The Procedural Propriety Of Freezing Order Applications In Ghana

Executive Summary
This article examines the procedural propriety of freezing property applications in Ghana under the Economic and Organised Crime Office Act, 2010 (Act 804), the Office of the Special Prosecutor Act, 2017 (Act 959), and the Anti-Money Laundering Acts (Act 749 of 2008 and Act 1044 of 2020). It addresses the critical question of whether such applications should be made ex-parte (without notice) or on-notice (with notice to the affected party).

Ghanaian law generally adopts a hybrid approach: initial ex-parte powers are granted to investigative agencies for immediate asset preservation, driven by the imperative to prevent dissipation of illicit proceeds. However, these powers are strictly circumscribed by statutory requirements for prompt judicial confirmation and timely notification to the affected party, followed by opportunities for on-notice review.

Judicial interpretation, particularly from the Supreme Court, consistently emphasizes the constitutional rights to property and fair hearing. Courts are vigilant in ensuring due process, especially when measures extend beyond temporary freezing to permanent confiscation, often requiring a prior prosecution or conviction.

The report concludes that while ex-parte applications are a necessary evil in the initial stages of asset tracing to prevent evasion, their legitimacy is contingent upon stringent adherence to statutory timeframes, judicial oversight, and the affected party's swift right to an on-notice hearing and redress. This delicate balance is crucial for effective law enforcement while upholding fundamental human rights.

Introduction
Asset freezing is a critical tool in Ghana's legal framework for combating economic and organised crime, corruption, and money laundering. These measures are designed to prevent suspects from dissipating or concealing illicitly acquired assets, thereby preserving them for potential confiscation, restitution, or use as evidence. The strategic importance of freezing orders in the fight against sophisticated financial crimes cannot be overstated. Without the ability to freeze assets quickly, proceeds of crime could be moved, converted, or disguised across jurisdictions, rendering subsequent investigations and prosecutions futile. This highlights the practical necessity of an ex-parte mechanism in the initial, critical stages of certain investigations, where secrecy and speed are paramount to prevent the frustration of justice.

This discussion will mainly focus on the Economic and Organised Crime Office Act, 2010 (Act 804), also also look at the Office of the Special Prosecutor Act, 2017 (Act 959), and the Anti-Money Laundering Acts, specifically the Anti-Money Laundering Act, 2008 (Act 749) and its successor, the Anti-Money Laundering Act, 2020 (Act 1044). The central inquiry is whether an application for freezing of property under these Acts should be made ex-parte or on notice. This report will analyze how Ghanaian law attempts to reconcile the compelling need for swift action against illicit financial flows with the fundamental constitutional rights of individuals, particularly the right to property and the right to a fair hearing.

Legal Framework for Freezing Orders

1. Economic and Organised Crime Act, 2010 (Act 804)

Section 34(1) explicitly allows the Executive Director of the Economic and Organised Crime Office (EOCO) to apply ex-parte to the Court for an order of confirmation of freezing. This is after the Executive Director suo-motu has directed the freezing of the property, which he considers necessary to facilitate initial investigations. Section 39 allows a person who claims an interest in the subject matter of the freezing order to apply on-notice within 14 days of issuance of the freezing order for review of the order.

2. Office of the Special Prosecutor Act, 2017 (Act 959)

The OSP Act establishes a two-stage process for freezing orders. The initial power to freeze (Section 38) is implicitly ex-parte to secure assets quickly. However, this is immediately counterbalanced by a compulsory requirement for the OSP to apply to the court on-notice to the respondent for confirmation within 14 days as provided in section 39. Crucially, there is also the explicit provision for on-notice review applications by affected parties in Section 44.

3. Anti-Money Laundering Act, (Act 749 of 2008 and Act 1044 of 2020)

The Anti-Money Laundering Act, 2008 (Act 749), as amended, also supports freezing orders in cases of suspected proceeds of crime, often aligning with ex-parte applications to prevent asset dissipation (see Section 41 of Act 749).

Section 56 indicates that the Chief Executive Officer, can direct freezing suo motu on reasonable grounds and apply to the High Court for confirmation within seven working days, and must direct the accountable institution to notify the affected person within forty-eight hours. The affected person also has a right to seek redress from the Court. The near-identical provisions in Act 1044 (the successor to Act 749) regarding the initial ex-parte freezing power, the mandatory 7-day court confirmation period, and the 48-hour notification requirement reinforce the established legislative policy.

4. 1992 Constitution of Ghana
Article 19(1) guarantees the right to a fair hearing, emphasizing principles of natural justice, including the right to be heard (audi alteram partem). Freezing property without notice could potentially infringe on this right unless justified by compelling circumstances.

Article 19(2)(c) ensures that a person charged with a criminal offence is given adequate time and facilities to prepare a defense. While a freezing order under Act 804 is not a criminal conviction, it affects property rights, which are protected under Article 18(1) (right to own property) and Article 20 (protection from deprivation of property without due process).

