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Practice and
Procedure
–
Prerogative orders - Certiorari
– computation of time -
Confiscation orders -Outside
the statutory time limit – Abuse
of Court processes – Whether or
not the instant application has
not lapsed under rule 62 of
Supreme Court Rules 1996, C. I.
16 - Whether or not application
has been brought within time –
Whether or not the learned High
Court Judge exceeded his
jurisdiction when he ordered the
seizure and forfeiture of the
sum moneybelonging to the
Applicant - Whether or not the
Applicant was denied his basic
human rights
HEADNOTES
Applicant had
one USD account and one cedi
account with Ecobank (Gh)
Limited since May 2003. In
November 2011, the Applicant
received USD22,500.00 (he claims
it was a personal loan to
support his business). When the
Applicant attempted to access
the funds from the November 2011
transaction, the bank denied him
access on the grounds that the
Applicant was being investigated
for money laundering and
cyber-crime by the 1st
Interested Party (The Executive
Director of Economic and
Organised Crime Office) pursuant
to a suspicious Transaction
Report (STR) filed by the 3rd
Interested Party. The Applicant
believed that the reason the
Branch Manager had filed the
Suspicious Transaction Report
which led to the investigation
was solely based on the
Applicant’s Rastafarian
appearance. This fact has not
been substantiated The
Interested Party sent a letter
by registered mail dated 7th
February 2012 inviting the
Applicant to assist in
investigations on 14th
February 2012 but the Applicant
did not show up. The Applicant
left for Togo for greener
pastures and returned in
November 2013 to find that his
accounts were still frozen. When
the Applicant and his Counsel
obtained a meeting with
representatives of the
Interested Party in January
2014, he was informed that his
funds had been transferred to
the Interested Party’s exhibit
account, held with the 2nd
Interested Party (the Bank of
Ghana) because of the 1st
Interested Party’s inability to
reach the Applicant in his
absence. When the Applicant’s
Counsel applied for legal
proceedings, it was discovered
that the Applicant’s funds were
seized and forfeited to the
state by an ex-parte motion
filed in February 2013. Further
scrutiny revealed that the 1st
Interested Party did not provide
any evidence that the
Applicant’s funds were tainted
or the proceeds of a serious
crime. the learned trial Judge
refused the Applicant’s
application to the High Court on
14th March 2014
seeking to set aside the
previous orders which froze the
accounts.
HELD
Majority
view
It is plain
that the discretionary nature of
certiorari applies to this
prayer sought also. It should
be stressed that certiorari is a
special and residual remedy
which is held in reserve, hence
the rule that where there is an
equally effective alternative
remedy, resort to certiorari
will be refused For all the
foregoing reasons the
application is dismissed.
Minority
view
it
is clear that the Applicant had
never been arrested, arraigned
before any court on a charge of
serious offence or obtaining and
or acquiring property with
tainted property and or
convicted. It is therefore my
contention that the failure of
the 1st Interested
Party to follow due process in
these particular cases smacks of
arbitrariness which is
tantamount to denial of the
basic human rights of the
Applicant and others who find
themselves in similar situation.
Granted that the Applicant had
completely absconded from the
jurisdiction after initial
investigations were commenced,
it is my opinion that article 19
(3) (a) of the Constitution 1992
could have been used to
prosecute him in absentia if
they were minded to do so. Under
the premises, it is very clear
that the Applicant should be
entitled to the reliefs he
claims because the grounds of
the application have been
sustained. Accordingly, I will
direct that the proceedings and
orders of the High Court,
Financial Division in
respectively be brought up and
same are accordingly quashed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules 1996, C. I. 16
Constitution
1992
CASES
REFERRED TO IN JUDGMENT
The High
Court, Accra 2. Nana Yaa Konadu
Exparte Alhaji Abdul Rashid, CM
J5/13/2014 dated 13/2/2014, S.C
Republic v
Anlo Traditional Council; Ex
parte Hor II (1979) GLR 234 C.A
Ampofo v
Samanpa (2003-2004) 2 SCGLR
1153.
