A former Board Member of the Ghana Infrastructure Investment Fund (GIIF), Yaw Odame-Darkwa, has challenged the former board chairman of the Fund, Prof Ameyaw Akumfi, to produce board minutes approving the disbursement of a US$2 million capital injection into the Accra Sky Train project.
Mr Odame-Darkwa, who is the Prosecution’s first witness (PW1), threw the challenge while under cross-examination by Yaw Acheampong Boafo, counsel for the embattled former board chairman, before an Accra High Court presided over by Her Ladyship Audrey Kocuvie-Tay on Monday.
He told the court that there are no board minutes capturing any approval by the GIIF Board for either the Sky Train project or the release of funds at the time the US$2 million was disbursed.
According to him, the project was still at the Investment Committee stage and had not reached the board for approval.
Under questioning, Mr Odame-Darkwa confirmed that the GIIF Board developed a disbursement policy pursuant to Section 16 of its governing framework. He said the policy was adopted on April 11, 2017, and that he was present at the meeting.
He told the court that under the resolution, all payments of GH¢500,000 and above were required to be jointly signed by the Chief Executive Officer and the Board Chairman, with processing done by the Fund’s finance department.
He identified key finance officials at the time, including Reginald Okai, then Chief Finance Officer; Benjamin Abrakwa, a Senior Finance Officer; and Seth Nana Kwame Osei, also of the finance department.
He confirmed that none of them were board members and could only process disbursements supported by board approval evidenced by signed minutes. Asked whether the finance department would disburse US$2 million without the requisite documentation, the witness maintained that no board approval existed in this instance.
Counsel for the second accused person referred the witness to portions of documents tendered in evidence, including Exhibit 4, which stated that the Chief Executive had informed the board of approval for a US$2 million investment in the Sky Train project.
Mr Odame-Darkwa, however, rejected that interpretation, explaining that the reference was merely an update by the Chief Executive and not a substantive board approval.
Heated Legal Exchanges
The cross-examination triggered a series of objections from the Deputy Attorney-General (DAG), Dr. Justice Srem-Sai, who argued that some of the questions were confusing, irrelevant, and misleading.
He contended that the core issue before the court was whether government funds were disbursed without board and parliamentary approval, not whether GIIF was responsible for constructing the Sky Train.
Counsel for the defence countered that they were entitled to lead evidence to show that GIIF was not responsible for funding the construction of the project and that the questions were relevant to the charge.
After hearing arguments from both sides, the court overruled the objections and allowed the defence to continue with its line of questioning.
Questions (Q) and Answers (A)
Q. At the last court date you asked permission to refresh your memory as to whether the board of GIIF had developed a disbursement policy pursuant to section 16. Have you now refreshed your memory?
A. Yes, my Lady
Q. Did the board develop a disbursement policy?
A. Yes, my Lady. The board at its early stages put in place a resolution guiding how all disbursement have to go. And this guideline would normally spell out which limit each official can sign off.
Q. The date on which the board developed the disbursement policy was 11 April 2017. Was it not?
A. Yes, my Lady
Q. Were you present at that meeting?
A. I’m sure I was.
Q. And you would recall that as part of the resolution for disbursement, the board decided that payments from GH¢500,000 and above must be jointly signed by the Chief Executive Officer and the board chairman?
A. Yes, my Lady
Q. And the processing of disbursement was to be done by the finance department of GIIF?
A. Yes, my Lady
Q. Do you know Mr. Reginald Okai who at the time was the chief finance officer at GIIF?
A. Yes, my Lady
Q. And do you also know Benjamin Abrakwa, the senior finance officer?
A. Yes, my Lady
Q. Do you also know an official at the finance department known as Seth Nana Kwame Osei?
A. Yes, my Lady
Q. And these persons are the principal officers who handle the process of funds at GIIF
A. Yes, my Lady
Q. And none of these three persons were board members of GIIF?
A. Yes, my Lady
Q. And you know that they can only comply with a disbursement request if it is supported by an approval of the board and the evidence would be signed minutes to that.
A. Yes, my Lady that is how they are supposed to work. But in this instance they had no board approval.
Q. It is not correct that the whole finance department of GIIF would proceed to disburse the sum of $2 million without the requisite documentation?
A. I disagree with him because I have shown to this court how board approvals are done at GIIF. Board approvals are not in any document, they are written clearly in the board minutes. If counsel has that approval which was used to disburse that money he should show it to the court.
Q. The transfer instruction from GIIF to the bank to pay any beneficiary must include these documents Is that not so?
A. I’m not exactly sure about that one.
Q. Are you aware that during the investigations at the NIB those working with the finance department were invited for questioning and statements taken from them?
A. Yes
Q. Exhibit 4 item 7.7. Read item 7.1.
A. The chief executive informed that the following the approval by the board that the sum of US$2 million be invested in the Accra sky train project.
Q. And you were present at this meeting?
A. Yes, my Lady. This is not bias approval. This is merely an update by the chief executive on the Sky train project because at the time the project was still at the investment committee.
Q. Look at items 8 A,B,C?
A. Sky train.
Q. 24 D?
A. GIIF is seeking board approval to take up the offer to acquire 10% stake in the project development at the…
Q. Go to page 5, the portion titled conclusion and recommendations
A. Conclusion… impactful project for the country, government and its people.
Q. Page three of exhibit 24. You see six corporate entities had come together to develop and implement huge project?
A. That is what is there.
Q. And GIIF is not mentioned as part of that consortium?
A. Yes.
Q. Have a look at exhibit 26 A, page 4, Item 5. It is clear that the Accra sky train project was not to be financed by GIIF.
