Disposal Of Property: The Court’s Role And Claim Process

Aug 04, 2023

Disposal of Property

Properties are often seized by the authorities for the purposes of criminal investigations and prosecution. At the end of a criminal proceeding, a Disposal Inquiry will be convened for the Court to decide on how such properties are to be disposed of.

If property has been seized from an Accused person by a law enforcement officer (see Parties Involved in the Criminal Justice System), the law enforcement officer must make a report of the seizure to the Court at the earlier of the following times:

• when the law enforcement officer considers that the property is not relevant for the purposes of any investigation, inquiry, trial or other proceeding; or
• one year after the date of seizure of the property.

Upon receiving the relevant report, the Court must make the relevant disposal order. The following principles govern the Court’s discretion in fashioning the appropriate disposal order:

• whether the property is owned by the offender and, if not, the degree of the owner’s complicity (i.e., whether he connived, participated, or was wilfully blind to the commission of the offence);
• whether the owner of the property benefited from the commission of the offence;
• the value of the property and whether forfeiture is proportionate to the gravity of the offence its corresponding maximum penalty;
• need for general deterrence;
• extent of use of property in commission of offence;
• whether the claimant of the property could reasonably have taken any preventive measure to prevent the offence.

To illustrate the point, where a ceremonial sword was used by an offender to slash an Alleged Victim, an order for it to be destroyed/forfeited would normally be ordered by the Court. In other cases, the seized property could be returned to the person lawfully entitled to the possession of it.

What happens when the person entitled to property is known?

A person who wishes to claim seized property must prove their interest in it, and, as a pre-condition, must be lawfully entitled to the possession of the property. The Court must cause a notice to be served on that person instructing him/her to take delivery of the property. If the person fails to collect the property within 1 month from the date on which he/she is instructed by the Court to do so, the Court may cause the property to be sold. However, the net proceeds of such a sale must be paid on demand to the person entitled.

What happens when the person entitled to property is unknown?

If the person entitled to the property is unknown or cannot be found, the Court may direct that it be detained in police custody. The Commissioner of Police must then issue a public notice requiring any person who has a claim to the property to appear before him and establish his claim within 6 months from the date of the public notice.

However, if the property is of no appreciable value or where its value is so small so as to (a) make its sale impracticable and (b) make the keeping of it in police custody unreasonably expensive or inconvenient, the Court may order the property to be destroyed.

The Value of Defence Counsel in Disposal Inquiries

A person who has had property seized from him/her by law enforcement authorities would understandably be anxious for it to be returned to him/her. This is all the more so if the value of the seized property is sizable. Criminal lawyers would be able to advise such a person as to the steps needed to establish his/her claim to the property.