Republic v
High Court (Fast Track
Division), Accra Ex-parte State
Housing Co. Ltd. (No.2)
Koranten-Amoako, Interested
Party [2009] SCGLR 185
Republic v
High Court, Kumasi; Ex-parte
Mobil Oil (Ghana Ltd) Hagan –
Interested Party [2005-2006]
SCGLR 312
Network
Computer Systems Ltd. v Intelsat
Global Sales and Marketing Ltd.
[2012] 1 SCGLR, 218
Republic v
High Court, Cape Coast, Ex-parte
Ghana Cocoa Board, (Apotoi III-
Interested Party) [2009] SCGLR
603
BOOKS
REFERRED TO IN JUDGMENT
Guide to
Anti-money Laundering and
Combating the Financing of
Terrorism, 2nd
Edition and supplement on
Special Recommendation IX,
authored by Paul Allan Schott,
DELIVERING
THE LEADING JUDGMENT
ATUGUBA, JSC
DISSENTING
OPINION
DOTSE JSC:-
COUNSEL
HON.
ALEXANDER KWAMENA AFENYO
MARKIN ESQ. WITH HIM MISS
BERNINA KORKOR OKUTU FOR THE
APPLICANT.
JACQUELINE
AVOTRI FOR THE 1ST
INTERESTED PARTY.
ERNEST
OSEI-AFFUL FOR THE 3RD
INTERESTED PARTY
____________________________________________________________________________________
RULING
____________________________________________________________________________________
ATUGUBA, JSC
(FOR THE
MAJORITY)
On 22/4/2014
the applicant herein filed this
application seeking:
“i.
An order of certiorari to bring
up into this Court for purposes
of being quashed the order of
the High court (financial
Division) Coram: His Lordship
Justice Bright Mensah dated 19th
February, 2013 Seizing and
Forfeiting the US 22,480
belonging to the Applicant
lodged in 024204416729501 (USD
ACCOUNT) and 0240034416729501 (GHC
ACCOUNT) with the 3rd
Respondent to the state.
ii.
An order of certiorari to bring
up into this Court for the
purposes of being quashed the
ruling of the High Court Coram
His Lordship Justice Bright
Mensah dated 14th
March, 2014 dismissing the
Application to set aside the
Order of Seizure and Forfeiture
of Tainted Assets.
iii.
An order of certiorari to bring
up into this Court for the
purposes of being quashed the
order confirming the continuous
freezing of the account of the
Applicant held with the 3rd
Respondent dated 23rd
February, 2013.”
There is some
fluctuation as to dates. Whilst
the applicant dates the first
order sought to be quashed the
19th February 2013,
the 1st respondent
dates it the 19th day
of February 2012. Similarly
while the applicant dates the
third impugned order the 23rd
day of February 2013, his
exhibit NN01 dates it the 23rd
day of February 2012. It is the
latter dates that are correct.
In any case
it is quite clear that this
application has been brought not
less than one year after the
occurrence of the relevant
events called into question by
the applicant.
This court
has stated time without number
that the discretionary nature of
the remedy of
certiorari is not prejudiced
by the incidence of nullity of
the proceedings sought to be
quashed. This principle has
recently been emphasized in
The Republic v 1.
The High
Court, Accra 2. Nana Yaa Konadu
Exparte Alhaji Abdul Rashid, CM
J5/13/2014 dated
13/2/2014, S.C unreported.
Perhaps it is necessary to
explain that the mere fact that
rules of court on time limits
cannot shut out an application
in respect of proceedings that
are a nullity does not mean the
relief sought will be granted
pro tanto. The discretionary
nature of certiorari still
applies in relation to it.
Since even when an application
for certiorari brought within
time limits can still be refused
for tardiness it would be
pessimi exempli to hold that
tardiness cannot, as a matter of
discretion defeat a certiorari
application brought
outside
the statutory time limit.
