The Court of Appeal has granted bail to the Founder of the defunct Capital Bank, William Ato Essien, in the sum of GHc10 million with two sureties pending an appeal against his 15 years custodial sentence.
The panel of three presided over by Justice Anthony Oppong said the convict applicant is to deposit his passport a the registry of the court.
Lawyers of the convict went to the Court of Appeal after the High Court had dismissed his request earlier in February.
Ato Essien was sentenced to serve a 15-year custodial sentence after failing to pay an outstanding balance of GHc53 million to the State out of the GHc90 million
Prior to his sentenced he had paid GHc37 million of the sum, he has reneged on paying the remaining balance which have “fallen due.”
Per the agreement Ato Essien had with the republic after agreeing to in December 13, 2023, he was to pay GHc60 in three installments.
On December 13, 2022, Ato Essien, Chief Executive Officer of defunct Capital Bank, shed tears as the High Court re-took his plea to make effective a plea bargain agreement.
He pleaded guilty to 16 counts of Conspiracy to steal, stealing, and money laundering.
The court, presided over by Justice Eric Kyei Baffour, a Court of Appeal Judge, sitting with additional responsibility as a High Court Judge convicted him on his own plea.
The court accepted the agreement reached between Essien and the State, which binds him to refund GHS90, but had already paid GHc30 million leaving a balance of GHc60 million to be paid in three installments.
However on May 2, this year, after failing to pay the first GHc20 million installment by the April 28 deadline, the State filed an application for him to be committed to prison.
In court on Thursday, October 12, 2023, it came to light that Ato Essien had only so far paid GHc37 million out of the total GHc90 million leaving an outstanding balance of GHc53 million.
Justice Kyei Baffour while sentencing him after the the State had moved the application for custodial sentence to be imposed on him and same opposed by his lawyers, he took into consideration nature of crime, the circumstances of the crime and the impact on society.
The Court said the acts committed by Ato Essien was “deliberate and calculated” one adding that as the Majority shareholder of the bank he “demonstrated greed” by opening another bank.
The court said he was expected to have demonstrated a sense of responsibility but not stealing those gargantuan sums of monies.
The court also stated that it took into consideration the GHc37 million refunded to the Republic.
Justice Eric Kyei Baffour also said Ato Essien pleaded guilty on December 13, 2022 after the trial had ended and also wasted the time of the court.
The court also said through him countless people have lost their job and some are still hunting for jobs in addition to the state dispensing with monies through his actions.
He was then sentence variously for all the sixteen counts including 15 years for stealing GHc100 million.
The sentences the court said are to run concurrently.
Impose custodial sentence
Joshua Sackey, a Senior State Attorney while moving that Application for the imposition of custodial sentence on the respondent pursuant to section 35(7) of the courts act 1993 act 459 said, per the agreement that the Republic had with the Respondent (Convict) under Section 35 of the Courts act, about GHc90 million was to be paid to the state.
He submitted that, the said agreement was adopted by this honorable court, however the Respondent has failed to abide by the terms of agreement
The Senior State Attorney submitted that, even though the court has granted him several opportunities to make payments, he has failed to do so.
“Per the said provisions of section 37(7) of the Courts Act, the entire outstanding GHc53 million balance has fallen due and per their showings, the Respondent will not be able to raise this amount in fulfillment to his obligation to the State.
It was also the submission of the Senior State Attorney that, as a result of this, “we are praying that this Honouable court will pass a custodial sentence on the Respondent.”
“Since his conduct is in clear violation of Section 35(7) of the Courts Act, we pray that the amount paid so far should be taken into consideration by this honorable court in mitigation of sentence.”
Premature application
Lawyer Baffour Gyau Bonsu Ashia who was holding Thaddues Sory’s brief for Ato Essien opposed to the application.
“We are opposed to the application filed by the State praying this Court for the imposition on the convict Respondent pursuant to Section 35(7).
According to him, the two grounds of the affidavit in opposition are that, ”the application is premature and fail to properly invoke the jurisdiction of the court.”
“The second grounds of opposing the application is that the convict has demonstrated in this court that should this court lends towards him and afford him the opportunity he will be able to pay the outstanding balance,” counsel submitted.
Counsel submitted that, “Our interpretation is that there is every obligation on the state to recover the outstanding amounts payable.”
He added that, The application by the state praying the court for the imposition of custodial sentence is premature
“The second leg of our argument is that the convict has demonstrated in this court that given the opportunity, given some time he will be able to pay the outstanding amount which has fallen due and payable.”
Counsel said, just when the agreement between the convict and State was executed, even though the accused person then had not been working ever since the license of the bank was revoked, the accused then and convict now was able to pay the first installment of GHc30 million.
Six months grace period
Counsel said, his client has not been working and his passport has been taken which has limited his movement to raise funds not only in the country but outside the country.
“The spirit and purpose of Section 35(7) of the Courts Act, will be completely undermined if the court were to proceed and pass custodial sentence on convict especially when the convict has made payments amounting to GHc37 million more than one-third of the settlement sum.”
“Having regards to the new facts that has arisen after the exhibition of the agreement and in the interest of Justice, it is our humble prayer that my lord tamper justice with mercy and afford the convict some time to pay the total amount that has fallen due and payable.
Counsel submitted that, “a period of six months given to the convict will be enough time for convict to retire the outstanding sum”.
Source: Starrfm.com.gh
