Dagadu III And Others Vrs Atakli And Another (HI/27/05.) [2005] GHACA 26 (27 May 2005);

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL  - ACCRA

 

HI/27/05.

27TH MAY, 2005.

 

CORAM  -  FARKYE, JA [PRESIDING], ASIAMA AND KUSI APPIAH, JJA.

 

TOGBE MANKLALO DAGADU III     …  PLAINTIFFS/RESPONDENTS

& 19 OTHERS

                          V E R S U S

AGBOTADUA ATAKLI & 2 ORS.        …    DEFENDANTS/APPELLANTS

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                                          J  U  D  G  M  E  N  T

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FARKYE, JA  - This judgment is in respect of an Interlocutory appeal against the ruling of the High Court Ho, dated 14th April 2003.

       The facts of this case are that the Plaintiffs/Respondents on 11th December, 2001 issued a writ or summons against the Defendants/Appellants claiming:-

  1. Declaration that by the proper and true construction of the two Powers

               of Attorney dated 18/9/70 and 14/7/88 respectively, the attorneys thereof

               have no title, right or authority to alienate title of any Fievie tribal land by

               sale, lease, gift, mortgage or otherwise.

       (2)   Declaration that the purported sale, lease or alienation of any Fievie tribal

               land by the defendants herein under the said Powers of Attorney was Ultra

               Vires the powers granted them and is therefore null and void and of no

               effect.

        (3)   An order for accounts to be rendered by the defendants.

        (4)   An order revoking the Powers of Attorney dated 18/9/70 and 14/7/80

               respectively.

  1. General Damages.

        In this judgment the Plaintiffs/Respondents are referred to as the Respondents and the Defendants/Appellants are also referred to as the Appellants.

        The Respondents claimed to be suing as heads of families and principal members of the Fievie clan who had given power of attorney to the Appellants.  That those people are only to litigate in the name of Fievie Tribal area.  They are not to alienate land without consent and authority of the donors of the powers of attorney.  If the donees alienate land without the consent of the donors the alienation should be null and void.

        After pleadings had closed there was the very important point touching on the two powers of attorney granted to the donees some of whom are the Appellants.  The Appellants trace their source of authority to these two Powers of Attorney.

       Paragraph 40 of the Respondents’ Statement of Claim showed that Ziatum Sagada one of the four attorneys has since died leaving three of the donees alive.  The Appellants grounded their preliminary point of the law on the fact that with the death of one of the donees, the power of attorney also elapsed or died and the three donees of the power of attorney cannot be called to account on the dead power of attorney.

        According to the law a joint agency is terminated by the death of any one of the joint agents.  Therefore in the instant case with the death of Ziatum Sagada in February 1993 the two powers of attorney granted on 18/9/70 and 14/7/88 respectively became extinct.

       However, the 3rd relief of the Respondents is an order of accounts for the Appellants to render to the Respondents all moneys collected by the Defendants/Appellants.  In this regard the Appellants will have to account to the Respondents from 1970 up to 1993 when Ziatum Sagada died and the two powers became extinct.

        Going through the summons for direction filed on 10/10/02 paragraph 4 states as follows:

        “Whether or not the Powers of Attorney conferred on the Defendants right to sell, mortgage, lease or otherwise transfer title in any land in Fievie.

        The Appellants complained about the capacity of the Plaintiffs/Respondents.  We are aware of the authority of Kwan V. Nyeini but not all the Respondents are affected by the authority of Kwan Vrs. Nyeini.  This court is of the view that from the summons for Directions which both parties agreed to the issues and set down for hearing it will be proper and equitable for the High Court to determine the issues by taking evidence.

           In this regard the interlocutory appeal by the Defendants/appellants is dismissed.

 

 

                                                                                       S.T. FARKYE

                                                                                             JUSTICE OF APPEAL

                                                                                                

 

 

 

 

I agree.                                                                                     S.K. ASIAMAH

                                                                                             JUSTICE OF APPEAL

 

 

 

 

I also agree.                                                                               F. KUSI-APPIAH

                                                                                              JUSTICE OF APPEAL

 

 

COUNSEL  -  YAO YEGBEY FOR RESPONDENTS.

                         IGNATIUS DE PAUL FOR APPELLANTS.

 

 

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