THE authenticity of a power of attorney is proven by its certification, a fact which ensures the validity of the transactions made through its use. If a person denies signing it, he must produce evidence by an expert showing that his signature was forged. The law for the Certifying Officers provides that certifications considered to have been made by a certifying officer are accepted as proof of the facts certified by all courts. The Supreme Court in a recent judgment referred to case-law stating that the general rule is that the burden of proof of an allegation for forgery of a power of attorney is cast upon the person who makes such an allegation.
Therefore, certification creates rebuttable presumption for the authenticity of the power of attorney and any denial by a person that he signed it is not an adequate defence and does not exempt him from adducing evidence proving his allegation. Alleging that he did not sign the power of attorney but his spouse signed it, does not constitute evidence or defence removing the burden of proof and placing it upon the other litigant. He is the one who is obliged to prove this and the court ought to dismiss his allegation for lack of evidence.
The above derives from a recent judgment of the Supreme Court whereby it was held that power of attorneys certifi ed by a certifying officer are an important tool in a large sector of transactions and the relevant law provides the power of attorney with much credibility, which cannot be affected by the simple denial of the principal that the certified signature is not his.
More evidence is needed to prove the validity of such an allegation. The case was about an agreement for the sale of a piece of land and the sale contract was signed by the lawful representative of the owner and was deposited at the Land Registry. The sale contract included two main conditions:
(a) that the purchaser would have taken possession and enjoyment of the land, which was declared to be free of any encumbrances or other charges, that the sale price was paid and the land was to be transferred to the purchaser on a specifi c date, and
(b) if on that date the vendor paid to the purchaser a certain amount the agreement would have ceased to exist and would have been automatically cancelled. The vendor on the said date delivered through his lawful representative cheques to the purchaser for the aforesaid amount, but they were not cashed with the indication “refer to drawer”.
The purchaser filed an action against the vendor and his lawful representative, accusing them of conspiracy to deceive him, fraud and illegal behaviour to illegally obtain the money from him and claimed the specific performance of the sale contract or the return of his money. The court of first instance dismissed the purchaser’s action and accepted the counterclaim of the vendor, ordering the deletion of the sale contract from the Land Registry records. The reasons were:
(a) the purchaser failed to prove the authenticity of the power of the attorney in contrast with the vendor who satisfied the court that the signature on the power of attorney was not his,
(b) the vendor did not authorise his representative to sell the land and
(c) the sale contract constituted a guarantee for the lending of the money. The Supreme Court intervened and set aside the judgment focusing on the issue of the power of attorney and its certification, stating that the crucial question was which of the litigants has the burden of proof of its authenticity.
The certification of the power of attorney proved its authenticity and therefore, the vendor failed to affect its validity without satisfactory
evidence and the existence of the sale contract made the sale genuine.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, [email protected], www.coucounislaw.com
