Who Can Serve As Witness To A Power Of Attorney – The Case Of Luca & Another V. Samir And Others

Author: Barbara Ewoenam Kukah

A power of attorney is a written authorization that is given by one person (the “donor”) to another (the “donee”) to enable the donee to represent the donor and make decisions or take actions in the donor’s stead. It has also been defined by Hayfron-Benjamin JSC in the case of Hussey v. Edah  [1992-93] Part 4, GBR 1703 at 1714, as a “formal document by which one person, usually called the principal or donor, divests to another, usually called the attorney or donee, authority to represent him or act in his stead or for certain purposes spelt out in the document.”

The primary law that regulates the creation and validity of powers of attorney in Ghana is the Power of Attorney Act (Act 549). Under this Act, in order to be valid, a power of attorney must be signed by the donor in the presence of a witness who must also sign to attest the document. In the event that the donor is unable to sign the document, another person can be authorised by the donor to sign on the donor’s behalf. In such a case, the person signing for the donor must sign it in the presence of the donor and two attesting witnesses. This requirement is what gives the power of attorney legal validity and without it, the document  and any action carried out thereto is invalid.

In the case of Asante v. Maersk [2003-2005] 2 GLR 43 – 58, the Plaintiff who resided in Germany and wished to initiate a lawsuit in Ghana gave a power of attorney to her mother to prosecute the action on her behalf. The power of attorney was however prepared in Kumasi, Ghana, and signed by a witness before being sent to Germany to be signed by the Plaintiff/donor. Although the lawsuit was indeed commenced, the court held that the power of attorney was invalid because the witness did not witness the donor signing. This decision was based on the requirement by Act 549 that a witness must first witness the donor signing it and then attest the document. The power of attorney could therefore not be used by the Plaintiff’s mother as the basis of commencing the action.

The importance of a witness was once again emphasised in the case of Huseini v. Moru [2013-2014] 1 SCGLR 363. In this case, the Plaintiff through his lawful attorney had commenced an action and received judgment in his favour but the judgment  was reversed on appeal when it was discovered that the power of attorney had not been signed by a witness.  It was held to be invalid, meaning it was impossible for the Plaintiff’s attorney to have relied on it to commence the action. The entirety of the Plaintiff’s case was thus struck out. 

It is important to note that even in situations where the power of attorney  is signed by a witness who attests to the donor executing the document in the witness’ presence , the question of who can actually serve as a witness is one that has arisen and been the cause of much discourse. Act 549 for its part does not specify who qualifies as a witness. Section 1 of Act 549 provides as follows:

1) An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorised by the donor in the presence of the donor.

(2) Where the instrument is signed by the donor of the power, one witness shall be present and shall attest the instrument.

(3) Where the instrument is signed by a person authorised by the donor, two witnesses shall be present and shall attest the instrument.

(4) This section applies in addition to a requirement under an enactment in respect of witnessing of an instrument creating a power of attorney including the rules relating to the execution of instruments by bodies corporate.

In the case of Asante-Appiah v. Amponsah (2009) SCGLR 90, the Plaintiff executed a power of attorney for his donee to initiate a suit on his behalf. The power of attorney was signed by the donor but not by a witness. It was however executed in the presence of a commissioner for oaths. When an objection was made as to its validity on the basis that it was not signed by a witness, the Plaintiff’s counsel argued that the commissioner for oaths doubled as the witness and the person before whom it was signed. This argument was however rejected by the Court of Appeal and subsequently the Supreme Court on the ground that there was no legal or statutory basis for that argument. Dotse JSC in that case stated that the Act was couched in imperative terms and that the document was invalid because it was not signed by a witness.

From the time it was decided, this case has been treated as the legal precedent on the issue of who may act as a witness. On the authority of this precedent, the consensus has been that whoever a witness may be, it cannot include a commissioner for oaths or notary public. Thus even though the document may be executed before either of them, there is still the need for a witness to sign separately. 

This position of the law has however been changed by the recently decided case of Luca and Anor v. Samir and Others (J4/49/2020) [2021] GHASC 4 (21 April 2021). In this case, two brothers who are Italian nationals sued to recover possession of a house which their Italian mother owned when she lived in Ghana. They sued through an attorney who was given a power of attorney which was attested by a notary public but not by a witness. In the High Court, the trial judge struck out the action on an application made by the defendants that the plaintiffs lacked capacity to institute the action. This was reversed by the Court of Appeal which ordered that the suit be restored. The defendants appealed to the Supreme Court. The Supreme Court, speaking through Pwamang JSC, gave a groundbreaking judgment which will no doubt have an effect on the basis for which powers of attorney are accepted or rejected on the basis of validity.

The Supreme Court held that the meaning of the word “attest” as used by Act 549 in relation to a witness to a power of attorney means to affirm that indeed and in truth, the document was executed in the witness’s presence. The Court further stated that the Act neither gave a special criteria for a witness nor disqualified any group of people from  acting as witnesses to a power of attorney. The intention of the legislator was simply that the witness see the donor sign the document and then sign to attest it. With that meaning and intention in mind, the Court held that commissioners for oaths, being appointed by the Chief Justice and given power to administer oaths and attest to same, are even better qualified to witness and attest powers of attorney than the ordinary person who may not be so easy to trace.

The conclusion of the Court was that the decision in the Asante-Appiah v. Amponsah was not only a narrow and literal interpretation of Act 549, but was also incorrectly decided. Thus, commissioners of oaths and notaries public can act as sole witnesses to powers of attorney, and the Plaintiffs had capacity to institute the action as their power of attorney was valid under Ghanaian law.

This judgment which is not only forward-thinking but also laudable, has toppled years of legal thinking on this subject.  It helps to ease the strict requirements which have been used to disqualify powers of attorney and dismiss entire lawsuits over the years. It is hoped that this clarification of the Act will make it easier for donees of powers of attorney to act more efficiently on behalf of their donors.

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