"Greedy" Ato Essien deserves to be in jail for 15 years - Judge

The founder of the defunct Capital Bank, William Ato Essien, has been sentenced to 15 years imprisonment with hard labour by the Accra High Court for stealing over GH¢90 million of the bank’s money.

Essien, thus, becomes the first banking executive to serve a jail term following the massive banking sector clean-up in 2017 that led to the collapse of seven indigenous banks, including Capital Bank.

Clad in a brown ‘kaftan’, and wearing a nose mask, Essien stood, looked at the judge in a solemn manner as his marching orders to prison were read to him on Thursday (Oct 12, 2023).

“Sheer greed”

In a ruling, the court, presided over by Justice Eric Kyei Baffour, held that Essien exploited Capital Bank to his advantage and dissipated the funds of the bank without taking into consideration the depositors of the bank.

“The convict demonstrated sheer greed in his desire to own another bank besides Capital Bank Ltd and left no stone unturned through subterfuge and deceit with pure criminal intent to set up Sovereign Bank Ltd. 

“Being in a position of trust, he was expected to have demonstrated a sense of responsibility and true fidelity. He had no cause, whatsoever, to steal such gargantuan sums of money,” the presiding judge held.

Justice Kyei Baffour, a Justice of the Court of Appeal, with additional responsibility as a High Court judge, said he also decided to impose the sentence on Essien due to the hardship people encountered during the collapse of Capital Bank, a situation which continued to leave many people in destitute and suffering.

“I cannot fail to take into account the trail of pain and tears that had been occasioned by the criminal conduct of the convict (Essien). Countless number of innocent citizens lost their jobs and are still job hunting. The nation had to spend huge sums of money to bail the creditors and depositors,” Justice Kyei Baffour ruled.

On December 13, 2022, Essien pleaded guilty to 16 counts of stealing and money laundering when he admitted to dissipating over GH¢90 million of liquidity support extended to Capital Bank by the Bank of Ghana (BoG).

He was accordingly convicted by the court, but avoided a custodial sentence when he reached an agreement with the Attorney-General (A-G) to repay the GH¢90 million to the state as reparation and restitution. 

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

Essien paid GH¢30 million in December last year, and per the agreement as adopted by the court was supposed to pay the remaining GH¢60 million in three GH¢20 million, installments, with the first payment on or before April 28, 2023; second payment on or before August 31, 2023, and the last tranche on or before December 15, 2023.

Justice Kyei Baffour, after giving the green light for the agreement to be effective, ruled that Essien risked going to jail if he failed to abide by the terms as stipulated by Section 35 of Act 459.

It can therefore be said that Essien sent himself to prison when he failed to meet the deadlines to pay the money per the agreed terms, forcing the A-G to file an application under the same Section 35 of Act 459 for the court to impose the custodial sentence on him.

As of Thursday (Oct 12, 2023) when he was jailed, Essien had paid only GH¢7 million out of a possible GH¢40 million, missing the instalment payments for April 28 and August 31 this year per the agreement.

In total, Essien had paid GH¢37 million of GH¢90 million, with an amount of GH¢53 million remaining to be paid.

Custodial sentence 

Making a case for imposition of custodial sentence, a Senior State Attorney, Joshua Sackey, argued that in spite of several opportunities granted Essien by the court to pay the money, he had failed to abide by the terms of the agreement.

“The court should, therefore, pass custodial sentence on the convict (Essien) since his conduct is a clear violation of Section 35(7) of Act 459,” the Senior State Attorney submitted.

In response, counsel for Essien, Baffour Gyaewu Ashie, opposed the application, with a case that his client had demonstrated clear intention to pay the money.

According to counsel, it was based on Essien’s willingness to pay the money that was why he immediately paid GH¢30 million in December last year.

Counsel further added that Essien was making all efforts to pay the money but circumstances beyond his control had made it extremely difficult for him to pay.

He said the convict had initiated steps to sell a water treatment plant at Prampram valued at $10 million, only to later realise that a different entity had won a judgment debt in relation to that property. 

“The convict is not working, his passport had been seized, making it very difficult for him to raise the money in and outside Ghana,” counsel added.

He pleaded with the court to give his client up to six months to raise the money and pay the outstanding amount.

Ample time

Ruling on the A-G’s application to impose custodial sentence on the convict, Justice Kyei Baffour held that Essien had been given enough grace period to meet his obligations, but he had squandered the opportunity, citing numerous excuses.

For instance, the court said after he failed to meet the April 28 deadline and the A-G filed the application to impose custodial sentence in May, this year, the court accepted a plea by Essien to be allowed to sell some properties, including the one at Prampram, to offset the debt.

Justice Kyei Baffour held that evidence on record showed that Essien knew that the property at Prampram was a subject of litigation, yet he went ahead and told the court that he was trying to sell it to meet his obligation.

It was the view of the court that Essien was not ready to pay the money and, therefore, it was imperative for him to serve the jail term as stipulated by Section 35 of Act 459.

“The ample time afforded the convict (Essien) has only showed that he is not in any position to pay the monies. In fact, the court in its unusual overindulgence of the Convict/Respondent failed to sit on the 27th of July, 2023 hoping that the two months’ vacation that followed being August and September, the convict , if he had the means to pay the monies, would have received monies to pay the Republic,” Justice Kyei Baffour added.

Sentence

After granting the A-G’s application for a custodial sentence and listening to a plea of mitigation from Essien’s lawyer, Justice Kyei Baffour imposed various jail terms on the 16 counts of stealing, conspiracy to steal and money laundering which Essien pleaded guilty to.

The highest jail term was 15 years with the lowest being a year.

The court held that Essien will serve all the sentences concurrently, meaning as he served the highest term of 15 years, he will also be serving the other jail terms. 

However, Justice Kyei Baffour said Essien would be able to regain his freedom if he paid the GH¢53 million outstanding amount.

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