Deputy Attorney General (DAG): objection. Counsel wishes to confuse the witness. Relevance; my lady, council is asking the witness to confirm whether the sky train project was finally end by GIIF.
The law on what constitutes government money, which is also the subject matter of the offence of causing financial loss is that whether government as government of Ghana money or money belonging to any of the institutions of government are all considered as government money.
This question is of moment to the determination of the issue whose money is lost by the actions and decision of the accused persons. That is to say the payment of $2 million without board approval and without parliamentary approval.
Secondly, the page which the witness is being directed to read and rely on in order to answer the question continues to another page and contains so many statements none of which would lend itself to an answer who is funding the project.
The problem with such a question is that it confuses even the court, let alone the witness.
It’s a different thing if counsel is asking the witness without limiting him to a particular document to answer the question. But in this case the witness is being asked to rely on this page to answer this question.
We therefore pray that a proper foundation be laid to indicate the relevance of the question 2. That the question be rephrased to a specific or definite part of the page or be completely disallowed.
Counsel Boafo: The deputy attorney Gerald is now stating that a document already in evidence no question can be asked from them. The witness could accept that by his reading of that portion of the exhibit he disagrees with the question or not. That is all that he is entitled to do.
On the question of relevance I want to draw the DAG to the particulars of offence… we are entitled to ask question to show that the building of the system was not to be undertaken by GIIF. But this was for a specific purpose and we are entitled to lead evidence that we were not responsible for that purpose.
GIIF was not responsible for the funding of the construction of the Accra Sky Train project.
DAG. I leave the distinction between Sky train development and Sky train project for counsel to do. Except to say that the 10% is not the 10% of the project cost as counsel seems to be misconceptualising. It is 10% of a Mauritian company something. A company’s values as measured in shares is not the same at the cost of a project.
Court: at this stage I will decline the temptation posed by counsel for A2 as to distinctions in the charge. That appear to be premature at this stage. I will however overrule the objections and allow the question.
Q. Have a look at exhibit 26 A, page 4, Item 5. It is clear that the Accra sky train project was not to be financed by GIIF.
A. I disagree.
Q. Look at item 6 of exhibit 26A. It explains why the consortium of the six corporate bodies were selected over possible others. Is that not so?
A. From the document it looks like no institution came forward because when the call was made that is the impression that I observed.
Q. Do you know the meaning of the word consortium.
A. Yes. That when a group of companies with different backgrounds come together to undertake a certain transaction.
Q. And you see the word consortium in the diary line under item 6. Is that not correct
A. Yes.
Q. So it cannot be correct that nobody responded to the call.
A. No my lady, I disagree. When I said no other company came forward, I’m not necessarily saying just one company. Because no other consortium came forward.
Q. Line 7 of the same exhibit. Item 12. I want you to read everything to the court.
A. Total project cost. $2.6 billion. 384,000 total riders per day.
Q. At the time that this document was presented to the board, pre-feasibility studies had been done.
A. I’m not aware of that.
Q. Item 5 page 4 of exhibit 26A indicates to options available to the government of Ghana as to how the project was going to be funded. Is that correct?
A. Yes
Q. And paragraph 3 of item 5 clearly shows that it was the competition that has the responsibility to finance the Accra sky train project.
A. Yes, my Lady. But this is not a documents that we will rely on to make an investment decision at GIIF. We rely on investment memos to make investment decisions or not to make and this questions and answers document came about when I think a newspaper reported that the Accra sky train project was to be undertaken and I think people were making noise about it and then the board and management decided to do this questions and answers document so what people were talking about. So, it is not an investment memo.
Q. Exhibit 24 D is an Investment committee memo dated September 2018.
A. Yes.
Q. Exhibit 26 page 1. It says November 2018.
A. Yes.
Q. Look at the top part of that page. It has both the logo of the ministry of railway development and GIIF. Is that correct?
A. Yes.
Q. So, this document was prepared by the ministry of railway development and GIIF.
A. I have no way of verifying it.
Q. So every statement here is reflective of the government of Ghana’s position on the project. I’m pitting it to you.
A. I have no evidence to show that this is the position of the government of Ghana.
Re-examination by DAG
Q. Counsel showed some documents to you and suggested to you that part of their content amounted to board approval of the sky train project. Now tell the court, did any of those documents amount to a board approval of the project?
Counsel Boafo objects: The purpose of re-examination is to clear ambiguities. When a document is tendered in evidence that documentary evidence in the hierarchy of evidence is rated as one having the highest probate value and the content of the document will literally speak for itself. No ambiguity arises.
The document will prove for which purpose it was tendered. If the document was tendered to show there was approval for the Accra sky train project it will clearly indicate in the document. So there will be no ambiguity in that documents.
DAG. The objections are unfounded. A knife or a dagger is a more potent evidence than any document to prove that a person stabbed… so it is not true when counsel said that document is at the top of hierarchy of evidence.
Secondly, there is no document in evidence which shows that the board approval has been given for the sky train project or for the transfer of the $2 million. Therefore, the claim by counsel for A1 that where the documents speaks for itself conflicting oral testimony cannot change what the document says. There is no document in evidence to contradict the prosecution’s case that no board approval was obtained.
To my question, the question did not say that there is a document which said that there is board approval. My question was clear and it says that…
By Court: It is the opinion of this court that prosecution has to satisfy the court on the ground for re-examination. The question and answer condensers to procedure would be clear on the face of the evidence so far received. Prosecution has to been able to point out which question and answer is exactly is ambiguous. I will accordingly decline and sustain the objection.
