COURT DISMISSES STATE'S APPLICATION FOR STAY IN COKE CASE

THE Accra Fast Track High Court has dismissed a motion on notice for stay of execution filed by the Attorney-General against the court’s judgement that a number of movable and immovable property which were wrongfully confiscated by the state in 1997 on the assumption that they belonged to George Adu Bonsu, alias Benjilo, should be released.
After hearing arguments by counsel for the applicant and the respondent, the court, presided over by Mr Justice Victor Ofoe, ruled that there was no exceptional circumstance to warrant the stay of its judgement and asked the applicant to go to the Court of Appeal.
It awarded costs of ¢5 million against the applicant, which is the State.
On February 13, 2007, the court ordered the immediate release of the stock of goods in the shops of Benjilo Fabrics Company Limited which got destroyed because they had been locked, leasehold interests in House Number C618/2, Salaga Market, House Number 521/1, Selwyn Street, House Number C850/4, Abele Road, Kokomlemle, House Number J85, Nungua, an unnumbered warehouse/hospital premises opposite ABC Junction, Alogboshie (now Fourth Street or C297/30 Achimota), Accra.
The rest are an unnumbered property at Number 1 Tantra Hill, TH 59, Tantra Hill in Accra, a GCM Typhoon vehicle, with registration number GR 4833 J, a Mercedes Benz 300, with registration number GR 7474 J, and a Nissan Pathfinder, with registration number GR 4835 J.
The court further ordered the payment of ¢1.111 billion with interest, since 1997, at the prevailing commercial rate for the stock of goods destroyed as a result of the unlawful closure of Benjilo Fabrics Company Limited.
In addition, the state was to pay ¢450 million per year as loss of use of three vehicles which were also seized.
An amount of ¢90 million was also to be paid for the rehabilitation of the three vehicles which have been left to the vagaries of the weather since May 2001.
A further ¢80 million in damages and costs of ¢50 million were also awarded against the state.
A building, H/NO. C850/4, Abele Road, Kokomlemle, which belongs to Madam Yaa Konadu, is not affected by the appeal.
The judgement was to be executed by the State through the Inspector-General of Police, the Narcotics Control Board and the Attorney-General, who were the defendants.
The plaintiffs, Benjilo Fabrics Limited, Mrs Grace Adu Bonsu, Prof Azumah Nelson, Dennis Adu Bonsu, Raymond Kofi Adu Amankwah and Madam Yaa Konadu, sued for the release of the property after the conviction and sentence of Benjilo to 10 years’ imprisonment for drug-related offences in April 1997.
According to them, Benjilo Fabrics was a limited liability company with four directors who did not include Benjilo, who was only a worker with the company.
The company claimed $650,000 or its cedi equivalent as the cost of the stock of goods destroyed in the shops which were locked because when its accountant, together with the police, took stock of the goods on June 5, 1997, their value was ¢1,111,840,500.
Consequently, the court ordered that interest be paid, at the commercial rate, on the amount from December 1997 to date because six months from the date was a reasonable period for the defendants to have decided to dispose of those materials, instead of leaving them to rot in the shops.
The company claimed a leasehold interest in the houses at the Salaga Market and Selwyn Street, as well as the Nissan Pathfinder.
It said the leasehold interest for 20 years was acquired from Mr and Mrs Nanka Bruce in April 1994.
The court held that evidence was led to show that, indeed, Benjilo did not own those houses and that the company was the lessee of the property.
In respect of the Kokomlemle house, the court held that it was satisfied with Mrs Adu Bonsu’s evidence that it belonged to the sixth plaintiff, Madam Yaa Konadu, who herself testified as to how she came by that property.
The evidence on the property at Nungua, the court held, was that it was owned by the fifth plaintiff, Raymond Kofi Amankwah, who is presently domiciled in the USA.
The court said the unnumbered warehouse at ABC Junction, Alogboshie, belonged to Azumah Nelson, who led evidence as to how he got the property.
It stated that the former world featherweight boxing champion bought it from Nii Kuma for the construction of a hospital and Azumah testified that he was assisted by Benjilo each time he travelled outside the country but he refunded whatever amount was spent by Benjilo.
Regarding the ownership of the property opposite ABC Junction, Achimota, being claimed by the fourth plaintiff, Dennis Adu Bonsu, the court accepted the evidence by Mrs Adu Bonsu that she bought it for her child, while the Tantra Hill property, it said, belonged to Mr Ernest Boamah Ansong and not Benjilo.
In 1998, when the plaintiffs filed for the release of their property, the defendants then filed for forfeiture but it was thrown out, on the grounds that an appeal by the then convict was pending.
When the case was finally disposed of at the Supreme Court on May 9, 2001, the state did not go ahead to proceed with the forfeiture proceedings, since the Regional Tribunal indicated on May 3, 2006 that there was no such motion.
According to the notice of appeal, the judgement was against the weight of evidence adduced during the trial and that the trial judge erred in awarding to the respondents/plaintiffs special damages when same had not been specifically pleaded.
Mr William Kpobi, a Principal State Attorney, stated that there was a clear case of bias by the trial judge when, in a preface to his judgement, he had said, “The case had given him anxious moments ... inertia by the state ...”
He said by reference to those words, the judge feared and was worried, nervous and had shown interest in the respondents and ought to have declined jurisdiction from the beginning of the trial.
The judge, however, disagreed with him and asked at what point during the trial he had become anxious, telling the counsel that in asking for stay of execution, he should show inconveniences to be suffered if the judgement was executed.
Counsel for the respondent, Mr Yonny Kulendi, said counsel for the applicant failed to demonstrate that the appeal had the likelihood to succeed but sought to dwell on inconsistencies in the evidence.
“The applicant ought to tell the court what special circumstances there are to warrant the stay,” he said, and added that the opinion expressed by the judge did no amount to being bias.