court orders return of seized property in coke case

AN Accra Fast Track High Court on Tuesday ordered the immediate release of 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.
The property include the stock of goods in the shop of Benjilo Fabrics Company Limited which got destroyed because the shop was 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 is to pay ¢450 million per year as loss of use of three vehicles which were also seized.
An award of ¢90 million is also to be paid for the rehabilitation of the three vehicles which have been left to the vagaries of the weather since May 2001.
The court, presided over by Mr Justice Victor Ofoe, awarded ¢80 million in damages and costs of ¢50 million against the state.
The judgement is to be executed by the state through the Inspector General of Police, 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 properties after the conviction and sentence of Benjilo to 10 years for drug related offences in April 1997.
According to the plaintiffs, Benjilo Fabric 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 stock of goods destroyed in shops locked because when its accountant together with the police took stock of the goods on June 5, 1997, the value of the goods was ¢1,111,840,500.
Consequently, the court ordered that interest be paid on the amount from December 1997 at the commercial rate to date because six months from the date was a reasonable period the defendants could have decided to dispose off those materials instead of leaving them to rot in the shops.
It held that the defendants should have known that the goods were perishable and should have been stored in suitable temperature or sold.
The company claimed a leasehold interest in the houses at the Salaga Market and Selwyn Street, as well as the Nissan Pathfinder.
It said that 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 the evidence of Mrs Adu Bonsu 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 that 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.
The GCM Typhoon vehicle, the court held, was a gift from Azumah Nelson to Mrs Adu Bonsu because there was evidence to show the transfer of the original name to her and there being no contrary evidence, she was the owner.
The Nissan Pathfinder, the court held, was owned by Benjilo Fabrics because exhibits from the then Vehicle Examination and Licensing Division indicated that the company owned the vehicle and there was no contrary evidence that it belonged to Benjilo.
Furthermore, the court held that the Mercedes Benz car belonged to Mike Misho who left it in the care of Mrs Bonsu and documents covering it were in his name.
In the light of the sketch of the relevant provisions of the Narcotic Law on seizure and forfeiture, the court held that, it found no provision that justified the action and inaction of the defendants in respect of properties being claimed by the plaintiffs.
According to the court, the continued seizure and detention of the movable and immovable properties of the plaintiffs was unlawful, arbitrary, unjustified and a violation of their fundamental right to property.
It said that the Narcotic Drugs Law was a specialised law intended to fight vigorously persons within the narcotic trade and empowered the police and the Attorney-General with wide powers of arrest, investigation, search and seizure.
However, it held that, it would be wrong to interpret the provisions of the law as giving unfettered powers to the police to go on rampage interfering with property of other citizens without recourse to the law.
"Any act that falls outside the powers of the police or the state conferred on it by the law will be unlawful and damages, where appropriate, may be visited on the state coffers", the court held and stated that it might be true that the capacity of the state might not be fine tuned yet in tracking down those sophisticated drug dealers and their properties.
It said that might be an unfortunate situation which the law courts might not be of any assistance to the state, saying that "there may be suspicion that the properties, the subject matter of the suit, belonged to George Adu Bonsu, but the suspicion is not sufficient to support a filing against the claimants of these properties who have led evidence in claim of their properties.
The trial judge stated that his judgement was based on the evidence of the plaintiffs alone after their cross-examination since the defendants offered no evidence to challenge their claims.
He described as unfortunate the fact that the court did not have the benefit of evidence from the defence, particularly considering the impact of the drug trade on an economy.
Mr Justice Ofoe said the case had given him anxious moments because he was convinced that inertia in the state bodies that had legal authority in handling drug case appeared to be compounding.
The judge’s worry stemmed from the fact that the state should have filed forfeiture proceedings in respect of the properties seized since there was nothing like that before the court.
In 1998 when the plaintiffs filed for the release of their properties, the defendants then filed for forfeiture but that was thrown out on the grounds that an appeal by the then convict was pending.
When the case was finally disposed off 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.
Against the above background, the judge questioned why five years after that the state had not filed the forfeiture proceedings.