An Accra High Court has revised its stance and agreed to the terms of Ato Essien’s GH90 million payback agreement.
The settlement agreement reached by state prosecutors and the troubled founder of the now-defunct Capital Bank, Ato Essien, was rejected last week by the court presided over by Justice Eric Kyei Baffour.
The agreement was rejected by Justice of Appeal Eric Kyei Baffour, who was sitting as an additional High Court Judge, stating that the amount promised to be paid was insufficient. The case was then postponed until December 13 so that the parties could address the court regarding the legality of the agreement’s terms.
However, Deputy Attorney General Alfred Tuah Yeboah claimed in court on Tuesday that the funds were state funds since the state had taken over the bankrupt Capital Bank and used state funds to refund the depositors’ money.
Ato Essien’s attorney also defended the agreement, claiming that in addition to the GHC 56 million that Ato Essien admitted to have stolen, the state also managed to get an additional GHC 30 million.
After considering the parties’ arguments, Justice Eric Kyei Baffour approved the reparation agreement. Since then, the accused has admitted guilt to the allegations of theft and money laundering.
For their role in the demise of Capital Bank, Ato Essien and two other people have been on trial for the last three years. Additionally, the prosecution charged Mr. Essien with stealing GH 620 million in liquidity support provided by the Bank of Ghana to keep the bank afloat.
When coming to the agreement, the prosecution and the defendant informed the court that they were covered under Section 35 of the Courts Act, 1993, Act 459. (as amended). The clause reads as follows:
“(1) 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.”
Given that the funds in question belonged to shareholders and depositors of the deceased bank, not the state as a whole, Justice Kyei Baffour expressed skepticism regarding the application of section 35 of the Courts Act to the current case.
According to the proposed agreement, Mr. Essien committed to provide the state GH90 million in total—GH30 million now and GH60 million over the course of several payments.
The judge also believed that the timing of the deal’s announcement was poor because he was about to make his ruling.
Together with the former managing director of MC Management Service, Tetteh Nettey, which is also controlled by Mr. Ato Essien, and Rev. Fitzgerald Odonkor, a former managing director of the Bank, Mr. Essien is facing trial.
Together, they faced 23 charges of criminal activity, including conspiracy to commit theft and theft, in relation to the 2017 collapse of Capital Bank.
However, they entered a not guilty plea and insisted on their innocence throughout the trial. Mr. Ato Essien also insisted that he received Board permission for all of his acts at all relevant times.
Section 35 of the Courts Act, 1993 (Act 459)
(1) 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.
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(2) Where an accused makes an offer of compensation or restitution and reparation, the prosecutor shall consider if the offer is acceptable to the prosecution.
(3) If the offer is not acceptable to the prosecution the case before the Court shall proceed.
(4) 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.
(5) 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.
(6) An order of the Court under subsection (5) shall be subject to such conditions as the Court may direct.
(7) 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. [As substituted by the Courts (Amendment) Act, 2002 (Act 620), s.4]<blockquote class="twitter-tweet"><p lang="en" dir="ltr">Court agrees Ato Essien’s GH¢90m repayment terms <a href="https://t.co/XZCSa0jiwU">https://t.co/XZCSa0jiwU</a></p>— TV Africa GH (@tvafricagh) <a href="https://twitter.com/tvafricagh/status/1602613715014230017?ref_src=twsrc%5Etfw">December 13, 2022</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
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