DZANKU v. AFALENU AND ANOTHER [1968] GLR 792

Division: HIGH COURT, HO

DATE: 25 SEPTEMBER 1968

BEFORE: KINGSLEY-NYINAH J.

NATURE OF PROCEEDINGS

RULING on preliminary objection on behalf of the defendants. The facts are fully set out in the ruling of the court.

COUNSEL

W. T. Doku for the plaintiff.

F. T. C Amorin for the first defendant.

T.E. Kwaku for the second defendant.

JUDGMENT OF KINGSLEY-NYINAH J.

By Paragraph (1) of his statement of claim, the plaintiff herein, positively avers that he “is the lawful attorney and an elder of the Aforkpo family of Klepe and sues for and on behalf of Komla Anku and Sappeh Kwasi the heads and representatives of the Aforkpo family of Klepe.” The plaintiff further positively avers in paragraph (4) that in 1953, he “was appointed as attorney of the Aforkpo family with the consent and concurrence of the heads and the principal members of the said Aforkpo family of Klepe, and he is still the lawful attorney of the said family.” There is in very fact, a power of attorney dated 28 September 1953. That document clearly shows Komla Anku and Sappeh Kwasi as the donors for and on behalf of the Aforkpo family of Klepe, and Phanuel Kodjo Dzanku, the plaintiff herein, as the donee of the power. Turning to the statement of defence filed by the first defendant, we find him roundly denying the averments and claims made by the plaintiff as to the question of his appointment as lawful attorney. In the course of the arguments of all learned counsel herein, the

[p.793] of [1968] GLR 792 defendants pressed that point and urged that with the death of one of the donors of the power of attorney appointing the plaintiff herein, the power failed completely and ceased to have any force or effect or either.

What is a “power of attorney”? It is described as a formal document whereby one person empowers another to stand in his stead, or to represent him, for certain specific purposes. It may either be a special power, or else a general power. In the case of the latter, the general power, the person unto whom the power is given, the donee, becomes invested with full power to do such periodic acts as carrying on a business or collecting debts belonging to the donor of the power. Where the power is special, however, the donor of the power confines the donee to the doing of certain specified acts. After carefully reading and considering the power of attorney which formed the subject-matter of learned counsel’s arguments, I am satisfied to construe it as an authority specifically empowering the plaintiff to act for and on behalf of the Aforkpo family of Ho, in and concerning all matters touching and “affecting the Aforkpo family land situate lying and being at Ho Bankoe”. It is an authority containing precise instructions as to how the power shall be executed by the plaintiff. In my view, the essence of this power is the right of the plaintiff-donee to institute and prosecute proceedings, or to defend actions, whenever the Aforkpo family lands stand in danger from adverse claimants. In this instant matter, it is not denied by the defendants herein, that the power appointing the plaintiff herein emanated from the two constituents, namely, Komla Anku, and Sappeh Kwashie (or Kwasi). Nor has any evidence been led by the defendants (beyond their disputations and contrary averments in their pleadings) to neutralise the plaintiff’s assertion that at the time of the power of attorney, the two principals, Komla Anku and Sappeh Kwasi, had the authority and the concurrence of the principal elders and members of the entire Aforkpo family to give unto the plaintiff herein that power to prosecute and to defend suits involving and affecting the family lands, as he has all along maintained. And it stand out from the pleadings herein, that at some time previous to the commencement of this present action, the plaintiff-donee had stepped into the arena of litigation in a matters that touched and concerned Aforkpo family property. At all times material to this and the previous suits, the plaintiff-donee of this power was, has been, and still is a member of the Aforkpo family, and, thereby, a person inherently interested in the properties of that family. [p.794] of [1968] GLR 792

What then is the effect of the death of one of the imponents of this power of attorney? After anxiously considering both sides of the argument, having especial regard to the state of the pleadings herein, I am persuaded to the view that since only one of the two donors, Sappeh Kwasi, has died leaving, him surviving, the other principal, Komla Anku who has not been shown by any evidence to have as yet been customarily rejected as head of family, the validity of the power must be held to remain intact and the force thereof to be completely unaffected by that death. And it is significant to note that for the past fifteen years when the plaintiff has been acting under this power to the knowledge of the first defendant and of the other members of the Aforkpo family, no one has ever, until now, seen it fit to challenge the validity of the power herein. On the contrary, the family has, by its conduct, confirmed both the imponents of the power and the donee thereof, in all that they have done thereunder. Equity never aids the indolent in such matters and it is my opinion that the Aforkpo family is estopped from denying the propriety of Phanuel Dzanku’s presence in this suit as plaintiff, or the validity of the power, or both. Although it is the general principle that whenever the donor of a power of attorney dies, the whole of that authority stands revoked, I hold that in the peculiar circumstances of this instant matter, the authority of Komla Anku cannot properly be withdrawn from his donee, Phanuel Kodjo Dzanku the plaintiff herein. I rule, therefore, that until this power of attorney becomes legally and properly revoked by the decease of the other remaining principal, Komla Anku, or by any due process of custom, the plaintiff shall be entitled to do all such acts, deeds or things and continue to perform all such duties, as are specifically set forth in the power of attorney. Let the trial of the substantive suit proceed herein with Phanuel Kodjo Dzanku as the plaintiff and in the capacity in which he has sued.

I award costs in favour of the plaintiff against the defendants herein in the sum of 22 guineas or N¢46.20.

DECISION

Submission overruled.

Substantive suit to proceed.

S. K. T.