William Ato Essien, Founder and Chief Executive Officer (CEO) of defunct Capital Bank, has been jailed 15 years in hard labour for stealing over GH¢90 million belonging to the bank.
Ato was jailed yesterday by the Commercial Division of the Accra High Court, presided over by Justice Eric Kyei Baffour, a Court of Appeal Judge with additional responsibility of the High Court.
The defunct Capital Bank CEO was convicted in December last year, but to avoid custodial sentence made an arrangement with the Attorney-General’s Office to pay the GH¢90 million as restitution to the State.
Per the plea-bargaining arrangement, the convict (Essien) was to pay GH¢20 million by April 28, this year, another GH¢20 million by August 31, and the last GH¢20 million by December 15, 2023.
This was because Essien had already paid GH¢30 million out of GH¢90 million, as at December 13, 2022.
He reached this agreement after having changed his plea from not guilty to guilty.
Before the end of the legal year, Essien managed to pay GH¢7 million out of the first GH¢20 million installment.
Meanwhile, failure to meet any of the payments would attract a custodial sentence.
In that regard, Justice Eric Kyei Baffour held that Essien had failed to pay the restitution, hence, the 15 years imprisonment.
He was jailed 10 years for conspiracy to steal GH¢100m, stealing of GH¢100m 15 years, Money laundering GH¢100m four years, conspiracy to steal GH¢30 m 10 years, stealing GH¢30m 10 years, money laundering two years, stealing of GH¢35m 11 years, and money laundering two years.
The other charges and sentences are stealing of GH¢2m two years, money laundering two years, stealing of GH¢5m six years, money laundering two years, stealing of GH¢12m eight years, money laundering two years, stealing of GH¢8.5m seven years, and money laundering two years.
The court ordered that all the sentences should run concurrently, therefore, Essien will serve the highest sentence.
Court Proceedings
The Judge held that at the last adjourned date, July 27, 2023, the court did not sit, subsequently there was two months’ vacation.
Judge: May I enquire from learned counsel for the convict whether the convict has taken advantage of the long period of time fortuitously afforded him to pay the monies.
Counsel: My Lord, we have not been able to pay the agreed sums. At the last two sittings, a letter had been written from the office of Robert Akya informing the court that they gotten a judgement against Essien Swiss International, for which reason they had an interest in the proprieties which Essien Swiss had assigned to Panarico Company Limited.
We took steps and realised that it is true that they had secured judgement against Essien Swiss. This piece of information forced Panarico to cease payment as agreed under the sale of assets agreement between Essien Swiss and Panarico Company Limited.
My instructions are that steps were taken to engage Keylem Travel and Tour, the creditor, to relative the issue. As I speak, there is an appeal pending against the judgment of the High Court.
It is our humble prayer that because of that the convict has taken to pay more than one-third of the money so far. It is our humble prayer that this court indulges us and grants us more time in order to pay the outstanding. We are not taking advantage of the leniency showed us by the court. It is because of the practical challenges faced by the convict.
Judge: If I don’t take any action in the case, I will be sitting here incubating it like a hen.
Joshua Sackey: My instructions are that the convict, per their showing…
Judge: By court, learned counsel is praying for further time for the convict to pay the outstanding GH¢53 million. The basis of the prayer is that there is an appeal pending in respect of the case of Kaylem Travel and Tour Ltd vs Essien Swiss over some properties at Prampram. In the view of the court, I do not think it proper for this court to hold in abeyance the determination of the application filed by the … to abide by certain date in future for the completion of a completely independent case which may not even have any impact on this case. I accordingly invite the Republic to move the application they filed on May 22, 2023.
Sackey: An application for the imposition of custodial sentence on the respondent pursuant to Section 35(7) of the Courts Act.
Per the agreement that the Republic had with the respondent herein, under section 35 of the Courts Act, GH¢90 million was as to be paid to the state. However, the respondent herein has failed to abide by the terms of the agreement and this honourable court has granted him several opportunities to make payments as they felt due to no avail.
Per the clear provisions of section 35(7) of the Courts Act, the entire outstanding balance of GH¢53 million has become due and per their showing, the respondent would not be able to raise this amount in fulfilment of his obligation to the state.
As a result of this, we are praying that this honourable court would pass a custodial sentence on the respondent, since his conduct is in clear violation of 35(7) of the Courts Act.
We pray that ….paid so far to be taken into consideration by the court in mitigation of sentence.
Ashia: We are opposed to the application. Our opposition is on two grounds.
The first ground is that the application is premature and fails to properly invoke the jurisdiction of the court.
The second ground of imposing the application is that the convict has demonstrated in this court that if this court should lean towards him and afford him the opportunity, he would be able to pay the outstanding sum.
Given some time and opportunity he would be able to pay the outstanding amount which has become payable.
Even though the accused has not been working since his license of the bank was revoked, the accused was able to pay the first instalment of GH¢20 million. His passport has also been seized and he is unable to travel to raise funds. These are exceptional circumstances.
The spirit and purpose of section 35(7) of the Courts Act would be completely undermined if the court were to proceed and pass custodial sentence on the convict especially when the convict has made payments amounting to GH¢37 million. It will again undermine the efforts being made by the convict.
Judge: That the convict failed to pay GH¢20 million by April 28, thereby terminating the agreement between the convict and the republic.
On December 13, 2022, the convict charged his plea to guilty on all charges he was facing. The convict was required to return total of GH¢90 million as restitution and reparation. Required to pay GH¢20 million on April 28, a failure for which the entire GH¢60 million becomes due.
As at today the records reflect that only GH¢37 million out of the 90 million has been paid. I do not see the claim being made that the application is premature. The agreement emanates from a criminal one and not a civilian case. There is a nothing under Section 35 or the agreement entered between the convict and the republic that should the convict default in paying the amount the republic was to resort to the civil service to secure the money.
It cannot be denied that the payment that was due has long elapsed and same has not been paid to the republic. Out of the 40 million to be paid by august, only 7 million has been paid.
The Prampram propriety has been a subject of an execution and this fact was known to the convict at the time of the proposition made to the prosecution to use the property to make payment but did not disclose same to the court.
The convict is not in any position to make any further payment. The court did not sit for two months and the convict if he was in position to pay any amount would have done so.
Counsel: we wish to state that the convict is a first-time offender. The convict has shown good faith by paying 37 million out if the agreed sum. The convict is a married man with children and indeed he is the bread winner of the house.
Judge: the convict pleaded guilty to all 16 counts of conspiracy to steal, stealing and money laundering.
The huge dunes of money involved were taken from capital bank in manner that led to its collapse… They were executed by an opportunistic theft. He demonstrated shear greed in his desire to own another bank sovereign bank aside capital.
The court is not unaware that an amount of GH¢37 million has been refunded to the republic after conviction.
He pleaded guilty after he wasted the courts time after three years and causes the republic to parade 17 witnesses.
Countless number of innocent citizens lost their jobs and are still job hunting. Huge sums of money had to be spent by the republic to repay the customers of the bank.
