Powers of Attorney- What Does Ghana Law Say? (1)
Barbara Ewoenam Afua Kukah Esq (Robert Smith and Adelaide Law)
If you’ve ever had to sign legal or financial documents on behalf of a relative or friend or make medical decisions concerning the health of an incapacitated person, likely, you did so as the lawful attorney of that person. The only legal means of acting as a lawful representative of another is if you have been issued with a Power of Attorney. This article aims to shed light on provisions of the law relating to Powers of Attorney. Emphasis will be placed on the provisions of the Powers of Attorney Act 1998, Act 549 (hereinafter referred to as “Act 549”) which is the enabling act for the regulation of for powers of attorney in Ghana; case law and the common law.
2. What Is a Power of Attorney
A Power of Attorney (PoA) is a document which authorizes a person referred to as a “Donee or Attorney” to act on behalf of another person referred to as the “Donor or Principal”. The person who gives the authority is called the Donor or the Principal while the recipient is called the Donee or Attorney. The terms “Donor” and “Principal” will be used interchangeably in this article, as will the terms “Donee” and “Attorney”.
Act 549 does not define a PoA. However, other authorities do this. In the case of Hussey v. Edah, the Supreme Court per Hayfron-Benjamin JSC defines a PoA 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 eminent authors B.J Da Rocha and C.K Lodoh defined a PoA as
“a document by which one person gives to another person authority to act on his behalf and in his name.”
They further stated, “the practical purpose of a power of attorney is not only to invest the attorney with power to act for the principal, but also to provide him with a document defining the extent of his authority, which he can produce as evidence to third parties with whom he is to deal. The law authorizes such third parties to inspect this document.”
Thus, a PoA serves three main functions. First, it creates the relationship between the Donor and the Donee. Secondly, it sets out the scope of the Donee’s authority and finally serves as proof to third parties that the Donee indeed can contract on behalf of the Donor. Act 549 thus requires that a PoA be a written document that must be executed in the manner prescribed by the Act which shall be examined further in this article.
3. What A Power of Attorney is not
Having looked the definition of a PoA, it will be helpful to understand what it is not. First, a PoA is not a contract. The term “contract” is used to refer to an agreement, consisting of exchange of promises, which is recognized by law as giving rise to enforceable rights and obligations. Sir Frederick Pollock also defines a contract as “a promise or set of promises which the law will enforce.”Although a PoA has some elements that are like those of a contract, it is based more on a fiduciary duty than on a legal obligation. Also, consideration in the technical sense of the word is not provided, unless it can be argued that the consideration provided by the Donor is the authority given, while the Donee’s consideration is the agreement to use the authority per the PoA.
More importantly, a PoA does not vest property in an Attorney who is dealing with the Principal’s authority. A Donee can therefore not become the owner of a Donor’s property by merely dealing with it as an attorney. A person who wishes to transfer property to another person would be better served by using an instrument such as a lease or an assignment which vests title in property rather than a PoA.
The parties to a Power of Attorney could be any of the following:
- One individual to another
- One individual to two or more individuals
- Two individuals to one individual
- A corporate body to an individual
- One corporate body to another.
- An individual to an individual trustee
- An individual to a trustee corporation
- Trustees to an individual
Although Act 549 does not specifically state whether or not a company can execute a PoA, in practice this has been done as evidenced by the case of Naos Holdings Psc v. Ghana Commercial Bank. In the United Kingdom, companies can grant some PoAs such as general/ordinary powers of attorney but not lasting powers of attorney. A partnership can also be a party to a PoA, as under section 12 of the Incorporated Private Partnership Act, 1962 (Act 152), a registered partnership can exercise all the powers of a natural person.
5. Uses of Power of Attorney
Da Rocha and Lodoh (supra) stated,
“by a power of attorney, the principal authorizes his attorney to be his alter ego, to stand in his shoes and do things which he should have done himself but cannot for one reason or the other” (emphasis mine).
The following are but a few of the reasons why PoAs are made:
- To enable the Donee represent the Donor in a court action.
