Ato Forson case: State to reconsider striking deals under Section 35 with convicts – A-G

The Ministry of Justice and Attorney-General has said that it will not be minded to agree to get into deals with convicts using Section 35 of the Courts Act, 1993(Act 459).

Deputy Attorney General, Alfred Tuah Yeboah in an interview with journalists cited the case of former CEO of Capital Bank, Ato Forson as an experience that has caused them to consider a different approach.

“I think if an accused person decides to take advantage of that section, he must be also ready to go by the terms that you undertake. But the whole thing is if you agree that you’re going to pay an amount by x date and refuse to pay and we have to be chasing you up and down I don’t think it’s something we may want to encourage. So having this experience in this particular case in subsequent proceedings we may also want to change our strategy,” Alfred Tuah Yeboah told pressmen.

The High Court hearing the criminal case of the founder of defunct Capital Bank, William Ato Essien has given the convict another lifeline to pay the first tranche of GHC20million out of GHC60million he owes the state as restitution after he failed to meet a two-month window given to him in May 2023.

In court on Tuesday, July 4, his lawyers represented by Baffour Gyawu Bonsu Ashia holding brief for Thaddeus Sory pleaded with the court to be given an additional three-month grace period to liquidate his assets adding that they were expecting $300,000 by the end of July 2023.

Ato Essien has so far made a payment of GHC8million from the expected first tranche of GHC20million.

His lawyers also pleaded with the court to release his passport to enable him travel outside the country to meet with partners to raise the remainder of the money.

But presiding judge, Eric Kyei Baffour rejected the plea noting that his magnanimity would not be stretch that far because the case was a criminal case and not a civil case hence could not trust that the former Capital Bank CEO would not bolt upon release of his passport.

“The convict has only made GHC2m payment since the last adjournment leaving an amount of GHC12m that should’ve been redeemed at least by today. Based on the pleas of his counsel I once again reluctantly give the convict 1 more opportunity to make payment. I will adjourn to the 27th of July 2023 for an amount of 12m to be paid by the convict. If by that day the money has been redeemed, the court may favorably consider the outstanding amount to be paid,” Justice Kyei Baffour ruled.

The founder of the defunct Capital Bank, William Ato Essien was convicted in December 2023 on his own plea after getting into a deal with the state under section 35 of the courts act to avoid getting a jail sentence.

After almost 6months however, he has been unable to fulfill the GHC90million restitution fee imposed on him by the Accra High Court.

According to the agreement, Ato Essien is mandated to pay GH¢90 million by the end of 2023 for which he paid GH¢30 million in December 2022 and was expected to pay the remainder in three equal installments in 2023.

According to Section 35 of the Courts Act(Act 459):
(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), s.4]

By Laud Adu-Asare|3news.com| Ghana

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