GH¢90m Restitution Deal: Court Throws Out Ato Essien’s Application To Renegotiate

An Accra High Court has rejected an application by the founder of defunct Capital Bank, William Ato Essien, asking for an opportunity to renegotiate a restitution deal with the Attorney General.

This comes after the Attorney General filed a motion seeking the court to imprison Mr Essien for breaching the terms of an agreement that saw him escape jail term and commit to refunding GH¢90 to the state.

Mr Essien was required to pay GH¢20 million out of a GH¢60million restitution to the state by April 28, 2023, but he failed.

However, in court today (May 11), Mr Essien’s lawyer, Thaddeus Sory, argued that any custodial sentence imposed on his client would defeat the purpose of section 35(7) of the Courts Act, which formed the basis upon which the agreement was signed.

“Let’s take a pragmatic look at this. We are urging section 10(4) of the interpretation act, which requires the court to read every statute and take into account the purpose of the statute in interpreting an Act.

“We have attached an agreement which shows the inflows that were to come in.

“We also want to draw the court’s attention to the fact that the instant proceedings are proceedings to execute the judgement of the court which is intended to execute the judgement of the court which convicted the accused person.

“The court has inherent power in any situation to suspend execution of its powers if there is good reason to. We are drawing the court’s attention to Article 126(4) of the 1992 constitution. My lord has residual power in so far as the final orders are concerned. You have the power to issue further directions,” Mr Sory stated.

However, Deputy Attorney General Alfred Tuah Yeboah opposed the application on the grounds that the section relied upon does not in any way give discretion to the court to vary the terms of the agreement, nor is the state interested in renegotiating the deal.

“An accused person must respect the sanctity of his own agreement. That is the spirit behind section 35. In this particular case, the convict has breached his own agreement.

“He has come to the end of the road. Accordingly, the invitation to this court to stay proceedings and grant leave to the convict to renegotiate with the prosecution is a dangerous invitation and must be declined.

“The grant of this application will rather send a dangerous signal to other persons that they can come to the 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 accused person. It will therefore serve no useful purpose in staying proceedings for the state to undertake an activity it is not willing to do,” he stated.

The presiding judge, Justice Eric Kyei Baffuor, dismissed the application saying it was urging the court to interpret the law in an unusual manner.

“First, being a convict before the court, I think mens rea is a requirement in a criminal trial before conviction. The stage at which we are is one of a consideration for the imposition of a custodial sentence and I do not think that the claim for the court to find the mens rea at this stage is well made. We have gone beyond that stage.

“I have also been called upon to apply or interpret section 35 of Act 459, purposively but not literally.

“Purposivism is not a blanket cheque to the judge to read into and import into the text of the statutory provision any imaginary or fanciful strained interpretation.

“I, therefore, fail to see the invitation by learned counsel in respect of the approach to the proper construction of section 35.

“I do not find it necessary to exhaustively respond to the issue of the amount paid by the convict and what should happen. I will deal with that in the motion of the Republic.”

The case has been adjourned to May 17 to deal with the imposition of a custodial sentence.

Background

On December 13, 2022, Mr Ato Essien escaped jail after the court had accepted his agreement with the state to pay GH¢90 million under Section 35 of the Courts Act, which allows an accused to plead guilty and be allowed to pay restitution and escape a jail term.

Before the court’s judgement, he had paid GH¢30 million of the GH¢90 million. It was the balance of the GH¢60 million sum that the court ordered him to pay in three instalments, GH¢20 million each, on April 28, August 31, and December 15, 2023.

The court said, should the convict miss any of the deadlines by an hour, he should be brought to the court for a custodial sentence to be imposed.