IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE-COAST A.D. 2019
CORAM: IRENE CHARITY LARBI MRS. J.A (PRESIDING)
L. L. MENSAH (J.A)
ANGELINA M. DOMAKYAAREH MRS.( J.A)
Civil Appeal No.HI/49/19
Date : 4th December, 2019
1. FIORINI LUCA
PLAINTIFFS/
2. FIORINI ALESSANDRO
RESPONDENTS
(Both Suing Per Lawful APPELLANTS
ATTORNEY ISAAC BENJAMIN CLEMENT
VRS.
1. SAMIR ] … 1 ST
DEFENDANT/
APPLICANT
RESPONDENT
2. DIVESTTURE IMPLEMENTATION ] … 2ND DEFENDANT/
COMMITTEE APPLICANT/
RESPONDENT
1
3. ATTORNEY GENERAL, SEKONDI ] … 3RD DEFENDANT/
RESPONDENT/
JUDGMENT
Irene Charity Larbi (Mrs) J.A.
(1) This is an appeal against the ruling of the High Court, Sekondi
dated 28th day of March, 2019.
(2) The Plaintiffs are the children of the late Guiliana Bottino an
Italian by nationality but resident in Ghana for many years prior
to 1981.
The Plaintiffs assert that Guiliana Bottino was one of the
Shareholders of Subin Timber Company Ltd. which later
merged with a Company known and called Central Logging and
Sawmills Ltd. and later known and called Western Veneer
Lumber Company (W.V.L.C.).
(3) The subject matter property i.e. House Number 15, Whin
Layout, Beach Road, Takoradi was acquired by Guiliana
Bottino in her lifetime by way of an assignment dated 24 th April
1979 made in her favour by Comazzi Brothers as Lessees.
The assets of Subin Timbers Company Ltd. and Central
Logging and Sawmills Ltd. were confiscated and vested in
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(W.V.L.C) in or about October 1982 under P.N.D.C. Law 31
(W.V.L.C.) which is now defunct.
(4) The subject matter property however continued to remain the
personal (private) property of Guilliana Bottino, and noted as
such in the records of the Lands Commission Secretariat,
Sekondi.
During the 1981 “revolution” in Ghana, Guilliana Bottino
suffered brutalities and had to escape for her life from the
country to her home country Italy where she remained until her
death on 24th March 2010.
(5) The Plaintiffs aver that upon the death of Guilliana Bottino the
property in issue devolved by the laws of Italy onto the
Plaintiffs.
However it has come to the recent notice of the Plaintiffs that by
a Statutory Declaration dated 5th May, 1995 vide document
Number WR830/95, W.V.L.C. purportedly declared itself as
owner of the subject matter property.
(6) The Plaintiffs contend that W.V.L.C. made the said statutory
declaration, fraudulently and well knowing that the
representation therein were false and untrue or recklessly not
caring whether they were true or false, and gave the particulars
of fraud and/or misrepresentation.
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(7) The Plaintiffs assert, that the 1st Defendant occupied the subject
property as a duty post accommodation when he was made the
Managing Director of W.V.L.C but has long ceased to hold that
position.
(8) The Plaintiffs asset further that, the 2nd Defendant which is a
statutory body responsible for the divestiture of state assets took
over the assets of W.V.L.C which became defunct and was
responsible for its W.V.L.C.’S divestiture. The 3rd Defendant, as
the State Legal Advisor was made a nominal Defendant to the
suit.
(9) The plaintiffs thus claimed jointly and severally and/or in the
alternative against the Defendants for; a declaration of title to
House Number 15. Whin Layout, Beach Road, perpetual
injunction, damages for trespass, recovery of possession and
mense profits.
Application for directions was taken and preliminary matters
including filing of witness statements, pre-trial check list and
case management conference was held and the trial was
commenced on 24th January, 2019.
(10) The Plaintiffs testified through their attorney and was cross-
examined without calling any witness to close their case. The
Suit was then adjourned for the 1st Defendant to open his
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defence but a day before the 1st Defendant was to open his case,
the 1st Defendant filed an application to have the suit dismissed
on ground of “lack of capacity” on the part of the plaintiffs.
