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BROBBEY JSC:
This is an appeal from the decision of the Court of Appeal which allowed an appeal against the decision of the High Court sitting at Koforidua. The facts which gave rise to the litigation before this court are as follows: The plaintiff who shall hereafter be referred to as the appellant claimed that he alone bought the subject matter of the case which is a house together with an adjoining plot, both of which are situated at Apedwa. He further claimed to have bought it from its original owner, the United African Company and after the purchase he permitted his late brother and the brother’s family to live in it. The respondent was the wife of the late brother who also lived in the house.
It was part of the case of the appellant that after the death of her husband the respondent admitted at various meetings that the property belonged to the appellant.
The respondent denied the claims of the appellant. She rather contended that the property was bought jointly by the appellant and her deceased husband who was the half brother of the appellant. After the trial, the High Court gave judgment for the appellant. The respondent then appealed to the Court of Appeal which allowed the appeal and reversed the judgment of the High Court. Aggrieved by that decision, the appellant appealed to this court.
The appellant filed four grounds of appeal but ended up arguing three of them.
The most fundamental of the grounds was ground (c) which read as follows:
“The appellate court erred in its construction of section 2 of the Power of Attorney Act, 1998 (Act 548).”
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 att