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Capital Bank case: High court asks for clarity on Attorney General’s settlement with the three accused

All three accused – William Ato Essien, Tettey Nettey and Reverend Fitzgerald Odonkor – have pleaded not guilty to a total of 23 charges relating to monies once held by Capital Bank

Justice Eric Kyei Baffour, the trial judge presiding over the case of the Republic versus William Ato Essien and two others (popularly known as the Capital Bank case), has asked for clarity on a settlement reached between the Attorney General’s Department and Ato Essien, who is standing trial for misappropriating money belonging to the now defunct Capital Bank Ltd.

All three of the accused – William Ato Essien, Tettey Nettey and Reverend Fitzgerald Odonkor – have pleaded not guilty to a total of 23 charges. Among the charges are stealing, abetment to stealing and conspiracy to steal.

In accordance with the law, Essien (the first accused), Nettey (the second accused) and Odonkor (the third accused) have all mounted their defences to the charges preferred against them by the state after the prosecution closed its case.

Settlement agreement

Justice Eric Kyei Baffour, a Court of Appeal judge sitting with additional responsibility as a high court judge, was expected to deliver judgment in the three-year-old trial today (1 December 2022) and bring the case to its logical conclusion.

However, when the case was called in court today, the deputy attorney general Alfred Tuah-Yeboah told the court that the state has reached a settlement with the accused, based on Section 35 of the Courts Act 1993 (Act 459).

Section 35 of Act 459

Section 35 of the Courts Act 1993 (Act 459) is entitled “Offer of Compensation or Restitution”. It states: “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.”

Subsection two states that: “Where an accused makes an offer of compensation or restitution and reparation, the prosecutor shall consider if the offer is acceptable to the prosecution.” Subsection three says: “If the offer is not acceptable to the prosecution the case before the court shall proceed.”

The fourth subsection provides that: “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.”

Subsection five reads as follows: “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.” And the sixth subsection provides that: “An order of the court under subsection (5) shall be subject to such conditions as the court may direct.”

The seventh and last subsection under Section 35 states: “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.”

Court request for clarity 

After hearing the deputy attorney general, Justice Eric Kyei Baffour’s court ruled: “The money William Ato Essien and the two other accused persons are alleged to have stolen does not belong to the state.”

The money, the trial judge said, “belongs to the bank and depositors of the bank”.

The judge argued that the money does not belong to the state or an agency of the state, and therefore no loss or harm has been caused to the state.

“It is my candid opinion that Section 35 is not applicable to the case for the first accused person to enter into a settlement with the prosecution,” the judge said.

Previous position

In the course of the trial, defence lawyers are on record to have requested permission from the court to engage the state on the basis of Section 35 of the Courts Act 1993. During the trial, Justice Kyei Baffour did not raise any issues with the request by the defence team.

During one court sitting, the trial judge is on record to have said that the accused are at liberty to negotiate with the state based on Section 35, and that they can do so until the court is ready to deliver judgment.

The position of the court at the hearing today (1 December) is a marked departure from its previous views on the ability of the accused to offer compensation or restitution.

Defence lawyer

The lawyer for the first accused, Baffour Gyau Ashia Bonsu, in his address to the court after it raised its concerns, noted that the Bank of Ghana (BoG) is a state institution, the Bank is the complainant in the case and Capital Bank is currently in lawful receivership under the auspices of the BoG.

To this end, the defence team believes that the state is very much involved in the case. He said that if the court is not satisfied with the agreement his client has reached with the state, the arrangement can be looked at again and it can be fine-tuned.

“We have taken urgent steps and we have even paid the first instalment to the state … I have a receipt to show the court,” Baffour Gyau Ashia Bonsu told the court.

By court

After hearing the parties the court ruled as follows: “The registrar of the court drew my attention to a document filed for an agreement reached between Ato Essien and the state.

“I find it apt to go through the whole of Section 35 of the Courts Act that the agreement purports to rely upon. The terms of settlement are to the effect that the accused has pleaded guilty.

“That the first accused person agrees to pay GHC90 million as restitution within one year and has agreed to pay GHC30 million on or before 1 December 2022 and the remaining GHC60 million will be paid within one year.

“First accused person indicated that he accepts the plea of guilty to all the charges levelled against him. I will grant a short adjournment to allow the parties to discuss the exact amount to be paid and to address the court on whether Section 35 is applicable in this case. Case adjourned to Tuesday 13 December 2022,” Justice Kyei Baffour ruled.

Wilberforce Asare

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