Information gathered by this paper indicates that the Court of Appeal granted an adjournment of the case involving the Founder of now-defunct Capital bank, William Ato Essien and two others, to allow the parties (Attorney General and the Accuses persons) to discuss the exact amount to be paid and to address the court.
Documents available to this paper stated that lawyers of William Ato Essien had written to the Attorney General proposing for terms of settlement.
The said letter dated 5th October 2022, was proposed to bring the matter to closure.
The Accused, William Ato Essien in the letter acknowledged the total sum of Fifty-Seven Million, Five Hundred Thousand Ghana cedis (GHS57,500,000.00) which is the sum disputed, on the ground that it has not been established from the evidence before court.
The 57,500.00 consists of the outstanding sum of Twenty-Seven Million Five Hundred Thousand Ghana cedis (GHS27,500,000.00) which relates to the business promotion payments and also the sum of thirty million Ghana cedis (30,000,000.00).
According to his lawyers, for purpose of redeeming the GHS70,000,000.00, their client proposes to make an initial payment of Twenty-One Million Ghana cedis (GHS21,000,000.00) representing thirty percent of the 70,000,000.00 before the 12th day of November 2022 with the remaining sum of Forty-Nine Million Ghana cedis to be paid over three equal instalments, half yearly from the date of the first payment.
The Attorney General haven taken delivery of the said letter, and appearing in Court on December 1, 2022, drew the attention of the Court to the fact that the State has reached a settlement with the accused, based on Section 35 of the Courts Act 1993 (Act 459).
Section 35 of the Courts Act 1993 (Act 459) is entitled “Offer of Compensation or Restitution”. It states: “Where a person is charged with an offence before the high court or a regional tribunal, the commission of which has caused economic loss, harm or damage to the state or any state agency, the accused may inform the prosecutor whether the accused admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.”
Subsection two states that: “Where an accused makes an offer of compensation or restitution and reparation, the prosecutor shall consider if the offer is acceptable to the prosecution.” Subsection three says: “If the offer is not acceptable to the prosecution the case before the court shall proceed.”
The fourth subsection provides that: “If the offer is acceptable to the prosecution, the prosecutor shall, in the presence of the accused, inform the court which shall consider if the offer of compensation or restitution and reparation is satisfactory.”
Subsection five reads as follows: “Where the court considers the offer to be satisfactory, the court shall accept a plea of guilty from the accused and convict the accused on his own plea, and in lieu of passing sentence on the accused, make an order for the accused to pay compensation or make restitution and reparation.” And the sixth subsection provides that: “An order of the court under subsection (5) shall be subject to such conditions as the court may direct.”
The seventh and last subsection under Section 35 states: “Where a person convicted under this section defaults in the payment of any money required of the person under this section or fails to fulfil any condition imposed by the court under subsection (6), any amount outstanding shall become due and payable and upon failure to make the payment, the court shall proceed to pass a custodial sentence on the accused.”
Meanwhile, after hearing the deputy attorney general, the Court presided over by Justice Eric Kyei Baffour ruled: “The money William Ato Essien and the two other accused persons are alleged to have stolen does not belong to the state,” and that it “belongs to the bank and depositors of the bank”.
The judge argued that the money does not belong to the state or an agency of the state, and therefore no loss or harm has been caused to the state.
He said: “It is my candid opinion that Section 35 is not applicable to the case for the first accused person to enter into a settlement with the prosecution,” the judge said.
But the lawyer for the first accused, Baffour Gyau Ashia Bonsu, in his address to the court after it raised its concerns, noted that the Bank of Ghana (BoG) is a state institution, the Bank is the complainant in the case and Capital Bank is currently in lawful receivership under the auspices of the BoG.
However, after hearing the parties the court ruled that: “The registrar of the court drew my attention to a document filed for an agreement reached between Ato Essien and the state. I find it apt to go through the whole of Section 35 of the Courts Act that the agreement purports to rely upon. The terms of settlement are to the effect that the accused has pleaded guilty. That the first accused person agrees to pay GHC90 million as restitution within one year and has agreed to pay GHC30 million on or before 1 December 2022 and the remaining GHC60 million will be paid within one year. First accused person indicated that he accepts the plea of guilty to all the charges levelled against him. I will grant a short adjournment to allow the parties to discuss the exact amount to be paid and to address the court on whether Section 35 is applicable in this case. Case adjourned to Tuesday 13 December 2022.”