Cases which tend to hold that
time for applying for certiorari
runs from the date of a refusal
to set aside a judgment could
not have in their contemplation
such an application brought
ex diuturnitate temporis
under the inherent jurisdiction
to vacate void orders. Even
there abuse of the process has
been excepted by this court. See
Ampofo v
Samanpa (2003-2004) 2 SCGLR
1153.
The
applicant’s certiorari
application relates to the
lodgments of various sums of US
Dollars into his aforementioned
Ghanaian bank accounts peaking
to a single deposit of USD
22,500.00. The applicant is
said to be a mechanic but he
seems to have substituted
therefor a new status of farmer.
The sources
and purposes of the said
lodgments are not well known
though it is said that they
emanate mostly from foreign
females. The applicant had
ample time to apply for judicial
review but chose to come 2 years
later.
In the
circumstances I am reluctant to
avail the applicant of the
discretionary remedy of
certiorari in respect of the two
aforementioned orders of the
High Court (Financial Division).
As regards
the prayer to quash the ruling
of the said court, dated
14/3/2014 refusing “to set aside
the order of seizure and
forfeiture of Tainted Assets,”
it would be invidious to grant
the same after the refusal by
this court to quash the two
aforementioned orders. Such a
course would negate the legal
implications of the refusal of
this court to quash the two
aforementioned orders.
It is plain
that the discretionary nature of
certiorari applies to this
prayer sought also. It should
be stressed that certiorari is a
special and residual remedy
which is held in reserve, hence
the rule that where there is an
equally effective alternative
remedy, resort to certiorari
will be refused.
As emphasized by Jiagge J.A in
Republic v Anlo Traditional
Council; Ex parte Hor II
(1979) GLR 234 C.A at 243:
“As a matter
of practice, great caution
accompanies the exercise of
discretionary powers
under
prerogative orders. The
prerogative has been defined as
“The residue of discretionary
or arbitrary authority which
at any given time, is legally
left in the hands of the Crown:
(i.e. State).”
For all the
foregoing reasons the
application is dismissed.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE
SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF
THE SUPREME COURT
DISSENTING
OPINION
DOTSE JSC:-
I have been
privileged to have read the
opinion of my worthy and
respected brother Atuguba JSC
and President of the Court to
the effect that the instant
application has been woefully
filed out of time in terms of
rule 62 of the
Supreme
Court Rules 1996, C. I. 16
and therefore ought to be
dismissed.
The said
opinion has agitated my mind and
given me anxious moments and the
more I consider it, the more I
feel a lot of injustice would be
caused the Applicant if I should
follow that line of thinking.
I am not
unaware that in deciding to
write this dissenting opinion, I
am in the minority as my
brethren have all decided to go
along with the decision of
Atuguba JSC.
Nonetheless,
I am determined to press on to
give the reasons why I hold a
contrary view and opinion and
also why I departed from the
views of the majority of the
Court.
The 1st
Interested Party in this case
has contended that the
Applicants application has been
filed out of time and therefore
in flagrant violation of rule 62
of the Supreme Court Rules, 1996
C. I. 16.
The 1st
Interested Party also contended
that an appeal is a suitable
remedy which they claimed the
Applicant has already filed.
I will
therefore promptly deal with
these preliminary issues before
I deal with the substantive
application.
Notice of
Preliminary Objections
I have taken
the view that,
the
instant application has not
lapsed under rule 62 of C. I. 16
as contended by the
Interested Parties.
It is trite
procedure that whenever a party
conceived that a decision,
ruling or order made or given by
a trial court, in this instant
the High Court has not been well
made out, due to a variety of
factors inter alia because a
party was not heard or a process
which ought to be served had not
been served etc, that party is
entitled to go back to the trial
court to seek to set aside the
order, ruling or decision
complained of on stated legal
grounds.
It is only
after the refusal by the trial
court to set the impugned order,
ruling or decision aside that
the grounds for the application
would be deemed to have arisen,
thereby necessitating the
computation of time.
