21 Jun Florini Luca & Florini Alesandro V. Mr. Samir, Divestiture Implementation Committee & AG Civil Appeal No. J4/49/2020- Judgement of the Supreme Court Dated 21st April, 2021.
“…a Power of Attorney constituted by a statutory declaration attested by a Commissioner for Oaths or Notary Public has more gravitas than one stated on a paper signed by the donor and attested by a witness without an oath…”
The Plaintiffs, two Italian nationals, instituted an action through a Lawful Attorney to recover property which belonged to their deceased mother after it was confiscated during the revolutionary period. Authority to represent the Plaintiffs in initiating the action was given to their Lawful Attorney by a Power of Attorney.
The Court was tasked to determine two main issues:
- the capacity of the Plaintiffs to bring an action to recover the property; and
- the validity of the Power of Attorney that had only been attested to by a Notary Public.
On the first issue, the Defendants argued that the Plaintiffs did not have the capacity to bring the instant suit because they had not applied for letters of administration.
The Supreme Court held that, the Plaintiffs had not sued on behalf of the estate of their deceased mother but rather had sued in their own right by virtue of the fact that the property had devolved on them by operation of Italian Law, which was the law of domicile of their mother at the time of her death.
On the second issue, the High Court held that the Power of Attorney must have been attested to by a witness and not only a Notary Public and as such had failed to meet the statutory requirement under Section 1(2) of the Powers of Attorney Act, 1998 (Act 549). The Court of Appeal reversed the decision of the High Court. The Defendants lodged a further appeal to the Supreme Court.
The Supreme Court held that, Act 549 does not state any special criteria for acting as a witness, neither does it disqualify any group of persons from acting as witnesses. Similarly, the Act does not prevent a Power of Attorney from being given under oath. On this basis, a Notary Public or a Commissioner for Oaths could attest to the due execution of a Power of Attorney and such attestation would hold greater credence that one attested to by a witness without an oath. Thus, the Power of Attorney given by the Plaintiffs was deemed valid.
Insight: A Power of Attorney constituted by a statutory declaration, attested to by a Commissioner for Oaths or Notary Public has more gravitas than one granted by the donor and attested to by a witness without an oath. Unlike any other witness, the Commissioner for Oaths and Notary Publics perform their functions with clear legal sanctions and can easily be called upon in the event of a dispute as to the execution of the Power of Attorney, thereby enhancing their credibility as witnesses.