2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Italian nationals sued, via their attorney Isaac Benjamin Clement, to recover House No. 15, Whin Layout, Beach Road, Takoradi, asserting that their late mother personally acquired it and that defendants wrongfully took possession believing it belonged to confiscated assets of Subin Timber Company Limited/Central Logging and Sawmills Ltd. The High Court dismissed the suit for want of capacity; the Court of Appeal reversed and restored the case; the 1st defendant appealed to the Supreme Court. The Supreme Court first held the Court of Appeal’s judgment was final, making the notice of appeal competent. On capacity, the Court distinguished capacity from locus standi, applied the conflict-of-laws rule in Youhana v Abboud to hold Italian law governs devolution, and accepted plaintiffs’ status as heirs without Ghanaian letters of administration. On the power of attorney, the Court interpreted section 1(2) of Act 549 purposively, departing from Asante-Appiah v Amponsah, and upheld the validity of a Notary-attested statutory declaration. The appeal was dismissed and the case remitted for trial.
PWAMANG, JSC:-
The plaintiffs/appellants/respondents (the plaintiffs) are Italian nationals who have, through a lawful attorney, sued in the High Court, Sekondi to recover House No. 15, Whin Layout, Beach Road, Takoradi which is in the possession of the defendants/respondents/appellants (the defendants). The plaintiffs’ case is that the house was acquired by their Italian mother who died intestate on 24th March, 2010 in Genova, Italy but used to live in Ghana where she was into timber business. They state that their mother was compelled by circumstances to flee back to Italy in 1982 when her business was confiscated at the height of the revolution. The defendants took possession of the house believing it was part of the confiscated assets of Subin Timber Company Limited/Central Logging and Sawmills Ltd but the plaintiffs contend that it was not and that all along it remained the personal property of their mother. The facts here appears to be similar to those in the case of GIHOC v Hanna Asi reported in [2005-2006] SCGLR 458 where the Supreme Court held that GIHOC was a licensee of the original owner of the property.
However, the plaintiffs have been met with some legal defences as the defendants challenged their capacity to mount the action and also pleaded the statute of limitations. Midway in the trial in the High Court the judge entertained an application by the defendants praying that the suit be dismissed on ground of want of capacity of the plaintiffs. The trial judge granted the application and dismissed the suit but the plaintiff appealed to the Court of Appeal who reversed the High Court and restored the case to the list. The 1st defendant has appealed from the decision of the Court of Appeal and is supported ably by the 2nd and 3rd defendants per their counsel, Mr George Sackey Esq, Principal State Attorney.
The issue for our decision is whether the plaintiffs are deficient of capacity to bring this action. However, at the hearing of the appeal we requested the parties to address us on the question whether the decision of the Court of Appeal on appeal is an interlocutory or a final one. This point arises from the fact that the judgment appealed from dated 4th December, 2019 directed the trial to continue, thereby giving it the semblance of an interlocutory order. Meanwhile, the notice of appeal was filed on 4th February, 2020, more than 21 days from the date of the Court of Appeal judgment as required by Rule 8(1)(a) of the Supreme Court Rul