The application was granted and the suit was on 28th March,
2019 dismissed.
(11) It is against this ruling that the plaintiffs have appealed to this
court on two main grounds set out in the Notice of Appeal as
follows:-
(1)The finding by the Trial Court that the plaintiffs lacked the
capacity to mount the action is not borne out by the record.
(2)The court erred in pre-maturely truncating the trial.
(12) In the judgment of the High Court which is being contested in
this appeal by the Plaintiffs, the Judge considered the
disposition in paragraph 4 of the supporting affidavit filed by
the 1st Defendant/Applicant that before the Plaintiffs can be
clothed with capacity to institute any action in respect of the
estate of the deceased Guilliana Bottino, they should have been
appointed administrators of the estate by a Court of competent
jurisdiction.
(13) The High Court held the view that there was no averment in the
statement of claim that Guilliana Bottino died testate or
intestate. The High Court referred to Section (1) of the
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Administration of Estate Act 1961 (Act 63) which provides
that:-
“(1) The movable and immovable property of a deceased
person
shall devolve on the personal representatives of the
deceased person with effect from the date of death.
(2) In the absence of an executor the estate shall until
personal
representative is appointed vest,
(a) In the successor, if the entire estate devolves under
customary law; or
(b) In the Chief Justice in any other case”.
(14) The High Court quoted Section 108 of Act 63 which interprets
personal representative as “the executor, original or by
representation, or administrator for time being of a deceased
person” as well as several decisions including IN RE - APPAU
(Deceased) APPAU VRS. OCANSEY [1995-94] I GLR 146 and the
Supreme Court decision in AKRONG & ANOTHER VRS. BULLEY
[1965] GLR 469 holding ‘1’.
The High Court concluded that the law is settled that when a
person dies, the immovable and immovable property of the
deceased person devolved on his personal representative with
effect from his death.
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(15) On the issue of capacity, the High Court after reviewing several
decided cases including REPUBLIC VRS. HIGH COURT, ACCRA;
EX-PARTE: ARYEETEY (Ankrah Interested Party) [2003-2004] 1
SCGL 398 & FOSUA & ADU POKU VRS. DUFIE (Deceased) & ADU
POKU MESAH [2009] SCGLR 310 held that: the Plaintiffs did not
answer the claim of lack of capacity. Based upon the aforesaid,
the High Court granted the application and ordered that the suit
be dismissed for lack of capacity.
(16) In arguing the appeal counsel for the Plaintiffs/Appellants
submitted that the law governing the devolution of Guilliana
Bottino’s estate is her personal law, in other words, the laws of
the Republic of Italy. Counsel argued that upon the death of
the Plaintiffs’ mother the property in issue devolved on the
Plaintiffs who are the only two children of the deceased in
accordance with the laws of the Republic of Italy. Counsel
contended that a Statutory Declaration of heirship, which is
required under the laws of Italy was tendered in evidence as
Exhibit ‘D’ with its translation in English as Exhibit ‘D1’. He
contended further that no iota of challenge was raised to these
matters which were averred in paragraph 9 of the statement of
claim and repeated in the evidence of the Plaintiffs vide the
witness of their Attorney. Counsel referred to a plethora of
cases including YOUHANA VRS. ABBOUD [1974] 2 GLR 201, IN
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RE LARTEY (Deceased) LARTEY VRS. AFFUTU-NARTEY [1972] 2
GLR 488 to buttress his submissions.
(17) On the issue of capacity, counsel for the Plaintiffs argued that at
the direction stage the issue of capacity was not set down as a
preliminary issue for trial but was set down as an issue for trial.
It was for this reason that the parties were ordered to file their
respective witness statement which the Plaintiffs and the 1 st
Defendant complied. Thus the Plaintiffs opened and closed
their case with the testimony of their Attorney.
(18) Counsel for the Plaintiffs admitted that although an objection to
the capacity in which a person has sued may be raised at any
time even on appeal, he submitted that in the circumstances of
the present suit, the 1st Defendant should have mounted the
witness box to close his case for the issue of capacity to be
determined. Counsel submitted on the basis of the foregoing,
that the Learned Trial Judge erred in dismissing the suit on
ground of want of capacity on the part of the Plaintiffs and
further erred in truncating the trial prematurely at the stage she
did.
