The Accra High Court yesterday rejected a GH¢ 90m settlement agreement between William Ato Essien, founder of the defunct Capital Bank who is standing trial for misappropriation of funds and the state.
The court found the proposed amount unsatisfactory and of no punitive cause to the accused.
The court was ready to deliver judgement on the case which had lasted nearly three years but, had to stay judgment at the last minute.
Presiding judge, Justice Elvis Kyei Baffour noted that he was prompted on the eve of the judgement by the court registrar about the terms reached by the two parties.
However, he expressed discontent over the terms, stressing that “Just yesterday the registrar of the court brought to my attention a document captioned “Agreement between the Republic and Ato Essien.” I have a number of issues and until I am satisfied, I will not accept it,” he stated.
The agreement reached under section 35 of the Courts Act, 1993 (Act 459) led the accused to agree to a plea of guilty and to pay restitution to the state.
Contained in the agreement was for the accused to pay the GH¢90m restitution within one year and an agreement to pay GH¢30m on or before yesterday. The remaining GH¢60m was to be paid within a year.
But Justice Kyei Bafffour, explained that the GH¢90m in contention had depreciated in value as a dollar to the cedi which stood at GH¢3.70 at the time was now GH¢13.70.
” If accused is made to pay the GH¢90m then he should be made to pay the money based on the current exchange rate so that Capital Bank will not be worse off as a result of money taken by him.
“Allowing accused to pay GH¢90m will not be full restitution but just partial,” he added.
He said allowing the accused to pay GH¢90 million in 2022 from monies he was accused to have stolen in 2015 when the exchange rate was not the same was equivalent to making crime a lucrative venture.
“The amount must be paid with interest to serve as a punitive measure,” he said.
The court also disagreed with section 35 of the courts act which the parties had relied on to form the agreement.
Justice Kyei Bafffour noted that the monies in question did not belong to the state but rather shareholders and depositors of Capital Bank.
However, deputy Attorney-General (AG) Alfred Tuah-Yeboah told the court that they viewed the money as belonging to the state since it was part of the liquidity support granted Capital Bank by the Bank of Ghana (BoG).
Counsel for the accused, Baffour Gyau Bonsu Ashia who held brief for Thaddeus Sory, informed the court that they had paid the first installment to the state and was ready to show the receipt to the court.
The court also expressed displeasure with accused for wasting the court’s time by pleading guilty just a day before judgement was to be delivered.
It however, granted a short adjournment to allow the parties negotiate an improved deal and to address the court on whether section 35 of Act 459 was applicable in agreeing on the deal or not.
Ato Essien is standing trial with Fitzgerald Odonkor, a former MD of Capital Bank and Tetteh Nettey, the MD of MC Management Services, a company owned by Mr Essien.
The prosecution 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.
The accused have pleaded not guilty to various counts of stealing, abetment to stealing, conspiracy to steal and money laundering.