Defunct Capital Bank founder William Ato Essien has failed in his quest to vary the repayment terms of the GH¢60 million balance of the total GH¢90 million loot he pleaded guilty to stealing that led to the bank's collapse.
His lawyers filed an application to that effect and moved it on Thursday, 11 May 2023.
The state was, on the same day, billed to make a case for Mr Essien to be jailed for failing to pay the first of three tranches of GH¢20 million to defray the GH¢60 million balance of the GH¢90 million loot.
It emerged in court on Thursday that Mr Essien has paid GH¢4 million to the state ahead of his custodial sentence hearing today and had written another cheque for GH¢1 million awaiting processing.
It represents a fifth of the tranche of GH¢20 million he was expected to have paid by the end of April per the plea-bargain agreement, which he failed to honour that sparked processes by the attorney general to have him jailed.
That case, however, could not be heard on Thursday, as Mr Essien’s lawyer, Mr Thaddeus Sory, had filed an application to suspend the proceedings and also move that his client be allowed to vary the refund terms.
Mr Sory argued that using section 35(7) of the Courts Act against his client would be absurd since, in his view, it defeats the purpose of recovering the loot for the state.
“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,” Mr Sory argued.
He wondered what would happen to the already-refunded money should his client be handed a custodial sentence.
The state counter-argued that there was no need for interpreting the provisions of sections 35(7) of the Courts Act. Deputy Attorney General Alfred Tuah Yeboah said "the section is as clear as daylight, very clear and admits of no ambiguity.’’
“We are submitting that the entire section is a special grace giving 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 averred.
Mr Tuah-Yeboah further disagreed with Mr Sory's assertion that the court could use its discretion to vary the terms of refund.
He said “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.”
Justice Eric Kyei Baffour dismissed Mr Essien's application and adjourned the hearing to 17 May 2023.