26 Aug Republic V. High Court, Financial and Economic Crime Division (Court 2), Accra Ex Parte Malik Ibrahim, Civil Motion No. J5/66/2023 Delivered by the Supreme Court on 27th July 2023
“In the circumstances, we are of the firm opinion that the lawmaker did not intend to give authority to EOCO to investigate stealing of a private person’s property. It must always be remembered that the investigating mandate of EOCO was carved out of the general mandate of the Police Service to investigate all crimes so it is not as if the lack of mandate by the Interested Party would result in a functional vacuum.”
Facts
The case arose from a dispute between the Applicant and his brother, the owner of a petroleum distribution company, where the Applicant previously served as vice chairman. The brother accused the Applicant of misappropriating company funds to establish a competing business and petitioned the Economic and Organized Crime Office (EOCO) to investigate the matter.
Following its investigations, EOCO identified bank accounts and properties suspected to have been acquired with stolen funds. Acting on these findings, EOCO issued an administrative freezing order, which was later confirmed by an order of the High Court. The Applicant invoked the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the decision of the High Court.
The Parties Case
The Applicant contended that under the Economic and Organized Crime Office Act, 2010 (Act 804), EOCO is only mandated to investigate cases of stealing involving the state or an entity in which the state has an interest. He, therefore, contended that EOCO had no authority to investigate an allegation of stealing from a wholly private entity.
EOCO, on the other hand, argued that Act 804 empowered it to investigate “serious offences,” and stealing is one of such serious offences.
Issue for Determination
Whether or not EOCO is mandated by Act 804 to investigate allegations of stealing between private parties.
Holding
The Supreme Court stated that EOCO’s investigative powers are limited to the specific offences outlined in Act 804, which makes no explicit mention of stealing. The relevant provisions of Act 804 provide as follows:
“3 The functions of the Office [EOCO] are to
- investigate and on the authority of the Attorney-General prosecute serious offences that involve
- financial or economic loss to the Republic or any State entity or institution in which the State has financial interest’
- money laundering
- human trafficking,
- prohibited cyber activity,
- tax fraud, and
- other serious offences;
Section 74 defined serious offences as follows:
“serious offence” includes
(a) participation in an organised criminal group, terrorism and terrorist financing, money laundering, human trafficking, people smuggling, sexual exploitation, illicit trafficking in narcotic drugs, illicit arms trafficking, trafficking in stolen and other goods, corruption and bribery, serious fraud, counterfeiting and piracy of products, smuggling, extortion, forgery, insider trading and market manipulation,
(b) murder, grievous bodily harm, armed robbery or theft where there are predicate offences for a serious offence, and
(c) any other similar offence or related prohibited activity punishable with imprisonment for a period of not less than twelve months;”
The Apex court reasoned that though section 74 outlined the offences that qualify as serious offences, it does not mention stealing.
The Court further examined the words “any other similar offence or related prohibited activity punishable with imprisonment for a period of not less than twelve months” to determine if stealing of private property may come under it.
The Court held that of all the specific offences stated under Act 804, stealing of money is similar to causing financial or economic loss. However, the condition on which the EOCO may investigate financial or economic loss is that the victim must be the state, a state institution or an entity in which the state has an interest.
In the present circumstance however, the offence involved the stealing of a private person’s property, and therefore EOCO did not have authority to investigate the matter.
Conclusion
The Supreme Court concluded that EOCO acted ultra vires, exceeding the scope of its statutory mandate. Consequently, the Court found that the High Court erred in confirming the freezing order on the Applicant’s assets. Accordingly, the Supreme Court granted an order of certiorari, quashing the decision of the High Court.
Insight: This ruling serves as a landmark affirmation of the principle that law enforcement agencies must operate strictly within the legal authority conferred upon them. It further reinforces the constitutional protection of property rights, ensuring that state institutions cannot arbitrarily interfere with private ownership without proper legal justification.
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AUTHOR:
Jennifer Melody Fynn Asiam
Legal Associate