(19) On the part of the 1st Defendant his counsel contended that the
Plaintiffs whether as beneficiaries under Italian law or not ought
to have taken out Letters of Administration or Probate before
they could be clothed with capacity to mount an action
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regarding the estate of the deceased. Counsel quoted Section 61
of the Administration of Estates Act 1961 (Act 63) which states
as follows:-
“61 Necessity for probate;
(1) A grant of probate is necessary to entitle an executor to
administer the property of the testator whether movable or
immovable”.
(20) Counsel for the 1st Defendant commenting on the case of
YOUHANA VRS. ABBOUD (supra) and the arguments of counsel
for the Plaintiffs based upon it, contended that the issue here is
not about who has the right to succeed the dead Italian lady or
anybody for that matter. He contended that nobody is
challenging the right of the Plaintiffs to succeed their mother.
However in his further contention, the Statutory Declaration
signed by the Plaintiffs where they declared that under Italian
law, they as children and lawful heirs of their mother does not in
any way clothe them with capacity to mount an action as
personnel representatives of their mother.
(21) Counsel referred to the cases cited by the Learned High Court
Judge in the ruling which authorities are ad idem with the
statute that without first applying for Letters of Administration
or probate, one cannot initiate action in respect of an estate of a
deceased.
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(22) Counsel for the 2nd and 3rd Defendant was not left out in the
arguments. He was of the opinion that from the pleadings of the
Plaintiffs the question as to which law should govern succession
to Guilliana Bottino’s estate was raised. Counsel was of the
further opinion that the issue raised by the Plaintiffs was the
definition of Lex loci rei sitae or simply put lex situs, the
doctrine that the law governing the transfer of title to property is
dependent upon the location of the property, for the purposes of
conflict of laws. Counsel quoted from Osborn’s - A Concise
Law Dictionary (London: Sweet & Maxwell, 1954) definition for
lex situs which states as follows:-
“The law of the place where property is situated. The general
rule is that lands and other immovable are governed by the lex
situs”.
(23) Counsel for the 2nd and 3rd Defendants submitted that the issue
in the matter is not about who has a right to succeed the
deceased Italian mother of the Plaintiffs. Therefore the
Statutory Declaration signed by the Plaintiffs where they declare
that under the laws of Italy, they as children are the lawful heirs
of their mother does not in any way clothe them with capacity to
mount an action as the personal representatives of their
deceased mother. He submitted further, that the crux of this
matter is whether the Plaintiffs without recourse to the
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Administration of Estates Act 1961 (Act 63) are clothed with
capacity to mount this action.
(24) Counsel contended that nowhere in the endorsement has the
Plaintiffs disclosed their capacity as required under Order 2
Rule 4 of C.I.47 and cited the following cases in support;
GRAVES VRS. OYEWOO [1967] GLR 803 at 807; BOWLER VRS.
JOHN MOWBON & CO. LTD. [1954]3 ALL ER 556; STEBBINGS VRS.
HOLST [1953] 1 ALL ER 925 & KAKRABA VRS. AMIDU [1987-
88]2 GLR 59.
(25) It is trite law that capacity is an issue of law, and may be raised
at any stage of the proceedings even on an appeal; the court may
raise it suo motu as in ADU-POKU VRS. DUFIE [2009] SC GLR 310.
Further, the question of capacity like the plea of limitation is not
concerned with merits.
Our law reports are replete with decided cases emphasizing the
importance of capacity of a party to sue and be sued. From the
endorsement on the writ, the Plaintiffs have indicated that they
are suing per their lawful attorney. The Power of Attorney
which is in Italian and attached to the supplementary witness
statement is marked Exhibit ‘A’ and its translation into English
with certificate as Exhibits ‘A1’ and ‘A2’ respectively.
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(26) In paragraphs 1, 2 and 9 of the Statement of Claim, the Plaintiff
stated thus:-
“(1) The Plaintiffs are the surviving children of Gulliana
Bottino
(deceased).