In
determining this issue as to
whether this
Application has been brought
within time as envisaged
under rule 62 of C. I. 16, this
court will have to consider the
effect of the Ruling of the High
Court, Financial Division on 14th
March 2014, which was a ruling
premised upon an application
made to the court to set aside
its confiscation orders made by
the Court.
It should be
noted that, it was this Ruling
of 14th March
2014which completely shut the
door on the Applicant in the
pursuit of his rights to get the
High Court to overturn the
confiscation orders made
earlier on.
On the
authority of the unanimous
decision of the Supreme Court in
the case of
Republic v High Court (Fast
Track Division), Accra Ex-parte
State Housing Co. Ltd. (No.2)
Koranten-Amoako, Interested
Party [2009] SCGLR 185,
the 14th of March
2014 is the date time would be
deemed to have started running
for purposes of
computing
time pursuant to rule 62 of
C.I. 16. Under the
circumstances, the Applicant is
not out of time as contended by
learned counsel for the 1st
Interested Party. The
preliminary legal objection is
therefore overruled as
untenable. See also cases of
Republic v High Court, Kumasi;
Ex-parte Mobil Oil (Ghana Ltd)
Hagan – Interested Party
[2005-2006] SCGLR 312
holding 1 and
Network Computer Systems Ltd. v
Intelsat Global Sales and
Marketing Ltd. [2012] 1
SCGLR, 218 at 227 where
Atuguba JSC speaking for the
majority stated unequivocally
that
“a Court cannot shut its eyes
to the violation of a statute as
that would be very contrary to
its raison d’etre”
Secondly, I
wish to deal with the widely
held view that Certiorari and
Appeals are mutually exclusive
and cannot be pursued together.
This view has been put to
permanent rest by the decision
of this Court in the case of
Republic v High Court, Cape
Coast, Ex-parte Ghana Cocoa
Board, (Apotoi III- Interested
Party) [2009] SCGLR 603,
per Date-Bah JSC at holding 4,
especially at pages 614 -615
where it was stated convincingly
that certiorari and appeals are
not mutually exclusive. The two
processes can therefore be
embarked upon by the same
applicant.
The above
therefore dismisses the said
contentions raised by the 1st
Interested Party in this
respect.
That being
the case it is clear that, based
on the authorities mentioned
supra, the date the cause of
action arose for the purposes of
the instant Certiorari
application is 14th
March 2014 when the learned High
Court Judge refused to set aside
the previous and earlier orders
for Seizure and Forfeiture of
Tainted Assets dated 19th
February 2013, 23rd
February 2013 or 28th
February 2013 respectively.
On the basis
of the above, I am of the
considered opinion that the
Applicant’s application has been
filed within time and needs to
be considered.
What then are
the facts of this Application?
Applicant had
one USD account and one cedi
account with Ecobank (Gh)
Limited since May 2003. In
November 2011, the Applicant
received USD22,500.00 (he claims
it was a personal loan to
support his business). When the
Applicant attempted to access
the funds from the November 2011
transaction, the bank denied him
access on the grounds that the
Applicant was being investigated
for money laundering and
cyber-crime by the 1st
Interested Party (The Executive
Director of Economic and
Organised Crime Office) pursuant
to a suspicious Transaction
Report (STR) filed by the 3rd
Interested Party. The Applicant
believed that the reason the
Branch Manager had filed the
Suspicious Transaction Report
which led to the investigation
was solely based on the
Applicant’s Rastafarian
appearance. This fact has not
been substantiated.
