DHL GHANA LTD v. MERIDIAN PORT GHANA LTD
2018
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Contract Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
In this High Court ruling by His Lordship Eric Kyei Baffour, the Defendant sought to strike out a writ issued for DHL, arguing that the power of attorney authorizing the action was invalid. DHL, a corporate entity, had its Chief Financial Officer, Eric M. K. Sarbah, execute the instrument appointing Expert Consult, which was witnessed by only one person, Jedidiah Botchway. The Plaintiff maintained that single witnessing sufficed and relied on authorities addressing unwitnessed instruments. The court analyzed section 1 of the Powers of Attorney Act, Act 549, distinguishing subsection (2), applicable when the donor signs, from subsection (3), applicable when a person authorized by the donor signs and requiring two witnesses. Bound by Supreme Court authority, including Asante-Appiah v Amponsah, the court held the single witness did not satisfy section 1(3), rendering the power of attorney incompetent. It struck out the writ and made no order as to costs.
RULING
Defendant/Applicant is praying for an order of the court to strike out the writ of Plaintiff on the grounds set out in the affidavit. The essence of the application is that the power of attorney through which the writ was issued is incompetent as it does not meet the requirements of the law. To Applicant the attorney is not clothed with capacity making the power of attorney incompetent.
Moving the motion in court learned counsel for Applicant relied on section 1(3) of the Powers of Attorney Act, Act 549 and noted that the principal, DHL, a body corporate authorised one Eric M. K. Sarbah, who is the Chief Financial Officer of Plaintiff company to sign the power of attorney on its behalf. To the Applicant the power of attorney by law ought to have been attested by at least two witnesses and on the face of the document it is only one witness that signed the power of attorney.
Plaintiff/Respondent has opposed the application per an affidavit in opposition contending that the power of attorney was duly attested to by a witness. And in the written submission filed, counsel for Plaintiff has raised matters of law claiming that all the authorities are to the effect that a power of attorney is a nullity only when it has not been witnessed which is not the case in this suit as the Plaintiff has duly through its authorised representative signed the power of attorney and it is witnessed by one Jedidiah Botchway.
Ex ‘IE’ attached as the power of attorney to Plaintiff’s application for summary judgment, the power was executed by Eric Sarbah on behalf of DHL in the presence of Jedidiah Botchway, an accounts receivable manager. Does that sin against the law?
The Powers of Attorney Act, Act 549 states in section 1 as follows:
(1) An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorised by him in the presence of the donor.
(2) Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument.
(3) Where the instrument is signed by a person authorised by the donor, two witnesses shall be present and shall attest the instrument.
It appears that Eric Sarbah is not the donor of the power and cannot be within the intendment of section 1(2). And DHL being a legal persona that must of necessity act through its authorized officers cannot act personally. In this respect, Eric Sarbah could only have signed the document on behalf of the Plaintiff DHL and that would me