IN THE SUPERIOR COURT OF
JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2017
THE
REPUBLIC VRS HIGH COURT,
(FINANCIAL DIVISION 2)
ACCRA EX-PARTE: KOFI APPIANIN
ENNIN, CRISSPAN COMPANY
LIMITED,GHANA EMPIRE BAND
LIMITED WANAMARU ENTERPRISE,
FINANCIAL INTELLIGENCE CENTRE
CIVIL MOTION NO. J5/9/2017 31ST
JANUARY, 2017
CORAM:
ADINYIRA (MRS) JSC PRESIDING
DOTSE JSC ANIN YEBOAH JSC
GBADEGBE JSC BENIN JSC
Practice and Procedure -
Certiorari - Economic and
Organised Crime - Jurisdiction -
article 296 of the Constitution
1992 - Anti Money Laundering
Amendment Act, (Act 874) -
Whether
High Court,
Financial Division 2 exceeded
its jurisdiction -
Whether freezing of all
the accounts was done in breach
of the rules of natural justice.
- Whether preservation of the
funds in a frozen account to
facilitate investigations,
includes prosecution,
HEADNOTES
The facts of this case admit of
no complexities whatsoever. The
interested Party herein,
(Financial Intelligence Centre)
applied to the High Court,
Financial Division 2, Accra, by
two ex-parte applications for
the freezing of the accounts of
the Applicants herein, It has
been established that, based on
the suspicious activities of the
Applicants, the Chief Executive
Officer of the Interested Party
directed the respective Banks to
freeze the accounts of the
Applicants at various banks,
Following the events stated
supra, the Applicants herein
sought to set aside the orders
made by the High Court,
Financial Division 2, Accra by
motion on notice supported by
affidavit but failed in their
bid. It is the above ruling,
dated 3rd day of
August 2016 that triggered the
Applicants to file the instant
certiorari application -
HELD :-
In sum, the Applicants succeed
in terms of the application and
we accordingly invoke our
supervisory jurisdiction
pursuant to article 132 of the
Constitution. Consequently, the
decision and orders of the High
Court, Financial Division 2,
Accra presided over by Afia
Serwaa Asare-Botwe J (Mrs) dated
3rd August, 2016 in
suit No. FTRM/87/15 is
accordingly ordered to be
brought up and same is
accordingly brought up and
quashed by certiorari in terms
of the decisions of this Court.
STATUTES REFERRED TO IN JUDGMENT
Anti Money Laundering Amendment
Act, 2014, (Act 874).
Anti-Money Laundering Act 2008,
Act 749
Narcotic Drug (Control,
Enforcement and Sanctions) Law,
1990 (PNDCL 236).
Republic v
Fast Track High Court, Accra
Ex-parte Electoral Commission
[2005-2006] SCGLR
Republic v District Magistrate
Accra, Ex-parte Adio [1972] 2
GLR 125
Republic v High Court (Financial
Division) Accra, Ex-parte James
Awuni, The Chief Executive
Officer, Financial Intelligence
Centre [2015] 84 G.M.J
Republic v High Court, Accra, Ex
parte CHRAJ (Addo - Interested
Party) [2003-2004]
SCGLR 312
Republic v District Magistrate,
Accra, Ex Parte Adio [1972] 2
GLR 125
CASES REFERRED TO IN JUDGMENT
Financial Intelligence Centre v
Francis Arthur (Suit No. FTRM
326/13 dated 25th April
2016,
Republic v Court of Appeal,
Ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612
Republic v Circuit Court,
Ex-parte Komely Adam [2012] 1
SCGLR 111
Republic v High Court,
(Financial Division) Accra,
Ex-parte Xenon Investment Co.
Ltd., Financial Intelligence
Centre,
Suit No. CM/J5/46/2015 dated
22/3/2016.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:
CORAM:
ADINYIRA (MRS) JSC PRESIDING
DOTSE JSC ANIN YEBOAH JSC
GBADEGBE JSC BENIN JSC
COUNSEL.
KWAME BOAFO AKUFFO FOR THE
APPLICANTS.
ARTHUR CHAMBERS FOR THE
INTERESTED PARTY.
