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Civil
procedure - Certiorari - Out of
time - Breach of the rules of
natural justice. - of Article
129 (3) - Article 132 - Article
18 (2) - Constitution
1992 - Invoking the supervisory
jurisdiction the court - Rule
61 (1) - Supreme Court Rules,
1996, C. I. 16
HEADNOTES
The Applicant
has had a USD bank account with
the Kejetia Branch of Ecobank
(GH) Ltd. since 2008 without any
allegation of wrongdoing from
his bankers. He received a
transfer of USD$15,000.00 on 3rd
January 2012 from someone he
claims was a friend in America,
the purpose of which was to
support his personal business
and for his personal use. He was
denied access to the funds by
the bank when he attempted to
withdraw same after the
remittance and was informed that
the Interested Party (Executive
Director of the Economic and
Organised Crime Office) had the
account frozen on suspicion of
defrauding the remitter by false
pretence and the Interested
Party needed more time to
conduct investigations.The
Interested Party stated that the
transfer raised suspicions
because the Applicant misspelt
the remitter’s name. The
Interested Party’s application
for freezing the funds cited
several other occasions prior to
the aforementioned event where
larger sums than anticipated
from the Applicant’s account
opening forms were deposited and
summarily withdrawn from the
Applicant’s account. The
Application for freezing the
account states that the
Applicant’s responses when
questioned by the bank about the
transfers were found by the bank
to be untenable. After months of
frustration, the Applicant
claims that he sought greener
pastures and travelled to South
Africa2014 the Applicant and his
counsel were informed that the
funds had been confiscated and
transferred to the Interested
Party’s account with the Bank of
Ghana because of their inability
to reach the Applicant. The
Applicant’s counsel then
discovered that the funds had
been seized and transferred to
the Bank of Ghana via an
ex-parte application filed on 15th
February 2012. It should be
noted that, this was before the
Applicant travelled to South
Africa. the High Court rejected
the Applicant’s application to
set aside the confiscation
order, holding that the
Applicant had adequate
information about the
transactions and that the
application was frivolous. These
are the brief facts leading to
this certiorari application in
this Court
HELD
I wish to
comment on one matter of
procedure relating to the
deposition in support of the
application herein. Although
counsel generally act on behalf
of their clients in a case that
turns on the power conferred on
a state institution to
investigate serious crimes, it
is thought that an affidavit
from the suspect deserves more
weight than one coming from a
lawyer as the crucial facts
concerning which the reasonable
suspicion for his alleged
involvement with a serious
offence are peculiarly within
the knowledge of the suspect.
From the facts deposed to, I am
surprised that the deponent did
swore positively in paragraph 1
of the affidavit in support that
those facts are within his
knowledge as he never attempted
to explain in the slightest
degree how he came by those
facts. I think from the
requirement of the law that an
affidavit must contain facts
which are within the knowledge
of the applicant except as
otherwise authorised by law is
intended to ensure that cases
tried by affidavit have the same
effect as those in which oral
evidence is tendered. Examining
the processes filed in the
matter herein, it is difficult
to have an answer to the
question why the applicant did
not make the affidavit as there
is nothing from which to come to
the answer. On this ground
alone, I think the application
would have been faced with a
difficulty but as the point was
not raised at the hearing, the
observations regarding same are
intended for future guidance
only. For these reasons, I
refuse to yield to the prayer of
the applicant before us in these
proceedings and proceed to
dismiss same.
DISSENTING
OPINION
Once the
confiscation orders have been
premised upon the assumption
that the Applicant has committed
criminal offences for which he
has not been tried and
convicted, confiscation orders
based upon such gross violations
of the basic rights of the
Applicant cannot be lightly
glossed over. In the
premises, I will grant the
Applicant’s prayer of Certiorari
and bring up into this Court for
the purposes of being quashed
the ruling and orders of the
High Court, Financial Division
dated 12th February
2014 and by necessary
implication all the preceding
orders and rulings having a
bearing in the case dated 19th
December 2012 and 12th
February 2013. I will also order
that the Applicant’s account at
Kejetia, Kumasi Branch of
Ecobank be and is hereby
defrozen and an order directed
at the Interested Party to
release the funds of the
Applicant transferred from the
Ecobank account at Kejetia
branch, Kumasi into the EOCO
exhibit account at the Bank of
Ghana to him forthwith. The
Interested Party herein is to
ensure that the above orders are
carried out. In such
circumstances, it is certain
that the Applicant has
sufficiently made a case for the
grant of the order of Certiorari
which he has asked for
STATUTES
REFERRED TO IN JUDGMENT
Economic and
Organised Crime Office Act, 2010
(Act 804)
Supreme Court
Rules, CI 16,
Constitution
1992
CASES
REFERRED TO IN JUDGMENT
The Republic
v High Court, Accra Ex parte Nil
Nueh Odonkor, Suit Number
J5/26/2014 dated 22 July 2014
The Republic
vs High Court, Accra; Ex Parte
Nii Nueh Odonkor, Suit No
J5/26/2014 (unreported)
Republic v
High Court, Accra; Ex-parte F.