The
Interested Party sent a letter
by registered mail dated 7th
February 2012 inviting the
Applicant to assist in
investigations on 14th
February 2012 but the Applicant
did not show up. The Applicant
left for Togo for greener
pastures and returned in
November 2013 to find that his
accounts were still frozen. When
the Applicant and his Counsel
obtained a meeting with
representatives of the
Interested Party in January
2014, he was informed that his
funds had been transferred to
the Interested Party’s exhibit
account, held with the 2nd
Interested Party (the Bank of
Ghana) because of the 1st
Interested Party’s inability to
reach the Applicant in his
absence. When the Applicant’s
Counsel applied for legal
proceedings, it was discovered
that the Applicant’s funds were
seized and forfeited to the
state by an ex-parte motion
filed in February 2013. Further
scrutiny revealed that the 1st
Interested Party did not
provide any evidence that the
Applicant’s funds were tainted
or the proceeds of a serious
crime.
Bright Mensah
J, the learned trial Judge
refused the Applicant’s
application to the High Court on
14th March 2014
seeking to set aside the
previous orders which froze the
accounts.
With these
facts at the background, I deem
it quite expedient to give some
preliminary observations in this
case as the basis of my
philosophical understanding of
the role of the Courts, that of
EOCO and how the rights of the
citizens of this country are to
be guided by provisions of the
Constitution 1992 and the
Economic and Organised Crime
Act, 2010, Act 804.
Preliminary
Observations
The preamble
to Act 804 states as follows:
“An Act to establish an
Economic and Organised Crime
Office as a specialised agency
to monitor and investigate
economic and organised crime
and on the authority of the
Attorney-General prosecute these
offences to recover the proceeds
of crime and provide for related
matters.”
There is
therefore no doubt that there is
the urgent need for all
countries in the modern world to
enact and implement legislations
which will ensure that the fight
against organised crime, money
laundering and terrorist
financing are taken up on a
higher level to make our country
and the world at large a much
safer and secured place than it
is now.
I have
perused Act 804 several times
and I cannot but agree that
there is the need for such a
legal regime. The provisions of
Act 804, actually re-emphasise
the opening paragraph of the
Foreword to the World Bank
Reference
Guide to Anti-money Laundering
and Combating the Financing of
Terrorism, 2nd
Edition and supplement
on Special Recommendation IX,
authored by Paul Allan Schott,
which reads as follows:-
“Efforts to launder money and
finance terrorism have been
evolving rapidly in recent
years in response to heightened
counter measures. The
international community has
witnessed the use of
increasingly sophisticated
methods to move illicit funds
through financial systems
across the globe and has
acknowledged the need for
improved multilateral
cooperation to fight these
criminal activities.”
I believe it
was in response to addressing
the concerns raised in the
foreword to the World Bank
Reference Guide to Anti money
Laundering and Combating the
Financing of Terrorism that Act
804 and similar other laws in
the modern and civilized world
have been enacted.
However, it
has to be noted and observed
that the enactment of Act 804,
does not absolve the staff of
the Economic and Organised Crime
office and the
Attorney-General’s Department
from following due process. In
addition to the issue of due
process, the
Constitution 1992 has
detailed provisions designed to
protect persons from
arbitrariness, breach of the
rules of natural justice,
protection against unlawful
deprivation of property among
several other rights which are
designed to ensure fair trial.
See article 19 of the
Constitution 1992.
Since Act 804
is in its formative years, a
great deal of caution and
circumspection is required from
the staff of the relevant
investigating agencies and the
officers who will implement the
law against suspected criminals.
The bedrock of our criminal
justice system is that, a person
is presumed innocent until
proven guilty.
It is in this
respect that the rules of
natural justice which have also
formed part of our basic laws
must not only be adhered to, but
seen to be scrupulously
observed.
In this
respect, the courts have a very
important role to play in
ensuring that the operatives of
Act 804 do not take the citizens
of Ghana for granted. The courts
must therefore ensure that in
the implementation and execution
of Act 804, the words of the
statute are interpreted taking
into account relevant
constitutional provisions
guaranteeing fair trial among
others and also best practices
in criminal jurisprudence.
