A former Board Member of the Ghana Infrastructure Investment Fund (GIIF), Kofi Boakye, has told the Criminal Division of the High Court in Accra that former Chief Executive Officer of GIIF, Solomon Asamoah, incorporated a company linked to the controversial Accra Sky Train project without the knowledge of the board.
Testifying as the Prosecution’s second witness (PW2) before the court, presided over by Her Ladyship Audrey Kocuvie-Tay, Mr Kofi Boakye said he first became aware of the existence of a company known as Ghana Sky Train Limited during interrogation sessions at the offices of the National Intelligence Bureau (NIB).
Under cross-examination by defence counsel Victoria Barth, Mr Kofi Boakye maintained that neither the Concession agreement nor the Memorandum of Understanding (MoU) relating to the project was presented to the board during its meetings.
He further stated that it was at the same venue that he saw registration documents of a company incorporated by the CEO “on the blindside” of board members, including the board chairman, Prof Christopher Amenyaw Akumfi, who is also standing with him as A2.
According to the witness, apart from a reference to veto rights, members of the board had no knowledge that a company by name Accra Sky Train or Ghana Sky Train Limited had been incorporated by the CEO.
He recounted that during one interrogation session, investigators asked board members whether they knew of any company called Ghana Sky Train Limited.
All members of the board, including the chairman, responded that they had no knowledge of the company. It was only Mr Asamoah who answered in the affirmative.
Mr Kofi Boakye said that when GIIF approves participation in projects, special purpose vehicles are sometimes incorporated, but the board is always formally informed and documentation kept by the secretary in collaboration with lawyers.
Additionally, he noted that where GIIF holds equity in a company, a board member is appointed to serve as a director.
He told the court that the revelation that Ghana Sky Train Limited had been incorporated angered some board members, as the CEO had listed himself as a director and named another individual—who had previously not been approved by the board as company secretary—as secretary of the new entity.
Mr Kofi Boakye also referenced board minutes of June 24, 2019 in which the CEO informed members that he had been requested to serve as a member of the board of CalBank Limited and received congratulations.
He said no similar disclosure was made regarding any appointment as director of Ghana Sky Train Limited.
On the question of whether the GIIF board approved the Sky Train project, the witness insisted that no final approval was granted.
He explained that GIIF’s approval processes are elaborate and involve the submission of an investment memo to the Investment Committee, which must then make a recommendation to the board for final approval.
He added that although some emails and documents referencing the project had been shown in court, he had not seen key documents such as a pre-feasibility report, concession agreement or any formal request for early disbursement of $2 million, in compliance with GIIF’s processes during board meetings.
Defence counsel suggested that the minutes of the November 19, 2019 board meeting (Exhibit 6) contained no record of any board member objecting to steps taken in furtherance of the project.
In response, Mr Kofi Boakye said concerns were raised at that meeting, including that board members did not know the identity of consortium partners and had not sighted any consortium agreement.
He said the board chair directed that all relevant documents be submitted to members, but this was never done.
Throughout his testimony, Mr Kofi Boakye maintained that the board merely expressed intent to participate in the project but never considered and approved it in accordance with GIIF’s formal procedures.
Continuation of cross-examination of PW2 by Victoria Barth
Q. You will agree with me that in Exhibit 6 the minutes of GIIF board meeting held in 19th November 2019, there is no record of any of the board members objecting to the steps that has been undertaken in performance of the Sky Train project?
A. As I earlier on told this court the approval processes of GIIF are elaborate. There are a number of steps that have to be taken before final approval is given. In respect of the sky train project, the board has stated its intent to participate in the project. Consequent upon this steps were taken and upon… a formal investment memo will come before the Finance Investment Committee of the board and they after considering the memo could make a recommendation to the board to give its final approval to the project. No such recommendation came from the Investment Committee and no final approval was given by the board.
To aid this court, I would like to refer to Exhibit 3, the meeting of 5th September 2018. Item 5.4 which states that ‘although the Finance and Investment Committee had given its approval to the request for funding for the renovation and refurbishment of Hotel Georgia. The Investment and Finance Committee recommended that management meets with the sponsors of Hotel Georgia to discuss the…
Therefore, taking steps to participate in the project did not mean the board had given its final approval to the project.
Q. When you read Exhibit 6, is there any part of it that states that the board complained or raised a concern that there was no approval for the sky train project. Do you see any statement to that effect?
A. Respectfully, to be able to give a yes or no answer to this question, counsel may explain further the meaning that she ascribes to the word ‘approval’ because I have told this court severally the approval processes are numerous and elaborate.
Q. Regardless of the meaning, I’m ascribing to approval, is there any statement in the minutes that the board or any member of the board raised a concern about the approval be it partial, final or otherwise if the sky train project.
DAG: Objection. Counsel is badgering the witness. The witness has states before this court severally that there are various levels of approval for projects like the sky train project. The witness has indicated during the approval process includes recommendations from committees of the board.
The witness also indicated that even at the board level there are several layers of approval including the approval of the disbursement even after the project itself had been approved by the board.
