KOJO BRUCE v. CHARLES LWANGA PUOZUING

J U D G M E N T

MARFUL-SAU, JA: - The fundamental issue raised in this appeal is whether or not the trial Judge was right in dismissing the appellant’s application for interlocutory injunction not on the merits of the application but for the reason that the applicant failed to exhibit his power of attorney in the proceedings. The brief facts of the case are that the appellant Kojo Bruce per his lawful Attorney Yaw Effah issued a writ against the respondent for various reliefs including recovery of possession of a parcel of land, general damages, perpetual injunction and an order for the demolition of all unauthorized structures on the land in dispute.

The appellant’s writ was followed by an application on notice for interlocutory injunction against the respondent. At paragraph 2 of the affidavit in support of the motion for injunction the attorney of the appellant depose thus:

“2. That I am the lawful Attorney of the Plaintiff whose authority I have to depose to those matters that are within my knowledge on his behalf.”

The respondent filed an affidavit in opposition to the application for injunction on the 18th February 2013. In the said affidavit the respondent did not expressly raise any issue regarding the capacity of the Attorney of the appellant to depose to the affidavit in support of the motion. What the respondent deposed to in paragraph 4 of the affidavit in opposition was this:

“4. That I am vehemently opposed to the application for interim injunction as same is incompetent, irregular and misconceived.”

The respondent however failed to show or explain why the application was incompetent, irregular and misconceived in the said affidavit.

The application for injunction was heard by the court on the 26th February 2013. In his response to submissions by Counsel for appellant, the respondent, for the first time, raised the issue of appellant attorney’s failure to exhibit his power of attorney. This is what the respondent said at page 43 of the record of appeal.

“We are opposed to this application. The application is irregular. My Lord will notice that the writ was issued by an Attorney. The affidavit supporting the substantive interlocutory application was sworn to by the said Attorney. I am fortified by the case of Asante Appiah V. Amponsah alias Mensah 2009 SCGLR 90.”

It seems from the record that the application was adjourned for ruling on the 28th February 2013. However on the 27th February 2013 a day after the objection was raised by th