THE EXECUTOR DIRECTOR ECONOMIC & ORGANISED CRIME APPLICANT/ OFFICE, OLD PARLIAMENT HOUSE,) ACCRA. vs CHARLES OPPONG KYEKYEKU [2012]DLHC4197

THE EXECUTOR DIRECTOR ECONOMIC & ORGANISED CRIME APPLICANT/ OFFICE, OLD PARLIAME... [2012]DLHC4197

Date	2012-07-30
Suit No.	SUIT NO. FTRM/51/2012
Citation No.	[2012]DLHC4197

HIS LORDSHIP MR JUSTICE P. BRIGHT MENSAH

OSEI OWUSU FOR THE RESPONDENT/APPLICANT

EDWARD CUDJOE FOR DR ANDERSON THE APPLICANT/RESPONDENT

[2012]DLHC4197
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													<main id="main" class="content" style="min-height: 60rem" >THE EXECUTOR DIRECTOR
ECONOMIC &amp; ORGANISED CRIME APPLICANT/ OFFICE, OLD PARLIAMENT HOUSE,) ACCRA.<o:p></o:p>vs<o:p></o:p>CHARLES OPPONG KYEKYEKU<o:p></o:p>[HIGH
COURT (FINANCIAL DIVISION 1), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. FTRM/51/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 30TH JULY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OSEI
OWUSU FOR THE RESPONDENT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EDWARD
CUDJOE FOR DR ANDERSON THE APPLICANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP MR JUSTICE P. BRIGHT MENSAH<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>APPLICATION
TO VACATE ORDER OF THE COURT<o:p></o:p>This
is an application to set aside an order of this court made on 13/02/12
following a Notice of Motion filed in this registry by the respondent/applicant
herein on 23/05/12.&nbsp; The grounds for the
application are catalogued in the supporting affidavit. <o:p></o:p>The
thrust of the application is that the order complained of, obtained exparte by
the Economic &amp; Organised Crime Office, is a nullity on ground of procedural
impropriety.&nbsp; It has been averred in
paragraph 16 of the supporting affidavit that both in substance and the
procedure adopted by the applicant/respondent in obtaining the order of the
court are wrong in law.&nbsp; Additionally, it
was actuated by deep malice. <o:p></o:p>In
this Ruling I shall simply refer to the Executive Director of the Economic
&amp; Organised Crime Office as the applicant/respondent and Charles Oppong Kyekyeku,
respondent/applicant.<o:p></o:p>It
is the case of the respondent/applicant that there is no justifiable reason why
the applicant/respondent has to take any action to freeze or confiscate any
asset his here in Ghana.&nbsp; See: paragraph
25 of the affidavit.&nbsp; According to the
deponent of the affidavit (Elisha Enti), he has been advised by Counsel and he
verily believed it to be true that the conduct of the applicant/respondent was
completely unnecessary and wholly uncalled for, same being against the 1992
Constitution.&nbsp; Besides, the conduct of
the applicant/respondent was even against the very nature of assistance that the
Crown Prosecution Service requested for, because it was wrongfully executed.<o:p></o:p>In
moving the application, learned Counsel for the respondent/applicant relied on
all the averments contained in the supporting affidavit.&nbsp; He did refer the court to Ss 46 &amp; 47 of
the Economic &amp; Organized Crime Office Act, 2010 (Act 804) and Order 19 r 1
of CI 47 and with the strongest conviction submitted that the order of
confiscation could be obtained by E.O.C.O only where the respondent/ applicant
was on trial.&nbsp; The notice of the
confiscation proceedings ought to have been published in the gazette.&nbsp; Once that was not published in the gazette
and in the national newspapers and the respondent/applicant was not given any
hearing it rendered the order obtained on 13/02/12 a nullity.<o:p></o:p>Learned
Counsel next discussed in some more detail with quite an amount of passion that
Part II of Act 804 deals with drug offences only.&nbsp; In his opinion, Part II of Act 804 properly
construed meant that the applicant/respondent could only invoke Ss 45, 46 and
24 of Act 804 and confiscate the property of the respondent/applicant only in
drug offence cases.&nbsp; He argued that in
the instant case the respondent/applicant was held for offences relating to
money laundering.&nbsp; Thus, those provisions
of the law under which the applicant/ respondent proceeded to confiscate the
properties in issue were inapplicable.&nbsp;
Consequently, any action taken in connection thereto was flawed, he said
further.<o:p></o:p>He
then referred to paragraph 15 of the affidavit which accompanied the exparte
application for the order made on 13/02/12 and canvassed the point that the
applicant/respondent did not have any ground for reasonable suspicion that the
properties therein referred to were acquired through proceeds of crime.&nbsp; According to him, the Trassaco house was
acquired in the year, 2003 whilst the offence for which Charles Oppong Kyekyeku
was convicted was allegedly committed in 2007.&nbsp;
Thus, it cannot be a subject of confiscation by the E.O.C.O.&nbsp; He contended that the Proceeds of Crimes Act,
2002 of the United Kingdom which allows the tracing of tainted property to 6
years prior to conviction is in- applicable in our jurisdiction. <o:p></o:p>He
concluded that since entering Britain the respondent/applicant has been doing
very legitimate business with huge turnover and that the only offence he was
involved in is the offence of entering into or becoming concerned in a money
laundering arrangement.&nbsp; It cannot be
correct, therefore, to say that the respondent/applicant has a criminal
lifestyle, he added.<o:p></o:p>I
need to put it on record that the application is opposed by the applicant/
respondent, principally on 2 main grounds.&nbsp;
The first is that the deponent lacks the legal capacity to institute
this instant application; and secondly, the order complained of was obtained
pursuant to a Mutual Legal Assistance request received from the United Kingdom
in connection with some confiscation proceedings being held in the U.K. after
the respondent/applicant’s conviction.<o:p></o:p>Learned
Counsel for the respondent/applicant at the outset sought to raise a
preliminary point of law as to the capacity of the deponent who swore to the
affidavit accompanying the motion.&nbsp; In
order not to stall or truncate the proceedings at that stage because I held the
view that the case raises very interesting legal issues, I directed that the
submissions by learned Counsel for the respondent/applicant could go on and
that he reserved the right of reply on the issue of capacity when he took his
turn to address the court.&nbsp; He could then
incorporate the issue of capacity in his submissions.<o:p></o:p>Having
taken the cue from the Bench, learned Counsel resumed with his submissions and
referred the court to the Mutual Legal Assistance Act, 2010 (Act 807) and
contended that Ghana as a signatory to the Mutual Legal Assistance Protocol
Convention had to comply with any mutual legal assistance sought from any
country which is a signatory to the Convention where the request is in
connection with criminal cases.&nbsp; In this
c</main>