Counsel has asked the witness whether the board had complained of lack of approval and the witness was clear in stating that considering the various component of the approval process he could only give a yes or no answer (which was what counsel demanded) if counsel specify the particular kind of approval counsel was referring to.
This is a fair request considering that counsel demanded the witness to give abuse or no answer.
We therefore pray the court to compel counsel to specify the particular approval she is referring to or otherwise the entire question if overruled.
Victoria Barth: My question is very clear. The prosecution has not ceased to remind us throughout the conduct of this case that it is about whether or not the sky train project was approved by the GIIF board and whether the disbursement of $2 million to acquire equity stake as part of undertaking that project was also approved by the GIIF.
In all these instances there was no distinction as to the various levels of approval including question. It was a blanket statement of no approval.
The witness in paragraphs 10 and 11 of his witness statements states as follows: “during my tenure as a member of the board we approved several projects. However, the board did not approve the sky train project.”
P.11. “Additionally, the board did not approve the $2 million payment for the question of shares in relation to the sky train project.”
Approval as I used it in my question is the noun of the verb approve as the witness has used it in his witness statement.
In his witness statement the word “approved” is not followed by any explanation that the board did not finally approved or that the board approved subject to due diligence. It is used simpliciter as approved.
So, when I ask him to indicate if in exhibit 6 any member of the board raised a concern that the board did not approve of the sky train project, it is gift him to say ‘yes, there is such a statement,’ or ‘no, there is no such statement.
Because “approved” as I used it means several levels of approval and at this stage what had been undertaken was within the levels of approval.
He should have no difficulty whatsoever answering yes or no to whether a concern was expressed regarding the level of approval. That is why my question said that whether the approval was final, partial or otherwise.
BC: the witness is here to answer questions truthfully and to the best of his understanding. From the answers he gives, the court is to… so answer to the best of your ability.
Q. Regardless of the meaning I’m ascribing to approval, is there any statement in the minutes (exhibit 6) that the board or any member of the board raised a concern about the approval, be it partial, final or otherwise of the sky train project.
A. In item 3.1 of the minutes of 19 November 2019, in evidence as Exhibit 6, the CEO was questioned on activities tue CRO had engaged in. This record states concerns expressed by members of the board on information that the CEO had furnished them with at this meeting. One of the main concerns of the board members was that even though they were being told that GIIF was part of a consortium, members had no idea as to who the members of the consortium were. The consortium agreement had not been sighted by the members of the board.
Again, members were worried that GIIF’s interest was not being properly protected.
These statements I reiterated were not made by members of the board after it had given its final approval to participating in the Sky train project. At this meeting the board chair directed that all documents relating ti the Sky train project be submitted to members. This was never done. And as a member of the board I restate that no approval was given by the board to this project.
Q. By approval what do you mean?
A. By approval an investment memo should have come from management to the investment committee for their co ideation and approval, which approval goes to the board by way of a recommendation from the investment committee.
Exhibit 18 an email with a draft and signed minutes on 31 July, 2018. Item 4.4 “Members expressed support for the project as it has the potential of facilitating speedily passengers from one end of the city to other. This it was anticipated would facilitate business activities.”
Members also noted the need to consider in further details this project so a sound decision as regards GIIF participation would…
The investment committee made no recommendation to the GIIF board to participate in the sky train privet at its project. The board therefore did not at any of its meetings consider and give its approval to the sky train project.
Q. It is not correct that documents on the Sky Train Project, which were requests at the meeting of 19 November 2019 were never submitted to board members as you have testified. I’m suggesting it to you?
A. I have been shown in this court emails and documents in which one finds reference to the sky train project. Unless I am mistaking, these documents were not submitted after the meeting of 19 November 2019. Indeed it was in the course of our interrogation (myself and other members of the board including our chairman) where I saw for the first time a memorandum of understanding signed by the CEO of GIIf and then director of GIPC appending his signature as a witness of GIIF.
I have not seen any pre feasibility report. I have not seen any memorandum of agreement between the sky train project sponsors and the Ministry of Railway Development. I have not seen any concession agreement relating to the project after this meeting. And indeed no document stating that management was requesting for an early disbursement for the sum of $2 million for the completion of all processes required by GIIF.
Q. It is also not correct as you have testified that the board never considered the sky train project?
A. When I say that the board never considered the sky train project, I say so because no investment was submitted to the board for it to consider and approve the sky train project at its meeting of 24 October 2018. At this same meeting the report of the Investment and Finance Committee does not include a recommendation by the committee that the board gives its final approval to participate in the sky train project.
Q. The GIIF board met on quarterly bases, apart from emergency meetings. Is that not so?
A. No my lady.
Q. During your tenure as acting secretary you circulated notices of meetings of the board to board members via email while the CEO circulated the board packs of documents to be discussed by the board at its meetings, also via emails. Is that not so?
A. All board packs were accompanied by notices sent by me to members of the board. However there were instances where documents to be considered at these meetings were sent directly to members of the board by the CEO.
Q. One instance in which the CEO circulated counts ahead of a GIIF board meeting is the email thread in Exhibit 24 and its attachments. Is that. Is that not so?
