Court dismisses Ato Essien’s renegotiation terms

William Ato Essien, the Founder of the defunct Capital Bank, has failed to convince the High Court in Accra to allow him to renegotiate the terms of a GH¢60 million restitution to the state.

The court, presided over by Justice Eric Kyei Baffour, a Justice of the Court of Appeal, sitting as a High Court judge, yesterday dismissed a motion by Essien seeking to renegotiate the terms of the settlement, as well as for the court to suspend any action that could result in his imprisonment.

Delivering his ruling, Justice Kyei Baffour held that the motion by the convict had no merit and subsequently dismissed it.

Agreement

On December 13, last year, Essien pleaded guilty to 16 counts of stealing and money laundering and was accordingly convicted of stealing and dissipating over GH¢90 million of liquidity support given to the Capital Bank by the Bank of Ghana (BoG).

However, the convict avoided a custodial sentence after the court accepted an agreement between him and the Attorney-General (A-G) for him (Essien) to pay the GH¢90 million as restitution to the state.

The agreement was pursuant to Section 35 of the Courts Act, 1993 (Act 459), which allows accused persons standing trial for causing financial loss to the state to pay the money and possibly avoid a custodial sentence.

Essien paid GH¢30 million of the amount and per the agreement as adopted by the court, was ordered to pay the remaining GH¢60 million in three installments with the first instalment on or before April 28, 2023, the second on or before August 31, 2023, and the last instalment on or before December 15, 2023.

In conformity with Section 35(7) of Act 459, Justice Kyei Baffour ruled that Essien would be imprisoned if he missed any of the payment schedules.

The convict missed the April 28, deadline, a situation that necessitated the A-G to file a motion urging the court to jail him.

Part payment

In court yesterday, a Deputy A-G, Alfred Tuah-Yeboah, informed the court that instead of paying the GH¢20 million on April 28, Essien rather paid GH¢4 million on Monday, May 10.

Counsel for Essien, Thaddeus Sory, also assured the court that his client had a cheque of GH¢1million ready to give to the state to bring the payment to GH¢5 million.

The motion by the A-G seeking the imprisonment of Essien, which was scheduled for yesterday, was not heard by the court because the convict was yet to serve the A-G with his affidavit in opposition to the motion.

The court, therefore, decided to rather hear a motion by Essien urging it to suspend any proceedings that could lead to his imprisonment and also allow him to renegotiate the terms of the agreement.

Motion

Moving the motion, Mr Sory argued that his client had demonstrated good faith to pay the money but was unable to meet the deadlines due to genuine difficulties.

Counsel argued that jailing his client would be counterproductive and further defeat the purpose of Section 35 of Act 459 which was for the state to recover the money.

He, therefore, urged the court not to adopt a literal approach to interpret Section 35 (7) of Act 459 and jail his client but to adopt a purposive approach to ensure that the money was recovered.  

“There is a commitment to pay and that is an indication that we will achieve the purpose of Section 35 of Act 459,” counsel argued.

In response, Mr Tuah-Yeboah opposed the motion and urged the court to dismiss it, describing it as one that would set a dangerous precedent in the application of Section 35 of Act 459.

In his ruling, Justice Kyei Baffour disagreed with Mr Sory and held that the words of Section 35 were clear and concise and did not require any sort of purposive interpretation.

Hearing continues on May 17, 2023 for the court to rule an application by the A-G for the court to imprison Essien over his failure to meet the payment deadline.

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