Alhaji Collins Dauda, former minster for Works and Housing, according to a Prosecution Witness, Rev. Stephen Yaw Osei, did not issue an interim payment certificate, regarding the Saglemi Housing Project.
He said this in court last week during cross examination.
Mr Collins Dauda and others have been accused of causing financial loss to the state concerning the Saglemi project.
They have pleaded not guilty to 72 counts of wilfully causing financial loss to the state, misapplying public property, issuing false certificates and dishonestly causing loss to public property.
Below is the cross-examination;
Q: As an Official of the ministries, I am aware that on occasions when business affecting a ministry is to be deliberated upon by Parliament, some of you will attend Parliament together with the Minister to observe proceedings just in case he needs your assistance. Can you confirm that to the court?
A: Yes my Lord. My Lord not all the time sometimes when the official is invited.
Q: In the particular case of the Credit Facility Agreement that was approved by Parliament in connection with the project that is in contention in these proceedings, did you happen to attend Parliament to observe proceedings and offer any help if required?
A: No my Lord.
Q: Take a look at Exhibit K, kindly go through the second page of Exhibit K and read for yourself the second paragraph, the one that ends with “the initial phase indicative timetable”?
A: Yes, I have read.
Q: Now the paragraph I have just drawn your attention to provides fora number of things. One of which is that the Contractor and the Ministry have now agreed that the project be executed in three phases, is that correct?
A: My Lord with the Exhibit K it is stated that. However what I know is the Agreement in Exhibit H. Therefore I still stand by the figures in Exhibit H.
Q: What figures were in Exhibit H?
A: My Lord if I can get the Exhibit H and quote it. My Lord per the Exhibit H, paragraph 5 which begins whereas the Ministry of Water Resources, Works and Housing has agreed to provide the site located at Salgemi, Greater Accra with an area of 2,172 acres (the site), the Contractor and the Ministry have agreed that the project will be executed in four phases of approximately 500 acres each. So my Lord this is the figure I am referring to.
Q: And so if you look at the paragraph you just read in Exhibit H and compare that which I drew your attention to in Exhibit K, the difference is that in Exhibit K, the project was to be executed in three phases covering an area of 1,272 acres whereas in Exhibit H, it was to be executed in four phases covering 2,172 acres, that is the difference?
A: My Lord, the difference between the two is that one is talking about an area of 2,172 acres to be executed in four phases of approximately 500 acres each whereas Exhibit K was talking about 1,272 acres to be executed in three phases. My Lord the first example in the Exhibit H was to be executed for an amount of 200million United States Dollars. And with Exhibit K, whiles the acreage has been reduced by almost 1,000 acres the same 200million was to be applied for the same project. So that is the big difference between the two.
Q: Now in terms of the paragraph you have read in Exhibit K. It is clear that that paragraph never talked about the reduction in the number of houses. It only talked about the phases that the entire project will be executed?
A: My Lord, Counsel is talking about a portion of a whole, which does not give a whole description of what is under consideration.
Q: I am asking you just answer my question, which I asked you directly that the paragraph in Exhibit K, which we are dealing says nothing about the number of houses, but only talks about the number of phases in which the project will be executed?
A: Yes my Lord. That paragraph Counsel was referring to doesn’t talk about the number of houses, however the next paragraph is clear that they were to apply 200million dollars for the project.
Q: And did that next paragraph say there will be reduction in houses?
A:My Lord this document is not to be taken in isolation. There are a lot of other documents and annexures, which should be taken into consideration.
Q: Thank you for your vast knowledge of the volume of documents, which form part of Exhibit K, but the question I asked simply requires you to point to the paragraph you relied on and confirm to the court, which part of that paragraph reduces the number of houses?
A. My Lord, Counsel was talking about a paragraph. The paragraph does not refer to houses. It talks about acreage of land and the phases of the project to be executed.
Q: So I am putting it to you there is nowhere in Exhibit K where it is provided that there will be reduction in the number of houses to be constructed in the project.
A: My Lord if you take the whole Exhibit K into consideration including the annexures. The annex D, my Lord where we have the Saglemi Housing Project, Housing Units Phase. The table gives an indication of the number 1,502.