(2) The said late Gulliana Bottino was an Italian nationality
but
was resident in Ghana for many years prior to 1981.
(a) Upon the death of the deceased the property in issue
devolved by the laws of Italy onto the Plaintiffs”.
(27) Per the Exhibit ‘C’ which is an extract from the register of
deaths (Italy) the fact that Guilliana Bottino is dead is not in
dispute. The Plaintiffs tendered a Declaration of Heirship (as
recognized) under the laws of Italy as Exhibit ‘D’ and its
translation in English as Exhibit ‘D1’. The fact that the
Plaintiffs are the children of the deceased Italian lady has not
been denied save that the 1st Defendant contends that the
endorsement ought to have indicated the capacity in which the
Plaintiffs have instituted the action.
(28) In the instant case, there is no dispute that Gulliana Bottino did
not acquire a Ghanaian domicile or citizenship although she
lived in Ghana for some considerable period of time. It is trite
law that the original domicile of a person remains forever
attached to the person until he/she acquires a new domicile of
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his/her own free and voluntary choice. And to effectively
procure that new domicile of choice, it has been held necessary
and essential not only actually to reside in another country, but
also to have, and then to exhibit the intention of stopping there
in that other country, permanently or indefinitely. See BELL
VRS. KENNEDY [1868] L.R. I.SC & DIV.307 H.L.
(29) IN RE STEER, [1858] 3.H. & N.594, Po LLock B . in the course of
his judgment said inter alia at page 599:
“No doubt, both on principle and on authority, a person
cannot get rid of his domicile of origin by merely residing in
another country, but the domicile continues unless he has
manifested an intention of abandoning it and acquiring
another as his sole domicile”
(30) And in UNDNY VRS. UNDNY [1869] LR.1 SC. & DIV.441 H.L. Lord
Westbury stating the circumstances which constitute a domicile
said, inter alia at page 459 as follows:-
“Domicile is a conclusion or inference which the law derives
from the fact of a man fixing voluntarily his sole or chief
residence in a particular place, with an intention of continuing
to stay there for an unlimited time”.
(31) From all these authorities, it is never permitted for the fact of
domicile to be inferred from mere residence in a given locality.
See; BELL VRS. KENNEDY (supra).
13
In Halbury’s Laws of England (3rd Ed.) Vol.7 page 102-103 and
footnote (m) the following statement which I hereby adopt for
purposes of this case:
“Residence which fall short of domicile will not give
jurisdiction………..”
There being no contrary evidence, it is hereby held that
Guilliana Bottino was an Italian for purposes of determining this
appeal.
(32) The question of substance raised in this appeal is what law
governs the succession to immovable estate in this country of an
Italian who died domiciled in her country of origin?
Counsel for the Defendants say that it is the lex situs that is the
law of the place where the property is situated.
In the instant case, the High Court in its decision which is now
before us, stated that the statement of claim amply discloses that
the property being the subject matter of dispute is part of the
estate of Guilliana Bottino who is deceased and there is no
averment that she died testate or intestate. As a result, the High
Court applied Section 1 of the Administration of Estates Act,
1961 (Act 63) which provides for the devolution of movable
and immovable property as follows:-
“(1) The movable and immovable property of a deceased
person
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shall devolve on the personal representative of the
deceased person with effect from the date of death”.
(33) The High Court Judge relied on a string of decided cases
including APPAU (Deceased), APPAU VRS. OCANSEY [1993-
1994] 1 GLR 469 FOSUA & ADU POKU VRS. DUFIE (Deceased)
[2009] 310 and ARYEETEY (Ankra Interested Party) [2003-
2004] 1 SCGLR 398.
All the cases supra are in respect of the determination of issue of
capacity.
(34) In my view, the High Court did not attempt to show how the
decision helped to resolve the conflict of law. The reasoning of
the High Court based on the Administration of Estate Act supra
was reached on the assumption that the Ghanaian statute should
apply to the devolution of the real and personal estate of an
Italian woman.
However from the translation of the Statutory Declaration of the
Plaintiffs Exhibit ‘D1’ it is declared that Bottino Guilliana died
Intestate in Geneva.