RULING
DOTSE, JSC:
By this application, the
Applicants herein seek an order
of Certiorari directed at the
High Court, Financial Division
2, Accra to bring into the
Supreme Court for the purpose of
it being quashed, the Ruling of
3rd August 2016 in
Suit No. FTRM/87/15 intitutled
Financial Intelligence Centre v
Kofi Appianin Ennin and 3
others.
The grounds upon which the
Applicants seek this application
have been stated as follows:-
Grounds of the Application
1.
The High Court, Financial
Division 2 exceeded its
jurisdiction when it dismissed
the application (filed on 29th
June, 2016) to set aside the
order for a confirmation of
freezing of accounts dated the
16th of June, 2015
and 25th of June,
2015 respectively when the
statutory period of 12 months
had long lapsed.
2.
The High Court, Financial
Division 2 exceeded its
jurisdiction when it sought
to direct or impose directions
on how a case involving the 1st
Applicant should be tried before
the High Court Criminal Court
3.
The freezing of all the
accounts of the Applicants was
done in breach of the rules of
natural justice.
Emphasis supplied
FACTS
The facts of this case
admit of no complexities
whatsoever. The interested Party
herein, (Financial Intelligence
Centre) applied to the High
Court, Financial Division 2,
Accra, by two ex-parte
applications for the freezing of
the accounts of the Applicants
herein. The freezing orders were
granted by the High Court
referred to supra on the 16th
and 25th June 2015
respectively.
Facts deposed to in the
affidavit in support of these
ex-parte applications are to the
following effect:-
Ø
That the 1st
Applicant herein was then being
investigated for trafficking in
narcotic drugs and was
subsequently on remand then at
the Nsawan Medium Security
Prison.
Ø
The 1st Applicant is
also a Director of the 2nd
and 3rd Applicant
companies.
Ø
The 4th Applicant
Company belongs to one George
Kyei Baffour who was alleged to
be a son of the 1st
Applicant. This fact has been
denied and the Interested Party
has not given any further or
better particulars of the said
depositions.
Ø
It was also alleged that George
Kyei Baffour was also implicated
for trafficking in narcotics
drugs, and was being
investigated. No further proof
of these allegations apart from
the mere depositions had been
stated in proof of the averments
therein contained.
It has been established
that, based on the suspicious
activities of the Applicants,
the Chief Executive Officer of
the Interested Party directed
the respective Banks to freeze
the accounts of the Applicants
at the following banks:-
i.
ADB Bank
Limited
Account Number: 1070005049201
ii.
Barclays Bank Ghana
Limited
Account numbers: 1248258
and 1056340
iii.
Atwima Rural Bank Limited
Account numbers: 32451, 32587
and 23176
iv.
Bank of Africa
Account numbers: 0000014100228
and 00214100228
v.
Stanbic Bank Ghana Limited
Account number: 0140027065901
vi.
ADB Bank Limited
Account Number 1051000112139101
Following the events
stated supra, the Applicants
herein sought to set aside the
orders made by the High Court,
Financial Division 2, Accra by
motion on notice supported by
affidavit but failed in their
bid.
In order to appreciate the
reasons why the learned High
Court Judge dismissed the
applications to set aside the
ex-parte freezing orders, it is
thought expedient to set out
some salient parts of the Ruling
in extenso, as follows:-
“The gravamen of this
application per the arguments
raised by counsel (sic)
Applicants is that per the
legislation setting up the
Financial Intelligence Centre,
and upon an application of the
decision of the Supreme Court in
The Republic v High Court
(Financial Division), Accra
Ex-Parte Xenon Investment Co.
Limited it would be in
excess of the jurisdiction of
the Court to keep the accounts
of the Applicants beyond the
statutory one year period
specified in the Anti Money
Laundering Amendment Act, 2014,
(Act 874).
Preservation of funds, other
assets and instrumentalities of
crime.
23A An accountable
institution shall preserve the
funds, other assets and
instrumentalities of crime for a
period of one year to facilitate
investigations.”