Q: Does the table have a heading?
A: The heading is ‘Saglemi Housing Project, Housing Units, First Phase’.
Q: So I am putting it to you clearly from your own annex D (of Exhibit K), the 1,502 are the houses that are to form part of only the first phase of the three phases?
A: My Lord I do not agree. From Exhibit H, the figure for the housing project was 5,000 housing units to be implemented in four phases for an amount of 200million dollars.
The memo to cabinet and cabinet approval to the Joint memo from the Ministry of Water Resources, Works and Housing and the Ministry of Finance and Economic Planning approved the figure of 5,000 housing units for $200million. My Lord, Parliamentary Approval, PPA Approval and the
Escrow Management Agreement all had the figure 5,000 units for 200million dollars.
Q: So I am putting it to you that Exhibit K did not deviate from any Parliamentary Approval in respect of number of houses and the price. All it did was to change the number of phases in which the project was to be executed to encompass the same number of houses at the same price?
A: My Lord, I don’t agree with what Counsel is saying. There is a huge difference. In the first place the scope of reduction did not ‘even receive Parliamentary approval. And my Lord the $200million dollars were meant for 5,000 housing units.
As I speak to you now, my Lord even if we are to take the Exhibit K as a working document and to use the number 1,502 housing units. My Lord the whole amount of 200million dollars is almost exhausted. However, according to figures produced by Ghana Institute of Surveyors, only 668 housing units has been completed. The rest are at various stages of completion, but the money is almost exhausted. .
Q: From the answer you just gave to the court, I am further putting it to you that even if we go by the Exhibit H, which is the only document you recognize in this court room, the money will still be almost exhausted. Exhibit K is not the reason. I put it to you?
A: My Lord it is not true. My Lord the Escrow Management Agreement was signed before other agreements were signed and the reason was that the financiers of the project wanted the funds to be solely applied to the project and to ensure value for money.
My Lord that is why when you look at the Schedule 3 of the Escrow Management Agreement, it shows clearly the milestones that are to be achieved by the Contractor and agreed upon by the parties involved before payments were made.
The Escrow Management Agreement made it clear that upon an achievement of a milestone the Contractor could raise his certificate to be confirmed by the Consultant stating in clear terms what milestone has been achieved, percentage of work done and then the amount of money to be paid. My Lord, I want us to look at the annex F of Exhibit H. I want us to juxtapose this with the Escrow Management Agreement, Schedule 3.
For instance annex F at page 27 gave the uses for the advance payment that was 40% of the contract sum. My Lord the breakdown is listed there. When advance payment are paid to contractors, it is like a loan to be paid in subsequent certificates raised by the contractor.
However, upon examination, upon various certificates presented by the contractor through the Consultant, nothing was mentioned about efforts made to reduce the 80million dollars that was advanced to the contractor and absolute figures certified by the Consultants were paid to the Contractor without deducting any percent of the advance mobilization.
Therefore Counsel’s assertion that even if the 200million had been applied to the 5,000 would have been the same is not correct.
Q: So I am putting it to you also that the answer you just gave to the court, funds were paid to the contractor under the Exhibit H, which was before Exhibit K was executed and even after Exhibit K, further funds were paid to the contractor under Exhibit P, which is the Second Restated Agreement at a time the Ministry of Water Resources, Works and Housing was presided over by different ministers.
A: Even though the advance mobilization was paid before the 1stAccused assumed office. Governance is a continuous process so as a head, you assume both liabilities and assets and with contract management there should have been process to start deducting portion of the advance payment made to the contractor.
That is why when the certificates are raised by the contractor, a copy is sent to the Ministry and per the Escrow Management Agreement, the document I was referring to, there is a clear provision, which states the milestone achieved by the contractor for the corresponding amount to be paid to the contractor.
The Ministry when it receives such documents from the contractor, conducts internal checks by sending a team to the project site to ascertain the truthfulness of the certificate raised and if such thing had been done, the contractor would not have gone away with the deduction of the 80million advance mobilization payment made to him.
Q:From paragraphs 4 and 5 of your Witness Statement, you state that you were in the PPBME department of the Ministry, which among others is responsible for processing payments to contractors and consultants?
