Ato Essien case: Court postpones decision on AG’s motion for a prison custody order to 17 May

The high court, presided over by Justice Eric Kyei Baffour, a Court of Appeal Judge sitting with additional responsibility as a high court judge, has adjourned to 17 May the date for determination of an application by the Attorney General praying the court to impose custodial sentence on the convicted former chief executive officer of Capital Bank, William Ato Essien, for failing to comply with the payment terms he reached with the state.

Essien paid GHC30 million out of the GHC90 million upfront and agreed to pay the remaining GHC60 million in three instalments, the first being due on 28 April 2023.

However, the convict failed to make good the first instalment of GHC20 million on the agreed date. His failure to abide by the terms of the settlement necessitated the action by the Attorney General, praying the court to commit Essien into prison custody, in line with the provisions of Section 35 of the Courts Act.

Defence counsel
When the court constituted today, Thursday 11 May, the lawyer for Essien, Thaddeus Sory, announced that he has filed an affidavit in opposition to the application of the Attorney General.

He also noted that he had filed an additional application seeking an order of the court to allow Essien to renegotiate the terms in the payment settlement he reached with the state, which the court has since adopted.

AG’s position
Deputy Attorney General Alfred Tuah-Yeboah, who represented the state in court, submitted that the state is yet to be served with the affidavit in opposition filed by lawyers for Essien, so, in that regard, the AG will abide by the direction of the court.

However, the state is opposed to the application of the convict seeking leave of the court to renegotiate the terms of the already agreed settlement.

“We are opposed to this application. We say that there is no basis for such an invitation to the court to read words into Section 35 (7). Section 35 (7) is as clear as daylight and admits of no ambiguity.

“Under section 35 (7), the court does not even have the discretion to vary the original terms in the agreement. This honourable court therefore cannot read any word into Section 35 (7) because there is no discretion,” Tuah-Yeboah said.

“Counsel for the convict has argued and referred to the spitfire behind Section 35 (7). We are submitting that the entire Section 35 is a special grace or dispensation given to an accused person, and for that matter, an accused person must not deviate or resile from the agreed terms.

“In other words, an 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, and according the invitation to this court to stay proceedings and grant leave to [Essien] to renegotiate with the prosecution is a dangerous invitation and must be declined by the court.

“The grant of this application will rather send a dangerous signal to other persons that they can come to the honourable court, agree on specific terms, breach those terms and come back to the court for an extension.

“The state is not interested in renegotiating with the convict. It serves no useful purpose to stay proceedings to undertake an activity that the state is not willing to do,” he added.

By court
Justice Eric Kyei Baffour after hearing the parties ruled as follows: “I have read the motion by the convict applicant for an order of the court to suspend any activity 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 Act 1993 (Act 459).

“I have also read the affidavit in opposition to the application. I have carefully considered the submissions of learned counsel for the convict and that if the honourable deputy attorney general.

“First, being a convict before the court, I think mens rea is a requirement in a criminal trial before conviction. The state at which we are is one of a consideration of imposition of a custodial sentence, and I do not think that the claim for the court to find the mens rea at this stage is well made.

“We have gone beyond this. I have also been called upon to apply or interpret Section 35 of Act 459 purposively but not literally though a strong adherent of purposivism, a modern purposive approach to statutory and constitutional interpretation.

“Yet the strongest advocate to purposive interpretation being Aron Barack, the former president of the Israeli Supreme Court, set the limit and the scope for the application of purposivism. The limits are the language of the statues, proper exercise of the discretion of the judge, and the overall purpose of the enactment under consideration.

“Purposivism, therefore, is not a blanket check to the judge to read into and import into the test of the statutory provision any imaginary or fanciful strained interpretation. I therefore fail to see the invitation by learned counsel in respect of the approach to the proper construction of Section 35 of Act 459.

“I do not find it necessary to exhaustively respond to the issue of the amount paid by the convict and what should happen. I will deal with that in the motion of the republic when it is moved.

“For the reasons expressed supra, I find no merit in this application and accordingly dismiss same. As the convict has just filed an affidavit in opposition to the application by the republic for the imposition of custodial sentence on [Essien] and same has not yet been served, it is only fair that I adjourn the determination of that application to Wednesday 17 May 2023 at 13:00 hours,” Justice Kyei Baffour ruled.