The Attorney-General (A-G) has appealed against an Accra Fast Track High Court decision ordering the 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 appeal is seeking to reverse the Greater Accra Regional Tribunal's refusal to grant the forfeiture orders of Benjilo's property and an order for the re-trial of the case.
Consequently, a motion on notice for stay of execution of the court's judgement pending appeal had also been filed by the A-G.
Apart from H/NO. C850/4, Abele Road, Kokomlemle, which belongs to Madam Yaa Konadu, the rest of the property are affected by the appeal.
On February 13, 2007, the court, presided over by Mr Justice Ofoe, ordered the immediate release of the stock of goods in the shops of Benjilo Fabrics Company Limited, which got destroyed because they were locked.
The court also ordered 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, and 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, 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 award 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 was also awarded against the state.
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 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 the cost of the stock of goods destroyed in the shops 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 on the amount from December 1997 at the commercial rate 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.
It held that the defendants should have known that the goods were perishable and so they should have been stored under a 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 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, belonged to Mr Ernest Boamah Ansong and not Benjilo.
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.
The judge's worry stemmed from the fact that the state should have filed forfeiture proceedings in respect of the property seized, which could have been presented to the court.
In 1998, when the plaintiffs filed for the release of their property, 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 of at the Supreme Court on May 9, 2001, the state did not 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.
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.
An affidavit deposed by Ms Marina Atuobi, a State Attorney, said the tribunal erred in law by its refusal to grant the forfeiture orders on the grounds that there was a civil case involving the same property pending at the Fast Track High Court.
It said the evidence adduced by the plaintiffs/respondents were not in law, and on the facts the appeal was likely to succeed and having regard to the inconsistencies which came out during cross-examination by the defendants/applicants of the witnesses of the plaintiffs/respondents, the court erred in giving judgement without giving the defendants a hearing.
“Notwithstandig the defendant's/applicants inability to open their defence, this court should not have been satisfied with the evidence adduced by the plaintiffs/respondents, which evidence was shown to be manifestly unreliable on cross-examination by the defendants/applicants,” it said.
It said prior to the delivery of judgement, the defendants had filed an application for forfeiture before the Regional Tribunal against Benjilo, an ex-convict of drug-related offences, in respect of the property, the subject matter of the appeal.
Story by Stephen Sah