Why Ato Essien wants to refund GH¢27.5 million of collapsed Capital Bank's money

The founder of the defunct Capital Bank, William Ato Essien, who is on trial with three others for allegedly collapsing the bank, is willing to refund GH¢27.5 million back to the state, his lawyers have informed the Accra High Court.

The amount is part of a GH¢620 million liquidity support given to Capital Bank by the Bank of Ghana (BoG) between June 2015 and November 2016.

It is the case of the prosecution that Essien, and the other accused persons engaged in various illegal acts that led to the dissipation of the GH¢620 million liquidity support.

With regard to the GH¢27.5 million, the prosecution has accused Essien of carrying it in jute bags which he distributed to some individuals for business promotion purposes, reports Graphic Online's Emmanuel Ebo Hawkson.

Essien; the Managing Director of the bank, Fitzgerald Odonkor, and two other persons — Tettey Nettey, the Managing Director of MC Management Services, a company said to be owned by Essien, and Kate Quartey-Papafio, a businesswoman and Managing Director of Reroy Cables Company Limited are on trial on 26 counts.

They have pleaded not guilty to various counts of stealing, abetment to stealing, conspiracy to steal and money laundering.

“The first accused (Essien) in a statement to the Economic and Organised Crime Office (EOCO) indicated that he had taken possession of the GH¢27.5 million as business promotion.”

Refund

Graphic Online's Ebo Hawkson reported that Counsel for Essien, Mr Baffour Gyewu Bonsu, told the Accra High Court on Thursday (May 21, 2020) that his client was in possession of the GH¢27.5 million and was willing to refund it to the state.

“The first accused (Essien) in a statement to the Economic and Organised Crime Office (EOCO) indicated that he had taken possession of the GH¢c27.5 million as business promotion. In the statement, he said he was willing and ready to return that money to the state,” counsel said.

He said his client had already refunded close to GH¢1.4million to the state, while EOCO had also taken possession of 19 cars Essien had cleared from the port in furtherance of the payment of the amount.

Counsel submitted that the legal team of Essien had initiated discussion with the prosecution with regard to the refund in line with Section 35 of the Courts Act, 1993 (Act 459).

The discussions, he said, were in respect to the charges leveled against Essien over the GH¢27.5 million.

“It is our humble prayer that the court grants us time to be able to conclude such discussions with the prosecution,” counsel argued.

Prosecution’s response

In response, the prosecutor, Ms Mariana Appiah Opare, a Chief State Attorney, said lawyers for Essien had informed the prosecution about the accused person's willingness to refund the money in line with Section 35 of Act 459.

She said the lawyers for Essien must present a proposal in writing to the Director of Public Prosecutions (DPP) for the DPP to consider.

“Whether or not the offer is acceptable to the prosecution, we will come and inform the court. This process normally takes time,” the Chief State Attorney submitted.

One month adjournment

After receiving the acceptance from both the defence lawyers and the prosecution, the court, presided over by Justice Eric Kyei Baffour, a Justice of the Court of Appeal with additional responsibility as a High Court judge, gave the two sides one month to conclude their discussions.

He, therefore, adjourned the trial to June 18, 2020.

On the next adjourned date, the republic shall report to the court if the offer made is acceptable or not for which the court will deal with it in the manner prescribed under Section 35 of Act 459.

Related: Capital Bank collapse: Ato Essien willing to refund GH¢27.5million to the state

Escape prison

The decision by Essien to refund the GH¢27.5miilion to the state is a legal move under Section 35 of Act 459 meant to escape prison sentence.

He has ostensibly pleaded guilty to taking possession of the amount and is willing to correct his wrong for a lesser punishment.

Under Section 35 (1) of Act 459, a person accused of an offence which had caused “economic loss, harm or damage to the state or state agency may inform the prosecutor whether the accused admits and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.

Section 35 (2) of Act 459 states that when an accused makes an offer of restitution, the prosecutor shall consider whether the offer is acceptable or not and inform the court.

In the event the offer is not acceptable to the prosecution, the trial shall continue, but if the offer is acceptable, the accused person will plead guilty and the court will convict him on his own plea.

When passing sentence, the court will then order the accused to pay the restitution based on conditions set by the court.

However, per Section 35 (7) of Act 459, if the accused person fails to fulfill the conditions set by the court for the payment of the restitution, the court shall pass a custodial sentence on him.

Background

The trial of Essien, Odonkor, Nettey and Quartey Papafio was the first criminal case in relation to the banking crisis that rocked the country in 2017 and 2018.
Capital Bank was one of the first banks that collapsed after a massive clean-up of financial institutions by the Bank of Ghana (BoG) started in 2017.

On August 14, 2017, its licence and that of UT Bank were revoked by the BoG, after it had declared them insolvent.

The BoG allowed the state-owned bank, GCB Bank, to acquire the two banks in order to protect depositors’ funds and also enable them to stay afloat.

The hurricane that swept through the banking sector due to the collapse of the two banks further heightened in August 2018 when the central bank collapsed five other indigenous banks and merged them into one entity, known as Consolidated Bank, Ghana.

Writer’s email: emma.hawskon@graphic.com.gh