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Practice and Procedure -
Certiorari - Economic and
Organised Crime - Jurisdiction -
article 296 of the Constitution
1992 - Anti Money Laundering
Amendment Act, (Act 874) -
Whether the
High Court, Financial Division 2
exceeded its jurisdiction to set
aside the order for a
confirmation of freezing of
accounts - Whether 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 - confirming the freezing
of the accounts of the Applicant
herein - Whether High Court was
right notwithstanding the fact
that the statutory period of
twelve (12) months, had elapsed
- Whether the Court breached the
principles of natural justice,
and also a breach of article 296
of the Constitution 1992.
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 :-
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, 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. 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, 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
1992,Constitution
Anti-Money Laundering Act 2008,
Act 749,
Anti Money Laundering Amendment
Act, 2014, (Act 874).
Narcotic Drug (Control,
Enforcement and Sanctions) Law,
1990 (PNDCL 236).
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 per
Georgina Wood JSC as she then
was.
Republic v Circuit Court,
Ex-parte Komely Adam [2012] 1
SCGLR 111 at 121 per Date-Bah
JSC.
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.
Republic v Fast Track High
Court, Accra Ex-parte Electoral
Commission [2005-2006] SCGLR per
Prof. Ocran JSC
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
Republic v District Magistrate,
Accra, Ex Parte Adio [1972] 2
GLR 125
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, 9th
Ed, by Bryan A. Garner,
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:
COUNSEL
KWAME BOAFO AKUFFO FOR THE
APPLICANTS.
ARTHUR CHAMBERS FOR THE
INTERESTED PARTY.
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. |
