The embattled founder and Chief Executive Officer (CEO) of defunct Capital Bank, William Ato Essien, has offered to refund another GH¢130 million out of the GH¢620 million bailout money he allegedly stole from the bank which led to its insolvency and subsequent government takeover.
Mr. Essien who is standing trial alongside two others for the alleged theft, at the early stages of the trial which is going into its third year, elected to refund GH¢27.5 million he had carried in a jute bag known in local parlance as ‘Ghana Must Go’, per the prosecution’s account.
Section 35 of the Courts Act (Act 459, 1993) allows an accused person who “admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused,” and Ato Essien appeared to have taken advantage of the Act to make the refund.
Although the prosecution is yet to accept the proposal on the payment of the GH¢27.5 million which includes terms of payment and reparation, Ato Essien has indicated his intention to make a further payment of GH¢130 million in a bid to assuage the charges levelled against him.
Baffuor Gyau Bonsu Ashia who held brief for Thaddeus Sory, counsel for Ato Essien, disclosed the plan to the trial High Court presided over by Justice Eric Kyei Baffuor, a Court of Appeal judge sitting as an additional High Court judge, last Thursday.
Counsel said they are negotiating with the Attorney General on how to make the refund.
“Unlike the initial prayer where we made an appeal to this court to pay the GH¢27.5 million which form the basis of some of the charges, we have also included GH¢130 million that also forms part of the charges,” he said, adding “the discussion has been very fruitful to the extent that the prosecution has written to us dated December 30, 2021, where the prosecution has made its stance very clear.”
Counsel said however that “the only difficulty between us as defence counsel and the prosecution is the quantum which can easily be resolved by an independent auditor.”
Justice Kyei Baffuor then requested the said letter from the Attorney and upon perusing it, he said the content of the letter looks like an 80 per cent rejection from the prosecution.
He said the prosecution seems to disagree with the amount involved, the terms of payment and the amount to pay as reparation, but the parties could continue with the negotiations and if they are able to strike a deal finally, they would inform the court.
The judge, however, indicated that the trial will take its normal course and if at the end of the trial the parties are not done with the negotiations, he will hold on to the judgment until they reach an amicable agreement.
He also said that when they reach an agreement and the prosecution decides not to pursue the case any further, he as a “servant of the law” will have nothing he would do about it.
During the trial on Thursday, the court warned that it will revoke Ato Essien’s bail and incarcerate him if his lawyers do not cooperate with the court in the ongoing trial.
The judge issued the warning after lawyer for the embattled businessman failed to file a witness statement on his behalf as ordered by the court last year.
It was not the first time his lawyer failed to file the documents in the trial in which Ato Essien and the defunct bank’s former Managing Director, Reverend Fitzgerald Odonkor as well as Tetteh Nettey, a former Managing Director of MC Management Service owned by Ato Essien, are before the court charged with 23 counts of conspiracy to steal, stealing, and money laundering.
The three are alleged to have misappropriated a total of GH¢620 million liquidity support given to the bank by the Bank of Ghana (BoG) as bailout to enable it service its maturing debt.
The accused persons, according to the prosecution, allegedly opened various bank accounts with Capital Bank through which the GH¢620 million BoG liquidity support were transferred to while others were carried in jute bags (Ghana Must Go) to Ato Essien as payment for ‘business promotion.’
The court on November 25, last year, ordered Ato Essien to file his witness statement as well as those of any witnesses he intended to call by December 7, 2021, after the court expressed concern about the ‘snail pace’ at which the accused person was giving his evidence-in-chief.
The accused was initially giving oral testimony but failed to show up in court and the court was told that he was suffering from sleep apnea, a potentially serious sleep disorder in which one’s breathing repeatedly stops and restarts.
Baffuor Gyau Bonsu Ashia, then told the court that they were unable to file the documents because there were certain documents they requested from the Receiver of the defunct bank which they were yet to receive.
The court subsequently gave him additional two weeks to file the witness statements and adjourned the trial for case management.
Mr. Bonsu Ashia then indicated on Thursday that they were not able to comply with the court’s orders because they only got the requested documents on January 12 in the evening.
He, therefore, prayed the court to grant him another adjournment to enable them attach what he described as “vital documents” to the witness statement.
The prosecution led by Marina Appiah Opare, a Chief State Attorney, said they were prepared for the case management as scheduled but was not opposed if the court allows the accused person the two weeks requested to file the witness statement.
Justice Kyei Baffuor, who was visibly unimpressed, said the lawyer could have used a subpoena to obtain the documents from the person who was unwilling to release them.
He then turned to Mr. Essien and told him that he as a judge has the power to rescind his bail and put him in custody until the end of the trial if his lawyer fails to comply with the orders of the court.
He said one of the conditions for the grant of bail is not only to ensure that the accused person will show for the trial, but that the accused person would cooperate with the court.
The judge also expressed worry about the manner in which criminal trials are conducted in Ghana, which usually take a very long time to complete compared to other jurisdictions where even trials on indictment are concluded over a short period of time.
Justice Kyei Baffuor said a time will come when what he referred to as “anachronistic Act 30” (the Act that regulates criminal proceedings in Ghana), will be overhauled.
“I will hold in abeyance the invocation of the powers vested in the court to moderate and control its proceedings and extend the time for two more weeks for the first accused to comply with orders of the court,” he said as he reluctantly adjourned the trial to January 27, 2022