(Emphasis mine)
In considering this application,
I have had recourse to closely
study the decision of the
Supreme Court in the Xenon
Investment case. I have also
studied the entire record of
this case. The Xenon Investment
case is quite distinguishable
from this one in that in that
case, investigations were still
ongoing and this Court extended
the time for the freezing of the
account regardless. Thus the
learned Anin-Yeboah JSC stated:
“One is compelled to assume that
in this era of information
technology and international
co-operation among nations, one
whole year should be enough for
the Financial Intelligence
Centre to unearth any wrongdoing
in the transaction under
consideration…”
In a Ruling by the High Court,
Financial & Economic Division 1,
Her Ladyship Justice Georgina
Mensah-Datsa (Mrs) opined in the
case of Financial
Intelligence Centre v Francis
Arthur (Suit No. FTRM 326/13
dated 25th April
2016, which opinion also holds
true in the instant case that:
“The Supreme Court case (in
reference to the Xenon
Investment case) cited supra did
not give a blanket decision that
no account can be frozen beyond
one year. It decided on the
issue of funds frozen pending or
to facilitate investigations… to
accept the submissions made by
learned counsel for the
applicant that, irrespective of
the stage of a case, that is,
investigations, prosecution etc.
an account cannot be frozen for
over a year, would be to
undermine procedural integrity.
In the circumstances of this
case, it is without question
that the 1st
Applicant is on trial before the
High Court presided over by H/L
Abdullah-Iddrisu in narcotic
related offences under the
Narcotic Drug (Control,
Enforcement and Sanctions) Law,
1990 (PNDCL 236).
The opening sentence to the
memorandum of the law states:-
“The purpose of this law is to
bring under one enactment
offences relating to illicit
dealing in narcotic drugs and to
further put in place provisions
that will prevent illicit
narcotic drug dealers benefiting
from their crimes.”
A holistic reading of PNDCL 236
would reveal that there are
provisions for forfeiture of
property without the necessity
of a specific money-laundering
charge.
In conclusion, I would dismiss
this application pending the
outcome of the trial before the
High Court, presided over by H/L
Abdullah Iddrisu. I make no
order as to costs.” Emphasis
supplied
It is the above ruling,
dated 3rd day of
August 2016 that triggered the
Applicants to file the instant
certiorari application on 28th
October 2016 seeking to have the
ruling of 3rd August
2016 quashed on the grounds
stated supra.
In his very brief
affidavit in support of this
certiorari application learned
Counsel for the Applicants,
Kwame Boafo Akuffo, deposed
that, the learned High Court
Judge exceeded her jurisdiction
when it dismissed the
application to set aside the
confirmation of freezing orders
dated 16th June 2015
and 25th June 2015
respectively even though the
statutory period of 12 months in
Anti Money Laundering Amendment
Act, 2014 (Act 874), had lapsed.
Learned counsel also
deposed to the fact that, the
High Court exceeded it’s
jurisdiction when it sought to
direct or impose directions on
how a case should be conducted
in another High Court. Learned
Counsel finally concluded that
the freezing of all the accounts
of the Applicants was done in
breach of the rules of natural
justice.
On the part of the
Interested Party, the affidavit
in opposition to the instant
application was sworn to by one
Lucy Abebrese, an Analyst of the
Interested Party.
The salient points in this
affidavit are captured in
paragraphs 11, 12, 14, 15, 16,
17, and 18 in which the deponent
deposed to as follows:-
11. “That in response to
the afore-mentioned paragraphs,
the Interested Party will say
that the High Court (Financial
Division) rightly dismissed the
Applicant’s motion filed on 29th
June 2016, for an order to set
aside the order of the court
confirming the freezing of the
accounts of the Applicant herein
notwithstanding the fact that
the statutory period of twelve
(12) months, had elapsed.
12. That the High Court
(Financial Division) took into
account the fact that the
Applicant in the said suit, has
been charged and being tried by
the High Court (Criminal
Division 3) (Find attached
hereto and marked as Exhibit
FIC-3, the charge sheet on which
the prosecution of the Applicant
is based.)
14. That I have been
advised by the Lawyer for the
Interested Party, and I verily
believe same to be true that
on a proper construction of
Section 23A of Act 874, the
preservation of the funds in a
frozen account to facilitate
investigations, includes
prosecution, when a prima facia
case has been established
against the holder of the
account.
15. That the fact that the
Applicant herein is standing
trial for charges of possessing
narcotics drugs without lawful
authority, made it prudent for
the High Court (Financial
Division) to refuse the
application filed before it for
an order to defreeze the account
because the Statutory Period of
twelve (12) month, had elapsed.