In the case of YOUHANA VRS. ABBOUD (supra) Apaloo, Lassey
and Archer JJ.A three eminent jurist in considering immovable
property, devolution of property and the law applicable lex
situs.
Apaloo J.A after analyzing a string of cases stated thus:
15
“Unless our legislation constrains us to decide otherwise, I
would think it right that we follow the respectable line of
authority which commenced from 1906 down to this decade
which, when faced with a choice between lex situs and
personal law, opts for the latter. To so hold today will do no
more than to continue to give judicial stamp to established
usage which has justice and common sense on its side”.
The cases that were digested in the YOUHANA VRS. ABBOUD case
(supra) were DAVIES VRS. RANDALL [1963] I GLR 382 S.C.
KOTIA VRS. NAHAS [1941] AC.403 P.C EKEM VRS. NERBA [1947]
12 W.A.C.A. 258.
(35) Apaloo J.A concluded thus:
“It seems entirely just in deeming who is entitled to
succeed to “strangers” who lived in our midst and
acquired property but who have not sufficiently
“identified” themselves with us, we should apply the law
of their own homelands unless any strong reasons of
Public policy compel us to decide otherwise. I cannot
see any sound reason of Public policy which constrains
us to decide the question to a domiciled Lebanese by
Customary Law or English Common Law. The law that
would be most efficatious, and meet the requirement of
16
“justice, equity and good conscience” is the law of Lebanon.
(Emphasis mine)
(36) Per Lassey JA:
“I take the view that the wider interpretation of lex situs
which includes the whole of the conflict of laws rules of
the place where the property is situated is more
reasonable the restricted view which can cause practical
difficulties in its application. It seems necessary that in
coming to a conclusion in this case as regards which
interpretation of the lex situs should be applied it must be
appreciated that it is the rights of foreign nationals to
the real estate in Ghana which are being considered. In
this regard, it seems important that the court should
avoid an interpretation which appears unjust, and is
repugnant to morality and inconsistent with comity”.
(37) Per Archer J.A.
“I wish to remark that if we were to hold that the
matrilineal system applied to these Lebanese, we would
be creating a massive and monument to judicial
aberration and the ordinary man in the street would
hold the courts in this country in derision because
17
reason and common sense would have fled from the
Court rooms and every person conversant with the Old
Testament will recall the words of the Prophet Isaiah in
Chapter 59, Verse 14, “And judgment is turned away
backward and justice standeth afar off, for the truth is
fallen in the street and equity cannot enter”.
(38) In the instant case, the High Court dismissed the action because
in her view, the lex situs should apply i.e. Administration of
Estates Act. On record it stated that Guilliana Bettino died
Intestate. Thus if she was a Ghanaian or naturalized Ghanaian,
her estate would have be devolved under the Intestate
Succession Law, PNDCL 111. It seems to me that if as the
High Court decided Ghana as the lex situs, which of the
systems of succession i.e. matrilineal or patrilineal system of
succession would apply to Guilliana Bottino who never in her
life time embraced any particular customary law in Ghana.
(39) As was explained in YOUHANA VRS. ABBOUD (supra) the family
is not a single person but a group of persons and it is well
known no member can claim a divisible interest in family
property as of right. In essence for the Plaintiffs to be able to
administer the property of their deceased mother, they would
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need a family (matrilineal) and head of family who would
appoint a customary successor together with the Plaintiffs to
apply for Letters of Administration since their mother died
intestate. Since it is clear that Ghana Customary Law is out of
the question, the personal law, i.e. that of Italy should be
applied. See KOTIA VRS. NAHAS [1941] A.C. 403 P.C.
In any case since the real property is situated here in Ghana it
would be absurd to apply the laws of succession to reality
knowing very well that it would deprive the Plaintiff the right to
inherit their mother because of her personal law which is that of
Italy.
(40) A careful reading of the Intestate Succession Law, (PNDCL
111) and the Administration of Estates Act, 1961 (Act 63) and
the Memorandum annexed thereto immediately are clear that
they are enactments passed to regulate and bring uniformity in
the laws of Ghana taking into consideration the customary
family set up when it comes to devolution of property of a
deceased person. I may be wrong but I am of the strong view
that if the Learned High Court Judge had considered the import
of Section 1 Sub-section 2 of the Administration of Estates Act,
she would not have applied it to a foreigner. The said section
states as follows:-
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(2)In the absence of an executor the estate shall until personal
representative is appointed vest.
