The High Court in Accra has refused an application by Ato Essien to renegotiate the agreement with the State on the refund of GH¢60 million stolen from the State, and has adjourned the case to May 17, 2023.
The lawyers moved the application when the State was set to argue its case on why Ato Essien should be jailed for not meeting the terms of repaying the GH¢60 million owed to the State.
The State filed the application after the convict failed to meet his financial obligations under the agreement that initially enabled him to escape a jail sentence.
Ato Essien pleaded guilty to the charges of stealing and money laundering for his involvement in the collapse of Capital Bank, which he used to own. This was after he signed an agreement with the State under section 35 of the courts act.
The terms of the agreement mandated him to refund an amount of GH¢90 million he agreed to have stolen. As part of that, he paid GH¢30 million in December and was expected to repay the remaining GH¢60 million in 2023 in three equal instalments, with the first tranche due on April 28.
But as of May 2, checks from the Controller and Accountant General’s office revealed that the GH¢20 million had not been paid, a situation that compelled the AG to initiate the instant application.
However, the court did not hear the application as the lawyer for Ato Essien had filed an application to suspend the proceedings to impose a custodial sentence on his client and to grant leave for further negotiations on the terms of the contract.
Thaddeus Sorry Esq argued that the application of section 35(7) of the courts act, which gives powers to the court to impose custodial sentence on an accused person when he fails to meet the terms of an agreement, will amount to an absurdity in respect of the case.
The Lawyer urged the court to apply a purposive interpretation rather than a literal interpretation of section 35(7) of the Courts Act. It was the view of the counsel for Ato Essien that the aforementioned section is aimed at helping the State make recoveries in cases relating to financial loss to the state, hence any action that does not lead to this aim will be against the intent of the framers of the Act.
“This is a situation not anticipated by section 35 of the Courts Act. We are urging section 10(4) of the interpretation act which requires the court to take into account the purpose of a statute in interpreting the act. The state will not deny that it is to help them recover,” Thaddeus Sory said in court on Thursday.
He also queried what will happen to the monies paid already in case the court imposes a custodial sentence on him.
The judge however hinted that it will be taken into account when it becomes necessary to impose a sentence.
The State, which opposed the application, however, argued that there was no need for interpretating the provisions of sections 35(7) of the courts act. Deputy Attorney General, Alfred Tuah Yeboah, in court, stated that ‘the section is as clear as daylight, very clear and admits of no ambiguity.’’
It is the view of the Deputy Attorney General that on the basis of Ato Essien defaulting on the terms, the only remedy is for him to pay all the outstanding GH¢ 60 million or face a custodial sentence.
“We are submitting that the entire section is a special grace given an accused person and therefore an accused person must not deviate from the agreed terms. In other words, the accused person must respect the sanctity of his own agreement. In this particular case, the convict has breached his own agreement. He has come to the end of the road,” Alfred Tuah-Yeboah advanced in court.
In making a case for the application, the lawyer for Ato Essien further argued that it was in the powers of the court to vary his judgments since the application filed by the state concerns enforcement of the judgment of the court.
The state, however, disagreed with Ato Essien’s lawyer arguing that the court does not have any power to vary the terms of the agreement.
The deputy attorney General in court argued that “the court does not even have the discretion to vary the original terms in the agreement. This court therefore cannot read any word into section 35(7) because there is no discretion. There is the use of the word shall. It is mandatory which means that the section is a mandatory provision”.
It also emerged in court that Ato Essien had made a payment of GH¢4 million out of the GH¢20 million he was expected to pay by the end of last month.
The lawyer of Ato Essien argued that this is an indication of the commitment of his client to fulfil the financial obligation as another cheque of GH¢1 million will soon hit the coffers of the State.
But the State says it will vary its stance on the jail term only if Ato Essien pays the GH¢60 million in full.
Justice Eric Kyei Baffour, after considering the arguments, dismissed the case as being without merit.
The case has been adjourned to May 17 to consider whether or not Ato Essien should be jailed.