The Commercial Division of the Accra High Court has ordered former Chief Executive Officer (CEO) of defunct Capital Bank, William Ato Essien, to conclude negotiations for compensation with the state within 20-days.
The court said, he would be required to mount the docket to open his defence on November 4, if he was unable to reach an agreement with the prosecution.
This was after his lawyers and the prosecution have had an agreement for the second time to resume negotiations under Section 35 of the Courts Act (Reparation and Restitution).
The former CEO of the Capital Bank, William Ato Essien, together with Tetteh Nettey and Fitzgerald Odonkor have been asked to open their defence to respond to some 23 charges including stealing.
In court on Thursday, October 14, 2021, Ato Essien’s counsel, Lawyer Baffour Gyau Bonsu Ashia holding Thaddeus Sory’s brief told the Court that, they have decided to re-activate Section 35 of the Courts Act with the prosecution.
“My Lord, before the trial commenced in this court the first accused person made an application in this court to take advantage of the provision in Section 35 of the Courts Act. My Lord, we started discussions with the prosecution but the discussion suffered some delays and so it came to a temporary halt.
“We have sent a letter to the prosecution requesting that discussions should resume. We have received a response from the prosecution indicating their willingness to afford us the opportunity. It is our humble prayer that this court leans towards us and afford us the opportunity,” he noted.
Prosecution’s response
Mrs Marina Appiah-Opare, a Chief State Attorney representing the state confirmed to the court the state’s willingness to resume negotiations with the first accused.
“Indeed, we have received a request from the first accused person through his counsel for the resumption of discussions in respect of their desire to take advantage of Section 35 of the court’s act and make restitution.”
She said, “we are open to resuming the said discussion and we have duly informed counsel for the first accused person. We are saying that the said discussion we hope should not take more than two weeks and therefore if this court is minded to grant an adjournment it should be two weeks.”
By Court
The presiding judge Justice Eric Kyei Baffour, Justice of the Court of Appeal sitting with additional responsibility as a High Court judge adjourned the case to November 4 for the parties to conclude negotiations.
“As the learned Chief State Attorney has confirmed to the court that the first accused is still desirous of reaping the benefit of Section 35 of the courts act, Act 459 (1994) in terms of proposal to pay compensation and reparation to the republic for whatever alleged losses caused the Republic, I have carefully considered the plea and have also balanced it against the need not to needlessly or ad-infinitum hold in abayance the trial which he is supposed to open his defence after prosecution had called 17 witnesses and closed its case.
He said, “Weighing these two competing interests and balancing same, I am of the view that not more than 20 days adjournment to enable the parties conclude negotiations would be an apt time. If that is not achieved, no injustice at all would be occasioned the first accused if the trial were to resume while the parties attempt to conclude the negotiations.
“Accordingly,” he said “the court will proceed with the trial on the next adjourned date even if there is no agreement in order not to breach the first accused person’s right to fair trial within a reasonable time as spelt out by the constitution,” the court said.
EIB Network’s Court Correspondent Murtala Inusah reports that William Ato Essien and Nettey Tetteh were absent in court. While Ato Essien is said to be unwell, Tetteh the court was informed is bereaved, he hasn’t his mother.
About Section 35 of the Courts Act – Offer of Compensation or Restitution
(1) Where a person is charged with an offence before the High Court or a Regional Tribunal, the commission of which has caused economic loss, harm or damage to the State or any State agency, the accused may inform the prosecutor whether the
accused admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.
(2) Where an accused makes an offer of compensation or restitution and
reparation, the prosecutor shall consider if the offer is acceptable to the prosecution.
(3) If the offer is not acceptable to the prosecution the case before the Court shall proceed.
(4) If the offer is acceptable to the prosecution, the prosecutor shall in the presence of the accused, inform the Court which shall consider if the offer of compensation or restitution and reparation is satisfactory.
(5) Where the Court considers the offer to be satisfactory, the Court shall accept a plea of guilty from the accused and convict the accused on his own plea, and in lieu of passing sentence on the accused, make an order for the accused to pay compensation or make restitution and reparation.
(6) An order of the Court under subsection (5) shall be subject to such conditions as the Court may direct.
(7) Where a person convicted under this section defaults in the payment of any money required of the person under this section or fails to fulfil any condition imposed by the Court under subsection (6), any amount outstanding shall become due and payable and upon failure to make the payment, the Court shall proceed to
pass a custodial sentence on the accused. [As substituted by the Courts(Amendment) Act, 2002 (Act 620).
Charges
A careful analysis of the charge sheet of the State indicates that the four (4) accused persons have been charged with a total of 26 counts.
The charges are Conspiracy to Steal contrary to section 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29), Abetment of Crime namely Stealing contrary to section 20 (1) an 124 (1) of the Criminal Offences Act, 1960 (Act 29), Stealing contrary to section 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29), and Money Laundering contrary to section 1 (1) (a) of the Anti-Money Laundering Act, 2008 (Act749).
In all, William Ato Essien is charged with eight (8) counts of Stealing contrary to section 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29), eight (8) counts of Money Laundering contrary to section 1 (1) (a) of the Anti-Money Laundering Act, 2008 (Act749) and three (3) counts Conspiracy to Steal contrary to section 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29), making it a total of 19 counts that are applicable to him.
Tetteh Nettey, according to the charge sheet, faces two (2) counts of Stealing contrary to section 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29), two (2) counts of Money Laundering contrary to section 1 (1) (a) of the Anti – Money Laundering Act, 2008 (Act749) and two (2) counts Conspiracy to Steal contrary to section 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29), making his a total of 6 counts.
Fitzgerald Odonkor on the other hand is charged with seven (7) counts of Abetment of Crime namely Stealing contrary to section 20 (1) an 124 (1) of the Criminal Offences Act, 1960 (Act 29).