Any laxity on
the part of the courts can
either lead to the office of
EOCO becoming a monster which
may become too powerful and
difficult to rein it in, or that
suspected criminals may also
have a field day thereby
threatening the stability and
safety not only of Ghana, but
the global world if there is
extreme laxity in the enforcing
the law. There is therefore the
need for a delicate balance to
be exercised by the Courts to
ensure that there is equilibrium
such that law abiding citizens
are protected whilst due
process is used to deal
with those who fall foul of the
law. With the above observations
let me now deal with the
substantive issues in this
ruling.
From the
facts of this application, as
has been briefly narrated supra,
and the preliminary observations
stated above, it is necessary at
this stage to bring all these
issues into context vis-à-vis
the reliefs which the Applicant
seeks against the Interested
Parties herein.
It is not in
dispute that the Applicant seeks
an order of Certiorari to bring
up into this Court for the
purposes of being quashed the
orders of the High Court,
Financial Division, presided
over by Bright Mensah J dated 19th
February 2013, which seized and
forfeited an amount of USD
22,480 belonging to the
Applicant lodged with the
Ecobank, that of 23rd
February 2013, which confirmed
the continued freezing and
seizure of the said account that
of 28th February 2013
and lastly the orders of 14th
March 2014 which dismissed
application to set aside the
said seizure and confiscation
orders of 19th, 23rd
and 28th
February 2013 already referred
to supra.
Grounds of
the Application
1.
Excess of Jurisdiction
That the
learned High Court Judge
exceeded his jurisdiction when
he ordered the seizure
and forfeiture of the sum of USD
22,480 belonging to
the Applicant lodged with
the 3rd Interested
Party when he was neither on
trial for a serious
offence under Act 804 nor had
been convicted of same.
2.
That the orders of seizure and
forfeiture, dated variously,
i.e. 19th
February 2013, 23rd
February 2013, 28th
February 2013 and 14th
March 2014 were all
made in breach of the rules of
natural justice.
In view of
the limited time available to
articulate my views in this
case, I wish to state the
following very briefly as the
legal analysis of the issues
raised for determination in this
application. These are;
1.
Whether the Applicant is
entitled to the reliefs he
claims vis-à-vis the
applicable laws in Act 804?
2.
Whether
or not the Applicant was denied
his basic human rights i.e.
rules of natural justice,
denying him an opportunity to be
heard before confiscating his
property.
Whilst
Section 23 authorises the
Interested Party to forfeit the
Applicant’s property to the
Republic in the event that the
owner (the Applicant) does not
claim the property by giving
notice in writing to the
Executive Director within a
month of seizure, it would be
impossible for a party to give
notice that his property has
been seized if that party has
not been provided proper notice
of the seizure itself. As a
result, though it is not
explicitly stated in the Act,
Section 23 will only come into
play if the Applicant had been
provided with adequate notice
pursuant to Section 47 of Act
804 thereof.
Section 23 of
the Act (the section under which
the application for seizure was
made by the 1st
Interested Party) states that
currency may be seized but only
if there is
“(b) reasonable grounds to
suspect that
(i)
the currency is the proceeds of
a crime, or
(ii) the currency is
intended by the person for use
in the commission of a
serious offence, or
(c) if the holder of the
currency is unable to provide
satisfactory explanation for
the source of the currency”
Whilst there
may be a valid argument to be
made that there were reasonable
grounds to suspect that the
Applicant was involved in a
serious crime, these grounds
were insufficiently
substantiated and the court
failed to follow the prescribed
procedures in inferring from
these grounds pursuant to
section 51.
In order to
confiscate property under Act
804, the court hearing an
application for confiscation of
tainted property must follow the
procedures set out in section 51
of the Act.
In this
context, the Court that
confirmed the seizure of the
Applicant’s property failed to
follow the procedures. Pursuant
to section 51 (1), in order to
confirm such a confiscation,
there must be an inference by
the court from the record of
proceedings
(a)
that the property was used to
facilitate or aid the commission
of a serious offence if it
was in the person’s possession
at the time of or immediately
before the arrest of the person
for the serious offence for
which the person is on trial or
convicted, and
(b)
that the property was derived,
obtained or realised as a result
of the serious offence if it was
acquired by the person before,
during or within a reasonable
time after the period of the
serious offence of which the
person is on trial or
convicted, and the Court is
satisfied that the income of
that person from sources
unrelated to a serious offence
cannot reasonably account
for the acquisition of that
property in the absence of
evidence to the
contrary.”
