Lawyers of embattled former Minister for Sanitation and Water Resources, Madam Cecilia Abena Dapaah have told the High Court in Accra that monies found in the Abelemkpe residence of their client do not mean, she owned them.
In what they described as “arbitrary exercise of powers,” of the Office of the Special Prosecutor (OSP) “based on nothing more than suspicion fuels by misrepresentation of facts and resultant media frenzy,” Madam Cecilia Dapaah’s lawyers said, the application from the OSP should be dismissed.
The Special Prosecutor, Kissi Agyabeng and his team have imitated a corruption and corruption related investigation against Madam Cecilia Dapaah following an alleged theft case involving a millions dollars and 300, 000 euros among others.
Further searches at her residence particularly at Abelemkpe discovered additional physical $590, 000 and over GHc2.73 million.
Following from that, the OSP has taken steps by freezing certain bank and investments accounts of the former Minister and is seeking a confirmation order from the High Court in Accra.
But, Lawyer Victoria Barth, Counsel for Madam Cecilia Dapaah who opposed to the motion moved by Dr Issidore Tufuor, counsel for the OSP said, the Applicant (OSP) is acting based on suspicion misrepresentation as a result of media frenzy.
“In conclusion, we are relying on the deposition in our affidavit in opposition which speaks to the caliber and work history of the Respondent and her spouse among other facts that would show that this application has been brought in flagrant of the applicant’s (OSP) own enabling law and seeks to perpetrate the arbitrary exercise of powers based on nothing more than suspicion fuels by misrepresentation of facts and resultant media frenzy.’”
OSP argument
Moving the motion on Thursday, August 17, Lawyer Isidore Tufuor, Counsel for the OPS said, the motion was for confirmation of order of freezing and seizure of suspected ttainted property and confirmation of seizure of suspected tainted properties of Madam Cecilia Dapaah.
While moving the motion in terms of the motion paper together with the attachments, he said on July 24, 2023, the OSP upon a search conducted at the residence of the Respondent (Cecilia Dapaah) discovered huge sums of money stashed in the house.
The money he said consisted of an amount of $590,000 and GHc2,730,000 and that was after the OSP had initiated investigations into suspected act of corruption against the Respondent following information arising from a criminal case titled ‘Republic v Patience Botwe and 3 others.
He argued that, in that case, the house help of the Respondent together with others had allegedly stolen an amount of over $1 million, €300,000 and other properties belonging to the Respondent and her husband.
Dispute over ownership
Dr Issidore contended that, so far the facts revealed that the ownership of those amounts remain in dispute, “even though it is in the possession of the Respondent who is a public officer as at time of her arrest.”
Dr Isidore argued that, “the sources and origin of all these amounts remain highly doubtful”and in that regard the “Office of the Special Prosecutor under its investigative powers lawtully seized the amount of $590,000 dollars and GHC2, 730, 000 million pending investigations.
He argued that, The seizure was made under sections of the Special Prosecutor’s Act on ground that “these monies in respect of which the Respondent during preliminary investications provided no reasonable justitication for how she came to be in possession of such an amount, were suspected to be tainted and that it was necessary for the Office of the Special
Prosecutor to exercise the power of seizure for further investigations to be conducted.
“This application is to confirm that seizure order by section 32(2) of the Special
Prosecutor Act for the Special Prosecutor to apply for confirmation of the order within 7 days of the selzure,” Dr Isidore argued.
OSP’s motion out of time
He recounted that, “The Respondent had raised an objection in their affidavit in opposition to the fact that “we (OSP) are out of time, although not justifying filing out of time,he said “the applicant rather move expeditiousness of proceedings in respect of Investigation still on going.”
“….the Respondent has a number of houses that were being searched during the investigation…….We will be guided by the court in respect of this objection,” Counsel pointed out .
He said, “It is our prayer that the court unhold the siezure,” motion.
Freezing accounts
Concerning the accounts, he said “We have brought the second leg of the application under Section 38 of the OSP Act seeking to confirm the freezing of the accounts of the Respondents listed in exhibits OSP 3 and OSP 4.
The Special Prosecutor he said comes under Section 41(a) that, ” the court has power to freeze if it is satisfied that the respondent is being investigated for corruption…this is the test to be satisfied.