- To enable the Donee sign legal documents for financial transactions on the Donor’s behalf.
- The enable the Donee sell or buy property and other assets for the Donor.
- To enable the Donee make healthcare related decisions on behalf of the Donor.
- To enable the Donee make financial decisions for the Donor.
- As a security to secure the performance of an obligation which the principal owes the Donee.
- As security for a proprietary interest of the Donee.
It is important to note that while the uses of a PoA are many, there are some things a person cannot delegate by making a PoA. These include:
- Making or revoking a will on behalf of the Donor. An Attorney cannot under any circumstance make a will or revoke an already existing will on behalf of a Principal. However, where an a person in the right frame of mind has made a will but cannot sign due to physical infirmity or some other reason, the Wills Act permits the testator to appoint another person to sign the will for the testator only under the direction of the testator and in the presence of both the testator and two or more witnesses.
- Contracting a marriage on behalf of or performing spousal duties for a Donor.
- Voting on behalf of the Donor. In Ghana, under order 25 of the Public Elections Regulations 2016 (C.I 94), an applicant must complete a proxy form as set out in Form 6 of the schedule to the C.I to appoint a proxy to vote on their behalf. Voting by proxy cannot be authorized by a PoA.
- Performing the professional rights and responsibilities (eg. as a priest, solicitor, captain of a vessel, lecturer, doctor, etc) of the donor.
- Taking examinations on behalf a Donor.
- Under the principle of nemo dat quod non habet, a Donor cannot give more power than he has. For instance, a person cannot by a PoA authorize another to sell a house which does not belong to the Donor. Thus the Donee’s authority is limited to what the Donor is capable of giving.
A PoA can also not be retrospective. A Donor cannot use a PoA to ratify actions that were taken by the Donee before the PoA was made even if those actions were taken on behalf of, and in the best interest of the Donor. In the case of Bucknor v. Essien the respondent, on the authorization of a lawyer, visited a property in Cape Coast. The lawyer had received a letter asking him if he would act on behalf of two sisters who claimed to own the property. When the Respondent was sued for trespass by the occupant of the property, the Court held that he was liable and that his actions could not be ratified by the PoA which the lawyer subsequently received.
In the case of Standard Bank Offshore Trust Company Limited (Substituted by Dominion Corporate Trustees Limited) v. National Insurance Bank and Another the court said through Benin JSC,
“Let us take another instance where on appeal it comes to light that a person who sued as an attorney for the plaintiff did not in fact hold a power of attorney as at the date he issued the writ. He secured the power of attorney in the course of the trial. The issue of the attorney’s capacity to sue could be raised on appeal and the writ will be declared a nullity because it is fundamental to the authority to sue and this clothes the plaintiff with capacity to mount the action and this must be present before the writ is issued.”4. Legal Requirements
6. Legal Requirement
Under Act 549, for a PoA to be valid, it must be signed by the Donor in the presence of one attesting witness. Should the Donor be unable to sign the document, it may be signed by a person authorized by the Donor in the presence of the Donor and attested by two witnesses.
In the case of Asante v. Maersk, a PoA was prepared in Kumasi, Ghana, where it was signed by a witness before being posted to the Plaintiff/Donor in Germany to sign. The Court held that a PoA must be signed in the presence of a witness who must then attest it. If the witness does not witness the Donor signing the document, it is invalid. Thus, the PoA made by the Plaintiff authorizing her mother to prosecute the action on her behalf could was invalid and could not be used as the basis of the action.
Again, in the case of Huseini v. Moru, the Plaintiff per his lawful attorney commenced an action against the defendant and won. On appeal to the Court of Appeal, it was held that as the PoA given to the Plaintiff’s attorney was not signed by a witness, it was void and conferred no authority on the attorney to commence the action. The Court of Appeal thus struck out not only the attorney’s evidence but the whole of the Plaintiff’s writ and case. On further appeal to the Supreme Court, the Supreme Court held that it was not only the Plaintiff’s action which was void but even the defendant’s counterclaim was invalid as the Plaintiff’s attorney could neither defend it nor had been properly been served with the counterclaim and supporting documents.