Salloum GMJ 2011, part
36
Republic v
High Court (Fast Track)
Division, Accra; Ex-parte
National Lottery Authority,
(Ghana Lotto Operators
Association and other –
Interested Parties 2009 SCGLR
390 at 400
Republic v
High Court, Accra; Ex-parte
Aryeetey (Ankrah – Interested
Party) [2003-2004] SCGLR 398-410
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 holding 1 and 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
Republic v
High Court, Accra, Ex-parte
Aryeetey (Ankrah- Interested
Party) [2003-2004] SCGLR 398-410
Republic v
High Court, Accra; Ex-parte
Salloum (Senyo Coker –
Interested Party) [2011] 1 SCGLR
574
Enekwa &
Others v KNUST [2009] SCGLR 242,
holding 2
Republic v
High Court, Sekondi; Ex-parte
Ampong [2011] 2 SCGLR 716
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
GBADEGBE JSC:
( MAJORITY OPINIONS)
DISSENTING
OPINION
DOTSE JSC:
COUNSEL
HON.
ALEXANDER KWAMENA AFENYO
MARKIN ESQ. WITH HIM MISS
BERNINA KORKOR OKUTU FOR THE
APPLICANT.
JACQUELINE
AVOTRI FOR THE INTERESTED PARTY
______________________________________________________________
RULING
______________________________________________________________
MAJORITY OPINIONS
GBADEGBE JSC:
My Lords, I have had the
advantage of reading in draft
the judgment about to be read by
my worthy brother, Dotse JSC in
these proceedings and much as I
think that the said delivery has
raised interesting points of law
and in particular the need for
those responsible for carrying
out the objectives of Economic
and Organised Crime Office Act,
2010 (Act 804)to comply with the
provisions of the law, I am
unable for reasons that follow
shortly to agree with the
conclusion therein reached by
him. In my thinking, as
certiorari is a discretionary
remedy, the applicant by
waiting so long is not only
out of time by virtue of the
rules of this court but applying
the decision of this court in
the case of The Republic v
High Court, Accra Ex parte Nil
Nueh Odonkor, Suit Number
J5/26/2014 dated 22 July 2014
(Unreported)to the facts of this
case, I am of the opinion that
the period from the making of
the order of 19 December 2012 to
the date the application herein
was filed- 14 March 2014 is too
long to ripen such a stale
application into an effective
application in so far as the
ninety days rule goes and
accordingly as the applicant has
not been able to provide any
reasons for such inordinate
delay, this should be fatal to
the application. This aside, an
applicant who seeks to invoke
our jurisdiction by way of
judicial review in the nature of
certiorari is deemed to know the
time limit provided by rule 62
of the Supreme Court Rules and
yet seeks no order from us
extending such time in his
favour must face the attributes
that arise from such a delay. In
my opinion once the application
before us is out of time, we
cannot inquire into it on the
merits. In this regard, notice
is taken of the fact that before
the applicant’s journey out of
the jurisdiction of this court,
he was indeed aware that his
account had been frozen as
indeed, he testified to in
paragraphs (d) and (e) of his
supporting affidavit, a fact
which renders his failure to
seek an order extending time in
his favour quite unacceptable
particularly when acting by
counsel.
It is observed that although the
rules contained in Part Six of
CI 16, the Supreme Court Rules,
have made no express provision
for extension of time in
relation to applications that
come under this part, I think
that the existence of that rule
in rule 60 in relation to Part
Five, which regulates review
applications is a clear
indication that the rules
recognise the power of the
court when so satisfied to
extend time in order to enable
matters which by virtue of the
strict application of the rules
are time barred such as the
ruling of 19 December 2012 in
order to have such applications
determined following the grant
of extension of time. I do not
think that the emerging practice
by which counsel basing
themselves merely on the
allegation of nullity of
rulings, judgments and orders
refrain from seeking orders for
extension of time is a healthy
practice having regard to the
fact that time limits laid down
by law are intended to be
strictly applied particularly in
cases where no prior application
is made to the court for
extension of time and in my view
without time being extended in
favour of the applicant, the
consequences of rule 60 must
fall because this is a just
instance of its falling. I
think there is settled judicial
opinion to support the
contention that a judgment and
or order of a court of competent
jurisdiction requires competent
proceedings to destroy the
consequences that flow from it;
a principle that recognises due
process requirements and the
need for parties to avail
themselves of remedies that the
law provides within the confines
of the law. This, in my view is
sufficient to dispose of the
application in so far as relief
1 relating to the order of 19
December 2012 goes.
I now turn to the ruling of 12
February 2014. The application
relating to this which was filed
on 14 March 2014 comes within
the stipulation of ninety days
in rule 62. It has been urged
on us that the said ruling in so
far as it seeks to confirm the
earlier one dated 19 December
2012 was in error and not only
that but is an instance of
excess of jurisdiction as the
conditions precedent to the
making of an order for
confirmation under section 51 of
the law were never present. In
my view the application
resulting in the order of 12
February 2014 is not directed at
the absence if jurisdiction in
the High Court to hear the
application of the applicant
herein to set aside its earlier
order of 19 December 2012. On
the contrary, the contention
appears to be that by not
setting aside the decision of 19
December 2012, the court had as
it were acted without
jurisdiction. This is an urging
that I am unable to understand
as each of the two orders in
relation to judicial review and
indeed appeal must be considered
separately. The applicant must
have thought that once in his
opinion there was absence of
jurisdiction in the previous
order then by failing to set it
aside at his instance the court
was as it were infected by the
jurisdictional absence in the
previous order but that is not
the correct legal position. As
the learned trial judge who
heard the application to set
aside the order of 19 December
2012 had jurisdiction to deal
with the matter, I think that if
the applicant was aggrieved by
the ruling, his remedy is to
appeal there from. I do not
think that the collateral attack
made on the ruling of 19
December 2012 in the course of
the application to set that
order aside have the effect of
depriving the court which
considered the application of
jurisdiction in the matter.