Article 23 mandates administrative bodies (like EOCO) to act fairly and reasonably, which could imply a preference for applications on notice unless urgency or risk justifies an ex parte approach.

5. Other Relevant Laws
The Courts Act, 1993 (Act 459), particularly Section 31, governs civil procedure and allows courts to grant interim orders, including ex parte orders, in urgent cases to preserve the status quo (e.g., Order 25 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47)).

Case law, such as Republic v. High Court, Accra; Ex parte Attorney-General (Delta Foods Ltd. Case) [1998-1999] SCGLR 595, emphasizes that ex-parte orders are exceptional and should be justified by urgency or necessity to prevent irreparable harm.

In the unreported case of Republic v. High Court (Financial Division, Accra) Ex Parte: James Awuni (The Chief Executive Officer, Financial Intelligence: Interested Party) Civil Motion No. J5/31/2014, rendered on 5^th November 2014, the Supreme Court ruled that the ex-parte nature of the freezing order application by the CEO of the Financial Intelligence Centre was permissible under section 47 of Act 749. The law allows the CEO to freeze an account or transaction ex-parte and seek court confirmation within seven days, with notification to the affected party required within 48 hours of the freeze or court confirmation. The lack of prior notice to the applicant was not fatal, as the record supported the presumption that timelines were observed.

In the recent case of Republic v. High Court (Financial Division, Accra) Ex Parte: Malik Ibrahim (Executive Director, EOCO: Interested Party) (unreported) Civil Motion No. J5/66/2023, rendered on 27^th July 2023, the Supreme Court upheld the constitutionality of Section 34(1) of Act 804, which allows freezing orders to be confirmed ex-parte, rejecting the Applicant's argument that he was entitled to a hearing before the confirmation. The court therefore held that the rules permit the making of ex-parte motions under special circumstances such as in case of urgency.

Analysis: Ex Parte vs. On Notice
1. Rationale for Ex-Parte Application:

Urgency and Risk of Dissipation: Section 34(2)(g) of Act 804 explicitly requires the Court to be satisfied that there is a “risk that the property may be dissipated, or removed from the country.” An ex-parte application is appropriate in such cases to prevent the property owner from transferring or concealing assets before the order is granted. This aligns with the purpose of Act 804 to combat economic and organized crime, where swift action is often critical.

Statutory Authorization: The explicit provision in Section 34(1) for ex-parte applications indicates legislative intent to prioritize speed and effectiveness in preserving assets suspected to be proceeds of crime or intended for serious offences.

Safeguards: Section 35(2) requires notification of the affected party “within seven days” after the order is granted, and Section 39 allows for a review of the freezing order, ensuring that the affected party’s right to a fair hearing is not permanently denied.

2. Rationale for Application on Notice:

Constitutional Fairness: The 1992 Constitution’s emphasis on fair hearing (Article 19) and protection of property rights (Article 18) suggests that, where possible, affected parties should be given notice to prevent undue interference with their rights. An application on notice allows the property owner to contest the order before it is granted, aligning with natural justice principles.

Risk of Abuse: Ex-parte orders, if misused, could lead to arbitrary deprivation of property, especially if the suspicion of criminality is not well-founded. Ghanaian courts, as seen in cases like Amidu v. Attorney-General [2013-2014] SCGLR 1, have stressed the need for administrative actions to comply with constitutional protections.

Non-Urgent Cases: If there is no immediate risk of dissipation (e.g., the property is immovable or already secured), an application on-notice may be more appropriate to ensure transparency and fairness.

3. Balancing the Considerations:
The choice between ex-parte and on-notice depends on the circumstances of each case. If there is credible evidence of a high risk of disposal, dissipation or removal (e.g., liquid assets, offshore accounts, or a suspect likely to flee), an ex-parte application is more appropriate and aligns with Section 34(1) and the broader objectives of Act 804.

In cases where the risk is low or the property is secure (e.g., registered land or assets under state control), an application on notice may better comply with constitutional principles of fairness, avoiding unnecessary prejudice to the property owner.

Courts have discretion under Section 34(1) to assess the necessity to issue a freezing order. Even in ex-parte applications, the Court must be satisfied of the grounds under Section 35(1), and subsequent review mechanisms (Section 39) mitigate potential unfairness.

Conclusion
Under Section 34(1) of Act 804, applying for a freezing order ex-parte is generally more appropriate when there is a genuine risk of disposal, dissipation or removal of the property, as this aligns with the statutory provision and the purpose of combating economic and organized crime. The 1992 Constitution’s emphasis on fair hearing and property rights as safeguarded by the requirement for prompt notification (Section 35(2)) and the right to review (Section 39). However, in cases where there is no urgent risk, an application on-notice may be preferable to uphold constitutional principles of fairness and transparency. The decision should be guided by the specific facts, balancing the need to preserve assets with the rights of the property owner.