An Accra High Court has rejected a request from convicted William Ato Essien to suspend imposition of a custodial sentence and an opportunity to renegotiate with the State.
The founder of the defunct Capital Bank was on December 13, last year, convicted and ordered to pay GHS60 million to the State after entering into agreement with the State under Section 35 of the Court’s Act 1993, Act 459.
Having failed to fulfil the orders of the court to pay the first instalment of GHS20 million by the April 28 deadline, the State filed a motion for the court to impose a custodial sentence on him.
However, Ato Essien through his lawyer Thaddeus Sory, moved a motion for the court to suspend the imposition of a custodial sentence and to allow him time renegotiate with the state due to certain difficulties.
But the request was rejected by the court presided over by Justice Eric Kyei Baffour, a Justice of the Court of Appeal, sitting as an additional High Court judge.
Mr Thaddeus Sory, Counsel for the convict, moving the application prayed for two main orders.
Firstly, he said, they wanted an order, suspending any action of imposition of a custodial sentence on the applicant and secondly, for leave to renegotiate in “terms of payments agreed on between applicant and the State.
The Counsel argued that the application was premised on the judgment of the court delivered on December 13, 2022 and the terms which were clearly based on Section 35(7) of the Courts Act1993, Act459.
He said their first contention was that the applicant conceded the plain words of Section 35(7) but having regards to the present circumstances, an application of such provision on its literal term would lead to an absurdity and would not leave to serve the statute.
Mr Sory said, the purpose of Section 35 was to allow the State to make recovery when it had suffered lost and that was what resulted in the settlement between the State and the applicant.
He contended that, the applicant had demonstrated good faith by making settlement of one-third of the settlement amount.
“We have deposed to genuine difficulties to have met the timelines for which the applicant is committed to make those payments,” he said.
He said, the convict had also affirmed his commitment to continue to make those payments and that another Cheque of GHc1 million was ready to be paid in addition to the GHc4 million already paid.
“We are urging the court that if a literal representation is placed on the provision of section 35(7), it will not only defeat the purpose but also create an absurdity which was not created by the Section.” Counsel said.
Mr Sory asked that if the court imposed a custodial sentence on the applicant, what would become of the amount already paid?
“We are also urging on the court that, we have attached an agreement on inflows expected by which the applicant will complied with the terms,” he said.
The Counsel said the instance proceedings were geared toward executing the judgment of the court which convicted the accused person.
He, therefore, prayed the court to have a look at their application and deliver a reasoned ruling on the matter especially that “we have drawn the court’s attention to the provisions.”
Mr Tuah Yeboah, the Deputy Attorney General, who led the State, opposed the request.
He said, “We opposed to this application and relied on the application filed on May 10.
The Deputy AG said the State was not interested in renegotiating with the convict.
He argued that the crux of the application was that the court should read into section 35(7) of the court act.
“We say that there is no basis for such an invitation to the court for the court to read words into section 35(7),” he said.
According to the Deputy AG, “Section 35(7) is as clear as daylight and has no ambiguity.”
He contended that the court did not even have a discretion to vary the original terms in the agreement and “therefore cannot read any words into Section 35(7) because there is no discretion.”
Mr Tuah Yeboah said there was the “use of shall which is mandatory for the court to proceed to deliver a custodial sentence.”
The AG argued that Counsel for the convict had argued and deferred to the spirit behind or rationale for section 35(7).”
“We are submitting that the entire Section 35 is a Special Grace or dispensation to an accused person and for that matter an accused person must not deviate from the agreed terms,” he added.
He argued that, “an accused person must respect the sanctity of his own agreement and that’s the spirit behind Section 35.”
He said in this case, the convict had breached his own agreement and he had come to the end of the road.
He said the invitation to the court to stay proceedings and grant leave to the convict to renegotiate with the prosecution was a dangerous invitation and must be declined by the court.
He said, the grant of the application would rather send a dangerous signal to other persons that they could come to the court agreed on specific terms and come back for an extension.
The Deputy AG said, “the State is not interested in renegotiation with the accused and it will serve no purpose to stay pro.”
The AG said Counsel had already indicated an amount paid and the consequences of sentence into prison custody. “When it comes to mitigation of sentence, the court may take into consideration the amount paid.”
He said the application was a dangerous invitation and must be declined by the honourable court.
The AG said Counsel has already indicated an amount paid and the consequences of sentence into prison custody. “When it comes to mitigation of sentence, the court may take into consideration the amount paid.”
Justice Kyei Baffour after hearing the submissions, said, “I have read the motion by the convict applicant for an order of the court to suspend any act and or proceedings leading to the imposition of a custodial sentence on the convict as well as the further order that he seeks for a renegotiation of the terms of settlement that was accepted and adopted by the court under Section 35 of the courts army-993, act459.”
“I have also read the affidavit in opposition through the application. I have carefully considered the submission from learned counsel Sory for the convict and that is the honourable Deputy Attorney General.”
Justice Kyei Baffour said, “being a convict before the court, I think ‘mens rea’ is the requirement in a criminal trial before conviction.”
He said the stage at which the parties were now was one for the considerations for the imposition of a custodial sentence and “I do not think that the claim for the court on the Men’s Rea is well lived,” and “We have gone beyond that.”
The Judge said he do not find it necessary to exhaustively agree to the amount paid by the convict and what should happen.
“For the reason expressed Supra, I find no merit in this application and accordingly dismissed same,” he said.
The Court, therefore adjourned the case to May 17, 2023 for the motion filed by the State for him to be committed to jail to be moved.