Before ending this delivery, I
wish to comment on one matter of
procedure relating to the
deposition in support of the
application herein. Although
counsel generally act on behalf
of their clients in a case that
turns on the power conferred on
a state institution to
investigate serious crimes, it
is thought that an affidavit
from the suspect deserves more
weight than one coming from a
lawyer as the crucial facts
concerning which the reasonable
suspicion for his alleged
involvement with a serious
offence are peculiarly within
the knowledge of the suspect.
From the facts deposed to, I am
surprised that the deponent did
swore positively in paragraph 1
of the affidavit in support that
those facts are within his
knowledge as he never attempted
to explain in the slightest
degree how he came by those
facts. I think from the
requirement of the law that an
affidavit must contain facts
which are within the knowledge
of the applicant except as
otherwise authorised by law is
intended to ensure that cases
tried by affidavit have the same
effect as those in which oral
evidence is tendered. Examining
the processes filed in the
matter herein, it is difficult
to have an answer to the
question why the applicant did
not make the affidavit as there
is nothing from which to come to
the answer. On this ground
alone, I think the application
would have been faced with a
difficulty but as the point was
not raised at the hearing, the
observations regarding same are
intended for future guidance
only.
For these reasons, I refuse to
yield to the prayer of the
applicant before us in these
proceedings and proceed to
dismiss same.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
AKAMBA, JSC:
I have been
privileged to preview the two
divergent decisions in these
proceedings of my two respected
brothers Dotse, JSC and
Gbadegbe, JSC. My thinking and
study of the record inclines me
to the delivery by the latter.
Certiorari is a discretionary
remedy which is granted upon
satisfaction of laid down rules.
There is an emerging tendency in
practice today to consider that
the rules of procedure indeed do
no matter so long as an
application is placed before the
court. Yet the rules of
procedure are as integral as the
substantive law to the success
of the trial process. It is
therefore essential that time
lines set down under the rules
of court are adhered to, to
facilitate timely trials.
Infringements of these rules
without reasonable justification
should be met with corresponding
sanctions or denials.
Applying our
decision in The Republic vs
High Court, Accra; Ex Parte Nii
Nueh Odonkor, Suit No J5/26/2014
(unreported) the long lapse
between the order made on 19th
December 2012 to the date this
application was filed on 14th
March 2014 is too tardy to
warrant this courts grant, more
so when the applicant had ninety
days within which to apply for
this remedy. For this reason and
those stated by Gbadegbe, JSC I
will equally dismiss the
application.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME
COURT
DISSENTING OPINION
DOTSE JSC:
On the 22nd
day of July 2014, this court in
Suit No: CM J5/26/14 intitutled,
Republic v High Court,
Financial Division, Accra,
Ex-parte Nii Nueh Odonkor,
Executive Director, Economic and
Organised Crime office –
Interested Party, coram:
Atuguba JSC presiding, Dotse,
Gbadegbe, Benin and Akamba JJSC
in a 4 to 1 majority decision in
which Dotse JSC dissented, the
Court dismissed an application
seeking to quash certain
decisions of the High Court,
Financial Division for breach of
the rules of natural justice.
By the
principles of stare decisis the
majority decision is indeed the
ruling of the court and this
court is bound to follow that
decision in previous decisions
such as the one referred to
supra. This is especially so in
view of the express provisions
of article 129 (3) of the
Constitution 1992 which provides
that whilst the Supreme Court
may treat its previous decisions
as normally binding it may
depart from it when it appears
right to do so. In the instant
case, the Supreme Court has not
shown any inclination to depart
from that decision. The result
is that, it is therefore a
binding decision.
In deciding
not to follow the majority
decision in the suit just
referred to supra, I have
considered all the relevant
principles and come to the
conclusion that the said
decision was not a decision that
dealt with the merits of the
case. Rather, it took a
restricted meaning as to what
constitutes time, for the
purpose of its computation
pursuant to applications seeking
to invoke the supervisory
jurisdiction of this Court and
more particularly the
determination of when the
grounds of the action first
arose in terms of Rule 62 of the
Supreme Court Rules, 1996 C.I
16.
In view of
the fact that the facts in this
case as regards computation of
time and when the grounds of
action first arose for purposes
of applying for certiorari in
terms of Rule 62 of C. I. 16,
are different from the decision
referred to supra, I consider it
worthwhile to again dissent and
not flout any of the Rules or
principles of stare decisis as
stated in article 129 (3) of the
Constitution 1992.
I therefore
proceed to deliver my dissenting
ruling as follows, having
apprized myself of the opinions
of my brothers Gbadegbe and
Akamba JJSC.
In this
Application, one Tweneboah
Koduah, a customer of Ecobank,
Kejetia Branch, in Kumasi,
hereafter referred to as the
Applicant, is seeking the
supervisory jurisdiction of this
court in the nature of
Certiorari, pursuant to article
132 of the Constitution 1992 and
rule 61 (1) of the Supreme Court
Rules, 1996, C. I. 16, to quash
in the main the ruling, orders
and or decisions of the High
Court, Financial Division, Accra
dated 19th December
2012, which is actually dated 28th
February 2013 and also 12th
February 2014 respectively, upon
stated legal grounds as are
stated elsewhere in this Ruling.
