The Accra High Court yesterday accepted the GH¢90 million restitution settlement agreed between the state and William Ato Essien, founder of the defunct Capital Bank, who stood trial for misappropriating funds.
As part of the agreement, Ato Essien changed his plea from not guilty to guilty on all 16 counts that included stealing, conspiracy to steal and money laundering for which he was arraigned and was accordingly convicted by the court.
Despite the conviction, he escaped a custodial sentence as the agreement was reached under section 35 of the Courts Act, 1993 (Act 459), which allows accused persons standing trial for causing financial loss to the state to pay the money and possibly avoid a custodial sentence.
Delivering the judgement, the court presided over by Justice Eric Kyei Baffour, a Court of Appeal justice sitting with additional duties as a High Court judge, however, ruled that if Ato Essien defaulted in paying the remaining GH¢60m, having already paid GH¢30m, by the first deadline, that would render the agreement null and void.
He added that when that happened, the prosecution was permitted to cause his arrest and arraigned for a custodial sentence to be pronounced.
The payments are to be made in three separate GH¢20m instalments.
The first instalment must be paid on or before April 28, 2023, the second on or before August 31, 2023 and the final expected by December 15, 2023.
At yesterday’s hearing, Deputy Attorney-General (AG) Alfred Tuah-Yeboah made oral arguments contending that the agreement was applicable under section 35(1) Act 459, which the court said had persuaded it to change its position.
The court also said it considered the position that another rejection could be an over-reach against the accused.
The Deputy A-G explained that the actions of the accused, despite being committed against a non-state institution, had caused economic loss and harm to the state.
He said the GH¢620 liquidity support released to Capital Bank through the Bank of Ghana (BoG), out of which GH¢192m was the subject of the suit against accused and two others amounted to economic loss to the state if the money was not paid back.
He added that following the revocation of the licence of Capital Bank by the BoG, the assets and liabilities of the defunct bank were taken over by GCB, a state bank, so the current owner of the assets of Capital Bank was GCB.
Again, he said GCB was saddled with the responsibility to pay the liability of Capital Bank and so if the GH¢192m was not paid, GCB had to pay it, which would result in a loss to the state.
Again, he said, the revocation of the licences of the various banks by the BOG made the state to pay the depositors of the banks, including Capital Bank, GH¢25 billion, which included the GH¢192.5m.
When asked by Justice Kyei Baffour about how the
GH¢90m was reached as the agreed figure, Deputy A-G Atuah-Yeboah responded that the state, through its investigations, realised that GH¢65m and GH¢ 35m out of the GH¢192.5m were on different occasions used by another company, Capital African Group, to acquire shares in Capital Bank through an Ecobank account.
He added that the two share acquisitions, which amounted to GH¢100m, had been retained by Capital Bank, with GH¢1.3m paid to EOCO by the accused, leaving the outstanding balance of GH¢90.7m.
Counsel for Ato Essien, Thaddeus Sory, however, pointed out the state had benefited from the settlement to the tune of GH¢30m negotiated by the A-G.
He clarified that out of the GH¢92.5m the accused was liable for, the prosecution had failed to take into account an amount of GH¢35m that formed part of GH¢100m, which was a subject of count one to four and repeated in count nine to 11 resulting in double accounting.
He said when that situation was rectified, the money to be paid by the accused stood at GH¢52m with the A-G negotiating an interest component of GH¢30m as restitution and reparation.
The court, in its previous hearing on December 1, this year, rejected the agreement on the basis that the amount reached was unsatisfactory and had depreciated in value since 2015 when the case commenced against the accused.
Fitzgerald Odonkor, a former MD of Capital Bank and Tetteh Nettey, the MD of MC Management Services, a company said to be owned by Mr Essien, who stood trial with Ato Essien were acquitted and discharged on all the counts levelled against them.
It found that the evidence presented against the two were not substantial to prove their guilt.
The prosecution had accused the three persons of engaging in various illegal acts that led to the misapplication of a GH¢620 million liquidity support given to Capital Bank by the BoG between June 2015 and November 2016.
They were tried on 23 counts, including stealing, abetment to stealing, conspiracy to steal and money laundering.
BY NANA BENTSI ODURO