A. That is correct.
Q. Exhibit 24D is the Investment Committee memorandum on the Accra Sky train project. Is it not?
A. My lady, it is. And as I have previously and repeatedly told this court, the board at its meeting of 24th October 2018, did not consider the investment memorandum on the sky train project. And as I have earlier told the court the contents of the email sent by the CEO stating that the board was going to consider and approve the sky train project are to be discounted by the court because the agenda for the meeting of 24 October 2017 circulated by me in my capacity as acting secretary on the recommendation of the board chairman did not have as an item the discussion of the consideration and approval of the sky train project by the board. So this court can conveniently gloss over Exhibit 24D.
Q. You did not read Exhibit 24 when it was circulated to you as a member of the board and that is why you claimed not to have seen it in your testimony before this court today. Is that not so?
A. Exhibit 24 is an email from the CEO with the heading “board meeting on Wednesday 24th October.” This email was sent on Monday October 22, 2018 at 8:06pm. It reads “dear board member, I have been informed that there is likely to be a full board meeting on Wednesday 24 October. I am sure the formal agenda will follow shortly from lawyer Boakye.”
One finds on this email that seven documents have been attached. They are investment
1. committee agenda docs
2. AI Sky Train
3. Sky Train IC memo September 2018
4. Wood fields IC paper final
5. Final GIIf information memo
6. Project portfolio update Oct22.2018
7. Recommendations of GIIF requests oct.2018.
This IC memo was not considered by the board and by IC.
Q. You also did not read the concession agreement and the MoU and all the documents you claimed were never submitted to the board even though they were in fact submitted to board members even form part of the disclosures from the prosecution. Is that not so?
A. That is not correct. I have not seen concession agreement and the MoU at our meetings. I only saw an MoU signed by the CEO at the office of the interrogation unit of the NIB. And I must also state that it was also at the same venue that I saw registration documents of a company incorporated by the CEO on the blindside of a members of the board, including the board chairman.
Apart from the veto, none of us had any idea that a company by name Accra Sky Train had been incorporated by the CEO.
Q. This company that you say was incorporated by the CEO on the blindside of the board, do you know that its shareholder is AI Aky Train Consortium Holding?
A. My lady, on one Friday with all members of the board and the CEO present in an interrogation room with investigators of the NIB, we were asked whether or not we knew anything about the company Ghana Sky Train Limited.
The investigators deferred the answering of this question to our next meeting day, which was the next Monday. On the said Monday, the question whether or not we knew of any company by name Ghana Sky Train Limited was directed by the investigators at every member of the board and the CEO.
All members of the board including the board chair told the investigators that they knew nothing about this company called Ghana Sky Train Limited. It was only the CEO who stated in the affirmative that he knew about the company known as Ghana Sky Train Limited.
If my memory serve me right, from the MoU which I saw for the first time at the offices of the NIB, Ghana Sky Train Limited was mentioned somewhere in there. When GIIF gives approval to participate in projects in some instances new companies are incorporated and used as vehicles for the implementation of those projects. At all times, the board is informed and made aware of the incorporation of these companies and copies are kept of filed by the secretary of GIIF who collaborates with the various lawyers contracted for these services.
Furthermore, in any company may GIIF holds an equity stake, we ensure that a member of the board is appointed to the board of directors of that company. Nothing of this kind happened in respect of the Ghana Sky Train Limited or for that matter the AI Sky Train Consortium Holdings, a company where exhibits 31 registered in Mauritius.
Indeed when this revelation that the company by name Ghana Sky Train Limited had been incorporated was made at our meeting before NIB some members of the board were extremely infuriated and annoyed that the ceo had incorporated this company with himself as a director and another person who the CEO had recommended for approval as secretary but was not successful listed as the secretary to the company by name Ghana Sky Train Limited.
In the minutes of 24 June 2019, Exhibit 5 item 8.5 reads “the CEO informed members that he has been requested to serve as a members of Cal Bank Limited. Members express their congratulations to him. Nothing of this kind form the CEO that he has been appointed as a director of Ghana Sky Train Limited was ever relayed or brought to the attention of the board by the CEO.
Q. Do you know whether AI Consortium Holdings is the sole shareholder of Ghana Sky Train Limited?
A. Per Exhibit 31, AI Sky Train Consortium Holdings is listed as the holder if 510,000 shares in the company by name Ghana Sky Train Limited.
Q. Is there anyone else per Exhibit 31 who has been allotted shares in Ghana Sky Train Limited?
A. There is no such thing.
Q. You will agree with me that CalBank is not a Special Purpose Vehicle (SPV) of GIIF but rather a listed entity engaged in the business of banking?
A. No my lady it is not. But in so far as it is being presented to this court that the board have its approval to participate in the Ghana Sky Train project consequent upon which approval AI Sky Train Consortium Holdings decided to incorporate Ghana Sky Train Limited, the existence or incorporation of this company by name Ghana Sky Train Limited would have come to the attention of the board. And indeed in exhibit 6 the meeting of 19 November 2019 members of the board stated that they know nothing about the company known as AI Sky Train Consortium Holdings.