16. That I have further
been advised by Lawyer for the
Interested Party herein, and I
verily believe same to be true
that since the offence of
possessing narcotics drugs
without lawful authority is a
predicate offence, as per the
provisions of the Anti-Money
Laundering Act 2008, Act 749, as
amended by Act 874, it was
prudent for the High Court
(Financial Division) to refuse
the application to defreeze
accounts of the Applicant herein
so as to preserve the funds,
which are the subject matter of
the trial.
17. That in response to
the deposition in paragraph 7 of
the affidavit in support of the
instant motion, the interested
party will say that there was no
breach of the rules of natural
justice as the Applicant herein
was informed through the banks
within forty-eight (48) hours of
the freezing directive as
required by the provisions of
the Anti-Money Laundering Act,
2008, Act 749 as amended by Act
874.
18. That the instant
application is misconceived and
frivolous, and same ought to be
dismissed, since the High Court
(Financial Division) acted
within its jurisdiction, and
that its order refusing the
motion to set aside the freezing
orders, did not occasion any
miscarriage of justice.”
Emphasis supplied
STATEMENTS OF CASE
We have also perused the
statements of case filed by the
respective learned counsel in
support of their various
positions.
BY COUNSEL FOR APPLICANTS
Learned Counsel for the
Parties reiterated arguments in
support of the grounds urged
upon us in this application.
Salient among them are the
following for the applicants
herein.
1.
In this respect, learned
counsel for the Applicant, Kwame
Akuffo argued that at the time
the learned High Court Judge
refused the application to set
aside the freezing orders, more
than one year (12 months) had
lapsed, and was therefore
contrary to section 23 of the
Anti Money Laundering Amendment
Act, (Act 874) which provides as
follows:-
“An accountable
institution shall preserve the
funds, other assets and
instrumentalities of crime for a
period of one year to facilitate
investigations.”
Based on the above,
learned counsel for Applicants
argued that the jurisdiction of
the High Court is only to freeze
the account for periods not more
than one year. Thus, having kept
the said accounts of the
Applicants frozen for more than
one year in the opinion of
learned counsel amounted to an
exercise of jurisdiction which
was clearly in excess of the
court’s jurisdiction.
In support of this
contention, learned counsel
referred to the following cases:
i.
Republic v Court of
Appeal, Ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612 per
Georgina Wood JSC as she then
was.
ii.
Republic v Circuit Court,
Ex-parte Komely Adam [2012] 1
SCGLR 111 at 121 per Date-Bah
JSC.
See also the unreported
ruling of this Court in the case
of Republic v High Court,
(Financial Division) Accra,
Ex-parte Xenon Investment Co.
Ltd., Financial Intelligence
Centre, Suit No.
CM/J5/46/2015 dated 22/3/2016.
2.
Learned Counsel further
argued in support of ground 2 of
this application that, in so far
as the 1st Applicant
herein was not being prosecuted
for an offence under Act 874,
already referred to supra, the
learned trial Judge exceeded her
jurisdiction when she made
references to Narcotic Drug
(Control, Enforcement and
Sanctions) Law 1990 PNDCL 236
and the subsequent prosecution
of the 1st Applicant
for narcotic related offences by
another court of competent
jurisdiction.
3.
Finally learned counsel
for the Applicant argued in
respect of ground 3 that, the
freezing of all accounts in
respect of the Applicants,
without affording them an
opportunity to specify the
accounts which involved the
suspicious transactions. Learned
Counsel therefore concluded
that, without giving them an
opportunity to be heard, the
Court breached the principles of
natural justice, and also a
breach of article 296 of the
Constitution 1992.
BY COUNSEL FOR INTERESTED PARTY
Learned Counsel for the
Interested Party, Arthur
Chambers, argued in response to
the Applicants submissions as
follows:-
1.
In substance, Learned
Counsel argued that, even though
the 1st Applicant is
not facing an offence under the
Money Laundering Amendment Act,
Act 874, the offence which he is
facing under the Narcotics Law,
PNDCL 236 is a predicate offence
of money laundering. Learned
Counsel sought to downplay the
effect of the decision of this
court in the Ex-parte Xenon
Investment Co. Limited case and
distinguished it as such.
Learned counsel strenuously
argued that the High Court did
not exceed it’s jurisdiction
merely by refusing to defreeze
the accounts of the Applicants
as prayed for. He also argued
that there was no error of law
apparent on the face of the
record. In support of this
argument, learned counsel for
the Interested Party referred to
the following cases:-
i.