The Executive
Director of the Economic and
Organised Crime office is the
Interested Party and will
hereafter be referred to as
such.
FACTS OF THE
APPLICATION
The Applicant
has had a USD bank account with
the Kejetia Branch of Ecobank
(GH) Ltd. since 2008 without any
allegation of wrongdoing from
his bankers. He received a
transfer of USD$15,000.00 on 3rd
January 2012 from someone he
claims was a friend in America,
the purpose of which was to
support his personal business
and for his personal use. He was
denied access to the funds by
the bank when he attempted to
withdraw same after the
remittance and was informed that
the Interested Party (Executive
Director of the Economic and
Organised Crime Office) had the
account frozen on suspicion of
defrauding the remitter by false
pretence and the Interested
Party needed more time to
conduct investigations.
The
Interested Party stated that the
transfer raised suspicions
because the Applicant misspelt
the remitter’s name. The
Interested Party’s application
for freezing the funds cited
several other occasions prior to
the aforementioned event where
larger sums than anticipated
from the Applicant’s account
opening forms were deposited and
summarily withdrawn from the
Applicant’s account. The
Application for freezing the
account states that the
Applicant’s responses when
questioned by the bank about the
transfers were found by the bank
to be untenable.
After months
of frustration, the Applicant
claims that he sought greener
pastures and travelled to South
Africa. There is evidence on
record that the Applicant indeed
travelled to South Africa, see
exhibit TK. 2, the Visa to South
Africa. Upon the Applicant’s
return, the Interested Party
informed him that his account
was still frozen because of the
ongoing investigation.
On 21st
January 2014 the Applicant and
his counsel were informed that
the funds had been confiscated
and transferred to the
Interested Party’s exhibit
account with the Bank of Ghana
because of their inability to
reach the Applicant. The
Applicant’s counsel then
discovered that the funds had
been seized and transferred to
the Bank of Ghana via an
ex-parte application filed on 15th
February 2012. It should be
noted that, this was before the
Applicant travelled to South
Africa.
The
application did not state the
grounds for the suspicion of the
Interested Party nor that the
remitter had made a complaint of
fraud against the Applicant. The
application for the confiscation
was first moved on 19th
December 2012 but was eventually
granted on 28th
February 2013.
APPLICATION
TO SET ASIDE CONFISCATION ORDER
and for defreeze of account and
release of funds was filed by
Applicant on 23rd
January 2014 before the same
Financial Division of the High
Court.
On 12th
February 2014, the High Court
rejected the Applicant’s
application to set aside the
confiscation order, holding that
the Applicant had adequate
information about the
transactions and that the
application was frivolous. These
are the brief facts leading to
this certiorari application in
this Court.
Based upon
the following facts, the
Applicant has invoked this
Court’s supervisory jurisdiction
seeking to quash the decisions
and or orders of 19th
December 2012 actually, 28th
February 2013 and 12th
February 2014. The instant
application was filed before
this court on 14th
March 2014.
What then are
the grounds upon which the
Applicant has invoked this very
special jurisdiction of this
court?
1.
Excess of Jurisdiction
That the
trial High Court in ordering the
confiscation of the Applicant’s
money as per the orders of 19th
December 2012 exceeded its
jurisdiction.
2.
Breach of the Rules of Natural
Justice
Secondly, the
Applicant contended that, the
orders of confiscation made on
19th December 2012
which actually should read 28th
February 2013 and 12th
February 2014 were both made
without due regard to the rules
of natural justice, in that the
Applicant was not given a
hearing before the orders of 19th
December 2012 and 28th
February 2013 were made which
were subsequently confirmed by
the orders of 12th
February 2014.
Submissions
of Learned Counsel for the
Applicant
Learned
counsel for the Applicant, Alex
Afenyo Markin submitted on
behalf of the Applicant as
follows:
1.
That even though the High Court
has powers to order confiscation
and or seizure of property such
as the money in this case
pursuant to Economic and
Organised Crime Act, 2010 Act
804 the grant of these orders is
based upon the existence of some
facts such as the trial of the
person and or conviction on
stated grounds authorised by
law. Learned Counsel in this
respect referred copiously to
sections 50 (1) (b), (2) and (3)
(a) and (b) of the Economic and
Organised Crime Act, 2010, Act
804.
Out of
abundance of caution, let me
quote in extenso the relevant
provisions of the said Act.
“Procedure
against property where a person
dies or absconds
50.
(1) The Executive Director
shall apply to the Court for a
confiscation order in respect of
tainted property if the person
from whom the property was
seized dies or absconds
and
(a) there is
information alleging commission
of a serious offence by
that person, and
(b) a warrant for the
arrest of that person is issued
in furtherance of that
information.
(2) A person is considered
to have absconded if reasonable
attempts to arrest that
person pursuant to the warrant
are unsuccessful
during the period of three
months after the
date of issue
of the warrant.
(3) Where the Executive
Director applies for a
confiscation order against
tainted property under this
section, the Court shall, before
hearing the application for the
confiscation order,
(a) require notice of the
application to be given to the
person
who appears in the opinion of
the Court to have
an interest in the property, or
(b) direct notice of the
application to be published in
the Gazette or a
newspaper of national
circulation
containing the particulars in
three publications
within three months.”