(a) in the successor if the entire estate devolves under
Customary Law or
(b) in the Chief Justice, in any other case.
(41) The effect of the decision of the High Court is that the Plaintiffs
are deprived of their foreign Italian mother’s property because
they have not been able to comply with the Ghanaian Laws of
inheritance. What then happens to House No.15, Whin Layout,
Beach Road, Takoradi?
(42) On the issue of capacity, the new High Court (Civil Procedure)
Rules, 2004 C.I.47 has taken the myth surrounding capacity
under Order 16 Rule 5.
The eminent Lawyer and Author S.Kwame Tetteh in the pre-
amble to discussion of Order 16 had this to say;
“Judges and Lawyers, like other professionals make mistakes.
The Rules provided a Liberalized procedure for correcting
errors that may be made by the judge or party in the course of
the proceeding. The procedure is based on a broad recognition
that mistakes are unavoidable in litigation but must not be
allowed to stultify the proceeding. The overriding objective of
the Rules in this regard is for the beneficial utilisation of the
rules for amendment in order to attain expeditious, effective,
20
complete and final adjudication, avoid a multiplicity of
proceedings concerning the same matter”.
(43) It is well established principle that the object of the court is to
decide the rights of the parties, and not to punish them for
mistakes they may make in the conduct of their cases by
deciding otherwise than in accordance with their rights. See;
YEBOAH VRS. BOFOUR [1971] 2 GLR 119, C.A & CROPPER VRS.
SMITH [1884] 26 Ch.D. 700.
(44) Thus under Rule 5(3), (4) and (5) of Order 16 of C.I.47 it is
provided that:
(3) An amendment to correct the name of a party may be
allowed under Sub-rule (2) notwithstanding that it is
alleged that the effect of the amendment will be to
substitute a new party if the court is satisfied that the
mistake sought to be corrected was a genuine mistake and
was not misleading or such as to cause reasonable doubt as
to the identity of the person intending to sue or intended to
be sued.
(4) An amendment to alter the capacity in which a party sues
may be allowed under Sub-rule (2) if the new capacity is
one which that party had at the date of the proceedings or
has since acquired.
(5) An amendment may be allowed under Sub-rule (2)
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notwithstanding that the effect of the amendment will be to
add or substitute a new cause of action, if the new cause of
action arises out of that the same facts or substantially the
same facts as a cause of action in respect of which relief has
already been claimed in the action by the party applying for
leave to make the amendment”.
(45) In ABABIO VRS. QUARTEY [1916] PC’74-28’,40, the Privy
Council held that if there was any capacity disclosed in the
course of action which would have enabled the Plaintiff to have
maintained the suit he ought not to have been non-suited. Their
Lordships therefore remitted the case for rehearing with
direction to the Court below to allow the necessary amendments
that would enable the Plaintiff prosecute the case in whatever
capacity he possessed, whether in his personal or representative
capacity.
(46) In the instant case, the Plaintiffs disclosed in the statement of
claim that they are the children of Guilliana Bottino whose
property in issue devolved by the laws of Italy onto them.
Under the circumstances and for all the reasons stated above, we
hereby hold that the personal law of Gulliana Bottino i.e. Italian
Law should apply concerning the devolution of her estate in
Ghana.
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(47) We therefore allow the appeal and order that the case should be
remitted to the High Court differently constituted for
continuation.
(Sgd).
IRENE C. LARBI (MRS).
(Justice of Appeal)
(Sgd).
L. L. MENSAH
I agree (Justice of
Appeal)
(Sgd).
I also agree ANGELINA M. DOMAKYAAREH
(MRS).
(Justice
of Appeal)
Counsel:
John Mercer Esq. (for Plaintiffs/Respondents/Appellants)
Daniel Amosah Esq. (for 1st Defendant/Applicant/Respondent)
George Sackey Esq. (for 2nd and 3rd Defendants/Respondents)
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