Republic v Fast Track High
Court, Accra Ex-parte Electoral
Commission [2005-2006] SCGLR per
Prof. Ocran JSC
ii.
Republic v District Magistrate
Accra, Ex-parte Adio [1972] 2
GLR 125
2.
In respect of ground 2,
learned Counsel argued that,
since Section 23A of Act 874
provides inter alia that the
funds, assets and
instrumentalities of crime are
to be preserved for 12 months to
facilitate investigations, the
funds in the accounts of the
Applicants were the subject of
investigation which has
established a prima facie case
in narcotics, leading to
prosecution therein of the 1st
Applicant. In the opinion of
Counsel, the prosecution of the
1st Applicant for
narcotic related offences
entitled the High Court to
extend the freezing orders
beyond the statutory 12 months
period in section 23 of Act 874.
3.
By relying on the Supreme
Court case of Republic v High
Court (Financial Division)
Accra, Ex-parte James Awuni, The
Chief Executive Officer,
Financial Intelligence Centre
[2015] 84 G.M.J at 72,
Counsel argued that it is the
law which stipulates that an
account could be frozen before
the holder of the account is
informed. Learned counsel for
the Interested Party then argued
that since the Supreme Court in
the case referred to supra had
stated that the process of
notification to the Applicants
i.e. a person whose accounts
have been frozen is a purely
administrative duty, there was
thus no breach of the rules of
natural justice. In conclusion,
learned counsel for the
Interested Party urged the court
to dismiss the application as it
is misconceived.
ISSUES
From the submissions of
both Counsel in this
application, the issue which
calls for determination can be
subsumed under only one issue as
follows:-
1.
Whether the Application as
it stands entitles the
Applicants to have the Ruling of
3rd August 2016
quashed by certiorari upon the
grounds urged on this Court by
the Applicants.
Article 132 of the
Constitution 1992, which the
Applicants have invoked states
as follows:-
“The Supreme Court shall have
supervisory jurisdiction over
all courts and over any
adjudicating authority and may,
in the exercise of that
supervisory jurisdiction,
issue orders and directions for
the purpose of enforcing or
securing the enforcement of its
supervisory power”.
The sum total of all the
arguments of both learned
counsel is to the effect that,
section 23A of Act 849 only
allows and or permits the
freezing of accounts for one
year. However, whilst the
Applicants reiterate this fact
and urge upon us, that the non
observance and compliance with
the said statutory provisions by
the learned trial Judge exceeded
her jurisdiction, learned
counsel for the Interested Party
is of the view that section 23A
of Act 849 permits extension of
freezing orders beyond the
statutory one year period
provided prosecution has
commenced. Infact, learned
counsel equated prosecution as
an aspect of investigations.
Black’s Law Dictionary, 9th
Ed, by Bryan A. Garner, at page
902 thereof defines
“investigate” in the following
terms:-
“To inquire into (a matter)
systematically; to make (a
suspect) the subject of a
criminal inquiry, the Police
investigated the suspects
involvement in the murder. “
On the other hand,
prosecute is also defined on
page 1341 by the same learned
authors of Black’s Law
Dictionary as follows:-
1.
“To commence and carry out
a legal action, because the
Plaintiff failed to prosecute
it’s contractual clause, the
court dismissed the suit.”
2.
“To institute and pursue a
criminal action against (a
person), the notorious felon has
been prosecuted.”
Prosecution is also
defined on the same page as
“a criminal proceeding in which
an accused person is tried.”
From the above
definitions, it is quite
apparent that investigate and
prosecute are entirely different
things or scenarios and one
cannot be substituted for the
other. Whilst it must be noted
that, an enquiry into any
criminal conduct, which is what
investigation basically entails
must necessarily precede
prosecution which is the
institution of criminal action
against a suspect, the fact
remains that not all
investigations result or lead
into prosecutions.
The crux of the matter
therefore is what did the
legislature mean by the use of
the word investigations in
section 23A of Act 874?
The learning we have
acquired from the learned
authors of Black’s Law
Dictionary and the meaning of
section 23A of Act 874 is that,
“An accountable institution is
mandatorily required to preserve
funds and other assets and
instrumentalities of crime not
exceeding a period of one year
to aid in the inquiry into the
matters which necessitated the
Accountable institution to
preserve the funds, assets or
other instrumentalities of
crime.”