“At this stage, the freezing is to facilitate investigation under Section 38(1) of what we suspect to be tainted property, just a mere suspicion and this is what justifies the freezing so that the Special Prosecutor can investigate those accounts,” Dr Isidore argued.
Dr Isidore said, the respondent is being investigated for the offence of corruption, adding that, “Corruption which is an offence in itself and offence under the section and any other corruption related offence which may be discovered during investigation.”
“At this stage freezing is to facilitate investigations of the House and the case of allegedly stolen an amount of over one million dollars, 300,000 euros and other properties belonging to the Respondent.
“So far the facts revealed that the ownership of those amounts remain dispute even though we found in the possession of the respondent who is a public officer as at time of her arrest, the sources and orgin of all these amounts remain highly doubtful.
“In that regard the office of the Special Prosecutor under its investigative powers lawfully seized the amount of 590,000 dollars and GH$ 2.7300 million pending investigations.
“The seizure was made under section 32(1) of the Office of the Special Prosecutor’s Act on the ground that these monies in respect of which the Respondent during premminary investigations provided no reasonable justitication for how she came to be in possession o such an amount, we suspected to be tainted,” he argued.
“The procedure under section 40 of the Office of the Special Prosecutor, Act 959 must clearly distinguish from the freezing procedure under the Economic and Organized Crime’s Act which mandates that grounds for the freezing to be provided under section 34 thereof.
“The procedure under Act 959 is distinct and the law maker did not provide that requirement
to provide grounds for the treezing.
“In respect of the Respondent also disputing the capacity of the deponent in paragraph 4 of the affidavit in opposition, basically relied on the ground that she did not provide the written authority of the Special Prosecutor under section 39 of Act 959.
“Respectfully, this objection has no foundation in law, since that authority is purely administrative and an internal proceedings in the operations of the office.
“This is an official duty performed by the Special Prosecutor and its regularity must be presumed under section 37 of the Evidence Act. If the respondent seeks to rebut it she bears the burden to prove same.
“We rely on the authority of the Republic vrs Bank of Ghana Ex-parte; Hoda Holdings Ltd Suit No. H1/194/2021 delivered on the 7th of July, 2022.
“Per this submission we move that our application be granted,” Dr Isidor submitted*
Cecilia Dapaah’s opposition
Lawyer Victoria Barth, Counsel for the Respondent opposed to the application as evident by their affidavit in opposition filed on August 15, 2023
“It is our submission that the application before this court has been brought in contravention of the very statutory provisions that the applicant purports to rely on in invoking your jurisdiction,” she argued.
She contended that, the application is also rife with misrepresentation of facts.”
While pointing to Section 39 of Act 959 which requires the deponent to file this application, she said this application to authorize in writing by the Special Prosecutor.
“Suffice it to say that this is an express requirement which can only be proven by third parties who are not privy to the internal processes of the Office of the Special Prosecutor by the production of evidence that proves that fact of authorization deposed to on oath.
She said the application was doomed to fail on the grounds; that contrary to section 32(2) of Act 959, the OSP application for confirmation of seizures of suspected tainted property has been brought out of time.
She argued that, the language of section 32(2) “is very clear and leaves no room for a secondary meaning or waiver.”
Counsel said “tthe word ‘shall’ used in section 32(2) puts it beyond dispute that it is a mandatory requirement that must be satisfied to properly invoke this court’s jurisdiction.”
He added that, “Act 959 did not make any provision for extension of time for bringing the application under section 32(2).”
According to her, Act 959, unlike the C.I. 47 which deals with procedural rules, cannot be infringe by allowances that the court could otherwise make under Order 81 of C.I. 47 when procedural rules are not complied with.
“In a nut shell, we are humbly submitting that this court has no authority to grant the applicant immunity from its breach of section 32(2) of Act 959 as doing so would amount to exercising excess jurisdiction.
“The same principle applies to section 40 of Act 959 which provides the condition precedents that must be satisfy ed before a court can confirm a freezing order,” counsel submitted.
Conjunctive, not disjunctive
Lawyer Barth told the court that, contrary to applicant’s counsel submission that the applicant only needs to establish only one of the grounds in the section 40(1)(a-f), “we contend that the grounds set out in section
40(1)(a-f) are conjuctive and not disjunctive tive.”
