Section 1(2): attestation by a commissioner for oaths or notary public
If our decision in Asante-Appiah v Amponsah has been interpreted as disqualifying a commissioner for oaths from acting as a witness to a power of attorney, or to mean that a power of attorney cannot be validly constituted by a statutory declaration sworn to before a commissioner for oaths, then we hereby depart from that decision pursuant to Article 129(3) of the Constitution. In our view, a power of attorney constituted by a statutory declaration attested by a commissioner for oaths or Notary Public has more gravitas than one stated on a paper signed by the donor and attested by a witness without an oath
Section 1(2): execution and attestation of a power of attorney
To be valid, a power of attorney must be executed in conformity with section 1(2) of the Powers of Attorney Act, 1998 (Act 549). Section 1(2) of Act 549 provides that, “where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument.” Where the power of attorney is signed outside Ghana, a notary public before whom it is signed qualifies as the witness envisaged by section 1(2) of Act 549, and the power of attorney shall be valid.
In our understanding, the critical fact to look for when the validity of a power of attorney is questioned on ground that it has not been witnessed is for the court to satisfy itself that the donor signed the instrument in the presence of a witness and that that witness signed the instrument signifying that she was present at the execution of the instrument by the donor.