We cannot help but adopt
the words of our respected
brother Anin-Yeboah JSC in the
Ex-parte Xenon Investments Co.
Limited case, referred to supra,
when he stated thus:-
“One is compelled to assume that
in this era of information
technology and international
co-operation among nations, one
whole year should be enough for
the Financial Intelligence
Centre to unearth any wrongdoing
in the transaction under
consideration.”
The Legislature no doubt
must be assumed to be aware of
the constitutional provisions
protecting property rights in
their imposition of the one year
period in the Law requiring them
to investigate the allegations.
It is for the above reasons that
we are of the considered view
that, for a whole state
apparatus, like the Interested
Party herein, with all the
resources, facilities, and other
institutions of state
responsible for intelligence
available to them, and taking
into account the international
cooperation that they receive,
one year is more than enough to
enable them complete
investigations into any offence
under Act 874.
WHETHER THIS COURT HAS
JURISDICTION TO GRANT THE
RELIEFS CLAIMED
This court decided
unanimously on the scope of the
jurisdiction of the Supreme
Court in the exercise of its
supervisory jurisdiction in the
case of Republic v High
Court, Accra, Ex parte CHRAJ
(Addo - Interested Party)
[2003-2004] SCGLR 312 per Dr.
Date-Bah JSC as follows:-
“The
restatement of the law may be
summarised as follows:
Where the High Court (or that
matter the Court of Appeal)
makes a non-jurisdictional error
of law which is not patent on
the face of the record (within
the meaning already discussed,
the avenue for redress open to
an aggrieved party is an appeal,
not judicial review. In this
regard, an error of law made by
the High Court or the Court of
Appeal is not to be regarded as
taking the Judge outside the
court’s jurisdiction, unless
the court has acted ultra vires
the Constitution or an express
statutory restriction validly
imposed on it.” Emphasis
As was stated by the
Supreme Court in the Ex- Parte
CHRAJ case supra, the said
decision was meant to be a
re-statement of the scope of the
Supreme Courts supervisory
jurisdiction as is contained in
article 132 of the Constitution
1992.
It is therefore clear
that, once the learned trial
Judge acted contrary to the
terms of the words of Section
23A of Act 874 by refusing to
defreeze the accounts of the
Applicants after the lapse of
one year, it means that the
trial court has committed an
error of law which is patent on
the record and for which
Judicial review in the nature of
certiorari can lie to quash the
said decision in terms of the
Supreme Court decision in
Ex-parte CHRAJ supra.
The definition of what an
Accountable Institution is, can
be found in the First Schedule
of Act 874 and this includes all
Banks such as those institutions
that were ordered to freeze the
accounts of the Applicants
already referred to supra.
The memorandum to Act 874
states as follows:-
“An Act to amend the Anti-Money
Laundering Act, 2008 (Act 749)
to extend the application of the
Anti-Money Laundering Act, 2008
(Act 749), to expand the
scope of actions that can be
taken under the Act and to
provide for related matters.”
Emphasis
We have perused in it’s
entirety the provisions of Act
874 and we are convinced that it
is a very comprehensive law with
very wide and enormous powers at
the disposal of the Chief
Executive of the Interested
Party and his office.
For example, if one
considers in detail the
provisions of sections 5 and 6
thereof, which deals with the
objects of the centre as well as
functions thereof, the fact is
clear that these wide and
enormous powers have to be
exercised strictly within the
restrictions imposed by the law.
What needs to be done is
to ensure that, affairs at the
Interested Party’s office are
handled in such a way that, they
do not become veritable
instruments of harassment and
oppression of citizens.
It is in this respect that
we feel that the supervisory
jurisdiction of this court
should not be withheld from the
Applicants herein.
As a matter of fact, when
one further considers article 11
of the Constitution 1992, then
it is fair to conclude that this
Anti Money Laundering Amendment
Law, Act 874 is subject and
subordinate to the Constitution.
As a result, this Law cannot
permit the deprivation of
properties such as monies and
other assets for indefinite
periods of time without recourse
to the constitutional
guarantee’s of preservation of
property rights in chapter five
of the Constitution 1992
especially articles 18 (1) and
(2) of the Constitution 1992. It
is therefore clear that, funds,
assets etc. cannot continue to
be frozen under section 23A of
Act 874 under any circumstances
whatsoever beyond the one year
period. This is even so if
investigations have not been
completed. Similarly, it should
be noted that, prosecution is
different from investigations
and the two cannot be used inter
changeably.