A.Yes my Lord and the PPBME is Policy Planning, Budgeting, Monitoring and Evaluation.
Q: From paragraphs 88 to 92 of your Witness Statement you confirmed to the court that several other payments were made from January 2017 up to June 2017. Why did that your department not either withhold payment or deduct it from the payment already made?
A: My Lord the PPBME Directorate will only act when documents are referred to Directors. The Honourable Minister received mails or letters from Consultants and the norm is that the Minister refers the documents to the Chief Director and then the Chief Director further directs the Director, PPBME to take the necessary action. The PPBME will only act when documents are referred to it and so if documents are not referred to it, there is no way the PPBME Directorate can work on any document.
Q: Are you suggesting to the court from the answer you just gave to the court that from January 2017 to June 2017, that the Minister at the time made those payments without reference to the PPBME Directorate of the Ministry?
A: My Lord, I said that when Minister receives the document, it is referred to the Chief Director. The Chief Director may refer to the PPBME Directorate.
Q: From the documents of the PPBME Directorate, there is no records of payments worked on by the PPBME Directorate. And if such reference were made to the PPBME Directorate, you would have been aware of it, isn’t it?
A: Yes my Lord.
Q: therefore means from your answer you just gave to the court, that no such reference was made to the PPBME Directorate in respect of the payments from January 2017 to June 2017. I am putting that to you?
A: No my Lord such references were not received by the PPBME Directorate. However the Ministry made payments to other contractor or Consultant.
Q: I am putting it to you therefore that in respect of the payments between January 2017 and June 2017 there were no deductions or retention of any monies for works done or not done by the contractor or the Consultant?
A: My Lord there was no deduction from the first payment certificate to the last one.
Q: Take a look at the Charge Sheet, if you look at Count 2 of the Charge Sheet, it charges the 1stAccused as having caused financial loss to the Republic in the sum of $27,789,981.73 and this is the amount you refer to in paragraph 58 of your Witness Statement. Do you confirm that to the court?
A. Yes my Lord.
Q: In that paragraph you testify that the request was made for payment in May 2014 and the 1st Accused requested the payment in June 2017 is that correct?
A. Yes my Lord.
Q: To prove this you tendered in evidence, Exhibit U series, which comprises the architect’s letter to the Minister dated 8th May 2014, a letter from the Consultant OAS dated 15th April 2014, and the Interim Payment Certificate number 001. Those are the documents, which comprise the Exhibit U series is that correct?
A: Yes my Lord. I was looking for the letter from the Ministry that forwarded this certificate from AESL. My Lord …
Q: So Exhibit U series doesn’t have any letter from the Minister to anybody is that correct?
A:Yes. My Lord I tendered in evidence a letter by the Ministry forwarding this certificate to the Ministry of Finance.
COUNSEL FOR 1st ACCUSED PERSON – Can I pray the court to confirm my concern on record that the Prosecution and the Defence have confirmed from the court that Exhibit U series does not have any additional documents regardless of the Witness’s belief.
BY COURT – There is no dispute about this. Let Counsel for Al continue with his cross examination.
COUNSEL FOR 1st ACCUSED PERSON – My Lord I am exceedingly grateful.
PROSECUTION – My Lord I just want to draw the court’s attention to Exhibit T. The amount involved, that certificate Reverend mentioned, he mentioned that he tendered together with a covering letter for Exhibit U, my Lord I think that was what was marked as Exhibit T.
The – covering letter he mentioned is what is tendered as Exhibit T. If you look at what we have here as our Exhibit T, it covers the amount that is written on that Exhibit U and that is the covering letter.
BY COURT: At this stage the court cannot do anything but you have the right of re-examination.
PROSECUTION – Very well my Lord.
COUNSEL FOR 1st ACCUSED PERSON – My Lord maybe let us confirm whether that is what the court has as Exhibit T first and then we can proceed from there.
BY COURT – “Re: Application for the release of funds for the construction of 5,000” is that what you have? It is supposed to be two paged document.
COUNSEL FOR 1st ACCUSED PERSON – Dated 20″…
BY COURT – 20th June 2014, “Re: Application for the release of funds for the construction of 5,000 housing units at Saglemi in the Dangbe East District of the Greater Accra Region.”