She said, “each of those grounds 40(1) (a to e) is followed by a semi-colon, then the word ‘and’ follows the semi-colon after 40(1)(e) and then full-stop appears after 40(1)(f).
This she implied that, “the whole of section 40(1) is one sentence setting out cumulative grounds that must be satisfied before the court confirms the freezing order.”
She argued that, “It is instructive to note that in section 32 on seizure of tainted property the word ‘or’ is used between grounds 1(a) and (b) and the same applies to section 38 1(a) and (b).
“Indeed the EOCO Act, section 33 of which counsel for the applicant referred to, is distinct because the law maker chose to use ‘or’ between subsection (a) and (b) of section
33.
“Therefore, it is clear from both Act 959 itself and the EOCO Act, that where conditions precedent are in the alternative, the law maker uses ‘or’ and where they are conjunctive he uses ‘and’ there is no ambiguity in section 40(1) of Act 959 which came into force after the EOCO Act, Act 804 and therefore no secondary meaning cannot be inferred,” Counsel argued.
No connection with funds to crime
She said, “when property is described as suspected tainted property, there must be reasonable grounds that suggest that the funds in the Respondent’s account or those in her matrimonial home have been used in connection with the commission of an oftence or deemed or obtained or realized as a result of a commission of a corruption or corruption related offence.”
“This is why the mere fact of investigating the Respondent for a broadly described offence of corruption is not sufficient under section 40(1) to grant the confirmation of a freezing order,” she argued.
Counsel argued that, “indeed section 40(1)(c) of Act 959 requires the applicant to demonstrate reasonable ground for believing that the property is tainted property and not just a mere assertion of that fact.”
She said, “the fact that sums of money were found does not mean a commission of an offence or derived or obtained or realized as a result of a commission of a corruption or corruption related offence.
No basis of tainted property
She argued that, there is no basis to suspect that the monies in Respondent’s accounts are tainted property especially when banks are routinely required on a daily basis to report suspicious transactions.
“In exhibit OSP 3 and 4, the last paragraph, the applicant indicate that he has asked the banks to furnish it with the balances on the Respondent’s bank accounts as of 9th August, 2023, therefore the assertion that it needs to freeze the accounts to facilitate its investigation, is unjustified since every information it requires to now substantiate the alleged suspicion of tainted property would be contained in the bank statements.
Contradictions
Regarding the reported stolen money, she said counsel for the applicant’s own assertions that, the ownership of those amounts remain in dispute, even though found in the possession of the respondent, are much to be desired.
“That is a clear admission that contrary to his earlier statement, he has no basis for saying that those monies belong to the respondent. This is further confirmed by paragraph 7 of his own affidavit in support and exhibit OSP 2.
She said, the applicant counsel’s submission that in preliminary investigations the respondent failed to provide reasonable justification for the monies found in her matrimonial home, were untenable.
“This is a material fact that ought to have been deposed to on oath to attach any weight and also to give the respondent an opportunity to respond to it.
She said, “sneaking it in just like importing the words ‘amounts of money’ into the respondent’s statement in exhibit OSP 1 is in utmost bad faith and unwarranted.”
“The same applies to the nebulous statement that the respondent owns a number of houses when they are fully aware and have deposed to searching three properties at Abelemkpe, Tesanor and Cantoment.
“In conclusion, we are relying on the deposition in our affidavit in opposition which speaks to the caliber and work history of the respondent and her spouse among other facts that would show that this application has been brought in flagrant of the applicant’s own enabling law and seeks to perpetrate the arbitrary exercise of powers based on nothing more than suspicion fuels by misrepresentation of facts and resultant media frenzy.”
EIB Network’s Legal Affairs Correspondent, Murtala Inusah, who was in court reports that, the proceedings were conducted virtually with all parties including journalists joining via video link.
The Financial and Economic Division of the Accra High Court presided over by Justice Edward Twum, sitting as a vacation judge, has adjourned the case to August 31, for ruling.
Meanwhile, it came up in Court that the husband of Madam Cecilia Dapaah, Mr Daniel Osei Kufuor was also arrested by the OSP and has been granted bail upon questioning.
Source: Ghana/Starrfm.com.gh/103.5FM/Murtala Inusah
