An Accra High Court has dismissed an application by founder of defunct Capital Bank William Ato Essien asking for a chance to re-negotiate with the Attorney General.
Mr Essien has breached the terms of an agreement that saw him escape jail term and commit to refunding ¢90 million to the state.
He has so far paid ¢34 million; ¢30 million was paid when the agreement was reached in 2022.
He was required to pay another ¢20 million by April 28, 2023.
The Attorney General however says failure to make this payment has left him with no choice but to ask the court to impose a custodial sentence.
Lawyers for Mr Essien, however, disagreed. Lead Counsel Thaddeus Sory urged the court to give meaning to the law allowing such an agreement.
He insisted the aim was to ensure recovery. He pointed out that the businessman has simply come into some financial difficulty hence the inability to meet the terms of the agreement.
“Let’s take a pragmatic look at this. We are urging section 10(4) of the interpretation act which requires the court to read every statute and take into account the purpose of the statute in interpreting an Act.
We have attached an agreement which shows the inflows that were to come in.
“We also want to draw the court’s attention to the fact that the instant proceedings are proceedings to execute the judgement of the court which is intended to execute the judgement of the court which convicted the accused person.
“The court has inherent power in any situation to suspend execution of its powers if there is good reason to. We are drawing the court’s attention to Article 126(4) of the 1992 constitution.
“My lord has residual power in so far as the final orders are concerned. You have the power to issue further directions,” he stated.
Deputy Attorney General Alfred Tuah Yeboah disagreed. He insisted the court does not have an option at this stage.
“An accused person must respect the sanctity of his own agreement. That is the spirit behind section 35. In this particular case, the convict has breached his own agreement.
“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.
“The grant of this application will rather send a dangerous signal to other persons that they can come to the 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 accused person. It will, therefore, serve no useful purpose in staying proceedings for the state to undertake an activity it is not willing to do,” Mr Yeboah stated.
Justice Eric Kyei Baffuor dismissed the application saying it was urging the court to interpret the law in an unusual manner.
“First, being a convict before the court, I think mens rea is a requirement in a criminal trial before conviction. The stage at which we are is one of a consideration for the 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 that stage.
“I have also been called upon to apply or interpret section 35 of Act 459, purposively but not literally. Purposivism is not a blanket cheque to the judge to read into and import into the text 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.
“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.”
The court has adjourned the case to May 17 to deal with the issue of imposition of a custodial sentence.
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