…Over Lack Of Evidence to Charge Him With any Offense
The Attorney General and Minister for Justice through its Senior State Attorney, Mrs. Nana Adoma Osei in her advice to the Criminal Investigation Department (CID) of the Ghana Police Service, has stated that the state cannot prosecute the Chief Executive Officer of Ghana First Company Limited, Mr. Frank Akuley, who was arrested in March, 2021 by Police over alleged construction fraud.
The Senior State Attorney, Mrs. Nana Adoma Osei advised that, “A careful and painstaking evaluation of the docket reveals that the accused did not have the intention to defraud. The issues in contention are of a civil nature. The parties are therefore advised to explore the option of ironing their issues out in a civil suit.
From the foregoing, we disrecommend the prosecution of the accused person. “Please do not charge him with any offence”
The CID charged Mr. Frank Akuley ‘Defrauding by False Pretences: Contrary to Section 131 (1) of the Criminal Offenses Act 1960’, according to the Statement of Offence of the charge sheet, and arraigned him before court and later granted bail.
Before the introduction of this project, GFCL has done its financial engineering with its Banker, GCB Bank PLC.
GCB Bank PLC as a matter of assurance wanted to know if the government of Ghana is in support of the project, in other to avoid any financial losses if the project did not go as planned.
This led to the Ministry of Sanitation and Water Resources given GFCL “Letter of Support” to financial institutions for financial support and assistance after the Ministry had subjected the project or facility to technical and financial reviews and concluded that, its viability and sustainability is not in doubt.
On 29th May, 2017, the Ministry of Sanitation and Water Resources gave two separate letters to GFCL.
One of the letters was an introduction letter, which was signed by the then Minister, Hon. Joseph
Kofi Adda, introducing the company to the various Assemblies and invite them to accord the company their utmost assistance to ensure this laudable project come into fruition in your district.
The other letter titled “Letter of Support” signed by the same Minister, introducing GFCL to the financial institutions for financial support and assistance after the Ministry had subjected the project or facility to technical and financial reviews and concluded that, its viability and sustainability is not in doubt.
The Ministry of Local Government and Rural Development gave GFCL an introduction letter, introducing GFCL to the various assemblies requesting them to accord GFCL the necessary courtesies towards facilitating the ventureship. This letter was written and signed by Hon. O.B Amoah (MP), Deputy Minister for Local Government and Rural Development on 9th August, 2017.
Ghana First Company Ltd entered into a Public-Private Partnership (PPP) agreement with the various MMDAs to construct ultramodern automated toilet facilities across all Metropolitan, Municipal and Districts Assemblies across the country.
The Public-Private Partnership (PPP) agreement signed between GFCL and the Assemblies was for 30 years.
Sections of the agreement between GFCL and the Assemblies state that;
Section 3 ii. “That the Project Partner hereby covenants that the land it shall provide shall be its self-acquired land with title, right and or interest in the said land having vested in the Project Partner. Furthermore the land so provided shall be vested to the project owner who is authorized to use the respective land for the purpose of securing funding only for this project.”
In view of the fact that the Land Title Deeds covering the lands provided were not available, the Assemblies signed an undertaking in support of section 3 ii “that it is in the process of securing the land title document on the lands provided by the assembly and that the registered documents covering all the lands provided by the Assembly shall be submitted to Ghana First Company Limited within 4 (four) calendar months for onward delivery to your Bankers’’.
Since 9th July, 2017, when this undertaken was made, the said Land Title Documents have not been submitted by any of the Assemblies.
Due to the failure of the Assemblies to submit these land titled documents have resulted to the stall of the projects.
Section 3 iii “That the project partner hereby covenants further that in the event it has no self-acquired land then it shall facilitate and ensure the acquisition of a third party’s land’’.
Section 3 iv “that the project partner hereby further covenants that whether the land for the project is its self –acquired land or a land belonging to a third party it shall bear the sole responsibility of procuring the said land for the project free from all encumbrances, example being that it shall be free from litigation whatsoever or any adverse claim or defect in its usage for the project under any circumstance. In this instance conditions in clause 3ii supra also apply”.
In view of section 3 iii and iv, some MMDAs are claiming that, the lands they provided for the construction of the toilet facilities belong to the chiefs and for that matter they cannot provide the Land Title Documents for the lands provided, even though they have signed the agreement and supported it with letter of undertaking indicating that they are in the process of securing the land titles and promised to deliver these land titles within Four (4) calendar months for onward delivery to your bankers.
From the company’s documents obtained by this paper indicates that, they are in the view that, if this is what some of the MMDAs are saying, then it means that they have impersonated by signing the agreement and the undertaking by themselves without indicating the third party.
Section 3 v “That the Project Partner shall ensure that the Assembly itself, agents, privies, assigns, servants, workmen whomsoever or otherwise howsoever during the tenure of any government shall not dispossess the Project Owner from its ownership and that no person at law shall take over the property comprised in the project herein either permanent or temporarily and that the project is indemnified against all government interferences. All related legal cost arising out of government interferences shall be borne by the Assembly.”
In view of this section, some of the assemblies have teamed up and collaborated with some contractors to complete the projects with their own specification, open and operate the same Clean Ghana Sanitation PPP Turn Key projects of Ghana First Company Limited on the same Lands which has been vested in Ghana First Company Limited (Project Owner) without the company’s consent and approval.