A PoA should also be registered and stamped at the Lands Valuation Division of the Lands Commission under the Stamp Duty Act, 2005, Act 689. It must be noted that a PoA will not be enforceable or be tendered in as evidence in a Ghanaian Court, unless it is stamped and registered under the Stamp Duty Act.
In the case of Gordon v. Essien, Abakah J held that the registration of a Power of Attorney gives it formal validity. He further noted that it is however not the registration of the PoA that gives it legal validity. Thus, a PoA takes effect from the date indicated on it and not from the date of registration.
A PoA should also be witnessed by a Commissioner for Oaths. It must be noted that the Commissioner for Oaths is separate from and is neither the same nor a substitute for a witness. In the case of Asante-Appiah v. Amponsah, the Plaintiff’s attorney instituted an action on his behalf based on a PoA which had been signed by the Donor but not by a witness. The Supreme Court upheld the Court of Appeal’s holding that the PoA was invalid and should not have been admitted in evidence at the trial court. In the words of Brobbey JSC,
“it is patent on the instrument that no one signed as a witness. The Court of Appeal rightly rejected the argument of counsel for the appellant that the Commissioner for oath doubled as both the witness and the person before whom the power was executed. There is no legal or statutory basis for that argument. It would be observed that the provision is couched in imperative terms. In so far as the power of attorney in question was not signed by any witness, it was not valid.”
In the cases of Hussey v Edah and Asante-Appiah v. Amponsah (supra), the Supreme Court noted that if a PoA is to be used abroad or is prepared abroad, it must be authenticated by a notary public. Order 20 rule 15 of CI 47 provides that a document purporting to have fixed, impressed, or subscribed on it the seal or signature of a court, judge, notary public or person with authority to administer oaths in any country outside Ghana in testimony of an affidavit taken before that court, judge, notary public or person, shall be admitted in evidence without proof of the seal or signature of that court, judge, notary public or person.
It is also generally required that the PoA state the names, addresses and identities of the parties, its duration, and a statement that the Donor agrees to ratify all acts performed by the Donee within the scope of the PoA.
This is particularly important because there are instances where to fulfil the mandate specified in a PoA, a Donee may have to take an action act not necessarily stated in the PoA document. In the case of Gordon v. Essien, the Plaintiff had been given a PoA authorizing her to collect rents in respect of the house in dispute. The Defendant argued that the PoA granted the plaintiff power to only collect rents and not to bring court actions in respect of the house. The court held that if a person is given the right to do anything, that right should extend to any additional thing necessary for the effective execution of that right. Thus, contrary to the Defendant’s arguments, the Plaintiff bringing the court action to enable her to better collect the rent was a necessary consequential power.
 [1992-93] Part 4, GBR 1703 at 1714
 Ghana Land Law and Conveyancing, Da Rocha and Lodoh, page 145
 Da Rocha and Lodoh, Ghana Land Law and Conveyancing, pg 145
 Christine Dowuona Hammond, The Law of Contract in Ghana, page 1
 Sir Frederick Pollock, (1902) Principles of Contract: A Treatise on the General Principles Concerning the Validity of Agreements in the Law of England, 7th ed., London: Stevens & Sons Limited, page 1.
 Asante-Appiah v Amponsah  SCGLR 90
 Dzanku v. Afalenu  GLR 792-794
 Barrows v. Chief Registrar  CLY 305
 Sowman v David Samuel Trust Ltd  1 WLR 22
 Powers of Attorney Act, 1998 (Act 549), section 5(1)
 (2005-2006) SCGLR 407
 Da Rocha and Lodoh, Ghana Land Law and Conveyancing, page 149
 Wills Act, 1971, Act 360, sections 2(1) and 4
  1 GLR 426
 Unreported case, Civil Appeal NO. J4/63/2016
 [2003-2005] 2 GLR 43 – 58
 [2013-2014] 1 SCGLR 363
  1 GLR 232-241
 (2009) SCGLR 90
 The High Court (Civil Procedure) Rules, 2004, CI 47