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June 26, 2023
HIGH COURT
GHANA
CORAM
The Plaintiff/Respondent (hereinafter referred to as “the Respondent”) caused a Writ of Summons to be issued on 3rd August 2022, through her Lawful Attorney, claiming the following reliefs:
a. A declaration that the Plaintiff is co-owner of all properties listed in paragraph 7[sic] of the Statement of Claim;
b. A declaration that the 1st Defendant is intermeddling in the property of Hope Ogbetey;
c. That the 1st Defendant is not entitled to any of the properties of the husband of the Plaintiff;
d. An order that the part of the properties listed in paragraph 8 of the statement of claim that belongs to Hope Ogbetey is subjected to PNDC Law 111.
e. An order for injunction restraining the defendants herein, their servants, privies, attorney, agents or howsoever described from entering, taking possession of, selling or developing any of the immovable properties listed in paragraph 8 of the statement of claim and any other property jointly acquired by her and her husband.
On 21st March 2023, the Defendants/Applicants (hereinafter referred to as “the Applicants”) filed the instant motion on notice for an Order to set aside the Writ of Summons and Statement of Claim on grounds that the Power of Attorney by which the Respondent commenced the action is “defective in so far as it was executed abroad and has not been sworn to before a Notary Public of that country in accordance with the laws of Ghana”.
Counsel for the Applicants contends that the Power of Attorney, “being defective, denies Fred Baeta Kwasi Asare, of capacity to sue and to maintain an action for and on behalf of the plaintiff herein in Court in Ghana”.
In his written submission filed on 6th June 2023, Counsel for the Applicants submits that there is no sign of notarization on the face of the Power of Attorney used by the Plaintiff’s Attorney and fiercely contends that, for a Power of Attorney executed in Toronto, Canada, such absence of notarization is fatal to answer for capacity to commence the action.
The learned Counsel also submits that ‘the validity/admissibility for the use of a Power of Attorney, executed abroad, goes to the capacity of the Attorney to initiate proceedings in Court, in Ghana, and also goes to the jurisdiction of a Court of Competent Jurisdiction to entertain same.’
The learned Counsel buttresses his submission with Rule 15 of Order 20 of the High Court (Civil Procedure) Rules, 2004 (CI 47) which provides:
“Affidavit taken in other countries
15. A document purport
AI Generated Summary
This High Court ruling by His Lordship Justice Amos Wuntah Wuni addresses a procedural attack on the capacity of an attorney to sue in Ghana based on a power of attorney executed in Toronto, Canada. Mrs. Margaret Abla Ogbetey initiated proceedings through her attorney, Mr. Fred Baeta Kwasi Asare, seeking declarations regarding co-ownership of properties and protection of the estate of her husband, Hope Ogbetey, including application of PNDC Law 111 and injunctive relief against defendants. The defendants moved to set aside the writ and statement of claim, arguing that the foreign-executed power of attorney was defective because it lacked notarization. Relying on the Powers of Attorney Act, 1998 (Act 549) and the Supreme Court’s clarification in Florini Luca & Anor v Mr Samir & Ors, the court held that notarization is not required; the critical requirement is that the donor signed in the presence of a witness who attested. The court distinguished Order 20 Rule 15 as limited to affidavits taken abroad and found Evidence Act section 161 inapplicable to private instruments. Having examined the instrument, witnessed by Douglas Deepon, the court dismissed the application and awarded costs.