The founder of the defunct Capital Bank, William Ato Essien, has been handed a harsh warning by the High Court in Accra, presided over by His Lordship Justice Eric Kyei Baffour, for his conduct in the ongoing trial.
“I have the rights to revoke your bail,” Justice Kyei Baffour stated, apparently frustrated by Ato Essien, the first accused individual, and his lawyers’ failure to comply with court requirements by filing witness testimony by January 10.
The remarks of Justice Kyei Baffour, a Justice of the Court of Appeal sitting with additional responsibility as a High Court judge, was after a lawyer for Ato Essien, Baffour Gyawu Bonsu Ashia had requested for more time.
The court said it is not impressed with the posture of the first accused person and could be compelled to revoke his bail since that will put him on his toes.
“I am not impressed and if the documents you needed to attach is in someone’s custody, the rules allow you to subpoena the person for the production of those documents,” the court said.
“Mr. Essien, let your lawyer do this and think you will have your way.” I have the power to rescind your bail. That is not to say you will not avail yourself of the trial, but to ensure you cooperate with it. If I put you in custody, you would have filed those documents by now, ”the court lamented.”
Negotiation for compensation
In court on Thursday, January 13, counsel for Ato Essien, said “Apart from filing our witness statements and attached the exhibit to rely on to prosecute our case, we have further engaged the prosecution with respect to “Section 35″ of the Courts Act.”
He told the court, “Unlike the initial prayer where we made an appeal to this court, to pay the GHc27.5m which formed the basis of some of the charges, we have also included the GHc130m that also form part of the charges.
“My lord, the discussions have been very fruitful to the extent that, the prosecution has written to us in a letter dated December 30, 2021, where the prosecution has made its stance very clear.
He told the court however that, “the only difficulty between us (the defence lawyers) and prosecution is the quantum which can easily be resolved by an independent auditor.”
To this end, he prayed that “since we have the documents that we intend to attach to our witness statements, it is our humble prayer that, this court grants us this last request to file the witness statements together with the exhibits.”
The prosecution led by Mrs Marina Appiah Opare, a Chief State Attorney, said “we share the sentiments of the court.”
But prayed the court to indulge the first accused and grant him the two weeks period requested and hope the accused would have filed by then.
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By court
Justice Kyei Baffour ruled that “I have listened to the counsel for the first accused person who once again has failed to abide by the timeliness provided by the court for the filing of the witness statements of first accused persons as well as the witnesses that the first accused person intends to call if any.
He added that “even though the court is not convinced about the reasons preferred for the delay, I will hold in abeyance the invocation of the powers vested in the court to moderate and control its proceedings and extend the time for two more weeks for first the accused person to comply with the orders of the court.”
For the second and the third accused persons, that court said, they have informed the court that, they are ready with their respective witness statements for filing, but holding on to abide by the filing of the first accused as their defence or accusation will be anchored or hinged against that of a first accused person for which the court appreciates that line of a strategic approach.
The court reluctantly adjourned the case to January 27, for Case Management Conference.
Charges
Essien is standing trial with the Managing Director (MD) of the defunct bank, Fitzgerald Odonkor, and the MD of MC Management Services, Tettey Nettey.
MC Management Services is said to be owned by Essien.
The accused persons have pleaded not guilty to all the charges of stealing, abetment to stealing, conspiracy to steal and money laundering. They are on bail.
They have been accused of engaging in various illegal acts that led to the dissipation of the GH¢620-million liquidity support given to Capital Bank by the BoG between June 2015 and November 2016.
About Section 35 of Courts Act?
Section 35 of the Courts Acts which Ato Essien has activated with the prosecution stipulates as follows;
(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.
