The High Court in Accra 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 GHc60 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 fulfill the orders of the court to pay the first installment of GHc20 million by the April 28 deadline, the State filed a motion for the court to impose a custodial sentence on him.

In court on Thursday, May 11, however, Ato Essien through his lawyer Thaddeus Sory moved 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, after the State led by Alfred Tuah Yeboah, Deputy Attorney General, opposed to the request.

EIB Network’s Legal Affairs Correspondent, Murtala Inusah, who was in court report that, the prosecution said, it was not interested in renegotiating with the convict while the case has been adjourned to May 17, 2023 for the motion filed by the State for him to be committed to jail to be moved.

Essien’s request

Thaddeus Sory, Counsel for the convict while moving his application said, the motion was praying for two main orders.

The first, he said, was for an order suspending any action of imposition of a custodial sentence on the applicant and the second, for leave to renegotiate in “terms of payments agreed on between applicant and the Republic.”

He argued that, the application was premised on the judgment of the court delivered on December 13, 2023 and the terms which are clearly based on Section 35(7) of the Courts Act1993, Act459.

“Our first contention is that the applicant conceded the plane words of Section 35(7) but having regards to the present circumstances, an application of such provision on it lliteral term will lead to an absurdity and won’t leave to serve the statute,” Mr Sory Argued.

Mr Sory said, the purpose of Section 35 is to allow the State make recovery when it has suffered lost and that is the what resulted in the settlement between the Republic and the applicant.

He contended that, the applicant has demonstrated good faith by making settlement of one-third of the settlement amount.

Genuine difficulties

“We have deposed to genuine difficulties to have met the timelines for which the applicant is committed to make those payments,” counsel noted.

He said, his client has also affirmed his commitment to continue to make those payments and that another Cheque of GHc1 million was ready to be paid to the GHc4 million already paid.

“We are urging on this 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 stated.

Counsel wondered “If the court proceed to impose a custodial sentence on the applicant, what will 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.

“The instance proceedings are geared toward executing the judgment of the court which convicted the accused person,” counsel argued.

Counsel prayed the court to “look at our arguments and deliver a reasoned ruling on the matter especially that we have drawn the court’s attention to in the provisions.

We’re not ready for renegotiation

Deputy Attorney General, Alfred Tuah Yeboah, who represented the Prosecution, said “We opposed to this application and relied on the application filed on May 10.

He argued that, the crux of the application as gleaned through 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 argued.

According to the Deputy AG, “Section 35(7) is as clear as daylight and has no ambiguity.”

He argued that the court does 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 is 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 behind section 35(7).

Special grace

“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,” the Deputy AG told the court.

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 particular case, the convict had breached his own agreement and he has come to the end of the road.

“Accordingly the invitation to this court to stay proceedings and grant leave to the convict to renegotiate with the prosecution is a dangerous invitation and must be declined by the honorable court,” Mr Tuah Yeboah.

He said, “the grant of this application will rather send a dangerous signal to other persons that they can come to the Honourable 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 proceedings to under take an activity that the State is not willing to do.”

The AG said Counsel has already indicated an amount paid and the consequences of sentence into prison custody

“When it come to mitigation of sentence, the court may take into consideration the amount paid.

“It is therefore our concluding submission that this application is a dangerous invitation and must be declined by the honorable court,” the Deputy AG submitted.

By court

Justice Kyei Baffour 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,” and “I have carefully considered the submission from learned counsel Sory Esq. for the convict and that is the honorable Deputy Attorney General,” Justice Kyei Baffour stated.

The Court said, “being a convict before the court, I think Mens Rea is the requirement in a criminal trial before conviction.”

“The stage at which we is one of 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 indicated.

Justice Kyei Baffour made referenced to Aron Barak, an Israeli Supreme Court and a strong advocate of purposivism to answer an invitation for him to apply or interprets section 35 of act 459 purposivlly but not literally.

“I do not find it necessary to exhaustively agree to the amount paid by convict and what should happen,” the judge said

“For the reason expressed Supra, I find no merit in this application and accordingly dismissed same,” the judge ruled.

The case has been adjourned to May 17 for the motion filed by the prosecution for the imposition of a custodial sentence moved.

Source: Inusah