NII NUEH ODONKOR vs THE EXECUTIVE DIRECTOR (E.O.C.O), BANK OF GHANA AND ECOBANK (GH) LTD [2014]DLHC4190

NII NUEH ODONKOR vs THE EXECUTIVE DIRECTOR (E.O.C.O), BANK OF GHANA AND ECOBANK... [2014]DLHC4190

Date	2014-03-14
Suit No.	SUIT NO. BMISC 381/2014
Citation No.	[2014]DLHC4190

HIS LORDSHIP JUSTICE P. BRIGHT MENSAH

ALEXANDER AFENYO MARKIN WITH KORKOR OKUTU FOR THE APPLICANT

JACQUELINE AVOTRI FOR THE 1ST RESPONDENT

NO APPEARANCE BY OR ON BEHALF OF THE 2ND& 3RD RESPONDENTS

[2014]DLHC4190
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													<main id="main" class="content" style="min-height: 60rem" >NII NUEH ODONKOR<o:p></o:p>vs<o:p></o:p>THE EXECUTIVE DIRECTOR
(E.O.C.O), BANK OF GHANA AND ECOBANK (GH) LTD<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO. BMISC 381/2014&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: 14TH
MARCH, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ALEXANDER
AFENYO MARKIN WITH KORKOR OKUTU FOR THE APPLICANT<o:p></o:p>JACQUELINE
AVOTRI FOR THE 1ST RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO
APPEARANCE BY OR ON BEHALF OF THE 2ND&amp; 3RD RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP 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%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This
is an application “to set aside order of confiscation and forfeiture and for a
further order to defreeze and release account”.&nbsp;
According to the Motion paper, the application is premised on the
inherent jurisdiction of the court; Article 296 clause (a)&amp;(b) of the 1992
Constitution; S.38(1)(a)(i) and 2(a); Ss 47, 50(1)&amp;(3) and 51 of the
Economic &amp; Organised Crime Office [E.O.C.O] Act, 2010 (Act 804) and Order
19 r 1(1) of CI 47.<o:p></o:p>The
thrust of the application as can be gleaned from the averments contained in the
applicant’s affidavit accompanying the motion paper is that in November, 2011
he (Applicant) received US$22500 from a Roxanne Sprankle into his account with
the Tema branch of Ecobank.&nbsp; His bankers
refused him access to the money and when he complained he was referred to the
Compliance Department of the bank in Accra.&nbsp;
There, he was informed that the 1st Respondent has written to the bank
indicating that the account has been frozen by E.O.C.O and the freeze confirmed
by the court.&nbsp; He contends that he was
never invited by the E.O.C.O nor notified of the freezing directive.&nbsp; It was until 09/01/14 by which a meeting was
scheduled by the 1st Respondent where he (Applicant) met a Okutu and a Bernice
Gilgui at the E.O.C.O offices.&nbsp; According
to the Applicant, he went into the meeting with his lawyer and was interrogated
extensively by the E.O.C.O officials.<o:p></o:p>It
is the case of Nii Nueh Odonkor that it was during that meeting that he was
informed that his funds in the account in contention have been transferred into
the Exhibit Account of the 1st Respondent with the Bank of Ghana.&nbsp; Allefforts to get the funds released to him
have been unsuccessful hence this instant application, he added.<o:p></o:p>Arguments
in support of the application:<o:p></o:p>In
moving the application, learned Counsel for the Applicant argued most
aggressively that by the order of the court made on 23/02/12 the account was
confirmed frozen to allow the 1st Respondent sufficient time to conduct
investigations as provided for by law.&nbsp;
Subsequently an application was put before the court for the forfeiture
of the account.The gravamen of learned Counsel’s submissions is that the court
erred in invoking S.23(3) of the Economic &amp; Organised Crime Office Act,
2010 (Act 804) to order the forfeiture of the funds after the freezing
directive by the 1st Respondent has been confirmed by an order of the
court.&nbsp; Although the application was for
forfeiture of account what the court sought to do was to confiscate, Counsel
stressed.<o:p></o:p>He
next referred the court to S.23(1) of Act 804 and submitted most forcefully
that forfeiture has not been defined in the statute ie Act 804.&nbsp; However, given its ordinary meaning, it means
permanent deprivation of a property as a result of commission of crime.&nbsp; He contended further that once the
criminality of the Applicant has not been established the court could not have
confiscated the funds in question.He debunked the assertion by the 1st
Respondent that the Applicant was ever invited for any investigations.&nbsp; He referred the court to S. 19(5) of Act 804
and argued that the 1st Respondent reserved the right to apply the sanctions
stipulated in the law if indeed the Applicant refused to honour their
invitation.<o:p></o:p>In
concluding his arguments, learned Counsel referred to the earlier motions filed
by the 1st Respondent for the confirmation of the freezing directive and for
the forfeiture of the accounts and urged on the court to set aside both
orders.&nbsp; His basis was that there was a
breach of the rules of natural justice because, according to Counsel, the
Applicant was never given a hearing in the forfeiture application. <o:p></o:p>Arguments
against the application:<o:p></o:p>I
need to put it on record that the application is being opposed to by the 1st
Respondent. However, on record the 2nd and 3rd Respondents never filed any
process in opposition to the application neither were they present in court at
the hearing.<o:p></o:p><o:p>&nbsp;</o:p>In
opposing the application, learned Counsel for the 1st Respondent referred
first, to S.30 of the Anti-Money Laundering Act, 2008 (Act 749) and submitted
that by law neither the person who files a Suspicious Transaction Report with
the Financial Intelligence Centre (F.I.C) or an officer of the F.I.C was
required to disclose the contents of the report to anybody else. The only
exception is where the disclosure is required for legal proceedings.<o:p></o:p>Learned
Counsel stressed that by a publication in the Daily Graphic in addition to a
registered post mailed to him, the Applicant was duly invited to the office of
the 1st Respondent for investigations.&nbsp;
He however refused to honour the invitation. She roundly disagreed with
her learned friend that S.19(5) of Act 804 applied to the circumstance of this
case.&nbsp; Her view was that that provision
of the law only applied where the party had honoured the invitation but has
willfully refused to produce or disclose any document/information required by
the E.O.CO.<o:p></o:p>Learned
Counsel for the 1st Respondent next referred to S.23(3) of Act 804 and
submitted quite strongly that by reason that the funds in contention was frozen
on the directive of the Executive Director of E.O.C.O same were deemed to be in
his possession.&nbsp; She equally referred the
court </main>