FLORINI LUCA AND FLORINI ALESANDRO vs. MR. SAMIR, DIVESTITURE IMPLEMENTATION COMMITTEE AND ATTORNEY GENERAL [2021]DLSC10155

FLORINI LUCA AND FLORINI ALESANDRO vs. MR. SAMIR, DIVESTITURE IMPLEMENTATION... [2021]DLSC10155

Date	2021-04-21
Suit No.	CIVIL APPEAL NO. J4/49/2020
Citation No.	[2021]DLSC10155

APPAU JSC (PRESIDING)

PWAMANG JSC

DORDZIE (MRS.) JSC

LOVELACE-JOHNSON (MS.) JSC

AMADU JSC

JOHN MERCER ESQ FOR PLAINTIFFS/APPELLANTS/RESPONDENTS

SAMUEL YALLEY ESQ FOR 1ST DEFENDANT/RESPONDENT/APPELLANT

GEORGE TETTEH SACKEY ESQ PRINCIPAL STATE ATTORNEY (PSA) FOR 2ND AND

3RD DEFENDANTS/RESPONDENTS/APPELLANTS WITH HIM EMMANUELLA

SARA ASMAH ASSISTANT STATE ATTORNEY (ASA) AND ADELAINE OWUSUWAA ASANTE ASSISTANT STATE ATTORNEY (ASA)

[2021]DLSC10155
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													<main id="main" class="content" style="min-height: 60rem" >FLORINI LUCA AND FLORINI ALESANDRO&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (PLAINTIFF/APPELLANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MR. SAMIR, DIVESTITURE
IMPLEMENTATION COMMITTEE AND ATTORNEY GENERAL<o:p></o:p>(DEFENDANT/RESPONDENT/APPELLANT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL APPEAL NO. J4/49/2020&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
21ST APRIL, 2021<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JOHN MERCER ESQ FOR
PLAINTIFFS/APPELLANTS/RESPONDENTS<o:p></o:p>SAMUEL YALLEY ESQ FOR 1ST
DEFENDANT/RESPONDENT/APPELLANT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

GEORGE
TETTEH SACKEY ESQ PRINCIPAL STATE ATTORNEY (PSA) FOR 2ND AND 3RD
DEFENDANTS/RESPONDENTS/APPELLANTS WITH HIM EMMANUELLA SARA ASMAH, ASSISTANT
STATE ATTORNEY (ASA) AND ADELAINE OWUSUWAA ASANTE, ASSISTANT STATE ATTORNEY
(ASA)<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>APPAU
JSC (PRESIDING), PWAMANG JSC, DORDZIE (MRS.) JSC, LOVELACE-JOHNSON (MS.) JSC,
AMADU JSC <o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;PWAMANG,
JSC:-<o:p></o:p>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&nbsp; 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&nbsp; 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&nbsp;
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.<o:p></o:p>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.<o:p></o:p>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 Rules, 1996 (C.I.16). If that decision is classified as interlocutory
that would render the notice of appeal incompetent for being filed out of time.
We have considered the submissions of the parties on the issue and are of the
view that as the decision of the High Court dismissed the entire suit, that
decision was final. See Atta Kwadwo v
Badu [1977] 1 GLR 1. CA. In Joseph v
Okomfoankye [2013-2014] 1 SCGLR 267 at p 270, the Supreme Court speaking
through Gbadegbe, JSC said as follows; “As
an interim relief it cannot, in our thinking, be transformed into a final order
of the court by virtue only of an appeal therefrom to a higher court”. By
parity of reasoning, the final order of the High Court in this case does not
turn into an interlocutory order on its way up the ladder of the courts
structure by the appeal process. It remains a final order not withstanding the
appeals. Consequently, in our opinion, this is a final appeal and the notice of
appeal before us is competent.<o:p></o:p>On
the main issue, the defendants challenge the capacity of the plaintiffs on two
fronts. First, they have no letters of administration over the estate of their
mother and second, the power of attorney on basis of which the action was
commenced&nbsp; by Isaac Benjamin Clement was
only notarised by a Notary Public without any witness. In respect of the first
leg, Mr E. K Amuah Sakyi Esq, learned counsel for the 1st defendant
submits in his statement of case as follows;<o:p></o:p>“It was thus our contention that since the
property was situate in Ghana and they had brought this action in a Ghanaian
court by law they ought to have
obtained Letters of Administration before they could be clothed with any
capacity to mount any action in respect of the Estate of the deceased. The
trial judge found merit in this argument and accordingly struck out the suit
for want of capacity.” (emphasis supplied).<o:p></o:p>The
Ghana law that, according to the defendants, ma</main>