…..Martin Kpebu
Private legal practitioner, Martin Kpebu, has said that the board chairman of the defunct Capital Bank, Pastor Mensa Otabil, has questions to answer in the collapse of the bank, which the government said recorded GH¢90 million theft.
In the view of Kpebu, in any serious jurisdiction, Pastor Mensa Otabil, would have been invited by the prosecutors to answer questions relating to the misappropriation of liquidity support by William Ato Essien, given to Capital Bank by the Central Bank of Ghana.
Essien, who is the founder of Capital Bank, now defunct, has since been sentenced to 15 years imprisonment with hard labour by the Accra High Court for stealing over GH¢90 million of the bank’s money.
On Thursday, Essien became the first banking executive to serve a jail term, following the massive banking sector clean-up in 2017 that led to the collapse of seven indigenous banks, including Capital Bank.
Clad in a brown ‘kaftan’, and wearing a nose mask, Essien stood, and looked at the judge in a solemn manner as his marching orders to prison were read to him on Thursday (Oct 12, 2023).
“People are wondering what happens to Mensa Otabil,” Kpebu said on the Key Points on TV3 on Saturday, October 14.
He added “The truth of the matter is that he is a powerful person so somehow there are biases. This amount is too colossal that we can’t say the board chair doesn’t have questions to answer.”
The Bank of Ghana, issued a press release on August 14, 2017, announcing the revocation of the license of Capital Bank due to insolvency.
The CEO of the bank, Mr Essien was subsequently slapped with a total jail term of 95 years for multiple counts of stealing and money laundering. These sentences are to run concurrently hence, he will be spending 15 years in jail.
Despite, reaching an agreement to refund GH¢90 million to the state, he only managed to refund GH¢37 million to the state, hence the imposition of the custodial sentence.
Some analysts expressed concerns over the inability of the state to retrieve all the money from Ato Essien.
For instance, the Director of Business Operations at Dalex Finance, Joe Jackson, said he was sad that the state could not retrieve all the money before he was imprisoned.
Speaking on the News 360 onTV3 Thursday, October 12, Joe Jackson said “I am filled with sadness, the sadness is on two levels. Number one is that, more than a conviction we really need to get our money back. The public purse was raided to resolve this issue and if there is an establishment that funds have been misused, we have to get the money back and so the conviction just shows that we haven’t still been able to the money back. For me that is sad.
“The second level of sadness is this; Capital Bank represented local indigenous ownership of our financial sector, nobody is going to grow this country or our financial sector for us, eventually Ghanaians have to own it so that we can do the best for the country and not to ship the money out or ship the money in depending on where you stand.”
He further said the jailing of Ato Essien, sends a signal to corporate Ghana that they cannot get away with wrongdoing.
“It is a really good thing not just for the financial sector but all of corporate Ghana so in that sense showing out that our legal system works, showing that you can’t get away with the wrong thing., that is wonderful,” he said.
But Deputy Attorney-General, Alfred Tuah-Yeboah, said that even though Ato Essien has been jailed, the state managed to retrieve an amount of GH¢37 million from him before the sentence.
Mr Tuah-Yebuah, indicated that if Ato Essien, had been jailed last year, when an agreement to repay the money had not been reached, the state would not have benefited by retrieving this much of the money.
Speaking to TV3 after the sentencing, on Thursday, October 12, the Deputy-Attorney General said “Effectively, he has been sentenced to 15 years imprisonment. This is a matter that started long ago and last year, he decided to enter into an agreement for him to take advantage of section 35.
“We were expecting that he would go by the agreement that we had, but unfortunately on his part, he could not fulfill his part of the bargain. As we speak he has been able to pay close to about 37 million Cedis and because of his inability to pay the rest, per the agreement that we had, the court had the right to sentence him to a prison term and the court just did that.
“I am yet to get the full complement of the orders of the court, now that he has been imprisoned if he gets the money to pay that is another ballgame to look at, because after a court has given its ruling or judgment, the court becomes functus officio, so my expectation is that when he pays then he goes into mitigation when he wants to appeal the sentence.
“Let’s hope that he gets the money to pay. Let us also add that even if he is going to serve the 15 years Ghanaians have also benefited somehow because at least 37 million Cedis has been paid to the state. if he had been sentenced last year we wouldn’t have even recovered this.”
Section 35 – 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).
Ato Essien, was convicted for his involvement in the misappropriation of an astounding GH¢90 million from the bank’s coffers. The verdict came after a heartfelt assessment of the impact of Essien’s actions on the bank’s depositors and the nation by the judge, citinewsroom.com report.
The judge stated, “The convict demonstrated sheer greed in his desire to own another bank besides Capital Bank Ltd and left no stone unturned through subterfuge and deceit with pure criminal intent to set up Sovereign Bank Ltd. Being in a position of trust, he was expected to have demonstrated a sense of responsibility and true fidelity. He had no cause, whatsoever, to steal such gargantuan sums of money.”
Justice Kyei Baffour, who holds the position of a Justice of the Court of Appeal with additional responsibilities as a High Court judge, also emphasized that Essien’s actions caused immense hardship for countless individuals during the collapse of Capital Bank.
In a ruling, the court held that, Essien exploited Capital Bank to his advantage and dissipated the funds of the bank without taking into consideration the depositors of the bank.
Justice Kyei Baffour, said he also decided to impose the sentence on Essien due to the hardship people encountered during the collapse of Capital Bank, a situation which continued to leave many people in destitute and suffering.
“I cannot fail to take into account the trail of pain and tears that had been occasioned by the criminal conduct of the convict (Essien). Countless number of innocent citizens lost their jobs and are still job hunting. The nation had to spend huge sums of money to bail the creditors and depositors,” Justice Kyei Baffour ruled.
On December 13, 2022, Essien pleaded guilty to 16 counts of stealing and money laundering when he admitted to dissipating over GH¢90 million of liquidity support extended to Capital Bank by the Bank of Ghana (BoG).
He was accordingly convicted by the court, but avoided a custodial sentence when he reached an agreement with the Attorney-General (A-G) to repay the GH¢90 million to the state as reparation and restitution.
The agreement was pursuant to Section 35 of the Courts Act, 1993 (Act 459), which allows accused persons standing trial for causing economic loss to the state to admit the offence and pay the money to possibly avoid prison.
Essien paid GH¢30 million in December last year, and per the agreement as adopted by the court was supposed to pay the remaining GH¢60 million in three GH¢20 million, installments, with the first payment on or before April 28, 2023; second payment on or before August 31, 2023, and the last tranche on or before December 15, 2023.
Justice Kyei Baffour, after giving the green light for the agreement to be effective, ruled that Essien, risked going to jail if he failed to abide by the terms as stipulated by Section 35 of Act 459.
It can, therefore be said that Essien sent himself to prison when he failed to meet the deadlines to pay the money per the agreed terms, forcing the A-G to file an application under the same Section 35 of Act 459 for the court to impose the custodial sentence on him.
As of Thursday (Oct 12, 2023) when he was jailed, Essien had paid only GH¢7 million out of a possible GH¢40 million, missing the instalment payments for April 28 and August 31 this year per the agreement.
In total, Essien had paid GH¢37 million of GH¢90 million, with an amount of GH¢53 million remaining to be paid.