COUNSEL FOR 1st ACCUSED PERSON: My Lord, I now get what they are saying, but if you will recall, I approached the Bench with the D.P.P. on a particular occasion and we said the documents there was a problem with the marking so now I can understand their concern and I thought we agreed that we will remark them, but I think when we came, they couldn’t make the Exhibits available. That was what happened.
BY COURT – Yes, so what we have done is that we have done the Exhibit map.We can do the reconciliation on the official map.
COUNSEL FOR 1st ACCUSED PERSON – That is not a problem.
Q: If you look at the document marked Exhibit U1, which is the letter written by OAS to which is attached the Interim Payment Certificate, you don’t find the 1st Accused signature on any of them?
A. It’s not there my Lord.
Q. I am putting it to you that the 1st Accused did not issue the Interim payment Certificate?
A. My Lord, per the Escrow Management Agreement, which preceded the signing of the EPC Agreement, it made it clear that per the achievement of a milestone in the execution of the contract the contractor has a duty to issue a certificate to the consultant copied to the Honourable Minister.
My Lord the 1st Accused does not work for OAS and there is no way his signature will be on the OAS certificate. However, the Agreement was for the Contractor to issue a certificate to the Consultant copied to the Ministry.
Q. From the answer you just gave to the court, I am putting it to you that the Minister is not responsible for issuing the Interim Payment Certificate provided for by the agreement?
A. Yes my Lord. It is not the duty of the Minister to issue the Interim Certificate, however, it is the duty of the Minister to request for payment for a certificate issued. My Lord, if you look at the Escrow Management Agreement that stated clearly that whenever a certificate was to be issued, the milestones achieved should be clearly stated. What I am seeing is just the figure which doesn’t explain the work done as usually found on the payment certificate.
Q. On the 28th of November 2023, the 1st Accused person tendered through you, Exhibit 1D3. Exhibit 1D3 states the figure in the region of $27million at page 12, which is in paragraph 58 of your Witness Statement is that correct?
A. Yes my Lord.
Q. If you look at the last sentence, it talks about the Consultant’s analysis, which is the basis for the payment. It included the progress tracking report, site visits, measurements of work done on site?
A: I see a statement talking about the total amount for the certificate and after deduction of advance payment.
Q: From the answer you just gave to the court, you would now agree that the 1st Accused ensured that the advance payment made to the Contractor was deducted before the payment of this sum of about $27 million?
A. My Lord, the other day that Counsel presented this document, I told the court that I have not seen it. I will pray the court to do the necessary checks and get back to court to confirm the figures.
BY COURT – Are you saying that you need time to study it before you can answer the question or you … because his questions are around the document,
PW 1Yes.
BY COURT – So you need time to study it before you can answer the question?
PW 1: Yes my Lord.
BY COURT-So we should give you a bit more time?
PW1- My Lord today.
BY COURT – I think his question is referable to a particular portion of the document not the entire document. If the question is too general, then I will understand your request because you need to pinpoint or direct particular page. It is quiet bulky, but the question has pinpointed you so I can give you time to look at the particular page and then digest it and then you answer the question.
PW 1 – My Lord as I said, the document as I have said the document, I have to number one authenticate it and then also get to know whether what is here is also what is found in the book.
BY COURT – You see this document is already in evidence. You didn’t tender it. He tendered it through you. As to whether it is authentic or not authentic, it is a different matter and your lawyers know what to do.
PROSECUTION- My Lord I think he mentioned that he has not seen this document and when it was tendered through him he mentioned it at that time as well. He has repeated same now and it is just fair that he is given time to go through the documents before he can answer any questions put to him.
If he is asked to, it is as if he is being brought to answer questions to something that he says he has not seen. So it is just fair that he is given that opportunity to go through the document and familiarize himself with it.
BY COURT – Yes Counsel for A1 what is your reaction?
COUNSEL FOR A1- My Lord we are interested in assisting the court to achieve justice. If he needs time to look at a document he has boasted that they are all in his custody and in his Witness Statement, it is ok. We just want him to give the answers that will enable the court reach a fair determination of this matter. If that is their request, we only hope that if at a point in time, we also need such time they will be charitable as we have been to them that is all. It is fair play.