We are of the considered
opinion that, in order to ensure
that institutions like the
Interested Party operate
strictly within the confines of
the law under which they were
created, the Courts should not
permit such institutions to
violently breach the provisions
of the law by unlawfully
extending the period allowed to
freeze assets under Section 23A
of Act 874.
NEED FOR LAW REFORM
We however feel that,
there might be genuine instances
where the Interested Party and
other investigative bodies may
not have completed their work
during the one year period that
the law permits in section 23A
of Act 874. It is our considered
view that in circumstances like
this, there is the need for
urgent reforms in the law. This
will allow for the Investigative
bodies to apply to the Court
giving very good and solid
reasons why the time should be
extended for the freezing of
accounts. In instances of this
nature, clear example must be
given of the efforts made during
the one year period and the need
for extension of time. The
Attorney-General is hereby urged
as a matter of urgency to make
proposals for legislative
reforms in this regard
APPLICATION OF EX-PARTE XENON
INVESTMENT CASE
We are also of the strong
view that there was no basis
whatsoever for the learned trial
Judge to have distinguished the
case of Ex-parte Xenon
Investment Co. Limited, supra
from the case that was before
her.
In the Ex-parte Xenon
Investment Limited case, supra,
Anin-Yeboah JSC, speaking on
behalf of the Court put the
matters in issue beyond per
adventure, and we are therefore
baffled that despite the clear
and unambiguous decision of the
court, the trial Judge decided
not to follow it.
In order to show the
fallacy and the errors of law
apparent in the decision of the
trial High Court Judge dated 3rd
August 2016, we deem it
expedient to quote in extenso,
portions of the explanatory
judgment of our respected
brother Anin-Yeboah JSC, which
gave sufficient clarity and
guidance to the trial court. He
stated thus:-
“The applicant company does not
complain in this application
before us, that the initial
procedure leading to the
freezing of the accounts were
not in order. However, it has
raised a legal issue that under
the Anti-money Laundering
Amendment Act, 2014 (Act 874)
the interested party cannot
freeze the accounts of the
company for more than one year
and that the statute under
reference does not even provide
for extension of the one year
and therefore the court had no
jurisdiction to keep the
freezing order beyond the one
year.”
After succinctly putting
the issues raised in the case
before the court, the Supreme
Court decisively dealt with and
resolved the matter convincingly
as follows:
”The question is this: is the
High Court vested with
jurisdiction to freeze the
account for over one year? We
think that the statute does not
vest that jurisdiction in the
High Court to do so. It has
jurisdiction to freeze and
defreeze an account but the
statute does not vest it with
authority to keep the accounts
frozen for more than one year.
Learned counsel for the
applicant has referred us to the
case of the Republic v
District Magistrate, Accra, Ex
Parte Adio [1972] 2 GLR 125
to argue that even though the
High Court had jurisdiction to
entertain the matter the order
made to keep the accounts frozen
beyond one year destroyed its
jurisdiction. In the said case
Archer JA (as he then was) at
page 132 said:-
“It is of vital importance to
appreciate that when the term
“excess of jurisdiction” is
used, it may mean that from the
inception of the case, the court
has no jurisdiction whatsoever
because the nature of the case
or the value involved is beyond
its jurisdiction. But it may
also mean that although the
Court has jurisdiction to hear
the case, the orders which the
court can pronounce are
restricted by statute. If an
order is therefore beyond the
powers of the court, it is
perfectly correct to say that it
has exceeded its jurisdiction.”
Emphasis ours
After referring to the
dictum of Archer JA, as he then
was in the Ex-parte Adio case,
Anin-Yeboah JSC continued in the
Ex-parte Xenon Investment Case
as follows:-
“We think this proposition of
law clearly settles the matter.
The High Court undoubtedly has
jurisdiction to hear the matter
but it is clear beyond doubt
that it had no jurisdiction to
order the continuous freezing of
the accounts beyond one year.”