Basing
himself on the above provisions,
learned counsel for the
Applicant submitted that the
trial High Court could only have
made an order confiscating the
property upon any of the
following two conditions:
i.
When the person i.e. like the
Applicant, is on trial for a
serious offence pursuant
to section 46 (1) of Act 804 or,
ii.
When the person, (i.e. like the
Applicant in the present
instance) has been
convicted of a serious offence
pursuant to section 46 (2) of
Act 804.
In order to
bring the full force and effect
of the said provisions of Act
804 home, it is desirable to
quote them in extenso.
“Application for confiscation or
pecuniary penalty order
46. (1) Where a
person is on trial for a serious
offence, the
Executive Director shall
apply to the Court for
either or both of the following
orders
(a) a confiscation
order against property that is
deemed to
be
tainted property, or
(b) a pecuniary penalty
order against the person in
respect of
benefit derived by
that person from the serious
offence.”
After
referring extensively to the
said provisions and others
referred to supra, learned
counsel submitted that, the
Applicant herein has neither
been put on trial nor convicted
of any crime.
Learned
counsel for the Applicant,
re-enforced his arguments to
support the fact that the High
Court exceeded its jurisdiction
by referring extensively to
section 51 of the Eoco Act, Act
804 which provides as follows:-
“Confiscation
order
51.
(1) The Court hearing an
application for confiscation of
tainted
property shall infer 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.
(2) Where the Court orders
that property, other than money
be
confiscated, the Court shall
specify in the order the amount
that is
considered to be the value of
the property at the time the
order
is made.
(3) The Court shall have
regard to the gravity of the
offence in
considering whether a
confiscation order should be
made.
(4) Where the Court makes
a confiscation order, the Court
shall give
directions to give effect to the
order.”
Learned
Counsel referred extensively to
the orders made by the court and
argued that, the failure of the
Applicant to appear before the
EOCO does not mean that he has
been tried and convicted by a
court of competent jurisdiction.
Counsel submitted further that,
even though the Applicant was
supposed to have been served
with the Application that led to
the orders of 19th
December 2012 and 28th
February 2013 the fact of the
matter is that, he was not
served with any of those court
processes. Save for the
newspaper publications, there is
no proof that the Applicant was
served by substituted order of
any court process.
It is in the
light of the above that the
argument by learned counsel that
no opportunity was given him to
be heard before the order to
confiscate his money was made by
the Court has to be seriously
considered.
The
requirement of trial of a person
for a serious offence under Act
804 are mandatory and cannot be
wished away under any
circumstance. Besides Act 804,
there are constitutional
guarantee’s of the rights of
persons accused of crime.
It is in this
respect that the ruling
delivered by the High Court on
12th February 2014
ought to be understood and
appreciated in terms of the
grounds of this application.
Learned
Counsel for the Applicant
finally prayed this court to
grant the application in terms
as contained in the motion paper
and requested that an order be
made defreezing the accounts of
the Applicant with the Ecobank
Kumasi, Kejetia branch and that
the funds in the exhibit account
of the Interested Party be
transferred to the Applicant.
Submissions
of Learned Counsel For The
Interested Party
Learned
Counsel for the Interested
Party, Jacqueline Avotri
in a three pronged reposte,
opposed the Applicant’s
application for certiorari.
1.
The Interested Party in
paragraph 4 of their affidavit
in opposition deposed to as
follows:-
“That at the
hearing of the application
counsel shall seek leave of the
court to raise a preliminary
objection on the ground that per
the rules of the
Supreme Court C. I. 16 as
amended by C. I. 24, the time
limit within which to
bring an application for
certiorari has lapsed hence the
application is incompetent.”
Learned
counsel therefore argued that
the Applicant is out of time in
bringing the said Application in
terms of rule 62 of the Supreme
Court Rules, C. I. 16 which
provides as follows:-
“An application to invoke the
supervisory jurisdiction of the
court shall be filed
within 90 days of the date when
the grounds for the application
first arose unless time is
extended by the court.”
As a result
of the above, learned counsel
submitted that what the
Applicant should have done was
to have appealed against the
orders complained off. As a
colorary to the said objection,
learned Counsel for the
Interested Party contended that
since the Applicant appealed
against the ruling of 12th
December 2014, the instant
Certiorari application should
not be entertained.
2.
Secondly, learned Counsel for
the Interested Party submitted
that the learned High
Court Judge had jurisdiction to
make the confiscation orders
under section 51 of Act 804.
This is because of a suspicious
transaction report that
was received by the Interested
Party involving the
operations of the
Applicant at the Kejetia Branch
of the Ecobank.
3.
Thirdly, learned Counsel for the
Interested Party argued that
since the Applicant was
notified about the freezing of
his account at the Bank, he
did not make himself
available for interrogation.
That meant that the
Interested Party was not in
breach of the rules of natural
justice.
It has to be
noted that, even though learned
Counsel conceded that there has
been no prosecution and or
conviction of the Applicant by a
court of competent jurisdiction,
she still insisted that the
procedure adopted by the
Interested Party was in
compliance with sections 50 (1)
and 51 of Act 804 already
referred to supra.
On the basis
of the above arguments, learned
Counsel prayed this court to
dismiss the application. See
cases of:
1.
Republic v High Court, Accra;
Ex-parte F. Salloum GMJ 2011,
part 36
2.