BY COURT – So the court will give you 24 hours, tomorrow afternoon you come back. So use tomorrow morning and all that.
COUNSEL FOR A2-My Lord the tomorrow date if my Lord will consider either Thursday or possibly next week, it will be preferable. My Lord respectfully tomorrow’s date will be so unhelpful. My Lord, respectfully.
COUNSEL FOR A3 – My Lord respectfully since the prayer has been made, my Lord, I will repeat my prayer that in order for Counsel at the Bar to be able to be guided and be able to project how our week will go, if the Court and the Bar can agree on selected days before hand so that I pick my diary on Monday, I know I am committed to this court on this day so I don’t have to commit myself in another court.
My Lord will notice that sometimes we have to rush and go to attend to other matters and come but it will be very helpful if we know before hand at least two, three clear days before today I am here. So we can agree to pick selected days and then we will come before you.
COUNSEL FOR A5 – My Lord indeed on this matter, I will like to humbly to associate myself with my friend, MrTamekloe. My Lord tomorrow and Thursday I am in Takoradi and I didn’t have any idea that after today we will do tomorrow.
Those dates were picked even before your Lordship fixed today’s date so if my Lord will kindly consider our circumstance. My Lord we are grateful.
BY COURT – I have taken concerns of Counsel at the Bar into consideration and the court is also taking its own concerns into consideration knowing that the court is manned by a Judge who sits in the Court of Appeal as well so I don’t have the luxury of time.
On that basis the suit is adjourned to 23rd January 2024, 24tj January 2024, 30th January 2024. 1st, 6th, 7th, 8th and 13 February and every Tuesday, Wednesday and Thursday at 1:30pm to 3:45pm until the case is completed or the court otherwise directs.
PROSECUTION – My Lord before you rise, my Lord in respect of this document, as we have already indicated to the court, the Witness says he has not seen it. We admit that we put it on a pen drive before Counsel as the court directed, but my Lord we didn’t put just this document.
There were several documents, we indicated that to the court that the documents they were requesting for were bulky documents and, therefore, they should come and look at those documents for them to do exactly what they wanted, but the court ordered that we should put all those documents on a pen drive for them and that is what exactly what we did.
What they have compiled in this booklet, we don’t know, which of the documents we have given them that they have put together.
So we think that it is just fair that when they did this compilation, they should have given us a copy so that we know we are all on the same page.
We know that what they have on their compilation is what we have and it is what the court has, but as at now we only have what the court has shown the Witness and we don’t have a copy so we would not be able to …
BY COURT – Learned Principal State Attorney, you know under the law, -even where you have documents that you don’t intend to use, you are enjoined by the Practice Direction to make available to the Accused or his Counsel.
PROSECUTION – We’ve done that my Lord.
BY COURT – So once you have made that available and they decide to pick and choose, which of the unused documents, they want to use that one it will be within their prerogative, but since you have also the whole document, you can also cross check and find out whether what they have put forward especially so if it is not coming from a different source. They just picked some of the documents you decided not to use, you can always cross check to make sure that there is that kind of collaboration.
PROSECUTION – My Lord, we agree with what you have said but here is the case they have that copy but we don’t have anything to compare with. We don’t have what they have compiled to compare with.
BY COURT – If I understand, you are saying that you don’t have a copy of Exhibit 1D3?
PROSECUTION – No we don’t, my Lord.
BY COURT – So you need a copy?
PROSECUTION – Yes.
BY COURT – Then that one is legitimate.
COUNSEL FOR A1 – My Lord it is fair to hear us before it becomes legitimate. This is not a document we conjured from the sky. It is extracted from their documents that they discovered on the 2nd of November 2023. When we tendered it in evidence, go to your pen drive and find out whether these were there or not that is all.
I shouldn’t provide a document you have given to me back to you. What is that? It is your own document. You tendered it, I have extracted what I need from it. I have put it in evidence as 1D3. If you even are not sure of it, just photocopy 1D3, it is already in evidence. I have no obligation to give it to you.
By court: Yes so you have to put in a request to the Registry. All parties are entitled to get a copies of the exhibit if you want to.