Section 3 xi. “That the Project Partner shall at all time during the tenancy of this agreement ensure that there is at all times security to protect the facility from any form of destruction whilst the Project Owner shall be responsible for the maintenance and uninterrupted operation of the facility.”
Ghana First Company Ltd then entered into agreement with all the contractors who were to build the toilet facilities. According to the agreement signed between Ghana First and the contractors, Clause 5(iv) states that”, that the contractor agrees that the Contract is a TURN KEY PROJECT and that the Contractor shall be paid only upon full completion and hand over of the entire project”.
Clause 39.1 of the agreement between GFCL and the Contractors states that “ Without prejudice to Clause 5 v of the contract agreement, the Employer reserves the right to pay part of the total sum amounting to 60% of the quantum sum after collaborative site visit and inspection is done by the employer, the bankers and the contractor.
The employer therefore, without any doubt reserves the right to uphold this said payment when defects are detected after the collaborative site visit and inspection. Payment will therefore be done after these defects are remedied by the contractor”.
This clause is not a mandatory clause, but it’s the employer who has this right but not the contractors. The contractors were trying to enforce this clause but it was not their right.
Some contractors who claimed they were hard up and could not continue the work, appeal to Ghana First for financial assistance to enable them complete the work. Since Ghana First Company Ltd don’t want any abundant projects, gave some of the contractors’ financial assistance to a tune of over GHC 5.5 MILLION even though it was not part of the agreement.
From our sources, not a single contractor has handed over a completed project to GFCL.
On August 22, 2019, GFCL made a publication in the Daily Guide newspaper challenging contractors working for the company on the issue of non-payment of 60% of work done.
Portion of the publication reads “the management of the company hereby challenges any contractor working for the company who claims to have completed 60% of the required specifications and has a certificate to that effect, signed by the CEO of the company, to submit its certificate to the Head Office of the company for inspection, verification and due payment within five (5) working days from the date of release of the document. Though the project is a “turnkey project” as stated in clause 5 (v) on page 5 of the contract agreement, the company respects what is stipulated in clause 39 (1) on page 17 of the same document, that the employer reserves the right to pay 60% of work done in accordance with the required specifications”.
From our reliable source, no contractors was able to present a certificate showing 60% of work done as the publication demanded.
According to our information, building up to the scam and fraud issues alleged against Ghana First Company and its CEO, the aggrieved contractors started mounting spirited Radio and TV programs interviews calling on the government to investigate and conduct forensic audit of GFCL operations because the company is a scam, to the extent of threatening and demonstrating against the company and the government.
Somewhere in March 2019, some of the contractors wrote to Ghana First Company’s Partner in Germany (Thermodul Systems GmbH), informing them that Ghana First Company Ltd is using the MOU signed to extract various monies from many Ghanaian Contractors and for that matter the company and its CEO are scammers so they should withdraw from the agreement.
The MOU signed between GFCL and Thermodul System was that, Thermodul will invest US$ 300,000,000 into the projects.
On the 2nd of April, 2019, GFCL received a letter from Thermodul Systems signed by its CEO, Ms. Lidia Mathe, terminating the MOU.
In response to this said letter, signed by its company Lawyer, Charles Amoah ESQ, GFCL vehemently refuted the allegation and threating to seek full force of the law to redress or redeem its image.
On May 1st, 2019, Thermodul System wrote back to Ghana First Company Ltd, signed by its CEO, Ms. Lidia Mathe, seeking amicable resolution and retraction of their allegation.
On 3rd May, 2019, Ghana First Company Ltd responded to their Amicable Resolution and Retraction letter accepting their apology. This letter was signed by the CEO, Mr. Frank Akuley.
From the above narration, it’s evidently clear that, both the assemblies and the aggrieved contractors have contributed to the delayed of the Projects.
This paper has cited a board meeting of Ghana First Company Ltd which was held in December, 2022. The Board of Directors and Shareholders of Ghana First Company Ltd resolved among other things that:
The contract between GFCL and the contractors has expired and any contractor who wants to continue to work with GFCL should come and follow the required process to renew its contract with GFCL with ultimatum up to the end of February, 2023.
Contractors who terminated their contract with GFCL and wish to continue to work with GFCL should come and follow the due process to revoke their terminated contract with ultimatum up to the end of February, 2023.
The CEO has been directed by the board and the shareholders to take legal action against the assemblies who have teamed up with some contractors to dispose the project owner from its ownership.
The CEO has been directed by the board and the shareholders to take criminal action against contractors who have completed the projects with their own specifications, open and operate the project awarded to them as TURNKEY Project by Ghana First Company Ltd and signed an agreement to that effect, without the company’s consent and approval.
For example, if a government award a Turnkey Project to any contractor working for the government and you the contractor has not completed and hand over the entire project to the government, you the contractor cannot go ahead and complete and run it as your own being road, schools, hospital or any infrastructure projects. The law that does not allow any contractor to own a government projects, is the same law that is governing the activities of any project owner. The law allows the contractor to demand for his money after completion of the project but does not allow the contractors to own the project whether you have completed the project or not.
Any contractor who does so will be liable for criminal prosecution.
From a reliable source within the company, the CEO feels reluctant and delaying the process to take legal action against the government (Assemblies).
With this, it will be in the best interest of the government to sit down with the company to find a lasting solution to this problem to avoid any legal issue.
This paper can confidently say that, there will be a looming judgement debt if the company pursue this issue in the court of law.