Republic v High Court (Fast
Track) Division, Accra; Ex-parte
National Lottery Authority,
(Ghana Lotto Operators
Association and other –
Interested Parties 2009 SCGLR
390 at 400
3.
Republic v High Court, Accra;
Ex-parte Aryeetey (Ankrah –
Interested Party)
[2003-2004] SCGLR 398-410
In view of
the contentions by learned
Counsel for the Interested Party
that the Applicant’s application
has lapsed and is out of time
pursuant to Rule 62 of C. I. 16
and also that, having appealed
against the decision of
12/2/2014, the instant
Application for Certiorari is
untenable, I have decided to
deal with these two legal
objections before I commence my
discussions on the merits of the
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 Party.
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 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, that party is entitled
to go back to the trial court to
seek to set aside the order,
ruling or decision complained 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 12th
February 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 12/2/2014 which 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.
This is how
the learned trial Judge
commenced and ended his Ruling
of 12/2/2014.
“This Applicant has asked the
court to set aside its
confiscation order made
on 19th December
2012…
I
hold that he had adequate
information about these
transactions but
refused to avail himself. He
cannot now come and say he
doesn’t know anything.
I hereby dismiss the action as
frivolous and abuse of
the Court’s process.”
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 12th of
February 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
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, the
contention by learned Counsel
for the Interested Party to the
effect that because the
Applicant had filed an appeal
against the Ruling of the High
court dated 12/2/2014 he cannot
apply for Certiorari 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
be embarked upon simultaneously.
The above
therefore dismisses the said
contentions raised by the
Interested Party in this
respect.
This now
brings me to the discussions on
the core issues raised in this
application; and these are:
1.
Whether the procedure followed
by the Interested Party in the
applications for the
confiscation of the Applicant’s
bank account are
cognisable under the EOCO
Act, 2010, Act 804.
2.
Whether or not the trial High
Court erred in granting the
orders of 19th
December 2012 (28th
February 2013) and 12th
February 2014,
thereby entitling the Applicant
to the supervisory jurisdiction
of this court to quash the
said orders.
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.
Issue 1
It should be
noted that, the Interested Party
sought to explain its actions
and justify same by relying on
the failure of the Applicant to
assist them in their
investigations. That might very
well be true. But is that what
the law expects them to do?
In this
instance it is necessary to give
a historical account of some
notable events and then put them
in context. On the 3rd
of February 2012, the Interested
Party wrote a letter and
informed the Applicant that his
bank accounts, financial assets
and others have been frozen by
EOCO with immediate effect. That
same day, the Interested Party
also wrote to Ecobank, informing
them about the freezing of the
Bank account and financial
assets of the Applicant pursuant
to section 33 (1) of Act 804.
Thereafter,
the High Court, Financial
Division, Accra on the 20th
February 2012 pursuant to an
ex-parte motion filed by the
Interested Party granted in the
main the following orders:-
1.
The freezing of the Ecobank Bank
account of the Applicant at
Kejetia branch, Kumasi.
2.
The freezing of other accounts
and financial assets of the
Respondent pending further
investigations.
3.
The transfer of funds in the
said frozen account into the
EOCO DOLLAR EXHIBIT ACCOUNT
at the Bank of Ghana.
4.
Ecobank was also directed to
produce copies of all cheques
drawn on the account
since its opening and swift
messages/transfers into the
frozen account.
Thereafter,
the Interested Party invited the
Applicant to their offices on 29th
February 2012 per a letter dated
20th February 2012.
The Interested Party caused a
publication in the Daily Graphic
of 20th June 2012
inviting the Applicant to assist
in the investigations, which he
again failed to honour.
In all of the
above, the Interested Party has
contended that it has reasonable
ground to believe that the
frozen amount of US$14,989.00 is
tainted property realised from
the commission of a serious
prohibited offence of money
laundering and cyber crime.
Are these
suspicions without the necessary
counter measures of embarking on
prosecution and securing a
conviction of the Applicant,
sufficient justification for the
conduct of the Interested Party
in virtually flouting the law as
is contained in Act 804?
Pursuant to
section 33 of Act 804, the
Interested Party was right in
writing to order the freezing of
the accounts of the Applicant.
But as is stated in section 33
(2) of the law, the Executive
Director of the EOCO shall have
to take steps within 14 days in
court for a confirmation order.
Secondly, the
application for confirmation of
the freezing orders pursuant to
section 34 (1) & (2) of Act 804
appears to have been properly
done.
However, it
should be noted that, there are
certain conditions that the
Court must be satisfied with
before it grants the
confirmation. These are provided
to ensure that the rights of
citizens are protected and not
abused by officials of EOCO.
For example,
under section 35, the court must
be satisfied that the Applicant
is being investigated for a
serious offence and or charged
with a serious offence among
other conditions.
A perusal of
the affidavit in support of this
confirmation application
indicates that the Interested
Party did not make out a good
case for the confirmation of the
freezing order. No doubt, to
date, the Applicant has not been
arraigned before any court on
any criminal offence.
It is to be noted that, the
Courts have to assert their
rights and offer protection to
citizens of this country against
any undue interference by EOCO.
Since this confirmation order by
the Court may be made without
notice, the procedure adopted by
the Interested Party in
procuring it appears to be in
tandem with section 34 (1) of
Act 804 and therefore proper.
