nana Boakye, who described himself as the attorney of Kofi Aboagye Nyame, filed a notice of claim in respect of House number 2 Block XI, Manhyia Extension, Kumasi which the execution creditor herein, CAL BANK LIMITED, had attached in execution. The claimant claimed ownership of the said property.

The execution creditor also filed a “Notice Of Dispute Of Claim” on 08/09/2017. Upon an ex-parte application filed by the Registrar of this court on 06/12/2017, an order was made on 08/01/2018 for the claimant and the execution creditor to appear in court for the determination of the issue of ownership of the house which has been attached.

When the parties to the interpleader application appeared in court, they were ordered to file their respective affidavit of interest and affidavit in response, and exhibit all documents relevant to the determination of the matter. Based on the depositions contained in the affidavits filed and the documents exhibited thereto, the court ordered both counsel to file their submissions, a further order was made for counsel to address the court as to whether the holder of a power of attorney can initiate proceedings in court in his own name.

The point raised by the court on whether the holder of a power of attorney can institute an action in his own name will be dealt with first. It is to be noted that counsel for the execution creditor did not file any submissions on this point. For the claimant, counsel conceded that Nana Boakye issued the notice of Claim in his name, but he disclosed the capacity in which he did so, that is, the attorney of Nana Aboagye Nyame, and proceeded to exhibit the said power of attorney. Counsel then argued that the capacity of the attorney has not been lost and the court can grant an amendment to reflect the capacity of the attorney. He cited and relied on the case of Kimon Compania Naviera S.A.R.P. & Ors v. Volta Lines Ltd (1973) 1 GLR 140.

The law is that the holder of a Power of Attorney who is mandated to sue, can only do so in the name of his principal, and not in his own name. In the Kimon Compania Naviera case referred to above, the court stated this legal position as follows (holding 1):

a person suing by a lawful attorney could only sue in the name of the principal and not in his own name…

In the above cited case however, the court did not close the door to the Plaintiffs who had to amend the title of the suit to reveal the real Plaintiffs who were in existence. In