The exposition of the law
by the Supreme Court in the
ex-parte Xenon Investment case
clearly settles the issue beyond
doubt. Whilst the learned High
Court Judge had jurisdiction
initially to determine the
application that was brought
before it, it subsequently fell
into error by the orders it
made. For example, it ought to
have dawned on the learned trial
Judge that prosecutions under
the Narcotic Drug (Control,
Enforcement and Sanctions) Law,
1990 PNDCL 236 are separate and
distinct from those under Act
874. Similarly, PNDCL 236 has
it’s own mechanisms to deal with
and prevent drug dealers
benefiting from the proceeds of
crime. The intermeddling of the
two statutes by the trial court
was wrong.
In exercise of our
jurisdiction in article 132
already referred to supra, we
wish to reiterate the fact that
it is clearly wrong for courts
lower to the Supreme Court to
refuse to follow the decisions
of this court in flagrant
violation and or breach of
article 129 (3) of the
Constitution which states that:-
“The
Supreme Court may, while
treating its own previous
decisions as normally binding,
depart from a previous decision
when it appears to it right to
do so, and all other courts
shall be bound to follow the
decisions of the Supreme Court
on question of law.”
Emphasis
We therefore direct that
all courts shall henceforth
endeavour to follow and abide
with the above constitutional
injunction and follow the
decisions of the apex court on
points of law as directed.
LAPSED ORDERS UNDER SECTION 23A
OF ACT 874
The learned trial Judge
should have directed herself to
the fact that, after the expiry
of one year, although the order
freezing the accounts had lapsed
without an express order from
the court, the Accountable
Institutions i.e. the Banks will
not have had any authority to
release the funds to the
Applicants without an express
order from the courts.
Therefore, the illegality and
the injustice in holding onto
the accounts would continue to
be perpetuated this time without
any court order. Trial courts
should advert their minds to the
illegality involved in the said
occurrence whenever issues on
the application of Section 23A
of Act 874 comes up for
interpretation, especially after
the expiry of the one year
period mandated by and under Act
874.
CAUTION TO INSTITUTIONS OF STATE
LIKE THE INTERESTED PARTIES
There is a small matter we
could have avoided comment on
but for the fact that it may be
perpetuated by trial courts
which deal with issues
involving cases under Act 874
and Economic and Organised Crime
Act, 2010 (Act 804).
We appreciate the enormous
responsibilities that such
investigative agencies face in
their bid to curb money
laundering and other economic
crimes. However, we are of the
considered view that, when an
application is made to a court
for the freezing of accounts,
the monies in the accounts not
tainted with crime or with the
suspicious transactions should
be separated such that the
affected person can at least
withdraw such funds that are not
the proceeds of crime or
suspicious transactions. See the
case of Republic v High Court
(Financial Division) Accra,
Ex-parte James Awuni, The Chief
Executive Officer, Financial
Intelligence Centre, supra
where the above issue was
discussed by our respected
brother Benin JSC which we
endorse.
In this regard, we refer
once again to the dictum of
Anin-Yeboah JSC in the ex-parte
Xenon Investment case referred
to supra when again speaking on
behalf of the court he said
thus:
“As applicant was denied the
opportunity to be heard as
regards the money not forming
part of the alleged money
laundering, but nevertheless has
the entire accounts frozen, we
hold that the court denied the
applicant a fundamental
requirement of the common law,
that is the audi alteram rule.”
We also wish to finally
caution the Interested Party
herein to be mindful of the
constitutional provisions in
Chapter 5 of the Constitution
especially Articles 18 and 23 in
the discharge of their mandate.
This is to ensure that we do not
create a monster out of
institutions of state created to
help curb crime and thereby lose
our constitutional fundamental
human rights to freedom
enshrined in the Constitution.
The courts must be wide awake to
protect the rights of the
citizens.
CONCLUSION
In sum, the Applicants
succeed in terms of the
application and we accordingly
invoke our supervisory
jurisdiction pursuant to article
132 of the Constitution.
Consequently, the decision and
orders of the High Court,
Financial Division 2, Accra
presided over by Afia Serwaa
Asare-Botwe J (Mrs) dated 3rd
August, 2016 in suit No. FTRM/87/15
is accordingly ordered to be
brought up and same is
accordingly brought up and
quashed by certiorari in terms
of the decisions of this Court.
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE
OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE
OF THE SUPREME COURT
COUNSEL
KWAME BOAFO AKUFFO FOR THE
APPLICANTS.
ARTHUR CHAMBERS FOR THE
INTERESTED PARTY. |