However,
under section 35 (2) the
Executive Director of EOCO shall
inform any person against whom a
freezing order has been made
within 7 days of the order.
Section 38 of Act 804 provides
that a freezing order remains
valid until
(a) the order is
discharged, revoked or varied,
and also that it remains in
force for 12 months after the
date of the order or as is
determined by the court or that
a confiscation order is made.
Pursuant to
the above, the Interested Party
on 12th February 2013
filed an application to
confiscate tainted
assets/proceeds of crime
pursuant to section 51 of Act
804 and order 19 of C. I. 47.
The
confiscation order under Act 804
is covered by section 51 of the
Act. In view of the reference to
serious offence which has been
used in many of the sections of
Act 804 referred to supra, I am
of the view that it may be
useful to quote in extenso the
definition of “serious
offence” and “tainted
property” in section 74 of
the Act, which is the definition
section.
“Serious offence”
includes
(a)
participation in an organised
criminal group, terrorism and
terrorist financing, money
laundering, human
trafficking, people smuggling,
sexual exploitation,
illicit trafficking in narcotic
drugs, illicit arms
trafficking, trafficking in
stolen and other goods,
corruption and
bribery,serious fraud,
counterfeiting and piracy of
products, smuggling,
extortion, forgery, insider
trading and market manipulation,
(b)
murder, grievous bodily harm,
armed robbery or theft where
there are predicate
offences for a serious offence,
and
(c)
any other similar offence or
related prohibited activity
punishable with
imprisonment for a period of not
less than twelve month;
“tainted property” means
property,
(a)
used in or in connection with
the commission of a serious
offence;
(b)
derived, obtained or realised as
a result of the commission of a
serious offence;
From my
understanding of the procedures
outlined above in Act 804 for
the freezing of bank accounts,
to confirmation and then to
confiscation of the said
properties to wit the Bank
account, it appears sufficiently
that the Interested party
followed the required procedure.
However, in
the pursuit of those procedures,
there are some condition
precedents which have to be
applicable before a confiscation
order can be made.
For example,
section 51 of Act 804 makes it
quite clear and apparent that
the court in hearing an
application for the confiscation
of tainted property shall infer
from the record of proceedings,
a.
that the property was used to
facilitate or aid the commission
of a serious offence and
b.
that the property was derived or
obtained or realised as a result
of the serious offence.
In the
instant case, there are no
record of proceedings save the
proceedings that have been
prepared as a result of the
freezing and confirmation of the
freezing of the accounts of the
Applicant.
My candid
understanding of the said
provisions is that there ought
to have been a prosecution of
the Applicant before a court of
competent jurisdiction which
should have established any of
the following:-
i.
The existence of a record of
proceedings involving the
Applicant and the relevant
criminal charges and or
offences.
ii.
An inference from the record of
proceedings establishing that
the property, in this
instant, the funds in the bank
account was used to facilitate
or aid the commissioning of a
serious offence.
iii.
That the person has had full
possession or control of the
property immediately before
his arrest.
iv.
That the person is on trial
v.
That the person has been
convicted of an offence of
serious offence.
vi.
That the property was derived or
obtained from the serious
offence for which he is
either on trial or has been
convicted.
vii.
The Court in considering a
confiscation application, shall
have regard to the gravity
of the offence.
This by
itself connotes the fact that,
the arraignment and prosecution
of a person whose property or
asset is the subject matter of
an application for confiscation
under section 51 of Act 804 is a
sine qua non, or a condition
precedent.
In the
instant case, once learned
counsel for the Interested Party
has conceded that the Applicant
has since 2012 when the
Suspicious Transaction Report
(STR) was filed, there has been
no prosecution and conviction of
the Applicant, that should have
informed them not to press on
with their untenable position in
law.
I am
therefore of the view that, even
though the procedure adopted by
the Interested Party in seeking
the confiscation was in order,
the conditions precedent to the
grant of the said application
pursuant to section 51 of Act
804 were woefully absent.
Under the
circumstances, the learned High
Court Judge should have refused
the invitation made to it to
grant the confiscation
application. This is because
there was no real, imagined or
putative grounds upon which the
said application should have
been sustained.
Having
decided that the grant of the
confiscation order pursuant to
section 51 of Act 804 was made
without any basis, and therefore
same is null and void, there is
the need to consider provisions
in section 50 (1) , (3) (a) and
(b) of Act 804 already referred
to supra.
This is
because this deals with
Procedure for Confiscation where
the person Absconds.
This need has
arisen because of the claim that
the Applicant sometime during
the investigations absconded.
A perusal of
the relevant provisions in
section 50 of Act 804 make it
quite clear that, before the
Executive Director of EOCO can
proceed to apply for
confiscation order against a
tainted property, there is the
need for requirement of notice
to be given to all persons who
have interest, and a further
directive for publication in the
Gazette or three publications
within three months in a
newspaper having wide
circulation.
Considering
the above provisions against the
background of the facts of the
instant case, there is clear
evidence that the confiscation
order cannot also be justified
under section 50 of Act 804.
This is
because as at now, the funds in
the Bank Account have not been
declared as a tainted property
and there has not been the
requisite number of publications
in a newspaper within the
timeframe mentioned in the law.
It is
therefore clear that, the
Interested Party cannot under
any circumstances justify the
order for confiscation of the
funds in the bank account of the
Applicant at the Kejetia branch
of Ecobank.