The Applicant
in this case was not arrested,
charged with, tried or convicted
of any offence, let alone a
serious offence. There were
never any allegations made by
the 1st Interested
Party that would legitimise the
confiscation order other than
vague and unfounded assertions
of suspicious account activity.
Section 3
further states that
(3)
“The Court shall have regard to
the gravity of the offence in
considering whether a
confiscation order should be
made.”
These
sections together indicate that
the lawmakers did not intend for
Courts to take these
confiscation orders lightly and
that the intent was to only
allow for confiscations of
personal property when founded
allegations are made within a
reasonable period of
investigation. A state
institution like EOCO, with it’s
vast resources and immense
powers under Act 804 cannot
claim not being able to conclude
investigations within a
reasonable time.
Section 24 of
the Act provides support for the
notion that criminality of the
Applicant should have been
established if the 1st
Interested Party wished to
legally retain the funds.
Section 24 states:
(1) An
authorized officer of the Office
or any other public officer
authorized by the
Executive Director shall seize
property if the officer has
reasonable grounds to suspect
that the property is the
proceeds of a serious offence.
(2) The
Executive Director shall direct
the authorised officer to
release the seized
property to the person from whom
it was seized if no charges are
proffered against
the person within fourteen (14)
working days after the
seizure.”
As there were
no charges proffered against the
Applicant within 14 working days
of the initial seizure, the
funds should have been returned
to his account.
Conclusion
In this
respect, the orders made on 14th
March 2014 refusing to set aside
the initial seizure and
confirmation of seizure should
not have been made. In
otherwords, the application to
set aside should have been
granted by the High Court.
From the
above discussions and analysis,
it is
clear that the Applicant had
never been arrested, arraigned
before any court on a charge of
serious offence or obtaining and
or acquiring property with
tainted property and or
convicted.
Granted that
the 1st Interested
Party has powers under Act 804
to freeze, seize and confiscate
and or forfeit properties of
persons being investigated, the
law does not give them blanket
powers.
These powers
are to be exercised according to
due process. Due process
connotes that there will be an
investigation, arrest,
arraignment and possibly
conviction.
It also has
to be observed that there are
constitutional provisions in the
Constitution 1992 e.g. article
19 and 296 thereof which protect
any citizen or person charged
with a criminal offence.
It is
therefore my contention that the
failure of the 1st
Interested Party to follow due
process in these particular
cases smacks of arbitrariness
which is tantamount to denial of
the basic human rights of the
Applicant and others who find
themselves in similar situation.
Granted that
the Applicant had completely
absconded from the jurisdiction
after initial investigations
were commenced, it is my opinion
that article 19 (3) (a) of the
Constitution 1992 could have
been used to prosecute him in
absentia if they were minded to
do so.
Under the
premises, it is very clear that
the Applicant should be entitled
to the reliefs he claims because
the grounds of the application
have been sustained.
Accordingly,
I will direct that the
proceedings and orders of the
High Court, Financial Division
in Suit No. FT RM 54/12
intitutled The Executive
Director Economic and Organised
Crime Office v Nii Nueh Odonkor
dated 19th February
2013, 23rd February
2013, 28th February
2013 and 14th March
2014 respectively be brought up
and same are accordingly
quashed.
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
COUNSEL
HON.
ALEXANDER KWAMENA AFENYO
MARKIN ESQ. WITH HIM MISS
BERNINA KORKOR OKUTU FOR THE
APPLICANT.
JACQUELINE
AVOTRI FOR THE 1ST
INTERESTED PARTY.
ERNEST
OSEI-AFFUL FOR THE 3RD
INTERESTED PARTY
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