Ato Essien
Founder and former Chief Executive Officer of defunct Capital Bank, William Ato Essien’s hopes of staying out of prison is hanging by a thread as an Accra High Court yesterday dismissed his application seeking for leave to renegotiate an agreement he had with the Office of the Attorney General last year, which kept him out of jail.
The application filed by his lawyers was seeking to stop the court from proceeding to consider an application by the prosecution to have the court impose a custodial sentence on him for failing to pay an amount of GH¢20 million, which resulted in the entire GH¢60 million becoming due for payment.
The court, however, adjourned the case to May 17, 2023, which gives Mr. Essien a crucial one week which could be his last few days out of jail as the court considers the prosecution’s motion to impose a custodial sentence on him.
Mr. Essien was convicted by the court on March 13, 2023, after he pleaded guilty to stealing from the defunct bank, in an agreement with the Office of the Attorney General to repay GH¢90 million and stay out of prison.
The terms of the agreement dictated that the convict was to pay an initial GH¢30 million and GH¢20 by April 28, 2023, a failure for which the entire GH¢60 million becomes due and his inability to pay the entire outstanding amount would result in him being sent to jail.
He only managed to pay GH¢4 million as of May 10, 2023, bringing the total to GH¢34 million.
His counsel, Thaddeus Sory, therefore, filed an application before court asking it to stay any proceedings which will result in it imposing a custodial sentence on the convict and also sought leave to renegotiate terms of the agreement with the Office of the Attorney General.
Moving the motion, Mr. Sory said the convict conceded to the terms of Section 35(7) of the Courts Act which stipulates that he should be jailed for failing to pay the money agreed upon but urged the court that having regards to the facts of the present circumstances, an application of the said provision in its literal terms will lead to an absurdity and will not serve the purpose of the statute at all.
“The undoubted purpose of the statute as we all know is to allow the situation where the republic can make recovery where it has suffered loss, and that is the spirit that animated the settlement between the republic and the applicant,” he noted.
He argued that Mr. Essien demonstrated good faith by making payment of one-third of the settlement amount and has proved genuine difficulties that made it quite impossible to meet the timelines he committed to making the payments.
Mr. Sory also argued that the court has inherent power in every situation to suspend the execution of its orders if there is good reason to, adding that literal interpretation of the statute “will completely defeat the purpose of the statue, be disincentive to others who want to take advantage of this provision and be completely counter productive.”
The application was opposed by the Deputy Attorney General, Alfred Tuah-Yeboah, who argued that there is no ambiguity in Section 35(7) of the Courts Act and under the said provision, the court does not even have the discretion to vary the original terms in the agreement.
He said the entire Section 35 of the Act is a “special grace or dispensation given to an accused person and for that matter an accused person must not deviate or resile from the agreed terms.”
Mr. Tuah-Yeboah told the court that the convict has breached his own agreement and the court granting him leave to renegotiate the terms will send a dangerous signal to other persons that “they can come to the honourable court, agree on specific terms, breach those terms and come back to the court for an extension.”
“The state is not interested in renegotiating with the convict. It serves no useful purpose to stay proceedings to undertake an activity that the state is not willing to do,” the Deputy Attorney General added.
The court, presided over by Justice Eric Kyei Baffour, a Court of Appeal judge sitting as an additional High Court judge, dismissed the application for having no merit and adjourned that of the prosecution to May 17, 2023 for consideration.
BY Gibril Abdul Razak