To conclude
this matter, I wish to reiterate
my earlier comments that the
provisions in Act 804, must be
read together with the
Constitution 1992 especially the
provisions in article 19 of the
Constitution which deal with
Fair Trial during criminal
prosecutions.
Similarly,
article 296 on exercise of
discretionary power whenever
this was granted in the
Constitution 1992 or in any
other law such as the EOCO Act
804 has to be taken into serious
consideration.
Taking all
the above into consideration,
one would observe that if the
Applicant had been arraigned and
tried before a court of
competent jurisdiction on any
criminal offence, then the
constitutional protections that
accused persons are granted
would have availed the
Applicant.
However, as
things stand now, there is
absolutely no basis for a court
of law to presume and assume
that the Applicant had been
arraigned, tried and convicted
on offences stipulated in Act
804 thereby entitling the
Interested Party to proceed to
confiscate property of the
Applicant which is protected
under article 18 (2) of the
Constitution 1992.
It is
therefore clear that once the
Applicant has not been
prosecuted on any criminal
offence or convicted, the
procedures adopted by the
Interested Party in proceeding
to freeze, confirm the freezing
and confiscate same is contrary
to constitutional protections
granted citizens including the
Applicant herein in article 18
(2) of the Constitution and Act
804 itself.
Issue 2
Breach of the
Rules of Natural Justice
As I have
already stated our criminal
jurisprudence has been founded
on the audi alteram partem
principle of the rules of
natural justice, which requires
that everyone must be given a
hearing and reasonable
opportunity to defend himself
before he is convicted. In other
words, you are presumed innocent
until proven guilty. It is in
this respect that Act 804
requires that Notice be given in
confiscation applications which
have the capacity to permanently
deprive you of the use of your
property.
From the
facts of the case, the Applicant
can be said to have been evasive
or illusive to start of and
really not co-operating with the
Interested Party. That
notwithstanding, the
responsibility is still cast on
them to establish the guilt or
otherwise of the Applicant in a
Court of competent jurisdiction
as prescribed under the
Constitution 1992 and Act 804.
Assuming
without admitting that the
Applicant refused to make
himself available for
investigations, the question
that begs for an answer is this,
since January 2012 or
thereabout, what has the
investigations conducted by the
Interested Party revealed?
They have not
pointed to any wrongdoing or
criminal conduct on the part of
the Applicant. If really these
investigations had made findings
of a criminal nature against the
Applicant, nothing prevented
them from proceeding to
prosecute him in his absence
after giving the requisite
notice. Article 19 (3) of the
Constitution 1992 provides as
follows:-
“The trial of a person charged
with a criminal offence shall
take place in his presence
unless:-
(a) he
refuses to appear before the
court for the trial to be
conducted in his presence
after he has been duly notified
of the trial; or…”
The above in
my opinion constitute sufficient
authority for the Interested
Party to proceed against the
Applicant by arraigning him
before the court to face charges
of a serious offence or
obtaining assets with tainted
property as defined in Act 804.
Not having established the guilt
of the Applicant, there is
absolutely no basis for any
court to proceed to confiscate
the properties after an
acknowledgment by the Court that
the Applicant seriously
contended that he has not been
served with the Notice of Motion
for Confiscation of the bank
account.
It has to be
noted further that, the dictum
of Kpegah JSC in the case of
Republic v High Court, Accra,
Ex-parte Aryeetey (Ankrah-
Interested Party)
[2003-2004] SCGLR 398-410 cannot
apply in this instance because
the Interested Party is in
breach of the relevant
provisions of Act 804. This
enjoins them to establish the
criminality and guilt of the
Applicant before proceeding with
confiscation applications.
The
authorities are therefore quite
settled that whenever a person
who ought to be given a hearing
in his defence has been denied,
thereby breaching the rules of
natural justice, Certiorari
would lie to quash any such
proceedings and order. See the
following cases for their full
force and effect:
1.
Republic v High Court, Accra;
Ex-parte Salloum (Senyo Coker –
Interested Party)
[2011] 1 SCGLR 574
2.
Enekwa & Others v KNUST [2009]
SCGLR 242, holding 2
3.
Republic v High Court, Sekondi;
Ex-parte Ampong [2011] 2
SCGLR 716
Once the
confiscation orders have been
premised upon the assumption
that the Applicant has committed
criminal offences for which he
has not been tried and
convicted, confiscation orders
based upon such gross violations
of the basic rights of the
Applicant cannot be lightly
glossed over.
In such
circumstances, it is certain
that the Applicant has
sufficiently made a case for the
grant of the order of Certiorari
which he has asked for.
Conclusion
In the
premises, I will grant the
Applicant’s prayer of Certiorari
and bring up into this Court for
the purposes of being quashed
the ruling and orders of the
High Court, Financial Division
dated 12th February
2014 and by necessary
implication all the preceding
orders and rulings having a
bearing in the case dated 19th
December 2012 and 12th
February 2013.
I will also
order that the Applicant’s
account at Kejetia, Kumasi
Branch of Ecobank be and is
hereby defrozen and an order
directed at the Interested Party
to release the funds of the
Applicant transferred from the
Ecobank account at Kejetia
branch, Kumasi into the EOCO
exhibit account at the Bank of
Ghana to him forthwith. The
Interested Party herein is to
ensure that the above orders are
carried out.
(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 INTERESTED
PARTY. |
